C.A. No.

384

February 21, 1946

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.
AVELINA JAURIGUE, appellant.
Jose Ma. Recto for appellant.
Assistant Solicitor General Enriquez and Solicitor Palma for appellee..
DE JOYA, J.:
Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First Instance of Tayabas, for
the crime of murder, of which Nicolas Jaurigue was acquitted, but defendant Avelina Jaurigue was
found guilty of homicide and sentenced to an indeterminate penalty ranging from seven years, four
months and one day of prision mayorto thirteen years, nine months and eleven days of reclusion
temporal, with the accessory penalties provided by law, to indemnify the heirs of the deceased,
Amando Capina, in the sum of P2,000, and to pay one-half of the costs. She was also credited with
one-half of the period of preventive imprisonment suffered by her.
From said judgment of conviction, defendant Avelina Jaurigue appealed to the Court of Appeals for
Southern Luzon, and in her brief filed therein on June 10, 1944, claimed
(1) That the lower court erred in not holding that said appellant had acted in the legitimate
defense of her honor and that she should be completely absolved of all criminal
responsibility;
(2) That the lower court erred in not finding in her favor the additional mitigating
circumstances that (a) she did not have the intention to commit so grave a wrong as that
actually committed, and that (b) she voluntarily surrendered to the agents of the authorities;
and
(3) That the trial court erred in holding that the commission of the alleged offense was
attended by the aggravating circumstance of having been committed in a sacred place.
The evidence adduced by the parties, at the trial in the court below, has sufficiently established the
following facts:
That both the defendant and appellant Avelina Jaurigue and the deceased Amado Capina lived in
the barrio of Sta. Isabel, City of San Pablo, Province of Laguna; that for sometime prior to the
stabbing of the deceased by defendant and appellant, in the evening of September 20, 1942, the
former had been courting the latter in vain, and that on one occasion, about one month before that
fatal night, Amado Capina snatched a handkerchief belonging to her, bearing her nickname
"Aveling," while it was being washed by her cousin, Josefa Tapay.
On September 13, 1942, while Avelina was feeding a dog under her house, Amado approached her
and spoke to her of his love, which she flatly refused, and he thereupon suddenly embraced and
kissed her and touched her breasts, on account of which Avelina, resolute and quick-tempered girl,
slapped Amado, gave him fist blows and kicked him. She kept the matter to herself, until the
following morning when she informed her mother about it. Since then, she armed herself with a long
fan knife, whenever she went out, evidently for self-protection.

On September 15, 1942, about midnight, Amado climbed up the house of defendant and appellant,
and surreptitiously entered the room where she was sleeping. He felt her forehead, evidently with
the intention of abusing her. She immediately screamed for help, which awakened her parents and
brought them to her side. Amado came out from where he had hidden under a bed in Avelina's room
and kissed the hand of Nicolas Jaurigue, her father, asking for forgiveness; and when Avelina's
mother made an attempt to beat Amado, her husband prevented her from doing so, stating that
Amado probably did not realize what he was doing. Nicolas Jaurigue sent for the barrio lieutenant,
Casimiro Lozada, and for Amado's parents, the following morning. Amado's parents came to the
house of Nicolas Jaurigue and apologized for the misconduct of their son; and as Nicolas Jaurigue
was then angry, he told them to end the conversation, as he might not be able to control himself.
In the morning of September 20, 1942, Avelina received information that Amado had been falsely
boasting in the neighborhood of having taken liberties with her person and that she had even asked
him to elope with her and that if he should not marry her, she would take poison; and that Avelina
again received information of Amado's bragging at about 5 o'clock in the afternoon of that same day.
At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas Jaurigue went to the
chapel of the Seventh Day Adventists of which he was the treasurer, in their barrio, just across the
provincial road from his house, to attend religious services, and sat on the front bench facing the
altar with the other officials of the organization and the barrio lieutenant, Casimiro Lozada. Inside the
chapel it was quite bright as there were electric lights.
Defendant and appellant Avelina Jaurigue entered the chapel shortly after the arrival of her father,
also for the purpose of attending religious services, and sat on the bench next to the last one nearest
the door. Amado Capina was seated on the other side of the chapel. Upon observing the presence of
Avelina Jaurigue, Amado Capina went to the bench on which Avelina was sitting and sat by her right
side, and, without saying a word, Amado, with the greatest of impudence, placed his hand on the
upper part of her right thigh. On observing this highly improper and offensive conduct of Amado
Capina, Avelina Jaurigue, conscious of her personal dignity and honor, pulled out with her right hand
the fan knife marked Exhibit B, which she had in a pocket of her dress, with the intention of
punishing Amado's offending hand. Amado seized Avelina's right hand, but she quickly grabbed the
knife with her left hand and stabbed Amado once at the base of the left side of the neck, inflicting
upon him a wound about 4 1/2 inches deep, which was necessarily mortal. Nicolas Jaurigue, who
was seated on one of the front benches, saw Amado bleeding and staggering towards the altar, and
upon seeing his daughter still holding the bloody knife, he approached her and asked: "Why did you
do that," and answering him Avelina said: "Father, I could not endure anymore." Amado Capina died
from the wound a few minutes later. Barrio lieutenant Casimiro Lozada, who was also in the same
chapel, approached Avelina and asked her why she did that, and Avelina surrendered herself,
saying: "Kayo na po ang bahala sa aquin," meaning: "I hope you will take care of me," or more
correctly, "I place myself at your disposal." Fearing that Amado's relatives might retaliate, barrio
lieutenant Lozada advised Nicolas Jaurigue and herein defendant and appellant to go home
immediately, to close their doors and windows and not to admit anybody into the house, unless
accompanied by him. That father and daughter went home and locked themselves up, following
instructions of the barrio lieutenant, and waited for the arrival of the municipal authorities; and when
three policemen arrived in their house, at about 10 o'clock that night, and questioned them about the
incident, defendant and appellant immediately surrendered the knife marked as Exhibit B, and
informed said policemen briefly of what had actually happened in the chapel and of the previous acts
and conduct of the deceased, as already stated above, and went with said policemen to the police
headquarters, where her written statements were taken, and which were presented as a part of the
evidence for the prosecution.

The high conception of womanhood that our people possess, however humble they may be, is
universal. It has been entertained and has existed in all civilized communities.
A beautiful woman is said to be a jewel; a good woman, a treasure; and that a virtuous woman
represents the only true nobility. And they are the future wives and mothers of the land. Such are the
reasons why, in the defense of their honor, when brutally attacked, women are permitted to make
use of all reasonable means available within their reach, under the circumstances. Criminologists
and courts of justice have entertained and upheld this view.
On the other hand, it is the duty of every man to protect and show loyalty to womanhood, as in the
days of chivalry. There is a country where women freely go out unescorted and, like the beautiful
roses in their public gardens, they always receive the protection of all. That country is Switzerland.
In the language of Viada, aside from the right to life on which rests the legitimate defense of our own
person, we have the right to property acquired by us, and the right to honor which is not the least
prized of our patrimony (1 Viada, Codigo Penal, 5th ed., pp. 172, 173).
The attempt to rape a woman constitutes an unlawful aggression sufficient to put her in a state of
legitimate defense, inasmuch as a woman's honor cannot but be esteemed as a right as precious, if
not more, than her very existence; and it is evident that a woman who, thus imperiled, wounds, nay
kills the offender, should be afforded exemption from criminal liability, since such killing cannot be
considered a crime from the moment it became the only means left for her to protect her honor from
so great an outrage (1 Viada, Codigo Penal, 5th ed., p. 301; People vs. Luague and Alcansare, 62
Phil., 504). .
As long as there is actual danger of being raped, a woman is justified in killing her aggressor, in the
defense of her honor. Thus, where the deceased grabbed the defendant in a dark night at about 9
o'clock, in an isolated barrio trail, holding her firmly from behind, without warning and without
revealing his identity, and, in the struggle that followed, touched her private parts, and that she was
unable to free herself by means of her strength alone, she was considered justified in making use of
a pocket knife in repelling what she believed to be an attack upon her honor, and which ended in his
death, since she had no other means of defending herself, and consequently exempt from all
criminal liability (People vs. De la Cruz, 16 Phil., 344).
And a woman, in defense of her honor, was perfectly justified in inflicting wounds on her assailant
with a bolo which she happened to be carrying at the time, even though her cry for assistance might
have been heard by people nearby, when the deceased tried to assault her in a dark and isolated
place, while she was going from her house to a certain tienda, for the purpose of making purchases
(United States vs. Santa Ana and Ramos, 22 Phil., 249).
In the case, however, in which a sleeping woman was awakened at night by someone touching her
arm, and, believing that some person was attempting to abuse her, she asked who the intruder was
and receiving no reply, attacked and killed the said person with a pocket knife, it was held that,
notwithstanding the woman's belief in the supposed attempt, it was not sufficient provocation or
aggression to justify her completely in using deadly weapon. Although she actually believed it to be
the beginning of an attempt against her, she was not completely warranted in making such a deadly
assault, as the injured person, who turned out to be her own brother-in-law returning home with his
wife, did not do any other act which could be considered as an attempt against her honor (United
States vs. Apego, 23 Phil., 391)..
In the instant case, if defendant and appellant had killed Amado Capina, when the latter climbed up
her house late at night on September 15, 1942, and surreptitiously entered her bedroom,

undoubtedly for the purpose of raping her, as indicated by his previous acts and conduct, instead of
merely shouting for help, she could have been perfectly justified in killing him, as shown by the
authorities cited above..
According to the facts established by the evidence and found by the learned trial court in this case,
when the deceased sat by the side of defendant and appellant on the same bench, near the door of
the barrio chapel and placed his hand on the upper portion of her right thigh, without her consent,
the said chapel was lighted with electric lights, and there were already several people, about ten of
them, inside the chapel, including her own father and the barrio lieutenant and other dignitaries of
the organization; and under the circumstances, there was and there could be no possibility of her
being raped. And when she gave Amado Capina a thrust at the base of the left side of his neck,
inflicting upon him a mortal wound 4 1/2 inches deep, causing his death a few moments later, the
means employed by her in the defense of her honor was evidently excessive; and under the facts
and circumstances of the case, she cannot be legally declared completely exempt from criminal
liability..
But the fact that defendant and appellant immediately and voluntarily and unconditionally
surrendered to the barrio lieutenant in said chapel, admitting having stabbed the deceased,
immediately after the incident, and agreed to go to her house shortly thereafter and to remain there
subject to the order of the said barrio lieutenant, an agent of the authorities (United States vs.
Fortaleza, 12 Phil., 472); and the further fact that she had acted in the immediate vindication of a
grave offense committed against her a few moments before, and upon such provocation as to
produce passion and obfuscation, or temporary loss of reason and self-control, should be
considered as mitigating circumstances in her favor (People vs. Parana, 64 Phil., 331; People vs.
Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil., 86).
Defendant and appellant further claims that she had not intended to kill the deceased but merely
wanted to punish his offending hand with her knife, as shown by the fact that she inflicted upon him
only one single wound. And this is another mitigating circumstance which should be considered in
her favor (United States vs. Brobst, 14 Phil., 310; United States vs. Diaz, 15 Phil., 123).
The claim of the prosecution, sustained by the learned trial court, that the offense was committed by
the defendant and appellant, with the aggravating circumstance that the killing was done in a place
dedicated to religious worship, cannot be legally sustained; as there is no evidence to show that the
defendant and appellant had murder in her heart when she entered the chapel that fatal night.
Avelina is not a criminal by nature. She happened to kill under the greatest provocation. She is a
God-fearing young woman, typical of our country girls, who still possess the consolation of religious
hope in a world where so many others have hopelessly lost the faith of their elders and now drifting
away they know not where.
The questions raised in the second and third assignments of error appear, therefore, to be well
taken; and so is the first assignment of error to a certain degree.
In the mind of the court, there is not the least doubt that, in stabbing to death the deceased Amado
Capina, in the manner and form and under the circumstances above indicated, the defendant and
appellant committed the crime of homicide, with no aggravating circumstance whatsoever, but with
at least three mitigating circumstances of a qualified character to be considered in her favor; and, in
accordance with the provisions of article 69 of the Revised Penal Code, she is entitled to a reduction
by one or two degrees in the penalty to be imposed upon her. And considering the circumstances of
the instant case, the defendant and appellant should be accorded the most liberal consideration
possible under the law (United States vs. Apego, 23 Phil., 391; United States vs. Rivera, 41 Phil.,
472; People vs. Mercado, 43 Phil., 950)..

The law prescribes the penalty of reclusion temporal for the crime of homicide; and if it should be
reduced by two degrees, the penalty to be imposed in the instant case is that of prision correccional;
and pursuant to the provisions of section 1 of Act No. 4103 of the Philippine Legislature, known as
the Indeterminate Sentence Law, herein defendant and appellant should be sentenced to an
indeterminate penalty ranging from arresto mayor in its medium degree, to prision correccional in its
medium degree. Consequently, with the modification of judgment appealed from, defendant and
appellant Avelina Jaurigue is hereby sentenced to an indeterminate penalty ranging from two months
and one day of arresto mayor, as minimum, to two years, four months, and one day ofprision
correccional, as maximum, with the accessory penalties prescribed by law, to indemnify the heirs of
the deceased Amado Capina, in the sum of P2,000, and to suffer the corresponding subsidiary
imprisonment, not to exceed 1/3 of the principal penalty, in case of insolvency, and to pay the costs.
Defendant and appellant should also be given the benefit of 1/2 of her preventive imprisonment, and
the knife marked Exhibit B ordered confiscated. So ordered..

Justifying circumstances
are those wherein the acts of the actor are in accordance with law and, hence, he incurs no criminal and
civil liability. The justifyingcircumstances by subject are as follows:1) Self-defenseAnyone who acts in
defense of his person or rights. (Art. 11, Par. 1) The scope included self-defense not only of life, but also
of rights like those ofchastity, property and honor. It has also been applied to the crime of libel. Its
elements are: a) Unlawful aggression, b) Reasonable necessity of the meansemployed to prevent or repel
it, c) Lack of sufficient provocation on the part of the person defending himself.2) Defense of Relative 3)
Defense of Stranger 4) State of Necessity 5) Fulfillment of duty 6) Obedience to superior order
THE PEOPLE OF THE PHILIPPINES vs. NICOLAS JAURIGUE and AVELINA
JAURIGUEC.A. No. 384 February 21, 1946Ponencia, De Joya FACTS:

Avelina Jaurigue and Nicolas Jaurigue, her father, were prosecuted for the crime of murder for which
Nicolas wasacquitted while Avelina was found guilty of homicide. She appealed to the Court of Appeals
for Southern Luzon onJune 10, 1944 to completely absolve her of all criminal responsibility for having
acted in defense of her honor, to find inher favour additional mitigating circumstances and omit
aggravating circumstance.

At about 8:00 PM of September 20, 1942, Amado Capina, deceased victim, went to the chapel of Seventh
DayAdventists to attend religious services and sat at the front bench facing the altar. Avelina Jaurigue
entered the chapelshortly after the arrival of her father for the same purpose and sat on the bench next to
the last one nearest the door.Upon seeing Avelina, Amado went and sat by Avelinas right side from
his seat on the other side of the chapel, and without saying a word, placed his hand on the upper part of
her right thigh.

Avelina Jaurigue, therafter, pulled out with her right hand the fan knife which she had in a pocket of her
dress with theintention of punishing Amados offending hand. Amado seized her right hand but
she quickly grabbed the knife on herleft hand and stabbed Amado once at the base of the left side of the
neck inflicting upon him a wound about 4 inchesdeep, which is mortal.

Nicolas saw Capina bleeding and staggering towards the altar, and upon seeing his daughter approached
her andasked her the reason for her action to which Avelina replied, Father, I could not endure anymore.

Amado Capina died a few minutes after. Barrio lieutenant, Casimiro Lozada was there and Avelina
surrenderedherself. Lozada advised the Jaurigues to go home immediately for fear of retaliation of
Capinas relatives.EVENTS PRIOR:

One month before that fatal night, Amado Capina snatched Avelinas handkerchief bearing her nickname
while it was washed by her cousin, Josefa Tapay.

7 days prior to incident (September 13, 1942), Amado approached her and professed his love for her
which wasrefused, and thereupon suddenly embraced and kissed her and touched her breasts. She then
slapped him, gave himfist blows and kicked him. She informed her matter about it and since then, she
armed herself with a long fan knife whenever she went out.

2 days after (September 15, 1942), Amado climbed up the house of Avelina and entered the room where
she wassleeping. She felt her forehead and she immediately screamed for help which awakened her
parents and brought themto her side. Amado came out from where he had hidden and kissed the hand of
Avelinas father, Nicolas.

Avelina received information in the morning and again at 5:00 PM on the day of the incident (September
20, 1942) thatAmado had been falsely boasting in the neighbourhood of having taken liberties with her
person. In the evening,Amado had been courting the latter in vain.ISSUES:

Whether or not the defendant should be completely absolved of all criminal responsibility because she
is justified inhaving acted in the legitimate defense of her honor.

Whether or not the Court should find the additional mitigating circumstances of voluntary surrender,
presence ofprovocation and absence of intent in her favour

Whether or not committing said offense in a sacred place is an aggravating circumstance in this
caseHELD:

Conviction of defendant is sustained and cannot be declared completely exempt from criminal liability. To
be entitled toa complete self-defense of chastity, there must be an attempt to rape. To provide for a
justifying circumstance of self- defense, there must be a) Unlawful aggression, b) Reasonable necessity
of the means employed to prevent or repel it,c) Lack of sufficient provocation on the part of the person
defending himself. Attempt to rape is an unlawful aggression.However, under the circumstances of the
offense, there was no possibility of the defendant to be raped as they wereinside the chapel lighted with
electric lights and contained several people. Thrusting at the base of Capinos neck asher means to repel
aggression is not reasonable but is instead, excessive.

Mitigating circumstances are considered in her favour. Circumstances include her voluntary and
unconditionalsurrender to the barrio lieutenant, provocation from the deceased which produced temporary
loss of reason and self-control of the defendant and lack of intent to kill the deceased evidenced by
infliction of only one single wound.

Aggravating circumstance of having committed offense in a sacred place is not sustained as there is no
evidence thatthe defendant had intended to murder the deceased when she entered the chapel that night.
She killed under greatprovocation.

Penalty: For homicide, penalty is reclusion temporal. However, with 3 mitigating circumstances and no
aggravatingcircumstance, it is reduced by two degrees, in this case, prision correccional. Indeterminate
Sentence Law provides thepenalty ranging from arresto mayor in its medium degree to prision
correccional in its medium degree.

Avelina is sentenced to 2mos and 1 day of arresto mayor as minimum to 2 years, 4 months, and 1 day of
prisioncorreccional as maximum; to indemnify heirs of Capina in the sum of 2,000; with corresponding
subsidiaryimprisonment not to exceed 1/3 of principal penalty and to pay costs. She is given the benefit of
of her preventiveimprisonment

SEPARATE OPINION: Hilado questions the validity or nullity of judicial proceedings in the Japanesesponsored courts

G.R. No. L-12883

November 26, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
CLEMENTE AMPAR, defendant-appellant.
Filemon A. Cosio for appellant.
Acting Attorney-General Paredes for appellee.

MALCOLM, J.:
A fiesta was in progress in the barrio of Magbaboy, municipality of San Carlos, Province of
Occidental Negros. Roast pig was being served. The accused Clemente Ampar, a man of three
score and ten, proceeded to the kitchen and asked Modesto Patobo for some of the delicacy.
Patobo's answer was; "There is no more. Come here and I will make roast pig of you." The effect of
this on the accused as explained by him in his confession was, "Why was he doing like that, I am not
a child." With this as the provocation, a little later while the said Modesto Patobo was squatting
down, the accused came up behind him and struck him on the head with an ax, causing death the
following day.
As the case turns entirely on the credibility of witnesses, we should of course not interfere with the
findings of the trial court. In ascertaining the penalty, the court, naturally, took into consideration the
qualifying circumstance of alevosia. The court, however, gave the accused the benefit of a mitigating
circumstance which on cursory examination would not appear to be justified. This mitigating

circumstance was that the act was committed in the immediate vindication of a grave offense to the
one committing the felony.
The authorities give us little assistance in arriving at a conclusion as to whether this circumstance
was rightly applied. That there was immediate vindication of whatever one may term the remarks of
Patobo to the accused is admitted. Whether these remarks can properly be classed as "a grave
offense" is more uncertain. The Supreme court of Spain has held the words "gato que araaba a
todo el mundo," "landrones," and "era tonto, como toda su familia" as not sufficient to justify a finding
of this mitigating circumstance. (Decisions of January 4, 1876; May 17, 1877; May 13, 1886.) But the
same court has held the words "tan landron eres tu como tu padre" to be a grave offense. (Decision
of October 22, 1894.) We consider that these authorities hardly put the facts of the present case in
the proper light. The offense which the defendant was endeavoring to vindicate would to the average
person be considered as a mere trifle. But to this defendant, an old man, it evidently was a serious
matter to be made the butt of a joke in the presence of so many guests. Hence, it is believed that the
lower court very properly gave defendant the benefit of a mitigating circumstance, and correctly
sentenced him to the minimum degree of the penalty provided for the crime of murder.
lawph!1.net

Judgment of the trial court sentencing the defendant and appellant to seventeen years four months
and one day of cadena temporal, with the accessory penalties provided by law, to indemnify the
heirs of the deceased, Modesto Patobo, in the amount of one thousand pesos, and to pay the costs
is affirmed, with the costs of this instance against the appellant. So ordered.

CASE DIGEST ON U.S. v. AMPAR [37 Phil. 201 (1917)]

November 10, 2010

Facts: During a fiesta, an old man 70 years of age asked the deceased, Patobo, for some roast pig. In the presence
of many guests, the deceased insulted the old man, saying: There is no more. Come here and I will make roast pig
of you. A little later, while the deceased was squatting down, the old man came up behind him and struck him on the
head with an ax.
Held: While it may be mere trifle to an average person, it evidently was a serious matter to an old man, to be made
the butt of a joke in the presence of so many guests. The accused was given the benefit of the mitigating
circumstance of vindication of a grave offense. In this case, the age of the accused and the place were considered in
determining the gravity of the offense.

[G.R. Nos. 140514-15. September 30, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUNE IGNAS y

SANGGINO,accused-appellant.
DECISION
QUISUMBING, J.:

In the amended decision dated June 2, 1999, in Criminal Case No. 96CR-2522, the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 8,
found appellant June Ignas y Sanggino guilty of murder aggravated especially
by the use of an unlicensed firearm. Appellant was initially sentenced to suffer
the penalty of reclusion perpetua, but on motion for reconsideration by the
prosecution, the penalty was upgraded to death by lethal injection. Hence,
the case is now before us for automatic review.
[1]

[2]

[3]

Appellant is an elementary school graduate. He resided at Cruz, La

Trinidad, Benguet, where he operated a bakery. He is married to Wilma
Grace Ignas, by whom he has a son of minor age. Wilma Grace used to be
the cashier of Windfield Enterprise, which is owned by Pauline Gumpic.
Pauline had a brother, Nemesio Lopate. It was he whom appellant fatally
shot.
[4]

[5]

[6]

In the amended Information, pursuant to Section 14, Rule 110 of the

1985 Rules of Criminal Procedure, the Provincial Prosecutor of Benguet
charged appellant as follows:
[7]

[8]

That on or about the 10th day of March 1996 at Trading Post, Km. 5, Municipality of
La Trinidad, Province of Benguet, Philippines, and within the jurisdiction of this
Honorable Court, without any authority of law or without any lawful permit did then
and there willfully, unlawfully and knowingly have in his possession, control and
custody a Cal. .38 hand gun and two (2) ammunitions, (sic) which firearm and
ammunitions were used by the accused in unlawfully killing NEMESIO LOPATE at
the above-mentioned place and date in violation of the said law.
CONTRARY TO LAW.

[9]

Appellant was arraigned and pleaded not guilty to the foregoing amended
information. The case then proceeded to be heard on the merits.

Gleaned from the records, the facts of this case are as follows:
Sometime in September 1995, appellants wife, Wilma Grace Ignas,
confided to her close friend, Romenda Foyagao, that she was having an
affair with Nemesio Lopate.
[10]

[11]

On the evening of October 16, 1995, Wilma Grace, Romenda, and

Nemesio went to Manila. Romenda and Nemesio were sending off Wilma
Grace at the Ninoy Aquino International Airport as she was leaving for Taiwan
to work as a domestic helper. Upon arrival in Manila, the trio checked at
Dangwa Inn, with Nemesio and Wilma Grace sharing a room. All three of
them stayed at the inn until October 18, 1995, when Wilma Grace left for
Taiwan.
[12]

[13]

Thereafter, Romenda received from Taiwan four letters written by Wilma

Grace on various dates.Although all the letters were addressed to Romenda,
two of them were meant by Wilma Grace to be read by her paramour,
Nemesio. In the other two letters, Wilma Grace instructed Romenda to reveal
to appellant her affair with Nemesio.
[14]

It was only sometime late in February 1996 that Romenda, following her
bosom friends written instructions, informed appellant about the extramarital
affair between Wilma Grace and Nemesio. Romenda informed him that the
two had spent a day and a night together in a room at Dangwa Inn in Manila.
Appellant became furious. He declared Addan to aldaw na dayta nga
Nemesio, patayek dayta nga Nemesio (There will be a day for that Nemesio. I
will kill that Nemesio). Appellant then got all the letters of Wilma Grace from
Romenda.
[15]

[16]

[17]

That same week Alfred Mayamnes, appellants neighbor who was

presented at the trial as a prosecution witness, had a talk with appellant.
Mayamnes was an elder of the Kankanaey tribe to which appellant
belonged. He wanted to confirm whether Nemesio Lopate, who was likewise
from the same tribe, was having an affair with appellants spouse. Talk
apparently had reached the tribal elders and they wanted the problem
resolved as soon as possible. A visibly angry appellant confirmed the gossip.
[18]

[19]

Mayamnes also testified that he advised Nemesio to stay at the Mountain

Trail Kankanaey community until things had cooled down.
[20]

[21]

Shortly after their talk, appellant closed down his bakeshop and offered his
equipment for sale. Among the potential buyers he approached was
Mayamnes, but the latter declined the offer.
[22]

Sometime during the first week of March, Mayamnes saw appellant load
his bakery equipment on board a hired truck and depart for Nueva Vizcaya.
[23]

At around 10:00 p.m. of March 10, 1996, according to another prosecution

witness, Annie Bayanes, a trader in vegetables, she was at the Trading Post,
La Trinidad, Benguet. The Trading Post is a popular depot where vegetable
growers in the Cordilleras bring their produce late in the evenings for sale to
wholesalers and retailers. Witness Bayanes said she was at the unloading
area (bagsakan), conversing with another dealer at the latters booth, when
suddenly two gunshots shattered the quiet evening.
[24]

[25]

Bayanes turned towards the place where the sound of the gunshots came
from. She testified that she saw a person falling to the ground. Standing
behind the fallen individual, some 16 inches away, was another person who
tucked a handgun into his waistband and casually walked away.
[26]

[27]

[28]

Initially, she only saw the gunmans profile, but when he turned, she caught
a glimpse of his face. She immediately recognized him as the appellant June
Ignas. She said she was familiar with him as he was her townmate and had
known him for several years. Witness Bayanes was five or six meters away
from the scene, and the taillight of a parked jeepney, which was being loaded
with vegetables, plus the lights from the roof of the bagsakan, aided her
recognition of appellant.
[29]

[30]

Also at the bagsakan area that night was prosecution witness Marlon
Manis. He testified that on hearing gunshots from the Trading Post entrance,
he immediately looked at the place where the gunfire came from. He saw
people converging on a spot where a bloodied figure was lying on the ground.
Witness Manis saw that the fallen victim was Nemesio Lopate, whom he said
he had known since Grade 2 in elementary school. Manis then saw another
[31]

[32]

person, some 25 meters away, hastily walking away from the scene. He could
not see the persons face very well, but from his gait and build, he identified
the latter as his close friend and neighbor, June Ignas. Manis said that the
scene was very dimly lit and the only illumination was from the lights of
passing vehicles, but he was familiar with appellants build, hairstyle, and
manner of walking.
[33]

[34]

Prosecution witness Mona Barredo, a bakery worker, testified that she

knew appellant. She said they were co-workers formerly at the Annaliza
Bakery at Km. 10, Shilan, La Trinidad, Benguet. Barredo declared that at
around 10:30 p.m. of March 10, 1996, appellant came to her residence at
Pico, La Trinidad. After being served refreshments, appellant took out a
handgun from his jacket and removed the empty shells from the chamber.
Appellant then told her to throw the empty cartridges out of the
window. Because of nervousness she complied. Barredo also said that
appellant disclosed to her that he had just shot his wifes paramour. Appellant
then stayed at her house for 8 or 9 hours; he left only in the morning of March
11, 1996, according to her. Police investigators later recovered the spent gun
shells from witness Barredos sweet potato garden.
[35]

[36]

[37]

[38]

[39]

[40]

According to witness on the scene, responding policemen immediately

brought the victim, Nemesio Lopate, to the Benguet General Hospital where
he was pronounced dead on arrival.
[41]

Dr. Doris C. Jovellanos, Municipal Health Officer of La Trinidad, Benguet,

testified during that trial that she conducted the post-mortem examination of
the victims cadaver. Among her findings were:
1. Ovaloid hole, 2.0 x 5.0 cm. dms., with blackened edges (1.8 x 1.3 cms. span), on
the right side of the mouth, above the edge of the upper lip
xxx
3. Exit hole on the left side of the mouth, 5.0 x 1.3 cm. dms., with avulsion of the
upper lip on the left side
xxx

9. Circular hole, penetrating, on the back, right side, 0.7 cm. x 0.7 cm. diam., with
blackened edges (0.9 x 0.9 cm. span), at the level of the fifth intercostal space,
subscapular area, 13 cm. from the midline, directed to the left side of the chest, 38.0
cm. from the embedded bullet slug of the left shoulder.
[42]

Dr. Jovellanos determined the cause of death to be Hypovolemia due to

gunshot wound, back, right, (Point of Entry fifth intercostal space subscapular
area). She further stated on the witness stand that she recovered a bullet
from the victims left shoulder, which she turned over to the police
investigators. According to her, given the blackened edges of the gunshot
wound at the victims back, Nemesio was shot from a distance of less than
three (3) feet.
[43]

[44]

[45]

On March 14, 1996, police investigators accompanied by one of

appellants brother as well as prosecution witness Julio Bayacsan, a friend of
appellant, went to Kayapa, Nueva Vizcaya, to invite appellant to shed light on
the slaying of Nemesio. The law enforcers found appellant selling bread at
Kayapa and brought him back to La Trinidad, Benguet.
[46]

Witness Bayacsan testified that shortly after they arrived from Kayapa, he
had an opportunity to talk with appellant at the La Trinidad Police
Station. There, appellant disclosed to this witness that he shot and killed
Nemesio. Bayacsan, however, did not inform the police about appellants
revelation as he considered appellant his good friend.
[47]

[48]

Prosecution witness Pauline Gumpic, the victims sister, testified that she
and appellant had a private talk, while the latter was in police custody, and
appellant admitted to her that he killed her brother. Gumpic declared that
appellant revealed to her that he shot Nemesio for having illicit relations with
appellants wife and failing to ask for his forgiveness.
[49]

[50]

SPO4 Arthur Bomagao of the La Trinidad police, who headed the team
that investigated the fatal shooting of Nemesio, declared on the stand that
appellant voluntarily admitted to him that he shot the victim with a .38 caliber
handgun. Bomagao further testified that appellant surrendered to him the
letters of Wilma Grace, wherein the latter admitted her affair with Nemesio.
[51]

[52]

[53]

Appellant interposed the defense of alibi. Sometime during the last week
of February 1996, he said, he entered into a partnership with a friend and
fellow baker, Ben Anoma, to operate a bakery in Kayapa, Nueva Vizcaya.
Appellant claimed that he was having a hard time operating his bakeshop in
La Trinidad as he had no helpers. When Anoma proposed a business
arrangement, he added, he immediately seized the opportunity. On March 8,
1996, he and Anoma then transferred his equipment to Anomas bakery in
Kayapa, which is some four (4) to five (5) hours away from La Trinidad,
according to appellant. He averred that he was baking bread with Anoma in
Kayapa on the night Nemesio was killed. Under oath, appellant said that he
never left Kayapa since his arrival on March 8, 1996. He and Anoma were
engrossed in baking and marketing their produce, he testified, until the
policemen from La Trinidad brought him back to Benguet for questioning on
March 14, 1996.
[54]

[55]

[56]

[57]

[58]

Defense witness Ben Anoma corroborated appellants alibi. Anoma

declared that during the last week of February 1996, he met with appellant in
La Trinidad. There, the witness said, he proposed a partnership with appellant
in the baking business to be based in Kayapa. Appellant agreed and on
March 8, 1996, they transferred appellants equipment to Kayapa. They
immediately commenced their operations and on the evening of March 10,
1996, he and appellant baked bread at his bakery in Kayapa until 11:00 p.m.,
when they rested for the night.
[59]

[60]

[61]

The trial court disbelieved appellants defense and sustained the

prosecutions version. Its initial judgment reads:
WHEREFORE, premises considered, the accused June Ignas is hereby found
GUILTY beyond reasonable doubt of the crime of MURDER as defined and penalized
under Article 248 of the Revised Penal Code, and considering the aggravating
circumstances of treachery, nighttime and the special aggravating circumstance of the
use of an unlicensed firearm, without any mitigating circumstance, he is hereby
sentenced to suffer the penalty of Reclusion Perpetua. He is further sentenced to pay
the heirs of the VICTIM the following sums:
1. P150,000.00 for funeral expenses and those incurred for and during the wake;

2. P1,800,000.00 for unearned income;

3. P50,000.00 as death compensation established by jurisprudence; and
4. P50,000.00 as and for moral damages; and
5. P20,000.00 as attorneys fees.
Costs against the accused.
SO ORDERED in Chambers this 18th day of February 1999 at La Trinidad, Benguet,
Philippines.
[62]

Both the prosecution and the defense filed their respective motions for
reconsideration. The prosecution sought the imposition of the death penalty.
The defense prayed for acquittal on the ground of reasonable doubt.
[63]

On June 2, 1999, the trial court granted the prosecutions motion. It

amended its judgment to read as follows:
WHEREFORE, premises considered, the accused June Ignas is hereby found
GUILTY beyond reasonable doubt of the crime of MURDER as defined and penalized
under Article 248 of the Revised Penal Code, and considering the aggravating
circumstances of treachery, nighttime and the special aggravating circumstance of the
use of an unlicensed firearm, without any mitigating circumstance, he is hereby
sentenced to suffer the penalty of death by lethal injection. He is further sentenced to
pay the heirs of the victim the following sums:
1. P150,000.00 for funeral expenses and those incurred for and during the wake;
2. P2,040,000.00 for unearned income;
3. P50,000.00 as death compensation established by jurisprudence; and
4. P50,000.00 as and for moral damages; and
5. P20,000.00 as attorneys fees.
Costs against the accused.

SO ORDERED in Chambers.

