G.R. No. 174483 March 31, 2009
It further ruled that the killing was qualified to
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
RAMON REGALARIO, MARCIANO REGALARIO, SOTERO
REGALARIO, BIENVENIDO REGALARIO and NOEL
REGALARIO, Accused-Appellants.
For automatic review is the decision1 of the Court of Appeals
(CA) in CA-G.R. CR No. 01556 which affirmed with
modification, an earlier decision2 of the Regional Trial Court of
Ligao, Albay, Branch 13 in Criminal Case No. 3613, finding
accused-appellants Ramon, Marciano, Sotero, Bienvenido and
Noel, all surnamed Regalario guilty of murder and sentencing
them to suffer the penalty of reclusion perpetua and to
indemnify jointly and severally the heirs of the victim in the
amount of P50,000.00, and another sum of P50,000.00 as
moral damages and to pay the costs of the proceedings.
In the court of origin, accused-appellants Ramon, Marciano,
Sotero, Bienvenido and Noel were originally charged with
Homicide. However, after reinvestigation of the case, the Panel
of Prosecutors of the Department of Justice, Legaspi City,
consisting of State Prosecutors Romulo SJ Tolentino, Mary
May B. De Leoz and Elmer M. Lanuzo filed an amended
information3 charging the accused-appellants with murder,
committed as follows:
That on February 22, 1997 at about 11:00 in the evening, at
Brgy. Natasan, Municipality of Libon, province of Albay,
Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring, confederating and
helping one another, with intent to kill, did then and there
willfully, unlawfully and feloniously with cruelty, treachery,
abuse of superior strength, nighttime attack, assault, strike and
hit ROLANDO SEVILLA with wooden clubs (bahi) used as their
night sticks, hitting the latter at the different parts of his body
and tying down his hands and feet with a rope, thereby
inflicting upon the latter serious and mortal wounds which
directly caused his death, to the damage and prejudice of his
legal heirs.
ACTS CONTRARY TO LAW.
On October 9, 1998, accused-appellants, duly assisted by their
counsel, entered a plea of "not guilty" to the offense charged.4
Thereafter, trial ensued.
The prosecution presented the following as its witnesses: Zaldy
Siglos, Nancy Sara, Ryan Sara, Armando Cabais Poblete,
Ronnie Siglos, Cynthia Sevilla, Norma Torres, Policeman Jose
Gregorio, Cenen Talagtag, Cesar Sazon and Dr. Mario Cerillo,
while Antonio Relato and Nicanor Regonia testified on rebuttal.
Nancy Sara, Cynthia Sevilla and Ryan Sara were presented for
a second time also as rebuttal witnesses.
On their part, accused-appellants took the witness stand. All
raised the defense of denial except for Ramon who admitted
the act charged but claimed self-defense. To corroborate their
defense, Jose Poblete and Adonis Velasco were presented.
The defense also presented Senior Police Officer 2 (SPO2)
Jimmy Colisao, Harold Reolo, Ma. Julieta Razonable, and Dr.
Leopoldo Barrosa II.
On August 24, 2000, the trial court rendered its decision5
giving full faith and credit to the prosecution’s evidence. It ruled
out accused-appellant Ramon Regalario’s claim of self
defense, and held that there was conspiracy among the
accused-appellants in the commission of the crime as shown in
the manner in which all of them inflicted the wounds on the
victim’s body.
murder by abuse of superior strength and by their scoffing at
the body of the victim. It also appreciated the presence of the
mitigating circumstance of voluntary surrender. The pertinent
dispositive portion of the said decision reads:
WHEREFORE, judgment is hereby rendered finding Ramon,
Sotero, Bienvenido, Marciano and Noel, all surnamed
Regalario, guilty beyond reasonable doubt of the crime of
Murder under Par. 1, of Art. 248 of the Revised Penal Code, as
amended, with the aggravating circumstance of scoffing at the
corpse of the victim. However, accused are entitled to the
benefit of the mitigating circumstance of voluntary surrender
which offset the aggravating circumstance of scoffing at his
corpse, hence, are hereby sentenced to suffer the Penalty of
Reclusion Perpetua together with the accessory penalties
provided for by law.
The accused are hereby ordered to indemnify jointly and
severally the heirs of the late Rolando Sevilla the amount of
P50,000.00 and another sum of P50,000.00 as moral damages
and to pay the costs.
Pursuant to Supreme Court Administrative Circular No. 2-92
the P200,000.00 bail bond put up by accused Marciano
Regalario is hereby cancelled and is ordered recommitted to
jail.
SO ORDERED.
The record of this case was forwarded to this Court for
automatic review, in view of the penalty imposed.
In our Resolution6 of August 13, 2001, We accepted the
appeal and directed the Chief of the Judicial Records Office, to
send notices to the parties to file their respective briefs. The
Court also required the Jail Warden, Municipal Jail, Polangui,
Albay to transfer accused-appellants to the Bureau of
Corrections, Muntinlupa City, and make a report of such
transfer within ten (10) days from notice. Likewise, the Director
of the Bureau of Corrections was required to confirm the
detention of accused-appellants. Accused-appellants filed their
Appellants’ Brief7 on December 4, 2001, while the People, thru
the Office of the Solicitor General, filed its Appellee's Brief8 on
July 30, 2002.
Pursuant to our pronouncement in People v. Mateo9 which
modified the provisions of the Rules of Court insofar as they
provide for direct appeals from the RTC to this Court in cases
where the penalty imposed by the trial court is death, reclusion
perpetua or life imprisonment, this case was referred for
appropriate action and disposition to the CA where it was
docketed as CA-G.R. No. 01556.
The evidence for the prosecution is summarized by the Office
of the Solicitor General, as follows:
Accused-appellants, all surnamed Regalario, are barangay
officials of Natasan, Libon, Albay and related to one another by
consanguinity. Marciano, barangay chairman, Sotero,
barangay kagawad and Ramon, barangay tanod, are brothers
while Bienvenido Regalario, also barangay tanod, is their
cousin and Noel is the son of Marciano. (TSN, November 16,
1998, p. 9; RTC Order dated October 9, 1998, pp. 115-117)
On the night of February 22, 1997, a dance and singing contest
was being held in the barangay pavilion of Natasan, Libon,
Albay. At around ten o’clock that evening, Rolando Sevilla and
Armando Poblete were enjoying the festivities when appellant
Sotero Regalario approached them (TSN, December 7, 1998,
p.4). To avoid trouble, the two distanced themselves from
Sotero. Nevertheless, a commotion ensued. (ibid., p. 5).
Appellants Sotero and Bienvenido Regalario were seen striking
Rolando Sevilla several times with their respective nightsticks,
locally known as bahi. (TSN, November 16, 1998, pp. 13-17,
32, 34, 36-37). The blows caused Sevilla to fall down in a
sitting position but after a short while he was able to get up
(ibid., pp. 16-17). He ran away in the direction of the house of
appellant Mariano Regalario, the barangay captain (ibid., pp.
18-38). Bienvenido and Sotero Regalario chased Sevilla (ibid.,
p. 38, TSN, December 7, 1998. p. 6). When Sevilla was
already near Marciano’s house, he was waylaid by appellant
Ramon Regalario and at this point, Marciano Regalario and his
son Noel Regalario came out of their house (TSN, December
7, 1998, pp. 7-9 and 35). Noel was carrying a seven-inch knife.
The five appellants caught the victim in front of Marciano’s
house. Armed with their nightsticks, they took turns in hitting
the victim until he slumped to the ground face down (ibid., pp.
8, 35 and 38). In that position, Sevilla was boxed by Marciano
in the jaw. After a while, when Sevilla was no longer moving,
Marciano first ordered the others to kill the victim and to tie him
up (ibid., pp. 36-37). Upon hearing the order, Bienvenido, with
the help of Sotero, tied the neck, hands and feet of the victim
with a nylon rope used by farmers for tying carabao. The rest
of the group just stood by watching. (ibid., pp. 37-38).
In the early morning of February 23, 1997, Cynthia Sevilla, the
victim’s widow, after she was informed of her husband’s death,
went to the poblacion of Libon to report the incident at the
town’s police station (TSN, December 8, 1998, pp. 7-8).
However, her statements were not entered in the police blotter
because appellant Marciano Regalario had earlier reported to
them, at two o’clock in the morning, a different version of the
incident, i.e., it was the victim Sevilla who shot Marciano’s
brother Ramon and that Sevilla, allegedly still alive, was placed
under the custody of the barangay tanods. (ibid., p. 7; TSN,
November 20, 1998 [A.M. Session], pp. 9-10). At around eight
o’clock of the same morning, SPO4 Jose Gregorio, with some
other police officers and Cynthia Sevilla, left the police station
on board a truck and proceeded to the crime scene in Natasan.
SPO4 Gregorio conducted an investigation of the incident.
(TSN, November 20, 1998 [A.M. Session], pp. 10-12).
Thereafter, the policemen took the victim’s cadaver to the
police station in the poblacion (ibid., p. 26) where pictures were
taken showing the victim’s hands and legs tied behind him
[Exhibits ‘C’ and ‘D’] (ibid., pp. 14-15; TSN, December 8, 1998,
p. 10; TSN, November 20, 1998 [P.M. Session], pp 5-7). On
that same day, SPO4 Gregorio requested the Libon’s Rural
Health Unit to conduct an autopsy on the victim’s body but
since the municipal health officer was not around, it was only
performed the next day, February 24 (TSN, November 20,
1998 [A.M. Session], p. 26; TSN, December 8, 1998, pp. 10-
11; TSN, November 20, 1998 [P.M. Session], p. 11). After Dr.
Mario Cerillo, Municipal Health Officer of Libon conducted the
autopsy, he forthwith issued a Medico-Legal Report dated
February 24, 1997 (Exhibit ‘B’), the pertinent portions of which
read:
Findings:
Head : Lacerated wound 4 cm frontal area, Right.
: Lacerated wound 8 cm. occipital area, Right.
: Lacerated wound 4 cm.with fractured skull
(post auricular area),
Right.
: Abrasion 4 x 2 cm. eyebrow, Right.
: Abrasion 2 cm. x 1 cm.
with lacerated wound 1 cm. eyebrow, Left.
: Periorbital Hematoma
Left and Right eye.
: Lacerated wound 1 cm. lower lip, Left.
Neck : Stab wound 2 cm penetrating lateral base
of the neck just above the clavicle,
Right.
: Stab wound 2 cm., 6 cm. depth lateral base of the
neck just above the clavicle,
Right.
Trunk : Hematoma 10 x 8 cm. clavicular area, Right.
: Multiple abrasion chest
: Contusion 7 x 2 cm.,
7th Intercorsal space and clavicular line, left.
Extremities : Multiple abrasion and contusion on both
Right and Left arm and forearm.
: Abrasion (Ropemark) around Right and Left wrist.
: Abrasion (Ropemark) around
distal 3rd of both Right and
Left leg.
Cause of Death:
Sever blood loss secondary to stab wound and multiple
lacerated wound, probably secondary to intracranial
hemorrhage.
On the witness stand, Dr. Cerillo opined that the victim’s
lacerated wounds could have been caused by a blunt
instrument like a hard stick, a stone or iron bar, his stab
wounds by a sharp-edged instrument or knife, his contusions
and hematoma by a fist blow or through contact with a blunt
instrument. Also according to the physician, the sharp object
which caused the victim’s stab wounds could have been a knife
2 cm. wide and 6 cm. long because they were clean cut
wounds. (TSN, November 20, 1998 [P.M. Session], pp. 14-
15).10
On the other hand, the accused-appellants’ Brief presents a
different story:
At the time of the incident in question, accused Marciano
Regalario was the incumbent barangay captain of Natasan,
Libon, Albay. Accused Sotero was a kagawad, while Ramon
and Bienvenido were barangay tanods of the same place. Noel
Regalario had no public position. He is the son of one of the
other accused.
On the night of February 22, 1997, a public dance and singing
contest was held in their barangay. Naturally, being barangay
officials, the accused, (except Noel who is not an official and
whose wife has just given birth) were at the place of the
celebration, discharging their peace-keeping duties. They were
posted at different places in that vicinity.
At first, a fire broke out in the toilet of the Day Care Center. It
was attended to by the persons assigned in that area. A while
later, there was another commotion in the area assigned to
accused Ramon Regalario. When he approached the group
where the disturbance was taking place and tried to
investigate, Rolando Sevilla suddenly emerged from the group
and without any ado, fired a shot at him. He was hit at the left
shoulder. Instinctively, and in order to disable Sevilla from firing
more shots, which might prove fatal, he struck his assailant
with his nightstick and hit him at the back of his head. This is
the blow which Nancy Sara and Zaldy Siglos said were
delivered by Sotero and Bienvenido. This blow caused Sevilla
to reel backward and lean on the bamboo fence. To prevent
Sevilla from regaining his balance, Ramon pressed his
counter-attack by continuing to harass him with blows of his
nightstick. As Ramon pressed on forward, Sevilla retreated
backward. Ramon kept him busy parrying the blows which hit
his arms and front part of the body, as they were face to face
with each other. But even in the course of such harassment,
Sevilla was able to fire a second shot which missed Ramon.
When they reached the end of the road pavement, Sevilla lost
his footing on edge of the pavement and fell down. At that
juncture, Sotero arrived and shouted to Ramon to stop beating
Rolando. But Ramon told him that Rolando still had the gun.
So, Sotero plunged at Rolando and they wrestled on the
ground for the possession of the gun. As they struggled, the
gun went off but no one was hurt. When Rolando raised his
arms to move the gun away from Sotero, Ramon knocked the
gun off his hand and it fell near the place where Jose Poblete
was standing. Poblete just arrived at the scene along with
Marciano Regalario who was already told that his brother
Ramon was shot by Sevilla. Poblete picked up the gun. He was
instructed by Marciano to keep it until it is turned over to the
authorities.
The wounded Ramon Regalario was brought to town for
treatment and later to the provincial hospital. Marciano and
Sotero proceeded to the police station to report the shooting of
Ramon.
Bienvenido Regalario, the barangay tanod, arrived at the scene
after the fact. He was instructed by Marciano, the barangay
captain to effect the arrest of Rolando Sevilla for the crime of
shooting Ramon. According to Bienvenido, they were taught in
their training seminar to just use a rope in lieu of handcuffs
because they could not be supplied with it. So, he tied the
hands and feet of Rolando Sevilla for fear that he might be able
to escape.
On the early morning of February 23, a team of policemen
went to Natasan and found the dead body of Rolando Sevilla.
Jose Poblete also turned over to the police, Rolando Sevilla’s
gun. Meanwhile, Noel Regalario, after learning of the incident,
scoured the place where the third shot was fired during the
struggle between Sotero and Rolando. He found a .38 caliber
slug which was also turned over to the police.11
On May 31, 2006, the CA promulgated the herein challenged
decision affirming for the most part the decision of the trial
court with modification as to the penalty imposed. Unlike the
trial court, the CA did not appreciate the mitigating
circumstance of voluntary surrender in favor of the accused-
appellants. Thus, the penalty was changed from reclusion
perpetua to death, and an additional award of P25,000.00 as
exemplary damages was likewise imposed. Pertinently, the CA
decision reads in part:
WHEREFORE, the assailed decision is AFFIRMED with
MODIFICATION. The accused-appellants are hereby
sentenced to suffer the penalty of DEATH and to pay, jointly
and severally, the heirs of Rolando Sevilla the amount of
P25,000.00 as exemplary damages.
Let the entire records of this case be elevated to the Supreme
Court for its review, pursuant to AM No. 00-5-03-SC
(Amendments to the Revised Rules of Criminal Procedure to
Govern Death Penalty Cases) which took effect on October 15,
2004.
SO ORDERED.12
As can be gleaned from the above quote, the CA elevated the
instant case to this Court in view of the penalty imposed. In our
Resolution13 dated November 14, 2006, we required the
parties to simultaneously submit their respective supplemental
briefs. On December 12, 2006, the people filed a
manifestation14 stating that it is waiving the filing of a
supplemental brief. Accused-appellants filed their supplemental
brief15 on February 15, 2007.
In their Brief, accused-appellants raise the following
assignment of errors:
1. THE TRIAL COURT ERRED IN HOLDING THAT ALL OF
THE ACCUSED PARTICIPATED IN THE KILLING OF
ROLANDO SEVILLA AND BASING ITS DECISION, NOT ON
DIRECT EVIDENCE BUT ON ITS OWN SUPPOSITIONS,
CONJECTURES AND INFERENCES;
2. THE TRIAL COURT GRIEVOUSLY MISAPPRECIATED
THE EVIDENCE AND DISPLAYED BIAS WHEN IT LEANED
IN FAVOR OF THE PROSECUTION EVIDENCE DESPITE
THEIR VITAL CONTRADICTIONS AND OBVIOUS
FALSEHOODS;
3. THE TRIAL COURT ERRED IN FINDING THAT THERE
WAS CONSPIRACY AMONG THE ACCUSED AND THAT
THE COMMISSION OF THE OFFENSE WAS ATTENDED BY
THE QUALIFYING CIRCUMSTANCES OF ABUSE OF
SUPERIOR STRENGTH AND SCOFFING AT THE BODY OF
THE VICTIM;
4. THE LOWER COURT ERRED IN NOT FINDING THAT THE
DECEASED WAS KILLED IN SELF-DEFENSE AND/OR
DEFENSE OF RELATIVE
5. THE TRIAL COURT ERRED IN AWARDING DAMAGES TO
THE HEIRS OF THE DECEASED.16
We begin our evaluation with accused-appellant Ramon
Regalario’s claim of self-defense. Both the CA and the trial
court gave no credence to this theory of self-defense.
When self-defense is invoked by an accused charged with
murder or homicide he necessarily owns up to the killing but
may escape criminal liability by proving that it was justified and
that he incurred no criminal liability therefor. Hence, the three
(3) elements of self-defense, namely: (a) unlawful aggression
on the part of the victim; (b) reasonable necessity of the means
employed to prevent or repel the aggression; and (c) lack of
sufficient provocation on the part of the person defending
himself, must be proved by clear and convincing evidence.
However, without unlawful aggression, there can be no self-
defense, either complete or incomplete.17
Accused-appellant Ramon contends that the victim Rolando
Sevilla committed an act of unlawful aggression with no
provocation on his [Ramon’s] part. Ramon testified that he was
trying to investigate a commotion when, without warning,
Rolando emerged from the group, thrust and fired his gun at
him, hitting him in the left shoulder. To disable Rolando from
firing more shots, Ramon struck the victim’s head at the back
with his nightstick, causing the victim to reel backward and lean
on the bamboo fence. He continued hitting Rolando to prevent
the latter from regaining his balance and, as he pressed on
farther, the victim retreated backward.
By Ramon’s own account, after he was shot, he hit the victim
at the back of the latter’s head and he continued hitting the
victim who retreated backward. From that moment, the
inceptive unlawful aggression on the part of the victim ceased
to exist and the continuation of the offensive stance of Ramon
put him in the place of an aggressor. There was clearly no
longer any danger, but still Ramon went beyond the call of self-
preservation. In People v. Cajurao,18 we held:
…The settled rule in jurisprudence is that when unlawful
aggression ceases, the defender no longer has the right to kill
or even wound the former aggressor. Retaliation is not a
justifying circumstance. Upon the cessation of the unlawful
aggression and the danger or risk to life and limb, the necessity
for the person invoking self-defense to attack his adversary
ceases.1avvphi1 If he persists in attacking his adversary, he
can no longer invoke the justifying circumstance of self-
defense. Self-defense does not justify the unnecessary killing
of an aggressor who is retreating from the fray. (Emphasis
supplied)
Ramon’s claim of self-defense is further belied by the presence
of two (2) stab wounds on the neck, four (4) lacerated wounds
on the head, as well as multiple abrasions and contusions on
different parts of the victim’s body, as shown in the Medico-
Legal Report. Dr. Mario Cerillo who conducted the post-
mortem examination on the victim revealed that the victim’s
lacerated wounds could have been caused by a blunt
instrument like a hard stick, a stone or an iron bar; his stab
wounds by a sharp-edged instrument or knife; his contusions
and hematoma by a fist blow or through contact with a blunt
instrument. He also declared that the sharp object which
caused the victim’s stab wounds could have been a knife 2
centimeters (cms.) wide and 6 cms. long because they were
clean-cut wounds. Indeed, even if it were true that the victim
fired a gun at Ramon, the number, nature and severity of the
injuries suffered by the victim indicated that the force used
against him by Ramon and his co-accused was not only to
disarm the victim or prevent him from doing harm to others.
The four (4) other accused-appellants, namely, Sotero,
Marciano, Bienvenido and Noel, to exonerate themselves,
denied their involvement in inflicting wounds on Rolando.
Sotero claimed that he arrived at the scene of the crime at the
time when Rolando lost his footing on the edge of the
pavement and fell down. He even shouted at Ramon to stop
beating Rolando. However, when Ramon told him that Rolando
still had the gun, he jumped on Rolando and they wrestled on
the ground for the possession of the gun.
Marciano maintained that he, together with Jose Poblete,
arrived at the crime scene when Ramon had already knocked
the gun out of Rolando’s hand and the gun fell near the place
where Jose Poblete was standing. When he went to that place,
he already knew that his brother (Ramon) had been shot, so,
he told the latter to go to the hospital. Thereafter, he and
Sotero proceeded to the police station to report the shooting
incident.1avvphi1
Bienvenido asserted that he arrived at the crime scene after
the shooting incident. He was asked by Marciano to arrest
Rolando.
Lastly, Noel insisted that he was not present when the shooting
incident took place. He was inside their house sleeping, as his
wife had just given birth.
We are not convinced.
Accused-appellants’ denials cannot overcome the positive
identification by the prosecution’s witnesses. Elementary is the
rule that positive identification, where categorical and
consistent, prevails over unsubstantiated denials because the
latter are negative and self-serving, and thus, cannot be given
any weight on the scales of justice.19 The participation of each
of the accused-appellants can be fully ascertained from the
clear, categorical and spontaneous testimony given by
prosecution witness, Ronnie Siglos, who was at the scene of
the crime, thus:
PROSECUTOR RESARI:
Q While you were walking on your way home, was there an
unusual incident and can you recall?
A Yes, ma’am
Q What was that incident about?
A While I was on my way towards the house of my parents, I
just suddenly saw a person being beaten on the road.
Q When you first noticed that there was a man being beaten
along the road, how far were you?
A I was about more or less 9 to 10 meters.
Q When you saw a man being beaten what did you do?
A I continue walking, but upon reaching that place near the
person being beaten, I stopped.
Q Why did you stop?
A To verify and know as to who that person being beaten.
Q And who was that person being beaten?
A Rolando Sevilla.
Q Who were the persons beating Rolando Sevilla?
A Marciano Regalario, Sotero Regalario, Ramon Regalario,
Bienvenido Regalario, Noel Regalario, Ernani Regalario,
Reynante Regalario, Jose Poblete, Jose Quinno and Virgilio
Rebanal.
Q Who else?
A Cecilio Lunas.
Q If some of the persons you saw beating Rolando Sevilla are
present in this court room, will you be able to point and identify
them?
A Yes, ma’am.
PROSECUTOR:
Q You stated that you saw the persons you have just named
as beating Rolando Sevilla. Were there weapons used in
beating Rolando Sevilla?
A Yes.
Q What kind of weapons (was) used?
A Sotero was armed with bahi wood, and also Ramon.
Bienvenido was also armed with bahi, as well as Cecilio Lunas,
Jose Quinno were also armed with ‘malo-palo.’
Q What kind of weapon was being held by Noel Regalario?
A A knife.
Q Now, when you saw Rolando Sevilla being beaten by the
persons you mentioned before, what did you notice on the
condition of Rolando Sevilla?
A He was lying on his stomach.
Q Did you see the face of Rolando Sevilla?
A Yes.
Q How were you able to see the face of Rolando Sevilla?
A Because Sotero was holding him by his hair.
Q What was your observation on the condition of Rolando
Sevilla?
WITNESS:
He was already motionless. He is not moving anymore.
PROSECUTOR:
Of the persons you named as holding weapons, you did not
mention Marciano Regalario as holding any weapon. What was
Marciano Regalario doing then?
A He boxed Rolando Sevilla and Rolando was hit on his jaw.
Q What else did Marciano Regalario do if any?
A After he boxed Rolando Sevilla, he went inside his house but
after about one (1) minute he again return(ed) back.
Q After Marciano Regalario returned back, what did he do if
any?
A He shouted to kill that.
Q After you heard Marciano Regalario (say) to kill "that," what
did you do?
A I proceeded towards home.
Q While you were walking, was there any unusual incident
which again happened?
A Yes.
Q And, what was that incident?
A While I was walking towards home, again I heard Marciano
Regalario shouted to tie him, that is why I again stopped.
Q When you heard Marciano Regalario to tie him how far were
you from him?
A More or less 7 meters.
Q You said that upon hearing Marciano Regalario, you
stopped. What else happened?
A Bienvenido Regalario passed by me and went to that sleigh
(pababa) which is on the lower portion and got a rope.
Q What did Bienvenido Regalario do with the rope?
A He tied Rolando Sevilla by placing he rope around his neck
and tied his hands.
Q Was there somebody who assisted Bienvenido Regalario in
tying Rolando Sevilla?
A Yes.
Q Who were the persons, if any?
A Sotero Regalario.
Q Aside from Sotero, was there anybody else who helped
Bienvenido Regalario in tying Rolando Sevilla?
A No more.
Q While Rolando Sevilla was being hog tied, where were the
persons of Marciano Regalario, Noel Regalario, Ramon
Regalario and the rest of the persons whom you just
mentioned awhile ago?
A They were there standing beside Rolando Sevilla and they
were watching.
Q Did you notice whether Rolando Sevilla was still moving
when he was still being tied up by Bienvenido and Sotero?
A He was not moving anymore.20
The aforequoted testimony of Ronnie Siglos is corroborated by
the following testimony of Armando Poblete:
Q While you were standing by the road, what did you notice?
A Then I saw Rolando Sevilla being chased by Bienvenido and
Sotero both surnamed Regalario
Q To what direction was Rolando Sevilla being chased by
Sotero and Bienvenido Regalario?
A Towards the place of Kapitan.
PROSECUTOR RESARI:
Q Considering that was already nighttime, how were you able
to know that the person being chased was Rolando Sevilla and
the persons chasing him were the two (2) Regalarios which
you have identified?
A Because, I was with Sevilla during that time and it was
moonlit night.
Q When the two (2) were chasing Rolando Sevilla, what
happened next?
A Ramon waylaid Rolando Sevilla.
Q After you saw Ramon Regalario waylaid Rolando Sevilla,
what else did you see?
A After that I saw the group of Sotero, Regalario, Marciano,
Noel, caught up with Rolando.
PROSECUTOR RESARI:
Q Since Bienvenido Regalario and Sotero Regalario were the
ones chasing Rolando Sevilla, from what direction did Ramon
Regalario come from when he waylaid Rolando Sevilla?
A That side, left side going towards the house of Kapitan.
Q And where did Marciano and Noel xxx come from?
A From their house.
Q After the five (5) caught up with Rolando Sevilla, what
happened to Rolando Sevilla?
A They took turns in beating him.
Q Did they use any weapon in beating Rolando Sevilla?
A Yes, their night sticks.
Q When Bienvenido and Sotero caught up with Rolando
Sevilla; and the three (3) other accused also joined the two (2),
how far was your distance to them?
A More or less 14 to 15 meters.21
We agree with the findings of the two courts below as to the
presence of conspiracy. Conspiracy exists when two or more
persons come to an agreement concerning the commission of
a felony and decide to commit it. Direct proof of conspiracy is
rarely found, for criminals do not write down their lawless plans
and plots. The agreement to commit a crime, however, may be
deduced from the mode and manner of the commission of the
offense or inferred from acts that point to a joint purpose and
design, concerted action, and community of intent. It does not
matter who inflicted the mortal wound, as the act of one is the
act of all, and each incurs the same criminal liability.22 We
quote with approval the findings and observations of the CA,
thus:
The eyewitnesses’ account surrounding Rolando Sevilla’s
death shows that the accused-appellants performed concerted
acts in pursuit of a common objective. Sotero, Bienvenido, and
Ramon, armed with nightsticks, and Noel armed with a knife,
seven inches in length, beat Rolando Sevilla. All five accused-
appellants caught up with the victim, blocked all means through
which the victim could escape and ensured the achievement of
their plan to kill Rolando Sevilla even as the latter already fell
to the ground. Accused-appellant Marciano hit the victim on his
jaw and later, ordered his co-accused to kill and tie the victim.
Upon hearing Marciano’s instruction, Bienvenido Regalario tied
Rolando’s neck, hands and feet with a rope. The collective act
of the accused-appellants is sufficient to make them co-
principals to the killing.23
Considering the foregoing, as well as the manner in which the
attack against Rolando was carried out, and the testimonies of
the prosecution witnesses positively identifying the accused-
appellants as the assailants, we concur in the rulings of the
CA, affirming those of the trial court, in (a) disregarding Ramon
Regalario’s declaration that he attacked the victim in self-
defense and (b) holding that all the accused-appellants acted
in concert and killed Rolando.
We likewise rule that both the CA and the trial court were
correct in appreciating the qualifying circumstance of abuse of
superior strength in killing Rolando Sevilla. To take advantage
of superior strength is to use force out of proportion to the
means available to the person attacked to defend himself. In
order to be appreciated, it must be clearly shown that there
was deliberate intent on the part of the malefactors to take
advantage thereof.24 In this case, as testified to by the
prosecution eyewitnesses, accused-appellants Ramon, Sotero
and Bienvenido, with the exception of Marciano, were armed
with nightsticks (bahi) while Noel was holding a knife. Clearly
they took advantage of their superiority in number and arms in
killing the victim, as shown by numerous wounds the latter
suffered in different parts of his body.
Also affirmed is the ruling of both courts appreciating the
presence of the generic aggravating circumstance of scoffing
at the body of the victim. Accused-appellants did not just kill
the victim. They tied him hog-style after rendering him
immobilized. This action constituted outraging or scoffing at the
corpse of the victim. In this connection, we agree with the trial
court’s observation:
…The concerted acts committed by all the accused mostly
armed with wooden clubs and one with a 7-inch long knife after
the victim fell pummeling him with mortal blows on the
forehead and back of his head and stab wounds on his neck
and one of them telling his co-accused to kill the victim clearly
proved that the Regalarios conspired and took advantage of
their strength and number. Not satisfied with delivering mortal
blows even when their hapless victim was already immobile,
Bienvenido and Sotero, upon order of their co-accused
Marciano, tied their victim hog style. The manner by which
Rolando was tied as vividly captured in the picture (Exhs. ‘C’ &
‘D’) clearly speaks for itself that it was nothing but to scoff at
their victim.25
The CA was likewise correct in not appreciating the mitigating
circumstance of voluntary surrender in favor of accused-
appellants. For said circumstance to be appreciated, it must be
spontaneous, in such a manner that it shows the intent of the
accused to surrender unconditionally to the authorities, either
because he acknowledges his guilt or because he wishes to
save them the trouble and expense of finding and capturing
him.26 In the case at bar, accused-appellants remained at
large even after Judge Jose S. Sañez issued the warrant for
their arrest on February 6, 1998. Accused-appellants
surrendered only on September 9, 1998 after several alias
warrants of arrest were issued against them. Hence, voluntary
surrender cannot be appreciated in their favor as mitigating
circumstance.
actual imposition of the death penalty but on the fact that
qualifying circumstances warranting the imposition of the death
penalty attended the commission of the offense.
As to the award of moral and exemplary damages, the CA
correctly held accused-appellants jointly and severally liable to
pay the heirs of Rolando Sevilla for the same. Moral damages
are awarded despite the absence of proof of mental and
emotional suffering of the victim’s heirs. As borne out by
human nature and experience, a violent death invariably and
necessarily brings about emotional pain and anguish on the
part of the victim’s family.30 If a crime is committed with an
aggravating circumstance, either qualifying or generic, an
award of exemplary damages is justified under Article 2230 of
the New Civil Code. This kind of damage is intended to serve
as deterrent to serious wrongdoings and as vindication of
undue sufferings and wanton invasion of the rights of an
injured, or as a punishment for those guilty of outrageous
conduct.31 However, consistent with recent jurisprudence on
heinous crimes where the imposable penalty is death but
reduced to reclusion perpetua pursuant to Republic Act No.
9346, the award of moral damages should be increased from
P50,000.00 to P75,000.0032 while the award of exemplary
damages should be increased from P25,000.00 to
P30,000.00.33
WHEREFORE, the decision of the Court of Appeals dated May
31, 2006 in CA-G.R. CR No. 01556 is hereby AFFIRMED with
the following modifications: (1) the penalty of death imposed on
accused-appellants is lowered to reclusion perpetua without
eligibility for parole; (2) the monetary awards to be paid jointly
and severally by accused-appellants are as follows:
P75,000.00 as civil indemnity, P75,000.00 as moral damages
and P30,000.00 as exemplary damages; and (3) interest on all
the damages awarded at the legal rate of 6% from this date
until fully paid is imposed

The accused-appellants’ acts plainly amount to murder,

qualified by abuse of superior strength. As the generic
aggravating circumstance of scoffing at the body of the victim
was alleged and proven, and as there was no mitigating
circumstance, the CA correctly sentenced accused-appellants
to death in accordance with Art. 248, as amended by Republic
Act No. 7659, in relation to Art. 63(1) of the revised Penal
Code.

In view, however, of the passage of Republic Act No. 9346,27

the imposition of the death penalty has been prohibited. Thus,
the penalty imposed upon accused-appellants should be
reduced to reclusion perpetua, without eligibility for parole.

