Professional Documents
Culture Documents
DECISION
Internal Findings:
PANGANIBAN, J.:
(1) Cutting of the upper and lower lobe of the right lung.
By interposing self-defense, herein appellant admits
authorship of the killing. Thus, shifted to him is the burden of proof
showing that the killing was justified. Despite his failure to prove
self-defense, he may be convicted only of homicide, not murder,
because of the inability of the prosecution to establish any
qualifying circumstance. Here, treachery is negated by the victims
awareness of the impending attack.
The Case
For automatic review before the Court is the May 29, 2001
Decision[1] of the Regional Trial Court (RTC) of Urdaneta,
Pangasinan (Branch 46) in Criminal Case No. U-10792, finding
appellant guilty of murder beyond reasonable doubt and
sentencing him to death. The dispositive portion of the Decision
reads as follows:
WHEREFORE, JUDGMENT is hereby rendered CONVICTING beyond
reasonable doubt accused Timoteo Escarlos of the crime of Murder and
the Court sentences him to suffer the penalty of DEATH; he is likewise
ordered to indemnify the heirs of Antonio Balisacan the sum
of P28,650.00 as actual damages, the sum of P50,000.00 as moral
damages and the further sum of P50,000.00 as exemplary damages.
The Clerk of Court is hereby ordered to prepare the mittimus.
The Jail Warden, Bureau of Jail Management and Penology (BJMP)
Urdaneta District Jail, Urdaneta City, is hereby ordered to deliver the
living body of Timoteo Escarlos to the National Bilibid Prisons,
Muntinlupa City, immediately upon receipt of this Decision.[2]
The Information[3] dated August 29, 2000, charged appellant
as follows:
That on or about July 1, 2000, in the evening, at Barangay Dumanpot,
Asingan, Pangasinan and within the jurisdiction of this Honorable Court,
the above-named accused, armed with a sharp pointed bladed weapon,
with deliberate intent to kill, treachery and evident premeditation, did
then and there willfully, unlawfully and feloniously attack, assault, hold
and stab from behind Brgy. Kgd. Antonio Balisacan, inflicting upon him
the following injuries:
External Findings:
(1) Stab wound located below right clavicle measuring
3 inches length and 8 inches depth.
(2) Stab wound located at left armpit measuring 4
[inches] length and 6 inches depth.
went to the scene of the crime, the victim, Antonio Balisacan was already
in the hospital and appellant had already fled. He later learn[ed] that
Antonio died.
Dr. Noemi Taganas conducted an autopsy on Antonios body and found:
External Findings:
(1) Stab wound located below the right clavicle
measuring 3 inches length (in) and 8
inches (in) depth.
(2) Stab wound located at left armpit measuring 4
inches length and 6 inches depth.
(3) Stab wound located at mid lumbar area measuring
3 inches length and 4 inches depth
(4) Stab wound located between right first and second
finger measuring 3 inches length.
Internal Findings:
(1) Cutting of the upper and lower lobe of the right lung.
The weapon that Timoteo was able to get from Antonio was a kitchen
knife about 10 to 12 inches. Antonio drew the knife from his left
side. Timoteo was able to get hold of the handle of the knife when he
grappled for the same from the victim, by taking hold of the knife with
his right hand and stabbed Antonio who was intending to stab
him. Antonio was one (1) inch taller than accused.
Timoteos testimony was corroborated by an eyewitness, CESARIO
ESCARLOS, the brother of Timoteo and president of the Mr. & Mrs.
Association which sponsored the benefit dance on July 1, 2000.
On the night of July 1, 2000, Cesario Escarlos was at the yard of Jaime
Ulep. At about 9:00 oclock in the evening of the said date, he saw his
brother Timoteo Escarlos together with Dexie Yabis standing in a corner
watching the dance. Several minutes later Kgd. Antonio Balisacan arrived
and later on, while Cesario was on his way to urinate. He heard Antonio
uttered to Timoteo ADDA CAYO MANEN NGA AGARAMED TI
NILOLOCON. While relieving himself, he heard both Timoteo and
Antonio arguing and before he could get near and pacify them, he saw
them wrestling with each other. Many people were around but nobody
pacified them. Next minute he saw Antonio bloodied and lying on the
ground. There were at least 100 people then and might have seen the
incident. He noticed that Jesus Dismaya was there but the latter did not
do anything. Cesario, after the incident only stayed there for 3 minutes
because he was looking for his three year-old daughter. In the meantime,
nobody touched the body of the victim.[8]
The Issues
Appellant assigns the following alleged errors for our
consideration:
1. The honorable trial court erred in appreciating treachery
as a qualifying circumstance despite failure of the
prosecution to prove its attendance.
2. The honorable trial court erred in not finding that the
testimony of the supposed eyewitnesses for the
prosecution as to the attendance of treachery is
flawed and unworthy of belief.
3. The honorable trial court erred in not giving exculpatory
weight to the theory of self-defense interpose[d] by
the accused-appellant.
4. The honorable trial court committed a grave and serious
error in not finding that the victim [was] the first to
assault accused.
ATTY. VELASCO:
While there, did you observe or did you see if there
was any unusual incident that took place?
A: Yes, your Honor.
Q: What was that unusual incident you have seen and
observed?
A: Stabbing incident, your Honor.
COURT:
Who was stabbed?
ATTY. VELASCO:
Who was the victim of that stabbing?
A: My father.
A: Yes, sir.
Second Issue:
Plea of Self-Defense
In pleading self-defense, appellant asserts that it was the
victim who initially approached and assaulted him. Allegedly, the
former had no choice but to defend himself under the
circumstances. In his testimony before the trial court, he described
the confrontation that had led to the fatal killing as follows:
A: From my back.
A: Yes, sir.
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COURT:
A: Yes, sir.
ATTY. VELASCO:
You heard shoutin[g], according to you, what did you
hear, if you know?
COURT:
A: I, sir.
A: None, sir.
A: I was able to hold the handle of the kitchen knife, sir.
Q: What happened later on when you answered Brgy.
Kgd. Antonio Balisacan?
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A: Yes, sir.
Q: What part of your body was hit?
A: This one on my forehead, sir. (Witness is pointing on
his forehead).
Q: Were you injured?
A: Yes, sir.
Q: What injury did you suffer?
A: My forehead was injured (Witness is pointing a [to] a
scar on his forehead about an inch at the right
above the right eyecrow).
Q: And what did you do after you were boxed by
Antonio Balisacan?
A: When I intend to box him I noticed that he withdrew
a balisong and I tried to grab and used the
balisong in stabbing, sir.
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COURT:
How many times did you stab him?
A: Two times but when he was about to fall down I was
able to hit him once for the third time, sir.