[64]

Hence, this automatic review, with appellant imputing the following errors
to the court a quo:
I

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF
MURDER DESPITE THE WEAKNESS OF THE CIRCUMSTANTIAL EVIDENCE
OF THE PROSECUTION.
II

THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY WEIGHT

TO THE ALLEGED EXTRA-JUDICIAL ADMISSIONS MADE BY ACCUSEDAPPELLANT DESPITE ITS BEING HEARSAY IN NATURE AND IN VIOLATION
OF HIS RIGHTS UNDER CUSTODIAL INVESTIGATION.
III

THE TRIAL COURT GRAVELY ERRED IN NOT GIVING PROBATIVE VALUE

TO THE DEFENSE OF ALIBI INTERPOSED BY ACCUSED-APPELLANT.
IV

ASSUMING ARGUENDO THAT THE ACCUSED-APPELLANT IS GUILTY, THE

TRIAL COURT GRAVELY ERRED WHEN IT RULED THAT THE KILLING OF
THE DECEASED WAS ATTENDED BY EVIDENT PREMEDITATION,
TREACHERY AND NIGHTTIME.
V

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

APPRECIATED THE ALLEGED USE OF AN UNLICENSED .38 CALIBER
FIREARM AS AN AGGRAVATING CIRCUMSTANCE IN THE COMMISSION OF
THE CRIME OF MURDER WITHOUT ANY FACTUAL AND LEGAL BASIS.
VI

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID NOT

APPRECIATE IN FAVOR OF THE ACCUSED-APPELLANT THE MITIGATING
CIRCUMSTANCES OF IMMEDIATE VINDICATION OF A GRAVE OFFENSE,
PASSION AND OBFUSCATION AND VOLUNTARY SURRENDER.
VII

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT AWARDED

EXCESSIVE DAMAGES IN THE FORM OF FUNERAL EXPENSES AND
UNEARNED INCOME OF THE DECEASED WHICH WERE NOT
SUFFICIENTLY PROVEN.
[65]

Appellants assigned errors may be reduced to the following pertinent

issues: (1) the nature of the crime committed, if any; (2) the sufficiency of the
prosecutions evidence to prove appellants guilt; (3) the correctness of the
penalty; and (4) the propriety of the damages awarded.
1. Murder or Homicide
Assuming arguendo that the evidence on record suffices to sustain the
appellants conviction for the unlawful killing of Nemesio Lopate, the question
arises: Was the killing murder as found by the trial court or mere homicide?
Note that the amended information under which the appellant stands charged
does not, unlike the original information, charge appellant with murder but with
mere unlawful killing albeit through the use of an unlicensed firearm. Note
further that the amended information does not definitely and categorically
state that the unlawful killing was attended by the aggravating or qualifying
circumstances of treachery, evident premeditation, and nocturnity.
The 2000 Revised Rules of Criminal Procedure requires that the qualifying
and aggravating circumstances must be specifically alleged in the information.
Although the Revised Rules of Criminal Procedure took effect only on
December 1, 2000 or long after the fatal shooting of Nemesio Lopate, as a
procedural rule favorable to the accused, it should be given retrospective
application. Hence, absent specific allegations of the attendant circumstances
of treachery, evident premeditation, and nocturnity in the amended
information, it was error for the trial court to consider the same in adjudging
[66]

appellant guilty of murder. As worded, we find that the amended information

under which appellant was charged and arraigned, at best indicts him only for
the crime of homicide. Any conviction should, thus, fall under the scope and
coverage of Article 249 of the Revised Penal Code.
[67]

As for the separate case for illegal possession of firearm, we agree with
the trial courts order to dismiss the information for illegal possession of firearm
and ammunition in Criminal Case No. 97-CR-2753. Under R.A. No. 8294,
which took effect on July 8, 1997, where murder or homicide is committed
with the use of an unlicensed firearm, the separate penalty for illegal
possession of firearm shall no longer be imposed since it becomes merely a
special aggravating circumstance. This Court has held in a number of
cases that there can be no separate conviction of the crime of illegal
possession of firearm where another crime, as indicated by R.A. No. 8294, is
committed. Although R.A. No. 8294 took effect over a year after the alleged
offense was committed, it is advantageous to the appellant insofar as it spares
him from a separate conviction for illegal possession of firearms and thus
should be given retroactive application.
[68]

[69]

[70]

[71]

[72]

2. Sufficiency of the Prosecutions Evidence

But is the prosecutions evidence sufficient to sustain a conviction for
homicide?
Appellant primarily contests the accuracy of the identification made by the
prosecution witnesses who testified that they saw him at the locus criminis,
tucking a gun in his pants and casually walking away. For one, he contends
that the prosecution witnesses who were present at the scene did not in fact
see appellant as the person who allegedly shot the victim. Witness Marlon
Manis was not certain that the person he saw walking away from the fallen
victim was appellant. As per Manis own admission, he merely presumed that it
was appellant. As to witness Annie Bayanes, her identification of appellant as
the assailant was equally doubtful. The fact is she did not see the alleged
gunmans face, considering that the only illumination on the scene was a
vehicles taillight. Appellant stresses that both Bayanes and Manis were in a
state of excitement and nervousness as a result of the incident, hence the
resultant commotion and fear distracted their powers of observation. Appellant

insists that given these considerations, the testimonies of Bayanes and Manis
failed to show that he was at the scene of the crime, much less prove that he
was the gunman.
For the appellee, the Office of the Solicitor General (OSG) contends that
the failure of Manis to see the actual shooting is irrelevant, as such was not
the purpose for which his testimony was offered in evidence. Rather, Manis
testimony was meant to provide circumstantial evidence tending to show the
physical description of Nemesios attacker, and not as an eyewitness
testimony to positively identify said assailant. Neither was Bayanes presented
to testify as an eyewitness to the shooting, but to declare that she got a clear
look at the face of the suspected gunman.
We note that at the heart of the prosecutions case is the familiarity of
Annie Bayanes and Marlon Manis with appellant. Absent this familiarity, the
prosecutions theory that circumstantial evidence shows that appellant killed
Nemesio would collapse like a house of cards. It was precisely this familiarity
with appellant, which enabled said witnesses to recognize him as the person
tucking a gun in his waistband and walking away from the fallen victim.
Bayanes had known appellant for some ten (10) years before the incident and
even described him as a good man. She was only five or six meters away
from the scene of the crime and was able to fully look at the face of the person
tucking a gun in his pants and walking away. Familiarity with the physical
features, particularly those of the face, is actually the best way to identify the
person. That the only illumination in the area came from the taillight of a
parked vehicle and the lights on the roof of the bagsakan does not discredit
her account. We have held that moonlight, starlight, kerosene lamps, a
flashlight, and lights of passing vehicles may be adequate to provide
illumination sufficient for purposes of recognition and identification. Under the
circumstances of these cases, this Court believes that Bayanes was in the
position and had a fair opportunity to identify appellant as the person leaving
the crime scene with a gun tucked in his waist.
[73]

[74]

[75]

[78]

[76]

[77]

[79]

Her testimony was buttressed by that of witness Marlon Manis. A former

neighbor of appellant, he had known appellant since 1993. He was a frequent
customer at appellants bakery. In the rural areas, people tend to be more
familiar with their neighbors. This familiarity may extend to body movements,

which cannot easily be effaced from memory. Hence, Manis testimony that he
could recognize appellant even just from his build and manner of walking is
not improbable. His declaration that he was some twenty-five (25) meters
away from the person walking away from the victim does not make recognition
far-fetched. Once a person has gained familiarity with another, identification is
an easy task, even from that distance.
[80]

Evidence should only be considered for the purpose it was formally

offered. As the Solicitor General points out, the statements of Bayanes and
Manis were not offered to positively identify appellant as the assailant, but to
provide circumstantial evidence concerning Nemesios assailant, tending to
prove that appellant did shoot the victim. Thus, the court a quo committed no
reversible error in giving weight and credence to the testimonies of Bayanes
and Manis for the stated purposes therefor.
[81]

Appellant next assails the testimonies of the following prosecution

witnesses: (1) Pauline Gumpic for being inconsistent and flawed with
contradictions; (2) Annie Bayanes and Julio Bayacsan for their unexplained
delay in giving their respective sworn statements to the police; and (3) Mona
Barredo for flip-flopping with respect to the alleged admission to her by
appellant and how the police investigators knew about said admission, after
she claimed that she did not tell anyone about his revelation. Appellant
submits that the trial court erred in giving weight to the aforementioned
testimonies.
For appellee, the OSG argues that with respect to Gumpics alleged
contradictions, they refer only to unimportant and collateral matters; they do
not affect her credibility. With respect to the delay or vacillation by Bayacsan
and Bayanes in giving their statements to the authorities, the OSG points out
that a reading of their declarations in court will show that the alleged delay
was adequately explained. As to Barredos testimony, a closer reading of her
supposed flip-flopping shows that the alleged contradictions were due to an
honest misapprehension of fact on her part.
When the issue boils down to the credibility of witnesses, the appellate
court will not generally disturb the findings of the trial court because the latter
is in the vantage position of observing witnesses through the various indicia of

truthfulness or falsehood. However, this rule is not absolute. One exception

is where the judge who wrote the decision did not personally hear the
prosecutions evidence. In this case, the records show that Judge Angel V.
Colet, who authored the assailed decision, took over from Judge Benigno M.
Galacgac only on April 29, 1997 or after the witnesses for the prosecution had
testified. It does not follow, however, that a judge who was not present at the
trial cannot render a just and valid judgment. The records and the transcripts
of stenographic notes are available to him as basis for his decision.
[82]

[83]

After going over the transcripts of the witnesses testimonies, we find no

reason to disturb the findings of the trial court. With respect to the statements
of Gumpic, we agree with the Solicitor General that alleged inconsistencies
refer only to irrelevant and collateral matters, which have nothing to do with
the elements of the crime. It is axiomatic that slight variations in the testimony
of a witness as to minor details or collateral matters do not affect his or her
credibility as these variations are in fact indicative of truth and show that the
witness was not coached to fabricate or dissemble. An inconsistency, which
has nothing to do with the elements of a crime, is not a ground to reverse a
conviction.
[84]

[85]

We likewise find no basis for appellants contention that Bayanes and

Bayacsan failed to give a satisfactory explanation for the delay or vacillation in
disclosing to the authorities what they knew.Bayanes gave a satisfactory
reason for her delay in reporting to the authorities what she knew. She had
simply gone about her normal business activities for some months, unaware
that a case had been filed concerning the killing of Nemesio. It was only nine
(9) months after the incident that she read a notice for help posted by the
victims relatives at the Trading Post, appealing to possible witnesses to the
killing to come forth and assist them in their quest for justice. It was only then
that she decided to reveal to the authorities what she knew.
As to Bayacsan, he candidly admitted in court that he considered
appellant his friend and he wanted to protect him and hence, he only
disclosed appellants admission to him when the police started questioning
him. There is no rule that the suspect in a crime should immediately be named
by a witness. Different people react differently to a given situation and there
is no standard form of human behavior when one is confronted with a strange,
[86]

startling, or frightful experience. The Court understands the natural

reluctance or aversion of some people to get involved in a criminal case.
More so where, as in these cases, a townmate of Bayanes and Bayacsan is
involved. We have taken notice that when their townmates are involved in a
criminal case, most people turn reticent. Hence, the failure of Bayanes and
Bayacsan to immediately volunteer information to the police investigators will
not lessen the probative value of their respective testimonies. The delay,
having been satisfactorily explained, has no effect on their credibility.
[87]

[88]

[89]

[90]

We have likewise closely scrutinized the testimony of Mona Barredo

regarding the alleged admission by appellant to her that he killed the victim.
We find nothing flip-flopping about her testimony. Instead, we find a witness
who admitted she was nervous that she might not be able to answer all the
questions. Said nervousness was engendered by her erroneous belief that to
be a credible witness, she must have personal knowledge of the crime. Even
the most candid witnesses make mistakes and may give some contradictory
or inconsistent statements, but such honest lapses need not necessarily affect
their credibility. Ample margin should be accorded a witness who is tensionfilled with the novelty of testifying before a court.
[91]

[92]

[93]

Appellant further contends that the trial court erred in giving credence to
the verbal admissions of guilt he made to Gumpic and SPO4 Bomagao inside
the police station since said admissions are inadmissible in evidence as
uncounseled confessions.
The OSG submits that said verbal admissions of complicity, as well as
those made to appellant to Bayacsan and Barredo, are admissible as
statements forming part of the res gestae. We agree on this point with the
OSG.
The requisites of res gestae are: (1) the principal act or res gestae must
be a startling occurrence; (2) the statement is spontaneous or was made
before the declarant had time to contrive or devise a false statement, and the
statement was made during the occurrence or immediately prior or
subsequent to thereto; and (3) the statement made must concern the
occurrence in question and its immediately attending circumstances. All
these elements are present in appellants verbal admission to Barredo that he
[94]

killed the victim when he went to the latters house half an hour after the fatal
shooting of Nemesio.
The verbal admission by appellant to Barredo was made before appellant
had the time and opportunity to contrive a falsehood. Similar statements have
been held to be part of the res gestae: (1) a childs declaration made an hour
after an alleged assault; (2) the testimony of a police officer as to what the
victim revealed to him some 30 minutes after the commission of an alleged
crime; and (3) a victims declaration made some 5 to 10 minutes after an
alleged felony took place. Note that since appellants admission was not
solicited by police officers in the course of a custodial investigation, but was
made to a private person, the provisions of the Bill of Rights on custodial
investigation do not apply. The Rules of Court provides that an admission
made to a private person is admissible in evidence against the declarant.
[95]

[96]

[97]

[98]

[99]

Prosecutions evidence here is admittedly circumstantial. But in the

absence of an eyewitness, reliance on circumstantial evidence is inevitable.
Resort thereto is essential when the lack of direct evidence would result in
setting a felon free.
[100]

[101]

Circumstantial evidence suffices to convict if the following requisites are

met: (1) there is more than one circumstance; (2) the facts from which the
inferences are derived are proven; and (3) the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt.
In our mind, the following pieces of circumstantial evidence show with moral
certainty that appellant was responsible for the death of Nemesio:
[102]

1. Appellant had the motive to kill Nemesio Lopate for having an affair with his wife,
and appellant had openly expressed his desire and intention to do so;
2. At around 10:00 p.m. of March 10, 1996, Annie Bayanes and Marlon Manis heard
two gun shots at the Trading Post, La Trinidad, Benguet and saw Nemesio Lopate fall
to the ground;
3. Bayanes saw appellant behind the victim, tucking a gun into his waistband, and
walking away;

4. From another angle, Manis also saw a person whose gait and built resembled that of
appellant walking away from the crime scene;
5. At around 10:30 p.m. of March 10, 1996, appellant went to the house of Mona
Barredo, brought out a handgun, emptied it of two spent .38 caliber shells and
instructed Barredo to throw the shells out of the window, which she did;
6. Appellant then told Barredo that he had shot and killed his wifes paramour, after
which he stayed at Barredos house for the night;
7. On March 11, 1996, Dr. Doris C. Jovellanos, Municipal Health Officer of La
Trinidad, Benguet recovered a .38 caliber slug from Nemesios corpse and found two
(2) bullet entry wounds on the said cadaver;
8. On March 18, 1996, police investigators, assisted by Barredo, recovered two (2)
spent .38 caliber shells from Barredos sweet potato patch, immediately outside her
residence wherein appellant had slept a week before.
The foregoing circumstances clearly show that appellant had the motive,
the opportunity, and the means to commit the crime at the place and time in
question. Simply put, the circumstantial evidence adduced by the prosecution
has successfully overcome the claim of innocence by appellant. Under the
proved circumstances, appellants defense of alibi is untenable. More so, in
this situation where prosecution witness Bayanes unflinchingly declared that
she saw appellant standing behind the victim, tucking a gun in his pants,
moments after the latter was shot. As we held in People v. Salveron, and
reiterated in People v. Sesbreo, where an eyewitness saw the accused with
a gun, seconds after the gunshot and after the victim fell to the ground, the
reasonable conclusion is that said accused killed the victim.
[103]

[104]

Appellants alibi cannot prevail over the positive testimony of Bayanes

concerning appellants identification and presence at the crime scene. Basic is
the rule that for alibi to prosper, the accused must prove that he was
somewhere else when the crime was committed and that it was physically
impossible for him to have been at the scene of the crime. Physical
impossibility refers to the distance between the place where the appellant was
when the crime transpired and the place where it was committed, as well as
[105]

the facility of access between the two places. In these cases, the defense
admitted that the distance between La Trinidad, Benguet and Kayapa, Nueva
Vizcaya is 79 kilometers, which can be negotiated in 4 or 5 hours. Clearly, it
was not physically impossible for appellant to be at the locus criminis at the
time of the killing. Hence, the defense of alibi must fail.
[106]

[107]

In sum, we find that the prosecutions evidence suffices to sustain the

appellants conviction for homicide.
3. Crime and its Punishment
As appellant can only be convicted of homicide, it follows that he cannot,
under the provisions of RA No. 7659, be sentenced to suffer the death
penalty. The penalty for homicide under Article 249 of the Revised Penal Code
is reclusion temporal. Our task now is to determine whether there are
aggravating or mitigating circumstances which could modify the penalty.
More specifically, may the special aggravating circumstance of use of an
unlicensed firearm be taken against the appellant?
Appellant argues that the trial court erred in appreciating the special
aggravating circumstance of use of unlicensed firearm in the present case.
Like the killing, said aggravating circumstance must likewise be proved
beyond reasonable doubt, says the appellant. On this point, he adds, the
prosecution failed to adduce the necessary quantum of proof.
We find merit in the appellants contentions. It is not enough that the
special aggravating circumstance of use of unlicensed firearm be alleged in
the information, the matter must be proven with the same quantum of proof as
the killing itself. Thus, the prosecution must prove: (1) the existence of the
subject firearm; and (2) the fact that the accused who owned or possessed it
does not have the corresponding license or permit to own or possess the
same. The records do not show that the prosecution presented any
evidence to prove that appellant is not a duly licensed holder of a caliber .38
firearm. The prosecution failed to offer in evidence a certification from the
Philippine National Police Firearms and Explosives Division to show that
appellant had no permit or license to own or possess a .38 caliber
[108]

handgun. Nor did it present the responsible police officer on the matter of
licensing as a prosecution witness. Absent the proper evidentiary proof, this
Court cannot validly declare that the special aggravating circumstance of use
of unlicensed firearm was satisfactorily established by the prosecution. Hence
such special circumstance cannot be considered for purposes of imposing the
penalty in its maximum period.
Coming now to the obverse side of the case, is the appellant entitled to
benefit from any mitigating circumstance?
Appellant, firstly contends that assuming without admitting that he is guilty,
the lower court should have considered at least the mitigating circumstance of
immediate vindication of a grave offense as well as that of passion and
obfuscation. Appellant points out that the victims act of maintaining an
adulterous relationship with appellants wife constituted a grave offense to his
honor, not to mention the shame, anguish, and anxiety he was subjected to.
Even the mere sight of the victim must have triggered an uncontrollable
emotional outburst on appellants part, so that even a chance meeting caused
in him an irresistible impulse powerful enough to overcome all reason and
restraint. Secondly, appellant points out that the trial court failed to consider
his voluntary surrender as a mitigating circumstance.
The Solicitor General counters that there was literally no immediate
vindication to speak of in this case. Appellant had sufficient time to recover his
serenity following the discovery of his wifes infidelity. Nor could passion and
obfuscation be appreciated in appellants favor because the killing was not
proximate to the time of the offense. Appellant became aware of the treatment
offensive to his dignity as a husband and to the peace and tranquility of his
home two weeks earlier. This interval between the revelation of his wifes
adultery and the fatal shooting was ample and sufficient for reason and selfcontrol to reassert themselves in appellants mind. As to the mitigating
circumstance of voluntary surrender, the OSG stresses that his supposed
surrender at Kayapa, Nueva Vizcaya was actually due to the efforts of law
enforcers who came looking for him. There he did not resist, but lack of
resistance alone is not tantamount to voluntary surrender, which denotes a
positive act and not merely passive conduct.

According to the OSG, for the mitigating circumstance of vindication of a

grave offense to apply, the vindication must be immediate. This view is not
entirely accurate. The word immediate in the English text is not the correct
translation of the controlling Spanish text of the Revised Penal Code, which
uses the word proxima. The Spanish text, on this point, allows a lapse of
time between the grave offense and the actual vindication. Thus, in an
earlier case involving the infidelity of a wife, the killing of her paramour
prompted proximately though not immediately by the desire to avenge the
wrong done, was considered an extenuating circumstance in favor of the
accused. The time elapsed between the offense and the suspected cause
for vindication, however, involved only hours and minutes, not days.Hence, we
agree with the Solicitor General that the lapse of two (2) weeks between his
discovery of his wifes infidelity and the killing of her supposed paramour could
no longer be considered proximate. The passage of a fortnight is more than
sufficient time for appellant to have recovered his composure and assuaged
the unease in his mind. The established rule is that there can be no immediate
vindication of a grave offense when the accused had sufficient time to recover
his serenity. Thus, in this case, we hold that the mitigating circumstance of
immediate vindication of a grave offense cannot be considered in appellants
favor.
[109]

[110]

[111]

[112]

We likewise find the alleged mitigating circumstance of passion and

obfuscation inexistent. The rule is that the mitigating circumstances of
vindication of a grave offense and passion and obfuscation cannot be claimed
at the same time, if they arise from the same facts or motive. In other words,
if appellant attacked his victim in proximate vindication of a grave offense, he
could no longer claim in the same breath that passion and obfuscation also
blinded him. Moreover, for passion and obfuscation to be well founded, the
following requisites must concur: (1) there should be an act both unlawful and
sufficient to produce such condition of mind; and (2) the act which produced
the obfuscation was not far removed from the commission of the crime by a
considerable length of time, during which the perpetrator might recover his
moral equanimity. To repeat, the period of two (2) weeks which spanned the
discovery of his wifes extramarital dalliance and the killing of her lover was
sufficient time for appellant to reflect and cool off.
[113]

[114]

Appellant further argues that the lower court erred in failing to consider
voluntary surrender as a mitigating circumstance. On this point, the following
requirements must be satisfied: (1) the offender has not actually been
arrested; (2) the offender surrendered himself to a person in authority; and (3)
the surrender was voluntary. Records show, however, that leaflets and
posters were circulated for information to bring the killer of Nemesio to
justice. A team of police investigators from La Trinidad, Benguet then went to
Kayapa, Nueva Vizcaya to invite appellant for questioning. Only then did he
return to Benguet. But he denied the charge of killing the victim. Clearly,
appellants claimed surrender was neither spontaneous nor voluntary.
[115]

Absent any aggravating or mitigating circumstance for the offense of

homicide the penalty imposable under Art. 64 of the Revised Penal Code
is reclusion temporal in its medium period. Applying the Indeterminate
Sentence Law, the penalty which could actually be imposed on appellant is an
indeterminate prison term consisting of eight (8) years and one (1) day
of prision mayor as minimum to fourteen (14) years, eight (8) months and one
(1) day of reclusion temporal as maximum.
4. Proper Award of Damages
Appellant and the Solicitor General are one in contending that the trial
court awarded excessive actual damages without adequate legal basis. Thus,
the amount of P150,000.00 was awarded for funeral and burial expenses
without any supporting evidence on record. This cannot be sustained in this
review. In order for actual damages to be recovered, the amount of loss must
not only be capable of proof but must actually be proven with reasonable
degree of certainty, premised upon competent proof or best evidence
obtainable of the actual amount thereof, such as receipts or other documents
to support the claim. The records clearly show in this case that only the
amount of P7,000 as funeral expenses was duly supported by a receipt.
Hence, the award of actual damages should be limited toP7,000 only.
[116]

[117]

[118]

Appellant further contests the award of P2,040,000 for loss of earning

capacity as unconscionable. Since the victims widow could not present any
income tax return of her husband to substantiate her claim that his net income
was P60,000 annually, then according to appellant, there is no basis for this

award at all. At best, appellant says, only temperate or nominal damages may
be awarded.
The OSG responds that the award for loss of earning capacity has
adequate basis as the prosecution presented sufficient evidence on the
productivity of the landholdings being tilled by the deceased and the
investments made by the Lopate family from their income. Hence, said the
OSG, it was not a product of sheer conjecture or speculation. Nonetheless,
the OSG submits that the original amount of P1,800,000 for loss of earning
capacity should be restored as it is this amount which takes into account only
a reasonable portion of annual net income which would have been received
as support by the heirs.
In setting said award at P2,040,000, amended from P1,800,000, for lost
earnings, the trial court took note of the following factors in its computations:
The Death Certificate of Nemesio Lopate shows that he died at the age of
29. His widows detailed testimony shows that their average annual net
income from vegetable farming was P60,000. The victims share of the
annual net income from the couples farm is half thereof, or P30,000. Using
theAmerican Expectancy Table of Mortality, the life expectancy of the victim at
age 29 is set at 34 years.
[119]

[120]

Therefore, total loss of Earning Capacity (X) should be computed as

follows:
X = 2/3 (80-29) x P30,000
X = 2/3 (51) x P30,000
X = 34 x P30,000
X = P1,020,000
This amount should form part of the damages awarded to the heirs.
We sustain the award of P50,000 as indemnity ex delicto. But there being
no testimony or other proof thereon, the award of P50,000 as moral damages

cannot now be sustained. Instead, temperate damages in the amount

of P25,000 should be awarded.
The award of P20,000 in attorneys fees should be maintained. Records
show that the victims widow had to hire the services of a private prosecutor to
actively prosecute the civil aspect of this case, and in line with Article 2208
of the Civil Code, reasonable attorney fees may be duly recovered.
[121]

[122]

WHEREFORE, the judgment of the Regional Trial Court of La Trinidad,

Benguet, Branch 8, in Criminal Case No. 96-CR-2522 is MODIFIED as
follows:
Appellant June Ignas y Sanggino is found GUILTY beyond reasonable
doubt of the crime of HOMICIDE as defined and penalized under Article 249
of the Revised Penal Code, as amended. There being neither aggravating nor
mitigating circumstance, he is hereby sentenced to suffer an indeterminate
penalty of ten (10) years and one (1) day of prision mayor as minimum, to
fourteen (14) years, eight (8) months, and one (1) day of reclusion
temporal as maximum.
Appellant June Ignas y Sanggino is ORDERED TO PAY the heirs of the
victim, Nemesio Lopate, the following sums: a) P7,000 as actual damages;
b) P1,020,000 for loss of earning capacity; c) P50,000 as civil indemnity;
d) P25,000 as temperate damages; and e) P20,000 as attorneys
fees. Costs de oficio.
SO ORDERED.

PEOPLE vs. IGNASG.R. 140514-15SEPTEMBER

Aggravating Circumstance

20,

2003(Mitigating

&

FACTS OF THE CASE:Sometime in September 1995, Wilma Grace Ignas

confided to her close friend namedRomenda Foyagao that the former is
having an affair with Nemesio Lopate. And when Romendawent back to
Taiwan, she received four letters from Wilma Ignas, two of which are

writteninstructions of Wilma for Romenda to reveal to her husband, herein

Appellant, her affair withNemesio. But it was only sometime late in February
1996 that Romenda followed the instructionof her friend Wilma,
and
informed Appellant about the aforementioned extramarital affairbetween
Wilma and Nemesio. Upon hearing the information confided by Romenda,
Appellantbecame furious, he then declared that he is going to kill Nemesio.
Consequently, on March 10, 1996 at around 10 P.M., according to Annie
Bayanes, whenshe was at the unloading area at the Trading Post of La
Trinidad, Benguet, she heard twogunshots. After which, Bayanes turned
towards the place where the sound of the gunshots camefrom, she then saw
a person falling to the ground and another person who was standing
behindthe fallen individual. Bayanes said that she recognized the man
standing as the appellant JuneIgnas. And another person present at the
unloading area that night, named Marlon Manis, had thesame testimony as
that of Bayanes, and he then further testified that the fallen victim he saw
wasNemesio Lopate whom he had known since Grade 2 in elementary
school. Then, another prosecution witness named Mona Barredo declared
that appellant came toher residence 30 mins. after the aforementioned crime
has been committed. She further declaredthat appellant took out a handgun
from his jacket, removed the empty shells from the chamber,and told the
former to throw the empty cartridges out of the window. And out of
nervousness,she complied. Barredo also said that appellant disclosed to her
that he shot his wifes paramour.Later on, Police investigators recovered the
spent gun shells from Barredos sweet potato garden.Two more witnesses,
Bayacsan and Pauline Gumpic, testified that appellant disclosed tothem that
he indeed killed Nemesio. And, SPO4 Arthur Bomagao of the La Trinidad
Police whoinvestigated the fatal shooting of Nemesio, declared that appellant
voluntarily admitted to himthat he shot the victim with .38 caliber handgun,
and that appellant surrendered to him the lettersof Wilma Grace where it was
admitted by the latter that she was having an affair with Nemesio.Appellant,
on the other hand, interposed the defense of alibi. He averred that he
wasbaking bread with Anoma in Kayapa on the night Nemesio was killed.
Under oath, appellant saidhe never left Kayapa since his arrival there. He
further testified that he and Anoma wereengrossed in baking bread, until the
Policemen brought him back to Benguet for questioning.Defense witness Ben
Anoma Corroborated Appellants alibi. ISSUES:1. Whether or not the Trial
Court committed reversible error when it appreciated the allegeduse of an
unlicensed .38 calibre firearm as an aggravating circumstance in
thecommission of the crime of murder without any factual and legal basis.

2. Whether or not the Trial Court committed reversible error when it did not
appreciate infavour of the Accused-Appellant the Mitigating Circumstances
of (a) immediatevindication of a grave offense, (b) passion and obfuscation and
(c) voluntary surrender.RULING OF SC:1. In the first issue raised, the Supreme Court
ruled that:We find merit in the appellants contentions. It is not enough
that the specialaggravating circumstance of use of unlicensed firearm be alleged
in the information,the matter must be proven with the same quantum of proof as
the killing itself... Therecords do not show that the prosecution presented any
evidence to prove thatappellant is not a duly licensed holder of a calibre .38
firearm Absent the properevidentiary proof, this Court cannot validly declare
that the special aggravatingcircumstance of use of unlicensed firearm was
satisfactorily established by theProsecution. Hence, such special circumstance
cannot be considered for purposes ofimposing the penalty in its maximum
period.2. As for the second issue, however, the Supreme Court ruled that:a. The
Solicitor General counters that there was literally no immediate vindicationto speak
of in this case. Appellant had sufficient time to recover his serenityfollowing the
discovery of his wifes infidelity.We agree with the Solicitor General that the lapse
of two (2) weeks between hisdiscovery of his wifes infidelity and the killing of her
supposed paramour couldno longer be considered proximate. The passage of a
fortnight is more thansufficient time for appellant to have recovered his composure
and assuaged theease of his mind. The established rule is that there
can be no immediatevindication of a grave offense when the accused had
sufficient time to recover hisserenity. Thus, in this case, we hold that the mitigating
circumstance of immediatevindication of a grave offense cannot be considered in
appellants favor.b. We likewise find the alleged mitigating circumstance of passion
and obfuscationinexistent. The rule is that the mitigating circumstances of
vindication of a graveoffense and passion and obfuscation cannot be claimed at the
same time, if theyarise from the same facts or motive. In other words, if appellant
attacked hisvictim in proximate vindication of a grave offense, he could no longer
claim inthe same breath that passion and obfuscation also blinded him.c. On this
point, the following requirements must be satisfied: (1) the offender hasnot actually
been arrested; (2) the offender surrendered himself to a person inauthority; and (3)
the surrender was voluntary. Records show, however, thatleaflets and posters were
circulated for information to bring the killer of Nemesioto justice. A team of police
investigators from La Trinidad, Benguet then went toKayapa, Nueva Vizcaya to
invite appellant for questioning. Only then did hereturn to Benguet. But he
denied the charge of killing the victim. Clearly,appellants claimed surrender
was neither spontaneous nor voluntary.And so, there being no aggravating nor
mitigating circumstance, June Ignas was foundGUILTY beyond reasonable doubt of
the crime HOMICIDE.

G.R. No. L-32042 December 17, 1976

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALBERTO BENITO y RESTUBOG accused-appellant.
RESOLUTION

AQUINO, J.:
Alberto Benito was sentenced to death by the Circuit Criminal Court of Manila after he pleaded guilty
to the charge of murder for having shot with a .22 caliber revolver Pedro Moncayo, Jr. on December
12, 1969. The killing was qualified by treachery and aggravated by premeditation and disregard of
rank. It was mitigated by plea of guilty.
After a mandatory review of the death sentence, this Court in its decision of February 13, 1975
affirmed the judgment of conviction. It appreciated in Benito's favor the mitigating circumstance of
voluntary surrender. The penalty was reduced to reclusion perpetua. (People vs. Benito, 62 SCRA
351).
Benito filed a motion for reconsideration. He contends that he is entitled to the mitigating
circumstance of immediate vindication of a grave offense and that the aggravating circumstances of
disregard of rank should not be appreciated against him.
Benito, 26, a native of Naga City, in his sworn statement , which was taken, about five hours after the
shooting, by Corporal E. Cortez and Patrolmen J. de la Cruz, Jr., and
H. Roxas of the Manila Police, recounted the background and circumstances of the tragic incident in
this manner (Exh. A):
... alam ninyo ho, ako ay dating empleyado ng Civil Service Commission sa kalye P.
Paredes, Sampaloc, Maynila, at ako ay Clerk 2 sa Administrative Division at ako ay
nagumpisa ng pagtratrabaho sa Civil Service magmula pa noong November, 1965
ng ako ay nasuspende sa aking trabaho dahil kinargohan nila ako ng
"DISHONESTY" at nasuspende ako ng 60 days at nabalik ako sa trabaho noong
January 1966 pero kinarguhan uli nila ako ng "MALVERSARTION OF PUBLIC
FUNDS, QUALIFIED THEFT, ESTAFA at FALSIFICATION OF PUBLIC DOCUMENT
at dinimanda din ako ng Civil Service ng Administrative case ng "DISHONESTY" at
dinismiss na ako sa trabaho ni Commissioner Subido noong February 16, 1966.
At magmula noon ay nawalan na ako ng trabaho pero lahat ho noong kinargo nila sa
akin na sinabi ko sa inyo ay "fabricated" lang ang mga evidensiya at ang gumawa ho
noong ay ang binaril ko kanina na si PEDRO MONCAYO JR. Y RAMOS at naka
pending pa ngayon sa City Fiscal ng Maynila kay Asst. Fiscal Magat at iyon namang

"dismissal order" ni Commissioner Subido ay inapela ko sa Civil Service Board of

Appeals.
Magmula noong Idinismiss nila ako sa aking trabaho dahil sa "fabricated" charges ay
naghirap na ko sa aking buhay at nahihiya ako sa mga kaibigan ko. Ako ay
assign(ed) sa collecting department noon at nagagalit sa akin ang mga empleyado
ng Civil Service dahil mahigpit ako sa kanila.
Noong bandang alas 7:00 ng gabi noong Dec. 11, 1969, ako ay nagpunta sa Civil
Service sa kalye Paredes at nakita ko si PEDRO MONCAYO, Jr. at kinausap ko siya
at tinanong ko siya na iyong kaso ko ay matagal na at hindi pa natatapos at baka
matulungan niya ako at ang sagot niya ay "UMALIS KA NA NGA DIYAN BAKA MAY
MANGYARI PA SA IYO AT BAKA IPAYARI KITA DITO" at umalis na ko.
Kaninang bandang alas 11:00 ng umaga ay nagkita kami ni PEDRO MONCAYO Jr.
sa loob ng compound ng Civil Service at sa harapan ng maraming tao sinabi niya na
"NAGIISTAMBAY PALA DITO ANG MAGNANAKAW" kaya ang ginawa ko ay umalis
na ako.
Kaninang bandang alas 5:25 ng hapon, nitong araw na ito, Desiyembre 12, 1969,
nakita ko si PEDRO MONCAYO Jr. na nagmamanejo noong kotse niya sa kalye P.
Paredes sa tapat ng Civil Service, sinundan ko siya at pagliko ng kotse niya sa kanto
ng P. Paredes at Lepanto, Sampaloc, Maynila, ay binaril ko siya ng walong beses at
tinamaan siya at napatumba siya sa kaniyang upuan sa kotse.
Pagkatapos ay tumawag ako sa telepono sa MPD Headquarters para sumurender at
kayo nga ang dumating kasama ninyo iyong mga kasama ninyo.
Benito surrendered to the police the revolver (Exh. C) used in the shooting with the eight empty
shells of the bullets which he had fired at Moncayo.
The Police report contains the following background and description of the killing (Exh. B):
According to the suspect, he was a former employee of the Civil Service Commission
at its main office located at P. Paredes, Sampaloc. Mla., and was assigned as Clerk 2
in the Administrative Division from Nov. 1963 continuously up to Nov. 1965 when he
was suspended for "DISHONESTY".
After two months, he was reinstated but was criminally charged for QUALIFIED
THEFT, MALVERSATION OF PUBLIC FUNDS, ESTAFA and FALSIFICATION OF
PUBLIC DOCUMENTS and administratively charged for "DISHONESTY" culminating
in his dismissal from the Civil Service on February 1966.
The aforecited criminal charges against the suspect was allegedly investigated by
Asst. Fiscal MAGAT. Records from the CRID, MPD, reveals that on Dec. 6, 1966,

Hon. Judge ROAN of the City Court of Mla. issued a Warrant No. E-316758 for the
arrest of the suspect for the crime of ESTAFA.
On May 24, 1969, Hon. Judge JUAN O. REYES of the CFI of Mla. issued an order
No. OA-87409 for the arrest of the suspect for the crime of MALVERSATION OF
PUBLIC FUNDS. According to the suspect, the aforecited criminal and administrative
charges filed him were allegedly instigated and contrived by the victim and since the
time of his dismissal, he was allegedly jobless.
On Dec. 11, 1969, the suspect went to the Civil Service at P. Paredes st. and
requested the victim to help him in his cases but the former allegedly uttered to the
suspect "UMALIS KA NGA DIYAN BAKA MAY MANGYARI PA SA IYO AT BAKA
IPAYARI KITA DITO".
The suspect left and returned the following morning at 11:00 a.m. of Dec. 12, 1969,
and when they met again, the victim allegedly remarked in the presence of many
people, "NAGIISTAMBAY PALA DITO ANG MAGNANAKAW". The suspect who was
humiliated and incensed, left.
At about 5:25 p.m. of that same day, Dec. 12, 1969, the suspect who was armed with
an unlicensed Cal. 22 black revolver (w/ SN - P-5317, Trademarked "SENTINEL",
SQUIRES BINGHAM MFG. CO. INC. MLA. P.I.) loaded with nine (9) live Cal. 22
bullets in its cylinder, waited for the victim outside the Civil Service compound at P.
Paredes st. Sampaloc, Mla.
The victim showed up and drove his green Chevrolet 2 door car (w/ Plate No.
L-10578 Mla. 69) along P. Paredes st. The suspect with evident premeditation,
surreptitiously followed the victim and when the latter's car was at a full stop at the
corner of Lepanto and P. Paredes sts. due to heavy traffic of motor vehicles, the
suspect without any warning or provocation, suddenly and treacherously shot the
victim eight (8) times on the head and different parts of the body at closer range
which consequently caused the latter's death on the spot inside his car.
The suspect then fled while the victim was conveyed on board a red private car (w/
Plate No. L-55117) by his co-employees (composed of VICTOR VILLAR,
ELEUTERIO MENDOZA & FORTUNATO JOSE Jr.) to the FEU Hospital.
Unfortunately, the victim was pronounced DOA by Dr. P. PAHUTAN, SOD, at 5:40
p.m. of Dec. 12, 1969.
The thirty-six year old victim, a certified public accountant, was the Assistant Chief of the Personnel
Transactions Division and Acting Chief, Administrative Division of the Civil Service Commission (Exh.
E to E-2). The accused was a clerk in the cash section, Administrative Division of the Commission,
receiving P1,884 per annum (Exh. D). He started working in the Commission on November 7, 1963.

On October 21, 1965 Moncayo, as an administrative officer, reported to the Commissioner of Civil
Service that Benito admitted having malversed an amount between P4,000 and P5,000 from his
sales of examination fee stamps. Moncayo's report reads as follows (Exh. F):
MEMORANDUM for
The Commissioner
Through Proper Channels
This refers to the case of Mr. ALBERTO R. BENITO, Clerk II in the Administrative
Division of this Commission, who, as had previously been reported, malversed public
funds in the amount of approximately P5,000.00 out of his collections from the sale of
examination fee stamps.
I wish to state that this matter came to my attention on the evening of March 1, 1965
when Mr. Teodoro Abarquez, Acting Cashier I, reported to me that fifty (50) money
orders at P2.00 each with a total vlaue of P100.00 were missing from a bundle of
money orders received from the Provincial Treasurer of Cotabato, which were kept
by him in one of the cabinets inside the Cashier's Cashier' room.
At the same time he also informed me that he suspected that Mr. Benito stole the
missing money orders. His suspicion arose from the fact that he found several
money orders marked "Cotabato" as their place of issue among the cash receipts
turned over to him by Mr. Benito that afternoon as his collection from the sale of
examination fee stamps. Mr. Abarquez showed to me the said money orders issued
in Cotabato which were turned over to him by Mr. Benito and after checking their
serial numbers with the records of list of remittances on file, we were able to
establish definitely the fact that the said money orders were those missing.
It may be stated that at that time, Mr. Benito was assigned to work in the Cash
Section and one of his duties was to sell examination fee stamps to applicants for
examinations. It was then the practice of the cashier to issue to Mr. Benito in the
morning examination fee stamps to be sold during the day and in the afternoon he
turned over to the Cashier the proceeds from the sale of stamps including the unsold
stamps issued to him. After considering the work performed by Mr. Benito, it became
evident that he succeeded in malversing the amount of P100.00 by substituting
equivalent amount of money orders in the place of the cash extracted by him from his
daily collections from the sale of examination fee stamps when he clears his
accountability with the Cashier.
The following day, I confronted Mr. Benito in the presence of Mr. Abarquez and ask
him whether he had something to do with the loss of the fifty (50) money orders at
P2.00 each. At first he denied, but when I asked him where he obtained the money
orders issued in Cotabato which were included in his collections the day preceding,
he admitted having stolen the missing money orders.