While the new law prohibits the imposition of the death penalty,
the penalty provided for by law for a heinous offense is still
death and the offense is still heinous.28 Consequently, the civil
indemnity for the victim is still P75,000.00. In People v.
Quiachon,29 we explained that even if the penalty of death is
not to be imposed on appellant because of the prohibition in
Republic Act No. 9346, the civil indemnity of P75,000.00 is still
proper because, following the ratiocination in People v. Victor
(292 SCRA 186), the said award is not dependent on the
G.R. No. 177743 January 25, 2012
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ALFONSO FONTANILLA y OBALDO, Accused-Appellant.
An indispensable requisite of self-defense is that the victim
must have mounted an unlawful aggression against the
accused. Without such unlawful aggression, the accused
cannot invoke self-defense as a justifying circumstance.
The accused prays for the review and reversal of the decision
promulgated on June 29, 2006,1 whereby the Court of Appeals
(CA) affirmed his conviction for murder handed down by the
Regional Trial Court (RTC), Branch 34, in Balaoan, La Union.
Antecedents
At around 9:30 p.m. on October 29, 1996, Jose Olais was
walking along the provincial road in Butubut Oeste, Balaoan,
La Union when Alfonso Fontanilla suddenly struck him in the
head with a piece of wood called bellang.2 Olais fell facedown
to the ground, but Fontanilla hit him again in the head with a
piece of stone. Fontanilla desisted from hitting Olais a third
time only because Joel Marquez and Tirso Abunan, the sons-
in-law of Olais, shouted at him, causing him to run away.
Marquez and Abunan rushed their father-in-law to a medical
clinic, where Olais was pronounced dead on arrival.3
On April 25, 1997, the Office of the Provincial Prosecutor of La
Union filed an information for murder against Fontanilla in the
RTC, viz:
That on or about the 29th day of October 1996, along the
Provincial Road at Barangay Butubut Oeste, Municipality of
Balaoan, Province of La Union, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
with intent to kill and with evident premeditation and treachery,
did then and there willfully, unlawfully and feloniously attack,
assault and strike with a long coconut night stick and thereafter
hit with a stone the head of Jose Olais, thereby inflicting on the
latter head wounds which caused the death of the latter, to the
damage and prejudice of the heirs of said victim.
CONTRARY TO LAW.4
The accused pleaded not guilty.
The State presented Marquez and Abunan as its witnesses.
They claimed that they were only several meters away from
Olais when Fontanilla struck him; that they shouted at
Fontanilla, who fled because of them; and that they were able
to see and to identify Fontanilla as the attacker of their father-
in-law because the area was then well-lighted.5
Dr. Felicidad Leda, the physician who conducted the autopsy
on the cadaver of Olais, attested that her post-mortem
examination showed that Olais had suffered a fracture on the
left temporal area of the skull, causing his death. She opined
that a hard object or a severe force had hit the skull of the
victim more than once, considering that the skull had been
already fragmented and the fractures on the skull had been
radiating.6
SPO1 Abraham Valdez, who investigated the slaying and
apprehended Fontanilla, declared that he had gone looking for
Fontanilla in his house along with other policemen; that
Fontanilla’s father had denied that he was around; that their
search of the house had led to the arrest of Fontanilla inside;
and that they had then brought him to the police station.7
Valdez further declared that Fontanilla asserted that he would
only speak in court.8
At the trial, Fontanilla claimed self-defense. He said that on the
night of the incident, he had been standing on the road near his
house when Olais, wielding a nightstick and appearing to be
drunk, had boxed him in the stomach; that although he had
then talked to Olais nicely, the latter had continued hitting him
with his fists, striking him with straight blows; that Olais, a
karate expert, had also kicked him with both his legs; that he
had thus been forced to defend himself by picking up a stone
with which he had hit the right side of the victim’s head,
causing the latter to fall face down to the ground; and that he
had then left the scene for his house upon seeing that Olais
was no longer moving.9
Fontanilla’s daughter Marilou corroborated her father’s
version.10
On June 21, 2001, the RTC declared Fontanilla guilty as
charged, and disposed thusly:
WHEREFORE, in the light of the foregoing, the Court hereby
renders judgment declaring he accused ALFONSO
FONTANILLA Y OBALDO @ ‘Carlos’ guilty beyond reasonable
doubt of the crime of MURDER as defined and penalized in
Art. 248 of the Revised Penal Code, as amended by Republic
Act No. 7659, Sec. 6, and thereby sentences him to suffer the
penalty of RECLUSION PERPETUA TO DEATH and to
indemnify the heirs of the victim in the amount of Fifty
Thousand Pesos ( P50,000.00).
SO ORDERED.11
The RTC rejected Fontanilla’s plea of self-defense by
observing that he had "no necessity to employ a big stone,
inflicting upon the victim a mortal wound causing his death"12
due to the victim attacking him only with bare hands. It noted
that Fontanilla did not suffer any injury despite his claim that
the victim had mauled him; that Fontanilla did not receive any
treatment, and no medical certificate attested to any injury he
might have suffered, having been immediately released from
the hospital;13 that Fontanilla’s failure to give any statement at
the time he surrendered to the police was inconsistent with his
plea of self-defense;14 and that the manner of attack against
Olais established the attendance of treachery.15
On appeal, the CA affirmed the RTC, holding that Fontanilla
did not establish the indispensable element of unlawful
aggression; that his failure to report the incident to the police at
the earliest opportunity, or even after he was taken into
custody, negated the plea of self-defense; and that the nature
of the victim’s injury was a significant physical proof to show a
determined effort on the part of Fontanilla to kill him, and not
just to defend himself.16
The CA ruled that treachery was attendant, because Olais had
no inkling that a fatal blow was looming upon him, and because
Fontanilla was inconspicuously hidden from view when he
struck Olais from behind, rendering Olais unable to retaliate.17
Nonetheless, the CA rectified the penalty from reclusion
perpetua to death to only reclusion perpetua upon noting the
absence of any aggravating or mitigating circumstance, and
disposed as follows:
IN VIEW OF ALL THE FOREGOING, the appealed decision of
the Regional Trial Court of Balaoan, La Union, Branch 34, in
Criminal Case No. 2561 is hereby AFFIRMED with
MODIFICATION that appellant Fontanilla is hereby sentenced
to suffer the penalty of reclusion perpetua. No cost.
SO ORDERED.18
The accused is now appealing, insisting that the CA erred
because:
I. THE TRIAL COURT GRAVELY ERRED IN IGNORING THE
ACCUSED-APPELLANT’S CLAIM OF SELF-DEFENSE.
II. EVEN GRANTING THAT ACCUSED-APPELLANT KILLED
THE VICTIM, THE TRIAL COURT GRAVELY ERRED IN
CONVICTING THE ACCUSED-APPELLANT OF THE CRIME
OF MURDER WHEN THE QUALIFYING CIRCUMSTANCE OF
TREACHERY WAS NOT PROVEN BEYOND REASONABLE
DOUBT.
III. FURTHERMORE, THE TRIAL COURT GRAVELY ERRED
IN NOT APPRECIATING THE SPECIAL PRIVILEGE[D]
MITIGATING CIRCUMSTANCE OF INCOMPLETE SELF-
DEFENSE AND THE MITIGATING CIRCUMSTANCE OF
VOLUNTARY SURRENDER.
Ruling
We affirm the conviction.
Fontanilla pleaded self-defense. In order for self-defense to be
appreciated, he had to prove by clear and convincing evidence
the following elements: (a) unlawful aggression on the part of
the victim; (b) reasonable necessity of the means employed to
prevent or repel it; and (c) lack of sufficient provocation on the
part of the person defending himself.19 Unlawful aggression is
the indispensable element of self-defense, for if no unlawful
aggression attributed to the victim is established, self-defense
is unavailing, for there is nothing to repel.20 The character of
the element of unlawful aggression is aptly explained as
follows:
Unlawful aggression on the part of the victim is the primordial
element of the justifying circumstance of self-defense. Without
unlawful aggression, there can be no justified killing in defense
of oneself. The test for the presence of unlawful aggression
under the circumstances is whether the aggression from the
victim put in real peril the life or personal safety of the person
defending himself; the peril must not be an imagined or
imaginary threat. Accordingly, the accused must establish the
concurrence of three elements of unlawful aggression, namely:
(a) there must be a physical or material attack or assault; (b)
the attack or assault must be actual, or, at least, imminent; and
(c) the attack or assault must be unlawful.
Unlawful aggression is of two kinds: (a) actual or material
unlawful aggression; and (b) imminent unlawful aggression.
Actual or material unlawful aggression means an attack with
physical force or with a weapon, an offensive act that positively
determines the intent of the aggressor to cause the injury.
Imminent unlawful aggression means an attack that is
impending or at the point of happening; it must not consist in a
mere threatening attitude, nor must it be merely imaginary, but
must be offensive and positively strong (like aiming a revolver
at another with intent to shoot or opening a knife and making a
motion as if to attack). Imminent unlawful aggression must not
be a mere threatening attitude of the victim, such as pressing
his right hand to his hip where a revolver was holstered,
accompanied by an angry countenance, or like aiming to throw
a pot.21
By invoking self-defense, however, Fontanilla admitted
inflicting the fatal injuries that caused the death of Olais. It is
basic that once an accused in a prosecution for murder or
homicide admitted his infliction of the fatal injuries on the
deceased, he assumed the burden to prove by clear,
satisfactory and convincing evidence the justifying
circumstance that would avoid his criminal liability.22 Having
thus admitted being the author of the death of the victim,
Fontanilla came to bear the burden of proving the justifying
circumstance to the satisfaction of the court,23 and he would
be held criminally liable unless he established self-defense by
sufficient and satisfactory proof.24 He should discharge the
burden by relying on the strength of his own evidence, because
the Prosecution’s evidence, even if weak, would not be
disbelieved in view of his admission of the killing.25
Nonetheless, the burden to prove guilt beyond reasonable
doubt remained with the State until the end of the proceedings.
Fontanilla did not discharge his burden. A review of the records
reveals that, one, Olais did not commit unlawful aggression
against Fontanilla, and, two, Fontanilla’s act of hitting the
victim’s head with a stone, causing the mortal injury, was not
proportional to, and constituted an unreasonable response to
the victim’s fistic attack and kicks.
Indeed, had Olais really attacked Fontanilla, the latter would
have sustained some injury from the aggression. It remains,
however, that no injury of any kind or gravity was found on the
person of Fontanilla when he presented himself to the hospital;
hence, the attending physician of the hospital did not issue any
medical certificate to him. Nor was any medication applied to
him.26 In contrast, the physician who examined the cadaver of
Olais testified that Olais had been hit on the head more than
once. The plea of self-defense was thus belied, for the
weapons used by Fontanilla and the location and number of
wounds he inflicted on Olais revealed his intent to kill, not
merely an effort to prevent or repel an attack from Olais. We
consider to be significant that the gravity of the wounds
manifested the determined effort of the accused to kill his
victim, not just to defend himself.27
The CA and the RTC found that treachery was attendant. We
concur. Fontanilla had appeared out of nowhere to strike Olais
on the head, first with the wooden stick, and then with a big
stone, causing Olais to fall to the ground facedown. The
suddenness and unexpectedness of the attack effectively
denied to Olais the ability to defend himself or to retaliate
against Fontanilla.
The imposition of reclusion perpetua by the CA was warranted
under Article 248 of the Revised Penal Code,28 which
prescribes reclusion perpetua to death as the penalty for
murder. Under the rules on the
application of indivisible penalties in Article 63 of the Revised
Penal Code,29 the lesser penalty of reclusion perpetua is
imposed if there are neither mitigating nor aggravating
circumstances. Yet, the Court points out that the RTC
erroneously imposed "RECLUSION PERPETUA TO DEATH"
as the penalty. Such imposition was bereft of legal justification,
for reclusion perpetua and death, being indivisible, should not
be imposed as a compound, alternative or successive penalty
for a single felony. In short, the imposition of one precluded the
imposition of the other.
The Court also modifies the limiting of civil damages by the CA
and the RTC to only the death indemnity of P50,000.00. When
death occurs due to a crime, the damages to be awarded may
include: (a) civil indemnity ex delicto for the death of the victim;
(b) actual or compensatory damages; (c) moral damages; (d)
exemplary damages; and (e) temperate damages.30
Accordingly, the CA and the RTC should also have granted
moral damages in addition to the death indemnity, which were
of different kinds.31 The death indemnity compensated the
loss of life due to crime, but appropriate and reasonable moral
damages would justly assuage the mental anguish and
emotional sufferings of the surviving family of Olais.32
Although mental anguish and emotional sufferings of the
surviving family were not quantifiable with mathematical
precision, the Court must nonetheless strive to set an amount
that would restore the heirs of the deceased to their moral
status quo ante. Given the circumstances, P50,000.00 should
be reasonable as moral damages, which, pursuant to
prevailing jurisprudence,33 we are bound to award despite the
absence of any allegation and proof of the heirs’ mental
anguish and emotional suffering. The rationale for doing so
rested on human nature and experience having shown that:
xxx a violent death invariably and necessarily brings about
emotional pain and anguish on the part of the victim’s family. It
is inherently human to suffer sorrow, torment, pain and anger
when a loved one becomes the victim of a violent or brutal
killing. Such violent death or brutal killing not only steals from
the family of the deceased his precious life, deprives them
forever of his love, affection and support, but often leaves them
with the gnawing feeling that an injustice has been done to
them.341âwphi1
Another omission of the CA and the RTC was their non-
recognition of the right of the heirs of the victim to temperate
damages. The victim’s wife testified about her family’s incurring
funeral expenses of P36,000.00, but only P18,000.00 was
backed by receipts. It is already settled that when actual
damages substantiated by receipts sum up to lower than
P25,000.00, temperate damages of at least P25,000.00
become justified, in lieu of actual damages in the lesser
amount actually proved by receipts. It would obviously be
unfair to the heirs of the victim to deny them compensation by
way of actual damages despite their honest attempt to prove
their actual expenses by receipts (but succeeding only in
showing expenses lower than P25,000.00 in amount).35
Indeed, the heirs should not be left in a worse situation than
the heirs of another victim who might be nonetheless allowed
temperate damages of P25,000.00 despite not having
presented any receipts at all. With the victim’s wife having
proved P18,000.00 worth of expenses, granting his heirs
temperate damages of P25,000.00, not only P18,000.00, is just
and proper. Not to do so would foster a travesty of basic
fairness.
social order and the other upon the private victim as it causes
personal sufferings, each of which is addressed by,
respectively, the prescription of heavier punishment for the
accused and by an award of additional damages to the victim.
The increase of the penalty or a shift to a graver felony
underscores the exacerbation of the offense by the attendance
of aggravating circumstances, whether ordinary or qualifying, in
its commission. Unlike the criminal liability which is basically a
State concern, the award of damages, however, is likewise, if
not primarily, intended for the offended party who suffers
thereby. It would make little sense for an award of exemplary
damages to be due the private offended party when the
aggravating circumstance is ordinary but to be withheld when it
is qualifying. Withal, the ordinary or qualifying nature of an
aggravating circumstance is a distinction that should only be of
consequence to the criminal, rather than to the civil, liability of
the offender. In fine, relative to the civil aspect of the case, an
aggravating circumstance, whether ordinary or qualifying,
should entitle the offended party to an award of exemplary
damages within the unbridled meaning of Article 2230 of the
Civil Code.
For the purpose, P30,000.00 is reasonable and proper as
exemplary damages,39 for a lesser amount would not serve
result in genuine exemplarity.
WHEREFORE, we AFFIRM the decision promulgated on June
29, 2006 by the Court of Appeals, subject to the
MODIFICATION of the civil damages, by ordering accused
Alfonso Fontanilla y Obaldo to pay to the heirs of Jose Olais
P25,000.00 as temperate damages and P30,000.00 as
exemplary damages in addition to the P50,000.00 as death
indemnity and the P50,000.00 as moral damages, plus interest
of 6% per annum on such amounts from the finality of the
judgment.

The Civil Code provides that exemplary damages may be

imposed in criminal cases as part of the civil liability "when the
crime was committed with one or more aggravating
circumstances."36 The Civil Code permits such damages to be
awarded "by way of example or correction for the public good,
in addition to the moral, temperate, liquidated or compensatory
damages."37 In light of such legal provisions, the CA and the
RTC should have recognized the entitlement of the heirs of the
victim to exemplary damages on account of the attendance of
treachery. It was of no moment that treachery was an attendant
circumstance in murder, and, as such, inseparable and
absorbed in murder. As well explained in People v. Catubig:38

The term "aggravating circumstances" used by the Civil Code,

the law not having specified otherwise, is to be understood in
its broad or generic sense. The commission of an offense has
a two-pronged effect, one on the public as it breaches the
G.R. No. 199579 December 10, 2012
RAMON JOSUE y GONZALES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondents.
Before the Court is a Petition for Review on Certiorari filed by
petitioner Ramon Josue y Gonzales (Josue) to assail the
Decision 1 dated June 30, 2011 and Resolution2 dated
December 1, 2011 of the Court of Appeals (CA) in CA-G.R. CR
No. 33180.
The petitioner was charged with the crime of frustrated
homicide before the Regional Trial Court (RTC) of Manila, via
an information that reads:
That on or about May 1, 2004, in the City of Manila,
Philippines, the said accused, with intent to kill, did then and
there willfully, unlawfully and feloniously, attack, assault and
use personal violence upon the person of ARMANDO
MACARIO y PINEDA a.k.a. BOYET ORA, by then and there
shooting the said Armando Macario y Pineda a.k.a. Boyet Ora
several times with a cal. 45 pistol hitting him on the different
parts of his body, thus performing all the acts of execution
which should have produced the crime of Homicide, as a
consequence, but nevertheless did not produce it by reason of
causes independent of his will, that is, by the timely and able
medical attendance rendered to the said ARMANDO
MACARIO y PINEDA a.k.a. BOYET ORA which prevented his
death thereafter.
Contrary to law.3
The case was docketed as Crim. Case No. 05-236299 and
raffled to Branch 40 of the RTC. Upon arraignment, the
petitioner entered a plea of "not guilty". After pre-trial, trial on
the merits ensued.
The witnesses for the prosecution were: (1) victim Armando
Macario y Pineda (Macario); (2) Dr. Casimiro Tiongson, Jr. (Dr.
Tiongson), Chief Surgical Resident of Chinese General
Hospital; (3) Dr. Edith Calalang (Dr. Calalang), a radiologist; (4)
Ariel Villanueva, an eyewitness to the crime; and (5) Josielyn
Macario, wife of the victim. The prosecution presented the
following account:
On May 1, 2004, at around 11:15 in the evening, Macario, a
barangay tanod, was buying medicine from a store near the
petitioner’s residence in Barrio Obrero, Tondo, Manila when he
saw the petitioner going towards him, while shouting to ask him
why he had painted the petitioner’s vehicle. Macario denied the
petitioner’s accusation, but petitioner still pointed and shot his
gun at Macario. The gunshots fired by the petitioner hit
Macario’s elbow and fingers. As the unarmed Macario tried to
flee from his assailant, the petitioner still fired his gun at him,
causing him to sustain a gunshot wound at his back. Macario
was then rushed to the Chinese General Hospital for medical
treatment.
Dr. Tiongson confirmed that Macario sustained three (3)
gunshot wounds: (1) one on his right hand, (2) one on his left
elbow, and (3) one indicating a bullet’s entry point at the
posterior of the chest, exiting at the anterior line. Dr. Calalang
took note of the tiny metallic foreign bodies found in Macario’s
x-ray results, which confirmed that the wounds were caused by
gunshots. Further, she said that the victim’s injuries were fatal,
if not medically attended to. Macario incurred medical
expenses for his treatments.
For his defense, the petitioner declared to have merely acted in
self-defense. He claimed that on the evening of May 1, 2004,
he, together with his son Rafael, was watching a television
program when they heard a sound indicating that the hood of
his jeepney was being opened. He then went to the place
where his jeepney was parked, armed with a .45 caliber pistol
tucked to his waist. There he saw Macario, together with
Eduardo Matias and Richard Akong, in the act of removing the
locks of his vehicle’s battery. When the petitioner sought the
attention of Macario’s group, Macario pointed his .38 caliber
gun at the petitioner and pulled its trigger, but the gun jammed
and failed to fire. The petitioner then got his gun and used it to
fire at Macario, who was hit in the upper arm. Macario again
tried to use his gun, but it still jammed then fell on the ground.
As Macario reached down for the gun, the petitioner fired at
him once more, hitting him at the back. When Macario still tried
to fire his gun, the petitioner fired at him for the third time,
hitting his hand and causing Macario to drop his gun. The
petitioner got Macario’s gun and kept it in his residence.
The petitioner’s son, Rafael Josue, testified in court to
corroborate his father’s testimony.
SPO4 Axelito Palmero (SPO4 Palmero) also testified for the
defense, declaring that on May 26, 2004, he received from
Josue a .38 caliber revolver that allegedly belonged to Macario.
On October 22, 2009, the RTC rendered its Decision4 finding
the petitioner guilty beyond reasonable doubt of the crime of
frustrated homicide. It gave full credit to the testimony of the
prosecution witnesses, further noting that the defense had
failed to prove that the .38 caliber revolver that was turned over
to SPO4 Palmero actually belonged to Macario. The dispositive
portion of the RTC Decision reads:
WHEREFORE, accused RAMON JOSUE y GONZALES is
found guilty beyond reasonable doubt of Frustrated Homicide
without any aggravating or mitigating circumstances to vary the
penalty imposable. Applying the Indeterminate Sentence Law,
he is hereby sentenced to suffer an indeterminate penalty of
six (6) months and one (1) day of prision correccional as
minimum, to eight (8) years and one (1) day of prision mayor
as maximum.
Accused Ramon Josue y Gonzales is hereby ordered to
indemnify the victim, Armando Macario y Pineda, the sum of
[P]32,214.25 for hospitalization and medicine expenses as
actual damages.
The accused’s bail is deemed cancelled. Bondsman is ordered
to surrender the accused to this Court for execution of the final
judgment.
SO ORDERED.5
Unsatisfied, the petitioner appealed from the RTC’s decision to
the CA, which affirmed the rulings of the RTC and thus,
dismissed the appeal.
Hence, the present petition. The petitioner assails the CA’s
dismissal of the appeal, arguing that the prosecution had failed
to overthrow the constitutional presumption of innocence in his
favor.
We deny the petition.
At the outset, we emphasize that since the petitioner seeks this
Court’s review of his case through a petition for review under
Rule 45 of the Rules of Court, only questions of law shall be
addressed by the Court, barring any question that pertains to factual
issues on the crime’s commission. The general rule is that questions of
fact are not reviewable in petitions for review under Rule 45, subject
only to certain exceptions as when the trial court’s judgment is not
supported by sufficient evidence or is premised on a misapprehension
of facts.6
Upon review, the Court has determined that the present case does not
fall under any of the exceptions. In resolving the present petition, we
then defer to the factual findings made by the trial court, as affirmed by
the CA when the case was brought before it on appeal. The Court has,
after all, consistently ruled that the task of assigning values to the
testimonies of witnesses and weighing their credibility is best left to the
trial court which forms first-hand impressions as witnesses testify
before it. Factual findings of the trial court as regards its assessment of
the witnesses’ credibility are entitled to great weight and respect by this
Court, particularly when affirmed by the CA, and will not be disturbed
absent any showing that the trial court overlooked certain facts and
circumstances which could substantially affect the outcome of the
case.7
As against the foregoing parameters, the Court finds, and so holds,
that both the trial and appellate courts have correctly ruled on the
petitioner’s culpability for the crime of frustrated homicide, which has
the following for its elements:
(1) the accused intended to kill his victim, as manifested by his use of a
deadly weapon in his assault;
(2) the victim sustained fatal or mortal wound/s but did not die because
of timely medical assistance; and
(3) none of the qualifying circumstance for murder under Article 248 of
the Revised Penal Code is present.
These elements were duly established during the trial.
The trial court’s factual findings, when taken collectively, clearly prove
the existence of the crime’s first and second elements, pertaining to the
petitioner’s intent to kill and his infliction of fatal wound upon the victim.
Evidence to prove intent to kill in crimes against persons may consist,
among other things, of the means used by the malefactors; the conduct
of the malefactors before, at the time of, or immediately after the killing
of the victim; and the nature, location and number of wounds sustained
by the victim.8 Significantly, among the witnesses presented by the
prosecution was Villanueva, who, while being a friend of the petitioner,
had testified against the petitioner as an eyewitness and specifically
identified the petitioner as the assailant that caused the wounds
sustained by the victim Macario. Even the petitioner cites in the petition
he filed with this Court the prosecution’s claim that at the time he fired
the first gunshot, he was shouting, "Papatayin kita! (I will kill you!)"9
The doctors who attended to the victim’s injuries also affirmed before
the trial court that Macario had sustained gunshot wounds, and that the
injuries caused thereby were fatal if not given medical attention. The
trial court then held:
Weighing the evidence thus proffered, this Court believes the
prosecution’s version.
xxxx
The Court gives credence to the testimonies of the witnesses
presented by the prosecution as it did not find any fact or circumstance
in the shooting incident to show that said witnesses had falsely testified
or that they were actuated by ill-motive.
xxxx
x x x (A)s a result of being shot three (3) times with a .45 caliber gun,
complainant sustained mortal wounds which without medical
assistance, complainant could have died therefrom. Dr. Casimiro
Tiongson, Jr., the chief surgical resident who attended the complainant
and prescribed his medicines, testified that the victim, Armando
Macario, sustained three (3) gunshot wounds located in the left elbow,
right hand and another bullet entering his posterior chest exiting in front
of complainant’s chest.
These findings were also contained in the x-ray consultation reports
testified to by Dr. Edith Calalang as corroborating witness.10 (Citations
omitted)
What is also noteworthy is that the petitioner invoked self-defense,
after he had admitted that he caused the victim’s wounds when he shot
the latter several times using a deadly weapon, i.e., the .45 caliber
pistol that he carried with him to the situs of the crime. In People v.
Mondigo,11 we explained:
By invoking self-defense, appellant admitted committing the felonies for
which he was charged albeit under circumstances which, if proven,
would justify his commission of the crimes. Thus, the burden of proof is
shifted to appellant who must show, beyond reasonable doubt, that the
killing of Damaso and wounding of Anthony were attended by the
following circumstances: (1) unlawful aggression on the part of the
victims; (2) reasonable necessity of the means employed to prevent or
repel it; and (3) lack of sufficient provocation on the part of the person
defending himself.12 (Citations omitted and emphasis ours)
In order to be exonerated from the charge, the petitioner then assumed
the burden of proving, beyond reasonable doubt, that he merely acted
in self-defense. Upon review, we agree with the RTC and the CA that
the petitioner failed in this regard.
While the three elements quoted above must concur, self-defense
relies, first and foremost, on proof of unlawful aggression on the part of
the victim. If no unlawful aggression is proved, then no self-defense
may be successfully pleaded.13 "Unlawful aggression" here
presupposes an actual, sudden, and unexpected attack, or imminent
danger of the attack, from the victim.14
In the present case, particularly significant to this element of "unlawful
aggression" is the trial court’s finding that Macario was unarmed at the
time of the shooting, while the petitioner then carried with him a .45
caliber pistol. According to prosecution witness Villanueva, it was even
the petitioner who confronted the victim, who was then only buying
medicine from a sari-sari store. Granting that the victim tried to steal
the petitioner’s car battery, such did not equate to a danger in his life or
personal safety. At one point during the fight, Macario even tried to run
away from his assailant, yet the petitioner continued to chase the victim
and, using his .45 caliber pistol, fired at him and caused the mortal
wound on his chest. Contrary to the petitioner’s defense, there then
appeared to be no "real danger to his life or personal safety,"15 for no
unlawful aggression, which would have otherwise justified him in
inflicting the gunshot wounds for his defense, emanated from Macario’s
end.*
The weapon used and the number of gunshots fired by the petitioner,
in relation to the nature and location of the victim’s wounds, further
negate the claim of self-defense. For a claim of self-defense to
prosper, the means employed by the person claiming the defense must
be commensurate to the nature and extent of the attack sought to be
averted, and must be rationally necessary to prevent or repel an
unlawful aggression.16 Considering the petitioner’s use of a deadly
weapon when his victim was unarmed, and his clear intention to cause
a fatal wound by still firing his gun at the victim who had attempted to
flee after already sustaining two gunshot wounds, it is evident that the
petitioner did not act merely in self-defense, but was an aggressor who
actually intended to kill his victim.
Given the foregoing, and in the absence of any circumstance that
would have qualified the crime to murder, we hold that the trial court
committed no error in declaring the petitioner guilty beyond reasonable
doubt of the crime of frustrated homicide. Applying the rules provided
by the Indeterminate Sentence Law, the trial court correctly imposed
for such offense an indeterminate penalty of six ( 6) months and one
(1) day of prision correccional as minimum, to eight (8) years and one
(1) day of prision mayor as maximum. The award of actual damages is
also sustained. However, we hold that in line with prevailing
jurisprudence, 17 the victim is entitled to an award of moral damages in
the amount of P10,000.00.
WHEREFORE, the petition is DENIED. The Decision dated June 30,
2011 and Resolution dated December 1, 2011 ofthe Court of Appeals
in CA-G.R. CR No. 33180 are AFFIRMED with MODIFICATION in that
the petitioner Ramon Josue y Gonzales is also ordered to pay the
offended party the amount of P10,000.00 as moral damages.
G.R. No. 158057 September 24, 2004
NOE TOLEDO y TAMBOONG, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
This is a petition for review of the Decision1 of the Court of
Appeals (CA) in CA-G.R. CR No. 23742 affirming on appeal,
the Decision2 of the Regional Trial Court (RTC) of Odiongan,
Romblon, Branch 82, in Criminal Case No. OD-861, convicting
the petitioner of homicide.
In an Information filed in the RTC of Romblon, the petitioner
was charged with homicide allegedly committed as follows:
That on or about the 16th day of September 1995, at around
9:30 o’clock in the evening, in Barangay Libertad, municipality
of Odiongan, province of Romblon, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, with
intent to kill, did then and there, willfully, unlawfully and
feloniously attack, assault and stab with a bolo, one RICKY F.
GUARTE, which causes (sic) his untimely death.
Contrary to law.3
In due course, the prosecution adduced evidence against the
petitioner which was synthesized by the appellate court as
follows:
On September 16, 1995, appellant went to a black-smith who
made the design of his bolo. When he went home to Tuburan,
Odiongan, Romblon late in the afternoon (TSN, September 4,
1998, p. 2), appellant saw the group of Lani Famero, Michael
Fosana, Rex Cortez and Ricky Guarte drinking gin at the
house of the Spouses Manuel and Eliza Guarte, Ricky’s
parents. Appellant’s house is about five (5) meters away from
the house of Spouses Guarte. Appellant requested the group
of Ricky to refrain from making any noise. Thereupon,
appellant proceeded inside his house and went to sleep (ibid.,
p. 3). Around 9:00 p.m., Gerardo Faminia, Eliza Guarte’s
brother arrived at the Guarte house and asked for any left-over
food (TSN, August 5, 1998, p. 3). Eliza prepared dinner for him
and after Gerardo finished eating, he went home accompanied
by Ricky (TSN, April 26, 1996, p. 5). Gerardo’s home is about
twelve (12) meters away from the Guarte home (TSN,
February 17, 1997, p. 11). Minutes later, Ricky came back and
together with Lani, Rex and Michael, went to sleep at the
Guarte house. They had not laid down for long when they
heard stones being hurled at the roof of the house. The stoning
was made three (3) times (TSN, August 5, 1998, pp. 2-3).
Ricky rose from bed and peeped through a window. He saw
appellant stoning their house. Ricky went out of the house and
proceeded to appellant’s house. Ricky asked appellant, his
uncle, why he was stoning their house. Appellant did not
answer but met Ricky at the doorstep of his (appellant’s) house
(TSN, April 26, 1996, p. 6; August 5, 1998, pp. 4-5) and,
without any warning, stabbed Ricky on the abdomen with a
bolo (TSN, August 5, 1998, p. 8). Eliza had followed his son
Ricky and upon seeing that Ricky was stabbed, shouted for
help (TSN, February 17, 1997, p. 13). Lani heard Eliza’s cry for
help and immediately rushed outside the house. Lani saw
Ricky leaning on the ground and supporting his body with his
hands. Lani helped Ricky stand up and brought him to the main
road. Lani asked Ricky who stabbed him and Ricky replied that
it was appellant who stabbed him. Then Docloy Cortez arrived
at the scene on board his tricycle. Accordingly, Ricky was put
on the tricycle and taken to the Romblon Provincial Hospital
(TSN, January 19, 1998, pp. 4-6).
At the Romblon Provincial Hospital, Dr. Noralie Fetalvero
operated on Ricky that very night. Ricky had sustained one (1)
stab wound but due to massive blood loss, he died while being
operated on (TSN, November 24, 1997, pp. 2, 6-7). Dr.
Fetalvero issued a Medico-Legal Certificate showing the
injuries sustained by Ricky, thus:
Stab wound, left chest with gastric & transverse colon
evisceration measuring 6 cms. long, irregular-edged at 8th ICS,
left penetrating (operative findings):
(1) abdominal cavity perforating the stomach (thru & thru) and
the left lobe of the liver
(2) thoracic cavity thru the left dome of the diaphragm
perforating the lower lobe of the left lung.
(Exhibit C)
The Certificate of Death issued by Dr. Fetalvero stated the
cause of Ricky’s death as:
CAUSES OF DEATH:
Immediate cause : a. Cardiorespiratory Arrest
Antecedent cause : b. Hypovolemic shock
Underlying cause : c. Multiple thoraco-abdominal
injury 2º to stab wound
(Exhibit B)4
The Evidence of the Petitioner
The petitioner adduced evidence that at around 5:00 p.m. on
September 16, 1995, he was on his way home at Tuburan,
Odiongan, Romblon. He saw his nephew, Ricky Guarte, and
the latter’s friends, Michael Fosana, Rex Cortez, and Lani
Famero, about five meters away from his house, having a
drinking spree. He ordered them not to make loud noises, and
they obliged. He then went to his house, locked the door with a
nail, and went to sleep. However, he was awakened at around
9:30 p.m. by loud noises coming from Ricky and his three
companions. He peeped through the window grills of his house
and admonished them not to make any loud noises. Ricky, who
was then already inebriated, was incensed; he pulled out a
balisong, pushed the door, and threatened to stab the
petitioner. The petitioner pushed their sala set against the door
to block the entry of Ricky, but the latter continued to push the
door open with his hands and body. The petitioner ran to the
upper portion of their house and got his bolo.5 He returned to
the door and pushed it with all his might using his left hand. He
then pointed his bolo, which was in his right hand, towards
Ricky. The bolo accidentally hit Ricky on the stomach, and the
latter lost his balance and fell to the floor. The petitioner,
thereafter, surrendered to the barangay captain at 11:00 a.m.
on September 17, 1995.
After trial, the court rendered judgment finding the petitioner
guilty as charged. The fallo of the decision reads:
WHEREFORE, premises considered, NOE TOLEDO is hereby
found GUILTY beyond reasonable doubt of homicide with the
mitigating circumstance of voluntary surrender and is meted
the indeterminate penalty of from six (6) years and one (1) day
of prision mayor minimum, as minimum, to twelve (12) years
and one (1) day of reclusion temporal minimum, as maximum.
Accused is condemned to pay the amount of P50,000.00 as
civil liability to the heirs of the victim.6
The trial court did not give credence and probative weight to
the testimony of the petitioner that his bolo accidentally hit the
victim on the stomach.
On appeal in the CA, the petitioner raised the following issue in
his brief as appellant:
WHETHER OR NOT ACCUSED-APPELLANT CAN BE
CRIMINALLY HELD LIABLE FOR THE ACCIDENTAL DEATH
OF RICKY GUARTE7
Invoking Article 12, paragraph 4 of the Revised Penal Code,
the petitioner claimed that he stabbed the victim by accident;
hence, he is exempt from criminal liability for the death of the
victim.
The CA rendered judgment affirming the assailed decision with
modifications. The CA also denied the petitioner’s motion for
reconsideration thereof. The appellate court ruled that the
petitioner failed to prove that he acted in self-defense.
Aggrieved, the petitioner filed the instant petition for review,
contending that the CA erred in not finding that he acted in self-
defense when he stabbed the victim by accident and prays that
he be acquitted of the crime charged.
The sole issue in this case is whether or not the petitioner is
guilty beyond reasonable doubt of homicide based on the
evidence on record.
The petitioner contends that the CA committed a reversible
error when it affirmed the decision of the RTC convicting him of
homicide, on its finding that he failed to prove that he acted in
complete self-defense when the victim was hit by his bolo. The
petitioner insists that he acted in complete self-defense when
his bolo accidentally hit the victim on the stomach.
For its part, the Office of the Solicitor General asserts that the
petitioner failed to prove self-defense with clear and convincing
evidence. Hence, the decision of the CA affirming, on appeal,
the decision of the RTC is correct.
The contention of the petitioner has no merit.
The petitioner testified that his bolo hit the victim accidentally.
He asserted in the RTC and in the CA that he is exempt from
criminal liability for the death of the victim under Article 12,
paragraph 4 of the Revised Penal Code which reads:
4. Any person who, while performing a lawful act with due care,
causes an injury by mere accident without fault or intention of
causing it.
In his brief in the CA, the petitioner argued that:
In the case at bar, with all due respect, contrary to the findings
of the lower court, it is our humble submission that the death of
Ricky Guarte was merely a sad and unwanted result of an
accident without fault or intention of causing it on the part of
accused-appellant. We submit, there were clear and
indubitable factual indicators overlooked by the lower court,
bolstering the theory of the defense on accidental death.8
However, the petitioner changed gear, so to speak, and now
alleges that he acted in self-defense when he stabbed the
victim. As such, he contends, he is not criminally liable under
Article 11, paragraph 1 of the Revised Penal Code which
reads:
Art. 11. Justifying circumstances. – The following do not incur
any criminal liability:
1. Anyone who acts in defense of his person or rights, provided
that the following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to
prevent or repel it:
Third. Lack of sufficient provocation on the part of the person
defending himself.
The petitioner avers that he was able to prove the essential
elements of complete self-defense, thus:
A close scrutiny of the records of the case would show that the
petitioner acted in self-defense.
The essential requisites of self-defense are: (1) unlawful
aggression on the part of the victim; (2) reasonable scrutiny of
the means employed to prevent or repel it; and (3) lack of
sufficient provocation on the part of the person defending
himself (People vs. Silvano, 350 SCRA 650)9
However, the petitioner also claims that his bolo accidentally hit
the stomach of the victim.
It is a matter of law that when a party adopts a particular theory
and the case is tried and decided upon that theory in the court
below, he will not be permitted to change his theory on appeal.
The case will be reviewed and decided on that theory and not
approached and resolved from a different point of view. To
permit a party to change his theory on appeal will be unfair to
the adverse party.10
The petitioner is proscribed from changing in this Court, his
theory of defense which he adopted in the trial court and
foisted in the CA – by claiming that he stabbed and killed the
victim in complete self-defense. The petitioner relied on Article
12, paragraph 4 of the Revised Penal Code in the trial and
appellate courts, but adopted in this Court two divergent
theories – (1) that he killed the victim to defend himself against
his unlawful aggression; hence, is justified under Article 11,
paragraph 1 of the Revised Penal Code; (2) that his bolo
accidentally hit the victim and is, thus, exempt from criminal
liability under Article 12, paragraph 4 of the Revised Penal
Code.
It is an aberration for the petitioner to invoke the two defenses
at the same time because the said defenses are intrinsically
antithetical.11 There is no such defense as accidental self-
defense in the realm of criminal law.
Self-defense under Article 11, paragraph 1 of the Revised
Penal Code necessarily implies a deliberate and positive overt
act of the accused to prevent or repel an unlawful aggression
of another with the use of reasonable means. The accused has
freedom of action. He is aware of the consequences of his
deliberate acts. The defense is based on necessity which is the
supreme and irresistible master of men of all human affairs,
and of the law. From necessity, and limited by it, proceeds the
right of self-defense. The right begins when necessity does,
and ends where it ends.12 Although the accused, in fact,
injures or kills the victim, however, his act is in accordance with
law so much so that the accused is deemed not to have
transgressed the law and is free from both criminal and civil
liabilities.13 On the other hand, the basis of exempting
circumstances under Article 12 of the Revised Penal Code is
the complete absence of intelligence, freedom of action, or
intent, or the absence of negligence on the part of the
accused.14 The basis of the exemption in Article 12, paragraph
4 of the Revised Penal Code is lack of negligence and intent.
The accused does not commit either an intentional or culpable
felony. The accused commits a crime but there is no criminal
liability because of the complete absence of any of the
conditions which constitute free will or voluntariness of the
act.15 An accident is a fortuitous circumstance, event or
happening; an event happening wholly or partly through human
agency, an event which under the circumstances is unusual or
unexpected by the person to whom it happens.16
Self-defense, under Article 11, paragraph 1, and accident,
under Article 12, paragraph 4 of the Revised Penal Code, are
affirmative defenses which the accused is burdened to prove,
with clear and convincing evidence. Such affirmative defenses
involve questions of facts adduced to the trial and appellate
courts for resolution. By admitting killing the victim in self-
defense or by accident without fault or without intention of
causing it, the burden is shifted to the accused to prove such
affirmative defenses. He should rely on the strength of his own
evidence and not on the weakness of that of the prosecution. If
the accused fails to prove his affirmative defense, he can no
longer be acquitted.
The petitioner failed to prove that the victim was killed by
accident, without fault or intention on his part to cause it. The
petitioner was burdened to prove with clear and convincing
evidence, the essential requisites for the exempting
circumstance under Article 12, paragraph 4, viz:
1. A person is performing a lawful act;
2. With due care;
3. He causes an injury to another by mere accident;
4. Without fault or intention of causing it.
To prove his affirmative defense, the petitioner relied solely on
his testimony, thus:
Q What happened next when Ricky Guarte was able to push
through the door and you ran away?
A When Ricky Guarte was able to push the door, that is the
time I go (sic) downstairs and got my bolo and at that time the
body of Ricky Guarte was at the entrance of the door and
accidentally the bolo reached him.
Q Where did you get the bolo?
A I got the bolo in the post or wall of our house.
Q Was Ricky Guarte hit the first time you boloed him?
A Not hacking but accidentally.
Q What do you mean by accidentally?
A Because when Ricky Guarte pushed the door and unbalance
himself (sic) the bolo which I was carrying hit him accidentally.
Q Where was he hit by the bolo you were carrying?
A In the stomach.17
Q And since you were at the left side of the door, your right
hand was at the center part of the door, correct?
A No, Sir.
Q Where was your right hand?
A Holding a bolo.
Q Where, in what part of the door?
A Right side.
Q When Ricky Guarte was pushing the door, the door was not
opened?
A It was opened.
Q It was opened because you opened the door, correct?
A No, Sir.
Q Now, why was it opened?
A Because he was pushing it.
Q With his left hand?
A With his both hands and body.
Q Now, when he fell down because, according to you, he
losses (sic) his balance, the left side of the body was the first to
fell (sic) down, correct?
A Yes, Sir.
Q You are sure of your answer now Mr. Toledo?
A Yes, Sir.
Q Now, and while holding that bolo, you are doing that in [an]
upward position, correct?
A No, Sir, pointing the door.
Q Yes, you are pointing the tip of your bolo to the door upward,
correct?
A No, Sir, steady pointing to the door.
Q Now, when the door was opened, your bolo did not hit any
part of that door, correct?
A "Ginaiwas ko ang sunrang," meaning I was able to get away
from hitting any part of the door.
Q The question Mr. Toledo is simple, while the door was
opened and while you were pointing directly your bolo at the
door, not any part of the door hit the bolo (sic), correct?
ATTY. FORMILLEZA:
It was a valid answer, it did not hit any part of the door.
COURT:
Answer.
A No, Sir.
PROS. FRADEJAS continuing:
Q You were only about five inches away from your door while
pushing it, correct?
A Yes, Sir.
Q Now, when the door was pushed already by Ricky Guarte,
not any part of your body hit the door, correct?
A No, Sir.18
The petitioner also testified that the victim was armed with a
balisong and threatened to kill him as the said victim pushed,
with his body and hands, the fragile door of his house:
Q Where were you when you saw Ricky went out?
A I was at the door.
Q Did Ricky proceed to the door where you were?
A Yes, Sir.
Q What did he do, if any?
A He drew his fan knife or balisong and asked me what do you
like, I will stab you?
Q What did you do?
A I told him I have not done you anything wrong, I am only
scolding you or telling you not to make noise.
Q What, if any, did Ricky Guarte do to you?
A He pushed the door.
Q Whose door did he push?
A My own door.
Q Where were you when he pushed the door?
A Inside our house.19
We find the testimony of the petitioner incredible and barren of
probative weight.
First. If the testimony of the petitioner is to be believed, the
force of the struggle between him and the victim would have
caused the door to fall on the petitioner. However, the
petitioner failed to adduce real evidence that the door of his
house was destroyed and that he sustained any physical
injuries,20 considering that he was only five inches away from version of the events does not support a finding of unlawful
the door. aggression. In People vs. Pletado, the Supreme Court held:

