1. PEOPLE v.
PAGALASAN George and Michael as police officers on the lookout for a certain George Lim and his son who
[G.R. Nos. 131926 & 138991. June 18, 2003]
DECISION
CALLEJO, SR., J.:
This is an automatic review of the Decision[1] of the Regional Trial Court of General Santos
City, Branch 35, convicting appellant Michael U. Pagalasan of two counts of kidnapping for ransom
of George Lim and his 10-year-old son Christopher Neal Lim and sentencing him to double death.
The Antecedents
The Spouses George and Desiree Lim and their three young children, one of whom was 10-
year-old Christopher Neal Lim, resided at Villa Consuelo Subdivision, General Santos City.The
spouses hired a security guard, Ferdinand Cortez, from the Valiant Security Agency to provide
security services to the family. On September 4, 1994, at 11:00 p.m., the spouses and their
children were in the masters bedroom watching television. The couples housemaid, Julita Sarno,
was in the kitchen. She heard knocks on the kitchen door. Thinking that it was Ferdinand, she
opened the door. Four men, about 55 to 56 tall, each armed with handguns, two of whom were
holding hand grenades, barged into the kitchen. The four intruders wore bonnets over their
faces. With them was Ferdinand, whose hands were tied behind his back. When asked by the
masked men where her employers were, Julita responded that they were in their bedroom. On
orders of the intruders, she knocked on the bedroom door. When Georges daughter opened the
door, three of the masked men barged into the room, while the fourth masked man remained in
the sala of the house.[2] The three masked men shouted to George and Desiree: Walang
mangyayari sa inyo basta ibigay ninyo ang kailangan namin. (Nothing will happen to you provided
you give us what we want.)[3] They ransacked the house, getting cash and valuables. The masked
men gave Desiree a handwritten note,[4] and dragged George and Christopher Neal Lim out of the
bedroom through the sala to the garage, where Georges Nissan car was parked for the
night. George saw Ferdinand in the sala with his hands tied behind his back. One of the masked
men ordered George to hand over the key to his vehicle, to board the car and occupy the back
seat along with Christopher. Father and son did as they were told. Two of the masked men
positioned themselves on either side of George and Christopher. The third man drove the car,
while the fourth sat on the passengers seat beside the driver. The car cruised along the national
highway. When the car was nearing the Gambalan Kitchenette, George and Christopher were
blindfolded. The masked men told them that they would be brought to Polomolok. After about
fifteen minutes, the car stopped at Sitio Tupi. The two men who were seated at the back and the
masked man seated beside the driver alighted from the car, bringing Christopher with
them. George was transferred to the front seat beside the driver. George was told that he would
be transported to Maasim.
In the meantime, SPO2 Federico Pao, the duty officer of Police Precinct No. 2, received a
radio report that George Lim and his son Christopher had been kidnapped. Police investigators
were dispatched to the Lim residence to conduct an on-the-spot investigation. They brought
Ferdinand and Julita to the police station for investigation. SPO2 Renato Daga-as, SPO2 Datur
Villanueva and SPO1 Alimuddin Timbao were directed to establish a mobile checkpoint at the
intersection of the national highway and a dirt road (Espina Road). The three policemen boarded
a Tamaraw mobile car and parked it at the said intersection. At about thirty meters from the
checkpoint, the masked driver of the Nissan vehicle saw the police car.Instead of running the car
through the checkpoint, the driver stopped and switched off its headlights. He removed his bonnet
and Georges blindfold, warning the latter not to make any false move. George looked at the driver,
who turned out to be the appellant Michael Pagalasan.
The three police officers approached the car. Daga-as went to the right side of the car
beside the passenger seat, while Villanueva went to the left side, near the drivers seat. For his
part, Timbao proceeded to the cars rear end. Daga-as and Villanueva identified themselves to
had been kidnapped in General Santos City. Daga-as inquired from George what his name was,
and George replied that he was Albert Lim. The driver identified himself as Michael
Pagalasan. George gave a false first name because he was afraid Michael might shoot him. Daga-
as noticed that Georges fingers were trembling. Villanueva knocked at the door on the drivers
side, and tried to open the same, but it was locked. When Michael himself opened the door,
Villanueva pulled him out of the vehicle and brought him to the mobile car. Michael was suddenly
in the custody of the policemen. George then identified himself as one of the kidnapped
victims. He also told the policemen that his son was still with the other kidnappers. The policemen
thereafter searched the Nissan car and found a .38 caliber [5] handgun with six live bullets in its
chamber[6] and a grenade under the drivers seat.[7] The policemen brought Michael and George
to the police station where Ferdinand was being interrogated by police investigators. Ferdinand
told George that he had nothing to do with the kidnapping, but before he could explain further,
he was whisked into the investigation room. After giving a sworn statement to the police
investigator, George was allowed to go home. Desiree gave George the handwritten letter earlier
given to her by the kidnappers before they left the house that evening. In the letter, the spouses
were warned not to coordinate with the military, nor to take any action in connection with the
kidnapping without their knowledge or consent. They were also informed that the malefactors
would communicate with the couple, whether by letter or through the telephone only through
MUBARAK II or 2.[8] Julita executed an affidavit in connection with the kidnapping. [9]
Police Inspector Antonio Evangelista ordered SPO4 Recio Aniversario to conduct a custodial
investigation on Michael. Recio asked Michael if he wanted to execute an affidavit, and Michael
replied that he was going to execute one. The police investigator inquired if he knew of any lawyer,
to which Michael replied in the negative. The police investigator then suggested Atty. Tomas C.
Falgui, a private practitioner, as his counsel. When Michael agreed, the police investigator phoned
the lawyer, requesting the latter to assist Michael while undergoing custodial investigation. The
lawyer agreed and forthwith proceeded to the police station. Michael gave his confession under
custodial investigation with the assistance of Atty. Falgui. [10]
In his confession, Michael admitted that upon orders of Ronnie Cabalo, he and three other
men, Aladin (Ronnies brother), a Muslim known as Ferdinand, and Bong (a resident of Purok
Islam), had kidnapped George and his son Christopher. Ronnie Cabalo instructed Michael to use
Georges vehicle to transport father and son to the banana plantation where Aladin, Ferdinand and
Boy would alight with Christopher, and to thereafter return George to his house. Aladin had given
him a handgun for his use. Ferdinand Cortez was in cahoots with them. He was at first reluctant
to obey Ronnie, but relented when he was told not to be afraid and to use the grenade in case of
trouble. George told him that he had already given money to Aladin, and that Michaels companions
had taken some pieces of jewelry from him and his wife before they left the Lim residence.
In the light of Michaels confession, farmer Hadji Aladin Malang Cabalo, Ronie Puntuan and
Fernando Quizon were arrested and detained at Camp Fermin Lira Barracks, General Santos
City. In the meantime, on September 6, 1994, George received another handwritten letter,
ordering the release of Michael and Ronie Puntuan because they were innocent, and
demanding P3,000,000 for Christophers release.[11]
On September 9, 1994, George received another handwritten letter dated September 9,
1994, this time from MUBARAK II or 2 informing him and his wife that the kidnappers did not
want the military to be involved nor innocent people to be prejudiced. The spouses were also
warned that their son would not be released alive unless Ronie Puntuan was freed in three
days.[12] On the same day at 3:25 p.m., Ronie Puntuan, through counsel, filed a motion with the
MTC praying that he be transferred from the Camp Fermin Lira Barracks to the General Santos
City Jail.[13]
AMCVB CRIM 1 [Art. 8-11] (5)| 1
 In the morning of the following day, September 10, 1994, Christopher was rescued by
policemen without any ransom being paid. On September 13, 1994, George executed a sworn
statement relating to the incidents that happened from September 4, 1994 to September 10,
1994.[14]
Michael was charged with kidnapping for ransom and violation of PD 1866 before the
Municipal Trial Court (MTC) of General Santos City. [15]
During the initial stage of the preliminary investigation by the MTC on September 6, 1994,
Atty. Falgui appeared as Michaels counsel and testified on what transpired immediately before,
during and after the custodial investigation, including Michaels execution of his extrajudicial
confession.[16] Michael was also placed on the witness stand and, with the assistance of counsel,
testified on his extrajudicial confession. He affirmed the veracity of the contents of the said
confession.[17] Subsequently, Michael, through his mother, secured the services of Atty. Emmanuel
V. Fontanilla. On September 12, 1994, Michael executed an affidavit withdrawing his September
5, 1994 extrajudicial confession, in which he stated that: (a) he was not assisted by counsel of
his own choice when he executed the extrajudicial confession; and (b) Ronie Puntuan, who was
arrested and detained, was not Ronnie Cabalo.[18] Michael also executed a counter-affidavit where
he denied the accusations against him, and clarified that he was forced and intimidated into
making his September 5, 1994 confession, and he was not provided with counsel of his own choice
during custodial investigation. His constitutional rights under custodial investigation were allegedly
not sufficiently explained to him.[19] He filed the said affidavits with the MTC during the preliminary
investigation.
On September 23, 1994, the MTC issued a resolution finding probable cause for charging
the accused with kidnapping for ransom. The Office of the City Prosecutor conducted a
reinvestigation of the case. On October 4, 1994, the Office of the City Prosecutor issued a
resolution ordering the release of Hadji Aladin Malang Cabalo on the ground that he was not the
Aladin Cabalo referred to by Michael in his confession. [20]
An Information for violation of PD 1866 was filed against Michael on October 17, 1994 with
the Regional Trial Court of General Santos City, Branch 22, docketed as Criminal Case No.
11062. On November 3, 1994, Michael, Ronnie Cabalo, Aladin Cabalo, Ferdinand Cortez, a certain
John Doe identified as Fernando, and Peter Doe were charged with kidnapping for ransom in an
Information, docketed as Criminal Case No. 11098, which reads:
That on or about September 4, 1994, in General Santos City, Philippines, within the jurisdiction of
this Honorable Court, the said accused, conspiring, and confederating together and mutually
helping each other, did then and there willfully, unlawfully and feloniously kidnap George Lim,
and his ten-year-old son, Christopher Neal Lim, for the purpose of extorting ransom from the said
victims.[21]
The cases were raffled to Branch 22 of the Regional Trial Court. When arraigned in Criminal
Case No. 11062 for Violation of PD 1866, Michael pleaded not guilty. On February 6, 1995, Michael,
Ferdinand and Fernando Quizon were arraigned in Criminal Case No. 11098 and pleaded not
guilty.[22] Ronnie Cabalo and Aladin Cabalo remained at-large. On August 24, 1995, the judge
hearing the cases inhibited himself. Both cases were re-raffled, assigned to, and were tried jointly
by Branch 35 of the Regional Trial Court.
During the trial, Michael, through counsel, admitted the truth of the contents of the affidavit
executed by Julita Sarno.[23] Michael also executed an affidavit on December 5, 1995 alleging inter
alia that he was forced at gunpoint by Boy and Aladin to barge into the Lim residence and drive
the latters car, and that he did not know Fernando Quizon. [24] After the prosecution had presented
all its witnesses, it filed a formal offer of its documentary evidence including Michaels December
15, 1995 Sworn Statement and his confession.[25] Michael did not file any comment or opposition
to the said offer. On May 3, 1996, the trial court issued an order admitting the prosecutions
documentary evidence, including Michaels confession.[26] After the prosecution had rested its case,
Fernando Quizon filed a demurrer to evidence in Criminal Case No. 11098. On July 2, 1996, the
court issued an order granting the demurrer to evidence of the said accused and acquitted him of
the charge.[27]
The Defense and Evidence of the Accused
Ferdinand Cortez denied kidnapping George and Christopher. He testified that he had been
employed as a security guard by the Valiant Security Agency. He was assigned by the agency to
protect George Lim and his family. On the evening of September 4, 1994, Ferdinand was washing
Georges car in the garage. The house was surrounded by a 10-foot wall, and the gate was
locked. Ferdinand was shocked when masked men, armed with handguns, suddenly arrived. They
poked their guns at him, maltreated him, and tied his hands behind his back. The masked men
knocked at the door of the house and when the housemaid Julita Sarno opened it, the men
dragged Ferdinand towards the entrance, to make it appear that he was the one knocking. The
masked men then barged into the sala and tied Julitas hands. Ferdinand claimed he never met
any of the kidnappers before September 4, 1994. He was puzzled why he was being implicated in
the case.
For his part, Michael testified that he was a Muslim, 19 years of age, and an elementary
school graduate. He made a living as a conductor of his uncles jeepney. At night, the jeepney was
parked in Tambler, and it was where he usually slept. On the evening of September 4, 1994, at
about 9:00 p.m., he was in their house at Purok Islam public market, General Santos City. His
friend Bong arrived, and invited him for a stroll and to accompany the latter to get a
motorcycle. Michael agreed. They took a tricycle and arrived at the Villa Consuelo
Subdivision.Michael was surprised when the tricycle stopped near the gate of the Lim residence
and masked men suddenly appeared, poking their guns at him. Bong fled, leaving Michael alone
to fend for himself. The masked men ordered Michael to drive a car, and warned him that if he
refused, he would be killed. Momentarily, one of the men emerged from the house, with George
Lim in tow. George gave the key to his Nissan car to one of the kidnappers, who in turn handed
it over to Michael. The men forced George and his son Christopher to board the car. Father and
son were seated between two masked men. Afraid for his life, Michael was forced to drive the car
with one of the kidnappers pointing a gun at him, seated to his right at the passengers side. The
kidnappers ordered Michael to drive the car towards the direction of Barangay Ligaya.
When the car reached a dark portion of the road in Barangay Ligaya, three of the men
alighted, bringing Christopher with them. Michael then pleaded to George to bring him first to
Tambler, where the jeepney of his uncle was parked. Michael wanted to sleep there instead of
going home. George agreed, and drove the car himself through Barangay Makar. George told
Michael that they had to travel along Espina road, a dirt road, instead of the regular road because
they might encounter policemen, and Christopher might be killed by his kidnappers.However, the
car had to stop at the intersection of the national highway and Espina Road when George saw
policemen and the mobile police car parked at the intersection.
Michael was arrested by the police, blindfolded, and brought to the mobile car where he
was also mauled. His head was banged against the sides of the mobile car. At the precinct, Michael
was mauled anew by the policemen. It was only after he had given his statement to a police
investigator that Atty. Falgui arrived and told Michael, I am your lawyer.[28] Atty. Falgui instructed
Michael to tell the whole truth.[29] When his mother Camaria Opong visited him, he told her that
he had been blindfolded and mauled at the station, and that because of this, his body ached. She
saw a big hump in his head. On September 8, 1994, she secured the services of Atty. Fontanilla
as counsel of her son. The lawyer went to the City Jail and talked to Michael. Michael showed the
lawyer the contusions and bruises on his body, and the scratches on his neck. Michael told the
lawyer that he had been maltreated by an inmate at the detention cell. He also narrated that he
knew nothing about the kidnapping and that he was only hired by somebody to drive a
car. Michael assured the lawyer that he was not aware of the purpose of the culprits in kidnapping
George and Christopher. On September 9, 1994, Atty. Fontanilla executed an affidavit reiterating
AMCVB CRIM 1 [Art. 8-11] (5)| 2
the information Michael conveyed to him. [30] On September 16, 1994, Michael filed an urgent
motion for medical check-up, which the court granted.[31]
Dra. Virginia Ramirez, Officer-In-Charge of the City Integrated Health Services, examined
Michael on September 22, 1994 and found him suffering from myalgia residual or muscle pains
due to mauling, which she surmised took place about one week to ten days before the
examination. She issued a medical certificate of the said examination. [32]
On September 24, 1997, the trial court rendered judgment acquitting Ferdinand Cortez and
convicting Michael of kidnapping for ransom, the decretal portion of which reads:
JUDGMENT
WHEREFORE, premises considered, the accused is hereby sentenced as follows:
In Criminal Case No. 11062 for failure of the prosecution to prove the accusation against the
accused Michael Pagalasan beyond reasonable doubt, he is hereby ACQUITTED of the crime
charged.
In Criminal Case No. 11098, the accused Michael Pagalasan is hereby found guilty of the crime of
kidnapping for ransom as defined and penalized under Article 267 as amended by Section 8 of
Republic Act 7659, and there being no modifying circumstance to consider, he is sentenced to
suffer the EXTREME PENALTY OF DEATH insofar as the case of George Lim is concerned.
The same penalty of death shall also be imposed against Michael Pagalasan in the case of
Christopher Neal Lim who was kidnapped on the same occasion and was released only on the
sixth day after his captivity.
The case of Ferdinand Cortez, for lack of sufficient evidence to convict him, he is hereby
ACQUITTED of the crime charged.
SO ORDERED.[33]
The trial court ruled in Criminal Case No. 11098 that with or without the confession of
Michael, the prosecution adduced proof beyond reasonable doubt that he, in conspiracy with three
others, kidnapped George and Christopher. It found the testimony of George straightforward and
positive, credible and entitled to full probative weight. The trial court sentenced Michael to double
death on its finding that he and his cohorts kidnapped George and Christopher for the purpose of
extorting ransom. It disbelieved Michaels confession implicating Ferdinand Cortez, and acquitted
the latter for failure of the prosecution to prove his guilt beyond reasonable doubt. The trial court
likewise acquitted Michael in Criminal Case No. 11062.
Michael, now the appellant, asserts that:
I serious illegal detention is a minor, the duration of his detention is immaterial. Likewise, if the
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT FOR THE CRIME OF
KIDNAPPING FOR RANSOM OF CHRISTOPHER NEAL LIM DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT FOR THE CRIME OF
KIDNAPPING FOR RANSOM OF ONE GEORGE LIM WITHOUT ANY BASIS IN FACT AND IN LAW.
III
THE TRIAL COURT ERRED IN NOT CONSIDERING THE DEFENSE INTERPOSED BY THE ACCUSED-
APPELLANT AND IN GIVING CREDENCE TO THE INCONSISTENT TESTIMONY OF GEORGE LIM. [34]
The appellant is guilty of kidnapping Christopher under Article 267 of the Revised Penal Code.
On the first assignment of error, the appellant avers that the prosecution failed to prove his
guilt beyond cavil of doubt for the crime of kidnapping Christopher. Georges testimony that the
gun and hand grenade[35] were found in the car, under the seat beside the driver is inconsistent
with his own statement before the police investigator that the said gun and grenade were found
in the appellants possession; hence, the testimony of George is incredible and barren of probative
weight. The case for the prosecution was enfeebled by its failure to present Christopher to testify
on his kidnapping and to corroborate the testimony of his father. The failure of the prosecution
to present Christopher as a witness raised the presumption that if he had been so presented, he
would have testified on matters adverse to the prosecution. For its part, the Office of the Solicitor
General contends that the testimony of George, its principal witness, as well as those of its other
witnesses, is sufficient to prove, beyond reasonable doubt, that the appellant conspired with three
others in kidnapping Christopher for ransom. There was no need for the prosecution to present
Christopher to testify on his kidnapping, as his testimony would be merely corroborative of his
fathers account of events.
The contention of the appellant is barren of merit.
Article 267 of the Revised Penal Code as amended by Republic Act No. 7659 reads:
ART. 267. Kidnapping and serious illegal detention. Any private individual who shall kidnap or
detain another, or in any other manner deprive him of his liberty, shall suffer the penalty
of reclusion perpetuato death:
1. If the kidnapping or detention shall have lasted more than three days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained,
or if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, except when the accused is any of the
parents, female, or a public officer.
The penalty shall be death where the kidnapping or detention was committed for the purpose of
extorting ransom from the victim or any other person, even if none of the circumstances above-
mentioned were present in the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to
torture or dehumanizing acts, the maximum penalty shall be imposed. (As amended by RA No.
7659).
For the accused to be convicted of kidnapping, the prosecution is burdened to prove beyond
reasonable doubt all the elements of the crime, namely: (a) the offender is a private individual;
(b) he kidnaps or detains another, or in any manner deprives the latter of his liberty; (c) the act
of detention or kidnapping must be illegal; and (d) in the commission of the offense any of the
following circumstances is present: (1) the kidnapping or detention lasts for more than three days;
(2) it is committed by simulating public authority; (3) any serious physical injuries are inflicted
upon the person kidnapped or detained or threats to kill him are made; or (4) the person
kidnapped or detained is a minor, female, or a public officer. [36] If the victim of kidnapping and
victim is kidnapped and illegally detained for the purpose of extorting ransom, the duration of his
detention is immaterial.
The essential elements for this crime is the deprivation of liberty of the victim under any of
the above-mentioned circumstances coupled with indubitable proof of intent of the accused to
effect the same.[37] There must be a purposeful or knowing action by the accused to forcibly
restrain the victim coupled with intent.[38]
Judge Learned Hand once called conspiracy the darling of the modern prosecutors
nursery.[39] There is conspiracy when two or more persons agree to commit a felony and decide
to commit it.[40] Conspiracy as a mode of incurring criminal liability must be proven separately
from and with the same quantum of proof as the crime itself. Conspiracy need not be proven by
direct evidence. After all, secrecy and concealment are essential features of a successful
conspiracy. Conspiracies are clandestine in nature. It may be inferred from the conduct of the
accused before, during and after the commission of the crime, showing that they had acted with
a common purpose and design.[41] Paraphrasing the decision of the English Court in Regina v.
Murphy,[42] conspiracy may be implied if it is proved that two or more persons aimed by their acts
towards the accomplishment of the same unlawful object, each doing a part so that their combined
acts, though apparently independent of each other, were, in fact, connected and cooperative,
AMCVB CRIM 1 [Art. 8-11] (5)| 3
indicating a closeness of personal association and a concurrence of sentiment. [43] To hold an
accused guilty as a co-principal by reason of conspiracy, he must be shown to have performed an
overt act in pursuance or furtherance of the complicity. [44] There must be intentional participation
in the transaction with a view to the furtherance of the common design and purpose. [45]
The United States Supreme Court in Braverman v. United States,[46] held that the precise
nature and extent of the conspiracy must be determined by reference to the agreement which
embraces and defines its objects. For one thing, the temporal dimension of the conspiracy is of
particular importance. Settled as a rule of law is that the conspiracy continues until the object is
attained, unless in the meantime the conspirator abandons the conspiracy or is arrested. There is
authority to the effect that the conspiracy ends at the moment of any conspirators arrest, on the
presumption, albeit rebuttable, that at the moment the conspiracy has been thwarted, no other
overt act contributing to the conspiracy can possibly take place, at least as far as the arrested
conspirator is concerned.[47] The longer a conspiracy is deemed to continue, the greater the
chances that additional persons will be found to have joined it. There is also the possibility that
as the conspiracy continues, there may occur new overt acts. If the conspiracy has not yet ended,
then the hearsay acts and declarations of one conspirator will be admissible against the other
conspirators and one conspirator may be held liable for substantive crimes committed by the
others.[48]
Each conspirator is responsible for everything done by his confederates which follows inci
dentally in the execution of a common design as one of its probable and natural
consequences even though it was not intended as part of the original design. [49] Responsibility of
a conspirator is not confined to the accomplishment of a particular purpose of conspiracy but
extends to collateral acts and offenses incident to and growing out of the purpose
intended.[50] Conspirators are held to have intended the consequences of their acts and by
purposely engaging in conspiracy which necessarily and directly produces a prohibited result that
they are in contemplation of law, charged with intending the result. [51] Conspirators are necessarily
liable for the acts of another conspirator even though such act differs radically and substantively
from that which they intended to commit.[52] The Court agrees with the ruling of the Circuit Court
of Appeals (Second District) per Judge Learned Hand in United States v. Peoni [53] that nobody is
liable in conspiracy except for the fair import of the concerted purpose or agreement as he
understood it; if later comers change that, he is not liable for the change; his liability is limited to
the common purpose while he remains in it. Earlier, the Appellate Court of Kentucky in Gabbard
v. Commonwealth[54] held that:
The act must be the ordinary and probable effect of the wrongful acts specifically agreed on, so
that the connection between them may be reasonably apparent, and not a fresh and independent
project of the mind of one of the confederates, outside of or foreign to the common design, and
growing out of the individual malice of the perpetrator.
Equally persuasive is the pronouncement of the Circuit Court of Appeals (Second District)
in United States v. Crimms,[55] that it is never permissible to enlarge the scope of the conspiracy
itself by proving that some of the conspirators, unknown to the rest, have done what was beyond
the reasonable intendment of the common understanding. This is equally true when the crime
which the conspirators agreed upon is one of which they severally might be guilty though they
were ignorant of the existence of some of its constitutive facts. Also, while conspirators are
responsible for consequent acts growing out of the common design they are not for independent
acts growing out of the particular acts of individuals. [56]
In this case, the evidence on record inscrutably shows that the appellant and his three
cohorts were armed with handguns; two of them had hand grenades, and all of them had masks
over their faces. They gained entry into the Lim residence after overpowering the security guard
Ferdinand and the housemaid Julita, and tying their hands behind their backs. One of the masked
men remained in the sala, while the three others barged into the bedroom of George and Desiree,
and kidnapped George and his ten-year-old son Christopher. The appellant and his cohorts forced
father and son to board Georges car. The appellant drove the car, dropped off Christopher and
his cohorts at Sitio Tupi, and drove on with George in the car towards the direction of Maasim.
The collective, concerted and synchronized acts of the appellant and his cohorts before,
during and after the kidnapping constitute indubitable proof that the appellant and his three
companions conspired with each other to attain a common objective: to kidnap George and
Christopher and detain them illegally. The appellant was a principal by direct participation in the
kidnapping of the two victims.
The trial court found the testimony of George straightforward and positive, and entitled to
credit and full probative weight.[57] The legal aphorism is that the findings of facts of the trial court,
its calibration of the testimonies of witnesses and of their probative weight, its conclusions
anchored on its findings are accorded high respect by the appellate court, if not conclusive effect,
because of the unique advantage of the trial court of observing at close range the demeanor,
conduct and deportment of witnesses as they regale the trial court with their testimonies.[58] It is
true that the appellate court is not bound by the findings and conclusions of the trial court if the
latter ignored, misunderstood, misapplied or misinterpreted cogent facts and circumstances,
which, if considered, would change the outcome of the case. [59] This ruling, however, is
inapplicable in the case at bar, since the appellant failed to establish that the trial court erred in
this wise.
George testified that when the policemen found the gun and grenade [60] inside his car, the
appellant was already at the police station. [61] However, in his September 13, 1994
Affidavit,[62]George stated that the policemen found the gun when the appellant was frisked, while
the grenade was spotted under the passengers seat, beside the driver. This seeming inconsistency
between the two statements does not discredit his testimony nor his credibility for the following
reasons: (a) it is of judicial knowledge that affidavits being taken ex parte are almost always
incomplete and often inaccurate and are generally inferior to the testimony of a witness in open
court;[63] (b) the credibility of Georges testimony cannot be impeached by the inconsistent
statements contained in his sworn statement because the said statement was not admitted in
evidence; and Section 34, Rule 132 of the Revised Rules of Evidence provides that the Court shall
not consider evidence which has not been formally offered; besides, George was not confronted
with his sworn statement and accorded an opportunity to explain the inconsistency; [64](c) the
inconsistency refers to trivial, minor and collateral matters and not to the substance of his
testimony. Such minor inconsistency even enhances its veracity as the variances erase any
suspicion of a rehearsed testimony.[65] A truth-telling witness is not always expected to give an
error-free testimony, considering the lapse of time and the treachery of human memory. [66]
Neither is the case for the prosecution impaired by the failure of the prosecution to present
Christopher as its witness. It bears stressing that Georges testimony is corroborated by Julita and
the three arresting officers. Besides, case law has it that the testimony of a single witness, if
positive and credible, is sufficient to sustain a judgment of conviction. [67] The law does not require
the testimonies of at least two witnesses for the conviction of an accused for kidnapping and
serious illegal detention. The prosecution has the discretion to decide on who to call as witness
during the trial, and its failure to present a particular witness does not give rise to the presumption
that evidence willfully suppressed would be adverse if withheld, where the evidence is at the
disposal of the appellant and is merely cumulative or corroborative. [68] In this case, the testimony
of George is, by itself, independently of Christophers testimony, sufficient proof of the guilt of the
appellant. George had personal knowledge of the facts and circumstances of the kidnapping, as
he himself had been kidnapped along with his young son. His failure to testify on where
Christopher was detained after the three cohorts of the appellant had alighted from the car with
Christopher, and the circumstances surrounding the rescue do not weaken the case of the
prosecution, as the said facts and circumstances had occurred after the crime of kidnapping had
already been a fait accompli.
The prosecution failed to prove that in kidnapping George and Christopher, the appellant and
AMCVB CRIM 1 [Art. 8-11] (5)| 4
his cohorts intended to extort ransom.
The trial court convicted the appellant of kidnapping George and Christopher for ransom
and sentenced him to double death on its finding that the appellant and his co-accused conspired
to extort ransom for the release of the victims. For his part, the appellant contends that the
prosecution failed to prove the element of extorting ransom. The appellant argues that he cannot
be held liable for kidnapping for ransom, even if after his arrest on September 4, 1994 his co-
conspirators actually demanded ransom for Christophers release. The prosecution failed to prove
that he had knowledge of and concurred with the said demand.
The Court agrees with the appellant. The second paragraph of Article 267 of the Revised
Penal Code reads:
The penalty shall be death where the kidnapping or detention was committed for the purpose of
extorting ransom from the victim or any other person, even if none of the circumstances above-
mentioned were present in the commission of the offense.
The provision is pursuant to Rep. Act No. 1084 approved on June 15, 1984 derived from the so-
called Lindbergh Law in the United States, approved on June 22, 1932, as amended on May 13,
1934.
To warrant the imposition of the death penalty for the crime of kidnapping and serious
illegal detention for ransom, the prosecution must prove beyond reasonable doubt the following:
(a) intent on the part of the accused to deprive the victim of his liberty; (b) actual deprivation of
the victim of his liberty; (c) motive of the accused, which is extortion of ransom from the victim
or any other person. In kidnapping or serious illegal detention for ransom, the purpose of extorting
ransom is a qualifying circumstance which must be alleged in the Information and proved by the
prosecution as the crime itself by words and overt acts of the accused before, during and after
the kidnapping and detention of the victim. Neither actual demand for nor actual payment of
ransom is necessary for the crime to be committed. [69] Although kidnapping for a certain purpose
is a qualifying circumstance, the law does not require that the purpose be
accomplished.[70] Ransom employed in the law is so used in its common or ordinary sense: a sum
of money or other thing of value, price, or consideration paid or demanded for redemption of a
kidnapped or detained person, a payment that releases from captivity.[71] It may include benefits
not necessarily pecuniary which may accrue to the kidnapper or a third person as a condition for
the release of the victim.[72]
In this case, the prosecution was able to prove beyond reasonable doubt that the appellant
conspired with three others to kidnap the victims. However, it failed to prove that they intended
to extort ransom from the victims themselves or from some other person, with a view to obtaining
the latters release. The kidnapping by itself does not give rise to the presumption that the
appellant and his co-conspirators purpose is to extort ransom from the victims or any other person.
The only evidence adduced by the prosecution to prove the element of extorting ransom
are the three handwritten letters: the first was received by Desiree on September 4, 1994, while
the second and third letters were received by George on September 6 and 9, 1994, respectively.
The handwritten letter received by Desiree on September 4, 1994, first letter for brevity,
reads:
Para Sa Inyo Mr. & Mrs. Lim,
Una wag na wag kayong gumawa ng hakbang na hindi namin alam o gusto, lalong-lalo na sa
pakikipag-usap sa militar o magkoordinate sa militar ay hindi namin gustong mangyari ang ganon
mga sistem.Ang pangalawa, wag na wag kayong tumanggap ng negotiator na walang palatandaan
na galing sa amin, pakiusap lang yon na dapat ninyong sundin, madidisgrasya ang aming dala
kung kayoy magkakamali ng hakbang.
Maliwanag sana sa inyo ang aming mga salaysay.
Note
Palatandaan na galing sa aming hakbang ay ito
MR. MUBARAK II or 2
Sulat man o telephone[73]
The letter received by George on September 6, 1994, second letter for brevity, reads:
Ronie Puntuan
Michael Pagalasan
Mr. G. Lim palayain ninyo ang suspek ninyo. Wala silang kasalanan bago natin tapusin ang usapan
tatlong milyong piso (3,000,000) katumbas ng kalayaan ng mahal ninyong anak. Paalisin ang mga
sundalo.Kailangan ang Black Out News. Huwag kang magkakamali Mr. Lim. Kunting sipyot mo
patay ang anak mo. Isang araw lamang ang tagal namin sa inyo.
(Sgd.)[74]
The handwritten letter received by George on September 9, 1994, third letter for brevity,
reads:
Para sayo Mr. & Mrs. Lim,
Mr. Lim, gusto ko lang ipaabot sayo ang maikli kong kataga. Unang-una, ayaw namin na mga
asong militar na makialam. Pangalawa, ayaw namin sa grupo na idamay ang tao na walang-
alam. Alalahanin mo mabuti lahat ng mga kataga na iniwan ko sayo, Mr. Lim. Ang taong dinampot
ng militar sa purok islam na si Ronie, ang taong yan walang conection ( sic) sa grupo, sa madaling
usapan, Mr. Lim, alalahanin mo ang anak mo sa oras na tatlong araw na taong yan hindi
makalabas. Ang isipin mo ang anak mo hindi rin makalabas hanggat sa mabulok sa lupa
(maliwanag).
(Sign)
Palatandaan
MUBARAK II - 2[75]
As gleaned from the three letters, there was no demand for ransom in exchange for George
and Christophers liberty. While there is a demand for ransom of P3,000,000 in the second letter,
and a demand for the release of Ronie Puntuan within three days in the third letter, the said
demands are in consideration of Christophers release from custody, and not that of George.
Even then, the prosecution failed to adduce evidence that the second letter demanding
ransom in the amount of P3,000,000 for the release of Christopher actually came from the
appellant and his co-conspirators. It bears stressing that in the first letter, the kidnappers made
it clear to the couple that only those communications, whether by letter or by telephone, bearing
the name MR. MUBARAK II or 2 came from them:
Note
Palatandaan na galing sa aming hakbang ay ito
MR. MUBARAK II or 2
Sulat man o telephone[76]
The second letter received by George was signed by an unidentified person. It was not
stated that the letter came from MUBARAK II-2. That the second letter could not have come
from the appellant and his cohorts is buttressed by the fact that the third letter, which came
from MUBARAK II-2, does not even mention any demand for ransom in the amount of P3,000,000
for Christophers release.
The Court can only surmise, but it is possible that the signatory and sender of the second
letter could have been acting independently of the appellant and his co-conspirators in order to
profit from the kidnapping. It bears stressing that the kidnapping of Christopher and George was
already known when the appellant was arrested on September 4, 1994, and the crime had already
been reported to the police authorities. Persons other than the co-conspirators of the appellant
could have written the letter.
AMCVB CRIM 1 [Art. 8-11] (5)| 5
 Since there is no evidence that the signatory and sender of the second letter is a co-
conspirator of the appellant, the latter is not bound by the said letter, conformably to Section 28,
Rule 130 of the Revised Rules of Evidence which reads:
Sec. 28. Admission by third party. The rights of a party cannot be prejudiced by an act, declaration,
or omission of another, except as hereinafter provided.
Even if it is assumed for the nonce that the second letter came from a co-conspirator, the
same is not binding on the appellant, absent evidence aliunde that he knew of and concurred with
the said ransom demand. It bears stressing that when George received the second letter on
September 6, 1994, the appellant had already been arrested and detained. The conspiracy forged
by the appellant and his cohorts on or before September 4, 1994 had already ceased, when on
the said date, the appellant was arrested by the policemen and detained. [77]
Neither is the third letter admissible in evidence against the appellant to prove that he
conspired with others to demand the release of Ronie Puntuan in consideration for Christophers
freedom. The appellant and his cohorts could not have planned to demand ransom for the release
of Ronie Puntuan as early as September 4, 1994, the date of the kidnapping: Ronie had not yet
been arrested on this date. The appellant was arrested first, and Ronies detention was only to
follow. Furthermore, the third letter was sent to George on September 9, 1994. At that point,
the appellant had already been arrested by the policemen, and was already in jail. There is no
evidence that while in jail, the appellant had knowledge of and concurred with the said ransom
demand. It may be reasonably inferred that the appellants co-conspirators could have decided to
demand Ronie Puntuans release as a consideration for Christophers liberty, while the appellant
was already languishing in jail. The said demand for ransom was a new and independent project
of the appellants co-conspirators, growing out of their own malice, without any a priori knowledge
on the part of the appellant or his post facto concurrence therewith. Indeed, the records show
that on September 9, 1994, the very day the co-conspirators sent the third letter to George,
Ronie Puntuan through counsel Atty. Jose Jerry L. Fulgar, also the counsel for the appellant, filed
a motion with the MTC, praying that he be detained at the General Santos City Jail:
WHEREFORE, premises considered, it is most respectfully prayed that an order be please issued
directing that accused Ronie Puntuan be please detained at General Santos City Jail with the
instruction that the said accused be separated from his co-accused as desired by the Police
Officers.[78]
That the appellant plotted with his co-conspirators to demand the release of Ronie Puntuan
as a condition for Christophers liberty is too far-fetched, considering that Ronie and the appellant
had the same lawyer. Ronie Puntuan himself, through his and the appellants counsel, prayed to
the court that he be transferred from Camp Fermin Lira Barracks to the General Santos City Jail.
The appellant is also guilty of slight illegal detention of George under Article 268 of the Revised
Penal Code.
Aside from convicting the appellant of kidnapping Christopher, the trial court also convicted
him of kidnapping George under Article 267 of the Revised Penal Code. But the Office of the
Solicitor General contends that the appellant is guilty of another felony: slight illegal detention
under Article 268 of the Revised Penal Code, because none of the circumstances enumerated in
Article 267 of the Revised Penal Code is present in the kidnapping and detention of George. The
prosecution may have failed to prove that the appellant and his co-conspirators intended to extort
ransom for Georges release; however, as a matter of substantive law, the appellant may be held
guilty of two separate crimes, although he and his co-conspirators kidnapped George and
Christopher on the same occasion and from the same situs. As a matter of procedural law, the
appellant may be convicted of slight illegal detention under the Information for kidnapping for
ransom as the former is necessarily included in the latter crime.
The Court agrees with the Office of the Solicitor General. The appellant is guilty of slight
illegal detention under Article 268 of the Revised Penal Code which reads:
Art. 268. Slight illegal detention. The penalty of reclusion temporal shall be imposed upon any
private individual who shall commit the crimes described in the next preceding article without the
attendance of any of the circumstances enumerated therein.
The same penalty shall be incurred by anyone who shall furnish the place for the perpetration of
the crime.
If the offender shall voluntarily release the person so kidnapped or detained within three days
from the commencement of the detention, without having attained the purpose intended, and
before the institution of criminal proceedings against him, the penalty shall be prision mayor in its
minimum and medium periods and a fine not exceeding seven hundred pesos. (As amended by
Republic Act No. 18).
While the epigraph or title of the article mentions only slight illegal detention, kidnapping
committed in connection with the lower offense of slight illegal detention is also covered by the
article.[79]
The felony has the following essential elements:
1. That the offender is a private individual.
2. That he kidnaps or detains another, or in any other manner deprives him of
his liberty.
3. That the act of kidnapping or detention is illegal.
4. That the crime is committed without the attendance of any of the circumstances
enumerated in Art. 267.[80]
The crime of slight illegal detention is consummated upon the occurrence of all the elements
thereof. A day, in the last paragraph of Article 268 of the Revised Penal Code, should be
understood as twenty-four hours, to be counted from the deprivation of the liberty of the victim
until the cessation thereof. As Cuello Calon put it: El plazo de los tres dias de veinte cuatro horas
y desde el momento de la privacion de libertad si en que esta cesare. [81] The rescue or escape of
the victim within three days from his kidnapping and detention is not an exempting
circumstance. The voluntary release by the offender of the victim within three days from his
detention, without the offender having attained his purpose and before the institution of criminal
proceedings against him for slight illegal detention, is not an exempting circumstance; it merely
serves to reduce the penalty to prision mayor in its maximum and medium periods and a fine not
exceeding P700.
In this case, the appellant is a private individual. George had been kidnapped and detained
illegally by the appellant and his cohorts, but only for less than a day. George regained his freedom
after the appellant had been arrested at the intersection of the national highway and Espina
Road. There is no evidence that the appellant and his cohorts kidnapped George for the purpose
of extorting ransom for his release. There is likewise no evidence that they inflicted any serious
physical injuries on George, or simulated public authority, or threatened to kill him. Furthermore,
there is no evidence that the appellant and his cohorts intended to detain the victim for more than
three days.
Although the appellant and his co-conspirators kidnapped George and Christopher on the
same occasion and from the same situs, the appellant is guilty of two separate crimes: kidnapping
under Article 267 of the Revised Penal Code, and slight illegal detention under Article 268 of the
Revised Penal Code. The appellant and his co-conspirators were animated by two sets of separate
criminal intents and criminal resolutions in kidnapping and illegally detaining the two victims. The
criminal intent in kidnapping Christopher was separate from and independent of the criminal intent
and resolution in kidnapping and detaining George for less than three days. In the mind and
conscience of the appellant, he had committed two separate felonies; hence, should be meted
AMCVB CRIM 1 [Art. 8-11] (5)| 6
two separate penalties for the said crimes: one for kidnapping under Article 267 of the Revised
Penal Code and another for slight illegal detention under Article 268 of the same code. [82] The
felony of slight illegal detention is necessarily included in the crime of kidnapping for ransom; thus,
the appellant may be convicted of the former crime under an Information for kidnapping for
ransom.[83]
PENALTIES FOR THE CRIMES COMMITTED BY THE APPELLANT
The crimes committed by the appellant were aggravated by dwelling, [84] the victims having
been kidnapped in their house; by the use of motor vehicle, [85] the victims having been transported
by the appellant from their house with the use of Georges car; and by a band, the crime having
been committed by the appellant and three co-conspirators.[86] However, the Court cannot
consider these aggravating circumstances in determining the proper penalties for the said crimes,
because the same were not alleged in the Information as mandated by Sections 8 and 9, Rule
110 of the Revised Rules of Criminal Procedure. [87] Although the said rules took effect after the
commission of the crimes by the appellant, the same is favorable to the appellant; hence, should
be applied retroactively.[88]
IN LIGHT OF ALL THE FOREGOING, the Decision dated September 27, 1997 of the
Regional Trial Court of General Santos City, Branch 35, is AFFIRMED WITH
MODIFICATIONS.Appellant Michael Pagalasan alias Mike is found guilty of kidnapping under
Article 267, paragraph 4 of the Revised Penal Code and there being no modifying circumstances
in the commission of the crime is hereby sentenced to suffer the penalty of reclusion
perpetua. Appellant Michael Pagalasan alias Mike is found guilty beyond reasonable doubt of the
crime of slight illegal detention under Article 268 of the Revised Penal Code and there being no
modifying circumstances in the commission of the crime is hereby sentenced to suffer an
indeterminate penalty of from nine years and four months of prision mayor in its medium period
as minimum to sixteen years and five months of reclusion temporal in its medium period as
maximum. The said appellant is ordered to pay to Spouses George and Desiree Lim the total
amount of P150,000 as moral damages; and P50,000 as exemplary damages in the two cases.
Costs de oficio. SO ORDERED.

The appellant is not entitled to the privileged mitigating circumstance under the second
paragraph of Article 268 of the Revised Penal Code[89] because he did not voluntarily release
George within three days from the kidnapping. George was recovered by the policemen at the
intersection of the national highway and Espina Road.

The prescribed penalty for kidnapping under Article 267 of the Revised Penal Code as
amended by Rep. Act No. 7659 is reclusion perpetua to death. There being no aggravating
circumstance or modifying circumstance in the commission of the crime, the proper penalty for
the said crime is reclusion perpetua, conformably to Article 63 of the Revised Penal Code.The
prescribed penalty for slight illegal detention is reclusion temporal in its full period, with a range
of twelve years and one day to twenty years. To determine the minimum of the indeterminate
penalty, the penalty shall be reduced by one degree, prision mayor, which has a range of six years
and one day to twelve years. The minimum of the indeterminate penalty shall be taken from the
full range of the penalty at the discretion of the Court. The maximum of the indeterminate penalty
shall be taken from the medium period of reclusion temporal,conformably to Article 64, paragraph
1 of the Revised Penal Code. Hence, the appellant shall suffer an indeterminate penalty of nine
years and four months of prision mayor in its medium period as minimum, to sixteen years and
five months of reclusion temporal in its medium period as maximum.

CIVIL LIABILITIES OF THE APPELLANT

Although the prosecution adduced testimonial evidence that the appellant and his co-
conspirators ransacked the bedroom of the victims and took cash and valuables, the prosecution
nevertheless failed to adduce any documentary evidence to prove the amount of the said cash
and the value of the jewelry. Hence, Spouses George and Desiree Lim are not entitled to actual
damages.

Under Article 2219, paragraph 5 of the New Civil Code, moral damages may be recovered. In
this case, the prosecution adduced testimonial evidence that for the crimes committed by the
appellant and his co-conspirators, Spouses George and Desiree suffered mental anguish, fright
and serious anxiety caused by the kidnapping of George and their son Christopher.Considering
the factual milieu in this case, the Court believes that the said spouses are entitled to moral
damages in the amount of P100,000 for the kidnapping of Christopher, and the amount of P50,000
for the illegal detention of George. The appellant is also liable to the spouses for exemplary
damages in the total amount of P50,000 for the two crimes conformably with current
jurisprudence.[90]

AMCVB CRIM 1 [Art. 8-11] (5)| 7

2. PP v. MONTANIR
G.R. No. 187534 April 4, 2011
DECISION
PERALTA, J.:
For consideration of this Court is the Decision1 dated April 22, 2008 of the Court Appeals (CA) in
CA- G.R. CR-HC No. 00499, affirming with modification the Decision 2 dated October 28, 2004 of
the Regional Trial Court (RTC) of Valenzuela City, Branch 171, finding Appellants Dima Montanir,
Ronald Norva and Eduardo Chua, guilty beyond reasonable doubt of the crime of Kidnapping
under Article 267 of the Revised Penal Code, as amended.
The records bear the following factual antecedents:
Josie Herrera, Robert Uy, Alicia "a.k.a. Alice" Buenaflor, together with appellants Ronald Norva
and Eduardo Chua, on December 17, 1997, concocted a plan to kidnap Rafael Mendoza, and after
several days of conducting surveillance on their intended victim, on January 5, 1998, they decided
to kidnap Rafael in Ali Mall, Cubao, Quezon City. However, the intended kidnapping failed, because
Rafael did not show up at the said place. On February 5, 1998, a second attempt was made, but
they encountered an accident before they could even execute their original plan.
Around 5:30 a.m. of February 17, 1998, Alicia called up Rosalina Reyes, a partner of Rafael, to
tell her that she wanted to meet her and Rafael at Jollibee, BBB, Valenzuela City to settle the
former's loan of ₱350,000.00. She requested Rosalina to bring the land title which she was given
as collateral for the said loan.
Rosalina and Rafael arrived at Jollibee ahead of Alicia. Eventually, around 9:15 a.m. of the same
date, Alicia showed up outside the store aboard a car. She was with appellant Ronald Norva. Alicia
motioned Rosalina and Rafael to approach the car, which the two did as requested. While inside
the vehicle, Alicia introduced appellant Ronald as her cousin. Later on, Alicia informed Rosalina
and Rafael that she would pay them at her place.
When the car passed by the street where Alicia's house was located, Rosalina asked the former
where they were going. Alicia answered that they had to drop by the house of her financier who
agreed to redeem her title and substitute as her creditor. Trusting Alicia, Rosalina and Rafael did
not protest. They finally reached a house in Ciudad Grande, Valenzuela City.
Thereafter, appellant Ronald alighted from the vehicle and talked to a man inside a store, later
identified as Jonard Mangelin. The gate of the house was then opened by appellant Dima. The
car proceeded to the garage and Rosalina and Rafael were asked to go inside the house. Rosalina
followed Alicia, while Rafael trailed Rosalina as they entered through a kitchen door. They passed
by a man (Jessie Doe) who was washing his hands in the sink. While Rosalina was walking behind
Alicia, she suddenly heard a dull moan coupled with the sound of stomping feet. She looked back
at the direction where the sounds came from and saw Rafael being forcibly dragged inside a room.
She decided to look for Rafael and on her way, she saw "Jessie Doe" place his hand on Rafael's
mouth and poke a gun at him. Rafael struggled to get free. Rosalina pleaded with "Jessie Doe" to
have pity on Rafael because of his existing heart ailment. Appellant Ronald rushed towards her,
poked a gun at her mouth, tied her to a bed and warned her not to make any noise. He told her
that all they want is her money, upon which, Rosalina said that if they really wanted money, they
should untie Rafael, who then appeared to be on the verge of having a heart attack. Rosalina was
untied and she immediately rushed to Rafael and began pumping his chest. She asked Jonard,
who had just entered the room, to help her pump Rafael's chest while she applied CPR on the
latter. Jonard did as told. While CPR was being administered, appellant Dima started removing all
of Rafael's personal belongings, which include his ring, wallet, watch and other items inside his
pocket, and passed them on to appellant Ronald.
Afterwards, appellant Ronald instructed Jonard to take Rosalina to another room. While inside the
room where she was brought, Rosalina begged Jonard to help her escape. Jonard was moved by
Rosalina's plea and agreed to help her. During their conversation, Jonard told Rosalina that two
women had tipped them off as the kidnap victims. When asked who they were, Jonard refused to
reveal their identities.
Rosalina was transferred to the master's bedroom around 12:00 noon because certain female
visitors arrived. After the visitors left, Rosalina was returned to the room where she was previously
taken. Rosalina asked Jonard about Rafael's condition, to which he replied that Rafael would be
brought to the hospital. A little later, at around 1 p.m., Jonard went to check on Rafael and
confirmed that he was still alive.
Around 2:00 p.m., Rosalina heard the sound of someone being pummelled. Feeling nervous, she
asked Jonard the whereabouts of Rafael and was told that he was brought to the hospital. But
unknown to Rosalina, Rafael had just died and his body was placed inside the trunk of a car.
Around 6:30 p.m., Rosalina was informed that she will be brought to another safe house. She was
taken to a car and placed at the back seat, together with Jonard and three other men, later
identified as Larry, Jack and Boy. The driver of the car was appellant Ronald. Appellant Ronald
instructed Jonard to cover Rosalina's head with a jacket which Jonard did. As they were about to
leave, the man seated beside Ronald started to talk. Rosalina recognized the voice of Robert. She
then lifted the jacket covering her head and was able to confirm that the one talking was Robert.
Rosalina cried, "Robert, Robert, why did you do this, we did not do anything to you" and Robert
responded, "Pasensiyahan na lang tayo."
By 10:00 p.m., they arrived at a certain house in Pandi, Bulacan where there was no electricity.
Thus, they lit candles for illumination. Rosalina found the house familiar and concluded that it was
Alicia's. Rosalina was brought to a room on the second floor and while inside the room, she was
told by one of the men guarding her that one of the leaders wanted to talk to her. Per the leader's
instruction, the guard put out the candle light. The man then seated himself beside Rosalina and
warned her against escaping as they were a large and armed group. Rosalina recognized the voice
as that of Robert's. Before he left the room, Robert gave instructions to Jonard and the other men
inside. Meanwhile, the group started digging a pit at the back of the same house near the
swimming pool.
Around 3:00 a.m. of the following day (February 18), the group buried Rafael's body in the pit.
Thereafter, Robert instructed appellant Ronald to tell Jonard that the latter should kill Rosalina,
which Jonard refused to do. Nonetheless, Robert instructed Jonard and the others to guard
Rosalina well, as he himself would deal with her upon his return.
Rosalina heard the car leave around 5:00 a.m. of the same day. Sensing that Jonard was
sympathetic to her, Rosalina begged him again to help her escape for the sake of her children.
When electricity was restored around 8 p.m., one of the men guarding Rosalina turned off the
light inside the room. The room was only illuminated by a light coming from the hallway. Rosalina
saw a person wearing a wig and sunglasses enter the room. Rosalina recognized him as Robert.
Trying to mimic a woman by modulating his voice, Robert told her that Rafael was in the hospital
and that he could still sign a check. He asked Rosalina the whereabouts of the other land titles
and the identities of the other financiers whom she knew. Rosalina replied in the negative. Robert
angrily poked a gun at her and shouted, "That's impossible," and then left the room. He gave
instructions to his members and left.
At 9:00 p.m., Jonard went to Rosalina and told her about Robert's order to kill her, which caused
the latter to panic and cry. She then implored the help of Jonard for her escape. Afterwards,
Jonard went to his companions Larry, Jack and Boy and told them that he would help Rosalina
escape. His companions immediately cocked their guns and an argument ensued. Rosalina talked
to them and begged them all to spare her life. One of Jonard's companions told Rosalina that if
AMCVB CRIM 1 [Art. 8-11] (5)| 8
they would allow her to escape, they too would get into trouble. Taking advantage of the situation,
Rosalina suggested that all of them should escape. They all agreed to escape in the early morning.
Around 5:00 a.m., Rosalina, Jonard, Larry, Jack and Boy left the safe house. They walked through
a rice field for about 30 minutes and then boarded a jeepney bound for Balagtas, Bulacan. From
Balagtas, they took a bus going to Cubao and arrived at 7:30 a.m. Rosalina pawned her pieces of
jewelry for ₱1,500.00 and gave the ₱1,000.00 to Larry, Jack and Boy. The three told Jonard to
stay with Rosalina so that she would have a witness and, in case Rosalina would further need
their help, left their address with Jonard.
When the three left, Rosalina immediately called Rafael's brother Tito, and related what happened
to her and his brother. When Tito asked Jonard which hospital Rafael was brought to, Jonard
revealed to Rosalina that Rafael died at the safe house in Ciudad Grande, Valenzuela City. Rosalina
called her lawyer, Atty. Teresita Agbi and asked her to meet them at Farmer's, Cubao. When Atty.
Agbi arrived, she accompanied them to the Department of Interior and Local Government (DILG)
where an investigation was conducted.
The following day, at 4:00 a.m., two groups from the DILG were formed to arrest Alicia, Josie,
the appellants, and Robert. Alicia and Josie were not at their homes, while appellants Ronald and
Dima were arrested at the residence of Robert. While at the DILG office, Rosalina positively
identified appellants Ronald and Dima as her kidnappers. Meanwhile, Jonard accompanied the
police authorities to the safe house in Pandi, Bulacan and showed them where the body of Rafael
was buried. The remains of Rafael was later on exhumed.
Thereafter, two Informations were filed with the RTC of Valenzuela City (Branch 171), with the
following allegations:
Criminal Case No. 123-V-98
That on or about the 17th day of February 1998 in Valenzuela, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually
helping one another, being then private person, did then and there wilfully, unlawfully and
feloniously kidnap one ROSALINA REYES against her will and detained her, thereby depriving her
of her liberty for a period of two days.
CONTRARY TO LAW.
Criminal Case No. 124-V-98
That on or about the 17th day of February 1998 in Valenzuela, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually
helping one another, being then a private person, did then and there wilfully, unlawfully and
feloniously kidnap one RAFAEL MENDOZA against his will and detained him, thereby depriving
him of his liberty and on the occasion thereof, the death of the victim resulted.
CONTRARY TO LAW.
Upon arraignment, with the assistance of counsel, Jonard and appellants Ronald, Dima and
Eduardo, pleaded "not guilty" to the crime charged. Robert Uy, Alice Buenaflor and Jessie Doe
remained at-large during the trial of the case. Jonard was later on discharged as a state witness.
Afterwards, the trial on the merits ensued.
On October 28, 2004, the trial court rendered judgment against the appellants for the crime of
kidnapping, the dispositive portion of which, reads:
WHEREFORE, in view of the foregoing, accused DIMA MONTANIR, RONALD NORVA, and
EDUARDO CHUA are hereby found GUILTY beyond reasonable doubt of the crime of kidnapping
and in accordance with Article 267 of the Revised Penal Code, as amended, this Court hereby
imposes the penalty of DEATH on accused NORVA and MONTANIR. As regards accused CHUA,
this Court hereby imposes the penalty of reclusion perpetua.
Further, accused Montanir, Norva and Chua are hereby held jointly and severally liable to pay the
heirs of Mendoza the amount of Php 71,000.00 in actual damages and Php 50,000.00 as moral
damages.
As for accused JOSIE HERRERA, the Court hereby ACQUITS her on reasonable doubt of the charge
of kidnapping. Consequently, The Jail Warden of Valenzuela City Jail is hereby ordered to cause
the immediate release of the said accused from detention unless she is otherwise being detained
for some other legal and lawful cause.
With regard to accused ALICE BUENAFLOR, ROBERT UY and one JESSIE DOE, let the cases against
them be ARCHIVED pending their apprehension. Meantime, let an alias warrant issue for their
apprehension.
Considering the penalty imposed on accused MONTANIR, NORVA and CHUA, let the entire records
of these cases be elevated to the Court of Appeals for appropriate review of the judgment herein
rendered.
SO ORDERED.
On automatic review, the CA affirmed the conviction with modification on the penalty imposed,
thus:
WHEREFORE, in the light of the foregoing, the impugned Decision is AFFIRMED with
MODIFICATION that the penalty of death imposed on accused Montanir and Norva is hereby
modified to reclusion perpetua to conform to and in accordance with Republic Act No. 9346.
Appellants Montanir, Norva and Chua are ordered to pay jointly and severally the amount of
₱50,000.00 as civil indemnity to the heirs of the victims.
Costs against appellants.
SO ORDERED.
Hence, the present appeal.
In their respective Briefs, appellants raised the following assignment of errors:
DIMA MONTANIR:
I.
THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE INCONSISTENT
AND INCREDIBLE TESTIMONIES OF THE PROSECUTION WITNESSES.
II.
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT DIMA
MONTANIR GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED DESPITE
THE PATENT WEAKNESS OF THE PROSECUTION'S EVIDENCE.
EDUARDO CHUA:
I.
THE DECISION IS NOT IN ACCORD WITH LAW AND THE EVIDENCE.
II.
THE TRIAL COURT GRAVELY ERRED IN FINDING APPELLANT CHUA A CONSPIRATOR
TO THE COMMISSION OF KIDNAPPING.
RONALD NORVA:
I.
THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE INCONSISTENT
AND INCREDIBLE TESTIMONIES OF THE PROSECUTION WITNESSES.
II.
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT RONALD
NORVA GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED DESPITE THE
PATENT WEAKNESS OF THE PROSECUTION'S EVIDENCE.
First of all, it must be emphasized that the crime committed by the appellants, as ruled by the
trial court and affirmed by the CA, is the special complex crime of Kidnapping with Homicide. After
AMCVB CRIM 1 [Art. 8-11] (5)| 9
the amendment of the Revised Penal Code on December 31, 1993 by Republic Act No. 7659,
Article 267 of the Revised Penal Code, now provides:
Kidnapping and serious illegal detention. - Any private individual who shall kidnap or detain
another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion
perpetua to death:
1. If the kidnapping or detention shall have lasted more than three days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon the person kidnapped
or detained; or if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, except when the accused is
any of the parents, female or a public officer;
The penalty shall be death where the kidnapping or detention was committed for the purpose
of extorting ransom from the victim or any other person, even if none of the circumstances above-
mentioned were present in the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is raped, or is
subjected to torture or dehumanizing acts, the maximum penalty shall be imposed.
As expounded in People v. Mercado:3
In People v. Ramos,4 the accused was found guilty of two separate heinous crimes of kidnapping
for ransom and murder committed on July 13, 1994 and sentenced to death. On appeal, this Court
modified the ruling and found the accused guilty of the "special complex crime" of kidnapping for
ransom with murder under the last paragraph of Article 267, as amended by Republic Act No.
7659. This Court said:
x x x This amendment introduced in our criminal statutes the concept of 'special complex crime'
of kidnapping with murder or homicide. It effectively eliminated the distinction drawn by the courts
between those cases where the killing of the kidnapped victim was purposely sought by the
accused, and those where the killing of the victim was not deliberately resorted to but was merely
an afterthought. Consequently, the rule now is: Where the person kidnapped is killed in the
course of the detention, regardless of whether the killing was purposely sought or
was merely an afterthought, the kidnapping and murder or homicide can no longer be
complexed under Art. 48, nor be treated as separate crimes, but shall be punished as
a special complex crime under the last paragraph of Art. 267, as amended by RA No.
7659.
This Court further discussed the nature of the special complex crime of Kidnapping with Homicide
in People v. Larrañaga, 5 thus:
A discussion on the nature of special complex crime is imperative. Where the law provides a
single penalty for two or more component offenses, the resulting crime is called a
special complex crime. Some of the special complex crimes under the Revised Penal Code are
(1) robbery with homicide, 6 (2) robbery with rape,7 (3) kidnapping with serious physical
injuries, 8 (4) kidnapping with murder or homicide, 9 and (5) rape with homicide. 10 In a special
complex crime, the prosecution must necessarily prove each of the component offenses with the
same precision that would be necessary if they were made the subject of separate complaints. As
earlier mentioned, R.A. No. 7659 amended Article 267 of the Revised Penal Code by adding thereto
this provision: "When the victim is killed or dies as a consequence of the detention, or is raped,
or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed; and that
this provision gives rise to a special complex crime. In the cases at bar, particularly Criminal Case
No. CBU-45303, the Information specifically alleges that the victim Marijoy was raped "on the
occasion and in connection" with her detention and was killed "subsequent thereto and on the
occasion thereof." Considering that the prosecution was able to prove each of the component
offenses, appellants should be convicted of the special complex crime of kidnapping and serious
illegal detention with homicide and rape. It appearing from the overwhelming evidence of the
prosecution that there is a "direct relation, and intimate connection" 11 between the kidnapping,
killing and raping of Marijoy, rape cannot be considered merely as an aggravating circumstance
but as a component offense forming part of the herein special complex crime. It bears reiterating
that in People vs. Ramos,12 and People vs. Mercado,13 interpreting Article 267, we ruled that
"where the person killed in the course of the detention, regardless of whether the killing was
purposely sought or was merely an afterthought, the kidnapping and murder or homicide can no
longer be complexed under Article 48, nor be treated as separate crimes, but shall be punished
as a special complex crime under the last paragraph of Article 267." The same principle applies
here. The kidnapping and serious illegal detention can no longer be complexed under Article 48,
nor be treated as separate crime but shall be punished as a special complex crime. At any rate,
the technical designation of the crime is of no consequence in the imposition of the
penalty considering that kidnapping and serious illegal detention if complexed with
either homicide or rape, still, the maximum penalty of death shall be imposed.
In this particular case, the Information specifically alleges that the appellants wilfully, unlawfully
and feloniously kidnapped Rafael Mendoza against his will and detained him, thereby depriving
him of his liberty and on the occasion thereof, the death of the victim resulted. The trial
court, in its decision, particularly in the dispositive portion, merely stated that the appellants were
found guilty beyond reasonable doubt of the crime of kidnapping, however, its mention of the
phrase, in accordance with Article 267 of the Revised Penal Code, as amended, this Court hereby
imposes the penalty of DEATH on accused Norva and Montanir , clearly refers to the crime
committed as that of the special complex crime of Kidnapping with Homicide. The appellants,
therefore, were correctly punished under the last paragraph of Article 267 as the evidence
presented during the trial, in its entirety, undoubtedly proves that the death of Rafael Mendoza,
although of natural causes, occurred on the occasion of the kidnapping.
Delving on the arguments presented by the appellants in this Court, their corresponding briefs
pose a single common argument – the prosecution did not present sufficient evidence to prove
beyond reasonable doubt that they committed the crime charged against them. In particular, they
questioned the inconsistent testimonies of the witnesses for the prosecution. According to them,
the said inconsistent statements from the witnesses, tarnish their credibility.
This Court finds otherwise.
The question of credibility of witnesses is primarily for the trial court to determine. 14 For this
reason, its observations and conclusions are accorded great respect on appeal. 15 This rule is
variously stated thus: The trial court's assessment of the credibility of a witness is entitled to great
weight. It is conclusive and binding unless shown to be tainted with arbitrariness or unless,
through oversight, some fact or circumstance of weight and influence has not been
considered.16 Absent any showing that the trial judge overlooked, misunderstood, or misapplied
some facts or circumstances of weight which would affect the result of the case, or that the judge
acted arbitrarily, his assessment of the credibility of witnesses deserves high respect by appellate
courts. 17
Appellants claim that Jonard, a witness for the prosecution, stated in his Sinumpaang
Salaysay that he was the one who whispered to appellant Ronald to transfer Rosalina to another
room so that the latter would have no idea that Rafael was in a critical condition, but during trial,
Jonard testified that it was Ronald who instructed him to transfer Rosalina to a different room.
Appellants also point out that in the same sworn statement, Jonard averred that he resided in
Taguig since October, 1987, which is contrary to what he testified in court that he resided in that
same place since 1997. In addition, appellants further argue that in her testimony, Rosalina
declared that she was with four men seated at the back of the car when she was brought to Pandi,
Bulacan, however, Jonard, in his own testimony, stated that there were four of them including
Rosalina seated at the back of the car.
AMCVB CRIM 1 [Art. 8-11] (5)| 10
A close reading of the above inconsistencies asserted by the appellants show that the same refer
only to minor details and collateral matters and do not affect the veracity and weight of the
testimonies of the witnesses for the prosecution. What really prevails is the consistency of the
testimonies of the witnesses in relating the principal occurrence and positive identification of the
appellants. Slight contradictions in fact even serve to strengthen the credibility of the witnesses
and prove that their testimonies are not rehearsed. 18 They are thus safeguards against memorized
perjury.19
Anent the inconsistencies of the contents of the affidavits and that of the testimonies in court,
this Court has already ruled that testimonies in court are given more weight than affidavits, thus:
x x x x Affidavits are not entirely reliable evidence in court due to their incompleteness and the
inaccuracies that may have attended their formulation. 20 In general, such affidavits are not
prepared by the affiants themselves but by another person (i.e., investigator) who may have used
his own language in writing the statement or misunderstood the affiant or omitted material facts
in the hurry and impatience that usually attend the preparation of such affidavits. As this Court
has often said:
An affidavit, "being taken ex-parte, is almost always incomplete and often inaccurate,
sometimes from partial suggestion, and sometimes from want of suggestion and
inquiries, without the aid of which the witness may be unable to recall the connected
collateral circumstances necessary for the correction of the first suggestion of his
memory and for his accurate recollection of all that belongs to the subject." 21
We have too much experience of the great infirmity of affidavit evidence. When the witness is
illiterate and ignorant, the language presented to the court is not his; it is; and must be, the
language of the person who prepares the affidavit; and it may be, and too often is, the expression
of that person's erroneous inference as to the meaning of the language used by the witness
himself; and however carefully the affidavit may be read over to the witness, he may not
understand what is said in a language so different from that which he is accustomed to use.
Having expressed his meaning in his own language, and finding it translated by a person on whom
he relies, into language not his own, and which he does not perfectly understand, he is too apt to
acquiesce; and testimony not intended by him is brought before the court as his.' (2 Moore on
Facts, sec. 952, p. 1105; People v. Timbang, 74 Phil. 295, 299). 22
For this reason, affidavits have generally been considered inferior to testimony given in
open court. 23
Incidentally, the CA was correct in stating that Jonard was able to explain and reconcile the minor
discrepancies in his testimony by saying that he whispered to appellant Ronald that Rafael was in
a bad condition and afterwards, it was appellant Ronald who instructed him to transfer Rosalina
to another room, thus:
Atty. Basco:
Referring to the same statement, Mr. Witness, on page 20 of the TSN dated February 24, 1999
referring to the same statement, Mr. Witness, in your statement here when asked:
Q. Then what happened, Mr. Witness, when you answered in the manner? And your answer was:
A Ronald Norva told me, "Pare, the old man is in bad condition, you better transfer Mrs. Reyes to
another room so that she could not see the condition of the old man."
Q So which is which Mr. Witness? It was you who gave order or instruction to Mr. Ronald Norva
or it was he who gave instruction?
Atty. Gabi: Can we have the translation of that statement?
Atty. Basco: That is a very inconsistent statement of the witness?
A: This is like this, ma'am.
Atty. Basco: Just answer my question. Which is which, Mr. Witness? Which is the truth, your
salaysay or your testimony on February 24 in open court?
A: The two are true, ma'am, because when I whispered to him that the old man was
in a bad condition he gave me instruction to transfer Mrs. Reyes to another room.24
The same is true with his inconsistent statements regarding his time of residence in Taguig, thus:
Q Mr. Witness, you said in your Sinumpaang Salaysay of February 19, 1998 that you were residing
in Taguig at Maharlika Village sometime in October 1987? Do you confirm that?
Atty. Mendoza:
May we ask for the translations, Your Honor.
A No, sir, the actual year is 1997, not 1987.
Q So you are correcting your answer in your salaysay of February 19, 1998 under paragraph No.
13 wherein you answered: "Ako po ay nakikitira sa kaibigan kong si Ting sa Muslim Area, Maharlika
Village, Taguig, Metro Manila nuong buwan ng Oktubre, 1987." You are changing the 1987 to
1997?
A The truth is 1997, sir.25
Apellant Dima, in his Brief, insists that the prosecution was not able to establish his participation
in the commission of the crime because he was merely the house helper of the safe house in
Ciudad Grande, Valenzuela, when the kidnappers and the victims arrived. In the same vein,
appellant Ronald asserts that there was no convincing evidence presented by the prosecution that
will point to his clear participation in the crime because he was just the driver of the car that
brought the victims to the place where the latter were kept. Appellant Eduardo also insists that
he was not a participant in the offense charged in the Information. Basically, the appellants deny
any participation in the kidnapping.
In convicting the appellants, the trial court, based on the evidence presented, naturally found the
existence of conspiracy among the perpetrators. Conspiracy exists when two or more persons
come to an agreement concerning the commission of a felony and decide to commit it. 26 Verily,
when conspiracy is established, the responsibility of the conspirators is collective, not individual,
that render all of them equally liable regardless of the extent of their respective participations, the
act of one being deemed to be the act of the other or the others, in the commission of the
felony. 27 Each conspirator is responsible for everything done by his confederates which follows
incidentally in the execution of a common design as one of its probable and natural consequences
even though it was not intended as part of the original design. Responsibility of a conspirator is
not confined to the accomplishment of a particular purpose of conspiracy but extends to collateral
acts and offenses incident to and growing out of the purpose intended.28 Conspirators are held to
have intended the consequences of their acts and by purposely engaging in conspiracy which
necessarily and directly produces a prohibited result, they are, in contemplation of law, chargeable
with intending that result.29 Conspirators are necessarily liable for the acts of another conspirator
unless such act differs radically and substantively from that which they intended to commit. 30 As
Judge Learned Hand put it in United States v. Andolscheck,31 "when a conspirator embarks upon
a criminal venture of indefinite outline, he takes his chances as to its content and membership,
so be it that they fall within the common purposes as he understands them."
A scrutiny of the records show that the trial court did not err in finding conspiracy among the
appellants, as they each played a role in the commission of the crime. The trial court correctly
found the denial of appellant Dima that he had knowledge of the kidnapping, unbelievable. The
appellant’s bare denial is a weak defense that becomes even weaker in the face of the prosecution
witnesses’ positive identification of him. Jurisprudence gives greater weight to the positive
narration of prosecution witnesses than to the negative testimonies of the defense. 32 The trial
court ruled:
As for accused Montanir, again, this Court finds the testimonies of prosecution witnesses more
credible than his testimony applying the same principle that evidence to be believed must not only
proceed from a mouth of a credible witness but must be credible in itself, such that the common
experience and observation of mankind can show it as probable under the circumstances.
AMCVB CRIM 1 [Art. 8-11] (5)| 11
Certainly, this Court is not convinced by accused Montanir's claim that he was at Ciudad Grande
because he was a house boy of accused Chua after he admitted the circumstances under which
he has to live there a few days before the victims were brought there.
To begin with, this Court does not buy accused Montanir's explanation that he transferred to Chua
because he was looking for a permanent job is hardly credible because he himself admitted that
when he was brought by accused Uy to the residence of accused Chua at Ciudad Grande, it was
the understanding that it would be accused Uy who would be paying his salary. Why would
accused Uy pay the salary of accused Montanir if he was to work as a house boy of accused Chua?
Evidently, the only plausible reason why accused Uy would pay the salary of accused Montanir is
because he was actually working for the former and only posted in the house of accused Chua at
Ciudad Grande to play his part in the execution of the planned kidnapping. This conclusion is
bolstered by accused Montanir's admission that he never even spoke with accused Chua during
all those times that he stayed at accused Chua's residence as in fact, he took orders from accused
Uy.
Moreover, this Court finds it rather perplexing that accused Montanir would suddenly go back to
the house of accused Uy on 19 February 1998 on the shallow reason that he had no companion
at Ciudad Grande when precisely he said he was hired as a caretaker thereat while the regular
boy was on vacation.33
The above conclusion was bolstered by the positive identification of the same appellant and his
exact participation in the execution of the crime, by the witnesses for the prosecution, thus:
WITNESS JONARD
Truly, all of the foregoing facts when taken together with the testimonies of Mangelin and
Montanir unequivocally indicate accused Chua's complicity with the criminal design of accused Uy
and dissolves the said accused's plea of innocence. 40
Each conspirator is responsible for everything done by his confederates which follows incidentally
in the execution of a common design as one of its probable and natural consequences even though
it was not intended as part of the original design. 41 Responsibility of a conspirator is not confined
to the accomplishment of a particular purpose of conspiracy but extends to collateral acts and
offenses incident to and growing out of the purpose intended. 42Conspirators are held to have
intended the consequences of their acts and by purposely engaging in conspiracy which
necessarily and directly produces a prohibited result that they are in contemplation of law, charged
with intending the result. 43 Conspirators are necessarily liable for the acts of another conspirator
even though such act differs radically and substantively from that which they intended to
commit.44
Considering the above disquisitions, there is no doubt that conspiracy existed in the perpetration
of the crime. Thus, all of the appellants, having been proven that they each took part in the
accomplishment of the original design, are all equally liable for the crime of Kidnapping with
Homicide.
Lastly, this Court finds no error in the CA's modification of the penalty imposed by the trial court.
The penalty imposed by the trial court, which is Death is now reduced to reclusion perpetua in
accordance with Republic Act No. 9346.45
WHEREFORE, the Decision dated April 22, 2008 of the Court Appeals, affirming with modification
the Decision dated October 28, 2004 of the Regional Trial Court (RTC) of Valenzuela City, Branch
171 is hereby AFFIRMED, with further MODIFICATION that all the appellants herein are
equally found GUILTY of the special complex crime of Kidnapping with Homicide.
SO ORDERED.

It must always be remembered that between positive and categorical testimony which has a ring
of truth to it on the one hand, and a bare denial on the other, the former generally prevails. 39
It is also not disputed that the safe house in Ciudad Grande, Valenzuela, where the victims were
brought was owned by appellant Eduardo. The trial court was also correct in dismissing the claim
of appellant Eduardo that he merely lent his car to Robert and allowed the latter to occupy his
house because Robert had been so accommodating to him and had facilitated his loan, thus:
Regarding the criminal liability of accused Chua, while it is conceded that the said accused was
nowhere in the actual scene of the incident, this Court nonetheless finds the said accused guilty
of kidnapping as one of the conspirators to the commission of the felony who participated by
furnishing the vehicle used in abducting the victims and the house where they were held captive
and where Mendoza died.