Q: You said that he drew a knife, where did he draw the
knife?
Even assuming arguendo that there was unlawful aggression on the part
of the victim, accused-appellant likewise failed to prove that the means
he employed to repel Homers punch was reasonable. The means
employed by the person invoking self-defense contemplates a rational
equivalence between the means of attack and the defense. Accusedappellant claimed that the victim punched him and was trying to get
something from his waist, so he (accused-appellant) stabbed the victim
with his hunting knife. His act of immediately stabbing Homer and
inflicting a wound on a vital part of the victims body was unreasonable
and unnecessary considering that, as alleged by accused-appellant
himself, the victim used his bare fist in throwing a punch at him. [29]
Unlawful
aggression
presupposes actual,
sudden,
unexpected or imminent danger -- not merely threatening and
intimidating action.[22] Uncertain, premature and speculative was
the assertion of appellant that the victim was about to stab him,
when the latter had merely drawn out his knife. There is
aggression, only when the one attacked faces real and immediate
threat to ones life. The peril sought to be avoided must be
imminent and actual, not just speculative.[23]
Even assuming arguendo that there was an altercation
before the stabbing incident and that some danger did in fact exist,
the imminence of that danger had already ceased the moment
appellant disarmed the victim by wresting the knife from the
latter. After the former had successfully seized it, there was no
longer any unlawful aggression to speak of that would have
necessitated the need to kill the latter. Hence, appellant became
the unlawful aggressor when he stabbed the victim.[24]
When an unlawful aggression that has begun no longer
exists, the one who resorts to self-defense has no right to kill or
even to wound the former aggressor.[25] To be sure, when the
present victim no longer persisted in his purpose or action to the
extent that the object of his attack was no longer in peril, there was
no more unlawful aggression that would warrant legal self-defense
on the part of appellant.[26] Undoubtedly, the latter went beyond the
call of self-preservation when he proceeded to inflict excessive,
atrocious and fatal injuries on the latter, even when the allegedly
unlawful aggression had already ceased.
Reasonable Necessity of the
Indeed, the means employed by a person resorting to selfdefense must be rationally necessary to prevent or repel an
unlawful aggression.[30]
Unlawful aggression is a conditio sine qua non for upholding
the justifying circumstance of self-defense. [31] Unless the victim has
committed unlawful aggression against the other, there can be no
self-defense, complete or incomplete, on the part of the latter. If
there is nothing to prevent or repel, the other two requisites of selfdefense will have no basis.[32]
Third Issue:
Appreciation of Qualifying Circumstances
The essence of treachery is the sudden and unexpected
attack by an aggressor without the slightest provocation on the
part of the victim, thus depriving the latter of any real chance to put
up a defense, and thereby ensuring the commission of the attack
without risk to the aggressor.[33] Treachery requires the
concurrence of two conditions: (1) the employment of a means of
execution that gives the person attacked no opportunity for selfdefense or retaliation; and (2) the deliberate and conscious
adoption of the means of execution.[34]
was aware of the imminent danger to his life. [36] Moreover, the
prosecution failed to establish that appellant had deliberately
adopted a treacherous mode of attack for the purpose of depriving
the victim of a chance to fight or retreat.[37]
Certainly, the victim knew that his scuffle with appellant could
eventually turn into a violent physical clash. The existence of a
struggle before the fatal blows were inflicted on the victim clearly
shows that he was forewarned of the impending attack, and that
he was afforded the opportunity to put up a defense. [38] Indeed, a
killing done at the spur of the moment is not
treacherous. Moreover, any doubt as to the existence of treachery
must be resolved in favor of the accused.[39]
In People v. Cario,[40] we modified the trial courts decision
and ruled that the crime committed was only homicide, because
the qualifying circumstance of treachery had not been clearly
established. Thus, the Court declared:
However, we agree with the OSGs recommendation that appellant be held
liable only for homicide, not murder. In this case, the qualifying
circumstance of treachery was not conclusively established. For treachery
to exist, the following requisites must be met: (1) that at the time of the
attack, the victim was not in a position to defend himself; and (2) that the
offender consciously adopted the particular means, method or form of
attack employed by him. The facts show that Edmundo was placed on
guard concerning a possible assault by Pedro. First, there was a heated
argument between them at the place of the wake. Second, Edmundo was
not unaware that he and Rolando were followed outside by appellant,
who did not adopt any means to conceal himself or hide his intention of
confronting Edmundo. Third, the abrasions and contusions on Edmundos
face show that Edmundo was able to put up a fight before he was fatally
stabbed. These circumstances negate the existence of treachery in the
commission of the offense.[41]
As in People v. Cario, the Office of the Solicitor General
recommended in this case that appellant be convicted of homicide
only, inasmuch as the qualifying circumstance of treachery had not
been sufficiently established.[42]
The trial court correctly ruled that the qualifying circumstance
of evident premeditation was not present in the killing. Essentially,
there is evident premeditation when the execution of a criminal act
is preceded by cool thought and reflection upon the resolution to
carry out a criminal intent within a space of time sufficient to arrive
at a calm judgment.[43] Obviously, the acts of appellant in the
present case can hardly be described as a product of reflective
thought or deliberate planning towards a decisive resolve to kill the
victim. On the contrary, the confrontation that escalated to a violent
brawl was quite spontaneous, casual and incidental. Verily, the
brutal killing was not the result of a previous plot or sinister design
to end the life of the victim.
The elements of evident premeditation are as follows: (a) the
time when the accused decided to commit the crime; (b) an overt
act manifestly indicating that the accused clung to the
determination to commit the crime; and (c) the lapse of a period of
time, between the determination and the subsequent execution of
the crime, sufficient to allow the accused an opportunity to reflect
upon the consequences of the act. [44] As found by the trial court,
the prosecution failed to present sufficient evidence to establish
any of the foregoing requisites. To be sure, when there is no
showing how and when the plan to kill was decided or how much
time had elapsed before the crime was carried out, there is no
evident premeditation.[45]
In a criminal prosecution -- especially in cases involving the
extreme penalty of death -- nothing but proof beyond reasonable
doubt of every fact necessary to constitute the crime with which
the accused is charged must be established.[46]
Fourth Issue:
Proper Penalty and Award of Damages
Under Article 249 of the Revised Penal Code, the penalty for
homicide is reclusion temporal. There being neither mitigating nor
aggravating circumstance, the appropriate penalty should
be reclusion temporal in its medium period. Appellant is likewise
entitled to the benefits of the Indeterminate Sentence Law.
