Republic of the Philippines

SUPREME COURT
Manila

PEOPLE OF THE PHILIPPINES

Plaintiff,

- versus - Criminal Case No.

xxxxxxx
For : Parricide and
Homicide

Richard Angelo Tiu,

Accused.
x--------------------------------------x

POSITION PAPER
(For the Accused Plaintiff)
-------------------------------------

The Accused, through counsel, and to this Honorable Court, most

respectfully avers:
I. Statement of Facts and of the Case
This is a consolidated case of parricide and homicide filed by the State
against Atty. Richard Angelo Tiu for the death of Katrina Maristel Mongaya
and Mary Ellen Iway sometime on December of 2016.
Atty. Tiu is a lawyer that works as a junior associate in a prestigious
law firm in Cebu for about three years. He is a hardworking man and goes
home around 11:00 p.m. to finish his work every day.

On the day of the unfortunate event, he woke up at 6:30 a.m. and was
greeted by his wife, Katrina Maristel Mongaya, who prepared breakfast and
all the necessary things for work. Thereafter, Atty. Tiu went to the office
where he entertained his clients and went on to prepare for hearings. After a
days worth of hard work he went home around 11:00 p.m. that evening
through a Grab Taxi as the said lawyer did not use his car that day.
 Upon arriving home, Atty. Tiu gently opened the door of the house
with the intent to surprise his wife. Their house was recorded to be loft type
where the bedroom is upstairs and was surrounded by glass. When he
opened the doors of his house, he saw two silhouettes where one was on top
of the other. He then pulled out his gun and went up to the room. Even
before opening the door he both shot his wife, Katrina Maristel Mongaya,
and the other silhouette that both died instantaneously. The other person was
later identified to be Mary Ellen Iway.

A case was filed against Atty. Tiu for the death of both Katrina
Maristel Mongaya and Mary Ellen Iway where he admitted to the crime but
then invoked that the death was under the exceptional circumstance under
Article 247 of the Revised Penal Code.

II. ISSUE :

MAY THE ACCUSED AVAIL FOR EXEMPTING PRIVILEGE OF

DEATH UNDER EXCEPTIONAL CIRCUMSTANCE UNDER ARTICLE

257 OF THE REVISED PENAL CODE.

III. ARGUMENTS AND DISCUSSION

THAT THE DEATHS FALL UNDER THE EXEMPTING

PRIVILEGE OF DEATH UNDER EXCEPTIONAL

CIRCUMSTANCE UNDER ARTICLE 247

 The accused may avail of the exempting privilege of death under

extraordinary circumstance. For one to invoke such, the following requisites

must concur :

a. That a legally married person surprises his spouse in the act

of committing sexual intercourse with another person.

b. That he kills any of them or both of them in the act or

immediately thereafter

c. That he was not promoted or facilitated the prostitution of his

wife or that she or she has not consented to the infidelity

of the other spouse.

ACCUSED IS LEGALLY MARRIED AND SURPRISED HIS SPOUSE

IN THE ACT OF COMMITING SEXUAL INTERCOURSE WITH

ANOTHER PERSON

Accused, herein, may enjoy the benefits of Article 247, as first and foremost

he is a legally married person. Accuseds marriage to his deceased wife

Katrina Mongaya is undisputed. As accuseds marriage with deceased

Mongaya is established as fact, accused herein may avail of the exempting

privilege of death under extraordinary circumstance as accused surprised

his spouse in the act of committing sexual intercourse with another person.

It is humbly submitted that the requisite that the offender must surprise his

spouse in the act of committing sexual intercourse with another person has

been complied with by the accused. It is of the record that the design of

accuseds house being a loft type with the bedroom upstairs surrounded by

glass, did not disguise the presence of Atty. Tiu. His mere entrance through

the door of their loft apartment is enough surprise to anyone person inside as

the bedroom is merely covered by glass. It is beyond any doubt and simply

that of logic that upon a persons entrance, his presence may be known to

anyone inside even if said persons inside were at the second floor loft

bedroom for only clear glass divides said persons from each other. It is of

logical inference that ones sense of sound and sensation enable the same to

realize that one has entered the room. Thus, the element of surprise has

been complied with.