Again, this Court applied the time-honored principle that evidence to be believed must come from
the mouth of a credible witness which accused Chua is not. Indeed, this Court finds no iota of
truth on the protestation of accused Chua that he knew nothing of accused Uy's plans. It is simply
too good to be true that he allowed Mangelin and accused Montanir to stay at his house to guard
it and attend to his store while his caretakers were having a vacation. Neither could this Court
find cogent reason why accused Chua would allow accused Uy to use his vehicle and house totally
oblivious of any plan/design or purpose of accused Uy. Nor is it credible that accused Chua would
allow accused Uy to use his vehicle just to follow up his loan application and then after the same
had been released he (accused Chua) did not come home either to Santa Maria, Bulacan or to
Ciudad Grande, instead, he went straight to the residence of accused Uy, waited for him until the
wee hours of the morning of the following day, 18 February 1998, only to tell accused Uy he was
going home.1avvphi1
It is also bewildering to this Court why immediately after receiving the money he borrowed, he
would spend it in going to Davao with his daughter on 18 February 1988, without any previous
plan whatsoever and suspiciously, upon invitation of accused Uy who had known by then that one
of the victims, Mendoza, had died in the course of the kidnapping.

AMCVB CRIM 1 [Art. 8-11] (5)| 12

3. PP v. BISDA
G.R. No. 140895 July 17, 2003
PER CURIAM:
Before this Court on automatic review is the Decision1 of the Regional Trial Court (RTC) of Marikina
City; Branch 272, convicting appellants Alma Bisda and Generosa "Jenny Rose" Basilan, of
kidnapping for ransom; sentencing each of them to the extreme penalty of death by lethal
injection, and ordering them to indemnify the parents of the victim Angela Michelle Soriano the
amount of P100,000 as moral damages, and to pay the costs of the suit.
The Case
In an Amended Information docketed as Criminal Case No. 98-2647-MK, the appellants were
charged with the felony of kidnapping for ransom committed as follows:
That on or about the 3rd of September 1998, in the City of Marikina, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and helping one another, did there and then willfully, unlawfully,
feloniously and knowingly kidnap, detain and deprive ANGELA MICHELLE SORIANO y
SAN JUAN of her liberty for six (6) days for the purpose of extorting ransom from her/or
her family.
Contrary to law.2
When arraigned, the appellants, assisted by counsel, entered separate pleas of not guilty. 3
The Evidence for the Prosecution4
William Soriano, a training consultant by profession, and his wife Marymae Soriano, had two
children: Kathleen Denise and Angela Michelle. They rented a house at No. 5 Col. Divino St.,
Concepcion, Marikina. Their landlady who lived nearby had a telephone with number 942-49-
18.5 During the school year 1997-1998, then five-year-old Angela was in Prep at the Mother of
Divine Providence School in Marikina Heights, Marikina City. The couple employed Lea and Wendy
Salingatog as the yayas of their children. Angela met appellant Jenny Rose Basilan when the latter
visited her niece Wendy in the Soriano residence. Jenny Rose was, thus, no stranger to Angela.
About 11:00 a.m. on September 3, 1998, Angela's classes had just ended and she was on her
way to her school bus which was parked outside the school campus near the exit gate. She was
in her school uniform and wore black shoes. Unknown to Angela, appellants Alma and Jenny Rose
were outside of the school gate waiting for her. When they saw Angela, Alma and Jenny Rose
proceeded to the gate and showed a visitor's gate pass to the security guard. They approached
the young girl, and told her that her parents were waiting for her at the Jollibee Restaurant.
Angela initially refused to go with the two women, but because Alma held on to her hand so tightly
and poked a knife at her, Angela had no choice but to go with them. They rode a tricycle and
went to the Jollibee Restaurant where Jenny Rose ordered spaghetti for Angela. When Angela did
not see her parents, she wondered why she went with Jenny Rose and Alma in the first place.
With Angela in tow, Alma and Jenny Rose boarded a white taxi and went to a "dirty house" where
they changed Angela's clothes. The girl was made to wear blouse and shorts, yellow t-shirt and a
pair of panties.6 Alma and Jenny Rose took her earrings. They fed her with the spaghetti they
earlier bought at the restaurant. Alma then left, leaving Angela and Jenny Rose in the house.
Jenny Rose sent Angela to sleep, and after a while, Alma returned. When Angela woke up, Alma
and Jenny Rose served her merienda and allowed her to watch television. Henceforth, Angela was
kept in the house. At one time, Alma and Jenny Rose tied up Angela's hands and feet, and placed
scotch tape on her mouth. Angela was sometimes left alone in the house but the door was kept
locked. To pass the time, Angela watched television and made drawings. Jenny Rose and Alma
did not fail to feed and bathe Angela. Angela did not call her parents through the telephone
number of their landlady.
In the meantime, when William arrived home shortly before noon on that day, Lea and Wendy
told him that Angela had not yet arrived home from school. He rushed to the school to fetch
Angela, but was informed by the school security guard that his daughter had already been picked
up by two women, one of whom was registered in the visitor's slip as Aileen Corpuz. Because he
did not know anyone by that name, William immediately proceeded to the registrar's office to
verify the information, only to find out that "Aileen Corpuz" had earlier inquired at the said office
about the possibility of transferring Angela to another school. The school staff panicked when
William demanded to know how unknown persons were able to get his daughter. He then started
calling his friends and relatives to help him locate Angela. He also sought the help of Rizza
Hontiveros, a TV personality who promised to relay his plea to the Presidential Anti-Organized
Crime Task Force (PAOCTF). The school staff also reported the incident to the Marikina Police
Force which dispatched a team of investigators to the Soriano residence. 7
When apprised of the incident, the PAOCTF organized a team headed by then Chief Inspector
Ricardo Dandan with SPO4 Tito Tuanggang, SPO1 Charles Larroza and civilian agent George
Torrente, as members, to conduct surveillance operations and to recover the victim and arrest the
culprits. The team proceeded to the Soriano residence and to Angela's school to conduct an initial
investigation.
At about 6:00 a.m. on September 4, 1998, William's landlady went to his apartment to tell him
that a lady had called up earlier and left a message for him: "Pakisabi na lang kay Mr. Soriano na
kakausapin ko siya bukas ng umaga." When the landlady asked who the caller was, the voice
replied, " Hindi na importante iyon."8 William thereafter convinced his landlady to have her
telephone set transferred to his residence to facilitate communication with his daughter's
abductors.9
Shortly before midnight that same day, George arrived at the Soriano residence and asked William
if the kidnapper had already made contact. William responded that a woman had earlier called,
through his landlady. George then instructed William to prolong the conversation should the
kidnapper call again, to enable the agents to establish the possible location of the caller. 10
On September 5, 1998 at around 9:25 p.m., William received a call from an unidentified woman
who told him, " Kung gusto mo pang makita yong anak mo, maghanda ka ng five million pesos."
He replied, "Saan naman ako kukuha ng five million? Alam mo naman na nakatira lang ako
sa apartment." The caller said, "Hindi ko masasagot yan. Tatanungin ko na lang sa aking mga
boss." William informed George of his conversation with the caller. George relayed the information
by means of a hand-held radio to the other PAOCTF operatives standing by. 11
On September 7, 1998, at about 11:25 a.m., Marymae received a telephone call from a woman
demanding for ransom money. The caller called two more times, at 7:00 p.m. and at 9:26 p.m.
Marymae pleaded with the caller to reduce the ransom money to P25,000, or if that was not
possible, to an amount not exceeding P50,000. The caller said, " Hindi ko masasagot iyan. Dadalhin
na lang namin ang bata sa boss namin." Marymae relayed the conversation to William, their other
daughter Kathleen and to George.12
At about noon that day, PAOCTF Chief of Operations Superintendent Michael Ray Aquino received
a call from an anonymous source informing him that a woman who had talked about a ransom
and had acted in a suspicious manner was spotted at the MSC Freight Service office located at
No. 1303 Paz Street, Paco, Manila. Acting on the information, Ricardo, Charles, Tito and other
PAOCTF operatives swooped down on the place and saw a woman, who turned out to be Alma
Bisda, emerging from a small house at No. 1258 Paz Street, some fifty meters or so away from
the said office. She had just bought food from an adjacent store at No. 1246 Paz Street, Paco,
Manila. Surveillance operations were thereafter conducted.
At about 3:40 p.m. on September 8, 1998, George and Charles were at the Soriano residence.
Ricardo and Tito were in the periphery of Alma's house, monitoring her whereabouts and
AMCVB CRIM 1 [Art. 8-11] (5)| 13
movements. Alma again left her house and after locking the door, went to the small store nearby.
She lifted the telephone and called someone. The telephone in the Soriano residence rang. When
William lifted the receiver, he heard a voice similar to that of the woman who had called him the
first time. The caller was asking where the money was. William told her that the P25,000 was
ready, to which she replied, " Hindi ko masasagot iyan, dadalhin na lang namin ang bata sa aking
boss." William told the caller that he was willing to give P50,000 but pleaded that he be given
ample time to produce the money. The woman reiterated: " Hindi ko masasagot iyan."13
Ricardo and Tito heard the sound of a car horn blowing while Alma was using the telephone. Tito
called up Charles and inquired whether he (Charles) heard the same sound while William was
talking to the caller. After William hung up the telephone, he told George that he could hear t he
horn of a car blowing in the background. George then called up Ricardo by phone and relayed the
information. When George inquired if Ricardo heard the sound of the horn of a car while Alma
was talking over the telephone, Ricardo replied in the affirmative. The PAOCTF operatives
concluded that Alma was the kidnapper.
After making the call, Alma hung up the telephone and returned to her house. The PAOCTF
operatives followed. When Alma unlocked the door to the house, the operatives accosted her. She
tried to escape, to no avail. Tito heard the cry of a child coming from inside the house, pleading
for help: "Tita ilabas mo ako!"14 He rushed to the house and saw the victim Angela. He then
carried her outside to safety. The agents searched the house for evidence and found a pair of
black shoes, a pair of panties, a yellow shirt, a set of blouse and shorts with red, yellow and white
stripes. The evidence was placed in a plastic bag. 15 The victim and the suspects were thereafter
brought to the PAOCTF office for proper documentation.
When informed that his daughter had already been rescued, William rushed to the PAOCTF
headquarters where he and Angela were reunited. Angela identified Alma as her kidnapper. When
William asked Alma why she kidnapped Angela and what she would do with the one-million-peso
ransom she was demanding, she replied: "Kuya, wag kang maghusga, pareho lang tayong
biktima." When William asked Alma: "Biktima, saan?" Alma replied: "Ang anak ko, kinidnap din
nila."16
Chief Inspector Dandan turned over to Evidence Custodian PO2 Joseph Bagsao, the pieces of
evidence contained in a blue Shoe Mart (SM) plastic bag which the operatives found in Alma's
house: a pair of black shoes, a pair of panties, a yellow shirt, a set of white blouse and shorts
with red, yellow and white stripes, all of which were sized to fit a child of 4 to 7 years of age. 17
On October 19, 1998, an information for kidnapping for ransom was filed against Alma and Jane
Doe.
On October 26, 1998, at around 11:00 a.m., Jenny Rose arrived at the PAOCTF Headquarters in
Camp Crame, and proceeded to PO2 Joseph Bagsao's office where she announced that she was
one of Alma's cohorts. PO2 Bagsao took Jenny Rose's fingerprints and entered the data in a
fingerprint index card. 18 Jenny Rose was thereafter placed in a police line-up. Angela, who arrived
at the PAOCTF office with her father, identified Jenny Rose as one of her kidnappers. Police Chief
Inspector Atty. Aurelio C. Trampe, Jr., the Legal and Investigation Division Chief of the PAOCTF,
later referred Jenny Rose to the Office of the City Prosecutor of Marikina City, for preliminary
investigation. 19
The prosecutor later amended the Information by deleting the name Jane Doe and substituting
the name Jenny Rose Basilan y Payan as the second accused.
Alma's Evidence
Alma denied having kidnapped Angela for ransom. She testified that she was married, and a
resident of Block 38, Lot 38, G. Maliputo Street, Phase II, Area 4, Kaunlaran Village, Navotas,
Metro Manila. She was a businesswoman who ran a local employment agency for household help.
She was also engaged in the business of buying and selling palay grains. Her local employment
agency was located in Navotas. She had another office at No. 1258 Paz Street, Paco, Manila,
which served as a bodega for items she sent to the province, as well as items she purchased. She
had an adopted daughter named Mary Rose, who, in September 1998, studied at Harris School in
Antipolo. She had employed Wendy Salingatog for a time as the yaya of her adopted daughter.
Alma was then residing in V. Luna Street, Quezon City.
Alma employed Jenny Rose as secretary in her employment agency. In payment for services
rendered, Jenny Rose was sent to school at the Lyceum of the Philippines to study B.S. Business
Administration. She was also given an allowance.
In September 1998, Alma was looking for a school run by nuns that would be willing to accept
her adopted daughter in the middle of the school year. Jenny Rose suggested the Divine
Providence School in Marikina City. In the morning of September 3, 1998, Jenny Rose brought
her to the said school. They proceeded to the administration office where Alma inquired if the
school would allow her adopted daughter to enroll. When Jenny Rose and Alma were about to
leave, a little girl, who turned out to be Angela, approached them and asked what Jenny Rose
was doing in her school. Jenny Rose introduced Angela to Alma as her niece, and informed Alma
that she would be bringing Angela with her to her boarding house in España Street.
At that point, Alma asked Jenny Rose and Angela if they wanted to eat. When they agreed, the
three of them proceeded to the Jollibee Restaurant near the Meralco office in Marikina City. After
eating, Alma bade them goodbye and was about to leave for her office when Jenny Rose asked if
she and Angela could come along with her to Cubao. She acceded to the request, and they rode
a Tamaraw FX taxi. Because Angela was getting sleepy, Alma offered to bring them to Jenny's
boarding house in España, and dropped them off there. Alma thereafter proceeded to her office
at 1258 Paz St., Paco, Manila, where she had been holding office since January 1997, and arrived
thereat at about 2:00 p.m.
At or about 8:00 p.m. of the same day, Alma passed by Jenny Rose's boarding house to give her
instructions on what to do the following day. She saw Angela crying profusely. She told Jenny
Rose to bring Angela home, but Jenny Rose told her that Angela's parents would be coming to
fetch her. Thinking that Angela was probably bored, Alma suggested that they stay in her office
in Paco so that they could watch television while waiting for Angela's parents. Jenny Rose agreed.
They arrived at the said office at around 8:40 p.m. Alma left at around 10:00 p.m. and went home
to her rented house in Palmera Homes, Antipolo, where she stayed until September 6, 1998.
On September 7, 1998, at around 12:00 noon, Alma arrived at her office in Paco, Manila, and
found that Jenny Rose and Angela were still there. Jenny Rose assured Alma that Angela would
be fetched by her parents. At around 4:00 p.m., Alma instructed Jenny Rose to go to the province
to collect some debts. Jenny Rose left for the province on the same day. Alma stayed in the office
because she was having her menstrual period at the time and was not feeling well. She took care
of Angela while Jenny Rose was away.
The next day, September 8, 1998, Alma was still in her office with Angela. At about 3:00 p.m.,
while she was watching television with Angela, someone knocked at the door. When she opened
it, two male persons entered. One of them was Inspector Ricardo Dandan who showed her a
photograph of Angela and asked if she knew the child. Alma answered in the affirmative. Ricardo
then asked her, "Don't you know that this is kidnapping?" to which Alma replied, "I do not know."
She also told Dandan that she did not know what was happening to her. Suddenly, Alma was
handcuffed. Angela cried and asked Alma: "What are they doing to you, Tita?" She was brought
to Camp Crame where she was interrogated and detained. Alma did not make any telephone calls
that day. William, Marymae and Angela arrived at Alma's detention cell. When Angela saw her,
the girl tried to run to Alma but William held on to his daughter. William asked Alma why she took
AMCVB CRIM 1 [Art. 8-11] (5)| 14
Angela, Alma replied that it was Jenny Rose who brought the girl along with them. She told William
that they were both victims.
Sometime on October 26, 1998, Jenny Rose visited Alma to ask for forgiveness and to assume full
responsibility for the incident. Jenny Rose also informed her that she wanted to ask forgiveness
from the Sorianos so that she could finish her schooling. It was only then that she realized what
Jenny Rose had done to her. Nevertheless, she still believed that Jenny Rose was a good person.
She advised her to go home and continue with her studies.
When Angela's sworn statement was shown to her, Alma noticed that Angela did not mention
Jenny Rose as one of the two persons who had kidnapped her. Alma executed a handwritten
statement denying the truth of the contents of Angela's affidavit.20
Jenny Rose's Evidence
Jenny Rose did not testify in her defense. She presented Atty. Aurelio Trampe, Jr. as her witness
who testified21 that he was the Legal and Investigation Division Chief of the PAOCTF. On October
26, 1998, he interviewed Jenny Rose when the latter surrendered to the task force. Jenny Rose
insisted that she wanted to help Alma and get all the blame for the kidnapping. She wanted to
admit her participation in the crime, and volunteered the information that she and Alma kidnapped
Angela. Atty. Trampe, Jr. wrote a letter22 to the Department of Justice requesting for her inclusion
in the ongoing preliminary investigation. He believed that it would be more appropriate for the
prosecutor handling the case to investigate and determine whether Jenny Rose was the Jane Doe
referred to in the complaint. Atty. Trampe, Jr. admitted, however, that aside from the voluntary
surrender of Jenny Rose, he did not have any other evidence to include her as one of the suspects
in the case. Further, he did not provide a lawyer for Jenny Rose because he did not intend to
conduct an exhaustive interrogation, and he knew that even if she admitted her participation, the
statement would not be admitted as evidence.23
Jenny Rose adduced in evidence the letter of Atty. Trampe, Jr. to prove that she voluntarily
surrendered and that there was lack of evidence against her.
On September 16, 1999, the trial court rendered judgment, the decretal portion of which reads:
WHEREFORE, foregoing premises considered, the accused ALMA BISDA y GAUPO and
GENEROSA BASILAN y PAYAN are hereby found GUILTY beyond reasonable doubt of
the crime of Kidnapping for Ransom penalized under Article 267 of the Revised Penal
Code, as amended by RA 7659 and is sentenced to suffer the extreme penalty of
DOUBLE DEATH by lethal injection, the two accused having conspired in the commission
thereof. They are further ordered to pay solidarily the parents of the victim the amount
of P100,000.00 as moral damages and costs of the suit.
SO ORDERED. 24
The assigned errors ascribed by the appellants to the trial court may be synthesized, thus: (a) the
trial court erred in convicting the appellants of kidnapping; (b) the trial court erred in sentencing
the appellants to double death. 25 The Court will delve into and resolve the issues simultaneously.
The prosecution adduced proof beyond reasonable doubt that the appellants kidnapped the victim.
The appellants aver that the prosecution failed to muster proof beyond reasonable doubt that
they kidnapped and illegally detained Angela. Angela in fact voluntarily went with them, and she
was free to roam around the house, and to call her parents through the telephone of their landlady
which Angela knew by heart.
There is no proof beyond reasonable doubt that the appellants conspired to kidnap Angela.
Appellant Bisda avers that she is guilty only of slight illegal detention under Article 268 of the
Revised Penal Code because (a) Angela stayed in her office for only three days; and (b) the
circumstance of a female offender and a female offended party is not one of those included in the
definition of kidnapping or serious illegal detention under Article 267 of the RPC.
The trial court's reliance on Angela's testimony is misplaced because the records do not show that
Angela had the capacity to distinguish right from wrong when she testified in open court. The
appellants point out that she was merely six years old at the time. Although Angela took an oath
before she testified, the trial judge failed to ask any questions to determine whether or not she
could distinguish right from wrong, and comprehend the obligation of telling the truth before the
court. Hence, one of the standards in determining the credibility of a child witness was not
followed. There is, thus, a veritable doubt that Angela told the truth when she testified.
Moreover, Angela's testimony is, besides being inconsistent on material points, contrary to
ordinary human experience. Angela did not shout or cry when she was forced to leave the school
premises and brought to the Jollibee Restaurant. Angela could have easily sought help from the
security guard at the exit gate of the school and from the customers in the restaurant, or even
from the tricycle and taxi drivers; but Angela did not. Angela even admitted that she voluntarily
went with the appellants. She did not cry while detained in the office of appellant Bisda, and even
admitted that it was only that time when she was rescued that she cried. The conduct of Angela,
the appellants insist, is contrary to ordinary human experience, knowledge and observation. By
her own admission in her sworn statement 26 to the PAOCTF agents, Angela was assisted by her
parents while she was giving the said statement. This raised doubts as to the veracity of her
testimony.
The contentions of the appellants are bereft of merit.
Article 267 of the Revised Penal Code as amended by Republic Act No. 7659 reads:
ART. 267. Kidnapping and serious illegal detention. — Any private individual who shall
kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer
the penalty of reclusion perpetua to death.
1. If the kidnapping or detention shall have lasted more than three days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon the person kidnapped
or detained, or if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, except when the accused is
any of the parents, female or a public officer.
The penalty shall be death where the kidnapping or detention was committed for the
purpose of extorting ransom from the victim or any other person, even if none of the
circumstances above-mentioned were present in the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is raped, or is
subjected to torture or dehumanizing acts, the maximum penalty shall be imposed. (As
amended by RA No. 7659).27
For the accused to be convicted of kidnapping or serious illegal detention, the prosecution is
burdened to prove beyond reasonable doubt all the elements of the crime, namely, (1) the
offender is a private individual; (2) he kidnaps or detains another, or in any manner deprives the
latter of his liberty; (3) the act of detention or kidnapping must be illegal; and (4) in the
commission of the offense any of the following circumstances is present: (a) the kidnapping or
detention lasts for more than three days; (b) it is committed by simulating public authority; (c)
any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill
him are made; or (d) the person kidnapped or detained is a minor, female, or a public officer. 28 If
the victim of kidnapping and serious illegal detention is a minor, the duration of his detention is
immaterial. Likewise, if the victim is kidnapped and illegally detained for the purpose of extorting
ransom, the duration of his detention is immaterial. 29 The word "female" in paragraph 1(4) of
Article 267 of the Revised Penal Code refers to the gender of the victim and not of the offender.
The essence of the crime of kidnapping is the actual deprivation of the victim's liberty under any
of the above-mentioned circumstances, coupled with indubitable proof of intent of the accused to
effect the same.30 There must be a purposeful or knowing action by the accused to forcibly restrain
AMCVB CRIM 1 [Art. 8-11] (5)| 15
the victim because taking coupled with intent completes the offense. 31 Kidnapping which involves
the detention of another is by its nature a continuing crime. 32
The victim's lack of consent is also a fundamental element of kidnapping. The involuntariness of
the seizure and detention is the very essence of the crime. 33 The general rule is that the
prosecution is burdened to prove lack of consent on the part of the victim. However, where the
victim is a minor especially if she is only five years old, lack of consent is presumed. She is
incompetent to assent to seizure and illegal detention. 34 In this case, Angela was merely five years
old when she was kidnapped; thus incapable of giving consent. The consent of such child could
place the appellants in no better position than if the act had been done against her will. The
appellants cannot rely on Angela's initial willingness to go along with them to the restaurant. As
Judge Shepherd stated in State v. Chisenhall:35
It is clear that the consent of the child, obtained by means of persuasion, is no defense,
since the result of such persuasion is just as great an evil as if it had been accomplished
by other means.
A kidnapper should not be rewarded with an acquittal simply because she is ingenious enough to
conceal her true motive from her victim until she is able to transport the latter to another place.
Although Angela was free to roam around in the "dirty house," to draw and to watch television
during the entire period of her detention, and was regularly fed and bathed, the appellants are
nevertheless guilty of kidnapping and illegally detaining the five-year-old child. As Judge McGill of
the United States Court of Appeals said in United States v. McCabe,36 "to accept a child's desire
for food, comfort as the type of will or consent contemplated in the context of kidnapping would
render the concept meaningless."
In People v. Baldogo, 37 this Court held that illegal serious detention under Article 267 of the
Revised Penal Code as amended, includes not only the imprisonment of a person but also the
deprivation of her liberty in whatever form and for whatever length of time. It includes a situation
where the victim cannot go out of the place of confinement or detention or is restricted or impeded
in his liberty to move.38 In this case, the door to the office of appellant Bisda was locked while
Angela was detained therein. Even if she wanted to escape and go home, Angela, at her age,
could not do so all by herself. During the period of her confinement, Angela was under the control
of the appellants. The helpless child was waiting and hoping that she would be brought home, or
that her parents would come and fetch her.
The prosecution adduced proof beyond reasonable doubt that the appellants conspired to kidnap
and illegally detain Angela. The appellants' testimonies even buttressed the testimonies of both
the victim and the other witnesses for the prosecution.
Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons
agree to commit a felony and decide to commit it. 39 In People v. Pagalasan, 40 this Court held that
conspiracy need not be proven by direct evidence. It may be inferred from the conduct of the
accused before, during and after the commission of the crime, showing that they had acted with
a common purpose and design.41 Conspiracy may be implied if it is proved that two or more
persons aimed by their acts towards the accomplishment of the same unlawful object, each doing
a part so that their combined acts, though apparently independent of each other were, in fact,
connected and cooperative, indicating a closeness of personal association and a concurrence of
sentiment. Conspiracy once found, continues until the object of it has been accomplished unless
abandoned or broken up.42 To hold an accused guilty as a co-principal by reason of conspiracy,
he must be shown to have performed an overt act in pursuance or furtherance of the
complicity.43 There must be intentional participation in the transaction with a view to the
furtherance of the common design and purpose. 44
Each conspirator is responsible for everything done by his confederates which follows incidentally
in the execution of a common design as one of its probable and natural consequences even though
it was not intended as part of the original design. 45 Responsibility of a conspirator is not confined
to the accomplishment of a particular purpose of conspiracy but extends to collateral acts and
offenses incident to and growing out of the purpose intended. 46Conspirators are held to have
intended the consequences of their acts and by purposely engaging in conspiracy which
necessarily and directly produces a prohibited result, they are, in contemplation of law, chargeable
with intending that result.47 Conspirators are necessarily liable for the acts of another conspirator
unless such act differs radically and substantively from that which they intended to commit.48 As
Judge Learned Hand put it in United States v. Andolscheck,49 "when a conspirator embarks upon
a criminal venture of indefinite outline, he takes his chances as to its content and membership,
so be it that they fall within the common purposes as he understands them."
The appellants inveigled Angela into going with them by telling her that her parents were waiting
for her at the Jollibee Restaurant. Appellant Bisda poked a knife at Angela and held her hands so
tightly that the helpless child had no recourse but to come along. The appellants transported
Angela on board a taxi and brought her to Cubao, and then to appellant Bisda's office at No. 1258
Paz St., Paco, Manila. The appellants tied her hands, covered her mouth with scotch tape, and
detained her from September 3, 1998 until September 8, 1998, when she was providentially
rescued by the operatives of the PAOCTF.
The collective, concerted and synchronized acts of the appellants before, during and after the
kidnapping and the illegal detention of Angela constitute indubitable proof that the appellants
conspired with each other to attain a common objective, i.e., to kidnap Angela and detain her
illegally. The appellants are thus principals by direct participation in the kidnapping of Angela and
illegally detaining her.
Appellant Basilan cannot escape conviction for the crime charged on her barefaced claim that she
merely accompanied appellant Bisda to the latter's office with the victim in tow. The records show
that the appellant presented as her sole witness Atty. Aurelio Trampe, Jr., then PAOCTF Legal and
Investigation Division Chief, who testified that when she surrendered to him, the appellant
admitted that she and appellant Bisda had kidnapped Angela:
ATTY. SALAMERA:
This court would like to be cleared ( sic). Did she admit to you the condition
of the alleged kidnapping on September 3, 1998?
WITNESS:
She volunteered that statement that she was together with Ms. Alma Besda
(sic) kidnap (sic) Angela Michelle Soriano.50
The appellants' contention that the prosecution failed to establish that Angela understood the
nature of an oath and the need for her to tell the truth must fail.
Section 1, Rule 132 of the Revised Rules of evidence provides that the examination of witnesses
shall be under oath or affirmation: 51
SECTION 1. Examination to be done in open court . — The examination of witnesses
presented in a trial or hearing shall be done in open court, and under oath or affirmation.
Unless the witness is incapacitated to speak, or the question calls for a different mode
of answer, the answers of the witness shall be given orally. (1a). 52
An oath is defined as an outward pledge, given by the person taking it that his attestation or
promise is made under an immediate sense of his responsibility to God.53 The object of the rule
is to affect the conscience of the witness and thus compel him to speak the truth, and also to lay
him open to punishment for perjury in case he willfully falsifies. 54 A witness must be sensible to
the obligation of an oath before he can be permitted to testify. 55 It is not, however, essential that
AMCVB CRIM 1 [Art. 8-11] (5)| 16
he knows how he will be punished if he testify falsely. 56 Under modern statutes, a person is not
disqualified as a witness simply because he is unable to tell the nature of the oath administered
to a witness.57In order that one may be competent as a witness, it is not necessary that he has a
definite knowledge of the difference between his duty to tell the truth after being sworn and
before, or that he be able to state it, but it is necessary that he be conscious that there is a
difference.58 It cannot be argued that simply because a child witness is not examined on the
nature of the oath and the need for her to tell the whole truth, the competency of the witness
and the truth of her testimony are impaired. If a party against whom a witness is presented
believes that the witness is incompetent or is not aware of his obligation and responsibility to tell
the truth and the consequence of him testifying falsely, such party may pray for leave to conduct
a voire dire examination on such witness to test his competency. 59 The court may motu proprio
conduct the voir dire examination. In United States v. Buncad, 60 this Court held that when a child
of tender age is presented as a witness, it is the duty of the judge to examine the child to
determine his competency. In Republic v. Court of Appeals,61 this Court held that:
[W]hen a witness is produced, it is a right and privilege accorded to the adverse party
to object to his examination on the ground of incompetency to testify. If a party knows
before trial that a witness is incompetent, objection must be made before trial that a
witness is incompetent, objection must be made before he has given any testimony; if
the incompetency appears on the trial, it must be interposed as soon as it becomes
apparent. 62
The competency of a person to take the prescribed oath is a question for the trial court to decide. 63
If a party admits proof to be taken in a case without an oath, after the testimony has been acted
upon by the court, and made the basis of a judgment, such party can no longer object to the
admissibility of the said testimony.64 He is estopped from raising the issue in the appellate court.
This was the ruling of this Court in Republic v. Court of Appeals,65 thus:
Simply put, any objection to the admissibility of evidence should be made at the time
such evidence is offered or as soon thereafter as the objection to its admissibility
becomes apparent, otherwise the objection will be considered waived and such
evidence will form part of the records of the case as competent and admissible evidence.
The failure of petitioner to interpose a timely objection to the presentation of Divinaflor's
testimony results in the waiver of any objection to the admissibility thereof and he is
therefore barred from raising said issue on appeal.
In this case, Angela was six years old when she testified. 66 She took an oath to "tell the truth, the
whole truth and nothing but the truth" before she testified on direct examination. There was nary
a whimper of protest or objection on the part of the appellants to Angela's competence as a
witness and the prosecution's failure to propound questions to determine whether Angela
understood her obligation and responsibility of telling the truth respecting the matter of her
testimony before the court. The appellants did not even bother requesting the trial court for leave
to conduct a voir dire examination of Angela. After the prosecution terminated its direct
examination, the appellants thereafter cross-examined Angela extensively and intensively on the
matter of her testimony on direct examination. It was only in this Court that the appellants raised
the matter for the first time, that there was failure on the part of the prosecution to examine
Angela on the nature of her oath, and to ascertain whether she had the capacity to distinguish
right from wrong. It is too late in the day for the appellants to raise the issue.
The determination of the competence and capability of a child as a witness rests primarily with
the trial judge.67 The trial court correctly found Angela a competent witness and her testimony
entitled to full probative weight. Any child regardless of age, can be a competent witness if she
can perceive and perceiving, can make known to others, and that she is capable of relating
truthfully facts for which she is examined.68 In People v. Mendiola,69 this Court found the six-year-
old victim competent and her testimony credible. Also in Dulla v. Court of Appeals,70 this Court
gave credence to the testimony of a three-year-old victim. It has been the consistent ruling of the
Court that 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 courts high respect if not conclusive effect absent clear and
convincing evidence that the trial court ignored, misconstrued, or misinterpreted cogent facts and
circumstances which if considered warrants a reversal or modification of the outcome of the
case. 71 In this case the Court finds no basis to deviate from the findings and conclusions of the
trial court on the competency of Angela, and the probative weight of her testimony.
Appellants must come to grips with case law that testimonies of child victims are given full weight
and credit. The testimony of children of sound mind is likewise to be more correct and truthful
than that of older persons.72 In People vs. Alba,73 this Court ruled that children of sound mind are
likely to be more observant of incidents which take place within their view than older persons,
and their testimonies are likely more correct in detail than that of older persons. Angela was barely
six years old when she testified. Considering her tender years, innocent and guileless, it is
incredible that Angela would testify falsely that the appellants took her from the school through
threats and detained her in the "dirty house" for five days. In People v. Dela Cruz, 74 this Court
also ruled that ample margin of error and understanding should be accorded to young witnesses
who, much more than adults, would be gripped with tension due to the novelty and the experience
in testifying before the trial court.
The credibility of Angela and the verisimilitude of her testimony is not impaired by her failure to
shout for help when the appellants took her, or to make any attempt to call her parents or to
escape from her captors and to use the telephone to call her parents. At five years old, she could
not be expected to act and react to her kidnapping and detention like an adult should. She did
not shout and seek help from the school security guards because the appellants told Angela that
her parents were waiting for her. Appellant Basilan was the niece of Angela's yaya. She then
believed that nothing was amiss. It was only when she failed to see her parents that Angela
blamed herself for going with the appellants in the first place.
The evidence on record shows that appellant Bisda poked a knife at Angela and her hands were
held tightly by the appellants as they proceeded to the restaurant from the school. Although the
Soriano spouses were by Angela's side when the latter gave her sworn statement 76 in the PAOCTF
office, there is no showing on record that the spouses ever influenced their daughter to prevaricate.
Significantly, the appellants' counsel did not even cross-examine Angela on her sworn statement.
In this case, appellant Bisda asserts that Angela's testimony contains four inconsistencies on
material points; hence, is incredible. First, Angela testified on cross-examination that the
appellants approached her but she did not talk to them. 77 In contrast, Angela testified on cross-
examination that she saw appellant Basilan, and talked to her. 78Second, Angela testified on direct
examination that she first came to know the identities of the kidnappers when she was brought
to the "dirty house." 79 Angela contradicted herself when she testified on cross-examination that
when she was brought to the said house, she already knew appellant Basilan. 80 Third, Angela
testified on direct examination that she went with the appellants to the Jollibee Restaurant when
they held her hands firmly.81 On cross-examination, Angela testified that the appellants threatened
her when they kidnapped her by pointing a knife at her which made her cry. 82 Angela further
contradicted herself when she testified on direct examination that the appellants pointed a knife
at her "one night." 83 Fourth, Angela said that when she was in the office of appellant Bisda in
Paco, Manila, her feet were tied and her mouth was covered with scotch tape. 84 However, on
cross-examination, Angela revealed that she was free to roam around and even watched television
and made drawings.85
Anent the first and second set of inconsistencies adverted to by the appellants, the same pertain
only to minor and peripheral matters and not to the principal occurrence or the elements of the
crime charged, and the positive identification of the appellants. Hence, the credibility of Angela,
and that of her testimony were not impaired by the said inconsistencies. 86 The inscrutable fact is
that the appellants took the victim from the school and detained her at the office of appellant
AMCVB CRIM 1 [Art. 8-11] (5)| 17
Bisda at No. 1258 Paz St., Paco, Manila, until she was rescued. Whether or not Angela talked with
the appellants as she was being brought to the restaurant or that she came to know of the
identities of the kidnappers before or when she was brought to the dirty house, are
inconsequential. The overwhelming evidence on record is that no other than the appellants
kidnapped her from her school and illegally detained her from September 3 to 8, 1998. Indeed,
when asked to point and identify her kidnappers, Angela did so spontaneously and positively. 87
The lady stood up and identified herself as Jenny Rose Basilan. 88
Appellant Basilan did not controvert the evidence of the prosecution that she was the niece of the
yaya of the victim, and that the said appellant, at one time, went to the Soriano residence where
Angela saw and met her. The victim was, thus, acquainted with appellant Basilan even before the
kidnapping.
Angela testified on direct examination, thus:
Angela was not asked by the public prosecutor whether or not the appellants threatened her with
any weapon before proceeding to the Jollibee Restaurant. The additional fact was revealed by
Angela, ironically, on cross-examination:
The prosecutor tried on re-direct to take advantage of Angela's revelation but the appellants'
counsel, realizing that he had just committed a faux pas, objected to the questions of the public
prosecutor. It turned out that the latter was himself confused because instead of adverting to a
knife, as testified to by Angela, he blurted that appellant Bisda used a gun in intimidating the
victim. Even Angela must have been bewildered by the repartees of the prosecution and the
appellants' counsel such that, instead of answering "one time," to the questions of the prosecutor,
she said "one night."
There was, thus, no inconsistency in Angela's testimony on this point.
Angela's hands were tied, and her mouth was covered with scotch tape the day after she was
brought to the dirty house. Angela testified on direct examination, thus:
It is not quite clear whether the counsel for the appellants were asking about Angela's activities
during her detention, or during her rescue. Taking into account Angela's answers, it is evident
that her hands were tied and her mouth covered with scotch tape the day after she was kidnapped,
but that she was free to roam around the room, practice on her drawings and watch television
during the rest of the period of her detention.
PROPER PENALTIES
The appellants aver that the prosecution failed to prove that in kidnapping and illegally detaining
the victim, they intended to demand ransom from her parents. William Soriano, the victim's father,
failed to prove that the appellants or any of them called through the telephone demanding ransom.
The collective testimonies of police operatives Tito Tuanggang, Ricardo Dandan and George
Torrente were hearsay evidence; hence, barren of probative weight. The trial court likewise failed
to take into account the voluntary surrender of appellant Basilan.
The Office of the Solicitor General, for its part, posits the view that the prosecution mustered the
requisite quantum of evidence to prove that the appellants and no other demanded ransom from
the parents of the victim.
The appellants' contention does not hold water. Admittedly, the prosecution failed to adduce direct
evidence that the appellants demanded ransom for the release of the victim. However, the
prosecution adduced circumstantial evidence to prove beyond reasonable doubt that the
appellants, or at least one of them, demanded ransom from the Soriano spouses for the release
of their daughter.
To warrant the imposition of the death penalty for the crime of kidnapping and serious illegal
detention for ransom, the prosecution must prove beyond reasonable doubt: (a) intent on the
part of the accused to deprive the victim of his liberty; (b) actual deprivation of the victim of his
liberty; and (c) motive of the accused, which is ransom for the victim or other person for the
release of the victim. The purpose of the offender in extorting ransom is a qualifying circumstance
which may be proved by his words and overt acts before, during and after the kidnapping and
detention of the victim.94 Neither actual demand for nor actual payment of ransom is necessary
for the crime to be committed.95 Ransom as employed in the law is so used in its common or
ordinary sense; meaning, a sum of money or other thing of value, price, or consideration paid or
demanded for redemption of a kidnapped or detained person, a payment that releases from
captivity.96 It may include benefits not necessarily pecuniary which may accrue to the kidnapper
as a condition for the release of the victim.97
Circumstantial evidence is sufficient to prove the qualifying circumstance if (a) there is more than
one circumstance; (b) the facts from which the inferences are proven; (c) the combination of all
the circumstances is such as to produce a conviction beyond a reasonable doubt. The
circumstances proved should constitute an unbroken chain which leads to one fair and reasonable
conclusion pointing to the accused to the exclusion of others as the one who demanded ransom.
The circumstances proved must be consistent with each other, consistent with the hypothesis that
the accused is guilty, and that at the same time inconsistent with any other hypothesis except
that of guilty. 98The prosecution must rely on the strength of its evidence and not on the weakness
of that of the appellants.99
In this case, the chain of circumstantial evidence adduced by the prosecution proves that no one
other than the appellants or one of them called up the spouses Soriano through the telephone
and demanded ransom of P5,000,000:
1. Appellant Basilan is the niece of Wendy Salingatog, who was for a time the housemaid
of appellant Bisda;
2.
3. The appellants kidnapped Angela shortly before noon on September 3, 1998, and
detained her at No. 1258 Paz Street, Paco, Manila, where appellant Bisda held office;
4.
3. The following morning, William was informed by his landlady that a woman had earlier called
up over the telephone requesting her to inform William that she (the caller), would call again the
next day, September 5, 1998;
4. On September 5, 1998, William received a telephone call from a woman demanding a ransom
of P5,000,000 for Angela's freedom. When William complained that he did not have the amount,
she told William that she cannot be responsible for it and that she would inquire from her bosses.
William's testimony reads:
Witness:
She continued to say "TATANUNGIN KO NA LANG SA AKING MGA BOSS." 100
5. In the morning of September 7, 1998, Inspector Ricardo Dandan and SPO4 Tito
Tuanggang, acting on an anonymous tip, rushed to the vicinity of No. 1303 Paz Street,
Paco, Manila, the office of the MSC Freight Service, to conduct surveillance operations.
Later in the afternoon, they saw appellant Bisda emerging from a small house about
fifty meters from the office of the MSC Freight Service;
6. At about 3:40 p.m. on September 8, 1998, appellant Bisda emerged from the house at
No. 1258 Paz Street, and went to the small store near the house. Chief Inspector
Dandan and Tito Tuanggang were about two meters from the store and saw appellant
Bisda enter the same, lift the telephone and talk to someone over the telephone;
AMCVB CRIM 1 [Art. 8-11] (5)| 18
 7. At about the same time, William received a telephone call from a woman demanding where Three Justices of the Court maintain their position that Rep. Act No. 7659 is unconstitutional
the money was and when William replied that he was ready with P25,000, the woman insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority
replied: Hindi ko masasagot iyan, dadalhin na lang namin ang Bata sa aking boss ." When William that the law is constitutional, and that the death penalty can be lawfully imposed in the case at
intimated that he could raise P50,000 but pleaded for more time to produce the amount, the bar.
woman retorted: "Hindi ko masasagot iyan." William's testimony reads:
Pros. Junio: In accordance with Section 25 of Rep. Act No. 7659 amending Section 83 of the Revised Penal
Code, let the records of this case be forthwith forwarded, upon finality of this Decision, to the
On September 8, 1998, at about 3:40 in the afternoon, what happened if any? Office of the President for possible exercise of the pardoning power. Costs against the appellants.
SO ORDERED.
8. After making the telephone call, appellant Bisda left the store and returned to the house at No.
1258 Paz Street, Paco, Manila;
9. The operatives from the PAOCTF followed appellant Bisda and confronted her before she could
enter the house. The operatives then barged into the premises of No. 1258 Paz Street where they
saw Angela in the room;

10. When William arrived at the PAOCTF office, with Angela that day, he inquired from appellant
Bisda why she kidnapped Angela and what she would do with the P5,000,000 ransom she was
demanding, and the appellant replied: " Kuya, wag (sic) kang nang maghusga, pareho lang tayong
biktima." When William asked Alma: " Biktima, saan?" The appellant replied: "Ang anak ko,
kinidnap din nila."

In light of the foregoing facts, there can be no other conclusion than that appellant Bisda
demanded a ransom of P5,000,000 from William Soriano; hence, she is GUILTY of kidnapping for
ransom. Being a conspirator, appellant Basilan is also guilty of the said crime. The penalty for
kidnapping for ransom is death, a single and indivisible penalty. The aggravating circumstance of
use of a motor vehicle under Article 14, paragraph 20 of the Revised Penal Code was attendant
in the commission of the crime.102 However, said circumstance, as well as the voluntary surrender
of appellant Basilan, are inconsequential in the penalties to be imposed on the said appellants,
conformably to Article 63 of the Revised Penal Code. 103

CIVIL LIABILITIES OF THE APPELLANTS

The trial court awarded P100,000 moral damages to the spouses William and Marymae Soriano,
the parents of the victim. The trial court did not award any moral and exemplary damages to the
victim. The decision of the trial court has to be modified. Under Article 2219, paragraph 7, of the
New Civil Code, moral damages may be awarded to a victim of illegal arrest and detention. In this
case, the appellants poked a knife on the victim as they took her from the school. The appellants
also tied her hands, and placed scotch tape on her mouth. The hapless victim was so shocked
when operatives of the PAOCTF barged into the office of appellant Bisda, and took custody of the
victim that she cried profusely. The victim suffered trauma, mental, physical and psychological
ordeal. There is, thus, sufficient basis for an award of moral damages in the amount of
P300,000.104 Since there were demands for ransom, not to mention the use by the appellants of
a vehicle to transport the victim from the school to the Jollibee Restaurant and to the office of
appellant Bisda, the victim is entitled to exemplary damages in the amount of
P100,000.105 Although the victim claims that the appellants took her earrings, the prosecution
failed to prove the value of the same.

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Marikina City,
Branch 272, is AFFIRMED WITH MODIFICATION. The appellants, Alma Bisda and Generosa "Jenny
Rose" Basilan, are found guilty beyond reasonable doubt of kidnapping for ransom under
paragraph 4 and the last paragraph of Article 267, of the Revised Penal Code, and are sentenced
to suffer the penalty of death by lethal injection. The appellants are hereby directed to pay jointly
and severally to the victim Angela Michelle Soriano the amount of P300,000 by way of moral
damages and P100,000 by way of exemplary damages. Costs against the appellants.