Having confessed his guiltk, I then asked Mr. Benito when he started committing the
said irregularity and how much in all did he actually malversed out of his daily
collections from the time that he started the anomaly. He stated in the presence of
Mr. Abarquez that he started in January, 1965 and that although he did not know
exactly the total amount malversed by him, he believed the amount to be between
P4,000.00 to P5,000.00. He also confessed that he used the money orders remitted
by the Provincial Treasurer of Negros Occidental in the amount of P3,436.00 in
substituting various amounts extracted by him from his daily cash collections and
used by him for personal purposes.
It appears from the records that the List of Remittances covering the money orders
received from the Provincial Treasurer of Negros Occidental was duly receipted by
Mr. Benito. He was supposed to issue an Official Receipt therefor in favor of the said
Provincial Treasurer and then turn over to the Cashier the amount involved for
deposit to the National Treasurer. The said List of Remittances, duly signed by Mr.
Benito, is enclosed for use as evidence in this case.
I told Mr. Benito that I cannot do anything but report the matter to the Commissioner.
However, he pleaded that he be given first an opportunity to restore the amount
before I make my report in order that the penalty that may be imposed upon him may
be lessened to a certain degree. As I thought it wise in the interest of the service to
recover the amount involved, I allowed him to go and see his parents in Naga City to
raise the amount in question.
After two weeks, Mr. Benito informed me that his parents filed an application for a
loan with the Government Service Insurance System and that the proceeds of the
said loan which he intended to use in restoring the amount malversed by him were
expected to be released during the last week of May, 1965. However, when the
month of May, 1965 elapsed without the amount involved having been restored, I
conferred with Mr. del Prado, my immediate superior and asked him whether we
should wait further for the release of the said loan in order that the amount involved
may be recovered. Mr. Prado consented to giving him a little more time.
When Mr. Benito still failed to restore the amount in question by the end of June,
1965, I got hold of him on July 5, 1965 and together with Messrs. del Prado,
Abarquez and Gatchalian, also of this Commission, brought him before Deputy
Commissioner A. L. Buenaventura and reported the entire matter to the Deputy
Commissioner. In the presence of Messrs. del Prado, Abarquez, Gatchalian and
myself, Mr. Benito admitted readily and voluntarily before the Deputy Commissioner
the commission of the offense of malversation of public funds as stated above.
In view of the foregoing, it is recommended that Mr. Benito be charged formally and
that he be suspended from office immediately considering the gravity of the offense
committed by him.

(Sgd.)
PEDR
O R.
MONC
AYO
Admini
strative
Officer
II
Benito was charged with dishonesty. He had admitted to Deputy Commissioner Alipio Buenaventura
that he had misappropriated his collections and spent the amount in nightclubs and pleasure spots
and for personal purposes. The decision dismissing him from the service reads as follows (Exh. G):
This is an administrative case against Mr. Alberto R. Benito, Clerk I, Cash Section,
Administrative Division of this Office, for dishonesty.
The following excerpts from the letter dated October 22, 1965 of the Commissioner
of Civil Service connect respondent with the alleged misappropriation of public funds
representing his collection from the sale of examination fee stamps and constitute
the basis of the instant case against him:
An investigation made by this Commission shows that you malversed
public funds in the amount of P3,536.00 out of your collections from
the sale of examination fee stamps while in the performance of your
official duties as Clerk II in the Cash Section, Administrative Division
of this Office. It appears that you succeeded in malversing the abovestated amount from your cash collections by substituting in lieu
thereof money orders worth P3,436.00 remitted to this Commission
by the Provincial Treasurer of Negros Occidental which were duly
receipted for by you. It also appears that you extracted from a bundle
of money orders remitted by the Provincial Treasurer of Cotabato the
amount of P100.00 in money orders which were kept in one of the
cabinets in the Cashier's room.
Respondent denied the charge. He explained, among others, that money orders
were always kept in the Cashier's safe and he had no access to them. Although he
admitted having received money orders amounting to P3,436.00 remitted by the
Provincial Treasurer of Negros Occidental and another remittance of the Provincial
Treasurer of Cotabato he, however, disclaimed having substituted the same for cash
collections in his sale of examination fee stamps. He reasoned out further that he
could not be charged with malversation of public funds inasmuch as he was not then
an accountable officer.
It appears that respondent, as Clerk in the Cash Section, performs, among other
duties, the selling of examination fee stamps, receiving payments therefor, and

receiving remittances in form of cash and/or money orders from provincial treasurers
in connection with examinations held in the provinces. It was also his duty to issue
official receipts for said remittances. In the course of the performance of his duties,
he received said remittances from the Provincial Treasurers of Negros Occidental
and Cotabato, but no official receipts were issued by him, as shown by the reply
telegrams pertaining thereto. While records disclose that remittances from the
province of Cotabato were submitted to the Cashier of the Civil Service Commission,
there is no evidence showing that remittances from Negros Occidental were likewise
submitted.
Investigation further reveals that 50 money orders were discovered missing from the
remittances of Cotabato Provincial Treasurer which were kept in the cabinet of the
Cashier. On or about March 2, 1965, the Cashier of the Commission noticed that 15
money orders turned over by respondent as part of his collections in the sale of
examination fee stamps were among the missing money orders. This triggered off
the filing of this case against the respondent.
On July 5, 1965, respondent admitted before the then Deputy Commissioner Alipio
Buenaventura having misappropriated an aggregate amount ranging from P3,000 to
P7,000, which he spent in night clubs, pleasure spots and other personal benefits.
Despite the testimonies of several witnesses regarding his confession, including that
of the then Deputy Commissioner himself, respondent, when asked to take the stand,
denied his previous admission.
Instead, he argued that the cash and accounts of the Cashier of the Civil Service
Commission, when examined by representatives of the Auditor's Office, did not
indicate any shortage and therefore there was no irregularity involved. This argument
is not well taken. Inasmuch as the remittances received by respondent from said
Provincial Treasurers of Negros Occidental and Cotabato were not in turn given
corresponding official receipts, naturally, the same were not reflected on the
Cashier's cash book.
The weakness of respondent's defense lies not so much on its failure to establish
convincingly his innocence as its irreconciliability with established facts. Obviously,
none of the circumstances in this case is consistent with his claim of innocence. On
the contrary, all of them put together produce reasonable assurance of respondent's
guilt.
In view of the foregoing, this Office finds respondent Alberto R. Benito guilty as
charged. Wherefore, he is dismissed from the service effective upon his receipt of
this decision.
In the interest of the service this decision is executed also on the date of his receipt
of this decision.

Benito appealed to the Civil Service Board of Appeals from the Commissioner's decision dismissing
him. The appeal was pending at the time when he assassinated Moncayo (Exh. I).
The foregoing antecedents of the assassination shed light on the remark which the victim, Moncayo,
allegedly made upon seeing Benito in the compound of the Civil Service Commission near the
canteen at eleven o'clock in the morning of December 12, 1969 (about six hours before the
shooting): "Nagiistambay pala dito and magnanakaw." (Exh. A or 1); or, as Benito testified, Moncayo
said: "Hindi ko alam na itong Civil Service pala ay istambayan ng magnanakaw." (27 tsn December
26, 1969).
Mitigating circumstance of immediate vindication of a grave offense. Benito contends that
Moncayo insulted him when he (Moncayo) remarked that a thief was loitering in the premises of the
Civil Service Commission. Benito argues that that remark "was tantamount to kicking a man already
down and to rubbing salt into a raw wound" and that, as it was made publicly and in a loud voice, he
was exposed to ridicule in the presence of his officemates.
Benito attached to his motion a copy of the decision of Judge Jose C. Colayco dated January 16,
1975, acquitting him of the charge of malversation in connection with his alleged misappropriation of
the fees collected from the examinees of the 1974 patrolman examination. That same decision
makes reference to Benito's exoneration from the administrative charge. The court's decision reads
as follows:
The accused is charged with malversation under the following information:
That on or about and during the period comprised between October
17, 1964, to February, 1965, inclusive, in the City of Manila
Philippines, the said accused being then employed as Clerk I of the
Civil Service Commission, a branch of the government of the
Republic of the Philippines, among whose duties were to accept
payments of fees collected from the examinees of the 1964
Patrolman examination, and by reason of his said position received
the total amount of P3,536.00, with the duty to turn over and/or
account for his collections to the cashier of the Civil Service
Commission immediately or upon demand but the said accused once
in possession of the said amount of P3,536.00, with intent to defraud,
despite repeated demands made upon him to turn over and to
account for the same, did then and there willfully, unlawfully and
feloniously misappropriate, misapply and convert and malverse the
said amount to his own personal use and benefit, to the detriment of
public interest and to the damage and prejudice of the said Civil
Service Commission in the said amount of P3,536.00, Philippine
currency.
Contrary to law.

The evidence shows that the accused had an appointment as clerk in the Civil
Service Commission from May 27, 1964, as clerk I, range 23 from June 1, 1965 and
as clerk I, range 26 from July 23, 1965 (Exhibits A, A-1, A-2). He had the duty, among
others, of selling Civil Service examination- fee stamps and to receive payment
therefor, as well as to receive remittances of money orders and checks from the
provincial treasurers for payments of examination fee stamps (Exhibit B).
Teodoro Abarquez, a cashier of the Civil Service Commission during the period
alleged in the information, testified in his direct examination that Benito was working
in his office; that one of the duties that he assigned to him was to sell examination
fee stamps; that it was customary for him to give stamps to Benito at the start of
office hours in the morning and that Benito turned over to him the proceeds of the
sale, as well as the unsold stamps, at the close of office hours in the afternoon; that
one afternoon he noticed that Benito turned over to him 50 money orders from
Cotabato, together with some cash, as proceeds of the sale of stamps for that day;
that he remembered that he was missing money orders from one of his cabinets
where he kept them; that when he discovered that the 50 money orders were those
which were missing, he reported the matter to Pedro Moncayo, the chief
administrative officer; on March 1, 1965; that the money orders were for P2.00 each,
and were payments of the examination fees from Cotabato (Exhibit F); that he
discovered the loss of the 50 money orders on February 28, 1965 and reported it to
Moncayo on March 1, 1965, together with the list of missing orders (Exhibit M); that
after receiving the report, Moncayo called Benito to the office of Abarquez where he
admitted taking the missing money orders; that Moncayo submitted a memorandum
to the Commissioner, dated October 21, 1965, after giving Benito a chance to refund
the value of the money orders (Exhibit O). Alipio Buenaventura, acting Deputy
Commissioner at the time, and Eliseo S. Gatchalian, budget officer, testified that
when Benito was confronted with the report of Moncayo and Abarquez, he admitted
that he misappropriated about P3,000.00 because of bad company and that he
asked for a chance to refund the money.
Under cross-examination, Abarquez elucidated his testimony in his direct
examination and explained that when Benito turned over the proceeds of the sale of
stamps for that particular day, he kept the sum of P100.00 and replaced it with the 50
money orders that he had taken from the cashier's office to cover up the money that
he had pocketed. When he was asked when he discovered that Benito substituted
the 50 money orders from Cotabato, he answered that he checked them the
following night (March 2, 1965) with the list of money orders remitted by the
Provincial treasurer (Exhibits F, F-1); but when he was confronted with his affidavit
which he executed on April 18, 1966 (Exhibit R), he reluctantly admitted that he had
only verified 15 money orders missing as of April 18, 1966 and that he did not keep
any record of the money and the money orders given to him by Benito on March 1,
1965.
He also admitted that the room where he kept the money orders in an unlocked
drawer was also occupied by two other persons, and that this was the first time that

he had not followed the usual procedure of keeping them in the safe. He further
admitted that, although regular examinations were conducted during the period of
October 1, 1964 to February 28, 1965 by the examiners of the Civil Service
Commission and the auditors of the General Auditing Office, they did not find any
shortage in the accounts of Benito.
Finally, when the Court asked him what happened to the 50 money orders, at first he
hinted that they were not deposited with the Bureau of Treasury because they were
reported missing; but when pressed further, he said that he deposited them, but did
not issue any official receipt for them. When asked if he had any evidence to show
that they were actually deposited, he admitted that he could not even remember
when he deposited them.
The testimony of Teodoro Abarquez upon which the prosecution has built its case, is
too weak and shaky to sustain a finding of guilt because of his glaring
inconsistencies, contradictions and gaps in memory. The prosecution has failed to
present convincing evidence that the 50 money orders were even lost: According to
Abarquez he had only verified the loss of 15 on April 18, 1966, although he testified
earlier that he determined the loss of 50 the night after March 1, 1965.
The examiners of the Civil Service Commission and the auditors of the General
Auditing Office did not find any irregularity in the cash accountability of Benito,
according to Abarquez. This was corroborated by Romeo Jarabelo, auditor of the
Commission on Audit and Miguel Games, auditing examiner assigned to the Civil
Service Commission, who testified for the accused. Benito was in fact exonorated
the administrative charge filed against him for the time same transaction (Exhibit E).
In fact, the testimony of Abarquez under cross-examination that he has not issued
any official receipt for the 50 money orders and his inability to prove that he
deposited them with the bureau of Treasury gives rise to the suspicion that other
persons, not the accused, may have stolen the 50 missing money orders. Even
without taking into account the testimony of the accused, who denied the testimonies
of the witnesses for the prosecution, the court believes that the prosecution has
failed to prove the guilt of the accused.
WHEREFORE, judgment is hereby rendered acquitting the accused, with costs de
oficio.
The Solicitor General argues that the defamatory remark imputed to Moncayo cannot give rise to the
mitigating circumstance of vindication of a grave offense because it was not specifically directed at
Benito. The prosecution notes that the remark was uttered by Moncayo at eleven o'clock in the
morning. According to Benito's testimony (not consistent with his confession), he saw Moncayo three
hours later or at two o'clock in the afternoon and inquired from him about his case and Moncayo said
that he had already submitted his report and he could not do anything more about Benito's case (26
tan). As already stated, the assassination was perpetrated at around five o'clock in the afternoon of
the same day.

Assuming that Moncayo's remark was directed at Benito, we see no justification under the
circumstances recited above for changing our prior opinion that the mitigating circumstance of
"haber ejecutado el hecho en vindicacion proxima de una ofensa grave, causada al autor del delito,"
cannot be appreciated in Benito's favor. As aptly stated by the ponente, Justice Esguerra, Benito
"had more than sufficient time to suppress his emotion over said remark if he ever did resent it."
"La apreciacion de la proximidad queda al arbitrio del tribunal; el Tribunal Supremo (de Espaa) no
ha apreciado la proximidad ... cuando la ofensa se realizo por la maana y el delito tuvo lugar por
la tarde (Sentencia de 11 noviembre 1921); por regla general no es proxima cuando transcurre
tiempo suficiente para la razon recobre su imperio sobreponiendose a la pasion (Sentencias de 28
mayo 1882, 4 noviembre 1893, 24 junio 1908, etc.) ... Si falta el requisito de la proximidad debe
desestimarse (Sentencia de 3 julio 1950). Exige gravedad en la ofensa y proximada en la reaccion."
(Note 9, 1 Cuello Calon, Derecho Penal. 1975 Ed., p. 564).
The Spanish Supreme Court also held that "no puede apreciarse esta circunstancia atenuante en
favor del autor de un homicidio cometido 'algunas horas despues de haberle invitado el interfecto a
renir y golpeado en el pecho con las manos', porque el tiempo transcurrido entre los golpes y la
muerte fue suficiente para que el animo del reo se serenase (Sentencia de 24 Junio 1908, Gaceta
28 Agosto 1909, IV-V Enciclopedia Juridica Espaola 1182).
The six-hour interval between the alleged grave offense committed by Moncayo against Benito and
the assassination was more than sufficient to enable Benito to recover his serenity. But instead of
using that time to regain his composure, he evolved the plan of liquidating Moncayo after office
hours. Benito literally ambushed Moncayo just a few minutes after the victim had left the office. He
acted with treachery and evident premeditation in perpetrating the cold-blooded murder.
The facts of the case strongly suggest that what really impelled Benito to assassinate Moncayo was
not the latter's alleged defamatory remark that the Civil Service Commission compound was a
hangout for a thief or for thieves but the refusal of Moncayo to change his report so as to favor
Benito. Benito did not act primarily to vindicate an alleged grave offense to himself but mainly to
chastise Moncayo for having exposed the alleged anomalies or defraudation committed by Benito
and for obstinately refusing to change his report.
Aggravating circumstance of disregard of rank. Benito contends that disregard of rank should not
be considered against him because there was no evidence that he "deliberately intended to offend or
insult the rank" of Moncayo. That contention has no merit.
It should be borne in mind that the victim was a ranking official of the Civil Service Commission and
that the killer was a clerk in the same office who resented the victim's condemnatory report against
him. In that situation, the existence of the aggravating circumstance of "desprecio del respeto que
por la dignidad mereciere el ofendido" is manifest.
The instant case is similar to a case where the chief of the secret service division killed his superior,
the chief of police (People vs. Hollero, 88 Phil. 167) and to the killing of the acting Spanish consul by
his subordinate, the chancellor of the consulate, who had misappropriated the funds of the

consulate, which misappropriation was discovered by the victim (People vs. Martinez Godinez, 106
Phil, 597, 606). In these two cases the murder was aggravated by disregard of rank.
WHEREFORE, the motion for reconsideration is denied.
SO ORDERED.

G.R. No. L-32042 December 17, 1976

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALBERTO BENITO y RESTUBOG accused-appellant.
RESOLUTION

AQUINO, J.:
Alberto Benito was sentenced to death by the Circuit Criminal Court of Manila after he pleaded guilty
to the charge of murder for having shot with a .22 caliber revolver Pedro Moncayo, Jr. on December
12, 1969. The killing was qualified by treachery and aggravated by premeditation and disregard of
rank. It was mitigated by plea of guilty.
After a mandatory review of the death sentence, this Court in its decision of February 13, 1975
affirmed the judgment of conviction. It appreciated in Benito's favor the mitigating circumstance of
voluntary surrender. The penalty was reduced to reclusion perpetua. (People vs. Benito, 62 SCRA
351).
Benito filed a motion for reconsideration. He contends that he is entitled to the mitigating
circumstance of immediate vindication of a grave offense and that the aggravating circumstances of
disregard of rank should not be appreciated against him.
Benito, 26, a native of Naga City, in his sworn statement , which was taken, about five hours after the
shooting, by Corporal E. Cortez and Patrolmen J. de la Cruz, Jr., and
H. Roxas of the Manila Police, recounted the background and circumstances of the tragic incident in
this manner (Exh. A):
... alam ninyo ho, ako ay dating empleyado ng Civil Service Commission sa kalye P.
Paredes, Sampaloc, Maynila, at ako ay Clerk 2 sa Administrative Division at ako ay
nagumpisa ng pagtratrabaho sa Civil Service magmula pa noong November, 1965
ng ako ay nasuspende sa aking trabaho dahil kinargohan nila ako ng
"DISHONESTY" at nasuspende ako ng 60 days at nabalik ako sa trabaho noong
January 1966 pero kinarguhan uli nila ako ng "MALVERSARTION OF PUBLIC
FUNDS, QUALIFIED THEFT, ESTAFA at FALSIFICATION OF PUBLIC DOCUMENT

at dinimanda din ako ng Civil Service ng Administrative case ng "DISHONESTY" at

dinismiss na ako sa trabaho ni Commissioner Subido noong February 16, 1966.
At magmula noon ay nawalan na ako ng trabaho pero lahat ho noong kinargo nila sa
akin na sinabi ko sa inyo ay "fabricated" lang ang mga evidensiya at ang gumawa ho
noong ay ang binaril ko kanina na si PEDRO MONCAYO JR. Y RAMOS at naka
pending pa ngayon sa City Fiscal ng Maynila kay Asst. Fiscal Magat at iyon namang
"dismissal order" ni Commissioner Subido ay inapela ko sa Civil Service Board of
Appeals.
Magmula noong Idinismiss nila ako sa aking trabaho dahil sa "fabricated" charges ay
naghirap na ko sa aking buhay at nahihiya ako sa mga kaibigan ko. Ako ay
assign(ed) sa collecting department noon at nagagalit sa akin ang mga empleyado
ng Civil Service dahil mahigpit ako sa kanila.
Noong bandang alas 7:00 ng gabi noong Dec. 11, 1969, ako ay nagpunta sa Civil
Service sa kalye Paredes at nakita ko si PEDRO MONCAYO, Jr. at kinausap ko siya
at tinanong ko siya na iyong kaso ko ay matagal na at hindi pa natatapos at baka
matulungan niya ako at ang sagot niya ay "UMALIS KA NA NGA DIYAN BAKA MAY
MANGYARI PA SA IYO AT BAKA IPAYARI KITA DITO" at umalis na ko.
Kaninang bandang alas 11:00 ng umaga ay nagkita kami ni PEDRO MONCAYO Jr.
sa loob ng compound ng Civil Service at sa harapan ng maraming tao sinabi niya na
"NAGIISTAMBAY PALA DITO ANG MAGNANAKAW" kaya ang ginawa ko ay umalis
na ako.
Kaninang bandang alas 5:25 ng hapon, nitong araw na ito, Desiyembre 12, 1969,
nakita ko si PEDRO MONCAYO Jr. na nagmamanejo noong kotse niya sa kalye P.
Paredes sa tapat ng Civil Service, sinundan ko siya at pagliko ng kotse niya sa kanto
ng P. Paredes at Lepanto, Sampaloc, Maynila, ay binaril ko siya ng walong beses at
tinamaan siya at napatumba siya sa kaniyang upuan sa kotse.
Pagkatapos ay tumawag ako sa telepono sa MPD Headquarters para sumurender at
kayo nga ang dumating kasama ninyo iyong mga kasama ninyo.
Benito surrendered to the police the revolver (Exh. C) used in the shooting with the eight empty
shells of the bullets which he had fired at Moncayo.
The Police report contains the following background and description of the killing (Exh. B):
According to the suspect, he was a former employee of the Civil Service Commission
at its main office located at P. Paredes, Sampaloc. Mla., and was assigned as Clerk 2
in the Administrative Division from Nov. 1963 continuously up to Nov. 1965 when he
was suspended for "DISHONESTY".
After two months, he was reinstated but was criminally charged for QUALIFIED
THEFT, MALVERSATION OF PUBLIC FUNDS, ESTAFA and FALSIFICATION OF
PUBLIC DOCUMENTS and administratively charged for "DISHONESTY" culminating
in his dismissal from the Civil Service on February 1966.

The aforecited criminal charges against the suspect was allegedly investigated by
Asst. Fiscal MAGAT. Records from the CRID, MPD, reveals that on Dec. 6, 1966,
Hon. Judge ROAN of the City Court of Mla. issued a Warrant No. E-316758 for the
arrest of the suspect for the crime of ESTAFA.
On May 24, 1969, Hon. Judge JUAN O. REYES of the CFI of Mla. issued an order
No. OA-87409 for the arrest of the suspect for the crime of MALVERSATION OF
PUBLIC FUNDS. According to the suspect, the aforecited criminal and administrative
charges filed him were allegedly instigated and contrived by the victim and since the
time of his dismissal, he was allegedly jobless.
On Dec. 11, 1969, the suspect went to the Civil Service at P. Paredes st. and
requested the victim to help him in his cases but the former allegedly uttered to the
suspect "UMALIS KA NGA DIYAN BAKA MAY MANGYARI PA SA IYO AT BAKA
IPAYARI KITA DITO".
The suspect left and returned the following morning at 11:00 a.m. of Dec. 12, 1969,
and when they met again, the victim allegedly remarked in the presence of many
people, "NAGIISTAMBAY PALA DITO ANG MAGNANAKAW". The suspect who was
humiliated and incensed, left.
At about 5:25 p.m. of that same day, Dec. 12, 1969, the suspect who was armed with
an unlicensed Cal. 22 black revolver (w/ SN - P-5317, Trademarked "SENTINEL",
SQUIRES BINGHAM MFG. CO. INC. MLA. P.I.) loaded with nine (9) live Cal. 22
bullets in its cylinder, waited for the victim outside the Civil Service compound at P.
Paredes st. Sampaloc, Mla.
The victim showed up and drove his green Chevrolet 2 door car (w/ Plate No.
L-10578 Mla. 69) along P. Paredes st. The suspect with evident premeditation,
surreptitiously followed the victim and when the latter's car was at a full stop at the
corner of Lepanto and P. Paredes sts. due to heavy traffic of motor vehicles, the
suspect without any warning or provocation, suddenly and treacherously shot the
victim eight (8) times on the head and different parts of the body at closer range
which consequently caused the latter's death on the spot inside his car.
The suspect then fled while the victim was conveyed on board a red private car (w/
Plate No. L-55117) by his co-employees (composed of VICTOR VILLAR,
ELEUTERIO MENDOZA & FORTUNATO JOSE Jr.) to the FEU Hospital.
Unfortunately, the victim was pronounced DOA by Dr. P. PAHUTAN, SOD, at 5:40
p.m. of Dec. 12, 1969.
The thirty-six year old victim, a certified public accountant, was the Assistant Chief of the Personnel
Transactions Division and Acting Chief, Administrative Division of the Civil Service Commission (Exh.
E to E-2). The accused was a clerk in the cash section, Administrative Division of the Commission,
receiving P1,884 per annum (Exh. D). He started working in the Commission on November 7, 1963.
On October 21, 1965 Moncayo, as an administrative officer, reported to the Commissioner of Civil
Service that Benito admitted having malversed an amount between P4,000 and P5,000 from his
sales of examination fee stamps. Moncayo's report reads as follows (Exh. F):

MEMORANDUM for
The Commissioner
Through Proper Channels
This refers to the case of Mr. ALBERTO R. BENITO, Clerk II in the Administrative
Division of this Commission, who, as had previously been reported, malversed public
funds in the amount of approximately P5,000.00 out of his collections from the sale of
examination fee stamps.
I wish to state that this matter came to my attention on the evening of March 1, 1965
when Mr. Teodoro Abarquez, Acting Cashier I, reported to me that fifty (50) money
orders at P2.00 each with a total vlaue of P100.00 were missing from a bundle of
money orders received from the Provincial Treasurer of Cotabato, which were kept
by him in one of the cabinets inside the Cashier's Cashier' room.
At the same time he also informed me that he suspected that Mr. Benito stole the
missing money orders. His suspicion arose from the fact that he found several
money orders marked "Cotabato" as their place of issue among the cash receipts
turned over to him by Mr. Benito that afternoon as his collection from the sale of
examination fee stamps. Mr. Abarquez showed to me the said money orders issued
in Cotabato which were turned over to him by Mr. Benito and after checking their
serial numbers with the records of list of remittances on file, we were able to
establish definitely the fact that the said money orders were those missing.
It may be stated that at that time, Mr. Benito was assigned to work in the Cash
Section and one of his duties was to sell examination fee stamps to applicants for
examinations. It was then the practice of the cashier to issue to Mr. Benito in the
morning examination fee stamps to be sold during the day and in the afternoon he
turned over to the Cashier the proceeds from the sale of stamps including the unsold
stamps issued to him. After considering the work performed by Mr. Benito, it became
evident that he succeeded in malversing the amount of P100.00 by substituting
equivalent amount of money orders in the place of the cash extracted by him from his
daily collections from the sale of examination fee stamps when he clears his
accountability with the Cashier.
The following day, I confronted Mr. Benito in the presence of Mr. Abarquez and ask
him whether he had something to do with the loss of the fifty (50) money orders at
P2.00 each. At first he denied, but when I asked him where he obtained the money
orders issued in Cotabato which were included in his collections the day preceding,
he admitted having stolen the missing money orders.
Having confessed his guiltk, I then asked Mr. Benito when he started committing the
said irregularity and how much in all did he actually malversed out of his daily
collections from the time that he started the anomaly. He stated in the presence of
Mr. Abarquez that he started in January, 1965 and that although he did not know
exactly the total amount malversed by him, he believed the amount to be between
P4,000.00 to P5,000.00. He also confessed that he used the money orders remitted
by the Provincial Treasurer of Negros Occidental in the amount of P3,436.00 in
substituting various amounts extracted by him from his daily cash collections and
used by him for personal purposes.

It appears from the records that the List of Remittances covering the money orders
received from the Provincial Treasurer of Negros Occidental was duly receipted by
Mr. Benito. He was supposed to issue an Official Receipt therefor in favor of the said
Provincial Treasurer and then turn over to the Cashier the amount involved for
deposit to the National Treasurer. The said List of Remittances, duly signed by Mr.
Benito, is enclosed for use as evidence in this case.
I told Mr. Benito that I cannot do anything but report the matter to the Commissioner.
However, he pleaded that he be given first an opportunity to restore the amount
before I make my report in order that the penalty that may be imposed upon him may
be lessened to a certain degree. As I thought it wise in the interest of the service to
recover the amount involved, I allowed him to go and see his parents in Naga City to
raise the amount in question.
After two weeks, Mr. Benito informed me that his parents filed an application for a
loan with the Government Service Insurance System and that the proceeds of the
said loan which he intended to use in restoring the amount malversed by him were
expected to be released during the last week of May, 1965. However, when the
month of May, 1965 elapsed without the amount involved having been restored, I
conferred with Mr. del Prado, my immediate superior and asked him whether we
should wait further for the release of the said loan in order that the amount involved
may be recovered. Mr. Prado consented to giving him a little more time.
When Mr. Benito still failed to restore the amount in question by the end of June,
1965, I got hold of him on July 5, 1965 and together with Messrs. del Prado,
Abarquez and Gatchalian, also of this Commission, brought him before Deputy
Commissioner A. L. Buenaventura and reported the entire matter to the Deputy
Commissioner. In the presence of Messrs. del Prado, Abarquez, Gatchalian and
myself, Mr. Benito admitted readily and voluntarily before the Deputy Commissioner
the commission of the offense of malversation of public funds as stated above.
In view of the foregoing, it is recommended that Mr. Benito be charged formally and
that he be suspended from office immediately considering the gravity of the offense
committed by him.
(Sgd.)
PEDR
O R.
MONC
AYO
Admini
strative
Officer
II
Benito was charged with dishonesty. He had admitted to Deputy Commissioner Alipio Buenaventura
that he had misappropriated his collections and spent the amount in nightclubs and pleasure spots
and for personal purposes. The decision dismissing him from the service reads as follows (Exh. G):
This is an administrative case against Mr. Alberto R. Benito, Clerk I, Cash Section,
Administrative Division of this Office, for dishonesty.

The following excerpts from the letter dated October 22, 1965 of the Commissioner
of Civil Service connect respondent with the alleged misappropriation of public funds
representing his collection from the sale of examination fee stamps and constitute
the basis of the instant case against him:
An investigation made by this Commission shows that you malversed
public funds in the amount of P3,536.00 out of your collections from
the sale of examination fee stamps while in the performance of your
official duties as Clerk II in the Cash Section, Administrative Division
of this Office. It appears that you succeeded in malversing the abovestated amount from your cash collections by substituting in lieu
thereof money orders worth P3,436.00 remitted to this Commission
by the Provincial Treasurer of Negros Occidental which were duly
receipted for by you. It also appears that you extracted from a bundle
of money orders remitted by the Provincial Treasurer of Cotabato the
amount of P100.00 in money orders which were kept in one of the
cabinets in the Cashier's room.
Respondent denied the charge. He explained, among others, that money orders
were always kept in the Cashier's safe and he had no access to them. Although he
admitted having received money orders amounting to P3,436.00 remitted by the
Provincial Treasurer of Negros Occidental and another remittance of the Provincial
Treasurer of Cotabato he, however, disclaimed having substituted the same for cash
collections in his sale of examination fee stamps. He reasoned out further that he
could not be charged with malversation of public funds inasmuch as he was not then
an accountable officer.
It appears that respondent, as Clerk in the Cash Section, performs, among other
duties, the selling of examination fee stamps, receiving payments therefor, and
receiving remittances in form of cash and/or money orders from provincial treasurers
in connection with examinations held in the provinces. It was also his duty to issue
official receipts for said remittances. In the course of the performance of his duties,
he received said remittances from the Provincial Treasurers of Negros Occidental
and Cotabato, but no official receipts were issued by him, as shown by the reply
telegrams pertaining thereto. While records disclose that remittances from the
province of Cotabato were submitted to the Cashier of the Civil Service Commission,
there is no evidence showing that remittances from Negros Occidental were likewise
submitted.
Investigation further reveals that 50 money orders were discovered missing from the
remittances of Cotabato Provincial Treasurer which were kept in the cabinet of the
Cashier. On or about March 2, 1965, the Cashier of the Commission noticed that 15
money orders turned over by respondent as part of his collections in the sale of
examination fee stamps were among the missing money orders. This triggered off
the filing of this case against the respondent.
On July 5, 1965, respondent admitted before the then Deputy Commissioner Alipio
Buenaventura having misappropriated an aggregate amount ranging from P3,000 to
P7,000, which he spent in night clubs, pleasure spots and other personal benefits.
Despite the testimonies of several witnesses regarding his confession, including that
of the then Deputy Commissioner himself, respondent, when asked to take the stand,
denied his previous admission.

Instead, he argued that the cash and accounts of the Cashier of the Civil Service
Commission, when examined by representatives of the Auditor's Office, did not
indicate any shortage and therefore there was no irregularity involved. This argument
is not well taken. Inasmuch as the remittances received by respondent from said
Provincial Treasurers of Negros Occidental and Cotabato were not in turn given
corresponding official receipts, naturally, the same were not reflected on the
Cashier's cash book.
The weakness of respondent's defense lies not so much on its failure to establish
convincingly his innocence as its irreconciliability with established facts. Obviously,
none of the circumstances in this case is consistent with his claim of innocence. On
the contrary, all of them put together produce reasonable assurance of respondent's
guilt.
In view of the foregoing, this Office finds respondent Alberto R. Benito guilty as
charged. Wherefore, he is dismissed from the service effective upon his receipt of
this decision.
In the interest of the service this decision is executed also on the date of his receipt
of this decision.
Benito appealed to the Civil Service Board of Appeals from the Commissioner's decision dismissing
him. The appeal was pending at the time when he assassinated Moncayo (Exh. I).
The foregoing antecedents of the assassination shed light on the remark which the victim, Moncayo,
allegedly made upon seeing Benito in the compound of the Civil Service Commission near the
canteen at eleven o'clock in the morning of December 12, 1969 (about six hours before the
shooting): "Nagiistambay pala dito and magnanakaw." (Exh. A or 1); or, as Benito testified, Moncayo
said: "Hindi ko alam na itong Civil Service pala ay istambayan ng magnanakaw." (27 tsn December
26, 1969).
Mitigating circumstance of immediate vindication of a grave offense. Benito contends that
Moncayo insulted him when he (Moncayo) remarked that a thief was loitering in the premises of the
Civil Service Commission. Benito argues that that remark "was tantamount to kicking a man already
down and to rubbing salt into a raw wound" and that, as it was made publicly and in a loud voice, he
was exposed to ridicule in the presence of his officemates.
Benito attached to his motion a copy of the decision of Judge Jose C. Colayco dated January 16,
1975, acquitting him of the charge of malversation in connection with his alleged misappropriation of
the fees collected from the examinees of the 1974 patrolman examination. That same decision
makes reference to Benito's exoneration from the administrative charge. The court's decision reads
as follows:
The accused is charged with malversation under the following information:
That on or about and during the period comprised between October
17, 1964, to February, 1965, inclusive, in the City of Manila
Philippines, the said accused being then employed as Clerk I of the
Civil Service Commission, a branch of the government of the
Republic of the Philippines, among whose duties were to accept
payments of fees collected from the examinees of the 1964
Patrolman examination, and by reason of his said position received

the total amount of P3,536.00, with the duty to turn over and/or
account for his collections to the cashier of the Civil Service
Commission immediately or upon demand but the said accused once
in possession of the said amount of P3,536.00, with intent to defraud,
despite repeated demands made upon him to turn over and to
account for the same, did then and there willfully, unlawfully and
feloniously misappropriate, misapply and convert and malverse the
said amount to his own personal use and benefit, to the detriment of
public interest and to the damage and prejudice of the said Civil
Service Commission in the said amount of P3,536.00, Philippine
currency.
Contrary to law.
The evidence shows that the accused had an appointment as clerk in the Civil
Service Commission from May 27, 1964, as clerk I, range 23 from June 1, 1965 and
as clerk I, range 26 from July 23, 1965 (Exhibits A, A-1, A-2). He had the duty, among
others, of selling Civil Service examination- fee stamps and to receive payment
therefor, as well as to receive remittances of money orders and checks from the
provincial treasurers for payments of examination fee stamps (Exhibit B).
Teodoro Abarquez, a cashier of the Civil Service Commission during the period
alleged in the information, testified in his direct examination that Benito was working
in his office; that one of the duties that he assigned to him was to sell examination
fee stamps; that it was customary for him to give stamps to Benito at the start of
office hours in the morning and that Benito turned over to him the proceeds of the
sale, as well as the unsold stamps, at the close of office hours in the afternoon; that
one afternoon he noticed that Benito turned over to him 50 money orders from
Cotabato, together with some cash, as proceeds of the sale of stamps for that day;
that he remembered that he was missing money orders from one of his cabinets
where he kept them; that when he discovered that the 50 money orders were those
which were missing, he reported the matter to Pedro Moncayo, the chief
administrative officer; on March 1, 1965; that the money orders were for P2.00 each,
and were payments of the examination fees from Cotabato (Exhibit F); that he
discovered the loss of the 50 money orders on February 28, 1965 and reported it to
Moncayo on March 1, 1965, together with the list of missing orders (Exhibit M); that
after receiving the report, Moncayo called Benito to the office of Abarquez where he
admitted taking the missing money orders; that Moncayo submitted a memorandum
to the Commissioner, dated October 21, 1965, after giving Benito a chance to refund
the value of the money orders (Exhibit O). Alipio Buenaventura, acting Deputy
Commissioner at the time, and Eliseo S. Gatchalian, budget officer, testified that
when Benito was confronted with the report of Moncayo and Abarquez, he admitted
that he misappropriated about P3,000.00 because of bad company and that he
asked for a chance to refund the money.
Under cross-examination, Abarquez elucidated his testimony in his direct
examination and explained that when Benito turned over the proceeds of the sale of
stamps for that particular day, he kept the sum of P100.00 and replaced it with the 50
money orders that he had taken from the cashier's office to cover up the money that
he had pocketed. When he was asked when he discovered that Benito substituted
the 50 money orders from Cotabato, he answered that he checked them the
following night (March 2, 1965) with the list of money orders remitted by the

Provincial treasurer (Exhibits F, F-1); but when he was confronted with his affidavit
which he executed on April 18, 1966 (Exhibit R), he reluctantly admitted that he had
only verified 15 money orders missing as of April 18, 1966 and that he did not keep
any record of the money and the money orders given to him by Benito on March 1,
1965.
He also admitted that the room where he kept the money orders in an unlocked
drawer was also occupied by two other persons, and that this was the first time that
he had not followed the usual procedure of keeping them in the safe. He further
admitted that, although regular examinations were conducted during the period of
October 1, 1964 to February 28, 1965 by the examiners of the Civil Service
Commission and the auditors of the General Auditing Office, they did not find any
shortage in the accounts of Benito.
Finally, when the Court asked him what happened to the 50 money orders, at first he
hinted that they were not deposited with the Bureau of Treasury because they were
reported missing; but when pressed further, he said that he deposited them, but did
not issue any official receipt for them. When asked if he had any evidence to show
that they were actually deposited, he admitted that he could not even remember
when he deposited them.
The testimony of Teodoro Abarquez upon which the prosecution has built its case, is
too weak and shaky to sustain a finding of guilt because of his glaring
inconsistencies, contradictions and gaps in memory. The prosecution has failed to
present convincing evidence that the 50 money orders were even lost: According to
Abarquez he had only verified the loss of 15 on April 18, 1966, although he testified
earlier that he determined the loss of 50 the night after March 1, 1965.
The examiners of the Civil Service Commission and the auditors of the General
Auditing Office did not find any irregularity in the cash accountability of Benito,
according to Abarquez. This was corroborated by Romeo Jarabelo, auditor of the
Commission on Audit and Miguel Games, auditing examiner assigned to the Civil
Service Commission, who testified for the accused. Benito was in fact exonorated
the administrative charge filed against him for the time same transaction (Exhibit E).
In fact, the testimony of Abarquez under cross-examination that he has not issued
any official receipt for the 50 money orders and his inability to prove that he
deposited them with the bureau of Treasury gives rise to the suspicion that other
persons, not the accused, may have stolen the 50 missing money orders. Even
without taking into account the testimony of the accused, who denied the testimonies
of the witnesses for the prosecution, the court believes that the prosecution has
failed to prove the guilt of the accused.
WHEREFORE, judgment is hereby rendered acquitting the accused, with costs de
oficio.
The Solicitor General argues that the defamatory remark imputed to Moncayo cannot give rise to the
mitigating circumstance of vindication of a grave offense because it was not specifically directed at
Benito. The prosecution notes that the remark was uttered by Moncayo at eleven o'clock in the
morning. According to Benito's testimony (not consistent with his confession), he saw Moncayo three
hours later or at two o'clock in the afternoon and inquired from him about his case and Moncayo said
that he had already submitted his report and he could not do anything more about Benito's case (26

tan). As already stated, the assassination was perpetrated at around five o'clock in the afternoon of
the same day.
Assuming that Moncayo's remark was directed at Benito, we see no justification under the
circumstances recited above for changing our prior opinion that the mitigating circumstance of
"haber ejecutado el hecho en vindicacion proxima de una ofensa grave, causada al autor del delito,"
cannot be appreciated in Benito's favor. As aptly stated by the ponente, Justice Esguerra, Benito
"had more than sufficient time to suppress his emotion over said remark if he ever did resent it."
"La apreciacion de la proximidad queda al arbitrio del tribunal; el Tribunal Supremo (de Espaa) no
ha apreciado la proximidad ... cuando la ofensa se realizo por la maana y el delito tuvo lugar por
la tarde (Sentencia de 11 noviembre 1921); por regla general no es proxima cuando transcurre
tiempo suficiente para la razon recobre su imperio sobreponiendose a la pasion (Sentencias de 28
mayo 1882, 4 noviembre 1893, 24 junio 1908, etc.) ... Si falta el requisito de la proximidad debe
desestimarse (Sentencia de 3 julio 1950). Exige gravedad en la ofensa y proximada en la reaccion."
(Note 9, 1 Cuello Calon, Derecho Penal. 1975 Ed., p. 564).
The Spanish Supreme Court also held that "no puede apreciarse esta circunstancia atenuante en
favor del autor de un homicidio cometido 'algunas horas despues de haberle invitado el interfecto a
renir y golpeado en el pecho con las manos', porque el tiempo transcurrido entre los golpes y la
muerte fue suficiente para que el animo del reo se serenase (Sentencia de 24 Junio 1908, Gaceta
28 Agosto 1909, IV-V Enciclopedia Juridica Espaola 1182).
The six-hour interval between the alleged grave offense committed by Moncayo against Benito and
the assassination was more than sufficient to enable Benito to recover his serenity. But instead of
using that time to regain his composure, he evolved the plan of liquidating Moncayo after office
hours. Benito literally ambushed Moncayo just a few minutes after the victim had left the office. He
acted with treachery and evident premeditation in perpetrating the cold-blooded murder.
The facts of the case strongly suggest that what really impelled Benito to assassinate Moncayo was
not the latter's alleged defamatory remark that the Civil Service Commission compound was a
hangout for a thief or for thieves but the refusal of Moncayo to change his report so as to favor
Benito. Benito did not act primarily to vindicate an alleged grave offense to himself but mainly to
chastise Moncayo for having exposed the alleged anomalies or defraudation committed by Benito
and for obstinately refusing to change his report.
Aggravating circumstance of disregard of rank. Benito contends that disregard of rank should not
be considered against him because there was no evidence that he "deliberately intended to offend or
insult the rank" of Moncayo. That contention has no merit.
It should be borne in mind that the victim was a ranking official of the Civil Service Commission and
that the killer was a clerk in the same office who resented the victim's condemnatory report against
him. In that situation, the existence of the aggravating circumstance of "desprecio del respeto que
por la dignidad mereciere el ofendido" is manifest.
The instant case is similar to a case where the chief of the secret service division killed his superior,
the chief of police (People vs. Hollero, 88 Phil. 167) and to the killing of the acting Spanish consul by
his subordinate, the chancellor of the consulate, who had misappropriated the funds of the
consulate, which misappropriation was discovered by the victim (People vs. Martinez Godinez, 106
Phil, 597, 606). In these two cases the murder was aggravated by disregard of rank.
WHEREFORE, the motion for reconsideration is denied.