The trial court awarded moral damages in the amount
of P50,000, but failed to award P50,000 as civil indemnity for the
death of the victim. Moral damages cannot be granted in the
absence of proof therefor.[47] Unlike in rape cases, this type of
award is not automatically given in murder or homicide. The
prosecution was, however, able to prove actual damages in the
sum of P28,650. The award of exemplary damages should be
omitted considering that no aggravating circumstance was duly
proven.[48]
WHEREFORE,
the
assailed
Decision
is MODIFIED. Appellant is held guilty of homicide and sentenced
to eight (8) years and one (1) day of prison mayor medium, as
minimum; to fourteen (14) years, eight (8) months and (1) day
of reclusion temporal medium, as maximum. He shall also pay the
heirs of the victim the amounts of P50,000 as civil indemnity
andP28,650 as actual damages, consistent with prevailing
jurisprudence.[49] The grant of moral and exemplary damages
is DELETED. No costs.
SO ORDERED.
BEN GENOSA, her legitimate husband, with the use of a hard deadly
weapon, which the accused had provided herself for the purpose,
[causing] the following wounds, to wit:
Cadaveric spasm.
Body on the 2nd stage of decomposition.
The Facts
That same day, about 12:15 in the afternoon, Joseph Valida was waiting
for a bus going to Ormoc when he saw appellant going out of their house
with her two kids in tow, each one carrying a bag, locking the gate and
taking her children to the waiting area where he was. Joseph lived about
fifty (50) meters behind the Genosas rented house. Joseph, appellant and
her children rode the same bus to Ormoc. They had no conversation as
Joseph noticed that appellant did not want to talk to him.
On November 18, 1995, the neighbors of Steban Matiga told him about
the foul odor emanating from his house being rented by Ben and
appellant. Steban went there to find out the cause of the stench but the
house was locked from the inside. Since he did not have a duplicate key
with him, Steban destroyed the gate padlock with a borrowed steel saw.
He was able to get inside through the kitchen door but only after
destroying a window to reach a hook that locked it. Alone, Steban went
inside the unlocked bedroom where the offensive smell was coming from.
There, he saw the lifeless body of Ben lying on his side on the bed
covered with a blanket. He was only in his briefs with injuries at the back
of his head. Seeing this, Steban went out of the house and sent word to
the mother of Ben about his sons misfortune. Later that day, Iluminada
Genosa, the mother of Ben, identified the dead body as that of [her] son.
Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then
assigned at the police station at Isabel, Leyte, received a report regarding
the foul smell at the Genosas rented house. Together with SPO1 Millares,
SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the
house and went inside the bedroom where they found the dead body of
Ben lying on his side wrapped with a bedsheet. There was blood at the
nape of Ben who only had his briefs on. SPO3 Acodesin found in one
corner at the side of an aparador a metal pipe about two (2) meters from
where Ben was, leaning against a wall. The metal pipe measured three (3)
feet and six (6) inches long with a diameter of one and half (1 1/2) inches.
It had an open end without a stop valve with a red stain at one end. The
bedroom was not in disarray.
About 10:00 that same morning, the cadaver of Ben, because of its
stench, had to be taken outside at the back of the house before the
postmortem examination was conducted by Dr. Cerillo in the presence of
the police. A municipal health officer at Isabel, Leyte responsible for
medico-legal cases, Dr. Cerillo found that Ben had been dead for two to
three days and his body was already decomposing. The postmortem
examination of Dr. Cerillo yielded the findings quoted in the Information
for parricide later filed against appellant. She concluded that the cause of
Bens death was cardiopulmonary arrest secondary to severe intracranial
hemorrhage due to a depressed fracture of the occipital [bone].
Appellant admitted killing Ben. She testified that going home after
work on November 15, 1995, she got worried that her husband who was
not home yet might have gone gambling since it was a payday. With her
cousin Ecel Arao, appellant went to look for Ben at the marketplace and
taverns at Isabel, Leyte but did not find him there. They found Ben drunk
upon their return at the Genosas house. Ecel went home despite
appellants request for her to sleep in their house.
Then, Ben purportedly nagged appellant for following him, even
challenging her to a fight. She allegedly ignored him and instead attended
to their children who were doing their homework. Apparently
disappointed with her reaction, Ben switched off the light and, with the
use of a chopping knife, cut the television antenna or wire to keep her
from watching television. According to appellant, Ben was about to
attack her so she ran to the bedroom, but he got hold of her hands and
whirled her around. She fell on the side of the bed and screamed for help.
Ben left. At this point, appellant packed his clothes because she wanted
him to leave. Seeing his packed clothes upon his return home, Ben
allegedly flew into a rage, dragged appellant outside of the bedroom
towards a drawer holding her by the neck, and told her You might as well
be killed so nobody would nag me. Appellant testified that she was aware
that there was a gun inside the drawer but since Ben did not have the key
to it, he got a three-inch long blade cutter from his wallet. She however,
smashed the arm of Ben with a pipe, causing him to drop the blade and
his wallet. Appellant then smashed Ben at his nape with the pipe as he
was about to pick up the blade and his wallet. She thereafter ran inside
the bedroom.
Appellant, however, insisted that she ended the life of her husband by
shooting him. She supposedly distorted the drawer where the gun was
and shot Ben. He did not die on the spot, though, but in the bedroom.
[7]
(Citations omitted)
way home at about 9:00 in the evening, he heard the Genosas arguing.
They were quarreling loudly. Outside their house was one Fredo who is
used by Ben to feed his fighting cocks. Basobas testimony on the root of
the quarrel, conveniently overheard by him was Marivic saying I will
never hesitate to kill you, whilst Ben replied Why kill me when I am
innocent. Basobas thought they were joking.
He did not hear them quarreling while he was across the road from the
Genosa residence. Basobas admitted that he and Ben were always at the
cockpits every Saturday and Sunday. He claims that he once told Ben
before when he was stricken with a bottle by Marivic Genosa that he
should leave her and that Ben would always take her back after she would
leave him so many times.
Basobas could not remember when Marivic had hit Ben, but it was a long
time that they had been quarreling. He said Ben even had a wound on the
right forehead. He had known the couple for only one (1) year.
6. Marivic testified that after the first year of marriage, Ben became cruel
to her and was a habitual drinker. She said he provoked her, he would
slap her, sometimes he would pin her down on the bed, and sometimes
beat her.
These incidents happened several times and she would often run home to
her parents, but Ben would follow her and seek her out, promising to
change and would ask for her forgiveness. She said after she would be
beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero
and Dra. Cerillo. These doctors would enter the injuries inflicted upon her
by Ben into their reports. Marivic said Ben would beat her or quarrel with
her every time he was drunk, at least three times a week.
7. In her defense, witnesses who were not so closely related to Marivic,
testified as to the abuse and violence she received at the hands of Ben.
