FIRST DIVISION

ROLLIE CALIMUTAN,

G.R. No. 152133

Petitioner,
Present:

PANGANIBAN, C.J.
Chairperson,

- versus-

YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.

PEOPLE
OF
THE
PHILIPPINES, ET AL.,
Respondents.

Promulgated:

February 9, 2006

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

In this Petition for Review on Certiorari under Rule 45 of the

Revised Rules of Court, petitioner Rollie Calimutan prays for the
reversal of the Decision of the Court of Appeals in CA-G.R. CR No.

23306, dated 29 August 2001, [1] affirming the Decision of the Regional
Trial Court (RTC), Branch 46, of Masbate, Masbate, in Criminal Case
No. 8184, dated 19 November 1998, [2] finding petitioner Calimutan
guilty beyond reasonable doubt of the crime of homicide under Article
249 of the Revised Penal Code.

The Information[3] filed with the RTC charged petitioner

Calimutan with the crime of homicide, allegedly committed as follows

That on or about February 4, 1996, in the morning

thereof, at sitio Capsay, Barangay Panique, Municipality
of Aroroy, Province of Masbate, Philippines within the
jurisdiction of this Honorable Court, the above-named
accused with intent to kill, did then and there willfully,
unlawfully and feloniously attack, assault and throw a
stone at PHILIP CANTRE, hitting him at the back left
portion of his body, resulting in laceration of spleen due to
impact which caused his death a day after.
CONTRARY TO LAW.
Masbate, Masbate, September 11, 1996.
Accordingly, the RTC issued, on 02 December 1996, a warrant [4] for
the arrest of petitioner Calimutan. On 09 January 1997, however, he
was provisionally released[5] after posting sufficient bailbond.[6] During
the arraignment on 21 May 1997, petitioner Calimutan pleaded not
guilty to the crime of homicide charged against him.[7]

In the course of the trial, the prosecution presented three

witnesses, namely: (1) Dr. Ronaldo B. Mendez, a Senior MedicoLegal Officer of the National Bureau of Investigation (NBI); (2) Belen
B. Cantre, mother of the victim, Philip Cantre; and (3) Rene L.
Saano, companion of the victim Cantre when the alleged crime took
place. Their testimonies are collectively summarized below.

On 04 February 1996, at around 10:00 a.m., the victim Cantre and

witness Saano, together with two other companions, had a drinking spree at a
videoke bar in Crossing Capsay, Panique, Aroroy, Masbate. From the videoke
bar, the victim Cantre and witness Saano proceeded to go home to their
respective houses, but along the way, they crossed paths with petitioner
Calimutan and a certain Michael Bulalacao. Victim Cantre was harboring a
grudge against Bulalacao, suspecting the latter as the culprit responsible for
throwing stones at the Cantres house on a previous night. Thus, upon seeing
Bulalacao, victim Cantre suddenly punched him. While Bulalacao ran away,
petitioner Calimutan dashed towards the backs of victim Cantre and witness
Saano. Petitioner Calimutan then picked up a stone, as big as a mans fist,
which he threw at victim Cantre, hitting him at the left side of his back. When hit
by the stone, victim Cantre stopped for a moment and held his back. Witness
Saano put himself between the victim Cantre and petitioner Calimutan, and
attempted to pacify the two, even convincing petitioner Calimutan to put down
another stone he was already holding. He also urged victim Cantre and
petitioner Calimutan to just go home. Witness Saano accompanied victim
Cantre to the latters house, and on the way, victim Cantre complained of the
pain in the left side of his back hit by the stone. They arrived at the Cantres
house at around 12:00 noon, and witness Saano left victim Cantre to the care of
the latters mother, Belen.[8]

Victim Cantre immediately told his mother, Belen, of the stoning incident
involving petitioner Calimutan. He again complained of backache and also of
stomachache, and was unable to eat. By nighttime, victim Cantre was alternately
feeling cold and then warm. He was sweating profusely and his entire body felt
numb. His family would have wanted to bring him to a doctor but they had no
vehicle. At around 3:00 a.m. of the following day, 05 February 1996, Belen was
wiping his son with a piece of cloth, when victim Cantre asked for some food. He
was able to eat a little, but he also later vomited whatever he ate. For the last
time, he complained of backache and stomachache, and shortly thereafter, he
died.[9]

Right after his death, victim Cantre was examined by Dr. Conchita S.
Ulanday, the Municipal Health Officer of Aroroy, Masbate. The Post-Mortem
Examination Report[10] and Certification of Death,[11] issued and signed by Dr.
Ulanday, stated that the cause of death of victim Cantre was cardio-respiratory
arrest due to suspected food poisoning. The body of victim Cantre was
subsequently embalmed and buried on 13 February 1996.

Unsatisfied with the findings of Dr. Ulanday, the Cantre family, with the
help of the Lingkod Bayan-Circulo de Abogadas of the ABS-CBN Foundation,
requested for an exhumation and autopsy of the body of the victim Cantre by the
NBI. The exhumation and autopsy of the body of the victim Cantre was
conducted by Dr. Ronaldo B. Mendez on 15 April 1996, [12] after which, he
reported the following findings

Body; fairly well-preserved with sign of partial autopsy; clad

in white Barong Tagalog and blue pants placed inside a wooden
golden-brown coffin and buried in a concrete niche.
Contused-abrasion, 2.3 x 1.0 cms., posterior chest wall, left
side.
Hematoma, 16.0 x 8.0 cms., abdomen, along mid-line.
Hemoperitoneum, massive, clotte [sic].
Laceration, spleen.
Other visceral organ, pale and embalmed.
Stomach contains small amount of whitish fluid and other
partially digested food particles.
xxxx
CAUSE OF DEATH: TRAUMATIC INJURY OF THE ABDOMEN.

In his testimony before the RTC, Dr. Mendez affirmed the contents of his
exhumation and autopsy report. He explained that the victim Cantre suffered
from an internal hemorrhage and there was massive accumulation of blood in his
abdominal cavity due to his lacerated spleen. The laceration of the spleen can
be caused by any blunt instrument, such as a stone. Hence, Dr. Mendez
confirmed the possibility that the victim Cantre was stoned to death by petitioner
Calimutan.[13]

To counter the evidence of the prosecution, the defense

presented the sole testimony of the accused, herein petitioner,
Calimutan.

According to petitioner Calimutan, at about 1:00 p.m. on 04

February 1996, he was walking with his house helper, Michael
Bulalacao, on their way to Crossing Capsay, Panique, Aroroy,
Masbate, when they met with the victim Cantre and witness Saano.
The victim Cantre took hold of Bulalacao and punched him several
times. Petitioner Calimutan attempted to pacify the victim Cantre but
the latter refused to calm down, pulling out from his waist an eightinch Batangas knife and uttering that he was looking for trouble,
either to kill or be killed. At this point, petitioner Calimutan was
about ten meters away from the victim Cantre and was too frightened
to move any closer for fear that the enraged man would turn on him;
he still had a family to take care of. When he saw that the victim
Cantre was about to stab Bulalacao, petitioner Calimutan picked up a
stone, which he described as approximately one-inch in diameter,
and threw it at the victim Cantre. He was able to hit the victim Cantre
on his right buttock. Petitioner Calimutan and Bulalacao then started
to run away, and victim Cantre chased after them, but witness
Saano was able to pacify the victim Cantre.

Petitioner Calimutan

allegedly reported the incident to a kagawad of Barangay Panique

and to the police authorities and sought their help in settling the
dispute between Bulalacao and the victim Cantre.

Bulalacao,

meanwhile, refused to seek medical help despite the advice of

petitioner Calimutan and, instead, chose to go back to his hometown.
[14]

Petitioner Calimutan was totally unaware of what had happened

to the victim Cantre after the stoning incident on 04 February 1996.
Some of his friends told him that they still saw the victim Cantre

drinking at a videoke bar on the night of 04 February 1996. As far as

he knew, the victim Cantre died the following day, on 05 February
1996, because of food poisoning. Petitioner Calimutan maintained
that he had no personal grudge against the victim Cantre previous to
the stoning incident.[15]

On 19 November 1998, the RTC rendered its Decision,[16]

essentially adopting the prosecutions account of the incident on 04
February 1996, and pronouncing that

It cannot be legally contended that the throwing of

the stone by the accused was in defense of his
companion, a stranger, because after the boxing Michael
was able to run. While it appears that the victim was the
unlawful aggressor at the beginning, but the aggression
already ceased after Michael was able to run and there
was no more need for throwing a stone. The throwing of
the stone to the victim which was a retaliatory act can be
considered unlawful, hence the accused can be held
criminally liable under paragraph 1 of Art. 4 of the Revised
Penal Code.
The act of throwing a stone from behind which hit
the victim at his back on the left side was a treacherous
one and the accused committed a felony causing physical
injuries to the victim. The physical injury of hematoma as
a result of the impact of the stone resulted in the
laceration of the spleen causing the death of the victim.
The accused is criminally liable for all the direct and
natural consequences of this unlawful act even if the
ultimate result had not been intended. (Art. 4, Par. 1,
Revised Penal Code; People vs. Narciso, CA-G.R. No.
03532-CR, Jan. 13, 1964)
One is not relieved from criminal liability for the
natural consequences of ones illegal acts merely
because one does not intend to produce such
consequences (U.S. vs. Brobst, 14 Phil. 310).
The crime committed is Homicide as defined and
penalized under Art. 249 of the Revised Penal Code.

WHEREFORE, the Court finds and so holds that

accused ROLLIE CALIMUTAN is GUILTY beyond
reasonable doubt of the crime of Homicide defined and
penalized under Art. 249 of the Revised Penal Code with
no mitigating or aggravating circumstance and applying
the Indeterminate Sentence Law hereby imposes the
penalty of imprisonment from EIGHT (8) YEARS of
Prision Mayor as minimum, to TWELVE (12) YEARS and
ONE (1) DAY of Reclusion Temporal as maximum, and to
indemnify the heirs of Philip Cantre the sum of Fifty
Thousand (P50,000.00) Pesos as compensatory
damages and the sum of Fifty Thousand (P50,000.00)
Pesos as moral damages, without subsidiary
imprisonment in case of insolvency.
Petitioner Calimutan appealed the Decision of the RTC to the Court of Appeals.
The Court of Appeals, in its Decision, dated 29 August 2001, [17] sustained the
conviction of homicide rendered by the RTC against petitioner Calimutan,
ratiocinating thus

The prosecution has sufficiently established that the serious

internal injury sustained by the victim was caused by the stone
thrown at the victim by the accused which, the accused-appellant
does not deny. It was likewise shown that the internal injury
sustained by the victim was the result of the impact of the stone
that hit the victim. It resulted to a traumatic injury of the abdomen
causing the laceration of the victims spleen.
This is clearly shown by the autopsy report prepared by Dr.
Ronaldo Mendez, a Senior Medico Legal Officer of the NBI after the
exhumation of the victims cadaver
The Court cannot give credence to the post mortem report
prepared by Municipal Health Officer Dr. Conchita Ulanday stating
that the cause of the victims death was food poisoning. Dr.
Ulanday was not even presented to testify in court hence she was
not even able to identify and/or affirm the contents of her report.
She was not made available for cross-examination on the accuracy
and correctness of her findings.
Dr. Conchita Ulandays post mortem report cannot prevail over the
autopsy report (Exh. C) of the Medico-Legal Officer of the NBI
who testified and was cross-examined by the defense.
Besides, if accused-appellant was convinced that the victim indeed
died of food poisoning, as reported by Dr. Conchita Ulanday, why
did they not present her as their witness to belie the report of the
Medico-Legal Officer of the NBI.