AMCVB CRIM 1 [Art. 8-11] (5)| 19

4. PEOPLE v. DE LEON
G.R. No. 179943 June 26, 2009
PERALTA, J.:
This is an appeal from the Decision1 of the Court of Appeals (CA), affirming with modification the
Decision2 of the Regional Trial Court (RTC), Branch 76, San Mateo, Rizal, finding appellant Marlon
Lambert De Leon y Homo guilty beyond reasonable doubt of the crime of robbery with homicide.
The factual and procedural antecedents are as follows:
According to the prosecution, in the early morning, around 2 o'clock of January 7, 2000, Eduardo
Zulueta and Fortunato Lacambra III, both gasoline boys; Julieta Amistoso, cashier; and Edralin
Macahis, security guard; all employees of Energex Gasoline Station, located at Barangay Guinayan,
San Mateo, Rizal, were on duty when a mint green-colored Tamaraw FX arrived for service at the
said gasoline station.3
Eduardo Zulueta was the one who attended to the said vehicle. He went to the driver’s side in
order to take the key of the vehicle from the driver so that he could open the gas tank. He saw
through the lowered window shield that there were about six to seven persons aboard the vehicle.
He proceeded to fill up ₱50.00 worth of diesel in the gas tank. After doing this, he returned the
key to the driver. While returning the key, the driver told him that the engine of the vehicle would
not start.4 Eduardo Zulueta offered to give the vehicle a push. While Eduardo Zulueta and fellow
gasoline boy Fortunato Lacambra III were positioned at the back of the vehicle, ready to push the
same, the six male passengers of the same vehicle, except the driver, alighted and announced a
hold-up. They were armed with a shotgun and .38 caliber pistol. 5
Fortunato Lacambra III was ordered to lie down, 6 while Eduardo Zulueta was directed to go near
the Car Wash Section.7 At that instance, guns were poked at them.8
Appellant, who guarded Eduardo Zulueta, poked a gun at the latter and took the latter's wallet
containing a pawnshop ticket and ₱50.00, while the companion of the former, hit the latter on his
nape with a gun.9
Meanwhile, four members of the group went to the cashier's office and took the money worth
₱3,000.00.10 Those four robbers were also the ones who shot Edralin Macahis in the
stomach.11 Thereafter, the same robbers took Edralin Macahis' service firearm. 12
After he heard successive gunshots, Eduardo Zulueta saw appellant and his companions
immediately leave the place.13 The robbers boarded the same vehicle and proceeded toward San
Mateo, Rizal.14 When the robbers left, Eduardo Zulueta stood up and found Julieta Amistoso, who
told him that the robbers took her bag and jewelry. He also saw that Edralin Macahis had a
gunshot wound in the stomach. He immediately hailed a vehicle which transported the injured
Edralin Macahis to the hospital.15 Later on, Edralin Macahis died at the hospital due to the gunshot
wound.16
The following day, Eduardo Zulueta identified appellant as one of the robbers who poked a gun
at him.17
However, according to appellant, from January 4 to 6, 2000, he stayed at the house of his Tita
Emma at Pantok, Binangonan, Rizal, helping the latter in her canteen. On the evening of January
6, at approximately 9 o'clock, appellant asked permission from his Tita Emma to go to Antipolo.
Catherine Homo, appellant's cousin and the latter's younger brother, accompanied appellant to
the terminal. While waiting for a ride, the vehicle, a Tamaraw FX, of a certain Christian Gersalia,
a relative of appellant and Catherine Homo, passed by. Catherine Homo asked Christian Gersalia
if he would allow appellant to hitch a ride on his vehicle. Christian Gersalia agreed. Aside from
Christian Gersalia, there were other passengers in the said vehicle. 18
When the vehicle reached Masinag, where appellant was supposed to alight, he was not allowed
to do so; instead, he was asked by the other passengers to join them in their destination. While
on the road, appellant fell asleep. When he woke up, they were in a gasoline station. He then saw
Christian Gersalia and the other passengers conducting a hold-up. He never left the vehicle and
was not able to do anything because he was overwhelmed with fear. After he heard the gunshots,
Christian Gersalia and the other passengers went to the vehicle and proceeded towards Marikina.
On their way, they were followed by policemen who fired at them. The other passengers fired
back at the policemen. It was then that the vehicle hit a wall prompting the other passengers to
scamper in different directions leaving him behind. When the policemen arrived, he was
immediately arrested.19
As a result of the above incident, four Informations for Robbery with Homicide were filed against
appellant, Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy
Servantes, an alias "Rey," an alias "Jonard," an alias "Precie," and an alias "Renato," which read
as:
Criminal Case No. 4747
That on or about the 7th day of January 2000, in the Municipality of San Mateo, Province of Rizal,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela,
Jonathan Brenvuela, Pantoy Servantes, Alias "Rey," Alias "Jonard," Alias " Precie" and Alias
"Renato" whose true names, identities and present whereabouts are still unknown and still at-
large, and conspiring and mutually helping and assisting one another, while armed with unlicensed
firearms and acting as a band, with intent of gain with aggravating circumstances of treachery,
abuse of superior strength and using disguise, fraud or craft and taking advantage of nighttime,
and by means of motor vehicle and by means of force, violence and intimidation, employed upon
ENERGEX GASOLINE STATION, owned by Regino C. Natividad, and represented by Macario C.
Natividad, did then and there willfully, unlawfully and feloniously rob, steal and carry away its
cash earnings worth ₱3,000.00, to the damage and prejudice of said Energex Gasoline Station in
the aforesaid amount of ₱3,000.00 and on the occasion of the said robbery, the above-named
accused, while armed with unlicensed firearms with intent to kill, conspiring and confederating
together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy
Servantes, Alias "Rey," Alias "Jonard," Alias "Precie" and Alias "Renato," whose true names,
identities and present whereabouts are still unknown and still at-large, did then and there willfully,
unlawfully and feloniously attack, assault and shoot one EDRALIN MACAHIS, a Security Guard of
Energex Gasoline Station, thereby inflicting upon him gunshot wound on his trunk which directly
caused his death.
Contrary to law.
Criminal Case No. 4748
That on or about the 7th day of January 2000 in the Municipality of San Mateo, Province of Rizal,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating , together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela,
Jonathan Brenvuela, Pantoy Servantes, Alias "Rey," Alias "Jonard," Alias " Precie" and Alias
"Renato," whose true names, identities and present whereabouts are still unknown and still at-
large and conspiring and mutually helping and assisting one another, while armed with unlicensed
firearms and acting as a band, with intent of gain, with aggravating circumstances of treachery,
abuse of superior strength and using disguise, fraud or craft and taking advantage of nighttime,
and by means of a motor vehicle and by means of force, violence and intimidation, employed
upon the person of JULIETA A. AMISTOSO, the Cashier of Energex Gasoline Station, did then and
there willfully, unlawfully and feloniously rob, steal and carry away the following, to wit:
AMCVB CRIM 1 [Art. 8-11] (5)| 20
 a) One (1) ladies ring with sapphire stone valued at ₱1,500.00
b) One (1) Omac ladies wristwatch valued at ₱2,000.00
c) Guess black bag valued at ₱500.00
d) Leather wallet valued at ₱150.00
e) White T-Shirt valued at ₱175.00
to her damage and prejudice in the total amount of ₱4,325.00 and on the occasion of the said
robbery, the above-named accused while armed with unlicensed firearms with intent to kill,
conspiring and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela,
Jonathan Brenvuela, Pantoy Servantes, Alias "Rey," Alias "Jonard," Alias "Precie" and Alias
"Renato," whose true names, identities and present whereabouts are still unknown and still at-
large, did then and there willfully, unlawfully and feloniously attack, assault and shoot one
EDRALIN MACAHIS, a Security Guard of Energex Gasoline Station, thereby inflicting upon him
gunshot wound on his trunk which directly caused his death.
Contrary to law.
Criminal Case No. 4749
That on or about the 7th day of January 2000, in the Municipality of San Mateo, Province of Rizal,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela,
Jonathan Brenvuela, Pantoy Servantes, Alias "Rey," Alias "Jonard," Alias "Precie" and Alias
"Renato," whose true names, identities and present whereabouts are still unknown and still at-
large, and conspiring and mutually helping and assisting one another, while armed with unlicensed
firearms and acting as a band, with intent of gain, with aggravating circumstances of treachery,
abuse of superior strength and using disguise, fraud or craft and taking advantage of nighttime,
and by means of a motor vehicle and by means of force, violence and intimidation, employed
upon EDRALIN MACAHIS, a Security Guard of Energex Gasoline Station, did then and there willfully,
unlawfully and feloniously rob, steal, and carry away his service firearm .12 gauge shotgun with
serial number 13265 valued at ₱12,000.00 owned by Alert and Quick (A-Q) Security Services
Incorporated represented by its General Manager Alberto T. Quintos to the damage and prejudice
of said Alert and Quick (A-Q) Security Services Incorporated in the aforesaid amount of ₱12,000.00
and on the occasion of the said robbery the above-named accused, while armed with unlicensed
firearms, with intent to kill conspiring and confederating together with Rudy Gersalia, Christian
Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias "Rey", Alias "Jonard",
Alias " Precie" and Alias "Renato", whose true names, identities and present whereabouts are still
unknown and still at-large, did then and there willfully, unlawfully and feloniously attack, assault
and shoot one EDRALIN MACAHIS, thereby inflicting upon him gunshot wound on his trunk which
directly caused his death.
Contrary to law.
Criminal Case No. 4750
That on or about the 7th day of January 2000, in the Municipality of San Mateo, Province of Rizal,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela,
Jonathan Brenvuela, Pantoy Servantes, Alias "Rey," Alias "Jonard," Alias "Precie" and Alias
"Renato," whose true names, identities and present whereabouts are still unknown and still at-
large and conspiring and mutually helping and assisting one another, while armed with unlicensed
firearms and acting as a band, with intent of gain, with aggravating circumstances of treachery,
abuse of superior strength and using disguise, fraud or craft and taking advantage of nighttime,
and by means of a motor vehicle and by means of force, violence and intimidation, employed
upon the person of EDUARDO ZULUETA, a gasoline boy of Energex Gasoline Station, did then and
there willfully, unlawfully and feloniously rob, steal and carry away the following to wit:
a) Pawnshop Ticket from M. Lhuiller Pawnshop for one (1) black Citizen men's watch
(automatic) valued at ₱2,000.00
b) Cash money worth ₱50.00
to his damage and prejudice in the total amount of ₱2,050.00 and on the occasion of
the said robbery, the above-named accused, while armed with unlicensed firearms with
intent to kill, conspiring and confederating together with Rudy Gersalia, Christian
Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias "Rey," Alias
"Jonard," Alias "Precie" and Alias "Renato," whose true names, identities and present
whereabouts are still unknown and still at-large, did then and there willfully, unlawfully
and feloniously attack, assault and shoot one EDRALIN MACAHIS, a Security Guard of
Energex Gasoline Station, thereby inflicting upon him gunshot wound on his trunk which
directly caused his death.
Contrary to law.
Upon arraignment on March 23, 2000, appellant, with the assistance of counsel de parte, entered
a plea of not guilty on all the charges. Thereafter, trial on the merits ensued.
The prosecution presented five witnesses, namely: Macario C. Natividad, 20 then officer-in-charge
of Energex Gasoline Station where the incident took place; Edito Macahis, 21 a cousin of the
deceased security guard Edralin Macahis; Fortunato Lacambra III, 22 a gasoline boy of the same
gas station; Eduardo Zulueta, 23 also a gasoline boy of the same gas station, and Alberto
Quintos,24 general manager of Alert and Quick Security Services, Inc., where the deceased security
guard was employed.
The defense, on the other hand, presented two witnesses, namely: Catherine Homo, 25 a cousin
of appellant and the appellant26 himself.
On December 20, 2001, the RTC rendered its Decision27 convicting appellant beyond reasonable
doubt of all the charges against him, the dispositive portion of which reads:
1. In Criminal Case No. 4747, finding accused Marlon Albert de Leon y Homo guilty
beyond reasonable doubt of the crime of Robbery with Homicide, as defined and
penalized under No. 1 of Art. 294 of the Revised Penal Code, as amended by Sec.
9 of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as further amended by Sec. 1 of
R.A. 8294, having acted in conspiracy with other malefactors who have, to date,
remained at-large, and sentencing the said Marlon Albert de Leon y Homo to the
penalty of Death, taking into consideration the use of an unlicensed firearm in the
commission of the crime as an aggravating circumstance; to pay Energex Gasoline
Station owned by Regino Natividad and represented by Macario C. Natividad the
amount of ₱3,000.00 as compensatory damages and to pay the costs;
2. In Crim. Case No. 4748, finding accused Marlon Albert de Leon y Homo guilty
beyond reasonable doubt of the crime of Robbery with Homicide, as defined and
penalized under No. 1 of Art. 294 of the Revised Penal Code, as amended by Sec.
9 of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as further amended by Sec. 1 of
R.A. 8294, having acted in conspiracy with other malefactors who have, to date,
remained at-large, and sentencing the said Marlon Albert de Leon y Homo to the
penalty of Death, taking into consideration the use of an unlicensed firearm in the
commission of the crime as an aggravating circumstance, and to pay the costs;
3. In Crim. Case No. 4749, finding accused Marlon Albert de Leon y Homo guilty
beyond reasonable ground of the crime of Robbery with Homicide, as defined and
penalized under No. 1 of Art. 294 of the Revised Penal Code, as amended by Sec.
9 of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as further amended by Sec. 1 of
R.A. 8294, having acted in conspiracy with other malefactors who have, to date,
remained at-large, and sentencing the said Marlon Albert de Leon y Homo to the
AMCVB CRIM 1 [Art. 8-11] (5)| 21
 penalty of Death, taking into consideration the use of an unlicensed firearm in the
commission of the crime as an aggravating circumstance; to indemnify the heirs
of Edralin Macahis in the amount of ₱50,000.00 as death indemnity; to pay
₱12,000.00 as compensatory damages for the stolen service firearm if restitution
is no longer possible and ₱50,000.00 as moral damages, and to pay the costs;
4. In Crim. Case No. 4750, finding accused Marlon Albert de Leon y Homo guilty beyond
reasonable doubt of the crime of Robbery with Homicide, as defined and penalized
under No. 1 of Art. 294 of the Revised Penal Code, as amended by Sec. 9 of R.A 7659,
in relation to Sec. 1 of P.D. 1866, as further amended by Sec. 1 of R.A. 8294, having
acted in conspiracy with other malefactors who have, to date, remained at-large, and
sentencing the said Marlon Albert de Leon y Homo to the penalty of Death, taking into
consideration the use of an unlicensed firearm in the commission of the crime as an
aggravating circumstance and to pay Eduardo Zulueta, victim of the robbery, in the
amount of ₱2,050.00 as compensatory damages for the stolen properties if restitution
is no longer possible and to pay the costs.
As against accused Rudy Gersalia and Christian Gersalia, who have, to date, remained at-large,
let a warrant of arrest be issued against them and let these cases be, in the meantime, sent to
the archives without prejudice to their reinstatement upon apprehension of the said accused.
As against accused Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias "Rey," Alias
"Jonard," Alias "Precie and Alias "Renato," whose true names, identities and present whereabouts
are still unknown and are still at-large, let these cases be, in the meantime, sent to the archives
without prejudice to their reinstatement upon the identification and apprehension of the said
accused.
SO ORDERED.
The cases were appealed to this Court, however, on September, 21, 2004, 28 in conformity with
the Decision dated July 7, 2004 in G.R. Nos. 147678-87 entitled The People of the Philippines v.
Efren Mateo y Garcia, modifying the pertinent provisions of the Revised Rules of Criminal
Procedure, more particularly Sections 3 and 10 of Rule 125 and any other rule insofar as they
provide for direct appeals from the RTCs to this Court in cases where the penalty imposed is
death, reclusion perpetua or life imprisonment, as well as the Resolution of this Court, en
banc dated September 19, 1995, in "Internal Rules of the Supreme Court" in cases similarly
involving the death penalty, pursuant to the Court's power to promulgate rules of procedure in all
courts under Article VII, Section 5 of the Constitution, and allowing an intermediate review by the
CA before such cases are elevated to this Court. This Court transferred the cases to the CA for
appropriate action and disposition.
The CA, on June 29, 2007,29 affirmed with modification, the Decision of the RTC, with the
dispositive portion reading:
WHEREFORE, the appealed decision is AFFIRMED with MODIFICATION. Accused Marlon Albert de
Leon y Homo is hereby found guilty beyond reasonable doubt of the crime of Robbery with
Homicide of only one count.
Given the passage of Republic Act 9346 which took effect on 24 June 2006, the penalty imposed
upon Marlon de Leon y Homo is hereby reduced or commuted to reclusion perpetua.
SO ORDERED.
On December 10, 2007, this Court accepted the appeal, 30 the penalty imposed being reclusion
perpetua.
The Office of the Solicitor General (OSG), on February 8, 2008, filed its Manifestation and Motion
In Lieu of the Supplemental Brief 31 dated February 4, 2008 stating that it will no longer file a
supplemental brief, considering that appellant has not raised any new issue that would require
the filing of a supplemental brief.
Appellant filed a Manifestation32 on February 22, 2008 stating that he re-pleads and adopts his
Appellant's Brief and Reply Brief as Supplemental Brief.
Appellant, in his Brief,33 assigned the following errors:
I
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT A CO-
CONSPIRATOR IN THE COMMISSION OF THE CRIME CHARGED DESPITE THE FAILURE
OF THE PROSECUTION TO PROVE THE SAME AND GUILT BEYOND REASONABLE
DOUBT.
II
ON THE ASSUMPTION THAT ACCUSED-APPELLANT IS GUILTY OF ROBBERY WITH
HOMICIDE, THE TRIAL COURT GRAVELY ERRED IN IMPOSING FOUR (4) DEATH
PENALTIES DESPITE THAT THE CRIME CHARGED WAS PRODUCED BY ONE SINGLE
ACT WHICH SHOULD BE METED WITH A SINGLE PENALTY.
The OSG, in its Appellee's Brief,34 insisted that all the elements of the crime and the appellant's
participation in the crime had been established.
Appellant, in his Reply Brief,35 argued that the penalty should not be death, but only reclusion
perpetua, because the aggravating circumstance of use of unlicensed firearm, although alleged in
the Information, was not alleged with specificity.
Article 294, paragraph 1 of the Revised Penal Code provides:
Art. 294. Robbery with violence against or intimidation of persons – Penalties. - Any person guilty
of robbery with the use of violence against or any person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on occasion of the
robbery, the crime of homicide shall have been committed, or when the robbery shall
have been accompanied by rape or intentional mutilation or arson.
In People v. De Jesus, 36 this Court had exhaustively discussed the crime of robbery with homicide,
thus:
For the accused to be convicted of the said crime, the prosecution is burdened to prove the
confluence of the following elements:
(1) the taking of personal property is committed with violence or intimidation against
persons;
(2) the property taken belongs to another;
(3) the taking is animo lucrandi; and
(4) by reason of the robbery or on the occasion thereof, homicide is committed. 37
In robbery with homicide, the original criminal design of the malefactor is to commit robbery, with
homicide perpetrated on the occasion or by reason of the robbery. 38 The intent to commit robbery
must precede the taking of human life.39 The homicide may take place before, during or after the
robbery. It is only the result obtained, without reference or distinction as to the circumstances,
causes or modes or persons intervening in the commission of the crime that has to be taken into
consideration.40 There is no such felony of robbery with homicide through reckless imprudence or
simple negligence. The constitutive elements of the crime, namely, robbery with homicide, must
be consummated.
AMCVB CRIM 1 [Art. 8-11] (5)| 22
It is immaterial that the death would supervene by mere accident; or that the victim of homicide
is other than the victim of robbery, or that two or more persons are killed, or that aside from the
homicide, rape, intentional mutilation, or usurpation of authority, is committed by reason or on
the occasion of the crime. Likewise immaterial is the fact that the victim of homicide is one of the
robbers; the felony would still be robbery with homicide. Once a homicide is committed by or on
the occasion of the robbery, the felony committed is robbery with homicide. All the felonies
committed by reason of or on the occasion of the robbery are integrated into one and indivisible
felony of robbery with homicide. The word "homicide" is used in its generic sense. Homicide, thus,
includes murder, parricide, and infanticide.
Intent to rob is an internal act, but may be inferred from proof of violent unlawful taking of
personal property. When the fact of asportation has been established beyond reasonable doubt,
conviction of the accused is justified even if the property subject of the robbery is not presented
in court. After all, the property stolen may have been abandoned or thrown away and destroyed
by the robber or recovered by the owner. 41 The prosecution is not burdened to prove the actual
value of the property stolen or amount stolen from the victim. Whether the robber knew the actual
amount in the possession of the victim is of no moment, because the motive for robbery can exist
regardless of the exact amount or value involved. 42
When homicide is committed by reason or on the occasion of robbery, all those who took part as
principals in the robbery would also be held liable as principals of the single and indivisible felony
of robbery with homicide, although they did not actually take part in the killing, unless it clearly
appears that they endeavored to prevent the same. 43
If a robber tries to prevent the commission of homicide after the commission of the robbery, he
is guilty only of robbery and not of robbery with homicide. All those who conspire to commit
robbery with homicide are guilty as principals of such crime, although not all profited and gained
from the robbery. One who joins a criminal conspiracy adopts the criminal designs of his co-
conspirators and can no longer repudiate the conspiracy once it has materialized. 44
Homicide is said to have been committed by reason or on the occasion of robbery if, for instance,
it was committed (a) to facilitate the robbery or the escape of the culprit; (b) to preserve the
possession by the culprit of the loot; (c) to prevent discovery of the commission of the robbery;
or, (d) to eliminate witnesses in the commission of the crime. As long as there is a nexus between
the robbery and the homicide, the latter crime may be committed in a place other than the situs
of the robbery.
From the above disquisition, the testimonies of the witnesses, and pieces of evidence presented
by the prosecution, the crime of robbery with homicide was indeed committed. There was no
mistaking from the actions of all the accused that their main intention was to rob the gasoline
station and that on occasion of such robbery, a homicide was committed. The question now is
whether there was conspiracy in the commission of the crime. According to appellant, the
prosecution failed to prove that he was a co-conspirator. However, this Court finds no merit to
appellant's argument.
If it is proved that two or more persons aimed by their acts towards the accomplishment of the
same unlawful object, each doing a part so that their combined acts, though apparently
independent, were in fact connected and cooperative, indicating a closeness of personal
association and a concurrence of sentiment, a conspiracy may be inferred though no actual
meeting among them to concert means is proved. That would be termed an implied
conspiracy.45 The prosecution was able to prove the presence of an implied conspiracy. The
witnesses were able to narrate in a convincing manner, the circumstances surrounding the
commission of the robbery and positively identified appellant as one of the robbers. Witness
Eduardo Zulueta testified that appellant was one of the robbers who poked a gun at him, thus:
Therefore, it can be inferred from the role appellant played in the commission of the robbery, that
a conspiracy existed and he was part of it. To be a conspirator, one need not participate in every
detail of the execution; he need not even take part in every act or need not even know the exact
part to be performed by the others in the execution of the conspiracy. Each conspirator may be
assigned separate and different tasks which may appear unrelated to one another but, in fact,
constitute a whole collective effort to achieve their common criminal objective. 48 Once conspiracy
is shown, the act of one is the act of all the conspirators. The precise extent or modality of
participation of each of them becomes secondary, 49 since all the conspirators are principals.
As to the credibility of the witnesses, the RTC's findings must not be disturbed. The well-settled
rule in this jurisdiction is that the trial court’s findings on the credibility of witnesses are entitled
to the highest degree of respect and will not be disturbed on appeal without any clear showing
that it overlooked, misunderstood or misapplied some facts or circumstances of weight or
substance which could affect the result of the case. 50
For his defense, appellant merely denied participating in the robbery. However, his presence
during the commission of the crime was well-established as appellant himself testified as to the
matter. Granting that he was merely present during the robbery, his inaction does not exculpate
him. To exempt himself from criminal liability, a conspirator must have performed an overt act to
dissociate or detach himself from the conspiracy to commit the felony and prevent the commission
thereof.51 Appellant offered no evidence that he performed an overt act neither to escape from
the company of the robbers nor to prevent the robbery from taking place. His denial, therefore,
is of no value. Courts generally view the defenses of denial and alibi with disfavor on account of
the facility with which an accused can concoct them to suit his defense. As both evidence are
negative and self-serving, they cannot attain more credibility than the testimonies of prosecution
witnesses who testify clearly, providing thereby positive evidence on the various aspects of the
crime committed. 52
Consequently, the CA was correct in ruling that appellant was guilty only of one count of robbery
with homicide. In the crime of robbery with homicide, there are series of acts, borne from one
criminal resolution, which is to rob. As decided53 by the Court of Appeals:
A continued (continuous or continuing) crime is defined as a single crime, consisting of a series
of acts but all arising from one criminal resolution. 54 Although there is a series of acts, there is
only one crime committed; hence, only one penalty shall be imposed. 55
In the case before Us, [appellant] and his companions intended only to rob one place; and that
is the Energex gasoline station. That they did; and in the process, also took away by force the
money and valuables of the employees working in said gasoline station. Clearly inferred from
these circumstances are the series of acts which were borne from one criminal resolution. A
continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse
and operated by an unintermittent force, however long a time it may occupy. 56 This can be said
of the case at hand.
Akin to the extant case is that of People v. De la Cruz, 57 wherein the robbery that took place in
several houses belonging to different persons, when not absolutely unconnected, was held not to
be taken as separate and distinct offenses. They formed instead, component parts of the general
plan to despoil all those within the vicinity. In this case, the Solicitor General argued that the
[appellant] had committed eight different robberies, because the evidence shows distinct and
different acts of spoilation in different houses, with several victimized persons. 58 The Highest
Tribunal, however, ruled that the perpetrated acts were not entirely distinct and unconnected
from one another. 59 Thus, the single offense or crime.
Now, this Court comes to the penalty imposed by the CA. The decision 60 merely states that, in
view of the enactment of R.A. 9346, the sentence of Death Penalty, imposed upon appellant, is
automatically commuted to reclusion perpetua, but is silent as to how it had arrived into such a
conclusion.
AMCVB CRIM 1 [Art. 8-11] (5)| 23
Under Article 294 of the Revised Penal Code, as amended by R.A. No. 7659, robbery with homicide
is punishable by reclusion perpetua to death, which are both indivisible penalties. Article 63 of the
same Code provides that, in all cases in which the law prescribes a penalty composed of two
indivisible penalties, the greater penalty shall be applied when the commission of the deed is
attended by one aggravating circumstance. 61 It must be remembered that the Informations filed
with the RTC alleged the aggravating circumstance of the use of unlicensed firearm. Pursuant to
the third paragraph of Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, such use of an
unlicensed firearm is a special and not a generic aggravating circumstance in the homicide or
murder committed. As explained by this Court in Palaganas v. People:62
Generic aggravating circumstances are those that generally apply to all crimes such as those
mentioned in Article 14, paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the Revised
Penal Code. It has the effect of increasing the penalty for the crime to its maximum period, but it
cannot increase the same to the next higher degree. It must always be alleged and charged in
the information, and must be proven during the trial in order to be appreciated. 63 Moreover, it can
be offset by an ordinary mitigating circumstance.
On the other hand, special aggravating circumstances are those which arise under special
conditions to increase the penalty for the offense to its maximum period, but the same cannot
increase the penalty to the next higher degree. Examples are quasi-recidivism under Article 160
and complex crimes under Article 48 of the Revised Penal Code. It does not change the character
of the offense charged. 64 It must always be alleged and charged in the information, and must be
proven during the trial in order to be appreciated. 65 Moreover, it cannot be offset by an ordinary
mitigating circumstance.
It is clear from the foregoing that the meaning and effect of generic and special aggravating
circumstances are exactly the same except that in case of generic aggravating, the same CAN be
offset by an ordinary mitigating circumstance whereas in the case of special aggravating
circumstance, it CANNOT be offset by an ordinary mitigating circumstance.
Aside from the aggravating circumstances abovementioned, there is also an aggravating
circumstance provided for under Presidential Decree No. 1866, 66 as amended by Republic Act No.
8294,67 which is a special law. Its pertinent provision states:
If homicide or murder is committed with the use of an unlicensed firearm, such use of an
unlicensed firearm shall be considered as an aggravating circumstance.
In interpreting the same provision, the trial court reasoned that such provision is "silent as to
whether it is generic or qualifying."68 Thus, it ruled that "when the law is silent, the same must be
interpreted in favor of the accused."69Since a generic aggravating circumstance is more favorable
to petitioner compared to a qualifying aggravating circumstance, as the latter changes the nature
of the crime and increase the penalty thereof by degrees, the trial court proceeded to declare that
the use of an unlicensed firearm by the petitioner is to be considered only as a generic aggravating
circumstance.70 This interpretation is erroneous, since we already held in several cases that with
the passage of Republic Act No. 8294 on 6 June 1997, the use of an unlicensed firearm in murder
or homicide is now considered as a SPECIAL aggravating circumstance and not a generic
aggravating circumstance. 71 Republic Act No. 8294 applies to the instant case since it took effect
before the commission of the crimes in 21 April 1998. Therefore, the use of an unlicensed firearm
by the petitioner in the instant case should be designated and appreciated as a SPECIAL
aggravating circumstance and not merely a generic aggravating circumstance.
In another case,72 this Court ruled that, the existence of the firearm can be established by
testimony, even without the presentation of the firearm. 73 In the said case, it was established that
Elmer and Marcelina Hidalgo died of, and Pedro Hidalgo sustained, gunshot wounds. The ballistic
examination of the slugs recovered from the place of the incident showed that they were fired
from a .30 carbine rifle and a .38 caliber firearm. The prosecution witnesses positively identified
appellant therein as one of those who were holding a long firearm. It was also established that
the same appellant was not a licensed firearm holder. Hence, this Court ruled that the trial court
and the CA correctly appreciated the use of unlicensed firearm as an aggravating circumstance.
After a careful study of the records of the present case, this Court found that the use of unlicensed
firearm was not duly proven by the prosecution. Although jurisprudence dictates that the existence
of the firearm can be established by mere testimony, the fact that appellant was not a licensed
firearm holder must still be established. The prosecution failed to present written or testimonial
evidence to prove that appellant did not have a license to carry or own a firearm, hence, the use
of unlicensed firearm as an aggravating circumstance cannot be appreciated.
Finally, it is worth noting that the RTC ordered appellant to indemnify the heirs of Edralin Macahis
the amount of ₱50,000.00 as death indemnity, ₱12,000.00 as compensatory damages for the
stolen service firearm if restitution is no longer possible and ₱50,000.00 as moral damages. Actual
damages were never proven during the trial. Hence, this Court's rulings74 on temperate damages
apply, thus:
In People vs. Abrazaldo,75 we laid down the doctrine that where the amount of actual damages
for funeral expenses cannot be determined because of the absence of receipts to prove them,
temperate damages may be awarded in the amount of ₱25,000 76 This doctrine specifically refers
to a situation where no evidence at all of funeral expenses was presented in the trial court.
However, in instances where actual expenses amounting to less than ₱25,000 are proved during
the trial, as in the case at bar, we apply the ruling in the more recent case of People vs.
Villanueva77which modified the Abrazaldo doctrine. In Villanueva, we held that "when actual
damages proven by receipts during the trial amount to less than ₱25,000, the award of temperate
damages for ₱25,000 is justified in lieu of the actual damages of a lesser amount." To rule
otherwise would be anomalous and unfair because the victim’s heirs who tried but succeeded in
proving actual damages of an amount less than ₱25,000 would be in a worse situation than those
who might have presented no receipts at all but would now be entitled to ₱25,000 temperate
damages. 78
WHEREFORE, the Decision dated June 29, 2007 of the Court of Appeals is
hereby AFFIRMED with MODIFICATION. Appellant Marlon Albert de Leon y Homo is hereby
found guilty beyond reasonable doubt of the crime of Robbery with Homicide, the penalty of which,
is reclusion perpetua in view of the absence of any mitigating or aggravating circumstance.
Appellant is also liable to pay the heirs of the victim, ₱25,000.00 as temperate damages, in
addition to the other civil indemnities and damages adjudged by the Regional Trial Court, Branch
76, San Mateo, Rizal.
SO ORDERED.
AMCVB CRIM 1 [Art. 8-11] (5)| 24
5. PP v. NAPALIT
G.R. Nos. 142919 and 143876 February 4, 2003
DECISION
CARPIO-MORALES, J.:
Before this Court on automatic review is the consolidated decision1 rendered by the Regional Trial
Court of Manila, Branch 18, in Criminal Case Nos. 96-150264 and 97-156381 finding accused-
appellant Ricardo Napalit guilty of robbery with homicide and violation of R. A. 6539 (the Anti-
Carnapping Act), respectively.
In Criminal Case No. 96-150264, the Information 2 charges accused-appellant with robbery in band
with homicide defined and penalized under Article 294 (as amended by R. A. 7659) and Article
296 of the Revised Penal Code allegedly committed as follows:
"That on or about April 3, 1996, in the City of Manila, Philippines, the said accused, conspiring
and confederating with others, whose true names, real identities and present whereabouts are
still unknown and helping one another, did then and there wilfully, unlawfully and feloniously, all
armed with unknown caliber firearms, with intent of (sic) gain and by means of force, violence
and intimidation, to wit: by then and there barging inside Tondo General Hospital located at
Honorio Lopez Blvd., Tondo, announcing a hold-up, ordering the people/employees thereat to lie
down on the floor, grabbing the cashier and ordering him to open the vault and filing cabinets
and once opened, take, rob and carry away the following, to wit:
cash money consisting of union’s collection, professional fees, patients’ fees, cash advances and
salaries of employees
amounting to, more or less --- P1,300,000.00
two (2) .38 caliber revolver, Squires Bingham with Serial Nos. 1093998 (from
Benjamin Saclolo) and 1093986 (from Eric Santos) valued at --- P10,353.00
one (1) .38 caliber revolver, Squires Bingham with Serial No. 1094407 more
or less
valued at --- P 5,000.00
all valued in the amount of more than P1,315,353.00, belonging to Tondo General Hospital,
represented herein by Rodrigo Calonzo y Sauza and Benjamin Saclolo and Eric Santos, against
their will, to the damage and prejudice of the said owners, in the aforesaid amount of more than
P1,315,353.00, Philippine Currency; that said accused, on the occasion and by reason of said
robbery, attacked, assaulted and used personal violence upon one Pio Gomez y Ora, one of the
security guards therein, by then and there fring (sic) two successive shots, hitting him at the back,
thereby inflicting upon him mortal gunshots (sic) wounds which were the direct and
immediate cause of his death thereafter. (Emphasis supplied)
In Criminal Case No. 97-156381, the Information3 charges accused-appellant with violation of the
Anti-Carnapping Act allegedly committed as follows:
That on or about April 3, 1996, in the City of Manila, Philippines, the said accused, conspiring and
confederating with others whose true names, identities and present whereabouts are still unknown
and helping one another, did then and there wilfully, unlawfully and feloniously with intent to gain,
forcibly take and carry away or carnap two (2) motor vehicles, more particularly described as
follows:
One (1) Unit, Toyota Tamaraw FX, BGC Taxi with Plate No. NYU-381 and
One (1) Unit, Toyota Tamaraw Delivery Van with Plate No. PBM-990
valued at P400,000.00 more or less from the drivers Felix Buenaobra y Bumaba and Nomeriano
Castor y Serbo, respectively, without their consent, to the damage and prejudice of the
drivers/owners thereof in the aforesaid amount of P400,000.00, Philippine currency.
Upon arraignment, accused-appellant pleaded not guilty to both charges. Joint trial of the cases
thereupon ensued.
From the evidence for the prosecution, the following facts are established:
At about 4:00 p. m. of April 3, 1996, a group of more than six armed men including accused-
appellant barged into the Tondo General Hospital in Honorio Lopez Boulevard, Balut, Tondo,
Manila.
Security guard Eric Santos who was posted at the hospital emergency room had just finished
talking to a person who was asking about the location of the x-ray room when one of the armed
men pointed a gun at him, announced that there was a holdup, and instructed him to keep still
as he took his firearm. 4 Simultaneously, accused-appellant pointed a gun at, and grabbed the
firearm5 of, another security guard, Benjamin Saclolo, who was seated in front of a desk at the
emergency room.
Santos grappled with his assailant for the possession of the latter’s gun in the course of which
Santos’ other firearm, a service revolver, was accidentally pulled out of its holster, resulting to a
gunshot. This caught the attention of accused-appellant who pointed his gun at Santos and
warned him that he would shoot him should he make one false move. 6 Santos then pushed his
assailant in the direction of accused-appellant, causing the former to fall at which instant Santos
ran but not before he was dispossessed of his service revolver.
In the meantime, about 20 meters away7 , four members of the group entered the cashier’s office
of the hospital and ordered the employees to lie down on the floor. One of them pointed a gun at
cashier Rodrigo Alonzo and ordered him to open the vault. 8 Before Alonzo could do as instructed,
he was searched for weapons in the course of which his wallet containing ₱450.00 in cash was
taken. Alonzo then opened the vault which the four emptied of ₱1,010,274.90 in cash. 9
While the four malefactors were at the cashier’s office, another security guard, Pio Gomez who
was manning the hospital gate and conversing with maintenance plumber Cesar Rosella, was
disarmed of his service pistol, pushed outside the hospital premises, and shot twice by one of the
armed men.10
The four armed men who emptied the vault then rushed out of the hospital and one of them also
shot Gomez who had by then collapsed on the ground. 11 Two of them headed toward a Toyota
Tamaraw vehicle driven by Numeriano Castor which was on a stop position, due to heavy traffic,
in front of the hospital at San Rafael Street. One of the duo ordered the passenger at the front
seat to get off the vehicle. The other, after forcing Castor to alight from the vehicle, drove it and
fled with his companion.
That same afternoon of April 3, 1996, at around 6:00 o’clock, the vehicle, valued at ₱300,000.00,
was found abandoned somewhere in Manila and was brought back to the hospital by police
authorities.12
More than a month and three weeks after the heist, or on May 27, 1996, accused-appellant was
arrested by police authorities. At the Western Police District, Ermita, Manila, he was positively
identified in a police line-up by the hospital security guards Santos and Saclolo as one of the two
armed men who announced a holdup and took their firearms at the emergency room of the
hospital on the afternoon of April 3, 1996. Santos and Saclolo thereupon executed sworn
statements. 13
AMCVB CRIM 1 [Art. 8-11] (5)| 25
On June 8, 1996, security guard Gomez who sustained four gunshot wounds 14 expired. The
findings on the autopsy conducted on his body by Dr. Juan Garcia of the Tondo Medical Center
were incorporated in a medico-legal certificate.15
For the hospitalization and medical expenses of Gomez, his family incurred ₱70,000.00. 16 And for
funeral and miscellaneous expenses, the amount of ₱48,000.00 17 was incurred.
As for the defense, lone witness accused-appellant came up with an alibi. He claimed that between
3:00 p. m. and 4:00 p. m. of April 3, 1996, he and his wife were at Balic-balic, Sampaloc, Manila
looking for a house to rent, and they returned home at about 7:00 p. m., thus rendering it
impossible for him to be present at the scene of the crime. 18
Discrediting accused-appellant’s alibi in favor of his positive identification by security guards
Santos and Saclolo as one of the malefactors, the trial court convicted him of robbery with
homicide in the first case and carnapping in the second in its Decision of April 25, 2000 on review,
the dispositive portion of which reads:
WHEREFORE, in Criminal Case No. 96-150264, the court finds accused Ricardo Napalit y Paral
guilty beyond reasonable doubt of the crime of robbery with homicide with the attendant
aggravating circumstance of the offense having been committed by an organized/syndicated crime
group of which the accused belongs, and sentences him to suffer the penalty of death by lethal
injection and to pay the costs.
On the civil liability of the accused, the court further sentences him to pay Evelyn Gomez, widow
of the slain security guard, Pio Gomez, actual and moral damages in the respective sums of
P118,000.00 and P300,000.00, and indemnity for the loss of life of the victim in the sum of
P50,000.00, with interest thereon at the legal rate of 6% per annum from this date until fully paid.
In Criminal Case No. 97-156381, the court likewise, finds accused Ricardo Napalit y Paral guilty
beyond reasonable doubt of the crime of Violation of R.A. 6539, or carnapping, and sentences
him to suffer imprisonment of 25 years and to pay the costs. 19
In his brief, accused-appellant ascribes the following errors to the trial court:
I. THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME CHARGED.
II. EVEN GRANTING THAT ACCUSED-APPELLANT WAS A CO-CONSPIRATOR IN THE
PLAN TO COMMIT ROBBERY, THE TRIAL COURT, NONETHELESS, ERRED IN
ATTRIBUTING TO HIM AND HOLDING HIM LIABLE FOR THE CRIME OF HOMICIDE
WHICH HAPPENED ON THE OCCASION OF THE ROBBERY.20
On the first assigned error, accused-appellant maintains that his identification by Santos and
Saclolo as one of the more than six armed men during the incident was not established with moral
certainty for, so he argues, said witnesses were at the time of the robbery fraught with fear and
nervousness. To buttress his claim, accused-appellant draws attention to Santos’ failure to hear
the gunshot which first hit Gomez when he (Santos) was struggling with his assailant for the
possession of the latter’s gun, which failure, accused-appellant alleges, prevented Santos from
taking a clear look at the armed man attending to Saclolo, identified as accused-appellant, since
his (Santos’) attention was fully focused on his assailant.
Accused-appellant readily admits, however, that both Santos and Saclolo were credible, conceding
that their respective testimonies were straightforward and consistent insofar as their recollection
of the disarming incident is concerned.21
When the issue of credibility is involved, appellate courts generally do not disturb the findings of
the trial court since the latter is in a better position to pass on it, having heard the witnesses
themselves and observed their deportment and manner of testifying, unless it is shown that it
overlooked certain facts or circumstances of substance that, if considered, could affect the
outcome of the case. 22
In the case at bar, the trial court found the testimony of witnesses Santos and Saclolo to be
worthy of credence. From the transcripts of the stenographic notes of their testimonies, this Court
finds that, indeed, they merit credence. They are straightforward and consistent. Consider the
following answers of Santos, quoted verbatim:
From the foregoing testimonies, it is clear that Santos and Saclolo saw accused-appellant at close
range as he stood before them at the time of the taking of their firearms. It bears noting that the
incident occurred in broad daylight. When conditions of visibility are favorable and the witnesses
do not appear to be biased, their assertions as to the identity of the malefactor should be accepted
as trustworthy.25
That witnesses to a sudden attack may be frightened or nervous as a result thereof does not
fatally impair the credibility of their testimony, especially with respect to the identification of their
assailant, for they tend to strive to see his appearance and observe the manner in which the crime
is being committed.26 In the case at bar, there is no evidence to show that Santos and Saclolo
were so petrified with fear as to result in subnormal sensory functions on their part. 27
Accused-appellant’s bare assertion of alibi thus deserves no merit. Already a weak defense, his
alibi becomes even weaker by reason of his failure to present any corroboration. 28
Accused-appellant argues nevertheless that assuming that he had indeed participated in the
incident, he should only be held liable for robbery and not for the special complex crime of robbery
with homicide. For, so he claims, the shooting of Gomez by his companions was beyond his
contemplation and he never intended to perpetrate any killing, hence, only the actual perpetrators
of the killing should be held liable therefor and the killing should not be appreciated to increase
his liability.29 And he adds that his carrying of a firearm was only for the purpose of threatening
the victims so that they would not offer any resistance to him and his companions.
Accused-appellant’s arguments do not persuade. Article 294 (1) of the Revised Penal Code, as
amended by R.A. 7659, provides:
Article 294. Robbery with violence against or intimidation of persons. – Penalties. – Any person
guilty of robbery with the use of violence against or intimidation of any person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery,
the crime of homicide shall have been committed, or when the robbery shall have been
accompanied by rape or intentional mutilation or arson.
x x x (Emphasis supplied.)
In robbery with homicide cases, the prosecution needs to prove these elements: (a) the taking of
personal property is perpetrated by means of violence or intimidation against a person; (b) the
property taken belongs to another; (c) the taking is characterized by intent to gain or animus
lucrandi; and (d) on the occasion of the robbery or by reason thereof, the crime of homicide, here
used in its generic sense, is committed. 30
In a long line of cases, this Court has ruled that whenever homicide is committed as a consequence
or on the occasion of the robbery, all those who took part as principals in the robbery will also be
held guilty as principals in the special complex crime of robbery with homicide although they did
not take part in the homicide, unless it is clearly shown that they endeavored to prevent the
homicide. 31
Direct proof of a previous agreement to commit a crime is not indispensable in conspiracy. It may
be deduced from the mode and manner by which the offense was perpetrated, or inferred from
AMCVB CRIM 1 [Art. 8-11] (5)| 26
the acts of the accused themselves, when such point to a joint purpose and design, concerted
action and community of interest.32
From the time accused-appellant and his companions entered the hospital and announced a
holdup up to the time they fled, in the course of which security guard Gomez was shot, there can
be no other conclusion than that they hatched a criminal scheme, synchronized their acts for unity
in its execution, and aided each other for its consummation.
As correctly pointed out by the trial court, the united, concerted and coordinated
contemporaneous acts of accused-appellant and his companions in marauding the hospital,
neutralizing its security guards and robbing it of ₱1,010,274.90 unerringly indicate a well-planned
robbery operation and a conspiracy among them. 33
As conspiracy has been established, all the conspirators are liable as co-principals regardless of
the manner and extent of their participation since, in conspiracy, the act of one is the act of all. 34
That accused-appellant did not shoot Gomez is immaterial. Article 294 (1) of the Revised Penal
Code is clear and leaves no room for any other interpretation. For, for robbery with homicide to
exist, it is sufficient that a homicide results by reason or on the occasion of robbery.35 The law
of course exculpates a person who takes part in the robbery from the special complex crime of
robbery with homicide and punishes him only for simple robbery when there is proof that he tried
to prevent the homicide. No such proof, however, was offered.
As an appeal in a criminal proceeding throws the whole case open for review, it becomes the duty
of this Court to correct errors it may find in the appealed judgment even if they have not been
specifically assigned.36
One such error committed by the trial court which was not assigned by accused-appellant is its
appreciation of the aggravating circumstance of the offense being committed by a person
belonging to an organized or syndicated crime group under Article 62 of the Revised Penal Code,
as amended by R.A. 7659.
While accused-appellant and company confederated and mutually helped one another for the
purpose of gain, that they formed part of a group organized for the general purpose of
committing crimes for gain, which is the essence of a syndicated or organized crime
group,37 was neither alleged nor proved.
There being then no aggravating circumstance to be appreciated, the proper imposable penalty
for the commission of the crime of robbery with homicide is reclusion perpetua, following Article
63 (2) of the Revised Penal Code which states that when there are neither mitigating nor
aggravating circumstances in the commission of the deed, the lesser penalty shall be applied.
And the trial court erred too in finding accused-appellant guilty of the Anti-Carnapping Act.
Carnapping, as defined under Section 2, paragraph 2 of this special law, is the taking, with intent
to gain, of a motor vehicle belonging to another without the latter’s consent, or by means of
violence against or intimidation of persons, or by use of force upon things. The elements of
carnapping are thus: (a) the taking of a motor vehicle which belongs to another; (b) the taking is
without the consent of the owner or by means of violence against or intimidation of persons or
by using force upon things; (c) the taking is done with intent to gain. 38
From the following testimony of the Toyota Tamaraw driver Castor:
it is clear that accused-appellant took no part in seizing the vehicle. Since there is no showing that
the taking was made in pursuance of the common criminal plan of the malefactors to rob the
hospital, the two armed robbers who took the vehicle having merely chanced upon it while they
were fleeing from the scene of the crime, accused-appellant cannot be faulted therefor. Well-
settled is the rule that co-conspirators are liable only for acts done pursuant to the conspiracy,
not for other acts done outside their contemplation or which are not the necessary and logical
consequence of the intended crime.40
As to the civil aspect of the case, for loss of earning capacity, Article 2206 (1) of the Civil Code is
the applicable law. It provides:
Article 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least
three thousand pesos, even though there may have been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and
the indemnity shall be paid to heirs of the latter; such indemnity shall in every case be
assessed and awarded by the court, unless the deceased on account of permanent
physical disability not caused by the defendant, had no earning capacity at the time of
his death.
Accused-appellant is thus liable for damages for the loss of the earning capacity of the deceased
Pio Gomez which shall be paid to his heirs. In fixing the indemnity, account is taken of the victim’s
actual income at the time of his death and his probable life expectancy 41 in accordance with the
formula adopted by this Court, to wit:
Net earning capacity = 2/3 x (80-age of x a reasonable portion the victim at the of the annual net
time of his death) income which would have been received by the heirs for support 42
At the time of his death, Gomez was 48 years old. 43 Per the certification of employment and
compensation44presented at the trial court, his average monthly gross income was ₱5,383.12 or
an annual gross income of ₱64,597.44. In the absence of proof of his living expenses, his net
income is deemed to be 50 percent of his gross income. 45 Using the above-stated formula, the
indemnity for the loss of earning capacity of Gomez is ₱688,931.70, arrived at as follows:
2(80-48)
Net earning capacity = x [₱64,597.44 - ₱32,298.72]
3
2 (32)
= x ₱32,298.72
3
= 21.33 x ₱32,298.72
= ₱688,931.70
With respect to the award by the trial court of ₱200,000.00 in moral damages, in line with
prevailing jurisprudence 46 , it is hereby reduced to ₱50,000.00.
As for the award of actual damages in the amount of ₱118,000.00, since it is borne out by the
records, it is affirmed and so is the award of civil indemnity in the amount of ₱50,000.00.
WHEREFORE, the decision of the trial court in Criminal Case No. 96-150264 finding accused-
appellant, Ricardo Napalit y Paral, guilty beyond reasonable doubt of the special complex crime
of robbery with homicide is hereby AFFIRMED with MODIFICATION. As modified, accused-
appellant is hereby sentenced to suffer the penalty of reclusion perpetua; and to pay the legal
heirs of Pio Gomez ₱118,000.00 for actual damages, ₱50,000.00 as indemnity for death,
₱688,931.70 for lost earnings, and ₱50,000.00 for moral damages.
The conviction of accused-appellant Ricardo Napalit y Paral in Criminal Case No. 97-156381 for
violation of R. A. 6539 or the Anti-Carnapping Law is REVERSED and SET ASIDE and he is hereby
ACQUITTED for insufficiency of evidence.
Costs de oficio. SO ORDERED.
AMCVB CRIM 1 [Art. 8-11] (5)| 27
6. PP v. ANGELES
G.R. No. 104285-86 May 21, 1993
FELICIANO, J.:
Victor Angeles appeals from a decision of the Regional Trial Court ("RTC") of Manila, Branch 25,
convicting him of two (2) separate offenses: one of rape and the other of robbery against Analie
Baltazar.
Angeles was charged with rape in a complaint filed by Analie Baltazar dated 28 February 1989;
he was also accused of robbery in an inhabited place in an information filed by Assistant Prosecutor
Eufrocino A. Sulla, also dated 28 February 1989. These two (2) documents read as follows:
The basic facts as found and set out by the trial court in its decision are as follows:
That on or about February 24, 1989, in the City of Manila, Philippines, the said accused
did then and there wilfully, unlawfully and feloniously, by means of force, violence and
intimidation, to wit: by poking an ice pick against her person, dragging her outside the
house and bringing her to the Three Bird Lodge located at Sales St., Sta. Cruz, in said
City, threatening to kill her should she resist and accused succeed ( sic) in having carnal
knowledge of the undersigned complainant, against her will and consent. 1
xxx xxx xxx
That on or about February 24, 1989, in the City of Manila, Philippines, the said accused,
conspiring and confederating with two others whose true names, identities and present
whereabouts are still unknown and helping one another, did then and there, wilfully,
unlawfully and feloniously break into and enter House No. 652 (along) Algeciras St.,
Sampaloc, in said City, which was then occupied as a dwelling place of one ANALIE
BALTAZAR Y CORDON and other members of her family, by destroying the screen of
the door of the said house and by passing through the said door, and once inside, with
intent of gain and without the knowledge and consent of the owner thereof, took,
robbed and carried away one (1) Betamax Sony valued at P10,500.00 and one
Typewriter Merit valued at P5,000.00, or all valued at P15,500.00, belonging to said
Analie Baltazar y Cordon to the damage and prejudice of said owner in the aforesaid
sum of P15,500.00, Philippine currency. 2
The complaint and information were raffled off to two (2) different branches of the Manila
RTC. 3 Appellant Angeles entered a plea of not guilty to the complaint of rape before the Manila
RTC, Branch 5, on 19 July 1989.4 A few months earlier, he had pleaded not guilty to the
information for robbery before Branch 25 of the Manila RTC on 10 April 1989. 5
In an order dated 13 April 1989, Judge Felix B. Mintu of Branch 5, Manila RTC, upon the ground
that the two (2) criminal cases were "intimately related," ordered that Criminal Case No. 89-70692
(the robbery case) be consolidated for joint trial with the lower numbered case (the rape case)
then pending before his sala.6
Earlier, on 12 April 1989, Angeles filed a motion to quash the rape complaint in Criminal Case No.
89-70961, upon the ground that the offense there charged was "the same offense" for which he
had been arraigned just two (2) days earlier before Branch 25 of the Manila RTC in Criminal Case
No. 89-70962, and that he would be exposed to "double jeopardy" if he were arraigned anew in
Criminal Case No. 89-70961.7
After hearing, Judge Mintu denied the motion to quash holding that two (2) distinct crimes of rape
and of robbery were alleged to have been committed by appellant.8 Appellant moved for
reconsideration of that order, without success.
After joint trial of the rape and robbery cases, appellant was found guilty of both offenses in a
decision dated 7 March 1991 of the Manila RTC, the dispositive portion of which states:
WHEREFORE, the prosecution having proven the guilt of the accused VICTOR ANGELES
Y RAMOS beyond reasonable doubt on both cases, sentences him to suffer the penalty
of:
Criminal Case No. 89-70961, Rape LIFE IMPRISONMENT and pay as damages
complainant ANALIE BALTAZAR Y CORDON the sum of FIFTEEN THOUSAND
(P15,000.00) PESOS; WITH COST;
Criminal Case No. 89-70962, Robbery LIFE IMPRISONMENT, the stolen articles being
not recovered, to pay as damages complainant ANALIE BALTAZAR Y CORDON the sum
of FIFTEEN THOUSAND PESOS (P15,000.00) PESOS; WITH COST. 9
Analie Baltazar testified that on or about 1:30 in the morning of February 24, 1989,
while she was sleeping at the sala of the second floor of their house in Ageceria (sic)
Street, Sampaloc, Manila, she woke up to urinate. When she stood up, a person behind
held and poked an icepick on her neck. According to her, she begged not to be killed;
that she was dragged towards the rear door of their house. Aside from the person who
dragged her, she also saw two persons on the ground floor carrying their typewriter
and Sony Super betamax. The typewriter, according to her cost about P10,000.00 to
P11,000.00. She was dragged by the man at the railroad track towards Fermesa Street,
(then) to de la Fuente Street, where she was made to board the ( sic) taxi and brought
to Dakota (St.) at Recto Avenue. That while she was being dragged by the person,
whom she later identified as the accused Victor Angeles, the two other companions of
the accused were on (sic) their back. According to her, the two persons placed
themselves on (sic) a dark place and she was told not to shout. That everytime she
talked with a loud voice, she was being ( sic) slapped. Later, the two companions of the
accused left. Accused Angeles, while still poking the ice pick on her neck, covered by
the blanket she was carrying then, brought her to the Three Bird Lodge Motel, a few
steps from Dakota Recto going towards Evangelista Street, Quiapo, Manila. At the Three
Bird Lodge, accused Angeles talked with the roomboy while at that time the ice pick
was still poked at her. She was brought to a room, where accused removed her t-shirt,
short and underwear. Later, she was made to lie down on the bed and the accused
removed also (sic) his clothes. The room, according to her, was well-lighted. The
accused, after removing his clothes, started to kiss her on her neck, to her bust and her
private parts. That the accused forced his penis to enter her private parts. That the
penis, according to her, penetrated lightly on her private parts and thereafter, she was
told to dress up and let (sic) her go home.
The following day, the accused was again seen in complainant Analie's neighborhood.
The accused, according to her, was even rubbing his shoes on the ground and looking
at the direction of their house. She immediately informed her father about the presence
of the accused. Her father, according to her, immediately went to the place where then
accused was, but accused has ( sic) already left and thus, was able that time to escape
the wrath of her father. On February 26, 1989, at about 10:00 o'clock in the morning,
again (sic), complainant Analie saw the accused in front of their house. She immediately
pointed the accused to her father, who in turn went down the house and confronted
the accused. While talking, her father gave the accused a fist blow and the people in
the neighborhood chased the accused. After a brief chase, the accused was
apprehended and mauled by her neighbors. Later, the accused was brought to the
police station and charged for the present crime.
Dr. Marcial Cenido, Medico-Legal Officer, Western Police District, testified that he made
a physical and genital examination on the person of Analie Baltazar y Cordon, thru the
request of Lt. Generoso Javier, Western Police District, and found her hymen with deep
AMCVB CRIM 1 [Art. 8-11] (5)| 28
 healing laceration at 6:00 o'clock position extending to the base at the forchette right
of midline and slightly bled upon examination, Exhibit "3" ( sic). Its cause, according to
him, was entry of a penis inside it.10
Appellant submitted a different story to the trial court, which summed up his story in the following
terms:
Accused Victor Angeles denied emphatically the accusation against him. According to
him, on February 23, 1989, at 9:00 in the evening, he was at his house asleep. he woke
up at 6:30 in the morning of February 24, 1989. On said date, he was with his mother
Isabel Ramos. The mother of the accused, Isabel Ramos Angeles, collaborated ( sic) the
testimony of the accused that on the night of February 24, 1989, the accused was in
his house asleep. He claimed that on February 26, 1989, he was looking for Ree, a
fellow electrician near complainant Analie's house. After a brief talk with Analie's father,
about the robbery being committed in the neighborhood, the people in the
neighborhood suddenly attacked him. He ran away, but after a brief chase, was
apprehended, and mauled and later brought to the police precinct. Later, he was
examined by Dr. Marcial Cenido, WPD Medico Legal Officer. Dr. Cenido admitted having
examined the accused, but aside from having found scally wounds on the person of the
accused, he did not elaborate on any injury suffered by the accused. 11
In this appeal, Victor Angeles claims that:
1. The trial court erred in not holding that the arraignment of the accused-appellant in Criminal
case No. 89-70962, for robbery, bars the second prosecution of the same accused-appellant
in Criminal Case No. 89-70961, for rape.
2. The trial court erred in not holding that the testimony of the accused-appellant is more
credible and logical than the testimony of Analie Baltazar.
3. The trial court erred in not acquitting the accused-
appellant. 12
Two (2) principal issues are posed for the Court's consideration in this case: firstly, whether or
not the trial court erred in holding that two (2) separate felonies of robbery and rape had been
committed by appellant; and secondly, whether the trial court had erred in believing the testimony
of Analie Baltazar to the effect that appellant Angeles had raped her.
In respect of the first issue, we note preliminarily that appellant's argument that the prosecution
for rape was barred by appellant's prosecution and arraignment for robbery, under the doctrine
of "double jeopardy," is bereft of merit. That doctrine, in general, prohibits a second
prosecution for the same offense as that charged in the first prosecution. In the case at bar,
robbery and rape cannot properly be considered the same offense; neither is one included in the
other. What appellant was apparently trying to say was that he was properly chargeable, not for
two (2) separate offenses of robbery and rape, but rather of the special complex crime of "robbery
with rape." In other words, appellant was probably trying to say that the charge for robbery should
have been a charge for "robbery with rape" such that separate complaint for rape was, at least
partially, a duplication of the first charge. Thus, the real issue is whether he was properly charged
with and found guilty of two (2) separate offenses, or whether he should have been charged
instead with "robbery with rape." In either case, of course, the prosecution must show the
presence of all the elements of the crime of robbery, as well as all the elements of the crime of
rape.
This issue, however, is not an entirely academic one. In its practical consequences, it relates to
whether only one penalty should have been imposed upon appellant under Article 294, paragraph
2 of the Revised Penal Code; or whether two (2) penalties are appropriately imposable upon
appellant, one for robbery in an inhabited house under Article 299 of the Revised Penal Code and
another for rape under Article 335 of the Revised Penal Code as amended.
Appellant contends that the case at bar is controlled by U.S. v.
Tiongco,13 where the Court held that the offense committed was the special complex crime of
robbery with rape. Appellant cites the following passages from U.S. v. Tiongco :
xxx xxx xxx
After the robbers had seized such things as they wished to carry off and when ready to
go out, they took the three women below blindfolded. The band then headed fro the
river near by to embark in the banca in which they had come. When they left the house,
Cristeto Ledesma and Narciso Castano compelled two of the women, Juaneza and
Eusula, to accompany them, and while the band was on its way to the banca these two
men separated from the rest, took these two women with them to a place near a marsh
not far from the river bank, and there raped them, employing force and intimidation to
accomplish their purpose. Cristeto Ledesma raped Rosario Juaneza, and Narciso
Castano, Nieves Eusula, after which Cristeto and Narciso went to the banca, where the
other robbers were waiting for them, and all left.
xxx xxx xxx
As the crime of the robbery, with that of rape of said two women — a crime against
chastity committed on the occasion of the robbery — was perpetrated by the
malefactors in the said house of Catalino Balinon, both crimes should be punished as
one single complex crime, as defined and qualified by paragraph 2 of article 503 of the
Penal Code; for, besides the robbers seizing the money and the other effects they found
in said house, two of them sullied the honor of the two women therein, and the
companions of the two men who committed the rape made no opposition nor prevented
these latter from consummating this other crime, apparently unconnected with and
unrelated to that robbery, but which, as well as sanguinary crimes, is often committed
on such occasions, and it is for this reason that the penal law, in odium of such offenses
against property and chastity, has considered them complex and punished them by one
single penalty.14 (Emphasis supplied)
Close examination of the facts in Tiongco and of the facts in the case at bar lead us to believe
that Tiongco does not control the case at bar. In the case at bar, the robbery carried out in the
house where Analie Baltazar and her parents lived was consummated and completed; the taking
of the goods from the house was completed and the three (3) robbers (including appellant
Angeles) walked from Algeciras Street, Sampaloc, down the railroad track towards Fermesa street
and then to Dela Fuente Street where they boarded a taxi which brought them to Recto Avenue.
At Recto Avenue, the three (3) men and the victim Analie Baltazar got off the taxi and the two
(2) co-felons of Angeles left and went their own way while appellant Angeles proceeded to a motel
located in Dakota Street not far away from recto Avenue in the direction of Quiapo District.15 The
acts constitutive of the robbery at the house of the Baltazars and the acts comprising the rape
inflicted upon Analie Baltazar were separated both by time and space. The conspiracy between
the three (3) malefactors clearly covering the robbery had come to an end with the departure of
two (2) of the conspirators. The rape was carried out after the completion of the robbery and
after the break up of the malefactors. The situs of the rape was far away from the situs of the
robbery. We believe and so hold that under the circumstances of this case, appellant Angeles was
properly charged with two (2) distinct offenses of robbery and of rape, rather than with the special
complex crime of robbery with rape under Article 294, paragraph 2 of the Revised Penal Code.
Conceptually, the robbery had not been "accompanied by rape," neither was the rape committed
"by reason or on [the] occasion of such robbery;" rather, the robbery and the rape were
committed successively or in sequence.
AMCVB CRIM 1 [Art. 8-11] (5)| 29
Appellant's next contention is that in respect of the conviction of rape, the trial court erred in
finding Analie Baltazar to be a credible witness and that the trial court had misapprehended two
(2) important facts of record which indicated that her testimony was incredible in itself. The two
(2) facts submitted by appellant are: firstly, at the motel, Analie had failed to make an outcry
which could have attracted intervention on the part of the roomboy; and secondly, Analie's
declaration that appellant Angeles had returned to the vicinity of her family home a few hours
after the robbery, at day break of 24 February 1989, was "highly suspicious" and improbable for
then appellant would have been risking discovery, denunciation and arrest which in fact eventually
came about.16
Once more, the Court is not persuaded. Private complainant's failure to scream for help or
otherwise make an outcry must be evaluated in the context of all the surrounding circumstances
of this case. When Analie woke up at her house after midnight to go to the bathroom, appellant
grabbed hold of her and her sleeping blanket and threatened her with an ice pick on her neck.
She was dragged from her family home, across the railroad tracks and across several streets by
the appellant and his two (2) companions. Inside the taxi that the group boarded, Analie was put
bedside the driver, with appellant's arm on her shoulder while appellant and the other two (2)
malefactors were on their rear seat. The taxi driver did not notice that underneath the blanket
draped over Analie's shoulder, appellant's ice pick remained threateningly poised at her. After
alighting from the taxi at Dakota Street, Analie was brought to a dark and unlighted place where
the three (3) malefactors slapped her on the face everytime she tried to raise her voice. At the
motel, while talking to the roomboy, appellant continued to hold the ice pick against her neck or
side underneath the blanket.17 Inside the motel room, Analie, 17 years of age at the time of the
trial, did not physically resist being disrobed by appellant Angeles who had placed his ice pick
nearby on top of the lavatory. She laid down on the bed when appellant threatened to kill her.
She testified that she was then already weakened, tired and worn out and feared that she would
be stabbed if she struggled with appellant. Neither could she seek to grab the icepick while
appellant was on top of her on the bed, for appellant held her hands and continue to hold the
icepick at her neck.18 This Court has many times held in the past that rape is committed when
intimidation is exercised upon the victim and the latter submits herself, against her will, to the
rapist's embrace because of the fear for life and personal safety. 19 The reality of continuing
intimidation used against Analie Baltazar is evident all through the record of this case.
As to appellant's argument that Analie's testimony to the effect that he had returned to the scene
of the robbery was improbable, it may be observed, firstly, that even if it is conceded (and it is
not necessary so to concede) that this portion of Analie's testimony was improbable, that
testimony did not relate to the material facts constitutive of the crime of rape. There is no rule of
law which requires a court to disregard the entirety of the testimony of a witness because a
portion thereof may be doubtful.20 Analie declared before the trial court that she saw the appellant
at the vicinity of her house at least three (3) times after the robbery and rape and that she had
immediately informed her father of appellant's appearance. 21 On the third occasion, on 26
February 1989, Analie's father was able to chase down the appellant Angeles and confront him
about his daughter's violation. A false sense of security born out of his having successfully eluded
Analie's father twice before, would account for appellant's imprudent third visit to the scene of
the robbery.
Thus, appellant has failed to establish any significant fact which the trial court overlooked or
misconstrued and which would change the result reached by the trial court. This Court is thus
bound to affirm the factual conclusions of the trial court, more particularly on the credit worthiness
of Analie's testimony, 22 since the trial court had the opportunity to observe carefully her demeanor
and deportment in court while testifying. 23
Appellant's defense of denial and alibi, it is firmly established doctrine, cannot prevail over the
positive identification made by Analie Baltazar. Analie had expressly and positively stated that it
was appellant Angeles who dragged her from her house in the company of two (2) other men
who were carrying away her family's typewriter and video cassette recorder, and that it was
appellant Angeles who had disrobed her at the motel and then copulated with her, with an icepick
poised at her neck or within easy reach of the appellant. 24 Finally, when appellant and his mother
declared that appellant was sleeping at the latter's house at Araneta Street, Tatalon estate,
Quezon City, on the evening of 23-24 February 1989,25 the Court notes that this location is only
a few kilometers away from Baltazars' residence at Algeciras Street, Sampaloc, Manila, such that
appellant could move from one location to the other within a short period of time, with public
transportation. Appellant's defense of alibi cannot be sustained in view of his failure to show the
physical impossibility of his being at the scene of the crime or about the time of the commission
thereof.26
There are, however, two (2) errors on the part of the trial court which need to be addressed. The
first error relates to the penalty properly imposable on appellant for the crime of robbery in
Criminal Case No.89-70962. Under Article 299 of the Revised Penal Code, the penalty imposable
for robbery in an inhabited place is reclusion temporal.Taking into account the provisions of the
Indeterminate Sentence Law, considering that no modifying circumstances were alleged and
proved and exercising the discretion of this Court, the penalty properly imposable upon appellant
Angeles for the robbery is an indeterminate sentence, the minimum of which shall be eight (8)
years and one (1) day of prision mayor and the maximum of which shall be fourteen (14) years,
eight (8) months and one (1) day of reclusion temporal.
The second error relates to the proper characterization of the offense with which appellant was
charged and for which he was convicted in Criminal Case No. 89-70961. Analie had testified before
the trial court that while at the motel, the appellant had told her that he and the other malefactors
had been "tipped off that her family residence contained many appliances and that they had
planned to carry away many of them but had changed their minds." Appellant decided to take her
with him because she was "more important to ( sic) these things."27 The information in Criminal
Case No. 89-70961 had sufficiently alleged, and the prosecution shown at the trial, that before
Analie was raped, she was taken from her house against her will and with lewd designs. Taking
all these circumstances into account, it is clear to the Court that appellant Angeles committed the
complex crime of forcible abduction with rape, defined and penalized under Article 342 (forcible
abduction) and Article 335 (rape) of the Revised Penal Code in relation to the second clause of
Article 48 (complex crimes) of the same Code. The forcible abduction was, in the circumstances
of this case, a necessary means to commit the rape. 28 In the case variance between the caption
of the information and the allegations set out in the body thereof, which allegations sufficiently
described the offense(s) and its elements, the latter prevails over the former.29 Article 48 of the
Revised Penal Code provides that in complex crimes, the penalty for the most serious crime shall
be imposed in its maximum period. In the case at bar, the more serious of the two (2) crimes
(forcible abduction and rape) established in Criminal Case No. 89-70961 was rape committed with
a deadly weapon (here, the icepick) which is punishable with reclusion perpetua to death under
paragraph 3 of Article 335 of the Revised Penal code. Since no modifying circumstances were
either alleged or proved in Criminal Case No. 89-70961,30 and considering the non-enforceability
of the death penalty, the penalty properly imposable on appellant is reclusion perpetua. The trial
court's reference to "life imprisonment" is, of course, wrong.
In line with recent case law, the indemnity for moral damages awarded to Analie Baltazar in
Criminal Case No. 89-70961 should be increased to P30,000.00.31
WHEREFORE, the decision of the trial court dated 7 March 1991 is hereby MODIFIED so as to
read as follows:
Criminal Case No. 89-70961, Rape, Reclusion perpetua, and pay as moral damages
complainant ANALIE BALTAZAR Y CORDON the sum of THIRTY THOUSAND
(P30,000.00) PESOS; WITH COSTS.
Criminal Case No. 89-70962, Robbery, Imprisonment for an indeterminate period
ranging from 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 , the
AMCVB CRIM 1 [Art. 8-11] (5)| 30
 stolen articles being not recovered, to pay complainant ANALIE BALTAZAR Y CORDON,
by way of reparation, the sum of FIFTEEN THOUSAND (P15,000.00) PESOS; WITH
COST.

As so modified, the decision of the trial court is hereby AFFIRMED. Costs against appellant.
SO ORDERED.

AMCVB CRIM 1 [Art. 8-11] (5)| 31

7. ESTRADA v. SANDIGANBAYAN
G.R. No. 148965 February 26, 2002
DECISION
PUNO, J.:
A law may not be constitutionally infirm but its application to a particular party may be
unconstitutional. This is the submission of the petitioner who invokes the equal protection clause
of the Constitution in his bid to be excluded from the charge of plunder filed against him by the
respondent Ombudsman.
The antecedent facts are as follows:
In November 2000, as an offshoot of the impeachment proceedings against Joseph Ejercito
Estrada, then President of the Republic of the Philippines, five criminal complaints against the
former President and members of his family, his associates, friends and conspirators were filed
with the respondent Office of the Ombudsman.
On April 4, 2001, the respondent Ombudsman issued a Joint Resolution1 finding probable cause
warranting the filing with the Sandiganbayan of several criminal Informations against the former
President and the other respondents therein. One of the Informations was for the crime of plunder
under Republic Act No. 7080 and among the respondents was herein petitioner Jose "Jinggoy"
Estrada, then mayor of San Juan, Metro Manila.
The Information was amended and filed on April 18, 2001. Docketed as Criminal Case No. 26558,
the case was assigned to respondent Third Division of the Sandiganbayan. The arraignment of
the accused was set on July 10, 2001 and no bail for petitioner’s provisional liberty was fixed.
On April 24, 2001, petitioner filed a "Motion to Quash or Suspend" the Amended Information on
the ground that the Anti-Plunder Law, R.A. No. 7080, is unconstitutional and that it charged more
than one offense. Respondent Ombudsman opposed the motion.
On April 25, 2001, the respondent court issued a warrant of arrest for petitioner and his co-
accused. On its basis, petitioner and his co-accused were placed in custody of the law.
On April 30, 2001, petitioner filed a "Very Urgent Omnibus Motion"2 alleging that: (1) no probable
cause exists to put him on trial and hold him liable for plunder, it appearing that he was only
allegedly involved in illegal gambling and not in a "series or combination of overt or criminal acts"
as required in R.A. No. 7080; and (2) he is entitled to bail as a matter of right. Petitioner prayed
that he be excluded from the Amended Information and be discharged from custody. In the
alternative, petitioner also prayed that he be allowed to post bail in an amount to be fixed by
respondent court.3
On June 28, 2001, petitioner filed a "Motion to Resolve Mayor Jose ‘Jinggoy’ Estrada’s Motion To
Fix Bail On Grounds That An Outgoing Mayor Loses Clout An Incumbent Has And That On Its Face,
the Facts Charged In The Information Do Not Make Out A Non-Bailable Offense As To Him."4
On July 3, 2001, petitioner filed a "Motion to Strike Out So-Called ‘Entry of Appearance,’ To Direct
Ombudsman To Explain Why He Attributes Impropriety To The Defense And To Resolve Pending
Incidents."5
On July 9, 2001, respondent Sandiganbayan issued a Resolution denying petitioner’s "Motion to
Quash and Suspend" and "Very Urgent Omnibus Motion." 6 Petitioner’s alternative prayer to post
bail was set for hearing after arraignment of all accused. The court held:
"WHEREFORE, in view of the foregoing, the Court hereby DENIES for lack of merit the following:
(1) MOTION TO QUASH AND SUSPEND dated April 24, 2001 filed by accused Jose ‘Jinggoy’
Estrada; (2) MOTION TO QUASH dated June 7, 2001 filed by accused Joseph Ejercito Estrada;
and (3) MOTION TO QUASH (Re: Amended Information dated 18 April 2001) dated June 26, 2001
filed by accused Edward S. Serapio.
Considering the denial of the MOTION TO QUASH AND SUSPEND of accused Jose ‘Jinggoy’ Estrada,
his VERY URGENT OMNIBUS MOTION, praying that he be: (1) dropped from the information for
plunder for want of probable cause and (2) discharged from custody immediately which is based
on the same grounds mentioned in this MOTION TO QUASH AND SUSPEND is hereby DENIED.
Let his alternative prayer in said OMNIBUS MOTION that he be allowed to post bail be SET for
hearing together with the petition for bail of accused Edward S. Serapio scheduled for July 10,
2001, at 2:00 o’clock in the afternoon after the arraignment of all the accused." 7
The following day, July 10, 2001, petitioner moved for reconsideration of the Resolution.
Respondent court denied the motion and proceeded to arraign petitioner. Petitioner refused to
make his plea prompting respondent court to enter a plea of "not guilty" for him. 8
Hence, this petition. Petitioner claims that respondent Sandiganbayan acted without or in excess
of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction in:
"1) not declaring that R.A. No. 7080 is unconstitutional on its face and, as applied to
petitioner, and denying him the equal protection of the laws;
2) not holding that the Plunder Law does not provide complete and sufficient standards;
3) sustaining the charge against petitioner for alleged offenses, and with alleged
conspirators, with which and with whom he is not even remotely connected - contrary
to the dictum that criminal liability is personal, not vicarious - results in the denial of
substantive due process;
4) not fixing bail for petitioner for alleged involvement in jueteng in one count of the
information which amounts to cruel and unusual punishment totally in defiance of the
principle of proportionality." 9
We shall resolve the arguments of petitioner in seriatim.
I.
Petitioner contends that R.A. No. 7080 is unconstitutional on its face and as applied to him and
denies him the equal protection of the laws. 10
The contention deserves our scant attention. The constitutionality of R.A. No. 7080, the Anti-
Plunder Law, has been settled in the case of Estrada v. Sandiganbayan.11 We take off from the
Amended Information which charged petitioner, together with former President Joseph E. Estrada,
Atty. Edward Serapio, Charlie "Atong" Ang, Yolanda T. Ricaforte and others, with the crime of
plunder as follows:
"AMENDED INFORMATION
The undersigned Ombudsman Prosecutor and OIC-Director, EPIB Office of the Ombudsman,
hereby accuses former PRESIDENT OF THE PHILIPPINES, Joseph Ejercito Estrada a.k.a. "ASIONG
SALONGA" AND a.k.a "JOSE VELARDE", together with Jose ‘Jinggoy’ Estrada, Charlie ‘Atong’ Ang,
Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio
Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of
Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659,
committed as follows:
That during the period from June, 1998 to January, 2001, in the Philippines, and within the
jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER,
BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by
himself AND/OR in CONNIVANCE/CONSPIRACYwith his co-accused, WHO ARE MEMBERS OF HIS
FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES,
SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL
POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there
wilfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR
AMCVB CRIM 1 [Art. 8-11] (5)| 32
INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION
NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE
PESOS AND SEVENTEEN CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY
ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO
PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series
of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE
AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS
(P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT,
SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF
AND/OR in connivance with co-accused CHARLIE ‘ATONG’ ANG, Jose ‘Jinggoy’ Estrada,
Yolanda T. Ricaforte, Edward Serapio, AN (sic) JOHN DOES AND JANE DOES, in
consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR
INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount
of ONE HUNDRED THIRTY MILLION PESOS [P130,000,000.00], more or less, representing
a portion of the TWO HUNDRED MILLION PESOS [P200,000,000] tobacco excise tax
share allocated for the Province of Ilocor Sur under R.A. No. 7171, BY HIMSELF
AND/OR in CONNIVANCE with co-accused Charlie ‘Atong’ Ang, Alma Alfaro, JOHN DOE
a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia
Rajas, AND OTHER JOHN DOES AND JANE DOES;
(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the
Government Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF
STOCK MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF
STOCK MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR
LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE
THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50]
AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE
THOUSAND AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00], RESPECTIVELY, OR
A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE
HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS
[P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY,
BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES,
COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF
STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED
THOUSAND PESOS [P189,700,000.00], MORE OR LESS, FROM THE BELLE CORPORATION
WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE
ACCOUNT NAME "JOSE VELARDE";
(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES,
KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN
DOES AND JANE DOES, in the amount of MORE OR LESS THREE BILLION TWO HUNDRED
THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY
THREE PESOS AND SEVENTEEN CENTAVOS [P3,233,104,173.17] AND DEPOSITING THE
SAME UNDER HIS ACCOUNT NAME "JOSE VELARDE" AT THE EQUITABLE-PCI BANK.
CONTRARY TO LAW.
Manila for Quezon City, Philippines, 18 April 2001" 12
Petitioner’s contention that R.A. No. 7080 is unconstitutional as applied to him is principally
perched on the premise that the Amended Information charged him with only one act or one
offense which cannot constitute plunder. He then assails the denial of his right to bail.
Petitioner’s premise is patently false. A careful examination of the Amended Information will show
that it is divided into three (3) parts: (1) the first paragraph charges former President Joseph E.
Estrada with the crime of plunder together with petitioner Jose "Jinggoy" Estrada, Charlie "Atong"
Ang, Edward Serapio, Yolanda Ricaforte and others; (2) the second paragraph spells out in general
terms how the accused conspired in committing the crime of plunder; and (3) the following four
sub-paragraphs (a) to (d) describe in detail the predicate acts constitutive of the crime of plunder
pursuant to items (1) to (6) of R.A. No. 7080, and state the names of the accused who committed
each act.
Pertinent to the case at bar is the predicate act alleged in sub-paragraph (a) of the
Amended Informationwhich is of "receiving or collecting, directly or indirectly, on several
instances, money in the aggregate amount of ₱545,000,000.00 for illegal gambling in the form
of gift, share, percentage, kickback or any form of pecuniary benefit x x x." In this sub-paragraph
(a), petitioner, in conspiracy with former President Estrada, is charged with the act of receiving
or collecting money from illegal gambling amounting to ₱545 million. Contrary to petitioner’s
posture, the allegation is that he received or collected money from illegal gambling "on several
instances." The phrase "on several instances" means the petitioner committed the
predicate act in series. To insist that the Amended Information charged the petitioner with the
commission of only one act or offense despite the phrase "several instances" is to indulge in a
twisted, nay, "pretzel" interpretation.
It matters little that sub-paragraph (a) did not utilize the exact words "combination" or "series"
as they appear in R.A. No. 7080. For in Estrada v. Sandiganbayan, 13 we held that where these
two terms are to be taken in their popular, not technical, meaning, the word "series" is
synonymous with the clause "on several instances." "Series" refers to a repetition of the same
predicate act in any of the items in Section 1 (d) of the law. The word "combination" contemplates
the commission of at least any two different predicate acts in any of said items. Plainly, sub-
paragraph (a) of the Amended Information charges petitioner with plunder
committed by a series of the same predicate act under Section 1 (d) (2) of the law.
Similarly misleading is petitioner’s stand that in the Ombudsman Resolution of April 4, 2001 finding
probable cause to charge him with plunder together with the other accused, he was alleged to
have received only the sum of P2 million, which amount is way below the minimum of P50 million
required under R.A. No. 7080. The submission is not borne out by the April 4, 2001 Resolution of
the Ombudsman, recommending the filing of charges against petitioner and his co-accused, which
in pertinent part reads:
"x x x xxx xxx
Respondent Jose ‘Jinggoy’ Estrada, the present Mayor of San Juan, Metro Manila, appears to have
also surreptitious collection of protection money from jueteng operations in Bulacan. This is
gleaned from the statements of Gov. Singson himself and the fact that Mayor Estrada, on at least
two occasions, turned over to a certain Emma Lim, an emissary of the respondent governor,
jueteng haul totalling P2 million, i.e., P1 million in January, 2000 and another P1 million in February,
2000. An alleged "listahan" of jueteng recipients listed him as one "Jingle Bell," as affirmed by
Singson [TSN 8 & Dec. 2000 SICt/17 Oct. 2000 SBRC/SCI]."14
Hence, contrary to the representations of the petitioner, the Ombudsman made the finding that
P2 million was delivered to petitioner as "jueteng haul" on "at least two occasions." The P2
million is, therefore, not the entire sum with which petitioner is specifically charged. This is
further confirmed by the conclusion of the Ombudsman that:
"x x x xxx xxx
AMCVB CRIM 1 [Art. 8-11] (5)| 33
It is clear that Joseph Ejercito Estrada, in confabulation with Jose ‘Jinggoy’ Estrada, Atty. Edward
Serapio and Yolanda Ricaforte, demanded and received, as bribe money, the aggregate sum of
P545 million from jueteng collections of the operators thereof, channeled thru Gov. Luis ‘Chavit’
Singson, in exchange for protection from arrest or interference by law enforcers; x x x."15
To be sure, it is too late in the day for the petitioner to argue that the Ombudsman failed to
establish any probable cause against him for plunder. The respondent Sandiganbayan itself has
found probable cause against the petitioner for which reason it issued a warrant of arrest against
him. Petitioner then underwent arraignment and is now on trial. The time to assail the finding of
probable cause by the Ombudsman has long passed. The issue cannot be resurrected in this
petition.
II.
Next, petitioner contends that "the plunder law does not provide sufficient and complete standards
to guide the courts in dealing with accused alleged to have contributed to the offense." 16 Thus, he
posits the following questions:
"For example, in an Information for plunder which cites at least ten criminal acts, what penalty
do we impose on one who is clearly involved in only one such criminal act? Is it reclusion perpetua?
Or should it be a lesser penalty? What if another accused is shown to have participated in three
of the ten specifications, what would be the penalty imposable, compared to one who may have
been involved in five or seven of the specifications? The law does not provide the standard or
specify the penalties and the courts are left to guess. In other words, the courts are called to say
what the law is rather than to apply what the lawmaker is supposed to have intended." 17
Petitioner raises these hypothetical questions for he labors hard under the impression that: (1) he
is charged with only one act or offense and (2) he has not conspired with the other accused
named in sub-paragraphs (b) to (d) of the Amended Information, ergo, the penalty imposable on
him ought to be different from reclusion perpetua to death. R.A. No. 7080, he bewails, is cloudy
on the imposable penalty on an accused similarly situated as he is. Petitioner, however, overlooks
that the second paragraph of the Amended Information charges him to have conspired with former
President Estrada in committing the crime of plunder. His alleged participation consists in the
commission of the predicate acts specified in sub-paragraph (a) of the Amended Information. If
these allegations are proven, the penalty of petitioner cannot be unclear. It will be no different
from that of the former President for in conspiracy, the act of one is the act of the other. The
imposable penalty is provided in Section 2 of R.A. No. 7080, viz:
"Section 2. Any public officer who, by himself or in connivance with the members of his family,
relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts
as described in Section 1(d) hereof in the aggregate amount or total value of at least Fifty million
pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished
by reclusion perpetua to death. Any person who participated with the said public officer in
the commission of an offense contributing to the crime of plunder shall likewise be punished for
such offense. In the imposition of penalties, the degree of participation and the attendance of
mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be
considered by the court."
III.
Petitioner also faults the respondent Sandiganbayan for "sustaining the charge against petitioner
for alleged offenses and with alleged conspirators, with which and with whom he is not even
remotely connected – contrary to the dictum that criminal liability is personal, not vicarious –
results in the denial of substantive due process."18
The Solicitor General argues, on the other hand, that petitioner is charged not only with the
predicate act in sub-paragraph (a) but also with the other predicate acts in sub-paragraphs (b),
(c) & (d) because he is indicted as a principal and as co-conspirator of the former President. This
is purportedly clear from the first and second paragraphs of the Amended Information. 19
For better focus, there is a need to examine again the allegations of the Amended Information vis-
à-vis the provisions of R.A. No. 7080.
The Amended Information, in its first two paragraphs, charges petitioner and his other co-accused
with the crime of plunder. The first paragraph names all the accused, while the second paragraph
describes in general how plunder was committed and lays down most of the elements of the crime
itself. Sub-paragraphs (a) to (d) describe in detail the predicate acts that constitute
the crime and name in particular the co-conspirators of former President Estrada in
each predicate act. The predicate acts alleged in the said four sub-paragraphs
correspond to the items enumerated in Section 1 (d) of R.A. No. 7080. Sub-paragraph
(a) alleged the predicate act of receiving, on several instances, money from illegal gambling, in
consideration of toleration or protection of illegal gambling, and expressly names petitioner as
one of those who conspired with former President Estrada in committing the offense. This
predicate act corresponds with the offense described in item [2] of the enumeration in Section 1
(d) of R.A. No. 7080. Sub-paragraph (b) alleged the predicate act of diverting, receiving or
misappropriating a portion of the tobacco excise tax share allocated for the province of Ilocos Sur,
which act is the offense described in item [1] in the enumeration in Section 1 (d) of the law. This
sub-paragraph does not mention petitioner but instead names other conspirators of the former
President. Sub-paragraph (c) alleged two predicate acts - that of ordering the Government Service
Insurance System (GSIS) and the Social Security System (SSS) to purchase shares of stock of
Belle Corporation, and collecting or receiving commissions from such purchase from the Belle
Corporation which became part of the deposit in the "Jose Velarde" account at the Equitable-PCI
Bank. These two predicate acts fall under items [2] and [3] in the enumeration of R.A. No. 7080,
and was allegedly committed by the former President in connivance with John Does and Jane
Does. Finally, sub-paragraph (d) alleged the predicate act that the former President unjustly
enriched himself from commissions, gifts, kickbacks, in connivance with John Does and Jane Does,
and deposited the same under his account name "Jose Velarde" at the Equitable-PCI Bank. This
act corresponds to the offense under item [6] in the enumeration of Section 1 (d) of R.A. No.
7080.
From the foregoing allegations of the Amended Information, it is clear that all the accused named
in sub-paragraphs (a) to (d), thru their individual acts, conspired with former President
Estrada to enable the latter to amass, accumulate or acquire ill-gotten wealth in the aggregate
amount of P4,097,804,173.17. As the Amended Informationis worded, however, it is not certain
whether the accused in sub-paragraphs (a) to (d) conspired with each otherto enable the
former President to amass the subject ill-gotten wealth. In light of this lack of clarity, petitioner
cannot be penalized for the conspiracy entered into by the other accused with the former President
as related in the second paragraph of the Amended Information in relation to its sub-paragraphs
(b) to (d). We hold that petitioner can be held accountable only for the predicate acts he allegedly
committed as related in sub-paragraph (a) of the Amended Information which were allegedly done
in conspiracy with the former President whose design was to amass ill-gotten wealth amounting
to more than P4 billion.
We hasten to add, however, that the respondent Ombudsman cannot be faulted for
including the predicate acts alleged in sub-paragraphs (a) to (d) of the Amended
Information in one, and not in four, separate Informations. A study of the history of R.A.
No. 7080 will show that the law was crafted to avoid the mischief and folly of filing multiple
informations. The Anti-Plunder Law was enacted in the aftermath of the Marcos regime where
charges of ill-gotten wealth were filed against former President Marcos and his alleged
cronies. Government prosecutors found no appropriate law to deal with the multitude
AMCVB CRIM 1 [Art. 8-11] (5)| 34
and magnitude of the acts allegedly committed by the former President to acquire
illegal wealth.20 They also found that under the then existing laws such as the Anti-Graft and
Corrupt Practices Act, the Revised Penal Code and other special laws, the acts involved different
transactions, different time and different personalities. Every transaction constituted a
separate crime and required a separate case and the over-all conspiracy had to be
broken down into several criminal and graft charges. The preparation of multiple
Informations was a legal nightmare but eventually, thirty-nine (39) separate and independent
cases were filed against practically the same accused before the Sandiganbayan. 21 R.A. No. 7080
or the Anti-Plunder Law22 was enacted precisely to address this procedural problem. This is pellucid
in the Explanatory Note to Senate Bill No. 733, viz:
"Plunder, a term chosen from other equally apt terminologies like kleptocracy and economic
treason, punishes the use of high office for personal enrichment, committed thru a series of acts
done not in the public eye but in stealth and secrecy over a period of time, that may involve so
many persons, here and abroad, and which touch so many states and territorial units. The acts
and/or omissions sought to be penalized do not involve simple cases of malversation
of public funds, bribery, extortion, theft and graft but constitute plunder of an entire
nation resulting in material damage to the national economy. The above-described crime
does not yet exist in Philippine statute books. Thus, the need to come up with a legislation as a
safeguard against the possible recurrence of the depravities of the previous regime and as a
deterrent to those with similar inclination to succumb to the corrupting influence of power."
There is no denying the fact that the "plunder of an entire nation resulting in material damage to
the national economy" is made up of a complex and manifold network of crimes. In the crime
of plunder, therefore, different parties may be united by a common purpose. In the
case at bar, the different accused and their different criminal acts have a commonality—to help
the former President amass, accumulate or acquire ill-gotten wealth. Sub-paragraphs (a) to (d) in
the Amended Information alleged the different participation of each accused in the conspiracy.
The gravamen of the conspiracy charge, therefore, is not that each accused agreed to
receive protection money from illegal gambling, that each misappropriated a portion of the
tobacco excise tax, that each accused ordered the GSIS and SSS to purchase shares of Belle
Corporation and receive commissions from such sale, nor that each unjustly enriched himself from
commissions, gifts and kickbacks; rather, it is that each of them, by their individual acts,
agreed to participate, directly or indirectly, in the amassing, accumulation and
acquisition of ill-gotten wealth of and/or for former President Estrada.
In the American jurisdiction, the presence of several accused in multiple conspiracies
commonly involves two structures: (1) the so-called "wheel" or "circle" conspiracy, in which there
is a single person or group (the "hub") dealing individually with two or more other persons or
groups (the "spokes"); and (2) the "chain" conspiracy, usually involving the distribution of
narcotics or other contraband, in which there is successive communication and cooperation in
much the same way as with legitimate business operations between manufacturer and wholesaler,
then wholesaler and retailer, and then retailer and consumer. 23
From a reading of the Amended Information, the case at bar appears similar to a "wheel"
conspiracy. The hub is former President Estrada while the spokes are all the accused, and the rim
that encloses the spokes is the common goal in the overall conspiracy, i.e., the amassing,
accumulation and acquisition of ill-gotten wealth.
IV.
Some of our distinguished colleagues would dismiss the charge against the petitioner on the
ground that the allegation of conspiracy in the Amended Information is too general. The fear is
even expressed that it could serve as a net to ensnare the innocent. Their dissents appear to be
inspired by American law and jurisprudence.
We should not confuse our law on conspiracy with conspiracy in American criminal
law and in common law. Under Philippine law, conspiracy should be understood on
two levels. As a general rule, conspiracy is not a crime in our jurisdiction. It is punished
as a crime only when the law fixes a penalty for its commission such as in conspiracy
to commit treason, rebellion and sedition. In contrast, under American criminal law,
the agreement or conspiracy itself is the gravamen of the offense.24 The essence of
conspiracy is the combination of two or more persons, by concerted action, to accomplish a
criminal or unlawful purpose, or some purpose not in itself criminal or unlawful, by criminal or
unlawful means.25 Its elements are: agreement to accomplish an illegal objective, coupled with
one or more overt acts in furtherance of the illegal purpose; and requisite intent necessary to
commit the underlying substantive offense.26
A study of the United States Code ought to be instructive. It principally punishes two
(2) crimes of conspiracy27 – conspiracy to commit any offense or to defraud the United
States, and conspiracy to impede or injure officer. Conspiracy to commit offense or to defraud
the United States is penalized under 18 U.S.C. Sec. 371,28as follows:
"Sec. 371. Conspiracy to commit offense or to defraud the United States. If two or more persons
conspire either to commit any offense against the United States, or to defraud the United States,
or any agency thereof in any manner or for any purpose, and one or more of such persons to any
act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned
not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a
misdemeanor only, the punishment for such conspiracy shall not exceed the maximum
punishment provided for such misdemeanor."
Conspiracy to impede or injure officer is penalized under 18 U.S.C. Sec. 372, viz:
"Sec. 372. Conspiracy to impede or injure officer. If two or more persons in any State, Territory,
Possession, or District conspire to prevent, by force, intimidation, or threat, any person from
accepting or holding any office, trust or place of confidence under the United States, or from
discharging any duties thereof, or to induce by like means any officer of the United States to leave
the place, where his duties as an officer are required to be performed, or to injure him in his
person or property on account of his lawful discharge of the duties of his office, or while engaged
in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or
impede him in the discharge of his official duties, each of such persons shall be fined not more
than $5,000 or imprisoned not more than six years, or both."
Section 371 of 18 U.S.C. punishes two acts: (1) conspiracy to commit any offense against the
United States; and (2) conspiracy to defraud the United States or any agency thereof. The
conspiracy to "commit any offense against the United States" refers to an act made a crime by
federal laws.29 It refers to an act punished by statute. 30Undoubtedly, Section 371 runs the
whole gamut of U.S. Federal laws, whether criminal or regulatory. 31 These laws cover
criminal offenses such as perjury, white slave traffic, racketeering, gambling, arson, murder, theft,
bank robbery, etc. and also include customs violations, counterfeiting of currency, copyright
violations, mail fraud, lotteries, violations of antitrust laws and laws governing interstate
commerce and other areas of federal regulation. 32Section 371 penalizes the conspiracy to
commit any of these substantive offenses. The offense of conspiracy is generally
separate and distinct from the substantive offense,33 hence, the court rulings that acquittal
on the substantive count does not foreclose prosecution and conviction for related conspiracy. 34
The conspiracy to "defraud the government" refers primarily to cheating the United States out of
property or money. It also covers interference with or obstruction of its lawful governmental
functions by deceit, craft or trickery, or at least by means that are dishonest. 35 It comprehends
defrauding the United States in any manner whatever, whether the fraud be declared criminal or
not.36
AMCVB CRIM 1 [Art. 8-11] (5)| 35
The basic difference in the concept of conspiracy notwithstanding, a study of the American
case law on howconspiracy should be alleged will reveal that it is not necessary for the
indictment to include particularities of time, place, circumstances or causes, in stating
the manner and means of effecting the object of the conspiracy. Such specificity of detail
falls within the scope of a bill of particulars. 37 An indictment for conspiracy is sufficient where
it alleges: (1) the agreement; (2) the offense-object toward which the agreement was directed;
and (3) the overt acts performed in furtherance of the agreement. 38 To allege that the defendants
conspired is, at least, to state that they agreed to do the matters which are set forth as the
substance of their conspiracy. To allege a conspiracy is to allege an agreement. 39 The gist of the
crime of conspiracy is unlawful agreement, and where conspiracy is charged, it is not
necessary to set out the criminal object with as great a certainty as is required in cases
where such object is charged as a substantive offense. 40
In sum, therefore, there is hardly a substantial difference on how Philippine courts
and American courts deal with cases challenging Informations alleging conspiracy on
the ground that they lack particularities of time, place, circumstances or causes. In
our jurisdiction, as aforestated, conspiracy can be alleged in the Information as a
mode of committing a crime or it may be alleged as constitutive of the crime itself.
When conspiracy is alleged as a crime in itself, the sufficiency of the allegations in the
Information charging the offense is governed by Section 6, Rule 110 of the Revised
Rules of Criminal Procedure. It requires that the information for this crime must contain the
following averments:
"Sec. 6. Sufficiency of complaint or information.- A complaint or information is sufficient if it states
the name of the accused, the designation of the offense given by the statute; the acts or
omissions complained of as constituting the offense; the name of the offended party; the
approximate date of the commission of the offense; and the place where the offense was
committed.
When the offense was committed by more than one person, all of them shall be included in the
complaint or information."
The complaint or information to be sufficient must state the name of the accused, designate the
offense given by statute, state the acts or omissions constituting the offense, the name of
the offended party, the approximate date of the commission of the offense and the place where
the offense was committed.
Our rulings have long settled the issue on how the acts or omissions constituting the offense
should be made in order to meet the standard of sufficiency. Thus, the offense must be designated
by its name given by statute or by reference to the section or subsection of the statute punishing
it.41 The information must also state the acts or omissions constituting the offense, and specify its
qualifying and aggravating circumstances. 42 The acts or omissions complained of must be alleged
in such form as is sufficient to enable a person of common understanding to know what offense
is intended to be charged, and enable the court to pronounce proper judgment. 43 No information
for a crime will be sufficient if it does not accurately and clearly allege the elements of the crime
charged.44 Every element of the offense must be stated in the information. 45 What facts and
circumstances are necessary to be included therein must be determined by reference to the
definitions and essentials of the specified crimes. 46 The requirement of alleging the elements of a
crime in the information is to inform the accused of the nature of the accusation against him so
as to enable him to suitably prepare his defense. The presumption is that the accused has no
independent knowledge of the facts that constitute the offense. 47
To reiterate, when conspiracy is charged as a crime, the act of conspiring and all the
elements of said crime must be set forth in the complaint or information. For example,
the crime of "conspiracy to commit treason" is committed when, in time of war, two or more
persons come to an agreement to levy war against the Government or to adhere to the enemies
and to give them aid or comfort, and decide to commit it. 48 The elements of this crime are: (1)
that the offender owes allegiance to the Government of the Philippines; (2) that there is a war in
which the Philippines is involved; (3) that the offender and other person or persons come to an
agreement to: (a) levy war against the government, or (b) adhere to the enemies, to give them
aid and comfort; and (4) that the offender and other person or persons decide to carry out the
agreement. These elements must be alleged in the information.
The requirements on sufficiency of allegations are different when conspiracy is not
charged as a crime in itself but only as the mode of committing the crime as in the
case at bar. There is less necessity of reciting its particularities in the Information because
conspiracy is not the gravamen of the offense charged. The conspiracy is significant only
because it changes the criminal liability of all the accused in the conspiracy and makes them
answerable as co-principals regardless of the degree of their participation in the crime. 49 The
liability of the conspirators is collective and each participant will be equally responsible for the acts
of others,50 for the act of one is the act of all.51 In People v. Quitlong,52 we ruled on
how conspiracy as the mode of committing the offense should be alleged in the
Information, viz:
"x x x. In embodying the essential elements of the crime charged, the information must set forth
the facts and circumstances that have a bearing on the culpability and liability of the accused so
that the accused can properly prepare for and undertake his defense. One such fact or
circumstance in a complaint against two or more accused persons is that of conspiracy. Quite
unlike the omission of an ordinary recital of fact which, if not excepted from or objected to during
trial, may be corrected or supplied by competent proof, an allegation, however, of conspiracy,
or one that would impute criminal liability to an accused for the act of another or
others, is indispensable in order to hold such person, regardless of the nature and
extent of his own participation, equally guilty with the other or others in the
commission of the crime. Where conspiracy exists and can rightly be appreciated, the
individual acts done to perpetrate the felony becomes of secondary importance, the act of one
being imputable to all the others (People v. Ilano, 313 SCRA 442). Verily, an accused must know
from the information whether he faces a criminal responsibility not only for his acts but also for
the acts of his co-accused as well.
A conspiracy indictment need not, of course, aver all the components of conspiracy or
allege all the details thereof, like the part that each of the parties therein have
performed, the evidence proving the common design or the facts connecting all the
accused with one another in the web of the conspiracy. Neither is it necessary to
describe conspiracy with the same degree of particularity required in describing a
substantive offense. It is enough that the indictment contains a statement of facts
relied upon to be constitutive of the offense in ordinary and concise language, with as
much certainty as the nature of the case will admit, in a manner that can enable a
person of common understanding to know what is intended, and with such precision
that the accused may plead his acquittal or conviction to a subsequent indictment
based on the same facts. It is said, generally, that an indictment may be held sufficient "if it
follows the words of the statute and reasonably informs the accused of the character of the
offense he is charged with conspiring to commit, or, following the language of the statute, contains
a sufficient statement of an overt act to effect the object of the conspiracy, or alleges both the
conspiracy and the contemplated crime in the language of the respective statutes defining them
(15A C.J.S. 842-844).
xxx xxx xxx
x x x. Conspiracy arises when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. Conspiracy comes to life at the very instant the
plotters agree, expressly or impliedly, to commit the felony and forthwith to actually purs ue
it. Verily, the information must state that the accused have confederated to commit
AMCVB CRIM 1 [Art. 8-11] (5)| 36
the crime or that there has been a community of design, a unity of purpose or an
agreement to commit the felony among the accused. Such an allegation, in the
absence of the usual usage of the words "conspired" or "confederated" or the phrase
"acting in conspiracy," must aptly appear in the information in the form of definitive
acts constituting conspiracy. In fine, the agreement to commit the crime, the unity of
purpose or the community of design among the accused must be conveyed such
as either by the use of the term "conspire" or its derivatives and synonyms or by
allegations of basic facts constituting the conspiracy. Conspiracy must be alleged, not
just inferred, in the information on which basis an accused can aptly enter his plea, a
matter that is not to be confused with or likened to the adequacy of evidence that may
be required to prove it. In establishing conspiracy when properly alleged, the evidence to
support it need not necessarily be shown by direct proof but may be inferred from shown acts
and conduct of the accused.
xxx xxx x x x."
Again, following the stream of our own jurisprudence, it is enough to allege conspiracy
as a mode in the commission of an offense in either of the following manner: (1) by use
of the word "conspire," or its derivatives or synonyms, such as confederate, connive, collude,
etc;53 or (2) by allegations of basic facts constituting the conspiracy in a manner that a person of
common understanding would know what is intended, and with such precision as would enable
the accused to competently enter a plea to a subsequent indictment based on the same facts.54
The allegation of conspiracy in the information must not be confused with the
adequacy of evidence that may be required to prove it. A conspiracy is proved by evidence
of actual cooperation; of acts indicative of an agreement, a common purpose or design, a
concerted action or concurrence of sentiments to commit the felony and actually pursue it. 55 A
statement of this evidence is not necessary in the information.
In the case at bar, the second paragraph of the Amended Information alleged in
general terms how the accused committed the crime of plunder. It used the words "in
connivance/conspiracy with his co-accused." Following the ruling in Quitlong, these words are
sufficient to allege the conspiracy of the accused with the former President in committing the
crime of plunder.
V.
We now come to petitioner’s plea for bail. On August 14, 2002, during the pendency of the instant
petition before this Court, petitioner filed with respondent Sandiganbayan an "Urgent Second
Motion for Bail for Medical Reasons." Petitioner prayed that he be allowed to post bail due to his
serious medical condition which is life-threatening to him if he goes back to his place of
detention.1âwphi1 The motion was opposed by respondent Ombudsman to which petitioner
replied.
For three days, i.e., on September 4, 20 and 27, 2001, respondent Sandiganbayan conducted
hearings on the motion for bail. Dr. Roberto V. Anastacio, a cardiologist of the Makati Medical
Center, testified as sole witness for petitioner.
On December 18, 2001, petitioner filed with the Supreme Court an "Urgent Motion for
Early/Immediate Resolution of Jose ‘Jinggoy’ Estrada’s Petition for Bail on Medical/Humanitarian
Considerations." Petitioner reiterated the motion for bail he earlier filed with respondent
Sandiganbayan.56
On the same day, we issued a Resolution referring the motion to respondent Sandiganbayan for
resolution and requiring said court to make a report, not later than 8:30 in the morning of
December 21, 2001.
On December 21, 2001, respondent court submitted its Report. Attached to the Report was its
Resolution dated December 20, 2001 denying petitioner’s motion for bail for "lack of factual
basis."57 Basing its finding on the earlier testimony of Dr. Anastacio, the Sandiganbayan found that
petitioner "failed to submit sufficient evidence to convince the court that the medical condition of
the accused requires that he be confined at home and for that purpose that he be allowed to post
bail."58
The crime of plunder is punished by R.A. No. 7080, as amended by Section 12 of R.A. No. 7659,
with the penalty of reclusion perpetua to death. Under our Rules, offenses punishable by
death, reclusion perpetua or life imprisonment are non-bailable when the evidence of guilt is
strong, to wit:
"Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not
bailable. – No person charged with a capital offense, or an offense punishable by reclusion
perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless
of the stage of the criminal prosecution."59
Section 7, Rule 114 of the Revised Rules of Criminal Procedure is based on Section 13, Article III
of the 1987 Constitution which reads:
"Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction be bailable by sufficient sureties, or be released
on recognizance as may be provided by law. The right to bail shall not be impaired even when
the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required."
The constitutional mandate makes the grant or denial of bail in capital offenses hinge on the issue
of whether or not the evidence of guilt of the accused is strong. This requires that the
trial court conduct bail hearings wherein both the prosecution and the defense are afforded
sufficient opportunity to present their respective evidence. The burden of proof lies with the
prosecution to show strong evidence of guilt.60
This Court is not in a position to grant bail to the petitioner as the matter requires evidentiary
hearing that should be conducted by the Sandiganbayan. The hearings on which respondent court
based its Resolution of December 20, 2001 involved the reception of medical evidence only and
which evidence was given in September 2001, five months ago. The records do not show that
evidence on petitioner’s guilt was presented before the lower court.
Upon proper motion of the petitioner, respondent Sandiganbayan should conduct hearings to
determine if the evidence of petitioner’s guilt is strong as to warrant the granting of bail to
petitioner.
IN VIEW WHEREOF, the petition is dismissed for failure to show that the respondent
Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion
amounting to lack of jurisdiction.
SO ORDERED.
AMCVB CRIM 1 [Art. 8-11] (5)| 37
8. ARIAS v. SANDIGANBYAN
G.R. No. 81563 December 19, 1989
GUTIERREZ, JR., J.:
The facts of this case are stated in the dissenting opinion of Justice Carolina C. Griño-Aquino which
follows this majority opinion. The dissent substantially reiterates the draft report prepared by
Justice Griño-Aquino as a working basis for the Court's deliberations when the case was being
discussed and for the subsequent votes of concurrence or dissent on the action proposed by the
report.
There is no dispute over the events which transpired. The division of the Court is on the
conclusions to be drawn from those events and the facts insofar as the two petitioners are
concerned. The majority is of the view that Messrs. Arias and Data should be acquitted on grounds
of reasonable doubt. The Court feels that the quantum of evidence needed to convict petitioners
Arias and Data beyond reasonable doubt, as co-conspirators in the conspiracy to cause undue
injury to the Government through the irregular disbursement and expenditure of public funds, has
not been satisfied.
In acquitting the petitioners, the Court agrees with the Solicitor-General 1 who, in 80 pages of his
consolidated manifestation and motion, recommended that Messrs. Arias and Data be acquitted
of the crime charged, with costs de oficio. Earlier, Tanodbayan Special Prosecutor Eleuterio F.
Guerrero had also recommended the dropping of Arias from the information before it was filed.
There is no question about the need to ferret out and convict public officers whose acts have
made the bidding out and construction of public works and highways synonymous with graft or
criminal inefficiency in the public eye. However, the remedy is not to indict and jail every person
who may have ordered the project, who signed a document incident to its construction, or who
had a hand somewhere in its implementation. The careless use of the conspiracy theory may
sweep into jail even innocent persons who may have been made unwitting tools by the criminal
minds who engineered the defraudation.
Under the Sandiganbayan's decision in this case, a department secretary, bureau chief,
commission chairman, agency head, and all chief auditors would be equally culpable for every
crime arising from disbursements which they have approved. The department head or chief
auditor would be guilty of conspiracy simply because he was the last of a long line of officials and
employees who acted upon or affixed their signatures to a transaction. Guilt must be premised on
a more knowing, personal, and deliberate participation of each individual who is charged with
others as part of a conspiracy.
The records show that the six accused persons were convicted in connection with the overpricing
of land purchased by the Bureau of Public Works for the Mangahan Floodway Project. The project
was intended to ease the perennial floods in Marikina and Pasig, Metro Manila.
The accused were prosecuted because 19,004 square meters of "riceland" in Rosario, Pasig which
had been assessed at P5.00 a square meter in 1973 were sold as residential land" in 1978 for
P80.00 a square meter. The land for the floodway was acquired through negotiated purchase,
We agree with the Solicitor-General that the assessor's tax valuation of P5.00 per square meter
of land in Rosario, Pasig, Metro Manila is completely unrealistic and arbitrary as the basis for
conviction.
Herein lies the first error of the trial court.
It must be stressed that the petitioners are not charged with conspiracy in the falsification of
public documents or preparation of spurious supporting papers. The charge is causing undue
injury to the Government and giving a private party unwarranted benefits through manifest
partiality, evident bad faith, or inexcusable negligence.
The alleged undue injury in a nutshell is the Government purchase of land in Pasig, Rizal for
P80.00 a square meter instead of the P5.00 value per square meter appearing in the tax
declarations and fixed by the municipal assessor, not by the landowner.
The Sandiganbayan, without any clear factual basis for doing so has assumed that the P5.00 per
square meter value fixed by the assessor in the tax declarations was the correct market value of
the Mangahan property and if the Government purchased the land for P80.00 a square meter, it
follows that it must have suffered undue injury.
The Solicitor General explains why this conclusion is erroneous:
1. No undue injury was caused to the Government
a. The P80.00 per square rneter acquisition cost is just fair and reasonable.
It bears stress that the Agleham property was acquired through negotiated purchase. It
was, therefor, nothing more than an ordinary contract of sale where the purchase price had
to be arrived at by agreement between the parties and could never be left to the discretion
of one of the contracting parties (Article 1473, New Civil Code). For it is the essence of a
contract of sale that there must be a meeting of the minds between the seller and the buyer
upon the thing which is the object of the contract and upon the price (Article 1475, New
Civil Code). Necessarily, the parties have to negotiate the reasonableness of the price,
taking into consideration such other factors as location, potentials, surroundings and
capabilities. After taking the foregoing premises into consideration, the parties have, thus,
arrived at the amount of P80.00 per square meter as the fair and reasonable price for the
Agleham property.
It bears stress that the prosecution failed to adduce evidence to prove that the true and fair
market value in 1978 of the Agleham property was indeed P5.00 per square meter only as
stated by the assessor in the tax declaration (Exhibit W). On the contrary, the prosecution's
principal witness Pedro Ocol, the Assistant Municipal Assessor of Pasig, admitted that the
purchase price of P80.00 per square meter paid for the Agleham property as stated in the
Deed of Sale (Exhibit G) is reasonable (tsn, August 19,1983, p. 20) and fair ( Ibid, p. 76);
that 'the value of lands within the town of Pasig ranges from P80.00 to P500.00' ( Ibid, p.
21); that the Agleham property is "around 300 meters" from Ortigas Avenue, "adjacent to
the existing Leongson [Liamson] Subdivision ... and near Eastland Garment Building" ( Ibid,
pp. 12-13); that said property is surrounded by factories, commercial establishments and
residential subdivisions ( Ibid, pp. 73-74); that the P5.00 per square meter assessed
valuation of the Agleham property appearing on the tax declaration (Exhibit W) was based
on actual use only (lbid, pp. 26-27), it being the uniform rate for all ricefields in Pasig
irrespective of their locations ( Ibid, pp. 72-74) and did not take into account the existence
of many factories and subdivisions in the area ( Ibid., pp. 25-27, 72-74), and that the
assessed value is different from and always lower than the actual market value ( Ibid, pp.
22-23). (At pp. 256-259, Rollo)
A negotiated purchase may usually entail a higher buying price than one arrived at in the course
of expropriation proceedings.
In Export Processing Zone Authority v. Dulay (149 SCRA 305, 310 [1987]) we struck down the
martial law decree that pegged just compensation in eminent domain cases to the assessed value
stated by a landowner in his tax declaration or fixed by the municipal assessor, whichever is lower.
Other factors must be considered. These factors must be determined by a court of justice and not
by municipal employees.
In the instant case, the assessor's low evaluation, in the fixing of which the landowner had no
participation, was used for a purpose infinitely more weighty than mere expropriation of land. It
forms the basis for a criminal conviction.
AMCVB CRIM 1 [Art. 8-11] (5)| 38
The Court is not prepared to say that P80.00 to P500.00 a square meter for land in Pasig in 1978
would be a fair evaluation. The value must be determined in eminent domain proceedings by a
competent court. We are certain, however, that it cannot be P5.00 a square meter. Hence, the
decision, insofar as it says that the "correct" valuation is P5.00 per square meter and on that basis
convicted that petitioners of causing undue injury, damage, and prejudice to the Government
because of gross overpricing, is grounded on shaky foundations.
There can be no overpricing for purposes of a criminal conviction where no proof adduced during
orderly proceedings has been presented and accepted.
The Court's decision, however, is based on a more basic reason. Herein lies the principal error of
the respondent court.
We would be setting a bad precedent if a head of office plagued by all too common problems-
dishonest or negligent subordinates, overwork, multiple assignments or positions, or plain
incompetence is suddenly swept into a conspiracy conviction simply because he did not personally
examine every single detail, painstakingly trace every step from inception, and investigate the
motives of every person involved in a transaction before affixing, his signature as the final
approving authority.
There appears to be no question from the records that documents used in the negotiated sale
were falsified. A key tax declaration had a typewritten number instead of being machine-numbered.
The registration stampmark was antedated and the land reclassified as residential instead of
ricefield. But were the petitioners guilty of conspiracy in the falsification and the subsequent
charge of causing undue in injury and damage to the Government?
We can, in retrospect, argue that Arias should have probed records, inspected documents,
received procedures, and questioned persons. It is doubtful if any auditor for a fairly sized office
could personally do all these things in all vouchers presented for his signature. The Court would
be asking for the impossible. All heads of offices have to rely to a reasonable extent 'on their
subordinates and on the good faith of those prepare bids, purchase supplies, or enter into
negotiations. If a department secretary entertains important visitors, the auditor is not ordinarily
expected to call the restaurant about the amount of the bill, question each guest whether he was
present at the luncheon, inquire whether the correct amount of food was served and
otherwise personally look into the reimbursement voucher's accuracy, propriety, and sufficiency.
There has to be some added reason why he should examine each voucher in such detail. Any
executive head of even small government agencies or commissions can attest to the volume of
papers that must be signed. There are hundreds of document , letters and supporting paper that
routinely pass through his hands. The number in bigger offices or departments is even more
appalling.
There should be other grounds than the mere signature or approval appearing on a voucher to
sustain a conspiracy charge and conviction.
Was petitioner Arias part of the planning, preparation, and perpetration of the alleged conspiracy
to defraud the government?
Arias joined the Pasig office on July 19, 1978. The negotiations for the purchase of the property
started in 1977. The deed of sale was executed on April 20, 1978. Title was transferred to the
Republic on June 8, 1978. In other words, the transaction had already been consummated before
his arrival. The pre-audit, incident to payment of the purchase, was conducted in the first week
of October, 1978. Arias points out that apart from his signature linking him to the signature on
the voucher, there is no evidence transaction. On the contrary, the other co-accused testified they
did not know him personally and none approached him to follow up the payment.
Should the big amount of P1,520,320.00 have caused him to investigate . gate the smallest detains
of the transaction?
Yes, if the land was really worth only P5.00 a square meter. However, if land in Pasig was already
worth P80.00 a square meter at the time, no warning bell of intuition would have sounded an
inner alarm. Land along Ortigas Avenue on the way to Pasig is now worth P20,000.00 to
P30,000.00 a square meter. The falsification of the tax declaration by changing "riceland" to
"residential' was done before Arias was assigned to Pasig besides, there is no such thing as
"riceland" in inner Metro Manila. Some lots in outlying or easily flooded areas may still be planted
to rice or kangkong but this is only until the place is dedicated to its real purpose which is
commercial, industrial, or residential. If the Sandiganbayan is going to send somebody to jail for
six years, the decision should be based on firmer foundation.
The Sandiganbayan asked why Arias kept the documents from October, 1978 to June 23, 1982.
Arias explained that the rules of the Commission on Audit require auditors to keep these d
documents and under no circumstance to relinquish custody to other persons. Arias was auditor
of the Bureau of Public Works in Pasig up to September 1, 1981. The seven months delay in the
formal turnover of custody to the new auditor was explained by prosecution witness Julito Pesayco,
who succeeded him as auditor and who took over the custody of records in that office.
The main reason for the judgment of conviction, for the finding of undue injury and damage to
the Government is the alleged gross overprice for the land purchased for the floodway project.
Assuming that P80.00 is indeed exorbitant, petitioner Arias cites his testimony as follows:
The Solicitor General summarizes the participation of petitioner Data as follows:
As regards petitioner Data's alleged participation, the evidence on record shows that as
the then District Engineer of the Pasig Engineering District he created a committee,
headed by Engr. Priscillo Fernando with Ricardo Asuncion, Alfonso Mendoza, Ladislao
Cruz, Pedro Hucom and Carlos Jose, all employees of the district office, as members,
specifically to handle the Mangahan Floodway Project, gather and verify documents,
conduct surveys, negotiate with the owners for the sale of their lots, process claims and
prepare the necessary documents; he did not take any direct and active part in the
acquisition of land for the Mangahan floodway; it was the committee which determined
the authenticity of the documents presented to them for processing and on the basis
thereof prepared the corresponding deed of sale; thereafter, the committee submitted
the deed of sale together with the supporting documents to petitioner Data for signing;
on the basis of the supporting certified documents which appeared regular and
complete on their face, petitioner Data, as head of the office and the signing authority
at that level, merely signed but did not approve the deed of sale (Exhibit G) as the
approval thereof was the prerogative of the Secretary of Public Works; he thereafter
transmitted the signed deed of sale with its supporting documents to Director Anolin of
the Bureau of Public Works who in turn recommended approval thereof by the Secretary
of Public Works; the deed of sale was approved by the Asst. Secretary of Public Works
after a review and re-examination thereof at that level; after the approval of the deed
of sale by the higher authorities the covering voucher for payment thereof was prepared
which petitioner Data signed; petitioner Data did not know Gutierrez and had never met
her during the processing and payment of her claims (tsn, February 26, 1987, pp. 10-
14, 16-24, 31-32). (At pp. 267-268, Rollo.)
On the alleged conspiracy, the Solicitor General argues:
It is respectfully submitted that the prosecution likewise has not shown any positive
and convincing evidence of conspiracy between the petitioners and their co-accused.
There was no direct finding of conspiracy. Respondent Court's inference on the alleged
existence of conspiracy merely upon the purported 'pre-assigned roles (of the accused)
AMCVB CRIM 1 [Art. 8-11] (5)| 39
 in the commission of the (alleged) illegal acts in question is not supported by any
evidence on record. Nowhere in the seventy- eight (78) page Decision was there any
specific allusion to some or even one instance which would link either petitioner Arias
or Data to their co-accused in the planning, preparation and/or perpetration, if any, of
the purported fraud and falsifications alleged in the information That petitioners Data
and Arias happened to be officials of the Pasig District Engineering Office who signed
the deed of sale and passed on pre-audit the general voucher covering the subject sale,
respectively, does hot raise any presumption or inference, that they were part of the
alleged plan to defraud the Government, as indeed there was none. It should be
remembered that, as aboveshown, there was no undue injury caused to the
Government as the negotiated purchase of the Agleham property was made at the fair
and reasonable price of P80.00 per square meter.
That there were erasures and superimpositions of the words and figures of the purchase
price in the deed of sale from P1,546,240.00 to P1,520,320.00 does not prove
conspiracy. It may be noted that there was a reduction in the affected area from the
estimated 19,328 square meters to 19,004 square meters as approved by the Land
Registration Commission, which resulted in the corresponding reduction in the purchase
price from P1,546,240.00 to Pl,520,320.00. The erasures in the deed of sale were simple
corrections that even benefited the Government.
Moreover, contrary to the respondent Court's suspicion, there was nothing irregular in
the use of the unapproved survey plan/technical description in the deed of sale because
the approval of the survey plan/ technical description was not a prerequisite to the
approval of the deed of sale. What is important is that before any payment is made by
the Government under the deed of sale the title of the seller must have already been
cancelled and another one issued to the Government incorporating therein the technical
description as approved by the Land Registration Commission, as what obtained in the
instant case. (At pp. 273-275, Rollo)