Second. If the door fell to the sala of the house of the
petitioner, the victim must have fallen on top of the door. It is
incredible that the bolo of the petitioner could have hit the
stomach of the victim. The claim of the petitioner that he
managed to step aside and avoid being crushed by the door
belies his claim that the bolo accidentally hit the victim on the
stomach.
Third. When he surrendered to the barangay captain and to the
policemen, he failed to relate to them that his bolo accidentally
hit the stomach of the victim:
Q Now, that very night when you said Ricky Guarte was
accidentally hit by your bolo, you did not surrender to the
police, correct?
A I surrendered to the barangay captain at one o’clock in
Panique, in the afternoon.
Q Now, you only surrendered to the police when a certain
person advised you to surrender, correct?
A On my own volition, I surrendered to the barangay captain.
Q You did not narrate the incident to the barangay captain
whom you have surrendered, correct?
A No, Sir.
Q When you were brought to the municipal jail, you did not also
narrate to the police what happened, correct?
A No, Sir.
Q You just remained silent thinking of an excuse that
happened that evening of September 16, 1995, correct?
A No, Sir.21
Fourth. There is no evidence that the petitioner surrendered
either the bolo that accidentally hit the victim or the balisong
held by the deceased to the barangay captain or the police
authorities. Such failure of the petitioner negates his claim that
his bolo accidentally hit the stomach of the victim and that he
acted in self-defense.22
"xxx (F) or aggression to be appreciated, there must be an
actual, sudden, [un]expected attack or imminent danger
thereof, and not merely a threatening or intimidating attitude
(People vs. Pasco, Jr., supra, People vs. Rey, 172 SCRA 149
[1989]) and the accused must present proof of positively strong
act of real aggression (Pacificar vs. Court of Appeals, 125
SCRA 716 [1983]). Unlawful aggression must be such as to put
in real peril the life or personal safety of the person defending
himself or of a relative sought to be defended and not an
imagined threat."
Appellant was not justified in stabbing Ricky. There was no
imminent threat to appellant’s life necessitating his assault on
Ricky. Unlawful aggression is a condition sine qua non for the
justifying circumstance of self-defense. For unlawful
aggression to be appreciated, there must be an actual, sudden,
unexpected attack or imminent danger thereof, not merely a
threatening or intimidating attitude. In the absence of such
element, appellant’s claim of self-defense must fail.
Further, appellant’s plea of self-defense is not corroborated by
competent evidence. The plea of self-defense cannot be
justifiably entertained where it is not only uncorroborated by
any separate competent evidence but is in itself extremely
doubtful.25
Sixth. With the failure of the petitioner to prove self-defense,
the inescapable conclusion is that he is guilty of homicide as
found by the trial court and the CA. He cannot even invoke
Article 12, paragraph 4 of the Revised Penal Code.26
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED.
The assailed decision of the Court of Appeals is AFFIRMED.
Costs against the petitioner.

Fifth. To prove self-defense, the petitioner was burdened to

prove the essential elements thereof, namely: (1) unlawful
aggression on the part of the victim; (2) lack of sufficient
provocation on the part of the petitioner; (3) employment by
him of reasonable means to prevent or repel the aggression.
Unlawful aggression is a condition sine qua non for the
justifying circumstances of self-defense, whether complete or
incomplete.23 Unlawful aggression presupposes an actual,
sudden, and unexpected attack, or imminent danger thereof,
and not merely a threatening or intimidating attitude.24 We
agree with the ruling of the CA that the petitioner failed to prove
self-defense, whether complete or incomplete:

The evidence on record revealed that there is no unlawful

aggression on the part of Ricky. While it was established that
Ricky was stabbed at the doorstep of appellant’s house which
would give a semblance of verity to appellant’s version of the
incident, such view, however, is belied by the fact that Ricky
arrived at appellant’s house unarmed and had only one
purpose in mind, that is, to ask appellant why he threw stones
at his (Ricky’s) house. With no weapon to attack appellant, or
defend himself, no sign of hostility may be deduced from
Ricky’s arrival at appellant’s doorstep. Ricky was not
threatening to attack nor in any manner did he manifest any
aggressive act that may have imperiled appellant’s well-being.
Ricky’s want of any weapon when he arrived at appellant’s
doorstep is supported by the fact that only one weapon was
presented in court, and that weapon was the bolo belonging to
appellant which he used in stabbing Ricky. Thus, appellant’s
G.R. No. 170462 February 5, 2014
RODOLFO GUEVARRA and JOEY GUEVARRA, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
We review in this petition for review on certiorari1 the decision2
dated October 24, 2005 of the Court of Appeals (CA) in CA-
G.R. CR No. 28899. The CA affirmed, with modification on the
amount of damages, the joint decision3 dated April 16, 2004 of
the Regional Trial Court (RTC), Branch 20, Cauayan City,
Isabela, finding Rodolfo Guevarra and Joey Guevarra
(petitioners) guilty beyond reasonable doubt of the crimes of
frustrated homicide and homicide.
Factual Antecedents
Rodolfo and his son, Joey, were charged with the crimes of
frustrated homicide and homicide under two Informations which
read:
In Criminal Case No. Br. 20-1560 for Frustrated Homicide:
That on or about the 8th day of January, 2000, in the
municipality of Alicia, province of Isabela, Philippines, and
within the jurisdiction of this Honorable Court, the said
accused, conspiring, confederating together and helping one
another, with intent to kill and without any just motive, did then
and there, willfully, unlawfully and feloniously, assault, attack,
hack and stab for several times with a sharp pointed bolo one
Erwin Ordonez, who as a result thereof, suffered multiple hack
and stab wounds on the different parts of his body, which
injuries would ordinarily cause the death of the said Erwin
Ordonez, thus, performing all the acts of execution which
should have produced the crime of homicide as a
consequence, but nevertheless, did not produce it by reason of
causes independent of their will, that is, by the timely and able
medical assistance rendered to the said Erwin Ordonez, which
prevented his death.4
In Criminal Case No. Br. 20-1561 for Homicide:
That on or about the 8th day of January, 2000, in the
municipality of Alicia, province of Isabela, Philippines, and
within the jurisdiction of this Honorable Court, the said
accused, conspiring, confederating together and helping one
another, with intent to kill and without any just motive, did then
and there, willfully, unlawfully and feloniously, assault, attack,
hack and stab for several times with a sharp pointed bolo one
David Ordonez, who as a result thereof, suffered multiple hack
and stab wounds on the different parts of his body which
directly caused his death.5
Although the informations stated that the crimes were
committed on January 8, 2000, the true date of their
commission is November 8, 2000, as confirmed by the CA
through the records.6 The parties failed to raise any objection
to the discrepancy.7
On arraignment, the petitioners pleaded not guilty to both
charges.8 The cases were jointly tried with the conformity of
the prosecution and the defense. At the pre-trial, the petitioners
interposed self-defense, which prompted the RTC to conduct a
reverse trial of the case.9
During the trial, the parties presented different versions of the
events that transpired on November 8, 2000.
Version of the Defense
To prove the petitioners' claim of self-defense, the defense
presented the testimonies of Rodolfo, Joey, and the petitioners'
neighbor, Balbino Agustin.
Testimony of Rodolfo
Rodolfo, who was then fifty-five (55) years old, narrated that, at
around 11 :00 p.m., on November 8, 2000, brothers Erwin
Ordonez and David Ordonez, together with their companion,
Philip Vingua, forced their way into his compound and threw
stones at his house and tricycle. Through the back door of his
house, Rodolfo went down to the basement or "silung' and
shouted at the three men to stop. David saw him, threatened to
kill him, and struck him with a ''panabas," hitting him on the
palm of his left hand. Rodolfo responded by reaching for the
bolo tucked in the "so/era" of his house, and hacked and
stabbed Erwin and David until the two brothers fell to the
ground. Upon seeing Erwin and David lying on the ground,
Rodolfo called on someone to bring the brothers to the
hospital. He stayed in his house until the policemen arrived.
Testimony of Joey
Joey, who was then thirty-one (31) years old, narrated that, at
around 11:00 p.m., on November 8, 2000, he was awakened
by the sound of stones being thrown at their house in Bliss,
Paddad, Alicia, Isabela. Through the window, he saw Erwin,
David and Philip breaking into their gate, which was made of
wood and interlink wire and located five ( 5) to six ( 6) meters
away from their house. He then heard his father Rodolfo say to
the three men, "kung ano man ang problema bukas na natin
pag-usapan,"10 and David retorted in their dialect, "Okininam
nga lakay adda ka gayam dita, patayin taka."11
Testimony of Balbino
Balbino narrated that, from inside his house in Bliss, Paddad,
Alicia, Isabela, at around 10:00 p.m., on November 8, 2000, he
heard a person from the outside saying "Sige banatan ninyo
na."12 He opened his door and saw David, Erwin and Philip
throwing stones at the house of his neighbor Crisanto Briones.
Briones got mad and scolded the three men, "Why are you
hitting my house? Why don't you hit the house of your enemy,
mga tarantado kayo!"13 David, Erwin and Philip then aimed
their stones at the petitioners' house. Balbino heard David
calling out to Joey, "Joey, kung tunay kang lalaki lumabas ka
diyan sa kalsada at dito tayo magpatayan,"14 but no one came
out of Rodolfo's house. The stoning lasted for about thirty (30)
minutes.
Afterwards, Balbino saw David, Erwin and Philip destroy
Rodolfo's gate and pull the gate towards the road. He heard
David say to his companions, "koberan ninyo ako at papasok
kami."15 David, Erwin and Philip entered the petitioners'
compound and damaged Rodolfo's tricycle with stones and
their ''panabas." Also, he heard Rodolfo say to David in Filipino
that they could just talk about their problems with him the
following day. But David approached Rodolfo and hacked him
with a ''panabas." Rodolfo parried the blow with the back of his
hand, and David and Rodolfo struggled for the possession of
the ''panabas."
Balbino also saw Erwin hit Rodolfo on the face with a stone
and Joey was hit on his right foot, causing Rodolfo and Joey to
retreat to the "silung" of their house from where Rodolfo got
"something shiny," and with it stabbed David and Erwin. He
saw the two brothers fall to the ground.
Version of the Prosecution
As its rebuttal witness, the prosecution presented the sole
testimony of Erwin who survived the hacking.
Erwin narrated that, at around 10:00 to 11 :00 p.m., on
November 8, 2000, he, his brother David and Philip went to a
birthday party and passed in front of the petitioners' compound.
He was walking twenty (20) meters ahead of his companions
when, suddenly, Philip ran up to him saying that David was
being stabbed by Joey with a bolo. While approaching the
scene of the stabbing, which was three (3) meters away from
where his brother David was, Erwin was met by Rodolfo who
then hacked him, hitting his arm and back. Thereafter, Rodolfo
and Joey dragged Erwin inside the petitioners' compound and
kept on hacking him. He was hacked and stabbed thirteen (13)
times. He became weak and ultimately fell to the ground.
Erwin denied that he and David threw stones at the petitioners'
house and damaged Rodolfo's tricycle.1âwphi1 They did not
likewise destroy the petitioners' gate, which was only damaged
when his brother David clung on to it while he was being pulled
by Rodolfo and Erwin into their compound. While they were
being hacked and stabbed by Rodolfo and Erwin, stones
actually rained on them and people outside the petitioners'
gate were saying, "Do not kill the brothers. Allow them to come
out."16
After the incident, Erwin and David, both unconscious, were
brought to the hospital. David died in the hospital while being
treated for his wounds.
The RTC's Ruling
In a decision dated April 16, 2004, the RTC gave credence to
the prosecution's version of the incident and found the
petitioners guilty beyond reasonable doubt of the crimes of
frustrated homicide and homicide. It disbelieved the defense's
version of the events due to material inconsistencies in the
testimonies of the defense witnesses. It denied the petitioners'
claim of self-defense for lack of clear, convincing and
satisfactory supporting evidence.
The RTC explained in its decision that "[w]hen an accused
invokes the justifying circumstance of self-defense, he loses
the constitutional presumption of innocence and assumes the
burden of proving, with clear and convincing evidence, the
justification for his act";17 that self-defense is an affirmative
allegation which must be proven with certainty by sufficient,
satisfactory and convincing evidence that excludes any vestige
of criminal aggression on the part of the person invoking it.18
The RTC held that the petitioners miserably failed to prove that
there was unlawful aggression on the part of the victims, Erwin
and David.
Accordingly, the RTC disposed of the case as follows:
WHEREFORE, finding the accused Rodolfo Guevarra and
Joey Guevarra guilty beyond reasonable doubt of the crimes
for which they are charged, and absent any mitigating or
aggravating circumstance/s that attended the commission of
the crimes, the Court hereby sentences each of the accused to
suffer -In Criminal Case No. Br. 20-1560 for Frustrated
Homicide - an indeterminate penalty ranging from Three (3)
years and one day of prision correccional as minimum to Nine
(9) years of prision mayor as maximum and to indemnify the
victim Erwin Ordonez moral damages in the amount of Twenty
Thousand (P20,000.00) Pesos, without any subsidiary
imprisonment in case of insolvency. Cost against the accused.
In Criminal Case No. Br. 20-1561 for Homicide - an
indeterminate penalty ranging from Eight (8) years and one day
of prision mayor as minimum to Fifteen (15) years of Reclusion
Temporal as maximum and to indemnify the heirs of the
deceased David Ordonez Sixty Thousand (P60,000.00) Pesos
plus Thirty Thousand (P30,000.00) Pesos as moral damages
without subsidiary imprisonment in case of insolvency. Costs
against the accused.
The bail bonds of the accused are CANCELLED.19
The CA's Ruling
On appeal, the CA affirmed the RTC's judgment and convicted
the petitioners of the crimes charged. As the RTC did, the CA
found that Erwin and David committed no unlawful aggression
sufficient to provoke the actions of the petitioners; that
"aggression, to be unlawful, must be actual and imminent, such
that there is a real threat of bodily harm to the person resorting
to self-defense or to others whom that person is seeking to
defend."20 Even assuming the truth of the petitioners' claims
that David challenged Joey to a fight and threatened to kill
Rodolfo on the night of November 8, 2000, the CA held that
these acts do not constitute unlawful aggression to justify the
petitioners' actions as no real or actual danger existed as the
petitioners were then inside the safety of their own home.
The CA further held that the petitioners' plea of self-defense
was belied by the nature and number of wounds inflicted on
Erwin, who sustained thirteen (13) stab wounds on his arm and
back, and David, who suffered around ten (10) stab wounds on
his back and stomach causing his death. These wounds
logically indicated that the assault was no longer an act of self-
defense but a determined homicidal aggression on the part of
the petitioners.21
The CA, however, found error in the amounts of civil indemnity
and moral damages awarded by the RTC. Thus, the CA
modified the RTC's decision in this wise:
WHEREFORE, the appealed Decision is AFFIRMED with
MODIFICATION. In Crim. Case No. Br. 20-1561, appellants
RODOLFO GUEVARRA and JOEY GUEVARRA are each
ordered to pay the heirs of the deceased David Ordonez the
sum of Fifty Thousand Pesos (P.50,000.00) as civil indemnity
and another Fifty Thousand Pesos (P50,000.00) as moral
damages.22
The Petition
In the present petition, the petitioners raise the following
issues:
A. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN FAILING TO APPRECIATE THE
PRESENCE OF THE JUSTIFYING CIRCUMSTANCE OF
SELF-DEFENSE DESPITE CLEAR AND CONVINCING
EVIDENCE SHOWING THE ELEMENTS OF SELF-DEFENSE.
B. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN GIVING FULL CREDENCE TO THE
TESTIMONY OF THE LONE WITNESS OF THE
PROSECUTION.
C. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN NOT ACQUITTING PETITIONER JOEY
GUEVARRA WHO HAS NO PARTICIPATION IN THE SAID
INCIDENT.23
Our Ruling
We deny the present petition as we find no reversible error in
the CA decision of October 24, 2005.
At the outset, we emphasize that the Court's review of the
present case is via a petition for review under Rule 45, which
generally bars any question pertaining to the factual issues
raised. The well-settled rule is that questions of fact are not
reviewable in petitions for review under Rule 45, subject only to
certain exceptions, among them, the lack of sufficient support
in evidence of the trial court's judgment or the appellate court's
misapprehension of the adduced facts.24
The petitioners fail to convince us that we should review the
findings of fact in this case. Factual findings of the RTC, when
affirmed by the CA, are entitled to great weight and respect by
this Court and are deemed final and conclusive when
supported by the evidence on record.25 We find that both the
RTC and the CA fully considered the evidence presented by
the prosecution and the defense, and they have adequately
explained the legal and evidentiary reasons in concluding that
the petitioners are guilty of the crimes of frustrated homicide
and homicide.
In the absence of any showing that the trial and appellate
courts overlooked certain facts and circumstances that could
substantially affect the outcome of the present case, we uphold
the rulings of the RTC and the CA which found the elements of
these crimes fully established during the trial.
The crime of frustrated homicide is committed when: (1) an
"accused intended to kill his victim, as manifested by his use of
a deadly weapon in his assault; (2) the victim sustained fatal or
mortal wound/s but did not die because of timely medical
assistance; and (3) none of the qualifying circumstance for
murder under Article 248 of the Revised Penal Code is
present."26
On the other hand, the crime of homicide is committed when:
(1) a person is killed; (2) the accused killed that person without
any justifying circumstance; (3) the accused had the intention
to kill, which is presumed; and ( 4) the killing was not attended
by any of the qualifying circumstances of murder, or by that of
parricide or infanticide.27
The petitioners' intent to kill was clearly established by the
nature and number of wounds sustained by their victims.
Evidence to prove intent to kill in crimes against persons may
consist, among other things, of the means used by the
malefactors; the conduct of the malefactors before, at the time
of, or immediately after the killing of the victim; and the nature,
location and number of wounds sustained by the victim.28 The
CA aptly observed that the ten (10) hack/stab wounds David
suffered and which eventually caused his death, and the
thirteen (13) hack/stab wounds Erwin sustained, confirmed the
prosecution's theory that the petitioners purposely and
vigorously attacked David and Erwin.29
In fact, the petitioners admitted at the pre-trial that "the wounds
inflicted on the victim Erwin Ordonez would have caused his
death were it not for immediate medical attendance."30
By invoking self-defense, the petitioners, in effect, admitted to
the commission of the acts for which they were charged, albeit
under circumstances that, if proven, would have exculpated
them. With this admission, the burden of proof shifted to the
petitioners to show that the killing and frustrated killing of David
and Erwin, respectively, were attended by the following
circumstances: (1) unlawful aggression on the part of the
victims; (2) reasonable necessity of the means employed to
prevent or repel such aggression; and (3) lack of sufficient
provocation on the part of the persons resorting to self-
defense.31
Of all the burdens the petitioners carried, the most important of
all is the element of unlawful aggression. Unlawful aggression
is an actual physical assault, or at least a threat to inflict real
imminent injury, upon a person.32 The element of unlawful
aggression must be proven first in order for self-defense to be
successfully pleaded. There can be no self-defense, whether
complete or incomplete, unless the victim had committed
unlawful aggression against the person who resorted to self-
defense.33
As the RTC and the CA did, we find the absence of the
element of unlawful aggression on the part of the victims. As
the prosecution fully established, Erwin and David were just
passing by the petitioners' compound on the night of November
8, 2000 when David was suddenly attacked by Joey while
Erwin was attacked by Rodolfo. The attack actually took place
outside, not inside, the petitioners' compound, as evidenced by
the way the petitioners' gate was destroyed. The manner by
which the wooden gate post was broken coincided with Erwin's
testimony that his brother David, who was then clinging onto
the gate, was dragged into the petitioners' compound. These
circumstances, coupled with the nature and number of wounds
sustained by the victims, clearly show that the petitioners did
not act in self-defense in killing David and wounding Erwin. The
petitioners were, in fact, the real aggressors.
As to the penalties and damages
awarded
We affirm the penalties imposed upon the petitioners, as they
are well within the ranges provided by law, but modify the
damages awarded by the CA.
In addition to the P50,000.00 civil indemnity and P50,000.00
moral damages awarded by the CA, we award P25,000.00 to
each of the victims as temperate damages, in lieu of the actual
damages they sustained by reason of the crimes. Article 2224
of the Civil Code states that temperate or moderate damages
may be recovered when the court finds that some pecuniary
loss has been suffered but its amount cannot be proved with
certainty.
Also, we impose on all the monetary awards for damages
interest at the legal rate of six percent ( 6%) per annum from
date of finality of the decision until fully paid.34
WHEREFORE, the petition is DENIED. The decision dated
October 24, 2005 of the Court of Appeals is hereby AFFIRMED
with MODIFICATION in that the petitioners are also ordered to
pay Erwin Ordonez and the heirs of David Ordonez the amount
of P25,000.00 as temperate damages.
The petitioners shall pay interest at the rate of six percent (6%)
per annum on the civil indemnity, moral and temperate
damages from the finality of this decision until fully paid.
G.R. No. 200800 February 9, 2015
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
OSCAR SEVILLANO y RETANAL Accused-Appellant.
For this Court's resolution is the appeal filed by Oscar
Sevillano y Retanal (appellant) assailing the 17 August 2011
Decision1 of the Court of Appeals (CA) in CA-G.R. CR No.
04257 which affirmed the Regional Trial Court's (RTC) 4
December 2009 Judgment2 finding the appellant guilty beyond
reasonable doubt of the crime of murder.
Factual Antecedents
Appellant was charged before the RTC, Branch 1 7, Manila
with murder in an information that reads:
That on or about March 11, 2007, in the City of Manila,
Philippines, the said accused, with intent to kill and with
treachery and evident premeditation, did then and there
willfully, unlawfully and feloniously attack, assault and use
personal violence upon the person of PABLO MADDAUIN y
TAMANG by then and there suddenly and unexpectedly
stabbing him several times with a deadly bladed weapon hitting
upon the said Pablo T. Maddauin fatal stab wounds which are
the direct cause of his death immediately thereafter.3
During arraignment, appellant, assisted by his counsel,
pleaded not guilty to the crime charged. Trial thereafter
ensued.
Statement of Facts
The version of the prosecution was summarized by the CA
thus wise:
Prosecution witnesses Jose Palavorin and Carmelita Cardona,
67 and 46 years old, respectively, testified that at around 3:00
p.m. of 11 March 2007, they, together with Victim Pablo
Maddauin, were seated on a long bench having their usual
chit-chat at the vacant lot situated at 4th Street Guadal Canal,
St., Sta. Mesa, Manila. Witness Jose was the watchman of this
property. While conversing, they saw appellant coming towards
their direction. Appellant could not walk straight and appeared
to be drunk. Without warning, appellant pulled out a knife from
his waist and stabbed the victim on the chest. Jose and
Carmelita tried to restrain the appellant from attacking the
victim, but Jose experienced leg cramps and lost his hold on
appellant. Appellant turned again on the victim and continued
to stab him several times more. The victim was heard asking
appellant, "Bakit?". Carmelita shouted for help. The victim’s
wife came to the scene and embraced appellant as she
wrestled for the knife. Thereafter, [the] victim was brought to
the University of the East Ramon Magsaysay Memorial
Medical center; but unfortunately, he died that same day.4
Appellant, for his part, denied the accusations against him. He
interposed self-defense to absolve himself from criminal
liability. He averred that on that fateful afternoon, he went to
the vacant lot where the victim and his friends usually hang-out
to feed his chicken. While thereat, the victim, whom he
described to have bloodshot eyes, walk towards him and
stepped on his injured foot. While he was on his knees
because of the pain, he saw the victim draw a knife. The latter
thereafter stabbed at him while uttering: "Ikaw pa, putang ina
mo," but missed his target. As he and the victim grappled for
the knife, the latter was accidentally stabbed. When he saw
blood oozing out of the victim, he became apprehensive of the
victim’s relative to such extent that he fled the scene and hid to
as far as Bulacan where he was eventually apprehended.
Ruling of the RTC
In a Judgment5 dated 4 December 2009, the trial court found
appellant guilty of murder for the death of Pablo Maddauin
(Pablo) and sentenced him to suffer the penalty of reclusion
perpetua without eligibility of parole and to pay the heirs of the
deceased P50,000.00 as civil indemnity; P50,000.00 as moral
damages; and P25,000.00 as exemplary damages.
The trial court gave credence to the testimony of the
prosecution witnesses that appellant, who appeared to be
intoxicated, unexpectedly arrived and stabbed Pablo seven
times with a knife. The trial court disregarded appellant’s denial
as his testimony was outweighed by the positive statements of
the prosecution witnesses. It likewise ruled that treachery
attended the commission of the crime, as demonstrated by the
fact that the victim was seated and engaged in a conversation
when suddenly attacked by the appellant. The trial court ruled
that such situation foreclosed any opportunity on the part of the
victim to ward off the impending harm.
The Ruling of the Court of Appeals
In his appeal before the CA, appellant contended that:
I. THE TRIAL COURT GRAVELY ERRED IN FINDING THAT
THE ACCUSED-APPELLANT’S GUILT FOR THE CRIME
CHARGED HAS BEEN PROVEN BEYONDREASONABLE
DOUBT.
II.ON THE ASSUMPTION THAT THE ACCUSED-APPELLANT
IS LIABLE, THE TRIAL COURT GRAVELY ERRED IN
CONVICTING THE ACCUSED-APPELLANT OF MURDER
INSTEAD OF HOMICIDE.
III. THE TRIAL COURT ERRED INNOT FINDING THAT THE
ACCUSED-APPELLANT ACTED IN SELF-DEFENSE.6
The CA found no reason to disturb the findings of the RTC and
upheld its ruling but with modification on the amount of
damages awarded. The CA ordered appellant to indemnify the
heirs of Pablo in the amounts of P75,000.00 as civil indemnity;
P75,000.00 as moral damages; and P30,000.00 as exemplary
damages. The appellate court held that the eyewitness
accounts of prosecution witnesses Jose Palavorin and
Carmelita Cardona, and their positive identification of appellant
as the perpetrator, aptly complemented by the findings of the
postmortem examination, are more plausible than the
appellant’s claim of self-defense.7 The CA likewise sustained
the trial court’s findings that the qualifying circumstance of
treachery was present in the case. It held that although the
attack on the victim was frontal, it was deliberate, sudden and
unexpected, affording the hapless, unarmed and unsuspecting
victim no opportunity to resist or to defend himself.8
Issues
Undaunted, appellant is now before this Court continuing to
insist that his guilt was not proven beyond reasonable doubt,
and that the lower courts erred in rejecting his claim of self-
defense and convicting him of murder instead of homicide.
Our Ruling
We find the appeal bereft of merit.
Well entrenched in our jurisprudence is the rule that findings of
the trial court on the credibility of witnesses deserve great
weight, as the trial judge is in the best position to assess the
credibility of the witnesses, and has the unique opportunity to
observe the witness first hand and note his demeanor, conduct
and attitude under gruelling examination.9 Absent any showing
that the trial court’s calibration of credibility was flawed, the
appellate court is bound by its assessment. In the prosecution
of the crime of murder as defined in Article 248 of the Revised
Penal Code (RPC), the following elements must be established
by the prosecution: (1) that a person was killed; (2) that the
accused killed that person; (3) that the killing was attended by
treachery; and (4) that the killing is not infanticide or
parricide.10
After a careful evaluation of the records, we find that these
elements were clearly met. The prosecution witnesses
positively identified the appellant as the person who stabbed
Pablo several times on the chest which eventually caused the
latter’s death. They testified that they even tried to stop
appellant’s attack but unfortunately, were unsuccessful. We
find no reason to disbelieve the testimonies of these witnesses
considering that their narration of facts were straightforward
and replete with details that coincide with the medical
examination conducted on the body of the victim. We are not
persuaded by the appellant’s defense of denial as this cannot
prevail over the eyewitnesses’ positive identification of him as
the perpetrator of the crime. Denial, like alibi, if not
substantiated by clear and convincing evidence, is negative
and self-serving evidence undeserving of weight in law.11
Anent the presence of the element of treachery as a qualifying
circumstance, the prosecution was able to establish that the
attack on the unsuspecting victim, who was merely seated on a
bench and talking with his friends, was very sudden. In fact, the
victim was able to utter only "Bakit?". We note that the essence
of treachery is the sudden and unexpected attack on the
unsuspecting victim by the perpetrator of the crime, depriving
the former of any chance to defend himself or to repel the
aggression, thus insuring its commission without risk to the
aggressor and without any provocation on the part of the
victim.
By invoking self-defense, appellant in effect, admits to having
inflicted the stab wounds which killed the victim.1âwphi1 The
burden was, therefore, shifted on him to prove that the killing
was done in self-defense. In Razon v. People,12 this Court
held that where an accused admits the killing, he assumes the
burden to establish his plea by credible, clear and convincing
evidence; otherwise, conviction would follow from his
admission that he killed the victim. Self-defense cannot be
justifiably appreciated when corroborated by independent and
competent evidence or when it is extremely doubtful by itself.
Under Article 11, paragraph 1 of the RPC, the following
elements must be present in order that a plea of self-defense
may be validly considered in absolving a person from criminal
liability:
First. Unlawful Aggression;
Second. Reasonable necessity of the means employed to
prevent or repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself.
Appellant’s version that it was the victim who was armed with a
knife and threatened to stab him was found by the lower court
to be untenable. We agree with the lower court’s conclusion.
Assuming arguendo that there was indeed unlawful aggression
on the part of the victim, the imminence of that danger had
already ceased the moment appellant was able to wrestle the
knife from him. Thus, there was no longer any unlawful
aggression to speak of that would justify the need for him to kill
the victim or the former aggressor. This Court has ruled that if
an accused still persists in attacking his adversary, he can no
longer invoke the justifying circumstance of self-defense.13
The fact that the victim suffered many stab wounds in the body
that caused his demise, and the nature and location of the
wound also belies and negates the claim of self-defense. It
demonstrates a criminal mind resolved to end the life of the
victim.14
As to the penalties and damages
We affirm the penalty imposed upon appellant. Under Article
248 of the RPC, as amended, the crime of murder qualified by
treachery is penalized with reclusion perpetua to death. The
lower courts were correct in sentencing appellant to suffer the
penalty of reclusion perpetua, upon consideration of the
absence of any aggravating and mitigating circumstances that
attended the commission of the offense.
We likewise affirm the CA’s award of P75,000.00 as civil
indemnity; P75,000.00 as moral damages; and P30,000.00 as
exemplary damages to the victim’s heirs, as these amounts are
consistent with current jurisprudence.15 In addition, we impose
on all the monetary awards for damages interest at the legal
rate of six percent (6%) per annum from date of finality of the
resolution until fully paid.16
WHEREFORE, the petition is DENIED. The Decision dated 17
August 2011 of the Court of Appeals in CA-G.R. CR No. 04257
finding Oscar Sevillano y Retanal guilty beyond reasonable
doubt of murder, sentencing him to suffer the penalty of
reclusion perpetua without eligibility of parole, and ordering him
to indemnify the heirs of Pablo Maddauin in the amounts of
P75,000.00 as civil indemnity; P75,000.00 as moral damages;
and P30,000.00 as exemplary damages is hereby AFFIRMED
with MODIFICATION that he shall pay interest at the rate of six
percent ( 6%) per annum on the civil indemnity, moral and
exemplary damages awarded from finality of this resolution
until fully paid.
G.R. No. 180380 August 4, 2009
RAYMUND MADALI and RODEL MADALI, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
In this Petition for Review on Certiorari under Rule 45 of the
Rules of Court, petitioners Raymund Madali (Raymund) and
Rodel Madali (Rodel) seek the reversal of the 29 August 2007
Decision1 of the Court of Appeals in CA-G.R. CR No. 27757;
and its 23 October 2007 Resolution,2 affirming with
modifications the 28 July 2003 Decision3 of the Romblon,
Romblon, Regional Trial Court (RTC), Branch 81, in Criminal
Case No. 2179, finding petitioners guilty of homicide.
For the death of AAA,4 Raymund, Rodel and a certain
Bernardino "Jojo" Maestro (Bernardino) were charged before
the RTC with the crime of Murder. The accusatory portion of
the Information reads:
That on or about the 13th day of April 1999, at around 11:00
o’clock in the evening, in the Barangay XXX, Municipality of
Romblon, province of Romblon, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, with
intent to kill, conspiring, confederating and mutually helping
each other, did then and there by means of treachery and with
evident premeditation, willfully, unlawfully and feloniously
attack, assault, strike with a coconut frond and "llave inglesa"
and strangle with a dog chain, one AAA, inflicting upon the
latter mortal wounds in different parts of his body which caused
his untimely death.5
During the arraignment on 31 May 2000, the three accused,
with the assistance of counsel, pleaded not guilty.6
On trial, the prosecution presented eight witnesses, namely: (1)
Jovencio Musa (Jovencio), 16 years old, the victim’s cousin
and the alleged lone eyewitness to the killing; (2) Senior Police
Officer (SPO) 3 Rogelio Madali, the designated Deputy Chief of
Police of the Romblon Police Station; (3) Police Officer (PO) 3
Nicolas Molo, the police investigator assigned to the case; (4)
BBB, the mother of the deceased victim; (5) Dr. Carmen Lita P.
Calsado, Chief of the Romblon District Hospital, the physician
who issued the death certificate of AAA; (6) Emerson de Asis,
the alleged companion of witness Jovencio on the night in
question, who later became a hostile witness; (7) Michael
Manasan, also a companion of witness Jovencio before the
killing of the victim occurred; (8) Dr. Floresto Arizala, Jr., a
forensic expert from the National Bureau of Investigation (NBI),
Manila, who conducted the examination of the corpse of the
victim after the same was exhumed.
As documentary and object evidence, the prosecution offered
the following: (1) Exhibit "A" – Affidavit of Jovencio executed on
22 April 1999, detailing the circumstances prior to, during and
after the killing of the victim perpetrated by Raymund, Rodel
and Bernardino; (2) Exhibit "B" – Sinumpaang Salaysay of
Jovencio dated 8 May 1999, a recantation of the 22 April 1999
Affidavit; (3) Exhibit "C" – Amended Affidavit of Jovencio dated
28 May 1999, which was substantially the same on material
points as the 22 April 1999 Affidavit; (4) Exhibit "D" – Undated
Reply Affidavit of Jovencio insisting that the death of the victim
was authored by Raymund, Rodel and Bernardino; (5) Exhibit
"E" – Joint Affidavit of prosecution witnesses SPO3 Rogelio
Madali and a certain SPO2 Teresito M. Sumadsad; (6) Exhibit
"F" – the coconut frond recovered by the police officers from
the scene of the incident; (7) Exhibit "G" – a dog chain used as
part of a strap that was tied to the victim’s neck while he was
hanging from a tree; (8) Exhibit "H" – the handkerchief that was
tied around the victim’s neck; (9) Exhibit "I" – empty bottles of
gin; (10) Exhibit "J" – cellophanes with rugby; (10) Exhibit "K" –
pictures taken from the crime scene including the picture of the
body of the victim tied to a tree; (11) Exhibit "L" – Letter of
Request for the NBI to conduct an examination of the body of
the victim; (12) Exhibits "M" to "O" – NBI routing slips; (14)
Exhibit "P" – Death Certificate issued by Dr. Carmen Lita P.
Calsado; (15) Exhibit "Q" – Exhumation Report issued by Dr.
Floresto P. Arizala, Jr.; (16) Exhibit "R" – the Autopsy Report
submitted by Dr. Floresto P. Arizala, Jr.; (17) Exhibit "S" –
Sketch of the head of the victim showing the injuries thereon;
and (18) Exhibit "T" – handwritten draft of the exhumation
report.
Taken together, the evidence offered by the prosecution shows
that at around 5:30 in the afternoon of 13 April 1999, BBB, who
made a living by selling goods aboard ships docked at the
Romblon Pier, and who was constantly assisted by her 15-
year-old son AAA, was on a ship plying her wares. AAA,
together with Jovencio and Raymund, was there helping his
mother.7 Sometime later, Raymund and AAA left the ship.
Jovencio stayed a little longer.8
At about 9:00 p.m. of the same day, Jovencio and another
friend named Michael Manasan sat beside the Rizal monument
in the Poblacion of Romblon, located between the Roman
Catholic Church and Lover’s Inn. Michael had just left Jovencio
when Raymund, Rodel, Bernardino and the victim AAA arrived.
After meandering around, the group proceeded to climb the
stairs, atop of which was the reservoir just beside the Romblon
National High School. The victim, AAA, ascended first; behind
him were Rodel, Raymund, Bernardino and witness Jovencio.
As soon as they reached the reservoir, Bernardino blindfolded
AAA with the handkerchief of Raymund. Bernardino at once
blurted out, "Join the rugby boys." AAA replied, "That’s
enough." Bernardino then struck AAA thrice with a fresh and
hard coconut frond. AAA lost his balance and was made to
stand up by Raymund, Rodel and Bernardino. Raymund took
his turn clobbering AAA at the back of his thighs with the same
coconut frond. AAA wobbled. Before he could recover, he
received punches to his head and body from Rodel, who was
wearing brass knuckles. The punishments proved too much, as
AAA lost consciousness.
Not satisfied, Raymund placed his handkerchief around the
neck of AAA, with its ends tied to a dog chain. With the
contraption, the three malefactors pulled the body up a tree.
Stunned at the sight of his cousin being ill-treated, Jovencio
could only muster a faint voice saying "Enough" every single-
time AAA received the painful blows. Bernardino, who seemed
to suggest finishing off the victim, remarked, "Since we’re all
here, let’s get on with it." Before leaving the scene, the three
assailants warned Jovencio not to reveal the incident to
anyone, or he would be next.
Tormented and torn between the desire to come clean and the
fear for his life, Jovencio hardly slept that night. He did not
divulge the incident to anyone for the next few days. BBB, the
victim’s mother, was worried when her son did not come home.
She started asking relatives whether they had seen her son,
but their reply was always in the negative.
It was three days later that a certain Eugenio Murchanto
reported to the police authorities about a dead man found in
Barangay ZZZ near the Romblon National High School. When
the policemen went there, they found the cadaver emitting a
foul odor, with maggots crawling all over, hanging from a tree
with a handkerchief tied around the neck and a dog chain
fastened to the handkerchief. Also found in the area were
paraphernalia for inhaling rugby, as well as empty bottles of gin
and a coconut frond.
The provincial hospital refused to conduct an autopsy, since
AAA’s corpse was already decomposing and stank so badly. It
was through the intercession of the NBI that the body was
eventually exhumed and examined by medico-legal experts.
Dr. Floresto P. Arizala, Jr., who conducted the examination,
opined that the victim died due to head injuries and not to
asphyxiation by hanging. He declared that the victim was
already dead when he was tied to the tree, and that the variety
of injuries sustained by the victim could be attributed to more
than one assailant.
Upon investigation, Jovencio narrated the incident and pointed
to Raymund, Rodel and Bernardino as the perpetrators of the
crime. Thereafter, Jovencio executed his first affidavit, which
was dated 22 April 1999. Because of the threat made on him
by a certain Wilson, an uncle of Raymund and Rodel, Jovencio
executed a second affidavit dated 8 May 1999, repudiating his
first affidavit. On 28 May 1999, Jovencio made his third sworn
statement substantially reverting to his first affidavit.
The accused, on the other hand, advanced the defense of
denial and alibi. They claimed they had nothing to do with the
death of AAA, and that they were nowhere near the locus
criminis when the killing occurred.
According to Rodel, 16 years old, he was with his father
Rodolfo Madali in the house of a friend named Noel Mindoro,
located more or less 14 kilometers from the place where the
victim was slain where they spent the whole evening until the
following morning. Rodel’s testimony was corroborated by his
father and Noel Mindoro.
On their part, Raymund, 14 years of age, and Bernardino
declared that they were in their respective houses on the night
in question. Raymund’s place was allegedly five kilometers
away from the scene of the crime, while Bernardino’s was one
kilometer away. Bernardino’s testimony was supported by his
father Bernardino Maestro, Sr. and by his neighbor Diana
Mendez. Raymund’s friend, Pastor Mario Fajiculay backed up
the former’s alibi.
Convinced by the version of the prosecution, the RTC rendered
a guilty verdict against the three accused. On account of the
prosecution’s failure to prove the qualifying circumstances of
treachery and evident premeditation, they were only convicted
of homicide. The RTC observed that the incident was a sort of
initiation, in which the victim voluntarily went along with the
perpetrators, not totally unaware that he would be beaten. The
RTC also appreciated the privileged mitigating circumstance of
minority in favor of the three accused. The dispositive portion
of the RTC decision reads:
WHEREFORE, finding the accused BERNARDO (sic) Jojo
MAESTRO, JR., RODEL MADALI AND RAYMUND MADALI
GUILTY beyond reasonable doubt of the crime of Homicide,
they are hereby sentenced to suffer an indeterminate sentence
of four (4) years, two (2) months and one (1) day to six (6)
years and to indemnify the heirs of AAA jointly and severally
the amount of PhP 50,000.00.9
On 6 August 2003, Bernardino applied for probation. Thus,
only Raymund and Rodel elevated their convictions to the
Court of Appeals.
In a Decision dated 29 August 2007, the Court of Appeals
affirmed the findings of the RTC that Rodel and Raymund killed
the victim. However, pursuant to Section 64 of Republic Act
No. 9344, otherwise known as the "Juvenile Justice and
Welfare Act of 2006," which exempts from criminal liability a
minor fifteen (15) years or below at the time of the commission
of the offense, Raymund’s case was dismissed. Rodel’s
conviction was sustained, and he was sentenced to six months
and one day of prision correccional to eight years and one day
of prision mayor, but the imposition of said penalty was
suspended pursuant to Republic Act No. 9344. The judgment
provides:
WHEREFORE, the Decision dated July 28, 2003, rendered by
the Regional Trial Court of Romblon, Romblon (Branch 81) is
Criminal Case No. 2179, is affirmed with the following
MODIFICATIONS:
1) Appellant Raymund Madali is declared EXEMPT from
criminal liability and the case, insofar as he is concerned is
hereby DISMISSED pursuant to R.A. No. 9344.
2) Appellant Rodel Madali is found guilty of homicide, the
proper penalty for which is fixed at six (6) months and one (1)
day of prision correccional to eight (8) years and one (1) day of
prision mayor. Imposition of this penalty should, however, be
SUSPENDED, also pursuant to R.A. No. 9344.
3) In addition to the civil indemnity imposed by the trial court in
the amount of Fifty Thousand Pesos (P50,000.00), moral
damages in the amount of Fifty Thousand Pesos (P50,000.00)
is hereby awarded in favor of the heirs of the victim, AAA.
5) Finally, this case is referred to the Department of Social
Welfare and Development (DWSD) for further proceedings in
accordance with R.A. No. 9344.10
Hence, the instant case.
Petitioners Raymund and Rodel assail both the RTC and the
Court of Appeals’ findings, which gave weight and credence to
the account of the incident given by prosecution witness
Jovencio, whose testimony according to them was replete with
patent and substantial inconsistencies. First, petitioners set
their sights on the conflicting affidavits executed by Jovencio.
The first affidavit implicated the three accused in the death of
AAA, which was controverted by the second affidavit where
Jovencio denied having seen the three accused butcher the
victim, while the third affidavit restated the material points in
the first affidavit. Petitioners also pointed out the discrepancy
between the first and the third affidavits, as the former stated
that Jovencio was not seen by the three accused when they
executed the victim; whereas in the latter affidavit, Jovencio
stated he was with the three when the killing took place.
Second, petitioners assert that the testimony of Jovencio
relating to the alleged fact that his companions, Michael
Manasan and Emerson de Asis, saw the three accused and
the deceased during the night in question was debunked by the
very testimonies of Michael Manasan and Emerson de Asis
wherein they declared otherwise.
Moreover, petitioners contend that both the RTC and the Court
of Appeals erred in disbelieving the defense of alibi they
interposed, considering that the prosecution failed to muster
the required quantum of proof, and that said defense was
corroborated by testimonies of the other defense witnesses.
The elemental question in this case is the credibility of the
parties and their witnesses.
Well-entrenched is the rule that the matter of assigning values
to declarations on the witness stand is best and most Q: [Bernardino] who?
competently performed by the trial judge who, unlike appellate A: Maestro.
magistrates, can weigh such testimonies in light of the Q: What is the relation of this Jojo Maestro to Bernardino
declarant’s demeanor, conduct and position to discriminate Maestro you pointed a while ago?
between truth and falsehood.11 This is especially true when A: That Jojo is his alias.
the trial court’s findings have been affirmed by the appellate Q: Did you reach the top of the stairs?
court, because said findings are generally conclusive and A: Yes, sir.
binding upon this Court, unless it be manifestly shown that the Q: Upon reaching the top of the stairs, what did you do, if any?
lower courts had overlooked or disregarded arbitrarily the facts A: [Bernardino] blindfolded AAA.
and circumstances of significance in the case.12 Q: With what?
A: Handkerchief.
The RTC and the Court of Appeals did not overlook any Q: Where did he get that handkerchief?
significant facts in the case. A: From Raymund.
Q: After AAA, what is the family name of this AAA?
This Court itself, in its effort to ferret out the truth based on the A: AAA.
evidence on records has diligently pored over the transcripts of Q: After AAA was blindfolded, what happened next?
stenographic notes of this case and, like the RTC, finds the A: Then [Bernardino] told him "Join the rugby boys!"
testimony of Jovencio credible. Subjected to the grueling Q: Did AAA make any reply?
examinations on the witness stand, Jovencio steadfastly A: AAA said "That’s enough."
pointed to Raymund, Rodel and Bernardino as the persons Q: What happened after Jojo Maestro said you join the rugby
who slaughtered the victim. He testified as follows: boys?
A: AAA was struck by a coconut frond three (3) times.
Q: Mr. Witness, will you tell us where were you on April 13, Q: Who struck him with the coconut frond?
1999? A: [Bernardino].
A: I was at the Rizal standing by. Q: What happened to AAA when he was struck three (3) times
with the coconut fronds?
PROS. BENEDICTO continuing: A: He was made to stand.
Q: While you were at Rizal on April 13, 1999 in the evening, Q: After standing, what happened next?
[who was your companion]? A: AAA was again struck with the coconut frond byRaymund.
A: Only Michael. Q: Was AAA hit?
Q: And what were you doing with Michael? A: Yes, sir.
A: Only standing by there. Q: Where?
Q: Did anything happen while you were standing by with A: Here (witness is pointing to the posterior aspect of his right
Michael? thigh).
A: None, sir. Q: What happened to AAA when he was hit by the coconut
Q: Did anyone arrive while you were there? frond?
A: Yes, sir. A: As if he became weak.
Q: Who? Q: How about Rodel, what did Rodel do, if any?
A: Jojo [Bernardino] followed by Raymund then AAA, then A: He boxed the body and the head.
Rodel. Q: Of whom?
Q: And what happened when they arrived? A: Of Rodel.
A: They were also standing by there. Q: Who was boxed by Rodel?
Q: How long did they stand by in that place? A: AAA.
A: I do not know how many hours? Q: In Exhibit C you mentioned about llave inglesa, what is this
Q: Then, what happened next? llave inglesa?
A: Around 10:30 o’clock we went there. A: Lead llave inglesa.
Q: When you said we, to whom you are referring as your Q: And how does it look like?
companions? A: I forgot already but it was a brass knuckle.
A: Jojo [Bernardino], Rodel, Raymund and AAA. Q: Did Exh. C mention that Rodel punched him in different
Q: What happened to Michael? parts of his body with a llave inglesa causing him to fall to the
A: He went home. ground, how did Rodel use this llave inglesa?
Q: When you said you went there, to which place are you A: Worn in his hand (witness raising his right hand and
referring? motioning the left as if wearing something in his right hand),
A: Near the high school at hagdan-hagdan. then punched him.
Q: There are three (3) main streets in the Poblacion of Q: When he was punched on different parts of his body by
Romblon, which street did you take in going to hagdan-hagdan Rodel using llave inglesa, what happened to AAA?
near the high school? A: He lost consciousness.
A: In the middle. Q: When AAA lost consciousness, what did Bernardino
Q: Did you climb the stairs? Maestro, Raymund Madali and Rodel Madali do, if any?
A: Yes, sir. A: Raymund used his handkerchief in tying the neck of my
Q: Who was ahead? cousin.
A: AAA. Q: Who is this cousin of yours?
Q: And who came next? A: AAA.
A: Rodel. Q: What is the family name?
Q: Then, after Rodel, who? A: AAA.
A: Raymund.
Q: Then?
A: [Bernardino].
COURT:
How about Bernardino as part of the question?
PROS. BENEDICTO continuing:
Q: Bernardino, what did he do, if any?
A: The chain for the dog was tied to the handkerchief.
COURT:
How about Rodel?
A: They helped in lifting him and making him stand and hooked the tie
to the tree.
Q: What is this tie which was hooked to the tree made of?
A: The chain.
Q: Referring to the dog chain?
A: Yes, sir.
Q: While all these things were happening, what was Jovencio Musa
doing who is a cousin of AAA?
A: I got shock upon seeing it.
Q: Did Jovencio Musa utter anything or do something?
A: Everytime AAA was being struck I said "Enough!"
(Tama na!).
Q: How many times did you say that is enough?
A: Twice.
Q: How did the three (3) react to your saying "Tama na, tama na!"?
A: "It is already here so we will proceed."
COURT:
Translate that.
A: "Yari na ini, idiretso na."
Q: After tying the dog chain to the tree, what happened next?
A: I was told by the three (3) that if I would reveal I would be the next to
be killed.
Q: After that, what happened?
A: No more, we went home already.13
Jovencio saw at close range the incident as it was unfolding before his
very eyes as he was there when it happened. He was in the company
of the perpetrators and the victim. Thus, the incident could not have
escaped his attention. The prosecution adequately established in
graphic detail, through the eyewitness, the circumstances that
transpired before, during and after the killing of AAA. At around 11:30
p.m. of 13 April 1999, Jovencio, together with the victim, as well as with
Rodel, Raymund and Bernardino, went to a place near the Romblon
National High School. Jovencio’s earlier companion, Michael Manasan,
did not go with the group, as he had already left a little earlier. As they
reached their destination, the group ascended the stairs leading to a
reservoir near the said school. AAA was ahead, followed by Rodel,
Raymund, Bernardino and Jovencio. Upon reaching the top,
Bernardino blindfolded the victim with a handkerchief and told the
latter, "Join the rugby boys!" The victim responded, "That’s enough!"
Bernardino then hit the victim thrice, using a green and hard coconut
frond. Unable to withstand the beatings, the victim hit the ground and
was lifted to his feet by Bernardino, Raymund and Rodel. With the
same coconut frond, Raymund hit the victim on his right thigh. Rodel
followed by punching the body and the head of the victim with a brass
knuckle (llave inglesa) wrapped around the former’s right fist. Feeling
for his cousin, Jovencio shouted "Tama na! Tama na!" Bernardino
responded, "Yari na ini, ideretso na," (We have come this far, we have
to finish it.) The victim’s strength was no match to the injuries he
received. He passed out. Raymund then tied a handkerchief around
the victim’s neck, fastened a dog chain to the ends of the said
handkerchief and, with the aid of Raymund and Rodel, hoisted the
victim’s body to and hanged it from a nearby tree. Shocked at what
was happening, Jovencio just watched the whole incident, failing to
muster enough courage to help his dying cousin.
The perpetrators warned Jovencio not to divulge to anyone what he
saw, or he would be the next victim. Then they all left the place, leaving
the victim’s body hanging from a tree.
The testimony of Jovencio was substantiated by the medical findings
indicating that the victim was hit in the head by hard blows, causing his
death. Other pieces of evidence such as the coconut frond, the dog
chain and the handkerchief found in the scene also supported
Jovencio’s account.
Against the damning evidence adduced by the prosecution, petitioners
Raymund and Rodel could only muster mere denial. Unfortunately for
them, their defense was much too flaccid to stay firm against the
weighty evidence for the prosecution. Denial, if unsubstantiated by
clear and convincing evidence, is a negative and self-serving evidence
that deserves no weight in law. It cannot be given greater evidentiary
value than the testimony of a credible witness who testifies on
affirmative matters.14 Between the self-serving testimonies of
petitioners and the positive identification by the eyewitness, the latter
deserves greater credence.15
Petitioners’ alibi, which was supported by the testimonies of close
relatives and friends, cannot overcome the convincing evidence
adduced by the prosecution. Such corroborative testimonies of
relatives and friends are viewed with suspicion and skepticism by the
Court.16
Furthermore, for alibi to prosper, two elements must concur: (a) the
accused was in another place at the time the crime was committed;
and (b) it was physically impossible for him to be at the scene of the
crime at the time it was committed. In the case under consideration,
Raymund was within a 5-kilometer distance from the scene, while
Rodel was within a 14-kilometer distance. Even assuming arguendo
that Raymund and Rodel’s defense were true, still, it was not physically
impossible for them to be at the crime scene and to be participants in
the gruesome crime. It was not difficult for them to travel from where
they allegedly were and arrive at the scene during the killing episode.
Petitioners made an issue of the affidavit of recantation repudiating the
earlier one laying the blame on them. The affidavit of recantation
executed by a witness prior to the trial cannot prevail over the
testimony made during the trial.17 Jovencio effectively repudiated the
contents of the affidavit of recantation. The recantation would hardly
suffice to overturn the trial court’s finding of guilt, which was based on
a clear and convincing testimony given during a full-blown trial. As held
by this Court, an affidavit of recantation, being usually taken ex parte,
would be considered inferior to the testimony given in open court.18 A
recantation is exceedingly unreliable, inasmuch as it is easily secured
from a poor and ignorant witness, usually through intimidation or for
monetary consideration.19 Considering the age, the social standing
and the economic status of witness Jovencio, it is not far-fetched that
the combination of these factors impelled him to affix his signature to
the recanting affidavit. Besides, Jovencio explained why he executed
the second affidavit or the affidavit of recantation, which supposedly
exonerated petitioners. He had been threatened by a certain Wilson,
who was a relative of petitioners. Jovencio testified:
Q: Alright, in Exh. C specifically C-1, you mentioned that, you said that
somebody fetched me in the evening of May 7, 1999 who told me that
Rey Andrade wanted to talk to me regarding the incident, who was that
somebody who fetched you in the house?
A: I do not know but he is known as Andrade.
Q: What was the subject of your conversation with Andrade?
A: About the Nephew of Wilson.
Q: How about this Wilson you were referring to?
A: Wilson all of a sudden arrived there.
Q: Did Wilson say anything?
A: Wilson said, if we will lose, all our expenses will be paid and if he
wins I will be the next.20
Petitioners also place much premium on the alleged contradiction
between Jovencio’s narrative -- which claimed that Emerson de Asis
and Michael Manasan saw the victim in the company of the
malefactors immediately prior to the killing -- and the testimonies of
these two witnesses denying such allegation.
Unfortunately, this is just a minor inconsistency. The common narration
of Emerson de Asis and Michael Manasan that they did not see the
perpetrators with the victim prior to the killing are too insignificant,
since their narration did not directly relate to the act of killing itself. Said
inconsistency does not dilute the declarations of Jovencio. Given the
natural frailties of the human mind and its incapacity to assimilate all
material details of a given incident, slight inconsistencies and variances
in the declarations of a witness hardly weaken their probative value. It
is well settled that immaterial and insignificant details do not discredit a
testimony on the very material and significant point bearing on the very
act of accused-appellants.21 As long as the testimonies of the
witnesses corroborate one another on material points, minor
inconsistencies therein cannot destroy their credibility. Inconsistencies
on minor details do not undermine the integrity of a prosecution
witness.22 The minor inconsistencies and contradictions only serve to
attest to the truthfulness of the witnesses and the fact that they had not
been coached or rehearsed.23
The declaration of Michael Manasan -- that he did not see the
petitioners together with Jovencio and the victim immediately prior the
incident -- does not help a bit the cause of petitioners. As the Court of
Appeals correctly pointed out, Michael could not have seen the
malefactors in the company of the victim because according to
Jovencio, Michael had gone home earlier that evening.
In fine, this Court defers to the findings of the trial court, which were
affirmed by the Court of Appeals, there being no cogent reason to veer
away from such findings.
As to the criminal liability, Raymond is exempt. As correctly ruled by
the Court of Appeals, Raymund, who was only 14 years of age at the
time he committed the crime, should be exempt from criminal liability
and should be released to the custody of his parents or guardian
pursuant to Sections 6 and 20 of Republic Act No. 9344, to wit:
SEC. 6. Minimum Age of Criminal Responsibility. — A child fifteen (15)
years of age or under at the time of the commission of the offense shall
be exempt from criminal liability. However, the child shall be subjected
to an intervention program pursuant to Section 20 of this Act.
The exemption from criminal liability herein established does not
include exemption from civil liability, which shall be enforced in
accordance with existing laws.
SEC. 20. Children Below the Age of Criminal Responsibility. — If it has
been determined that the child taken into custody is fifteen (15) years
old or below, the authority which will have an initial contact with the
child has the duty to immediately release the child to the custody of
his/her parents or guardian, or in the absence thereof, the child's
nearest relative. Said authority shall give notice to the local social
welfare and development officer who will determine the appropriate
programs in consultation with the child and to the person having
custody over the child. If the parents, guardians or nearest relatives
cannot be located, or if they refuse to take custody, the child may be
released to any of the following: a duly registered nongovernmental or
religious organization; a barangay official or a member of the Barangay
Council for the Protection of Children (BCPC); a local social welfare
and development officer; or, when and where appropriate, the DSWD.
If the child referred to herein has been found by the Local Social
Welfare and Development Office to be abandoned, neglected or
abused by his parents, or in the event that the parents will not comply
with the prevention program, the proper petition for involuntary
commitment shall be filed by the DSWD or the Local Social Welfare
and Development Office pursuant to Presidential Decree No. 603,
otherwise known as "The Child and Youth Welfare Code."
Although the crime was committed on 13 April 1999 and Republic Act
No. 9344 took effect only on 20 May 2006, the said law should be
given retroactive effect in favor of Raymund who was not shown to be
a habitual criminal. This is based on Article 22 of the Revised Penal
Code which provides:
Retroactive effect of penal laws. — Penal laws shall have a retroactive
effect insofar as they favor the person guilty of a felony, who is not a
habitual criminal, as this term is defined in Rule 5 of Article 62 of this
Code, although at the time of the publication of such laws a final
sentence has been pronounced and the convict is serving the same.
While Raymund is exempt from criminal liability, his civil liability is not
extinguished pursuant to the second paragraph of Section 6, Republic
Act No. 9344.
As to Rodel’s situation, it must be borne in mind that he was 16 years
old at the time of the commission of the crime. A determination of
whether he acted with or without discernment is necessary pursuant to
Section 6 of Republic Act No. 9344, viz:
SEC. 6. Minimum Age of Criminal Responsibility. – x x x.
A child above fifteen (15) years but below eighteen (18) years of age
shall likewise be exempt from criminal liability and be subjected to an
intervention program, unless he/she has acted with discernment, in
which case, such child shall be subjected to the appropriate
proceedings in accordance with this Act.
Discernment is that mental capacity of a minor to fully appreciate the