The trial courts evaluation of the testimony of Dr. Mendez is

accorded the highest respect because it had the opportunity to
observe the conduct and demeanor of said witness.
WHEREFORE, in view of the foregoing, the decision of the
Regional Trial Court of Masbate, Branch 46, finding accusedappellant guilty beyond reasonable doubt of the crime of homicide
is hereby AFFIRMED.

The Court of Appeals, in its Resolution, dated 15 January 2002, [18]

denied the Motion for Reconsideration filed by petitioner Calimutan
for lack of merit since the issues raised therein had already been
passed and ruled upon in its Decision, dated 29 August 2001.

Comes now petitioner Calimutan, by way of the present

Petition for Review on Certiorari, seeking (1) the reversal of the
Decisions of the RTC, dated 19 November 1998, and of the Court of
Appeals, dated 29 August 2001, convicting him of the crime of
homicide; and, (2) consequently, his acquittal of the said crime based
on reasonable doubt.

Petitioner Calimutan contended that the existence of the two

autopsy reports, with dissimilar findings on the cause of death of the
victim Cantre, constituted reasonable doubt as to the liability of
petitioner Calimutan for the said death, arguing that

x x x [I]t was Dra. Conchita Ulanday, Municipal Health

Officer of Aroroy, Masbate was the first physician of the
government who conducted an examination on the
cadaver of the victim Philip Cantre whose findings was
that the cause of his death was due to food poisoning
while the second government physician NBI Medico Legal
Officer Dr. Ronaldo Mendez whose findings was that the
cause of the death was due to a traumatic injury of the
abdomen caused by a lacerated spleen and with these
findings of two (2) government physicians whose findings
are at variance with each other materially, it is humbly

contended that the same issue raised a reasonable doubt

on the culpability of the petitioner.
As there are improbabilities and uncertainties of the
evidence for the prosecution in the case at bar, it suffices
to reaise [sic] reasonable doubt as to the petitioners guilt
and therefore, he is entitled to acquittal (People vs.
Delmendo, G.R. No. 32146, November 23, 1981). [19]
In this jurisdiction, an accused in a criminal case may only be
convicted if his or her guilt is established by proof beyond reasonable
doubt.

Proof beyond reasonable doubt requires only a moral

certainty or that degree of proof which produces conviction in an

unprejudiced mind; it does not demand absolute certainty and the
exclusion of all possibility of error.[20]

In the Petition at bar, this Court finds that there is proof beyond
reasonable doubt to hold petitioner Calimutan liable for the death of
the victim Cantre.

Undoubtedly, the exhumation and autopsy report and the

personal testimony before the RTC of prosecution witness, NBI
Senior Medico-Legal Officer Dr. Mendez, are vital pieces of evidence
against petitioner Calimutan. Dr. Mendez determined that the victim
Cantre died of internal hemorrhage or bleeding due to the laceration
of his spleen. In his testimony, Dr. Mendez clearly and consistently
explained that the spleen could be lacerated or ruptured when the
abdominal area was hit with a blunt object, such as the stone thrown
by petitioner Calimutan at the victim Cantre.

It bears to emphasize that Dr. Mendez was presented by the

prosecution as an expert witness, whose competency and academic
qualification and background was admitted by the defense itself. [21]

As a Senior Medico-Legal Officer of the NBI, Dr. Mendez is

presumed to possess sufficient knowledge of pathology, surgery,
gynecology, toxicology, and such other branches of medicine
germane to the issues involved in a case.[22]

Dr. Mendezs testimony as an expert witness is evidence, [23] and

although it does not necessarily bind the courts, both the RTC and
the Court of Appeals had properly accorded it great weight and
probative value. Having testified as to matters undeniably within his
area of expertise, and having performed a thorough autopsy on the
body of the victim Cantre, his findings as to the cause of death of the
victim Cantre are more than just the mere speculations of an ordinary
person.

They may sufficiently establish the causal relationship

between the stone thrown by the petitioner Calimutan and the

lacerated spleen of the victim Cantre which, subsequently, resulted in
the latters death. With no apparent mistake or irregularity, whether in
the manner by which Dr. Mendez performed the autopsy on the body
of the victim Cantre or in his findings, then his report and testimony
must be seriously considered by this Court.

Moreover, reference to other resource materials on abdominal

injuries would also support the conclusion of Dr. Mendez that the
stone thrown by petitioner Calimutan caused the death of the victim
Cantre.

One source explains the nature of abdominal injuries [24] in the

following manner

The skin may remain unmarked inspite of

extensive internal injuries with bleeding and disruption of
the internal organs. The areas most vulnerable are the
point of attachment of internal organs, especially at the

source of its blood supply and at the point where blood

vessels change direction.
The area in the middle superior half of the
abdomen, forming a triangle bounded by the ribs on the
two sides and a line drawn horizontally through the
umbilicus forming its base is vulnerable to trauma
applied from any direction. In this triangle are found
several blood vessels changing direction, particularly the
celiac trunk, its branches (the hepatic, splenic and
gastric arteries) as well as the accompanying veins.
The loop of the duodenum, the ligament of Treitz and the
pancreas are in the retroperitoneal space, and the
stomach and transverse colon are in the triangle, located
in the peritoneal cavity. Compression or blow on the area
may cause detachment, laceration, stretch-stress,
contusion of the organs (Legal Medicine 1980, Cyril H.
Wecht et., p. 41).
As to injuries to the spleen, in particular,[25] the same source
expounds that

The spleen usually suffers traumatic rupture

resulting from the impact of a fall or blow from the
crushing and grinding effects of wheels of motor vehicles.
Although the organ is protected at its upper portion by the
ribs and also by the air-containing visceral organs, yet on
account of its superficiality and fragility, it is usually
affected by trauma. x x x.
Certainly, there

are

some

terms

in

the

above-quoted

paragraphs difficult to comprehend for people without medical

backgrounds. Nevertheless, there are some points that can be
plainly derived therefrom: (1) Contrary to common perception, the
abdominal area is more than just the waist area.

The entire

abdominal area is divided into different triangles, and the spleen is

located in the upper triangle, bounded by the rib cage; (2) The spleen
and all internal organs in the same triangle are vulnerable to trauma
from all directions. Therefore, the stone need not hit the victim
Cantre from the front. Even impact from a stone hitting the back of

the victim Cantre, in the area of the afore-mentioned triangle, could

rupture the spleen; and (3) Although the spleen had already been
ruptured or lacerated, there may not always be a perceptible external
injury to the victim. Injury to the spleen cannot, at all times, be
attributed to an obvious, external injury such as a cut or bruise. The
laceration of the victim Cantres spleen can be caused by a stone
thrown hard enough, which qualifies as a nonpenetrating trauma [26]

Nonpenetrating Trauma. The spleen, alone or in

combination with other viscera, is the most frequently
injured organ following blunt trauma to the abdomen or
the lower thoracic cage. Automobile accidents provide
the predominating cause, while falls, sledding and bicycle
injuries, and blows incurred during contact sports are
frequently implicated in children. x x x
The sheer impact of the stone thrown by petitioner Calimutan at
the back of the victim Cantre could rupture or lacerate the spleen
an organ described as vulnerable, superficial, and fragile even
without causing any other external physical injury. Accordingly, the
findings of Dr. Mendez that the victim Cantre died of internal
hemorrhage from his lacerated spleen, and the cause of the
laceration of the spleen was the stone thrown by petitioner Calimutan
at the back of the victim Cantre, does not necessarily contradict his
testimony before the RTC that none of the external injuries of the
victim Cantre were fatal.

Based on the foregoing discussion, the prosecution was able to

establish that the proximate cause of the death of the victim Cantre
was the stone thrown at him by petitioner Calimutan. Proximate
cause has been defined as that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have
occurred.[27]

The two other witnesses presented by the prosecution, namely

Saano and Belen Cantre, had adequately recounted the events that
transpired on 04 February 1996 to 05 February 1996. Between the
two of them, the said witnesses accounted for the whereabouts,
actions, and physical condition of the victim Cantre during the said
period.

Before the encounter with petitioner Calimutan and

Bulalacao, the victim Cantre seemed to be physically fine. However,

after being hit at the back by the stone thrown at him by petitioner
Calimutan, the victim Cantre had continuously complained of
backache. Subsequently, his physical condition rapidly deteriorated,
until finally, he died. Other than being stoned by petitioner Calimutan,
there was no other instance when the victim Cantre may have been
hit by another blunt instrument which could have caused the
laceration of his spleen.

Hence, this Court is morally persuaded that the victim Cantre

died from a lacerated spleen, an injury sustained after being hit by a
stone thrown at him by petitioner Calimutan. Not even the postmortem report of Dr. Ulanday, the Municipal Health Officer who first
examined the body of the victim Cantre, can raise reasonable doubt
as to the cause of death of the victim Cantre. Invoking Dr. Ulandays
post-mortem report, the defense insisted on the possibility that the
victim Cantre died of food poisoning.

The post-mortem report,

though, cannot be given much weight and probative value for the
following reasons

First, a closer scrutiny of the words used by Dr. Ulanday in her

post-mortem report, as well as in the death certificate of the victim
Cantre, reveals that although she suspected food poisoning as the
cause of death, she held back from making a categorical statement

that it was so. In the post-mortem report,

[28]

she found that x x x the

provable (sic) cause of death was due to cardio-respiratory arrest.

Food poisoning must be confirm (sic) by laboratory e(x)am. In the
death certificate of the victim Cantre,

[29]

she wrote that the immediate

cause of death was Cardio-Respiratory Arrest and the antecedent

cause was Food Poisoning Suspect. There was no showing that
further laboratory tests were indeed conducted to confirm Dr.
Ulandays suspicion that the victim Cantre suffered from food
poisoning, and without such confirmation, her suspicion as to the
cause of death remains just that a suspicion.