SO ORDERED.

April 16, 1934

G.R. Nos. 39708-09
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
LEOVIGILDO DAVID, defendant-appellant.
Manuel S. Banzon, Eligio Lagman, Alberto Aquino and Vicente J Francisco for
appellant.
Office of the Solicitor-General Hilado for appellee.

VILLA-REAL, J.:
This case comprises two appeals taken by the defendant Leovigildo David from the
judgment rendered by the Court of First Instance of Bataan in criminal cases Nos.
3310 (G.R. No. 39708) and 3296 (G.R. No. 39709), the dispositive part of which
reads as follows:
Wherefore, in criminal case No. 3310, for frustrated murder, the court finds the
defendant Leovigildo David guilty of frustrated murder, without any aggravating nor
mitigating circumstances and, therefore, sentences him to twelve (12) years and one
(1) day of reclusion temporal with the accessory penalties of the law, to indemnify
the offended party Jose V. Reyes in the sum of one thousand pesos, with no subsidiary
imprisonment in case of insolvency, and to pay the costs.
The penalty of reclusion has been imposed instead of cadena following the doctrine
laid down in the case of People vs. Orifon (57 Phil., 594).
In criminal case No. 3296, for discharge of firearms with less serious physical
injuries, the court finds the defendant Leovigildo David guilty of the said crime and
sentences him to two (2) years, eleven (11 months and eleven (11) days of prision

correccional, with the accessory penalties of the law, and to pay the costs. So

ordered.
In support of his appeal, the defendant-appellant assigns the following alleged errors
as committed by the trial court in its aforesaid decision, to wit:
1. In holding the defendant-appellant guilty of the crime of frustrated murder in the
above entitled case No. 3310, and consequently in sentencing him to reclusion
temporal, to indemnify the offended party and to pay the costs.
2. In holding the defendant-appellant guilty of the crime of discharged of firearm with
less serious physical injuries with which he was charged in the above entitled case No.
3296 and sentencing him, by virtue of the same, to prision correccional, with costs.
3. In adopting the prosecution's theory that the defendant, with deliberate intent to kill
Jose V. Reyes, fired from behind four revolver shots at the latter.
4. In not accepting the theory of the defense that the defendant, in firing his revolver
at the offended party, did not intend to kill the latter but he did so in defense of his
father and while the offended party was facing him.
5. In not acquitting the defendant-appellant of the charges in the two above entitled
case.
The two cases at bar arose from two informations filed by the provincial fiscal of
Bataan in the justice of the peace court of Dinalupihan, the one against Leovigildo
David and Teodoro David for frustrated murder committed on the person of Jose V.
Reyes at the time, place and in the manner described in the corresponding information
and the other against said Leovigildo David for discharge of firearm with less serious
physical injuries committed on the person of German Pinili at the time, place and in
the manner described in the corresponding information. After preliminary
investigations had been duly conducted and the cases forwarded to the Court of First
Instance of Bataan, the same provincial fiscal filed the following informations:

On or about April 18, 1931, in the municipality of Dinalupihan, Province of Bataan,

Philippine islands, and within the jurisdiction of this Court of First Instance, the
abovenamed defendant Leovigildo David willfully, illegally and criminally shot at
German Pinili with his revolver, the bullet penetrating the latter's left side and lodging
itself in the left scapula, as a result of which said German Pinili was under medical
treatment for about 25 days.
That on or about April 18, 1931, in the barrio of Luacan, municipality Dinalupihan,
Province of Bataan, Philippine Islands, and within the jurisdiction of this court, the
said defendant, without any justifiable motive whatsoever and with deliberate intent to
kill Jose V. Reyes with treachery and evident premeditation, willfully, illegally and
criminally, fired four revolver shots at Jose V. Reyes, who then had his back toward
the defendant, inflicting upon him a serious bullet wound at the back above the left
clavicle, the medical treatment of which lasted about seventy-seven (77) days, having
thereby performed all the acts of execution which should have, as a consequence,
produced the crime of murder on the person of the said Jose V. Reyes, which,
nevertheless, was not consummated by reason of causes independent of the will of the
said defendant. The offended party spent about one thousand pesos for the treatment
of his wound.
The defendant is a recidivist, having been formerly convicted of the offense of less
serious physical injuries in criminal case No. 2901 of this court, by virtue of a final
and executory judgment dated December 8, 1927, the penalty of which was served by
the said defendant.
Contrary to the provisions of article 403, in connection with those article 3, paragraph
2, of the Penal Code, and with the aggravating circumstance of recidivism.
From the documentary as well as the oral evidence presented at the joint trial of the
two case, the following pertinent facts, which are necessary for the resolution of the
questions raised in these appeals, have been proven beyond reasonable doubt, to wit:
The herein defendant-appellant Leovigildo David is the son of Teodoro David,
ademocrata candidate for municipal president of Dinalupihan, and the offended

party Jose V. Reyes is the brother of Emilio Reyes, nacionalista candidate for
member of the provincial board of Bataan, both during the general elections of 1931.
While Emilio Reyes and Teodoro David were engaged in an argument after the former
had quarreled with the aforesaid defendant-appellant, then an election inspector,
because said Emilio Reyes wanted to see the list of registered voters, Jose V. Reyes,
the complaint in criminal case No. 3310 and brother of Emilio Reyes, arrived at the
scene and asked who was making trouble. Upon hearing him, Teodoro David, in a
contemptuous tone, said in Tagalog: "Phse, ichura mong lalake" (Pshaw, you are but a
shrimp) and, opening the door of the car where he was, rushed upon his interlocutor
and the two engaged in a hand-to-hand fight during which both fell to the ground.
Teodoro David fell on his right side, face downwards, Jose V. Reyes on top of him.
The two constabulary soldiers present, who had arrived in the same car with Teodoro
David a few moments before, tried to prevent them from coming to blows but due to
the presence of many people who were witnessing the quarrel, were unable to make
timely intervention and succeeded in separating the combatants only after they had
already fallen to the ground, Cirilo Dullas raising Jose V. Reyes and holding him
aside, while Esteban Aninang did the same to Teodoro David and took him to his car.
While Jose V. Reyes was on top Teodoro David, there was heard a first shot, which
did not hit its mark, fired by the herein defendant Leovigildo David, later followed by
another which hit the stock of the gun carried by the constabulary soldier Cirilo Dullas
in his right hand as he held Jose V. Reyes with his left hand after separating the latter
from Teodoro David. Upon hearing the second shot and feeling the bullet hit the stock
of his gun, Dullas instinctively shoved Jose V. Reyes, whom he continued to hold by
the left arm with his left hand, causing the latter stagger and stoop to the right side, his
back toward the north whence the shots came. While Jose V. Reyes was thus stooping,
a third shot was heard, which hit the upper left hand side of Reyes' body, whereupon
he fell to the ground. Immediately thereafter, there rang a fourth shot which hit the left
axilla of the boy German Pinili, who was perched on top of a fence witnessing the
fight between Jose V. Reyes and Teodoro David. Jose V. Reyes was immediately
brought by his brother Emilio Reyes and others to Dr. Gonzalo Nuguid's clinic in
Orani, Bataan, where he was given first aid, while the constabulary soldiers seized the
revolver of the defendant Leovigildo David and placed him under arrest. In the

chamber of the revolver of the defendant Leovigildo David were found four empty
cartridges. Constabulary Captain Cirilo Legaspi, who had been notified of the
incident, immediately ordered the seizure of Jose V. Reyes' revolver which was found
in a box in the latter's house, while he, accompanied by his brother Emilio Reyes, was
being treated by the doctor.
The first question to be decided in this appeal, in connection with the criminal case for
frustrated murder, is one of fact and consists in whether or not Jose V. Reyes had his
back toward Leovigildo David when the latter shot at him.
The witnesses of the prosecution testified in the negative stating that when the
defendant fired the shot which hit Jose V. Reyes, the latter was on top of Teodoro
David, the defendant's father, and in the act of hitting Teodoro on the forehead for the
second time the butt of his revolver. The testimony of the constabulary soldier Esteban
Aninang, who stated that the violent shove given Jose V. Reyes by his companion
Cirilo Dullas caused the said Jose V. Reyes to stagger and stoop to the right side and
at the same time to turn his back toward the defendant simultaneously with the third
shot, corroborates the testimony of the witnesses for the defense that Jose V. Reyes
was facing the defendant.
The second question of fact to be decided is whether or not Jose V. Reyes had struck
Teodoro David with the butt of his revolver, while the latter was under him, and was
in the act of striking said Teodoro David for the second time when Leovigildo David
fired the shot which hit him.
On this point, the testimony of the two constabulary soldiers, who may be regarded as
impartial witnesses, is unanimous in that when Jose V. Reyes received the bullet
wound, he was already standing far from Teodoro David and beside the constabulary
soldier Cirilo Dullas who had dragged him away from said Teodoro David.
From the foregoing, it may be stated as a conclusion of fact that when Leovigildo
David fired the shot that hit Jose V. Reyes, the latter was facing him, and if the bullet
hit Jose V. Reyes on the back, it was due to the fact that his position was changed

upon being shoved by the constabulary soldier; and that when the said complainant
was already far from Teodoro David.
Now then, do the above facts, which were proven beyond reasonable doubt at the trial,
constitute the crime of frustrated murder for which the defendant Leovigildo David
has been convicted and sentenced?
Inasmuch as the defendant fired the shot facing the victim and in the presence of
many people, he did not employ means, methods and forms in the execution of the
crime, which tend directly and specially to insure its execution without risk to himself
arising from the defense which the offended party might make (article 10, No. 2, of
the old Penal Code). The very fact that Jose V. Reyes had been shoved by the
constabulary soldier Cirilo Dullas shows that he could have evaded the shot and
thereby frustrate the defendant's intent. Therefore, the circumstance of treachery was
not present in the commission of the crime.
Did the defendant Leovigildo David have the intention of killing Jose V. Reyes?
The defendant-appellant invokes the defense of a relative to exempt himself from
criminal liability (article 8, No. 5, of the old Penal Code). It has been shown that when
the said defendant fired at Jose V. Reyes, the aggression had already ceased and,
therefore, the motive for defense; and in firing at his victim, the defendant's intention
could not have been only to repel the aggression against his father but also to kill Jose
V. Reyes. Therefore, the intention of the defendant Leovigildo David to kill Jose V.
Reyes is obvious.
The third question to be decided is whether or not the defendant Leovigildo David,
having intended to kill Jose V. Reyes, had performed all the acts of execution which
should have produced the latter's death, but did not produce it by reason of causes
independent of his will (article 3 of the old Penal Code).
The doctors, who testified as experts on whether or not the wound received by Jose V.
Reyes was necessarily mortal, are not unanimous.

Dr. Anzures testified as follows: "As to the seriousness of the wounds, I can only
make approximate statements, not accurate ones, because in order to determine the
seriousness of a wound a doctor should see the organs internally affected by it. No
doctor can with certainly state the seriousness of a wound for it is determined only
during the autopsy. . . . " (T. s. n., pp. 144, 145.) "On the basis of general principles,
the wound was not mortal. The general principles I am referring to relate to the mortal
positions of the organs and tissues." (T. s. n., pp. 151.) "Judging from the position of
the scars, I am of the opinion that the left lung was affected but the affected part is
near the border." "It would be perforated. The effect should be internal hemorrhage
but the flow of the blood would be mortal because the blood vessels in that region are
small." "All the wounds, including those caused at the base of the lungs, are not
mortal." (T. s. n., p. 152.)
It will be seen that the testimony of Dr. Anzures is purely hypothetical because he has
seen nothing but the scars, but nevertheless he is of the opinion that if the lung had
been perforated, it would result in an internal hemorrhage and the flow of the blood
would be mortal because the blood vessels of that part are small.
Dr. Afable, who may be said to have saved the offended party's life, testified as
follows: "Taking all the abovestated facts into consideration, I arrived at the
conclusion that the blood found in the lung of Mr. Reyes had its origin in the injury or
wound in the upper left part of the chest." (T. s. n., p. 6.) "I am of the opinion that had
not the fluid been drained from the patient's lung, it could have caused his death,
taking into consideration the condition in which he was then found." (T. s. n., p. 8.)
Answering a question regarding the accumulation of the fluid in the pleural region due
to the congestion of the lung, he said: "That is one of the causes of death in this case,
and a continuous internal hemorrhage might cause death as well." (T. s. n., p. 16.)
From all the above expert testimony, it may be inferred that had it not been for the
timely and adequate medical intervention, the offended party Jose V. Reyes would
have succumbed from the wound in his lung. A wound that may, by itself alone,
produce a similar consequence, is mortal.

The defendant-appellant Leovigildo David, in firing his revolver and hitting Jose V.
Reyes on the upper left hand part of his body, piercing it from side to side and
perforating the lung, then performed all the acts of execution which should have
produced the latter's death but did not produce it by reason of timely and adequate
intervention of medical science, which was completely independent of his will.
The facts proven at the trial as committed by the defendant-appellant Leovigildo
David constitute the crime of frustrated homicide, defined and penalized in article 404
of the old Penal Code which was in force at the time of the commission of the crime.
The penalty prescribed by law for the said crime, if consummated, is reclusion
temporal in its full extent. Inasmuch as the crime with which Leovigildo David is
charged herein is merely frustrated, the said penalty should be one degree lower, that
is, prision mayor in its full extent, the duration of which is from six years and one
day to twelve years. In order to determine the penalty, the presence of the mitigating
circumstance of immediate vindication of a grave offense committed against an
ascendant (article 9, No. 5, of the Penal Code) should be taken into consideration,
without any aggravating circumstance to compensate the same, for which reason the
said penalty should be imposed in its minimum period, that is, from six years and one
day to eight years ofprision mayor (article 81, rule 2, of the Penal Code).
As to the offended party German Pinili, the evidence shows beyond reasonable doubt
that one of the shots fired by the defendant Leovigildo David hit him on the left axilla,
the treatment of the wound having lasted about twenty-five days.
Although it is true that the shot, which hit the boy German Pinili, was not aimed at
him, however, it cannot be considered accidental because, it having been voluntarily
aimed at Jose V. Reyes, the defendant-appellant Leovigildo David is liable for the
consequences of his act, in accordance with the provisions of article 1, paragraph 3, of
the old Penal Code, which provides that "any person voluntarily committing a felony
(delito) or misdemeanor (falta) shall incur criminal liability, although the wrongful
act done be different from that which he intended."
Although the crime, which the defendant Leovigildo David had intended to commit
against Jose V. Reyes, was homicide, the crime committed by him against the boy

German Pinili is discharge of firearms with less serious physical injuries, and the
penalty which should be imposed upon him is that which corresponds to this complex
crime, in its maximum period (article 64, paragraph 2, of the old Penal Code).
However, inasmuch as he is charged only with the said complex crime, the only
penalty that may be imposed upon him is that corresponding to this offense of
discharge of firearms with less serious physical injuries, defined and penalized in
article 408, in connection with article 418 of the old Penal Code, with prision
correccional in its minimum and medium periods, that is, from six months and one
day to four years and two months, which should be imposed in its maximum period,
that is, from two years and two months, in accordance with the rule established in
article 89, paragraph 2, of the same Code. There being no modifying circumstance to
be taken into consideration, the said penalty should be imposed in its medium period,
that is, from three years, four months and eight days to three years, nine months and
three days.
In both cases, Act No. 4103, otherwise known as the Indeterminate Sentence law, is
applicable to the defendant-appellant, and consequently the maximum of the penalty,
which he should suffer in case No. 3310, should be the maximum of that which should
be imposed upon him under the law, that is, eight years of prision mayor; and the
minimum, a penalty embraced within that next lower in degree to that prescribed by
law for the crime of frustrated homicide, which is prision correccional in its full
extent, the duration of which is from six months and one day to six years, that is one
year and one day of prision correccional. Therefore, the total extent of the penalty to
be imposed upon the defendant for the crime of frustrated homicide should be from
one year and one day to eight years.
In criminal case No. 3296, for the complex crime of discharge of firearms with less
serious physical injuries, the maximum of the penalty, which should be imposed upon
the defendant, is the maximum period of the penalty prescribed by the law, that is,
three years, nine months and three days of prision correccional, and the minimum,
four months and one day of arresto mayor, a penalty embraced within that next
lower in degree which is arresto mayor in its medium and maximum periods, the
duration of which is from four months and one day to six months, and consequently

the full extent of the penalty which should be imposed upon him is from four months
and one day to three years, nine months and three days.
The total amount of the expenses incurred by the offended party for medical
assistance is P1,030.79.
Wherefore, the judgment appealed from is hereby modified, and the defendant
Leovigildo David is declared guilty of the crime of frustrated homicide in criminal
case No. 3310 of the Court of First Instance of Bataan (G. R. No. 39709) and
sentenced to one (1) year and one (1) day of prision correccional to eight (8) years
of prision mayor and to indemnify the offended party Jose V. Reyes for damages in
the sum of P1,030.79; and in criminal case No. 3296 of the said Court of First
Instance of Bataan (G.R. No. 39708), he is declared guilty of the crime of discharged
of firearms with less serious physical injuries, and sentenced to four months and one
day to three years, nine months and three days, with the costs of both instances in the
two cases against the appellant. So ordered.
Malcolm, Abad Santos, Butte and D

G.R. No. 4971

September 23, 1909

THE UNITED STATES, plaintiff,

vs.
AUGUSTUS HICKS, defendant.
Office of the Solicitor-General Harvey for plaintiff.
Jose Robles Lahesa for defendant.
TORRES, J.:
For about five years, from September, 1902, to November, 1907, Augustus Hicks, an Afro-American,
and Agustina Sola, a Christian Moro woman, illicitly lived together in the municipality of Parang,
Cotabato, Moro Province, until trouble arising between them in the last-mentioned month of 1907,
Agustina quitted Hick's house, and, separation from him, went to live with her brother-in-law, Luis
Corrales. A few days later she contracted new relations with another negro named Wallace Current,
a corporal in the Army who then went to live in the said house.

On the 21st of December following, at about 7:30 p. m., Augustus Hicks together with a soldier
named Lloyd Nickens called at said house, and from the sala called out to his old mistress who was
in her room with Corporal Current, and after conversing with her in the Moro dialect for a few
minutes, asked the corporal to come out of said room; in response thereto the corporal appeared at
the door of the room, and after a short conversation, Current approached Hicks and they shook
hands, when Hicks asked him the following question: "Did I not tell you to leave this woman alone?,"
to which Current replied: "That is all right, she told me that she did not want to live with you any
longer, but if she wishes, she may quit me, and you can live with her." The accused then replied:
"God damn, I have made up my mind;" and as Corporal Current saw that Hicks, when, he said this,
was drawing a revolver from his trousers' pocket, he caught him by the hand, but the latter,
snatching his hand roughly away, said: "Don't do that," whereupon Current jumped into the room,
hiding himself behind the partition, just as Hicks drew his revolver and fired at Agustina Sola who
was close by in the sala of the house. The bullet struck her in the left side of the breast; she fell to
the ground, and died in a little more than an hour later.
Upon hearing the shot Edward Robinson, who was also in the house, went to render assistance and
wrested the weapon from the hand of the accused. The latter immediately fled from the house and
gave himself up to the chief of police of the town, H. L. Martin, asking him to lock him up in jail; and,
when a few minutes later a policeman came running in and reported that Hicks had fired a shot at
Agustina, the said chief of police caused Hicks to be arrested. The latter, when once in jail, threw
eight revolver cartridges out of the window; these were picked up by a policeman who reported the
occurrence and delivered the cartridges to his chief.
In view of the foregoing the provincial fiscal on the 8th of February, 1908, filed a complaint with the
Court of First Instance of said province charging Augustus Hicks with the crime of murder.
Proceedings were instituted, the trial court, after hearing the evidence adduced, entered judgment
on the 10th of September of the same year, sentencing the accused to the penalty of death, to be
executed according to the law, to indemnify the heirs of the deceased in the sum of P1,000, and to
pay the costs. The case has been submitted to this court for review.
The above-stated facts, which have been fully proven in the present case, constitute the crime of
murder, defined and punished by article 403 of the Penal Code, in that the woman Agustina Sola met
a violent death, with the qualifying circumstance of treachery (alevosia), she being suddenly and
roughly attacked and unexpectedly fired upon with a 45-caliber revolver, at close, if not point blank
range, while the injured woman was unarmed and unprepared, and at a time when she was listening
to a conversation, in which she was concerned, between her aggressor and third person, and after
usual and customary words had passed between her and her aggressor. From all of the foregoing it
is logically inferred that means, manners, and forms were employed in attack that directly and
specially insured the consummation of the crime without such risk to the author thereof as might
have been offered by the victim who, owing to the suddenness of the attack, was doubtless unable
to flee from the place where she was standing, or even escape or divert the weapon.
The accused, Augustus Hicks, pleaded not guilty, but notwithstanding his exculpatory allegations
which were certainly not borne out at the trial, the evidence in the case is absolutely at variance
therewith and conclusively establishes, beyond peradventure of doubt, his culpability as the sole fully
convicted author of the violent and treacherous death of his former mistress, Agustina Sola.
It is alleged by the accused that when he withdrew his hand from that of Current, who had seized
him, he fell backward but managed to support himself on his two hands, and when he got up again
the said corporal threatened him with a revolver thrust into his face; whereupon he also drew his
revolver, just as Edward Robinson caught him from behind, when his revolver went off, the bullet
striking the deceased.

This allegation appears to be at variance with the testimony of the witnesses Wallace Current,
Edward Robinson, Luis Corrales, and Lloyd Nickens in their respective declaration, especially with
that of the second and third, who witnessed the actual firing of the shot by the aggressor at the
deceased, as shown by the fact that Robinson immediately approached the accused in order to take
his weapon away from him which he succeeded in doing after a brief struggle, whereupon the
aggressor ran out of the house. Thus, the shot that struck the deceased in the breast and caused
her death was not due to an accident but to a willful and premeditated act on the part of the
aggressor with intent to deprive the victim of her life.
In addition to the qualifying circumstance of treachery, as above referred to, the presence of other
aggravating circumstances, such as premeditation, and the fact that the crime was committed in the
dwelling of the deceased should be taken into consideration. The last-mentioned circumstances
appears proven from the testimony of several witnesses who were examined at the trial of the case.
Inasmuch as in the present case the crime has already been qualified as committed with treachery,
the circumstance of premeditation should only be considered as a merely generic one.
Premeditation is, however, manifest and evident by reason of the open acts executed by the
accused. According to the testimony of Charles Gatchery and Eugenio R. Whited, Hicks asked leave
from the former to be absent from the canteen where he was working on the morning of the day
when the affray occurred, alleging that his mind was unsettled and that he feared getting into trouble.
It is also shown by the fact that Whited, who was in Hicks' house about noon upon the latter's
invitation, and while both where drinking gin, and while the revolver, the instrument of the crime, was
lying on the table on which were also several loaded cartridges, heard the accused repeatedly say,
referring to the deceased, that her time had come, adding that he would rather see her dead than in
the arms of another man, and when the accused went to bed apparently very much worried, and
refusing to answer when called, the witness left him. On the day after the crime the police found on a
table in the cuprit's house several loaded cartridges, a bottle of oil and a piece of cloth used
undoubtedly for cleaning the revolver.
All the foregoing circumstances conclusively prove that the accused, deliberately and after due
reflection had resolved to kill the woman who had left him for another man, and in order to
accomplish his perverse intention with safety, notwithstanding the fact that he was already provided
with a clean and well-prepared weapon and carried other loaded cartridges besides those already in
his revolver, he entered the house, greeting everyone courteously and conversed with his victim, in
what appeared to be a proper manner, disguising his intention and claiming her by his apparent
repose and tranquility, doubtless in order to successfully accomplish his criminal design, behaving
himself properly as he had planed to do beforehand.
As against the two foregoing aggravating circumstances no mitigating circumstances is present, not
even that mentioned in paragraph 7 of article 9 of the Penal Code, to wit loss of reason and selfcontrol produced by jealousy as alleged by the defense, inasmuch as the only causes which mitigate
the criminal responsibility for the loss of self-control are such as originate from legitimate feelings,
not those which arise from vicious, unworthy, and immoral passions.
From the foregoing considerations, and as the judgment appealed from is in accordance with the
law, it is our opinion that the same should be affirmed, as we do hereby affirm it with costs, provided,
however, that the death penalty shall be executed according to the law in force, and that in the event
of a pardon being granted, the culprit shall suffer the accessory penalties of article 53 of the Penal
Code unless the same be expressly remitted in the pardon. So ordered.

[G.R. No. 132169. October 26, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SANICO NUEVO @

SANY, accused-appellant.
DECISION
QUISUMBING, J.:

On automatic review is the decision of the Regional Trial Court of Sindangan, Zamboanga
del Norte, Branch 11, finding accused Sanico Nuevo @ Sany guilty of rape and sentencing him
to death.
[1]

His conviction stemmed from the following information:

[2]

That, in the evening, on or about the 4th day of December, 1994, in the municipality
of Godod, Zamboanga del Norte, within the jurisdiction of this Honorable Court, the
said accused, moved by lewd and unchaste design and by means of force, violence
and intimidation, did then and there wilfully, unlawfully and feloniously succeed in
having sexual intercourse with one ROBERTA CIDO, a 20 year old married woman,
against her will and without her consent.
CONTRARY TO LAW (Viol. of Art. 335, Revised Penal Code).
A plea of not guilty was entered upon arraignment.
During trial, the prosecution presented three witnesses, namely: (1) complainant Roberta
Cido; (2) Anselmo Cido, Jr., the complainants husband; and (3) Dr. Esmeralda Nadela, a resident
physician of the Sindangan District Hospital, Sindangan, Zamboanga del Norte. They testified as
follows:
ROBERTA CIDO recalled that at about 9:00 oclock in the evening of December 4, 1994,
Sanico Nuevo passed by their house and invited her husband Anselmo Cido, Jr., to a drinking
spree at the house of Anselmo, Sr., her father-in-law. She was left at home with her 10-monthold daughter and her nine-year-old niece Gemma Atis. They slept in the living
room, cum bedroom, the only room in the house. At around 11:00 P.M., appellant
surreptitiously returned and entered their room. She was awakened when appellant held her neck,
pinned down her arms and took off her clothing. While Sanico was removing her panties, she
struggled to extricate herself but to no avail. She was unable to shout because appellant was
covering her mouth. While she was lying on her back, appellant laid on top of her and proceeded
to forcibly have sexual intercourse with her, at the same time pinning her down with a bolo. As
this was happening her niece Gemma, who was present, witnessed what was being done to
[3]

[4]

[5]

her.Appellant even warned Gemma not to reveal what she saw and at the same time threatened
Roberta not to tell her husband about the incident or else he would kill her. He thereafter left the
house.
[6]

Roberta further testified that her husband Anselmo, Jr., returned home only the morning
after. She immediately told her husband about the previous nights incident. The latter hastened to
the house of Sanico but did not find him. Appellant was arrested that same afternoon.
[7]

Although Roberta testified on cross-examination, that she did not see him because it was
very dark that night, she identified him through his voice. She was certain it was he because she
was very familiar with appellants voice. Not only have they been neighbors since childhood, she
also heard the appellant when he invited her husband earlier that evening, and when he warned
her and her niece not to tell anyone what happened.
[8]

For his part, ANSELMO CIDO, JR., corroborated part of his wifes story. He narrated that at
around 9:00 P.M., December 4, 1994, Sanico with companions dropped by their house and
invited him to a drinking spree in his fathers (Anselmo, Sr.) house, about 50 meters away from
theirs. While there, they drank until dawn. Sanico left his fathers place at around 11:00 P.M.,
purportedly to answer the call of nature, and returned only at around 1:00 A.M. of December 5,
1994. At the time Sanico left, Anselmo, Jr., observed that he was carrying an 18-inch bolo. When
Anselmo, Jr., arrived home early in the morning, his wife told him of her ordeal.
[9]

DR. ESMERALDA NADELA testified on her medical findings contained in her MedicoLegal Certificate dated December 6, 1994, which document she brought along and read in open
court. She said Roberta told her that the latter was submitting herself for medical examination
because she was raped, and that her last sexual contact with her husband was a week before the
incident. Nadela testified further that based on her examination conducted two days after the
alleged incident, no fresh injuries were actually found on the victim; that only old lacerations
were present; that such absence was possible due to the victims previous child birth; and that no
spermatozoa was found on the victim, which was likely because the examination was conducted
only two days after the alleged rape.
[10]

[11]

For the defense, two witnesses were presented. First was the appellant himself, SANICO
NUEVO. He declared that he knew Roberta since they were schoolmates in grade school and she
was a former neighbor. He lived about 100 meters from her house. Moreover, her husband
Anselmo, Jr., was his barkada. He recounted that at about 6:30 P.M., December 4, 1994, his
father and he went to the house of Anselmo, Sr., to buy Tanduay Rum and drank with their
friends Rudy and Ami Tinambakan. On the way, they had to pass by the house of Anselmo,
Jr. He denied he invited the younger Anselmo to go drinking as the latters house was already
close by. It was Anselmo, Jr., who later followed and joined them until around 10:30
P.M. Appellant said he stayed in the house of Anselmo, Sr., where he slept at around 12:00
oclock midnight. It was already 6:30 A.M. the following day when he woke up. He denied raping
Roberta. He added that the house of Anselmo, Sr., was only about 35 meters from the house of
Roberta.
[12]

The second witness for the defense was EMELIO NUEVO, brother of appellant. He
claimed that he was with his brother Sanico and two neighbors the night of the incident. He
corroborated his brothers story that they were drinking at the house of Anselmo, Sr., and he
noticed his brother asleep on the upper floor of Anselmo Sr.s house, when he left at around 5:00
[13]

A.M. early in the morning while the others were still dancing downstairs. He admitted, however,
that he told no one of seeing his brother sleep in the house of Anselmo Sr., even when he found
out that his brother was to be arrested, and even when he saw him tied up and already in the
custody of the police. He did not disclose this fact, even when he was already alone with his
other brother who was a councilor of their place. It was only in his testimony during trial that he
chose to reveal these facts in Sanicos defense. He also said he was not aware of any
misunderstanding between his brother and the spouses Roberta and Anselmo, Jr.
[14]

The trial court found the prosecutions version of events credible and disbelieved that of the
defense. It rendered judgment as follows:

IN VIEW OF THE FOREGOING, the Court finds the accused SANICO NUEVO
guilty beyond reasonable doubt of the crime charged in the above-quoted information
with aggravating circumstances of dwelling (Article 14, (3) of the Revised Penal
Code; People vs. Padilla, 242 SCRA 629) and committed in full view of the relative
within the third degree of consanguinity (Sec. 11 R.A. 7659), but since no mitigating
circumstances (sic) to offset the above aggravating circumstances, the Court hereby
sentences the accused Sanico Nuevo to suffer the maximum penalty provided by law
which is DEATH and to pay the private offended party in the sum of P50,000.00.
COSTS de officio.
SO ORDERED.

[15]

In his brief, appellant assigns one error only:

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT SANICO NUEVO
OF COMMITTING RAPE AGAINST ALLEGED VICTIM ROBERTA CIDO DESPITE
INSUFFICIENT EVIDENCE OF HIS POSITIVE IDENTIFICATION.
[16]

In resolving cases of rape, this Court is guided by the following principles: (a) an accusation
for rape can be made with facility; it is difficult to prove but even more difficult for the appellant,
although innocent, to disprove; (b) in view of the intrinsic nature of the crime where only two
persons are usually involved, the testimony of the complainant must be scrutinized with extreme
caution; (c) the evidence for the prosecution must stand or fall on its own merit, and cannot be
allowed to draw strength from the weakness of the evidence for the defense (People vs.
Quijada, 321 SCRA 426 [1999]); and (d) the evaluation of the trial court judges regarding the
credibility of witnesses deserves utmost respect on the ground that they are in the best position to
observe the demeanor, act, conduct, and attitude of the witnesses in court while testifying
(People vs. Maglente, 306 SCRA 546 [1999]).
In our view, the first issue for our resolution here is whether appellant was sufficiently
identified by the offended party based only on her recognition of the sound of his voice. The
second issue is whether the prosecutions evidence suffices for the conviction of rape and the
imposition of the death penalty on him.