We agree with the counsel for the People. There is no adequate evidence to establish the guilt of
the petitioners, Amado C. Arias and Cresencio D. Data, beyond reasonable doubt. The inadequate
evidence on record is not sufficient to sustain a conviction.
WHEREFORE, the questioned decision of the Sandiganbayan insofar as it convicts and sentences
petitioners Amado C. Arias and Cresencio D. Data is hereby SET ASIDE. Petitioners Arias and Data
are acquitted on grounds of reasonable doubt. No costs.
SO ORDERED.

AMCVB CRIM 1 [Art. 8-11] (5)| 40

ARTICLE 11 (1)
9. US v. DOMEN
G.R. No. L-12963 October 25, 1917
MALCOLM, J.:
The defendant and appellant frankly admits that a wound inflicted by him with a tuba knife on
the right arm of Victoriano Gadlit caused the death of the latter. The appellant, however, advances
the claim, that he should be exempted from criminal liability because of having acted in defense
of his person. Let us, therefore, examine the evidence to ascertain if the decision of the trial court
finding the defendant and appellant guilty of homicide should be sustained or whether as
contended by counsel and as recommended by the Attorney-General the defendant should be
acquitted.
The widow took the stand for the prosecution and testified that the accused made an unprovoked
attack upon her husband at the foot of the stairway leading up into their house, and that this
attack was also witnessed by a neighbor, Angel Pocong. But Angel Pocong testified that he was
absent from home at the time in question, and that all that he knew of the fight was what was
told him by the widow. The court found that the widow was mistaken in her testimony. Not
considering, therefore, her testimony, the prosecution has in addition only the testimony of
Filomeno Antipuesto, who told of the accused having admitted that he had wounded the deceased,
and the testimony of Angel Pocong as to the death of the deceased while being carried in a
hammock. We must then perforce rely on the evidence for the defense. From the testimony of
two witnesses who claimed to have seen what occurred and the testimony of the defendant, it
appears that the defendant and the deceased quarrelled about a carabao of the defendant, which
the deceased said had gotten into his corn patch; that the deceased attacked the defendant and
struck him with a piece of wood called "Japanese," about a vara in length and about the size of
one's wrist; that the deceased struck at the accused four or five times; and that the accused did
not retreat but struck back wounding the deceased on the forearm.
The facts stated present a close question for the decision. Admitting that there was unlawful
aggression on the part of the deceased, the doubt centers around the point as to whether there
was reasonable necessity for the means employed by the defendant to repel the attack. Resolving,
as it is our duty to do, any doubt in favor of the accused, and passing by well known principles of
the criminal law, we come to the case of United States vs. Molina ([1911] 19 Phil., 227), and the
doctrines therein enunciated. In the opinion handed down in this case by Mr. Justice Mapa, it is
held that: (1) During an unlawful attack by another and while a struggle is going on and the
danger to his person or to his life continues, the party assaulted has a right to repel the danger
by wounding his adversary, and if, necessary, to disable him; (2) the fact that a person when
assaulted does not flee from his assailant is not sufficient reason for declining in a proper case to
uphold the rational necessity of the means employed in repelling the illegal attack.
The first proposition of the Molina opinion is in accord with the settled jurisprudence of this court.
(See U. S. vs. Laurel [1912], 22 Phil., 252; U. S. vs. Patoto [1914], 28 Phil., 535.) The second
proposition dealing with the necessity of retreat by the accused can be further examined in the
light of controlling authorities. The ancient common law rule in homicide was denominated "retreat
to the wall." This doctrine makes it the duty of a person assailed to retreat as far as he can before
he is justified in meeting force with force. This principle has now given way in the United States
to the "stand ground when in the right" rule. The Supreme Court of the United States carefully
examined the application of the two doctrines in Beard vs. United States ([1894] 158 U. S., 550).
In the opinion handed down by Mr. Justice Harlan reference is made approvingly to the decision
of the Supreme Court of Ohio in Erwin vs. State ([1876] 29 Ohio St., 186) in which it is said:
It is true that all authorities agree that the taking of life in defense of one's person
cannot be either justified or excused, except on the ground of necessity; and that such
necessity must be imminent at the time; and they also agree that no man can avail
himself of such necessity if he brings it upon himself. The question, then, is simply this:
Does the law hold a man who is violently and feloniously assaulted responsible for
having brought such necessity upon himself, on the sole ground that he failed to fly
from his assailant when he might safely have done so? The law, out of tenderness for
human life and the frailties of human nature, will not permit the taking of it to repel a
mere trespass, or even to save life where the assault is provoked; but a true man, who
is without fault, is not obliged to fly from an assailant, who, by violence or surprise,
maliciously seeks to take his life or do him enormous bodily harm.
Justice Harlan then concludes his opinion with these words:
The defendant was where he had the right to be, when the deceased advanced upon
him in a threatening manner, and with a deadly weapon; and if the accused did not
provoked the assault and had at the time reasonable grounds to believe and in good
faith believed, that the deceased intended to take his life or do him great bodily harm,
he was not obliged to retreat, nor consider whether he could safely retreat, but was
entitled to stand his ground and meet any attack made upon him with a deadly weapon,
in such way and with such force as, under all circumstances, he, at the moment,
honestly believed, and had reasonable grounds to believe, was necessary to save his
own life or to protect himself from great bodily injury.
The same Court reexamined and reaffirmed the doctrine in Rowe vs. United States ([1896] 164
U. S., 546).
We can do no better than to paraphrase the language of these well considered opinions for our
present purpose. The accused did not provoke the assault. The accused was where he had a right
to be. The law did not require him to retreat when his assailant was rapidly advancing upon him
in a threatening manner with a deadly weapon. The accused was entitled to do whatever he had
reasonable grounds to believe at the time was necessary to save his life or to protect himself from
great bodily harm. The element of practicability made it impossible for him to determine during
the heat of a sudden attack whether he would increase or diminish the risk to which exposed by
standing his ground or stepping aside. His resistance was not disproportionate to the assault. The
wound was inflicted, not on what is usually a vital part of the body but on the arm as one would
naturally strike to defend himself. Viewed from all angles, we believe this is a "proper case" for
the exemption of the accused from criminal liability because of having acted in legitimate defense
of his person.
Agreeable to the recommendation of the Attorney-General and in conformity with the proof,
judged in connection with the principles just stated, we must reverse the judgment of the trial
court and acquit the defendant and appellant of the crime charged, with the costs of both
instances de officio. So ordered.
AMCVB CRIM 1 [Art. 8-11] (5)| 41
10. DELA CRUS v. PEOPLE
G.R. No. 189405 November 19, 2014
DECISION
PERALTA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to annul
and set aside the May 7, 2009 Decision1 of the Court of Appeals, in CA-G.R. CV No. 89257, finding
petitioner Sherwin Dela Cruz guilty beyond reasonable doubt of the crime of Homicide, and its
August 19, 2009 Resolution2 denying his motion for reconsideration.
Petitioner was charged with the crime of Homicide in an Information 3 dated March 2, 2005, which
alleged:
That on or about the 1st day of January 2005, in the City of Makati, Philippines and within the
jurisdiction of this Honorable Court, the abovenamed accused, with intent to kill and with the use
of an unlicensed firearm, did then and there wilfully, unlawfully and feloniously att ack, assault
and shoot one JEFFREY WERNHER GONZALES Y LIM on the head, thereby inflicting upon the
latter serious and moral gunshot wound which directly caused his death.
CONTRARY TO LAW. 4
According to the prosecution, on January 1, 2005, at around 2:30 in the afternoon, petitioner
went to the office of Sykes Asia Inc. located at the 25th Floor of Robinson’s Summit Center,Ayala
Avenue, Makati City. When petitioner was already inside the building, he went to the work station
of the deceased victim, Jeffrey Wernher L. Gonzales (Jeffrey), who, by the configuration of the
eye witness Antonette Managbanag’s sketch, was seated fronting his computer terminal, with his
back towards the aisle. As petitioner approached Jeffrey from the back, petitioner was already
holding a gun pointed at the back of Jeffrey’s head. At the last second, Jeffrey managed to deflect
the hand of petitioner holding the gun, and a short struggle for the possession of the gun ensued
thereafter. Petitioner won the struggle and remained in possession of the said gun. Petitioner then
pointed the gun at Jeffrey’s face, pulled the trigger four (4) times, the fourth shot finally
discharging the bullet that hit Jeffrey in the forehead, eventually killing him. Finally, after shooting
Jeffrey, petitioner fled the office.
The defense recounted a different version of the facts.
Petitioner claimed that on January1, 2005, at around 2:30 in the afternoon, more or less, petitioner,
together with his children, went to Sykes Asia, the workplace of his wife, Darlene Dela Cruz
(Darlene), located at the 25th Floor of Robinson’s Summit Building in Makati City, to fetch the
latter so that their family could spend time and celebrate together the New Year’s Day. Before
entering the Robinson’s Summit Building, petitioner underwent the regular security check-
up/procedures. He was frisked by the guards-on-duty manning the main entrance of said building
and no firearm was found in his possession. He registered his name at the security logbook and
surrendered a valid I.D.
Upon reaching the 25th Floor of the same building, a security guard manning the entrance once
again frisked petitioner and, likewise, found no gun in his possession; hence, he was allowed to
enter the premises of Sykes Asia. The security guard also pointed to him the direction towards his
wife’s table.
However, as Darlene was then not on her table, petitioner approached a certain man and asked
the latter as to the possible whereabouts of Darlene. The person whom petitioner had talked
towas the deceased-victim, Jeffrey. After casually introducing himself as the husband of Darlene,
Jeffrey curtly told him, "Bakit mo hinahanap si Darlene?"to which he answered, "Nagpapasundo
kasi sa akin."The response given by Jeffrey shocked and appalled petitioner: "Ayaw na nga ng
asawa mo sayo sinusundo mo pa!"
Shocked by the words and reaction of Jeffrey, petitioner tried to inquire from Jeffrey who he was.
But Jeffrey suddenly cursed petitioner. Then, Jeffrey suddenly picked up something in his chair
which happened to be a gun and pointed the same at petitioner’s face followed by a clicking sound.
The gun, however, did not fire.
Seeing imminent danger to his life,petitioner grappled with Jeffrey for the possession of the
gun.While grappling, the gunclicked for two (2) to three (3) more times. Again, the gun did not
fire.
Petitioner was able to wrest away the gun from Jeffrey and tried to run away to avoid any further
confrontation with the latter.However, Jeffrey immediately blocked petitioner’s path and shouted,
"Guard! Guard!" Immediately then, Jeffrey took hold ofa big fire extinguisher, aimed and was
about to smash the same on petitioner’s head.
Acting instinctively, petitioner parried the attack while still holding the gun. While in the act of
parrying, the gun accidentally fired due to the reasonable force and contact that his parrying hand
had made with the fire extinguisher and the single bullet discharged hit the forehead of Jeffrey,
which caused the latter to fall on the floor and die.
Petitioner left the gun and went out ofthe premises of Sykes Asia and proceeded towards the
elevator. On his way to the elevator, he heard Darlene shout, "Sherwin anong nangyari?", but he
was not able to answer.
After said incident, Darlene abandoned petitioner and brought with her their two (2) young
children. Petitioner later learned that Darlene and Jeffrey had an illicit relationship when he
received a copy of the blog of Darlene, dated January 30, 2005, sent by his friend.
During his arraignment, on August 22, 2005, petitioner, with the assistance of counsel, pleaded
"Not Guilty" to the charge. Thereafter, pretrial conference was conducted on even date and trial
on the merits ensued thereafter.
During the trial of the case, the prosecution presented the oral testimonies of Marie Antonette
Managbanag (Managbanag), Maria Angelina Pelaez (Pelaez) and Carlos Alberto Lim Gonzales
(Gonzales), respectively. The prosecution likewise formally offered several pieces of documentary
evidence to support its claim.
For its part, the defense presented aswitnesses, petitioner himself; his brother, Simeon Sander
Dela Cruz III (Cruz), Greg Lasmarias Elbanvuena (Elbanvuena) and Managbanag, who was
recalled to the witness stand as witness for the defense.
On February 26, 2007, the Regional Trial Court (RTC)of Makati City, Branch 147, rendered a
Decision5 finding petitioner guilty beyond reasonable doubt of the crime of Homicide, as defined
and penalized under Article 249 of the Revised Penal Code (RPC), the fallo thereof reads:
WHEREFORE, Judgment is rendered finding herein accused Sherwin Dela Cruz y Gloria Guilty
beyond reasonable doubt of the crime of Homicide as defined and penalized under Art. 249 of the
Revised Penal Code, and sentencing him to suffer the indeterminate penalty of Eight (8) years
and One (1) day of prision mayor medium as Minimum to Fourteen (14) years eight (8) months
and one (1) day of reclusion temporal medium as Maximum; to indemnify the Heirs of Jeffrey
Wernher Gonzales y Lim in the amount of ₱50,000.00 plus moral damages in the amount of ₱1
Million, and to pay the costs.
SO ORDERED. 6
AMCVB CRIM 1 [Art. 8-11] (5)| 42
On March 28, 2007, petitioner filed a Notice of Appeal, while private respondent, through the
private prosecutor, filed a Notice of Appeal on April 11, 2007 insofar as the sentence rendered
against petitioner is concerned and the civil damages awarded.
After the denial of their motion for reconsideration, petitioner elevated the case to the Court of
Appeals (CA). However, the latter denied their appeal and affirmed the RTC decision with
modification on the civil liability of petitioner. The decretal portion of the Decision 7 reads:
WHEREFORE, we hereby AFFIRM the Decision of the Regional Trial Court of Makati, Branch 147
dated 26 February 2007 finding accused-appellant Sherwin Dela Cruz y Gloria GUILTY beyond
reasonable doubt of the crime ofHomicide with the following MODIFICATIONS:
(1) to pay the heirs of the victim the amount of ₱50,000.00 as civil indemnity;
(2) the amount of ₱50,000.00 as moral damages;
(3) the amount of ₱25,000.00 as temperate damages;
(4) the amount of ₱3,022,641.71 as damages for loss of earning capacity.
(5) to pay the costs of the litigation.
SO ORDERED. 8
Petitioner's motion for reconsideration was denied. Hence, the present petition.
Raised are the following issues for resolution:
1. WHETHER ALL THE REQUISITES OF THE JUSTIFYING CIRCUMSTANCE OF SELF-
DEFENSE, AS PROVIDED FOR BY LAW AND SETTLED JURISPRUDENCE, ARE
PRESENT IN THIS CASE.
2. WHETHER THE FIRING OF THE GUN WHEREIN ONLY A SINGLE BULLET WAS
DISCHARGED THEREFROM WAS MERELY ACCIDENTAL WHICH OCCURRED DURING
THE TIME THAT THE PETITIONER-APPELLANT WAS STILL IN THE ACT OF DEFENDING
HIMSELF FROM THE CONTINUOUS UNLAWFUL AGGRESSION OF THE DECEASED
VICTIM.
2. WHETHER THE PROSECUTION WAS ABLE TO PROVE ALL THE ESSENTIAL
ELEMENTS CONSTITUTING THE CRIME OF HOMICIDE.
3. WHETHER THE PRIVILEGED MITIGATING CIRCUMSTANCE OF SELF-DEFENSE IS
APPLICABLE IN THIS CASE.
5. WHETHER PETITIONER-APPELLANT MAY BE HELD CIVILLY LIABLE FOR THE DEATH
OF THE VICTIM ARISING FROM THE ACCIDENT THAT TRANSPIRED. 9
There is no question that petitioner authored the death of the deceased-victim, Jeffrey. What is
leftfor determination by this Court is whether the elements of self-defenseexist to exculpate
petitioner from the criminal liability for Homicide.
The essential requisites of self-defense are the following: (1) unlawful aggression on the part of
the victim; (2) reasonable necessity of the means employed to prevent or repel such aggression;
and (3) lackof sufficient provocation on the part of the person resorting to self-defense.10 In other
words, there must have been an unlawful and unprovoked attack that endangered the life of the
accused, who was then forced to inflict severe wounds upon the assailant by employing reasonable
means to resist the attack.11
Considering that self-defense totally exonerates the accused from any criminal liability, it is well
settled thatwhen he invokes the same, it becomes incumbent upon him to prove by clear and
convincing evidence that he indeed acted in defense of himself. 12 The burden of proving that the
killing was justified and that he incurred no criminal liability therefor shifts upon him. 13 As such,
he must rely on the strength of his own evidence and not on the weakness of the prosecution for,
even if the prosecution evidence is weak, it cannot be disbelieved after the accused himself has
admitted the killing.14
Measured against this criteria, wefind that petitioner's defense is sorely wanting. Hence, his
petition must be denied.
First. The evidence on record does not support petitioner's contention that unlawful aggression
was employed by the deceased-victim, Jeffrey, against him.
Unlawful aggression is the most essential element of self-defense. It presupposes actual, sudden,
unexpected or imminent danger — not merely threatening and intimidating action. 15 There is
aggression, only when the one attacked faces real and immediate threat to his life. 16 The peril
sought to be avoided must be imminent and actual, not merely speculative.17 In the case at bar,
other than petitioner’s testimony, the defense did not adduce evidence to show that Jeffrey
condescendingly responded to petitioner’s questions or initiated the confrontation before the
shooting incident; that Jeffrey pulled a gun from his chair and tried to shoot petitioner but failed
— an assault which may have caused petitioner to fear for his life.
Even assuming arguendothat the gun originated from Jeffrey and an altercation transpired, and
therefore, danger may have in fact existed, the imminence of that danger had already ceased the
moment petitioner disarmed Jeffrey by wresting the gun from the latter. After petitioner had
successfully seized it, there was no longer any unlawful aggression to speak of that would have
necessitated the need to kill Jeffrey. As aptly observed by the RTC, petitioner had every
opportunity to run away from the scene and seek help but refused to do so, thus:
In this case, accused and the victim grappled for possession of the gun. 1avvphi1 Accused
admitted that he wrested the gun from the victim. From that point in time until the victim shouted
"guard, guard", then took the fire extinguisher, there was no unlawful aggression coming from
the victim. Accused had the opportunity to run away. Therefore, even assuming that the
aggression with use of the gun initially came from the victim, the fact remains that it ceased when
the gun was wrested away by the accused from the victim. It is settled that when unlawful
aggression ceases, the defender no longer has any right to kill or wound the former aggressor,
otherwise, retaliation and not self-defense is committed (Peo Vs. Tagana, 424 SCRA 620). A
person making a defense has no more right to attack an aggressor when the unlawful aggression
has ceased (PeoVs. Pateo, 430 SCRA 609).
Accused alleged that the victimwas about to smash the fire extinguisher on his (accused’s)
headbut he parried it with his hand holding the gun. This is doubtful as nothing in the records is
or would be corroborative of it.In contrast, the two (2) Prosecution witnesses whose credibility
was not impeached, both gave the impression that the victim got the fire extinguisher to
shieldhimself from the accused who was then already in possession of the gun. 18
Thus, when an unlawful aggression that has begun no longer exists, the one who resorts to self-
defense has no right to kill or even wound the former aggressor. 19 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 the offender. 20 Undoubtedly, petitioner went beyond the call of self-preservation
when he proceeded to inflict excessive, atrocious and fatal injuries on Jeffrey, even when the
allegedly unlawful aggression had already ceased.
More, a review of the testimony of the prosecution witness, Pelaez, will show that if there was
unlawful aggression in the instant case, the same rather emanated from petitioner, thus:
DIRECT EXAMINATION (TSN, Oct. 17, 2005, pp. 26-27)21
AMCVB CRIM 1 [Art. 8-11] (5)| 43
Clearly, petitioner's allegation that when he approached Jeffrey, the latter pulled a gun from his
chair and tried to shoot him, is not corroborated by separate competent evidence. Pitted against
the testimony of prosecution witnesses, Managbanag and Pelaez, it pales incomparison and loses
probative value. We have, on more thanone occasion, ruled that the plea of self-defense cannot
be justifiably entertained where it is not only uncorroborated by any separate competent evidence
but also extremely doubtful in itself.22
In addition, other than petitioner’s testimony, there is dearth of evidence showing that the alleged
unlawful aggression on the part of Jeffrey continued when he blocked the path of petitioner while
the latter tried to run away to avoid further confrontation with Jeffrey. We also agree with the
findings of the RTC that there was no proof evincing that Jeffrey aimed and intended to smash
the big fire extinguisher on petitioner’s head. Alternatively, the prosecution witnesses maintained
an impression that Jeffrey used the same to shield himself from petitioner who was then in
possession of the gun, a deadly weapon. An excerpt of the testimony of Managbanag bares just
that, to wit:
(Direct Examination of Marie Antonette Managbanag for the Defense, TSN dated 04 September
2006, pp. 12-17, emphasis supplied)23
Petitioner’s contention that Jeffrey’s unlawful aggression was continuous and imminent is,
therefore, devoid of merit.
Given that the criteria of unlawful aggression is indubitably absent in the instant case, the severe
wounds inflicted by petitioner upon Jeffrey was unwarranted and, therefore, cannot be considered
a justifying circumstance under pertinent laws and jurisprudence.
Second. Even assuming that the unlawful aggression emanated from the deceased victim, Jeffrey,
the means employed by petitioner was not reasonably commensurate to the nature and extent of
the alleged attack, which he sought to avert. As held by the Court in People v. Obordo: 24
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 Homer's punch was
reasonable. The means employed by the person invoking self-defense contemplates a rational
equivalence between the means of attack and the defense. Accused appellant 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 ofthe victim's 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.25
Indeed, the means employed by a person resorting to self-defense must be rationally necessary
to prevent or repel an unlawful aggression. The opposite was, however, employed by petitioner,
as correctly pointed out by the RTC, thus:
The victim was holding the fire extinguisher while the second was holding the gun. The gun and
the discharge thereof was unnecessary and disproportionate to repel the alleged aggression with
the use of fire extinguisher. The rule is that the means employed by the person invoking self-
defense contemplates a rational equivalence between the means of attack and the defense (Peo
vs. Obordo, 382 SCRA 98).
It was the accused who was in a vantage position as he was armed with a gun, as against the
victim who was armed, so to speak, with a fire extinguisher, which is not a deadly weapon. Under
the circumstances, accused’s alleged fear was unfounded. The Supreme Court has ruled that
neither an imagined impending attack nor an impending or threatening attitude is sufficient to
constitute unlawful aggression (Catalina Security Agency Vs. Gonzales-Decano, 429 SCRA 628).
It is a settled rule that to constitute aggression, the person attacked must be confronted by a real
threat on his lifeand limb; and the peril sought to be avoided is imminent and actual, not merely
imaginary (Senoja v. Peo., 440 SCRA 695).26
If petitioner had honestly believed that Jeffrey was trying to kill him, he should have just run,
despite any obstruction, considering that he was already in possession of the gun. He could have
also immediately sought help from the people around him, specifically the guard stationed at the
floor where the shooting incident happened. In fact, he could have reported the incident to the
authorities as soon as he had opportunity to do so, if it was indeed an accident or a cry of self-
preservation. Yet, petitioner never did any of that.
We find it highly specious for petitioner to go through the process of tussling and hassling with
Jeffrey, and inthe end, shooting the latter on the forehead, not only once, but four times, the last
shot finally killing him, if he had no intention to hurt Jeffrey. Thus:
Moreover, the Prosecution’s eyewitnesses were consistent in declaring that while there was prior
struggle for the possession of the gun, it was nevertheless accused who was holding the gun at
the time of the actual firing thereof (TSN, p. 30, October 10, 2005; TSN, p. 14, October 17, 2005).
Witness Managbanag even alleged that while the victim (Jeffrey), who was in possession of the
fire extinguisher, and the accused were pushing each other, accused pointed the gun at the victim.
She heard three (3) clicks and on the 4th , the gun fired (TSN, p. 12, October 10, 2005). Under
the circumstances, it cannot be safely said that the gun was or could have been fired accidentally.
The discharge of the gun which led to the victim’s death was no longer made in the course of the
grapple and/or struggle for the possession of the gun. 27
The observation of the RTC dispels any doubt that the gun may have been shot accidentally to
the detriment of Jeffrey. The fire was neither a disaster nor a misfortune of sorts. While petitioner
may nothave intended to kill Jeffrey at the onset, at the time he clicked the trigger thrice
consecutively, his intent to hurt (or even kill) Jeffrey was too plain to be disregarded. We have
held in the pastthat the nature and number of wounds are constantly and unremittingly considered
important indicia which disprove a plea of self-defense.28 Thus, petitioner’s contention that an
accident simultaneously occurred while hewas in the act of self-defense is simply absurd and
preposterous at best. There could nothave been an accident because the victim herein suffered a
gunshot wound on his head, a vital part of the body and, thus, demonstrates a criminal mind
resolved to end the life of the victim.
Besides, petitioner’s failure to inform the police of the unlawful aggression on the part of Jeffrey
and to surrender the gun that he used to kill the victim militates against his claim of self-defense.29
In view of the foregoing, we find it illogical to discuss further the third element of self-defense
since it is recognized that unlawful aggression is a conditio sine qua nonfor upholding the justifying
circumstance of self-defense.30 If there is nothing to prevent or repel, the other two requisites of
self-defense will have no basis.31 Hence, there is no basis to entertain petitioner’s argument that
a privileged mitigating circumstance of selfdefense is applicable in this case, because 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. 32
Anent petitioner’s argument thatthe RTC erred when it failed to consider as suppression of
evidence the prosecution’s alleged deliberate omission to present the testimonies of the security
guards-on-duty at the time of the shooting incident, the same fails to persuade. We concur with
the decision of the CA on this point, to wit:
Having admitted the killing of the victim, the burden of evidence that he acted in self-defense,
shifted to accused-appellant Dela Cruz. He must rely on the strength of his own evidence and not
on the weakness of the prosecution’s evidence, for, even if the latter were weak, it could not be
disbelieved after his open admission of responsibility for the killing.
The security guards on duty at the time of the subject incident were at the disposal of both the
prosecution and the defense. The defense did not proffer proof that the prosecution prevented
AMCVB CRIM 1 [Art. 8-11] (5)| 44
the security guards from testifying. There is therefore no basis for it to conclude that the
prosecution is guilty of suppression of evidence.
The defense could have easily presented the security guards if it is of the opinion that their [the
security guards] testimonies were vital and material to the case of the defense. It could have
compelled the security guards on duty to appear before the court. xxx.33
It is worthy to note that the question of whether petitioner acted in self-defense is essentially a
question of fact. 34 It is the peculiar province of the trial court to determine the credibility of
witnesses and related questions of fact because of its superior advantage in observing the conduct
and demeanor of witnesses while testifying. 35 This being so and in the absence of a showing that
the CA and the RTC failed to appreciate facts or circumstances of such weight and substance that
would have merited petitioner's acquittal, this Court finds no compelling reason to disturb the
ruling of the CA that petitioner did not act in self-defense.36
In this regard, we do not subscribe to petitioner’s contention that since the incident transpired in
Jeffrey’s office, and the witnesses presented by the prosecution are known officemates of Jeffrey,
the witnesses are expected to testify in favor of Jeffrey and against petitioner. Ascorrectly pointed
out by respondent, there appears no motive on the part of the prosecution witnesses to falsely
testify against petitioner.37 The fact that they are officemates of Jeffrey does not justify a
conclusion that Managbanag and Pelaez would concoct or fabricate stories in favorof Jeffrey for
the mere purpose of implicating petitioner with such a serious crime, especially since they are
testifying under oath.
All told, we find no basis to doubt ordispute, much less overturn, the findings of the RTC and the
CA that the elements of homicide are present in the instant case as amply shown by the
testimonies of the prosecution eyewitnesses, and they constitute sufficient proof of the guilt of
petitioner beyond cavil or doubt.
case in order, since the presence of special aggravating circumstance of use of unlicensed firearm
has been established. 39 Based on current jurisprudence, the award of exemplary damages for
homicide is ₱30,000.00.40
Finally, pursuant to this Court’s ruling in Nacar v. Gallery Frames, 41 an interest of six percent (6%)
per annum on the aggregate amount awarded for civil indemnity and damages for loss of earning
capacity shall be imposed, computed from the time of finality of this Decision until full payment
thereof.
WHEREFORE, the petition is DENIED. The May 7, 2009 Decision and August 19, 2009 Resolution
of the Court of Appeals in CA-G.R. CV No. 89257, finding petitioner Sherwin Dela Cruz guilty
beyond reasonable doubt of the crime of Homicide, are hereby AFFIRMED with MODIFICATIONS,
to wit:
(1) Petitioner shall be sentenced to an indeterminate penalty of from ten (10) years and one (1)
day of prision mayor maximum, as the minimum penalty, to seventeen (17) years, four (4) months
and one (1) day of reclusion temporal maximum, as the maximum penalty;
(2) Petitioner is likewise ORDERED to pay the heirs of the victim the following:
a. the amount of ₱50,000.00 as civil indemnity;
b. the amount of ₱50,000.00 as moral damages;
c. the amount of ₱25,000.00 as temperate damages;
d. the amount of ₱30,000.00 as exemplary damages;
e. the amount of ₱3,022,641.71 as damages for loss of earning capacity;
f. for the civil indemnity and the damages for loss of earning capacity, an interest of six
percent (6%) per annum, computed from the time of finality of this Decision until full
payment thereof; and
g. the costs of the litigation.
SO ORDERED.

Nevertheless, with regard to the appreciation of the aggravating circumstance of use of an

unlicensed firearm, we deviate from the findings of the CA. A perusal of the Information will show
that the use of unlicensed firearm was expressly alleged in the killing of Jeffrey. This allegation
was further proved during trial by the presentation of the Certification from the PNP Firearms and
Explosives Division, dated November 11, 2005, certifying that petitioner is not a
licensed/registered firearm holder of any kind and calibre, per verification from the records of the
said Division. Accordingly, under Paragraph 3 of Section 1 of Republic Act (R.A.) No. 8294,
amending Section 1 of Presidential Decree (P.D.) No. 1866, such use of an unlicensed firearm
shall be considered as an aggravating circumstance, to wit:

xxxx
If homicide or murder is committed with the use of an unlicensed firearm, such use of an
unlicensed firearm shall be considered as an aggravating circumstance.

x x x x.

Under Article 249 of the RPC, the penalty for homicide is reclusion temporal. There being an
aggravating circumstance of use of unlicensed firearm, the penalty imposable on petitioner should
be in its maximum period. 38Applying the Indeterminate Sentence Law, the petitioner shall be
sentenced to an indeterminate penalty of from ten (10) years and one (1) day of prision mayor
maximum, as the minimum penalty, to seventeen (17) years, four (4) months and one (1) day of
reclusion temporal maximum, as the maximum penalty.

As to the award of civil indemnity, moral damages, and damages for loss of earning capacity in
favor ofprivate respondent, we sustain the findings of the CA in so far as they are in accordance
with prevailing jurisprudence. In addition, we find the grant of exemplary damages in the present

AMCVB CRIM 1 [Art. 8-11] (5)| 45

11. PEOPLE v. RAYTOS
June 7, 2017 G.R. No. 225623
DECISION
CAGUIOA, J.:
Before this Court is an appeal 1 filed under Section 13, Rule 124 of the Rules of Court from the
Decision 2 dated February 26, 2016 (questioned Decision) of the Court of Appeals, Nineteenth
(19th) Division (CA) in CA-G.R. CR-HC. No. 01556. The questioned Decision affirmed the
Decision3 dated November 5, 2012 of the Regional Trial Court of Calbiga, Samar, Branch 33 (RTC),
in Criminal Case No. C-2010-1748 (RTC Decision), finding herein accused-appellant Lorenzo E.
Raytos (Raytos) guilty of the crime of Murder under Article 248 of the Revised Penal Code (RPC).
The Information4 charging Raytos with Murder states as follows:
That on or about the (sic) 12:00 midnight, more or less, of February 1, 2010 at Barangay
Nagcaduha, Municipality of Villareal, Province of Samar, Philippines, and within the jurisdiction of
this Honorable Court, the abovenamed accused, with deliberate intent to kill, with treachery and
evident premeditation, which qualifies the offense to murder, did, then and there, willfully,
unlawfully and feloniously, attack, assault and stab DAVID ARAZA with the use of a short bladed
weapon, which accused had provided himself for the purpose, thereby inflicting and hitting the
victim fatal stab wounds on the different parts of his body, which wounds caused his death.
CONTRARY TO LAW. 5
Upon his arraignment, Raytos entered a plea of "not guilty," 6 and during the pre-trial conference,
Raytos invoked self-defense. 7 Trial ensued with the defense presenting its evidence first.
The Facts
The factual narrations, for both defense and prosecution, were summarized by the CA, as follows:
Version of the Defense
Raytos testified that he knew the victim, David Araza, since birth, who was residing in Brgy. Igot,
Villareal, Samar, which is 300 meters away from his residence in Brgy. Nagcaduha, Villareal, Samar.
On February 1, 2010, at around 8:00 in the evening, he was in Purok 1, Brgy. Nagcaduha Villareal,
Samar, coming from his cousin's place, when he was invited by Indo Sabio to partake on some
leftovers from the fiesta and to join them as a dance session was being held. He joined the table
where Indo Sabio, Anita Sabio, Kanor Sabio, Domingo Sabio, Romeo Nacase and Edgar Papiona
were seated. Seated on the other table beside them were Indo Sabio's wife, a certain Tina, Elsa
Sabio, Rudy Araza and Rudy's wife. At around 11:30 in the evening, David Araza (victim), coming
from Purok 2, passed by Purok 1 and was approached by Edgar Papiona, and the two danced.
After they danced, the victim approached the table where Anita Sabio was seated and invited her
to dance, but the latter refused. Thereafter, the victim and Edgar Papiona danced again. After
dancing, the victim approached again Raytos' table and asked who was brave enough while
drawing a knife tucked in the waistband of his pants. Raytos tried to escape by moving backwards
and, while doing so, he got hold of the victim's right hand. Raytos twisted the victim's arm, got
hold of the knife and then stabbed the victim several times on the chest. He delivered three (3)
successive stabbing blows in a quick and swift manner because he panicked. He ran away
immediately and surrendered himself to the barangay officials and they proceeded to the police
station.
Dionisio Mado y Bardaje (hereafter Mado) testified that he knew Raytos because the latter often
comes to Brgy. Guintarcan, where Mado resides. He also knew the victim personally. On February
1, 2010, at around 10:00 in the evening, he was at Brgy. Nagcaduha, Villareal, Samar, watching
the dance session being held, and he saw the victim enter the dance area and challenge the
people seated on one table to a fight. When the victim saw Raytos, he pointed at Raytos and said
"You are the one I want" and Raytos answered saying "I [h]ave no fault against you." Then, the
victim drew a knife from his waist and stabbed Raytos but the latter was able to parry the stabbing
blow and wrested possession of the knife from the victim. Mado recalled that Raytos used both
his hands in parrying the stabbing blow delivered by the victim and when Raytos got hold of the
knife, he stabbed the front portion of the victim's body. Mado did not see anything more because
Raytos ran away after the incident, and a commotion then ensued. 8
Version of the Prosecution
The prosecution presented three witnesses, Edgardo Papiona, Romeo Nacase and Francisca Araza,
whose testimonies constitute the following version:
Edgardo Papiona y Hermo (hereafter Papiona), a resident of Brgy. Nagcaduha, Villareal, Samar,
testified that he knew both the victim and Raytos. On February 1, 2010, at around 12:00 a.m., he
was in front of his house with Raytos and ten (10) others occupying three (3) tables and having
a dance session as it was just the day after their barangay fiesta. While he was dancing with the
victim, Raytos approached them and said that he wanted to dance with the victim. Papiona
acceded and went to the side of the road just an arm's length away from the dance area. From
his position at the side of the road, he saw Raytos stab the victim when the latter turned his back
from Raytos while dancing. Papiona recalled that he saw Raytos hold the right back shoulder of
the victim and stab the latter's back several times with the use of a knife measuring 8 inches in
length. Raytos then went to a hilly portion of their barangay while Papiona helped in loading the
victim on a truck and in bringing the latter to the hospital. He did not hear any argument from
both the victim and Raytos prior to the incident. Three days later, the victim died.
Romeo Nacase y Tarayo (hereafter Nacase), testified that he is a resident of Brgy. Nagcaduha,
Villareal, Samar, and knew both the victim and Raytos. On February 1, 2010, at around 9:00 in
the evening, he was having a drinking spree with the victim and a certain Dado Nacase. Soon
thereafter, he saw the victim and Edgar dancing and while the two danced, he saw Raytos pull a
knife from his pocket and approach the victim from the back. When the victim was about to tum
around, Raytos took hold of the victim's shirt and stabbed the victim in the back. He was about
4 Yi meters away when the incident happened. He did not hear the victim and Raytos argue or
talk before the stabbing incident.
Francisca Araza y Macasalabang (hereafter Francisca), wife of the victim, is left with eleven (11)
children. She presented and identified official receipts as proof of the expenses incurred for the
hospitalization and other medical expenses of her husband amounting to ₱4,986.00 and a
certification from Rendeza Funeral Parlor for embalming services amounting to ₱8,000.00. With
the death of her husband, she felt sadness, the heavy weight and of present future difficulties,
and longing for him that even the amount of ₱l,000,000.00 will be an insufficient compensation.
Her deceased husband used to earn an average monthly income of ₱2,000.00. 9
Ruling of the RTC
After trial on the merits, the R TC found Raytos guilty of the crime of Murder qualified by treachery:
WHEREFORE, premises considered, the court finds accused LORENZO RAYTOS Y ESPINO GUILTY
beyond reasonable doubt of the crime of Murder qualified by treachery, defined and penalized
under Article 248 of the Revised Penal Code and hereby sentences him to suffer the penalty
of reclusion perpetua.
He is likewise ordered to pay the heirs of the victim David Araza the following amounts:
1. ₱50,000.00 as civil indemnity;
2. ₱50,000.00 as moral damages;
3. ₱12,896.00 as actual damages.
No pronouncement as to costs.
SO ORDERED. 10
AMCVB CRIM 1 [Art. 8-11] (5)| 46

Raytos appealed to the CA via Notice of Appeal dated December 10, 2012. 11 Raytos then filed his
Brief dated March 16, 2015, 12 while the plaintiff-appellee, through the Office of the Solicitor
General, filed its Brief dated October 14, 2015. 13 In a Manifestation dated November 9, 2015,
Raytos waived his right to file a Reply Brief. 14
Ruling of the CA
In the questioned Decision, the CA affirmed Raytos' conviction while modifying the award of
damages. The dispositive portion reads:
WHEREFORE, the appeal is hereby DENIED. The Decision of the RTC, Branch 33, Calbiga, Samar,
in Criminal Case No. C-2010-1748 is hereby AFFIRMED with MODIFICATIONS. Lorenzo Raytos y
Espino is GUILTY beyond reasonable doubt of Murder and is sentenced to suffer the penalty
of reclusion perpetua. Raytos is further ordered to pay the heirs of the victim the following: civil
indemnity of ₱50,000.00, moral damages of ₱50,000.00, exemplary damages of ₱30,000.00 and
temperate damages of ₱25,000.00. The amounts of damages awarded are subject further to
interest of 6% per annum from the date of finality of this judgment until they are fully paid.
SO ORDERED. 15
On March 14, 2016, Raytos brought the instant case before this Court via Notice of Appeal 16 of
even date.
In lieu of supplemental briefs, Raytos and plaintiff-appellee filed separate manifestations
respectively dated February 9, 2017 17 and January 30, 2017, 18 foregoing their right to file the
same.
Issue
In the instant appeal, Raytos seeks to reverse the questioned Decision based on the following
assignment of errors:
[WHETHER OR NOT THE CA] ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME
OF MURDER AND NOT APPRECIATING THE SELF-DEFENSE INTERPOSED BY THE ACCUSED-
APPELLANT.
[WHETHER OR NOT THE CA] ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME
OF MURDER AS THE QUALIFYING CIRCUMSTANCE OF TREACHERY WAS NOT ESTABLISHED. 19
Simply put, the basic issue for the Court's resolution is whether Raytos' guilt for the crime of
Murder was sufficiently proven beyond reasonable doubt.
The Court's Ruling
The Court finds the appeal lacking in merit.
In this case, the opposing sides are incessant on the truthfulness of their version of the story,
which differ in material points of fact; the State, on one hand, has successfully presented strong
evidence of guilt for Murder, while Raytos, on the other hand, maintains his innocence based on
his plea of self-defense.
At this point, it bears noting that the issue of whether the accused acted in self-defense is
essentially a question of fact. 20 The RTC's assessment of the credibility of witnesses is accorded
great weight and respect, especially when affirmed by the CA. 21 This is a rule borne out of
necessity given the distinct vantage point of the trial court in observing and assessing the
witnesses while undergoing the rigors of direct and cross-examination; it is only in the crucible of
this exercise that the trial court is able to extract incommunicable evidence from the witnesses
based on their demeanor on the stand.22 Hence, in the absence of a clear showing that the lower
courts erred in their appreciation of the facts, or in their application of the pertinent laws and
jurisprudence to such facts, their findings will no longer be disturbed on appeal.
In fine, given the concurrent findings of guilt made by both the RTC and CA, the Court finds that
no cogent reason exists to reverse Raytos' conviction.
Raytos Failed To Establish TheElements Of Self-Defense
A plea of self-defense admits the commission of the act charged as a crime; accordingly, the onus
probandi falls on the accused to prove that such killing was justified - failure to discharge which
renders the act punishable. 23
Thus, to exonerate himself, the accused must establish: (i) that there was unlawful aggression by
the victim; (ii) that the means employed to prevent or repel such aggression were reasonable;
and (iii) that there was lack of sufficient provocation on his part. 24 Of the three, unlawful
aggression is the foremost requirement; absent such element, self-defense, whether complete or
incomplete, cannot be appreciated. 25
After poring over the records of this case, the Court is convinced that Raytos failed to establish
unlawful aggression on the part of the victim, David Araza (Araza). Necessarily, Raytos' claim of
self-defense has no more leg to stand on.
In his version of the incident, Raytos claimed that Araza drew a knife from his left waist following
a brief exchange of words between them. 26 Raytos then moved back, allegedly intending to
escape, but instead ended up wresting possession of the knife from Araza. 27 After doing so,
Raytos Araza stabbed numerous times, leading to the latter's demise. 28
The Court finds this narration of events to be incredible. Self-defense, like alibi, is a defense easy
to concoct. 29Testimonial evidence, to be believable, must not only proceed from the mouth of a
credible witness but must also be credible following common experience and leading to the
inference of its probability under the circumstances. 30Here, it is difficult to imagine how Raytos,
while attempting to escape, was suddenly able to grab hold of Araza's hand and after relieving
the latter of the knife, proceeded to stab him multiple times in quick succession:
Unlawful aggression is predicated on an actual, sudden, unexpected, or imminent danger - not
merely a threatening or intimidating action. 32 In People v. Dulin,33 the Court had the occasion to
elaborate on the kinds andnature of unlawful aggression, viz.:
Unlawful aggression is of two kinds: (a) actual or material unlawful aggression; and (b) imminent
unlawful aggression. Actual or material unlawful aggression means an attack with physical force
or with a weapon, an offensive act that positively determines the intent of the aggressor to cause
the injury. Imminent unlawful aggression means an attack that is impending or at the point of
happening; it must not consist in a mere threatening attitude, nor must it be merely imaginary,
but must be offensive and positively strong (like aiming a revolver at another with intent to shoot
or opening a knife and making a motion as if to attack). Imminent unlawful aggression must not
be a mere threatening attitude of the victim, such as pressing his right hand to his hip where a
revolver was holstered, accompanied by an angry countenance, or like aiming to throw a pot. 34
In People v. Escarlos,35 the Court ruled that the mere drawing of a knife by the victim does not
constitute unlawful aggression, whether actual or imminent, as the peril sought to be avoided by
the accused was both premature and speculative:
In the present case, appellant claims that there was unlawful aggression on the part of the victim
when the latter unceremoniously boxed him on the forehead in the heat of their argument.
Appellant adds that he had initially thought of hitting back when he noticed that the victim was
pulling out a kitchen knife. Hence, to save his life, the former grabbed the weapon and used it to
AMCVB CRIM 1 [Art. 8-11] (5)| 47
stab the latter. Appellant insists that under the circumstances, he was legally justified in using the
knife to ward off the unlawful aggression. For him to wait for the knife to be raised and to fall on
him before acting to defend himself would be asking too much, he argues.
The contentions of appellant are untenable. While the victim may be said to have initiated the
confrontation, we do not subscribe to the view that the former was subjected to an unlawful
aggression within the legal meaning of the phrase.
The alleged assault did not come as a surprise, as it was preceded by a heated exchange of words
between the two parties who had a history of animosity. Moreover, the alleged drawing of a knife
by the victim could not have placed the life of appellant in imminent danger. The former might
have done it only to threaten or intimidate the latter.
Unlawful aggression presupposes actual, sudden, unexpected or imminent danger - not merely
threatening and intimidating action. 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 one's life.
The peril sought to be avoided must be imminent and actual, not just speculative. 36 (Italics
omitted; emphasis supplied)
Following a similar ratio, in People v. Borreros,37 the Court likewise held that the act of drawing a
gun from the waist could not yet be categorized as unlawful aggression.
Applying the foregoing to this case, Araza's alleged act of simply drawing a knife from his waist
fell short of the threshold required by law and prevailing jurisprudence. 38 At that point, and as
correctly observed by the courts below, there was yet no actual risk or peril to the life or limb of
Raytos. 39
Parenthetically, the Court notes the testimony of Dionisio B. Mado (Mado ), the other witness for
the defense, who supplied additional details on the incident. In his narration of events, Mado was
purporting to show unlawful aggression on the part of Araza, claiming that the
latter actually delivered stabbing blows to Raytos:
Notably, nowhere in his testimony did Raytos make mention of any threatening behavior from
Araza, aside from the drawing of the knife, which would have necessitated immediate retaliation
on his part. Worse, Mado's testimony was unsupported by the Medico Legal Report 44 dated
February 4, 2010. Were the testimony of Mado true, i.e., that Araza actually delivered stabbing
blows to Raytos, such material detail would certainly have been mentioned by the latter during
his testimony, especially considering that his freedom was hanging in the balance. Unfortunately,
notwithstanding numerous opportunities to supply details on the incident, Raytos' testimony was
utterly silent on such matter. Accordingly, the Court affirms the uniform findings of the RTC and
CA and adopts the latter's appreciation of the evidence on record.
Further on this point, even assuming arguendo that unlawful aggression was present on the part
of Araza, there was no longer any danger on Raytos' person from the moment he disarmed the
former by wresting possession of the knife. Raytos' admission during his cross-examination dispels
all doubt:
Time and again, this Court has held that when an unlawful aggression that has begun has ceased
to exist, the one who resorts to self-defense has no right fo kill or even to wound the former
aggressor. 46 Aggression, if not continuous, does not constitute aggression warranting defense of
one's self.47
Here, Raytos admitted that after obtaining possession of the weapon, he no longer had any reason
to stab Araza as in fact, there was no showing that the latter persisted in his alleged purpose of
wanting to hurt Raytos. Thus, based on his own statements, Raytos overstepped the acceptable
boundaries of self-preservation when he deliberately inflicted fatal injuries on Araza, even when
the purported aggression had already ceased. 48 By killing Araza, Raytos was no longer acting in
self-defense but in retaliation against the former. 49
All told, the Court finds the evidence sorely lacking in establishing self-defense on the part of
Raytos.
The Qualifying CircumstanceOf Treachery Was SufficientlyEstablished By The Evidence
To alleviate his conviction, Raytos contends that there was a dearth of evidence to show that the
killing was attended by the qualifying circumstance of treachery. 50 Raytos specifically avers that
had he wanted to ensure that no risk would come to him, he would have chosen another time
and place to stab Araza instead of inside the dancing area, where many people were around. 51
The Court disagrees.
Treachery or alevosia, is present when the offender adopts means, methods, or forms in the
execution of the felony that ensure its commission without risk to himself arising from the defense
which the offended party might make. 52Alevosia is characterized by a deliberate, sudden and
unexpected assault from behind, without warning and without giving the victim a chance to defend
himself or repel the assault and without risk to the assailant. 53
In appreciating such circumstance, the RTC disposed as follows:
The victim was dancing when he was attacked. There was no confrontation. No forewarning. His
dancing partner was even misled into believing that accused only wanted to dance with the victim.
But of course, it was just an excuse, so that it would be easier for the accused to attain his purpose.
It was so sudden that even the others were unprepared to do anything to prevent the attack or
at least minimize the injuries. It was an unexpected occurrence right in the middle of a celebration
which was intended to be a joyous one.
The medico legal report shows the following wounds:
(+) stab wound, scapular area, (R) 2 cm.
(+) stab wound, posterior axillary line (R), 3 cm.
(+) stab wound, (R) flank area, 3.5 cm.
(+) stab wound, infrascapular area, (L)
These wounds clearly disprove the claim of accused that he was suddenly able to stab the victim
because he wrestled with him, because actually, there was no fight that preceded the attack.
There was plainly, murder. 54
To stress, the testimonies of the witnesses for the prosecution were unwavering as to the manner
of killing - that Raytos suddenly stabbed Araza from the back while holding the latter's shoulder.
Further, that there were other people around that could have lent their help to Araza is
inconsequential as treachery considers only the victim's means of defense at the time of the attack.
Thus, so long as the accused deliberately employed means to ensure the commission of the crime
without risk to himself from retaliation by the victim, treachery can be properly appreciated.
On this point, the Court's ruling in People v. Rellon55 finds relevance. In that case, the victim was
stabbed from behind while he was watching the singing and dancing during the Sinulog festival.
Interestingly, the accused therein, as in this case, claimed self-defense in stabbing the victim.
Said the Court:
AMCVB CRIM 1 [Art. 8-11] (5)| 48
The accused Eugenio Rellon took the witness stand claiming self-defense. He narrated that on
January 16, 1983 at around 5:30 in the afternoon, while walking towards his house at Tres de
Abril, accused saw Arsenic Ram sitting at the roadside when the latter suddenly stood up, took
his knife and thrust it towards Rellon. Accused was able to ward off the thrust by holding the
deceased's arm and grappled for the possession of the knife. Having succeeded in getting the
knife, accused accidentally stabbed the deceased in the right chest. After the stabbing incident,
the accused left the scene.

The principal question, as in most criminal cases, is the credibility of witness. A review of the
records of the case, however, shows that the evidence undoubtedly supports the findings and
conclusions of the trial in court its judgment and conviction.
Through the testimony of Virginia Lusareto, the lone eyewitness to the crime, it has been
established beyond reasonable doubt that appellant stabbed Arsenio Ram at the back with a
butcher's knife.

The trial court held that the crime committed was murder. It appreciated treachery when it took
note of the fact that the victim was suddenly stabbed from behind while he was watching the
Sinulog dance. The trial court stated:
x x xx

Treachery was appreciated in cases where the victim while sitting on the ground unarmed and
absolutely unprepared, and without the least suspicion of the danger he was incurring was
suddenly and abruptly assaulted by the 2 accused, without a word being uttered, and the first
blow hit him on the nape of the back, knocking him backwards to the ground, and as he tried to
get up he was stabbed in the abdomen x x x. The same thing happened in the case at bar. The
characteristic and unmistakable manifestation of alevosia is the deliberate, sudden and
unexpected attack of the victim from behind, without any warning and without giving him an
opportunity to defend himself or repel the initial assault x x x.

When appellant stabbed the victim, the latter was sitting on a bench watching the singing and
dancing during the Sinulog festival. The victim was engrossed in the merrymaking when suddenly
appellant stealthily stabbed him from behind. An attack from behind is treachery x x x. 56 (Citations
omitted; emphasis supplied)

Proceeding from the foregoing, the Court finds no reason to overturn the concurring findings of
the R TC and the CA with respect to the qualifying circumstance of treachery.
Finally, in view of the Court's ruling in People v. Jugueta, 57 the damages awarded in the
questioned Decision are hereby modified, increasing the civil indemnity, moral damages, and
exemplary damages to ₱75,000.00 each. The temperate damages are likewise increased to
₱50,000.00.

WHEREFORE, in view of the foregoing, the appeal is DISMISSED for lack of merit. The Decision
dated February 26, 2016 of the Court of Appeals in CA-G.R. CR-HC. No. 01556, finding accused-
appellant Lorenzo E. Raytos GUILTY beyond reasonable doubt of the crime of Murder under Article
248 of the Revised Penal Code, is hereby AFFIRMED with MODIFICATION. Accused-appellant is
sentenced to suffer the penalty of reclusion perpetua and ordered to pay the heirs of David Araza
the amountof Seventy-Five Thousand Pesos (₱75,000.00) as civil indemnity, Seventy-Five
Thousand Pesos (₱75,000.00) as moral damages, Seventy-Five Thousand Pesos (₱75,000.00) as
exemplary damages, and Fifty Thousand Pesos (₱50,000.00) as temperate damages. All monetary
awards shall earn interest at the legal rate of six percent (6%) per annum from the date of finality
of this Decision until fully paid.
SO ORDERED.