Second, Dr. Ulanday executed before the NBI a sworn

statement[30] in which she had explained her findings in the postmortem report, to wit

05. Q: Did you conduct an autopsy on his cadaver?

A: I did sir, but not as exhaustive as that done by the
NBI Medico-legal.
06. Q: Now, what do you want to state regarding your
certification on the death of PHILIP B. CANTRE?
A: I stated in the certification and even in the Death
Certificate about Food Poisoning. What I stated in
the Death Certificate was that CANTRE was a
SUSPECTED victim of food poisoning. I didnt state
that he was a case of food poisoning. And in the
Certification, I even recommended that an
examination be done to confirm that suspicion.
07. Q: What gave you that suspicion of poisoning?
A: As there were no external signs of fatal injuries
except that of the contusion or abrasion, measuring
as that size of a 25 centavo coin, I based my
suspicion from the history of the victim and from the
police investigation.
08. Q: You also mentioned in your Certification that there
was no internal hemorrhage in the cadaver. Did you
open the body of the cadaver?

A: As I have already stated sir, I did not conduct an

exhaustive autopsy. I made an incision on the
abdomen and I explored the internal organs of the
cadaver with my hand in search for any clotting
inside. But I found none. I did not open the body of
the cadaver.
09. Q: You mentioned about a contusion you have
observed on the cadaver. Where was it located?
A: On the left portion of his back, sir.
10. Q: Now, is it possible that if somebody be hit by a
hard object on that part of his body, his SPLEEN
could be injured?
A: Yes, sir. But that would depend on how strong or
forceful the impact was.
In contrast, Dr. Mendez described in his testimony before the RTC [31]
how he conducted the autopsy of the body of the victim Cantre, as
follows

Q What specific procedure did you do in connection with

the exhumation of the body of the victim in this
case?
A We opened the head, chest and the abdomen.
Q That was part of the autopsy you have conducted?
A Yes, sir.
Q Aside from opening the head as well as the body of
the victim Philip Cantre, what other matters did you
do in connection therewith?
A We examined the internal organs.
Q

What in particular
examined?

internal

organs you

have

A The brain, the heart, the lungs, the liver, the kidneys,
the pancreas plus the intestines.
xxxx

Q The cause of death as you have listed here in your

findings is listed as traumatic injury of the abdomen,
will you kindly tell us Doctor what is the significance
of this medical term traumatic injury of the
abdomen?
A

We, medico-legal officers of the NBI dont do what

other doctors do as they make causes of death as
internal hemorrhage we particularly point to the
injury of the body like this particular case the injury
was at the abdomen of the victim.

Q Will you tell as Doctor what particular portion of the

abdomen of the victim this traumatic injury is
located?
A Along the midline but the damaged organ was at the
left.
Q What particular organ are you referring to?
A The spleen, sir.
The difference in the extent of the examinations conducted by the two
doctors of the body of the victim Cantre provides an adequate
explanation for their apparent inconsistent findings as to the cause of
death. Comparing the limited autopsy conducted by Dr. Ulanday and
her unconfirmed suspicion of food poisoning of the victim Cantre, as
opposed to the exhaustive autopsy performed by Dr. Mendez and his
definitive finding of a ruptured spleen as the cause of death of the
victim Cantre, then the latter, without doubt, deserves to be given
credence by the courts.

Third, that the prosecution no longer presented Dr. Ulanday

before the RTC despite being included in its list of witnesses did not
amount to a willful suppression of evidence that would give rise to the
presumption that her testimony would be adverse to the prosecution if
produced.[32] As this Court already expounded in the case of People
v. Jumamoy[33]

The prosecution's failure to present the other

witnesses listed in the information did not constitute,
contrary to the contention of the accused, suppression of
evidence. The prosecutor has the exclusive prerogative to
determine the witnesses to be presented for the
prosecution. If the prosecution has several eyewitnesses,
as in the instant case, the prosecutor need not present all
of them but only as many as may be needed to meet the
quantum of proof necessary to establish the guilt of the
accused beyond reasonable doubt. The testimonies of the
other witnesses may, therefore, be dispensed with for
being merely corroborative in nature. This Court has ruled
that the non-presentation of corroborative witnesses
would not constitute suppression of evidence and would
not be fatal to the prosecution's case. Besides, there is
no showing that the eyewitnesses who were not
presented in court as witnesses were not available to the
accused. We reiterate the rule that the adverse
presumption from a suppression of evidence is not
applicable when (1) the suppression is not willful; (2) the
evidence suppressed or withheld is merely corroborative
or cumulative; (3) the evidence is at the disposal of both
parties; and (4) the suppression is an exercise of a
privilege. Moreover, if the accused believed that the
failure to present the other witnesses was because their
testimonies would be unfavorable to the prosecution, he
should have compelled their appearance, by compulsory
process, to testify as his own witnesses or even as hostile
witnesses.
It was a judgment call for the prosecution to no longer present Dr.
Ulanday before the RTC, perhaps believing that it had already
presented sufficient evidence to merit the conviction of petitioner
Calimutan even without her testimony. There was nothing, however,
preventing the defense from calling on, or even compelling, with the
appropriate court processes, Dr. Ulanday to testify in court as its
witness if it truly believed that her testimony would be adverse to the
case presented by the prosecution.

While this Court is in accord with the factual findings of the

RTC and the Court of Appeals and affirms that there is ample
evidence proving that the death of the victim Cantre was caused by
his lacerated spleen, an injury which resulted from being hit by the
stone thrown at him by petitioner Calimutan, this Court, nonetheless,
is at variance with the RTC and the Court of Appeals as to the
determination of the appropriate crime or offense for which the
petitioner should have been convicted for.

Article 3 of the Revised Penal Code classifies felonies

according to the means by which they are committed, in particular: (1)
intentional felonies, and (2) culpable felonies. These two types of
felonies are distinguished from each other by the existence or
absence of malicious intent of the offender

In intentional felonies, the act or omission of the

offender is malicious. In the language of Art. 3, the act is
performed with deliberate intent (with malice). The
offender, in performing the act or in incurring the
omission, has the intention to cause an injury to another.
In culpable felonies, the act or omission of the offender is
not malicious. The injury caused by the offender to
another person is unintentional, it being simply the
incident of another act performed without malice. (People
vs. Sara, 55 Phil. 939). As stated in Art. 3, the wrongful
act results from imprudence, negligence, lack of foresight
or lack of skill.[34]
In the Petition at bar, this Court cannot, in good conscience,
attribute to petitioner Calimutan any malicious intent to injure, much
less to kill, the victim Cantre; and in the absence of such intent, this
Court cannot sustain the conviction of petitioner Calimutan for the
intentional crime of homicide, as rendered by the RTC and affirmed
by the Court of Appeals.

Instead, this Court finds petitioner

Calimutan guilty beyond reasonable doubt of the culpable felony of

reckless imprudence resulting in homicide under Article 365 of the

Revised Penal Code.

Article 365 of the Revised Penal Code expressly provides for

the definition of reckless imprudence

Reckless imprudence consists in voluntarily, but

without malice, doing or failing to do an act from which
material damage results by reason of inexcusable lack of
precaution on the part of the person performing or failing
to perform such act, taking into consideration his
employment or occupation, degree of intelligence,
physical condition and other circumstances regarding
persons, time and place.
There are several circumstances, discussed in the succeeding
paragraphs, that demonstrate petitioner Calimutans lack of intent to
kill the victim Cantre, and conversely, that substantiate the view of
this Court that the death of victim Cantre was a result of petitioner
Calimutans reckless imprudence. The RTC and the Court of Appeals
may have failed to appreciate, or had completely overlooked, the
significance of such circumstances.

It should be remembered that the meeting of the victim Cantre

and witness Saano, on the one hand, and petitioner Calimutan and
his helper Bulalacao, on the other, was a chance encounter as the
two parties were on their way to different destinations. The victim
Cantre and witness Saano were on their way home from a drinking
spree in Crossing Capsay, while petitioner Calimutan and his helper
Bulalacao were walking from the market to Crossing Capsay. While
the evidence on record suggests that a running grudge existed
between the victim Cantre and Bulalacao, it did not establish that

there was likewise an existing animosity between the victim Cantre

and petitioner Calimutan.

In both versions of the events of 04 February 1996 submitted

by the prosecution and the defense, it was the victim Cantre who was
the initial aggressor. He suddenly punched Bulalacao, the helper and
companion of petitioner Calimutan, when they met on the road. The
attack of the victim Cantre was swift and unprovoked, which spurred
petitioner Calimutan into responsive action. Given that this Court
dismisses the claim of petitioner Calimutan that the victim Cantre was
holding a knife, it does take into account that the victim Cantre was
considerably older and bigger, at 26 years of age and with a height of
five feet and nine inches, compared to Bulalacao, the boy he
attacked, who was only 15 years old and stood at about five feet.
Even with his bare hands, the victim Cantre could have hurt
Bulalacao. Petitioner Calimutan sought only to protect Bulalacao and
to stop the assault of the victim Cantre against the latter when he
picked up a stone and threw it at the victim Cantre. The stone was
readily available as a weapon to petitioner Calimutan since the
incident took place on a road. That he threw the stone at the back of
the victim Cantre does not automatically imply treachery on the part
of petitioner Calimutan as it is highly probable that in the midst of the
fray, he threw the stone rashly and impulsively, with no regard as to
the position of the victim Cantre. When the victim Cantre stopped his
aggression after being hit by the stone thrown by petitioner
Calimutan, the latter also desisted from any other act of violence
against the victim Cantre.

The above-described incident could not have taken more than

just a few minutes. It was a very brief scuffle, in which the parties
involved would hardly have the time to ponder upon the most
appropriate course of action to take. With this in mind, this Court

cannot concur in the declaration made by the Court of Appeals that

petitioner Calimutan threw the stone at the victim Cantre as a
retaliatory act. It was evidently a swift and spontaneous reaction to
an unexpected and unprovoked attack by the victim Cantre on
Bulalacao. That Bulalacao was already able to run away from the
victim Cantre may have escaped the notice of the petitioner
Calimutan who, under the pressure of the circumstances, was forced
to act as quickly as possible.