Appellant denies he raped Roberta Cido. He questions the certainty of his identification as
the offender. He avers that the night of the rape, there was no moon and it was very dark. Nor
was there any showing of illumination from any source in and out of the house of the
victim. Further, she averred that she identified her rapist only because she recognized his
voice. According to appellant, such voice identification is insufficient to prove he was the rapist.
In People vs. Reyes, we held that once a person has gained familiarity with another,
identification becomes quite an easy task even from a considerable distance. In a number of
cases, we ruled that the sound of the voice of a person is an acceptable means of identification
where it is established that the witness and the accused knew each other personally and closely
for a number of years. Appellant did not deny that he and Roberta had known each other since
childhood and that appellant and Robertas husband were barkada. It is not impossible then
that complainant could immediately recognize appellant through his voice alone. In addition,
appellants face was very near the victim such that the victim could not have misidentified him,
even only by voice recognition.
[17]

[18]

[19]

[20]

[21]

According to appellant, Roberta claims she smelled marijuana on the rapist but she patently
made a mistake since he should have smelled of Tanduay Rum instead, because that was what he
drank. In addition, he argues that since no physical injury was found on Roberta to show that
there was force or intimidation inflicted on her, therefore, no rape had happened.
As testified to by Dr. Nadela, however, lacerations or signs of injury may not be present in
this case due to the fact that the victim had already given birth to a child. Moreover, according
to the victim, appellants penis was relatively small in size, about two and a half inches
long. This is consistent with Dr. Nadelas testimony that in some cases of women who have
already given birth, it would take an extra-large male organ to cause lacerations. According to
her, healed lacerations or the absence of spermatozoa in the vaginal canal do not negate rape.
We are, thus, constrained to say that appellants bland conclusion that no rape happened for
lack of physical injuries on the person of the victim is clearly a non-sequitur.
[22]

[23]

[24]

Appellants claim that Roberta should have smelled him reeking of liquor instead of
marijuana is beside the point and deserves scant consideration. Note that appellant and his five
other companions shared only four bottles of pocket-sized Tanduay mixed with softdrinks.
Thus, it was not unlikely that he did not smell strongly of liquor. Further, note that the drinking
spree started at 8:30 P.M., and it was barely two hours thereafter when appellant left the group,
according to prosecution witnesses. Besides, that Roberta said she detected the smell of
marijuana on her abuser does not change the fact that she identified him positively and without
any reservation as the perpetrator of the offense.
[25]

Considering the circumstances in this case, in the light of the testimony by the victim and
her witnesses as well as of those for the defense, we agree with the trial court that Roberta had
sufficiently identified appellant as the person who raped her, by means of force, violence and
intimidation, against her will and without her consent. Appellant is guilty beyond reasonable
doubt of the crime charged.
We are, however, constrained to disagree concerning the penalty imposed on him. An appeal
in a criminal case throws the entire case wide open for review and it is the duty of the appellate
court to correct errors, as may be found in the appealed judgment, even if unassigned. This
salutary principle governs our automatic review of death penalty cases as well.
[26]

Although not assigned as an error, it is our view that the trial court erred in appreciating the
qualifying circumstance under par. 3, Section 11, R.A. 7659, concerning the presence of a
relative, to justify the imposition of the death penalty.
[27]

In People vs. Amadore, we held that the attendance of any of the circumstances under the
provisions of Section 11 of Republic Act No. 7659, mandating the death penalty are in the nature
of qualifying circumstances and the absence of proper averment thereof in the complaint will bar
the imposition of that extreme penalty. The information in this case did not allege the
qualifying circumstance, that the rape was committed in full view of a niece (a relative within the
third degree of consanguinity). Because of this deficiency, appellant was not properly apprised of
the extent of the punishment which the charges against him entailed. Thus, it was an error to
consider the foregoing circumstance in the imposition of the proper penalty on appellant.
[28]

Further, while the decision of the trial court held that dwelling and the use of a deadly
weapon aggravated the crime committed, we find that these were not averred in the
information. The Revised Rules of Criminal Procedure, effective December 1, 2000, provides
that every complaint or information must state not only the qualifying but also the aggravating
circumstances with specificity. This requirement of procedure has retroactive effect and is
applicable to actions pending and undetermined at the time of their passage insofar as it is
favorable to the appellant. Procedural laws are retroactive in that sense and to that extent. Here,
it was error to appreciate dwelling and the use of a deadly weapon as aggravating circumstances
in the commission of the offense. In sum, we find that no aggravating as well as qualifying
circumstances have been properly pleaded and proved by the prosecution in this case. The result
is that the crime committed by appellant is only simple rape, which under Article 335 of the
Revised Penal Code as amended by R.A. 7659, the law prevailing at the time of commission
thereof, is punished only with reclusion perpetua.
[29]

[30]

Moreover, on the civil aspect, modification is also in order. Private complainant is entitled
not only to P50,000 as civil indemnity, but following current jurisprudence, also to P50,000 as
moral damages and P25,000 as exemplary damages.
WHEREFORE, the decision of the trial court is MODIFIED. The appellant is declared
GUILTY of the crime of simple rape beyond reasonable doubt, and he is hereby sentenced to
suffer the penalty ofreclusion perpetua. Conformably with prevailing jurisprudence, appellant is
also ordered to pay the offended party P50,000 as civil indemnity, P50,000 as moral damages
and P25,000 as exemplary damages.
SO ORDERED.

G.R. No. L-7094

March 29, 1912

THE UNITED STATES, plaintiff-appellee,

vs.
HILARIO DE LA CRUZ, defendant-appellant.

F.C. Fisher for appellant.

Acting Attorney-General Harvey for appellee.
CARSON, J.:
The guilt of the defendant and appellant of the crime of homicide of which he was convicted in the
court below is conclusively established by the evidenced of record.
The trial court was of opinion that its commission was not marked by either aggravating or
extenuating circumstances, and sentenced the convict to fourteen years eight months and one day
of reclusion temporal, the medium degree of the penalty prescribed by the code. Burt we are of
opinion that the extenuating circumstance set out in subsection 7 of article 9 should have been taken
into consideration, and that the prescribed penalty should have been imposed in its minimum
degree. Subsection 7 of article 9 is as follows:
The following are extenuating circumstances:
xxx

xxx

xxx

That of having acted upon an impulse so powerful as naturally to have produced passion
and obfuscation.
The evidence clearly discloses that the convict, in the heat of passion, killed the deceased, who had
theretofore been his querida (concubine or lover) upon discovering her in flagrante in carnal
communication with a mutual acquaintance. We think that under the circumstances the convict was
entitled to have this fact taken into consideration in extenuation of his offense under the provisions of
the above-cited article.
This was the view taken by the Court of Spain upon a similar state of facts as set forth in its
sentence of July 4, 1892, which is summarized by Viada (p. 69, in question 19, art. 9 of vol. 6) as
follows:
Shall he who kills a woman with whom he is living in concubinage for having caught her in
her underclothes with another party and afterwards shoots himself, inflicting a serious
wound, be responsible for that crime with the extenuating circumstance of having acted with
violent passion and obfuscation? The Audiencia of Santiago de Cuba did not so hold and its
judgment was reversed by the supreme court for the improper disregard of article 9, number
8, of the Penal Code for Cuba and Puerto Rico: "The facts held to be true by the trial court,
and which were the immediate cause of the crime by producing in the accused strong
emotion which impelled him to the criminal act and even to attempt his own life, were a
sufficient impulse in the natural and ordinary course to produce the violent passion and
obfuscation which the law regards as a special reason for extenuation, and as the judgment
did not take into consideration the 8th circumstance of article 9 of the code,
the Audiencia rendering it seems to have violated this legal provision."
It is true that in the case of U.S. vs. Hicks (14 Phil. Rep.., 217), we held that the "causes which
mitigate the criminal responsibility for the loss of self-control are such as originate from legitimate
feelings, not those which arise from vicious, unworthy, and immoral passions," and declined to give
the benefit of the provisions of this article to the convict in that case on the ground that the alleged
causes for his loss of self-control did not "originate from legitimate feelings." But in that case we
found as facts that:

All the foregoing circumstances conclusively prove that the accused, deliberately and after
due reflection had resolved to kill the woman who had left him for another man, and in order
to accomplish his perverse intention with safety, notwithstanding the fact that he was already
provided with a clean and well-prepared weapon and carried other loaded cartridges besides
those already in his revolver, he entered the house, greeting everyone courteously and
conversed with his victim, in what appeared to be in a proper manner, disguising his intention
and calming her by his apparent repose and tranquility, doubtless in order to successfully
accomplish his criminal design, behaving himself properly as he had planned to do
beforehand.
In the former case the cause alleged "passion and obfuscation" of the aggressor was the convict's
vexation, disappointment and deliberate anger engendered by the refusal of the woman to continue
to live in illicit relations with him, which she had a perfect right to do; his reason for killing her being
merely that he had elected to leave him and with his full knowledge to go and live with another man.
In the present case however, the impulse upon which defendant acted and which naturally
"produced passion and obfuscation" was not that the woman declined to have illicit relations with
him, but the sudden revelation that she was untrue to him, and his discovery of her in flagrante in the
arms of another. As said by the supreme court of Spain in the above-cited decision, this was a
"sufficient impulse" in the ordinary and natural course of things to produce the passion and
obfuscation which the law declares to be one of the extenuating circumstances to be taken into
consideration by the court.
Modified by a finding that the commission of the crime was marked with the extenuating
circumstance set out in subsection 7 of article 9, and by the reduction of the penalty of fourteen
years eight months and one day ofreclusion temporal to twelve years and one day of reclusion
temporal, the judgment of conviction and the sentence imposed by the trial court should be and are
hereby affirmed, with the costs of this instance against the appellant.

G.R. No. L-46530 April 10, 1939

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs. CATALINO RABAO,Defendant-Appellant.
Jose F. Oreta for appellant.
Office of the Solicitor-General Ozaeta and Assistant Attorney
Paredes, Jr. for appellee.
IMPERIAL, J.:

chanrobles virtual law library

This is an appeal from a judgment of the Court of First Instance of

Camarines Sur convicting the appellant of the crime of parricide and
sentencing him to an indeterminate penalty of from eight years and
one day of prision mayor to twenty years of reclusion temporal, to
indemnify the heirs of the deceased in the sum of P1,000 and to pay
the costs.
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The information filed by the acting provincial fiscal of said province

charged the defendant with parricide for having killed his wife
Salvacion Agawa on December 15, 1937, in the municipality of
Naga, Province of Camarines Sur, which crime was committed with
evident premeditation and abuse of superior strength.
chanroblesvirtualawlibrary

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The defendant and the deceased Salvacion Agawa were married

before the justice of the peace of Naga on January 15, 1936 and
had since been born to the marriage. Since their marriage they had
made their home in the house of Urbano Rellora, who lived maritally
with the mother of the accused. On the morning of December 15,
1937, when the defendant was hardly awake after staying up late
the previous night on account of the elections held in the
municipality of Naga, he noticed that his wife was preparing water
with which to give the child a bath. He told his wife not to bathe the
child because it had a cold, but the wife insisted and a quarrel arose
in the heat of which the accused punched his wife on the abdomen.
She fell seated on a sack of rice nearby and immediately suffered an
attack of which she died in spite of the aid rendered her by the
accused himself and other persons who had arrived. The following
morning Dr. Vicente Roxas performed an autopsy and found that the
spleen of the deceased had been hypertrophied due to an acute and
chronic malaria from which she had been suffering, and that death
was caused by the hemorrhage of the spleen when it was ruptured
as a consequence of an external blow on the abdomen which might
have been that delivered by the accused.
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The defense alleges that the lower court erred in declaring that the
accused hit the deceased on the abdomen, which caused her death,
instead of finding him, at most, guilty of parricide through reckless
imprudence.
chanroble svirtualawlibrary

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After an examination of the evidence, we are of the opinion that the

lower court did not err in finding that the accused hit the deceased
on the abdomen which directly caused the rupture of her spleen
producing thereby an internal hemorrhage that caused her almost
instant death. Urbano Rellora who, as stated before, was the owner
of the house where the defendant and the deceased lived and who
maintained marital relations with the mother of the accused,

testified positively that he saw the accused punched his wife on the
abdomen, as a result of which she fell seated on a sack of rice and
that very moment she had an attack, became unconscious and
expired. This testimony is corroborated by Dr. Roxas who performed
the autopsy, when he declared that the death was caused by the
hemorrhage produced by the rupture of the spleen which rupture
was caused by an external blow on the abdomen of the deceased.
The defendant himself, in his sworn declaration (Exhibit C)
subscribed before the justice of the peace of Naga, voluntarily
admitted having hit his wife on the abdomen with his fist when she
said things that offended and made him nervous. The aggression
was likewise corroborated by another eye-witness, Raymundo
Hilano, who declared that he was at that time passing in front of the
defendant's house when he heard and saw him quarrelling with his
wife and that the defendant was delivering blows on his wife. The
testimony of this witness however, seems incredible and deserves
no merit for he testified having seen the aggression through a
window which was three and a half meters high from the ground
where he stood. Considering the height of the window and the
location of the witness, it is clear that he could not have seen what
was happening inside the house.
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The defendant's act is not mere reckless imprudence, as the

defense contends, since under article 365 of the Revised Penal Code
the acts that go to make up reckless imprudence must be lawful in
themselves, and the attack consisting in the blow the defendant
dealt his wife is certainly not lawful, since it transgresses the
Revised Penal Code itself, which expressly prohibits it under pain of
punishment.
chanroblesvirtualawlibrary

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The facts proven constitute the crime of parricide defined by article

246 of the Revised Penal Code, and in its commission there were
present the following mitigating circumstances considered by the
lower court in favor of the defendant: lack of intention to commit so
grave a crime (article 13 [3], Revised Penal Code); having acted
upon an impulse so powerful as naturally to have produced passion
or obfuscation (article 13 [6]); having surrendered himself to the
authorities immediately after the commission of the crime (article
13 [7]); with no aggravating circumstance. As to the penalty

imposed, we find that it is not in accordance with that prescribed by

the law. Under article 246 of the Revised Penal Code the crime of
parricide is punished with reclusion perpetua to death. These
penalties are indivisible and the Revised Penal Code provides, in
article 63, rule 3, that whenever there is present some mitigating
circumstance with no aggravating one, the lesser penalty shall be
applied. In conformity with this legal provision, the penalty that
should be imposed on the accused is that of reclusion perpetua.
chanroblesvirtualawlibrary

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After reviewing the facts, we are convinced that the defendant did
not really have the intention of committing so grave a crime as
parricide. The quarrel that led to the aggression had its origin from
the natural and justifiable desire of the defendant, as a father, to
prevent his child, which was then ill, from being given a bath. If,
under the circumstances, he transgressed the law by an unjust
attack on his wife, he is, nevertheless, deserving of the mitigating
circumstances allowed in his favor. We invoke, for this reason,
article 5, paragraph 2, of the Revised Penal Code, and
recommended to his Excellency, the President of the Philippines, the
commutation of the penalty imposed on the defendant in this
decision.
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Modifying the appealed judgment, we declare the defendant

Catalino Rabao guilty of the crime of parricide and hereby sentenced
him to reclusion perpetua, and to the accessory penalties provided
in article 41 of the Revised Penal Code, to indemnify the heirs of the
deceased in the amount of P1,000, and to pay the costs in both
instances. So ordered.

[G.R. No. 146247. September 17, 2002]

PEOPLE
OF
THE
DAWATON, accused.

PHILIPPINES, plaintiff,

vs. EDGAR

DECISION
BELLOSILLO, J.:

EDGAR DAWATON was found by the trial court guilty of murder qualified
by treachery and sentenced to death, ordered to indemnify the heirs of the
victim P50,000.00 plus the accessory penalties provided by law, without
subsidiary imprisonment in case of insolvency, and to pay the costs of suit.
[1]

An Information for murder qualified by treachery and evident

premeditation was filed against Edgar Dawaton on 11 March 1999. When first
arraigned he pleaded not guilty, but during the pre-trial on 7 May 1999, he
offered to plead guilty to the lesser offense of homicide but was rejected by
the prosecution, hence, the case proceeded to trial.
[2]

[3]

The prosecution presented as witnesses the very persons who were with
the accused and the victim during the incident, namely, Domingo Reyes and
Esmeraldo Cortez. The prosecution also presented Generosa Tupaz, the
mother of the victim, to prove the civil liability of the accused.
The evidence for the prosecution: On 20 September 1998 Esmeraldo
Cortez was entertaining visitors in his house in Sitio Garden, Brgy. Paltic,
Dingalan, Aurora. His brother-in-law Edgar Dawaton and kumpadre Leonides
Lavares dropped by at about 12:00 o'clock noon followed by Domingo Reyes
shortly after. All three (3) guests of Esmeraldo were residents of Sitio
Garden. They started drinking soon after. At about 3:00 o'clock in the
afternoon and after having consumed four (4) bottles of gin, they went to the
house of Amado Dawaton, Edgar's uncle, located about twenty (20) meters
away from Esmeraldo's house. They stayed at the balcony of the house and
continued drinking. Amado Dawaton was not in.
Already drunk, Leonides decided to sleep on a papag or wooden bench,
lying down on his right side facing Domingo and Edgar using his right hand for
a pillow. Edgar, Domingo and Esmeraldo continued drinking until they finished
another bottle of gin.
At about 3:30 in the afternoon, twenty (20) minutes after Leonides had
gone to sleep, Edgar stood up and left for his house. When he returned he
brought with him a stainless knife with a blade 2 to 3 inches long. Without a
word, he approached Leonides who was sleeping and stabbed him near the
base of his neck. Awakened and surprised, Leonides got up and blurted:
"Bakit Pare, bakit?" Instead of answering, Edgar again stabbed Leonides on
the upper part of his neck, spilling blood on Leonides' arm.
[4]

[5]

Leonides attempted to flee but Edgar who was much bigger grabbed the
collar of his shirt and thus effectively prevented him from running away. Edgar
then repeatedly stabbed Leonides who, despite Edgar's firm hold on him, was
still able to move about twenty (20) meters away from the house of Amado
Dawaton before he fell to the ground at the back of Esmeraldo's house. But
even then, Edgar still continued to stab him. Edgar only stopped stabbing
Leonides when the latter already expired. Edgar then ran away towards the
house of his uncle Carlito Baras situated behind the cockpit.
Domingo and Esmeraldo were positioned a few meters away from where
Leonides was sleeping when he was initially assaulted by Edgar. They were
shocked by what happened but other than pleading for Edgar to stop they
were unable to help Leonides.
Domingo left for his house soon after the stabbing started as he did not
want to get involved. Nonetheless he felt pity for Leonides so he returned a
few minutes later.
By then, Leonides was already dead and people had already gathered at
the site. The mayor who was in a nearby cement factory arrived and
instructed them not to go near the body.They pointed to the direction where
Edgar fled. Edgar was later arrested at the house of his uncle, Carlito Baras,
at Sitio Aves, Brgy. Paltic, Dingalan.
Accused-appellant Edgar Dawaton was the sole witness for the
defense. He did not deny that he stabbed Leonides Lavares but insisted that
he was provoked into stabbing him. Edgar claimed that the night prior to the
stabbing incident, or on 19 September 1998, his uncle Armando Ramirez went
to his house to welcome his return from Cavite where he worked as a
carpenter. They started drinking gin at about 7:00 o'clock in the evening and
ended at 3:00 o'clock in the morning of the following day. He slept and woke
up at 6:00 o'clock in the morning of 20 September 1998.
Apparently, he did not have enough of the prior evening's drinking orgy. He
went to his uncle's house early that morning and after his uncle bought two (2)
bottles of gin they started drinking again. Domingo Reyes arrived at around
7:30 in the morning and joined them. Esmeraldo Cortez joined them about
12:00 o'clock noon and bought two (2) more bottles of gin.Later, the group
with the exception of Armando Ramirez transferred to the house of Esmeraldo
upon the latter's invitation and drank two (2) more bottles of gin.
In Edgar's version of the stabbing incident, a drunk and angry Leonides
arrived at about 2:30 in the afternoon and demanded that they - he and Edgar
- return candles (magbalikan [tayo] ng kandila). Leonides was godfather of a
[6]

son of Edgar. Leonides also cursed and threatened to hang a grenade on

Edgar (P - t - ng ina mo. Hintayin mo ako. Kukuha ako ng granada at
sasabitan kita!).
[7]

According to Edgar, he tried to calm down Leonides but the latter insisted
on going home purportedly to get a grenade. Alarmed because he knew
Leonides had a grenade, Edgar went home to look for a bladed weapon. He
already had a knife with him but he thought it was short. Not finding another
weapon, he returned to Esmeraldo's house.
When he returned, Leonides was still in Esmeraldo's house and had joined
in the drinking. He sat opposite Leonides who resumed his tirades against
him.
Again Leonides started to leave for his house purportedly to get a
grenade. Afraid that Leonides would make good his threat, Edgar held on to
him and stabbed him. He did not know where and exactly how many times he
struck Leonides but he recalled doing it three (3) times before his mind went
blank (nablangko). Edgar also claimed that he was in this mental condition
when he left Leonides and ran to the house of Carlito Baras. He did not know
that he had already killed Leonides, only that he stabbed him thrice. He
regained his senses only when he reached his uncle Carlito's house.
[8]

Edgar further said that he sought his uncle's help so he could surrender
but he was told to wait because his uncle was then taking a bath. It was while
waiting for his uncle when the policemen arrived to arrest him. He maintained
that he voluntarily went with them.
The medico-legal certificate dated 24 September 1998 issued by Dr.
Ernesto C. del Rosario showed that the victim sustained a stab wound at the
back and ten (10) stab wounds in front. He also had slash wounds on his left
hand and his tongue was cut off. The immediate cause of death was
determined to be "Hypovolemic Shock due to hemorrhage, multiple stabbed
(sic) wounds."
[9]

[10]

On 20 October 1999 the parties entered into several stipulations which

were embodied in an Order. Specifically, they admitted the veracity of
the Sinumpaang Salaysay dated 21 September 1998 executed by SPO2
Ramil D. Gamboa and PO3 Gerry M. Fabros, the police officers who
arrested the accused; the genuineness and due execution of the medico-legal
certificate issued by Dr. Ernesto C. del Rosario; and, the authenticity of the
certificate of death also issued by Dr. del Rosario. Thus, the presentation of
the arresting officers and Dr. del Rosario as witnesses was dispensed with.
[11]

[12]

[13]

On 20 November 1999 the trial court convicted Edgar Dawaton of murder

qualified by treachery and sentenced him to death.
We affirm the conviction of accused-appellant; we however modify the
penalty imposed on him.
The conclusion that accused-appellant murdered Leonides Lavares was
sufficiently proved by the testimonies of prosecution witnesses Domingo
Reyes and Esmeraldo Cortez who both witnessed the fatal stabbing. This was
not refuted by the accused himself who admitted that he stabbed the victim
three (3) times before his mind went blank and could no longer recall what he
did after that.
Treachery clearly attended the killing. The accused attacked the victim
while the latter was in deep slumber owing to the excessive amount of alcohol
he imbibed. We are not persuaded by the version of the accused that the
victim threatened to harm him with a grenade and that it was only to prevent
this from happening that he was forced to stab Leonides. We defer instead to
the judgment of the trial court which gave more credence to the version of the
prosecution witnesses inasmuch as it was in a better position to decide on the
question of credibility, having heard the witnesses themselves and observed
their deportment during trial.
According to the prosecution witnesses, the victim had no chance to
defend himself as he was dead drunk and fast asleep. He had no inkling at all
of what was going to happen to him since there was no prior argument or
untoward incident between him and the accused. From all indications they
were on friendly terms; as in fact they were even kumpadres. No one knew
nor expected that when the accused momentarily excused himself, it was for
the purpose of looking for a knife, and without any warning, stabbing the
victim who was sleeping.
There is treachery when the attack is upon an unconscious victim who
could not have put up any defense whatsoever, or a person who was dead
drunk and sleeping on a bench and had no chance to defend himself.
Clearly, the attack was not only sudden but also deliberately adopted by the
accused to ensure its execution without risk to himself.
[14]

[15]

The accused argues that trial court erred in imposing the death penalty
despite the attendance of mitigating and alternative circumstances in his favor.
He avers that he is entitled to the mitigating circumstance of plea of
guilty. We disagree. While the accused offered to plead guilty to the lesser
offense of homicide, he was charged with murder for which he had already
entered a plea of not guilty. We have ruled that an offer to enter a plea of
[16]

guilty to a lesser offense cannot be considered as an attenuating

circumstance under the provisions of Art. 13 ofThe Revised Penal
Code because to be voluntary the plea of guilty must be to the offense
charged.
[17]

Furthermore, Sec. 2, Rule 116, of the Revised Rules of Criminal

Procedure requires the consent of the offended party and the prosecutor
before an accused may be allowed to plead guilty to a lesser offense
necessarily included in the offense charged. We note that the prosecution
rejected the offer of the accused.
Nor can the accused avail of the mitigating circumstance of voluntary
surrender as he himself admitted that he was arrested at his uncle's
residence. The following elements must be present for voluntary surrender to
be appreciated: (a) the offender has not been actually arrested; (b) the
offender surrendered himself to a person in authority, and, (c) the surrender
must be voluntary.
[18]

[19]

Resorting to sophistry, the accused argues that he was not arrested

but "fetched" as he voluntarily went with the policemen when they came for
him. This attempt at semantics is futile and absurd. That he did not try to
escape or resist arrest after he was taken into custody by the authorities did
not amount to voluntary surrender. A surrender to be voluntary must be
spontaneous, showing the intent of the accused to submit himself
unconditionally to the authorities, either because he acknowledges his guilt or
because he wishes to save them the trouble and expense necessarily
included in his search and capture. It is also settled that voluntary surrender
cannot be appreciated where the evidence adduced shows that it was the
authorities who came looking for the accused.
[20]

[21]

Moreover, the evidence submitted by the prosecution belies the claim of

the accused that he intended to submit himself to the authorities. The joint
affidavit of the arresting officers, the veracity of which was admitted by the
parties and evidenced by a 20 October 1999 Order of the trial court, revealed
that they chanced upon the accused trying to escape from the rear of the
cockpit building when they came looking for him.
[22]

Similarly, there is no factual basis to credit the accused with the mitigating
circumstance of outraged feeling analogous or similar to passion and
obfuscation. Other than his self-serving allegations, there was no evidence
that the victim threatened him with a grenade. Domingo Reyes and Esmeraldo
Cortez testified that there was no prior altercation or disagreement between
Edgar and Leonides during the drinking spree, and they did not know of any
reason for Edgar's hostility and violence. On the contrary, Esmeraldo Cortez
[23]

[24]

even recalled seeing the two (2) in a playful banter (lambingan) during the
course of their drinking indicating that the attack on the accused was
completely unexpected.
[25]

The accused would want us to reconsider the penalty imposed on him on

account of his not being a recidivist. He contends that an appreciation of this
factor calls for a reduction of the penalty.
We are not persuaded. Recidivism is an aggravating circumstance the
presence of which increases the penalty. The converse however, that is, nonrecidivism, is not a mitigating circumstance which will necessarily reduce the
penalty. Nonetheless, we hold that the trial court erred in not appreciating the
alternative circumstance of intoxication in favor of the accused. Under Art. 15
of The Revised Penal Code, intoxication of the offender shall be considered
as a mitigating circumstance when the offender commits a felony in a state of
intoxication, if the same is not habitual or subsequent to the plan to commit
said felony. Otherwise, when habitual or intentional, it shall be considered as
an aggravating circumstance.
The allegation that the accused was drunk when he committed the crime
was corroborated by the prosecution witnesses. The accused and his drinking
companions had consumed four (4) bottles of gin at the house of Esmeraldo
Cortez, each one drinking at least a bottle. It was also attested that while the
four (4) shared another bottle of gin at the house of Amado Dawaton, it was
the accused who drank most of its contents. In addition, Esmeraldo testified
that when Edgar and Leonides arrived at his house that noon, they were
already intoxicated. There being no indication that the accused was a
habitual drunkard or that his alcoholic intake was intended to fortify his resolve
to commit the crime, the circumstance of intoxication should be credited in his
favor.
[26]

[27]

[28]

Consequently, we find that the trial court erroneously imposed the penalty
of death. The accused was charged with murder for which the law provides a
penalty of reclusion perpetua to death. Under Art. 63, par. 3, of The Revised
Penal Code, in all cases in which the law prescribes a penalty composed of
two (2) indivisible penalties, such as in this case, when the commission of the
act is attended by a mitigating circumstance and there is no aggravating
circumstance, the lesser penalty shall be applied. Since no aggravating
circumstance attended the killing but there existed the mitigating circumstance
of intoxication, the accused should be sentenced only to the lesser penalty
of reclusion perpetua.
The trial court correctly ordered the accused to pay civil indemnity in the
amount of P50,000.00 to the heirs of the victim without need of proof other

than the fact that a crime was committed resulting in the death of the victim
and that the accused was responsible therefor. The heirs are also entitled to
moral damages pursuant to Art. 2206 of the New Civil Code on account of the
mental anguish which they suffered, and the amount of P50,000.00 is
considered reasonable according to existing jurisprudence.
[29]

[30]

WHEREFORE, the assailed Decision of the court a quo finding the

accused EDGAR DAWATON guilty of MURDER qualified by treachery is
AFFIRMED with the modification that the penalty is reduced from death
to reclusion perpetua. The accused is ordered to pay the heirs of Leonides
Lavares P50,000.00 in civil indemnity and P50,000.00 in moral damages.
SO ORDERED.

[G.R. Nos. 136733-35. December 13, 2001]

PEOPLE
OF
THE
PHILIPPINES, appellee,
VIERNES y ILDEFONSO, appellant.

vs. ELADIO

DECISION
PANGANIBAN, J.:

Under the Rules of Court, a judgment of conviction in a criminal prosecution may be

modified only upon motion of the accused. As a rule, the prosecution is prohibited from seeking,
and the trial court from granting, a more severe penalty than that imposed in the original
decision. This is especially true in a case in which the new and amended penalty imposed is
death.
The Case
Before us is an appeal from the April 6, 1998 Decision and the May 21, 1998 Order of the
Regional Trial Court (RTC) of Lipa City (Branch 12) in Criminal Case Nos. 0532-97, 0533-97
and 0534-97. The assailed Decision convicted appellant of two counts of rape and one count of
attempted rape. It disposed as follows:
[1]

[2]

WHEREFORE, the Court finds the accused, ELADIO VIERNES y

ILDEFONSO, guilty beyond reasonable doubt in Crim. Case No. 0532-97 of the
crime of Rape, as defined and penalized under Article 335, par. 3 of the Revised Penal

Code, as amended by Republic Act No. 2532 and Republic Act No. 4111; in Crim.
Case No. 0533-97 of the crime of Attempted Rape, as defined and penalized under
Article 335, par. 3 in relation to Article 51 of the Revised Penal Code, as amended by
Republic Act No. 2532 and Republic Act No. 4111; and, in Crim. Case No. 0534-97
of the crime of Rape, as defined and penalized under Article 335, par. 1 of the Revised
Penal Code, as amended by Republic Act No. 2532 and Republic Act No. 4111, and
sentences him, as follows:
1. CRIM. CASE NO. 0532-97 to suffer the penalty of RECLUSION PERPETUA, to
indemnify Catherine Linatoc in the amount of P50,000.00, to pay P10,000 as moral
damages pursuant to Article 2219 (3) of the Civil Code, as well as exemplary damages
in the amount of P5,000.00 pursuant to Article 2229 of the same Code and the costs of
this suit;
2. CRIM. CASE NO. 0533-97 to suffer an indeterminate penalty of FOUR (4)
YEARS, TWO (2) MONTHS and ONE (1) DAY of Prision Correccional, as
Minimum, to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor, as Maximum,
to indemnify Catherine Linatoc in the amount of P25,000.00, and to pay the costs of
this suit; and
3. CRIM. CASE NO. 0534-97 to suffer the penalty of RECLUSION PERPETUA, to
indemnify Catherine Linatoc in the amount of P50,000.00, to pay P10,000.00 as moral
damages pursuant to Article 2219 (3) of the Civil Code, as well as exemplary damages
in the amount of P5,000.00 pursuant to Article 2229 of the same Code and the costs of
this suit.
[3]

On the other hand, the assailed Order increased the penalties as follows:

WHEREFORE, the Court finds the accused, ELADIO VIERNES y ILDEFONSO,

guilty beyond reasonable doubt in Crim. Case No. 0532-97 of the crime of Rape, as
defined and penalized under Article 335, par. 3 of the Revised Penal Code, as
amended by Republic Act No. 7659; in Crim. Case No. 0533 of the crime of
Attempted Rape, as defined and penalized under Article 335, par. 3 in relation to
Article 51 of the Revised Penal Code, as amended by Republic Act No. 7659, and in
Crim. Case No. 0534-97 of the crime of Rape, as defined and penalized under Article
335, par. 1 of the Revised Penal Code, as amended by Republic Act No. 7659, and
sentences him, as follows:
1. CRIM. CASE NO. 0532-97 to suffer the penalty of DEATH, to indemnify
CATHERINE LINATOC in the amount of P50,000.00, to pay P10,000 as
moral damages pursuant to Article 2219 (3) of the Civil Code, as well as

exemplary damages in the amount of P5,000.00 pursuant to Article 2229

of the same Code and the costs of this suit;
2. CRIM. CASE NO. 0533-97 to suffer an indeterminate penalty of TEN (10)
YEARS and ONE (1) DAY of Prision Mayor, as Minimum, to
FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of
Reclusion Temporal, as Maximum, to indemnify Catherine Linatoc in
the amount of P25,000.00 and to pay the costs of this suit; and
3. CRIM. CASE NO. 0534[-97] to suffer the penalty of DEATH, to indemnify
Catherine Linatoc in the amount of P50,000.00, to pay P10,000.00, as moral
damages pursuant to Article 2219 (3) of the Civil Code, the amount of P5,000.00,
as exemplary damages, pursuant to Article 2229 of the same Code and the costs of
this suit.
[4]

Three criminal Complaints, all dated August 21, 1997, were filed by Catherine Linatoc
(assisted by her mother Lina Dela Cruz-Linatoc) before Second Assistant City Prosecutor Danilo
S. Sandoval. The Complaint in Criminal Case No. 0532-97 charged appellant with rape
committed as follows:

That on or about the 29th day of September, 1996 at about 10:00 oclock in the morning
at Barangay Tibig, Lipa City, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, being then the common law husband of the mother
of the victim, did then and there willfully, unlawfully and feloniously, by means of
force and intimidation have carnal knowledge of the undersigned complainant who is
a minor below 12 years old, against her will and consent to her damage and prejudice
in such amount as may be awarded to her under the provision of the Civil Code.
[5]

The Complaint in Crim. Case No. 0534-97 likewise charged him with consummated rape:

That on or about the 18th day of August 1997 at about 12:00 oclock noon, at
Barangay Tibig, Lipa City, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, being then the common law husband of the mother
of the victim, did then and there wilfully, unlawfully and feloniously, by means of
force and intimidation have carnal knowledge of the undersigned complainant who is
a minor of 12 years old against her will and consent to her damage and prejudice in
such amount as may be awarded to her under provisions of the Civil Code.
[6]

Finally, in Criminal Case No. 0533-97, appellant was charged with attempted rape:

That on or about the month of March 1997, around noon time, at Barangay Tibi, Lipa
City, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, being then the common law husband of the mother of the victim, by means

of force and intimidation and with lewd design pursuant to his carnal desire, did then
and there willfully, unlawfully and feloniously commence the commission of the
felony of rape directly by overt acts against the undersigned complainant who is a
minor below 12 years old, by then and there undressing her and going on top of her
with his exposed private organ but did not perform all the acts of execution which
should have produced the said felony because the undersigned offended party resisted.
[7]

Criminal Case Nos. 0532-97 and 0534-97 were raffled to the Regional Trial
Court of Lipa City, Branch 12; and Criminal Case No. 0533-97, to Branch 85 of the same
court. Later, all the cases were consolidated in Branch 12.
[8]

On arraignment, appellant pleaded not guilty. After trial in due course, the lower court
rendered the assailed Decision.
[9]

In a Motion for Reconsideration dated May 18, 1998, Prosecutor Sandoval asked that the
imposed penalties be increased pursuant to Republic Act (RA) No. 7659. The RTC granted the
Motion via the assailed Order.
The Facts
Version of the Prosecution
In its Brief, the Office of the Solicitor General presents the following narration of facts:
[10]

Catherine Linatoc stood quietly by the door of the toilet of appellants her mothers
common-law husband house. Her skirts hemlines were slowly falling to her knees
vainly covering the panty that were pulled down mid-way her lower legs. This was the
third of a series of dismaying sex that she and appellant had been through. Like the
others before this one, there was by appellant much pulling, shoving and forcible
grasping of her hands, thus rendering her immobile for three minutes or so.
The third rape happened in appellants house in Tibig, Lipa City, around noontime of
August 18, 1997. Appellant then bidded [sic] the two brothers and a step-brother of
Catherine Linatoc to clean the his tricycle, which was parked on the side of the street
across his house. They followed his order. Appellant also instructed Catherine Linatoc
to fetch water for the house toilet. She obliged, returning with two pails of it. She
deposited them by the door of the toilet. Turning about, Catherine Linatoc was
surprised to find appellant behind her. In quick succession, appellant pushed her to the
wall, pulled her skirts up, drag her panty mid-way her lower leg, and rushed his own
pants down. Grasping her hands tightly with one hand, appellant began inserting his
penis into her vagina. She resisted to no avail. His penis established a comfortable
slide into and out of her [organ], as the pace quickened for about three minutes. The

gyration was furious. After appellant spurted out, he backed off and left saying
nothing.
Frightened and crying, Catherine Linatoc went to her great-grandmothers abode in
San Guillermo, Lipa City. She reported the incident to this elder, and recounted some
more. Catherine Linatoc told her great-grandmother of two other acts of sexual abuse
by appellant. The first one, she narrated, happened on September 29, 1996, about ten
in the morning[;] and the second, on March 1997 around noon-time.
The first rape happened on September 29, 1996 in appellants house. Catherine Linatoc
was on the ground floor of the house when so suddenly appellant sprung from
wherever he was, grabbed and carried her to the second floor. The second floor was
just three steps from the ground floor. He then undressed her, taking off her sando,
skirt and panty. He undressed himself too, and then floored both their bodies, [his] on
top of her. He caressed her breasts and started inserting his penis into her
vagina. Appellant held her hands tightly and fought off her struggle. There was push
and pull for about three minutes, then appellant came through. Appellant dressed up,
and before walking away, apologized to her. It would be the first and last rape, he said.
There was soon the second sexual abuse. In March 1997, about noontime, using the
same strategy as he did in the [first] rape, appellant unburdened himself on Catherine
Linatoc. From nowhere, appellant appeared. He dragged her to the second floor where
he undressed her and himself. He mightily threw her to the floor, his sweaty body
covering hers. Appellant engaged in the now familiar gyration once again. This time,
however his penis landed on the thighs of the victim as insertion, because of her
struggle and vaginas virginal qualities, became frustratingly difficult. Between her
thighs appellant thrusted his penis. He satisfied himself just the same.
The great-grandmother was helpless to remedy the abuse done to Catherine
Linatoc. They waited for the father of Catherine Linatoc, Orlando Linatoc, who
arrived four days later. The mother of Catherine Linatoc, Lina Viernes, also
arrived. Catherine Linatoc had her medico-legal examination with these results.:
x x x lacerated hymen on the 3:00 and 9:00 oclock positions with small amounts of
whitish discharge.
The medico-legal examination was performed by Dr. Helen S. Dy. The present
criminal complaints against appellant were thereafter filed.
[11]

Version of the Defense

Appellant denies the charges against him. Claiming to have been elsewhere at the time of the
commission of the alleged crimes, he submits the following counterstatement of the facts:

1) ELADIO, at the lower court, stated that he is the common law husband of Lina de
la Cruz-Linatoc (mother of the alleged victim Catherine Linatoc). He is a security
guard and at the same time, a tricycle driver. On September 29, 1996 he was living
with Lina, together with Catherine, his two sons and other relatives. On September 28,
1996 he scolded Catherine. As a consequence thereof, Catherine went to the house of
her great grandmother and stayed therein even beyond September 29,
1996. Therefore, it is impossible for him (ELADIO) to have attacked Catherine
sexually on September 29, 1996. It is not true that he attempted to rape Catherine in
March of 1997 because he was on duty at that time. Their company logbook will bear
witness thereto. (Exhibit 2, Original Records) On August 18, 1997 it is not true that he
raped Catherine since he was plying his tricyle then. (TSN, pp. 2-13, December 11,
1997; and pp. 2-22, January 8, 1998)
2) Lina de la Cruz at the Court below, testified that she confirms claim/s [sic] of
ELADIO that Catherine was no longer in their house on September 29, 1996 and that
ELADIO could not have abused Catherine sexually. Catherines charge for March
1997 and August 18, 1997 were not also true. (TSN, pp. 2-7, February 3, 1998).
xxxxxxxxx

D. Sur-Rebuttal Evidence.
ELADIO, as a sur-rebuttal witness, denied to have asked the settlement of the case.

[12]

Ruling of the Trial Court

The court a quo held that the testimony of Catherine Linatoc -- both on direct and on crossexamination -- was clear, positive and steadfast. Corroborated by the medicolegal examination
conducted on her, it was replete with details that jibed on material points. The prosecution
successfully proved that she was the daughter of appellants common-law wife and that, at the
time of the crime, she was 12 years old.
The declarations of complainant were accorded full faith and credence on the theory that she
would not publicly acknowledge the defilement of her virtue or subject herself to public
humiliation, if her purpose was not to obtain justice for the wrong committed. There is no
evidence that she was a woman of loose morals or that she had any ill motive to falsely accuse
appellant.
On the other hand, appellants denial and alibi were unsubstantiated and self-serving; hence,
they deserve no weight in law. They cannot stand against Catherines positive testimony.