consequences of his unlawful act.24 Such capacity may be known and
should be determined by taking into consideration all the facts and
circumstances afforded by the records in each case.
The Court of Appeals could not have been more accurate when it
opined that Rodel acted with discernment. Rodel, together with his
cohorts, warned Jovencio not to reveal their hideous act to anyone;
otherwise, they would kill him. Rodel knew, therefore, that killing AAA
was a condemnable act and should be kept in secrecy. He fully
appreciated the consequences of his unlawful act.
Under Article 68 of the Revised Penal Code, the penalty to be imposed
upon a person under 18 but above 15 shall be the penalty next lower
than that prescribed by law, but always in the proper period.
The penalty for homicide under Article 249 of the Revised Penal Code
is reclusion temporal. Pursuant to Article 68, the maximum penalty
should be within prision mayor, which is a degree lower than reclusion
temporal. Absent any aggravating or mitigating circumstance, the
maximum penalty should be in the medium period of prision mayor or 8
years and 1 day to 10 years. Applying the Indeterminate Sentence
Law, the minimum should be anywhere within the penalty next lower in
degree, that is, prision correccional. Therefore, the penalty imposed by
the Court of Appeals, which is 6 months and one day of prision
correccional to 8 years and one day of prision mayor, is in order.
However, the sentence to be imposed against Rodel should be
suspended pursuant to Section 38 of Republic Act No. 9344, which
states:
SEC. 38. Automatic Suspension of Sentence. – Once the child who is
under eighteen (18) years of age at the time of the commission of the
offense is found guilty of the offense charged, the court shall determine
and ascertain any civil liability which may have resulted from the
offense committed. However, instead of pronouncing the judgment of
conviction, the court shall place the child in conflict with the law under
suspended sentence, without need of application. Provided, however,
That suspension of sentence shall still be applied even if the juvenile is
already eighteen (18) years of age or more at the time of the
pronouncement of his/her guilt.
Upon suspension of sentence and after considering the various
circumstances of the child, the court shall impose the appropriate
disposition measures as provided in the Supreme Court Rule on
Juveniles in Conflict with the Law.
The Court of Appeals awarded P50,000.00 as civil indemnity and
another P50,000.00 as moral damages in favor of the heirs of the
victim. In addition, Rodel and Raymund are ordered to pay P25,000.00
as temperate damages in lieu of the actual damages for funeral
expenses, which the prosecution claimed to have incurred but failed to
support by receipts.
WHEREFORE, the petition is DENIED. The Decision of the Court of
Appeals dated 29 August 2007 in CA-G.R. No. 27757, exempting
Raymund Madali from criminal liability is hereby AFFIRMED. With
respect to Rodel Madali, being a child in conflict with the law, this Court
suspends the pronouncement of his sentence and REMANDS his case
to the court a quo for further proceedings in accordance with Section
38 of Republic Act No. 9344. However, with respect to the civil
liabilities, Rodel Madali and Raymund Madali are solidarily liable to pay
the heirs of the victim the amount of P50,000.00 as civil indemnity,
P50,000.00 as moral damages and P25,000.00 as temperate
damages.
G.R. No. 169641 September 10, 2009
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
RICHARD O. SARCIA, Accused-Appellant.
On automatic review is the decision1 dated July 14, 2005 of
the Court of Appeals (CA) in CA-G.R. CR-HC No. 00717 which
affirmed, with modifications, an earlier decision2 of the
Regional Trial Court (RTC) of Ligao City, Branch 13, in
Criminal Case No. 4134, finding herein accused-appellant
Richard O. Sarcia alias "Nogi" guilty beyond reasonable doubt
of the crime of rape3 committed against AAA,4 and sentenced
him to suffer the penalty of Reclusion Perpetua and to pay the
amount of P50,000.00 as civil indemnity, P50,000.00 as moral
damages, and the cost of the suit. However, the CA modified
the penalties imposed by the RTC by imposing the death
penalty, increasing the award of civil indemnity to P75,000.00,
and awarding P25,000.00 as exemplary damages, aside from
the P50,000.00 for moral damages.
The crime of rape was allegedly committed sometime in 1996
against AAA, a five (5) year old girl. After almost four (4) years,
AAA’s father filed a complaint5 for acts of lasciviousness
against herein accused-appellant on July 7, 2000. Upon review
of the evidence, the Office of the Provincial Prosecutor at
Ligao, Albay upgraded the charge to rape.6 The Information7
dated September 5, 2000 reads:
That sometime in 1996 at Barangay Doña Tomasa,
Municipality of Guinobatan, Province of Albay, Philippines, and
within the jurisdiction of this Honorable Court, the above-
named accused, with lewd and unchaste design, and by
means of force, threats and intimidation, did then and there
willfully, unlawfully and feloniously have sexual intercourse with
[AAA], who was then 6 years of age, against her will and
consent, to her damage and prejudice.
ACTS CONTRARY TO LAW.
At his arraignment on October 25, 2000, accused-appellant,
with the assistance of his counsel, entered a plea of not guilty.8
Thereafter, trial on the merits ensued.
The prosecution presented the oral testimonies of the victim
AAA; her minor cousin; her father; and Dr. Joana Manatlao, the
Municipal Health Officer of Guinobatan, Albay. The defense
presented the accused-appellant himself, who vehemently
denied committing the crimes imputed to him and Manuel
Casimiro, Clerk of Court II of the Municipal Trial Court at
Guinobatan, Albay.
On January 17, 2003, the trial court rendered its Decision9
finding the accused-appellant guilty of the crime of rape and
imposed the penalty mentioned above.
The record of this case was forwarded to this Court in view of
the Notice of Appeal filed by the accused- appellant.10
Accused-appellant filed his Appellant’s Brief11 on July 15,
2004, while the People, through the Office of the Solicitor
General, filed its Appellee’s Brief12 on December 15, 2004.
Pursuant to our pronouncement in People v. Mateo,13
modifying the pertinent provisions of the Revised Rules on
Criminal Procedure insofar as they provide for direct appeals
from the RTC to this Court in cases in which the penalty
imposed by the trial court is death, reclusion perpetua or life
imprisonment, and the Resolution dated September 19, 1995
in "Internal Rules of the Supreme Court," the case was
transferred, for appropriate action and disposition, to the CA
where it was docketed as CA-G.R. CR-H.C. No. 00717.
As stated at the beginning hereof, the CA, in its decision of July
14, 2005, in CA-G.R. CR-H.C. No. 000717, affirmed with
modification the judgment of conviction pronounced by the trial
court. We quote the fallo of the CA decision:
WHEREFORE, the judgment of conviction is AFFIRMED. The
accused, Richard Sarcia y Olivera, is ordered to suffer the
penalty of DEATH, and to pay the victim, [AAA], the amount of
(1) P75,000.00 as civil indemnity; (2) P50,000.00 as moral
damages, and (3) P25,000.00 as exemplary damages.
Let the entire records of this case be elevated to the Supreme
Court for review, pursuant to A.M. No. 00-5-03-SC
(Amendments to the Revised Rules of Criminal Procedure to
Govern Death Penalty Cases), which took effect on October
15, 2004.
SO ORDERED.
On September 30, 2005, the case was elevated to this Court
for further review.14
In our Resolution15 of November 15, 2005, we required the
parties to simultaneously submit their respective supplemental
briefs. Accused-appellant filed his Supplemental Brief16 on
April 7, 2006. Having failed to submit one, the Office of the
Solicitor General (OSG) was deemed to have waived the filing
of its supplemental brief.
In his Brief filed before the CA, accused-appellant raised the
following assignment of errors:
I THE LOWER COURT GRAVELY ERRED IN GIVING
CREDENCE TO THE TESTIMONY OF [AAA], [her cousin] and
[her father].
II THE LOWER COURT GLARINGLY ERRED IN REJECTING
THE DEFENSE OF ALIBI INTERPOSED BY THE ACCUSED
WHICH IS MORE CREDIBLE.
III THE LOWER COURT GRAVELY ERRED IN NOT
ACQUITTING THE ACCUSED RICHARD SARCIA.
The evidence for the prosecution is summarized by the OSG in
the Appellee's Brief, as follows:
On December 16, 1996, five-year-old [AAA], together with her
[cousin and two other playmates], was playing in the yard of
Saling Crisologo near a mango tree.
Suddenly, appellant appeared and invited [AAA] to go with him
to the backyard of Saling Crisologo’s house. She agreed.
Unknown to appellant, [AAA’s cousin] followed them.
Upon reaching the place, appellant removed [AAA’s] shorts
and underwear. He also removed his trousers and brief.
Thereafter, he ordered [AAA] to lie down on her back. Then, he
lay on top of her and inserted his penis into [AAA’s] private
organ. Appellant made an up-and-down movement
("Nagdapadapa tabi"). [AAA] felt severe pain inside her private
part and said "aray." She also felt an intense pain inside her
stomach.
[AAA’s cousin], who positioned herself around five (5) meters
away from them, witnessed appellant’s dastardly act. Horrified,
[AAA’s cousin] instinctively rushed to the house of [AAA’s]
mother, her aunt Emily, and told the latter what she had seen.
[AAA’s] mother answered that they (referring to {AAA and her
cousin} were still very young to be talking about such matters.
Meanwhile, after satisfying his lust, appellant stood up and
ordered [AAA] to put on her clothes. Appellant then left.
Perplexed, [AAA’s cousin] immediately returned to the
backyard of Saling Crisologo where she found [AAA] crying.
Appellant, however, was gone. [AAA’s cousin] approached
[AAA] and asked her what appellant had done to her. When
[AAA] did not answer, [her cousin] did not ask her any further
question and just accompanied her home.
At home, [AAA] did not tell her mother what appellant had done
to her because she feared that her mother might slap her.
Later, when her mother washed her body, she felt a grating
sensation in her private part. Thereafter, [AAA] called for [her
cousin]. [AAA’s cousin] came to their house and told [AAA’s]
mother again that appellant had earlier made an up-and-down
movement on top of [AAA]. [AAA’s mother], however did not
say anything. At that time, [AAA’s] father was working in
Manila.
Dr. Joana Manatloa is the Municipal Health Officer of
Guinobatan, Albay. She testified that: (1) it was the rural health
officer, Dr. Reantaso, who conducted a physical examination
on [AAA]; (2) Dr. Reantaso prepared and signed a medico-
legal certificate containing the result of [AAA]’s examination; (3)
Dr. Reantaso, however, had already resigned as rural health
officer of Guinobatan, Albay; (4) as a medical doctor, she can
interpret, the findings in said medico-legal certificate issued to
[AAA]; (5) [AAA]’s medical findings are as follows: "negative for
introital vulvar laceration nor scars, perforated hymen,
complete, pinkish vaginal mucosa, vaginal admits little finger
with resistance; (6) the finding "negative for introital bulvar
laceration nor scars" means, in layman’s language, that there
was no showing of any scar or wound, and (7) there is a
complete perforation of the hymen which means that it could
have been subjected to a certain trauma or pressure such as
strenuous exercise or the entry of an object like a medical
instrument or penis.17
On the other hand, the trial court summarized the version of
the defense as follows:
Richard Sarcia, 24 years old, single, student and a resident of
Doña Tomasa, Guinobatan, Albay denied he raped [AAA].
While he knows [AAA’s] parents, because sometimes they go
to their house looking for his father to borrow money, he does
not know [AAA] herself. His father retired as a fireman from
Crispa in 1991 while his mother worked as an agriculturist in
the Municipality of Teresa, Antipolo, Rizal. As an agriculturist of
the Department of Agriculture, his mother would bring
seedlings and attend seminars in Batangas and Baguio. They
were residing in Cainta, Rizal when sometime in 1992 they
transferred residence to Guinobatan, Albay. His father is from
barangay Masarawag while his mother is from barangay Doña
Tomasa both of Guinobatan, Albay. After their transfer in
Guinobatan, his mother continued to be an agriculturist while
his father tended to his 1-hectare coconut land. Richard
testified he was between fourteen (14) and fifteen (15) years
old in 1992 when they transferred to Guinobatan. Between
1992 and 1994 he was out of school. But from 1994 to 1998 he
took his high school at Masarawag High School. His daily
routine was at about 4:00 o’clock in the afternoon after school
before proceeding home he would usually play basketball at
the basketball court near the church in Doña Tomasa about 1
kilometer away from their house. When her mother suffered a
stroke in 1999 he and his father took turns taking care of his
mother. Richard denied molesting other girls ... and was most
surprised when he was accused of raping [AAA]. He knows
Saling Crisologo and the latter’s place which is more than half
kilometer to their house. Richard claimed Salvacion Bobier,
grandmother of Mae Christine Camu, whose death on May 7,
2000 was imputed to him and for which a case for Murder
under Criminal Case No. 4087 was filed against him with the
docile cooperation of [AAA’s] parents who are related to
Salvacion, concocted and instigated [AAA’s] rape charge
against him to make the case for Murder against him stronger
and life for him miserable. He was incarcerated on May 10,
2000 for the Murder charge and two (2) months later while he
already in detention, the rape case supposedly committed in
1996 was filed against him in the Municipal Trial Court (MTC)
of Guinobatan, Albay. He was to learn about it from his sister,
Marivic, on a Sunday afternoon sometime on July 20, 2000
when his sister visited him in jail. He naturally got angry when
he heard of this rape charge because he did not do such thing
and recalled telling his sister they can go to a doctor and have
the child examine to prove he did not rape her. Subsequently,
from his sister again he was to learn that the rape case was
ordered dismissed.
On cross-examination, Richard admitted [AAA’s] mother, is
also related to his father, [AAA mother’s] father, being a
second cousin of his father. Richard is convinced it is not the
lending of money by his father to the AAA’s family as the
motive for the latter to file the rape case against him but the
instigation of Salvacion Bobier.
Manuel A. Casimiro, Clerk of Court II of the Municipal Trial
Court (MTC), Guinobatan, Albay, testified on the records of
Criminal Case No. 7078 filed in MTC Guinobatan, Albay
against Richard Sarcia for Rape in relation to RA 7610 relative
to the alleged withdrawal of said rape case but the accused
through counsel failed to formally offer the marked exhibits
relative to said case.18
Accused-appellant alleges that the trial court erred in
convicting him, as the prosecution was not able to prove his
guilt beyond reasonable doubt. He assailed the credibility of
the prosecution witnesses, AAA, her cousin and her father on
the following grounds: (1) the testimonies of AAA and her
cousin were inconsistent with each other; (2) the victim was
confused as to the date and time of the commission of the
offense; (3) there was a four-year delay in filing the criminal
case, and the only reason why they filed the said case was "to
help Salvacion Bobier get a conviction of this same accused in
a murder case filed by said Salvacion Bobier for the death of
her granddaughter Mae Christine Camu on May 7, 2000."
Accused-appellant stressed that the same Salvacion Bobier
helped AAA’s father in filing the said case for rape. Accused-
appellant also claimed that the prosecution failed to prove that
he employed force, threats or intimidation to achieve his end.
Finally, accused-appellant harped on the finding in the medical
certificate issued by Dr. Reantaso and interpreted by Dr. Joana
Manatlao, stating "negative for introital bulvar laceration nor
scar which means that there was no showing of any scar or
wound."
In his Appellee's Brief accused-appellant pointed out the
inconsistencies between AAA’s and her cousin’s testimonies
as follows: (1) the cousin testified that she played with AAA at
the time of the incident, while AAA testified that she was doing
nothing before accused-appellant invited her to the back of the
house of a certain Saling; (2) the cousin testified that when she
saw accused-appellant doing the push-and-pull motion while
on top of AAA, the latter shouted in a loud voice contrary to
AAA’s testimony that when accused-appellant was inside her
and started the up-and-down motion, she said "aray"; (3) when
the cousin returned to AAA after telling the latter’s mother what
accused-appellant had done to AAA, she found AAA crying.
AAA however testified that, after putting on her clothes, she
invited the cousin to their house; and (4) the cousin testified
that other children were playing at the time of the incident, but
AAA testified that there were only four of them who were
playing at that time.
As it is oft-repeated, inconsistencies in the testimonies of
witnesses, which refer only to minor details and collateral
matters, do not affect the veracity and weight of their
testimonies where there is consistency in relating the principal
occurrence and the positive identification of the accused. Slight
contradictions in fact even serve to strengthen the credibility of
the witnesses and prove that their testimonies are not
rehearsed. Nor are such inconsistencies, and even
improbabilities, unusual, for there is no person with perfect
faculties or senses.19 The alleged inconsistencies in this case
are too inconsequential to overturn the findings of the court a
quo. It is important that the two prosecution witnesses were
one in saying that it was accused-appellant who sexually
abused AAA. Their positive, candid and straightforward
narrations of how AAA was sexually abused by accused-
appellant evidently deserve full faith and credence. When the
rape incident happened, AAA was only five (5) years old; and
when she and her cousin testified, they were barely 9 and 11
years old, respectively. This Court has had occasion to rule
that the alleged inconsistencies in the testimonies of the
witnesses can be explained by their age and their inexperience
with court proceedings, and that even the most candid of
witnesses commit mistakes and make confused and
inconsistent statements. This is especially true of young
witnesses, who could be overwhelmed by the atmosphere of
the courtroom. Hence, there is more reason to accord them
ample space for inaccuracy.20
Accused-appellant capitalizes on AAA’s inability to recall the
exact date when the incident in 1996 was committed. Failure to
recall the exact date of the crime, however, is not an indication
of false testimony, for even discrepancies regarding exact
dates of rapes are inconsequential and immaterial and cannot
discredit the credibility of the victim as a witness.21 In People
v. Purazo,22 We ruled:
We have ruled, time and again that the date is not an essential
element of the crime of rape, for the gravamen of the offense is
carnal knowledge of a woman. As such, the time or place of
commission in rape cases need not be accurately stated. As
early as 1908, we already held that where the time or place or
any other fact alleged is not an essential element of the crime
charged, conviction may be had on proof of the commission of
the crime, even if it appears that the crime was not committed
at the precise time or place alleged, or if the proof fails to
sustain the existence of some immaterial fact set out in the
complaint, provided it appears that the specific crime charged
was in fact committed prior to the date of the filing of the
complaint or information within the period of the statute of
limitations and at a place within the jurisdiction of the court.
Also in People v. Salalima,23 the Court held:
Failure to specify the exact dates or time when the rapes
occurred does not ipso facto make the information defective on
its face. The reason is obvious. The precise date or time when
the victim was raped is not an element of the offense. The
gravamen of the crime is the fact of carnal knowledge under
any of the circumstances enumerated under Article 335 of the
Revised Penal Code. As long as it is alleged that the offense
was committed at any time as near to the actual date when the
offense was committed an information is sufficient. In previous
cases, we ruled that allegations that rapes were committed
"before and until October 15, 1994," "sometime in the year
1991 and the days thereafter," "sometime in November 1995
and some occasions prior and/or subsequent thereto" and "on
or about and sometime in the year 1988" constitute sufficient
compliance with Section 11, Rule 110 of the Revised Rules on
Criminal Procedure.
In this case, AAA’s declaration that the rape incident took place
on December 15, 1996 was explained by the trial court, and we
quote:
The rape took place in 1996. As earlier noted by the Court the
date December 15, 1996 mentioned by [AAA] may have been
arbitrarily chosen by the latter due to the intense cross-
examination she was subjected but the Court believes it could
have been in any month and date in the year 1996 as in fact
neither the information nor [AAA’s] sworn statement mention
the month and date but only the year.24
Likewise, witnesses’ credibility is not affected by the delay in
the filing of the case against accused-appellant. Neither does
the delay bolster accused-appellant’s claim that the only
reason why this case was filed against him was "to help
Salvacion Bobier get a conviction of this same accused-
appellant in the case of murder filed by Salvacion Bobier for
the death of her granddaughter Mae Christine Camu on May 7,
2000."
The rape victim’s delay or hesitation in reporting the crime
does not destroy the truth of the charge nor is it an indication of
deceit. It is common for a rape victim to prefer silence for fear
of her aggressor and the lack of courage to face the public
stigma of having been sexually abused. In People v. Coloma25
we even considered an 8-year delay in reporting the long
history of rape by the victim’s father as understandable and not
enough to render incredible the complaint of a 13-year-old
daughter. Thus, in the absence of other circumstances that
show that the charge was a mere concoction and impelled by
some ill motive, delay in the filing of the complainant is not
sufficient to defeat the charge. Here, the failure of AAA’s
parents to immediately file this case was sufficiently justified by
the complainant’s father in the latter’s testimony, thus:
Q But, did you not say, please correct me if I am wrong, you
got angry when your wife told you that something happened to
Hazel way back in 1996?
A Yes, sir.
Q Yet, despite your anger you were telling us that you waited
until June to file this case?
A After I heard about the incident, I and my wife had a talk for
which reason that during that time we had no money yet to use
in filing the case, so we waited. When we were able to save
enough amounts, we filed the case.26
Accused-appellant also contends that he could not be liable for
rape because there is no proof that he employed force, threats
or intimidation in having carnal knowledge of AAA. Where the
girl is below 12 years old, as in this case, the only subject of
inquiry is whether "carnal knowledge" took place. Proof of
force, intimidation or consent is unnecessary, since none of
these is an element of statutory rape. There is a conclusive
presumption of absence of free consent when the rape victim is
below the age of twelve.27
Accused-appellant harps on the medical report, particularly the
conclusion quoted as follows: "negative for introital bulvar
laceration nor scars, which means, in layman language, that
there was no showing of any scar or wound." The Court has
consistently ruled that the presence of lacerations in the
victim’s sexual organ is not necessary to prove the crime of
rape and its absence does not negate the fact of rape. A
medical report is not indispensable in a prosecution for rape.28
What is important is that AAA’s testimony meets the test of
credibility, and that is sufficient to convict the accused.
Accused-appellant’s defense of denial was properly rejected.
Time and time again, we have ruled that denial like alibi is the
weakest of all defenses, because it is easy to concoct and
difficult to disprove. Furthermore, it cannot prevail over the
positive and unequivocal identification of appellant by the
offended party and other witnesses. Categorical and consistent
positive identification, absent any showing of ill motive on the
part of the eyewitness testifying on the matter, prevails over the
appellants’ defense of denial and alibi.29 The shallow
hypothesis put forward by accused-appellant that he was
accused of raping AAA due to the instigation of Salvacion
Bobier hardly convinces this Court. On this score, the trial court
aptly reached the following conclusion:
…True, Salvacion Bobier actively assisted AAA’s family file the
instant case against the accused, but the Court believes
[AAA’s] parents finally decided to file the rape case because
after they have come to realize after what happened to Mae
Christine Camu that what previously [AAA and her cousin] told
her mother and which the latter had continually ignored is after
all true.
AAA was barely 9 years of age when she testified. It has been
stressed often enough that the testimony of rape victims who
are young and immature deserve full credence. It is improbable
for a girl of complainant’s age to fabricate a charge so
humiliating to herself and her family had she not been truly
subjected to the painful experience of sexual abuse. At any
rate, a girl of tender years, innocent and guileless, cannot be
expected to brazenly impute a crime so serious as rape to any
man if it were not true.30 Parents would not sacrifice their own
daughter, a child of tender years at that, and subject her to the
rigors and humiliation of public trial for rape, if they were not
motivated by an honest desire to have their daughter’s
transgressor punished accordingly.31 Hence, the logical
conclusion is that no such improper motive exists and that her
testimony is worthy of full faith and credence.
The guilt of accused-appellant having been established beyond
reasonable doubt, we discuss now the proper penalty to be
imposed on him.
Article 335 of the Revised Penal Code, as amended by
Republic Act No. 7659,32 was the governing law at the time
the accused-appellant committed the rape in question. Under
the said law, the penalty of death shall be imposed when the
victim of rape is a child below seven years of age. In this case,
as the age of AAA, who was five (5) years old at the time the
rape was committed, was alleged in the information and proven
during trial by the presentation of her birth certificate, which
showed her date of birth as January 16, 1991, the death
penalty should be imposed.
However, this Court finds ground for modifying the penalty
imposed by the CA. We cannot agree with the CA’s conclusion
that the accused-appellant cannot be deemed a minor at the
time of the commission of the offense to entitle him to the
privileged mitigating circumstance of minority pursuant to
Article 68(2)33 of the Revised Penal Code. When accused
appellant testified on March 14, 2002, he admitted that he was
24 years old, which means that in 1996, he was 18 years of
age. As found by the trial court, the rape incident could have
taken place "in any month and date in the year 1996." Since
the prosecution was not able to prove the exact date and time
when the rape was committed, it is not certain that the crime of
rape was committed on or after he reached 18 years of age in
1996. In assessing the attendance of the mitigating
circumstance of minority, all doubts should be resolved in favor
of the accused, it being more beneficial to the latter. In fact, in
several cases, this Court has appreciated this circumstance on
the basis of a lone declaration of the accused regarding his
age.34
Under Article 68 of the Revised Penal Code, when the offender
is a minor under 18 years, the penalty next lower than that
prescribed by law shall be imposed, but always in the proper
period. However, for purposes of determining the proper
penalty because of the privileged mitigating circumstance of
minority, the penalty of death is still the penalty to be reckoned
with.35 Thus, the proper imposable penalty for the accused-
appellant is reclusion perpetua.
It is noted that the Court is granted discretion in awarding
damages provided in the Civil Code, in case a crime is
committed. Specifically, Article 2204 of the Civil Code provides
that "in crimes, the damages to be adjudicated may be
respectively increased or lessened according to the
aggravating or mitigating circumstances." The issue now is
whether the award of damages should be reduced in view of
the presence here of the privileged mitigating circumstance of
minority of the accused at the time of the commission of the
offense.
A review of the nature and purpose of the damages imposed
on the convicted offender is in order. Article 107 of the Revised
Penal Code defines the term "indemnification," which is
included in the civil liability prescribed by Article 104 of the
same Code, as follows:
Art. 107. Indemnification-What is included. – Indemnification for
consequential damages shall include not only those caused the
injured party, but also those suffered by his family or by a third
person by reason of the crime.
Relative to civil indemnity, People v. Victor36 ratiocinated as
follows:
The lower court, however, erred in categorizing the award of
P50,000.00 to the offended party as being in the nature of
moral damages. We have heretofore explained in People v.
Gementiza that the indemnity authorized by our criminal law as
civil liability ex delicto for the offended party, in the amount
authorized by the prevailing judicial policy and aside from other
proven actual damages, is itself equivalent to actual or
compensatory damages in civil law. It is not to be considered
as moral damages thereunder, the latter being based on
different jural foundations and assessed by the court in the
exercise of sound discretion.
One other point of concern has to be addressed. Indictments
for rape continue unabated and the legislative response has
been in the form of higher penalties. The Court believes that,
on like considerations, the jurisprudential path on the civil
aspect should follow the same direction. Hence, starting with
the case at bar, if the crime of rape is committed or effectively
qualified by any of the circumstances under which the death
penalty is authorized by the present amended law, the
indemnity for the victim shall be in the increased amount of not
less than P75,000.00. This is not only a reaction to the
apathetic societal perception of the penal law, and the financial
fluctuations over time, but also an expression of the
displeasure of the Court over the incidence of heinous crimes
against chastity. (Emphasis Supplied)
The Court has had the occasion to rule that moral damages
are likewise compensatory in nature. In San Andres v. Court of
Appeals,37 we held:
Moral damages, though incapable of pecuniary estimation, are
in the category of an award designed to compensate the
claimant for actual injury suffered and not to impose a penalty
on the wrongdoer. (Emphasis Supplied)
In another case, this Court also explained:
What we call moral damages are treated in American
jurisprudence as compensatory damages awarded for mental
pain and suffering or mental anguish resulting from a wrong
(25 C.J.S. 815).38 (Emphasis Supplied)
Thus, according to law and jurisprudence, civil indemnity is in
the nature of actual and compensatory damages for the injury
caused to the offended party and that suffered by her family,
and moral damages are likewise compensatory in nature. The
fact of minority of the offender at the time of the commission of
the offense has no bearing on the gravity and extent of injury
caused to the victim and her family, particularly considering the
circumstances attending this case. Here, the accused-appelant
could have been eighteen at the time of the commission of the
rape. He was accorded the benefit of the privileged mitigating
circumstance of minority because of a lack of proof regarding
his actual age and the date of the rape rather than a moral or
evidentiary certainty of his minority.
In any event, notwithstanding the presence of the privileged
mitigating circumstance of minority, which warrants the
lowering of the public penalty by one degree, there is no
justifiable ground to depart from the jurisprudential trend in the
award of damages in the case of qualified rape, considering
the compensatory nature of the award of civil indemnity and
moral damages. This was the same stance this Court took in
People v. Candelario,39 a case decided on July 28, 1999,
which did not reduce the award of damages. At that time, the
damages amounted to P75,000.00 for civil indemnity and
P50,000.00 for moral damages, even if the public penalty
imposed on the accused was lowered by one degree, because
of the presence of the privileged mitigating circumstance of
minority.
The principal consideration for the award of damages, under
the ruling in People v. Salome40 and People v. Quiachon41 is
the penalty provided by law or imposable for the offense
because of its heinousness, not the public penalty actually
imposed on the offender.
Regarding the civil indemnity and moral damages, People v.
Salome explained the basis for increasing the amount of said
civil damages as follows:
The Court, likewise, affirms the civil indemnity awarded by the
Court of Appeals to Sally in accordance with the ruling in
People v. Sambrano which states:
"As to damages, we have held that if the rape is perpetrated
with any of the attending qualifying circumstances that require
the imposition of the death penalty, the civil indemnity for the
victim shall P75,000.00 … Also, in rape cases, moral damages
are awarded without the need proof other than the fact of rape
because it is assumed that the victim has suffered moral
injuries entitling her to such an award. However, the trial
court’s award of P50,000.00 as moral damages should also be
increased to P75,000 pursuant to current jurisprudence on
qualified rape."
It should be noted that while the new law prohibits the
imposition of the death penalty, the penalty provided for by law
for a heinous offense is still death and the offense is still
heinous. Consequently, the civil indemnity for the victim is still
P75,000.00.
People v. Quiachon also ratiocinates as follows:
With respect to the award of damages, the appellate court,
following prevailing jurisprudence, correctly awarded the
following amounts; P75,000.00 as civil indemnity which is
awarded if the crime is qualified by circumstances warranting
the imposition of the death penalty; P75,000.00.00 as moral
damages because the victim is assumed to have suffered
moral injuries, hence, entitling her to an award of moral
damages even without proof thereof, x x x
Even if the penalty of death is not to be imposed on the
appellant because of the prohibition in R.A. No. 9346, the civil
indemnity of P75,000.00 is still proper because, following the
ratiocination in People v. Victor, the said award is not
dependent on the actual imposition of the death penalty but on
the fact that qualifying circumstances warranting the imposition
of the death penalty attended the commission of the offense.
The Court declared that the award of P75,000.00 shows "not
only a reaction to the apathetic societal perception of the penal
law and the financial fluctuations over time but also the
expression of the displeasure of the court of the incidence of
heinous crimes against chastity."
The litmus test therefore, in the determination of the civil
indemnity is the heinous character of the crime committed,
which would have warranted the imposition of the death
penalty, regardless of whether the penalty actually imposed is
reduced to reclusion perpetua.
As to the award of exemplary damages, Article 2229 of the
Civil Code provides that exemplary or corrective damages are
imposed in addition to the moral, temperate, liquidated or
compensatory damages. Exemplary damages are not
recoverable as a matter of right. The requirements of an award
of exemplary damagees are: (1) they may be imposed by way
of example in addition to compensatory damages, and only
after the claimant’s right to them has been established; (2) they
cannot be recovered as a matter of right, their determination
depending upon the amount of compensatory damages that
may be awarded to the claimant; (3) the act must be
accompanied by bad faith or done in a wanton, fraudulent,
oppressive or malevolent manner.42 Since the compensatory
damages, such as the civil indemnity and moral damages, are
increased when qualified rape is committed, the exemplary
damages should likewise be increased in accordance with
prevailing jurisprudence.43
In sum, the increased amount of P75,000.00 each as civil
indemnity and moral damages should be maintained. It is also
proper and appropriate that the award of exemplary damages
be likewise increased to the amount of P30,000.00 based on
the latest jurisprudence on the award of damages on qualified
rape. Thus, the CA correctly awarded P75,000.00 as civil
indemnity. However the award of P50,000.00 as moral
damages is increased to P75,000.0044 and that of P25,000.00
as exemplary damages is likewise increased to P30,000.00.45
Meanwhile, when accused-appellant was detained at the New
Bilibid Prison pending the outcome of his appeal before this
Court, Republic Act (R.A.) No. 9344, the Juvenile Justice and
Welfare Act of 2006 took effect on May 20, 2006. The RTC
decision and CA decision were promulgated on January 17,
2003 and July 14, 2005, respectively. The promulgation of the
sentence of conviction of accused-appellant handed down by
the RTC was not suspended as he was about 25 years of age
at that time, in accordance with Article 192 of Presidential
Decree (P.D.) No. 603, The Child and Youth Welfare Code46
and Section 32 of A.M. No. 02-1-18-SC, the Rule on Juveniles
in Conflict with the Law.47 Accused-appellant is now
approximately 31 years of age. He was previously detained at
the Albay Provincial Jail at Legaspi City and transferred to the
New Bilibid Prison, Muntinlupa City on October 13, 2003.
R.A. No. 9344 provides for its retroactive application as follows:
Sec. 68. Children Who Have Been Convicted and are Serving
Sentence. – Persons who have been convicted and are serving
sentence at the time of the effectivity of this Act, and who were
below the age of eighteen (18) years at the time of the
commission of the offense for which they were convicted and
are serving sentence, shall likewise benefit from the retroactive
application of this Act. x x x
The aforequoted provision allows the retroactive application of
the Act to those who have been convicted and are serving
sentence at the time of the effectivity of this said Act, and who
were below the age of 18 years at the time of the commission
of the offense. With more reason, the Act should apply to this
case wherein the conviction by the lower court is still under
review. Hence, it is necessary to examine which provisions of
R.A. No. 9344 shall apply to accused-appellant, who was
below 18 years old at the time of the commission of the
offense.
Sec. 38 of R.A. No. 9344 provides for the automatic
suspension of sentence of a child in conflict with the law, even
if he/she is already 18 years of age or more at the time he/she
is found guilty of the offense charged. It reads:
Sec. 38. Automatic Suspension of Sentence. – Once the child
who is under eighteen (18) years of age at the time of the
commission of the offense is found guilty of the offense
charged, the court shall determine and ascertain any civil
liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction,
the court shall place the child in conflict with the law under
suspended sentence, without need of application: Provided,
however, That suspension of sentence shall still be applied
even if the juvenile is already eighteen (18) of age or more at
the time of the pronouncement of his/her guilt.
Upon suspension of sentence and after considering the various
circumstances of the child, the court shall impose the
appropriate disposition measures as provided in the Supreme
Court on Juvenile in Conflict with the Law.
The above-quoted provision makes no distinction as to the
nature of the offense committed by the child in conflict with the
law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC.48 The said
P.D. and Supreme Court (SC) Rule provide that the benefit of
suspended sentence would not apply to a child in conflict with
the law if, among others, he/she has been convicted of an
offense punishable by death, reclusion perpetua or life
imprisonment. In construing Sec. 38 of R.A. No. 9344, the Court is
guided by the basic principle of statutory construction that when the
law does not distinguish, we should not distinguish.49 Since R.A. No.
9344 does not distinguish between a minor who has been convicted of
a capital offense and another who has been convicted of a lesser
offense, the Court should also not distinguish and should apply the
automatic suspension of sentence to a child in conflict with the law who
has been found guilty of a heinous crime.
Moreover, the legislative intent, to apply to heinous crimes the
automatic suspension of sentence of a child in conflict with the law can
be gleaned from the Senate deliberations50 on Senate Bill No. 1402
(Juvenile Justice and Delinquency Prevention Act of 2005), the
pertinent portion of which is quoted below:
If a mature minor, maybe 16 years old to below 18 years old is
charged, accused with, or may have committed a serious offense, and
may have acted with discernment, then the child could be
recommended by the Department of Social Welfare and Development
(DSWD), by the Local Council for the Protection of Children (LCPC), or
by my proposed Office of Juvenile Welfare and Restoration to go
through a judicial proceeding; but the welfare, best interests, and
restoration of the child should still be a primordial or primary
consideration. Even in heinous crimes, the intention should still be the
child’s restoration, rehabilitation and reintegration. xxx (Italics
supplied)1avvphi1
Nonetheless, while Sec. 38 of R.A. No. 9344 provides that suspension
of sentence can still be applied even if the child in conflict with the law
is already eighteen (18) years of age or more at the time of the
pronouncement of his/her guilt, Sec. 40 of the same law limits the said
suspension of sentence until the said child reaches the maximum age
of 21, thus:
Sec. 40. Return of the Child in Conflict with the Law to Court. – If the
court finds that the objective of the disposition measures imposed upon
the child in conflict with the law have not been fulfilled, or if the child in
conflict with the law has willfully failed to comply with the condition of
his/her disposition or rehabilitation program, the child in conflict with
the law shall be brought before the court for execution of judgment.
If said child in conflict with the law has reached eighteen (18) years of
age while under suspended sentence, the court shall determine
whether to discharge the child in accordance with this Act, to order
execution of sentence, or to extend the suspended sentence for a
certain specified period or until the child reaches the maximum age of
twenty-one (21) years. (emphasis ours)
To date, accused-appellant is about 31 years of age, and the judgment
of the RTC had been promulgated, even before the effectivity of R.A.
No. 9344. Thus, the application of Secs. 38 and 40 to the suspension
of sentence is now moot and academic.51 However, accused-
appellant shall be entitled to appropriate disposition under Sec. 51 of
R.A. No. 9344, which provides for the confinement of convicted
children as follows:
Sec. 51. Confinement of Convicted Children in Agricultural Camps and
Other Training Facilities. – A child in conflict with the law may, after
conviction and upon order of the court, be made to serve his/her
sentence, in lieu of confinement in a regular penal institution, in an
agricultural camp and other training facilities that may be established,
maintained, supervised and controlled by the BUCOR, in coordination
with the DSWD.
The civil liability resulting from the commission of the offense is not
affected by the appropriate disposition measures and shall be enforced
in accordance with law.52
WHEREFORE, the decision of the CA dated July 14, 2005 in CA-G.R.
CR-H.C. No. 00717 is hereby AFFIRMED with the following
MODIFICATIONS: (1) the penalty of death imposed on accused-
appellant is reduced to reclusion perpetua;53 and (2) accused-
appellant is ordered to pay the victim the amount of P75,000.00 and
P30,000.00 as moral damages and exemplary damages, respectively.
The award of civil indemnity in the amount of P75,000.00 is
maintained. However, the case shall be REMANDED to the court a quo
for appropriate disposition in accordance with Sec. 51 of R.A. 9344.
G.R. No. 186227 July 20, 2011
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ALLEN UDTOJAN MANTALABA, Accused-Appellant.
For this Court's consideration is the Decision1 dated July 31,
2008 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
00240-MIN, affirming the Omnibus Judgment2 dated
September 14, 2005, of the Regional Trial Court, Branch 1,
Butuan City in Criminal Case No. 10250 and Criminal Case No.
10251, finding appellant Allen Udtojan Mantalaba, guilty
beyond reasonable doubt of violation of Sections 5 and 11,
Article II of Republic Act (RA) 9165.
The facts, as culled from the records, are the following:
The Task Force Regional Anti-Crime Emergency Response
(RACER) in Butuan City received a report from an informer that
a certain Allen Mantalaba, who was seventeen (17) years old
at the time, was selling shabu at Purok 4, Barangay 3, Agao
District, Butuan City. Thus, a buy-bust team was organized,
composed of PO1 Randy Pajo, PO1 Eric Simon and two (2)
poseur-buyers who were provided with two (2) pieces of P100
marked bills to be used in the purchase.
Around 7 o'clock in the evening of October 1, 2003, the team,
armed with the marked money, proceeded to Purok 4,
Barangay 3, Agao District, Butuan City for the buy-bust
operation. The two poseur-buyers approached Allen who was
sitting at a corner and said to be in the act of selling shabu.
PO1 Pajo saw the poseur-buyers and appellant talking to each
other. Afterwards, the appellant handed a sachet of shabu to
one of the poseur-buyers and the latter gave the marked
money to the appellant. The poseur-buyers went back to the
police officers and told them that the transaction has been
completed. Police officers Pajo and Simon rushed to the place
and handcuffed the appellant as he was leaving the place.
The police officers, still in the area of operation and in the
presence of barangay officials Richard S. Tandoy and Gresilda
B. Tumala, searched the appellant and found a big sachet of
shabu. PO1 Simon also pointed to the barangay officials the
marked money, two pieces of P100 bill, thrown by the appellant
on the ground.
After the operation, and in the presence of the same barangay
officials, the police officers made an inventory of the items
recovered from the appellant which are: (1) one big sachet of
shabu which they marked as RMP-1-10-01-03; (2) one small
sachet of shabu which they marked as RMP 2-10-01-03; and
(3) two (2) pieces of one hundred pesos marked money and a
fifty peso (P50) bill. Thereafter, a letter-request was prepared
by Inspector Ferdinand B. Dacillo for the laboratory
examination of the two (2) sachets containing a crystalline
substance, ultra-violet examination on the person of the
appellant as well as the two (2) pieces of one hundred pesos
marked money. The request was brought by PO1 Pajo and
personally received by Police Inspector Virginia Sison-Gucor,
Forensic Chemical Officer of the Regional Crime Laboratory
Office XII Butuan City, who immediately conducted the
examination. The laboratory examination revealed that the
appellant tested positive for the presence of bright orange
ultra-violet fluorescent powder; and the crystalline substance
contained in two sachets, separately marked as RMP-1-10-01-
03 and RMP-2-10-01-03, were positively identified as
methamphetamine hydrochloride.
Thereafter, two separate Informations were filed before the
RTC of Butuan City against appellant for violation of Sections 5
and 11 of RA 9165, stating the following:
Criminal Case No. 10250
That on or about the evening of October 1, 1003 at Purok 4,
Barangay 3, Agao, Butuan City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused,
without authority of law, did then and there willfully, unlawfully,
and feloniously sell zero point zero four one two (0.0412)
grams of methamphetamine hydrochloride, otherwise known
as shabu which is a dangerous drug.
CONTRARY TO LAW : (Violation of Sec. 5, Art. II of R.A. No.
9165).3
Criminal Case No. 10251
That on or about the evening of October 1, 2003 at Purok 4,
Barangay 3, Agao, Butuan City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused,
without authority of law, did then and there willfully, unlawfully
and feloniously possess zero point six one three one (0.6131)
grams of methamphetamine hydrochloride, otherwise known
as shabu, which is a dangerous drug.
CONTRARY TO LAW: (Violation of Section 11, Art. II of R.A.
No. 9165).4
Eventually, the cases were consolidated and tried jointly.
Appellant pleaded NOT GUILTY to the charges against him.
Thereafter, trial on the merits ensued.
In its Omnibus Judgment5 dated September 14, 2005, the RTC
found the appellant guilty beyond reasonable doubt of the
offense charged, the dispositive portion of which, reads:
WHEREFORE, the Court hereby finds accused Allen
Mantalaba y Udtojan GUILTY beyond reasonable doubt in
Criminal Case No. 10250 for selling shabu, a dangerous drug,
as defined and penalized under Section 5, Article II of Republic
Act No. 9165. As provided for in Sec. 98 of R.A. 9165, where
the offender is a minor, the penalty for acts punishable by life
imprisonment to death shall be reclusion perpetua to death. As
such, Allen Mantalaba y Udtojan is hereby sentenced to
RECLUSION PERPETUA and to pay a fine of Five Hundred
Thousand Pesos (P500,000.00).
In Criminal Case No. 10251, the Court likewise finds accused
Allen Mantalaba y Udtojan GUILTY beyond reasonable doubt
for illegally possessing shabu, a dangerous drug, weighing
0.6131 gram as defined and penalized under Section 11,
Article II of Republic Act No. 9165 and accused being a minor
at the time of the commission of the offense, after applying the
Indeterminate Sentence Law, he is accordingly sentenced to
six (6) years and one (1) day, as minimum, to eight (8) years,
as maximum of prision mayor and to pay a fine of Three
Hundred Thousand Pesos (P300,000.00).
SO ORDERED.6
The CA affirmed in toto the decision of the RTC. It disposed of
the case as follows:
WHEREFORE, the Decision of the Regional Trial Court,
Branch 1, Butuan City dated September 14, 2005 appealed
from finding the accused-appellant Allen Udtojan Mantalaba
guilty beyond reasonable doubt with the crime of Violation of
Section 5 and Section 11, Article II of Republic Act 9165,
otherwise known as the Comprehensive Dangerous Drugs Act,
is AFFIRMED in toto, with costs against accused-appellant.
SO ORDERED.7
Thus, the present appeal.
Appellant states the lone argument that the lower court gravely
erred in convicting him of the crime charged despite failure of
the prosecution to prove his guilt beyond reasonable doubt.
According to appellant, there was no evidence of actual sale
between him and the poseur-buyer. He also argues that the
chain of custody of the seized shabu was not established.
Finally, he asserts that an accused should be presumed
innocent and that the burden of proof is on the prosecution.
The petition is unmeritorious.
Appellant insists that the prosecution did not present any
evidence that an actual sale took place. However, based on
the testimony of PO1 Randy Pajo, there is no doubt that the
buy-bust operation was successfully conducted, thus:
PROS. RUIZ:
Q: Will you explain to this Honorable Court why did you
conduct and how did you conduct your buy-bust operation at
the time?
A: We conducted a buy-bust operation because of the report
from our civilian assets that Allen Mantalaba was engaged in
drug trade and selling shabu. And after we evaluated this
Information we informed Inspector Dacillo that we will operate
this accused for possible apprehension.
Q: Before you conducted your buy-bust operation, what
procedure did you take?
A: We prepared the operational plan for buy-bust against the
suspect. We prepared a request for powder dusting for our
marked moneys to be used for the operation.
Q: Did you use marked moneys in this case?
Q: Then armed with these marked moneys, what steps did you
take next?
A: After briefing of our team, we proceeded immediately to the
area.
Q: You mentioned of poseur-buyer, what would the poseur-
buyer do?
A: We made an arrangement with the poseur-buyer that during
the buying of shabu there should be a pre-arranged signal of
the poseur-buyer to the police officer.
Q: What happened when your poseur-buyer who, armed with
this marked moneys, approached the guy who was selling
shabu at that time?
A: The poseur-buyer during that time gave the marked moneys
to the suspect.
Q: Where were you when this poseur-buyer gave the moneys
to the suspect?
A: We positioned ourselves about 10 meters away from the
area of the poseur-buyer and the suspect.
Q: You mentioned of the pre-arranged signal, what would this
be?
A: This is a case-to-case basis, your Honor, in the pre-
arrangement signal because in the pre-arranged signal we
used a cap and a towel. (sic) In the case, of this suspect, there
was no towel there was no cap at the time of giving the shabu
and the marked moneys to the suspect and considering also
that that was about 7:00 o'clock in the evening. The poseur-
buyer immediately proceeded to us and informed us that the
shabu was already given by the suspect.
Q: What did you do next after that?
A: After examining the sachet of shabu that it was really the
plastic containing white [crystalline] substance, we immediately
approached the suspect.
Q: Who was with a (sic) suspect when you conducted the buy-
bust operation[?] Was he alone or did he had (sic) any
companion at that time?
A: He was alone.
Q: When you rushed up to the suspect what did you do?
A: We informed the suspect that we are the police officers and
he has this constitutional rights and we immediately handcuffed
him.
Q: Where were the marked moneys?
A: The marked moneys were thrown on the ground. After we
handcuffed the suspect, we did not immediately searched in.
We called the attention of the barangay officials to witness the
search of the suspect.
Q: How many sachets of shabu have you taken from the
suspect during the buy-bust operation?
A: We took from the possession of the suspect one big sachet
of shabu.
Q: What was the result of the searched (sic) for him?
A: We confiscated one big sachet of suspected shabu and the
retrieval of 2 pieces of 100 peso bills as marked moneys.8
What determines if there was, indeed, a sale of dangerous
drugs in a buy-bust operation is proof of the concurrence of all
the elements of the offense, to wit: (1) the identity of the buyer
and the seller, the object, and the consideration; and (2) the
delivery of the thing sold and the payment therefor.9 From the
above testimony of the prosecution witness, it was well
established that the elements have been satisfactorily met. The
seller and the poseur-buyer were properly identified. The
subject dangerous drug, as well as the marked money used,
were also satisfactorily presented. The testimony was also
clear as to the manner in which the buy-bust operation was
conducted.
To corroborate the testimony of PO2 Pajo, the prosecution
presented the testimony of Police Inspector Virginia Sison-
Gucor, a forensic chemical officer, who confirmed that the
plastic containing white crystalline substance was positive for
methamphetamine hydrochloride and that the petitioner was in
possession of the marked money used in the buy-bust
operation, thus:
PROS. RUIZ:
Q: What was the result of your examination or what were your
findings on the sachets of suspected shabu?
A: After the preliminary and confirmatory tests were conducted
on the stated specimen, the result was positive for
methamphetamine hydrochloride, a dangerous drug.
Q: What were your findings when you examined the living
person of the accused, as well as the marked money
mentioned in this report?
A: According to my report, the findings for the living person of
Allen Udtojan Mantalaba is positive to the test for the presence
of bright orange ultra-violet flourescent powder. x x x10
The above only confirms that the buy-bust operation really
occurred. Once again, this Court stresses that a buy-bust
operation is a legally effective and proven procedure,
sanctioned by law, for apprehending drug peddlers and
distributors.11 It is often utilized by law enforcers for the
purpose of trapping and capturing lawbreakers in the execution
of their nefarious activities.12 In People v. Roa,13 this Court
had the opportunity to expound on the nature and importance
of a buy-bust operation, ruling that:
In the first place, coordination with the PDEA is not an
indispensable requirement before police authorities may carry
out a buy-bust operation. While it is true that Section 8614 of
Republic Act No. 9165 requires the National Bureau of
Investigation, PNP and the Bureau of Customs to maintain
"close coordination with the PDEA on all drug-related matters,"
the provision does not, by so saying, make PDEA's
participation a condition sine qua non for every buy-bust
operation. After all, a buy-bust is just a form of an in flagrante
arrest sanctioned by Section 5, Rule 11315 of the Rules of the
Court, which police authorities may rightfully resort to in
apprehending violators of Republic Act No. 9165 in support of
the PDEA.16 A buy-bust operation is not invalidated by mere
non-coordination with the PDEA.
Neither is the lack of prior surveillance fatal. The case of
People v. Lacbanes17 is quite instructive:
In People v. Ganguso,18 it has been held that prior
surveillance is not a prerequisite for the validity of an
entrapment operation, especially when the buy-bust team
members were accompanied to the scene by their informant. In
the instant case, the arresting officers were led to the scene by
the poseur-buyer. Granting that there was no surveillance
conducted before the buy-bust operation, this Court held in
People v. Tranca,19 that there is no rigid or textbook method of
conducting buy-bust operations. Flexibility is a trait of good
police work. The police officers may decide that time is of the
essence and dispense with the need for prior surveillance.20
The rule is that the findings of the trial court on the credibility of
witnesses are entitled to great respect because trial courts
have the advantage of observing the demeanor of the
witnesses as they testify. This is more true if such findings
were affirmed by the appellate court. When the trial court's
findings have been affirmed by the appellate court, said
findings are generally binding upon this Court.21
In connection therewith, the RTC, as affirmed by the CA, was
also correct in finding that the appellant is equally guilty of
violation of Section 11 of RA 9165, or the illegal possession of
dangerous drug. As an incident to the lawful arrest of the
appellant after the consummation of the buy-bust operation,
the arresting officers had the authority to search the person of
the appellant. In the said search, the appellant was caught in
possession of 0.6131 grams of shabu. In illegal possession of
dangerous drugs, the elements are: (1) the accused is in
possession of an item or object which is identified to be a
prohibited drug; (2) such possession is not authorized by law;
and (3) the accused freely and consciously possessed the said
drug.22
As a defense, appellant denied that he owns the shabu and the
marked money confiscated from him. However, based on his
cross-examination, such denial was not convincing enough to
merit reasonable doubt, thus:
PROS. RUIZ:
Q: So it is true now that when these police officers passed you
by they recovered from your possession one sachet of shabu?
A: Yes, sir.
Q: And it is true that after you were arrested and when you
were searched they also found another sachet of shabu also in
your pocket?
A: Yes, sir.
Q: And you mentioned in your counter-affidavit marked as
Exhibit H for the prosecution that no money was taken from
you because you have none at that time, is it not?
A: None sir, only the P250.00 which Jonald Ybanoso left to me.
Q: This P250.00 which Jonald left to you was also confiscated
from your possession?
A: Yes, sir.
Q: Were not P200 of the P250.00 was thrown to the ground
during the time you were arrested by the police?
A: No, sir.
Q: It was taken from your possession?
A: Yes, sir.
Q: And when the policemen brought you to the crime
laboratory and had your hands tested for ultra-violet
fluorescent powder, your hands tested positively for the
presence of the said powder?
A: Yes, sir.23
Incidentally, the defenses of denial and frame-up have been
invariably viewed by this Court with disfavor for it can easily be
concocted and is a common and standard defense ploy in
prosecutions for violation of the Dangerous Drugs Act. In order
to prosper, the defenses of denial and frame-up must be
proved with strong and convincing evidence.24
Another contention raised by the appellant is the failure of the
prosecution to show the chain of custody of the recovered
dangerous drug. According to him, while it was Inspector
Ferdinand B. Dacillo who signed the request for laboratory