AMCVB CRIM 1 [Art. 8-11] (5)| 49

12. PP v. ALETA
GR No. 179708
DECISION
CARPIO MORALES, J.:
On appeal is the July 9, 2007 Court of Appeals Decision [3] affirming with modification
the October 25, 2001 Decision[4] of the Regional Trial Court (RTC) of Ilocos Norte, Branch 19, with
station at Bangui, convicting accused-appellant Marcelo and his sons-co-appellants Ferdinand,
Rogelio, Marlo and Jovito, all surnamed Aleta, of Murder in two cases.
Two Informations dated June 21, 1994 for the death of Celestino Duldulao (Duldulao)
and Fernando Acob (Acob) were filed against accused-appellants:
The accusatory portion of Criminal Case No. 1102-19 reads:
That on about May 22, 1994, at about 3:00 oclock in the
afternoon, all the above-named accused, conspiring,
confederating and mutually helping one another, with
intent to kill and with abuse of superior strength, did
then and there willfully, unlawfully and feloniously strike
and club with the use of hard objects one Celestino
Duldulao y Yadao inflicting upon the latter bodily injuries
which caused his death as a consequence thereof.
CONTRARY TO LAW.[5] (Underscoring supplied)
The accusatory portion of Criminal case No. 1103-19 reads:
That on about May 22, 1994, at about 3:00
oclock in the afternoon, all the above-named
accused, conspiring, confederating and mutually helping
one another, with intent to kill and with abuse of superior
strength, did then and there willfully, unlawfully and
feloniously strike and club with the use of hard objects
one FERNANDO ACOB inflicting upon the latter bodily
injuries which caused his death as a consequence
thereof. (Underscoring supplied)
CONTRARY TO LAW.[6]
The victim Acob was the son of appellant Marcelos sister Marina Acob (Marina), while the other
victim Duldulao was the victim Acobs father-in-law.
Culled from the evidence for the prosecution is its following version:
While the deceased Acobs mother Marina was at the community center of Barangay
Nagsurot, Burgos, Ilocos Norte on May 22, 1994, she heard a commotion at the yard of
appellants. Soon after returning home, she told Acob that there was a quarrel at appellants
compound.
Against his mothers pleas, Acob repaired to appellants compound. Marina followed and
upon reaching appellants compound, she saw her nephew appellant Rogelio striking her son Acob
twice at the left cheek and at the back of his head with a piece of wood, causing Acob to fall on
the ground. She thereafter saw Rogelio striking Acobs father-in-law Duldulao twice on the face
drawing his eyes to pop up, and again on the head causing him to fall on the ground.
Rogelio then ran towards the family house whereupon Marina heard gunshots. Rogelios
brothers-co-appellants Jovito, Marlo and Ferdinand and their father Marcelo at once began
clubbing Acob and Duldulao with pieces of wood, mainly on the face and head, as well as on
different parts of their bodies.
Even while the victims were already lying prostrate on the ground, Marcelo, Jovito,
Marlo, and Ferdinand continued to hit them. And when Rogelio emerged from the house, he got
another piece of wood and again clubbed the victims.
As found by Dr. Arturo G. Llabore, a medico-legal officer of the National Bureau of Investigation-
Regional Office, San Fernando, La Union who supervised the exhumation and autopsy of the
bodies of Acob and Duldulao on June 3, 1994, the two victims suffered multiple abrasions,
lacerations, open wounds, contusions and fractures on their face, head, scalp, arms, legs and
thighs; that Acobs death was due to hemorrhage, intercranial, severe, secondary to traumatic
injuries, head while Duldulaos was due to hemorrhage, intercranial, severe, secondary to
traumatic injuries, head, multiple; that both victims could have died within one (1) hour after the
infliction of the injuries; and that because of the severity and multiplicity of the injuries sustained,
the same could not have been inflicted by only one person.
Upon the other hand, appellants Ferdinand and Marlo interposed self-defense and
defense of relative, respectively. Additionally, Marlo invoked voluntary surrender as a mitigating
circumstance. Marcelo, Rogelio and Jovito invoked alibi. Their version of the incidents follows:
At around 3:00 in the afternoon, while Ferdinand and Marlo were resting at their
compound, Acob arrived, uttering Oki ni inayo (Vulva of your mother) and drew out a knife about
six inches long. As Acob repeatedly uttered Vulva of your mother, I will kill all of you!, he thrust
the knife at Ferdinand was able to evade it. Acob and Ferdinand slipped and fell on the
ground, After some struggle, Acob succeeded in stabbing Ferdinand on the thigh. As Acob was
about to stab Ferdinand again, Marlo took a piece of wood and struck him three times on the
face. Ferdinand thereafter fell on the ground at which instant Marlo dropped the wood.
Duldulao soon emerged and at about 10 meters away from Marlo, he uttered Vulva of
your mother. As Duldulao looked as though he was going to strike Marlo with a piece of wood,
Marlo took a piece of wood and hit Duldulao twice on the left cheekbone, causing him to fall on
the ground. He went on to club Duldulao, as well as Acob, to make sure that they will no longer
live. Marlo thereafter pocketed the knife used by Acob in stabbing Ferdinand.
Marlo never noticed where prosecution witnesses including Marina were during the
incidents. Nor did he notice where his father Marcelo and his brothers Rogelio and Jovito were.
Ferdinand later went to the Batac General Hospital where Dr. Edgar Cabading treated his stab
wound, to 1 centimeter deep, at his inner thigh.
The following morning, Marlo surrendered to the police. Marcelo and the other
appellants also surrendered days later.
Crediting the prosecution version, the trial court found appellants guilty beyond
reasonable doubt of Murder in both cases and sentenced each of them to suffer the death penalty
and to pay, jointly and severally, P250,000 to the heirs of Duldulao, and another P250,000.00 to
the heirs of Acob by way of civil damages.
In arriving at its Decision, the trial court held that although what triggered the incidents
was never explained, Acob and Duldulao died as a result of the attacks on them, qualified by
abuse of superior strength and cruelty.
AMCVB CRIM 1 [Art. 8-11] (5)| 50

In brushing aside Marlos claim of self-defense and Ferdinands defense of relative, the trial court
held that, assuming arguendo that there was unlawful aggression on the part of the victims, the
same ceased when the victims were already on the ground after Marlo hit them; and that force
beyond what was necessary to repel the aggression was employed when the victims were
repeatedly clubbed.
The trial court also brushed aside Marcelo, Jovito and Rogelios alibi ─ that they were
inside their house attending to a sick relative during the incidents, given their silence and failure
to deny the imputations against them, their alibi having been invoked not by them but by
Ferdinand and Marlo on their behalf.
Also brushing aside Marlos claim of voluntary surrender, the trial court noted that there
was no conscious effort on his part to surrender or acknowledge his guilt; and that that he did
not resist but went peacefully with the police did not amount to voluntary surrender.
Appellants moved for a reconsideration of the trial courts decision, contending that there was no
abuse of superior strength as the same was not consciously adopted; and that the testimonies of
the prosecution witnesses, particularly Marinas, are incredible or inconsistent. The motion for
reconsideration having been denied by Order [7] dated January 29, 2003, appellants appealed to
the Court of Appeals, before which it raised the same issues as those in their motion for
reconsideration before the trial court. Additionally, they questioned the penalty imposed upon
them.
By the challenged Decision dated July 9, 2007, the appellate court affirmed appellants conviction
of murder but lowered the penalty imposed from death to reclusion perpetua.And it modified the
damages awarded from P250,000.00 to the heirs of each victim to the following
amounts: P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as
exemplary damages.
In modifying the penalty from death to reclusion perpetua, the appellate court noted that in the
absence of any mitigating or aggravating circumstance, the lesser of the two indivisible penalties
should be imposed.
Hence, the present appeal, appellants maintaining that both the trial and the appellate courts
erred in giving full weight and credence to the testimonies of the prosecution witnesses.
As in most criminal cases, the present appeal hinges primarily on the issue of credibility
of witness and of testimony. As held in a number of cases, the trial court is best equipped to make
the assessment on said issue and, therefore, its factual findings are generally not disturbed on
appeal, unless: (1) the testimony is found to be clearly arbitrary or unfounded; (2) some
substantial fact or circumstance that could materially affect the disposition of the case was
overlooked, misunderstood, or misinterpreted; or (3) the trial judge gravely abused his or her
discretion.[8]
From a considered review of the records of the cases, the Court finds that none of the
above-stated exceptions is present to warrant a reversal of the factual findings of the trial and
appellate courts.
As held in a catena of cases and correctly applied by both lower courts, Marinas positive
identification of all appellants as the assailants and her accounts of what transpired during the
incidents, which were corroborated on all material points by prosecution witnesses Loreta
Duldulao (Loreta) and Willie Duldulao (Willie), as well as the findings of the medico-legal officer,
carry greater weight than appellants claims of self-defense, defense of relative and alibi. More
particularly, that Marinas narration was so detailed all the more acquires greater weight and
credibility against all defenses, especially because it jibed with the autopsy findings. [9]
Respecting the defenses questioning of Loretas testimony that Willie had told her that
Duldulao was already dead, but was later to claim that on reaching the scene of the crime,
Duldulao was still alive, lying on the ground and being clubbed by appellants, the same deserves
scant consideration. Far from being inconsistent, the same is in sync with the other witnesses
claim and Marlos own admission that appellants continued to club the two victims even as they
lay motionless and helpless on the ground.
At any rate, inconsistencies in the testimonies of witnesses which refer to minor and
insignificant details, such as whether Duldulao was still alive or not, cannot destroy Loretas
testimony. Minor inconsistencies in fact even guarantee truthfulness and candor. [10]
A witness testimony deserves full faith and credit where there exists no evidence to show
any dubious reason or improper motive why he should testify falsely against the accused, or why
he should implicate the accused in a serious offense. [11] That the prosecution witnesses are all
related by blood to appellants should a fortiori be credited, absent a showing that they had motive
to falsely accuse appellants.
As to the claims of self-defense, defense of relative, and alibi relied upon by appellants,
the lower courts finding the same unsubstantiated is well taken. People v. Caabay[12] instructs:
Case law has it that like alibi, self-defense or defense of
relatives are inherently weak defenses which, as experience has shown,
can easily be fabricated. If the accused admits the killing, the burden
of evidence, as distinguished from burden of proof, is shifted on him
to prove with clear and convincing evidence the essential elements
of the justifying circumstance of self-defense, namely: (a) unlawful
aggression on the part of the victim; (b) reasonable necessity of the
means employed by the accused to prevent or repel the unlawful
aggression; and (c) lack of sufficient provocation on the part of the
accused defending himself. Defense of a relative requires the
following essential elements: (a) unlawful aggression on the part of
the victim; (b) reasonable necessity of the means employed by the
accused to prevent or repel the unlawful aggression of the victim;
and (c) in case of provocation given by the person being attacked,
the one evading the attack, defense had no part therein. For the
accused to be entitled to exoneration based on self-defense or defense of
relatives, complete or incomplete, it is essential that there be unlawful
aggression on the part of the victim, for if there is no unlawful aggression,
there would be nothing to prevent or repel. For unlawful aggression to
be appreciated, there must be an actual, sudden and unexpected
attack or imminent danger thereof, not merely a threatening or
intimidating attitude. (Emphasis supplied)
Assuming arguendo that Acob was indeed the aggressor, the aggression ceased the
moment he was disarmed and already lying on the ground after being struck by Marlo.Even
if Marlos account that Duldulao approached with a piece of wood above his head, the same, albeit
intimidating, cannot be said to reek of imminent and actual danger. When Marlo then continued
to club Acob while in a prone position, and struck Duldulao after he had fallen, self-defense and
defense of relative no longer avail.[13]
It is settled that the moment the first aggressor runs away,
unlawful aggression on the part of the first aggressor ceases to
exist; and when unlawful aggression ceases, the defender no longer
has any right to kill or wound the former
aggressor; otherwise, retaliation and not self-defense is
committed. Retaliation is not the same as self-
AMCVB CRIM 1 [Art. 8-11] (5)| 51
 defense. In retaliation, the aggression that was begun by the unlawful object, each doing a part so that their acts, though apparently independent, were in fact
injured party already ceased when the accused attacked him, while connected and cooperative indicating closeness of personal association and a concurrence of
in self-defense the aggression was still existing when the aggressor sentiment, conspiracy may be inferred. And where there is conspiracy, the act of one is deemed
was injured by the accused. (Emphasis supplied) the act of all.[19]

Besides, the self-defense claimed to have been employed by Marlo cannot be said to
be reasonable.
The means employed by a person claiming self-defense must be
commensurate to the nature and the extent of the attack sought to be
averted, and must be rationally necessary to prevent or repel an unlawful
aggression. The nature or quality of the weapon; the physical
condition, the character, the size and other circumstances of the
aggressor as well as those of the person who invokes self-defense;
and the place and the occasion of the assault also define the
reasonableness of the means used in self-defense.[14] (Emphasis
supplied)
The appellate courts reduction of the penalty of death to reclusion perpetua in its July
9, 2007 decision is in order, there being no mitigating nor aggravating circumstance in the present
cases. In any event, in view of the enactment of Republic Act No. 9346 or An Act Prohibiting the
Imposition of Death Penalty in the Philippines on June 24, 2006,the imposition of the death penalty
could not have been maintained. So too is the lowering of the civil indemnity for the heirs of
Fernando and Duldulao.
WHEREFORE, the appeal is DENIED. The Decision of the Court of Appeals dated July
9, 2007 is, in light of the foregoing discussion, AFFIRMED.
SO ORDERED.

Thus, even if Ferdinands and Marlos accounts of what transpired were true, Marlos repeated
clubbing of the already unarmed and helpless victims inside their own compound is clearly
unreasonable. Consider the following admission of Marlo during his direct examination:

Q.: And what happened to him when you were able to strike him?
A: He fell down, sir.
Q.: And when he fell down, what did you do next?
A: I again clubbed him, sir.
Q.: And after clubbing him for the second time, what did you do next?
A: I clubbed them alternately, sir.
Q.: Why did you club them alternately?
A.: Because they might still live and will again attacked (sic) us, sir.
Q.: Whom did you club alternately?
A.: Fernando Acob and Celestino Duldulao, your honor. (Emphasis supplied)

Marlo did not thus intend to merely repel the alleged attack. He wanted to be sure that the two
victims would not survive.

That Ferdinand sustained a to 1 centimeter deep stab wound in the thigh does not
necessarily prove that he acted in self-defense or that Marlo acted in defense of a
relative.[15] Parenthetically, the knife, allegedly used by Acob which Marlo claims to have taken,
was not even presented in evidence.

As for the alibi of Marcelo, Rogelio and Jovito, for it to prosper, it must be shown that
it was physically impossible for them to have been at the scene of the crime at the approximate
time of its commission.[16] That they were in Marcelos house attending to a relative who was
allegedly having difficulty breathing, did not render it impossible for them to have been at the
scene of the crimes, the house being a mere 13.5 meters away, [17] more or less. Besides, it is
impossible that they could not have noticed the commotion that preceded and attended the
incidents.
It bears noting that appellants enjoyed superiority in number (five) over the two victims,
clearly showing abuse of superior strength and that the force used by them was out of proportion
to the means of defense available to the victims. [18]

More. Contrary to the contention of appellants, conspiracy was present during the
attack. When two or more persons aim their acts towards the accomplishment of the same

AMCVB CRIM 1 [Art. 8-11] (5)| 52

13. PP v. NARVAEZ
G.R. Nos. L-33466-67 April 20, 1983
MAKASIAR, J.:
This is an appeal from the decision of the Court of First Instance of South Cotabato, Branch I, in
Criminal Cases Nos. 1815 and 1816 for murder which, after a joint trial, resulted in the conviction
of the accused in a decision rendered on September 8, 1970, with the following pronouncement:
Thus, we have a crime of MURDER qualified by treachery with the aggravating
circumstance of evident premeditation offset by the mitigating circumstance of
voluntary surrender. The proper penalty imposable, therefore, is RECLUSION
PERPETUA (Arts. 248 and 64, Revised Penal Code).
Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of the crime of
murder,
(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION PERPETUA, to
indemnify the heirs of the deceased Davis Q. Fleischer in the sum of P 12,000.00 as
compensatory damages, P 10,000.00 as moral damages, P 2,000.00 as attorney's fees,
the offended party having been represented by a private prosecutor, and to pay the
costs;
(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION PERPETUA, to
indemnify the heirs of the deceased Flaviano Rubia in the sum of P12,000.00 as
compensatory damages, P10,000.00 as moral damages, P2,000.00 as attorney's fees,
the offended party having been represent by a private prosecutor, and to pay the costs
(p. 48, rec.).
The facts are summarized in the People's brief, as follows:
At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus Verano and
Cesar Ibanez together with the two deceased Davis Fleischer and Flaviano Rubia, were
fencing the land of George Fleischer, father of deceased Davis Fleischer. The place was
in the boundary of the highway and the hacienda owned by George Fleischer. This is
located in the municipality of Maitum, South Cotabato. At the place of the fencing is the
house and rice drier of appellant Mamerto Narvaez (pp. 179-182, t.s.n., Pieza II). At
that time, appellant was taking his rest, but when he heard that the walls of his house
were being chiselled, he arose and there he saw the fencing going on. If the fencing
would go on, appellant would be prevented from getting into his house and the bodega
of his ricemill. So he addressed the group, saying 'Pare, if possible you stop destroying
my house and if possible we will talk it over what is good,' addressing the deceased
Rubia, who is appellant's compadre. The deceased Fleischer, however, answered: 'No,
gademit, proceed, go ahead.' Appellant apparently lost his equilibrium and he got his
gun and shot Fleischer, hitting him. As Fleischer fell down, Rubia ran towards the jeep,
and knowing there is a gun on the jeep, appellant fired at Rubia, likewise hitting him
(pp. 127-133, t.s.n., Defense transcript). Both Fleischer and Rubia died as a result of
the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9, Appellant's Brief, p.161, rec.).
It appears, however, that this incident is intertwined with the long drawn out legal battle between
the Fleischer and Co., Inc. of which deceased Fleischer was the secretary-treasurer and deceased
Rubia the assistant manager, on the one hand, and the land settlers of Cotabato, among whom
was appellant.
From the available records of the related cases which had been brought to the Court of Appeals
(CA-G.R. Nos. 28858-R and 50583-R) and to this Court on certiorari (G.R. No. L-26757 and L-
45504), WE take judicial notice of the following antecedent facts:
Appellant was among those persons from northern and central Luzon who went to Mindanao in
1937 and settled in Maitum, a former sitio of Kiamba and now a separate municipality of South
Cotabato. He established his residence therein, built his house, cultivated the area, and was
among those who petitioned then President Manuel L. Quezon to order the subdivision of the
defunct Celebes Plantation and nearby Kalaong Plantation totalling about 2,000 hectares, for
distribution among the settlers.
Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an American
landowner in Negros Oriental, filed sales application No. 21983 on June 3, 1937 over the same
area formerly leased and later abandoned by Celebes Plantation Company, covering 1,017.2234
hectares.
Meanwhile, the subdivision was ordered and a public land surveyor did the actual survey in 1941
but the survey report was not submitted until 1946 because of the outbreak of the second world
war. According to the survey, only 300 hectares Identified as Lots Nos. 22, 26 and 38, Ps. 176
Kiamba, were set aside for Sales Application No. 21983, while the rest were subdivided into sublots
of 5 to 6 hectares each to be distributed among the settlers (pp. 32-33, G.R. No. L-45504).
The 300 hectares set aside for the sales application of Fleischer and Company was declared open
for disposition, appraised and advertised for public auction. At the public auction held in Manila
on August 14, 1948, Fleischer and Company was the only bidder for P6,000.00. But because of
protests from the settlers the corresponding award in its favor was held in abeyance, while an
investigator was sent by the Director of Lands to Kiamba in the person of Atty. Jose T. Gozon Atty.
Gozon came back after ten days with an amicable settlement signed by the representative of the
settlers. This amicable settlement was later repudiated by the settlers, but the Director of Lands,
acting upon the report of Atty. Gozon, approved the same and ordered the formal award of the
land in question to Fleischer and Company. The settlers appealed to the Secretary of Agriculture
and Natural Resources, who, however, affirmed the decision in favor of the company.
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of Cotabato
which then consisted only of one sala, for the purpose of annulling the order of the Secretary of
Agriculture and Natural Resources which affirmed the order of the Director of Lands awarding the
contested land to the company. The settlers as plaintiffs, lost that case in view of the amicable
settlement which they had repudiated as resulting from threats and intimidation, deceit,
misrepresentation and fraudulent machination on the part of the company. They appealed to the
Court of Appeals (CA-G.R. No. 28858-R) which likewise affirmed on August 16, 1965 the decision
of the Court of First Instance in favor of the company.
This resulted in the ouster of the settlers by an order of the Court of First Instance dated
September 24, 1966, from the land which they had been occupying for about 30 years. Among
those ejected was the appellant who, to avoid trouble, voluntarily dismantled his house, built in
1947 at a cost of around P20,000.00, and transferred to his other house which he built in 1962
or 1963 near the highway. The second house is not far from the site of the dismantled house. Its
ground floor has a store operated by Mrs. June Talens who was renting a portion thereof. He also
transferred his store from his former residence to the house near the highway. Aside from the
store, he also had a rice mill located about 15 meters east of the house and a concrete pavement
between the rice mill and the house, which is used for drying grains and copra.
On November 14, 1966, appellant was among the settlers on whose behalf Jose V. Gamboa and
other leaders filed Civil Case No. 755 in the Court of First Instance of Cotabato, Branch I. to obtain
an injunction or annulment of the order of award with prayer for preliminary injunction. During
the pendency of this case, appellant on February 21, 1967 entered into a contract of lease with
the company whereby he agreed to lease an area of approximately 100 to 140 square meters of
Lot No. 38 from the company (Exh. 9, p. 1, Folder of Exhibits for Defense) for a consideration of
P16.00 monthly. According to him, he signed the contract although the ownership of the land was
AMCVB CRIM 1 [Art. 8-11] (5)| 53
still uncertain, in order to avoid trouble, until the question of ownership could be decided. He
never paid the agreed rental, although he alleges that the milling job they did for Rubia was
considered payment. On June 25, 1968, deceased Fleischer wrote him a letter with the following
tenor:
You have not paid six months rental to Fleischers & Co., Inc. for that portion of land in
which your house and ricemill are located as per agreement executed on February 21,
1967. You have not paid as as even after repeated attempts of collection made by Mr.
Flaviano Rubia and myself.
In view of the obvious fact that you do not comply with the agreement, I have no
alternative but to terminate our agreement on this date.
I am giving you six months to remove your house, ricemill, bodega, and water pitcher
pumps from the land of Fleischers & Co., Inc. This six- month period shall expire on
December 31, 1966.
In the event the above constructions have not been removed within the six- month period,
the company shall cause their immediate demolition (Exhibit 10, p. 2, supra).
On August 21, 1968, both deceased, together with their laborers, commenced fencing Lot 38 by
putting bamboo posts along the property line parallel to the highway. Some posts were planted
right on the concrete drier of appellant, thereby cutting diagonally across its center (pp. 227-228,
t.s.n., Vol. 2), with the last post just adjacent to appellant's house (p. 231, t.s.n., supra). The
fence, when finished, would have the effect of shutting off the accessibility to appellant's house
and rice mill from the highway, since the door of the same opens to the Fleischers' side. The
fencing continued on that fateful day of August 22, 1968, with the installation of four strands of
barbed wire to the posts.
At about 2:30 p.m. on the said day, appellant who was taking a nap after working on his farm all
morning, was awakened by some noise as if the wall of his house was being chiselled. Getting up
and looking out of the window, he found that one of the laborers of Fleischer was indeed chiselling
the wall of his house with a crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia was nailing the
barbed wire and deceased Fleischer was commanding his laborers. The jeep used by the deceased
was parked on the highway. The rest of the incident is narrated in the People's Brief as above-
quoted. Appellant surrendered to the police thereafter, bringing with him shotgun No. 1119576
and claiming he shot two persons (Exh. Pp. 31, Defense Exhibits).
Appellant now questions the propriety of his conviction, assigning the following errors:
First Assignment of Error: That the lower court erred in convicting defendant-
appellant despite the fact that he acted in defense of his person; and
Second Assignment of Error: That the court a quo also erred in convicting
defendant-appellant although he acted in defense of his rights (p. 20 of
Appellant's Brief, p. 145, rec.).
The act of killing of the two deceased by appellant is not disputed. Appellant admitted having shot
them from the window of his house with the shotgun which he surrendered to the police
authorities. He claims, however, that he did so in defense of his person and of his rights, and
therefore he should be exempt from criminal liability.
Defense of one's person or rights is treated as a justifying circumstance under Art. 11, par. 1 of
the Revised Penal Code, but in order for it to be appreciated, the following requisites must occur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending
himself (Art. 11, par. 1, Revised Penal Code, as amended).
The aggression referred to by appellant is the angry utterance by deceased Fleischer of the
following words: "Hindi, sigue, gademit, avante", in answer to his request addressed to
his compadre, the deceased Rubia, when he said, "Pare, hinto mona ninyo at pag-usapan natin
kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6). This was in reaction to his having been
awakened to see the wall of his house being chiselled. The verbal exchange took place while the
two deceased were on the ground doing the fencing and the appellant was up in his house looking
out of his window (pp. 225-227, supra). According to appellant, Fleischer's remarks caused this
reaction in him: "As if, I lost my senses and unknowingly I took the gun o n the bed and
unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr. Fleischer" (p. 132, supra).
As for the shooting of Rubia, appellant testified:
When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing the
shot, Mr. Rubia looked at Mr. Fleischer and when Mr. Fleischer fell down, Mr.
Rubia ran towards the jeep and knowing that there was a firearm in the jeep
and thinking that if he will take that firearm he will kill me, I shot at him (p.
132, supra, Emphasis supplied).
The foregoing statements of appellant were never controverted by the prosecution. They claim,
however, that the deceased were in lawful exercise of their rights of ownership over the land in
question, when they did the fencing that sealed off appellant's access to the highway.
A review of the circumstances prior to the shooting as borne by the evidence reveals that five
persons, consisting of the deceased and their three laborers, were doing the fencing and chiselling
of the walls of appellant's house. The fence they were putting up was made of bamboo posts to
which were being nailed strands of barbed wire in several layers. Obviously, they were using tools
which could be lethal weapons, such as nail and hammer, bolo or bamboo cutter, pliers, crowbar,
and other necessary gadgets. Besides, it was not disputed that the jeep which they used in going
to the place was parked just a few steps away, and in it there was a gun leaning near the steering
wheel. When the appellant woke up to the sound of the chiselling on his walls, his first reaction
was to look out of the window. Then he saw the damage being done to his house, compounded
by the fact that his house and rice mill will be shut off from the highway by the fence once it is
finished. He therefore appealed to his compadre, the deceased Rubia, to stop what they were
doing and to talk things over with him. But deceased Fleischer answered angrily with 'gademit'
and directed his men to proceed with what they were doing.
The actuation of deceased Fleischer in angrily ordering the continuance of the fencing would have
resulted in the further chiselling of the walls of appellant's house as well as the closure of the
access to and from his house and rice mill-which were not only imminent but were actually in
progress. There is no question, therefore, that there was aggression on the part of the victims:
Fleischer was ordering, and Rubia was actually participating in the fencing. This was indeed
aggression, not on the person of appellant, but on his property rights.
The question is, was the aggression unlawful or lawful? Did the victims have a right to fence off
the contested property, to destroy appellant's house and to shut off his ingress and egress to his
residence and the highway?
Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his land or
tenements.
However, at the time of the incident on August 22, 1968, Civil Case no. 755 for annulment of the
order of award to Fleischer and Company was still pending in the Court of First Instance of
Cotabato. The parties could not have known that the case would be dismissed over a year after
the incident on August 22, 1968, as it was dismissed on January 23, 1970 on ground of res
judicata, in view of the dismissal in 1965 (by the Court of Appeals) of Civil Case No. 240 filed in
1950 for the annulment of the award to the company, between the same parties, which the
AMCVB CRIM 1 [Art. 8-11] (5)| 54
company won by virtue of the compromise agreement in spite of the subsequent repudiation by
the settlers of said compromise agreement; and that such 1970 dismissal also carried the dismissal
of the supplemental petition filed by the Republic of the Philippines on November 28, 1968 to
annul the sales patent and to cancel the corresponding certificate of title issued to the company,
on the ground that the Director of Lands had no authority to conduct the sale due to his failure
to comply with the mandatory requirements for publication. The dismissal of the government's
supplemental petition was premised on the ground that after its filing on November 28, 1968,
nothing more was done by the petitioner Republic of the Philippines except to adopt all the
evidence and arguments of plaintiffs with whom it joined as parties-plaintiffs.
Hence, it is reasonable to believe that appellant was indeed hoping for a favorable judgment in
Civil Case No. 755 filed on November 14, 1966 and his execution of the contract of lease on
February 21, 1967 was just to avoid trouble. This was explained by him during cross-examination
on January 21, 1970, thus:
It happened this way: we talked it over with my Mrs. that we better rent the
place because even though we do not know who really owns this portion to
avoid trouble. To avoid trouble we better pay while waiting for the case
because at that time, it was not known who is the right owner of the place.
So we decided until things will clear up and determine who is really the owner,
we decided to pay rentals (p. 169, t.s.n., Vol.6).
In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2, Defense Exhibits)
within which to vacate the land. He should have allowed appellant the peaceful enjoyment of his
properties up to that time, instead of chiselling the walls of his house and closing appellant's
entrance and exit to the highway.
The following provisions of the Civil Code of the Philippines are in point:
Art. 536. In no case may possession be acquired through force or intimidation
as long as there is a possessor who objects thereto. He who believes that he
has an action or a right to deprive another of the holding of a thing must
invoke the aid of the competent court, if the holder should refuse to deliver
the thing.
Art. 539. Every possessor has a right to be respected in his possession; and
should he be disturbed therein he shall be protected in or restored to said
possession by the means established by the laws and the Rules of Court
(Articles 536 and 539, Civil Code of the Philippines).
Conformably to the foregoing provisions, the deceased had no right to destroy or cause damage
to appellant's house, nor to close his accessibility to the highway while he was pleading with them
to stop and talk things over with him. The assault on appellant's property, therefore, amounts to
unlawful aggression as contemplated by law.
Illegal aggression is equivalent to assault or at least threatened assault of
immediate and imminent kind (People vs. Encomiendas, 46 SCRA 522).
In the case at bar, there was an actual physical invasion of appellant's property which he had the
right to resist, pursuant to Art. 429 of the Civil Code of the Philippines which provides:
Art. 429. The owner or lawful possessor of a thing has the right to exclude
any person from the enjoyment and disposal thereof. For this purpose, he
may use such force as may be reasonably necessary to repel or prevent an
actual or threatened unlawful physical invasion or usurpation of his
property (Emphasis supplied).
The reasonableness of the resistance is also a requirement of the justifying circumstance of self-
defense or defense of one's rights under paragraph 1 of Article 11, Revised Penal Code. When the
appellant fired his shotgun from his window, killing his two victims, his resistance was
disproportionate to the attack.
WE find, however, that the third element of defense of property is present, i.e., lack of sufficient
provocation on the part of appellant who was defending his property. As a matter of fact, there
was no provocation at all on his part, since he was asleep at first and was only awakened by the
noise produced by the victims and their laborers. His plea for the deceased and their men to stop
and talk things over with him was no provocation at all.
Be that as it may, appellant's act in killing the deceased was not justifiable, since not all the
elements for justification are present. He should therefore be held responsible for the death of his
victims, but he could be credited with the special mitigating circumstance of incomplete defense,
pursuant to paragraph 6, Article 13 of the Revised Penal Code.
The crime committed is homicide on two counts. The qualifying circumstance of treachery cannot
be appreciated in this case because of the presence of provocation on the part of the deceased.
As WE held earlier in People vs. Manlapaz (55 SCRA 598), the element of a sudden unprovoked
attack is therefore lacking.
Moreover, in order to appreciate alevosia, "it must clearly appear that the method of assault
adopted by the aggressor was deliberately chosen with a special view to the accomplishment of
the act without risk to the assailant from any defense that the party assailed might have made.
This cannot be said of a situation where the slayer acted instantaneously ..." (People vs. Cañete,
44 Phil. 481).
WE likewise find the aggravating (qualifying) circumstance of evident premeditation not
sufficiently established. The only evidence presented to prove this circumstance was the testimony
of Crisanto Ibañez, 37 years old, married, resident of Maitum, South Cotabato, and a laborer of
Fleischer and Company, which may be summarized as follows:
On August 20, 1968 (two days before the incident) at about 7:00 A.M., he was drying
corn near the house of Mr. and Mrs. Mamerto Narvaez at the crossing, Maitum, South
Cotabato, when the accused and his wife talked to him. Mrs. Narvaez asked him to help
them, as he was working in the hacienda. She further told him that if they fenced their
house, there is a head that will be broken. Mamerto Narvaez added 'Noy, it is better
that you will tell Mr. Fleischer because there will be nobody who will break his head but
I will be the one.' He relayed this to Mr. Flaviano Rubia, but the latter told him not to
believe as they were only Idle threats designed to get him out of the hacienda (pp. 297-
303, t.s.n., Vol. 2).
This single evidence is not sufficient to warrant appreciation of the aggravating circumstance of
evident premeditation. As WE have consistently held, there must be "direct evidence of the
planning or preparation to kill the victim, .... it is not enough that premeditation be suspected or
surmised, but the criminal intent must be evidenced by notorious outward acts evincing the
determination to commit the crime" (People vs. Ordioles, 42 SCRA 238). Besides, there must be
a "showing" that the accused premeditated the killing; that the culprit clung to their (his)
premeditated act; and that there was sufficient interval between the premeditation and the
execution of the crime to allow them (him) to reflect upon the consequences of the act" (People
vs. Gida, 102 SCRA 70).
AMCVB CRIM 1 [Art. 8-11] (5)| 55
Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the deceased Davis Fleischer,
neutralizes his credibility.
Since in the case at bar, there was no direct evidence of the planning or preparation to kill the
victims nor that the accused premeditated the killing, and clung to his premeditated act, the trial
court's conclusion as to the presence of such circumstance may not be endorsed.
Evident premeditation is further negated by appellant pleading with the victims to stop the fencing
and destroying his house and to talk things over just before the shooting.
But the trial court has properly appreciated the presence of the mitigating circumstance of
voluntary surrender, it appearing that appellant surrendered to the authorities soon after the
shooting.
Likewise, We find that passion and obfuscation attended the commission of the crime. The
appellant awoke to find his house being damaged and its accessibility to the highway as well as
of his rice mill bodega being closed. Not only was his house being unlawfully violated; his business
was also in danger of closing down for lack of access to the highway. These circumstances, coming
so near to the time when his first house was dismantled, thus forcing him to transfer to his only
remaining house, must have so aggravated his obfuscation that he lost momentarily all reason
causing him to reach for his shotgun and fire at the victims in defense of his rights. Considering
the antecedent facts of this case, where appellant had thirty years earlier migrated to this so-
called "land of promise" with dreams and hopes of relative prosperity and tranquility, only to find
his castle crumbling at the hands of the deceased, his dispassionate plea going unheeded-all these
could be too much for any man-he should be credited with this mitigating circumstance.
program, but had no sufficient means to fight the big landowners, were the ones prejudiced. Thus,
the moral and material suffering of appellant and his family deserves leniency as to his civil liability.
Furthermore, Article 39 of the Revised Penal Code requires a person convicted of prision
correccional or arrests mayor and fine who has no property with which to meet his civil liabilities
to serve a subsidiary imprisonment at the rate of one (1) day for each P 2.50. However, the
amendment introduced by Republic Act No. 5465 on April 21, 1969 made the provisions of Art.
39 applicable to fines only and not to reparation of the damage caused, indemnification of
consequential damages and costs of proceedings. Considering that Republic Act 5465 is favorable
to the accused who is not a habitual delinquent, it may be given retroactive effect pursuant to
Article 22 of the Revised Penal Code.
WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONLY TWO (2)
HOMICIDES, MITIGATED BY THE PRIVILEGED EXTENUATING CIRCUMSTANCE OF INCOMPLETE
SELF-DEFENSE AS WELL AS BY TWO (2) GENERIC MITIGATING CIRCUMSTANCES OF
VOLUNTARY SURRENDER AND OBFUSCATION, WITHOUT ANY AGGRAVATING CIRCUMSTANCE,
APPELLANT IS HEREBY SENTENCED TO SUFFER AN IMPRISONMENT OF FOUR (4) MONTHS OF
ARRESTO MAYOR, TO INDEMNIFY EACH GROUP OF HEIRS OF DAVIS FLEISCHER AND OF
FLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS, WITHOUT SUBSIDIARY
IMPRISONMENT AND WITHOUT ANY AWARD FOR MORAL DAMAGES AND ATTORNEY'S FEES.
CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST FOURTEEN (14)
YEARS NOW SINCE HIS VOLUNTARY SURRENDER ON AUGUST 22,1968, HIS IMMEDIATE
RELEASE IS HEREBY ORDERED. NO COSTS.
SO ORDERED.

Consequently, appellant is guilty of two crimes of homicide only, the killing not being attended by
any qualifying nor aggravating circumstance, but extenuated by the privileged mitigating
circumstance of incomplete defense-in view of the presence of unlawful aggression on the part of
the victims and lack of sufficient provocation on the part of the appellant-and by two generic
mitigating circumstance of voluntary surrender and passion and obfuscation.

Article 249 of the Revised Penal Code prescribes the penalty for homicide as reclusion
temporal. Pursuant to Article 69, supra, the penalty lower by one or two degrees shall be imposed
if the deed is not wholly excusable by reason of the lack of some of the conditions required to
justify the same. Considering that the majority of the requirements for defense of property are
present, the penalty may be lowered by two degrees, i.e., to prision correccional And under
paragraph 5 of Article 64, the same may further be reduced by one degree, i.e., arresto
mayor, because of the presence of two mitigating circumstances and no aggravating circumstance.
The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan American
World Airways (43 SCRA 397), the award for moral damages was reduced because the plaintiff
contributed to the gravity of defendant's reaction. In the case at bar, the victims not only
contributed but they actually provoked the attack by damaging appellant's properties and business.
Considering appellant's standing in the community, being married to a municipal councilor, the
victims' actuations were apparently designed to humiliate him and destroy his reputation. The
records disclose that his wife, councilor Feliza Narvaez, was also charged in these two cases and
detained without bail despite the absence of evidence linking her to the killings. She was dropped
as a defendant only upon motion of the prosecution dated October 31, 1968. (p. 14, CFI rec. of
Crim. Case No. 1816), but acted upon on November 4, 1968 (p. 58, CFI rec. of Criminal Case No.
1815).

Moreover, these cases arose out of an inordinate desire on the part of Fleischer and Company,
despite its extensive landholdings in a Central Visayan province, to extend its accumulation of
public lands to the resettlement areas of Cotabato. Since it had the capability-financial and
otherwise-to carry out its land accumulation scheme, the lowly settlers, who uprooted their
families from their native soil in Luzon to take advantage of the government's resettlement

AMCVB CRIM 1 [Art. 8-11] (5)| 56

14. PP v. GONZALES positions of the woman and the man were sufficient to warrant the conclusion that they had
G.R. No. 46310 October 31, 1939 committed the carnal act. (3 Viada, Penal Code, p. 96; People vs. Marquez, 53 Phil., 260).
Taking into account the mitigating circumstances of lack of intention on the part of the accused
to commit so grave a wrong as that committed upon the person of the deceased, and of his lack
of instruction, the appealed judgment is modified, and the accused is sentenced to the penalty of
CONCEPCION, J.: twelve years and one day to twenty years of reclusion temporal and indemnify the heirs of the
Marciano Gonzales appealed from the judgment of the Court of First Instance of Tayabas which deceased in the amount of P1,000 with the costs. So ordered.
found him guilty of parricied and sentenced him to reclusion perpetua with the accessories of the
law, to indemnify the heirs of the deceased, Sixta Quilason, in the amount of P1,000, and to pay
the costs.

At the trial, the appellant testified that at midday on June 2, 1938, on returning to his house from
the woods, he surprised his wife, Sixta Quilason, and Isabelo Evangelio in the act, told her that
the man was the very one who used to ask rice and food from them, and counseled her not to
repeat the same faithlessness. His wife, promised him not to do the act again. Thereafter — the
accused continued testifying — he left the house and went towards the South to see his carabaos.
Upon returning to his house at above five o'clock in the afternoon, and not finding his wife there,
he looked for her and found her with Isabelo near the toilet of his house in a place covered with
underbush, who was standing and buttoning his drawers, immediately took to his heels. The
accused went after him, but unable to overtake him, he returned to where his wife was and,
completely obfuscated, attacked her with a knife without intending to kill her. Thereafter, he took
pity on her and took her dead body to his house.

The appellant contends that, having surprised his wife, in the afternoon of the date in question,
under circumstances indicative that she had carnal intercourse with Isabelo, he was entitled to
the privilege afforded by article 247 of the Revised Penal code providing: "Any legally married
person who, having surprised his spouse in the act of committing sexual intercourse with another
person, shall kill either of them or both of them in the act or immediately thereafter, or shall inflict
upon them any serious physical injury, shall suffer the penalty of destierro. (Emphasis ours.)

We do not believe that the accused can avail himself of the aforesaid article, because the privilege
there granted is conditioned on the requirement that the spouse surprise the husband or the wife
in the act of committing sexual intercourse with another person; the accused did not surprise his
wife in the very act or carnal intercourse, but after the act, if any such there was, because from
the fact that she was rising up and the man was buttoning his drawers, it does not necessarily
follow that a man and a woman had committed the carnal act.

We cannot, therefore, entirely accept the defense sought to be established by the accused, first,
because his testimony is improbable. It is not conceivable that the accused had only mildly
counseled his wife not to repeat committing adultery with Isabelo, instead of taking harsher
measures as is natural in such circumstances, if the were true that he had surprised the two
offender in the act of adultery on returning to his house at midday on the date in question. Neither
is it likely that a woman thirty years of age, like Sixta Quilason, and twenty-five-year old Isabelo
Evangelio, both of sound judgment as is to be supposed, had dared to have carnal intercourse
near the toilet of the offended party house, a place which is naturally frequented by some persons.
The circumstance that the place was covered by weeds, does not authorize the conclusion that
the offenders could lay concealed under the weeds because the latter do not usually grow to such
height as to conceal or cover two persons committing the guilt act. It seems that under the
circumstances it is unnatural that they would execute the act in a place uncovered and open. We
do not want to suppose that the sexual passion of two persons would border on madness.
Secondly, because even assuming that the accused caught his wife rising up and Isabelo cannot
invoke the privilege of article 247 of the Revised Penal Code, because he did not surprise the
supposed offenders in the very act of committing adultery, but thereafter, if the respective

AMCVB CRIM 1 [Art. 8-11] (5)| 57


15. PP v. GENOSA
G.R. No. 135981 January 15, 2004
DECISION
PANGANIBAN, J.:
Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory --
the "battered woman syndrome" (BWS), which allegedly constitutes self-defense. Under the
proven facts, however, she is not entitled to complete exoneration because there was no unlawful
aggression -- no immediate and unexpected attack on her by her batterer-husband at the time
she shot him.
Absent unlawful aggression, there can be no self-defense, complete or incomplete.
But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of
cumulative provocation that broke down her psychological resistance and self-control. This
"psychological paralysis" she suffered diminished her will power, thereby entitling her to the
mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.
In addition, appellant should also be credited with the extenuating circumstance of having acted
upon an impulse so powerful as to have naturally produced passion and obfuscation. The acute
battering she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that
she was eight months pregnant with their child, overwhelmed her and put her in the aforesaid
emotional and mental state, which overcame her reason and impelled her to vindicate her life and
her unborn child's.
Considering the presence of these two mitigating circumstances arising from BWS, as well as the
benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody
on parole, because she has already served the minimum period of her penalty while under
detention during the pendency of this case.
The Case
For automatic review before this Court is the September 25, 1998 Decision 1 of the Regional Trial
Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty
beyond reasonable doubt of parricide. The decretal portion of the Decision reads:
"WHEREFORE, after all the foregoing being duly considered, the Court finds the accused,
Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as
provided under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No.
7659, and after finding treachery as a generic aggravating circumstance and none of
mitigating circumstance, hereby sentences the accused with the penalty of DEATH.
"The Court likewise penalizes the accused to pay the heirs of the deceased the sum of
fifty thousand pesos (P50,000.00), Philippine currency as indemnity and another sum
of fifty thousand pesos (P50,000.00), Philippine currency as moral damages."2
The Information3 charged appellant with parricide as follows:
"That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of
Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, with intent to kill, with treachery and evident premeditation,
did then and there wilfully, unlawfully and feloniously attack, assault, hit and wound
one BEN GENOSA, her legitimate husband, with the use of a hard deadly weapon, which
the accused had provided herself for the purpose, [causing] the following wounds, to
wit:
'Cadaveric spasm.
'Body on the 2nd stage of decomposition.
'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes
protruding from its sockets and tongue slightly protrudes out of the mouth.
'Fracture, open, depressed, circular located at the occipital bone of the head,
resulting [in] laceration of the brain, spontaneous rupture of the blood vessels
on the posterior surface of the brain, laceration of the dura and meningeal
vessels producing severe intracranial hemorrhage.
'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/
shedding of the epidermis.
'Abdomen distended w/ gas. Trunk bloated.'
which caused his death." 4
With the assistance of her counsel,5 appellant pleaded not guilty during her arraignment on March
3, 1997.6 In due course, she was tried for and convicted of parricide.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) summarizes the prosecution's version of the facts in this
wise:
"Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc
City. Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For
a time, Ben's younger brother, Alex, and his wife lived with them too. Sometime in 1995,
however, appellant and Ben rented from Steban Matiga a house at Barangay Bilwang,
Isabel, Leyte where they lived with their two children, namely: John Marben and Earl
Pierre.
"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving
their salary. They each had two (2) bottles of beer before heading home. Arturo would
pass Ben's house before reaching his. When they arrived at the house of Ben, he found
out that appellant had gone to Isabel, Leyte to look for him. Ben went inside his house,
while Arturo went to a store across it, waiting until 9:00 in the evening for
the masiaorunner to place a bet. Arturo did not see appellant arrive but on his way
home passing the side of the Genosas' rented house, he heard her say 'I won't hesitate
to kill you' to which Ben replied 'Why kill me when I am innocent?' That was the last
time Arturo saw Ben alive. Arturo also noticed that since then, the Genosas' rented
house appeared uninhabited and was always closed.
"On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor
living about fifty (50) meters from her house, to look after her pig because she was
going to Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to sell her
motorcycle to their neighbor Ronnie Dayandayan who unfortunately had no money to
buy it.
"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus
going to Ormoc when he saw appellant going out of their house with her two kids in
tow, each one carrying a bag, locking the gate and taking her children to the waiting
area where he was. Joseph lived about fifty (50) meters behind the Genosas' rented
house. Joseph, appellant and her children rode the same bus to Ormoc. They had no
conversation as Joseph noticed that appellant did not want to talk to him.
"On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor
emanating from his house being rented by Ben and appellant. Steban went there to
find out the cause of the stench but the house was locked from the inside. Since he did
not have a duplicate key with him, Steban destroyed the gate padlock with a borrowed
AMCVB CRIM 1 [Art. 8-11] (5)| 58
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 son's 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 aparadora 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 Ben's 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 Araño, 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 appellant's request for her to sleep in their house.
"Then, Ben purportedly nagged appellant for following him, even challenging her to a
fight. She allegedly ignored him and instead attended to their children who were doing
their homework. Apparently disappointed with her reaction, Ben switched off the light
and, with the use of a chopping knife, cut the television antenna or wire to keep her
from watching television. According to appellant, Ben was about to attack her so she
ran to the bedroom, but he got hold of her hands and whirled her around. She fell on
the side of the bed and screamed for help. Ben left. At this point, appellant
packed his clothes because she wanted him to leave. Seeing his packed clothes upon
his return home, Ben allegedly flew into a rage, dragged appellant outside of the
bedroom towards a drawer holding her by the neck, and told her 'You might as well be
killed so nobody would nag me.' Appellant testified that she was aware that there was
a gun inside the drawer but since Ben did not have the key to it, he got a three-inch
long blade cutter from his wallet. She however, 'smashed' the arm of Ben with a pipe,
causing him to drop the blade and his wallet. Appellant then 'smashed' Ben at his nape
with the pipe as he was about to pick up the blade and his wallet. She thereafter ran
inside the bedroom.
"Appellant, however, insisted that she ended the life of her husband by shooting him.
She supposedly 'distorted' the drawer where the gun was and shot Ben. He did not die
on the spot, though, but in the bedroom."7 (Citations omitted)
Version of the Defense
Appellant relates her version of the facts in this manner:
"1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her
marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree of
Bachelor of Science in Business Administration, and was working, at the time of her
husband's death, as a Secretary to the Port Managers in Ormoc City. The couple had
three (3) children: John Marben, Earl Pierre and Marie Bianca.
"2. Marivic and Ben had known each other since elementary school; they were
neighbors in Bilwang; they were classmates; and they were third degree cousins. Both
sets of parents were against their relationship, but Ben was persistent and tried to stop
other suitors from courting her. Their closeness developed as he was her constant
partner at fiestas.
"3. After their marriage, they lived first in the home of Ben's parents, together with
Ben's brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben 'lived
happily'. But apparently, soon thereafter, the couple would quarrel often and their fights
would become violent.
"4. Ben's brother, Alex, testified for the prosecution that he could not remember when
Ben and Marivic married. He said that when Ben and Marivic quarreled, generally when
Ben would come home drunk, Marivic would inflict injuries on him. He said that in one
incident in 1993 he saw Marivic holding a kitchen knife after Ben had shouted for help
as his left hand was covered with blood. Marivic left the house but after a week, she
returned apparently having asked for Ben's forgiveness. In another incident in May 22,
1994, early morning, Alex and his father apparently rushed to Ben's aid again and saw
blood from Ben's forehead and Marivic holding an empty bottle. Ben and Marivic
reconciled after Marivic had apparently again asked for Ben's forgiveness.
"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that Ben and
Marivic married in '1986 or 1985 more or less here in Fatima, Ormoc City.' She said as
the marriage went along, Marivic became 'already very demanding. Mrs. Iluminada
Genosa said that after the birth of Marivic's two sons, there were 'three (3)
misunderstandings.' The first was when Marivic stabbed Ben with a table knife through
his left arm; the second incident was on November 15, 1994, when Marivic struck
Ben on the forehead 'using a sharp instrument until the eye was also affected. It was
wounded and also the ear' and her husband went to Ben to help; and the third incident
was in 1995 when the couple had already transferred to the house in Bilwang and she
saw that Ben's hand was plastered as 'the bone cracked.'
"Both mother and son claimed they brought Ben to a Pasar clinic for medical
intervention.
"5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 'After we
collected our salary, we went to the cock-fighting place of ISCO.' They stayed there for
three (3) hours, after which they went to 'Uniloks' and drank beer – allegedly only two
(2) bottles each. After drinking they bought barbeque and went to the Genosa
residence. Marivic was not there. He stayed a while talking with Ben, after which he
went across the road to wait 'for the runner and the usher of the masiao game because
during that time, the hearing on masiao numbers was rampant. I was waiting for the
ushers and runners so that I can place my bet.' On his way home at about 9:00 in the
evening, he heard the Genosas arguing. They were quarreling loudly. Outside their
house was one 'Fredo' who is used by Ben to feed his fighting cocks. Basobas' testimony
AMCVB CRIM 1 [Art. 8-11] (5)| 59
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 'let's 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 couldn't 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 Marivic's house on November 15, 1995, the couple were still
quarreling.
'7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at
PHILPHOS, Isabel, Leyte. Marivic was his patient 'many times' and had also received
treatment from other doctors. Dr. Caing testified that from July 6, 1989 until November
9, 1995, there were six (6) episodes of physical injuries inflicted upon Marivic. These
injuries were reported in his Out-Patient Chart at the PHILPHOS Hospital. The
prosecution admitted the qualifications of Dr. Caing and considered him an expert
witness.'
xxx xxx xxx
'Dr. Caing's clinical history of the tension headache and hypertention of Marivic on
twenty-three (23) separate occasions was marked at Exhibits '2' and '2-B.' The OPD
Chart of Marivic at the Philphos Clinic which reflected all the consultations made by
Marivic and the six (6) incidents of physical injuries reported was marked as Exhibit '3.'
"On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say
whether the injuries were directly related to the crime committed. He said it is only a
psychiatrist who is qualified to examine the psychological make-up of the patient,
'whether she is capable of committing a crime or not.'
'7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided,
testified that about two (2) months before Ben died, Marivic went to his office past 8:00
in the evening. She sought his help to settle or confront the Genosa couple who were
experiencing 'family troubles'. He told Marivic to return in the morning, but he did not
hear from her again and assumed 'that they might have settled with each other or they
might have forgiven with each other.'
xxx xxx xxx
"Marivic said she did not provoke her husband when she got home that night it was her
husband who began the provocation. Marivic said she was frightened that her husband
would hurt her and she wanted to make sure she would deliver her baby safely. In fact,
Marivic had to be admitted later at the Rizal Medical Centre as she was suffering from
eclampsia and hypertension, and the baby was born prematurely on December 1, 1995.
AMCVB CRIM 1 [Art. 8-11] (5)| 60
"Marivic testified that during her marriage she had tried to leave her husband at least
five (5) times, but that Ben would always follow her and they would reconcile. Marivic
said that the reason why Ben was violent and abusive towards her that night was
because 'he was crazy about his recent girlfriend, Lulu x x x Rubillos.'
"On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died
in the bedroom; that their quarrels could be heard by anyone passing their house; that
Basobas lied in his testimony; that she left for Manila the next day, November 16, 1995;
that she did not bother anyone in Manila, rented herself a room, and got herself a job
as a field researcher under the alias 'Marvelous Isidro'; she did not tell anyone that she
was leaving Leyte, she just wanted to have a safe delivery of her baby; and that she
was arrested in San Pablo, Laguna.
'Answering questions from the Court, Marivic said that she threw the gun away; that
she did not know what happened to the pipe she used to 'smash him once'; that she
was wounded by Ben on her wrist with the bolo; and that two (2) hours after she was
'whirled' by Ben, he kicked her 'ass' and dragged her towards the drawer when he saw
that she had packed his things.'
"9. The body of Ben Genosa was found on November 18, 1995 after an investigation
was made of the foul odor emitting from the Genosa residence. This fact was testified
to by all the prosecution witnesses and some defense witnesses during the trial.
"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel,
Leyte at the time of the incident, and among her responsibilities as such was to take
charge of all medico-legal cases, such as the examination of cadavers and the autopsy
of cadavers. Dra. Cerillo is not a forensic pathologist. She merely took the medical board
exams and passed in 1986. She was called by the police to go to the Genosa residence
and when she got there, she saw 'some police officer and neighbor around.' She saw
Ben Genosa, covered by a blanket, lying in a semi-prone position with his back to the
door. He was wearing only a brief.
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, RTC-Branch 35, Ormoc City, rendered
a JUDGMENT finding Marivic guilty 'beyond reasonable doubt' of the crime of parricide,
and further found treachery as an aggravating circumstance, thus sentencing her to the
ultimate penalty of DEATH.
"14. The case was elevated to this Honorable Court upon automatic review and, under
date of 24 January 2000, Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a
Motion to Withdraw as counsel, attaching thereto, as a precautionary measure, two (2)
drafts of Appellant's Briefs he had prepared for Marivic which, for reasons of her own,
were not conformed to by her.
"The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the
entry of appearance of undersigned counsel.
"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January
2000, to the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy
Clerk of Court of Chief Judicial Records Office, wherein she submitted her 'Brief without
counsels' to the Court.
"This letter was stamp-received by the Honorable Court on 4 February 2000.
"16. In the meantime, under date of 17 February 2000, and stamp-received by the
Honorable Court on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS
MOTION praying that the Honorable Court allow the exhumation of Ben Genosa and
the re-examination of the cause of his death; allow the examination of Marivic Genosa
by qualified psychologists and psychiatrists to determine her state of mind at the time
she killed her husband; and finally, to allow a partial re-opening of the case a quo to
take the testimony of said psychologists and psychiatrists.
"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then
the only qualified forensic pathologist in the country, who opined that the description
of the death wound (as culled from the post-mortem findings, Exhibit 'A') is more akin
to a gunshot wound than a beating with a lead pipe.
"17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted
Marivic's URGENT OMNIBUS MOTION and remanded the case 'to the trial court for the
reception of expert psychological and/or psychiatric opinion on the 'battered woman
syndrome' plea, within ninety (90) days from notice, and, thereafter to forthwith report
to this Court the proceedings taken, together with the copies of the TSN and relevant
documentary evidence, if any, submitted.'
"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the
Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City.
"Immediately before Dra. Dayan was sworn, the Court a quo asked if she had
interviewed Marivic Genosa. Dra. Dayan informed the Court that interviews were done
at the Penal Institution in 1999, but that the clinical interviews and psychological
assessment were done at her clinic.
"Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years
with her own private clinic and connected presently to the De La Salle University as a
professor. Before this, she was the Head of the Psychology Department of the
Assumption College; a member of the faculty of Psychology at the Ateneo de Manila
University and St. Joseph's College; and was the counseling psychologist of the National
Defense College. She has an AB in Psychology from the University of the Philippines, a
Master of Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD from the
U.P. She was the past president of the Psychological Association of the Philippines and
is a member of the American Psychological Association. She is the secretary of the
International Council of Psychologists from about 68 countries; a member of the
Forensic Psychology Association; and a member of the ASEAN [Counseling] Association.
She is actively involved with the Philippine Judicial Academy, recently lecturing on the
socio-demographic and psychological profile of families involved in domestic violence
and nullity cases. She was with the Davide Commission doing research about Military
Psychology. She has written a book entitled 'Energy Global Psychology' (together with
AMCVB CRIM 1 [Art. 8-11] (5)| 61
Drs. Allan Tan and Allan Bernardo). The Genosa case is the first time she has testified
as an expert on battered women as this is the first case of that nature.
"Dra. Dayan testified that for the research she conducted, on the socio-demographic
and psychological profile of families involved in domestic violence, and nullity cases,
she looked at about 500 cases over a period of ten (10) years and discovered that 'there
are lots of variables that cause all of this marital conflicts, from domestic violence to
infidelity, to psychiatric disorder.'
"Dra. Dayan described domestic violence to comprise of 'a lot of incidents of
psychological abuse, verbal abuse, and emotional abuse to physical abuse and also
sexual abuse.'
xxx xxx xxx
"Dra. Dayan testified that in her studies, 'the battered woman usually has a very low
opinion of herself. She has a self-defeating and self-sacrificing characteristics. x x x they
usually think very lowly of themselves and so when the violence would happen, they
usually think that they provoke it, that they were the one who precipitated the violence,
they provoke their spouse to be physically, verbally and even sexually abusive to them.'
Dra. Dayan said that usually a battered x x x comes from a dysfunctional family or from
'broken homes.'
"Dra. Dayan said that the batterer, just like the battered woman, 'also has a very low
opinion of himself. But then emerges to have superiority complex and it comes out as
being very arrogant, very hostile, very aggressive and very angry. They also had (sic)
a very low tolerance for frustrations. A lot of times they are involved in vices like
gambling, drinking and drugs. And they become violent.' The batterer also usually
comes from a dysfunctional family which over-pampers them and makes them feel
entitled to do anything. Also, they see often how their parents abused each other so
'there is a lot of modeling of aggression in the family.'
"Dra. Dayan testified that there are a lot of reasons why a battered woman
does not leave her husband: poverty, self-blame and guilt that she provoked the
violence, the cycle itself which makes her hope her husband will change, the belief in
her obligations to keep the family intact at all costs for the sake of the children.
xxx xxx xxx
"Dra. Dayan said that abused wives react differently to the violence: some leave the
house, or lock themselves in another room, or sometimes try to fight back triggering
'physical violence on both of them.' She said that in a 'normal marital relationship,'
abuses also happen, but these are 'not consistent, not chronic, are not happening day
in [and] day out.' In an 'abnormal marital relationship,' the abuse occurs day in and day
out, is long lasting and 'even would cause hospitalization on the victim and even death
on the victim.'
xxx xxx xxx
"Dra. Dayan said that as a result of the battery of psychological tests she administered,
it was her opinion that Marivic fits the profile of a battered woman because 'inspite of
her feeling of self-confidence which we can see at times there are really feeling (sic) of
loss, such feelings of humiliation which she sees herself as damaged and as a broken
person. And at the same time she still has the imprint of all the abuses that she had
experienced in the past.'
xxx xxx xxx
"Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider
filing for nullity or legal separation inspite of the abuses. It was at the time of the
tragedy that Marivic then thought of herself as a victim.
xxx xxx xxx
"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away,
appeared and testified before RTC-Branch 35, Ormoc City.
"Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the
Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry Association. He
was in the practice of psychiatry for thirty-eight (38) years. Prior to being in private
practice, he was connected with the Veterans Memorial Medical Centre where he gained
his training on psychiatry and neurology. After that, he was called to active duty in the
Armed Forces of the Philippines, assigned to the V. Luna Medical Center for twenty six
(26) years. Prior to his retirement from government service, he obtained the rank of
Brigadier General. He obtained his medical degree from the University of Santo Tomas.
He was also a member of the World Association of Military Surgeons; the Quezon City
Medical Society; the Cagayan Medical Society; and the Philippine Association of Military
Surgeons.
"He authored 'The Comparative Analysis of Nervous Breakdown in the Philippine Military
Academy from the Period 1954 – 1978' which was presented twice in international
congresses. He also authored 'The Mental Health of the Armed Forces of the Philippines
2000', which was likewise published internationally and locally. He had a medical
textbook published on the use of Prasepam on a Parke-Davis grant; was the first to use
Enanthate (siquiline), on an E.R. Squibb grant; and he published the use of the drug
Zopiclom in 1985-86.
"Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind
and neurology deals with the ailment of the brain and spinal cord enlarged. Psychology,
on the other hand, is a bachelor degree and a doctorate degree; while one has to finish
medicine to become a specialist in psychiatry.
"Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had
already encountered a suit involving violent family relations, and testified in a case in
1964. In the Armed Forces of the Philippines, violent family disputes abound, and he
has seen probably ten to twenty thousand cases. In those days, the primordial intention
of therapy was reconciliation. As a result of his experience with domestic violence cases,
he became a consultant of the Battered Woman Office in Quezon City under Atty. Nenita
Deproza.
"As such consultant, he had seen around forty (40) cases of severe domestic violence,
where there is physical abuse: such as slapping, pushing, verbal abuse, battering and
boxing a woman even to an unconscious state such that the woman is sometimes
confined. The affliction of Post-Traumatic Stress Disorder 'depends on the vulnerability
of the victim.' Dr. Pajarillo said that if the victim is not very healthy, perhaps one episode
of violence may induce the disorder; if the psychological stamina and physiologic
constitutional stamina of the victim is stronger, 'it will take more repetitive trauma to
precipitate the post-traumatic stress disorder and this x x x is very dangerous.'
"In psychiatry, the post-traumatic stress disorder is incorporated under the 'anxiety
neurosis or neurologic anxcietism.' It is produced by 'overwhelming brutality, trauma.'
xxx xxx xxx
"Dr. Pajarillo explained that with 'neurotic anxiety', the victim relives the beating or
trauma as if it were real, although she is not actually being beaten at that time. She
thinks 'of nothing but the suffering.'
AMCVB CRIM 1 [Art. 8-11] (5)| 62
 xxx xxx xxx
"A woman who suffers battery has a tendency to become neurotic, her emotional tone
is unstable, and she is irritable and restless. She tends to become hard-headed and
persistent. She has higher sensitivity and her 'self-world' is damaged.
"Dr. Pajarillo said that an abnormal family background relates to an individual's illness,
such as the deprivation of the continuous care and love of the parents. As to the batterer,
he normally 'internalizes what is around him within the environment.' And it becomes
his own personality. He is very competitive; he is aiming high all the time; he is so
macho; he shows his strong façade 'but in it there are doubts in himself and prone to
act without thinking.'
xxx xxx xxx
"Dr. Pajarillo emphasized that 'even though without the presence of the precipator (sic)
or the one who administered the battering, that re-experiencing of the trauma occurred
(sic) because the individual cannot control it. It will just come up in her mind or in his
mind.'
xxx xxx xxx
"Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend
themselves, and 'primarily with knives. Usually pointed weapons or any weapon that is
available in the immediate surrounding or in a hospital x x x because that abound in
the household.' He said a victim resorts to weapons when she has 'reached the lowest
rock bottom of her life and there is no other recourse left on her but to act decisively.'
xxx xxx xxx
"Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he
conducted for two (2) hours and seventeen (17) minutes. He used the psychological
evaluation and social case studies as a help in forming his diagnosis. He came out with
a Psychiatric Report, dated 22 January 2001.
xxx xxx xxx
"On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she
killed her husband Marivic'c mental condition was that she was 're-experiencing the
trauma.' He said 'that we are trying to explain scientifically that the re-experiencing of
the trauma is not controlled by Marivic. It will just come in flashes and probably at that
point in time that things happened when the re-experiencing of the trauma flashed in
her mind.' At the time he interviewed Marivic 'she was more subdued, she was not
super alert anymore x x x she is mentally stress (sic) because of the predicament she
is involved.'
xxx xxx xxx
"20. No rebuttal evidence or testimony was presented by either the private or the public
prosecutor. Thus, in accord with the Resolution of this Honorable Court, the records of
the partially re-opened trial a quo were elevated." 9
Ruling of the Trial Court
Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution
evidence that appellant had killed the deceased while he was in bed sleeping. Further, the trial
court appreciated the generic aggravating circumstance of treachery, because Ben Genosa was
supposedly defenseless when he was killed -- lying in bed asleep when Marivic smashed him with
a pipe at the back of his head.
The capital penalty having been imposed, the case was elevated to this Court for automatic review.
Supervening Circumstances
On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1)
the exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the
examination of appellant by qualified psychologists and psychiatrists to determine her state of
mind at the time she had killed her spouse; and (3) the inclusion of the said experts' reports in
the records of the case for purposes of the automatic review or, in the alternative, a partial
reopening of the case for the lower court to admit the experts' testimonies.
On September 29, 2000, this Court issued a Resolution granting in part appellant's 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 Court's Resolution, the trial judge authorized the examination of Marivic by two
clinical psychologists, Drs. Natividad Dayan 10 and Alfredo Pajarillo,11 supposedly experts on
domestic violence. Their testimonies, along with their documentary evidence, were then presented
to and admitted by the lower court before finally being submitted to this Court to form part of the
records of the case.12
The Issues
Appellant assigns the following alleged errors of the trial court for this Court's consideration:
"1. The trial court gravely erred in promulgating an obviously hasty decision without
reflecting on the evidence adduced as to self-defense.
"2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were
legally married and that she was therefore liable for parricide.
"3. The trial court gravely erred finding the cause of death to be by beating with a pipe.
"4. The trial court gravely erred in ignoring and disregarding evidence adduced from
impartial and unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer
and wife-beater; and further gravely erred in concluding that Ben Genosa was a
battered husband.
"5. The trial court gravely erred in not requiring testimony from the children of Marivic
Genosa.
"6. The trial court gravely erred in concluding that Marivic's flight to Manila and her
subsequent apologies were indicia of guilt, instead of a clear attempt to save the life of
her unborn child.
"7. The trial court gravely erred in concluding that there was an aggravating
circumstance of treachery.
"8. The trial court gravely erred in refusing to re-evaluate the traditional elements in
determining the existence of self-defense and defense of foetus in this case, thereby
erroneously convicting Marivic Genosa of the crime of parricide and condemning her to
the ultimate penalty of death."13
In the main, the following are the essential legal issues: (1) whether appellant acted in self-
defense and in defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa.
The Court's Ruling
The appeal is partly meritorious.
Collateral Factual Issues
AMCVB CRIM 1 [Art. 8-11] (5)| 63
The first six assigned errors raised by appellant are factual in nature, if not collateral to the
resolution of the principal issues. As consistently held by this Court, the findings of the trial court
on the credibility of witnesses and their testimonies are entitled to a high degree of respect and
will not be disturbed on appeal in the absence of any showing that the trial judge gravely abused
his discretion or overlooked, misunderstood or misapplied material facts or circumstances of
weight and substance that could affect the outcome of the case. 14
In appellant's first six assigned items, we find no grave abuse of discretion, reversible error or
misappreciation of material facts that would reverse or modify the trial court's disposition of the
case. In any event, we will now briefly dispose of these alleged errors of the trial court.
First, we do not agree that the lower court promulgated "an obviously hasty decision without
reflecting on the evidence adduced as to self-defense." We note that in his 17-page Decision,
Judge Fortunito L. Madrona summarized the testimonies of both the prosecution and the defense
witnesses and -- on the basis of those and of the documentary evidence on record -- made his
evaluation, findings and conclusions. He wrote a 3-page discourse assessing the testimony and
the self-defense theory of the accused. While she, or even this Court, may not agree with the trial
judge's conclusions, we cannot peremptorily conclude, absent substantial evidence, that he
failed to reflect on the evidence presented.
Neither do we find the appealed Decision to have been made in an "obviously hasty" manner. The
Information had been filed with the lower court on November 14, 1996. Thereafter, trial began
and at least 13 hearings were held for over a year. It took the trial judge about two months from
the conclusion of trial to promulgate his judgment. That he conducted the trial and resolved the
case with dispatch should not be taken against him, much less used to condemn him for being
unduly hasty. If at all, the dispatch with which he handled the case should be lauded. In any case,
we find his actions in substantial compliance with his constitutional obligation.15
Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been
legally married, despite the non-presentation of their marriage contract. In People v.
Malabago,16 this Court held:
"The key element in parricide is the relationship of the offender with the victim. In the
case of parricide of a spouse, the best proof of the relationship between the accused
and the deceased is the marriage certificate. In the absence of a marriage certificate,
however, oral evidence of the fact of marriage may be considered by the trial court if
such proof is not objected to."
Two of the prosecution witnesses -- namely, the mother and the brother of appellant's deceased
spouse -- attested in court that Ben had been married to Marivic. 17 The defense raised no objection
to these testimonies. Moreover, during her direct examination, appellant herself made a judicial
admission of her marriage to Ben.18 Axiomatic is the rule that a judicial admission is conclusive
upon the party making it, except only when there is a showing that (1) the admission was made
through a palpable mistake, or (2) no admission was in fact made.19 Other than merely attacking
the non-presentation of the marriage contract, the defense offered no proof that the admission
made by appellant in court as to the fact of her marriage to the deceased was made through a
palpable mistake.
Third, under the circumstances of this case, the specific or direct cause of Ben's death -- whether
by a gunshot or by beating with a pipe -- has no legal consequence. As the Court elucidated in its
September 29, 2000 Resolution, "[c]onsidering that the appellant has admitted the fact of killing
her husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of
his head, the Court believes that exhumation is unnecessary, if not immaterial, to determine which
of said acts actually caused the victim's death." Determining which of these admitted acts caused
the death is not dispositive of the guilt or defense of appellant.
Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk,
gambler, womanizer and wife-beater. Until this case came to us for automatic review, appellant
had not raised the novel defense of "battered woman syndrome," for which such evidence may
have been relevant. Her theory of self-defense was then the crucial issue before the trial court.
As will be discussed shortly, the legal requisites of self-defense under prevailing jurisprudence
ostensibly appear inconsistent with the surrounding facts that led to the death of the victim. Hence,
his personal character, especially his past behavior, did not constitute vital evidence at the time.
Fifth, the trial court surely committed no error in not requiring testimony from appellant's children.
As correctly elucidated by the solicitor general, all criminal actions are prosecuted under the
direction and control of the public prosecutor, in whom lies the discretion to determine which
witnesses and evidence are necessary to present. 20 As the former further points out, neither the
trial court nor the prosecution prevented appellant from presenting her children as witnesses.
Thus, she cannot now fault the lower court for not requiring them to testify.
Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila
and her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save
the life of her unborn child. Any reversible error as to the trial court's appreciation of these
circumstances has little bearing on the final resolution of the case.
First Legal Issue:
Self-Defense and Defense of a Fetus
Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or
defense of her unborn child. When the accused admits killing the victim, it is incumbent upon her
to prove any claimed justifying circumstance by clear and convincing evidence. 21 Well-settled is
the rule that in criminal cases, self-defense (and similarly, defense of a stranger or third person)
shifts the burden of proof from the prosecution to the defense.22
The Battered Woman Syndrome
In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While
new in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form
of self-defense or, at the least, incomplete self-defense.23 By appreciating evidence that a victim
or defendant is afflicted with the syndrome, foreign courts convey their "understanding of the
justifiably fearful state of mind of a person who has been cyclically abused and controlled over a
period of time." 24
A battered woman has been defined as a woman "who is repeatedly subjected to any forceful
physical or psychological behavior by a man in order to coerce her to do something he wants her
to do without concern for her rights. Battered women include wives or women in any form of
intimate relationship with men. Furthermore, in order to be classified as a battered woman, the
couple must go through the battering cycle at least twice. Any woman may find herself in an
abusive relationship with a man once. If it occurs a second time, and she remains in the situation,
she is defined as a battered woman."25
Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs
about the home, the family and the female sex role; emotional dependence upon the dominant
male; the tendency to accept responsibility for the batterer's 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
AMCVB CRIM 1 [Art. 8-11] (5)| 64
During the tension-building phase, minor battering occurs -- it could be verbal or slight physical
abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through
a show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is
that she allows herself to be abused in ways that, to her, are comparatively minor. All she wants
is to prevent the escalation of the violence exhibited by the batterer. This wish, however, proves
to be double-edged, because her "placatory" and passive behavior legitimizes his belief that he
has the right to abuse her in the first place.
However, the techniques adopted by the woman in her effort to placate him are not usually
successful, and the verbal and/or physical abuse worsens. Each partner senses the imminent loss
of control and the growing tension and despair. Exhausted from the persistent stress, the battered
woman soon withdraws emotionally. But the more she becomes emotionally unavailable, the more
the batterer becomes angry, oppressive and abusive. Often, at some unpredictable point, the
violence "spirals out of control" and leads to an acute battering incident. 29
The acute battering incident is said to be characterized by brutality, destructiveness and,
sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable.
During this phase, she has no control; only the batterer may put an end to the violence. Its nature
can be as unpredictable as the time of its explosion, and so are his reasons for ending it. The
battered woman usually realizes that she cannot reason with him, and that resistance would only
exacerbate her condition.
At this stage, she has a sense of detachment from the attack and the terrible pain, although she
may later clearly remember every detail. Her apparent passivity in the face of acute violence may
be rationalized thus: the batterer is almost always much stronger physically, and she knows from
her past painful experience that it is futile to fight back. Acute battering incidents are often very
savage and out of control, such that innocent bystanders or intervenors are likely to get hurt. 30
The final phase of the cycle of violence begins when the acute battering incident ends. During
this tranquil period, the couple experience profound relief. On the one hand, the batterer may
show a tender and nurturing behavior towards his partner. He knows that he has been viciously
cruel and tries to make up for it, begging for her forgiveness and promising never to beat her
again. On the other hand, the battered woman also tries to convince herself that the battery will
never happen again; that her partner will change for the better; and that this "good, gentle and
caring man" is the real person whom she loves.
A battered woman usually believes that she is the sole anchor of the emotional stability of the
batterer. Sensing his isolation and despair, she feels responsible for his well-being. The truth,
though, is that the chances of his reforming, or seeking or receiving professional help, are very
slim, especially if she remains with him. Generally, only after she leaves him does he seek
professional help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation
that she is most thoroughly tormented psychologically.
The illusion of absolute interdependency is well-entrenched in a battered woman's psyche. In this
phase, she and her batterer are indeed emotionally dependent on each other -- she for his
nurturant behavior, he for her forgiveness. Underneath this miserable cycle of "tension, violence
and forgiveness," each partner may believe that it is better to die than to be separated. Neither
one may really feel independent, capable of functioning without the other. 31
History of Abuse
in the Present Case
To show the history of violence inflicted upon appellant, the defense presented several witnesses.
She herself described her heart-rending experience as follows:
A Because she has this problem of tension headache secondary to hypertension and I
think I have a record here, also the same period from 1989 to 1995, she had a
consultation for twenty-three (23) times.
Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte,
testified that he had seen the couple quarreling several times; and that on some occasions Marivic
would run to him with bruises, confiding that the injuries were inflicted upon her by Ben. 35
Ecel Arano also testified36 that for a number of times she had been asked by Marivic to sleep at
the Genosa house, because the latter feared that Ben would come home drunk and hurt her. On
one occasion that Ecel did sleep over, she was awakened about ten o'clock at night, because the
couple "were very noisy … and I heard something was broken like a vase." Then Marivic came
running into Ecel's room and locked the door. Ben showed up by the window grill atop a chair,
scaring them with a knife.
On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben --
but they were unable to. They returned to the Genosa home, where they found him already drunk.
Again afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of
drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave.
On that same night that culminated in the death of Ben Genosa, at least three other witnesses
saw or heard the couple quarreling. 37 Marivic relates in detail the following backdrop of the fateful
night when life was snuffed out of him, showing in the process a vivid picture of his cruelty towards
her:
A Yes, sir, that was the object used when he intimidate me." 38
In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist
it in understanding the psyche of a battered person. She had met with Marivic Genosa for five
sessions totaling about seventeen hours. Based on their talks, the former briefly related the latter's
ordeal to the court a quo as follows:
"Q: What can you say, that you found Marivic as a battered wife? Could you in layman's
term describe to this Court what her life was like as said to you?
A: What I remember happened then was it was more than ten years, that she was
suffering emotional anguish. There were a lot of instances of abuses, to emotional
abuse, to verbal abuse and to physical abuse. The husband had a very meager income,
she was the one who was practically the bread earner of the family. The husband was
involved in a lot of vices, going out with barkadas, drinking, even womanizing being
involved in cockfight and going home very angry and which will trigger a lot of physical
abuse. She also had the experience a lot of taunting from the husband for the reason
that the husband even accused her of infidelity, the husband was saying that the child
she was carrying was not his own. So she was very angry, she was at the same time
very depressed because she was also aware, almost like living in purgatory or even hell
when it was happening day in and day out." 39
In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or
unwittingly put forward, additional supporting evidence as shown below:
"Q In your first encounter with the appellant in this case in 1999, where you talked to
her about three hours, what was the most relevant information did you gather?
A The most relevant information was the tragedy that happened. The most important
information were escalating abuses that she had experienced during her marital life.
Q Before you met her in 1999 for three hours, we presume that you already knew of
the facts of the case or at least you have substantial knowledge of the facts of the case?
A I believe I had an idea of the case, but I do not know whether I can consider them
as substantial.
xxx xxx xxx
AMCVB CRIM 1 [Art. 8-11] (5)| 65
 Q Did you gather an information from Marivic that on the side of her husband they were
fond of battering their wives?
A I also heard that from her?
Q You heard that from her?
A Yes, sir.
Q Did you ask for a complete example who are the relatives of her husband that were
fond of battering their wives?
A What I remember that there were brothers of her husband who are also battering
their wives.
Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc
where her husband followed her and battered [her] several times in that room?
A She told me about that.
Q Did she inform you in what hotel in Ormoc?
A Sir, I could not remember but I was told that she was battered in that room.
Q Several times in that room?
A Yes, sir. What I remember was that there is no problem about being battered, it really
happened.
Q Being an expert witness, our jurisprudence is not complete on saying this matter. I
think that is the first time that we have this in the Philippines, what is your opinion?
A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really
a self-defense. I also believe that there had been provocation and I also believe that
she became a disordered person. She had to suffer anxiety reaction because of all the
battering that happened and so she became an abnormal person who had lost she's
not during the time and that is why it happened because of all the physical battering,
emotional battering, all the psychological abuses that she had experienced from her
husband.
Q I do believe that she is a battered wife. Was she extremely battered?
A Sir, it is an extreme form of battering. Yes. 40
Parenthetically, the credibility of appellant was demonstrated as follows:
"Q And you also said that you administered [the] objective personality test, what x x x
[is this] all about?
A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose
of that test is to find out about the lying prone[ne]ss of the person.
Q What do you mean by that?
A Meaning, am I dealing with a client who is telling me the truth, or is she someone
who can exaggerate or x x x [will] tell a lie[?]
Q And what did you discover on the basis of this objective personality test?
A She was a person who passed the honesty test. Meaning she is a person that I can
trust. That the data that I'm gathering from her are the truth."41
The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric
Report,42 which was based on his interview and examination of Marivic Genosa. The Report said
that during the first three years of her marriage to Ben, everything looked good -- the atmosphere
was fine, normal and happy -- until "Ben started to be attracted to other girls and was also enticed
in[to] gambling[,] especially cockfighting. x x x. At the same time Ben was often joining
his barkada in drinking sprees."
The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly
to his wife. The Report continued: "At first, it was verbal and emotional abuses but as time passed,
he became physically abusive. Marivic claimed that the viciousness of her husband was
progressive every time he got drunk. It was a painful ordeal Marivic had to anticipate whenever
she suspected that her husband went for a drinking [spree]. They had been married for twelve
years[;] and practically more than eight years, she was battered and maltreated relentlessly and
mercilessly by her husband whenever he was drunk."
Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from
the Report, "[s]he also sought the advice and help of close relatives and well-meaning friends in
spite of her feeling ashamed of what was happening to her. But incessant battering became more
and more frequent and more severe. x x x." 43
From the totality of evidence presented, there is indeed no doubt in the Court's mind that Appellant
Marivic Genosa was a severely abused person.
Effect of Battery on Appellant
Because of the recurring cycles of violence experienced by the abused woman, her state of mind
metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an
ordinary, reasonable person who is evaluating the events immediately surrounding the incident.
A Canadian court has aptly pointed out that expert evidence on the psychological effect of
battering on wives and common law partners are both relevant and necessary. "How can the
mental state of the appellant be appreciated without it? The average member of the public may
ask: Why would a woman put up with this kind of treatment? Why should she continue to live
with such a man? How could she love a partner who beat her to the point of requiring
hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect?
Why does she not cut loose and make a new life for herself? Such is the reaction of the average
person confronted with the so-called 'battered wife syndrome.'" 44
To understand the syndrome properly, however, one's viewpoint should not be drawn from that
of an ordinary, reasonable person. What goes on in the mind of a person who has been subjected
to repeated, severe beatings may not be consistent with -- nay, comprehensible to -- those who
have not been through a similar experience. Expert opinion is essential to clarify and refute
common myths and misconceptions about battered women. 45
The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence,
has had a significant impact in the United States and the United Kingdom on the treatment and
prosecution of cases, in which a battered woman is charged with the killing of her violent partner.
The psychologist explains that the cyclical nature of the violence inflicted upon the battered
woman immobilizes the latter's "ability to act decisively in her own interests, making her feel
trapped in the relationship with no means of escape."46 In her years of research, Dr. Walker found
that "the abuse often escalates at the point of separation and battered women are in greater
danger of dying then." 47
Corroborating these research findings, Dra. Dayan said that "the battered woman usually has a
very low opinion of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x
[W]hen the violence would happen, they usually think that they provoke[d] it, that they were the
one[s] who precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally
and even sexually abusive to them."48
According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave
an abusive partner -- poverty, self-blame and guilt arising from the latter's belief that she provoked
the violence, that she has an obligation to keep the family intact at all cost for the sake of their
children, and that she is the only hope for her spouse to change. 49
The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified
in suits involving violent family relations, having evaluated "probably ten to twenty thousand"
violent family disputes within the Armed Forces of the Philippines, wherein such cases abounded.
As a result of his experience with domestic violence cases, he became a consultant of the Battered
Woman Office in Quezon City. As such, he got involved in about forty (40) cases of severe
AMCVB CRIM 1 [Art. 8-11] (5)| 66
domestic violence, in which the physical abuse on the woman would sometimes even lead to her
loss of consciousness.50
Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in posttraumatic stress
disorder, a form of "anxiety neurosis or neurologic anxietism." 51 After being repeatedly and
severely abused, battered persons "may believe that they are essentially helpless, lacking power
to change their situation. x x x [A]cute battering incidents can have the effect of stimulating the
development of coping responses to the trauma at the expense of the victim's ability to muster
an active response to try to escape further trauma. Furthermore, x x x the victim ceases to believe
that anything she can do will have a predictable positive effect." 52
A study53 conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found
that "even if a person has control over a situation, but believes that she does not, she will be
more likely to respond to that situation with coping responses rather than trying to escape." He
said that it was the cognitive aspect -- the individual's thoughts -- that proved all-important. He
referred to this phenomenon as "learned helplessness." "[T]he truth or facts of a situation turn
out to be less important than the individual's set of beliefs or perceptions concerning the situation.
Battered women don't attempt to leave the battering situation, even when it may seem to
outsiders that escape is possible, because they cannot predict their own safety; they believe that
nothing they or anyone else does will alter their terrible circumstances." 54
Thus, just as the battered woman believes that she is somehow responsible for the violent
behavior of her partner, she also believes that he is capable of killing her, and that there is no
escape. 55 Battered women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the
relationship.56 Unless a shelter is available, she stays with her husband, not only because she
typically lacks a means of self-support, but also because she fears that if she leaves she would be
found and hurt even more.57
In the instant case, we meticulously scoured the records for specific evidence establishing that
appellant, due to the repeated abuse she had suffered from her spouse over a long period of time,
became afflicted with the battered woman syndrome. We, however, failed to find sufficient
evidence that would support such a conclusion. More specifically, we failed to find ample evidence
that would confirm the presence of the essential characteristics of BWS.
The defense fell short of proving all three phases of the "cycle of violence" supposedly
characterizing the relationship of Ben and Marivic Genosa. No doubt there were acute battering
incidents. In relating to the court a quo how the fatal incident that led to the death of Ben started,
Marivic perfectly described the tension-building phase of the cycle. She was able to explain in
adequate detail the typical characteristics of this stage. However, that single incident does not
prove the existence of the syndrome. In other words, she failed to prove that in at least another
battering episode in the past, she had gone through a similar pattern.
How did the tension between the partners usually arise or build up prior to acute battering? How
did Marivic normally respond to Ben's relatively minor abuses? What means did she employ to try
to prevent the situation from developing into the next (more violent) stage?
Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She
simply mentioned that she would usually run away to her mother's or father's house; 58 that Ben
would seek her out, ask for her forgiveness and promise to change; and that believing his words,
she would return to their common abode.
Did she ever feel that she provoked the violent incidents between her and her spouse? Did she
believe that she was the only hope for Ben to reform? And that she was the sole support of his
emotional stability and well-being? Conversely, how dependent was she on him? Did she feel
helpless and trapped in their relationship? Did both of them regard death as preferable to
separation?
In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts
that would clearly and fully demonstrate the essential characteristics of the syndrome.
The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed,
they were able to explain fully, albeit merely theoretically and scientifically, how the personality
of the battered woman usually evolved or deteriorated as a result of repeated and severe beatings
inflicted upon her by her partner or spouse. They corroborated each other's testimonies, which
were culled from their numerous studies of hundreds of actual cases. However, they failed to
present in court the factual experiences and thoughts that appellant had related to them -- if at
all -- based on which they concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven
in order to be appreciated. To repeat, the records lack supporting evidence that would establish
all the essentials of the battered woman syndrome as manifested specifically in the case of the
Genosas.
BWS as Self-Defense
In any event, the existence of the syndrome in a relationship does not in itself establish the legal
right of the woman to kill her abusive partner. Evidence must still be considered in the context of
self-defense.59
From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS
defense is the state of mind of the battered woman at the time of the offense 60 -- she must have
actually feared imminent harm from her batterer and honestly believed in the need to kill him in
order to save her life.
Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must
face a real threat on one's life; and the peril sought to be avoided must be imminent and actual ,
not merely imaginary.61 Thus, the Revised Penal Code provides the following requisites and effect
of self-defense:62
"Art. 11. Justifying circumstances. -- The following do not incur any criminal liability:
"1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself."
Unlawful aggression is the most essential element of self-defense.63 It presupposes actual, sudden
and unexpected attack -- or an imminent danger thereof -- on the life or safety of a person.64 In
the present case, however, according to the testimony of Marivic herself, there was a sufficient
time interval between the unlawful aggression of Ben and her fatal attack upon him. She had
already been able to withdraw from his violent behavior and escape to their children's bedroom.
During that time, he apparently ceased his attack and went to bed. The reality or even the
imminence of the danger he posed had ended altogether. He was no longer in a position that
presented an actual threat on her life or safety.
Had Ben still been awaiting Marivic when she came out of their children's bedroom -- and based
on past violent incidents, there was a great probability that he would still have pursued her and
inflicted graver harm -- then, the imminence of the real threat upon her life would not have ceased
yet. Where the brutalized person is already suffering from BWS, further evidence of actual physical
assault at the time of the killing is not required. Incidents of domestic battery usually have a
predictable pattern. To require the battered person to await an obvious, deadly attack before she
can defend her life "would amount to sentencing her to 'murder by installment.'" 65 Still, impending
danger (based on the conduct of the victim in previous battering episodes) prior to the defendant's
use of deadly force must be shown. Threatening behavior or communication can satisfy the
AMCVB CRIM 1 [Art. 8-11] (5)| 67
required imminence of danger. 66Considering such circumstances and the existence of BWS, self-
defense may be appreciated.
We reiterate the principle that aggression, if not continuous, does not warrant self-defense. 67 In
the absence of such aggression, there can be no self-defense -- complete or incomplete -- on the
part of the victim.68 Thus, Marivic's killing of Ben was not completely justified under the
circumstances.
Mitigating Circumstances Present
In any event, all is not lost for appellant. While she did not raise any other modifying circumstances
that would alter her penalty, we deem it proper to evaluate and appreciate in her favor
circumstances that mitigate her criminal liability. It is a hornbook doctrine that an appeal in a
criminal case opens it wholly for review on any issue, including that which has not been raised by
the parties.69
From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological
Evaluation Report dated November 29, 2000, opined as follows:
"This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic
experienced with her husband constitutes a form of [cumulative] provocation which
broke down her psychological resistance and natural self-control. It is very clear that
she developed heightened sensitivity to sight of impending danger her husband posed
continuously. Marivic truly experienced at the hands of her abuser husband a state of
psychological paralysis which can only be ended by an act of violence on her part." 70
Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of "repetitious
pain taking, repetitious battering, [and] repetitious maltreatment" as well as the severity and the
prolonged administration of the battering is posttraumatic stress disorder. 71 Expounding thereon,
he said:
xxxxxxx
In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in
"cumulative provocation which broke down her psychological resistance and natural self-control,"
"psychological paralysis," and "difficulty in concentrating or impairment of memory."
Based on the explanations of the expert witnesses, such manifestations were analogous to an
illness that diminished the exercise by appellant of her will power without, however, depriving her
of consciousness of her acts.There was, thus, a resulting diminution of her freedom of action,
intelligence or intent. Pursuant to paragraphs 9 74and 1075 of Article 13 of the Revised Penal Code,
this circumstance should be taken in her favor and considered as a mitigating factor. 76
In addition, we also find in favor of appellant the extenuating circumstance of having acted upon
an impulse so powerful as to have naturally produced passion and obfuscation. It has been held
that this state of mind is present when a crime is committed as a result of an uncontrollable burst
of passion provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to
overcome reason.77 To appreciate this circumstance, the following requisites should concur: (1)
there is an act, both unlawful and sufficient to produce such a condition of mind; and (2) this act
is not far removed from the commission of the crime by a considerable length of time, during
which the accused might recover her normal equanimity. 78
Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his
being killed by Marivic. He had further threatened to kill her while dragging her by the neck
towards a cabinet in which he had kept a gun. It should also be recalled that she was eight months
pregnant at the time. The attempt on her life was likewise on that of her fetus. 79 His abusive and
violent acts, an aggression which was directed at the lives of both Marivic and her unborn child,
naturally produced passion and obfuscation overcoming her reason. Even though she was able to
retreat to a separate room, her emotional and mental state continued. According to her, she felt
her blood pressure rise; she was filled with feelings of self-pity and of fear that she and her baby
were about to die. In a fit of indignation, she pried open the cabinet drawer where Ben kept a
gun, then she took the weapon and used it to shoot him.
The confluence of these events brings us to the conclusion that there was no considerable period
of time within which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillo's
testimony80 that with "neurotic anxiety" -- a psychological effect on a victim of "overwhelming
brutality [or] trauma" -- the victim relives the beating or trauma as if it were real, although she is
not actually being beaten at the time. She cannot control "re-experiencing the whole thing, the
most vicious and the trauma that she suffered." She thinks "of nothing but the suffering." Such
reliving which is beyond the control of a person under similar circumstances, must have been
what Marivic experienced during the brief time interval and prevented her from recovering her
normal equanimity. Accordingly, she should further be credited with the mitigating circumstance
of passion and obfuscation.
It should be clarified that these two circumstances -- psychological paralysis as well as passion
and obfuscation -- did not arise from the same set of facts.
On the one hand, the first circumstance arose from the cyclical nature and the severity of the
battery inflicted by the batterer-spouse upon appellant. That is, the repeated beatings over a
period of time resulted in her psychological paralysis, which was analogous to an illness
diminishing the exercise of her will power without depriving her of consciousness of her acts.
The second circumstance, on the other hand, resulted from the violent aggression he had inflicted
on her prior to the killing. That the incident occurred when she was eight months pregnant with
their child was deemed by her as an attempt not only on her life, but likewise on that of their
unborn child. Such perception naturally produced passion and obfuscation on her part.
Second Legal Issue:
Treachery
There is treachery when one commits any of the crimes against persons by employing means,
methods or forms in the execution thereof without risk to oneself arising from the defense that
the offended party might make.81 In order to qualify an act as treacherous, the circumstances
invoked must be proven as indubitably as the killing itself; they cannot be deduced from mere
inferences, or conjectures, which have no place in the appreciation of evidence. 82Because of the
gravity of the resulting offense, treachery must be proved as conclusively as the killing itself. 83
Ruling that treachery was present in the instant case, the trial court imposed the penalty of death
upon appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body
of Ben had been found lying in bed with an "open, depressed, circular" fracture located at the
back of his head. As to exactly how and when he had been fatally attacked, however, the
prosecution failed to establish indubitably. Only the following testimony of appellant leads us to
the events surrounding his death:
xxxxxxxx
A He dragged me towards the drawer and he was about to open the drawer but he
could not open it because he did not have the key then he pulled his wallet which
contained a blade about 3 inches long and I was aware that he was going to kill me
and I smashed his arm and then the wallet and the blade fell. The one he used to open
the drawer I saw, it was a pipe about that long, and when he was about to pick-up the
AMCVB CRIM 1 [Art. 8-11] (5)| 68
 wallet and the blade, I smashed him then I ran to the other room, and on that very
moment everything on my mind was to pity on myself, then the feeling I had on that
very moment was the same when I was admitted in PHILPHOS Clinic, I was about to
vomit
Xxxxx
The above testimony is insufficient to establish the presence of treachery. There is no showing of
the victim's position relative to appellant's at the time of the shooting. Besides, equally axiomatic
is the rule that when a killing is preceded by an argument or a quarrel, treachery cannot be
appreciated as a qualifying circumstance, because the deceased may be said to have been
forewarned and to have anticipated aggression from the assailant. 85
Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must
have been consciously and deliberately chosen for the specific purpose of accomplishing the
unlawful act without risk from any defense that might be put up by the party attacked. 86 There is
no showing, though, that the present appellant intentionally chose a specific means of successfu
lly attacking her husband without any risk to herself from any retaliatory act that he might make.
To the contrary, it appears that the thought of using the gun occurred to her only at about the
same moment when she decided to kill her batterer-spouse. In the absence of any convincing
proof that she consciously and deliberately employed the method by which she committed the
crime in order to ensure its execution, this Court resolves the doubt in her favor. 87
Proper Penalty
The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to
death. Since two mitigating circumstances and no aggravating circumstance have been found to
have attended the commission of the offense, the penalty shall be lowered by one (1) degree,
pursuant to Article 64 of paragraph 5 88 of the same Code.89 The penalty of reclusion temporal in
its medium period is imposable, considering that two mitigating circumstances are to be taken
into account in reducing the penalty by one degree, and no other modifying circumstances were
shown to have attended the commission of the offense.90 Under the Indeterminate Sentence Law,
the minimum of the penalty shall be within the range of that which is next lower in degree -
- prision mayor -- and the maximum shall be within the range of the medium period of reclusion
temporal.
While our hearts empathize with recurrently battered persons, we can only work within the limits
of law, jurisprudence and given facts. We cannot make or invent them. Neither can we amend
the Revised Penal Code. Only Congress, in its wisdom, may do so.
The Court, however, is not discounting the possibility of self-defense arising from the battered
woman syndrome. We now sum up our main points. First, each of the phases of the cycle of
violence must be proven to have characterized at least two battering episodes between the
appellant and her intimate partner. Second, the final acute battering episode preceding the killing
of the batterer must have produced in the battered person's mind an actual fear of an imminent
harm from her batterer and an honest belief that she needed to use force in order to save her
life. Third, at the time of the killing, the batterer must have posed probable -- not necessarily
immediate and actual -- grave harm to the accused, based on the history of violence perpetrated
by the former against the latter. Taken altogether, these circumstances could satisfy the requisites
of self-defense. Under the existing facts of the present case, however, not all of these elements
were duly established.
WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED.
However, there being two (2) mitigating circumstances and no aggravating circumstance
attending her commission of the offense, her penalty is REDUCED to six (6) years and one (1)
day of prision mayor as minimum; to 14 years, 8 months and 1 day of reclusion temporal as
maximum.
Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed
upon her, the director of the Bureau of Corrections may immediately RELEASE her from custody
upon due determination that she is eligible for parole, unless she is being held for some other
lawful cause. Costs de oficio.
SO ORDERED.