The prosecution did not establish that petitioner Calimutan

threw the stone at the victim Cantre with the specific intent of killing,
or at the very least, of harming the victim Cantre. What is obvious to
this Court was petitioner Calimutans intention to drive away the
attacker who was, at that point, the victim Cantre, and to protect his
helper Bulalacao who was, as earlier described, much younger and
smaller in built than the victim Cantre.[35]

Granting that petitioner Calimutan was impelled by a lawful

objective when he threw the stone at the victim Cantre, his act was
committed with inexcusable lack of precaution. He failed to consider
that a stone the size of a mans fist could inflict substantial injury on
someone. He also miscalculated his own strength, perhaps unaware,
or even completely disbelieving, that he could throw a stone with
such force as to seriously injure, or worse, kill someone, at a quite
lengthy distance of ten meters.

Since it is irrefragable that the stone thrown by petitioner

Calimutan at the victim Cantre was the proximate cause of the latters
death, despite being done with reckless imprudence rather than with
malicious intent, petitioner Calimutan remains civilly liable for such
death. This Court, therefore, retains the reward made by the RTC

and the Court of Appeals to the heirs of the victim Cantre of the
amount of P50,000.00 as civil indemnity for his death and another
P50,000.00 as moral damages.

WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R.

CR No. 23306, dated 29 August 2001, affirming the Decision of the RTC in
Criminal Case No. 8184, dated 19 November 1998, is hereby MODIFIED.
Petitioner Calimutan is found GUILTY beyond reasonable doubt of reckless
imprudence resulting in homicide, under Article 365 of the Revised Penal Code,
and is accordingly sentenced to imprisonment for a minimum period of 4 months
of arresto mayor to a maximum period of two years and one day of prision
correccional. Petitioner Calimutan is further ORDERED to pay the heirs of the
victim Cantre the amount of P50,000.00 as civil indemnity for the latters death
and P50,000.00 as moral damages.

SO ORDERED.

MINITA V. CHICO-NAZARIO

Associate Justice

SECOND DIVISION

[G.R. No. 137268. March 26, 2001]

THE

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

EUTIQUIA CARMEN @ Mother Perpetuala, CELEDONIA
FABIE @ Isabel Fabie, DELIA SIBONGA @ Deding Sibonga,
ALEXANDER SIBONGA @ Nonoy Sibonga, and REYNARIO
NUEZ @ Rey Nuez, accused-appellants.
DECISION

MENDOZA, J.:

This is an appeal from the decisioni[1] of the Regional Trial Court, Branch 14, Cebu
City, finding accused-appellants Eutiquia Carmen @ Mother Perpetuala, Celedonia Fabie
@ Isabel Fabie, Delia Sibonga @ Deding Sibonga, Alexander Sibonga @ Nonoy
Sibonga, and Reynario Nuez @ Rey Nuez guilty of murder and sentencing them to
suffer the penalty of reclusion perpetua and to pay the heirs of the victim the amount of
P50,000.00 as indemnity as well as the costs.
The informationii[2] against accused-appellants alleged:
That on or about the 27th day of January, 1997 at about 2:00 oclock p.m., in the City of
Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused,
conniving and confederating together and mutually helping one another, with deliberate intent,
with intent to kill, with treachery and evident premeditation, did then and there inflict fatal
physical injuries on one Randy Luntayao which injuries caused the death of the said Randy
Luntayao.

Accused-appellants pleaded not guilty to the charge, whereupon they were tried.
The prosecution presented evidence showing the following: At around 2 oclock in
the afternoon of January 27, 1997, Honey Fe Abella, 10, and her friend Frances Claire
Rivera, 7, were playing takyan in front of the house of one Bebing Lastimoso in Quiot,
Pardo, Cebu City, when suddenly they heard a child shout, Tabang ma! (Help
mother!). The cry came from the direction of the house of accused-appellant Carmen,
who is also known in their neighborhood as Mother Perpetuala. The two children ran
towards Mother Perpetualas house.iii[3] What Honey Fe saw on which she testified in
court, is summarized in the decision of the trial court, to wit:
While there[,] she saw a boy, whose name . . . she [later] came to know as one Randy
Luntayao, . . . being immersed head first in a drum of water. Accused Alexander Sibonga was
holding the waist of the body while accused Reynario Nuez held the hands of the boy at the
back. Accused Eutiquia Carmen, Delia Sibonga, and Celedonia Fabie were pushing down the
boys head into the water. She heard the boy shouting Ma, help for two times. Later, she saw
accused Reynario or Rey Nuez tie the boy on the bench with a green rope as big as her little
finger. . . . After that Eutiquia Carmen poured [water from] a plastic container (galon) . . . into the
mouth of the boy. Each time the boy struggled to raise his head, accused Alexander Sibonga
banged the boys head against the bench [to] which the boy was tied down. She even heard the
banging sound everytime the boys head hit the bench. For about five times she heard it.
According to this witness after forcing the boy to drink water, Eutiquia Carmen and accused
Celedonia Fabie alias Isabel Fabie took turns in pounding the boys chest with their clenched
fists. All the time Rey Nuez held down the boys feet to the bench. She also witnessed . . .
Celedonia Fabie dropped her weight, buttocks first, on the body of the boy. Later on, Eutiquia
Carmen ordered Delia or Deding Sibonga to get a knife from the kitchen. Eutiquia Carmen then
slowly plunged the stainless knife on the left side of the boys body and with the use of a plastic
gallon container, the top portion of which was cut out, Eutiquia Carmen [caught] the blood
dripping from the left side of the boys body. Honey Fe heard the moaning coming from the
tortured boy. Much later she saw Nonoy or Alexander Sibonga, Reynario Nuez, Delia Sibonga,
Celedonia Fabie, and Eutiquia Carmen carry the boy into the house. iv[4]

Eddie Luntayao, father of the victim, testified that he has five children, the eldest of
whom, Randy, was 13 years old at the time of the incident. On November 20, 1996,
Randy had a nervous breakdown which Eddie thought was due to Randy having to skip
meals whenever he took the boy with him to the farm. According to Eddie, his son
started talking to himself and laughing. On January 26, 1997, upon the suggestion of
accused-appellant Reynario Nuez, Eddie and his wife Perlita and their three children
(Randy, Jesrel, 7, and Lesyl, 1) went with accused-appellant Nuez to Cebu. They
arrived in Cebu at around 1 oclock in the afternoon of the same day and spent the night
in Nuezs house in Tangke, Talisay.
The following day, they went to the house of accused-appellant Carmen in Quiot,
Pardo,v[5] where all of the accused-appellants were present. Eddie talked to accusedappellant Carmen regarding his sons condition. He was told that the boy was possessed

by a bad spirit, which accused-appellant Carmen said she could exorcise. She warned,
however, that as the spirit might transfer to Eddie, it was best to conduct the healing
prayer without him. Accused-appellants then led Randy out of the house, while Eddie
and his wife and two daughters were locked inside a room in the house.vi[6]
After a while, Eddie heard his son twice shout Ma, tabang! (Mother, help!).
Eddie tried to go out of the room to find out what was happening to his son, but the door
was locked. After about an hour, the Luntayaos were transferred to the prayer room
which was located near the main door of the house.vii[7]
A few hours later, at around 5 oclock in the afternoon, accused-appellants carried
Randy into the prayer room and placed him on the altar. Eddie was shocked by what he
saw. Randys face was bluish and contused, while his tongue was sticking out of his
mouth. It was clear to Eddie that his son was already dead. He wanted to see his sons
body, but he was stopped from doing so by accused-appellant Eutiquia Carmen who told
him not to go near his son because the latter would be resurrected at 7 oclock that
evening.viii[8]
After 7 oclock that evening, accused-appellant Carmen asked a member of her
group to call the funeral parlor and bring a coffin as the child was already dead. It was
arranged that the body would be transferred to the house of accused-appellant Nuez.
Thus, that night, the Luntayao family, accompanied by accused-appellant Nuez, took
Randys body to Nunezs house in Tangke, Talisay. The following day, January 28, 1997,
accused-appellant Nuez told Eddie to go with him to the Talisay Municipal Health
Office to report Randys death and told him to keep quiet or they might not be able to get
the necessary papers for his sons burial. Nuez took care of securing the death
certificate which Eddie signed.ix[9]
At around 3 oclock in the afternoon of January 28, 1997, accused-appellant Carmen
went to Tangke, Talisay to ensure that the body was buried. Eddie and his wife told her
that they preferred to bring their sons body with them to Sikatuna, Isabela, Negros
Occidental but they were told by accused-appellant Carmen that this was not possible as
she and the other accused-appellants might be arrested. That same afternoon, Randy
Luntayao was buried in Tangke, Talisay.x[10]
After Eddie and his family had returned home to Negros Occidental, Eddie sought
assistance from the Bombo Radyo station in Bacolod City which referred him to the
regional office of the National Bureau of Investigation (NBI) in the city. On February 3,
1997, Eddie filed a complaint for murder against accused-appellant Nuez and the other
members of his group.xi[11] He also asked for the exhumation and autopsy of the remains of
his son.xii[12] As the incident took place in Cebu, his complaint was referred to the NBI
office in Cebu City.
Modesto Cajita, head of NBI, Region VII (Cebu), took over the investigation of the
case. He testified that he met with Eddie Luntayao and supervised the exhumation and
autopsy of the body of Randy Luntayao. xiii[13] Cajita testified that he also met with
accused-appellant Carmen and after admitting that she and the other accused-appellants
conducted a pray-over healing session on the victim on January 27, 1997, accusedappellant Carmen refused to give any further statement. Cajita noticed a wooden bench
in the kitchen of Carmens house, which, with Carmens permission, he took with him to
the NBI office for examination. Cajita admitted he did not know the results of the
examination.xiv[14]
Dr. Ronaldo B. Mendez, the NBI medico-legal officer who conducted the autopsy on
Randy Luntayao, testified that he, the victims father, and some NBI agents, exhumed the
victims body on February 20, 1997 at Tangke Catholic Cemetery in the Tangke, Talisay,
Cebu. He conducted the autopsy on the same day and later submitted the following
report (Exhs. E and F):xv[15]
FINDINGS

Body in advanced stage of decomposition wearing a white shirt and shorts wrapped in
printed blanket (white and orange) placed in white wooden coffin and buried underground about
4 feet deep.
Contusion, 3.0 x 4.0 cms. chest, anterior, left side.
Fracture, 3rd rib, left, mid-clavicular line.
Fracture, linear, occipital bone right side extending to the bases of middle cranial fossae right
to left down to the occipital bone, left side.
Fracture, diastatic, lamboidal suture, bilateral.
Internal organs in advanced stage of decomposition.
Cranial vault almost empty.
CAUSE OF DEATH: [The victim] could have died due to the internal effects of a traumatic
head injury and/or traumatic chest injury.