The word surprise does not necessitate any response from the copulating

couple, only that the offender should come upon suddenly and

unexpectedly1. The fact that Katrina Mongaya and Mary Iway had sexual

intercourse in the house presupposes that they were not expecting his

appearance. Reasonable inference would dictate that their having sexual

intercourse at the time shows that they were, indeed, not expecting his
1
Article 247 of the Revised Penal Code
appearance because he would not be home at those hours. As such, they

were given the surprise of their life when he did arrive. His presence behind

the glass sufficiently supports the contention that he surprised the both of

them before inevitably killing them given their highly immoral and

unfaithful acts.

It is crucial that it must be in the act of sexual intercourse. Merely sleeping

on the same bed does not constitute the commission of sexual intercourse.2

However, it is enough that the circumstances show reasonably that the carnal

act is being committed or has just been committed.3 In the case at bar, it is

clear, through the silhouette of the bodies that their positions indicate sexual

intercourse was occurring at that moment. The silhouettes portrayed one

person on top of the other. The Supreme Court has ruled that the mere fact

the husband saw someone on top of his was without seeing the precise act of

sexual intercourse is enough to extend to the husband the exempting

privilege of Article 247 of the Revised Penal Code4 - the aforesaid

notwithstanding the nature and location of the perverse act. Deceased

Mongaya and Iway consummated their carnal act in the dwelling of Atty.

Tiu further adding disrespect evidencing the outright depravity of the

deceased justifying accuseds actions. The place of consummation, being the

2
People v Bituanan G.R. No. 34510
3
Concurring Opinion of Justice Moran in U.S. v Alano G.R. No. L-11021
4
U.S. v Alano G.R. N.o. L-11021
family home of Atty. Tiu and his late wife, is no less than the family home.

Such family home, being accorded great protection under the law, is a sacred

place for a married couple that could very much cause such great passion

upon seeing it defiled in such a perverse and morally reprehensible way.

THAT HE KILLS ANY OF THEM IN THE ACT OR IMMEDIATELY

THEREAFTER

Secondly, it is submitted that the accused was unsettled and blinded by

outrage. Atty. Tiu shot his late wife, Katrina, and her companion whom he

believed in good faith was in the act of committing sexual intercourse. It is

submitted that there may be no other logical inference, a loyal and devoted

husband, may deduce when he sees two silhouettes in their room, one on

top of the other, inside a house occupied only and solely by the spouses. It is

unfortunate that Atty. Tiu who was expecting to come home to the loving

arms of his wife, Katrina, ended up coming home to a horrifying sight of his

wifes silhouette under the unfamiliar silhouette of another. The mere sight

of a person on top of ones wife is enough grounds to enable accused to avail

of the exempting privilege even if accused did not actually see the sexual act

itself.5

5
Ibid
 As an enraged husband Atty. Tius burst of passion is an expected

reaction. When accused went upstairs, approached their room, and shot the

people framing the silhouettes, such act was done when Atty. Tiu was in a

state of mental disequilibrium. Certainly, such killing was done while

Katrina was having sexual intercourse with Mary, as later identified in

flagrante delicto.

The vindication of a mans honor is justified because of the

scandal an unfaithful wife creates; the law is strict on this,

authorizing as it does, a man to chastise her, even with death.

But killing the errant spouse as a purification is so severe as

that it can only be justified when the unfaithful spouse is

caught in flagrante delicto; and it must be resorted to only

with great caution so much so that the law requires that it be

inflicted only during the sexual intercourse or immediately

thereafter."6

6
People v. Wagas G.R. No. 61704
THAT HE DID NOT PROMOTE OR FACILITATE THE

PROSTITUTION OF HIS WIFE OR THAT HE DID NOT

CONSENT TO THE INFIDELITY OF THE OTHER SPOUSE.

Thirdly, it is submitted that accused, herein, has not promoted nor facilitated

the prostitution of his wife or that he or she has not consented to the

infidelity of the other spouse.

In this case, Atty. Tiu clearly did not promote or facilitate the prostitution of

his wife. It is stressed, further, that he did not consent to her infidelity. To

reiterate, there was no clear and convincing evidence to rebut such claim

since in his heart, he was committed to his marriage while at the same time

believing that his wife Katrina gave him the same loyalty and love but only

to find out such was not the case.