Considering all the circumstances of the instant case, we deem it just and proper to impose the
penalty of prision mayor in its minimum period, or six (6) years and one (1) day in prison as
minimum; to reclusion temporal in its medium period, or 14 years 8 months and 1 day as
maximum. Noting that appellant has already served the minimum period, she may now apply for
and be released from detention on parole. 91

Epilogue

Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor
simple to analyze and recognize vis-à-vis the given set of facts in the present case. The Court
agonized on how to apply the theory as a modern-day reality. It took great effort beyond the
normal manner in which decisions are made -- on the basis of existing law and jurisprudence
applicable to the proven facts. To give a just and proper resolution of the case, it endeavored to
take a good look at studies conducted here and abroad in order to understand the intricacies of
the syndrome and the distinct personality of the chronically abused person. Certainly, the Court
has learned much. And definitely, the solicitor general and appellant's counsel, Atty. Katrina
Legarda, have helped it in such learning process.

AMCVB CRIM 1 [Art. 8-11] (5)| 69

ARTICLE 11 (2)
16. VELASQUEZ v. PEOPLE
March 15, 2017
DECISION
LEONEN, J.:
An accused who pleads a justifying circumstance under Article 11 of the Revised Penal
Code1 admits to the commission of acts, which would otherwise engender criminal liability.
However, he asserts that he is justified in committing the acts. In the process of proving a
justifying circumstance, the accused risks admitting the imputed acts, which may justify the
existence of an offense were it not for the exculpating facts. Conviction follows if the evidence for
the accused fails to prove the existence of justifying circumstances.
Through this Petition for Review on Certiorari2 under Rule 45 of the Rules of Court, the accused
petitioners pray that the assailed March 17, 2010 Decision3 and December 10, 2010 Resolution 4 of
the Court of Appeals in CA-G.R. CR. No. 31333 be reversed and set aside, and that they be
absolved of any criminal liability.
The Court of Appeals' assailed rulings sustained the July 25, 2007 Decision 5 of the Regional Trial
Court, Branch 41, Dagupan City, which found petitioners guilty beyond reasonable doubt of
attempted murder.
In an Information, petitioners Nicolas Velasquez (Nicolas) and Victor Velasquez (Victor), along
with four (4) others -Felix Caballeda (Felix), Jojo Del Mundo (Jojo), Sonny Boy Velasquez (Sonny),
and Ampong Ocumen (Ampong) - were charged with attempted murder under Article 248,6 in
relation to Article 6, 7 of the Revised Penal Code, as follows:
That on May 24, 2003 in the evening at Brgy. Palua, Mangaldan, Pangasinan and within the
jurisdiction of this Honorable Court, the above named accused while armed with stones and
wooden poles, conspiring, confederating and mutually helping one another, with intent to kill,
with treachery and abuse of superior strength, did, then and there willfully, unlawfully and
feloniously attack, maul and hit JESUS DEL MUNDO inflicting upon him injuries in the vital parts
of his body, the said accused having thus commenced a felony directly by overt acts, but did not
perform all the acts of execution which could have produced the crime of Murder but nevertheless
did not produce it by reason of some causes or accident other than their own spontaneous
desistance to his damage and prejudice.
Contrary to Article 248 in relation to Article 6 and 50 of the Revised Penal Code. 8
All accused, except Ampong, who remained at large, pleaded not guilty upon arraignment.9 Trial
then ensued.10
According to the prosecution, on May 24, 2003, at about 10:00 p.m., the spouses Jesus and Ana
Del Mundo (Del Mundo Spouses) left their home to sleep in their nipa hut, which was about 100
meters away.11 Arriving at the nipa hut, the Del Mundo Spouses saw Ampong and Nora Castillo
(Nora) in the midst of having sex.12 Aghast at what he perceived to be a defilement of his property,
Jesus Del Mundo (Jesus) shouted invectives at Ampong and Nora, who both scampered
away. 13 Jesus decided to pursue Ampong and Nora, while Ana Del Mundo (Ana) left to fetch their
son, who was then elsewhere. 14 Jesus went to the house of Ampong's aunt, but neither Ampong
nor Nora was there.15 He began making his way back home when he was blocked by Ampong and
his fellow accused.16
Without provocation, petitioner Nicolas hit the left side of Jesus' forehead with a stone. Petitioner
Victor also hit Jesus' left eyebrow with a stone. 17 Accused Felix did the same, hitting Jesus above
his left ear. 18 Accused Sonny struck Jesus with a bamboo, hitting him at the back, below his right
shoulder.19 Ampong punched Jesus on his left cheek. The accused then left Jesus on the ground,
bloodied. Jesus crawled and hid behind blades of grass, fearing that the accused might return. He
then got up and staggered his way back to their house. 20
Jesus testified on his own ordeal. In support of his version of the events, the prosecution also
presented the testimony of Maria Teresita Viado (Maria Teresita). Maria Teresita was initially
approached by Jesus' wife, Ana, when Jesus failed to immediately return home.21 She and Ana
embarked on a search for Jesus but were separated. 22 At the sound of a man being beaten, she
hid behind some bamboos.23 From that vantage point, she saw the accused mauling Jesus.24 The
prosecution noted that about four (4) or five (5) meters away was a lamp post, which illuminated
the scene.25
At the Del Mundo Spouses' residence, Maria Teresita recounted to them what she had witnessed
(Jesus had managed to return home by then). 26 Ana and Maria Teresita then brought Jesus to
Barangay Captain Pili ta Villanueva, who assisted them in bringing Jesus to the hospital. 27
After undergoing an x-ray examination, Jesus was found to have sustained a crack in his skull. 28 Dr.
Jose D. De Guzman (Dr. De Guzman) issued a medico-legal certificate indicating the following
findings:
x.x. Positive Alcoholic Breath
3 ems lacerated wound fronto-parietal area left
1 cm lacerated wound frontal area left
Abrasion back left multi linear approximately 20 cm
Abrasion shoulder left, confluent 4x10 cm
Depressed skull fracture parietal area left.
x.x. 29
Dr. De Guzman noted that Jesus' injuries required medical attention for four (4) to six (6)
weeks. 30 Jesus was also advised to undergo surgery. 31 He was, however, unable to avail of the
required medical procedure due to shortage of funds. 32
The defense offered a different version of events.
According to the accused, in the evening of May 24, 2003, petitioner Nicolas was roused in his
sleep by his wife, Mercedes Velasquez (Mercedes), as the nearby house of petitioner Victor was
being stoned.33
Nicolas made his way to Victor's place, where he saw Jesus hacking Victor's door. Several
neighbors - the other accused - allegedly tried to pacify Jesus.34 Jesus, who was supposedly
inebriated, vented his ire upon Nicolas and the other accused, as well as on Mercedes. 35 The
accused thus responded and countered Jesus' attacks, leading to his injuries. 36
In its July 25, 2007 Decision, 37 the Regional Tnal Court, Branch 41, Dagupan City found petitioners
and Felix Caballeda guilty beyond reasonable doubt of attempted murder. 38 The court also found
Sonny Boy Velasquez guilty beyond reasorable doubt of less serious physical injuries. 39 He was
found to have hit Jesus on the back with a bamboo rod. Jojo Del Mundo was acquitted. 40 The case
was archived with respect to Ampong, as he remained at large. 41
The dispositive portion of its Decision read:
WHEREFORE, premises considered, judgment is hereby rendered finding accused NICOLAS
VELASQUEZ, VICTOR VELASQUEZ and FELIX CABALLEDA guilty beyond reasonable doubt of the
crime of Attempted Murder defined and penalized under Article 248 in relation to Art.ides 6,
AMCVB CRIM 1 [Art. 8-11] (5)| 70
paragraph 3 and 51 of the Revised Penal Code, and pursuant to the law, sentences each of them
to suffer on (sic) indeterminate penalty of four (4) years and one (1) day of Arrested (sic) Mayor
in its maximum period as minimum to eight (8) years of Prison (sic) Correctional (sic) in its
maximum period to Prison (sic) Mayor in its medium period as maximum and to pay
proportionately to private complainant Jesus del Mundo the amount of Php55,000.00 as exemplary
damages, and to pay the cost of suit.
The Court likewise finds the accused SONNY BOY VELASQUEZ [guilty] beyond reasonable doubt
of the [crime] of Less Serious Physical Injuries defined and penalized under Article 265 of the
Revised Penal Code and pursuant thereto, he is hereby sentenced to suffer the penalty of Arresto
Mayor on one (1) month and one (1) day to six (6) months.
Accused JOJO DEL MUNDO is hereby acquitted on the ground of absence of evidence.
With respect to accused AMPONG OCUMEN, the case against him is archived without prejudice to
its revival as soon as he is arrested and brought to the jurisdiction of this Court. 42
Petitioners and Felix Caballeda filed a motion for reconsideration, which the Regional Trial Court
denied. 43
On petitioners' and Caballeda's appeal, the Court of Appeals found that petitioners and Caballeda
were only liable for serious physical injuries because "first, intent to kill was not attendant
inasmuch as the accused-appellants, despite their superiority in numbers and strength, left the
victim alive and, second, none of [the] injuries or wounds inflicted upon the victim was
fatal."44 The Court of Appeals thus modified the sentence imposed on petitioners and Caballeda.
The dispositive portion of its assailed March 1 7, 2010 Decision45 read:
WHEREFORE, premises considered, the July 25, 2007 Decision of Branch 41, Regional Trial Court
of Dagupan City is hereby MODIFIED. Instead, accused-appellants are found guilty of Serious
Physical Injuries and each of them is sentenced to suffer the penalty of imprisonment of six (6)
months of arresto mayor as minimum to four (4) years and two (2) months of prisi6n
correccional as maximum.
SO ORDERED.46 (Emphasis in the original)
Following the denial of their Motion for Reconsideration, petitioners filed the present
Petition. 47 They insist on their version of events, particularly on how they and their co-accused
allegedly merely acted in response to Jesus Del Mundo's aggressive behavior.
For resolution is the issue of whether petitioners may be held criminally liable for the physical
harm inflicted on Jesus Del Mundo. More specifically, this Court is asked to determine whether
there was sufficient evidence: first, to prove that justifying circumstances existed, and second, to
convict the petitioners.
I defensive response: "[t]he means employed by the person invoking self-defense contemplates a
Petitioners' defense centers on their claim that they acted in defense of themselves, and also in
defense of Mercedes, Nicolas' wife and Victor's mother. Thus, they invoke the first and second
justifying circumstances under Article 11 of the Revised Penal Code:
ARTICLE 11. Justifying Circumstances. - The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following circumstances
concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.
2. Anyone who acts in defense of the person or rights of his spouse, ascendants, descendants, or
legitimate, natural or adopted brothers or sisters, or of his relatives by affinity in the same degrees,
and those by consanguinity within the fourth civil degree, provided that the first and second
requisites prescribed in the next preceding circumstance are present, and the further requisite, in
case the provocation was given by the person attacked, that the one making defense had no part
therein.
A person invoking self-defense (or defense of a relative) admits to having inflicted harm upon
another person - a potential criminal act under Title Eight (Crimes Against Persons) of the Revised
Penal Code. However, he or she makes the additional, defensive contention that even as he or
she may have inflicted harm, he or she nevertheless incurred no criminal liability as the looming
danger upon his or her own person (or that of his or her relative) justified the infliction of
protective harm to an erstwhile aggressor.
The accused's admission enables the prosecution to dispense with discharging its burden of
proving that the accused performed acts, which would otherwise be the basis of criminal liability.
All that remains to be established is whether the accused were justified in acting as he or she did.
To this end, the accused's case must rise on its own merits:
It is settled that when an accused admits [harming] the victim but invokes self-defense to escape
criminal liability, the accused assumes the burden to establish his plea by credible, clear and
convincing evidence; otherwise, conviction would follow from his admission that he [harmed] the
victim. Self-defense cannot be justifiably appreciated when uncorroborated by independent and
competent evidence or when it is extremely doubtful by itself. Indeed, in invoking self-defense,
the burden of evidence is shifted and the accused claiming self-defense must rely on the strength
of his own evidence and not on the weakness of the prosecution.48
To successfully invoke self-defense, an accused must establish: "(1) unlawful aggression on the
part of the victim; (2) reasonable necessity of the means employed to prevent or repel such
aggression; and (3) lack of sufficient provocation on the part of the person resorting to self-
defense."49 Defense of a relative under Article 11 (2) of the Revised Penal Code requires the same
first two (2) requisites as self-defense and, in lieu of the third "in case the provocation was given
by the person attacked, that the one making the defense had no part therein." 50
The first requisite - unlawful aggression - is the condition sine qua non of self-defense and defense
of a relative:
At the heart of the claim of self-defense is the presence of an unlawful aggression committed
against appellant. Without unlawful aggression, self-defense will not have a leg to stand on and
this justifying circumstance cannot and will not be appreciated, even if the other elements are
present. Unlawful aggression refers to an attack amounting to actual or imminent threat to the
life and limb of the person claiming self-defense.51
The second requisite - reasonable necessity of the means employed to prevent or repel the
aggression - requires a reasonable proportionality between the unlawful aggression and the
rational equivalence between the means of attack and the defense." 52 This is a matter that
depends on the circumstances:
Reasonable necessity of the means employed does not imply material commensurability between
the means of attack and defense. What the law requires is rational equivalence, in the
consideration of which will enter as principal factors the emergency, the imminent danger to which
the person attacked is exposed, and the instinct, more than the reason, that moves or impels the
defense, and the proportionateness thereof does not depend upon the harm done, but rests upon
the imminent danger of such injury ... As WE stated in the case of People vs. Lara, in emergencies
of this kind, human nature does not act upon processes of formal reason but in obedience to the
instinct of self-preservation; and when it is apparent that a person has reasonably acted upon this
AMCVB CRIM 1 [Art. 8-11] (5)| 71
instinct, it is the duty of the courts to sanction the act and hold the act irresponsible in law for the
consequences.53(Citations omitted)
The third requisite - lack of sufficient provocation - requires the person mounting a defense to be
reasonably blameless. He or she must not have antagonized or incited the attacker into launching
an assault. This also requires a consideration of proportionality. As explained in People v. Boholst-
Caballero, 54 "[p]rovocation is sufficient when it is proportionate to the aggression, that is,
adequate enough to impel one to attack the person claiming self-defense."55
II
We find petitioners' claims of self-defense and defense of their relative, Mercedes, to be sorely
wanting.
Petitioners' entire defense rests on proof that it was Jesus who initiated an assault by barging into
the premises of petitioners' residences, hacking Victor's door, and threatening physical harm upon
petitioners and their companions. That is, that unlawful aggression originated from Jesus.
Contrary to what a successful averment of self-defense or defense of a relative requires,
petitioners offered nothing more than a self-serving, uncorroborated claim that Jesus appeared
out of nowhere to go berserk in the vicinity of their homes. They failed to present independent
and credible proof to back up their assertions. The Regional Trial Court noted that it was highly
dubious that Jesus would go all the way to petitioners' residences to initiate an attack for no
apparent reason. 56
The remainder of petitioners' recollection of events strains credulity. They claim that Jesus
launched an assault despite the presence of at least seven (7) antagonists: petitioners, Mercedes,
and the four (4) other accused. They further assert that Jesus persisted on his assault despite
being outnumbered, and also despite their and their co-accused's bodily efforts to restrain Jesus.
His persistence was supposedly so likely to harm them that, to neutralize him, they had no other
recourse but to hit him on the head with stones for at least three (3) times, and to hit him on the
back with a bamboo rod, aside from dealing him with less severe blows. 57
As the Regional Trial Court noted, however:
The Court takes judicial notice of (the) big difference in the physical built of the private
complainant and accused Victor Velasquez, Sonny Boy Velasquez, Felix Caballeda and Jojo del
Mundo, private complainant is shorter in height and of smaller built than all the accused.
The said accused could have had easily held the private complainant, who was heavily drunk as
they claim, and disarmed him without the need of hitting him. 58
The injuries which Jesus were reported to have sustained speak volumes:
3 ems lacerated wound fronto-parietal area left
1 cm lacerated wound frontal area left
Abrasion back left multi linear approximately 20 cm
Abrasion shoulder left, confluent 4x 10 cm
Depressed skull fracture parietal area left.59
Even if it were to be granted that Jesus was the initial aggressor, the beating dealt to him by
petitioners and their co-accused was still glaringly in excess of what would have sufficed to
neutralize him. It was far from a reasonably necessary means to repel his supposed aggression.
Petitioners thereby fail in satisfying the second requisite of self-defense and of defense of a
relative.
III
In addition to their tale of self-defense, petitioners insist that the testimony of Maria Teresita is
not worthy of trust because she parted ways with Ana while searching for Jesus. 60 They
characterize Maria Teresita as the prosecution's "lone eyewitness." 61 They make it appear that its
entire case hinges on her. Thus, they theorize that with the shattering of her credibility comes the
complete and utter ruin of the prosecution's case. 62 Petitioners claim that Maria Teresita is the
prosecution's lone eyewitness at the same time that they acknowledge Jesus' testimony, which
they dismissed as laden with inconsistencies. 63
These contentions no longer merit consideration.
Petitioners' averment of justifying circumstances was dispensed with the need for even passing
upon their assertions against Maria Teresita's and Jesus' testimonies. 1âwphi1 Upon their mere
invocation of self-defense and defense of a relative, they relieved the prosecution of its burden of
proving the acts constitutive of the offense. They took upon themselves the burden of establishing
their innocence, and cast their lot on their capacity to prove their own affirmative
allegations.1âwphi1 Unfortunately for them, they failed.
Even if we were to extend them a measure of consideration, their contentions fail to impress.
Petitioners' primordial characterization of Maria Teresita as the "lone eyewitness," upon whose
testimony the prosecution's case was to rise or fall, is plainly erroneous. Apart from her, Jesus
testified about his own experience of being mauled by petitioners and their co-accused. Maria
Teresita's testimony was only in support of what Jesus recounted.
Moreover, we fail to see how the mere fact of Maria Teresita's having parted ways with Ana while
searching for Jesus diminishes her credibility. No extraordinary explanation is necessary for this.
Their having proceeded separately may be accounted for simply by the wisdom of how
independent searches enabled them to cover more ground in less time.
Regarding Jesus' recollection of events, petitioners' contention centers on Jesus' supposedly
flawed recollection of who among the six (6) accused dealt him, which specific blow, and using
which specific weapon. 64 These contentions are too trivial to even warrant an independent, point
by point audit by this Court.
Jurisprudence is replete with clarifications that a witness' recollection of crime need not be
foolproof: "Witnesses cannot be expected to recollect with exactitude every minute detail of an
event. This is especially true when the witnesses testify as to facts which transpired in rapid
succession, attended by flurry and excitement."65 This is especially true of a victim's recollection
of his or her own harrowing ordeal. One who has undergone a horrifying and traumatic experience
"cannot be expected to mechanically keep and then give an accurate account" 66 of every minutiae.
Certainly, Jesus' supposed inconsistencies on the intricacies of who struck him which specific blow
can be forgiven. The merit of Jesus' testimony does not depend on whether he has an
extraordinary memory despite being hit on the head multiple times. Rather, it is in his credible
narration of his entire ordeal, and how petitioners and their co-accused were its authors. On this,
his testimony was unequivocal.
WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CR. No.
31333 is AFFIRMED.
SO ORDERED.
AMCVB CRIM 1 [Art. 8-11] (5)| 72
ARTICLE 11 (3)
17. PP v. FLORES
G.R. No. 103801-02 October 19, 1994
PUNO, J.:
Accused-appellant Irving Flores y Dichoso was charged in two (2) separate Informations with
Murder and violation of P.D. 1866 (Illegal Possession of Firearm) before the Regional Trial Court,
Valenzuela, Metro Manila, Branch 172. 1
The Information for Murder reads:
That on or about the 6th day of July, 1991, in the Municipality of Valenzuela, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
without any justifiable cause, with treachery and evident premeditation and with deliberate
intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and shoot
with an unlicensed handgun one EDWIN ALBERTO y BAYLON, thereby inflicting upon the
latter serious physical injuries, which directly caused his death.
Contrary to Law. ( Rollo, p. 3).
The Information for Illegal Possession of Firearm, one the other hand, reads:
That on or about the 6th day of July, 1991, in the Municipality of Valenzuela, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused
being a private person without any authority of law, did then and there willfully, unlawfully
and feloniously have in possession and control one (1) .38 cal. rev. mark(ed) Taurus Brasil,
with Serial No. 2140012 with two (2) spent shells of .38 cal. rev. and one (1) black holster
of .38 cal. rev., without any purpose and intent of surrendering the same to the proper
authority.
Contrary to Law. ( Rollo, p.2).
As the two (2) cases arose out of the same incident, both were tried jointly.
During the trial, the prosecution established the following:
On July 6, 1991, at around 11:45 p.m., Edwin Alberto and Demetrio Mendoza, both residents of
#3 Silverio Domingo Apartment, Lawang-Bato, Valenzuela, Metro Manila, took out the garbage
from their house. They walked towards the dumpsite — a vacant lot near the Mariposa Bed Factory
also located in Lawang-Bato.2 After disposing of the garbage and while enroute home, accused-
appellant Irving Flores, a security guard of the Mariposa Bed Factory, emerged from the factory.
Accused-appellant, apparently drunk,
was carrying a gun. Suddenly and for no apparent reason, accused-appellant fired at them.
Sensing danger, Alberto and Mendoza ran for their lives. Accused-appellant chased them. At a
distance of about fifteen (15) meters, accused-appellant again fired at them. Alberto, who was hit
at the back, exclaimed: "Demet, I was hit." Mendoza ran to Alberto's succor and immediately
brought his wounded friend to the hospital. It was to late, though, for Alberto was pronounced
dead upon arrival.3 The cause of death was hemorrhage resulting from the gunshot which
lacerated his lungs.4
Mendoza was interviewed by the police. In his sworn statement, 5 he narrated the shooting incident
and identified accused-appellant as the person responsible for the death of Alberto. 6
Approximately two (2) hours after the incident, at about 1:35 a.m., after receiving a report about
the shooting incident, Patrolmen Federico Patag and Reynaldo Tapar proceeded to the scene of
the crime. They received information from the residents in the area that the person involved in
the shooting
incident went inside the Mariposa Bed Factory compound. They went to the factory and inquired
from security guard Eman about the identity of the person who fired the gun. Eman pointed to
accused-appellant. As they were approaching accused-appellant, the latter, who was drunk, was
also coming towards them. Accused-appellant handed to Pat. Patag a .38 caliber revolver with
serial number 2140012. The license covering said gun was handed by security guard Eman to Pat.
Patag. From the license, they discovered that the subject firearm was regularly issued in the name
of the security agency employing accused-appellant.7
For his defense, accused-appellant presented an entirely different version of the incident. He
testified that as a security guard of the Kossaks Investigation, Security and Detective Agency, he
was designated as office-in-charge of the four (4) security guards assigned at the Mariposa Bed
Factory, namely: Danilo Eman, Rey Nargatan, Edwin Goto and Rex dela Cruz. 8
On said date and time, he conducted a roving inspection of the factory premises. He was
accompanied by security guards Danilo Eman and Rey Nargatan. Both he and Eman were armed
with a .38 caliber revolver while Nargatan was armed with a shotgun.
While conducting their inspection, Eman informed accused-appellant
that three (3) unidentified men were roaming in front of the factory gate. Accused-appellant went
out to verify the identity of these men. Upon inquiry, the three (3) men represented to him that
they were relatives of the factory owner. Noting that it was almost midnight, accused-appellant
informed them that the owner was not around and instructed them to return the next day.
However, the three (3) still insisted on entering the factory. Accused-appellant adamantly refused
to let them in. One of the men cursed him: "Putang-ina mo, guwardiya ka lang." In the meantime,
the two (2) other men started scaling the factory fence. Accused-appellant then instructed Eman
to go to the guardhouse on top of the factory gate and assist him. Still standing outside the gate,
accused-appellant fired two (2) successive warning shots in the air. Frightened, the two (2) men
immediately climbed down the fence, then fled swiftly.
A few hours after the incident, when the police authorities arrived at the factory, accused-appellant
alleged that he voluntarily surrendered himself to them, including his service firearm. 9
After trial, a decision was rendered by Judge Teresita Dizon-Capulong 10 acquitting accused-
appellant from the charge of illegal possession of firearm. The trial court found that the subject
firearm was properly licensed and that accused-appellant, as officer-in-charge of the security
agency, had authority to possess the same at the time of the shooting incident. However, accused-
appellant was found guilty beyond reasonable doubt of murder for the death of Edwin Alberto. He
was sentenced to suffer the penalty of reclusion perpetua, to indemnify the heirs of Edwin Alberto
in the sum of fifty thousand pesos (P50,000.00) and to pay the costs.
Hence this appeal where accused-appellant ascribed the following errors:
I
THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE
DOUBT OF THE CRIME OF MURDER.
II
ASSUMING ARGUENDO THAT THE ACCUSED IS GUILTY, HE IS GUILTY ONLY OF THE
CRIME OF HOMICIDE WITH THE PRIVILEGED (sic) MITIGATING CIRCUMSTANCE OF
INCOMPLETE JUSTIFICATION UNDER ARTICLE 13, PARAGRAPH 1 OF THE REVISED
PENAL CODE AND GENERIC MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER.
In his first assigned error, accused-appellant faults the trial court for giving credence to the
testimony of prosecution eyewitness Mendoza. He points that the statement was taken almost
three (3) hours after the incident, at which time, Mendoza allegedly has had more than enough
time to compose himself and narrate an entirely different story. Accused-appellant also stresses
AMCVB CRIM 1 [Art. 8-11] (5)| 73
that the prosecution failed to show that he has any motive or reason to shoot at Mendoza and
Alberto.
We find no merit in these contentions.
It is incorrect to argue that accused-appellant was convicted solely on the basis of the sworn
statement of prosecution witness Mendoza. More accurately, the trial court examined the
testimony of Mendoza in open court where he unfailingly recounted in detail the confluence of
events leading to the death of the victim. The records will hear that his testimony is substantially
congruent with his sworn statement and no material inconsistency emanated therefrom. Truth to
tell, his testimony withstood rigid cross-examination.
The fact that accused-appellant had no motive to kill the victim is of no moment. It is a settled
rule in criminal law that proof of motive is crucial only where the identity of an accused is not
sufficiently established.11 In the case at bench, the identity of accused-appellant as the author of
the crime has been positively and categorically established by the testimony of prosecution
eyewitness Mendoza who was himself a survivor of accused-appellant's belligerent assault.
Accused-appellant would cast doubt on Mendoza's identification of him as the assailant. He claims
that at the time of the shooting incident, there was no light at the scene of the crime which could
have aided Mendoza in identifying him as the culprit.
A perusal of the records reveals otherwise. As per the testimony of Mendoza, the crime scene was
adequately illuminated by a Meralco lamp post near the gate of the factory where accused-
appellant started his aggression. 12Mendoza, who was not shown to be biased, even described
accused-appellant as wearing a light blue uniform at the time of the attack and that the latter
retreated to the factory immediately after shooting the victim.
Coming now to the second assigned error, accused-appellant proposes that,
assuming arguendo that he should be held liable for the death of Alberto, he should have been
found guilty of the lesser crime of homicide. He maintains that the killing of the victim is not
qualified by treachery.
We agree. The mere fact that the victim was shot at the back while attempting to run away from
his assailant would not per se qualify the crime to murder. In the case at bench, the evidence
established that accused-appellant, apparently drunk, emerged from the factory and fired upon
the victim and his companion who were just innocently passing by. Sensing an imminent danger
to their lives, the two started to run. However, the next gunshot hit the victim at the back and
caused his death. Clearly then, with the first gunshot, the victim has been placed on guard and
has, in fact, attempted to flee. There could thus be no treachery since, prior to the attack, the
victim has been forewarned of the danger to his life and has even attempted, albeit unsuccessfully,
to escape. Moreover, there was absolutely no evidence to show that accused-
appellant consciously and deliberately employed a specific form of attack which would specially
and directly ensure its commission without impunity. 13
We come now to the appreciation of the mitigating circumstances. Accused-appellant claims that
he is entitled to the mitigating circumstances of incomplete defense of the property or rights of a
stranger. He maintains that in shooting the victim, he acted in the performance of his duty as a
security guard since he was trying to prevent the victim and his companions from scaling the wall
of the factory. He further claims that he is entitled to the mitigating circumstances of voluntary
surrender for when the police authorities went to the factory looking for him, he allegedly
approached them and voluntarily surrendered himself.
We find that none of the mitigating circumstances alleged by accused-appellant attended the
commission of the crime.
The justifying circumstance of defense of property or rights of a stranger requires the concurrence
of the following requisites:
(1) unlawful aggression,
(2) reasonable necessity of the means employed to prevent or repel it, and
(3) the person defending is not induced by revenge, resentment or other evil motive. 14
Absent either or both of the last two (2) requisites, the mitigating circumstance of incomplete
defense of stranger may be appreciated. However, in either case, unlawful aggression is always
an essential element. It has been held that without unlawful aggression, there could never be a
defense, complete or incomplete. 15
In this case, the evidence adduced by the prosecution established beyond reasonable doubt that
it was accused-appellant who was the aggressor. Indeed, appreciation of the mitigating
circumstance of incomplete defense of property or rights of a stranger would require that we
accept as true the defense's version of the incident. Accused-appellant failed to convince the trial
court of his innocence. He remains unsuccessful before this Court.
Accused-appellant's uncorroborated and self-serving testimony runs contrary to ordinary human
experience. First, we find it inconceivable that the victim and his two (2) other alleged companions
would claim to be relatives of the factory owner and insist on entering the factory premises at an
unholy hour of 11:45 p.m. Second, it is unthinkable that, having been informed of the absence of
the owner, the three (3) would still insist on entering the premises. Finally, having been refused
entry, accused-appellant would have us believe that the three (3) men would desperately insist
on entering the premises even to the extent of climbing the fence. What is more, all these were
allegedly done in clear view and in the presence of two (2) armed security guards. On the whole,
his testimony simply does not inspire credence.
A contrario, we are satisfied that the prosecution, through its eyewitness, sufficiently proved the
culpability of accused-appellant. The evidence shows that accused-appellant, then under the
influence of liquor, emerged from the factory and recklessly fired at the first people he saw who,
unfortunately happened to be the victim and his companion Mendoza. The fact that it does not
appear on the record that bad blood existed between the parties prior to the incident which might
have impelled him to shoot the victim does not affect the credibility of the prosecution evidence.
Indeed, we have taken judicial notice of the fact that inebriated persons are inclined to be
pugnacious, irrational and quarrelsome for no sensible reason. 16 From the unbiased and credible
testimony of prosecution eyewitness Mendoza, we sustain the trial court's finding that the unlawful
aggression originated from accused-appellant himself.
Neither can we accept accused-appellant's plea of voluntary surrender. He did not surrender to
the police. In fact, the evidence adduced shows that it was the police authorities who came to the
factory looking for him. It was there that accused-appellant was pointed to them. Seeing that the
police were
already approaching him, accused-appellant did not offer any resistance and peacefully went with
them. With the police closing in, accused-appellant actually had no choice but to go with them.
To be sure, no surrender was made by accused-appellant.
In sum, we find that the guilt of accused-appellant for the death of the victim has been established
beyond reasonable doubt. Homicide carries with it the penalty of reclusion temporal.17 There being
neither mitigating or aggravating circumstance attending the commission of the crime, the
impossable penalty is the medium period of reclusion temporal. 18 Applying the Indeterminate
Sentence Law, accused-appellant should be meted the indeterminate sentence of ten (10) years
and one (1) day of prision mayor maximum as minimum penalty to seventeen (17) years and four
(4) months of reclusion temporal medium as maximum penalty.
AMCVB CRIM 1 [Art. 8-11] (5)| 74
IN VIEW THEREOF, accused-appellant IRVING FLORES y DICHOSO is found guilty beyond
reasonable doubt of homicide. He is sentenced to suffer the indeterminate penalty of ten (10)
years and one (1) day of prision mayor maximum as minimum penalty to seventeen (17) years
and four (4) months of reclusion temporal medium as maximum penalty, and indemnify the heirs
of Edwin Alberto in the amount of FIFTY THOUSAND PESOS (P50,000.00). No Costs.
SO ORDERED.

AMCVB CRIM 1 [Art. 8-11] (5)| 75

18. PP v. DEL CASTILLO
G.R. No. 169084 January 18, 2012
DECISION
BERSAMIN, J.:
This case illustrates yet again why denial and alibi are not the best defenses when there is positive
identification of the accused for their complicity in the commission of a crime.
Antecedents
All the accused are related to one another either by consanguinity or by affinity. Melanio del
Castillo and Hermogenes del Castillo are brothers. Rico del Castillo and Joven del Castillo are,
respectively, Melanio’s son and nephew. Felix Avengoza is the son-in-law of Melanio and the
brother of Arnold Avengoza. Both Felix and Arnold lived in the house of Melanio.
On March 28, 2000, the City Prosecutor’s Office of Batangas City charged all the accused in the
Regional Trial Court (RTC), Branch 4, Batangas City with three counts of murder, alleging as
follows:
Criminal Case No. 10839
That on or about March 21, 2000, at around 9:00 o’clock in the evening at Sitio Bulihan, Brgy.
Balete, Batangas City, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating with one another, while armed with bolos, kitchen
knife and pointed instrument, all deadly weapons, with intent to kill and with the qualifying
circumstances of treachery and abuse of superior strength, did then and there willfully, unlawfully
and feloniously attack, assault, hack and stab with said deadly weapons one Sabino Guinhawa y
Delgado @ "Benny," thereby hitting him on the different parts of his body, which directly caused
the victim’s death.1
Criminal Case No. 10840
That on or about March 21, 2000, at around 9:00 o’clock in the evening at Sitio Bulihan, Brgy.
Balete, Batangas City, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating with one another, while armed with bolos, kitchen
knife and pointed instrument, all deadly weapons, with intent to kill and with the qualifying
circumstances of treachery and abuse of superior strength, did then and there willfully, unlawfully
and feloniously attack, assault, hack and stab with said deadly weapons one Graciano Delgado y
Aguda @ "Nonoy," thereby hitting him on the different parts of his body, which directly caused
the victim’s death.2
Criminal Case No. 10841
That on or about March 21, 2000, at around 9:00 o’clock in the evening at Sitio Bulihan, Brgy.
Balete, Batangas City, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating with one another, while armed with bolos, kitchen
knife and pointed instrument, all deadly weapons, with intent to kill and with the qualifying
circumstances of treachery and abuse of superior strength, did then and there willfully, unlawfully
and feloniously attack, assault, hack and stab with said deadly weapons one Victor Noriega y
Blanco, thereby hitting him on the different parts of his body, which directly caused the victim’s
death.(emphases and italics supplied). 3
The cases were consolidated for arraignment and trial. On April 7, 2000, the accused pleaded not
guilty to the informations.4
Version of the Prosecution
The witnesses for the State were Froilan R. Perfinian, PO3 Pablo Aguda Jr., Dr. Luz M. Tiuseco,
Rosalia Delgado, Domingo Guinhawa, Abella Perez Noriega, SPO3 Felizardo Panaligan, Sr. Insp.
Marcos Barte and SPO3 Danilo Magtibay.
The eyewitness version of Perfinian follows. On March 20, 2000, at about 9:00 pm, he had just
left the house of one Lemuel located in Sitio Bulihan, Barangay Balete, Batangas City (Bulihan) to
walk to his own home located also in Bulihan when he heard someone pleading: Huwag po, huwag
po! He followed the direction of the voice, and saw the assault by all the accused against Sabino
D. Guinhawa (Sabino), Graciano A. Delgado (Graciano), and Victor B. Noriega (Victor). He
recognized each of the accused because he saw them from only six meters away and the moon
was very bright. Besides, he was a godfather of Hermogenes’ son, and the other accused usually
passed by his house.
Perfinian recalled that the accused surrounded their victims during the assault; that Arnold
stabbed Graciano on the stomach with a bolo, causing Graciano to fall to the ground; that Rico
hacked Graciano with a bolo; that when Victor tried to escape by running away, Hermogenes and
Felix pursued and caught up with him; that Felix hacked Victor; and that when Sabino ran away,
Melanio and Joven pursued him.
Perfinian rushed home as soon as all the accused had left. He narrated to his wife everything he
had just witnessed. On the following day, he learned that the police authorities found the dead
bodies of Sabino, Graciano and Victor. Afraid of being implicated and fearing for his own safety,
he left for his father’s house in Marinduque. He did not return to Bulihan until after he learned
from the TV newscast that all the accused had been arrested. Once returning home, he relayed
to the victims’ families everything he knew about the killings. Also, he gave a statement to the
Batangas City Police.5
PO3 Aguda was on duty as the desk officer of the Batangas City Police Station in the morning of
March 22, 2000 when he received the report about the dead bodies found in Bulihan. He and
other police officers went to Bulihan, and found the dead bodies of Sabino, Graciano, and Victor
sprawled on the road about 20 meters from each other. The bodies were all bloodied and full of
hack wounds. During his investigation, he came upon one Rene Imbig (Rene) who mentioned
seeing the six accused wielding bolos and running on the night of March 21, 2000. From the site
of the crime, he and his fellow officers went to the houses of Melanio and Rico, which were about
20 meters from where the bodies were found. The houses were abandoned, but he recovered a
blood-stained knife with a curved end in Melanio’s house. Returning to the station, he saw
Hermogenes there, who informed him that the other suspects had fled to Sitio Tangisan, Barangay
Mayamot, Antipolo, Rizal (Sitio Tangisan), where Melanio’s mother-in-law resided. Accompanied
by Rene and other police officers, he travelled to Sitio Tangisan that afternoon. Upon arriving in
Sitio Tangisan, Rene pointed to Melanio who was just stepping out of his mother-in-law’s house.
Melanio ran upon seeing their approach, but they caught up with him and subdued him. They
recovered a bolo from Melanio. They found and arrested the other suspects in the house of
Melanio’s mother-in-law, and brought all the arrested suspects back to Batangas City for
investigation. There, the suspects admitted disposing some of their clothes by throwing them into
the Pasig River, and said that their other clothes were in the house of Melanio. They mentioned
that the bolo used by Hermogenes was still in his house.
On the morning of March 23, 2000, PO3 Aguda and his fellow officers recovered two shorts, a
shirt, and a knife - all blood-stained from Melanio’s house in Bulihan. Going next to the house of
Hermogenes, Winifreda del Castillo, the latter’s wife, turned over the bolo of Hermogenes. They
learned that prior to the killings, Melanio had been fuming at being cheated in a cockfight, and
had uttered threats to kill at least three persons in Bulihan. 6
Sr. Insp. Barte, SPO3 Panaligan and SPO3 Magtibay corroborated PO3 Aguda’s recollections. 7
Dr. Luz M. Tiuseco (Dr. Tiuseco), a Medical Officer of Batangas City Health Office, conducted the
post-mortem examinations on the remains of Sabino, Graciano, and Victor on March 22, 2001.
She found that Sabino sustained 11 hack wounds and 12 stab wounds; that Graciano suffered
four stab wounds and a hack wound; and that Victor had three hack wounds. She certified that
the victims had died from hypovolemic shock secondary to multiple stab and hack wounds. 8
AMCVB CRIM 1 [Art. 8-11] (5)| 76
Domingo Guinhawa, the elder brother of Sabino, declared that his family spent ₱50,000.00 for
Sabino’s funeral and burial expenses.9 Rosalia Delgado, a sister of Graciano, attested that the
expenses incurred for Graciano’s burial amounted to ₱51,510.00. 10 Abella Perez Noriega, the wife
of Victor, claimed that her family spent ₱53,395.00 for Victor’s wake and interment. 11
Version of the Accused
The Defense offered the testimonies of the accused and Winifreda. The accused admitted being
in Bulihan at the time of the incident, but denied liability. Arnold and Joven invoked self-defense
and defense of strangers, while Melanio, Hermogenes, Rico and Felix interposed denial. Winifreda
corroborated the testimonies of Arnold and Joven.
The evidence of the accused was rehashed in the appellee’s brief submitted by the Public
Attorney’s Office, as follows:
Arnold Avengoza testified that on March 21, 2001, he had a drinking spree with Rico del Castillo
in their house. After about an hour, he was requested by Winifreda del Castillo, wife of
Hermogenes del Castillo, to accompany them to their house. Together with Joven del Castillo,
they brought Winifreda and her son to their house. Before they were able to reach Winifreda’s
house, three (3) men appeared. One of them held Winifreda and when he tried to help her, the
other persons attempted to draw something from their waists prompting him to hacked one of
them. He told the man to stop, but the latter refused. When the other man got mad, he hacked
him twice. Then, they brought Winnie and her son to the house of Melanio del Castillo. He did not
inform Melanio del Castillo about what transpired, but told him to take his family away, because
he saw dead persons near his place. He threw his bolo into the Pasig River.
Joven del Castillo, corroborated Rico’s testimony and admitted that he was the one who stabbed
the other man, who attempted to draw something from his waist while Arnold hacked the other
man. He was no longer aware how many times he stabbed the said man. Victor Noriega was one
of the three (3) men who blocked their way. They left Sitio Bulihan at about 11:00 o’clock in the
evening, together with Felix Avengoza, Arnold Avengoza, Rico del Castillo, Melanio del Castillo and
his family. They went to Antipolo, Rizal, where they were arrested by the police authorities.
Hermogenes del Castillo slept the whole night of March 21, 2000 and came to know that the three
(3) persons were killed during the night near the house of his brother Melanio only from his wife
Winifreda. Fearing retaliation from the relatives of the persons who were killed, because the bodies
were found near his brother’s house, he went to the house of Barangay Captain Aloria, who in
turn told him to go to the police station. He came to know that he was being implicated in the
killing when he was incarcerated.
Rico del Castillo testified that on the night of March 21, 2001 at about 7:00 o’clock in the evening,
he fetched Winifreda del Castillo to treat the sprain of his daughter. At about 9:00 o’clock in the
evening, since his daughter was still crying, he requested Joven and Arnold to accompany
Winifreda and her son in going home. Arnold and Joven returned at around 10:00’clock in the
evening. He was told that they saw dead people and was asked to leave the place together with
his family.
Felix Avengoza said that on the night of March 21, 2001, he was informed by Joven and Arnold
that they saw two (2) dead persons near their house. For fear of becoming a suspect, he was told
to leave his house together with his family.
Melanio del Castillo affirmed the testimony of Felix and added that he was at first hesitant to leave
his house because of his personal belongings and animals, but due to insistence of Arnold and
Joven, he also left with them for Manila.
Winifreda del Castillo confirmed that she was fetched by Rico del Castillo to treat his daughter.
When Rico was unable to bring her back home, Joven and Arnold accompanied her. While they
were on their way, three (3) persons suddenly blocked them. One of them held her hand and
tried to drag her away. When Arnold tried to pacify them, they got angry and attempted to pull
something from their waists so Arnold hacked him. 12
Decision of the RTC
On October 23, 2001, the RTC convicted the accused of murder, but appreciated voluntary
surrender as a mitigating circumstance in favor of Hermogenes, viz:
In the light of all the foregoing considerations, accused Arnold Avengoza, Felix Avengoza, alias
Alex, Rico del Castillo, Joven del Castillo, Hermogenes del Castillo, alias Menes and Melanio del
Castillo are all hereby found Guilty beyond reasonable doubt of the crime of Murder as defined
and punished under Article 248 of the Revised Penal Code as amended by Republic Act No. 7659
charged in these three cases namely: Criminal Case No. 10839, Criminal Case No. 10840 and
Criminal Case No. 10841.
Wherefore, accused Arnold Avengoza, Felix Avengoza, Rico del Castillo, Joven del Castillo and
Melanio del Castillo are sentenced in each of the above mentioned criminal cases to suffer the
imprisonment of reclusion perpetuatogether with all the accessory penalties inherent therewith
and to pay the costs. With respect to accused Hermogenes del Castillo, considering the presence
of mitigating circumstance of voluntary surrender in his favor and further applying the provisions
of the Indeterminate Sentence Law, in each of the aforesaid criminal cases, he is hereby sentenced
to imprisonment of Fourteen (14) Years, Eight (8) Months and One (1) Day as minimum to Twenty
(20) Years of reclusion temporal as maximum together with its inherent accessory penalties.
As to the civil aspects of these cases, in Criminal Case No. 10839, all the herein accused are
directed to jointly and severally indemnify the heirs of Sabino Guinhawa the amount of ₱58,510,00
as actual funeral expenses and the sum of ₱75,000.00 as moral damages. In Criminal Case No.
10840, all the herein accused are directed to indemnify jointly and severally the heirs of Graciano
Delgado with the sum of ₱51,510.00 as actual funeral expenses and ₱75,000.00 as moral damages.
And in Criminal Case No. 10841, all the above-named accused are further directed to indemnify
the heirs of Victor Noriega with the sum of ₱53,395.00 as actual funeral expenses and the amount
of ₱75,000.00 as moral damages.
Finally, let accused Hermogenes del Castillo be credited with his preventive imprisonment if he is
entitled to any.
SO ORDERED. 13
Decision of the CA
The accused appealed to the Court of Appeals (CA) upon the following assigned errors, to wit:
I.
THE COURT A QUO GRAVELY ERRED IN CONVICTING ALL THE ACCUSED-APPELLANTS
BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER DESPITE THE FACT THAT
TWO OF THE ACCUSED-APPELLANTS HAVE ALREADY ADMITTED KILLING THE THREE
VICTIMS IN DEFENSE OF WINIFREDA DEL CASTILLO.
II.
THE COURT A QUO GRAVELY ERRED IN NOT APPRECIATING THE JUSTIFYING
CIRCUMSTANCES OF SELF-DEFENSE AND DEFENSE OF STRANGERS IN FAVOR OF
ACCUSED-APPELLANTS ARNOLD AVENGOZA AND JOVEN DEL CASTILLO.
III.
THE COURT A QUO GRAVELY ERRED IN AWARDING ACTUAL AND MORAL DAMAGES
DESPITE THE LACK OF EVIDENCE TO SUPPORT THE SAME.
On April 28, 2005, the CA affirmed the convictions, correcting only the awards of damages and
the penalty imposed on Hermogenes, 14 to wit:
AMCVB CRIM 1 [Art. 8-11] (5)| 77
WHEREFORE, the decision of the trial court is AFFIRMED with MODIFICATIONS that appellant
Hermogenes Del Castillo is sentenced to suffer the penalty of reclusion perpetua and all the
accused are ordered to pay jointly and severally the sum of ₱50,000.00 as civil indemnity, the
sum of ₱50,000.00 as moral damages to the heirs of each victim; the sum of ₱15,000.00 and
₱8,000.00 as actual damages to the heirs of Sabino Guinhawa and Graciano Delgado, respectively,
and ₱10,000.00 as nominal damages to the heirs of Victor Noriega.
SO ORDERED.
Issues
Hence, the accused have come to us in a final appeal, submitting that because Arnold and Joven
had already admitted killing the victims, the rest of them should be exculpated; that Arnold and
Joven should be absolved of criminal liability because they acted in self-defense and defense of
strangers; and that conspiracy among them was not proven. 15
Ruling
The conviction of appellants is affirmed, but the damages awarded and their corresponding
amounts are modified in conformity with prevailing jurisprudence.
I.
Factual findings of the RTC
and CA are accorded respect
Both the RTC and the CA considered Perfinian’s eyewitness testimony credible.
We concur with both lower courts.
We reiterate that the trial judge’s evaluation of the credibility of a witness and of his testimony is
accorded the highest respect because of the trial judge’s unique opportunity to directly observe
the demeanor of the witness that enables him to determine whether the witness is telling the
truth or not.16 Such evaluation, when affirmed by the CA, is binding on the Court unless the
appellant reveals facts or circumstances of weight that were overlooked, misapprehended, or
misinterpreted that, if considered, would materially affect the disposition of the case. 17
The accused did not present any fact or circumstance of weight that the RTC or the CA overlooked,
misapprehended, or misinterpreted that, if considered, would alter the result herein. Accordingly,
we have no reason to disregard their having accorded total credence to Perfinian’s eyewitness
account of the killings. In contrast, we have the bare denials of Melanio, Hermogenes, Felix, and
Rico, but such denials were weak for being self-serving and unnatural. Their own actuations and
conduct following the attack even confirmed their guilt, for had Melanio, Felix, and Rico been
innocent, it was puzzling that they had to suddenly abandon their homes to go to Antipolo City in
Rizal. Their explanation for the hasty departure - that Arnold and Joven warned them to leave
because dead bodies had been found near Melanio’s house, and they might be implicated - was
unnatural and contrary to human nature. The normal reaction of innocent persons was not to run
away, or instead to report to the police whatever they knew about the dead bodies. In any case,
they did not need to be apprehensive about being implicated if they had no participation in the
crimes.
The lower courts correctly evaluated the evidence. To us, Perfinian’s identification of all the
accused as the perpetrators was positive and reliable for being based on his recognition of each
of them during the incident. His being familiar with each of them eliminated any possibility of
mistaken identification. He spotted them from a distance of only six meters away under a good
condition of visibility (i.e., the moon then being "very bright"). Consequently, their denials
and alibi were properly rejected.
Likewise, Perfinian detailed the distinct acts done by each of the accused during their assault.
Such recollection of the fatal events was categorical and strong, and there was no better indicator
of the reliability and accuracy of his recollection than its congruence with the physical evidence
adduced at the trial. For one, the results of the post-mortem examinations showing that the
victims had sustained multiple stab and hack wounds ( i.e., Sabino sustained 11 hack wounds and
12 stab wounds; Graciano suffered four stab wounds and a hack wound; and Victor had three
hack wounds) confirmed his testimonial declarations about the victims having been repeatedly
stabbed and hacked.18 Also, the blood-stained bolos and blood-stained clothing recovered from
the possession of the accused confirmed his declarations that the accused had used bolos in
inflicting deadly blows on their victims.
It is notable, on the other hand, that the Defense did not challenge the sincerity of Perfinian’s
eyewitness identification. The accused did not show if Perfinian had harbored any ill-feeling
towards any or all of them that he was moved to testify falsely against them. Any such ill-feeling
was even improbable in light of the revelation that he and Hermogenes had spiritual bonds
as compadres. Without such showing by the Defense, therefore, Perfinian was presumed not to
have been improperly actuated, entitling his incriminating testimony to full faith and credence.19
II.
Arnold and Joven did not act
in self-defense and in defense of strangers
In order for self-defense to be appreciated, the accused must prove by clear and convincing
evidence the following elements: ( a) unlawful aggression on the part of the victim; ( b) reasonable
necessity of the means employed to prevent or repel it; and ( c) lack of sufficient provocation on
the part of the person defending himself.20 On the other hand, the requisites of defense of
strangers are, namely: (a) unlawful aggression by the victim; ( b) reasonable necessity of the
means to prevent or repel it; and ( c) the person defending be not induced by revenge, resentment,
or other evil motive. 21
In self-defense and defense of strangers, unlawful aggression is a primordial element, a
condition sine qua non. If no unlawful aggression attributed to the victim is established, self-
defense and defense of strangers are unavailing, because there would be nothing to repel. 22 The
character of the element of unlawful aggression has been aptly described in People v. Nugas,23 as
follows:
Unlawful aggression on the part of the victim is the primordial element of the justifying
circumstance of self-defense. Without unlawful aggression, there can be no justified killing in
defense of oneself. The test for the presence of unlawful aggression under the circumstances is
whether the aggression from the victim put in real peril the life or personal safety of the person
defending himself; the peril must not be an imagined or imaginary threat. Accordingly, the accused
must establish the concurrence of three elements of unlawful aggression, namely: ( a) there must
be a physical or material attack or assault; ( b) the attack or assault must be actual, or, at least,
imminent; and (c) the attack or assault must be unlawful.
Unlawful aggression is of two kinds: ( a) actual or material unlawful aggression; and ( b) imminent
unlawful aggression. Actual or material unlawful aggression means an attack with physical force
or with a weapon, an offensive act that positively determines the intent of the aggressor to cause
the injury. Imminent unlawful aggression means an attack that is impending or at the point of
happening; it must not consist in a mere threatening attitude, nor must it be merely imaginary,
but must be offensive and positively strong (like aiming a revolver at another with intent to shoot
or opening a knife and making a motion as if to attack). Imminent unlawful aggression must not
be a mere threatening attitude of the victim, such as pressing his right hand to his hip where a
revolver was holstered, accompanied by an angry countenance, or like aiming to throw a pot.
By invoking self-defense and defense of strangers, Arnold and Joven in effect admitted their parts
in killing the victims. The rule consistently adhered to in this jurisdiction is that when the accused’s
defense is self-defense he thereby admits being the author of the death of the victim, that it
becomes incumbent upon him to prove the justifying circumstance to the satisfaction of the
AMCVB CRIM 1 [Art. 8-11] (5)| 78
court. 24 The rationale for the shifting of the burden of evidence is that the accused, by his
admission, is to be held criminally liable unless he satisfactorily establishes the fact of self-defense.
But the burden to prove guilt beyond reasonable doubt is not thereby lifted from the shoulders of
the State, which carries it until the end of the proceedings. In other words, only
the onus probandi shifts to the accused, for self-defense is an affirmative allegation that must be
established with certainty by sufficient and satisfactory proof. 25He must now discharge the burden
by relying on the strength of his own evidence, not on the weakness of that of the Prosecution,
considering that the Prosecution’s evidence, even if weak, cannot be disbelieved in view of his
admission of the killing.26
Arnold and Joven did not discharge their burden.
Arnold and Joven did not adequately prove unlawful aggression; hence, neither self-defense nor
defense of stranger was a viable defense for them. We note that in addition to the eyewitness
account of Perfinian directly incriminating them, their own actuations immediately after the
incident confirmed their guilt beyond reasonable doubt. As the CA cogently noted, 27 their flight
from the neighborhood where the crimes were committed, their concealing of the weapons used
in the commission of the crimes, their non-reporting of the crimes to the police, and their failure
to surrender themselves to the police authorities fully warranted the RTC’s rejection of their claim
of self-defense and defense of stranger.
Winifreda’s testimonial claim that the victims were the aggressors deserves no consideration. Her
story was that one of the victims had tried to attack her with a balisong.28 Yet, her story would
not stand scrutiny because of the fact that no such weapon had been recovered from the crime
scene; and because of the fact that none of the accused had substantiated her thereon. Neither
Arnold nor Joven attested in court seeing any of the victims holding any weapon. 29
Nonetheless, even if we were to believe Arnold and Joven’s version of the incident, the element
of unlawful aggression by the victims would still be lacking. The allegation that one of the victims
had held Winifreda’s hand did not indicate that the act had gravely endangered Winifreda’s life.
Similarly, the victims’ supposed motion to draw something from their waists did not put Arnold
and Joven’s lives in any actual or imminent danger. What the records inform us is that Arnold and
Joven did not actually see if the victims had any weapons to draw from their waists. That no
weapons belonging to the victims were recovered from the crime scene confirmed their being
unarmed. Lastly, had they been only defending themselves, Arnold and Joven did not tell the trial
court why they had repeatedly hacked their victims with their bolos; or why they did not
themselves even sustain any physical injury. Thus, the CA and the RTC rightly rejected their plea
of self-defense and defense of stranger, for the nature and the number of wounds sustained by
the victims were important indicia to disprove self-defense. 30
III.
The State duly established
conspiracy and abuse of superior strength
The CA upheld the RTC’s finding that conspiracy and abuse of superior strength were duly
established.
We affirm the CA.
The accused, armed with bolos, surrounded and attacked the victims, and pursued whoever of
the latter attempted to escape from their assault. Thereafter, the accused, except Hermogenes,
fled their homes and together hastily proceeded to Antipolo, Rizal. Their individual and collective
acts prior to, during and following the attack on the victims reflected a common objective of killing
the latter. Thereby, all the accused, without exception, were co-conspirators.
Conspiracy exists when two or more persons come to an agreement concerning the commission
of a felony and decide to commit it.31 Conspiracy is either express or implied. Thus, the State does
not always have to prove the actual agreement to commit the crime in order to establish
conspiracy, for it is enough to show that the accused acted in concert to achieve a common
purpose. Conspiracy may be deduced from the mode and manner of the commission of the offense,
or from the acts of the accused before, during and after the commission of the crime indubitably
pointing to a joint purpose, a concert of action and a community of interest. 32 Where the acts of
the accused collectively and individually demonstrate the existence of a common design towards
the accomplishment of the same unlawful purpose, conspiracy is evident, and all the perpetrators
will be liable as principals.33 Once a conspiracy is established, each co-conspirator is as criminally
liable as the others, for the act of one is the act of all. A co-conspirator does not have to participate
in every detail of the execution; neither does he have to know the exact part performed by the
co-conspirator in the execution of the criminal act. 34
In view of the foregoing, the Court rejects the pleas for exculpation of the other accused grounded
on their respective alibis considering that Arnold and Joven’s admission of sole responsibility for
the killings did not eliminate their liability as co-conspirators.
Abuse of superior strength is an aggravating circumstance that qualifies the killing of a person to
murder.35 It is present if the accused purposely uses excessive force out of proportion to the
means of defense available to the person attacked, or if there is notorious inequality of forces
between the victim and aggressor, and the latter takes advantage of superior strength. Superiority
in strength may refer to the number of aggressors and weapons used. 36
A gross disparity of forces existed between the accused and the victims. Not only did the six
accused outnumber the three victims but the former were armed with bolos while the latter were
unarmed. The accused clearly used their superiority in number and arms to ensure the killing of
the victims. Abuse of superior strength is attendant if the accused took advantage of their
superiority in number and their being armed with bolos.37 Accordingly, the crimes committed were
three counts of murder.
The CA concluded that the mitigating circumstance of voluntary surrender should not be
appreciated in favor of Hermogenes.
In order that voluntary surrender is appreciated as a mitigating circumstance, the following
requisites must concur: (a) the accused has not been actually arrested; ( b) the accused surrenders
himself to a person in authority or the latter’s agent; and ( c) surrender is voluntary.38 The third
requisite requires the surrender to be spontaneous, indicating the intent of the accused to
unconditionally submit himself to the authorities, either because he acknowledges his guilt or he
wishes to save them the trouble and expenses necessary for his search and capture. 39
Although Hermogenes went to Barangay Chairman Aloria of Bulihan after the killings, he did so
to seek protection against the retaliation of the victims’ relatives, not to admit his participation in
the killing of the victims.40 Even then, Hermogenes denied any involvement in the killings when
the police went to take him from Chairman Aloria’s house. 41 As such, Hermogenes did not
unconditionally submit himself to the authorities in order to acknowledge his participation in the
killings or in order to save the authorities the trouble and expense for his arrest.42
Nonetheless, any determination of whether or not Hermogenes was entitled to the mitigating
circumstance of voluntary surrender was vain in light of the penalty for murder being reclusion
perpetua to death under Article 248 of the Revised Penal Code, as amended by Republic Act No.
7659. Due to both such penalties being indivisible, the attendance of mitigating or aggravating
circumstances would not affect the penalties except to aid the trial court in pegging the penalty
to reclusion perpetua if the only modifying circumstance was mitigating, or the mitigating
circumstances outnumbered the aggravating circumstances; or to prescribe the death penalty
AMCVB CRIM 1 [Art. 8-11] (5)| 79
(prior to its prohibition under Republic Act No. 934643 ) should there be at least one aggravating
circumstance and there was no mitigating circumstance, or the aggravating circumstances
outnumbered the mitigating circumstances. This effect would conform to Article 63, (2), of
the Revised Penal Code , to wit:

Article 63. Rules for the application of indivisible penalties. — In all cases in which the law
prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating
or aggravating circumstances that may have attended the commission of the deed.