Dr. Mendez testified that the contusion on the victims chest was caused by contact
with a hard blunt instrument. He added that the fracture on the rib was complete while
that found on the base of the skull followed a serrated or uneven pattern. He said that the
latter injury could have been caused by the forcible contact of that part of the body with a
blunt object such as a wooden bench.xvi[16]
On cross-examination, Dr. Mendez admitted that he did not find any stab wound on
the victims body but explained that this could be due to the fact that at the time the body
was exhumed and examined, it was already in an advanced state of decomposition
rendering such wound, if present, unrecognizable.xvii[17]
Accused-appellants did not testify. Instead, the defense presented: (a) Ritsel Blase,
an alleged eyewitness to the incident; (b) Maria Lilina Jimenez, Visitacion Seniega, and
Josefina Abing, alleged former patients of accused-appellant Carmen; (c) Dr. Milagros
Carloto, the municipal health officer of Talisay, Cebu and; (d) Atty. Salvador Solima of
the Cebu City Prosecutors Office.
Ritsel Blase, 21, testified that since 1987 she had been with the group of accusedappellant Carmen, whom she calls Mother Perpetuala. She recounted that at around 2
oclock in the afternoon of January 27, 1997, while she was in the house of accusedappellant Carmen, she saw Eddie Luntayao talking with the latter regarding the treatment
of his son. The boy was later led to the kitchen and given a bath prior to treatment.
After water was poured on the boy, he became unruly prompting accused-appellant
Carmen to decide not to continue with the treatment, but the boys parents allegedly
prevailed upon her to continue. As the boy continued to resist, accused-appellant Carmen
told accused-appellants Delia Sibonga and Celedonia Fabie to help her (Carmen) lay the
boy on a bench. As the child resisted all the more, Eddie Luntayao allegedly told the
group to tie the boy to the bench. Accused-appellant Delia Sibonga got hold of a nylon
rope which was used to tie the child to the bench. Then Carmen, Delia Sibonga, and
Fabie prayed over the child, but as the latter started hitting his head against the bench,
Carmen asked Nuez to place his hands under the boys head to cushion the impact of the
blow everytime the child brought down his head. To stop the boy from struggling,
accused-appellant Fabie held the boys legs, while accused-appellant Nuez held his
shoulders. After praying over the boy, the latter was released and carried inside the
house. Accused-appellant Alexander Sibonga, who had arrived, helped carry the boy
inside. After this, Blase said she no longer knew what happened inside the house as she
stayed outside to finish the laundry.xviii[18]
Blase testified that the parents of Randy Luntayao witnessed the pray-over of their
son from beginning to end. She denied that accused-appellants Fabie and Delia Sibonga
struck the victim on his chest with their fists. According to her, neither did accusedappellant Carmen stab the boy. She claimed that Randy was still alive when he was taken
inside the house.xix[19]

The defense presented Maria Lilia Jimenez, 20, Visitacion Seniega, 39, and Josefina
Abing, 39, who testified that accused-appellant Carmen had cured them of their illnesses
by merely praying over them and without applying any form of physical violence on
them.xx[20]
Milagros Carloto, Municipal Health Officer of Talisay, Cebu, was also presented by
the defense to testify on the death certificate she issued in which she indicated that Randy
Luntayao died of pneumonia. According to her, Eddie Luntayao came to her office on
January 28, 1997 to ask for the issuance of a death certificate for his son Randy Luntayao
who had allegedly suffered from cough and fever.xxi[21]
On cross-examination, Dr. Carloto admitted that she never saw the body of the
victim as she merely relied on what she had been told by Eddie Luntayao. She said that it
was a midwife, Mrs. Revina Laviosa, who examined the victims body.xxii[22]
The last witness for the defense, Assistant City Prosecutor Salvador Solima, was
presented to identify the resolution he had prepared (Exh. 8)xxiii[23] on the re-investigation
of the case in which he recommended the dismissal of the charge against accusedappellants. His testimony was dispensed with, however, as the prosecution stipulated on
the matters Solima was going to testify with the qualification that Solimas
recommendation was disapproved by City Prosecutor Primo Miro.xxiv[24]
The prosecution recalled Eddie Luntayao to the stand to rebut the testimonies of
Ritsel Blase and Dr. Milagros Carloto. Eddie denied having witnessed what accusedappellants did to his son. He reiterated his earlier claim that after accused-appellants had
taken Randy, he and his wife and two daughters were locked inside a room. He disputed
Blases statement that his son was still alive when he was brought into the prayer room.
He said he saw that his sons head slumped while being carried by accused-appellants. xxv
[25]

As for the testimony of Dr. Carloto, Eddie admitted having talked with her when he
and accused-appellant Nuez went to her office on January 28, 1997. However, he
denied having told her that his son was suffering from fever and cough as he told her that
Randy had a nervous breakdown. He took exception to Dr. Carlotos statement that he
was alone when he went to her office because it was Nuez who insisted that he (Eddie)
accompany him in order to secure the death certificate.xxvi[26]
On November 18, 1998, the trial court rendered a decision, the dispositive portion of
which states:
WHEREFORE, in view of the foregoing facts and circumstances, [the] accused are all found
guilty beyond reasonable doubt of the crime of Murder and are hereby [sentenced] to suffer the
penalty of RECLUSION PERPETUA, with the accessory penalties of the law; to indemnify
jointly and severally the heirs of the deceased Randy Luntayao in the sum of P50,000.00; and to
pay the costs. The accused, are, however, credited in full during the whole period of their
detention provided they will signify in writing that they will abide by all the rules and regulations
of the penitentiary.xxvii[27]

In finding accused-appellants guilty of murder, the trial court stated:

Killing a person with treachery is murder even if there is no intent to kill. When death
occurs, it is presumed to be the natural consequence of physical injuries inflicted. Since the
defendant did commit the crime with treachery, he is guilty of murder, because of the voluntary
presence of the qualifying circumstance of treachery (P v. Cagoco, 58 Phil. 530). All the accused
in the case at bar had contributed different acts in mercilessly inflicting injuries to the victim. For
having immersed the head of the victim into the barrel of water, all the herein accused should be
held responsible for all the consequences even if the result be different from that which was
intended (Art. 4, par. 1, RPC). It is pointed out that in P. v. Cagoco, 58 Phil. 524, even if there was
no intent to kill[,] in inflicting physical injuries with treachery, the accused in that case was
convicted of murder. In murder qualified by treachery, it is required only that there is treachery in
the attack, and this is true even if the offender has no intent to kill the person assaulted. Under
the guise of a ritual or treatment, the accused should not have intentionally immersed upside
down the head of Randy Luntayao into a barrel of water; banged his head against the bench;

pounded his chest with fists, or plunged a kitchen knife to his side so that blood would come out
for these acts would surely cause death to the victim. . . .
One who commits an intentional felony is responsible for all the consequences which may
naturally and logically result therefrom, whether foreseen or intended or not. Ordinarily, when a
person commits a felony with malice, he intends the consequences of his felonious act. In view
of paragraph 1 of Art. 4, a person committing a felony is criminally liable although the
consequences of his felonious acts are not intended by him. . . .
....
Intent is presumed from the commission of an unlawful act. The presumption of criminal
intent may arise from the proof of the criminal act and it is for the accused to rebut this
presumption. In the case at bar, there is enough evidence that the accused confederated with one
another in inflicting physical harm to the victim (an illegal act). These acts were intentional, and
the wrong done resulted in the death of their victim. Hence, they are liable for all the direct and
natural consequences of their unlawful act, even if the ultimate result had not been intended. xxviii[28]

Hence, this appeal. Accused-appellants allege that the trial court erred in convicting
them of murder.xxix[29]
First. It would appear that accused-appellants are members of a cult and that the
bizarre ritual performed over the victim was consented to by the victims parents. With
the permission of the victims parents, accused-appellant Carmen, together with the other
accused-appellants, proceeded to subject the boy to a treatment calculated to drive the
bad spirit from the boys body. Unfortunately, the strange procedure resulted in the
death of the boy. Thus, accused-appellants had no criminal intent to kill the boy. Their
liability arises from their reckless imprudence because they ought that to know their
actions would not bring about the cure. They are, therefore, guilty of reckless
imprudence resulting in homicide and not of murder.
Art. 365 of the Revised Penal Code, as amended, states that reckless imprudence
consists in voluntarily, but without malice, doing or failing to do an act from which
material damage results by reason of inexcusable lack of precaution on the part of the
person performing such act. Compared to intentional felonies, such as homicide or
murder, what takes the place of the element of malice or intention to commit a wrong or
evil is the failure of the offender to take precautions due to lack of skill taking into
account his employment, or occupation, degree of intelligence, physical condition, and
other circumstances regarding persons, time, and place.
The elements of reckless imprudence are apparent in the acts done by accusedappellants which, because of their lack of medical skill in treating the victim of his
alleged ailment, resulted in the latters death. As already stated, accused-appellants, none
of whom is a medical practitioner, belong to a religious group, known as the Missionaries
of Our Lady of Fatima, which is engaged in faith healing.
In United States v. Divino,xxx[30] the accused, who was not a licensed physician, in an
attempt to cure the victim of ulcers in her feet, wrapped a piece of clothing which had
been soaked in petroleum around the victims feet and then lighted the clothing, thereby
causing injuries to the victim. The Court held the accused liable for reckless imprudence
resulting in physical injuries. It was noted that the accused had no intention to cause an
evil but rather to remedy the victims ailment.
In another case, People v. Vda. de Golez,xxxi[31] the Court ruled that the proper charge
to file against a non-medical practitioner, who had treated the victim despite the fact that
she did not possess the necessary technical knowledge or skill to do so and caused the
latters death, was homicide through reckless imprudence.
The trial courts reliance on the rule that criminal intent is presumed from the
commission of an unlawful act is untenable because such presumption only holds in the
absence of proof to the contrary.xxxii[32] The facts of the case indubitably show the absence
of intent to kill on the part of the accused-appellants. Indeed, the trial courts findings
can be sustained only if the circumstances of the case are ignored and the Court limits

itself to the time when accused-appellants undertook their unauthorized treatment of