examination, only police officers Pajo and Simon were present
in the buy-bust operation.
Section 21 of RA 9165 reads:
SEC. 21. Custody and Disposition of Confiscated, Seized,
and/or Surrendered Dangerous Drugs, Plant Sources of
Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. – The PDEA shall take charge and have custody of
all dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition
in the following manner:
(1) The apprehending team having initial custody and control of
the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in the presence
of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel,
a representative from the media and the Department of Justice
(DOJ), and any elected public official who shall be required to
sign the copies of the inventory and be given a copy thereof.
Non-compliance by the apprehending/buy-bust team with
Section 21 is not fatal as long as there is justifiable ground
therefor, and as long as the integrity and the evidentiary value
of the confiscated/seized items are properly preserved by the
apprehending officer/team.25 Its non-compliance will not
render an accused’s arrest illegal or the items
seized/confiscated from him inadmissible.26 What is of utmost
importance is the preservation of the integrity and the
evidentiary value of the seized items, as the same would be
utilized in the determination of the guilt or innocence of the
accused.27 In this particular case, it is undisputed that police
officers Pajo and Simon were members of the buy-bust
operation team. The fact that it was Inspector Ferdinand B.
Dacillo who signed the letter-request for laboratory examination
does not in any way affect the integrity of the items
confiscated. All the requirements for the proper chain of
custody had been observed. As testified to by PO2 Pajo
regarding the procedure undertaken after the consummation of
the buy-bust operation:
Prosecutor
Q: What did you do next after that?
A: After examining the sachet of shabu that it was really the
plastic containing white [crystalline] in substance, we
immediately approached the suspect.
Q: When you rushed up to the suspect, what did you do?
A: We informed the suspect that we are the police officers and
he has this [constitutional] rights and immediately handcuffed
him.
Q: Where were the marked moneys?
A: The marked moneys were thrown on the ground. After we
handcuffed the suspect, we did not immediately searched in.
We called the attention of the barangay officials to witness the
search of the suspect.
Q: Now, before you searched the suspect you requested the
presence of the barangay officials. Now, when these barangay
officials were present, what did you do on the suspect?
A: We immediately searched the suspect.
Q: What was the result of the searched for him? (sic)
A: We confiscated one big sachet of suspected shabu and the
retrieval of 2 pieces of P100.00 peso bills as marked moneys.
Q: You said the suspect threw the marked moneys when you
searched him, where were the marked moneys?
A: On the ground.
Q: Who picked these marked moneys?
A: I was the one who picked the marked moneys.
Q: And then after you had picked the marked moneys and after
you had the 2 pieces of sachets of shabu; one during the buy-
bust and the other one during the search, what did you do
[with] these 2 pieces of sachets of shabu and the marked
moneys?
A: I recorded those items recovered, sir, during the search to
the Certificate of Inventory.28
As ruled by this Court, what is crucial in the chain of custody is
the marking of the confiscated item which, in the present case,
was complied with, thus:
Crucial in proving chain of custody is the marking29 of the
seized drugs or other related items immediately after they are
seized from the accused. Marking after seizure is the starting
point in the custodial link, thus, it is vital that the seized
contraband are immediately marked because succeeding
handlers of the specimens will use the markings as reference.
The marking of the evidence serves to separate the marked
evidence from the corpus of all other similar or related
evidence from the time they are seized from the accused until
they are disposed of at the end of criminal proceedings,
obviating switching, "planting," or contamination of evidence.30
Anent the age of the appellant when he was arrested, this
Court finds it appropriate to discuss the effect of his minority in
his suspension of sentence. The appellant was seventeen (17)
years old when the buy-bust operation took place or when the
said offense was committed, but was no longer a minor at the
time of the promulgation of the RTC's Decision.
It must be noted that RA 9344 took effect on May 20, 2006,
while the RTC promulgated its decision on this case on
September 14, 2005, when said appellant was no longer a
minor. The RTC did not suspend the sentence in accordance
with Article 192 of P.D. 603, The Child and Youth Welfare
Code31 and Section 32 of A.M. No. 02-1-18-SC, the Rule on
Juveniles in Conflict with the Law,32 the laws that were
applicable at the time of the promulgation of judgment,
because the imposable penalty for violation of Section 5 of RA
9165 is life imprisonment to death.
It may be argued that the appellant should have been entitled
to a suspension of his sentence under Sections 38 and 68 of
RA 9344 which provide for its retroactive application, thus:
SEC. 38. Automatic Suspension of Sentence. - Once the child
who is under eighteen (18) years of age at the time of the
commission of the offense is found guilty of the offense
charged, the court shall determine and ascertain any civil
liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction,
the court shall place the child in conflict with the law under
suspended sentence, without need of application: Provided,
however, That suspension of sentence shall still be applied
even if the juvenile is already eighteen years (18) of age or
more at the time of the pronouncement of his/her guilt.
Upon suspension of sentence and after considering the various
circumstances of the child, the court shall impose the
appropriate disposition measures as provided in the Supreme
Court [Rule] on Juveniles in Conflict with the Law.
Sec. 68. Children Who Have Been Convicted and are Serving
Sentence. - Persons who have been convicted and are serving
sentence at the time of the effectivity of this Act, and who were
below the age of eighteen (18) years at the time of the
commission of the offense for which they were convicted and
are serving sentence, shall likewise benefit from the retroactive
application of this Act. x x x
However, this Court has already ruled in People v. Sarcia33
that while Section 38 of RA 9344 provides that suspension of
sentence can still be applied even if the child in conflict with the
law is already eighteen (18) years of age or more at the time of
the pronouncement of his/her guilt, Section 40 of the same law
limits the said suspension of sentence until the child reaches
the maximum age of 21. The provision states:
SEC. 40. Return of the Child in Conflict with the Law to Court. -
If the court finds that the objective of the disposition measures
imposed upon the child in conflict with the law have not been
fulfilled, or if the child in conflict with the law has willfully failed
to comply with the condition of his/her disposition or
rehabilitation program, the child in conflict with the law shall be
brought before the court for execution of judgment.
If said child in conflict with the law has reached eighteen (18)
years of age while under suspended sentence, the court shall
determine whether to discharge the child in accordance with
this Act, to order execution of sentence, or to extend the
suspended sentence for a certain specified period or until the
child reaches the maximum age of twenty-one (21) years.
Hence, the appellant, who is now beyond the age of twenty-
one (21) years can no longer avail of the provisions of Sections
38 and 40 of RA 9344 as to his suspension of sentence,
because such is already moot and academic. It is highly noted
that this would not have happened if the CA, when this case
was under its jurisdiction, suspended the sentence of the
appellant. The records show that the appellant filed his notice
of appeal at the age of 19 (2005), hence, when RA 9344
became effective in 2006, appellant was 20 years old, and the
case having been elevated to the CA, the latter should have
suspended the sentence of the appellant because he was
already entitled to the provisions of Section 38 of the same law,
which now allows the suspension of sentence of minors
regardless of the penalty imposed as opposed to the provisions
of Article 192 of P.D. 603.34
Nevertheless, the appellant shall be entitled to appropriate
disposition under Section 51 of RA No. 9344, which provides
for the confinement of convicted children as follows:35
SEC. 51. Confinement of Convicted Children in Agricultural
Camps and other Training Facilities. - A child in conflict with
the law may, after conviction and upon order of the court, be
made to serve his/her sentence, in lieu of confinement in a
regular penal institution, in an agricultural camp and other
training facilities that may be established, maintained,
supervised and controlled by the BUCOR, in coordination with
the DSWD.
In finding the guilt beyond reasonable doubt of the appellant for
violation of Section 5 of RA 9165, the RTC imposed the penalty
of reclusion perpetua as mandated in Section 9836 of the
same law. A violation of Section 5 of RA 9165 merits the
penalty of life imprisonment to death; however, in Section 98, it
is provided that, where the offender is a minor, the penalty for
acts punishable by life imprisonment to death provided in the
same law shall be reclusion perpetua to death. Basically, this
means that the penalty can now be graduated as it has
adopted the technical nomenclature of penalties provided for in
the Revised Penal Code. The said principle was enunciated by
this Court in People v. Simon,37 thus:
We are not unaware of cases in the past wherein it was held
that, in imposing the penalty for offenses under special laws,
the rules on mitigating or aggravating circumstances under the
Revised Penal Code cannot and should not be applied. A
review of such doctrines as applied in said cases, however,
reveals that the reason therefor was because the special laws
involved provided their own specific penalties for the offenses
punished thereunder, and which penalties were not taken from
or with reference to those in the Revised Penal Code. Since
the penalties then provided by the special laws concerned did
not provide for the minimum, medium or maximum periods, it
would consequently be impossible to consider the aforestated
modifying circumstances whose main function is to determine
the period of the penalty in accordance with the rules in Article
64 of the Code.
This is also the rationale for the holding in previous cases that
the provisions of the Code on the graduation of penalties by
degrees could not be given supplementary application to
special laws, since the penalties in the latter were not
components of or contemplated in the scale of penalties
provided by Article 71 of the former. The suppletory effect of
the Revised Penal Code to special laws, as provided in Article
10 of the former, cannot be invoked where there is a legal or
physical impossibility of, or a prohibition in the special law
against, such supplementary application.
The situation, however, is different where although the offense
is defined in and ostensibly punished under a special law, the
penalty therefor is actually taken from the Revised Penal Code
in its technical nomenclature and, necessarily, with its duration,
correlation and legal effects under the system of penalties
native to said Code. When, as in this case, the law involved
speaks of prision correccional, in its technical sense under the
Code, it would consequently be both illogical and absurd to
posit otherwise.
xxxx
Prefatorily, what ordinarily are involved in the graduation and
consequently determine the degree of the penalty, in
accordance with the rules in Article 61 of the Code as applied
to the scale of penalties in Article 71, are the stage of
execution of the crime and the nature of the participation of the
accused. However, under paragraph 5 of Article 64, when
there are two or more ordinary mitigating circumstances and no
aggravating circumstance, the penalty shall be reduced by one
degree. Also, the presence of privileged mitigating
circumstances, as provided in Articles 67 and 68, can reduce
the penalty by one or two degrees, or even more. These
provisions of Articles 64(5), 67 and 68 should not apply in toto
in the determination of the proper penalty under the aforestated
second paragraph of section 20 of Republic Act No. 6425, to
avoid anomalous results which could not have been
contemplated by the legislature.
Thus, paragraph 5 of Article 61 provides that when the law prescribes
a penalty in some manner not specially provided for in the four
preceding paragraphs thereof, the courts shall proceed by analogy
therewith. Hence, when the penalty prescribed for the crime consists of
one or two penalties to be imposed in their full extent, the penalty next
lower in degree shall likewise consist of as many penalties which follow
the former in the scale in Article 71. If this rule were to be applied, and
since the complex penalty in this case consists of three discrete
penalties in their full extent, that is, prision correccional, prision mayor
and reclusion temporal, then one degree lower would be arresto
menor, destierro and arresto mayor. There could, however, be no
further reduction by still one or two degrees, which must each likewise
consist of three penalties, since only the penalties of fine and public
censure remain in the scale.1avvphi1
The Court rules, therefore, that while modifying circumstances may be
appreciated to determine the periods of the corresponding penalties, or
even reduce the penalty by degrees, in no case should such
graduation of penalties reduce the imposable penalty beyond or lower
than prision correccional. It is for this reason that the three component
penalties in the second paragraph of Section 20 shall each be
considered as an independent principal penalty, and that the lowest
penalty should in any event be prision correccional in order not to
depreciate the seriousness of drug offenses. Interpretatio fienda est ut
res magis valeat quam pereat. Such interpretation is to be adopted so
that the law may continue to have efficacy rather than fail. A perfect
judicial solution cannot be forged from an imperfect law, which impasse
should now be the concern of and is accordingly addressed to
Congress.38
Consequently, the privileged mitigating circumstance of minority39 can
now be appreciated in fixing the penalty that should be imposed. The
RTC, as affirmed by the CA, imposed the penalty of reclusion perpetua
without considering the minority of the appellant. Thus, applying the
rules stated above, the proper penalty should be one degree lower
than reclusion perpetua, which is reclusion temporal, the privileged
mitigating circumstance of minority having been appreciated.
Necessarily, also applying the Indeterminate Sentence Law (ISLAW),
the minimum penalty should be taken from the penalty next lower in
degree which is prision mayor and the maximum penalty shall be taken
from the medium period of reclusion temporal, there being no other
mitigating circumstance nor aggravating circumstance.40 The ISLAW
is applicable in the present case because the penalty which has been
originally an indivisible penalty (reclusion perpetua to death), where
ISLAW is inapplicable, became a divisible penalty (reclusion temporal)
by virtue of the presence of the privileged mitigating circumstance of
minority. Therefore, a penalty of six (6) years and one (1) day of prision
mayor, as minimum, and fourteen (14) years, eight (8) months and one
(1) day of reclusion temporal, as maximum, would be the proper
imposable penalty.
WHEREFORE, the Decision dated July 31, 2008 of the Court of
Appeals (CA) in CA-G.R. CR-H.C. No. 00240-MIN, affirming the
Omnibus Judgment dated September 14, 2005 of the Regional Trial
Court, Branch 1, Butuan City in Criminal Case No. 10250 and Criminal
Case No. 10251, finding appellant Allen Udtojan Mantalaba, guilty
beyond reasonable doubt of violation of Sections 5 and 11, Article II of
RA 9165 is hereby AFFIRMED with the MODIFICATION that the
penalty that should be imposed on appellant's conviction of violation of
Section 5 of RA 9165, is six (6) years and one (1) day of prision mayor,
as minimum, and fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal, as maximum.
G.R. No. 177751 : January 7, 2013
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. FLORENCIO
AGACER,* EDDIE AGACER, ELYNOR AGACER, FRANKLIN
AGACER and ERIC*** AGACER, Accused-Appellants.
For resolution is appellants' Motion for Reconsideration1 of our
December 14, 2011 Decision2 affirming their conviction for the murder
of Cesario Agacer, the dispositive portion of which reads as
follows:cralawlibrary
WHEREFORE, the Court AFFIRMS the November 17, 2006 Decision
of the Court of Appeals in CA-G.R. CR-H.C. No. 01543 which affirmed
the August 7, 2001 Decision of the Regional Trial Court, Branch 8,
Aparri, Cagayan, finding appellants Florencio, Franklin, Elynor, Eddie
and Eric, all surnamed Agacer. guilty beyond reasonable doubt of the
crime of murder, with the following modifications:cralawlibrary
(1) actual damages is DELETED;
(2) the appellants are ORDERED to pay the heirs of Cesario Agacer
P25,000.0 as temperate damages; and
(3) the appellants are ORDERED to pay the heirs of Cesario Agacer h
interest at the legal rate of six percent (6%) per annum on all the
amounts of damages awarded, commencing from the date of finality of
this Decision until fully paid. ???ñr?bl?š ??r†??l l?? l?br?rÿ
Costs against appellants.
Appellants assert that their mere presence at the scene of the crime is
not evidence of conspiracy;4 that there was no treachery since a
heated argument preceded the killing of the victim;5 and that even
assuming that their guilt was duly established, the privileged mitigating
circumstance of minority should have been appreciated in favor of
appellant Franklin Agacer (Franklin) who was only 16 years and 106
days old at the time of the incident, having been born on December 21,
1981.6?r?l1
In our February 13, 2012 Resolution,7 we required the Office of the
Solicitor General (OSG) to comment on the Motion for Reconsideration
particularly on the issue of Franklins minority.
Meanwhile, in a letter8 dated June 8, 2012, the Officer-in-Charge of the
New Bilibid Prison, informed us that appellant Florencio Agacer
(Florencio) died on February 17, 2007, as evidenced by the attached
Certificate of Death indicating cardio pulmonary arrest secondary to
status asthmaticus as the cause of death.9?r?l1
The OSG, in its Comment,10 asserts that there exists no cogent
reason to disturb our findings and conclusions as to the guilt of the
appellants since the facts and evidence clearly established conspiracy
and treachery. However, it did not oppose and even agreed with
appellants argument that minority should have been appreciated as a
privileged mitigating circumstance in favor of Franklin, the same being
duly supported by a copy of Franklins Certificate of Live Birth secured
from the National Statistics Office (NSO) Document Management
Division.11?r?l1
Issues
Hence, the following issues for our resolution:cralawlibrary
1. Was the evidence sufficient to establish the existence of conspiracy
and treachery in the commission of the crime charged?
2. Should the mitigating circumstance of minority be appreciated in
favor of appellant Franklin?
3. Does the death of appellant Florencio extinguish his criminal and
civil liabilities?
Our Ruling
There is partial merit in appellants Motion for Reconsideration.
Reiterated Arguments in a Motion for Reconsideration Do Not Need a
New Judicial Determination.
Appellants contention that the prosecutions evidence is insufficient to
prove conspiracy and treachery is a mere rehash of their argument set
forth in their brief, "which we already considered, weighed and
resolved before we rendered the Decision sought to be
reconsidered."12 It is not a new issue that needs further judicial
determination.13 There is therefore no necessity to discuss and rule
again on this ground since "this would be a useless formality of ritual
invariably involving merely a reiteration of the reasons already set forth
in the judgment or final order for rejecting the arguments advanced by
the movant."14?r?l1
As a Minor, Franklin is Entitled to the Privileged Mitigating
Circumstance of Minority.
Nevertheless, we agree with appellants that Franklin is entitled to the
privileged mitigating circumstance of minority. Franklins Certificate of
Live Birth shows that he was born on December 20, 1981, hence, was
merely 16 years old at the time of the commission of the crime on April
2, 1998. He is therefore entitled to the privileged mitigating
circumstance of minority embodied in Article 68(2) of the Revised
Penal Code. It provides that when the offender is a minor over 15 and
under 18 years, the penalty next lower than that prescribed by law shall
be imposed on the accused but always in the proper period. The
rationale of the law in extending such leniency and compassion is that
because of his age, the accused is presumed to have acted with less
discernment.15 This is regardless of the fact that his minority was not
proved during the trial and that his birth certificate was belatedly
presented for our consideration, since to rule accordingly will not
adversely affect the rights of the state, the victim and his heirs.
Penalty to be Imposed Upon Franklin.
Pursuant to the above discussion, the penalty imposed upon Franklin
must be accordingly modified. The penalty for murder is reclusion
perpetua to death. A degree lower is reclusion temporal.16 There
being no aggravating and ordinary mitigating circumstance, the penalty
to be imposed on Franklin should be reclusion temporal in its medium
period, as maximum, which ranges from fourteen (14) years, eight (8)
months and one (1) day to seventeen (17) years and four (4)
months.17 Applying the Indeterminate Sentence Law, the penalty next
lower in degree is prision mayor, the medium period of which ranges
from eight (8) years and one (1) day to ten (10) years. Due to the
seriousness of the crime and the manner it was committed, the penalty
must be imposed at its most severe range.
The Death of Florencio Prior to Our Final Judgment Extinguishes His
Criminal Liability and Civil Liability Ex Delicto.
On the effect of the death of appellant Florencio on his criminal liability,
Article 89(1) of the Revised Penal Code provides that:cralawlibrary
Art. 89. How criminal liability is totally extinguished. Criminal liability is
totally extinguished.
1. By the death of the convict, as to the personal penalties; and as to
pecuniary penalties, liability therefor is extinguished only when the
death of the offender occurs before final judgment;
It is also settled that "upon the death of the accused pending appeal of
his conviction, the criminal action is extinguished inasmuch as there is
no longer a defendant to stand as the accused; the civil action
instituted therein for recovery of civil liability ex delicto is ipso facto
extinguished, grounded as it is on the criminal."18?r?l1
While Florencio died way back on February 7, 2007, the said
information was not timely relayed to the Court, such that we were
unaware of the same when we rendered our December 14, 2011
Decision. It was only later that we were informed of Florencios death
through the June 8, 2012 letter of the Officer-in- Charge of the New
Bilibid Prison. Due to this development, it therefore becomes
necessary for us to declare Florencio 's criminal liability as well as his
civil liability ex delicto to have been extinguished by his death prior to
final judgment. The judgment or conviction is thus set aside insofar as
Florencio is concerned.
WHEREFORE, appellants' Motion for Reconsideration is PARTIALLY
GRANTED. Our Decision dated December 14, 2011 is MODIFIED as
follows: (a) appellant Franklin Agacer is sentenced to suffer the penalty
often (10) years of prision mayor in its medium period, as minimum, to
seventeen (17) years and four ( 4) months of reclusion temporal in its
medium period, as maximum, and (b) the criminal liability and civil
liability ex delicto of appellant Florencio Agacer are declared
EXTINGUISHED by his death prior to final judgment. The judgment or
conviction against him is therefore SET ASIDE.
G.R. No. 187683 February 11, 2010
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
VICTORIANO DELA CRUZ y LORENZO, Appellant.
Before this Court is an Appeal,1 seeking the reversal of the Court of
Appeals (CA) Decision2 dated October 31, 2008, which affirmed with
modification the Decision3 of the Regional Trial Court (RTC) of
Malolos,
Bulacan, Branch 11, dated August 15, 2005, convicting appellant
Victoriano dela Cruz y Lorenzo4 (Victoriano) of the crime of Parricide.
The Facts
Victoriano was charged with the crime of Parricide in an Information5
dated January 2, 2003, which reads:
That on or about the 18th day of August, 2002, in the municipality of
Malolos, province of Bulacan, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, with intent to kill his
wife Anna Liza Caparas-dela Cruz, with whom he was united in lawful
wedlock, did then and there willfully, unlawfully and feloniously attack,
assault, use personal violence and stab the said Anna Liza Caparas-
dela Cruz, hitting the latter on her trunk and on the different parts of her
body, thereby inflicting upon her serious physical injuries which directly
caused her death.
Contrary to law.
Upon arraignment, Victoriano, with the assistance of counsel, pleaded
not guilty to the offense charged.6 Thereafter, trial on the merits
ensued. In the course of the trial, two varying versions arose.
Version of the Prosecution
Joel Song (Joel) testified that between 3:30 and 4:00 p.m. on August
18, 2002, he and two others, including the aunt of Victoriano, were
playing a card game known as tong-its just three to four arms length
away from the latter’s house.
While playing, Joel saw Victoriano punching and kicking his wife,
herein victim Anna Liza Caparas-dela Cruz7 (Anna), in front of their
house. Joel knew the wife’s name as "Joan." Victoriano then dragged
Anna inside the house by pulling the latter's hair, then slammed the
door. Joel overheard the couple shouting while they were already
inside the house.8
Suddenly, Victoriano and Anna came out of the house, together with
their young daughter. Victoriano was behind Anna, with his arms
wrapped around her. He asked for Joel’s help. Joel noticed blood
spurting out of Anna’s mouth. He took the couple’s daughter and gave
her to Victoriano's aunt. He then went with them to the Bulacan
Provincial Hospital (hospital) on board a tricycle. However, Anna died.9
On the same day, at about 6:30 p.m., Senior Police Officers 1
Condrado Umali and Eligio Jose, responding to the call of duty, went to
the hospital for investigation. There, Victoriano was turned over to the
police officers by the hospital's security guard on duty.10
The Certificate of Death,11 prepared by Police Senior Inspector and
Medico-Legal Officer, Dr. Ivan Richard Viray (Dr. Viray), showed that
Victoriano’s wife died of "hemorrhagic shock as a result of a stab
wound, trunk." Moreover, in his Medico-Legal Report12 dated August
21, 2002, Dr. Viray had the following findings:
HEAD and NECK:
1) Hematoma, frontal region, measuring 3 x 3 cm, 3 cm right of the
anterior midline.
2) Hematoma, left orbital region, measuring 2 x 2 cm, 3 cm from the
anterior midline.
CHEST and ABDOMEN:
1) Stab wound, penetrating, right shoulder region, measuring 2 x .5 cm,
2 cm right of the posterior midline, about 12 cm deep, directed
lateralwards and slightly downwards, piercing the underlying tissues
and muscle, lacerating the upper lobe of the right lungs.
> There are about 2000 cc of blood and blood clots at the thoracic
cavity.
UPPER and LOWER EXTREMITIES:
1) Hematoma, distal 3rd of the left forearm, measuring 7 x 4 cm,
bisected by its posterior midline, with superimposed abrasion,
measuring 1.5 x 7 cm, along its anterior midline.
Version of the Defense
Victoriano testified that, at around 6:30 p.m. on August 18, 2002, he
came home very drunk from a friend's house. Before he could enter
their house, his wife, Anna, started nagging him saying, "Hindi ka
naman pala namamasada, nakipag-inuman ka pa." He asked her to go
inside their house but she refused. Thus, Victoriano slapped Anna and
dragged her inside their house.
Due to the continuous nagging of Anna, Victoriano pushed her aside
so he could go out of the house. However, she fell on a jalousie
window, breaking it in the process. When he helped her stand up,
Victoriano noticed that her back was punctured by a piece of shattered
glass of the jalousie. He brought her outside immediately and asked
the help of his neighbors who were playing tong-its nearby. Victoriano
admitted that Joel accompanied him and his wife to the hospital.
At the hospital, Victoriano was taken into custody by policemen for
questioning. It was only in the following morning that Victoriano learned
of his wife’s passing.
Victoriano also testified that he does not usually drink; that he
consumed hard liquor at the time of the incident; that Anna was not
immediately treated in the hospital; that he loved his wife; and that he
did not intentionally hurt her.13
The Lower Courts’ Ruling
On August 15, 2005, the RTC rendered a Decision, the dispositive
portion of which reads:
WHEREFORE, this Court finds the accused Victoriano L. dela Cruz
Guilty beyond reasonable doubt of Parricide under Art. 246 of the
Revised Penal Code and hereby sentences him to suffer the penalty of
Reclusion Perpetua and to pay the heirs of the late Anna Liza
Caparas-dela Cruz the following sums of money, to wit:
1. P60,000.00 as civil liability
2. P50,000.00 as moral damages, and
3. P30,000.00 as exemplary damages.
SO ORDERED.14
Aggrieved, Victoriano appealed to the CA.15
On October 31, 2008, the CA affirmed with modification the findings of
the RTC, thus:
WHEREFORE, the Decision dated 15 August 2005 of the Regional
Trial Court, Third Judicial Region, Malolos, Bulacan, Branch 11, is
hereby AFFIRMED with MODIFICATIONS. The award of civil
indemnity is reduced to P50,000.00 and the award of exemplary
damages is deleted.
SO ORDERED.16
Hence, this appeal.
In its Manifestation17 filed before this Court, appellee, People of the
Philippines, as represented by the Office of the Solicitor General,
intimated that it was no longer filing any Supplemental Brief in support
of its position.
Meanwhile, in his Supplemental Brief,18 Victoriano, as represented by
the Public Attorney's Office, claimed that the CA erred in appreciating
Joel's testimony, since the latter merely testified on the non-mortal
wounds that Anna suffered when the couple were outside the house.
Insofar as the actual killing was concerned, Joel's testimony was
merely circumstantial. Moreover, Victoriano averred that he did not
intend to commit so grave a wrong against his wife, evident from the
facts that he carried the injured body of his wife; that he sought for help
after the accident; and that he brought her to the hospital for medical
treatment. Furthermore, Victoriano asseverated that he was very drunk
at the time. Thus, he prayed that these mitigating circumstances be
appreciated in his favor.
Our Ruling
The instant appeal is bereft of merit.
The crime of Parricide is defined and punished under Article 246 of the
Revised Penal Code (RPC), to wit:
Art. 246. Parricide. — Any person who shall kill his father, mother, or
child, whether legitimate or illegitimate, or any of his ascendants, or
descendants, or his spouse, shall be guilty of parricide and shall be
punished by the penalty of reclusion perpetua to death.
It is committed when: (1) a person is killed; (2) the deceased is killed
by the accused; and (3) the deceased is the father, mother, or child,
whether legitimate or illegitimate, or a legitimate other ascendant or
other descendant, or the legitimate spouse of the accused. The key
element in Parricide ― other than the fact of killing ― is the
relationship of the offender to the victim. In the case of Parricide of a
spouse, the best proof of the relationship between the accused and the
deceased would be the marriage certificate. In this case, the testimony
of the accused that he was married to the victim, in itself, is ample
proof of such relationship as the testimony can be taken as an
admission against penal interest.19 Clearly, then, it was established
that Victoriano and Anna were husband and wife.
Victoriano claims that Joel's testimony coincides with his own, which
refers to the slapping incident that occurred outside their house. It does
not at all point to him as the actual perpetrator of the crime. Thus,
Victoriano submits that Joel’s testimony is merely circumstantial.
But circumstantial evidence is sufficient for conviction, as we ruled in
People v. Castillo:20
Direct evidence of the commission of the offense is not the only matrix
wherefrom a trial court may draw its conclusions and finding of guilt.
Conviction can be had on the basis of circumstantial evidence provided
that: (1) there is more than one circumstance; (2) the facts from which
the inferences are derived are proven; and (3) the combination of all
the circumstances is such as to produce a conviction beyond
reasonable doubt. While no general rule can be laid down as to the
quantity of circumstantial evidence which will suffice in a given case, all
the circumstances proved must be consistent with each other,
consistent with the hypothesis that the accused is guilty, and at the
same time inconsistent with the hypothesis that he is innocent, and
with every other rational hypothesis except that of guilt. The
circumstances proved should constitute an unbroken chain which leads
to only one fair and reasonable conclusion that the accused, to the
exclusion of all others, is the guilty person. Proof beyond reasonable
doubt does not mean the degree of proof excluding the possibility of
error and producing absolute certainty. Only moral certainty or "that
degree of proof which produces conviction in an unprejudiced mind" is
required.21
In this case, we note the presence of the requisites for circumstantial
evidence to sustain a conviction. First, immediately preceding the
killing, Victoriano physically maltreated his wife, not merely by slapping
her as he claimed, but by repeatedly punching and kicking her.
Second, it was Victoriano who violently dragged the victim inside their
house, by pulling her hair. Third, in Dr. Viray's Report, Anna sustained
injuries in different parts of her body due to Victoriano's acts of physical
abuse. Fourth, the location and extent of the wound indicated
Victoriano's intent to kill the victim. The Report revealed that the victim
sustained a fatal stab wound, lacerating the upper lobe of her right
lung, a vital organ. The extent of the physical injury inflicted on the
deceased manifests Victoriano's intention to extinguish life. Fifth, as
found by both the RTC and the CA, only Victoriano and Anna were
inside the house, other than their young daughter.1avvphi1 Thus, it can
be said with certitude that Victoriano was the lone assailant. Sixth, we
have held that the act of carrying the body of a wounded victim and
bringing her to the hospital ― as Victoriano did ― does not manifest
innocence.1avvphi1 It could merely be an indication of repentance or
contrition on his part.22
The foregoing circumstances are proven facts, and the Court finds no
reason to discredit Joel’s testimony and Dr. Viray's Report. Besides,
well-entrenched is the rule that the trial court's assessment of the
credibility of witnesses is accorded great respect and will not be
disturbed on appeal, inasmuch as the court below was in a position to
observe the demeanor of the witnesses while testifying. The Court
does not find any arbitrariness or
error on the part of the RTC as would warrant a deviation from this
well-entrenched rule.23
Even if, for the sake of argument, we consider Victoriano’s claim that
the injury sustained by his wife was caused by an accident, without
fault or intention of causing it, it is clear that Victoriano was not
performing a lawful act at the time of the incident. Before an accused
may be exempted from criminal liability by the invocation of Article 12
(paragraph 4) of the RPC, the following elements must concur: (1) a
person is performing a lawful act (2) with due care, and (3) he causes
an injury to another by mere accident and (4) without any fault or
intention of causing it. For an accident to become an exempting
circumstance, the act that causes the injury has to be lawful.24
Victoriano's act of physically maltreating his spouse is definitely not a
lawful act. To say otherwise would be a travesty -- a gross affront to
our existing laws on violence against women. Thus, we fully agree with
the apt findings of the CA, to wit:
With the foregoing avowal, We find that the death of appellant’s wife
was not caused by mere accident. An accident is an occurrence that
"happens outside the sway of our will, and although it comes about
through some act of our will, lies beyond the bounds of humanly
foreseeable consequences." It connotes the absence of criminal intent.
Intent is a mental state, the existence of which is shown by a person’s
overt acts.
In the case at bench, evidence disclosed that appellant started beating
his wife outside their house and was even the one who dragged her
inside. This, to Our mind, contradicts his theory that he only pushed
her so as to go out of the house to avoid any further quarrel. Such
incongruity whittles down appellant’s defense that he did not
deliberately kill his wife.25
Finally, a person pleading intoxication to mitigate penalty must present
proof of having taken a quantity of alcoholic beverage prior to the
commission of the crime, sufficient to produce the effect of obfuscating
reason.26 In short, the defense must show that the intoxication is not
habitual, and not subsequent to a plan to commit a felony, and that the
accused's drunkenness affected his mental faculties. In this case, the
absence of any independent proof that his alcohol intake affected his
mental faculties militate against Victoriano’s claim that he was so
intoxicated at the time he committed the crime to mitigate his liability.27
In sum, Victoriano failed to sufficiently show that the CA committed any
reversible error in its assailed Decision. His guilt was sufficiently
established by circumstantial evidence.
The penalty of reclusion perpetua was correctly imposed, considering
that there was neither any mitigating nor aggravating circumstance.
The heirs of the victim are entitled to a civil indemnity ex delicto of
P50,000.00, which is mandatory upon proof of the fact of death of the
victim and the culpability of the accused for such death. Likewise,
moral damages, in the amount of P50,000.00, should be awarded even
in the absence of allegation and proof of the emotional suffering of the
victim's heirs, because certainly the family suffered emotional pain
brought about by Anna's death.
However, the CA erred when it deleted the award of exemplary
damages. In line with current jurisprudence, it is but fitting that
exemplary damages, in the sum of P30,000.00, be awarded,
considering that the qualifying circumstance of relationship is present,
this being a case of Parricide.28
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR
HC No. 01575, finding appellant, Victoriano dela Cruz y Lorenzo, guilty
beyond reasonable doubt of the crime of Parricide, is hereby
AFFIRMED WITH MODIFICATION. Appellant is sentenced to suffer
the penalty of reclusion perpetua and to pay the heirs of the victim,
Anna Liza Caparas-dela Cruz, the amounts of P50,000.00 as civil
indemnity, P50,000.00 as moral damages, and P30,000.00 as
exemplary damages. No costs.
G.R. No. 149275 September 27, 2004
VICKY C. TY, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
Petitioner Vicky C. Ty ("Ty") filed the instant Petition for Review
under Rule 45, seeking to set aside the Decision1 of the Court
of Appeals Eighth Division in CA-G.R. CR No. 20995,
promulgated on 31 July 2001. The Decision affirmed with
modification the judgment of the Regional Trial Court (RTC) of
Manila, Branch 19, dated 21 April 1997, finding her guilty of
seven (7) counts of violation of Batas Pambansa Blg. 222 (B.P.
22), otherwise known as the Bouncing Checks Law.
This case stemmed from the filing of seven (7) Informations for
violation of B.P. 22 against Ty before the RTC of Manila. The
Informations were docketed as Criminal Cases No. 93-130459
to No. 93-130465. The accusatory portion of the Information in
Criminal Case No. 93-130465 reads as follows:
That on or about May 30, 1993, in the City of Manila,
Philippines, the said accused did then and there willfully,
unlawfully and feloniously make or draw and issue to Manila
Doctors’ Hospital to apply on account or for value to Editha L.
Vecino Check No. Metrobank 487712 dated May 30, 1993
payable to Manila Doctors Hospital in the amount of
P30,000.00, said accused well knowing that at the time of
issue she did not have sufficient funds in or credit with the
drawee bank for payment of such check in full upon its
presentment, which check when presented for payment within
ninety (90) days from the date hereof, was subsequently
dishonored by the drawee bank for "Account Closed" and
despite receipt of notice of such dishonor, said accused failed
to pay said Manila Doctors Hospital the amount of the check or
to make arrangement for full payment of the same within five
(5) banking days after receiving said notice.
Contrary to law.3
The other Informations are similarly worded except for the
number of the checks and dates of issue. The data are
hereunder itemized as follows:
Criminal Case No. Check No. Postdated
Amount
93-130459 487710 30 March 1993 P30,000.00
93-130460 487711 30 April 1993 P30,000.00
93-130461 487709 01 March 1993 P30,000.00
93-130462 487707 30 December 1992
P30,000.00
93-130463 487706 30 November 1992
P30,000.00
93-130464 487708 30 January 1993 P30,000.00
93-130465 487712 30 May 1993 P30,000.004
The cases were consolidated and jointly tried. At her
arraignment, Ty pleaded not guilty.5
The evidence for the prosecution shows that Ty’s mother Chua
Lao So Un was confined at the Manila Doctors’ Hospital
(hospital) from 30 October 1990 until 4 June 1992. Being the
patient’s daughter, Ty signed the "Acknowledgment of
Responsibility for Payment" in the Contract of Admission dated
30 October 1990.6 As of 4 June 1992, the Statement of
Account7 shows the total liability of the mother in the amount of
P657,182.40. Ty’s sister, Judy Chua, was also confined at the
hospital from 13 May 1991 until 2 May 1992, incurring hospital
bills in the amount of P418,410.55.8 The total hospital bills of
the two patients amounted to P1,075,592.95. On 5 June 1992,
Ty executed a promissory note wherein she assumed payment
of the obligation in installments.9 To assure payment of the
obligation, she drew several postdated checks against
Metrobank payable to the hospital. The seven (7) checks, each
covering the amount of P30,000.00, were all deposited on their
due dates. But they were all dishonored by the drawee bank
and returned unpaid to the hospital due to insufficiency of
funds, with the "Account Closed" advice. Soon thereafter, the
complainant hospital sent demand letters to Ty by registered
mail. As the demand letters were not heeded, complainant filed
the seven (7) Informations subject of the instant case.10
For her defense, Ty claimed that she issued the checks
because of "an uncontrollable fear of a greater injury." She
averred that she was forced to issue the checks to obtain
release for her mother whom the hospital inhumanely and
harshly treated and would not discharge unless the hospital
bills are paid. She alleged that her mother was deprived of
room facilities, such as the air-condition unit, refrigerator and
television set, and subject to inconveniences such as the
cutting off of the telephone line, late delivery of her mother’s
food and refusal to change the latter’s gown and bedsheets.
She also bewailed the hospital’s suspending medical treatment
of her mother. The "debasing treatment," she pointed out, so
affected her mother’s mental, psychological and physical
health that the latter contemplated suicide if she would not be
discharged from the hospital. Fearing the worst for her mother,
and to comply with the demands of the hospital, Ty was
compelled to sign a promissory note, open an account with
Metrobank and issue the checks to effect her mother’s
immediate discharge.11
Giving full faith and credence to the evidence offered by the
prosecution, the trial court found that Ty issued the checks
subject of the case in payment of the hospital bills of her
mother and rejected the theory of the defense.12 Thus, on 21
April 1997, the trial court rendered a Decision finding Ty guilty
of seven (7) counts of violation of B.P. 22 and sentencing her
to a prison term. The dispositive part of the Decision reads:
CONSEQUENTLY, the accused Vicky C. Ty, for her acts of
issuing seven (7) checks in payment of a valid obligation,
which turned unfounded on their respective dates of maturity,
is found guilty of seven (7) counts of violations of Batas
Pambansa Blg. 22, and is hereby sentenced to suffer the
penalty of imprisonment of SIX MONTHS per count or a total of
forty-two (42) months.
SO ORDERED.13
Ty interposed an appeal from the Decision of the trial court.
Before the Court of Appeals, Ty reiterated her defense that she
issued the checks "under the impulse of an uncontrollable fear
of a greater injury or in avoidance of a greater evil or injury."
She also argued that the trial court erred in finding her guilty
when evidence showed there was absence of valuable
consideration for the issuance of the checks and the payee had
knowledge of the insufficiency of funds in the account. She
protested that the trial court should not have applied the law
mechanically, without due regard to the principles of justice
and equity.14
In its Decision dated 31 July 2001, the appellate court affirmed
the judgment of the trial court with modification. It set aside the
penalty of imprisonment and instead sentenced Ty "to pay a
fine of sixty thousand pesos (P60,000.00) equivalent to double
the amount of the check, in each case."15
In its assailed Decision, the Court of Appeals rejected Ty’s
defenses of involuntariness in the issuance of the checks and
the hospital’s knowledge of her checking account’s lack of
funds. It held that B.P. 22 makes the mere act of issuing a
worthless check punishable as a special offense, it being a
malum prohibitum. What the law punishes is the issuance of a
bouncing check and not the purpose for which it was issued
nor the terms and conditions relating to its issuance.16
Neither was the Court of Appeals convinced that there was no
valuable consideration for the issuance of the checks as they
were issued in payment of the hospital bills of Ty’s mother.17
In sentencing Ty to pay a fine instead of a prison term, the
appellate court applied the case of Vaca v. Court of Appeals18
wherein this Court declared that in determining the penalty
imposed for violation of B.P. 22, the philosophy underlying the
Indeterminate Sentence Law should be observed, i.e.,
redeeming valuable human material and preventing
unnecessary deprivation of personal liberty and economic
usefulness, with due regard to the protection of the social
order.19
Petitioner now comes to this Court basically alleging the same
issues raised before the Court of Appeals. More specifically,
she ascribed errors to the appellate court based on the
following grounds:
A. THERE IS CLEAR AND CONVINCING EVIDENCE THAT
PETITIONER WAS FORCED TO OR COMPELLED IN THE
OPENING OF THE ACCOUNT AND THE ISSUANCE OF THE
SUBJECT CHECKS.
B. THE CHECKS WERE ISSUED UNDER THE IMPULSE OF
AN UNCONTROLLABLE FEAR OF A GREATER INJURY OR
IN AVOIDANCE OF A GREATER EVIL OR INJURY.
C. THE EVIDENCE ON RECORD PATENTLY SHOW[S]
ABSENCE OF VALUABLE CONSIDERATION IN THE
ISSUANCE OF THE SUBJECT CHECKS.
D. IT IS AN UNDISPUTED FACT THAT THE PAYEE OF THE
CHECKS WAS FULLY AWARE OF THE LACK OF FUNDS IN
THE ACCOUNT.
E. THE HONORABLE COURT OF APPEALS, AS WELL AS
THE HONORABLE TRIAL COURT [,] SHOULD NOT HAVE
APPLIED CRIMINAL LAW MECHANICALLY, WITHOUT DUE
REGARD TO THE PRINCIPLES OF JUSTICE AND EQUITY.
In its Memorandum,20 the Office of the Solicitor General
(OSG), citing jurisprudence, contends that a check issued as
an evidence of debt, though not intended to be presented for
payment, has the same effect as an ordinary check; hence, it
falls within the ambit of B.P. 22. And when a check is
presented for payment, the drawee bank will generally accept
the same, regardless of whether it was issued in payment of an
obligation or merely to guarantee said obligation. What the law
punishes is the issuance of a bouncing check, not the purpose
for which it was issued nor the terms and conditions relating to
its issuance. The mere act of issuing a worthless check is
malum prohibitum.21
We find the petition to be without merit and accordingly sustain
Ty’s conviction.
Well-settled is the rule that the factual findings and conclusions
of the trial court and the Court of Appeals are entitled to great
weight and respect, and will not be disturbed on appeal in the
absence of any clear showing that the trial court overlooked
certain facts or circumstances which would substantially affect
the disposition of the case.22 Jurisdiction of this Court over
cases elevated from the Court of Appeals is limited to
reviewing or revising errors of law ascribed to the Court of
Appeals whose factual findings are conclusive, and carry even
more weight when said court affirms the findings of the trial
court, absent any showing that the findings are totally devoid of
support in the record or that they are so glaringly erroneous as
to constitute serious abuse of discretion.23
In the instant case, the Court discerns no compelling reason to
reverse the factual findings arrived at by the trial court and
affirmed by the Court of Appeals.
Ty does not deny having issued the seven (7) checks subject
of this case. She, however, claims that the issuance of the
checks was under the impulse of an uncontrollable fear of a
greater injury or in avoidance of a greater evil or injury. She
would also have the Court believe that there was no valuable
consideration in the issuance of the checks.
However, except for the defense’s claim of uncontrollable fear
of a greater injury or avoidance of a greater evil or injury, all the
grounds raised involve factual issues which are best
determined by the trial court. And, as previously intimated, the
trial court had in fact discarded the theory of the defense and
rendered judgment accordingly.
Moreover, these arguments are a mere rehash of arguments
unsuccessfully raised before the trial court and the Court of
Appeals. They likewise put to issue factual questions already
passed upon twice below, rather than questions of law
appropriate for review under a Rule 45 petition.
The only question of law raised--whether the defense of
uncontrollable fear is tenable to warrant her exemption from
criminal liability--has to be resolved in the negative. For this
exempting circumstance to be invoked successfully, the
following requisites must concur: (1) existence of an
uncontrollable fear; (2) the fear must be real and imminent; and
(3) the fear of an injury is greater than or at least equal to that
committed.24
It must appear that the threat that caused the uncontrollable
fear is of such gravity and imminence that the ordinary man
would have succumbed to it.25 It should be based on a real,
imminent or reasonable fear for one’s life or limb.26 A mere
threat of a future injury is not enough. It should not be
speculative, fanciful, or remote.27 A person invoking
uncontrollable fear must show therefore that the compulsion
was such that it reduced him to a mere instrument acting not
only without will but against his will as well.28 It must be of
such character as to leave no opportunity to the accused for
escape.29
In this case, far from it, the fear, if any, harbored by Ty was not
real and imminent. Ty claims that she was compelled to issue
the checks--a condition the hospital allegedly demanded of her
before her mother could be discharged--for fear that her
mother’s health might deteriorate further due to the inhumane
treatment of the hospital or worse, her mother might commit
suicide. This is speculative fear; it is not the uncontrollable fear
contemplated by law.
To begin with, there was no showing that the mother’s illness
was so life-threatening such that her continued stay in the
hospital suffering all its alleged unethical treatment would
induce a well-grounded apprehension of her death. Secondly, it
is not the law’s intent to say that any fear exempts one from
criminal liability much less petitioner’s flimsy fear that her
mother might commit suicide. In other words, the fear she
invokes was not impending or insuperable as to deprive her of
all volition and to make her a mere instrument without will,
moved exclusively by the hospital’s threats or demands.
Ty has also failed to convince the Court that she was left with
no choice but to commit a crime. She did not take advantage of
the many opportunities available to her to avoid committing
one. By her very own words, she admitted that the collateral or
security the hospital required prior to the discharge of her
mother may be in the form of postdated checks or jewelry.30
And if indeed she was coerced to open an account with the
bank and issue the checks, she had all the opportunity to leave
the scene to avoid involvement.
Moreover, petitioner had sufficient knowledge that the issuance
of checks without funds may result in a violation of B.P. 22.
She even testified that her counsel advised her not to open a
current account nor issue postdated checks "because the
moment I will not have funds it will be a big problem."31
Besides, apart from petitioner’s bare assertion, the record is
bereft of any evidence to corroborate and bolster her claim that
she was compelled or coerced to cooperate with and give in to
the hospital’s demands.
Ty likewise suggests in the prefatory statement of her Petition
and Memorandum that the justifying circumstance of state of
necessity under par. 4, Art. 11 of the Revised Penal Code may
find application in this case.
We do not agree. The law prescribes the presence of three
requisites to exempt the actor from liability under this
paragraph: (1) that the evil sought to be avoided actually
exists; (2) that the injury feared be greater than the one done to
avoid it; (3) that there be no other practical and less harmful
means of preventing it.32
In the instant case, the evil sought to be avoided is merely
expected or anticipated. If the evil sought to be avoided is
merely expected or anticipated or may happen in the future,
this defense is not applicable.33 Ty could have taken
advantage of an available option to avoid committing a crime.
By her own admission, she had the choice to give jewelry or
other forms of security instead of postdated checks to secure
her obligation.
Moreover, for the defense of state of necessity to be availing,
the greater injury feared should not have been brought about
by the negligence or imprudence, more so, the willful inaction
of the actor.34 In this case, the issuance of the bounced
checks was brought about by Ty’s own failure to pay her
mother’s hospital bills.
The Court also thinks it rather odd that Ty has chosen the
exempting circumstance of uncontrollable fear and the
justifying circumstance of state of necessity to absolve her of
liability. It would not have been half as bizarre had Ty been
able to prove that the issuance of the bounced checks was
done without her full volition. Under the circumstances,
however, it is quite clear that neither uncontrollable fear nor
avoidance of a greater evil or injury prompted the issuance of
the bounced checks.
Parenthetically, the findings of fact in the Decision of the trial
court in the Civil Case35 for damages filed by Ty’s mother
against the hospital is wholly irrelevant for purposes of
disposing the case at bench. While the findings therein may
establish a claim for damages which, we may add, need only
be supported by a preponderance of evidence, it does not
necessarily engender reasonable doubt as to free Ty from
liability.
As to the issue of consideration, it is presumed, upon issuance
of the checks, in the absence of evidence to the contrary, that
the same was issued for valuable consideration.36 Section
2437 of the Negotiable Instruments Law creates a presumption
that every party to an instrument acquired the same for a
consideration38 or for value.39 In alleging otherwise, Ty has
the onus to prove that the checks were issued without
consideration. She must present convincing evidence to
overthrow the presumption.
A scrutiny of the records reveals that petitioner failed to
discharge her burden of proof. "Valuable consideration may in
general terms, be said to consist either in some right, interest,
profit, or benefit accruing to the party who makes the contract,
or some forbearance, detriment, loss or some responsibility, to
act, or labor, or service given, suffered or undertaken by the
other aide. Simply defined, valuable consideration means an
obligation to give, to do, or not to do in favor of the party who
makes the contract, such as the maker or indorser."40
In this case, Ty’s mother and sister availed of the services and
the facilities of the hospital. For the care given to her kin, Ty
had a legitimate obligation to pay the hospital by virtue of her
relationship with them and by force of her signature on her
mother’s Contract of Admission acknowledging responsibility
for payment, and on the promissory note she executed in favor
of the hospital.
Anent Ty’s claim that the obligation to pay the hospital bills was
not her personal obligation because she was not the patient,
and therefore there was no consideration for the checks, the
case of Bridges v. Vann, et al.41 tells us that "it is no defense
to an action on a promissory note for the maker to say that
there was no consideration which was beneficial to him
personally; it is sufficient if the consideration was a benefit
conferred upon a third person, or a detriment suffered by the
promisee, at the instance of the promissor. It is enough if the
obligee foregoes some right or privilege or suffers some
detriment and the release and extinguishment of the original
obligation of George Vann, Sr., for that of appellants meets the
requirement. Appellee accepted one debtor in place of another
and gave up a valid, subsisting obligation for the note executed
by the appellants. This, of itself, is sufficient consideration for
the new notes."
At any rate, the law punishes the mere act of issuing a
bouncing check, not the purpose for which it was issued nor
the terms and conditions relating to its issuance.42 B.P. 22
does not make any distinction as to whether the checks within
its contemplation are issued in payment of an obligation or to
merely guarantee the obligation.43 The thrust of the law is to
prohibit the making of worthless checks and putting them into
circulation.44 As this Court held in Lim v. People of the
Philippines,45 "what is primordial is that such issued checks
were worthless and the fact of its worthlessness is known to
the appellant at the time of their issuance, a required element
under B.P. Blg. 22."
The law itself creates a prima facie presumption of knowledge
of insufficiency of funds. Section 2 of B.P. 22 provides:
Section 2. Evidence of knowledge of insufficient funds. - The
making, drawing and issuance of a check payment of which is
refused by the drawee bank because of insufficient funds in or
credit with such bank, when presented within ninety (90) days
from the date of the check, shall be prima facie evidence of
knowledge of such insufficiency of funds or credit unless such
maker or drawer pays the holder thereof the amount due
thereon, or makes arrangements for payment in full by the
drawee of such check within five (5) banking days after
receiving notice that such check has not been paid by the
drawee.
Such knowledge is legally presumed from the dishonor of the
checks for insufficiency of funds.46 If not rebutted, it suffices to
sustain a conviction.47
Petitioner likewise opines that the payee was aware of the fact
that she did not have sufficient funds with the drawee bank and
such knowledge necessarily exonerates her liability.
The knowledge of the payee of the insufficiency or lack of
funds of the drawer with the drawee bank is immaterial as
deceit is not an essential element of an offense penalized by
B.P. 22. The gravamen of the offense is the issuance of a bad
check, hence, malice and intent in the issuance thereof is
inconsequential.48
of fact without taint of negligence, the imposition of a fine alone
should be considered as the more appropriate penalty.
Needless to say, the determination of whether circumstances
warrant the imposition of a fine alone rests solely upon the
Judge. Should the judge decide that imprisonment is the more
appropriate penalty, Administrative Circular No. 12-2000 ought
not be deemed a hindrance.
It is therefore understood that: (1) Administrative Circular 12-
2000 does not remove imprisonment as an alternative penalty
for violations of B.P. 22; (2) the judges concerned may, in the
exercise of sound discretion, and taking into consideration the
peculiar circumstances of each case, determine whether the
imposition of a fine alone would best serve the interests of
justice, or whether forbearing to impose imprisonment would
depreciate the seriousness of the offense, work violence on the
social order, or otherwise be contrary to the imperatives of
justice; (3) should only a fine be imposed and the accused
unable to pay the fine, there is no legal obstacle to the
application of the Revised Penal Code provisions on subsidiary
imprisonment.54