7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the
Genosas, testified that on November 15, 1995, he overheard a quarrel
between Ben and Marivic. Marivic was shouting for help and through the
open jalousies, he saw the spouses grappling with each other. Ben had
Marivic in a choke hold. He did not do anything, but had come
voluntarily to testify. (Please note this was the same night as that testified
to by Arturo Busabos.[8])
7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe
Barrientos, testified that he heard his neighbor Marivic shouting on the
night of November 15, 1995. He peeped through the window of his hut
which is located beside the Genosa house and saw the spouses grappling
with each other then Ben Genosa was holding with his both hands the
neck of the accused, Marivic Genosa. He said after a while, Marivic was
able to extricate he[r]self and enter the room of the children. After that, he
went back to work as he was to go fishing that evening. He returned at
8:00 the next morning. (Again, please note that this was the same night
as that testified to by Arturo Basobas).
7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while
they were living in Isabel, Leyte. His house was located about fifty (50)
meters from theirs. Marivic is his niece and he knew them to be living
together for 13 or 14 years. He said the couple was always quarreling.
Marivic confided in him that Ben would pawn items and then would use
the money to gamble. One time, he went to their house and they were
quarreling. Ben was so angry, but would be pacified if somebody would
come. He testified that while Ben was alive he used to gamble and when
he became drunk, he would go to our house and he will say, Teody
because that was what he used to call me, mokimas ta, which means lets
go and look for a whore. Mr. Sarabia further testified that Ben would box
his wife and I would see bruises and one time she ran to me, I noticed a
wound (the witness pointed to his right breast) as according to her a knife
was stricken to her. Mr. Sarabia also said that once he saw Ben had been
injured too. He said he voluntarily testified only that morning.
7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic,
testified that in the afternoon of November 15, 1995, Marivic went to her
house and asked her help to look for Ben. They searched in the market
place, several taverns and some other places, but could not find him. She
accompanied Marivic home. Marivic wanted her to sleep with her in the
Genosa house because she might be battered by her husband. When they
got to the Genosa house at about 7:00 in the evening, Miss Arano said
that her husband was already there and was drunk. Miss Arano knew he
was drunk because of his staggering walking and I can also detect his
face. Marivic entered the house and she heard them quarrel noisily.
(Again, please note that this is the same night as that testified to by Arturo
Basobas) Miss Arano testified that this was not the first time Marivic had
asked her to sleep in the house as Marivic would be afraid every time her
husband would come home drunk. At one time when she did sleep over,
she was awakened at 10:00 in the evening when Ben arrived because the
couple were very noisy in the sala and I had heard something was broken
like a vase. She said Marivic ran into her room and they locked the door.
When Ben couldnt get in he got a chair and a knife and showed us the
knife through the window grill and he scared us. She said that Marivic
shouted for help, but no one came. On cross-examination, she said that
when she left Marivics house on November 15, 1995, the couple were
still quarreling.
7.5. Dr. Dino Caing, a physician testified that he and Marivic were coemployees at PHILPHOS, Isabel, Leyte. Marivic was his patient many
times and had also received treatment from other doctors. Dr. Caing
testified that from July 6, 1989 until November 9, 1995, there were six
(6) episodes of physical injuries inflicted upon Marivic. These injuries
were reported in his Out-Patient Chart at the PHILPHOS Hospital. The
prosecution admitted the qualifications of Dr. Caing and considered him
an expert witness.
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Dr. Caings clinical history of the tension headache and hypertention of
Marivic on twenty-three (23) separate occasions was marked at Exhibits
2 and 2-B. The OPD Chart of Marivic at the Philphos Clinic which
reflected all the consultations made by Marivic and the six (6) incidents
of physical injuries reported was marked as Exhibit 3.
On cross-examination, Dr. Caing said that he is not a psychiatrist, he
could not say whether the injuries were directly related to the crime
committed. He said it is only a psychiatrist who is qualified to examine
the psychological make-up of the patient, whether she is capable of
committing a crime or not.
7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas
resided, testified that about two (2) months before Ben died, Marivic
went to his office past 8:00 in the evening. She sought his help to settle or
confront the Genosa couple who were experiencing family troubles. He
told Marivic to return in the morning, but he did not hear from her again
and assumed that they might have settled with each other or they might
have forgiven with each other.
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Marivic said she did not provoke her husband when she got home that
night it was her husband who began the provocation. Marivic said she
was frightened that her husband would hurt her and she wanted to make
sure she would deliver her baby safely. In fact, Marivic had to be
admitted later at the Rizal Medical Centre as she was suffering from
eclampsia and hypertension, and the baby was born prematurely on
December 1, 1995.
Marivic testified that during her marriage she had tried to leave her
husband at least five (5) times, but that Ben would always follow her and
they would reconcile. Marivic said that the reason why Ben was violent
and abusive towards her that night was because he was crazy about his
recent girlfriend, Lulu x x x Rubillos.
On cross-examination, Marivic insisted she shot Ben with a gun; she said
that he died in the bedroom; that their quarrels could be heard by anyone
passing their house; that Basobas lied in his testimony; that she left for
Manila the next day, November 16, 1995; that she did not bother anyone
in Manila, rented herself a room, and got herself a job as a field
researcher under the alias Marvelous Isidro; she did not tell anyone that
she was leaving Leyte, she just wanted to have a safe delivery of her
baby; and that she was arrested in San Pablo, Laguna.
Answering questions from the Court, Marivic said that she threw the gun
away; that she did not know what happened to the pipe she used to smash
him once; that she was wounded by Ben on her wrist with the bolo; and
that two (2) hours after she was whirled by Ben, he kicked her ass and
dragged her towards the drawer when he saw that she had packed his
things.
16. In the meantime, under date of 17 February 2000, and stampreceived by the Honorable Court on 19 February 2000, undersigned
counsel filed an URGENT OMNIBUS MOTION praying that the
Honorable Court allow the exhumation of Ben Genosa and the reexamination of the cause of his death; allow the examination of Marivic
Genosa by qualified psychologists and psychiatrists to determine her state
of mind at the time she killed her husband; and finally, to allow a partial
re-opening of the case a quo to take the testimony of said psychologists
and psychiatrists.
9. The body of Ben Genosa was found on November 18, 1995 after an
investigation was made of the foul odor emitting from the Genosa
residence. This fact was testified to by all the prosecution witnesses and
some defense witnesses during the trial.