In all cases in which the law prescribes a penalty composed of two indivisible penalties,
the following rules shall be observed in the application thereof:
xxx
2. When there are neither mitigating nor aggravating circumstances in the
commission of the deed, the lesser penalty shall be applied.
xxx
IV.
Civil liability
The awards of civil indemnity and moral damages are also proper, but their corresponding
amounts should be increased to ₱75,000.00 in line with prevailing jurisprudence. 44 The actual
damages of ₱15,000.00 and ₱8,000.00 granted to the heirs of Sabino and Graciano, respectively,
were also warranted due to their being proven by receipts. 45 However, the Court has held that
when actual damages proven by receipts amount to less than ₱25,000.00, as in the case of Sabino
and Graciano, the award of temperate damages amounting to ₱25,000.00 is justified in lieu of
actual damages for a lesser amount.46 This is based on the sound reasoning that it would be
anomalous and unfair that the heirs of the victim who tried and succeeded in proving actual
damages of less than ₱25,000.00 only would be put in a worse situation than others who might
have presented no receipts at all but would be entitled to ₱25,000.00 temperate damages. 47 Hence,
instead of only ₱15,000.00 and ₱8,000.00, the amount of ₱25,000.00 as temperate damages
should be awarded each to the heirs of Sabino and Graciano. 1awphil

The heirs of Victor did not present receipts proving the expenses they incurred by virtue of Victor’s
death. Nonetheless, it was naturally expected that the heirs had spent for the wake and burial of
Victor. Article 2224 of the Civil Code provides that temperate damages may be recovered when
some pecuniary loss has been suffered but its amount cannot be proved with certainty. Hence, in
lieu of nominal damages of ₱10,000.00 awarded by the CA, temperate damages of ₱25,000.00
are awarded to the heirs of Victor.

Exemplary damages of ₱30,000.00 should be further awarded to the heirs of the victims because
of the attendant circumstance of abuse of superior strength. Under Article 2230 of the Civil
Code, exemplary damages may be granted when the crime was committed with one or more
aggravating circumstance. It was immaterial that such aggravating circumstance was necessary
to qualify the killing of each victim as murder. 48

WHEREFORE, the Court AFFIRMS the decision promulgated on April 28, 2005, with the
following MODIFICATIONS, to wit: (a) the civil indemnity and moral damages are each
increased to ₱75,000.00; (b) temperate damages of ₱25,000.00 is granted, respectively, to the
heirs of Sabino and Graciano in lieu of actual damages; (c) instead of nominal damages, temperate
damages of ₱25,000.00 is awarded to the heirs of Victor; and ( d) ₱30,000.00 as exemplary
damages is given, respectively, to the heirs of Sabino, Graciano and Victor.
The accused shall pay the costs of suit.
SO ORDERED.

AMCVB CRIM 1 [Art. 8-11] (5)| 80

ARTICLE 11 (4)
19. PP v. RETUBADO
G.R. No. 124058 December 10, 2003
DECISION
CALLEJO, SR., J.:
This is an appeal from the Decision 1 of the Regional Trial Court, Toledo City, Branch 29, in Criminal
Case No. TCS-2153 convicting the appellant Jesus G. Retubado of murder, sentencing him to
reclusion perpetua, and directing him to indemnify the heirs of the victim Emmanuel Cañon the
sum of P50,000.00.
The appellant was indicted for murder in an Information, the accusatory portion of which reads:
That on the 5th day of November, 1993 at 9:30 o’clock in the evening, more or less, at Barangay
I Poblacion, Municipality of Tuburan, Province of Cebu, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, with deliberate intent to kill, by means of
treachery, evident premeditation and taking advantage of superior strength, did then and there
willfully, unlawfully and feloniously attack, assault and shoot Emmanuel Cañon with the use of
unlicensed revolver of unknown caliber, thereby hitting the latter on his forehead, resulting to the
instantaneous death of the said victim.
CONTRARY TO LAW. 2
Shortly before November 5, 1993, someone played a joke on Edwin Retubado, the appellant’s
younger brother who was mentally ill. Someone inserted a lighted firecracker in a cigarette pack
and gave it to Edwin. He brought the cigarette home and placed it on the dining table as he was
having dinner with his father. Momentarily, the firecracker exploded. The suspect was Emmanuel
Cañon, Jr., The Cañons and the appellant were neighbors. The matter was brought to the attention
of the barangay captain who conducted an investigation. It turned out that Emmanuel Cañon, Jr.
was not the culprit. The barangay captain considered the matter closed. The appellant, however,
was bent on confronting Emmanuel Cañon, Jr.
On November 5, 1993, at about 9:00 p.m., 50-year-old Emmanuel Cañon, Sr., a pedicab driver
called it a day and decided to go home after a day’s work. He drove his pedicab and stopped at
the junction of Rizal and Gallardo Streets, at the poblacion of Tuburan. The appellant, who was
conversing with Marcial Luciño saw him. "Noy, why is [it] your son did something to my brother?"
Emmanuel ignored the appellant. The appellant was incensed and ran after Emmanuel. He
overtook Emmanuel, grabbed and pushed the pedicab which nearly fell into a canal. Emmanuel
again ignored the appellant and pedaled on until he reached his house. His wife, Norberta Cañon
was in the balcony of their house, above the porch waiting for him to arrive. Emmanuel, Jr.,
meanwhile, was already asleep. Undeterred, the appellant continued following Emmanuel.
Shortly after Emmanuel had entered his house, the appellant arrived and tarried at the porch.
Emmanuel suddenly opened the door and demanded to know why he was being followed. The
appellant told Emmanuel that he just wanted to talk to Emmanuel, Jr., but Emmanuel told the
appellant that his son was already asleep. Norberta went down from the balcony and placed her
hand on her husband’s shoulder to pacify him.
The appellant forthwith pulled out a handgun from under his T-shirt and shot Emmanuel on the
forehead. The latter fell to the floor as the appellant walked away from the scene. Norberta
shouted for help. The neighbors, her daughter, and her son-in-law arrived. They brought
Emmanuel to the Tuburan District Hospital, but the victim died shortly thereafter. Dr. Ivar G.
Arellano, the Municipal Health Officer, performed an autopsy on the cadaver of Emmanuel and
prepared a report thereon with the following findings:
Examination in Detail:
On detailed examination, a gunshot wound was found at the left side of the forehead, measuring
1 cm. in diameter. At the skin surrounding this wound was found powder burns which measured
3 cms. in diameter as the skin had been blackened and burned by powder of the bullet. The
underlying frontal bone was fractured and depressed. The underlying meninges of the brain as
well as the frontal area of the brain was traumatized and injured. Blood and cerebrospinal fluid
were leaking from this wound. The edges of this bullet wound was inverted thus this was the
gunshot entry wound. The wound was found to be circular in shape. The exit wound was found
at the left parietal bone measuring 1.2 cm. in size or diameter for this wound communicated with
the entry wound of the left side of the forehead. The connection from the wound of entry to the
exit wound measured 8 cms. The parietal bone was fractured and was depressed and the parietal
part of the brain and meninges was traumatized. Blood and cerebrospinal fluid as well as brain
tissues leaked out from this wound.
Possible cause of death:
1. Gunshot wound at the head (left side) with injury to brain and meninges
2. Hypovolemic shock secondary to loss of blood (Severe loss of blood)
(Sgd.) Ivar G. Arellano
MUN. Health Officer3
Dr. Charity Patalinghug and the victim’s daughter Loreta C. Claro signed Emmanuel’s Certificate
of Death. 4 The appellant surrendered to the police authorities but failed to surrender the firearm
he used to kill the victim. Forensic Officer Myrna P. Areola of the PNP Regional Office subjected
the appellant to paraffin tests. The Chemical Analysis of the paraffin casts gave the following
results:
FINDINGS:
...
1. POSITIVE for the presence of gunpowder residue on his left hand cast.
2. NEGATIVE for the presence of gunpowder residue on his right hand cast. 5
Norberta also testified on the expenses incurred by her family due to her husband’s death. No
documentary evidence was, however, offered to support the same. She declared that she felt sad
and lonely as a result of her husband's death.
The Case for the Appellant
The appellant admitted shooting the victim but claimed that he was merely performing a lawful
act with due care; hence, cannot be held criminally liable for the victim’s death. He testified that
when he insisted that Emmanuel wake up his son, Emmanuel went to his room and emerged
therefrom holding a handgun with his right hand. Emmanuel’s trigger finger was outside the
trigger guard, and he held the firearm with the muzzle facing downward. Fearing that he would
be shot, the appellant took hold of Emmanuel’s right hand with his left, and pulled the gun towards
Emmanuel’s stomach. The appellant grabbed Emmanuel’s free hand with his right hand, and the
old man almost fell on his knees to the ground. Emmanuel still resisted. The appellant pulled the
gun to the level of Emmanuel’s forehead, and the gun suddenly went off. The bullet hit
Emmanuel’s forehead. Norberta fled from the house. For his part, the appellant rushed to his
house to change clothes. He placed the gun on the dining table before entering his bedroom.
When he went back to the dining room to get the gun, his younger sister, Enrica told him that
their brother Edwin had taken the gun. He found Edwin outside their house near the church, and
the latter told the appellant that he threw the gun into the sea. When the appellant asked his
brother to show him where he threw the gun, Edwin refused to do so.
Marcial Luciño corroborated the appellant’s testimony. He testified that he was talking with the
appellant at around 9:00 p.m. at the junction of Rizal and Gallardo streets when the victim
Emmanuel passed by in his pedicab. When the appellant called the victim, the latter ignored the
call, prompting the appellant to chase the victim, and eventually push the pedicab into a canal.
AMCVB CRIM 1 [Art. 8-11] (5)| 81
The appellant’s father, Iñigo Retubado, testified that on the evening of November 5, 1993, he
was in their house with Edwin, his son who was mentally-ill. It was already late when the appellant
arrived. The appellant was disheveled, and laid down the gun he was carrying on the table. The
appellant told his father that he would surrender to the police because he had shot
somebody. 6 The appellant thereafter went to his room to change clothes while Iñigo went to the
comfort room to answer the call of nature. When he was done, he saw the appellant frantically
looking for the gun. As Edwin was also nowhere to be found, Iñigo concluded that Edwin might
have taken the gun with him. He also testified on Edwin’s mental imbalance and on the lat ter’s
confinement at the Psychiatric Department of the Don Vicente Sotto Memorial Medical Center in
Cebu City sometime in 1991. 7
On November 6, 1993, the appellant surrendered to the police authorities. Although he was
required by the municipal trial court to file his counter-affidavit, the appellant refused to do so.
After due proceedings, the trial court rendered judgment in Criminal Case No. TCS-2153,
convicting the appellant of murder, and sentencing him to reclusion perpetua. The decretal portion
of the decision reads:
WHEREFORE, in view of the foregoing, this Court finds accused GUILTY beyond reasonable doubt
of the crime of Murder under Art. 248 R.P.C. and sentences the accused to the penalty of Reclusion
Perpetua and to indemnify the heirs of the deceased the sum of P50,000.00.
However, accused is given full credit of his preventive imprisonment.
SO ORDERED. 8
On appeal, the appellant assails the decision of the trial court contending that:
I Tercera.
First Assignment of Error
THE LOWER COURT ERRED IN NOT FINDING THE DEATH OF THE DECEASED AS CAUSED BY
MERE ACCIDENT WITHOUT FAULT OR INTENTION OF CAUSING IT WHILE THE ACCUSED WAS
PERFORMING A LAWFUL ACT WITH DUE CARE OR, IN THE ALTERNATIVE, IT ERRED IN NOT
CONVICTING HIM JUST MERELY OF HOMICIDE INSTEAD OF MURDER.
II
Second Assignment of Error
THE LOWER COURT ERRED IN DISREGARDING THE VERY RELEVANT AND MATERIAL CONTENTS
OF EXHIBIT "B" OF THE PROSECUTION --- CHEMISTRY REPORT, PARAFFIN TEST -- WHICH ARE
FAVORABLE TO THE ACCUSED.
III
Third Assignment of Error
THE LOWER COURT ERRED IN CONCLUDING THAT THE TESTIMONY OF THE SOLE WITNESS OF
THE PROSECUTION IS SATISFACTORY AND SUFFICIENT TO CONVICT THE ACCUSED OF
MURDER.
IV
Fourth Assignment of Error
THE LOWER COURT ERRED IN FAILING TO CONSIDER THAT THE ACCUSED HAS EXPLAINED
WHY HE FAILED TO SURRENDER THE GUN WHICH HE GOT FROM THE DECEASED.9
The appellant asserts that he was merely performing a lawful act of defending himself when he
grabbed the victim’s hand which held the gun. The gun accidentally fired and the bullet hit the
victim’s forehead. The accident was not the appellant’s fault. The appellant asserts that when he
wrestled with the victim for the possession of the gun, he was merely defending himself. He
contends that he had no intention of killing the victim, as he merely wanted to talk to his son. If
he had wanted to kill the victim, he could have easily done so when he met the latter for the first
time that fateful night of November 5, 1993. Moreover, the appellant submits, he did not commit
any felony; hence, under paragraph 4 of Article 12 of the Revised Penal Code, he is not criminally
liable for the death of the victim.10 In the alternative, the appellant asserts that he should be
convicted only of the crime of homicide under Article 249 of the Revised Penal Code, since the
qualifying circumstance of treachery is wanting. He and the victim had a heated exchange of
words before they grappled for the possession of the gun. Such heated discussion had already
forewarned the victim and placed him on guard; thus, treachery cannot be legally considered.
The contention of the appellant has no merit. Article 11, paragraph 4 of the Revised Penal Code
reads:
ART. 11. Justifying circumstances. –
...
4) Any person who, in order to avoid an evil or injury, does an act which causes damage to
another provided that the following requisites are present:
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid it;
Third. That there be no other practical and less harmful means of preventing it.
The provision was taken from Article 8, paragraph 7 of the Spanish Penal Code, which reads:
ARTICULO 8.
7. El que para evitar un mal ejecuta un hecho que produzca dañ en la propiedad ajena,
siempre que concurran las circumstancias siguientes:
Primera. Realidad del mal que se trata de evitar.
Segunda. Quesea mayor que el causado para evitarlo.
Que no haya otro medio practicable y menos
perjudicial para impedirlo.
Article 11, paragraph 4 of the Revised Penal Code is not an accurate translation of the Spanish
Penal Code. The phrase "an injury" does not appear in the first paragraph in the Spanish Penal
Code. Neither does the word "injury" appear in the second subparagraph of the Spanish Penal
Code.
The justification is what is referred to in the Spanish Penal Code as el estado de necessidad:
Es una situacion de peligro, actual o immediato para bienes, juridicamente protegides que solo
puede ser evitada mediante, la lesion de bienes, tambien juridicamento protegidos, pertenecientes
a otra personas.11
The phrase "state of necessity" is of German origin. Countries which have embraced the classical
theory of criminal law, like Italy, do not use the phrase. The justification refers to a situation of
grave peril (un mal), actual or imminent (actual o imminente). The word propiedad covers diverse
juridical rights (bienes juridicos) such as right to life, honor, the integrity of one’s body, and
property (la vida, la integridad corporal, el pudor, el honor, bienes patrimoniales) belonging to
another.12
It is indispensable that the state of necessity must not be brought about by the intentional
provocation of the party invoking the same.13
A number of legal scholars in Europe are of the view that the act of the accused in a state of
necessity is justifying circumstance; hence, lawful. Under Article 12, paragraph 4 of the Revised
Penal Code, a "state of necessity" is a justifying circumstance. The accused does not commit a
crime in legal contemplation; hence, is not criminally and civilly liable. Civil liability is borne by the
person/persons benefited by the act of the accused. Crimes cannot exist unless the will concurs
with the act, and when, says Blackstone, "a man intending to do a lawful act, does that which is
unlawful, the deed and the will act separately" and there is no conjunction between them which
AMCVB CRIM 1 [Art. 8-11] (5)| 82
is necessary to constitute a crime.14 Others are of the view that such act is a cause for exclusion
from being meted a penalty; still others view such act as a case of excluding the accused from
culpability.
According to Groizard, rights may be prejudiced by three general classes of acts, namely, (a)
malicious and intentional acts; (b) negligent or reckless acts; (c) acts which are neither malicious,
imprudent nor negligent but nevertheless cause damages.
Nuestra propiedad puede ser perjudicada, puede sufrir detrimentos por tres clases de
hechos.1âwphi1 Por actos maliciosos, intencionales, encaminados directamente a causarnos
daño; por actos que, sin llevar ese malicioso fin y por falta de prudencia, por culpa o temeridad
del que los ejecuta, den ese mismo resultado, y por actos que, sin concurrir en su ejecucion un
proposito doloso, ni culpa, ni negligencia sin embargo produzcan menocabo en nuestros bienes.15
The defense of a state of necessity is a justifying circumstance under Article 12, paragraph 4 of
the Revised Penal Code. It is an affirmative defense that must be proved by the accused with
clear and convincing evidence. By admitting causing the injuries and killing the victim, the accused
must rely on the strength of his own evidence and not on the weakness of the evidence of the
prosecution because if such evidence is weak but the accused fails to prove his defense, the
evidence of the prosecution can no longer be disbelieved. Whether the accused acted under a
state of necessity is a question of fact, which is addressed to the sound discretion of the trial court.
The legal aphorism is that the findings of facts by the trial court, its calibration of the testimony
of the witnesses of the parties and of the probative weight thereof as well as its conclusions based
on its own findings are accorded by the appellate court high respect, if not conclusive effect,
unless the trial court ignored, misconstrued or misapplied cogent facts and circumstances of
substance which, if considered, will change the outcome of the case. We have meticulously
reviewed the records and find no basis to deviate from the findings of the trial court that the
appellant was the provocateur, the unlawful aggressor and the author of a deliberate and
malicious act of shooting the victim at close range on the forehead.
We agree with the contention of the Solicitor General that there is no treachery in the present
case to qualify the crime to murder. To appreciate treachery, two (2) conditions must be present,
namely, (a) the employment of the means of execution that give the person attacked no
opportunity to defend himself or to retaliate, and (b) the means of execution were deliberately or
consciously adopted.17 The prosecution failed to adduce an iota of evidence to support the
confluence of the abovementioned conditions. Thus, the appellant is guilty only of homicide under
Article 249 of the Revised Penal Code. Although the Information alleges that the appellant used
an unlicensed firearm to shoot the victim, the prosecution failed to prove that the appellant had
no license to possess the same. Hence, the aggravating circumstance of the use of an unlicensed
firearm to commit homicide should not be appreciated against the appellant.
The appellant is entitled to the mitigating circumstance of voluntary surrender. He turned himself
in to the police authorities prior to the issuance of any warrant for his arrest.
The trial court awarded ₱50,000.00 as civil indemnity 18 to the heirs of the deceased. In addition,
the heirs are entitled to moral damages in the amount of ₱50,000.00 19 and the temperate damages
in the amount of ₱25,000.00 since no sufficient proof of actual damages was offered. 20
WHEREFORE, the appealed judgment is AFFIRMED with MODIFICATION. The appellant Jesus G.
Retubado alias "Jessie" is found GUILTY beyond reasonable doubt of homicide defined in and
penalized by Article 249 of the Revised Penal Code and is hereby sentenced to suffer an
indeterminate sentence of ten (10) years of prision mayor, in its medium period, as minimum, to
fifteen (15) years of reclusion temporal, in its medium period, as maximum, and to pay the heirs
of the victim, Emmanuel Cañon, ₱50,000.00 as civil indemnity; ₱50,000.00 as moral damages;
and P25,000.00 as temperate damages.
SO ORDERED.

First: When Norberta heard her husband and the appellant arguing with each other in the porch
of their house, she went down from the balcony towards her husband and placed her hand on
the latter’s shoulders. She was shocked when the appellant pulled out his handgun and
deliberately shot the victim on the forehead, thus:

Xxxx

Second: After shooting the victim, the appellant fled from the situs criminis. He surrendered to
the police authorities only on November 6, 1993, but failed to surrender the gun he used to kill
the victim. The appellant’s claim that he placed the gun on the dining table before entering his
bedroom to change his clothes is incredible. There is no evidence that the appellant informed the
police authorities that he killed the victim in a state of necessity and that his brother, Edwin, threw
the gun into the sea. The appellant never presented the police officer to whom he confessed that
he killed the victim in a state of necessity.

Third: The appellant had the motive to shoot and kill the victim. 1avvphi1 The victim ignored the
appellant as the latter talked to him at the junction of Rizal and Gallardo streets, in the poblacion
of Tuburan. The appellant was incensed at the effrontery of the victim, a mere pedicab driver.
The appellant followed the victim to his house where the appellant again confronted him. The
appellant insisted on talking with the victim’s son but the victim refused to wake up the latter.
The appellant, exasperated at the victim’s intransigence, pulled out a gun from under his shirt
and shot the victim on the forehead. It was impossible for the victim to survive. With the
appellant’s admission that he shot the victim, the matter on whether he used his right or left hand
to shoot the latter is inconsequential.

AMCVB CRIM 1 [Art. 8-11] (5)| 83

ARTICLE 11 (5)
20. YAPYUCO v. SANDIGANBAYAN
G.R. Nos. 120744-46 June 25, 2012
DECISION
PERALTA, J.:
Law enforcers thrust their lives in unimaginable zones of peril. Yet resort to wanton violence is
never justified when their duty could be performed otherwise. A "shoot first, think later"
disposition occupies no decent place in a civilized society. Never has homicide or murder been a
function of law enforcement. The public peace is never predicated on the cost of human life.
These are petitions for review on certiorari under Rule 45 of the Rules of Court assailing the June
30, 1995 Decision1 of the Sandiganbayan in Criminal Case Nos. 16612, 16613 and 16614 – cases
for murder, frustrated murder and multiple counts of attempted murder, respectively. The cases
are predicated on a shooting incident on April 5, 1988 in Barangay Quebiawan, San Fernando,
Pampanga which caused the death of Leodevince Licup (Licup) and injured Noel Villanueva
(Villanueva). Accused were petitioners Salvador Yapyuco, Jr. (Yapyuco) and Generoso Cunanan,
Jr. (Cunanan) and Ernesto Puno (Puno) who were members of the Integrated National Police
(INP)2 stationed at the Sindalan Substation in San Fernando, Pampanga; Jose Pamintuan
(Pamintuan) and Mario Reyes, who were barangay captains of Quebiawan and Del Carmen,
respectively; Ernesto Puno, Andres Reyes and Virgilio Manguerra (Manguerra), Carlos David,
Ruben Lugtu, Moises Lacson (Lacson), Renato Yu, Jaime Pabalan (Pabalan) and Carlos David
(David), who were either members of the Civil Home Defense Force (CHDF) or civilian volunteer
officers in Barangays Quebiawan, Del Carmen and Telebastagan. They were all charged with
murder, multiple attempted murder and frustrated murder in three Informations, the inculpatory
portions of which read:
Criminal Case No. 16612:
That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando, Pampanga,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, all
public officers, being then policemen, Brgy. Captains, Brgy. Tanod and members of the Civil Home
Defense Force (CHDF), respectively, confederating and mutually helping one another, and while
responding to information about the presence of armed men in said barangay and conducting
surveillance thereof, thus committing the offense in relation to their office, did then and there,
with treachery and evident premeditation, willfully, unlawfully and feloniously, and with deliberate
intent to take the life of Leodevince S. Licup, attack the latter with automatic weapons by firing
directly at the green Toyota Tamaraw jitney ridden by Leodevince S. Licup and inflicting multiple
gunshot wounds which are necessarily mortal on the different parts of the body, thereby causing
the direct and immediate death of the latter.
CONTRARY TO LAW. 3
Criminal Case No. 16613:
That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando, Pampanga,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, all
public officers, being then policemen, Brgy. Captains, Brgy. Tanod and members of the Civil Home
Defense Force (CHDF), respectively, confederating and mutually helping one another, and while
responding to information about the presence of armed men in said barangay and conducting
surveillance thereof, thus committing the offense in relation to their office, did then and there,
with treachery and evident premeditation, willfully, unlawfully and feloniously, and with intent to
kill, attack Eduardo S. Flores, Alejandro R. de Vera, Restituto G. Calma and Raul V. Panlican with
automatic weapons by firing directly at the green Toyota Tamaraw jitney ridden by said Eduardo
S. Flores, Alejandro R. de Vera, Restituto G. Calma and Raul V. Panlican, having commenced the
commission of murder directly by overt acts of execution which should produce the murder by
reason of some cause or accident other than their own spontaneous desistance.
CONTRARY TO LAW. 4
Criminal Case No. 16614:
That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando, Pampanga,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, all
public officers, being then policemen, Brgy. Captains, Brgy. Tanod and members of the Civil Home
Defense Force (CHDF), respectively, confederating and mutually helping one another, and while
responding to information about the presence of armed men in said barangay and conducting
surveillance thereof, thus committing the offense in relation to their office, did then and there,
with treachery and evident premeditation, willfully, unlawfully and feloniously, and with intent of
taking the life of Noel C. Villanueva, attack the latter with automatic weapons by firing directly at
the green Toyota Tamaraw jitney driven by said Noel C. Villanueva and inflicting multiple gunshot
wounds which are necessarily mortal and having performed all the acts which would have
produced the crime of murder, but which did not, by reason of causes independent of the
defendants’ will, namely, the able and timely medical assistance given to said Noel C. Villanueva,
which prevented his death.
CONTRARY TO LAW. 5
Hailed to court on April 30, 1991 after having voluntarily surrendered to the authorities,6 the
accused – except Pabalan who died earlier on June 12, 1990, 7 and Yapyuco who was then allegedly
indisposed8 – entered individual pleas of not guilty. 9 A month later, Yapyuco voluntarily
surrendered to the authorities, and at his arraignment likewise entered a negative plea. 10 In the
meantime, Mario Reyes, Andres Reyes, David, Lugtu, Lacson, Yu and Manguerra jointly filed a
Motion for Bail relative to Criminal Case No. 16612. 11 Said motion was heard on the premise, as
previously agreed upon by both the prosecution and the defense, that these cases would be jointly
tried and that the evidence adduced at said hearing would automatically constitute evidence at
the trial on the merits.12 On May 10, 1991, the Sandiganbayan granted bail in Criminal Case No.
16612.13 Yapyuco likewise applied for bail on May 15, 1991 and the same was also granted on
May 21, 1991.14 Pamintuan died on November 21, 1992,15 and accordingly, the charges against
him were dismissed.
At the July 4, 1991 pre-trial conference, the remaining accused waived the pre-trial
inquest. 16 Hence, joint trial on the merits ensued and picked up from where the presentation of
evidence left off at the hearing on the bail applications.
The prosecution established that in the evening of April 5, 1988, Villanueva, Flores, Calma, De
Vera, Panlican and Licup were at the residence of Salangsang as guests at the barrio fiesta
celebrations between 5:00 and 7:30 p.m.. The company decided to leave at around 7:30 p.m.,
shortly after the religious procession had passed. As they were all inebriated, Salangsang
reminded Villanueva, who was on the wheel, to drive carefully and watch out for potholes and
open canals on the road. With Licup in the passenger seat and the rest of his companions at the
back of his Tamaraw jeepney, Villanueva allegedly proceeded at 5-10 kph with headlights dimmed.
Suddenly, as they were approaching a curve on the road, they met a burst of gunfire and instantly,
Villanueva and Licup were both wounded and bleeding profusely.17
Both Flores and Villanueva, contrary to what the defense would claim, allegedly did not see any
one on the road flag them down.18 In open court, Flores executed a sketch 19 depicting the relative
location of the Tamaraw jeepney on the road, the residence of Salangsang where they had come
from and the house situated on the right side of the road right after the curve where the jeepney
had taken a left turn; he identified said house to be that of a certain Lenlen Naron where the
gunmen allegedly took post and opened fire at him and his companions. He could not tell how
many firearms were used. He recounted that after the shooting, he, unaware that Licup and
AMCVB CRIM 1 [Art. 8-11] (5)| 84
Villanueva were wounded, jumped out of the jeepney when he saw from behind them Pamintuan
emerging from the yard of Naron’s house. Frantic and shaken, he instantaneously introduced
himself and his companions to be employees of San Miguel Corporation but instead, Pamintuan
reproved them for not stopping when flagged. At this point, he was distracted when Villanueva
cried out and told him to summon Salangsang for help as he (Villanueva) and Licup were wounded.
He dashed back to Salangsang’s house as instructed and, returning to the scene, he observed
that petitioner Yu was also there, and Villanueva and Licup were being loaded into a Sarao jeepney
to be taken to the hospital.20 This was corroborated by Villanueva who stated that as soon as the
firing had ceased, two armed men, together with Pamintuan, approached them and transferred
him and Licup to another jeepney and taken to the nearby St. Francis Hospital. 21
Flores remembered that there were two sudden bursts of gunfire which very rapidly succeeded
each other, and that they were given no warning shot at all contrary to what the defense would
say.22 He professed that he, together with his co-passengers, were also aboard the Sarao jeepney
on its way to the hospital and inside it he observed two men, each holding long firearms, seated
beside the driver. He continued that as soon as he and his companions had been dropped off at
the hospital, the driver of the Sarao jeepney immediately drove off together with his two armed
companions. 23 He further narrated that the day after the shooting, he brought Licup to the Makati
Medical Center where the latter expired on April 7, 1988. 24 He claimed that all the accused in the
case had not been known to him prior to the incident, except for Pamintuan whom he identified
to be his wife’s uncle and with whom he denied having had any rift nor with the other accused
for that matter, which would have otherwise inspired ill motives. 25 He claimed the bullet holes on
the Tamaraw jeepney were on the passenger side and that there were no other bullet holes at
the back or in any other portion of the vehicle. 26
Salangsang, also an electrician at the San Miguel Corporation plant, affirmed the presence of his
companions at his residence on the subject date and time, and corroborated Villanueva’s and
Flores’ narration of the events immediately preceding the shooting. He recounted that after seeing
off his guests shortly after the procession had passed his house and reminding them to proceed
carefully on the pothole-studded roads, he was alarmed when moments later, he heard a volley
of gunfire from a distance which was shortly followed by Flores’ frantic call for help. He
immediately proceeded to the scene on his bicycle and saw Pamintuan by the lamppost just
outside the gate of Naron’s house where, inside, he noticed a congregation of more or less six
people whom he could not recognize. 27At this point, he witnessed Licup and Villanueva being
loaded into another jeepney occupied by three men who appeared to be in uniform. He then
retrieved the keys of the Tamaraw jeepney from Villanueva and decided to deliver it to his
mother’s house, but before driving off, he allegedly caught a glance of Mario Reyes on the wheel
of an owner-type jeepney idling in front of the ill-fated Tamaraw; it was the same jeepney which
he remembered to be that frequently used by Yapyuco in patrolling the barangay. He claimed he
spent the night at his mother’s house and in the morning, a policeman came looking for him with
whom, however, he was not able to talk.28
Salangsang observed that the scene of the incident was dark because the electric post in front of
Naron’s house was strangely not lit when he arrived, and that none of the neighbori ng houses
was illuminated. He admitted his uncertainty as to whether it was Yapyuco’s group or the group
of Pamintuan that brought his injured companions to the hospital, but he could tell with certainty
that it was the Sarao jeepney previously identified by Villanueva and Flores that brought his injured
companions to the hospital.29
Daisy Dabor, forensic chemist at the Philippine National Police Crime Laboratory in Camp Olivas,
affirmed that she had previously examined the firearms suspected to have been used by
petitioners in the shooting and found them positive for gunpowder residue. She could not,
however, determine exactly when the firearms were discharged; neither could she tell how many
firearms were discharged that night nor the relative positions of the gunmen. She admitted having
declined to administer paraffin test on petitioners and on the other accused because the
opportunity therefor came only 72 hours after the incident. She affirmed having also examined
the Tamaraw jeepney and found eleven (11) bullet holes on it, most of which had punctured the
door at the passenger side of the vehicle at oblique and perpendicular directions. She explained,
rather inconclusively, that the bullets that hit at an angle might have been fired while the jeepney
was either at a standstill or moving forward in a straight line, or gradually making a turn at the
curve on the road.30 Additionally, Silvestre Lapitan, administrative and supply officer of the INP-
Pampanga Provincial Command tasked with the issuance of firearms and ammunitions to members
of the local police force and CHDF and CVO members, identified in court the memorandum receipts
for the firearms he had issued to Mario Reyes, Andres Reyes, Manguerra, Pabalan and Yapyuco. 31
Dr. Pedro Solis, Jr., medico-legal consultant at the Makati Medical Center, examined the injuries
of Villanueva and Licup on April 6, 1988. He recovered multiple metal shrapnel from the occipital
region of Villanueva’s head as well as from the posterior aspect of his chest; he noted nothing
serious in these wounds in that the incapacity would last between 10 and 30 days only. He also
located a bullet wound on the front lateral portion of the right thigh, and he theorized that this
wound would be caused by a firearm discharged in front of the victim, assuming the assailant and
the victim were both standing upright on the ground and the firearm was fired from the level of
the assailant’s waist; but if the victim was seated, the position of his thigh must be horizontal so
that with the shot coming from his front, the trajectory of the bullet would be upward. He
hypothesized that if the shot would come behind Villanueva, the bullet would enter the thigh of
the seated victim and exit at a lower level.32
With respect to Licup, Dr. Solis declared he was still alive when examined. On the patient, he
noted a lacerated wound at the right temporal region of the head – one consistent with being hit
by a hard and blunt object and not a bullet. He noted three (3) gunshot wounds the locations of
which suggested that Licup was upright when fired upon from the front: one is a through-and-
through wound in the middle lateral aspect of the middle portion of the right leg; another, through-
and-through wound at the middle portion of the right forearm; and third one, a wound in the
abdomen which critically and fatally involved the stomach and the intestines. He hypothesized
that if Licup was seated in the passenger seat as claimed, his right leg must have been exposed
and the assailant must have been in front of him holding the gun slightly higher than the level of
the bullet entry in the leg. He found that the wound in the abdomen had entered from the left
side and crossed over to and exited at the right, which suggested that the gunman must have
been positioned at Licup’s left side. He explained that if this wound had been inflicted ahead of
that in the forearm, then the former must have been fired after Licup had changed his position as
a reaction to the first bullet that hit him. He said that the wound on the leg must have been
caused by a bullet fired at the victim’s back and hit the jeepney at a downward angle without
hitting any hard surface prior.33
Dr. Solis believed that the wound on Licup’s right forearm must have been caused by a bullet fired
from the front but slightly obliquely to the right of the victim. Hypothesizing, he held the
improbability of Licup being hit on the abdomen, considering that he might have changed position
following the infliction of the other wounds, unless there was more than one assailant who fired
multiple shots from either side of the Tamaraw jeepney; however, he proceeded to rule out the
possibility of Licup having changed position especially if the gunfire was delivered very rapidly. He
could not tell which of Licup’s three wounds was first inflicted, yet it could be that the bullet to
the abdomen was delivered ahead of the others because it would have caused Licup to lean
forward and stoop down with his head lying low and steady. 34
Finally, Atty. Victor Bartolome, hearing officer at the National Police Commission (NAPOLCOM)
affirmed that the accused police officers Yapyuco, Cunanan and Puno had been administratively
charged with and tried for gross misconduct as a consequence of the subject shooting incident
and that he had in fact conducted investigations thereon sometime in 1989 and 1990 which
culminated in their dismissal from service. 35 Dolly Porqueriño, stenographer at the NAPOLCOM,
testified that at the hearing of the administrative case, Yapyuco authenticated the report on the
shooting incident dated April 5, 1988 which he had previously prepared at his office. This,
AMCVB CRIM 1 [Art. 8-11] (5)| 85
according to her, together with the sketch showing the relative position of the responding law
enforcers and the Tamaraw jeepney at the scene of the incident, had been forwarded to the
NAPOLCOM Central Office for consideration. 36 The Sandiganbayan, in fact, subpoenaed these
documents together with the joint counter-affidavits which had been submitted in that case by
Yapyuco, Cunanan and Puno.
Of all the accused, only Yapyuco took the stand for the defense. He identified himself as the
commander of the Sindalan Police Substation in San Fernando, Pampanga and the superior officer
of petitioners Cunanan and Puno and of the accused Yu whose jurisdiction incl uded Barangays
Quebiawan and Telebastagan. He narrated that in the afternoon of April 5, 1988, he and his men
were investigating a physical injuries case when Yu suddenly received a summon for police
assistance from David, who supposedly was instructed by Pamintuan, concerning a reported
presence of armed NPA members in Quebiawan. Yapyuco allegedly called on their main station in
San Fernando for reinforcement but at the time no additional men could be dispatched. Hence,
he decided to respond and instructed his men to put on their uniforms and bring their M-16 rifles
with them.37
Yapyuco continued that at the place appointed, he and his group met with Pamintuan who told
him that he had earlier spotted four (4) men carrying long firearms. As if sizing up their collective
strength, Pamintuan allegedly intimated that he and barangay captain Mario Reyes of nearby Del
Carmen had also brought in a number of armed men and that there were likewise Cafgu members
convened at the residence of Naron. Moments later, Pamintuan announced the approach of his
suspects, hence Yapyuco, Cunanan and Puno took post in the middle of the road at the curve
where the Tamaraw jeepney conveying the victims would make an inevitable turn. As the jeepney
came much closer, Pamintuan announced that it was the target vehicle, so he, with Cunanan and
Puno behind him, allegedly flagged it down and signaled for it to stop. He claimed that instead of
stopping, the jeepney accelerated and swerved to its left. This allegedly inspired him, and his
fellow police officers Cunanan and Puno, 38 to fire warning shots but the jeepney continued pacing
forward, hence they were impelled to fire at the tires thereof and instantaneously, gunshots
allegedly came bursting from the direction of Naron’s house directly at the subject jeepney. 39
Yapyuco recalled that one of the occupants of the jeepney then alighted and exclaimed at
Pamintuan that they were San Miguel Corporation employees. Holding their fire, Yapyuco and his
men then immediately searched the vehicle but found no firearms but instead, two injured
passengers whom they loaded into his jeepney and delivered to nearby St. Francis Hospital. From
there he and his men returned to the scene supposedly to investigate and look for the people who
fired directly at the jeepney. They found no one; the Tamaraw jeepney was likewise gone. 40
Yapyuco explained that the peace and order situation in Barangay Quebiawan at the time was in
bad shape, as in fact there were several law enforcement officers in the area who had been
ambushed supposedly by rebel elements, 41 and that he frequently patrolled the barangay on
account of reported sightings of unidentified armed men therein. 42 That night, he said, his group
which responded to the scene were twelve (12) in all, comprised of Cunanan and Puno from the
Sindalan Police Substation, 43 the team composed of Pamintuan and his men, as well as the team
headed by Captain Mario Reyes. He admitted that all of them, including himself, were armed. 44 He
denied that they had committed an ambuscade because otherwise, all the occupants of the
Tamaraw jeepney would have been killed. 45 He said that the shots which directly hit the passenger
door of the jeepney did not come from him or from his fellow police officers but rather from Cafgu
members assembled in the residence of Naron, inasmuch as said shots were fired only when the
jeepney had gone past the spot on the road where they were assembled.46
Furthermore, Yapyuco professed that he had not communicated with any one of the accused after
the incident because he was at the time very confused; yet he did know that his co-accused had
already been investigated by the main police station in San Fernando, but the inquiries did not
include himself, Cunanan and Puno. 47 He admitted an administrative case against him, Cunanan
and Puno at the close of which they had been ordered dismissed from service; yet on appeal, the
decision was reversed and they were exonerated. He likewise alluded to an investigation
independently conducted by their station commander, S/Supt. Rolando Cinco. 48
S/Supt Rolando Cinco, then Station Commander of the INP in San Fernando, Pampanga
acknowledged the volatility of the peace and order situation in his jurisdiction, where members of
the police force had fallen victims of ambuscade by lawless elements. He said that he himself has
actually conducted investigations on the Pamintuan report that rebel elements had been trying to
infiltrate the employment force of San Miguel Corporation plant, and that he has accordingly
conducted "clearing operations" in sugarcane plantations in the barangay. He intimated that days
prior to the incident, Yapyuco’s team had already been alerted of the presence of NPA members
in the area. Corroborating Yapyuco’s declaration, he confessed having investigated the shooting
incident and making a report on it in which, curiously, was supposedly attached Pamintuan’s
statement referring to Flores as being "married to a resident of Barangay Quebiawan" and found
after surveillance to be "frequently visited by NPA members." He affirmed having found that guns
were indeed fired that night and that the chief investigator was able to gather bullet shells from
the scene. 49
Cunanan and Puno did not take the witness stand but adopted the testimony of Yapyuco as well
as the latter’s documentary evidence.50 Mario Reyes, Andres Reyes, Lugtu, Lacson, Yu and
Manguera, waived their right to present evidence and submitted their memorandum as told.51
The Sandiganbayan reduced the basic issue to whether the accused had acted in the regular and
lawful performance of their duties in the maintenance of peace and order either as barangay
officials and as members of the police and the CHDF, and hence, could take shelter in the justifying
circumstance provided in Article 11 (5) of the Revised Penal Code; or whether they had
deliberately ambushed the victims with the intent of killing them.52 With the evidence in hand, it
found Yapyuco, Cunanan, Puno, Manguera and Mario and Andres Reyes guilty as co-principals in
the separate offense of homicide for the eventual death of Licup (instead of murder as charged
in Criminal Case No. 16612) and of attempted homicide for the injury sustained by Villanueva
(instead of frustrated murder as charged in Criminal Case No. 16614), and acquitted the rest in
those cases. It acquitted all of them of attempted murder charged in Criminal Case No. 16613 in
respect of Flores, Panlican, De Vera and Calma. The dispositive portion of the June 30, 1995 Joint
Decision reads:
WHEREFORE, judgment is hereby rendered as follows:
I. In Crim. Case No. 16612, accused Salvador Yapyuco y Enriquez, Generoso
Cunanan, Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y David, Andres
Reyes y Salangsang and Virgilio Manguerra y Adona are hereby found GUILTY
beyond reasonable doubt as co-principals in the offense of Homicide, as
defined and penalized under Article 249 of the Revised Penal Code, and
crediting all of them with the mitigating circumstance of voluntary surrender,
without any aggravating circumstance present or proven, each of said
accused is hereby sentenced to suffer an indeterminate penalty ranging from
SIX (6) YEARS and ONE (1) DAY of prision correccional, as the minimum, to
TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal, as the
maximum; to indemnify, jointly and severally, the heirs of the deceased victim
Leodevince Licup in the amounts of ₱77,000.00 as actual damages and
₱600,000.00 as moral/exemplary damages, and to pay their proportionate
shares of the costs of said action.
II. In Crim. Case No. 16613, for insufficiency of evidence, all the accused
charged in the information, namely, Salvador Yapyuco y Enriquez, Generoso Cunanan,
Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y David, Carlos David y Bañez, Ruben
Lugtu y Lacson, Moises Lacson y Adona, Renato Yu y Barrera, Andres Reyes y
AMCVB CRIM 1 [Art. 8-11] (5)| 86
 Salangsang and Virgilio Manguerra y Adona are hereby acquitted of the offense of
Multiple Attempted Murder charged therein, with costs de oficio.
III. In Crim. Case No. 16614, accused Salvador Yapyuco y Enriquez, Generoso Cunanan,
Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y David, Andres Reyes y Salangsang
and Virgilio Manguerra y Adona are hereby found GUILTY beyond reasonable doubt as
co-principals in the offense Attempted Homicide, as defined and penalized under Article
249, in relation to Article 6, paragraph 3, both of the Revised Penal Code, and crediting
them with the mitigating circumstance of voluntary surrender, without any aggravating
circumstance present or proven, each of said accused is hereby sentenced to suffer an
indeterminate penalty ranging from SIX (6) MONTHS and ONE (1) DAY of prision
correccional as the minimum, to SIX (6) YEARS and ONE (1) DAY of prision mayor as
the maximum; to indemnify, jointly and severally, the offended party Noel Villanueva in
the amount of ₱51,700.00 as actual and compensatory damages, plus ₱120,000.00 as
moral/exemplary damages, and to pay their proportionate share of the costs of said
action.
SO ORDERED. 53
The Sandiganbayan declared that the shootout which caused injuries to Villanueva and which
brought the eventual death of Licup has been committed by petitioners herein willfully under the
guise of maintaining peace and order;54that the acts performed by them preparatory to the
shooting, which ensured the execution of their evil plan without risk to themselves, dem onstrate
a clear intent to kill the occupants of the subject vehicle; that the fact they had by collective action
deliberately and consciously intended to inflict harm and injury and had voluntarily performed
those acts negates their defense of lawful performance of official duty; 55 that the theory of
mistaken belief could not likewise benefit petitioners because there was supposedly no showing
that they had sufficient basis or probable cause to rely fully on Pamintuan’s report that the victims
were armed NPA members, and they have not been able by evidence to preclude ulterior motives
or gross inexcusable negligence when they acted as they did; 56 that there was insufficient or total
absence of factual basis to assume that the occupants of the jeepney were members of the NPA
or criminals for that matter; and that the shooting incident could not have been the product of a
well-planned and well-coordinated police operation but was the result of either a hidden agenda
concocted by Barangay Captains Mario Reyes and Pamintuan, or a hasty and amateurish attempt
to gain commendation. 57
These findings obtain context principally from the open court statements of prosecution witnesses
Villanueva, Flores and Salangsang, particularly on the circumstances prior to the subject incident.
The Sandiganbayan pointed out that the Tamaraw jeepney would have indeed stopped if it had
truly been flagged down as claimed by Yapyuco especially since – as it turned out after the search
of the vehicle – they had no firearms with them, and hence, they had nothing to be scared of. 58 It
observed that while Salangsang and Flores had been bona fide residents of Barangay Quebiawan,
then it would be impossible for Pamintuan, barangay captain no less, not to have known them
and the location of their houses which were not far from the scene of the incident; so much so
that the presence of the victims and of the Tamaraw jeepney in Salangsang’s house that evening
could not have possibly escaped his notice. In this regard, it noted that Pamintuan’s Sworn
Statement dated April 11, 1988 did not sufficiently explain his suspicions as to the identities of
the victims as well as his apparent certainty on the identity and whereabouts of the subject
Tamaraw jeepney. 59 It surmised how the defense, especially Yapyuco in his testimony, could have
failed to explain why a large group of armed men – which allegedly included Cafgu members from
neighboring barangays – were assembled at the house of Naron that night, and how petitioners
were able to identify the Tamaraw jeepney to be the target vehicle. From this, it inferred that
petitioners had already known that their suspect vehicle would be coming from the direction of
Salangsang’s house – such knowledge is supposedly evident first, in the manner by which they
advantageously positioned themselves at the scene to afford a direct line of fire at the target
vehicle, and second, in the fact that the house of Naron, the neighboring houses and the electric
post referred to by prosecution witnesses were deliberately not lit that night. 60
The Sandiganbayan also drew information from Flores’ sketch depicting the position of the
Tamaraw jeepney and the assailants on the road, and concluded that judging by the bullet holes
on the right side of the jeepney and by the declarations of Dr. Solis respecting the trajectory of
the bullets that hit Villanueva and Licup, the assailants were inside the yard of Naron’s residence
and the shots were fired at the jeepney while it was slowly moving past them. It also gave weight
to the testimony and the report of Dabor telling that the service firearms of petitioners had been
tested and found to be positive of gunpowder residue, therefore indicating that they had indeed
been discharged. 61
The Sandiganbayan summed up what it found to be overwhelming circumstantial evidence
pointing to the culpability of petitioners: the nature and location of the bullet holes on the jeepney
and the gunshot wounds on the victims, as well as the trajectory of the bullets that caused such
damage and injuries; particularly, the number, location and trajectory of the bullets that hit the
front passenger side of the jeepney; the strategic placement of the accused on the right side of
the street and inside the front yard of Naron’s house; the deliberate shutting off of the lights in
the nearby houses and the lamp post; and the positive ballistic findings on the firearms of
petitioners. 62
This evidentiary resumé, according to the Sandiganbayan, not only fortified petitioners’ admission
that they did discharge their firearms, but also provided a predicate to its conclusion that
petitioners conspired with one another to achieve a common purpose, design and objective to
harm the unarmed and innocent victims. Thus, since there was no conclusive proof of who among
the several accused had actually fired the gunshots that injured Villanueva and fatally wounded
Licup, the Sandiganbayan imposed collective responsibility on all those who were shown to have
discharged their firearms that night – petitioners herein. 63 Interestingly, it was speculated that the
manner by which the accused collectively and individually acted prior or subsequent to or
contemporaneously with the shooting indicated that they were either drunk or that some, if not
all of them, had a grudge against the employees of San Miguel Corporation; 64 and that on the
basis of the self-serving evidence adduced by the defense, there could possibly have been a
massive cover-up of the incident by Philippine Constabulary and INP authorities in Pampanga as
well as by the NAPOLCOM. 65 It likewise found very consequential the fact that the other accused
had chosen not to take the witness stand; this, supposedly because it was incumbent upon them
to individually explain their participation in the shooting in view of the weight of the prosecution
evidence, their invocation of the justifying circumstance of lawful performance of official duty and
the declaration of some of them in their affidavits to the effect that they had been deployed that
evening in the front yard of Naron’s residence from which the volley of gunfire was discharged as
admitted by Yapyuco himself.66
As to the nature of the offenses committed, the Sandiganbayan found that the qualifying
circumstance of treachery has not been proved because first, it was supposedly not shown how
the aggression commenced and how the acts causing injury to Villanueva and fatally injuring Licup
began and developed, and second, this circumstance must be supported by proof of a deliberate
and conscious adoption of the mode of attack and cannot be drawn from mere suppositions or
from circumstances immediately preceding the aggression. The same finding holds true for evident
premeditation because between the time Yapyuco received the summons for assistance from
Pamintuan through David and the time he and his men responded at the scene, there was found
to be no sufficient time to allow for the materialization of all the elements of that circumstance. 67
Finally as to damages, Villanueva had testified that his injury required leave from work for 60 days
which were all charged against his accumulated leave credits; 68 that he was earning ₱8,350.00
monthly;69 and that he had spent ₱35,000.00 for the repair of his Tamaraw jeepney. 70 Also,
Teodoro Licup had stated that his family had spent ₱18,000.00 for the funeral of his son,
₱28,000.00 during the wake, ₱11,000.00 for the funeral plot and ₱20,000.00 in attorney’s fees
for the prosecution of these cases.71 He also submitted a certification from San Miguel Corporation
AMCVB CRIM 1 [Art. 8-11] (5)| 87
reflecting the income of his deceased son. 72 On these bases, the Sandiganbayan ordered
petitioners, jointly and severally, to indemnify (a) Villanueva ₱51,700.00 as actual and
compensatory damages and ₱120,000.00 as moral/exemplary damages, plus the proportionate
costs of the action, and (b) the heirs of deceased Licup in the amount of ₱77,000.00 as actual
damages and ₱600,000.00 as moral/exemplary damages, plus the proportionate costs of the
action.
Petitioners’ motion for reconsideration was denied; hence, the present recourse.
In G.R. Nos. 120744-46, Yapyuco disputes the Sandiganbayan’s finding of conspiracy and labels
the same to be conjectural. He points out that the court a quo has not clearly established that he
had by positive acts intended to participate in any criminal object in common with the other
accused, and that his participation in a supposed common criminal object has not been proved
beyond reasonable doubt. He believes the finding is belied by Flores and Villanueva, who saw him
at the scene only after the shooting incident when the wounded passengers were taken to the
hospital on his jeepney.73 He also points out the uncertainty in the Sandiganbayan’s declaration
that the incident could not have been the product of a well-planned police operation, but rather
was the result of either a hidden agenda concocted against the victims by the barangay officials
involved or an amateurish attempt on their part to earn commendation. He theorizes that, if it
were the latter alternative, then he could hardly be found guilty of homicide or frustrated homicide
but rather of reckless imprudence resulting in homicide and frustrated homicide. 74He laments
that, assuming arguendo that the injuries sustained by the victims were caused by his warning
shots, he must nevertheless be exonerated because he responded to the scene of the incident as
a bona fide member of the police force and, hence, his presence at the scene of the incident was
in line with the fulfillment of his duty as he was in fact in the lawful performance thereof – a fact
which has been affirmed by the NAPOLCOM en banc when it dismissed on appeal the complaint
for gross misconduct against him, Cunanan and Puno.75 He also invokes the concept of mistake of
fact and attributes to Pamintuan the responsibility why he, as well as the other accused in these
cases, had entertained the belief that the suspects were armed rebel elements. 76
In G.R. No. 122677, petitioners Manguerra, Mario Reyes and Andres Reyes claim that the
Sandiganbayan has not proved their guilt beyond reasonable doubt, and the assailed decision was
based on acts the evidence for which has been adduced at a separate trial but erroneously
attributed to them. They explain that there were two sets of accused, in the case: one, the police
officers comprised of Yapyuco, Cunanan and Puno and, two, the barangay officials and CHDFs
comprised of David, Lugtu, Lacson, Yu and themselves who had waived the presentation of
evidence. They question their conviction of the charges vis-a-vis the acquittal of David, Lugtu,
Lacson and Yu who, like them, were barangay officials and had waived their right to present
evidence in their behalf. They emphasize in this regard that all accused barangay officials and
CHDFs did not participate in the presentation of the evidence by the accused police officers and,
hence, the finding that they too had fired upon the Tamaraw jeepney is hardly based on an
established fact. 77 Also, they believe that the findings of fact by the Sandiganbayan were based
on inadmissible evidence, specifically on evidence rejected by the court itself and those presented
in a separate trial. They label the assailed decision to be speculative, conjectural and suspicious
and, hence, antithetical to the quantum of evidence required in a criminal prosecution. 78 Finally,
they lament that the finding of conspiracy has no basis in evidence and that the prosecution has
not even shown that they were with the other accused at the scene of the incident or that they
were among those who fired at the victims, and neither were they identified as among the
perpetrators of the crime.79
In G.R. No. 122776, Cunanan and Puno likewise dispute the finding of conspiracy. They claim that
judging by the uncertainty in the conclusion of the Sandiganbayan as to whether the incident was
the result of a legitimate police operation or a careless plot designed by the accused to obtain
commendation, conspiracy has not been proved beyond reasonable doubt. This, because they
believe the prosecution has not, as far as both of them are concerned, shown that they had ever
been part of such malicious design to commit an ambuscade as that alluded to in the assailed
decision. They advance that as police officers, they merely followed orders from their commander,
Yapyuco, but were not privy to the conversation among the latter, David and Pamintuan, moments
before the shooting. They posit they could hardly be assumed to have had community of criminal
design with the rest of the accused. 80 They affirm Yapyuco’s statement that they fired warning
shots at the subject jeepney, 81 but only after it had passed the place where they were posted and
only after it failed to stop when flagged down as it then became apparent that it was going to
speed away – as supposedly shown by bullet holes on the chassis and not on the rear portion of
the jeepney. They also harp on the absence of proof of ill motives that would have otherwise
urged them to commit the crimes charged, especially since none of the victims had been
personally or even remotely known to either of them. That they were not intending to commit a
crime is, they believe, shown by the fact that they did not directly aim their rifles at the passengers
of the jeepney and that in fact, they immediately held their fire when Flores identified themselves
as employees of San Miguel Corporation. They conceded that if killing was their intent, then they
could have easily fired at the victims directly. 82
Commenting on these petitions, the Office of the Special Prosecutor stands by the finding of
conspiracy as established by the fact that all accused, some of them armed, had assembled
themselves and awaited the suspect vehicle as though having previously known that it would be
coming from Salangsang’s residence. It posits that the manner by which the jeepney was fired
upon demonstrates a community of purpose and design to commit the crimes charged. 83 It
believes that criminal intent is discernible from the posts the accused had chosen to take on the
road that would give them a direct line of fire at the target – as shown by the trajectories of the
bullets that hit the Tamaraw jeepney. 84 This intent was supposedly realized when after the volley
of gunfire, both Flores and Licup were wounded and the latter died as a supervening
consequence.85 It refutes the invocation of lawful performance of duty, mainly because there was
no factual basis to support the belief of the accused that the occupants were members of the NPA,
as indeed they have not shown that they had previously verified the whereabouts of the suspect
vehicle. But while it recognizes that the accused had merely responded to the call of duty when
summoned by Pamintuan through David, it is convinced that they had exceeded the performance
thereof when they fired upon the Tamaraw jeepney occupied, as it turned out, by innocent
individuals instead.86
As to the contention of Mario Reyes, Andres Reyes and Manguerra that the evidence adduced
before the Sandiganbayan as well the findings based thereon should not be binding on them, the
OSP explains that said petitioners, together with Pamintuan, David, Lugtu, Lacson and Yu, had
previously withdrawn their motion for separate trial and as directed later on submitted the case
for decision as to them with the filing of their memorandum. It asserts there was no denial of due
process to said petitioners in view of their agreement for the reproduction of the evidence on the
motion for bail at the trial proper as well as by their manifestation to forego with the presentation
of their own evidence. The right to present witnesses is waivable. Also, where an accused is jointly
tried and testifies in court, the testimony binds the other accused, especially where the latter has
failed to register his objection thereto. 87
The decision on review apparently is laden with conclusions and inferences that seem to rest on
loose predicates. Yet we have pored over the records of the case and found that evidence
nonetheless exists to support the penultimate finding of guilt beyond reasonable doubt.
I.
It is as much undisputed as it is borne by the records that petitioners were at the situs of the
incident on the date and time alleged in the Informations. Yapyuco, in his testimony – which was
adopted by Cunanan and Puno – as well as Manguerra, Mario Reyes and Andres Reyes in their
affidavits which had been offered in evidence by the prosecution, 88 explained that their presence
at the scene was in response to the information relayed by Pamintuan through David that armed
rebel elements on board a vehicle described to be that occupied by the victims were reportedly
spotted in Barangay Quebiawan. It is on the basis of this suspicion that petitioners now appeal to
AMCVB CRIM 1 [Art. 8-11] (5)| 88
justification under Article 11 (5) of the Revised Penal Code and under the concept of mistake of
fact. Petitioners admit that it was not by accident or mistake but by deliberation that the shooting
transpired when it became apparent that the suspect vehicle was attempting to flee, yet
contention arises as to whether or not there was intention to harm or even kill the passengers
aboard, and who among them had discharged the bullets that caused the eventual death of Licup
and injured Villanueva.
The first duty of the prosecution is not to present the crime but to identify the criminal. 89 To this
end, the prosecution in these cases offered in evidence the joint counter-affidavit90 of Andres
Reyes and Manguerra; the counter-affidavit91 of Mario Reyes; the joint counter-affidavit92 of
Cunanan and Puno; the counter-affidavit93 of Yapyuco; and the joint counter-affidavit94 of Yapyuco,
Cunanan and Puno executed immediately after the incident in question. In brief, Cunanan and
Puno stated therein that "[their] team was forced to fire at the said vehicle" when it accelerated
after warning shots were fired in air and when it ignored Yapyuco’s signal for it to stop; 95 in their
earlier affidavit they, together with Yapyuco, declared that they were "constrained x x x to fire
directly to (sic) the said fleeing vehicle." 96Yapyuco’s open court declaration, which was adopted
by Cunanan and Puno, is that he twice discharged his firearm: first, to give warning to the subject
jeepney after it allegedly failed to stop when flagged down and second, at the tires thereof when
it came clear that it was trying to escape.97 He suggested – substantiating the implication in his
affidavit that it was "the whole team [which fired] at the fleeing vehicle" 98 – that the bullets which
hit the passenger side of the ill-fated jeepney could have come only from the CHDFs posted inside
the yard of Naron where Manguerra, Mario Reyes and Andres Reyes admitted having taken post
while awaiting the arrival of the suspect vehicle. 99
Mario Reyes and Andres Reyes, relying on their affidavits, declared that it was only Manguerra
from their group who discharged a firearm but only into the air to give warning shots,100 and that
it was the "policemen [who] directly fired upon" the jeepney. 101 Manguerra himself shared this
statement.102 Yet these accounts do not sit well with the physical evidence found in the bullet
holes on the passenger door of the jeepney which Dabor, in both her report and testimony,
described to have come from bullets sprayed from perpendicular and oblique directions. This
evidence in fact supports Yapyuco’s claim that he, Cunanan and Puno did fire directly at the
jeepney after it had made a right turn and had already moved past them such that the line of fire
to the passengers thereof would be at an oblique angle from behind. It also bolsters his claim
that, almost simultaneously, gunshots came bursting after the jeepney has passed the spot where
he, Cunanan and Puno had taken post, and when the vehicle was already right in front of the
yard of Naron’s house sitting on the right side of the road after the curve and where Manguerra,
Mario Reyes and Andres Reyes were positioned, such that the line of fire would be direct and
perpendicular to it.103
While Dabor’s ballistics findings are open to challenge for being inconclusive as to who among the
accused actually discharged their firearms that night, her report pertaining to the examination of
the ill-fated Tamaraw jeepney affirms the irreducible fact that the CHDFs posted within the yard
of Naron’s house had indeed sprayed bullets at the said vehicle. Manguerra, Mario Reyes and
Andres Reyes seek to insulate themselves by arguing that such finding cannot be applied to them
as it is evidence adduced in a separate trial. But as the OSP noted, they may not evade the effect
of their having withdrawn their motion for separate trial, their agreement to a joint trial of the
cases, and the binding effect on them of the testimony of their co-accused, Yapyuco. 104
Indeed, the extrajudicial confession or admission of one accused is admissible only against said
accused, but is inadmissible against the other accused. But if the declarant or admitter repeats in
court his extrajudicial admission, as Yapyuco did in this case, during the trial and the other accused
is accorded the opportunity to cross-examine the admitter, the admission is admissible against
both accused because then, it is transposed into a judicial admission.105 It is thus perplexing why,
despite the extrajudicial statements of Cunanan, Puno and Yapyuco, as well as the latter’s
testimony implicating them in the incident, they still had chosen to waive their right to present
evidence when, in fact, they could have shown detailed proof of their participation or non-
participation in the offenses charged. We, therefore, reject their claim that they had been denied
due process in this regard, as they opted not to testify and be cross-examined by the prosecution
as to the truthfulness in their affidavits and, accordingly, disprove the inculpatory admissions of
their co-accused.
II.
The availability of the justifying circumstance of fulfillment of duty or lawful exercise of a right or
office under Article 11 (5) of the Revised Penal Code rests on proof that (a) the accused acted in
the performance of his duty or in the lawful exercise of his right or office, and (b) the injury caused
or the offense committed is the necessary consequence of the due performance of such duty or
the lawful exercise of such right or office.106 The justification is based on the complete absence of
intent and negligence on the part of the accused, inasmuch as guilt of a felony connotes that it
was committed with criminal intent or with fault or negligence. 107 Where invoked, this ground for
non-liability amounts to an acknowledgment that the accused has caused the injury or has
committed the offense charged for which, however, he may not be penalized because the resulting
injury or offense is a necessary consequence of the due performance of his duty or the lawful
exercise of his right or office. Thus, it must be shown that the acts of the accused relative to the
crime charged were indeed lawfully or duly performed; the burden necessarily shifts on him to
prove such hypothesis.
We find that the requisites for justification under Article 11 (5) of the Revised Penal Code do not
obtain in this case.
The undisputed presence of all the accused at the situs of the incident is a legitimate law
enforcement operation. No objection is strong enough to defeat the claim that all of them – who
were either police and barangay officers or CHDF members tasked with the maintenance of peace
and order – were bound to, as they did, respond to information of a suspected rebel infiltration in
the locality. Theirs, therefore, is the specific duty to identify the occupants of their suspect vehicle
and search for firearms inside it to validate the information they had received; they may even
effect a bloodless arrest should they find cause to believe that their suspects had just committed,
were committing or were bound to commit a crime. While, it may certainly be argued that rebellion
is a continuing offense, it is interesting that nothing in the evidence suggests that the accused
were acting under an official order to open fire at or kill the suspects under any and all
circumstances. Even more telling is the absence of reference to the victims having launched such
aggression as would threaten the safety of any one of the accused, or having exhibited such
defiance of authority that would have instigated the accused, particularly those armed, to embark
on a violent attack with their firearms in self-defense. In fact, no material evidence was presented
at the trial to show that the accused were placed in real mortal danger in the presence of the
victims, except maybe their bare suspicion that the suspects were armed and were probably
prepared to conduct hostilities.
But whether or not the passengers of the subject jeepney were NPA members and whether or not
they were at the time armed, are immaterial in the present inquiry inasmuch as they do not stand
as accused in the prosecution at hand. Besides, even assuming that they were as the accused
believed them to be, the actuations of these responding law enforcers must inevitably be ranged
against reasonable expectations that arise in the legitimate course of performance of policing
duties. The rules of engagement, of which every law enforcer must be thoroughly knowledgeable
and for which he must always exercise the highest caution, do not require that he should
immediately draw or fire his weapon if the person to be accosted does not heed his call. Pursuit
without danger should be his next move, and not vengeance for personal feelings or a damaged
pride. Police work requires nothing more than the lawful apprehension of suspects, since the
completion of the process pertains to other government officers or agencies. 108
A law enforcer in the performance of duty is justified in using such force as is reasonably necessary
to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if
AMCVB CRIM 1 [Art. 8-11] (5)| 89
he escapes, and protect himself from bodily harm. 109 United States v. Campo110 has laid down the
rule that in the performance of his duty, an agent of the authorities is not authorized to use force,
except in an extreme case when he is attacked or is the subject of resistance, and finds no other
means to comply with his duty or cause himself to be respected and obeyed by the offender. In
case injury or death results from the exercise of such force, the same could be justified in inflicting
the injury or causing the death of the offender if the officer had used necessary force. 111 He is,
however, never justified in using unnecessary force or in treating the offender with wanton
violence, or in resorting to dangerous means when the arrest could be effected
otherwise. 112 People v. Ulep 113 teaches that –
The right to kill an offender is not absolute, and may be used only as a last resort, and under
circumstances indicating that the offender cannot otherwise be taken without bloodshed. The law
does not clothe police officers with authority to arbitrarily judge the necessity to kill. It may be
true that police officers sometimes find themselves in a dilemma when pressured by a situation
where an immediate and decisive, but legal, action is needed. However, it must be stressed that
the judgment and discretion of police officers in the performance of their duties must be exercised
neither capriciously nor oppressively, but within reasonable limits. In the absence of a clear and
legal provision to the contrary, they must act in conformity with the dictates of a sound discretion,
and within the spirit and purpose of the law. We cannot countenance trigger-happy law
enforcement officers who indiscriminately employ force and violence upon the persons they are
apprehending. They must always bear in mind that although they are dealing with criminal
elements against whom society must be protected, these criminals are also human beings with
human rights. 114
Thus, in People v. Tabag, 115 where members of the Davao CHDF had killed four members of a
family in their home because of suspicions that they were NPA members, and the accused sought
exoneration by invoking among others the justifying circumstance in Article 11 (5) of the Revised
Penal Code, the Court in dismissing the claim and holding them liable for murder said, thus:
In no way can Sarenas claim the privileges under paragraphs 5 and 6, Article 11 of the Revised
Penal Code, for the massacre of the Magdasals can by no means be considered as done in the
fulfillment of a duty or in the lawful exercise of an office or in obedience to an order issued by a
superior for some lawful purpose. Other than "suspicion," there is no evidence that Welbino
Magdasal, Sr., his wife Wendelyn, and their children were members of the NPA. And even if they
were members of the NPA, they were entitled to due process of law. On that fateful night, they
were peacefully resting in their humble home expecting for the dawn of another uncertain day.
Clearly, therefore, nothing justified the sudden and unprovoked attack, at nighttime, on the
Magdasals. The massacre was nothing but a merciless vigilante-style execution.116
Petitioners rationalize their election to aim their fire directly at the jeepney by claiming that it
failed to heed the first round of warning shots as well as the signal for it to stop and instead tried
to flee. While it is possible that the jeepney had been flagged down but because it was pacing the
dark road with its headlights dimmed missed petitioners’ signal to stop, and compound to it the
admitted fact that the passengers thereof were drunk from the party they had just been to, 117 still,
we find incomprehensible petitioners’ quick resolve to use their firearms when in fact ther e was
at least one other vehicle at the scene – the Sarao jeepney owned by Yapyuco – which they could
actually have used to pursue their suspects whom they supposedly perceived to be in flight.
Lawlessness is to be dealt with according to the law. Only absolute necessity justifies the use of
force, and it is incumbent on herein petitioners to prove such necessity. We find, however, that
petitioners failed in that respect. Although the employment of powerful firearms does not
necessarily connote unnecessary force, petitioners in this case do not seem to have been
confronted with the rational necessity to open fire at the moving jeepney occupied by the victims.
No explanation is offered why they, in that instant, were inclined for a violent attack at their
suspects except perhaps their over-anxiety or impatience or simply their careless disposition to
take no chances. Clearly, they exceeded the fulfillment of police duties the moment they actualized
such resolve, thereby inflicting Licup with a mortal bullet wound, causing injury to Villanueva and
exposing the rest of the passengers of the jeepney to grave danger to life and limb – all of which
could not have been the necessary consequence of the fulfillment of their duties.
III.
At this juncture, we find that the invocation of the concept of mistake of fact faces certain failure.
In the context of criminal law, a "mistake of fact" is a misapprehension of a fact which, if true,
would have justified the act or omission which is the subject of the prosecution. 118 Generally, a
reasonable mistake of fact is a defense to a charge of crime where it negates the intent component
of the crime.119 It may be a defense even if the offense charged requires proof of only general
intent.120 The inquiry is into the mistaken belief of the defendant, 121 and it does not look at all to
the belief or state of mind of any other person. 122 A proper invocation of this defense requires (a)
that the mistake be honest and reasonable; 123 (b) that it be a matter of fact;124 and (c) that it
negate the culpability required to commit the crime 125 or the existence of the mental state which
the statute prescribes with respect to an element of the offense. 126
The leading authority in mistake of fact as ground for non-liability is found in United States v. Ah
Chong,127 but in that setting, the principle was treated as a function of self-defense where the
physical circumstances of the case had mentally manifested to the accused an aggression which
it was his instinct to repel. There, the accused, fearful of bad elements, was woken by the sound
of his bedroom door being broken open and, receiving no response from the intruder after having
demanded identification, believed that a robber had broken in. He threatened to kill the intruder
but at that moment he was struck by a chair which he had placed against the door and, perceiving
that he was under attack, seized a knife and fatally stabbed the intruder who turned out to be his
roommate. Charged with homicide, he was acquitted because of his honest mistake of fact.
Finding that the accused had no evil intent to commit the charge, the Court explained:
x x x The maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all
cases of supposed offense, a sufficient excuse").
Since evil intent is in general an inseparable element in every crime, any such mistake of fact as
shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves
the actor from criminal liability, provided always there is no fault or negligence on his part and as
laid down by Baron Parke, "The guilt of the accused must depend on the circumstances as they
appear to him." x x x
If, in language not uncommon in the cases, one has reasonable cause to believe the existence of
facts which will justify a killing — or, in terms more nicely in accord with the principles on which
the rule is founded, if without fault or carelessness he does not believe them — he is legally
guiltless of homicide; though he mistook the facts, and so the life of an innocent person is
unfortunately extinguished. In other words, and with reference to the right of self-defense and
the not quite harmonious authorities, it is the doctrine of reason, and sufficiently sustained in
adjudication, that notwithstanding some decisions apparently adverse, whenever a man
undertakes self-defense, he is justified in acting on the facts as they appear to him. If, without
fault or carelessness, he is misled concerning them, and defends himself correctly according to
what he thus supposes the facts to be, the law will not punish him though they are in truth
otherwise, and he has really no occasion for the extreme measure. x x x 128
Besides, as held in People v. Oanis 129 and Baxinela v. People,130 the justification of an act, which
is otherwise criminal on the basis of a mistake of fact, must preclude negligence or bad faith on
the part of the accused.131 Thus, Ah Chong further explained that –
The question then squarely presents itself, whether in this jurisdiction one can be held criminally
responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt
from criminal liability if the facts were as he supposed them to be, but which would constitute the
AMCVB CRIM 1 [Art. 8-11] (5)| 90
crime of homicide or assassination if the actor had known the true state of the facts at the time
when he committed the act. To this question we think there can be but one answer, and we hold
that under such circumstances there is no criminal liability, provided always that the alleged
ignorance or mistake of fact was not due to negligence or bad faith. 132
IV.
This brings us to whether the guilt of petitioners for homicide and frustrated homicide has been
established beyond cavil of doubt. The precept in all criminal cases is that the prosecution is bound
by the invariable requisite of establishing the guilt of the accused beyond reasonable doubt. The
prosecution must rely on the strength of its own evidence and not on the evidence of the accused.
The weakness of the defense of the accused does not relieve the prosecution of its responsibility
of proving guilt beyond reasonable doubt. 133 By reasonable doubt is meant that doubt engendered
by an investigation of the whole proof and an inability, after such investigation, to let the mind
rest easy upon the certainty of guilt.134 The overriding consideration is not whether the court
doubts the innocence of the accused, but whether it entertains reasonable doubt as to his guilt. 135
The prosecution is burdened to prove corpus delicti beyond reasonable doubt either by direct
evidence or by circumstantial or presumptive evidence. 136 Corpus delicti consists of two things:
first, the criminal act and second, defendant's agency in the commission of the act. 137 In homicide
(by dolo) as well as in murder cases, the prosecution must prove: (a) the death of the party
alleged to be dead; (b) that the death was produced by the criminal act of some other than the
deceased and was not the result of accident, natural cause or suicide; and (c) that defendant
committed the criminal act or was in some way criminally responsible for the act which produced
the death. In other words, proof of homicide or murder requires incontrovertible evidence, direct
or circumstantial, that the victim was deliberately killed (with malice), that is, with intent to kill.
Such evidence may consist in the use of weapons by the malefactors, the nature, location and
number of wounds sustained by the victim and the words uttered by the malefactors before, at
the time or immediately after the killing of the victim. If the victim dies because of a deliberate
act of the malefactors, intent to kill is conclusively presumed. 138 In such case, even if there is no
intent to kill, the crime is homicide because with respect to crimes of personal violence, the penal
law looks particularly to the material results following the unlawful act and holds the aggressor
responsible for all the consequences thereof. 139 Evidence of intent to kill is crucial only to a finding
of frustrated and attempted homicide, as the same is an essential element of these offenses, and
thus must be proved with the same degree of certainty as that required of the other elements of
said offenses.140
The records disclose no ill motives attributed to petitioners by the prosecution. It is interesting
that, in negating the allegation that they had by their acts intended to kill the occupants of the
jeepney, petitioners turn to their co-accused Pamintuan, whose picture depicted in the defense
evidence is certainly an ugly one: petitioners’ affidavits as well as Yapyuco’s testimony are replete
with suggestions that it was Pamintuan alone who harbored the motive to ambush the suspects
as it was he who their (petitioners’) minds that which they later on conceded to be a mistaken
belief as to the identity of the suspects. Cinco, for one, stated in court that Pamintuan had once
reported to him that Flores, a relative of his (Pamintuan), was frequently meeting with NPA
members and that the San Miguel Corporation plant where the victims were employed was being
penetrated by NPA members. He also affirmed Yapyuco’s claim that there had been a number of
ambuscades launched against members of law enforcement in Quebiawan and in the neighboring
areas supposedly by NPA members at around the time of the incident. But as the Sandiganbayan
pointed out, it is unfortunate that Pamintuan had died during the pendency of these cases even
before his opportunity to testify in court emerged. 141
Yet whether such claims suffice to demonstrate ill motives evades relevance and materiality.
Motive is generally held to be immaterial inasmuch as it is not an element of a crime. It gains
significance when the commission of a crime is established by evidence purely circumstantial or
otherwise inconclusive.142 The question of motive is important in cases where there is doubt as to
whether the defendant is or is not the person who committed the act, but when there is no doubt
that the defendant was the one who caused the death of the deceased, it is not so important to
know the reason for the deed.143
In the instant case, petitioners, without abandoning their claim that they did not intend to kill
anyone of the victims, admit having willfully discharged their service firearms; and the manner by
which the bullets concentrated on the passenger side of the jeepney permits no other conclusion
than that the shots were intended for the persons lying along the line of fire. We do not doubt
that instances abound where the discharge of a firearm at another is not in itself sufficient to
sustain a finding of intention to kill, and that there are instances where the attendant
circumstances conclusively establish that the discharge was not in fact animated by intent to kill.
Yet the rule is that in ascertaining the intention with which a specific act is committed, it is always
proper and necessary to look not merely to the act itself but to all the attendant circumstances so
far as they develop in the evidence.144
The firearms used by petitioners were either M16 rifle, .30 caliber garand rifle and .30 caliber
carbine. 145 While the use of these weapons does not always amount to unnecessary force, they
are nevertheless inherently lethal in nature. At the level the bullets were fired and hit the jeepney,
it is not difficult to imagine the possibility of the passengers thereof being hit and even killed. It
must be stressed that the subject jeepney was fired upon while it was pacing the road and at that
moment, it is not as much too difficult to aim and target the tires thereof as it is to imagine the
peril to which its passengers would be exposed even assuming that the gunfire was aimed at the
tires – especially considering that petitioners do not appear to be mere rookie law enforcers or
unskilled neophytes in encounters with lawless elements in the streets.
Thus, judging by the location of the bullet holes on the subject jeepney and the firearms employed,
the likelihood of the passenger next to the driver – and in fact even the driver himself – of being
hit and injured or even killed is great to say the least, certain to be precise. This, we find to be
consistent with the uniform claim of petitioners that the impulse to fire directly at the jeepney
came when it occurred to them that it was proceeding to evade their authority. And in instances
like this, their natural and logical impulse was to debilitate the vehicle by firing upon the tires
thereof, or to debilitate the driver and hence put the vehicle to a halt. The evidence we found on
the jeepney suggests that petitioners’ actuations leaned towards the latter.
This demonstrates the clear intent of petitioners to bring forth death on Licup who was seated on
the passenger side and to Villanueva who was occupying the wheel, together with all the
consequences arising from their deed. The circumstances of the shooting breed no other inference
than that the firing was deliberate and not attributable to sheer accident or mere lack of skill.
Thus, Cupps v. State146 tells that:
This rule that every person is presumed to contemplate the ordinary and natural consequences of
his own acts, is applied even in capital cases. Because men generally act deliberately and by the
determination of their own will, and not from the impulse of blind passion, the law presumes that
every man always thus acts, until the contrary appears. Therefore, when one man is found to
have killed another, if the circumstances of the homicide do not of themselves show that it was
not intended, but was accidental, it is presumed that the death of the deceased was designed by
the slayer; and the burden of proof is on him to show that it was otherwise.
V.
Verily, the shooting incident subject of these petitions was actualized with the deliberate intent of
killing Licup and Villanueva, hence we dismiss Yapyuco’s alternative claim in G.R. No. 120744 that
he and his co-petitioners must be found guilty merely of reckless imprudence resulting in homicide
and frustrated homicide. Here is why:
First, the crimes committed in these cases are not merely criminal negligence, the killing being
intentional and not accidental. In criminal negligence, the injury caused to another should be
unintentional, it being the incident of another act performed without malice. 147 People v.
AMCVB CRIM 1 [Art. 8-11] (5)| 91
Guillen148 and People v. Nanquil 149
declare that a deliberate intent to do an unlawful act is
essentially inconsistent with the idea of reckless imprudence. And in People v. Castillo,150 we held
that that there can be no frustrated homicide through reckless negligence inasmuch as reckless
negligence implies lack of intent to kill, and without intent to kill the crime of frustrated homicide
cannot exist.
Second, that petitioners by their acts exhibited conspiracy, as correctly found by the
Sandiganbayan, likewise militates against their claim of reckless imprudence.
Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons
agree to commit a felony and decide to commit it. Conspiracy need not be proven by direct
evidence. It may be inferred from the conduct of the accused before, during and after the
commission of the crime, showing that they had acted with a common purpose and design.
Conspiracy may be implied if it is proved that two or more persons aimed by their acts towards
the accomplishment of the same unlawful object, each doing a part so that their combined acts,
though apparently independent of each other were, in fact, connected and cooperative, indicating
a closeness of personal association and a concurrence of sentiment. Conspiracy once found,
continues until the object of it has been accomplished and unless abandoned or broken up. To
hold an accused guilty as a co-principal by reason of conspiracy, he must be shown to have
performed an overt act in pursuance or furtherance of the complicity. There must be intentional
participation in the transaction with a view to the furtherance of the common design and
purpose.151
Conspiracy to exist does not require an agreement for an appreciable period prior to the
occurrence.1a\^/phi1 From the legal viewpoint, conspiracy exists if, at the time of the commission
of the offense, the accused had the same purpose and were united in its execution. 152 The instant
case requires no proof of any previous agreement among petitioners that they were really bent
on a violent attack upon their suspects. While it is far-fetched to conclude that conspiracy arose
from the moment petitioners, or all of the accused for that matter, had converged and strategically
posted themselves at the place appointed by Pamintuan, we nevertheless find that petitioners had
been ignited by the common impulse not to let their suspect jeepney flee and evade their authority
when it suddenly occurred to them that the vehicle was attempting to escape as it supposedly
accelerated despite the signal for it to stop and submit to them. As aforesaid, at that point,
petitioners were confronted with the convenient yet irrational option to take no chances by
preventing the jeepney’s supposed escape even if it meant killing the driver thereof. It appears
that such was their common purpose. And by their concerted action of almost simultaneously
opening fire at the jeepney from the posts they had deliberately taken around the immediate
environment of the suspects, conveniently affording an opportunity to target the driver, they did
achieve their object as shown by the concentration of bullet entries on the passenger side of the
jeepney at angular and perpendicular trajectories. Indeed, there is no definitive proof that tells
which of all the accused had discharged their weapons that night and which directly caused the
injuries sustained by Villanueva and fatally wounded Licup, yet we adopt the Sandiganbayan’s
conclusion that since only herein petitioners were shown to have been in possession of their
service firearms that night and had fired the same, they should be held collectively responsible
for the consequences of the subject law enforcement operation which had gone terribly wrong. 153
VI.
The Sandiganbayan correctly found that petitioners are guilty as co-principals in the crimes of
homicide and attempted homicide only, respectively for the death of Licup and for the non-fatal
injuries sustained by Villanueva, and that they deserve an acquittal together with the other
accused, of the charge of attempted murder with respect to the unharmed victims. 154 The
allegation of evident premeditation has not been proved beyond reasonable doubt because the
evidence is consistent with the fact that the urge to kill had materialized in the minds of petitioners
as instantaneously as they perceived their suspects to be attempting flight and evading arrest.
The same is true with treachery, inasmuch as there is no clear and indubitable proof that the
mode of attack was consciously and deliberately adopted by petitioners.
Homicide, under Article 249 of the Revised Penal Code, is punished by reclusion temporal whereas
an attempt thereof, under Article 250 in relation to Article 51, warrants a penalty lower by two
degrees than that prescribed for principals in a consummated homicide. Petitioners in these cases
are entitled to the ordinary mitigating circumstance of voluntary surrender, and there being no
aggravating circumstance proved and applying the Indeterminate Sentence Law, the
Sandiganbayan has properly fixed in Criminal Case No. 16612 the range of the penalty from six
(6) years and one (1) day, but should have denominated the same as prision mayor, not prision
correccional, to twelve (12) years and one (1) day of reclusion temporal.
However, upon the finding that petitioners in Criminal Case No. 16614 had committed attempted
homicide, a modification of the penalty is in order. The penalty of attempted homicide is two (2)
degrees lower to that of a consummated homicide, which is prision correccional. Taking into
account the mitigating circumstance of voluntary surrender, the maximum of the indeterminate
sentence to be meted out on petitioners is within the minimum period of prision
correccional, which is six (6) months and one (1) day to two (2) years and four (4) months
of prision correccional, whereas the minimum of the sentence, which under the Indeterminate
Sentence Law must be within the range of the penalty next lower to that prescribed for the offense,
which is one (1) month and one (1) day to six (6) months of arresto mayor.
We likewise modify the award of damages in these cases, in accordance with prevailing
jurisprudence, and order herein petitioners, jointly and severally, to indemnify the heirs of
Leodevince Licup in the amount of ₱77,000.00 as actual damages and ₱50,000.00 in moral
damages. With respect to Noel Villanueva, petitioners are likewise bound to pay, jointly and
severally, the amount of ₱51,700.00 as actual and compensatory damages and ₱20,000.00 as
moral damages. The award of exemplary damages should be deleted, there being no aggravating
circumstance that attended the commission of the crimes.
WHEREFORE, the instant petitions are DENIED. The joint decision of the Sandiganbayan in
Criminal Case Nos. 16612, 16613 and 16614, dated June 27, 1995, are hereby AFFIRMED with
the following MODIFICATIONS:
(a) In Criminal Case No. 16612, p
(b) etitioners are sentenced to suffer the indeterminate penalty of six (6) years and
one (1) day of prision mayor, as the minimum, to twelve (12) years and one (1)
day of reclusion temporal, as the maximum; in Criminal Case No. 16614, the
indeterminate sentence is hereby modified to Two (2) years and four (4) months
of prision correccional, as the maximum, and Six (6) months of arresto mayor, as
the minimum.
(b) Petitioners are DIRECTED to indemnify, jointly and severally, the heirs of
Leodevince Licup in the amount of ₱77,000.00 as actual damages, ₱50,000.00 in moral
damages, as well as Noel Villanueva, in the amount of ₱51,700.00 as actual and
compensatory damages, and ₱20,000.00 as moral damages.
SO ORDERED.
AMCVB CRIM 1 [Art. 8-11] (5)| 92
21. CABANLING v. SANDUGANBAYAN
G.R. No. 148431 July 28, 2005
DECISION
CARPIO, J.:
The Case
This petition for review1 seeks to reverse the Decision2 of the Fifth Division of the Sandiganbayan
dated 11 May 1999 and Resolution3 dated 2 May 2001 affirming the conviction of SPO2 Ruperto
Cabanlig ("Cabanlig") in Criminal Case No. 19436 for homicide. The Sandiganbayan sentenced
Cabanlig to suffer the indeterminate penalty of four months of arresto mayor as minimum to two
years and four months of prision correctional as maximum and to pay ₱50,000 to the heirs of
Jimmy Valino ("Valino"). Cabanlig shot Valino after Valino grabbed the M16 Armalite of another
policeman and tried to escape from the custody of the police. The Sandiganbayan acquitted
Cabanlig’s co-accused, SPO1 Carlos Padilla ("Padilla"), PO2 Meinhart Abesamis ("Abesamis"),
SPO2 Lucio Mercado ("Mercado") and SPO1 Rady Esteban ("Esteban").
The Charge
Cabanlig, Padilla, Abesamis, Mercado and Esteban were charged with murder in an
amended information that reads as follows:
That on or about September 28, 1992, in the Municipality of Penaranda, Province of Nueva Ecija,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, SPO[2]
Ruperto C. Cabanlig, SPO1 Carlos E. Padilla, PO2 Meinhart C. Abesamis, SPO2 Lucio L. Mercado
and SPO1 Rady S. Esteban, all public officers being members of the Philippine National Police,
conspiring and confederating and mutually helping one another, with intent to kill, with treachery
and evident premeditation, taking advantage of nighttime and uninhabited place to facilitate the
execution of the crime, with use of firearms and without justifiable cause, did then and there,
wilfully, unlawfully and feloniously attack, assault and shoot one Jimmy Valino, hitting him several
times at the vital parts of his body, thereby inflicting upon the latter, serious and mortal wounds
which were the direct and immediate cause of his death, which crime was committed by the
accused in relation to their office as members of the Philippine National Police of Penaranda,
Nueva Ecija, the deceased, who was then detained for robbery and under the custody of the
accused, having been killed while being taken to the place where he allegedly concealed the
effects of the crime, to the damage and prejudice of the heirs of said victim, in such amount as
may be awarded under the provisions of the New Civil Code.
CONTRARY TO LAW. 4
Arraignment and Plea
On 15 December 1993, the accused police officers Cabanlig, Padilla, Abesamis, Mercado and
Esteban pleaded not guilty.
Version of the Prosecution
On 24 September 1992 a robbery occurred in the Municipality of Penaranda, Nueva Ecija. Four
days later or on 28 September 1992, the investigating authorities apprehended three suspects:
Jordan Magat ("Magat"), Randy Reyes ("Reyes") and Valino. The police recovered most of the
stolen items. However, a flower vase and a small radio were still missing. Cabanlig asked the three
suspects where these two items were. Reyes replied that the items were at his house.
Cabanlig asked his colleagues, Padilla, Mercado, Abesamis and Esteban, to accompany him in
retrieving the flower vase and radio. Cabanlig then brought out Reyes and Magat from their cell,
intending to bring the two during the retrieval operation. It was at this point that Valino informed
Cabanlig that he had moved the vase and radio to another location without the knowledge of his
two cohorts. Cabanlig decided instead to bring along Valino, leaving behind Magat and Reyes.
Around 6:30 p.m., five fully armed policemen in uniform – Cabanlig, Padilla, Mercado, Abesamis
and Esteban – escorted Valino to Barangay Sinasahan, Nueva Ecija to recover the missing flower
vase and radio. The policemen and Valino were aboard a police vehicle, an Isuzu pick-up jeep.
The jeep was built like an ordinary jeepney. The rear end of the jeep had no enclosure. A metal
covering separated the driver’s compartment and main body of the jeep. There was no opening
or door between the two compartments of the jeep. Inside the main body of the jeep, were two
long benches, each of which was located at the left and right side of the jeep.
Cabanlig, Mercado and Esteban were seated with Valino inside the main body of the jeep. Esteban
was right behind Abesamis at the left bench. Valino, who was not handcuffed, was between
Cabanlig and Mercado at the right bench. Valino was seated at Cabanlig’s left and at Mercado’s
right. Mercado was seated nearest to the opening of the rear of the jeep.
Just after the jeep had crossed the Philippine National Railway bridge and while the jeep was
slowly negotiating a bumpy and potholed road, Valino suddenly grabbed Mercado’s M16 Armalite
and jumped out of the jeep. Valino was able to grab Mercado’s M16 Armalite when Mercado
scratched his head and tried to reach his back because some flying insects were pestering Mercado.
Mercado shouted " hoy!" when Valino suddenly took the M16 Armalite. Cabanlig, who was then
facing the rear of the vehicle, saw Valino’s act of taking away the M16 Armalite. Cabanlig acted
immediately. Without issuing any warning of any sort, and with still one foot on the running board,
Cabanlig fired one shot at Valino, and after two to three seconds, Cabanlig fired four more
successive shots. Valino did not fire any shot.
The shooting happened around 7:00 p.m., at dusk or " nag-aagaw ang dilim at liwanag ." Cabanlig
approached Valino’s body to check its pulse. Finding none, Cabanlig declared Valino dead. Valino
sustained three mortal wounds – one at the back of the head, one at the left side of the chest,
and one at the left lower back. Padilla and Esteban remained with the body. The other three
policemen, including Cabanlig, went to a funeral parlor.
The following morning, 29 September 1992, a certain SPO4 Segismundo Lacanilao ("Lacanilao")
of the Cabanatuan Police went to Barangay Sinasahan, Nueva Ecija to investigate a case. Lacanilao
met Mercado who gave him instructions on how to settle the case that he was handling. During
their conversation, Mercado related that he and his fellow policemen "salvaged" (summarily
executed) a person the night before. Lacanilao asked who was "salvaged." Mercado answered
that it was "Jimmy Valino." Mercado then asked Lacanilao why he was interested in the identity
of the person who was "salvaged." Lacanilao then answered that "Jimmy Valino" was his cousin.
Mercado immediately turned around and left.
Version of the Defense
Cabanlig admitted shooting Valino. However, Cabanlig justified the shooting as an act of self-
defense and performance of duty. Mercado denied that he told Lacanilao that he and his co-
accused "salvaged" Valino. Cabanlig, Mercado, Abesamis, Padilla, and Esteban denied that they
conspired to kill Valino.
The Sandiganbayan’s Ruling
The Sandiganbayan acquitted Padilla, Abesamis, Mercado and Esteban as the court found no
evidence that the policemen conspired to kill or summarily execute Valino. Since Cabanlig admitted
shooting Valino, the burden is on Cabanlig to establish the presence of any circumstance that
would relieve him of responsibility or mitigate the offense committed.
The Sandiganbayan held that Cabanlig could not invoke self-defense or defense of a stranger.
The only defense that Cabanlig could properly invoke in this case is fulfillment of duty. Cabanlig,
however, failed to show that the shooting of Valino was the necessary consequence of the due
performance of duty. The Sandiganbayan pointed out that while it was the duty of the policemen
to stop the escaping detainee, Cabanlig exceeded the proper bounds of performing this duty when
he shot Valino without warning.
AMCVB CRIM 1 [Art. 8-11] (5)| 93