In addition, Ty invokes our ruling in Magno v. Court of WHEREFORE, the instant Petition is DENIED and the assailed
Appeals49 wherein this Court inquired into the true nature of Decision of the Court of Appeals, dated 31 July 2001, finding
transaction between the drawer and the payee and finally petitioner Vicky C. Ty GUILTY of violating Batas Pambansa
acquitted the accused, to persuade the Court that the Bilang 22 is AFFIRMED with MODIFICATIONS. Petitioner
circumstances surrounding her case deserve special attention Vicky C. Ty is ORDERED to pay a FINE equivalent to double
and do not warrant a strict and mechanical application of the the amount of each dishonored check subject of the seven
law. cases at bar with subsidiary imprisonment in case of
insolvency in accordance with Article 39 of the Revised Penal
Petitioner’s reliance on the case is misplaced. The material Code. She is also ordered to pay private complainant, Manila
operative facts therein obtaining are different from those Doctors’ Hospital, the amount of Two Hundred Ten Thousand
established in the instant petition. In the 1992 case, the Pesos (P210,000.00) representing the total amount of the
bounced checks were issued to cover a "warranty deposit" in a dishonored checks. Costs against the petitioner.
lease contract, where the lessor-supplier was also the financier
of the deposit. It was a modus operandi whereby the supplier
was able to sell or lease the goods while privately financing
those in desperate need so they may be accommodated. The
maker of the check thus became an unwilling victim of a lease
agreement under the guise of a lease-purchase agreement.
The maker did not benefit at all from the deposit, since the
checks were used as collateral for an accommodation and not
to cover the receipt of an actual account or credit for value.