10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health
Officer of Isabel, Leyte at the time of the incident, and among her
responsibilities as such was to take charge of all medico-legal cases, such
as the examination of cadavers and the autopsy of cadavers. Dra. Cerillo
is not a forensic pathologist. She merely took the medical board exams
and passed in 1986. She was called by the police to go to the Genosa
residence and when she got there, she saw some police officer and
neighbor around. She saw Ben Genosa, covered by a blanket, lying in a
semi-prone position with his back to the door. He was wearing only a
brief.
xxxxxxxxx
Dra. Cerillo said that there is only one injury and that is the injury
involving the skeletal area of the head which she described as a fracture.
And that based on her examination, Ben had been dead 2 or 3 days. Dra.
Cerillo did not testify as to what caused his death.
Dra. Cerillo was not cross-examined by defense counsel.
11. The Information, dated November 14, 1996, filed against Marivic
Genosa charged her with the crime of PARRICIDE committed with intent
to kill, with treachery and evidence premeditation, x x x wilfully,
unlawfully and feloniously attack, assault, hit and wound x x x her
legitimate husband, with the use of a hard deadly weapon x x x which
caused his death.
12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997,
17, 22 and 23 September 1997, 12 November 1997, 15 and 16 December
1997, 22 May 1998, and 5 and 6 August 1998.
13. On 23 September 1998, or only fifty (50) days from the day of the
last trial date, the Hon. Fortunito L. Madrona, Presiding Judge, RTCBranch 35, Ormoc City, rendered a JUDGMENT finding Marivic guilty
beyond reasonable doubt of the crime of parricide, and further found
treachery as an aggravating circumstance, thus sentencing her to the
ultimate penalty of DEATH.
14. The case was elevated to this Honorable Court upon automatic
review and, under date of 24 January 2000, Marivics trial lawyer, Atty.
Gil Marvel P. Tabucanon, filed a Motion to Withdraw as counsel,
attaching thereto, as a precautionary measure, two (2) drafts of Appellants
Briefs he had prepared for Marivic which, for reasons of her own, were
not conformed to by her.
The Honorable Court allowed the withdrawal of Atty. Tabucanon and
permitted the entry of appearance of undersigned counsel.
shows his strong faade but in it there are doubts in himself and prone to
act without thinking.
xxxxxxxxx
Dr. Pajarillo emphasized that even though without the presence of the
precipator (sic) or the one who administered the battering, that reexperiencing of the trauma occurred (sic) because the individual cannot
control it. It will just come up in her mind or in his mind.
xxxxxxxxx
Dr. Pajarillo said that a woman suffering post traumatic stress disorder try
to defend themselves, and primarily with knives. Usually pointed
weapons or any weapon that is available in the immediate surrounding or
in a hospital x x x because that abound in the household. He said a victim
resorts to weapons when she has reached the lowest rock bottom of her
life and there is no other recourse left on her but to act decisively.
xxxxxxxxx
Dr. Pajarillo testified that he met Marivic Genosa in his office in an
interview he conducted for two (2) hours and seventeen (17) minutes. He
used the psychological evaluation and social case studies as a help in
forming his diagnosis. He came out with a Psychiatric Report, dated 22
January 2001.
xxxxxxxxx
On cross-examination by the private prosecutor, Dr. Pajarillo said that at
the time she killed her husband Marivicc mental condition was that she
was re-experiencing the trauma. He said that we are trying to explain
scientifically that the re-experiencing of the trauma is not controlled by
Marivic. It will just come in flashes and probably at that point in time that
things happened when the re-experiencing of the trauma flashed in her
mind. At the time he interviewed Marivic she was more subdued, she was
not super alert anymore x x x she is mentally stress (sic) because of the
predicament she is involved.
xxxxxxxxx
20. No rebuttal evidence or testimony was presented by either the private
or the public prosecutor. Thus, in accord with the Resolution of this
Honorable Court, the records of the partially re-opened trial a quowere
elevated.[9]
Genosa and the reexamination of the cause of his death; (2) the
examination of appellant by qualified psychologists and
psychiatrists to determine her state of mind at the time she had
killed her spouse; and (3) the inclusion of the said experts reports
in the records of the case for purposes of the automatic review or,
in the alternative, a partial reopening of the case for the lower court
to admit the experts testimonies.
On September 29, 2000, this Court issued a Resolution
granting in part appellants Motion, remanding the case to the trial
court for the reception of expert psychological and/or psychiatric
opinion on the battered woman syndrome plea; and requiring the
lower court to report thereafter to this Court the proceedings taken
as well as to submit copies of the TSN and additional evidence, if
any.
Acting on the Courts Resolution, the trial judge authorized
the examination of Marivic by two clinical psychologists, Drs.
Natividad Dayan[10] and Alfredo Pajarillo,[11] supposedly experts on
domestic violence. Their testimonies, along with their documentary
evidence, were then presented to and admitted by the lower court
before finally being submitted to this Court to form part of the
records of the case.[12]
The Issues
Supervening Circumstances
In the main, the following are the essential legal issues: (1)
whether appellant acted in self-defense and in defense of her
fetus; and (2) whether treachery attended the killing of Ben
Genosa.
the couple must go through the battering cycle at least twice. Any
woman may find herself in an abusive relationship with a man
once. If it occurs a second time, and she remains in the situation,
she is defined as a battered woman.[25]
Battered women exhibit common personality traits, such as
low self-esteem, traditional beliefs about the home, the family and
the female sex role; emotional dependence upon the dominant
male; the tendency to accept responsibility for the batterers
actions; and false hopes that the relationship will improve.[26]
More graphically, the battered woman syndrome is
characterized by the so-called cycle of violence, [27] which has three
phases: (1) the tension-building phase; (2) the acute battering
incident; and (3) the tranquil, loving (or, at least, nonviolent) phase.
[28]
A Of course my husband.
A Yes, sir.
Q Who prepared the list of six (6) incidents, Doctor?
ATTY. TABUCANON:
A I did.
A Yes, sir.
A Yes, sir.
A Renting.
A Yes, sir.
Q You said that he dropped the blade, for the record
will you please describe this blade about 3 inches
long, how does it look like?
xxxxxxxxx
Q Is it a flexible blade?
A Its a cutter.
A Yes, sir.
change; and that believing his words, she would return to their
common abode.
Did she ever feel that she provoked the violent incidents
between her and her spouse? Did she believe that she was the
only hope for Ben to reform? And that she was the sole support of
his emotional stability and well-being? Conversely, how dependent
was she on him? Did she feel helpless and trapped in their
relationship? Did both of them regard death as preferable to
separation?