the victim. Obviously, such an evaluation of the case cannot be allowed.
Consequently, treachery cannot be appreciated for in the absence of intent to kill,
there is no treachery or the deliberate employment of means, methods, and manner of
execution to ensure the safety of the accused from the defensive or retaliatory attacks
coming from the victim.xxxiii[33] Viewed in this light, the acts which the trial court saw as
manifestations of treachery in fact relate to efforts by accused-appellants to restrain
Randy Luntayao so that they can effect the cure on him.
On the other hand, there is no merit in accused-appellants contention that the
testimony of prosecution eyewitness Honey Fe Abella is not credible. The Court is more
than convinced of Honey Fes credibility. Her testimony is clear, straightforward, and is
far from having been coached or contrived. She was only a few meters away from the
kitchen where accused-appellants conducted their pray-over healing session not to
mention that she had a good vantage point as the kitchen had no roof nor walls but only a
pantry. Her testimony was corroborated by the autopsy findings of Dr. Mendez who,
consistent with Honey Fes testimony, noted fractures on the third left rib and on the base
of the victims skull. With regard to Dr. Mendezs failure to find any stab wound in the
victims body, he himself had explained that such could be due to the fact that at the time
the autopsy was conducted, the cadaver was already in an advanced state of
decomposition. Randy Luntayaos cadaver was exhumed 24 days after it had been
buried. Considering the length of time which had elapsed and the fact that the cadaver
had not been embalmed, it was very likely that the soft tissues had so decomposed that, as
Dr. Mendez said, it was no longer possible to determine whether there was a stab wound.
As for the other points raised by accused-appellants to detract the credibility of Honey
Fes testimony, the same appear to be only minor and trivial at best.
Accused-appellants contend that the failure of the prosecution to present the
testimony of Frances Claire Rivera as well as the knife used in stabbing Randy Luntayao
puts in doubt the prosecutions evidence. We do not think so. The presentation of the
knife in evidence is not indispensable.xxxiv[34]
Finally, accused-appellants make much of the fact that although the case was tried
under Judge Renato C. Dacudao, the decision was rendered by Judge Galicano
Arriesgado who took over the case after the prosecution and the defense had rested their
cases.xxxv[35] However, the fact that the judge who wrote the decision did not hear the
testimonies of the witnesses does not make him less competent to render a decision, since
his ruling is based on the records of the case and the transcript of stenographic notes of
the testimonies of the witnesses.xxxvi[36]
Second. The question now is whether accused-appellants can be held liable for
reckless imprudence resulting in homicide, considering that the information charges them
with murder. We hold that they can.
Rule 120 of the Revised Rules of Criminal Procedure provides in pertinent parts:
SEC. 4. Judgment in case of variance between allegation and proof. When there is
variance between the offense charged in the complaint or information and that proved, and the
offense as charged is included in or necessarily includes the offense proved, the accused shall be
convicted of the offense proved which is included in the offense charged, or of the offense
charged which is included in the offense proved.
SEC. 5. When an offense includes or is included in another. An offense charged
necessarily includes the offense proved when some of the essential elements or ingredients of the
former, as alleged in the complaint or information, constitute the latter. And an offense charged is
necessarily included in the offense proved, when the essential ingredients of the former constitute
or form part of those constituting the latter.

In Samson v. Court of Appeals,xxxvii[37] the accused were charged with, and convicted of,
estafa through falsification of public document. The Court of Appeals modified the
judgment and held one of the accused liable for estafa through falsification by

negligence. On appeal, it was contended that the appeals court erred in holding the
accused liable for estafa through negligence because the information charged him with
having wilfully committed estafa. In overruling this contention, the Court held:
While a criminal negligent act is not a simple modality of a willful crime, as we held in
Quizon v. Justice of the Peace of Bacolor, G.R. No. L-6641, July 28, 1955, but a distinct crime in
itself, 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. . . .
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.

In People v. Fernando,xxxviii[38] the accused was charged with, and convicted of, murder
by the trial court. On appeal, this Court modified the judgment and held the accused
liable for reckless imprudence resulting in homicide after finding that he did not act with
criminal intent.
Third. Coming now to the imposable penalty, under Art. 365, reckless imprudence
resulting in homicide is punishable by arresto mayor in its maximum period to prision
correccional in its medium period. In this case, taking into account the pertinent
provisions of Indeterminate Sentence Law, the accused-appellants should suffer the
penalty of four (4) months of arresto mayor, as minimum, to four (4) years and two (2)
months of prision correccional, as maximum.
As to their civil liability, accused-appellants should pay the heirs of Randy Luntayao
an indemnity in the amount of P50,000.00 and moral damages also in the amount of
P50,000.00.xxxix[39] In addition, they should pay exemplary damages in the amount of
P30,000.00 in view of accused-appellants gross negligence in attempting to cure the
victim without a license to practice medicine and to give an example or correction for the
public good.xl[40]
WHEREFORE, the decision of the Regional Trial Court, Branch 14, Cebu City, is
AFFIRMED with the MODIFICATION that accused-appellants are hereby declared
guilty of reckless imprudence resulting in homicide and are each sentenced to suffer an
indeterminate prison term of four (4) months of arresto mayor, as minimum, to four (4)
years and two (2) months of prision correccional, as maximum. In addition, accusedappellants are ORDERED jointly and severally to pay the heirs of Randy Luntayao
indemnity in the amount of P50,000.00, moral damages in the amount of P50,000.00, and
exemplary damages in the amount of P30,000.00.
SO ORDERED.
Bellosillo, (Chairman

[G.R. No. 149725. October 23, 2003]

OSCAR MAGNO, petitioner, vs. THE PEOPLE OF THE
PHILIPPINES, respondent.

DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari under Rule 45 of the 1997
Rules of Civil Procedure for the reversal of the decision [1] of the Court
of Appeals in CA-G.R. CR No. 22399 reversing the decision [2] of the
Regional Trial Court of Ifugao, Branch 14, in Criminal Case No. 808.
The Indictment
The petitioner was charged with homicide in an Information, the
accusatory portion of which reads:
That on or about the 4th day of June, 1992, in the Municipality of
Lagawe, Ifugao, and within the jurisdiction of the Honorable Court,
the above-named accused with intent to kill, and without any
justifiable reason whatsoever DID then and there willfully, unlawfully
and feloniously inflict physical injuries on the different parts of the
body of Dov Lourenz Dunuan which directly caused the latters death.
CONTRARY TO LAW.[3]
On arraignment, the petitioner, assisted by counsel, pleaded not
guilty.
The Case for the Prosecution
As culled by the trial court, the case stemmed from the following
facts:
In the early evening of June 4, 1992, Buss, Gilbert Baccay and
Herman Dinamling were drinking liquor (beer) inside the backroom of
the restaurant owned and managed by Emerita Danao, known then
as the Top Side Restaurant. This restaurant faces the concrete house
of the accused and their distance is more or less 10 meters with the
national highway separating both buildings.
There were other customers also drinking. While the liquor binge of
the three was on-going, Dov arrived and joined them as he was
invited. Moments later, Dov went to the juke box and played a tune
and continued taking in beer just as the rest were doing. After
consuming the bottle, he informed the group that he will go to the
other side (referring to the house of the accused which has a store in
it), but he was followed by Gilbert who stayed up to the main door of
the restaurant Buss and Herman Dinamling were left behind drinking.
Realizing that Gilbert was staying outside long, Buss told Herman to
stay put as he was going out to see the two. Reaching outside, he
saw Gilbert standing just near the Platinum Office (an insurance
office also located in the house of the accused) and near him was
Dov.
Buss decided to join the two who were still in front of the house of the
accused. Gilbert then intimated to Dov that Buss be his companion to
which Dov agreed. So Gilbert returned back to the restaurant while
Dov and Buss entered the store of Mr. Magno. Upon entering, Buss

saw the accused at the counter, the maid was situated at the kitchen.
Meanwhile, Dov sat near a table while Buss went to the counter to
order for some soft drinks (cola-cola). Mr. Magno did not answer but
at this moment, Olen (who is actually Lorraine Magno), daughter of
the accused, came out and told Buss that their soft drinks were
consumed but Buss retorted that earlier, he bought some soft drinks
and how come said drinks are now not available. With the exchange
of words between Olen and Buss, accused eyed sharply the two
intoxicated youngsters. Buss then urged and tried to pull Dov to get
out but the latter refused because the former saw the accused getting
angry. Dov persisted in staying and in fact removed Buss hold on
him. By this time, feeling the necessity of urination, Buss went outside
to relieve himself. After that, he turned to call Dov but when he was in
between the house of Cora Martin and that of the house of the
accused as both houses were very adjacent and likewise both facing
the Top Side Restaurant, he saw the accused strangle Dov. Aside
from this, he saw further Mr. Magno landing more blows on Dovs
chest and twisted the latters hand. While this was taking place, he
saw Dov with eyes and mouth opened due to the strangling and the
boxes thrown because he was four meters more or less from the
place where accused inflicted the injuries which was beside the
accuseds ISUZU cargo truck parked in front of the same house on a
sloping cemented portion.
Shocked by what he saw, he ran away proceeding to the nearby Top
Side Restaurant, then went to the direction of the Don Bosco High
School which was also very near and as he was about to proceed to
Lagawe Proper (a nearby barangay), he thought his companions left
the restaurant, so he returned back as fast as he could, opened the
door, sat down and leaned his head on a table. As he was tongue
tied, he did not tell anyone what he saw but at this very instance,
shouts were heard and the voice of Emerita Danao yelling Its Dov,
its Dov , its Dov, was in particular the voice he heard.
Hearing this, Buss then went out and saw his companions Herman
and Gilbert carrying the body of Dov just near the store of the
accused. He noticed further that the parked truck of the same
accused was nowhere to be seen, so he helped his two friends hold
the body of Dov and saw blood oozing from the latters nose and
mouth (Exhibits A, A-1, A-2).
Meanwhile, Gilbert Baccay, after leaving Buss and Dov at the
frontage of accuseds residence, returned to the restaurant to join
Herman Dinamling in the drinking and while telling stories and
listening to the music, they suddenly heard a shout outside, and
Gilbert saw Mrs. Emerita Danao crying. He immediately went out of
the restaurant and saw his friend Dov sprawled on the cemented
portion of the frontage of Magnos house just beside the paved
national road. Hurriedly, he went to Dov, turned and took hold of him
and asked Dov, what happened to you? but the latter did not move
and answer. He saw Dovs eyes blankly open and blood was oozing