In the assailed Order, the trial court noted that the prosecutions Motion was unopposed. It
ruled that the increase in the penalty did not place appellant in double jeopardy.
Hence, this appeal.

[13]

The Issues
In his Brief, appellant raises this sole alleged error:
[14]

The lower court has committed an error in convicting the accused-appellant of the
crimes charged and on meting out on him the supreme penalty of death, more
particularly in Criminal Cases Nos. 0532-97 and 0534-97.
An appeal from a criminal conviction, especially one involving the death penalty, throws the
whole case open for review. Thus, it becomes the duty of the reviewing court to correct any error
in the appealed judgment, whether or not it is made the subject of an assignment of error. In
this light, the Court believes that a second issue needs to be taken up, namely:
[15]

Whether the trial court erred in increasing the penalties via the assailed Order.
This Courts Ruling
The trial court was correct in convicting appellant in accordance with the challenged
Decision, but was wrong in imposing the new penalties through the assailed Order.
First Issue: Appellants Culpability
After a thorough review of the pleadings, the transcripts of stenographic notes and other
records of the case, we are convinced that the court a quo did not err in giving credence to the
testimonies of the victim and the other prosecution witnesses. The testimony of private
complainant, detailing how she was abused by appellant on two separate occasions and how he
tried to rape her once more, was clear and convincing. We quote at length:
Q While you were in your house on that date, September 29, 1996, 10:00 oclock in the morning, do
you remember of any unusual incident that transpired if any?
A Yes, sir.
Q What was that unusual incident that transpired?
A After my mother left, I was pulled sir.
Q By whom, who pulled you?
A My step father, sir.

Q Where were you brought, towards what direction?

A Towards the second floor of our house and to the place where we sleep, sir.
Q By the way, that house where you were living in Brgy. Tibig, Lipa City on that date September 29,
1996, what kind of house is that?
A It is made of Sawali, sir.
Q How about the flooring, how many floors does it have?
A Three (3) steps sir.
Q What do you mean by three (3) steps?
A Our stairs is made of three (3) steps, sir.
Court:
From the ground floor?
A Yes, sir.
Q What is located after going this stairs composed of three (3) steps?
A That is the place where we sleep sir.
Q After you [were] pulled upstairs to where you usually sleep by Eladio Viernes, what did Eladio
Viernes do to you after reaching that upper portion of your house, if he did anything?
Atty. Dimaandal
Leading your Honor.
Court
Answer.
A He undressed me sir.
Q What were you wearing that Eladio Viernes took of[f] from your body?
A I was wearing a skirt which was my uniform sir.
Q What else I[f] any were taken of[f] from your body by Eladio Viernes?
A My blouse, sando and my skirt and my panty sir.
Q After Eladio Viernes took of[f] your clothing, after removing your clothing what did Eladio Viernes
do on your body?
A He placed himself on top of me.
Q When Eladio Viernes placed himself on top of you, what was he wearing if any?
A None sir.
Q By the way, when Eladio Viernes pulled you to where you usually sleep, what was his wearing at
that time?
A He was wearing pants, sir.

Q You said that after Eladio Viernes took of[f] all your clothing he went on top of you you said he was
already naked, what did he do with hi[s] pants before he went on top of you?
A He mashed [m]y breast sir.
Q What else did he do [to] you aside from mashing your breast?
A He inserted his penis into my vagina.
Q By the way, while he was mashing your breast, what were you doing if you did anything?
A I was fighting him back sir.
Q What did Eladio Viernes do when you fought him back while he was mashing your breast?
A He was slapping me sir.
Q When he inserted his penis into your vagina, what did you feel?
A Painful, sir.
Q Was Eladio Viernes able to actually insert his penis[?]
Atty. Dimaandal
Leading your honor.
Q After Eladio Viernes inserted his private organ into your private organ, what else did he do if
anything more?
A He did pumping motion, sir.
Q For how long did he do this pumping motion, while his penis was inside your vagina?
A About three (3) minutes sir.
Q After three (3) minutes when Eladio Viernes did this pumping motion while his penis was inside
your vagina, what else did he do if he did anything more?
A He removed his private organ sir.[16]

We also quote the testimony of the victim regarding appellants attempt to rape her:
Q When was the second time, after September 26, 1996?
A In May 1997 but I do not remember the exact date sir.
Q Are you sure about the date?
Atty. Dimaandal
That is the answer of the witness.
Prosecutor
Thats why I am asking, are you sure about the date?
A May 19, 1997 sir.
Q By the way, in [the] second incident [where] Eladio Viernes according to you raped you again,
where did this happen?
A At Barangay Tibig, Lipa City.

Q In what particular place in Bgy. Tibig were you raped for the second time by Eladio Viernes?
A In the upper portion of our house at the place where we are sleeping sir.
Q The same place where the second rape was committed?
A Yes, sir.
Q Around what time did this happen, this second rape happened?
Atty. Dimaandal
We make it of record that the witness cannot answer.
Prosecutor
The witness is thinking . . .
A Noontime sir.
Q How did this happen?
A He again pulled me sir.
Q By the way on that second occasion, where was your mother?
A She was working sir.
Q You said that you were again pulled, where were you brought by Eladio Viernes at the same time
around?
A The upper portion of our house and at the place where we were sleeping sir.
Q After you were pulled by Eladio Viernes, what did Eladio Viernes do to you?
A He undressed me sir.
Q What kind of wearing apparel that you were wearing that were taken off by Eladio Viernes on that
same occasion?
A I was wearing a skirt sir.
Q After you were undressed by Eladio Viernes what did Eladio Viernes do to you if he did anything?
A He again placed himself on top of me sir.
Q What was he wearing he placed himself on top of you if he was wearing anything?
A He was wearing pants sir.
Q When he placed himself on top of you, where was his pants?
A He removed pants sir.
Q When Eladio Viernes went on top of you, what did you [sic] do if he anything more on the second
time around?
A He again mashed my breast sir.
Q What did you do when Eladio Viernes again mashed your breast?
A I was fighting him back sir.
Q What else did he do aside from mashing your breast, what did Eladio Viernes do to you?

A He was inserting his penis into my vagina sir.

Q When Eladio Viernes was inserting his penis into your vagina, what did you do?
A I was struggling sir.
Q When you struggled, what happened to that effort of Eladio Viernes to insert his penis into your
vagina?
A It was not inserted sir.
Q What did Eladio Viernes do when he failed to insert his penis into your vagina?
A He just placed it between my thighs sir.
Q After placing his penis between your thighs, what else did Eladio Viernes do if he did anything?
Atty. Dimaandal
May we interrupt . . That after translations the answer of this witness. He just place on my thigh, there
was no vagina [sic].
Q You said that Eladio Viernes placed his penis in your thighs, in what particular part of your thighs?
Atty. Dimaandal
Leading
Court
Answer.
Interpreter
Witness pointing to the inner portion of her two thighs
Q What did Viernes do after he put his penis between the inner portion of your two thighs?
A [H]e placed his penis between my thighs and he again did the pumping motion sir.[17]

Pertinent portions of the testimony of complainant regarding her second defilement in the
hands of appellant read as follows:
Q Miss Witness, on August 18, 1997 around 12:00 noon where were you?
A I was at home sir.
Q What were you doing?
A I just arrived from school sir.
Q You said that you were in your house, where was this house located on that date, August 18, 1997?
A At Barangay Tibig sir.
Q You said that you had just arrived from school, when you arrived in your house in Brgy. Tibig, Lipa
City on August 18, 1997 around 12 noon, whom did you meet in your house if you met anybody
there?
A My step father sir.
Q Meaning Eladio Viernes?

A Yes sir.
Q Seeing Eladio Viernes in your house on that date August 18, 1997 around 12 noon, what did he do if
he did anything upon seeing him or meeting you?
A He instructed our companions in the house to clean the motor tricycle sir.
Q After instructing your companions in your house to clean the motor tricycle, what else did Eladio
Viernes do, if he did anything more?
A He asked me to fetch two (2) containers of water sir.
Q By the way, these your companions of your house, [sic] who where given the instruction by Eladio
Viernes to clean the motor tricycle, who are these companions [sic] of your house?
A My two brothers and one step brother, sir.
Q How old were these two brothers of yours and your one step brother who were given the instruction
by Eladio Viernes to clean the motor tricycle?
A My step brother was 12 years old; my two brothers were six and 5 years old sir.
Q How far was this tricycle from your house?
A Near the street sir.
Q Around how many meters if you can calculate was this tricycle from your house or can you point
distance from the place where you are sitting now to any place inside the court room?
Interpreter
Witness pointing to the railings inside the Court room as their house and the witness pointed to the
western wall of the court room as the place where the tricycle was to be around 7 meters sir.
Q What did your two (2) brothers and one (1) step brother do if they did anything more upon receiving
the instruction from your step father Eladio Viernes to clean the motor tricycle?
A They followed the instruction of my step father to clean the tricycle sir.
Q How about you when you were instructed by your step father to fetch two (2) containers of water,
what did you do?
A I brought the water near the comfort room sir.
Q After you brought the two (2) containers of water to the place were you said a while ago, what did
Eladio Viernes do to you if he did anything?
A He followed me sir.
Q After Eladio Viernes followed you, what did he do [to] you if he did anything?
A I was frightened sir.
Q Why?
Atty. Dimaandal
Not responsive your honor. I move to strike out the answer of the witness.
Court
Continue.

Q Why did you get frightened?

A Because I felt that he will repeat the same thing sir.
Q What do you mean repeat the same thing?
A He will again repeat raping me sir.
Q When you got frightened, what did you do?
A I tried to struggle sir.
Q Why did you struggle, what was Eladio Viernes doing [to] you?
A He pulled up my skirt and when I was trying to go out from the comfort room he was stopping me
from going out sir.
Q What happened to your struggle, to free from the hold of Eladio Viernes when you were inside the
comfort room?
A I could not go out [o]f the comfort room because I was held by my step father sir.
Q After Eladio Viernes pulled up your skirt, what did he do with you if he did anything more?
A He pulled down my panty sir.
Q Up to what portion was that panty of yours pulled down?
Interpreter
Witness pointing to her ankle
Q After Eladio Viernes pulled down your panty up to your ankle, what did he do to you?
A He was inserting his penis into my vagina, sir.
Q What was your position in relation to Eladio Viernes when he was inserting his penis into your
vagina?
A I was standing sir.
Q How about Eladio Viernes, where was he in relation to you while he was inserting his penis into
your vagina?
A He was at my back sir.
Q What happened to this effort of Eladio Viernes in trying to insert his private organ into your private
organ?
A It was inserted sir.
Q You said that you were standing, what was the form or what was the position of your body aside
from the fact that you were standing when Eladio Viernes was able to insert his penis into your
vagina while he was at your back?
A I was standing and I was struggling sir.
Q When Eladio Viernes was actually able to insert his penis into your vagina, what was the position of
your body aside from the fact that you were standing?
A I was standing with my knees bent sir.

Q After Eladio Viernes was able to insert his penis into your vagina while you are in a standing
position, how long was his penis inside your vagina?
A About three (3) minutes sir.[18]

Catherine impressed the trial court as a decent woman [who has] not been shown to be of
loose morals or one who goes out with different men any time of the day or night. A rape
victim who testifies in a categorical, straightforward, spontaneous and frank manner -- and
remains consistent -- is a credible witness. It is well-entrenched that the trial court is in the best
position to assess the credibility of witnesses and their testimonies because of its unique
opportunity to observe them firsthand and to note their demeanor, conduct and attitude on the
stand. In the absence of any showing that its assessment is flawed, an appellate tribunal is
bound by it.
[19]

[20]

[21]

Despite the tender age of complainant, her accounts on direct and cross-examination were
replete with details that jibed on material points. Considering her young age, it would have
been highly improbable for her to fabricate a charge so humiliating to her and her family, had she
not been truly subjected to the painful experience of sexual abuse.
[22]

[23]

The moral ascendancy of appellant as the common-law husband of complainants mother

takes the place of force and intimidation as an element of rape, although the presence of such
element is apparent from Catherines testimony.
[24]

Alibi and Corroboration

Appellant denies having raped Catherine on September 29, 1996, claiming she was at her
grandmothers house in San Guillermo, while he was outside his house digging a toilet
pit. Allegedly, in March 1997, he was on duty as a security guard at the Smart Tower; and on
August 18, 1997, he was busy the whole day plying his tricycle route.
The trial court correctly disbelieved his alibi. Alibi and denial, if unsubstantiated by clear
and convincing evidence, are negative and self-serving evidence that deserve no weight in
law. They cannot be given greater evidentiary value over a credible witness testimony on
affirmative matters. Except for Lina Linatocs corroboration, the only evidence supporting the
alibi and denial of appellant is his own say-so. And Lina happens to be his common-law wife;
thus, her testimony is necessarily suspect and cannot prevail over the testimonies of more
credible witnesses. Negative testimony cannot prevail over the offended partys positive
identification of the accused as her rapist.
[25]

[26]

[27]

Finally, for alibi to prosper, it must be shown that the accused was in another place at the
time the crime was committed, and that it would have been physically impossible for him to be at
the scene of the crime at the time it was committed. Such physical impossibility was not proven
in
the
present
case. The
Smart Tower
where
appellant
worked as
a
security guard was located also in Barangay Tibig,Lipa City, and was only a thirty-minute walk
from his house. The tricycle station, on the other hand, was only 1000 meters away. Note that he
had a motorized tricycle at his disposal. His alibi, therefore, is unworthy of credence.
[28]

Attempt to Settle the Case

Appellant strongly denies the prosecutions assertion that he attempted to settle the case with
complainants family.
We remain unconvinced. Instead, we concur with the finding of the RTC that the letter dated
November 25, 1997 -- addressed to Orlando and Catherine Linatoc, signed by appellant and
delivered by Lina Linatoc -- was admissible evidence against appellant. Perusal of the letter
reveals that he attempted to bribe Orlando with P150,000 or a house and lot and a promise of an
additional P100,000 in exchange for dropping the charges against him. Under Section 27, Rule
130 of the Rules of Court, an offer of compromise by the accused may be received in evidence as
an implied admission of guilt.
[29]

Voluntary Surrender
Appellant pleads for leniency on account of his alleged voluntary surrender.
We disagree. The act of surrender must be spontaneous, accompanied by an
acknowledgment of guilt, or an intention to save the authorities the trouble and the expense that
search and capture would require. Going to the police station to clear his name does not show
any intent of appellant to surrender unconditionally to the authorities.
[30]

[31]

Medicolegal Officers Testimony

Appellant avers that the medicolegal officer who examined complainant admitted being
unsure of her findings.
We disagree with the assessment by appellant of the testimony of the medicolegal
officer. However, even if we discount the testimony of the latter, complainants testimony by
itself can sustain the formers conviction. Medical examination is not an indispensable
requirement, and its absence does not affect the verdict of conviction, if sufficient evidence is
presented to prove the crime charged. When a rape complainant, especially one of tender age
like Catherine, says that she has been raped, she in effect says all that is necessary to show that
she has indeed been raped.
[32]

Civil Indemnity and Moral Damages

The Solicitor General takes issue with the damages awarded by the RTC. In the assailed
Order, it ordered appellant to pay P50,000 in civil indemnity, P10,000 in moral damages
and P5,000 in exemplary damages for every count of consummated rape; and P25,000 in civil
indemnity for the attempted rape.

Recent jurisprudence has increased the indemnification for the victim in a case of
consummated rape to P75,000 if the crime was committed with, or effectively qualified by, any
of the circumstances under which the death penalty is authorized by the applicable amendatory
laws. Moral damages are pegged at P50,000 without further need of pleading or proof.
[33]

Exemplary damages, on the other hand, are granted when an aggravating circumstance,
which is not offset by a mitigating circumstance, attended the commission of the crime. In
several cases, the relationship between the appellant and the rape victim justifies the award of
exemplary damages, as in this case.
[34]

Second Issue: Modification of Penalties

One day after the promulgation of the April 6, 1998 Decision, the prosecution filed a Motion
for Reconsideration seeking the imposition of the death penalty on appellant for the two cases of
consummated rape and reclusion temporal for the attempted rape, in accordance with Section 11
of RA 7659. The prosecution argued that the Motion would not place appellant in double
jeopardy, because what is sought is just the imposition of the proper penalty as provided by law.
The trial court concurred with the prosecution and granted the Motion in the assailed Order,
saying that the Motion was unopposed and that there was no violation of appellants right against
double jeopardy.
[35]

[36]

We disagree. Conflicting decisions rendered over the years both allowing the prosecution to
seek the reconsideration of a conviction and prohibiting it therefrom necessitate a review of the
rule on the modification of judgments of conviction. Early on, in People v. Ang Cho Kio, the
Court, citing Article 2 of Rule 118 of the pre-1964 Rules of Court, held that the prosecution
cannot move to increase the penalty imposed in a promulgated judgment. Reopening the case for
the purpose of increasing the penalty as sought by the government would place the accused in
double jeopardy. This ruling was followed in People v. Pomeroy and People v. Ruiz.
[37]

[38]

[39]

The 1964 amendment of the Rules, however, allowed the fiscal to move for the modification
or the setting aside of the judgment before it became final or an appeal was perfected. Under
this amendment, a judgment acquired finality and the trial court lost jurisdiction only in the
following cases: (1) after the 15-day period to appeal lapsed, (2) when the defendant
voluntarily submitted to the execution of judgment, (3) when the defendant perfected the appeal,
(4) when the accused withdrew the appeal, (5) when the accused expressly waived in writing
the right to appeal, and (6) when the accused filed a petition for probation. Under this
amendment, the trial court had plenary power to alter or revise its judgment in accordance with
the requirements of law and justice.
[40]

[41]

[42]

[43]

[44]

In 1985, Section 7 of Rule 120 was amended to include the phrase upon motion of the
accused effectively resurrecting the Ang Cho Kio ruling prohibiting the prosecution from seeking
a modification of a judgment of conviction. As amended, the provision was worded as follows:
[45]

SEC. 7. Modification of judgment. A judgment of conviction may, upon motion of the

accused, be modified or set aside by the court rendering it before the judgment has
become final or appeal has been perfected. A judgment in a criminal case becomes

final after the lapse of the period for perfecting an appeal, or when the sentence has
been partially or totally satisfied or served, or the accused has expressly waived in
writing his right to appeal, or the accused has applied for probation.
Under this Rule, a judgment of conviction, before it became final, could be modified or set
aside upon motion of the accused. It obviously aims to protect the accused from being put anew
to defend himself from more serious offenses or penalties which the prosecution or the court may
have overlooked in the original trial. It does not however bar him from seeking or receiving more
favorable modifications.
[46]

Significantly, the present Rules, as amended last year, retained the phrase upon motion of the
accused, as follows:

SEC. 7. Modification of judgment. A judgment of conviction may, upon motion of the

accused, be modified or set aside before it becomes final or before appeal is
perfected. Except where the death penalty is imposed, a judgment becomes final after
the lapse of the period for perfecting an appeal, or when the sentence has been
partially or totally satisfied or served, or when the accused has waived in writing his
right to appeal, or has applied for probation.
Therefore, the assailed Order is erroneous and reversible. The trial court cannot increase the
penalties without the consent of the accused.
We close this Decision with an exhortation to the defense counsel to be more circumspect in
defending appellant and others similarly situated. Counsel should have immediately objected to
the Motion for Reconsideration in the trial court. Because of this failure to take exception, the
RTC judge meekly granted the relief prayed for and condemned the accused, inter alia, to two
death sentences.
Before this Court, counsel was again caught flat-footed by not raising the erroneous basis of
the assailed Order. We cannot disregard such serious lapse. We urge counsel, as well as all the
members of the bench and the bar, to be more vigilant in protecting the rights of the accused -especially those in jeopardy of the death penalty -- and to keep abreast of legal
developments. Indeed, the learning process in law never ceases. Utmost dedication to duty and
excellence is expected of every lawyer.
[47]

WHEREFORE, the appeal is hereby PARTIALLY GRANTED. The assailed Order

is ANNULLED and SET
ASIDE, while
the
assailed
Decision
is AFFIRMED and REINSTATED with the MODIFICATION that the awards of moral damages
are increased to P50,000 and those for exemplary damages to P25,000 for each consummated
rape, pursuant to current jurisprudence.
[48]

SO ORDERED.

G.R. No. 147231

February 18, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
RONNIE ABOLIDOR, CLAUDIO BARCIMO, JR. and FRANCISCO COMODA, accused.
CLAUDIO BARCIMO, JR., appellant.
DECISION
YNARES-SANTIAGO, J.:
This is an appeal from the decision1 dated January 31, 2000 of the Regional Trial Court of Iloilo City,
Branch 31, in Criminal Case No. 40948, convicting Claudio Barcimo, Jr. @ "Noc-noc", Ronnie
Abolidor and Francisco Comoda of the crime of murder, sentencing them to suffer the penalty of
reclusion perpetua and ordering them to pay P100,000.00 as civil indemnity, P16,000.00 as actual
damages and P30,000.00 as moral and exemplary damages.
Claudio Barcimo, Jr., Ronnie Abolidor and Francisco Comoda were indicted for Murder in an
Information alleging:
That on or about the 14th day of June 1993, in the Municpality of New Lucena, Iloilo, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused conspiring,
confederating and helping one another together with another unidentified person, armed with
firearms of unknown caliber, with deliberate intent and decided purpose to kill, with treachery,
superior strength and evident premeditation, did then and there, willfully, unlawfully and feloniously
attack and shoot Thelma Subosa with said firearms hitting the latter on the head, chest and other
parts of her body which caused the death of said Thelma Subosa immediately thereafter.
CONTRARY TO LAW.2
Upon arraignment,3 the three accused pleaded not guilty. Trial on the merits ensued.
The victim, Thelma Subosa, was the mother of 14 children with her deceased husband, Primo
Subosa. Subsequently, she cohabited with her common-law husband Warlito Huesca and lived
together with some of her children in Brgy. Janipa-an, Oeste, New Lucena, Ilo-ilo. Thereafter, Warlito
Huesca also died.
In the early morning of June 14, 1993, a day after Warlito was buried, the victim, her children
namely, Ellyn, Roselyn, Evelyn, Manilyn, Leopoldo and Lilibeth, and Milagros Huesca, the younger
sister of Warlito Huesca, were awakened by the forcible opening of the door of their house. Four
men entered the house and declared a "hold up". The victim pleaded not to be harmed. Instead,
accused Ronnie Abolidor tied her mouth with a handkerchief to silence her. Then appellant Claudio
Barcimo, Jr. shot the victim several times causing her instantaneous death. 4
Prosecution witnesses Ellyn and Roselyn identified Claudio Barcimo, Jr. and Ronnie Abolidor since
they slept on the same mat with the victim and a kerosene lamp was near the victims head. 5 Both
testified that they knew Ronnie Abolidor because he was their neighbor for several years, and

Claudio Barcimo, Jr. because he was a friend of their deceased stepfather. Francisco Comoda was
later identified by the witnesses at the police station.6
Roselyn also testified that on June 12, 1993, at the burial of their stepfather, the victim told her that it
was Claudio Barcimo, Jr. @ "Noc-Noc" who killed Warlito Huesca.7
For his part, appellant denied any participation in the killing of Thelma Subosa and claimed that he
could not have done it because he was a good friend of Warlito Huesca; that on June 13, 1993, at
around 4:00 p.m., he was with Brgy. Capt. Buol in a celebration at the house of Brgy. Capt. Gerardo
Paniza at Brgy. Dawis. He had dinner and watched game of mahjong; that at around 10:00 p.m., he
went to sleep on the sofa near the mahjong table; that the mahjong game lasted until 4:00 a.m. the
following day; that he and Capt. Buol went back to New Lucena at about 6:00 a.m. of June 14,
1993; and on the next day, he left for Manila for treatment of tuberculosis. 8
After trial, the trial court convicted the three accused on January 31, 2000 in a decision, the
dispositive portion of which reads:
WHEREFORE, the prosecution having sufficiently established the guilt of all the three accused,
namely, Claudio Barcimo, Jr., alias Nocnoc, Ronilo Abolidor alias Ronnie and Francisco Comoda,
beyond reasonable doubt (Rule 133, Sec. 2, Revised Rules of Court) of the offense of Murder under
Art. 248, R.P.C. as alleged in the Information, this Court hereby renders judgment sentencing all the
said accused to suffer the penalty of imprisonment consisting of Reclusion Perpetua, with all the
attendant accessory penalties, to pay P100,000.00 as indemnity for death to the heirs of the late
Thelma Sobusa, to pay the sum of P16,000.00 as actual damages, and P30,000.00 by way of moral
and exemplary damages and to pay the costs.
SO ORDERED.9
Only Claudio Barcimo, Jr. appealed the decision raising the following assignment of errors:
A. THE TRIAL COURT ERRED IN RELYING ON THE TESTIMONIES OF PROSECUTION
WITNESSES ELLEN SOBUSA AND ROSELYN SOBUSA AND IN NOT APPRECIATING
THE TESTIMONY OF THE AUNT OF SAID WINTNESSES AS CORROBORATED BY THE
BARANGAY CAPTAIN OF THE PLACE WHERE THE INCIDENT HAPPENED THAT THE
SAID PROSECUTION WITNESSES HAVE NOT IDENTIFIED THE KILLERS.
B. THE TRIAL COURT ERRED IN HOLDING THAT TREACHERY IS ATTENDANT IN THE
COMMISSION OF THE CRIME.
C. THE TRIAL COURT ERRED IN HOLDING THAT NIGHTTIME IS ATTENDANT IN THE
COMMISSION OF THE CRIME.
D. THE TRIAL COURT ERRED IN NOT APPRECIATING THE VOLUNTARY SURRENDER
OF THE ACCUSED.10

Appellant Claudio Barcimo, Jr. contends that his identification by Ellyn and Roselyn as one of the
assailants is doubtful because when asked whether they know the assailants, they replied in the
negative.
The contention is without merit.
By challenging his identification by the witnesses of the prosecution, as one of the assailants of the
victim, the appellant attacks the credibility of said witnesses and the probative weight of their
testimonies. However, when the issue of credibility of witnesses is in question, the findings of facts of
the trial court, its calibration of the testimonies of witnesses and its assessment of the probative
weight thereof, as well as its conclusions anchored on said findings are accorded by the appellate
court high respect if not conclusive effect, precisely because of the unique advantage of the trial
court in observing and monitoring at close range the demeanor, deportment and conduct of the
witnesses as they testify, unless the trial court has overlooked, misconstrued or misinterpreted
cogent facts of substance which if considered might affect the result of the case. 11
In the case at bar, there is no showing that the trial court overlooked, misunderstood, misapplied or
misconstrued any fact of substance that might materially affect the outcome of the case. The trial
court found the collective testimonies of the prosecution witnesses Ellyn and Roselyn to be:
generally impressionable but their natural naivet and inexperience make them reliable witnesses.
Their statements are generally free from any bias or prejudice as to be slanted or malicious. It is
observed that the testimonies of Ellyn and Roselyn Sobusa are direct, straightforward and delivered
without any hesitancy whatsoever.12
The two prosecution witnesses, Ellyn and Roselyn Sobusa, positively identified appellant as the one
who shot the victim. Although the incident occurred during nighttime, the house of the victim was
sufficiently illuminated by the kerosene lamp placed near the head of the victim, which provided
enough light for purposes of identifying the killers.
On direct testimony, Ellyn Sobusa narrated the incident as follows:
Q. Can you recall in the morning of June 14, 1993 if there was any unusual incident that
happened?
A. Yes, sir.
Q. What is that incident about?
A. At around that time I was awakened by the sound of the opening of the door. I saw four (4)
persons entered our house and one them said, "This is a hold up." My mother then pleaded,
"Do not kill me. Have mercy."
Q. What happened after your mother pleaded have mercy?

A. There was a shot and I ducked. Then another shot was fired which I do not know anymore
because I lied with my face down.
Q. Do you know the person who said this is a hold up?
A. Yes, sir.
Q. Who is he?
A. Nocnoc.
Q. How far is this Nocnoc when you said he shot your mother?
A. Very near.
Q. What was the position of your mother by the time she was shot by Nocnoc?
A. She was lying down.
xxx

xxx

xxx

Q. Miss witness, this incident happened at around 2:00 oclock in the morning, why are you
sure that Ronnie Abolidor was one of the four persons who entered your house?
A. Because we have a kerosene lamp placed very near the head of my mother.
Q. How far is that kerosene lamp from your mother?
A. Witness demonstrates about 5 to 6 inches more or less.
Q. At that time that she was shot by Nocnoc, how far is Nocnoc from the kerosene lamp?
A. Nocnoc was situated on the feet of my mother.
Q. What was the position of Nocnoc when he shot your mother?
A. He was standing.13
Considering the illumination from the kerosene lamp, and Ellyns proximity to her mother and to the
appellant, she could have clearly seen and recognized the appellant when he shot the victim.
In People v. Prieto,14 we ruled that the illumination provided by kerosene lamp or wicklamps, and
flashlights, moonlight or starlight may, in proper situations, be considered as sufficient illumination,
making the attack on the credibility of witnesses solely on that ground unmeritorious.

Moreover, Roselyn testified that she was familiar with the voice of the appellant as he was a friend of
his stepfather and she visited appellants house several times.15 The voice of a person is an
acceptable means of identification where it is established that the witness and the accused knew
each other personally and closely for a number of years. Once a person has gained familiarity with
another, identification becomes quite an easy task even from a considerable distance. 16 We also note
that appellant did not deny that Warlito Huesca was his good friend and that he visited their house
many times.17
The credibility of the prosecution witnesses Ellyn and Roselyn is not adversely affected by their
failure to immediately report the identities of the perpetrators to the responding authorities
immediately after the incident. Indubitably, fear stifled the witnesses from voicing their knowledge of
the identities of the perpetrators. There is no rule that a witness should immediately name the
suspect in a crime.18 Nevertheless, the delay was not that long as when the police authorities
investigated the witnesses in the afternoon of June 14, 1993 at Brgy. Agutayan, Sta. Barbara, Iloilo,
they named appellant and accused Ronnie Abolidor as two of the perpetrators. 19
To escape criminal liability, appellant invokes the defense of alibi and denial. He asserts that he
could not have done it considering that Warlito Huesca, the common-law husband of the victim, was
his good friend and at the time of the incident he was at Brgy. Dawis together with Brgy. Capt. Buol
in the house of Brgy. Capt. Gerardo Pineza watching the game of majhong.
We are not convinced.
It is well settled that positive identification, where categorical and consistent and not attended by any
showing of ill motive on the part of the eyewitnesses testifying on the matter, prevails over alibi and
denial which, if not substantiated by clear and convincing evidence, are negative and self-serving
evidence undeserving weight in law.20 Hence, the defense of denial and alibi cannot prosper in the
light of the positive identification by eyewitnesses Ellyn Sobusa and Roselyn Sobusa that appellant
was the one who shot their mother.
We agree with the trial courts appreciation of the presence of qualifying circumstance of 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 specially to insure its execution,
without risk to himself arising from the defense which the offended party might make. It is settled that
there is treachery if the victim, when killed, was sleeping or had just awakened, because in such
cases the victim was in no position to put up any form of defense.21
In the case at bar, the victim had just awakened from sleep because of the forcible opening of their
door. When she was shot by appellant, she was lying down on the mat with a handkerchief tied
around her mouth. Obviously, in this position she can not defend herself from the aggression of the
perpetrators.
The trial court did not err in disregarding the mitigating circumstance of voluntary surrender. To
benefit an accused, the following requisites must be proven, namely: (1) the offender has not
actually been arrested; (2) the offender surrendered himself to a person in authority; and (3) the
surrender was voluntary. A surrender to be voluntary must be spontaneous, showing the intent of the

accused to submit himself unconditionally to the authorities, either because he acknowledges his
guilt, or he wishes to save them the trouble and expense necessarily incurred in his search and
capture. Voluntary surrender presupposes repentance.22 In People v. Viernes,23 we held that going to
the police station to clear ones name does not show any intent to surrender unconditionally to the
authorities.
In the case at bar, appellant surrendered to the authorities after more than one year had lapsed
since the incident and in order to disclaim responsibility for the killing of the victim. This neither
shows repentance or acknowledgment of the crime nor intention to save the government the trouble
and expense necessarily incurred in his search and capture. Besides, at the time of his surrender,
there was a pending warrant of arrest against him. 24 Hence, he should not be credited with the
mitigating circumstance of voluntary surrender.
Appellant is guilty of Murder, qualified by treachery, for the killing of Thelma Sobusa. Article 248 of
the Revised Penal Code, as amended, imposes the penalty of reclusion perpetua to death for
Murder. The trial court was correct in imposing the penalty of reclusion perpetua, there being no
aggravating or mitigating circumstance, pursuant to Article 63, paragraph 2 of the Revised Penal
Code.
The trial court awarded the amount of P100,000.00 as civil indemnity to the heirs of the victim. Said
amount must be reduced to P50,000.00, in line with prevailing jurisprudence. 25
The award of actual damages must also be modified. While appellant admitted the amount of
P19,000.00 as actual damages,26 the trial court only awarded the amount of P16,000.00. 27 Ordinarily,
receipts should support claims of actual damages, but where the amount claimed was admitted, it
should be granted.28 Consequently, the heirs of the victim is entitled to be awarded the amount of
P19,0000.00 as actual damages.
The trial court likewise erred when it awarded the amount of P30,000.00 as moral and exemplary
damages without indicating what amount constitutes moral damages and exemplary damages. In
murder and homicide cases, the award of moral damages should be substantiated by evidence. 29 In
the case at bar, the prosecution failed to present proof of moral damages. Therefore, the same
should be deleted.
On the other hand, exemplary damages must be awarded in view of the attendance of treachery
which qualified the killing to Murder. Under Article 2230 of the Civil Code, exemplary damages as
part of the civil liability may be imposed when the crime was committed with one or more
aggravating circumstances. The term aggravating circumstances as used therein is to be understood
in its broad or generic sense since the law did not specify otherwise. The ordinary qualifying nature
of an aggravating circumstance is a distinction that should only be of consequence to the criminal,
rather than to the civil liability of the offender. Thus, the heirs of the victim are entitled to exemplary
damages in the amount of P25,000.00.30
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Iloilo City, Branch
31, in Criminal Case No. 40948, insofar as it finds Claudio Barcimo, Jr. @ "Noc-noc" guilty beyond
reasonable doubt of the crime of murder and sentences him to suffer the penalty of reclusion

perpetua is AFFIRMED with the MODIFICATION that appellant is ORDERED to pay the heirs of
Thelma Sobusa the amounts of P50,000.00 as civil indemnity, P19,000.00 as actual damages and
P25,000.00 as exemplary damages. The award of moral damages is DELETED.
Costs de oficio.
SO ORDERED.