BWS as Self-Defense
In any event, all is not lost for appellant. While she did not
raise any other modifying circumstances that would alter her
penalty, we deem it proper to evaluate and appreciate in her favor
circumstances that mitigate her criminal liability. It is a hornbook
doctrine that an appeal in a criminal case opens it wholly for review
on any issue, including that which has not been raised by the
parties.[69]
From several psychological tests she had administered to
Marivic, Dra. Dayan, in her Psychological Evaluation Report dated
November 29, 2000, opined as follows:
This is a classic case of a Battered Woman Syndrome. The repeated
battering Marivic experienced with her husband constitutes a form of
[cumulative] provocation which broke down her psychological resistance
and natural self-control. It is very clear that she developed heightened
sensitivity to sight of impending danger her husband posed continuously.
Marivic truly experienced at the hands of her abuser husband a state of
psychological paralysis which can only be ended by an act of violence on
her part. [70]
Dr. Pajarillo corroborates the findings of Dra. Dayan. He
explained that the effect of repetitious pain taking, repetitious
battering, [and] repetitious maltreatment as well as the severity
and the prolonged administration of the battering is posttraumatic
stress disorder.[71] Expounding thereon, he said:
Q What causes the trauma, Mr. Witness?
A What causes the trauma is probably the repetitious
battering. Second, the severity of the battering.
Third, the prolonged administration of battering or
the prolonged commission of the battering and
the psychological and constitutional stamina of
the victim and another one is the public and
social support available to the victim. If nobody is
interceding, the more she will go to that
disorder....
xxxxxxxxx
Q You referred a while ago to severity. What are the
qualifications in terms of severity of the
postraumatic stress disorder, Dr. Pajarillo?
A The severity is the most severe continuously to
trig[g]er this post[t]raumatic stress disorder is
injury to the head, banging of the head like that. It
is usually the very very severe stimulus that
precipitate this post[t]raumatic stress disorder.
Others are suffocating the victim like holding a
pillow on the face, strangulating the individual,
suffocating the individual, and boxing the
individual. In this situation therefore, the victim is
heightened to painful stimulus, like for example
she is pregnant, she is very susceptible because
the woman will not only protect herself, she is
also to protect the fetus. So the anxiety is
heightened to the end [sic] degree.
Q But in terms of the gravity of the disorder, Mr.
Witness, how do you classify?
A We classify the disorder as [acute], or chronic or
delayed or [a]typical.
Q Can you please describe this pre[-]classification you
called delayed or [atypical]?
A The acute is the one that usually require only one
battering and the individual will manifest now a
severe emotional instability, higher irritability
remorse, restlessness, and fear and probably in
most [acute] cases the first thing will be
happened to the individual will be thinking of
suicide.
Q And in chronic cases, Mr. Witness?
A The chronic cases is this repetitious battering,
repetitious maltreatment, any prolonged, it is
longer than six (6) months. The [acute] is only the
first day to six (6) months. After this six (6)
months you become chronic. It is stated in the
book specifically that after six (6) months is
chronic. The [a]typical one is the repetitious
battering but the individual who is abnormal and
then become normal. This is how you get
neurosis from neurotic personality of these cases
of post[t]raumatic stress disorder. [72]
Answering the questions propounded by the trial judge, the
expert witness clarified further:
Q But just the same[,] neurosis especially on battered
woman syndrome x x x affects x x x his or her
mental capacity?
A Yes, your Honor.
Q As you were saying[,] it x x x obfuscated her
rationality?
A Of course obfuscated.[73]
In sum, the cyclical nature and the severity of the violence
inflicted upon appellant resulted in cumulative provocation which
broke down her psychological resistance and natural self-control,
psychological paralysis, and difficulty in concentrating or
impairment of memory.
Based on the explanations of the expert witnesses, such
manifestations were analogous to an illness that diminished the
exercise by appellant of her will power without, however, depriving
her of consciousness of her acts. There was, thus, a resulting
diminution of her freedom of action, intelligence or intent. Pursuant
xxxxxxxxx
Proper Penalty
COURT INTERPRETER:
(Upon the answer of the witness getting the pipe and
smashed him, the witness at the same time
pointed at the back of her neck or the nape).
ATTY. TABUCANON:
Q You said you went to the room, what else happened?
A Considering all the physical sufferings that Ive been
through with him, I took pity on myself and I felt I
was about to die also because of my blood
pressure and the baby, so I got that gun and I
shot him.
COURT
/to Atty. Tabucanon
Q You shot him?
A Yes, I distorted the drawer.[84]
The above testimony is insufficient to establish the presence
of treachery. There is no showing of the victims position relative to
appellants at the time of the shooting. Besides, equally axiomatic
is the rule that when a killing is preceded by an argument or a
quarrel, treachery cannot be appreciated as a qualifying
circumstance, because the deceased may be said to have been
forewarned and to have anticipated aggression from the assailant.
[85]
Epilogue
PEOPLE
vs. CARMELO
DECISION
PANGANIBAN, J.:
There can be no self-defense, whether complete or
incomplete, unless the victim had committed unlawful aggression
against the person who resorted to self-defense.
The Case
The Facts
Version of the Prosecution
Phase C-1 Francisco Homes, Barangay Mulawin, San Jose del Monte,
Bulacan Province. As it was already summertime, and on account of the
big attendance, the party had to be held in a vacant space within the
fenced perimeter, with vehicular and pedestrian steel gates. In front
thereof was a narrow concrete street.
Inasmuch as Lapidante saw to it that drinks like gin and beer and
appetizers were plenty, even before 10:00 A.M., inevitably, the revelers
were already displaying excitement. Some were engaged in singing over
a karaoke, while one Sgt. Celso Suico of the Philippine Air Force and of
the elite Presidential Security Group, who lived in another phase of the
subdivision, demonstrated his exuberance by firing shots into the air with
his Armalite rifle. Since the gunshots continued to ring out, and election
gun ban was then in effect, the attention of Carmelo Catbagan, an
investigator of the Criminal Investigation Service, Philippine National
Police, whose residential unit was just one block away south of the
Lapidantes, was called.
Police investigators went to the scene and there recovered some pieces of
evidence.
The .45 caliber Springfield pistol of Suico was retrieved in a place at the
back of the Lapidante residence. With a bullet vertically standing on the
chamber, it had misfired due to some vital defects. There were six (6) live
ammunitions of the .45 caliber pistol excluding the vertical one. No
empty shell of .45 caliber pistol were recovered. There were nine (9)
empty shells of the .9 mm pistol; and a deformed slug of the same
weapon, aside from many shells from the Armalite rifle.
Upon examination of Sgt. Suicos body, Dr. Dominic Aguda of the
National Bureau of Investigation found four (4) gunshot wounds, to wit:
No. 1 - left upper chest;
No. 2 - left chest above left nipple;
When, by 5:00 p.m., Catbagan went there to verify from the group who
among them had been firing the rifle, no one of those within the fenced
area gave a positive answer. The embar[r]assed Catbagan left the
place. Coincidentally, some minutes before that, Lapidante, driving his
owner-type jeep, conducted home some of his guests. Accompanying him
were Sgt. Suico and his companion Ernesto Jun Lacaden.Even as they
returned the Armalite to the PSGs residence at Phase M, Suico substituted
it with a government-issued Springfield .45 caliber pistol which he tucked
to his waistband as they went back to rejoin the party.