from his nose. Then Herman Dinamling arrived but Gilbert still asked
Dov what happened, but the little son of Emerita Danao who was
present pointed to the accused, who by then just arrived still driving
the big vehicle, as . That one who did it to him. The accused next
told them to look for a tricycle to bring Dov to the hospital. (Exhibit
K and sub-markings). After saying this, accused drove said truck
and proceeded towards the direction of the Don Bosco Teachers
Quarters passing the Top Side Restaurant. Mrs. Emerita Danao by
then called a tricycle to rush Dov to the hospital. Buss and Gilbert
rushed to inform Dovs parents what transpired.
Upon the request of the relatives of the victim, coursed through
official channels (Exhibits B, C, D, and E), Dr. Ruben
Angobung, Medico-Legal Officer, NBI, Ilagan, Isabela, conducted an
autopsy or exhumation on the body of Dov. (Exhibits F, G, H and
its sub-markings, I, J). Hereunder are his findings and the extent of
the injuries, to wit:
PHYSICAL INJURIES:
CONTUSED ABRASIONS:
1. 3.0 x 2.0 cms., cheek, left aspect.
2. Multi-linear; irregularly distributed in a horizontal
fashion, covering an area of 5.0 x 1.0 cm., located more
at the anterior aspect of the neck tapering irregularly on
the left side.
3. Confluent; measuring 10.0 x 7.5 cms., located at the
anterior upper-half, chest, between the anterior fold and
the nipple, right.
4. 1.0 x 1.0 cm., located at the anterior chest wall, midline.
5. 2.5 x 1.5 cms., anterior upper-half, chest left side.
6. 1.5 x 0.3 cm., posterior aspect, upper midline thorax;
7. 4.5 x 1.0 cm., posterior aspect, medial to inner left scapula
margin, left.
8. 22.0 x 3.0 cms., postero-lateral aspect, forearm, left.
CONTUSIONS:
1. 10.0 x 1.0 cm., postero-lateral aspect, external ear, right.
2. 10.0 x 4.5 cms., posterior-proximal third, arm, left.
3. 4.0 x 1.0 cm., anterior wrist, right.
HEMATOMA:
1. Subcutaneous and intramuscular, moderate in amount,
anterior chest, right side above 3rd, 4th and 5th anterior
ribs.
2. Subcutaneous and intramuscular, severe, located at the
anterior chest, above 2nd and 3rd anterior ribs, left.
FRACTURED:
1. Second anterior rib, complete along mid-clavicular line, left.
2. Third anterior rib, complete at costo-chondral junction, left.

INTERNAL ORGAN INVOLVEMENT:

1. Lungs, left contused at its anterior aspect, upper and lower
lobes.
2. Spleen, superficial ruptures with ramifications at its dome.
3. Brain and other visceral organs, pale, but otherwise unremarkable.
HEMORRHAGE:
Intra-thoracic, severe; Intra-peritoneal, minimal.
Stomach, contained small amount of partially digested
rice and
other food particles.
CAUSE OF DEATH:
Hemorrhagic shock; Traumatic. (Exhibit G)
Dovs father Manuel Dunuan, Jr., claimed that his youngest son died
on June 4, 1992 and Funeraria Gambito, Bayombong, Nueva Vizcaya
was contacted for the funeral services. In the process, the family paid
P30,000.00 covered by a receipt issued by said funeral parlor (Exhibit
L). During the wake and for the duration of 5 days, one pig valued at
P4,000.00 was butchered for a day except the 3 rd and 5th day where
additional pigs of more or less the same value were likewise
butchered for the many visitors and mourners. For the duration of the
novena, one cow worth P10,000.00 and one pig worth P4,000.00
were butchered for the people. One sack of rice valued at P600.00
per day was consumed for the duration of five days.
All the members of the family suffered heavily and they experienced
mental anguish, sadness and tortured thoughts. The loss of Dov,
being the youngest and closest to all affected Dovs elder sister
Pamela such that she was referred and confined at the Makati
Medical Center for psychiatric care and the family spent P60,000.00
plus another P20,000.00 for the food, travel and other related
expenses incurred while Pamela was confined. The other sister had
to drop all her subjects at the University of Baguio, Baguio City,
because she cant accept the loss of her little brother.
His wife, who has a fondness to Dov had to take a leave of absence
from her work. They have now recovered from the loss of her son but
they still suffer whenever Dov is remembered.[4]
The Case for the Petitioner
The case for the petitioner as culled from the evidence is as follows:
The residence of the accused is a three-storey house. The first floor
could not be seen on the street, but the second floor is on level with
the national road (Rizal Avenue). The second floor is where the store
(sari-sari and snack house) is located and also where the Platinum
Office is stationed. The third floor is where the family of the accused
used as their residence.

On June 4, 1992, Jun Mar Danao was then 10 years old; Nerry Ann
Bravo a niece of Mr. and Mrs. Magno, was also ten years old and
Lorraine Magno, daughter of the accused, was then 12 years old.
Between 6:00 to 7:00 p.m. of June 4, 1992, the store of the accused
was opened and Lorraine Magno and her cousin Nerry Ann Bravo
together with the accused were inside the store. Lorraine and Nerry
were sitting just behind the counter and attending to the store for any
customer. The accused was reading a newspaper at the counter. Two
persons entered the store and they were Dov and Buss who were
drunk because of the smell of liquor and their swaying movements.
They seated themselves beside one of the tables, and they asked for
soft drinks (coke) from Lorraine but she told them that their soft drinks
were consumed. Buss stood up and called Dov come now but Dov
answered you go, so Buss left Dov. Dov stood up and went to the
counter and looked at the accused who was near the counter reading
a newspaper. The accused advised Dov in a soft tone to go home
because he was drunk. Dov went out. Mr. Magno ordered Nerry and
Lorraine to close the store but it was the latter who closed the
accordion door and a space of two feet was left opened because Dov
was forcing the door to be opened for him to tell something to the
accused. Dov was telling Lorraine Can I talk to your papa? to which
Lorraine retorted, What will you talk about? Dov turned to leave, so
Lorraine shut the accordion door.
Moments later, they heard banging sounds particularly the sound of
stones thrown at the accordion door. The accused stood up as he
was surprised by the stoning and opened the same door. The
accused went out looking for anybody who stoned. He went to the
street while Lorraine followed his father but she stayed just at the
accordion door while Nerry Ann Bravo was at her back. They saw
nobody on the street except the accused. Then immediately accused
passed by the front of the Isuzu truck parked in front of the store of
the accused and got to the drivers seat, switched on the light, started
the engine and proceeded to the plaza turning in the right direction.
Before the accused drove away, Lorraine noticed a boy under the
truck crawling towards her so she screamed to her father to stop the
truck but her father did not hear and sped off, leaving this boy in the
same spot where the truck was parked. Lorraine went near the boy
and noticed him to be Dov Dunuan, as if he was sleeping and not
moving. Nerry Ann Bravo saw that the person was ran over by the
last wheel of the truck. Lorraine ran to the Topside Restaurant to call
for help and she met Emerita Danao on the steps. The latter followed
Lorraine and both of them went to the body of Dov and Emerita
Danao was crying. Mrs. Danao then lifted the head of the victim and
rested it again on the ground, while she was looking for a tricycle to
rush Dov to the hospital. A few seconds, the accused riding on the
same truck arrived and appeared surprised as to what happened.
Lorraine informed him that Dov was ran over. The accused then told
them to look for a tricycle and bring him to the hospital while the

accused went to report the incident to the police. Emerita Danao and
Emilio Bugatti brought Dov to the hospital but Mr. Bugatti dropped by
at the Provincial Headquarters. (Exhibits 10, 10-A, 11 and 11A).
Nerry Ann and Lorraine never saw any strangulation made by the
accused on the victim, nor did they see any mauling or boxing nor a
quarrel between the accused and victim.
At about this time between 6:00 to 7:00 p.m. of June 4, 1992, Jun
Mar Danao was sitting at the step located in front of their house when
somebody threw a stone at the house of the accused, so he went
inside and peeped through the window of their sala and saw the late
Dov at the front of the house of the accused. That Dov was standing
there and suddenly he ran under the Isuzu truck parked just in front of
the store of the accused. Just then, the accused and his daughter
Olen or Lorraine came out from the store. The accused went to the
edge of the road as if he was looking for somebody, then went and
entered the drivers seat, started the engine and was going to the
plaza. When the truck left, he saw Dov lying down on the ground
where the truck came from, so he ran to her mother and shouted Ma,
Dov Dov was ran over by the truck.
Mrs. Emerita Danao, by that time was busy doing kitchen chores and
at the same time attending to some customers who were drinking and
among them were Gilbert Baccay, Herman Dinamling, and Dennis
Baliti and his group. Not long after, Buss entered together with Dov
both using separate doors all located at the back of the restaurant but
before their entrance, Buss and Dov were playing throwing stones at
each other also at the back of the restaurant.
When Dov entered, she cautioned him to go home because the latter
was a little bit drunk. Buss was likewise observed to be under the
influence of liquor. These two friends proceeded to where Gilbert and
Herman were seated and they ordered beer. The restaurant, pursuant
to an Ordinance, was supposed to close at 7:00 p.m., so she told the
group of Buss to leave as soon as they finish their last order. She
continued her work in the kitchen when suddenly she heard her son
shouting Dov was ran over by a vehicle. After hearing this, she
rushed to the front door and also heard Olen (Lorraine Magno) saying
you come and see Dov because he was ran over by my daddy, the
truck of my Daddy. When she went down to see Dov, she noticed
the parked truck she usually sees in front of the house of the accused
was not there, so she held again the head of Dov and tried to look for
a tricycle. She observed Dov a little bit unconscious and not talking
but she kept looking around for a ride. She returned back to her
restaurant to ask for help. She found Buss lying his head down on a
table so she shook him and told him that please go to the house of
Dov Dunuan and ask the parents to come. Buss was awakened
from his sleep and he was surprised and said Neh, and then ran to
the direction of the house of Dov. (Exhibit M for the prosecution

which is the Affidavit of Emerita Danao). Just then the truck of the
accused arrived and the latter appeared surprised but he was told by
his daughter, Dov was ran over by the truck. The accused told them
to look for a vehicle to bring Dov to the hospital while he will report to
the police.
Finally, she found a tricycle and rushed Dov to the hospital together
with some companions.
SPO3 Agustin Nabanalan was then on duty in the early evening of
June 4, 1992. At around 7:00 p.m., accused Oscar Magno, driving his
Isuzu truck, appeared before the Lagawe PNP Station particularly
appearing before him who was then the assigned investigating officer
at that time. The latter inquired from the accused and he was told
that the accused accidentally ran over Dov Lourenz Dunuan in front
of accuseds residence. The accused stayed at the station until the
following morning for security reasons and to surrender himself.
Based from his interview with the accused and from what he gathered
at the crime scene when they later went that evening, he prepared a
spot report (Exhibit 7, 8 and 9) which basically involved a
vehicular accident. His findings were:
Initial investigation conducted by this Police Station reveals that
allegedly the victim hid himself under the same vehicle which was
parked and without the knowledge of the driver of his presence, he
drove the vehicle thus the incident happened (Exhibit 7-A)
He has submitted to higher authorities a progress report stating
therein that the relatives of the victim will be responsible in filing the
case directly in Court or with the Provincial Prosecutors Office. But
despite this, they continued the investigation for additional evidence
but no one appeared to give his/her statements. Except for the spot
report he prepared, nothing was done until they were called by Atty.
Evelyn Dunuan who interviewed them and thereafter, she prepared
an affidavit and they were given time to correct the same. After they
made the necessary corrections, they had it subscribed before they
affixed their signatures (Exhibit 6 Joint Affidavit of Gabriel
Guinanoy, Edmundo Pinkihan, Agustin Nabanalan and Orlando
Bandao).
He likewise stated that what was narrated by the accused was
entered in the police blotter but the entry in the blotter was missing.
Not only that, almost one-half of the pages was missing from the
blotter reason for which he could not bring to Court the excerpt of the
blotter or the blotter itself. In fact, the entries covering the pages from
January to November, 1992 do not exist and he cannot explain how
the pages containing the entries were missing. Worse, three months
after the death of Dov, he was relieved and re-assigned at the Patrol
Center so that all the records were left at the office. In one way or the
other, the head of their investigation section SPO3 Clemencio

Kimmayong and his fellow investigation officers were also relieved.