The Sandiganbayan found no circumstance that would qualify the crime to murder. Thus, the
Sandiganbayan convicted Cabanlig only of homicide. The dispositive portion of the decision reads:
WHEREFORE, premises considered, accused CARLOS ESTOQUE PADILLA, MEINHART CRUZ
ABESAMIS, LUCIO LADIGNON MERCADO and RADY SALAZAR ESTEBAN are hereby ACQUITTED
of the crime charged. Accused RUPERTO CONCEPCION CABANLIG is found GUILTY beyond
reasonable doubt of the crime of Homicide and is hereby sentenced to suffer the indeterminate
sentence of FOUR (4) MONTHS of arresto mayor, as minimum, to TWO (2) YEARS and FOUR (4)
MONTHS of prision correccional, as maximum. He is further ordered to pay the heirs of Jimmy
Valino the amount of FIFTY THOUSAND (₱50,000.00) PESOS, and the costs.
SO ORDERED. 5
On motion for reconsideration, Associate Justice Anacleto D. Badoy Jr. ("Associate Justice Badoy")
dissented from the decision. Associate Justice Badoy pointed out that there was imminent danger
on the lives of the policemen when Valino grabbed the "infallible Armalite" 6 from Mercado and
jumped out from the rear of the jeep. At a distance of only three feet from Cabanlig, Valino could
have sprayed the policemen with bullets. The firing of a warning shot from Cabanlig was no longer
necessary. Associate Justice Badoy thus argued for Cabanlig’s acquittal.
In a vote of four to one, the Sandiganbayan affirmed the decision. 7 The dispositive portion of the
Resolution reads:
WHEREFORE, for lack of merit, the motion for reconsideration is hereby DENIED. 8
The Issues
Cabanlig raises the following issues in his Memorandum:
WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT THE DEFENSE OF FULFILLMENT OF
DUTY PUT UP BY CABANLIG WAS INCOMPLETE
WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT CABANLIG COULD NOT INVOKE SELF-
DEFENSE/DEFENSE OF STRANGER TO JUSTIFY HIS ACTIONS
WHETHER THE SANDIGANBAYAN ERRED IN SENTENCING CABANLIG TO SUFFER
IMPRISONMENT AND IN ORDERING HIM TO PAY THE AMOUNT OF ₱ 50,000 TO THE HEIRS OF
VALINO9
The Court’s Ruling
The petition has merit. We rule for Cabanlig’s acquittal.
Applicable Defense is Fulfillment of Duty
We first pass upon the issue of whether Cabanlig can invoke two or more justifying circumstances.
While there is nothing in the law that prevents an accused from invoking the justifying
circumstances or defenses in his favor, it is still up to the court to determine which justifying
circumstance is applicable to the circumstances of a particular case.
Self-defense and fulfillment of duty operate on different principles.10 Self-defense is based on the
principle of self-preservation from mortal harm, while fulfillment of duty is premised on the due
performance of duty. The difference between the two justifying circumstances is clear, as the
requisites of self-defense and fulfillment of duty are different.
The elements of self-defense are as follows:
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. 11
On the other hand, the requisites of fulfillment of duty are:
1. The accused acted in the performance of a duty or in the lawful exercise of a right or office;
2. The injury caused or the offense committed be the necessary consequence of the due
performance of duty or the lawful exercise of such right or office.12
A policeman in the performance of duty is justified in using such force as is reasonably necessary
to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if
he escapes, and protect himself from bodily harm. 13 In case injury or death results from the
policeman’s exercise of such force, the policeman could be justified in inflicting the injury or
causing the death of the offender if the policeman had used necessary force. Since a policeman’s
duty requires him to overcome the offender, the force exerted by the policeman may therefore
differ from that which ordinarily may be offered in self-defense.14 However, a policeman is never
justified in using unnecessary force or in treating the offender with wanton violence, or in resorting
to dangerous means when the arrest could be affected otherwise. 15
Unlike in self-defense where unlawful aggression is an element, in performance of duty, unlawful
aggression from the victim is not a requisite. In People v. Delima,16 a policeman was looking for
a fugitive who had several days earlier escaped from prison. When the policeman found the
fugitive, the fugitive was armed with a pointed piece of bamboo in the shape of a lance. The
policeman demanded the surrender of the fugitive. The fugitive lunged at the policeman with his
bamboo lance. The policeman dodged the lance and fired his revolver at the fugitive. The
policeman missed. The fugitive ran away still holding the bamboo lance. The policeman pursued
the fugitive and again fired his revolver, hitting and killing the fugitive. The Court acquitted the
policeman on the ground that the killing was done in the fulfillment of duty.
The fugitive’s unlawful aggression in People v. Delima had already ceased when the policeman
killed him. The fugitive was running away from the policeman when he was shot. If the policeman
were a private person, not in the performance of duty, there would be no self-defense because
there would be no unlawful aggression on the part of the deceased. 17 It may even appear that
the public officer acting in the fulfillment of duty is the aggressor, but his aggression is not unlawful,
it being necessary to fulfill his duty. 18
While self-defense and performance of duty are two distinct justifying circumstances, self-defense
or defense of a stranger may still be relevant even if the proper justifying circumstance in a given
case is fulfillment of duty. For example, a policeman’s use of what appears to be excessive force
could be justified if there was imminent danger to the policeman’s life or to that of a stranger. If
the policeman used force to protect his life or that of a stranger, then the defense of fulfillment
of duty would be complete, the second requisite being present.
In People v. Lagata,19 a jail guard shot to death a prisoner whom he thought was attempting to
escape. The Court convicted the jail guard of homicide because the facts showed that the prisoner
was not at all trying to escape. The Court declared that the jail guard could only fire at the prisoner
in self-defense or if absolutely necessary to avoid the prisoner’s escape .
In this case, Cabanlig, Padilla, Abesamis, Mercado and Esteban were in the performance of duty
as policemen when they escorted Valino, an arrested robber, to retrieve some stolen items. We
uphold the finding of the Sandiganbayan that there is no evidence that the policemen conspired
to kill or summarily execute Valino. In fact, it was not Valino who was supposed to go with the
policemen in the retrieval operations but his two other cohorts, Magat and Reyes. Had the
policemen staged the escape to justify the killing of Valino, the M16 Armalite taken by Valino
would not have been loaded with bullets. 20 Moreover, the alleged summary execution of Valino
must be based on evidence and not on hearsay.
Undoubtedly, the policemen were in the legitimate performance of their duty when Cabanlig shot
Valino. Thus, fulfillment of duty is the justifying circumstance that is applicable to this case. To
determine if this defense is complete, we have to examine if Cabanlig used necessary force to
prevent Valino from escaping and in protecting himself and his co-accused policemen from
imminent danger.
AMCVB CRIM 1 [Art. 8-11] (5)| 94

Fulfillment of Duty was Complete, Killing was Justified
The Sandiganbayan convicted Cabanlig because his defense of fulfillment of duty was found to be
incomplete. The Sandiganbayan believed that Cabanlig "exceeded the fulfillment of his duty when
he immediately shot Valino without issuing a warning so that the latter would stop." 21
We disagree with the Sandiganbayan.
Certainly, an M16 Armalite is a far more powerful and deadly weapon than the bamboo lance that
the fugitive had run away with in People v. Delima. The policeman in People v. Delima was
held to have been justified in shooting to death the escaping fugitive because the policeman was
merely performing his duty.
In this case, Valino was committing an offense in the presence of the policemen when Valino
grabbed the M16 Armalite from Mercado and jumped from the jeep to escape. The policemen
would have been justified in shooting Valino if the use of force was absolutely necessary to prevent
his escape. 22 But Valino was not only an escaping detainee. Valino had also stolen the M16
Armalite of a policeman. The policemen had the duty not only to recapture Valino but also to
recover the loose firearm. By grabbing Mercado’s M16 Armalite, which is a formidable firearm,
Valino had placed the lives of the policemen in grave danger.
Had Cabanlig failed to shoot Valino immediately, the policemen would have been sitting ducks. All
of the policemen were still inside the jeep when Valino suddenly grabbed the M16 Armalite.
Cabanlig, Mercado and Esteban were hemmed in inside the main body of the jeep, in the direct
line of fire had Valino used the M16 Armalite. There would have been no way for Cabanlig,
Mercado and Esteban to secure their safety, as there were no doors on the sides of the jeep. The
only way out of the jeep was from its rear from which Valino had jumped. Abesamis and Padilla
who were in the driver’s compartment were not aware that Valino had grabbed Mercado’s M16
Armalite. Abesamis and Padilla would have been unprepared for Valino’s attack.
By suddenly grabbing the M16 Armalite from his unsuspecting police guard, Valino certainly did
not intend merely to escape and run away as far and fast as possible from the policemen. Valino
did not have to grab the M16 Armalite if his sole intention was only to flee from the policemen. If
he had no intention to engage the policemen in a firefight, Valino could simply have jumped from
the jeep without grabbing the M16 Armalite. Valino’s chances of escaping unhurt would have been
far better had he not grabbed the M16 Armalite which only provoked the policemen to recapture
him and recover the M16 Armalite with greater vigor. Valino’s act of grabbing the M16 Armalite
clearly showed a hostile intention and even constituted unlawful aggression.
Facing imminent danger, the policemen had to act swiftly. Time was of the essence. It would have
been foolhardy for the policemen to assume that Valino grabbed the M16 Armalite merely as a
souvenir of a successful escape. As we have pointed out in Pomoy v. People23:
Again, it was in the lawful performance of his duty as a law enforcer that petitioner tried to defend
his possession of the weapon when the victim suddenly tried to remove it from his holster. As an
enforcer of the law, petitioner was duty-bound to prevent the snatching of his service weapon by
anyone, especially by a detained person in his custody. Such weapon was likely to be used to
facilitate escape and to kill or maim persons in the vicinity, including petitioner himself.
The Sandiganbayan, however, ruled that despite Valino’s possession of a deadly firearm, Cabanlig
had no right to shoot Valino without giving Valino the opportunity to surrender. The
Sandiganbayan pointed out that under the General Rules of Engagement, the use of force should
be applied only as a last resort when all other peaceful and non-violent means have been
exhausted. The Sandiganbayan held that only such necessary and reasonable force should be
applied as would be sufficient to conduct self-defense of a stranger, to subdue the clear and
imminent danger posed, or to overcome resistance put up by an offender.
The Sandiganbayan had very good reasons in steadfastly adhering to the policy that a law enforcer
must first issue a warning before he could use force against an offender. A law enforcer’s
overzealous performance of his duty could violate the rights of a citizen and worse cost the citizen’s
life. We have always maintained that the judgment and discretion of public officers, in the
performance of their duties, must be exercised neither capriciously nor oppressively, but within
the limits of the law.24 The issuance of a warning before a law enforcer could use force would
prevent unnecessary bloodshed. Thus, whenever possible, a law enforcer should employ force
only as a last resort and only after issuing a warning.
However, the duty to issue a warning is not absolutely mandated at all times and at all cost, to
the detriment of the life of law enforcers. The directive to issue a warning contemplates a situation
where several options are still available to the law enforcers. In exceptional circumstances such
as this case, where the threat to the life of a law enforcer is already imminent, and there is no
other option but to use force to subdue the offender, the law enforcer’s failure to issue a warning
is excusable.
In this case, the embattled policemen did not have the luxury of time. Neither did they have much
choice. Cabanlig’s shooting of Valino was an immediate and spontaneous reaction to imminent
danger. The weapon grabbed by Valino was not just any firearm. It was an M16 Armalite.
The M16 Armalite is an assault rifle adopted by the United Sates ("US") Army as a standard
weapon in 1967 during the Vietnam War. 25 The M16 Armalite is still a general-issue rifle with the
US Armed Forces and US law enforcement agencies.26 The M16 Armalite has both semiautomatic
and automatic capabilities.27 It is 39 inches long, has a 30-round magazine and fires high-
velocity .223-inch (5.56-mm) bullets.28 The M16 Armalite is most effective at a range of 200
meters29 but its maximum effective range could extend as far as 400 meters. 30 As a high velocity
firearm, the M16 Armalite could be fired at close range rapidly or with much volume of fire. 31 These
features make the M16 Armalite and its variants well suited for urban and jungle warfare. 32
The M16 Armalite whether on automatic or semiautomatic setting is a lethal weapon. This high-
powered firearm was in the hands of an escaping detainee, who had sprung a surprise on his
police escorts bottled inside the jeep. A warning from the policemen would have been pointless
and would have cost them their lives.
For what is the purpose of a warning? A warning is issued when policemen have to identify
themselves as such and to give opportunity to an offender to surrender. A warning in this case
was dispensable. Valino knew that he was in the custody of policemen. Valino was also very well
aware that even the mere act of escaping could injure or kill him. The policemen were fully armed
and they could use force to recapture him. By grabbing the M16 Armalite of his police escort,
Valino assumed the consequences of his brazen and determined act. Surrendering was clearly far
from Valino’s mind.
At any rate, Valino was amply warned. Mercado shouted " hoy" when Valino grabbed the M16
Armalite. Although Cabanlig admitted that he did not hear Mercado shout " hoy", Mercado’s shout
should have served as a warning to Valino. The verbal warning need not come from Cabanlig
himself.
The records also show that Cabanlig first fired one shot. After a few seconds, Cabanlig fired four
more shots. Cabanlig had to shoot Valino because Valino at one point was facing the police officers.
The exigency of the situation warranted a quick response from the policemen.
AMCVB CRIM 1 [Art. 8-11] (5)| 95
According to the Sandiganbayan, Valino was not turning around to shoot because two of the three
gunshot wounds were on Valino’s back. Indeed, two of the three gunshot wounds were on Valino’s
back: one at the back of the head and the other at the left lower back. The Sandiganbayan,
however, overlooked the location of the third gunshot wound. It was three inches below the left
clavicle or on the left top most part of the chest area based on the Medico Legal Sketch showing
the entrances and exits of the three gunshot wounds. 33
The Autopsy Report34 confirms the location of the gunshot wounds, as follows:
GUNSHOT WOUNDS – modified by embalming.
1. ENTRANCE – ovaloid, 1.6 x 1.5 cms; with area of tattooing around the entrance, 4.0 x
3.0 cms.; located at the right postauricular region, 5.5 cms. behind and 1.5 cms. above
the right external auditory meatus, directed forward downward fracturing the occipital
bone, lacerating the right occipital portion of the brain and fracturing the right cheek
bone and making an EXIT wound, 1.5 x 2.0 cms. located on right cheek, 4.0 cms. below
and 3.0 cms.. in front of right external auditory meatus.
2.
2. ENTRANCE – ovaloid, 0.7 x 0.5 cms., located at the left chest; 6.5 cms. from the anterior
median line, 136.5 cms. from the left heel directed backward, downward and to the right, involving
soft tissues, fracturing the 3rd rib, left, lacerating the left upper lobe and the right lower lobe and
finally making an EXIT wound at the back, right side, 1.4 x 0.8 cms., 19.0 cms. from the posterior
median line and 132.0 cms. from the right heel and grazing the medial aspect of the right arm.
3. ENTRANCE – ovaloid, 0.6 x 0.5 located at the back, left side, 9.0 cms. from the posterior median
line; 119.5 cms. from the left heel; directed forward, downward involving the soft tissues,
lacerating the liver; and bullet was recovered on the right anterior chest wall, 9.0 cms. form the
anterior median line, 112.0 cms. from the right heel.
The Necropsy Report 35 also reveals the following:
on. At the very least, the gunshot wound on Valino’s chest should have raised doubt in Cabanlig’s
favor.
Cabanlig is thus not guilty of homicide. At most, Cabanlig, Padilla, Abesamis, Mercado and Esteban
are guilty only of gross negligence. The policemen transported Valino, an arrested robber, to a
retrieval operation without handcuffing Valino. That no handcuffs were available in the police
precinct is a very flimsy excuse. The policemen should have tightly bound Valino’s hands with
rope or some other sturdy material. Valino’s cooperative demeanor should not have lulled the
policemen to complacency. As it turned out, Valino was merely keeping up the appearance of
good behavior as a prelude to a planned escape. We therefore recommend the filing of an
administrative case against Cabanlig, Padilla, Abesamis, Mercado and Esteban for gross negligence.
WHEREFORE, we REVERSE the decision of the Sandiganbayan in Criminal Case No. 19436
convicting accused RUPERTO CONCEPCION CABANLIG of the crime of homicide.
We ACQUIT RUPERTO CONCEPCIONCABANLIG of the crime of homicide and ORDER his
immediate release from prison, unless there are other lawful grounds to hold him.
We DIRECT the Director of Prisons to report to this Court compliance within five (5) days from
receipt of this Decision. No costs.
SO ORDERED.

1. Gunshot Wound, entrance, 0.5 cm X 1.5 cms in size, located at the left side of the back of the
head. The left parietal bone is fractured. The left temporal bone is also fractured. A wound of exit
measuring 2 cms X 3 cms in size is located at the left temporal aspect of the head.
2. Gunshot [W]ound, entrance, 0.5 cm in diameter, located at the left side of the chest about
three inches below the left clavicle. The wound is directed medially and made an exit wound at
the right axilla measuring 2 X 2 cms in size.
3. Gunshot Wound, entrance, 0.5 cm in diameter located at the left lower back above the l eft
lumbar. The left lung is collapsed and the liver is lacerated. Particles of lead [were] recovered in
the liver tissues. No wound of exit.

Cause of Death:
Cerebral Hemorrhage Secondary To Gunshot Wound In The Head
The doctors who testified on the Autopsy36 and Necropsy37 Reports admitted that they could not
determine which of the three gunshot wounds was first inflicted. However, we cannot disregard
the significance of the gunshot wound on Valino’s chest. Valino could not have been hit on the
chest if he were not at one point facing the policemen.

If the first shot were on the back of Valino’s head, Valino would have immediately fallen to the
ground as the bullet from Cabanlig’s M16 Armalite almost shattered Valino’s skull. It would have
been impossible for Valino to still turn and face the policemen in such a way that Cabanlig could
still shoot Valino on the chest if the first shot was on the back of Valino’s head.

The most probable and logical scenario: Valino was somewhat facing the policemen when he was
shot, hence, the entry wound on Valino’s chest. On being hit, Valino could have turned to his left
almost falling, when two more bullets felled Valino. The two bullets then hit Valino on his lower
left back and on the left side of the back of his head, in what sequence, we could not speculate

AMCVB CRIM 1 [Art. 8-11] (5)| 96

ARTICLE 11 (6)
22. TABUENA v. SANDIGANBAYAN
G.R. Nos. 103501-03 February 17, 1997
FRANCISCO, J.:
Through their separate petitions for review,1 Luis A. Tabuena and Adolfo M. Peralta (Tabuena
and Peralta, for short) appeal the Sandiganbayan decision dated October 12, 1990,2 as well as
the Resolution dated December 20. 19913 denying reconsideration, convicting them of
malversation under Article 217 of the Revised Penal Code. Tabuena and Peralta were found guilty
beyond reasonable doubt Of having malversed the total amount of P55 Million of the Manila
International Airport Authority (MIAA) funds during their incumbency as General Manager and
Acting Finance Services Manager, respectively, of MIAA, and were thus meted the following
sentence:
(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the penalty
of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum to
twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION
PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International
Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from public office,
(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the penalty
of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum, and
twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION
PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International
Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from public office.
(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are each
sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of
reclusion temporal as minimum and twenty (20) years of reclusion temporal as maximum and for
each of them to pay separately a fine of FIVE MILLION PESOS (P5,000,000.00) the amount
malversed. They shall also reimburse jointly and severally the Manila International Airport
Authority the sum of FIVE MILLION PESOS (P5,000,000.00).
In addition, they shall both suffer the penalty of perpetual special disqualification from public
office.
A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General Manager of
MIAA, has remained at large.
There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount
of P55 Million was taken on three (3) separate dates of January, 1986. Tabuena appears as the
principal accused — he being charged in all three (3) cases. The amended informations in criminal
case nos. 11758, 11759 and 11760 respectively read:
That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the
City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A.
Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and
Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and
accountable for public funds belonging to the MIAA, they being the only ones authorized to make
withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring,
confederating and confabulating with each other, did then and there wilfully, unlawfully,
feloniously, and with intent to defraud the government, take and misappropriate the amount of
TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance
of a manager's check for said amount in the name of accused Luis A. Tabuena chargeable against
MIAA's Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International
Airport in Pasay City, purportedly as partial payment to the Philippine National Construction
Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of,
when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC,
and after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena
encashed the same and thereafter both accused misappropriated and converted the proceeds
thereof to their personal use and benefit, to the damage and prejudice of the government in the
aforesaid amount.
CONTRARY TO LAW.
xxx xxx xxx
That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the
City of Pasay. Philippines and within the jurisdiction of this Honorable Court, accused Luis A.
Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and
Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and
accountable for public funds belonging to the MIAA, they being the only ones authorized to make
withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring,
confederating and confabulating with each other, did then and there wilfully, unlawfully,
feloniously, and with intent to defraud the government, take and misappropriate the amount of
TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance
of a manager.s check for said amount in the name of accused Luis A. Tabuena chargeable against
MIAA's Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International
Airport in Pasay City, purportedly as partial payment to the Philippine National Construction
Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of,
when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC,
and after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena
encashed the same and thereafter both accused misappropriated and converted the proceeds
thereof to their personal use and benefit, to the damage and prejudice of the government in the
aforesaid amount.
CONTRARY TO LAW.
xxx xxx xxx
That on or about the 29th day of January, 1986, and for sometime subsequent thereto, in the
City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A.
Tabuena and Adolfo M. Peralta, both public officers, being then the General Manager and Acting
Manager, Financial Services Department, respectively, of the Manila International Airport Authority
(MIAA), and accountable for public funds belonging to the MIAA, they being the only ones
authorized to make withdrawals against the cash accounts of MIAA pursuant to its board
resolutions, conspiring, confederating and confabulating with each other, did then and there
wilfully, unlawfully, feloniously, and with intent to defraud the government, take and
misappropriate the amount of FIVE MILLION PESOS (P5,000,000.00) from MIAA funds by applying
for the issuance of a manager's check for said amount in the name of accused Luis A. Tabuena
chargeable against MIAA's Savings Account No. 274-500- 354-3 in the PNB Extension Office at
the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine
National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would
AMCVB CRIM 1 [Art. 8-11] (5)| 97
personally take care of, when both accused well knew that there was no outstanding obligation Package Contract No. 2 P11,106,600.95
of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager's check,
accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and 2. Supplemental Contract No. 13
converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of 5,758,961.52
the government in the aforesaid amount.
3. Supplemental Contract No. 14
CONTRARY TO LAW. Package Contract No. 2 4,586,610.80

Gathered from the documentary and testimonial evidence are the following essential antecedents: 4. Supplemental Contract No. 15
1,699,862.69
Then President Marcos instructed Tabuena over the phone to pay directly to the president's office
and in cash what the MIAA owes the Philippine National Construction Corporation (PNCC), to 5. Supplemental Contract No. 16
which Tabuena replied, "Yes, sir, I will do it." About a week later, Tabuena received from Mrs. Fe Package Contract No. 2 233,561.22
Roa-Gimenez, then private secretary of Marcos, a Presidential Memorandum dated January 8,
1986 (hereinafter referred to as MARCOS Memorandum) reiterating in black and white such verbal 6. Supplemental Contract No. 17
instruction, to wit: Package Contract No. 2 8,821,731.08

Office of the President 7. Supplemental Contract No. 18

of the Philippines Package Contract No. 2 6,110,115.75
Malacanang
8. Supplemental Contract No. 3
January 8, 1986 Package Contract No. II 16,617,655.49

MEMO TO: The General Manager
Manila International Airport Authority
You are hereby directed to pay immediately the Philippine National Construction Corporation, thru
this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment
of MIAA's account with said Company mentioned in a Memorandum of Minister Roberto Ongpin
to this Office dated January 7, 1985 and duly approved by this Office on February 4, 1985.
(xerox copies only; original memo was submitted to the Office of the President on May 28, 1984)
In this connection, please be informed that Philippine National Construction Corporation (PNCC),
formerly CDCP, has accomplishment billings on the MIA Development Project aggregating P98.4
million, inclusive of accomplishments for the aforecited contracts. In accordance with contract
provisions, outstanding advances totalling P93.9 million are to be deducted from said billings which
will leave a net amount due to PNCC of only P4.5 million.

Your immediate compliance is appreciated. At the same time, PNCC has potential escalation claims amounting to P99 million in the following
stages of approval/evaluation:
(Sgd.) FERDINAND MARCOS.4
— Approved by Price Escalation Committee
The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin referred (PEC) but pended for lack of funds P1.9 million
to in the MARCOS Memorandum, reads in full:
— Endorsed by project consultants and
MEMORANDUM currently being evaluated by PEC 30.7 million

For: The President — Submitted by PNCC directly to PEC

and currently under evaluation 66.5 million
From: Minister Roberto V. Ongpin ——————
Total P99.1 million
Date: 7 January 1985
There has been no funding allocation for any of the above escalation claims due to budgetary
Subject: Approval of Supplemental Contracts and Request for Partial Deferment of Repayment constraints.
of PNCC's Advances for MIA Development Project
The MIA Project has been completed and operational as far back as 1982 and yet residual amounts
May I request your approval of the attached recommendations of Minister Jesus S. Hipolito for due to PNCC have not been paid, resulting in undue burden to PNCC due to additional cost of
eight (8) supplemental contracts pertaining to the MIA Development Project (MIADP) between money to service its obligations for this contract.
the Bureau of Air Transport (BAT) and Philippine National Construction Corporation (PNCC),
formerly CDCP, as follows: To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings,
may we request for His Excellency's approval for a deferment of the repayment of PNCC's
1. Supplemental Contract No. 12 advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation

AMCVB CRIM 1 [Art. 8-11] (5)| 98

claims of PNCC, of which P32.5 million has been officially recognized by MIADP consultants but
could not be paid due to lack of funding.
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Pro ject
funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the
undeferred portion of the repayment of advances of P63.9 million.
(Sgd.) ROBERTO V. ONGPIN
Minister5
In obedience to President Marcos' verbal instruction and memorandum, Tabuena, with the help
of Dabao and Peralta, caused the release of P55 Million of MIAA funds by means of three (3)
withdrawals.
The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date
signed by Tabuena and Dabao requesting the PNB extension office at the MIAA — the depository
branch of MIAA funds, to issue a manager's check for said amount payable to Tabuena. The check
was encashed, however, at the PNB Villamor Branch. Dabao and the cashier of the PNB Villamor
branch counted the money after which, Tabuena took delivery thereof. The P25 Million in cash
were then placed in peerless boxes and duffle bags, loaded on a PNB armored car and delivered
on the same day to the office of Mrs. Gimenez located at Aguado Street fronting Malacanang. Mrs.
Gimenez did not issue any receipt for the money received
Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25
Million, made on January 16, 1986.
The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuena's
co-signatory to the letter- request for a manager's check for this amount. Peralta accompanied
Tabuena to the PNB Villamor branch as Tabuena requested him to do the counting of the P5
Million. After the counting, the money was placed in two (2) peerless boxes which were loaded in
the trunk of Tabuena's car. Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez'
office at Aguado Street. It was only upon delivery of the P5 Million that Mrs. Gimenez issued a
receipt for all the amounts she received from Tabuena. The receipt, dated January 30, 1986,
reads:
Malacanang
Manila
January 30, 1986
RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION PESOS
(P55,000,000.00) as of the following dates:
Jan. 10 — P 25,000,000.00
Jan. 16 — 25,000,000.00
Jan. 30 — 5,000,000.00
(Sgd.) Fe Roa-Gimenez
The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, "out
of the ordinary" and "not based on the normal procedure". Not only were there no vouchers
prepared to support the disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt
for the P55 Million was presented. Defense witness Francis Monera, then Senior Assistant Vice
President and Corporate Comptroller of PNCC, even affirmed in court that there were no payments
made to PNCC by MIAA for the months of January to June of 1986.
The position of the prosecution was that there were no outstanding obligations in favor of PNCC
at the time of the disbursement of the P55 Million. On the other hand, the defense of Tabuena
and Peralta, in short, was that they acted in good faith. Tabuena claimed that he was merely
complying with the MARCOS Memorandum which ordered him to forward immediately to the
Office of the President P55 Million in cash as partial payment of MIAA's obligations to PNCC, and
that he (Tabuena) was of the belief that MIAA indeed had liabilities to PNCC. Peralta for his part
shared the same belief and so he heeded the request of Tabuena, his superior, for him (Peralta)
to help in the release of P5 Million.
With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their
conviction, Tabuena and Peralta now set forth a total of ten (10) errors6 committed by the
Sandiganbayan for this Court's consideration. It appears, however, that at the core of their plea
that we acquit them are the following:
1) the Sandiganbayan convicted them of a crime not charged in the amended informations,
and
2) they acted in good faith.
Anent the first proposition, Tabuena and Peralta stress that they were being charged with
intentional malversation, as the amended informations commonly allege that:
. . . accused . . . conspiring, confederating and other, then and there wilfully, unlawfully,
feloniously, and with intent to defraud the government, take and misappropriated the amount
of . . . .
But it would appear that they were convicted of malversation by negligence. In this connection,
the Court's attention is directed to p. 17 of the December 20, 1991 Resolution (denying Tabuena's
and Peralta's motion for reconsideration) wherein the Sandiganbayan said:
xxx xxx xxx
On the contrary, what the evidence shows is that accused Tabuena delivered the P55 Million to
people who were not entitled thereto, either as representatives of MIAA or of the PNCC.
It proves that Tabuena had deliberately consented or permitted through negligence or
abandonment, some other person to take such public funds. Having done so, Tabuena, by his
own narration, has categorically demonstrated that he is guilty of the misappropriation or
malversation of P55 Million of public funds. (Emphasis supplied.)
To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue that:
1) While malversation may be committed intentionally or by negligence, both modes
cannot be committed at the same time.
2) The Sandiganbayan was without jurisdiction to convict them of malversation of
negligence where the amended informations charged them with intentional malversation.7
3) Their conviction of a crime different from that charged violated their constitutional right
to be informed of the accusation.8
We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is "Cabello
v. Sandiganbayan" 9 where the Court passed upon similar protestations raised by therein accused-
petitioner Cabello whose conviction for the same crime of malversation was affirmed, in this wise:
AMCVB CRIM 1 [Art. 8-11] (5)| 99

. . . even on the putative assumption that the evidence against petitioner yielded a case of
malversation by negligence but the information was for intentional malversation, under the
circumstances of this case his conviction under the first mode of misappropriation would still be
in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa
present in the offense is only a modality in the perpetration of the felony. Even if the mode
charged differs from the mode proved, the same offense of malversation is involved and conviction
thereof is proper. . . .
In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or intentional
falsification can validly be convicted of falsification through negligence, thus:
While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs.
Justice of the Peace of Bacolor. G.R. No. L-6641, July 28, 1995, but a distinct crime in our Penal
Code, designated as a quasi offense in our Penal Code, it may however be said that a conviction
for the former can be had under an information exclusively charging the commission of a willful
offense, upon the theory that the greater includes the lesser offense. This is the situation that
obtains in the present case. Appellant was charged with willful falsification but from the evidence
submitted by the parties, the Court of Appeals found that in effecting the falsification which made
possible the cashing of the checks in question, appellant did not act with criminal intent but merely
failed to take proper and adequate means to assure himself of the identity of the real claimants
as an ordinary prudent man would do. In other words, the information alleges acts which charge
willful falsification but which turned out to be not willful but negligent. This is a case covered by
the rule when there is a variance between the allegation and proof, and is similar to some of the
cases decided by this Tribunal.
xxx xxx xxx
Moreover; Section 5, Rule 116, of the Rules of Court does not require that all the essential
elements of the offense charged in the information be proved, it being sufficient that some of said
essential elements or ingredients thereof be established to constitute the crime proved. . . .
The fact that the information does not allege that the falsification was committed with imprudence
is of no moment for here this deficiency appears supplied by the evidence submitted by appellant
himself and the result has proven beneficial to him. Certainly, having alleged that the falsification
has been willful, it would be incongruous to allege at the same time that it was committed with
imprudence for a charge of criminal intent is incompatible with the concept of negligence.
Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale and
arguments also apply to the felony of malversation, that is, that an accused charged with willful
malversation, in an information containing allegations similar to those involved in the present case,
can be validly convicted of the same offense of malversation through negligence where the
evidence sustains the latter mode of perpetrating the offense.
Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution
for malversation for it would negate criminal intent on the part of the accused. Thus, in the two
(2) vintage, but significantmalversation cases of "US v. Catolico" 10 and "US v. Elvina," 11 the
Court stressed that:
To constitute a crime, the act must, except in certain crimes made such by statute, be
accompanied by a criminal intent, or by such negligence or indifference to duty or to consequences
as, in law, is equivalent to criminal intent. The maxim is actus non facit reum, nisi mens sit rea —
a crime is not committed if the mind of the person performing the act complained of is innocent.
The rule was reiterated in "People v. Pacana," 12 although this case involved falsification of public
documents and estafa:
Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum,
nisi mens sit rea. There can be no crime when the criminal mind is wanting.
American jurisprudence echoes the same principle. It adheres to the view that criminal intent in
embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly
entered into, and there can be no embezzlement if the mind of the person doing the act is innocent
or if there is no wrongful purpose.13 The accused may thus always introduce evidence to show
he acted in good faith and that he had no intention to convert.14 And this, to our mind, Tabuena
and Peralta had meritoriously shown.
In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS
Memorandum we are swayed to give credit to his claim of having caused the disbursement of the
P55 Million solely by reason of such memorandum. From this premise flows the following reasons
and/or considerations that would buttress his innocence of the crime of malversation.
First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS
Memorandum required him to do. He could not be faulted if he had to obey and strictly comply
with the presidential directive, and to argue otherwise is something easier said than done. Marcos
was undeniably Tabuena's superior — the former being then the President of the Republic who
unquestionably exercised control over government agencies such as the MIAA and PNCC.15 In
other words, Marcos had a say in matters involving inter-government agency affairs and
transactions, such as for instance, directing payment of liability of one entity to another and the
manner in which it should be carried out. And as a recipient of such kind of a directive coming
from the highest official of the land no less, good faith should be read on Tabuena's compliance,
without hesitation nor any question, with the MARCOS Memorandum. Tabuena therefore is
entitled to the justifying circumstance of "Any person who acts in obedience to an order issued
by a superior for some lawful purpose."16 The subordinate-superior relationship between Tabuena
and Marcos is clear. And so too, is the lawfulness of the order contained in the MARCOS
Memorandum, as it has for its purpose partial payment of the liability of one government agency
(MIAA) to another (PNCC). However, the unlawfulness of the MARCOS Memorandum was being
argued, on the observation, for instance, that the Ongpin Memo referred to in the presidential
directive reveals a liability of only about P34.5 Million. The Sandiganbayan in this connection said:
Exhibits "2" and "2-a" (pages 1 and 2 of the memorandum of Min. Ongpin to the President dated
January 7, 1985) were mainly:
a.) for the approval of eight Supplemental Contracts; and
b.) a request for partial deferment of payment by PNCC for advances made for the MIAA
Development Project, while at the same time recognizing some of the PNCC's escalation billings
which would result in making payable to PNCC the amount of P34.5 million out of existing MIAA
Project funds.
Thus:
"xxx xxx xxx
To allow PNCC to collect partially its billings, and in consideration of ifs pending escalation billings,
may we request for His Excellency's approval for a deferment of repayment of PNCC's advances
to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of
PNCC, of which P32.6 million has been officially recognized by MIADP consultants but could not
be paid due to lack of funding.
AMCVB CRIM 1 [Art. 8-11] (5)| 100

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project
funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the
undeferred portion of the repayment of advances of P63.9 million."
While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to MIAA to
the extent of P99.1 million (Exhibit 2a), a substantial portion thereof was still in the stages of
evaluation and approval, with only P32.6 million having been officially recognized by the MIADP
consultants.
If any payments were, therefore, due under this memo for Min. Ongpin (upon which President
Marcos' Memo was based) they would only be for a sum of up to P34.5 million. 17
xxx xxx xxx
V. Pres. Marcos' order to Tabuena dated January 8, 1986 baseless.
Not only was Pres. Marcos' Memo (Exhibit "1") for Tabuena to pay P55 million irrelevant, but it
was actually baseless.
This is easy to see.
Exhibit "1" purports to refer itself to the Ongpin Memorandum (Exhibit "2", "2-a"); Exhibit "1",
however, speaks of P55 million to be paid to the PNCC while Exhibit "2" authorized only P34.5
million. The order to withdraw the amount of P55 million exceeded the approved payment of
P34.5 million by P20.5 million. Min. Ongpin's Memo of January 7, 1985 could not therefore serve
as a basis for the President's order to withdraw P55 million. 18
Granting this to be true, it will not nevertheless affect Tabuena's goad faith so as to make him
criminally liable. What is more significant to consider is that the MARCOS Memorandum is patently
legal (for on its face it directs payment of an outstanding liability) and that Tabuena acted under
the honest belief that the P55 million was a due and demandable debt and that it was just a
portion of a bigger liability to PNCC. This belief is supported by defense witness Francis Monera
who, on direct examination
Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its
illegality, the subordinate is not liable, for then there would only be a mistake of fact committed
in good faith.22 Such is the ruling in "Nassif v. People"23 the facts of which, in brief, are as
follows:
Accused was charged with falsification of commercial document. A mere employee of R.J. Campos,
he inserted in the commercial document alleged to have been falsified the word "sold" by order
of his principal. Had he known or suspected that his principal was committing an improper act of
falsification, he would be liable either as a co-principal or as an accomplice. However, there being
no malice on his part, he was exempted from criminal liability as he was a mere employee following
the orders of his principal. 24
Second. There is no denying that the disbursement, which Tabuena admitted as "out of the
ordinary", did not comply with certain auditing rules and regulations such as those pointed out by
the Sandiganbayan, to wit:
a) [except for salaries and wages and for commutation of leaves] all disbursements above
P1,000.00 should be made by check (Basic Guidelines for Internal Control dated January 31, 1977
issued by COA)
b) payment of all claims against the government had to be supported with complete
documentation (Sec. 4, P.D. 1445, "State Auditing Code of the Philippines). In this connection,
the Sandiganbayan observed that:
There were no vouchers to authorize the disbursements in question. There were no bills to support
the disbursement. There were no certifications as to the availability of funds for an unquestionably
staggering sum of P55 Million. 25
c) failure to protest (Sec. 106, P.D. 1445)
But this deviation was inevitable under the circumstances Tabuena was in. He did not have the
luxury of time to observe all auditing procedures of disbursement considering the fact that the
MARCOS Memorandum enjoined his "immediate compliance" with the directive that he forward to
the President's Office the P55 Million in cash. Be that as it may, Tabuena surely cannot escape
responsibility for such omission. But since he was acting in good faith, his liability should only be
administrative or civil in nature, and not criminal. This follows the decision in "Villacorta v.
People"26 where the Court, in acquitting therein accused municipal treasurer of Pandan,
Catanduanes of malversation after finding that he incurred a shortage in his cash accountability
by reason of his payment in good faith to certain government personnel of their legitimate wages
leave allowances, etc., held that:
Nor can negligence approximating malice or fraud be attributed to petitioner. If he made wrong
payments, they were in Good faith mainly to government personnel, some of them working at the
provincial auditor's and the provincial treasurer's offices And if those payments ran counter to
auditing rules and regulations, they did not amount to a criminal offense and he should only be
held administratively or civilly liable.
Likewise controlling is "US v. Elvina" 27 where it was held that payments in good faith do not
amount to criminal appropriation, although they were made with insufficient vouchers or improper
evidence. In fact, the Dissenting Opinion's reference to certain provisions in the revised Manual
on Certificate of Settlement and Balances — apparently made to underscore Tabuena's personal
accountability, as agency head, for MIAA funds — would all the more support the view that
Tabuena is vulnerable to civil sanctions only Sections 29.2 and 295 expressly and solely speak of
"civilly liable," describe the kind of sanction imposable on a superior officer who performs his
duties with "bad faith, malice or gross negligence"' and on a subordinate officer or employee who
commits "willful or negligent acts . . . which are contrary to law, morals, public policy and good
customs even if he acted under order or instructions of his superiors."
Third. The Sandiganbayan made the finding that Tabuena had already converted and
misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to the PNCC,
proceeding from the following definitions/concepts of "conversion":
"Conversion", as necessary element of offense of embezzlement, being the fraudulent
"appropriation to one's own use' of another's property which does not necessarily mean to one's
personal advantage but every attempt by one person to dispose of the goods of another without
right as if they were his own is conversion to his own use." (Terry v. Water Improvement Dist.
No. 5 of Tulsa County, 64 p, 2d 904, 906, 179 Okl. 106)
— At p. 207, Words and Phrases,
Permanent Edition 9A.
Conversion is any interference subversive of the right of the owner of personal property to enjoy
and control it. The gist of conversion is the usurpation of the owner 's right of property, and not
the actual damages inflicted. Honesty of purpose is not a defense. (Ferrera v. Parks, 23 p. 883,
885 19 Or. 141)
AMCVB CRIM 1 [Art. 8-11] (5)| 101

— At page 168, id.
xxx xxx xxx
The words "convert" and "misappropriate" connote an act of using or disposing of another's
property as if it were one's own. They presuppose that the thing has been devoted to a purpose
or use different from that agreed upon. To appropriate to one's own use includes not only
conversion to one's personal advantage but every attempt to dispose of the property of another
without right.
— People vs. Webber, 57 O.G.
p. 2933, 2937
By placing them at the disposal of private persons without due authorization or legal justification,
he became as guilty of malversation as if he had personally taken them and converted them to
his own use.
— People vs. Luntao, 50 O.G.
p. 1182, 1183 28
We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena "to pay
immediately the Philippine National Construction Corporation, thru this office the sum of FIFTY
FIVE MILLION. . .", and that was what Tabuena precisely did when he delivered the money to
Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the President inasmuch
as Mrs. Gimenez was Marcos' secretary then. Furthermore, Tabuena had reasonable ground to
believe that the President was entitled to receive the P55 Million since he was certainly aware that
Marcos, as Chief Executive, exercised supervision and control over government agencies. And the
good faith of Tabuena in having delivered the money to the President's office (thru Mrs. Gimenez),
in strict compliance with the MARCOS Memorandum, was not at all affected even if it later turned
out that PNCC never received the money. Thus, it has been said that:
Good faith in the payment of public funds relieves a public officer from the crime of malversation.
xxx xxx xxx
Not every unauthorized payment of public funds is malversation. There is malversation only if the
public officer who has custody of public funds should appropriate the same, or shall take or
misappropriate or shall consent, or through abandonment or negligence shall permit any other
person to take such public funds. Where the payment of public funds has been made in good
faith, and there is reasonable ground to believe that the public officer to whom the fund had been
paid was entitled thereto, he is deemed to have acted in good faith, there is no criminal intent,
and the payment, if it turns out that it is unauthorized, renders him only civilly but not criminally
liable.29
Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to
siphon-out public money for the personal benefit of those then in power, still, no criminal liability
can be imputed to Tabuena. There is no showing that Tabuena had anything to do whatsoever
with the execution of the MARCOS Memorandum. Nor is there proof that he profited from the
felonious scheme. In short, no conspiracy was established between Tabuena and the real
embezzler/s of the P5 Million. In the cases of "US v. Acebedo"30 and "Ang v. Sandiganbayan",31
both also involving the crime of malversation, the accused therein were acquitted after the Court
arrived at a similar finding of non-proof of conspiracy. In "Acebedo", therein accused, as municipal
president of Palo, Leyte, was prosecuted for and found guilty by the lower court of malversation
after being unable to turn over certain amounts to the then justice of the peace. It appeared,
however, that said amounts were actually collected by his secretary Crisanto Urbina. The Court
reversed Acebedo's conviction after finding that the sums were converted by his secretary Urbina
without the knowledge and participation of Acebedo. The Court said, which we herein adopt:
No conspiracy between the appellant and his secretary has been shown in this case, nor did such
conspiracy appear in the case against Urbina. No guilty knowledge of the theft committed by the
secretary was shown on the part of the appellant in this case, nor does it appear that he in any
way participated in the fruits of the crime. If the secretary stole the money in question without
the knowledge or consent of the appellant and without negligence on his part, then certainly the
latter can not be convicted of embezzling the same money or any part thereof.32
In "Ang", accused-petitioner, as MWSS bill collector, allowed part of his collection to be converted
into checks drawn in the name of one Marshall Lu, a non-customer of MWSS, but the checks were
subsequently dishonored. Ang was acquitted by this Court after giving credence to his assertion
that the conversion of his collections into checks were thru the machinations of one Lazaro Guinto,
another MWSS collector more senior to him. And we also adopt the Court's observation therein,
that:
The petitioner's alleged negligence in allowing the senior collector to convert cash collections into
checks may be proof of poor judgment or too trusting a nature insofar as a superior officer is
concerned but there must be stronger evidence to show fraud, malice, or other indicia of
deliberateness in the conspiracy cooked up with Marshall Lu. The prosecution failed to show that
the petitioner was privy to the conspirational scheme. Much less is there any proof that he profited
from the questioned acts. Any suspicions of conspiracy, no matter how sincerely and strongly felt
by the MWSS, must be converted into evidence before conviction beyond reasonable doubt may
be imposed. 33
The principles underlying all that has been said above in exculpation of Tabuena equally apply to
Peralta in relation to the P5 Million for which he is being held accountable, i.e., he acted in good
faith when he, upon the directive of Tabuena, helped facilitate the withdrawal of P5 Million of the
P55 Million of the MIAA funds.
This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly
executed order. Indeed, compliance to a patently lawful order is rectitude far better than
contumacious disobedience. In the case at bench, the order emanated from the Office of the
President and bears the signature of the President himself, the highest official of the land. It
carries with it the presumption that it was regularly issued. And on its face, the memorandum is
patently lawful for no law makes the payment of an obligation illegal. This fact, coupled with the
urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis
essentia. Besides, the case could not be detached from the realities then prevailing As aptly
observed by Mr Justice Cruz in his dissenting opinion:
We reject history in arbitrarily assuming that the people were free during the era and that the
Judiciary was independent and fearless. We know it was not: even the Supreme Court at that
time was not free. This is an undeniable fact that we can not just blink away. Insisting on the
contrary would only make our sincerity suspect and even provoke scorn for what can only be
described as our incredible credulity. 34
But what appears to be a more compelling reason for their acquittal is the violation of the
accused's basic constitutional right to due process. "Respect for the Constitution", to borrow once
again Mr. Justice Cruz's words, "is more important than securing a conviction based on a violation
of the rights of the accused."35 While going over the records, we were struck by the way the
Sandiganbayan actively took part in the questioning of a defense witness and of the accused
themselves. Tabuena and Peralta may not have raised this as an error, there is nevertheless no
impediment for us to consider such matter as additional basis for a reversal since the settled
AMCVB CRIM 1 [Art. 8-11] (5)| 102
doctrine is that an appeal throws the whole case open to review, and it becomes the duty of the
appellate court to correct such errors as may be found in the judgment appealed from whether
they are made the subject of assignments of error or not. 36
Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the
testimony of Francis Monera. then Senior Assistant Vice President and Corporate Comptroller of
PNCC, Atty. Andres asked sixteen (16) questions on direct examination. Prosecutor Viernes only
asked six (6) questions on cross-examination in the course of which the court interjected a total
of twenty-seven (27) questions (more than four times Prosecutor Viernes' questions and even
more than the combined total of direct and cross-examination questions asked by the counsels)
After the defense opted not to conduct any re-direct examination, the court further asked a total
of ten (10) questions.37 The trend intensified during Tabuena's turn on the witness stand.
Questions from the court after Tabuena's cross-examination totalled sixty-seven (67). 38 This is
more than five times Prosecutor Viernes' questions on cross-examination (14), and more than
double the total of direct examination and cross-examination questions which is thirty-one (31)
[17 direct examination questions by Atty. Andres plus 14 cross-examination questions by
Prosecutor Viernes]. In Peralta's case, the Justices, after his cross-examination, propounded a
total of forty-one (41) questions. 39
But more importantly, we note that the questions of the court were in the nature of cross
examinations characteristic of confrontation, probing and insinuation. 40 (The insinuating type
was best exemplified in one question addressed to Peralta, which will be underscored.) Thus we
beg to quote in length from the transcripts pertaining to witness Monera, Tabuena and Peralta.
(Questions from the Court are marked with asterisks and italicized for emphasis.)
(MONERA)
(As a background, what was elicited from his direct examination is that the PNCC had receivables
from MIAA totalling P102,475,392.35, and although such receivables were largely billings for
escalation, they were nonetheless all due and demandable. What follows are the cross-
examination of Prosecutor Viernes and the court questions).
CROSS-EXAMINATION BY PROS. VIERNES
(In his direct examination, he testified that he caused the preparation of the checks totalling P55
Million pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in
cash on the three (3) dates as alleged in the information to Marcos' private secretary Mrs. Jimenez
at her office at Aguado Street, who thereafter issued a receipt. Tabuena also denied having used
the money for his own personal use.)
CROSS-EXAMINATION BY PROS. VIERNES
(He testified on direct examination that he co-signed with Tabuena a memorandum request for
the issuance of the Manager's Check for P5 Million upon order of Tabuena and that he [Peralta]
was aware that MIAA had an existing obligation with PNCC in the amount of around P27 Million.
He affirmed having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million,
but denied having misappropriated for his own benefit said amount or any portion thereof.)
CROSS-EXAMINATION BY PROS VIERNES
This Court has acknowledged the right of a trial judge to question witnesses with a view to
satisfying his mind upon any material point which presents itself during the trial of a case over
which he presides. 44 But not only should his examination be limited to asking "clarificatory"
questions, 45 the right should be sparingly and judiciously used; for the rule is that the court
should stay out of it as much as possible, neither interfering nor intervening in the conduct of the
trial.46 Here, these limitations were not observed. Hardly in fact can one avoid the impression
that the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for
the prosecution in proving the case against Tabuena and Peralta when the Justices cross-
examined the witnesses, their cross- examinations supplementing those made by Prosecutor
Viernes and far exceeding the latter's questions in length. The "cold neutrality of an impartial
judge" requirement of due process was certainly denied Tabuena and Peralta when the court,
with its overzealousness, assumed the dual role of magistrate and advocate. In this connection,
the observation made in the Dissenting Opinion to the effect that the majority of this Court was
"unduly disturbed" with the number of court questions alone, is quite inaccurate. A substantial
portion of the TSN was incorporated in the majority opinion not to focus on "numbers" alone, but
more importantly to show that the court questions were in the interest of the prosecution and
which thus depart from that common standard of fairness and impartiality. In fact, it is very
difficult to be, upon review of the records, confronted with "numbers" without necessarily realizing
the partiality of the Court. In "US v. De Sisto" (2 Cir., 1961, 289 F 2d 833), for example, a new
trial was required because the trial judge, as in this case, indulged in extensive questioning of
defendant and his witnesses, and the reviewing court also had to amplify on "numbers" to bolster
this. It was pointed out in the "De Sisto" case that the judge asked 3,115 questions of all witnesses,
the prosecutor asked but 1,381, defense counsel 3,330. The judge's questions to the defendant
De Sisto totalled 306, the prosecutor's 347, and the defense counsel's, 201. After referring to
these figures, the court stated:
. . . It is indeed an impressive proportion, but no such mathematical computation is of itself
determinative. However, taking all this in conjunction with the long and vigorous examination of
the defendant himself by the judge, and the repeated belittling by the judge of defendant's efforts
to establish the time that Fine left the pier, we fear that in its zeal for arriving at the facts the
court here conveyed to the jury too strong an impression of the court's belief in the defendant's
probable guilt to permit the jury freely to perform its own function of independent determination
of the facts. . . .
The majority believes that the interference by the Sandiganbayan Justices was just too excessive
that it cannot be justified under the norm applied to a jury trial, or even under the standard
employed in a non-jury trial where the judge is admittedly given more leeway in propounding
questions to clarify points and to elicit additional relevant evidence. At the risk of being repetitious,
we will amplify on this via some specific examples. Based on the evidence on record, and on the
admission of Tabuena himself, the P55 million was delivered to the President's Office thru Mrs.
Gimenez, in obedience to the Presidential directive. One Sandiganbayan Justice, however, hurled
the following questions to Peralta:
How can these questions be considered clarificatory when they clearly border more on cross-
examination questions? Thus, the Dissenting Opinion's focus on the distinction between the two
kinds of trial to justify the Sandiganbayan's active participation in the examination of petitioners
Tabuena and Peralta and witness Monera, with due respect, appears insignificant to this case. Let
it, therefore, be emphasized anew that:
A trial judge should not participate in the examination of witnesses as to create the impression
that he is allied with the prosecution.48
We doubt not that the sole motive of the learned judge was to ascertain the truth of the
transaction, but it is never proper for a judge to discharge the duties of a prosecuting attorney.
However anxious a judge may be for the enforcement of the law, he should always remember
that he is as much judge in behalf of the defendant accused of crime, and whose liberty is in
AMCVB CRIM 1 [Art. 8-11] (5)| 103
jeopardy, as he is judge in behalf of the state, for the purpose of safeguarding the interests of
society. 49
Ordinarily it is not good practice for the presiding judge himself to examine witnesses at length.
The circumstances may be such in a given case as to justify the court in so doing. . . . This court,
however, has more than once said that the examination of witnesses is the more appropriate
function of counsel, and the instances are rare and the conditions exceptional which will justify
the presiding judge in conducting an extensive examination. It is always embarrassing for counsel
to object to what he may deem improper questions by the court. Then, in conducting a lengthy
examination, it would be almost impossible for the judge to preserve a judicial attitude. While he
is not a mere figurehead or umpire in a trial, and it is his duty to see that justice is done, he will
usually not find it necessary to conduct such examinations. The extent to which this shall be done
must largely be a matter of discretion, to be determined by the circumstances of each particular
case, but in so doing he must not forget the function of the judge and assume that of an
advocate. . . 50
to escape criminal liability by the mere expedient of invoking "good faith". It must never be
forgotten, however, that we render justice on a case to case basis, always in consideration of the
evidence that is presented. Thus, where the evidence warrants an acquittal, as in this case, we
are mandated not only by the dictates of law but likewise of conscience to grant the same. On
the other hand, it does not follow that all those similarly accused will necessarily be acquitted
upon reliance on this case as a precedent. For the decision in this case to be a precedent, the
peculiar circumstances and the evidence that led to the petitioner's acquittal must also be present
in subsequent cases.
Furthermore, as between a mere apprehension of a "dangerous precedent" and an actual violation
of constitutionally enshrined rights, it is definitely the latter that merits our immediate attention.
For the most dangerous precedent arises when we allow ourselves to be carried away by such
fears so that it becomes lawful to sacrifice the rights of an accused to calm the fearful. In our
eagerness to bring to justice the malefactors of the Marcos regime, we must not succumb to the
temptation to commit the greatest injustice of visiting the sins of the wrongdoers upon an innocent.

While it is true that the manner in which a witness shall be examined is largely in the discretion
of the trial judge, it must be understood that we have not adopted in this country the practice of
making the presiding judge the chief inquisitor. It is better to observe our time-honored custom
of orderly judicial procedure, even at the expense of occasional delays. . . . The judge is an
important figure in the trial of a cause, and while he has the right, and it is often his duty, to
question witnesses to the end that justice shall prevail, we can conceive of no other reason, for
him to take the trial of the cause out of the hands of counsel. 51
WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta
are hereby ACQUITTED of the crime of malversation as defined and penalized under Article 217
of the Revised Penal Code. The Sandiganbayan Decision of October 12, 1990 and the Resolution
dated December 20, 1991 are REVERSED and SET ASIDE.
SO ORDERED.

The examination of witnesses is the more appropriate function of counsel, and it is believed the
instances are rare and the conditions exceptional in a high degree which will justify the presiding
judge in entering upon and conducting an extended examination of a witness, and that the
exercise of a sound discretion will seldom deem such action necessary or advisable. 52

He [the judge] may properly intervene in a trial of a case to promote expedition, and pr event
unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his
undue interference, impatience, or participation in, the examination of witnesses, or a severe
attitude on his part toward witnesses, especially those who are excited or terrified by the unusual
circumstances of a trial, may tend to prevent the proper presentation of the cause, or the
ascertainment of the truth in respect thereto. 53

The impartiality of the judge — his avoidance of the appearance of becoming the advocate of
either one side or the other of the pending controversy is a fundamental and essential rule of
special importance in criminal cases. . . 54

Our courts, while never unmindful of their primary duty to administer justice, without fear or favor,
and to dispose of these cases speedily and in as inexpensive a manner as is possible for the court
and the parties, should refrain from showing any semblance of one-sided or more or less partial
attitude in order not to create any false impression in the minds of the litigants. For obvious
reasons, it is the bounden duty of all to strive for the preservation of the people's faith in our
courts.55

Time and again this Court has declared that due process requires no less than the cold neutrality
of an impartial judge. Bolstering this requirement, we have added that the judge must not only
be impartial but must also appear to be impartial, to give added assurance to the parties that his
decision will be just. The parties are entitled to no less than this, as a minimum guaranty of due
process. 56

We are well aware of the fear entertained by some that this decision may set a dangerous
precedent in that those guilty of enriching themselves at the expense of the public would be able

AMCVB CRIM 1 [Art. 8-11] (5)| 104