By about 5:30 p.m., while the celebrants were being entertained with a
song by the eldest daughter of Lapidante, Catbagan with [Zosimo] (Jess)
Fababier returned to Lapidantes place on board a motorized tricycle. This
time, after he alighted on the street in front, when Catbagan inquired
about the gunshots of the Armalite, Sgt. Suico answered that Its nothing;
its just a part of the celebration. Suddenly, a piece of stone hurled from
the direction of the celebrants house landed on a tree and thence to the
body of Catbagan. Irritated and reacting thereto, the CIS agent directed
Fababier to look for the one who threw the stone.
At that moment, Sgt. Suico got out of the pedestrian steel gate and
extended his hand towards Catbagan in the street as he introduced himself
as being a PSG. Completely ignoring the gesture of the latter, Catbagan
drew out his .9mm automatic pistol and with both hands holding the gun,
fired successively at Suico, who when hit stretched out his hand,
shouting Huwag (Dont) Pare. Despite this Catbagan fired more shots at
the victim who fell on the pavement, bloodied and dying from mortal
wounds.
As the shots were fired, Jun Lacaden who was taking a nap on the front
seat of the owner-type jeep parked on the other side of the street, in front
of the residential unit of Aida Villanueva, was abruptly awakened. Not
fully aware of what happened, he disembarked therefrom without
knowing what to do. Unexpectedly, two shots were also fired at him by
Catbagan. One bullet found its mark in the body of Jun Lacaden who then
fell down.
Almost simultaneously, Catbagan directed his attention to Lapidante who
was then inside their compound in the vicinity of their steel main
gate. Upon the prompting of his wife Rosita for him to run and evade the
assailant, the celebrant turned towards the main door of their house. But
before he could reach the safety of their abode, two rapid shots were
aimed by Catbagan at him, one of which hit him in the upper part of his
body.
After causing the mayhem, Catbagan then proceeded eastward to the
main road. Thereupon, Charles Lacaden picked up the weapon of the
PSG man and threw it to a vacant lot somewhere at the rear of the house
and lot of Lapidante. As a consequence of the injuries they sustained, Sgt.
Suico died on the spot; Lapidante later died in the hospital in Lagro,
Quezon City; whereas Jun Lacaden had to be treated and confined at the
East Avenue Medical Center, Quezon City.
On March 15, 1998, he was at his residence at Block 5, Lot 11, Phase 6-1,
Francisco Homes, San Jose del Monte, Bulacan, tending to his five (5)
children. His wife was then in the province. At around 9:00 to 11:00 in
the morning, he heard several burst[s] of gunfire coming from the
direction of the rear portion of his house. A neighbor, Ernesto Purbos,
then came to his house complaining about the gunshots.Manong Erning
wailed that the gunshots might accidentally hit the children playing in the
street. Having told from where the gunshots came from, he pacified the
complainant telling him that the revelers were just engaged in
merrymaking and that they will just stop later on. Ernesto Purbos then
went home.
The peace in the vicinity was again disturbed at around 4:00 in the
afternoon of the same day. Loud burst of rapid gunshots, to the tune of
the song Lets Go, were again heard coming from the same direction as
that in the morning. From his experience, he knew that the firearm used
was an armalite (M-16). Two of their neighbors came to him complaining
about the gunshots. He advised them to go to the barangay captain and he
will just follow after finishing his chores. He then heard a woman scream,
complaining that the shots were being directed towards the firewall of the
house neighboring that of the Lapidantes.Ernesto Purbos likewise
returned, echoing his previous complaint about the gunshots. He assured
Purbos that he would act on his complaint, but first he would go to the
barangay captain to report the incident.He then got his service firearm
and went out. On his way to the house of the barangay captain, he met
Zosimo Pavabier, who likewise complained of the gunshots. He asked
Pavabier to accompany him and the two of them proceeded to the house
of the said official. When they reached their destination, however, the
wife of the barangay official told them that her husband has gone to the
Police on the Block Headquarter. Learning the purpose of their visit, the
wife told them to just proceed to the vicinity in question as her husband
might already be there. On their way, they went by the barangay hall to
fetch some tanods, but the place was closed. They then proceeded to the
house of the Lapidantes.
Upon reaching the house of the Lapidantes, Catbagan and Pavabier
noticed that the Barangay Captain was not yet there. They likewise
noticed that there were several persons having a drinking spree inside the
compound. Catbagan introduced himself as a CIS and inquired upon the
group who fired the gunshots. The merrymakers, however, ignored him
and laughed. As he was telling the group that: Dont you know there are
many residents here and you might hit somebody, a fist sized stone was
thrown which hit his left shoulder. The stone came from the rear of the
house of the Lapidantes. Alerted by the hostility of the crowd, he
instructed Pavabier to look for the one who threw the stone at him. As
Pavabier was about to comply with his instructions, Danilo Lapidante
emerged from the side of his house and rushed to where he was standing,
uttering: ano ba ang problema pare? About the same time, two more
persons suddenly came out of the compound of the Lapidantes, rushing
and encircling him. One of the aggressors, Ernesto Lacaden, was toting
an ice-pick on one hand and positioned himself at his side. The other,
whose identity he did not kn[o]w at that moment, went straight to him,
drew a gun from his waist and cocked it, after which, aimed the pistol at
him, uttering Pare PSG ito, in an arrogant voice. Threatened of his safety,
he drew his own gun while stepping backward and fired at the aggressors.
Simultaneously, Danilo Lapidante retreated towards his house, shouting:
Akina yung mahaba, yung mahaba, while Jun Lacaden attacked him
coming from the side, with the ice-pick. Catbagan side stepped and fired
a shot at Lacaden before turning his attention at Lapidante. He fired a
warning shot, uttering: Tumigil ka, huwag kang kikilos. Lapidante,
however, did not heed Catbagans warning and continued rushing towards
his house, as if to get something. Fearing that Lapidante might be able to
get hold of the long gun, Catbagan fired a shot at him once.
Concerned for his safety and that of his family, Catbagan brought his five
children to the house of his sister in Malabon, Metro Manila. He then
surrendered himself and his firearms to his superior officer at the CIDG
Office.
The RTC held that appellant did not know who had fired the
gunshots at Lapidantes party; thus, he could not claim that he had
gone there to perform his duty to make an arrest. Consequently, it
brushed aside his defense of fulfillment of duty, or lawful exercise
of a right or office. It did not give credence, either, to his invocation
of self-defense.