G.R. No. L-37271

July 1, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
MAGDALENA CALISO, defendant-appellant.
Juan Sumulong for appellant.
Attorney-General Jaranilla for appellee.
ABAD SANTOS, J.:
The appellant in this case was convicted of the crime of murder by the Court of First Instance of
Occidental Negros, and sentenced to suffer the penalty of reclusion perpetua, to indemnify the
parents of the deceased in the sum of P1,000, with the accessory penalties prescribed by law, and
to pay the costs. On this appeal, her counsel de oficio attacks the findings of fact of the trial court,
but does not raise any question of law.
The questions of fact involved in this case are fully discussed in well considered decision of the trial
court, presided over by then Judge Quirico Abeto, which decision reads as follows:
Se halla acusada Magdalena Caliso del delito de asesinato de un nio de 9 meses de edad,
ocurrido en La Carlota, Negros Occidental, el dia 8 de febrero del presente ao, 1932. La
querella alega que la acusada, siendo una criada de los Sres. Esmeralda (Emilio),
voluntaria, ilegal y criminalmente y con el proposito de satisfacer una venganza, administro
cierta cantidad de acido acetico concentrado, que es una sustancia venenosa, a Emilio
Esmeralda, Jr., un nio de 9 meses de edad, causandole quemaduras en la boca, en la
garganta, en los intestinos y otras partes vitales de los organos internos que le produjeron
necesariamente la muerte de la victima, quien sucumbio pocas horas despues; que en la
comision de este delito, han concurrido las circunstancias agravantes de alevosia, abuso de
confianza y que el acto se ha cometido en la propia morada de los padres de la victima.
Despues de presentadas las pruebas, tanto de la acusacion, como de la defensa, y despues
de oidos los brillantes informes aducidos tanto por el Fiscal Provincial, como por el
abogado de oficio de la acusada, el Juzgado se ha reservado la decision para este dia, no
sin antes felicitar tanto a la acusacion como a la defenda, la primera por lo concienzudo en
la reunion y presentacion de sus pruebas, y la segunda por el interes grande con que ha
demostrado a favor de la acusada. El Juzgado ha querido tomar tiempo para decidir esta
causa, porque se da cuenta de lo grave que es el delito cometido y de las circunstancias
tanto de la acusada como de los ofendidos en esta causa. Por un lado, esta la acusada, que
es una mujer que pertenece al sexo debil, en la primavera de su vida, a quien una sentencia
podria privar de todos los beneficios que la vida le ofrece. Por otro lado, una madre loca de

dolor que ha perdido al unico hijo varon de la familia y que considera a la causada como la
persona que le ha arrebatado su unico cario. Por eso el Juzgado ha querido, hasta donde
le ha sido posible, poner toda su atencion en todos los detalles de las pruebas, observando
hasta los menores actos de los testigos y de la acusada.
Y de las pruebas presentadas, el Juzgado encuentra que en la tarde del dia 8 de febrero de
1932, mientras los esposos. Sres. Emilio Esmeralda y Flora Gonzalez estaban durmiendo
tomando la siesta, repentinamente la Sra. de Esmeralda se desperto porque oyo un grito
agudo de su hijo Emilio Esmeralda, de 9 meses de edad, que estaba durmiendo en una
cama al lado opuesto del sitio donde estaba ella durmiendo con su marido. Cuando la Sra.
de Esmeralda llego, seguida de su marido, a la cama donde habia dejado dormido a su hijo,
al levantar el mosquitero de la cama, percibio inmediatamente un olor fuerte de acido
acetico y encontro a su hijo, que seguia llorando fuertemente, con los ojos en blanco, los
labios hinchados y blanquecinos y la cara amoratada, y al levantarle percibio olor de acido
acetico en la respiracion del nio. Entonces grito preguntando quien habia puesto acido
acetico en la boca de su hijo, y como ella es farmaceutica de profesion, se acordo
inmediatamente de un antidoto que podia neutralizar los efectos del acido acetico y ella
misma saco agua de cal y mojando un algodon hidrofilo, limpio la boca del nio, al mismo
tiempo que mandaba a su marido que llamara por telefono al doctor. Pocos momentos
despues llego el Dr. Augusto Locsin, quien segun su declaracion, noto inmediatamente el
olor de acido acetico en la respiracion del nio, y quiso hacer la primera cura, lavando el
estomago del nio, pero la madre no quiso que el lavado llegara hasta el estomago, por el
temor de lastimar la garganta del chiquillo con el 'catheter', y por este motivo el lavado
solamente se pudo hacer hasta la garganta del nio. Despues de algun tiempo, llegaron,
procedentes de Bacolod, los Dres. Orosa y Ochoa, quienes por telefono habian sido
llamados tambien por el padre de la victima. El Dr. Orosa es el jefe medico del Hospital
Provincial de esta provincia, y el Dr. Ochoa es uno de los medicos residentes en dicho
hospital, especialista en las enfermedades de los cinco sentidos. Ambos doctores
declararon positivamente que habian percibido el olor de acido acetico en la respiracion del
nio, y habiendo ellos concluido que el chiquillo habia tomado acido acetico, aplicaron la
cura para eliminar dicha sustancia del organismo del nio, y despues de hacer las primeras
curas, llevaron al nio al Hospital Provincial y alli murio pocos minutos despues de haber
llegado.
Ambos doctores, asi como el Dr. Locsin, son unanimes en la afirmacion de que la muerte del
chiquillo se debio al envenenamiento por medio de acido acetico, y todos, especialmente el
Dr. Ochoa, coinciden en la opinion de que la muerte ha sido por asfixia, pues el acido
acetico ha hecho estragos en la laringe del nio y este no pudo respirar. El Dr. Ochoa que,
como se ha dicho, es un especialista en los cinco sentidos, examino la boca y la garganta
del nio y encontro alli quemaduras ocasionadas, segun el, por el acido acetico. Y tan
seguros estan los doctores de que el nio habia tomado acido acetico y que la muerte del
mismo se debio a esta sustancia, que el mismo Dr. Orosa, que es un medico de muy larga
experiencia y un experto cirujano, le aseguro al Fiscal que no habia necesidad de autopsia
para llegar a una conclusion rayana a la seguridad sobre la causa de la muerte del chiquillio,
y que aun cuando la autopsia demostrara que no existia acido acetico en los intestinos de,
nio, ya porque este habia sido absorbido por el organismo, o ya porque el estomago habia
sido lavado, el estaba segurismo de que la muerte se debio al envenenamiento por acido
acetico, porque el habia olido esa sustancia, cuyo olor es inconfundible, en la respiracion del
nio y ha visto los estragos de la sustancia en la garganta y en la boca del occiso. Ambos
medicos, de un modo positivo, sin dudar ni un momento, aseguraron al Juzgado de que la
causa de la muerte, como se ha repetido varias veces, es por envenenamiento por acido
acetico. Y el Juzgado esta conforme en que en tales circunstancias, no habia necesidad de
autopsia para que el Juzgado pueda concluir, en vista de las afirmaciones de los medicos

basadas en los hechos por ellos encontrados, que la muerte ha sido por envenenamiento
por acido acetico.
El Juzgado no tiene duda alguna de la competencia de estos dos doctores, sobre todo
tratandose de la opinion del Dr. Ochoa, que es un especialista en los cinco sentidos y que
ha reconocido la garganta y la boca del nio, en las cuales encontro quemaduras
pruducidas por aciso acetico.
Aparte de esto, la madre del occiso, que es una farmaceutica, acostumbrada a oler y
distinguir sustancias, percibio el olor del acido acetico en los primeros momentos en que
alzo a su hijo de la cama. El marido de esta seora, Sr. Emilio Esmeralda, tambien es un
quimico y aseguro tambien haber olido el olor fuerte del acido acetico desde los primeros
momentos. Aparte de estas dos personas que pueden equivocarse, ya por su pasion o por
las preocupaciones de momento por estar interesados por su hijo, esta el Sr. Julian Gomeri,
otro quimico que vivia en la misma casa, quien aseguro al Juzgado que al entrar en el
cuarto donde estaba el chiquillo en brazos de su madre, olio inmediatamente el olor
sofocante del acido acetico, tanto es asi que pregunto inmediatamente quien habia puesto
acido acetico en la cama del nio y en seuida se puso a buscar por si habia dicha sustancia
en la cama del nio, pero no encontro ninguna botella de acido acetico, ni rastro de esta
sustancia en la cama, sino en la respiracion del nio.
Por eso el Juzgado repite que esta probado fuera de toda duda racional que el nio Emilio
Esmeralda, Jr., murio a consecuencia de envenenamiento de acido acetico, y es
insostenible la teoria de que pubo haber tenido una indigestion por haber ingerido jugo de
naranja de California despues de haber tomado leche, y de que el olor del acido acetico
podia derivarse del vomito dle chiquillo por la mezcala del jugo de naranja con la leche. Tres
medicos y tres quimicos es imposible que confundan el olor del jugo de naranja que se ha
vuelto acido al mezclarse con la leche, con el olor fuerte del acido acetico concentrado.
Habiendo llegado a esta conclusion de que la muerte del nio Emilio Esmeralda, Jr., se
debio a envenenamiento por acido acetico, la otra cuestion que el Juzgago tiene que
resolver es: quien le administro esta sustancia.
Desde este punto las pruebas son todas circunstanciales unicamente.
Es un hecho probado que dias antes de este suceso, al volver el Sr. Emilio Esmeralda a su
casa, procedente de la fabrica de la Central La Carlota, a eso de la madrugada, not cierto
bulto que se movia en los bajos de su cama en el cuarto-habitacion de el y de su seora
cuando esta pasaba algunos dias en La Carlota. Temiendo que algun ladron se habia
introducido debajo de la cama, cogio su revolver y amenazo con dispararle un tiro al que
estaba alli metido si no salia. Efectivamente de alli salio un hombre y, todo temblando, le dijo
al Sr. Esmeralda que el no era un ladron, sino que estaba alli porque habia sido llamado por
la acusada con quien estaba en relaciones amorosas. El Sr. Esmeralda entonces le
recrimino por su acto y le dejo marchar, conminandole que no volviera a repetir el acto.
Cuando la Sra. Flora Gonzalez llego a La Carlota algunos dias despues, o sea en el dia de
autos, el Sr. Esmeralda, despues del desayuno y estando entonces ausente la acusada por
haber ido al mercado, le conto a su seora lo que habia sucedido en uno de los dias
pasados, o sea, el haber sorprendido a un hombre en su propio cuarto y debajo de su
misma cama, acudiendo a una cita que tuvo con la acusada. La Sra. de Esmeralda, dada su
educacion y por ser mujer al fin, se sintio muy ofendida e indignada por el acto de su criada
y, muy nerviosa, espero la vuelta de la acusada, y cuando esta llego, la Sra. Esmeralda la
busco en la cocina, la empezo a insultar de pies a cabeza, recriminandola por su acto

inmoral y por haberse permitido ocultar a su amante en el propio cuartro de sus amos, y
despues de regaar a la acusada, se volvio a su cuarto, y pareciendole poco la
recriminacion que acababa de hacer a la acusada, otra vez la Sra. de Esmeralda volvio a la
cocina a reprenderla de nuevo, y como no se calmaban los nervios de la Sra. de Esmeralda
en estas dos ocasiones, a medida que volvia a la cocina, emprendia nuevos insultos a la
acusada, en terminos que cuando la Sra. de Esmeralda puso a dormir a su hijo en la cama,
cuando encontro algo sucias las fundas de la almohada, otra vez se fue a la cocina y volvio
a amonestar a la acusada recriminandola y diciendola que solamente sabia tener amantes y
no sabia cumplir sus deberes como criada. Apenas dos horas escasas de ocurrir estos
insultos, ocurrio el suceso que dio lugar a la muerte del nio Emilio Esmeralda, Jr.
Procediendo por eliminacin, el Ministerio Fiscal ha tratado de probar al Juzgado, y asi alega
en su informe, que en el momento de ocurrir el incidente del envenenamiento del nio,
solamente estaban en aquel dia viviendo en la casa donde ocurrio el suceso, diez personas,
a saber: los esposos Esmeralda, sus dos hijas, Lilia y Elsa, el nio Emilio Esmeralda, Jr.,
Julai Gomeri, Jose Colmenares, Catalino Ramos, una criada de unos 12 aos de edad,
llamada Magdalena Soriano, y la aqui acusada. El Ministerio Fiscal dice que no pueden ser
autores dle envenenamiento, ni el Sr. Esmeralda, ni su esposa. El Juzgado, desde luego,
esta conforme con esta eliminacion. No es posible que estos sean los autores de tal
envenenamiento; ademas de ser padres, la actitud de la madre, enloquecida de dolor por la
muerte de su hijo, aleja toda duda. Seria absurda la mas remota suposicion de que estas
personas fuesen los autores de tal envenenamiento. No podia ser Elsa Esmeralda porque
esta, aparte de sus pocos aos, estaba durmiendo con su hermanito en la misma cama
donde ocurrio el incidente. No podia ser Lilia, ni la criada Magdalena Soriano, porque ambas
estaban entonces en el retrete, segun las pruebas; ademas que no podia caber la
suposicion de que, o Magdalena Soriano, o Lilia hayan administrado equivocadamente
acido acetico al nio dormido, por cuanto que la botella que lo contenia estaba en la cocina,
segun la acusada misma, cerca del cantaro de agua donde ella habia puesto, y la acusada,
segun ella misma, estaba toda la tarde en la cocina fregando platos, de tal manera que si
Magdalena Soriano o Lilia hubiesen querido alcanzar la botella de acido acetico, la acusada
los hubiera visto. Julian Gomeri estaba dormido en su cuarto; era un compaero del Sr.
Esmeralda en el trabajo, amigo intomo de la familia y no ha tenido ningun disgusto con
ningun miembro de ella y no hay motivo alguno para atribuir que el haya puesto en la boca
del nio acido acetico. Jose Colmenares estaba en la fabrica de la Central, que dista medio
kilometro de la casa ocupada por los Sres. de Esmeralda, ocupado en sus trabajos como
empleado de dicha Central. Catalino Ramos estaba ausente entonces en la localidad, pues
se encontraba en el pueblo de Talisay. Eliminadas estas personas, solamente queda la
acusada como posible autora del acto de administrar acido acetico al nio Emilio
Esmeralda, Jr.
Desde luego, la prueba de que la acusada, pocas horas antes del suceso, era la unica de la
casa que habia recibido insultos de la madre del nio, es una prueba circunstancial contra
ella. Ninguno tenia motivos de resentimiento hacia ningun miembro de la familia del occiso
mas que la acusada. Ella misma ha admitido durante su testimonio que en aquel dia ella
habia sido reprendida por su ama. Cuando el nio Emilio Esmeralda, Jr., dio un grito agudo
que hizo despertar a su madre, Julian Gomeri, que estaba dormido en el otro cuarto, pudo
abrir los ojos y vio a la acusada saliendo de la puerta de la sala y dirigiendose hacia la
cocina. Por esta sala habia que pasar al salir del cuarto donde estaba dormido el nio, para
ir a la cocina; y la distancia de la puerta de esta sala al sitio donde estaba durmiendo el nio
habia apenas 4 o 5 metros. La acusada no ha podido desmentir esta declaracion de Julian
Gomeri, ni ha podido dar explicacion alguna por que en aquel preciso momento ella salia de
la sala para ir a la cocina. Es posible que despues de haberse puesto el acido acetico en la
boca del nio, este no haya podido gritar inmediatamente, sino algunos segundos despues

al sentir los efectos del acido, de tal manera que la acusada tuvo tiempo para abandonar el
sitio y volver a la cocina y estando en la sala, el nio dio el primer grito que le hizo abrir los
ojos a Julian Gomeri. Este hecho es otra prueba circunstancial bastante fuerte, a juicio del
Juzgado, contra la acusada. Cuando la madre del nio estaba curando a este, ordeno a la
acusada y a Magdalena Soriano a que hirvieran agua en la cocina, y mientras estas dos
criadas cumplian la orden, la acusada, sin motivo alguno plausible, le puso las manos
debajo de las narices de Magdalena Soriano y le dijo: "Mis manos estan oliendo acido
acetico porque se ha derramado algo alli cuando hice vinagre esta maana con acido
acetico." Esta explicacion no pedida hecha por la acusada no parece indicar otra cosa mas
que algun temor que abrigaba por si alguien pudiese oler acido acetico en sus manos. Otra
prueba circunstancial contra la acusada es el hecho de que en la casa ella era la unica que
tenia bajo su custodia esta botella Exhibit A que contenia acido acetico. Magdalena Soriano
no sabia siquiera donde estaba puesta esta botella. Cuando la Sra. de Esmeralda busco
esta botella, cuyo recuerdo le trajo a la memoria al oler el acido acetico en la boca de su
hijo, la acusada fue quien saco la botella de la cocina y le entrego a la Sra. de Esmeralda,
diciendola, poco mas o menos, estas palabras: "Seora, aqui esta botella; no ha salido de la
cocina."
La acusada, al declarar en la silla testifical como testigo a su favor, al ser preguntada por el
Juzgado si ha olido acido acetico al entrar en el cuarto, se inmuto algun tanto; pero
inmediatamente se repuso y nego rotundamente haber olido acido acetico. El Juzgado le
dirigio varias veces esta pregunta, y la acusada insistio en su negativa. El Juzgado le
pregunto si conocia el acido acetico y el olor del mismo, y afirmo que si y volvio a afirmar
que no habia percibido tal olor en el cuarto al entrar y durante todo el tiempo que habia
permanecido alli. Ahora bien, tres medicos imparciales, does quimicos y una farmaceutica,
aparte de Magdalena Soriano, han olido el inconfundible olor de acido acetico en el cuarto.
La unica que no ha podido oler dicha sustancia es la acusada. En la comisionde un crimen,
el unico que tiene interes en negar la existencia de un cuerpo del delito es casi siempre, o
sin casi, el autor del mismo. Y esta actitud de la acusada de negar una cosa tan evidente y
sobre la cual el Juzgado no tiene duda alguna, corrobora, a juicio del Juzgado, todas las
pruebas circunstanciales que se han presentado por la acusacion.
La defensa hace enfasis en el hecho de que la acusada, lejos de escaparse, entro en el
cuarto para ayudar a la madre del nio para salvar a este, y tanto es asi que la misma
acusada, segun Julian Gomeri, tan pronto como la Sra. de Esmeralda pidio algodon, fue la
que saco de las manos de Julian Gomeri el algodon y lo entrego a la Sra. de Esmeralda.
Este hecho no es, a juicio del Juzgado, suficiente para demostrar la inocencia de la
acusada. Cuantas veces ha sucedido que el que ha realizado un acto criminal, se
arrepiente de su crimen y trata de remediarlo! El que acaba de herir a un hombre, despues
de pasado el primer momento de obcecacion, si el pudiera curarlo, indudablemente no se
encontraria mejor medico para el herido. Tambien puede suceder que la acusada, habiendo
querido causar daos unicamente a la criatura, haya querido usar de toda su habilidad para
que los efectos del dao no fuesen tan grandes. La actitud de la acusada, por tanto, es
perfectamente explicable y no incompatible con su culpabilidad. Otra actitud de la acusada
que parece tener bastante peso es su actitud cuando ella volvio por la tarde del dia siguiente
del suceso a la estacion de policia cuando el Jefe de Policia le dijo que volviera en aquella
tarde. Y el abogado de la acusada tiene razon para hacer enfasis sobre esta circunstancia.
La acusada ha sido arrestada casi a media noche del mismo dia del suceso. Fue puesta en
libertad a las 11 de la maana del dia siguiente, en vista de que no llegaba orden de arresto
contra ella; pero el Jefe de Policia le dijo que volviera a las 3 en punto de la tarde, y a las 3
de aquella tarde la acusada volvio al edificio municipal. El abogado de la acusada arguye
que una conciencia criminal no procederia como ha procedido la acusada; ella se hubiera
escapado. El Juzgado ha considerado detenidamente este aspecto de la cuestion; ha

meditado largamente sobre este acto de la acusada; pero la conclusion del Juzgado es que
si la acusada volvio en la tarde de aquel dia al edificio municipal, era porque la acusada no
sabia que el nio Emilio Esmeralda, Jr., habia muerto. Ademas, ella debia saber que, mujer
que era, no podia ir a ninguna parte sin que le alcanzaran las autoridades correspondientes
y, por tanto, era mejor para ella presentarse ante las autoridades aparentando tener una
conciencia tranquila y preparando en esa forma su futura defensa. El Juzgado cree que
desde el momento en que la acusada mostro solicitud suma para salvar la vida del nio que
ella habia segado en momentos de colera, la acusada ya habia concebido su plan de
defensa.
Se dira tal vez quo no es usual que, habiendo la madre del nio ofendido a la acusada, esta,
en lugar de tomar venganza de la madre, que muchas oportunidades hubiera ella tenido
porque, segun ha tratado de resaltar el abogado de la defensa, la acusada dormia en el
mismo cuarto de los esposos Esmeralda y preparaba la comida de estos, haya dirigido su
accion vengadora a una inocente criatura, maxime teniendo en consideracion que la
acusada es una mujer y las mujeras, por regla general, son mas caritativas que los
hombres. En primer lugar, ya sea un hombre, ya sea una mujer, cuando estan obcecados
por el odio y la venganza, ya no consideran las circunstancias y procuran dirigir su
venganza al que les ha ofendido alli mismo donde es mas facil ejecutar. En este caso, el
nio Emilio Esmeralda, Jr., era el que dormia mas cerca a la puerta entrando
inmediatamente, procedente de la cocina, y era el que, por su tierna edad, podia sentir
inmediatamente los efectos del acido acetico, pudiendo asi ejecutar su venganza con mayor
seguridad de su parte. Causando dao al nio, que, por ser el unico varon de la familia, era
el mas querido por los Sres. de Esmeralda, se causaba mayor dao a la Sra. de Esmeralda.
El Juzgado, desde luego, acepta la teoria de que la mujer es mucha mas caritativa que el
hombre y mucho mas debil del consenso comun; pero precisamente por ser mas caritativa,
por ser mas debil, cuando la mujer se vuelve mala y quiere vengarse, su venganza busca al
mas debil tambien y sobre este hace recaer esa venganza, y la experiencia diaria nos
ensea que los seres mas debiles, sean hombres o mujeres, cuando se vuelven malos, son
peores enemigos; y no es nada extrao, por tanto, que la acusada, temiendo atacar al Sr.
Esmeralda y a la Sra. de Esmeralda, porque contra ellos no tenia asegurada la ejecucion de
su venganza, ha escogido como victima a una criatura indefensa de 9 meses de edad.
Por las consideraciones expuestas, el Juzgado encuentra probado fuera de toda duda
racional que Emilio Esmeralda, Jr., de 9 meses de edad, fallecio el dia 8 de febrero de 1932,
a consecuencia de envenenamiento por acido acetico concentrado, y que la acusada,
aprovechando la ocasion en que sus amos estaban durmiendo, administro una pequea
cantidad de esta sustancia a dicho nio, quemandole de este modo la boca y la garganta, a
consecuencia de lo cual dicho nio fallecio.
Se declara, por tanto, a la acusada Magdalena Caliso culpable del delito de asesinato, y
estimando en la comision del delito la concurrencia de la circunstancia agravante de
alevosia, porque se trata de un ser indefenso, y de la circunstancia de haberse realizado el
acto en la propia morada de los padres de la victima, cuyas circunstancias estan
compensadas con las circunstancias atenuantes de falta de instruccion y de haber obrado la
acusada a impulsos de un sentimiento que la hayan producido arrebato y obcecacion, le
condena a la pena de reclusion perpetua, a indemnizar a los padres del occiso en la suma
de P1,000, con las accesorias de ley, y a pagar las costas del juicio. Asi se ordena.
We agree to the conclusions of fact reached by the trial court. As to the application of the law to the
facts of the case, we are inclined to the proposition advanced by the Attorney-General that in the
commission of the crime the aggravating circumstance of grave abuse of confidence was present

since the appellant was the domestic servant of the family and was sometimes the deceased child's
amah. The circumstance of the crime having been committed in the dwelling of the offended party,
considered by the lower court as another aggravating circumstance, should be disregarded as both
the victim and the appellant were living in the same house. (U.S. vs. Rodriguez, 9 Phil., 136; U.S. vs.
Destrito and De Ocampo, 23 Phil., 28.) Likewise, threachery cannot be considered to aggravate the
penalty as it is inherent in the offense of murder by means of poisoning (3 Viada, p. 29). Similarly the
finding of the trial court that the appellant acted under an impulse so powerful as naturally to have
produced passion and obfuscation should be discarded because the accused, in poisoning the child,
was actuated more by a spirit of lawlessness and revenge than by any sudden impulse of natural
and uncontrollable fury (People vs. Hernandez, 43 Phil., 104, 111) and because such sudden burst
of passion was not provoked by prior unjust or improper acts of the victim or of his parents (U.S. vs.
Taylor, 6 Phil., 162), since Flora Gonzalez had the perfect right to reprimand the defendant for
indecently converting the family's bedroom into a rendezvous of herself and her lover.
The aggravating circumstance of abuse of confidence being offset by the extenuating circumstance
of defendant's lack of instruction considered by the lower court, the medium degree of the prescribed
penalty should, therefore, be imposed, which, in this case, is reclusion perpetua.
The penalty imposed by the lower court upon the appellant being thus within the limits fixed by law,
the judgment appealed from is affirmed with costs. So ordered.

March 30, 1982

G.R. No. L-49430
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BELINDA LORA Y VEQUIZO alias LORENA SUMILEW, accusedappellant.
PER CURIAM:The defendant Belinda Lora y Vequizo alias Lorena Sumilew was
accused in the Court of First Instance of Davao of serious illegal detention
with murder in an amended information which reads as follows:

, J.:
The defendant Belinda Lora y Vequizo alias Lorena Sumilew was accused in the
Court of First Instance of Davao of serious illegal detention with murder in an
amended information which reads as follows:

The undersigned accuses the above-named accused of the crime of Serious Illegal
Detention with Murder under Art. 267 in relation to Articles 248 and 48 of
the Revised Penal Code, committed as follows:
That on or about May 28, 1976, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the abovementioned accused being then a private
person, wilfully, unlawfully and feloniously and for the purpose of extorting ransom
from spouses Ricardo Yap and Myrna Yap, illegally detained their three (3) year old
child Oliver Yap, a minor, from May 28 to 29, 1975 and with treachery, evident
premeditation and with intent to kill wilfully, unlawfully and feloniously attacked,
assaulted Oliver Yap by tying his mouth with stocking, placing him inside a Pallmall
cigarette box, covering the said box with a mat and piece of sack and filing the same
with other boxes in the third floor (bodega) of the house owned by said spouses
Ricardo Yap and Myrna Yap, thereby inflicting upon said Oliver Yap the following to
wit: Asphyxia due to suffocation" which caused the death of said Oliver Yap.
That the commission of the foregoing offense was attended by the following
aggravating circumstances: (1) taking advantage of superior strength; (2) disregard of
the respect due the offended party on account of his age; (3) that the crime was
committed in the dwelling of the offended party; (4) that the crime was committed
with abuse of confidence, she being a domestic helper (maid) or obvious
ungratefulness; (5) that craft, fraud and disguise was employed; and (6) that the crime
was committed with cruelty, by deliberately and inhumanly augmenting the suffering
of the victim.
Contrary to law.
According to the trial judge, "he has appointed as counsel de oficio Atty. Hildegardo
Inigo a bar topnotcher with considerable practice," in view of the gravity of the
offense.
Upon motion of the counsel for the accused, the arraignment was postponed to enable
him to study the charge against the accused. Thereafter, after being arraigned, the

accused Belinda Lora in the presence and with the assistance of her counsel, entered a
plea of guilty in Visayan dialect, which is her native dialect.
The Court thereafter directed the prosecution to present its evidence and the counsel
for the "accused manifested that the evidence of the defense would be presented only
for proving mitigating circumstances.
Eight witnesses for the prosecution, namely: Myrna Yap, David Cortez, Fidencio
Bisnar, Ricardo Yap, Agaton Bonahos, Emmanuel Mesias, Rolando Estillori and Juan
Abear, Jr. were presented.
The facts are undisputed.
On May 26, 1975, accused Belinda Lora using the name "Lorena Sumilew", applied
as a housemaid in the household of the spouses Ricardo Yap and Myrna Yap at 373
Ramon Magsaysay Avenue, Davao City. The spouses had a store on the ground floor;
a mezzanine floor was used as their residence; while the third floor was used as
a bodegafor their stocks. They had two children, Emily and Oliver Yap. Oliver was 3
years and five months old. 1
Belinda Lora was accepted as a housemaid in the residence of the Yaps and reported
for work the following day, May 27, 1975. Her duties were to wash clothes and to
look after Oliver Yap. 2
On May 28, 1975, Mrs. Myrna Yap returned home from the market to find her motherin-law and her husband panicky because their son, Oliver, and the maid, accused
Belinda Lora were missing. The mother-in-law had found a ransom note at the
stairway to the mezzanine floor. The note said that Oliver was to be sold to a couple
and that the writer (defendant herein) needed money for her mother's hospitalization.
3 Four pieces of residence certificates were also found inside the paper bag of the
maid. One residence certificate bore the No. 1941785 with the name Sumiliw, Lorena
Pamintil. 4
The incident was reported immediately to the police. Mrs. Yap, accompanied by one
Mrs. Erlinda Velez, went to look for Oliver and the housemaid. Not finding them in

Davao City, they went to Digos and Bansalan (Davao) and looked in the hospitals
there. The residence certificate in the name of Lorena Sumiliw was issued in Digos
and the ransom letter stated that the mother of the defendant was very sick. 5
In the evening of May 28, 1975, the Yaps received two telephone calls at their
residence. The first call was received by Mrs. Yaps's mother-in-law while the second
call was received by Ricardo Yap. Lorena Sumiliw (defendant), the caller, instructed
Ricardo Yap to bring the amount of P3,000.00 to the island infront of the (Davao)
Regional Hospital and to go there alone without any policeman or companion, after
which his son (Oliver) would be left to the security guard of the hospital at the
emergency exit. 6
The Yaps borrowed the amount of P3,000.00. Upon instructions of the NBI, the
money was marked with Mrs. Yap's initials "MY". 7
Ricardo Yap wrapped the P3,000.00 in a piece of paper and went to the Regional
Hospital at 9:30 in the evening of May 28, 1975. He placed the money near the Imelda
Playground. He proceeded to the hospital and looked for his child from the security
guard. However, the security guard said nobody left a boy with him. 8 Ricardo Yap
stayed at a corner looking and calling for his child but could not locate him. After ten
minutes, he went back to where he had placed the money but the money was not there
anymore. He waited until 11:00 o'clock, after which he went home. 9
The following morning, May 29, 1975, Mrs. Yap received a phone call from the
accused informing her that her son was at the Minrapco Terminal and that she was
asking for another P 3,000.00. Mrs. Yap proceeded to the terminal whereupon she
learned that the terminal had moved to a place near a theatre. When Myrna Yap
arrived at the place, she saw the accused board a Minica bus. She followed and
grabbed the accused. 10 As the accused said that Mrs. Yap's son was brought to the
Regional Hospital they proceeded there. Upon arriving there, a couple, Mr. and Mrs.
Bonahos said that the Yap son was in Panacan. Mrs. Yap and the accused went to
Panacan. After arriving at Panacan the accused told Mrs. Yap that her son was in the
custody of a woman whom she paid P 100.00 and that the woman would return her
son at 6:00 o'clock P.M. that day. Mrs. Yap therefore, made the accused sign a

promissory note that she would return Oliver on the same day. 11 After the accused
boarded a bus for Surigao, Mrs. Yap listed down the bus number and the seat number
and reported to Lt. Mesias of the Davao City Police Force that the "kidnapper" was on
board the Surigao bus. 12
Lt. Mesias stopped the bus and placed the accused under arrest. From the body of the
accused was taken an improvised pouch containing 36 pieces of P 50.00 bills and 24
pieces of P 20.00 bills. The money had initials reading "MY" below the serial
numbers. 13
The following morning, May 30, 1975, upon waking up at around 6 o'clock in his
house, Ricardo Yap noticed that blood was dripping from the ceiling. He went
upstairs, which was being utilized as a bodega, to verify, and found his son placed
inside the carton of Marlboro cigarettes. The head of the child was inside the carton
while his feet protruded outside. 14 His mouth was tied with stockings. 15 The child
was already dead. 16 He had died of "asphyxhia due to suffocation. 17
The defendant presented evidence only for the purpose of proving alleged mitigating
circumstances. She claims that she did not intend to kill the child. 18
To support her plea for mercy, she stated that she had three children aged from one to
five years whom she left in Pagadian. 19 On objection to the materiality of the
evidence, the appellant's counsel pleaded that she be allowed to prove those facts for
"humanitarian consideration" which might enable the Supreme Court to review the
penalty with compassion. 20
The defendant capped her testimony with the following plea:
A I would request the Honorable Court that LIFE IMPRISONMENT will be the
penalty imposed upon me because I really committed the crime. I did not really intend
to kill the child.
Q Would you like to make any further appeal?
A I really repent to what I have done, sir. 21

On cross-examination, the defendant admitted that she gagged the child's mouth with
stockings; placed the child inside the box with head down and legs up; that she
covered the box with some sacks and boxes and left the child in that condition inside
the storeroom of the house of Ricardo Yap. 22
When the defendant left the store room, the voice of the child, who was previously
shouting, "was already slow and to make sure that his voice would not be heard I
closed the door. 23
On the basis of the plea of guilt of the defendant and the evidence of the prosecution,
the court convicted the defendant with complex crime of serious illegal detention with
murder and imposed, among others, the extreme penalty of death.
Hence, this automatic review.
The guilt of the defendant is so patent that there is no further need to discuss the
evidence. The only task remaining after the plea of guilty and the presentation of the
undisputed evidence for the prosecution is to determine the crime committed, the
penalty to be imposed and the aggravating and mitigating circumstances to be
appreciated. The crime actually committed is not the complex crime of kidnapping
with murder, as found by the trial court, but the simple crime of murder qualified by
treachery.
Kidnapping is a crime against liberty defined in Article 267, Title IX, Book 11 of
theRevised Penal Code. The essence of kidnapping or serious illegal detention is
the actual confinement or restraint of the victim or the deprivation of his liberty. 24
Where there is no showing that the accused intended to deprive their victims of their
liberty for some time and for some purpose, and there being no appreciable interval
between their being taken and their being shot from which kidnapping may be
inferred, the crimes committed were murder and frustrated murder and not the
complex crimes of kidnapping with murder and kidnapping with frustrated murder. 25
In the instant case. the gagging of the child with stockings, placing him in a box with
head down and legs upward and covering the box with some sacks and other boxes

were only the methods of the defendant to commit murder. The child instantly died of
suffocation. This is evident from the testimony of Dr. Juan Abear, Jr. who performed
the autopsy on May 30, 1975 at 8 o' clock in the morning. When Dr. Abear conducted
the autopsy, the body of the child was already in a state of decomposition. Dr. Abear
opined that the child must have died three days before the autopsy. 26 In other words,
the child died practically on the very day that the child was stuffed into the box on
May 28,1975.
The demand for ransom did not convert the offense into kidnapping with murder. The
defendant was well aware that the child would be suffocated to death in a few
moments after she left. The demand for ransom is only a part of the diabolic scheme
of the defendant to murder the child, to conceal his body and then demand money
before the discovery of the cadaver.
There is treachery because the victim is only a 3-year old child. 27 The commission of
the offense was attended with the aggravating circumstances of lack of respect due to
the age of the victim, cruelty and abuse of confidence.
The circumstance of lack of respect due to age applies in cases where the victim is of
tender age as well as of old age. This circumstance was applied in a case where one of
the victims in a murder case was a 12-year-old boy. 28 In the instant case, the victim
was only 3 years old. The gagging of the mouth of a three-year-old child with
stockings, dumping him with head downwards into a box, and covering the box with
sacks and other boxes, thereby causing slow suffocation, is cruelty. There was also
abuse of confidence because the victim was entrusted to the care of the appellant. The
appellant's main duty in the household is to take care of the minor child. There existed
a relation of trust and confidence between the appellant and the one against whom the
crime was committed and the appellant made use of such relation to commit the
crime.
When the killer of the child is the domestic servant of the family and was sometimes
the deceased child's amah the aggravating circumstance of grave abuse of confidence
is present. 29

On the other hand, the defendant invokes the following as mitigating circumstances,
namely; (1) she pleaded guilty; (2) she did not intend to commit so grave a wrong, (3)
she was overcome by fear that her mother will die unless she is able to raise money
for her mother's hospitalization, thus; she committed kidnaping for ransom (4) the
appellant should live so that her children who are of tender years would not be
deprived of a mother; and (5) we have a compassionate society. 30
The only mitigating circumstance that may be appreciated in favor of the defendant is
her voluntary plea of guilt. Her contention that she had no intention to kill the child
lacks merit. The defendant was well aware that her act of gagging the mouth of the
child with stockings, placing him with head down and feet up in a box and covering
the box with sacks and other boxes would result to the instant suffocation of the child.
There being three aggravating circumstances, namely, lack of respect due to the tender
age of the victim, cruelty and abuse of confidence and only one mitigating
circumstance in favor of the defendant, she deserves the death penalty imposed upon
her by the lower court.
WHEREFORE, the defendant is guilty beyond reasonable doubt of the crime of
murder qualified with treachery and appreciating the aggravating circumstances
already indicated above, We hereby impose the penalty of death with costs de oficio.
With this modification, the rest of the decision is hereby affirmed.

G.R. No. L-63243 February 27, 1987

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROSALIO LAGUARDIA, DANTE BARTULAY, BALTAZAR BERAN, and RAYMUNDO
BARTULAY, accused-appellant.

CRUZ, J.:

In this automatic review of the death sentence imposed upon the lone accused-appellant, we are
asked to determine if, while concededly guilty of robbery, he should also be held for the killing of the
victim notwithstanding that this was actually done by another person. The Solicitor General says the
judgment should be affirmed because of the proven conspiracy between the accused-appellant and
the actual killer. The defense, on the other hand, impliedly admits the conspiracy only with respect to
the robbery but not as regards the murder which it claims was not part of the original plan.
The facts, as derived by the lower court from the evidence adduced at the trial, are briefly narrated
as follows:
On September 6, 1979, at about 10:30 o'clock in the evening, Dante Bartulay and Baltazar Beran,
the herein accused-appellant, signaled to a stop a truck owned by Fortune Tobacco Corporation then
being driven by Miguel Chua on the zigzag road in Kilometer 36 inside the Iwahig Penal Colony at
Puerto Princess in Palawan City. Beran approached one side of the truck and pretended to borrow a
screwdriver and while Chua looked for the tool Bartulay shouted from the other side of the truck,
"This is a hold-up!" With guns drawn, the two men ordered Chua and his three companions, Benigno
Caca, Frank Morante, and Eduardo Aniar, to alight. Bartulay forced Chua to lie face down on the
ground about 3 meters away from his companions. Bartulay was pointing a gun at Chua's head. On
orders of Bartulay, Beran got the wallets and watches of the four. Bartulay asked about the money
they were carrying and Chua pointed to its location. Beran got it and gave it to Bartulay. The money
amounted to about P100,000.00. Then, again on orders of Bartulay, Beran herded the three
companions inside the panel where they were locked. It was while they were still inside the panel
that Beran and the others heard two gunshots. When Beran got off the truck, he saw Chua still lying
on the ground but now bleeding in the head. Thereafter, Beran drove the truck from the scene of the
crime while Bartulay followed in a motorcycle. Somehow, Caca and Morante managed to escape by
jumping from the truck through a secret exit of the panel. They subsequently reported the
occurrence to the law-enforcement authorities who, returning to the scene of the crane the following
day, found Chua already dead. 1 Beran was arrested on September 8, 1979, with the amount of
P4,500.00 in his possession and upon questioning pointed to the place where he had hidden the pistol he
had used during the hold-up.2 Further investigation disclosed that the motorcycle and guns by Bartulay
and Beran were owned by Rosalio Laguardia, who was Identified by Beran as the mastermind of the
crime. 3 The money stolen was supposed to have been divided in the house of Raymundo Bartulay
Dante's brother. 4
Dante Bartulay could not be tried at the time because he was at large. Baltazar Beran was found
guilty of robbery with homicide and sentenced to death. Rosalio Laguardia was convicted
(presumably as a principal by inducement) and sentenced to life imprisonment. Raymundo Bartulay
was acquitted for insufficient evidence. 5
This case involves Baltazar Beren only as Laguardia later withdraw his appeal.
In finding Beran guilty and sentencing him to death, the trial court made the following conclusion:
... It is undisputed that the crime committed by the accused was robbery with
homicide, and the killing of the victim was done with the use of a gun. The heinous
act was preceded by taking of the wallets, the watches and the money from the
victim of the robbery. Whenever a homicide has been committed as a consequence,
or on the occasion, of a robbery, all those who took part as principals in the robbery
will also be held guilty as principals of the special complex crime of robbery with
homicide (Pp. v. Darwin Veloso y Militante, alias Carlito Villareal, accused-appellant,
G.R. No. 32900, Feb. 25, 1982). In the case at bar, evidence is strong and clear that

Baltazar Beran did not endeavor to prevent the homicide of the killing (sic) of Mike
Chua by Dante Bartulay ... 6
The accused-appellant now faults the trial court for holding inter alia that Beran should be held guilty
of the homicide committed on the occasion of the robbery notwithstanding that he was not the one
who actually killed Chua; that he should have tried to prevent the killing of Chua but did not; and that
the aggravating circumstances of treachery, evident premeditation, nighttime and use of a motor
vehicle should not have been appreciated against him.
The accused-appellant suggests that the case 7 cited by the lower court in convicting him is not
applicable because the crime involved therein was robbery with homicide committed by a band whereas
the robbery in the instant case was perpetrated only by two persons. The trial judge did err in this respect.
Nevertheless, as the Solicitor General correctly points out, the offense, while not covered by Article 296 of
the Revised Penal Code, still comes under Article 294(l) which may also impose the death penalty "when
by reason or on occasion of the robbery, the crime of homicide shall have been committed" even
if cuadrilla is not present.
Under this provision, it is enough to show conspiracy among the participants in the crime of robbery
to render each and every one of them liable for any homicide that may be committed by reason or on
the occasion of such robbery. And in the instant case, evidence of such conspiracy is not lacking.
Indeed, it is not disputed that Bartulay and Beran together went to the scene of the crime and lay in
wait for Chua's truck; that they together pretended to borrow a screwdriver from the victim; that while
Bartulay pointed a gun at Chua and his companions, Beran divested them of their cash and
watches; that Beran got the bag containing P100,000.00 on orders of Bartulay; that also on the
latter's orders, Beran locked up Chua's three companions in the panel; that Beran drove the stolen
truck away from the scene of the crime while Bartulay followed in the motorcycle; and that Beran
later got P4,500.00 as his share of the stolen money.
A conspiracy exists when two or more persons come to an agreement concerning the commission of
a felony and decide to commit it, whether they act through the physical volition of one or all
proceeding severally or collectively.8 It is also a settled rule that conspiracies need not be established by
direct evidence of acts charged but may and generally must be proved by a number of indefinite acts,
conditions, and circumstances which vary according to the purpose accomplished. The very existence of
a conspiracy is generally a matter of inference deduced from certain acts of the persons accused, done in
pursuance of an apparent criminal or unlawful purpose in common between them. The existence of the
agreement, or joint assent of the minds, need not be proved directly. 9
Confronted with the established fact of conspiracy to commit the robbery, the accused-appellant
cannot plead that he should not be held responsible for the murder on the ground that he did not
conspire to commit it or that he had no opportunity to prevent its commission.
"The rule is that where the conspiracy to commit robbery was conclusively shown by the concurrent
and coordinate acts of the accused, and homicide was committed as a consequence or on the
occasion of the robbery, all the accused are guilty of robo con homicidio whether or not they actually
participated in the killing." 10
That rule was applied in People v. Puno, 11 where the accused and confederate Tenarife, in pursuance
of a preconceived plan, boarded a jeep and help up its passengers, with Tenarife killing one of them after
divesting him of his wallet and his watch. Puno himself robbed another passenger but did not participate
in the shooting of the deceased victim. Nonetheless he was held guilty of robbery with homicide as the
killing was committed by Tenarife in connection with the robbery which Puno and Tenarife had conspired
to commit.