It has also been ruled that when a husband signed a document wherein he

ordered his wife to look for and live with another man. As such, in the

aforementioned case there was a clear proof in the form of a signed

document that he consented to such infidelity. Therefore, he did not avail of

the benefit under Article 247.7

7
People v Dumon 72 Phil. 41
In stark contrast to the case at bar, there was neither a signed document nor

an agreement that Atty. Tiu consented to the infidelity of his wife and that he

promoted and facilitated such prostitution. Atty. Tiu did not even know or

have a tinge of suspicion as to the infidelity of his wife which all the more

caused his shock when he saw deceased Iway on top of his beloved late wife

Katrina whom he loyally loved and served.

THAT ACCUSED ADMITTED TO HIS KILLING OF THE

DECEASED WHICH SHOWS THE LACK OF CRIMINAL

PERVERSITY AND THE ACKNOWLEDGEMENT THAT HE WAS

ONLY IN THE CLOUT OF EMOTIONS.

This honorable Supreme Court has already ruled that the fact that the

husband admitted to his killing of his wife and here paramour shows that the

husband did not intend to kill the wife but simply acted under the clout of his

emotions.8 Herein accused has admitted to his killing of his wife and her

paramour. Accused does not deny such killings. Accused did not even try to

conceal or create an alibi on the death of his spouse and her paramour. Such

acts are in consonance with the decided case that a husbands admittance to

the killing of his spouse and her paramour is an admission to the passions

that clouded his judgment at the time of seeing them in the act of sexual

intercourse so perverse and deprave for such betrays the sacred trust between

a man and his spouse.

8
People v Talisic G.R. No. 97961
It is, therefore, humbly submitted that all the requisites which enable an

individual to avail of the exempting privilege of death under extraordinary

circumstance concur in this case. While the death of Katrina Mongaya and

Mary Iway are mourned, the pain that Atty. Tiu felt for such betrayal of trust

that caused him to perform such acts cannot be discredited. No amount of

sorrow and begging for forgiveness can dissuade such a breach of marital

fidelity. For it is in that light that Article 247 of the Revised Penal Code

came to be.

IV. PRAYER

WHEREFORE, premises considered it is respectfully prayed of this

Honorable Supreme Court that the accused AVAIL OF THE EXEMPTING

PRIVILEGE for DEATH UNDER EXTRAORDINARY

CIRCUMSTANCES defined in ARTICLE 247 OF THE REVISED PENAL

CODE.

Other remedies are likewise prayed for.

October 12, 2016, Cebu City for Manila, Philippines.

FUENTES AND ASSOCIATES LAW OFFICES

Counsel for the Accused
Unit 302 University of San Carlos Law Building
P. del Rosario St.,
6000 Cebu City
Telefax No. (032) 253-1000
e-mail: 302gahiattorneys@gmail.com

By:
 VERIFICATION

I, Richard Angelo Tiu, of legal age, American citizen and a resident of 1037
S. Aguila Street, Basak Mambaling, Cebu City, after having been duly sworn to in
accordance with law, depose and say, that: I am the respondent in the above-
entitled case; I have caused the preparation of the foregoing position paper; the
contents of which I have read, understood and affirm of my own personal
knowledge and on the basis of authentic documents in my possession, the truth of
all the factual allegations herein contained.
I hereby certify that the annexes attached to this position paper are true and
faithful reproduction of the original/duplicate original/certified true copies on file
or in my possession or on record.
IN WITNESS WHEREOF, I have hereunto set my hand this 12 th day of
October 2016 at Cebu City, Philippines.

RICHARD ANGELO TIU

Affiant

SUBSCRIBED AND SWORN to before me this 12th day of October 2016

at Cebu City, Philippines. Affiant exhibiting to me her Drivers License No.
_________________issued at Cebu City on January 28, 2014.

Doc. No. 296; Notary Public

Page No. 9;
Book No. XXV;
Series of 2016.

Copy furnished:
by registered mail
____________________
____________________

Explanation
Copy by mail was resorted due to distance.