With respect to Celso Suico in Criminal Case No. 1082-M98, the trial court ruled that there was unlawful aggression on the
part of the victim, but that the means employed to repel such
aggression was unreasonable. It entertain[ed] serious doubts on
the right of the [appellant] to continue firing at Suico after the latter
was dispossessed of his gun due to the injuries received from the
gunfire of the assailant.[20] It credited appellant with incomplete selfdefense, because he supposedly lost the right to kill or even
wound the victim after the unlawful aggression had ceased.
The RTC refused to qualify the crime against Suico. Ruling
that there had been no evident premeditation and treachery in the
killing, it found appellant guilty only of the crime of homicide.
As regards the victim Danilo Lapidante in Criminal Case No.
1083-M-98, he was undisputedly unarmed, as he was inside his
own premises -- within his fenced front yard -- at the time of the
incident. Thus, the lower court found no act of aggression on his
part. It held that the belief on the part of [appellant] that the victim
was about to retrieve a rifle from the doorside of the house, existed
only in his imagination.[21] Consequently, there was no moment for
[appellant] to validly state that his own life [was] in imminent
danger from Lapidante.[22]
Aside from rejecting self-defense, the trial court also held
that treachery had attended the killing, because the unarmed
victim had unexpectedly been shot while his back was towards
appellant.
Finally, in Criminal Case No. 1099-M-98, the court a
quo found that Ernesto Lacaden had been shot in the back,
apparently while in the act of fleeing from the fury of gunfire from
[appellant].[23] It did not accept the allegation that the victim had
been carrying an ice pick at the time of the shooting. Nonetheless,
it explained that even if he indeed had one at the time, he could
not have done any real harm to appellant who was just too far from
him. Absent any clear and convincing proof that Lacaden
The Issues
First Issue:
Fulfillment of a Lawful Duty
Second Issue:
Self-Defense
Circumstances Surrounding
the Death of Suico
On this point, the Court entertains serious doubts on the right of the
accused to continue firing at Suico after the latter was dispossessed of his
gun due to the injuries received from the gunfire of the
assailant.Additionally, we cannot accept as credible Catbagans statement
that he had to fire again at Suico inasmuch as the latter had stooped
acting to pick up his own pistol from the pavement. If ever the victim was
positioned that way, it was more of the impact of the bullets that hit
him. The logical explanation can be derived from the presence of the
entry wound in the inside of Suicos right palm.[51]
These findings are well-supported by the evidence on
record. Clearly, the nature and the number of gunshot wounds -debilitating, fatal and multiple -- inflicted by appellant on the
deceased shows that the means employed by the former was not
reasonable and commensurate to the unlawful aggression of the
latter. The unreasonableness becomes even more apparent from
the fact, duly admitted by appellant himself, that Suico had
obviously been inebriated at the time of the aggression. It would
have thus been easier for the former to have subdued the victim
without resorting to excessive means.
Finally, as to the element of lack of sufficient provocation on
the part of the person resorting to self-defense, appellant has
sufficiently established that he went to the house of the Lapidantes
to find out who had fired the gunshots earlier that day. There was
therefore absolutely no provocation from him, either by unjust
conduct or by incitement, that would justify Suicos acts of cocking
and aiming a gun at him.
Not having proven all the elements of self-defense, appellant
cannot use it to justify sufficiently his fatal shooting of
Suico. Having proven a majority of the elements, however, the
former may still be credited with a mitigating circumstance in
accordance with Article 13[52] of the RPC.
Circumstances Surrounding
the Shooting of Lapidante
the part of Catbagan that the victim was about to retrieve a rifle from the
doorside of the house, existed only in his imagination.
Aside from its intrinsic ambiguity, the claims of the defense witnesses
about the alleged utterance of Lapidante about Ang mahaba! an[g]
mahaba! do not sit well with this Court. Indeed, we are not convinced that
he could have uttered that statement since the evidence points to the fact
that he and his friends had just arrived from another phase of the
subdivision upon having delivered thereat, the Armalite of Suico.On the
contrary, Lapidante appeared to have been gripped by fear and was
obviously trying to escape from harm. Indeed, there was no moment for
Catbagan to validly state that his own life [was] in imminent danger from
Lapidante.[56]
Neither do we accept the contention that unlawful aggression
by Lapidante was shown by his act of rushing towards his house
for the purpose of taking a more advantageous position.Referred
to here is the rule that if it is clear that the purpose of the
aggressor in retreating -- or, as in this case, Lapidantes rushing
towards his house -- is to take a more advantageous position to
ensure the success of the attack already begun, the unlawful
aggression is considered still continuing; and the one resorting to
self-defense has a right to pursue and disable the former.[57]
Obviously, this rule does not apply to Lapidante, because 1)
there was no clear purpose in his act of retreating to take a more
advantageous position; and 2) since he never attacked appellant in
the first place, the former could not have begun any unlawful
aggression and, hence, would not have had any reason to take a
more advantageous position. How could there have been a
continuation of something that had never been started? If any
aggression was begun in this case, it was by Suico, not by
Lapidante.
Hence, no unlawful aggression by Lapidante was
shown. Because the presence thereof is a statutory and
doctrinal conditio sine qua non of the justifying circumstance of
self-defense[58]-- complete or incomplete -- we need not examine
the presence of the other requisites.
Circumstances Surrounding
the Shooting of Lacaden
that Jun Lacaden had an icepick, that claim is rather nebulous. Firstly, as
veteran criminal investigator, he should have taken, kept and presented
that said instrument to augment his legal excuse.Secondly, if really there
was one, it is rather surprising why he did not demand Jun Lacaden for its
surrender initially as he passed thru the pedestrian steel door and
subsequently while the latter had positioned himself near the owner-type
jeep.
More importantly, granting that Jun Lacaden had an icepick, and/or had
any design to launch an attack against Catbagan, the former was just too
far a distance away to do real harm to the accused. From 6-7 meters, as
clarified from the accused himself, it is ridiculous for us to believe that
Jun Lacaden could stab him. More so because the accused himself
testified that the two arms of Jun Lacaden were raised upward which is
not to mention that Catbagan had already demonstrated his proficiency
and accuracy in the use of his .9 mm automatic pistol. Thus, there was,
like that of Lapidante, no occasion to find as existing, the element of
unlawful aggression.[60]
Appellant has presented no sufficient reason to overturn
these conclusive findings of the trial court. Aside from being
completely in accord with logic and human experience, they are
too solid to be debunked by him.
Third Issue:
Voluntary Surrender
Final Issue:
Crimes and Penalties