Generally, when robo con homicidio has been proven, all those who had taken part in
the robbery are guilty of the complex crime unless it appears that they endeavored to
prevent the homicide (U.S. v. Macalalad, 9 Phil. 1; Decisions of Supreme Court of
Spain dated Feb. 23 and April 30, 1972 and June 19, 1980; 3 Viada, Codigo Penal
347, 354, 358). 12
It may be observed that, although Puno did not actually take part in the killing of Oyong
by Tenarife, his presence in the jeepney was a crucial factor that emboldened his
confederate in perpetrating that homicidal act with impunity. 13

In People v. Veloso, 14 this Court held:

... Well entrenched is the rule that whenever a homicide has been committed as a
consequence, or on the occasion, of a robbery, all those who took part as principals
in the robbery will also be held guilty as principals of the special complex crime of
robbery with homicide, although they did not actually take part in the homicide,
unless it clearly appears that they endeavored to prevent the homicide.
That decision cited the earlier case of People v. Mangulabnan, 15 where it was categorically declared:
... in order to determine the existence of the crime of robbery with homicide it is
enough that a homicide would result by reason or on the occasion of the robbery
(Decision of Supreme Court of Spain of Nov. 26, 1892, and Jan. 7, 1878, quoted in 2
Hidalgo's Penal Code, p. 267, and 259-260, respectively). This High Tribunal
speaking of the accessory character of the circumstances leading to the homicide,
has also held that it is immaterial that the death would supervene by mere
accident(Decision of Sept. 9, 1886, Oct. 22, 1907, April 30, 1910 and July 14, 1917),
provided that the homicide be produced by reason or on the occasion of robbery,
inasmuch as it is only the resultobtained, without reference or distinction as to the
circumstances, causes, modes or persons intervening in the commission of the
crime, that has to be taken into consideration (Decision of Jan. 12, 1889 see
Cuello Calon's Codigo, Penal pp. 501-502; Emphasis supplied).
It is futile therefore for the accused-appellant to argue that he was inside the panel with the
companions of Chua when the latter was killed by Bartulay and could not have stopped the shooting.
The undisputed fact is that the killing was committed on the occasion of the robbery which Beran
and Bartulay plotted and were carrying out together. In the absence of clear evidence that he
endeavored to prevent it, Beran is as guilty of the homicide as Bartulay although it was Bartulay who
pulled the trigger.
Concerning the aggravating circumstances which the accused-appellant insists should not have
been taken against him, the Court notes that no specific finding regarding such circumstances was
made by the trial judge, who simply meted out the penalties without explanation. The trial judge,
notably, did not say why, after finding both Beran and Laguardia guilty, the former should be
sentenced to death and the latter only to life imprisonment. If any error has been committed with
respect to Laguardia's penalty and the circumstances so indicate it is too late to correct it now
as the same has long since become final. By withdrawing his appeal, Laguardia may have benefited
from the trial judge's carelessness.
The trial court also does not clearly impute to Beran any ag gravating circumstance and merely hints
at nighttime and use of motor vehicle almost in passing. This is another censurable flaw in the

decision. It is no wonder that the case itself is perplexed over the accused-appellant's assignment of
error that the trial court had taken the said several aggravating circumstances against him.
In any event, it is clear that, as alleged in the amended information, the crime committed by Beran
was aggravated by despoblado and justified the imposition on him of the death penalty as prescribed
by Article 294 of the Revised Penal Code. The evidence shows that the accused lay in wait for the
truck being driven by Chua at an isolated portion of Highway 36, choosing that particular spot where
they could commit the crime they were planning without disturbance or discovery and with easy
opportunity for escape. 16 The use of motor vehicles is also appreciated because the conspirators drove
away from the scene of the crime to facilitate their escape and also to prevent the other passengers of the
truck, whom they took with them, from reporting the offense to the authorities. 17
Nighttime is rejected, however, because it was not especially sought, as Chua's trip schedule and
not the discretion of the culprits determined the time of its commission. Evident premeditation is, of
course, inherent in the crime of robbery and was not proved in the commission of the killing. As for
treachery, there is no evidence of its employment as none of the witnesses actually saw the shooting
of Chua, being all inside the panel when they heard the fatal shots.
Miguel Chua was only 32 years old at the time he was killed and left a wife and three children aged,
respectively, 11, 10 and 8, the youngest a daughter. To provide for his family, he was willing to work
even at night, not unaware perhaps, given the condition of the times, of the dangers that lurked in
the desolate routes he traveled, considering especially the sizeable amounts of money he often
carried. If he was nonetheless undeterred, it was probably because, like the promising young man
that he was, he had a dream for the future. Tragically, that dream died with him on the lonely stretch
of road where greed lay in ambush with a gun.
The indemnity for the death of Chua is increased to P30,000.00. Funeral expenses amounted to
P16,500.00. 18As the victim was earning at the time of his death a monthly compensation of
P2,500.00, 19 consisting of salary and commission, or P30,000.00 annually, and could have lived about 24
more years, 20 his total earnings for the period would have amounted to P720,000.00. The heirs are also
entitled to this amount plus P10,000.00 moral damages and P10,000.00 exemplary damages. 21
WHEREFORE, the appealed decision is AFFIRMED as MODIFIED but in view of the provisions of
the new Constitution, the death penalty is reduced to reclusion perpetua. The accused-appellant
shall also pay the civil indemnity specified above, and costs.
SO ORDERED.

G.R. No. 178541

March 27, 2008

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ANGELO ZETA, Accused-Appellant.
DECISION
CHICO-NAZARIO, J.:

For review is the Decision dated 30 June 2006 of the Court of Appeals in CA-G.R. CR-H.C. No.
02054,1 affirmingin toto the Decision2 dated 29 November 2002 of the Quezon City Regional Trial
Court (RTC), Branch 88, in Criminal Case No. Q-95-63787, finding accused-appellant Angelo Zeta
and his wife, Petronilla Zeta (Petronilla), guilty of murder.
The facts are as follows:
On 6 November 1995, an Information3 was filed before the RTC charging appellant and Petronilla of
Murder, thus:
That on or about the 28th day of October 1995, in Quezon City, Philippines, the said accused,
conspiring together, confederating with and mutually helping each other, with intent to kill, did then
and there, willfully, unlawfully and feloniously with evident premeditation, treachery, assault, attack
and employ personal violence upon the person of RAMON GARCIA y LOPEZ by then and there
shooting the latter with the use of a .45 cal. pistol hitting him on the different parts of his body,
thereby causing the instant and immediate cause of his death, to the damage and prejudice of the
heirs of said RAMON GARCIA Y LOPEZ.
When arraigned on 20 December 1995, appellant and Petronilla, assisted by their respective
counsels de parte, pleaded "Not Guilty" to the charge of murder.4 Trial on the merits thereafter
ensued.
The prosecution presented as witnesses Aleine Mercado (Aleine), Dr. Maria Cristina Freyra (Dr.
Freyra), Police Inspector Solomon Segundo (Inspector Segundo), Rey Jude Naverra (Rey), Edwin
Ronk (Edwin), Francisco Garcia (Francisco), SPO1 Carlos Villarin (SPO1 Villarin), and SPO2 Wakab
Magundacan (SPO2 Magundacan). Their testimonies, taken together, bear the following:
On 28 October 1995, at around 12:00 midnight, Edwin, Rey and a certain Melvin Castillo (Melvin)
had a drinking spree outside the house of Rey located at No. 30-B Tacio Street, La Loma, Quezon
City. At about 2:00 in the morning of the same date, a car stopped in front of the three. Appellant was
driving the car while Petronilla was seated beside him. Petronilla opened the cars window and
asked Edwin if he knows Ramon and the latters address at No. 25-C General Tinio Street, La Loma,
Quezon City. Edwin replied that he did not know Ramon or his address. Thereafter, appellant and
Petronilla left on board the car and proceeded to General Tinio Street, La Loma, Quezon City.5
At about 2:15 in the morning of the same date, the car boarded by appellant and Petronilla stopped
in front of Ramons house at No. 25-C General Tinio Street, La Loma, Quezon City. After parking
nearby, appellant and Petronilla alighted from the car and proceeded to Ramons house. Petronilla
repeatedly called Ramon. Aleine (niece of Cristina Mercado, Ramons common-law wife) was
awakened by the repeated calls and opened the door. Petronilla requested Aleine to call Ramon.
Aleine told Petronilla that she would wake up Ramon who was then sleeping with Cristina at the
second floor of the house. Aleine invited appellant and Petronilla inside the house but the two replied
that they would just wait for Ramon outside. Aleine proceeded to the second floor of the house and
knocked at the door of Ramons room. Ramon woke up. Subsequently, Aleine went downstairs and
proceeded to the dining table. While Ramon was walking down the stairs, appellant suddenly
entered the house and shot Ramon several times on different parts of the body with a caliber .45

Llama pistol. Upon seeing appellant shooting Ramon, Aleine hid inside the restroom. When the
gunshots ceased, Aleine went out of the restroom and saw Ramon sprawled and bloodied on the
ground floor.6
Edwin, Rey and Melvin were still drinking when they heard the gunshots. They rushed to the
direction of Ramons house. When they were nearing Ramons house, Petronilla suddenly stepped
out of the main door of Ramons house followed by appellant. Melvin uttered, "Mamamatay
tao." Petronilla merely looked at them and entered the car. Appellant also proceeded inside the car
and thereafter the car sped away.7
Subsequently, Aleine went out of the house and called for help. Edwin, Rey and Melvin approached
her. They carried Ramon and placed him inside a vehicle owned by a neighbor. While they were on
their way to the Chinese General Hospital, Ramon told Aleine that the one who shot him was "asawa
ni Nellie na kapitbahay namin sa Las Pias." Ramon died due to gunshot wounds while being
operated on at the Chinese General Hospital. Thereafter, the police arrived at the crime scene and
recovered several empty bullet shells and slugs.8
At about 10:55 the following morning, SPO2 Magundacan received a report that a carnapped vehicle
was parked along Lakandula Street, P. Tuazon Blvd., Quezon City. SPO2 Magundacan proceeded
thereat and saw appellant about to board a car armed with a gun visibly tucked in his waist. SPO2
Magundacan approached appellant and asked him for a license and/or registration papers of the gun
but appellant did not show any. SP02 Magundacan also inquired from Petronilla, who was inside the
car also armed with a gun tucked in her waist, if she had a license but Petronilla likewise failed to
show any. Thus, SPO2 Magundacan brought appellant and Petronilla to Police Precinct 8, Project 4,
Quezon City, for investigation. Subsequently, appellant and Petronilla, upon the request of the La
Loma police, were turned over to the police station for investigation as regards the killing of Ramon.
Appellant and Petronilla were thereafter charged with murder.9
The prosecution also adduced documentary and object evidence to buttress the testimonies of its
witnesses, to wit: (1) death certificate of Ramon; 10 (2) sworn statement of Aleine;11 (3) request for
autopsy examination of Ramons body;12 (4) medico-legal report issued and signed by Dr. Freyra
stating that Ramon died due to gunshot wounds;13 (5) anatomical sketch of a human body signed by
Dr. Freyra indicating the location of the gunshot wounds on Ramons body;14 (6) physical science
report stating that a paraffin test was conducted on both hands of Ramon and they were found
negative for gunpowder nitrates;15 (7) handwritten sketch made by Edwin depicting the streets of
Tacio and General Tinio;16 (8) request for ballistic examination of the object evidence recovered from
the crime scene;17 (9) ballistic report issued and signed by Inspector Segundo stating that the bullet
extracted from Ramons body and other bullets recovered from the crime scene were similar to the
bullets of the caliber .45 Llama pistol seized from appellant; 18 (10) certification from the Personnel
Division of the Philippine Long Distance Telephone Company (PLDT) affirming that Ramon was its
regular employee from 14 February 1981 up to 27 October 1995 and that he was receiving a
monthly salary of P13,687.00 plus other benefits;19 (11) summary of expenses and receipts for the
wake of Ramon;20 (12) joint affidavit of SPO2 Magundacan and a certain PO2 Ronald Zamora; 21 (13)
photographs showing the spot where appellant and Petronilla stood while waiting for Ramon, the
stairs where Ramon walked down shortly before he was shot several times by appellant, the area
inside Ramons house where appellant positioned himself while shooting at Ramon, and the location

where Ramon fell down after he was shot several times by appellant; 22 (14) nine empty shells and
seven deformed slugs fired from a caliber .45 pistol which were recovered by SPO1 Villarin from the
crime scene;23 (15) a deformed slug fired from a caliber .45 pistol which was extracted from Ramons
body; (16) test bullets fired from the caliber .45 Llama pistol seized from appellant; 24 (17) the caliber .
45 Llama pistol with Serial Number C-27854 seized from appellant;25 and (18) a calling card
recovered from Ramon with the print label "Cristine Rent A Car," "Angelo D. Zeta" and with
telephone numbers and addresses.26
For its part, the defense presented the testimonies of appellant, Petronilla, and Annabelle Vergara
(Annabelle) to refute the foregoing allegations. Their version of the incident is as follows:
On 27 October 1995, at about 10:00 in the evening, appellant, Petronilla and Annabelle (housemaid
of the couple) were in the couples house at Cainta, Rizal. 27 Later, appellant took Petronillas caliber .
38 pistol and went to his brothers (Jose Zeta, Jr.) house in Marikina arriving therein at around 12:00
midnight. Jose was out of the house so appellant waited for him. At about 2:30 in the morning of 28
October 1995, Jose arrived. Thereafter, appellant demanded from Jose the return of his three
firearms, one of which is a caliber .45 pistol. Jose, however, handed only the caliber .45 pistol to
appellant. Appellant berated Jose for refusing to return the two other firearms. Irked, Jose drew a
gun. Appellant also drew the caliber .45 pistol and shot Jose four times. Jose fell down on the
ground. Afterwards, appellant left the house, took Joses car which was parked near the house, and
proceeded to Police Precinct 8, Project 4, Quezon City, where he waited for a certain Tony Tolentino
whom he claims to be a policeman assigned at the Southern Police District. At about 9:00 in the
morning of 28 October 1995, the policeman on duty at Precinct 8 informed appellant that the latters
car parked inside the precinct was a carnapped vehicle. The policemen searched the car and found
several guns including the caliber .45 and the caliber .38. Appellant was thereupon detained and
charged with illegal possession of firearms and carnapping. 28
At about 10:00 in the morning of 28 October 1995, Petronilla received a telephone call informing her
that appellant was at Police Precinct 8, Project 4, Quezon City. She immediately proceeded thereat
and presented documents relative to her ownership and license of the caliber .38 seized from
appellant. Thereafter, she went home at about 11:00 in the evening. 29
On 2 November 1995, Petronilla visited appellant at Precinct 8. During the visit, Aleine arrived at
Precinct 8 and pointed to appellant and Petronilla. Subsequently, appellant and Petronilla were
informed by the police that they were suspects in the killing of Ramon. Thereafter, they were
charged with murder.30
After trial, the RTC rendered a Decision on 29 November 2002 convicting appellant and Petronilla of
murder. It held that appellant and Petronilla conspired in killing Ramon. It also ruled that Ramons
killing was attended by the aggravating circumstances of evident premeditation and nocturnity. In
conclusion, it imposed the death penalty on appellant while Petronilla was merely sentenced
to reclusion perpetua "owing to her being a mother and her lesser degree of participation in the
killing of Ramon." The fallo of the decision reads:
Accordingly, based on the evidence presented by the prosecution and the defense and finding both
accused guilty beyond reasonable doubt of the crime of MURDER attended by the aggravating

circumstances of evident premeditation and nocturnity without being offset by any mitigating
circumstances, the accused Angelo Zeta is hereby sentenced to death by lethal injection. The wife
and co-accused Petronilla Zeta, although a co-conspirator in the commission of the offense charged,
is hereby sentenced to RECLUSION PERPETUA owing to her being a mother and her lesser degree
of participation in the act of murder.
The accused Angelo Zeta and Petronilla Zeta are also sentenced to indemnify in SOLIDUM the heirs
of the victim in the amount of P50,000.00 for the death of Ramon Garcia; P146,000.00 for the
hospital and burial expenses; and P1,642,440.00 for the lost income of the deceased reckoned at 10
years of productive life, plus costs.
The .45 caliber Llama pistol with Serial Number C-27854 is confiscated in favor of the Government
to be kept by the Philippine National Police as mandated by law.31
On 9 December 2002, the RTC issued an Order forwarding the records of the instant case to Us for
automatic review because of the death penalty imposed on appellant. 32
On 24 December 2002, Petronilla filed a Notice of Appeal with the RTC stating that she would
appeal her conviction to this Court.33
On 28 April 2004, Petronilla, through counsel, filed a Motion to Withdraw Appeal before us 34 stating
that:
After a thorough review of the available stenographic notes obtained by the close relatives of the
accused-appellant from the Regional Trial Court, the undersigned counsel found out that there are
no testimonial and/or documentary evidence presented before the lower Trial Court that could
sufficiently serve as justifiable basis to warrant the reversal of the appealed decision rendered
insofar as PETRONILLA ZETA is concerned.
Moreover, the undersigned counsel sustained serious physical injuries that render difficult to further
handle the appeal that will require lengthy preparation of appellants brief and other legal pleadings
as may be required under the Rules of Court.
Consequently, after discussion with accused-appellant PETRONILLA ZETA, the undersigned
counsel informed her that he is now constrained to withdraw his appearance in the above-entitled
appealed case.
Upon being informed of the health predicament of the undersigned counsel and after being
enlightened about the weakness of the appeal, accused-appellant PETRONILLA ZETA willfully and
voluntarily decided to WITHDRAW the appeal and do hereby signify to the Honorable Court that she
is no longer interested in the further prosecution of her appeal. She, likewise, has no objection to the
withdrawal of the appearance of Atty. Alfredo E. Anasco, as her counsel in the above-entitled case.
WHEREFORE, it is respectfully prayed that the above-entitled appeal be ordered withdrawn and the
MOTION TO WITHDRAW APPEAL be GRANTED, and the withdrawal of appearance of counsel be
given due course.

On 28 September 2004, we issued a Resolution granting Petronillas motion to withdraw appeal. 35

On 22 November 2005, we issued a Resolution remanding the instant case to the Court of Appeals
for proper disposition pursuant to our ruling in People v. Mateo.36 On 30 June 2006, the Court of
Appeals promulgated its Decision affirming in toto the Decision of the RTC. Thus:
Thus, after finding that the trial courts conclusions are supported by the evidence presented and in
full accord with existing law and jurisprudence, We find no reason to set it aside.
WHEREFORE, based on the foregoing premises, the appeal is hereby DISMISSED. The November
29, 2002 Decision of the Regional Trial Court of Quezon City, Branch 88 in Criminal Case No. Q-9563787 is AFFIRMED.37
Appellant elevated the present case before us on the following grounds:
I.
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT
DESPITE THE FACT THAT THE PROSECUTION WITNESSES DID NOT POSITIVELY
IDENTIFY HIM;
II.
THE TRIAL COURT ERRED IN DISREGARDING THE DEFENSE OF DENIAL AND ALIBI
INTERPOSED BY THE ACCUSED-APPELLANT;
III.
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE
FACT THAT HIS GUILT WAS UNDER A SHADOW OF DOUBT.38
Apropos the first issue, appellant claims that although Edwin and Rey positively identified Petronilla
as the one who asked them about Ramon and his address shortly before the incident occurred, the
two, nevertheless, failed to identify appellant as Petronillas companion during the said questioning.
He also argues that Aleines testimony identifying him as the one who shot Ramon during the
incident is not morally certain because Aleine narrated that she saw only the side portion of his face
and the color of the shirt he wore during the incident. 39
It appears that Edwin and Rey did not actually see appellant shoot Ramon during the incident.
Nonetheless, Aleine saw appellant shoot Ramon on that fateful night. Her positive identification of
appellant and direct account of the shooting incident is clear, thus:
ATTY. A. OLIVETTI (DIRECT EXAMINATION)
Q. Aleine Mercado, are you the same Aleine Mercado who is listed as one of the witnesses
in this case?

WITNESS
A. Yes, sir.
Q. Do you know the accused in this case?
A. Yes, sir.
Q. If they are inside the courtroom, will you identify them?
A. Yes, sir.
Q. Will you please look around and point before the Honorable Court the person of the
accused in this case?
A. Yes, sir. That man wearing yellow T-shirt and that lady who is also wearing yellow shirt.
(witness pointing to a man who when asked of his name identified himself as Angelo Zeta
and to a lady beside Angelo Zeta who when asked of her name identified herself as
Petronilla Zeta.)
xxx
Q. On October 28, 1995, at about 2:15 in the morning, do you remember if there was an
unusual incident that happened?
A. Yes, sir.
Q. Will you please tell the Court briefly what that unusual incident was?
A. Tito Ramon Garcia was shot, Sir.
Q. And who is this Tito Ramon Garcia that you are talking about?
A. He is the live-in partner of my aunt Cristy.
Q. A while ago you mentioned that you have been living with your auntie and Tito Ramon
Garcia in Gen. Tinio, La Loma, Quezon City. Will you please describe before the Honorable
Court the residence or your house at that time where you were living with your auntie and
Tito Ramon Garcia?
A. It is a small house we were living in. It has a mezzanine and it measures 4 x 3 meters, sir.
xxxx
Q. Do you know the person who shot your Tito Ramon Garcia?

A. Yes, sir.
Q. Will you please tell the Honorable Court the name of the person who shot Ramon Garcia?
A. Angelo Zeta.
Q. Where in particular did Mr. Angelo Zeta shot Mr. Ramon Garcia?
A. Inside our house, sir.
Q. And how was he able to enter your house?
A. Our door then was opened, sir.
Q. Why was your door opened at that time?
A. I heard a woman calling for my Tito Ramon and so I opened the door, sir.
Q. What time was this Madam Witness?
A. 2:15.
Q. 2:15 in the afternoon?
A. 2:15 in the morning, your honor.
xxxx
ATTY. A. OLIVETTI
Q. And who was that woman that you saw was outside calling Mr. Ramon Garcia?
A. Petronilla Zeta, sir.
Q. When you opened the door and you saw this woman, what happened between you and
her?
A. She asked me if a certain Ramon Garcia was there.
Q. What was your reply?
A. I told her he was sleeping. He was upstairs.
Q. And what did the woman do after that if she did anything?
A. She told me to call for my Tito Ramon.

Q. What did you do after she asked you to call Mr. Ramon Garcia?
A. I told her to enter before I call my Tito Ramon but they answered that they will remain
outside.
Q. And so after they refused to enter the house, what did you do as they were asking you to
call Mr. Ramon Garcia?
A. I told them to wait and then I went upstairs.
Q. What did you do upstairs?
A. I knocked at the door to wake up my Tito Ramon.
xxxx
Q. And was your Tito Ramon able to wake up?
A. When I felt that they were awakened, I went downstairs.
Q. Where in particular downstairs did you go?
A. Near our dining table, sir.
Q. How long was it from the door? How far was it from the door?
A. Two-arms-length, sir, or "dalawang dipa," sir.
Q. And what happened as you stood by downstairs?
A. While Tito Ramon was going down, sir, Angelo Zeta suddenly entered our house and
immediately shot him several times.
Q. How far were you from Mr. Angelo Zeta when you saw him?
I withdraw that.
How far were you from Mr. Angelo Zeta when you saw him suddenly entered the house and
shot Mr. Ramon Garcia?
A. Less than one meter, sir.
x x x x.
Q. Where was Petronilla Zeta at that time that the shooting occurred?

A. She was outside the door, sir.

xxxx
Q. What did you do as you were standing and while Mr. Angelo Zeta was shooting Mr.
Ramon Garcia inside the house?
A. When I heard two shots, I run to the C.R. or comfort room.
Q. As you were in the C.R., what happened?
A. I heard successive shots, sir.
Q. How long did you stay in the C.R.?
A. Until the shots had stopped . . . Until the firing had stopped, sir.
Q. And you sensed that the firing had stopped, what did you do?
A. I slowly opened the door to take a look if Angelo Zeta and companion were still there.
Q. And what did you see?
A. They were no longer there, sir.
Q. And you saw that they have guns, what did you do?
A. I went out of the C.R. and I returned to the place where I was before where I was
previously standing.
Q. And what did you see when you reached that portion that you are talking about?
A. I saw Tito Ramon lying frustrate and blooded.
Q And what did you do when you see (sic) him on that particular condition?
A. I peeped at the door to find out if Angelo Zeta and companion were still there.
Q. And what did you see?
A. They were no longer there.
Q. And what did you do after that?
A. I knocked at the door of the owner of the house to ask for help. 40

It should be emphasized that the testimony of a single witness, if positive and credible, as in the
case of Aleine, is sufficient to support a conviction even in the charge of murder.41
Appellants argument that Aleines testimony identifying him as the one who shot Ramon is not
morally certain because she saw only the side portion of his face and the color of the shirt he wore
during the incident, deserves scant consideration. A person can still be properly identified and
recognized even by merely looking at the side portion of his face. To be sure, Aleine recognized and
identified appellant in the police line-up and during trial as the one who shot Ramon. Experience
dictates that precisely because of the unusual acts of violence committed right before their eyes,
witnesses can remember with a high degree of reliability the identity of criminals at any given
time.42 A startling or frightful experience creates an indelible impression in the mind that can be
recalled vividly.43 It bears stressing that Aleine was less than one meter away from appellant when
the latter shot Ramon. The crime scene was also well-lighted during the incident because there was
a fluorescent bulb inside the house.44
The testimonies of Aleine and of the other prosecution witnesses are in harmony with the
documentary and object evidence submitted by the prosecution. The RTC and the Court of Appeals
found their testimonies to be credible and trustworthy. The rule is that the findings of the trial court,
its calibration of the testimonies of the witnesses and its assessment of the probative weight thereof,
as well as its conclusions anchored on said findings are accorded respect if not conclusive effect.
This is more true if such findings were affirmed by the appellate court. When the trial courts findings
have been affirmed by the appellate court, said findings are generally binding upon this Court. 45
Anent the second and third issues, appellant contends that his conviction is unwarranted based on
the following reasons: (1) the prosecution failed to establish any possible motive for the appellant to
kill Ramon; (2) there is an inconsistency in the testimony of the prosecution witnesses regarding the
type and color of the car boarded by appellant and Petronilla before and after the incident. Edwin
testified that appellant and Petronilla left the scene on board a gold-colored Mitsubishi Lancer;
while SPO2 Magundacan narrated that he apprehended appellant while the latter was about to
board a blue Toyota Corona Macho; (3) Jose could have been the one who fatally shot Ramon and
appellant could have been mistakenly identified as Jose because they have the same physical
appearance and facial features; (4) if appellant was indeed the one who shot Ramon, he could have
immediately confessed such crime to the police just like what he did after killing Jose; and (5) there
is no proof that appellant is the husband of a certain "Mely." Ramons dying declaration to Aleine was
that it was the husband of "Mely," his former neighbor in Las Pinas, who shot him. Further,
Petronillas nickname could either be "Nellie" or "Nelia" and not "Mely" as referred to by Ramon. 46
Lack of motive does not preclude conviction when the crime and the participation of the accused in
the crime are definitely shown, particularly when we consider that it is a matter of judicial knowledge
that persons have killed or committed serious offenses for no reason at all. Motive gains importance
only when the identity of the culprit is doubtful.47 Where a reliable eyewitness has fully and
satisfactorily identified the accused as the perpetrator of the felony, motive becomes immaterial to
the successful prosecution of a criminal case.48 It is obvious from the records that Aleine positively
and categorically identified appellant as the person who shot Ramon during the incident. Her
testimony was corroborated on relevant points by Edwin and Rey.

There is no inconsistency in the testimonies of the prosecution witnesses regarding the car boarded
by appellant and Petronilla in leaving the crime scene and, subsequently, at the time they were
apprehended. Edwin testified that appellant and Petronilla left the scene after the incident which was
between 2:15 and 2:30 in the morning on board a gold-colored Mitsubishi Lancer.49 SPO2
Magundacan told the court that he apprehended appellant at around 10:55 in the morning of the
same day while the latter was about to board a blue Toyota Corona Macho.50 In his affidavit
attached to the records, Jan Ryan Zeta, son of Jose, narrated that Jose was shot by appellant at
about 4:00 in the morning of the same date.51 Appellant admitted that after shooting Jose on the
early morning of 28 October 1995, he took the latters Toyota Corona Macho and left. 52 Thus, it is
probable that after leaving the crime scene at La Loma on board a gold Mitsubishi Lancer at about
2:15 or 2:30 in the morning, appellant and Petronilla then proceeded to Marikina and took Joses
blue Toyota Corona Macho. This explains why the car of appellant and Petronilla used in leaving the
crime scene was different from that which they used at the time of their apprehension.
Appellants theory of alibi that it was physically impossible for him to be at the crime scene in La
Loma when the incident occurred because he was in Marikina, and that Jose could have been the
one who fatally shot Ramon is flimsy and cannot prevail over the positive and credible testimony of
Aleine. Appellant was mistakenly identified as Jose because they have the same physical
appearance and facial feature. In addition, the empty bullet shells and slugs recovered from the
crime scene were found to have the same characteristics as those of the bullets of appellants
caliber .45 Llama pistol. Further, there is no testimonial or documentary proof showing that it was
Jose who shot Ramon. Appellant himself testified that he met Jose in the latters house in Marikina
at about 2:30 in the morning of 28 October 1995. On the other hand, the shooting of Ramon at La
Loma, Quezon City occurred at about 2:15 in the morning of the same date. Hence, it was
impossible for Jose to be at La Loma, Quezon City and to have shot Ramon at such time and place.
It is insignificant whether Petronilla was referred to by Ramon in his dying declaration as "Mely" or
"Nellie." As correctly observed by the Court of Appeals, Ramon sustained twelve gunshot wounds
and was catching his breath when he uttered the name or nickname of Petronilla as the wife of
appellant. Thus, understandably, he could not have spoken clearly in such a difficult situation.
Moreover, Ramon referred to "Nellie" or "Mely" as his former neighbor in Las Pias. Likewise,
appellant and Petronilla admitted that Ramon was their former neighbor in Las Pias. 53
We now go to the propriety of the penalty imposed and the damages awarded by the RTC which the
Court of Appeals affirmed.
The RTC held that the killing of Ramon qualifies as murder because of the presence of the
aggravating circumstances of evident premeditation and nighttime or nocturnity. It is a rule of
evidence that aggravating circumstances must be proven as clearly as the crime itself. 54
Evident premeditation qualifies the killing of a person to murder if the following elements are present:
(1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that
the culprit clung to his resolve; and (3) a sufficient interval of time between the determination or
conception and the execution of the crime to allow him to reflect upon the consequence of his act
and to allow his conscience to overcome the resolution of his will if he desired to hearken to its
warning.55

The first two elements of evident premeditation are present in the case at bar.
The time manifesting Petronilla and appellants determination to kill Ramon was when they, at about
2:00 in the morning of 28 October 1995, repeatedly asked Edwin about Ramon and the latters
address, and when they subsequently proceeded to the house of Ramon.
The fact that appellant and Petronilla waited for Ramon, and appellants subsequent act of shooting
him at around 2:15-2:30 in the morning of 28 October 1995 indicate that they had clung to their
determination to kill Ramon.
The third element of evident premeditation, however, is lacking in the instant case. The span of thirty
minutes or half an hour from the time appellant and Petronilla showed their determination to kill
Ramon (2:00 in the morning of 28 October 1995) up to the time appellant shot to death Ramon
(2:15-2:30 in the morning of 28 October 1995) could not have afforded them full opportunity for
meditation and reflection on the consequences of the crime they committed. 56 We have held that the
lapse of thirty minutes between the determination to commit a crime and the execution thereof is
insufficient for a full meditation on the consequences of the act.57
The essence of premeditation is that the execution of the criminal act must be preceded by cool
thought and reflection on the resolution to carry out the criminal intent during a space of time
sufficient to arrive at a calm judgment. To justify the inference of deliberate premeditation, there must
be a period sufficient in a judicial sense to afford full opportunity for meditation and reflection and to
allow the conscience of the actor to overcome the resolution of his will if he desires to hearken to its
warning. Where no sufficient lapse of time is appreciable from the determination to commit the crime
until its execution, evident premeditation cannot be appreciated.58
Nonetheless, we find that treachery attended the killing of Ramon.
There is treachery when the offender commits any of the crimes against a person, employing
means, methods or forms in the execution thereof which tend directly and specially to ensure its
execution, without risk to himself arising from any defensive or retaliatory act which the victim might
make.59 The essence of treachery is a deliberate and sudden attack that renders the victim unable
and unprepared to defend himself by reason of the suddenness and severity of the attack. Two
essential elements are required in order that treachery can be appreciated: (1) the employment of
means, methods or manner of execution that would ensure the offenders safety from any retaliatory
act on the part of the offended party who has, thus, no opportunity for self-defense or retaliation; and
(2) a deliberate or conscious choice of means, methods or manner of execution. Further, this
aggravating circumstance must be alleged in the information and duly proven. 60
In the case at bar, treachery was alleged in the information and all its elements were duly
established by the prosecution.
It has been established that Ramon, still groggy after having been awakened by Aleine, was walking
down the stairs when appellant suddenly shot him. The suddenness and unexpectedness of the
appellants attack rendered Ramon defenseless and without means of escape. Appellant admitted
that he was a member of a gun club and was proficient in using his caliber .45 Llama pistol. 61 In fact,

he was good at shooting a moving target during his practice. 62 He also stated that he owned five
firearms.63 Evidently, appellant took advantage of his experience and skill in practice shooting and in
guns to exact the death of Ramon. There is no doubt that appellants use of a caliber .45 Llama
pistol, as well as his act of positioning himself in a shooting stance and of shooting Ramon several
times on the chest area and on other parts of body, were obviously adopted by him to prevent
Ramon from retaliating or escaping. Considering that Ramon was unarmed, groggy from sleep, and
was casually walking down narrow stairs unmindful of the danger that lurked behind, there was
absolutely no way for him to defend himself or escape.
As regards the appreciation by the RTC of the aggravating circumstance of nocturnity, it should be
underscored that nocturnity or nighttime is, by and of itself, not an aggravating circumstance. It
becomes so only when (1) it was especially sought by the offender; or (2) it was taken advantage of
by him; or (3) it facilitated the commission of the crime by ensuring the offenders immunity from
capture.64
Although the crime in the instant case was committed between 2:15 and 2:30 in the morning, no
evidence was presented showing that nighttime was especially and purposely sought by appellant to
facilitate the commission of the crime, or that it was availed of for the purpose of impunity. Moreover,
the crime scene was well-lighted by a fluorescent bulb. We have held that nocturnity is not
aggravating where the place of the commission of the crime was well-illuminated. 65
Even if we were to assume that nocturnity was present in the case at bar, this cannot still be
appreciated in view of the presence of treachery that attended the killing of Ramon. Nighttime cannot
be considered an aggravating circumstance separate from treachery, since nighttime is absorbed in
treachery.66
Accordingly, the death penalty imposed by the RTC on appellant should be modified. Article 248 of
the Revised Penal Code states that murder is punishable by reclusion perpetua to death. Article 63
of the same Code provides that if the penalty is composed of two indivisible penalties, as in the
instant case, and there are no aggravating or mitigating circumstances, the lesser penalty shall be
applied. Since there is no mitigating or aggravating circumstance in the instant case, and treachery
cannot be considered as an aggravating circumstance as it was already considered as a qualifying
circumstance, the lesser penalty of reclusion perpetua should be imposed.67
The award of damages and its corresponding amount rendered by the RTC should also be modified
in line with current jurisprudence.
In addition to the civil indemnity of P50,000.00 for Ramons death, the award of moral damages
amounting toP50,000.00 is also proper since it is mandatory in murder cases, without need of proof
and allegation other than the death of the victim.68
The heirs of Ramon are also entitled to exemplary damages in the amount of P25,000.00, since the
qualifying circumstance of treachery was firmly established. 69
The amount of actual damages should be reduced from P146,000.00 to P115,473.00 per
computation of the official receipts attached to the records.70
1avvphi1

The heirs of Ramon should also be indemnified for loss of earning capacity pursuant to Article 2206
of the New Civil Code.71 Consistent with our previous decisions,72 the formula for the indemnification
of loss of earning capacity is:
Net Earning Capacity

= Life Expectancy x Gross Annual Income (GAI) - Living Expenses

= 2/3 (80 - age of deceased) x (GAI - 50% of GAI).

Ramons death certificate states that he was 37 years old at the time of his demise. 73 A certification
from Ramons employer, Philippine Long Distance Telephone Company, shows that Ramon was
earning an annual gross income of P164,244.00.74
Applying the above-stated formula, the indemnity for the loss of earning capacity of Ramon
is P2,354,163.99, computed as follows:
Net Earning Capacity

= 2/3 (43) x (P164,244.00 - P82,122.00)

= 28.66 x P82,122.00
= P2,354,163.99

WHEREFORE, after due deliberation, the Decision of the Court of Appeals dated 30 June 2006 in
CA-G.R. CR-H.C. No. 02054 is hereby AFFIRMED with the following MODIFICATIONS: (1) the
penalty of death imposed on appellant is lowered to reclusion perpetua; (2) appellant is ordered to
pay the heirs of Ramon Garcia the amounts of P50,000.00 as moral damages and P25,000.00 as
exemplary damages; (3) the award of actual damages is reduced to P115,473.00; and (4) the
indemnity for Ramons loss of earning capacity is increased toP2,354,163.99. The award of civil
indemnity in the amount of P50,000.00 is maintained.
Appellants caliber .45 Llama pistol with Serial Number C-27854 is hereby confiscated in favor of the
Government.
SO ORDERED.