SPO3 Orlando Somera was the replacement as Chief of that section.
SPO1 Orlando Bandao then off-duty in the early evening of June 4,
1992, was at his house at Poblacion West, Lagawe, Ifugao. It was
getting dark and then their Chief Inspector Lt. Pascua dropped by and
he was told that an accident happened. Both of them proceeded to
the Ifugao Provincial Hospital. Reaching the hospital, they proceeded
to the emergency room and heard Dr. Pasigon declaring that Dov
Dunuan was already dead. There were several people inside the
hospital and he just inquired who was the suspect and somebody
mentioned the name of Oscar Magno the accused in this case.
Both of them immediately returned to the PNP Station where they
found Oscar Magno already ahead of them. Mr. Bandao came to
know that the accused was already interviewed, so he took also the
chance to conduct his interview. From his interview, herein witness
gathered that accused came to know that Dov was ran over from his
daughter Lorraine Magno, reason for which he surrendered to the
police authority. That this information was given by the accused to
herein witness about 20 to 30 minutes from the time the incident
occurred.
Mr. Bandao, together with Lt. Pascua, and some policemen
proceeded to the situs of the incident, and while there a certain Emilio
Bugatti, a close neighbor of the accused, approached them and
relayed the information that her daughter Abbigail then 6 years more
or less had seen the incident.
Bandao and the group then entered the house of Emilio Bugatti and
Abbigail was interviewed. The latter told them that the late Dov was
peeping inside the house of the accused and when accused came
out, Dov hid under the truck which was parked in front of the same
house. The accused went to the street to look for somebody, then
returned back to the truck and started the engine and when the truck
moved away, she saw Dov lying at the cemented parking space
fronting the house.
Bandao still testified that Busa, who was brought to the police station
by one of the sons of Mr. Gallman and a relative of the victim, when
he interviewed him, Buss accordingly related that he had not
witnessed the incident.
He averred that he had no hand in the preparation of the spot report.
It was Officer Agustin Nabanalan who prepared said report. No formal
or final investigation was done on the case because they were told by
their superiors to desist as they were informed that the family of the
victim and one Atty. Evelyn Dunuan will be the one to file the case
with the proper agency. It was unusual for the PNP to desist from
further investigation but he was told to stop the conduct of
investigation by his superiors.

He was one of those relieved and the records of the case surrounding
the death of Dov remained intact but when they were re-assigned,
whenever he would request for the documents, nothing is available to
him.
Chief Inspector Santiago Dunuan replaced Chief Inspector Pascua
and the former is the uncle of the deceased Dov.
Dr. Ronald Bandonill, Medico-Legal Officer, NBI-CAR, Baguio City, as
an expert witness affirmed some findings of prosecution expert
witness Dr. Ruben Angobung, NBI, Ilagan, Isabela, specifically the
findings on contused abrasions No. 2:
Multi-linear; irregularly distributed in a horizontal fashion, covering an
area of 5.0 x 1.0 cm., located more at the anterior aspect of the neck
tapering irregularly on the left side.
and which the prosecution claims to be evidence of strangulation but
herein witness agreed with Dr. Angobung statements that the abovementioned injury is not a strangulation wound, and that the word
multi-linear is usually found in victims of vehicular accidents.
Examining the exhumation report of Dr. Angobung, he didnt see any
signs which are attributed to strangulation.
Then in wound No. 3.
Confluent; measuring 10.0 x 7.5 cm., located at the anterior upperhalf chest, between the anterior fold and the nipple right.
said doctor agrees with Dr. Angobungs claim that such wound on the
chest was not caused or produced by the bare fist of a human being.
Taking the totality of the exhumation findings of Dr. Ruben Angobung,
he agrees with the statements of the former that the
wounds/contusions/abrasions listed are compatible with that of the
injuries caused or introduced by a slow moving vehicle. [5]
After due proceedings, the trial court rendered judgment convicting
the petitioner of homicide under Article 249 of the Revised Penal
Code, the decretal portion of which reads:
From the foregoing premises, the Court finds that the prosecution
was able to establish the guilt of the accused Oscar Magno beyond
reasonable doubt and accordingly, he is hereby sentenced to suffer
the penalty of reclusion temporal. Applying the Indeterminate
Sentence Law, he is sentenced to serve imprisonment of from 10
years and one day to 12 years and 6 months of reclusion temporal in
its minimum period.
He is further ordered to pay the heirs of the late Dov Lourenz
Dunuan, the indemnity of P50,000.00. Likewise, he is also ordered to
pay said heirs the following:
A)

P117,000.00 representing the actual damages;

B)
P50,000.00 moral damages;
C)
P15,000.00 exemplary damages; and

D)

to pay the costs.

SO ORDERED.[6]
The petitioner appealed to the Court of Appeals (CA) contending that
he deserved acquittal of the crime charged. The CA rendered
judgment reversing the decision of the RTC and finding the petitioner
guilty beyond reasonable doubt of reckless imprudence resulting in
homicide under Article 365 of the Revised Penal Code. The decretal
portion of the decision of the CA reads:
WHEREFORE, premises considered, the Decision appealed from is
hereby SET ASIDE and anew one entered, finding the accusedappellant Oscar Magno GUILTY beyond reasonable doubt of the
crime of RECKLESS IMPRUDENCE RESULTING IN HOMICIDE
punishable under Article 365 of the Revised Penal Code. Accusedappellant Oscar Magno is hereby sentenced to suffer an
indeterminate imprisonment of One (1) Year, Seven (7) months and
Eleven (11) days of prision correccional, as minimum, to Two (2)
years, Ten (10) months and Twenty (20) days of prision
correccional, as maximum, and to pay the heirs of the late Dov
Lourenz Dunuan, the sum of P75,000.00 as indemnity for the death
of the victim. Accused-appellant is likewise ordered to pay said heirs
P117,000.00 as actual damages plus costs.
SO ORDERED.[7]
The petitioners motion for reconsideration of the decision was denied
by the CA.
Before this Court, the petitioner assails the decision of the CA and
prays for the reversal thereof, contending that the Court of Appeals
erred in finding him guilty beyond reasonable doubt of reckless
imprudence resulting in homicide on a charge of homicide committed
with dolo or with malice.[8]
The Petitioner prays ex abundentia cautela that if this Court sustains
the decision of the Court of Appeals, he be granted probation. He
appended a copy of his petition for probation to his petition in this
Court. He prays the Court that:
a. The case against your petitioner OSCAR MAGNO be dismissed
because he cannot be convicted for Reckless Imprudence resulting in
Homicide as the said charge is not included in the original charge of
Homicide; WITHOUT PREJUDICE to the filing of the proper charges
and before the proper courts in accordance with the guidelines
implied by the Decision of the Honorable COURT OF APPEALS on
what should be the proper offense charged;
b. Or, in the alternative, assuming that this Honorable Court shall not
look kindly upon his prayer above, that he be allowed to APPLY FOR
PROBATION whether directly ordered by this Honorable SUPREME
COURT in the valid exercise of its inherent judicial powers, or by
remanding the records of the case to the lower court for promulgation

of the DECISION of the COURT OF APPEALS dated April 4, 2001

with instructions to allow the petitioner to forthwith file an Application
for Probation or accept the Application for Probation attached hereto
in cautela;
c. It is most respectfully prayed that your petitioner be granted such
other and further relief as may be just and equitable in the premises. [9]
The petition is not impressed with merit.
Sections 4 and 5, Rule 120 of the Revised Rules of Criminal
Procedure reads:
SEC. 4. Judgment in case of variance between allegation and proof.
When there is variance between the offense charged in the
complaint or information and that proved, and the offense as charged
is included in or necessarily includes the offense proved, the accused
shall be convicted of the offense proved which is included in the
offense charged, or of the offense charged which is included in the
offense proved. (4a)
SEC. 5. When an offense includes or is included in another. An
offense charged necessarily includes the offense proved when some
of the essential elements or ingredients of the former, as alleged in
the complaint or information, constitute the latter. And an offense
charged is necessarily included in the offense proved, when the
essential ingredients of the former constitute or form part of those
constituting the latter. (5a).[10]
The issue raised by the petitioner in this case is not new. In People
v. De Fernando,[11] this Court ruled that one charged with murder may
be convicted of reckless imprudence resulting in homicide. In People
v. Carmen,[12] the Court convicted the appellants of reckless
imprudence resulting in homicide on a charge of murder. The Court
ruled that the quasi offense of reckless imprudence resulting in
homicide is necessarily included in a charge of murder. The Court in
Samson v. Court of Appeals,[13] emphasized that while a criminal
negligent act is not a simple modality of a willful crime, but a distinct
crime in itself, defined as an offense in the Revised 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.
The Petitioners plaint that by convicting him of reckless imprudence
resulting in homicide on a charge of homicide by dolo, and
sentencing him to an indeterminate penalty, he is deprived of his right
to file a petition for probation under P.D. 968, as amended, and his
right to the equal protection of laws, is patently without legal basis.
The conviction of the petitioner for reckless imprudence resulting in
homicide and sentencing him to an indeterminate penalty has nothing
to do with his qualifications or disqualifications for probation under
P.D. No. 968. Whether or not the petitioner may still file a petition for
probation despite his appeal from the judgment of the trial court; and

whether or not he is entitled to probation under P.D. No. 968, as

amended, and under prevailing jurisprudence, will have to be
ascertained by the trial court in which a petition for probation is filed
as mandated in Section 4 of P.D. 968, as amended, [14] and not by this
Court.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The
Decision of the Court of Appeals is AFFIRMED. With costs against
the petitioner.
SO ORDERED.

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