In the case at bar, the checks were issued to cover the receipt
of an actual "account or for value." Substantial evidence, as
found by the trial court and Court of Appeals, has established
that the checks were issued in payment of the hospital bills of
Ty’s mother.

Finally, we agree with the Court of Appeals in deleting the

penalty of imprisonment, absent any proof that petitioner was
not a first-time offender nor that she acted in bad faith.
Administrative Circular 12-2000,50 adopting the rulings in Vaca
v. Court of Appeals51 and Lim v. People,52 authorizes the
non-imposition of the penalty of imprisonment in B.P. 22 cases
subject to certain conditions. However, the Court resolves to
modify the penalty in view of Administrative Circular 13-200153
which clarified Administrative 12-2000. It is stated therein:

The clear tenor and intention of Administrative Circular No. 12-

2000 is not to remove imprisonment as an alternative penalty,
but to lay down a rule of preference in the application of the
penalties provided for in B.P. Blg. 22.

Thus, Administrative Circular 12-2000 establishes a rule of

preference in the application of the penal provisions of B.P.
Blg. 22 such that where the circumstances of both the offense
and the offender clearly indicate good faith or a clear mistake
G.R. No. 182750 January 20, 2009
RODEL URBANO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
This petition for review under Rule 45 seeks to reverse and set aside
the Decision1 dated January 25, 2008 of the Court of Appeals (CA) in
CA-G.R. CR No. 25371 which affirmed with modification the April 30,
2001 Decision2 of the Regional Trial Court (RTC), Branch 39 in
Lingayen, Pangasinan in Criminal Case No. L-5028. The RTC found
petitioner Rodel Urbano guilty beyond reasonable doubt of the crime of
Homicide.
The Facts
In an Information filed before the RTC, petitioner was charged with
Homicide, committed as follows:
That on or about the 28th of September 1993 in the evening, in
Barangay Poblacion, Municipality of Lingayen, Province of
Pangasinan, Philippines and 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, hit and maul Brigido
Tomelden, inflicting upon him mortal injuries and as borne out from the
autopsy report the following findings:
EXTERNAL FINDINGS:
A- Softened portion of the scalp over (R) occipito-temporal area about
5 inches above and posterior to the (R) ear.
B- Clotted blood over the (R) occipito-temporal area.
C- No lacerations noted.
INTERNAL FINDINGS:
A- On opening the skull there is oozing of dark colored blood from the
brain substances.
B- More darked blood vessels at the (L) side of the brain.
CAUSE OF DEATH:
Cardio-respiratory arrest secondary to cerebral concussion with
resultant cerebral hemorrhage due to mauling incident.
Which directly caused his death, to the damage and prejudice of the
heirs of the said Brigido Tomelden.
CONTRARY to Article 249 of the Revised Penal Code.
Petitioner, when arraigned, pleaded not guilty to the charge. Following
the parties’ waiver of pre-trial, trial on the merits then ensued.
As summarized in the decision subject of review, the prosecution’s
evidence established the following facts:
On September 28, 1993, at around 8:00 p.m., the victim Brigido
Tomelden and petitioner were at the compound of the Lingayen Water
District (LIWAD) in Lingayen, Pangasinan, having just arrived from a
picnic in the nearby town of Bugallon, Pangasinan, where, with some
other co-workers, they drunk beer in a restaurant. While inside the
compound, the two had a heated altercation in the course of which
Tomelden hurled insulting remarks at petitioner. Reacting, petitioner
asked why Tomelden, when drunk, has the penchant of insulting
petitioner.
The exchange of words led to an exchange of blows. Cooler heads
succeeded in breaking up the fight, but only for a brief moment as the
protagonists refused to be pacified and continued throwing fist blows at
each other. Then petitioner delivered a "lucky punch," as described by
eyewitness Orje Salazar, on Tomelden’s face, which made Tomelden
topple down. Tomelden was on the verge of hitting his head on the
ground had their companions not caught him and prevented the fall.
The blow, however, caused Tomelden’s nose to bleed and rendered
him unconscious.
Petitioner and his other co-workers brought Tomelden to the office of
the LIWAD general manager where he spent the night. He remained in
the compound the following day, September 29, 1993. Upon arriving
home at around 6:00 p.m. of that day, Tomelden informed his wife,
Rosario, of the fight the previous night and of his having been rendered
unconscious. He complained of pain in his nape, head, and ear which
impelled Rosario to immediately bring him to the Lingayen Community
Hospital where Dr. Daisy Arellano examined him and treated his
lacerated left index finger, contusions, and hematoma at the right
cerebrum.
On October 2 and 7, 1993, Tomelden went back to the hospital
complaining of dizziness, headache, and other pains. The attending
doctors observed the patient to be in a state of drowsiness and
frequent vomiting. On October 8, 1993, Rosario brought Tomelden to
the Sison Memorial Provincial Hospital in Dagupan City, where the
attending physician, Dr. Ramon Ramos, diagnosed Tomelden suffering
from "brain injury, secondary to mauling to consider cerebral
hemorrhage."3
Tomelden was confined in the provincial hospital until 3:00 p.m. of
October 10, 1993, and, due to financial constraints, was thereafter
discharged despite signs negating physical condition improvement.
Upon reaching their house, however, Tomelden again complained of
extreme head pain, prompting his wife to bring him back to the
Lingayen Community Hospital where Dr. Arellano again attended to
him. This time, things turned for the worst, the doctor noting that
Tomelden appeared to be semi-conscious, sleepy, uncooperative, and
not responding to any stimulant. Tomelden died at 9:00 p.m. of that
day due, per Dr. Arellano, to "cardio-respiratory arrest secondary to
cerebral concussion with resultant cerebral hemorrhage due to mauling
incident."
The defense presented petitioner who denied having any intention to
kill, asserting that hypertension, for which Tomelden was receiving
treatment, was the cause of the latter’s death.
The Ruling of the RTC
On April 30, 2001, the RTC rendered judgment finding petitioner guilty
as charged. The fallo of the RTC’s decision reads:
WHEREFORE, the prosecution having established beyond reasonable
doubt the guilt of the accused of the crime of HOMICIDE as defined
and penalized under Art. 249 of the Revised Penal Code, this Court in
the absence of any modifying circumstances, hereby sentences said
accused to suffer the indeterminate prison term of eight (8) years and
one (1) day of Prision Mayor as minimum to seventeen (17) years and
four (4) months of Reclusion Temporal as maximum and to indemnify
the legal heirs of the victim in the amount of PHP50,000.00, plus cost
of the suit.
The period of preventive imprisonment suffered by the accused shall
be credited in full in the service of his sentence in accordance with Art.
29 of the Revised Penal Code.4
Therefrom, petitioner appealed to the CA, his recourse docketed as
CA-G.R. CR No. 25371.
The Ruling of the CA
On January 25, 2008, the CA rendered a decision, affirming the
conviction of petitioner, but awarding moral damages to the heirs of
Tomelden, disposing as follows:
WHEREFORE, in the light of the foregoing, the appeal of the accused-
appellant is DISMISSED. The decision appealed from is AFFIRMED
with MODIFICATION that an award of P50,000.00 moral damages is
GRANTED.
Remand of the records should immediately follow finality for the
consequent execution of the decision.5
The appellate court held that the commission by petitioner of the crime
of homicide, as defined and penalized under Article 2496 of the
Revised Penal Code (RPC), had been proved beyond moral certainty
of doubt, pointing to the lucky punch as the proximate cause of
Tomelden’s hospitalization and ultimately his death. And like the RTC,
the CA found no qualifying circumstance to increase or lower the
penalty.
Following the denial of petitioner’s motion for reconsideration, per the
CA Resolution7 of April 24, 2008, he interposed this petition.
The Issues
On essentially the same issues raised before the CA, petitioner now
urges the Court to set aside the appealed decision, or at least modify it,
maintaining that the appellate court:
I. x x x erred in affirming the decision of the [RTC] finding [him] guilty
beyond reasonable doubt of the crime charged.
II. x x x erred in not appreciating the mitigating circumstances of
sufficient provocation on the part of the victim and lack of intent to
commit so grave a wrong in favor of the petitioner.8
The Court’s Ruling
The petition is partly meritorious.
Homicide Duly Proved
It is petitioner’s threshold posture that the fistic injury Tomelden
sustained was not "the main underlying cause of his death."9 In this
regard, petitioner draws attention to the fact that the fist fight in
question happened on September 28, 1993. Tomelden, however, died
only on October 10, 1993 or 12 days thereafter and that, during the
intervening days, particularly September 29, 1993, the deceased
regularly reported for work. Moreover, petitioner avers that days prior
to the fateful incident of September 28, 1993, Tomelden failed to come
to work as he was suffering from malignant hypertension and that this
circumstance greatly engenders doubt as to the proximate cause of the
victim’s death. Petitioner, thus, contends that he could only be
adjudged guilty of physical injuries.10
We are not persuaded.
The prosecution witness, Salazar, testified about petitioner’s lucky
punch hitting Tomelden right smack on the face. And even if
Tomelden’s head did not hit the ground as his co-workers averted that
actuality, that punch gave him a bleeding nose and rendered him
unconscious right after the September 28, 1993 fight. From then on,
Tomelden was in and out of the hospital complaining of headache,
among other pains, until his demise on October 10, 1993, or 12 days
after the blow that made Tomelden unconscious.
Significantly, Dr. Arellano testified conducting an autopsy on the body
of Tomelden and stressed that the "softened portion of the scalp over
(R) occipito-temporal area about 5 inches above and posterior to the
(R) ear" of the victim could have been caused by a fist blow. She also
opined that the fist blow which landed on Tomelden’s head could have
shaken his brain which caused the cerebral concussion; and that the
cause of the victim’s death was "cardio-respiratory arrest secondary to
cerebral concussion with resultant cerebral hemorrhage due to mauling
incident."
The combined effects of the testimonies of Salazar and Dr. Arellano,
buttressed by that of Rosario who related about her husband’s post
September 28, 1993 severe head pain, clearly establish beyond cavil
the cause of Tomelden’s death and who was liable for it.
The CA observed aptly:
It was through the direct accounts of the prosecution witnesses of the
events that transpired during the fisticuff incident x x x more specifically
the landing of the "lucky punch" on the face of [Tomelden], taken
together with the result of the medical examinations and autopsy report
which described the death of the victim as "cardio-respiratory arrest
secondary to cerebral concussion with resultant cerebral hemorrhage
due to mauling incident" that we are convinced that the "lucky punch"
was the proximate cause of [Tomelden’s] death. The prosecution had
satisfactorily proven that it was only after the incident that transpired on
September 28, 1993 that the victim was hospitalized on several
occasions until he expired, twelve days later x x x. It is moreover of no
consequence whether the victim was able to report for work during the
intervening days x x x.
We find no reason to depart from the doctrinal rule that great weight is
accorded the factual findings of the trial court, particularly with respect
to the ascertainment of the credibility of witnesses. There was absence
of any ill motive on the part of x x x Salazar who in fact testified that he
was a friend of both [petitioner] and [Tomelden]; more so on the part of
the attending physicians.11 x x x
Petitioner’s suggestion that Tomelden succumbed to heart ailment
and/or that his death was the result of his malignant hypertension is
untenable, given that the post-mortem report yields no positive
indication that he died from such malady.
Mitigating Circumstances Present
Petitioner next contends that the mitigating circumstances of no
intention to commit so grave a wrong and sufficient provocation on the
part of the victim ought to be appreciated in petitioner’s favor.
On this score, we agree with petitioner.
Paragraphs 3 and 4 of Art. 13, RPC provide as follows:
Art. 13. Mitigating circumstances.––The following are mitigating
circumstances:
xxxx
3. That the offender had no intention to commit so grave a wrong as
that committed.
4. That sufficient provocation or threat on the part of the offended party
immediately preceded the act.
When the law speaks of provocation either as a mitigating
circumstance or as an essential element of self-defense, the reference
is to an unjust or improper conduct of the offended party capable of
exciting, inciting, or irritating anyone;12 it is not enough that the
provocative act be unreasonable or annoying;13 the provocation must
be sufficient to excite one to commit the wrongful act14 and should
immediately precede the act.15 This third requisite of self-defense is
present: (1) when no provocation at all was given to the aggressor; (2)
when, even if provocation was given, it was not sufficient; (3) when
even if the provocation was sufficient, it was not given by the person
defending himself; or (4) when even if a provocation was given by the
person defending himself, it was not proximate and immediate to the
act of aggression.16
In the instant case, Tomelden’s insulting remarks directed at petitioner
and uttered immediately before the fist fight constituted sufficient
provocation. This is not to mention other irritating statements made by
the deceased while they were having beer in Bugallon. Petitioner was
the one provoked and challenged to a fist fight.
Petitioner’s unrebutted testimony on the events immediately preceding
the fisticuff and earlier dovetails with the testimony of Salazar.
In gist, petitioner testified being, in the afternoon of September 28,
1993, in the nearby town of Bugallon for a picnic. He was with
Tomelden and several others, including Dominador Navarro,
Chairperson of LIWAD. At a restaurant in Bugallon, the group ordered
goat’s meat and drank beer. When it was time to depart, Navarro
asked petitioner to inform Tomelden, then seated in another table, to
prepare to leave.
When so informed, Tomelden insulted petitioner, telling the latter he
had no business stopping him from further drinking as he was paying
for his share of the bill. Chastised, petitioner returned to his table to
report to Navarro. At that time, petitioner saw that Tomelden had
already consumed 17 bottles of beer. In all, the group stayed at the
picnic place for three and a half hours before returning to the LIWAD.
Upon reaching the LIWAD compound, Tomelden allegedly slapped and
hurled insults at him, calling him "sipsip" just to maintain his
employment as Navarro’s tricycle driver. Tomelden allegedly then
delivered several fist and kick blows at petitioner, a couple of which hit
him despite his evasive actions. Petitioner maintained that he only
boxed the victim in retaliation, landing that lucky punch in the course of
parrying the latter’s blows.
The following testimony of Salazar attests to the provocative acts of
Tomelden and to his being the aggressor:
PROSECUTOR CHIONG
Q After you heard from the accused those remarks, what if any did the
victim replied if any?
WITNESS
A They exchanged angry words, sir.
Q What were these words?
A Rodel Urbano said, "When you’re already drunk, you keep on
insulting me."
Q And what was the reply if any?
A ‘Akina tua lanti".
PROS. CHIONG
Q Who said that?
WITNESS
A It was Brigido Tomelden, sir.
Q And what transpired next?
A After that they exchange words, sir. " If you like we will have a fist
fight" he said.
Q Who said that?
A Brigido Tomelden said.
Q At that time, were you already inside the compound of the LIWAD?
A Yes, sir.
Q After the victim allegedly told the accused, "If you want a fist fight,"
what transpired next?
A Rodel Urbano said, "if it is a fist fight we fight."17
Q And when you were already in the compound of LIWAD Office,
Brigido Tomelden was challenging the accused for a fist fight?
A Yes, sir.
Q And the accused refused to accept the challenge?
A Yes because Mr. Brigido Tomelden is very much bigger than Mr.
Rodel Urbano. He is stouter than the accused.
Q But finally the fist fight took place?
A Yes, sir.18
PROS. CHIONG
Q When the victim and this accused had this fight, fist fight, they
exchanged blows, but there was this lucky punch that hit the victim
because the victim fall down, is that correct?
A When I stop pacifying them x x x, I saw Biring the late Brigido
Tomelden, he was much aggressive than the accused, sir.
Q You mean that although it was the victim who was more aggressive
than the accused here, he also [threw] punches but sometime some of
his punches most of which did not hit the victim?
A He tried to parry the blows of the late Brigido Tomelden, sir.
Q Because he tried to parry the blow of the Brigido Tomelden, when
the accused throw punches, the punch was directed to the victim but
most of them did not hit the victim, is that what you saw?
A Yes, sir.19 (Emphasis added.)
It is abundantly clear from the above transcript that the provocation
came from Tomelden. In fact, petitioner, being very much smaller in
height and heft, had the good sense of trying to avoid a fight. But as
events turned out, a fisticuff still ensued, suddenly ending when
petitioner’s lucky punch found its mark. In People v. Macaso,20 a case
where the accused police officer shot and killed a motorist for
repeatedly taunting him with defiant words, the Court appreciated the
mitigating circumstance of sufficient provocation or threat on the part of
the offended party immediately preceding the shooting. The Court had
the same attitude in Navarro v. Court of Appeals,21 a case also
involving a policeman who killed a man after the latter challenged him
to a fight. Hence, there is no rhyme or reason why the same mitigating
circumstance should not be considered in favor of petitioner.
Moreover, the mitigating circumstance that petitioner had no intention
to commit so grave a wrong as that committed should also be
appreciated in his favor. While intent to kill may be presumed from the
fact of the death of the victim, this mitigating factor may still be
considered when attendant facts and circumstances so warrant, as in
the instant case. Consider: Petitioner tried to avoid the fight, being very
much smaller than Tomelden. He tried to parry the blows of Tomelden,
albeit he was able, during the scuffle, to connect a lucky punch that
ended the fight. And lest it be overlooked, petitioner helped carry his
unconscious co-worker to the office of the LIWAD’s general manager.
Surely, such gesture cannot reasonably be expected from, and would
be unbecoming of, one intending to commit so grave a wrong as killing
the victim. A bare-knuckle fight as a means to parry the challenge
issued by Tomelden was commensurate to the potential violence
petitioner was facing. It was just unfortunate that Tomelden died from
that lucky punch, an eventuality that could have possibly been averted
had he had the financial means to get the proper medical attention.
Thus, it is clear that the mitigating circumstance of "no intention to
commit so grave a wrong as that committed" must also be appreciated
in favor of petitioner while finding him guilty of homicide. That petitioner
landed a lucky punch at Tomelden’s face while their co-workers were
trying to separate them is a compelling indicium that he never intended
so grave a wrong as to kill the victim.
Withal, with no aggravating circumstance and two mitigating
circumstances appreciable in favor of petitioner, we apply par. 5 of Art.
64, RPC, which pertinently provides:
Art. 64. Rules for the application of penalties which contain three
periods.––In cases in which the penalties prescribed by law contain
three periods, whether it be a single divisible penalty or composed of
three different penalties, each one of which forms a period in
accordance with the provisions of Articles 76 and 77, the courts shall
observe for the application of the penalty the following rules, according
to whether there are or are no mitigating or aggravating circumstances:
5. When there are two or more mitigating circumstances and no
aggravating circumstances are present, the court shall impose the
penalty next lower to that prescribed by law, in the period that it may
deem applicable, according to the number and nature of such
circumstances.
The prescribed penalty for homicide under Art. 249 of the RPC is
reclusion temporal or from 12 years and one day to 20 years. With the
appreciation of two mitigating circumstances of no intention to commit
so grave a wrong as that committed and of sufficient provocation from
the victim, and the application of par. 5 of Art. 64, RPC, the imposable
penalty would, thus, be the next lower penalty prescribed for homicide
and this should be prision mayor or from six years and one day to 12
years. Consequently, with the application of the Indeterminate
Sentence Law, petitioner ought to be incarcerated from prision
correccional as minimum and prision mayor as maximum. In view of
the circumstances of the case, considering that the petitioner never
meant or intended to kill the victim, a prison term of eight (8) years and
one (1) day of prision mayor as maximum period is proper while the
period of two (2) years and four (4) months of prision correccional as
minimum period is reasonable.
We find no reason to modify the award of civil indemnity and moral
damages.
WHEREFORE, the CA Decision dated January 25, 2008 in CA-G.R.
CR No. 25371 is, in the light of the presence and the appreciation of
two mitigating circumstances in favor of petitioner, hereby MODIFIED
by decreasing the term of imprisonment. As thus modified, petitioner
Rodel Urbano is hereby sentenced to serve an indeterminate prison
term of from two (2) years and four (4) months of prision correccional,
as minimum, to eight (8) years and one (1) day of prision mayor, as
maximum, with whatever imprisonment he has already served fully
credited in the service of this sentence. The rest of the judgment is
hereby AFFIRMED.
[G.R. Nos. 140514-15. September 30, 2003]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUNE
IGNAS y SANGGINO, accused-appellant.
In the amended decision[1] dated June 2, 1999, in Criminal
Case No. 96-CR-2522, the Regional Trial Court (RTC) of La
Trinidad, Benguet, Branch 8, found appellant June Ignas y
Sanggino guilty of murder aggravated especially by the use of
an unlicensed firearm. Appellant was initially sentenced to
suffer the penalty of reclusion perpetua,[2] but on motion for
reconsideration by the prosecution, the penalty was upgraded
to death by lethal injection.[3] Hence, the case is now before us
for automatic review.
Appellant is an elementary school graduate. He resided at
Cruz, La Trinidad, Benguet, where he operated a bakery.[4] He
is married to Wilma Grace Ignas, by whom he has a son of
minor age.[5] Wilma Grace used to be the cashier of Windfield
Enterprise, which is owned by Pauline Gumpic.[6] Pauline had
a brother, Nemesio Lopate. It was he whom appellant fatally
shot.
In the amended Information,[7] pursuant to Section 14, Rule
110[8] of the 1985 Rules of Criminal Procedure, the Provincial
Prosecutor of Benguet charged appellant as follows:
That on or about the 10th day of March 1996 at Trading Post,
Km. 5, Municipality of La Trinidad, Province of Benguet,
Philippines, and within the jurisdiction of this Honorable Court,
without any authority of law or without any lawful permit did
then and there willfully, unlawfully and knowingly have in his
possession, control and custody a Cal. .38 hand gun and two
(2) ammunitions, (sic) which firearm and ammunitions were
used by the accused in unlawfully killing NEMESIO LOPATE at
the above-mentioned place and date in violation of the said
law.
CONTRARY TO LAW.[9]
Appellant was arraigned and pleaded not guilty to the foregoing
amended information. The case then proceeded to be heard on
the merits.
Gleaned from the records, the facts of this case are as follows:
Sometime in September 1995, appellants wife, Wilma Grace
Ignas, confided to her close friend, Romenda[10] Foyagao, that
she was having an affair with Nemesio Lopate.[11]
On the evening of October 16, 1995, Wilma Grace, Romenda,
and Nemesio went to Manila. Romenda and Nemesio were
sending off Wilma Grace at the Ninoy Aquino International
Airport as she was leaving for Taiwan to work as a domestic
helper. Upon arrival in Manila, the trio checked at Dangwa Inn,
with Nemesio and Wilma Grace sharing a room.[12] All three of
them stayed at the inn until October 18, 1995, when Wilma
Grace left for Taiwan.[13]
Thereafter, Romenda received from Taiwan four letters written
by Wilma Grace on various dates. Although all the letters were
addressed to Romenda, two of them were meant by Wilma
Grace to be read by her paramour, Nemesio.[14] In the other
two letters, Wilma Grace instructed Romenda to reveal to
appellant her affair with Nemesio.
It was only sometime late in February 1996 that Romenda,
following her bosom friends written instructions, informed
appellant about the extramarital affair between Wilma Grace
and Nemesio. Romenda informed him that the two had spent a
day and a night together in a room at Dangwa Inn in
Manila.[15] Appellant became furious. He declared Addan to
aldaw na dayta nga Nemesio, patayek dayta nga Nemesio
(There will be a day for that Nemesio. I will kill that
Nemesio).[16] Appellant then got all the letters of Wilma Grace
from Romenda.[17]
That same week Alfred Mayamnes, appellants neighbor who
was presented at the trial as a prosecution witness, had a talk
with appellant. Mayamnes was an elder of the Kankanaey tribe
to which appellant belonged. He wanted to confirm whether
Nemesio Lopate, who was likewise from the same tribe, [18]
was having an affair with appellants spouse. Talk apparently
had reached the tribal elders and they wanted the problem
resolved as soon as possible.[19] A visibly angry appellant
confirmed the gossip.[20] Mayamnes also testified that he
advised Nemesio to stay at the Mountain Trail Kankanaey
community until things had cooled down.[21]
Shortly after their talk, appellant closed down his bakeshop and
offered his equipment for sale. Among the potential buyers he
approached was Mayamnes, but the latter declined the
offer.[22]
Sometime during the first week of March, Mayamnes saw
appellant load his bakery equipment on board a hired truck and
depart for Nueva Vizcaya.[23]
At around 10:00 p.m. of March 10, 1996, according to another
prosecution witness, Annie Bayanes, a trader in vegetables,
she was at the Trading Post, La Trinidad, Benguet.[24] The
Trading Post is a popular depot where vegetable growers in
the Cordilleras bring their produce late in the evenings for sale
to wholesalers and retailers. Witness Bayanes said she was at
the unloading area (bagsakan), conversing with another dealer
at the latters booth, when suddenly two gunshots shattered the
quiet evening.[25]
Bayanes turned towards the place where the sound of the
gunshots came from. She testified that she saw a person
falling to the ground.[26] Standing behind the fallen individual,
some 16 inches away,[27] was another person who tucked a
handgun into his waistband and casually walked away.[28]
Initially, she only saw the gunmans profile, but when he turned,
she caught a glimpse of his face.[29] She immediately
recognized him as the appellant June Ignas. She said she was
familiar with him as he was her townmate and had known him
for several years. Witness Bayanes was five or six meters
away from the scene, and the taillight of a parked jeepney,
which was being loaded with vegetables, plus the lights from
the roof of the bagsakan, aided her recognition of
appellant.[30]
Also at the bagsakan area that night was prosecution witness
Marlon Manis. He testified that on hearing gunshots from the
Trading Post entrance, he immediately looked at the place
where the gunfire came from. He saw people converging on a
spot where a bloodied figure was lying on the ground.[31]
Witness Manis saw that the fallen victim was Nemesio Lopate,
whom he said he had known since Grade 2 in elementary
school.[32] Manis then saw another person, some 25 meters
away, hastily walking away from the scene. He could not see
the persons face very well, but from his gait and build, he
identified the latter as his close friend and neighbor, June
Ignas.[33] Manis said that the scene was very dimly lit and the
only illumination was from the lights of passing vehicles, but he
was familiar with appellants build, hairstyle, and manner of
walking.[34]
Prosecution witness Mona Barredo, a bakery worker, testified
that she knew appellant. She said they were co-workers
formerly at the Annaliza Bakery at Km. 10, Shilan, La Trinidad,
Benguet.[35] Barredo declared that at around 10:30 p.m. of
March 10, 1996, appellant came to her residence at Pico, La
Trinidad. After being served refreshments, appellant took out a
handgun from his jacket and removed the empty shells from
the chamber.[36] Appellant then told her to throw the empty
cartridges out of the window. Because of nervousness she
complied.[37] Barredo also said that appellant disclosed to her
that he had just shot his wifes paramour.[38] Appellant then
stayed at her house for 8 or 9 hours; he left only in the morning
of March 11, 1996,[39] according to her. Police investigators
later recovered the spent gun shells from witness Barredos
sweet potato garden.[40]
According to witness on the scene, responding policemen
immediately brought the victim, Nemesio Lopate, to the
Benguet General Hospital where he was pronounced dead on
arrival.[41]
Dr. Doris C. Jovellanos, Municipal Health Officer of La
Trinidad, Benguet, testified during that trial that she conducted
the post-mortem examination of the victims cadaver. Among
her findings were:
1. Ovaloid hole, 2.0 x 5.0 cm. dms., with blackened edges (1.8
x 1.3 cms. span), on the right side of the mouth, above the
edge of the upper lip
3. Exit hole on the left side of the mouth, 5.0 x 1.3 cm. dms.,
with avulsion of the upper lip on the left side
9. Circular hole, penetrating, on the back, right side, 0.7 cm. x
0.7 cm. diam., with blackened edges (0.9 x 0.9 cm. span), at
the level of the fifth intercostal space, subscapular area, 13 cm.
from the midline, directed to the left side of the chest, 38.0 cm.
from the embedded bullet slug of the left shoulder.[42]
Dr. Jovellanos determined the cause of death to be
Hypovolemia due to gunshot wound, back, right, (Point of Entry
fifth intercostal space subscapular area).[43] She further stated
on the witness stand that she recovered a bullet from the
victims left shoulder, which she turned over to the police
investigators.[44] According to her, given the blackened edges
of the gunshot wound at the victims back, Nemesio was shot
from a distance of less than three (3) feet.[45]
On March 14, 1996, police investigators accompanied by one
of appellants brother as well as prosecution witness Julio
Bayacsan, a friend of appellant, went to Kayapa, Nueva
Vizcaya, to invite appellant to shed light on the slaying of
Nemesio. The law enforcers found appellant selling bread at
Kayapa and brought him back to La Trinidad, Benguet.[46]
Witness Bayacsan testified that shortly after they arrived from
Kayapa, he had an opportunity to talk with appellant at the La
Trinidad Police Station. There, appellant disclosed to this
witness that he shot and killed Nemesio.[47] Bayacsan,
however, did not inform the police about appellants revelation
as he considered appellant his good friend.[48]
Prosecution witness Pauline Gumpic, the victims sister,
testified that she and appellant had a private talk, while the
latter was in police custody, and appellant admitted to her that
he killed her brother.[49] Gumpic declared that appellant
revealed to her that he shot Nemesio for having illicit relations
with appellants wife and failing to ask for his forgiveness.[50]
SPO4 Arthur Bomagao[51] of the La Trinidad police, who
headed the team that investigated the fatal shooting of
Nemesio, declared on the stand that appellant voluntarily
admitted to him that he shot the victim with a .38 caliber
handgun.[52] Bomagao further testified that appellant
surrendered to him the letters of Wilma Grace, wherein the
latter admitted her affair with Nemesio.[53]
Appellant interposed the defense of alibi. Sometime during the
last week of February 1996, he said, he entered into a
partnership with a friend and fellow baker, Ben Anoma, to
operate a bakery in Kayapa, Nueva Vizcaya.[54] Appellant
claimed that he was having a hard time operating his bakeshop
in La Trinidad as he had no helpers. When Anoma proposed a
business arrangement, he added, he immediately seized the
opportunity.[55] On March 8, 1996, he and Anoma then
transferred his equipment to Anomas bakery in Kayapa,[56]
which is some four (4) to five (5) hours away from La Trinidad,
according to appellant. He averred that he was baking bread
with Anoma in Kayapa on the night Nemesio was killed.[57]
Under oath, appellant said that he never left Kayapa since his
arrival on March 8, 1996. He and Anoma were engrossed in
baking and marketing their produce, he testified, until the
policemen from La Trinidad brought him back to Benguet for
questioning on March 14, 1996.[58]
Defense witness Ben Anoma corroborated appellants alibi.
Anoma declared that during the last week of February 1996, he
met with appellant in La Trinidad. There, the witness said, he
proposed a partnership with appellant in the baking business to
be based in Kayapa.[59] Appellant agreed and on March 8,
1996, they transferred appellants equipment to Kayapa.[60]
They immediately commenced their operations and on the
evening of March 10, 1996, he and appellant baked bread at
his bakery in Kayapa until 11:00 p.m., when they rested for the
night.[61]
The trial court disbelieved appellants defense and sustained
the prosecutions version. Its initial judgment reads:
WHEREFORE, premises considered, the accused June Ignas
is hereby found GUILTY beyond reasonable doubt of the crime
of MURDER as defined and penalized under Article 248 of the
Revised Penal Code, and considering the aggravating
circumstances of treachery, nighttime and the special
aggravating circumstance of the use of an unlicensed firearm,
without any mitigating circumstance, he is hereby sentenced to
suffer the penalty of Reclusion Perpetua. He is further
sentenced to pay the heirs of the VICTIM the following sums:
1. P150,000.00 for funeral expenses and those incurred for
and during the wake;
2. P1,800,000.00 for unearned income;
3. P50,000.00 as death compensation established by
jurisprudence; and
4. P50,000.00 as and for moral damages; and
5. P20,000.00 as attorneys fees.
Costs against the accused.
SO ORDERED in Chambers this 18th day of February 1999 at
La Trinidad, Benguet, Philippines.[62]
Both the prosecution and the defense filed their respective
motions for reconsideration. The prosecution sought the
imposition of the death penalty.[63] The defense prayed for
acquittal on the ground of reasonable doubt.
On June 2, 1999, the trial court granted the prosecutions
motion. It amended its judgment to read as follows:
WHEREFORE, premises considered, the accused June Ignas
is hereby found GUILTY beyond reasonable doubt of the crime
of MURDER as defined and penalized under Article 248 of the
Revised Penal Code, and considering the aggravating
circumstances of treachery, nighttime and the special
aggravating circumstance of the use of an unlicensed firearm,
without any mitigating circumstance, he is hereby sentenced to
suffer the penalty of death by lethal injection. He is further
sentenced to pay the heirs of the victim the following sums:
1. P150,000.00 for funeral expenses and those incurred for
and during the wake;
2. P2,040,000.00 for unearned income;
3. P50,000.00 as death compensation established by
jurisprudence; and
4. P50,000.00 as and for moral damages; and
5. P20,000.00 as attorneys fees.
Costs against the accused.
SO ORDERED in Chambers.[64]
Hence, this automatic review, with appellant imputing the
following errors to the court a quo:
I. THE TRIAL COURT GRAVELY ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY BEYOND REASONABLE
DOUBT OF THE CRIME OF MURDER DESPITE THE
WEAKNESS OF THE CIRCUMSTANTIAL EVIDENCE OF THE
PROSECUTION.
II. THE TRIAL COURT GRAVELY ERRED IN GIVING
EVIDENTIARY WEIGHT TO THE ALLEGED EXTRA-
JUDICIAL ADMISSIONS MADE BY ACCUSED-APPELLANT
DESPITE ITS BEING HEARSAY IN NATURE AND IN
VIOLATION OF HIS RIGHTS UNDER CUSTODIAL
INVESTIGATION.
III. THE TRIAL COURT GRAVELY ERRED IN NOT GIVING
PROBATIVE VALUE TO THE DEFENSE OF ALIBI
INTERPOSED BY ACCUSED-APPELLANT.
IV. ASSUMING ARGUENDO THAT THE ACCUSED-
APPELLANT IS GUILTY, THE TRIAL COURT GRAVELY
ERRED WHEN IT RULED THAT THE KILLING OF THE
DECEASED WAS ATTENDED BY EVIDENT
PREMEDITATION, TREACHERY AND NIGHTTIME.
V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR
WHEN IT APPRECIATED THE ALLEGED USE OF AN
UNLICENSED .38 CALIBER FIREARM AS AN
AGGRAVATING CIRCUMSTANCE IN THE COMMISSION OF
THE CRIME OF MURDER WITHOUT ANY FACTUAL AND
LEGAL BASIS.
VI. THE TRIAL COURT COMMITTED REVERSIBLE ERROR
WHEN IT DID NOT APPRECIATE IN FAVOR OF THE
ACCUSED-APPELLANT THE MITIGATING
CIRCUMSTANCES OF IMMEDIATE VINDICATION OF A
GRAVE OFFENSE, PASSION AND OBFUSCATION AND
VOLUNTARY SURRENDER.
VII THE TRIAL COURT COMMITTED REVERSIBLE ERROR
WHEN IT AWARDED EXCESSIVE DAMAGES IN THE FORM
OF FUNERAL EXPENSES AND UNEARNED INCOME OF
THE DECEASED WHICH WERE NOT SUFFICIENTLY
PROVEN.[65]
Appellants assigned errors may be reduced to the following
pertinent issues: (1) the nature of the crime committed, if any;
(2) the sufficiency of the prosecutions evidence to prove
appellants guilt; (3) the correctness of the penalty; and (4) the
propriety of the damages awarded.
1. Murder or Homicide
Assuming arguendo that the evidence on record suffices to
sustain the appellants conviction for the unlawful killing of
Nemesio Lopate, the question arises: Was the killing murder as
found by the trial court or mere homicide? Note that the
amended information under which the appellant stands
charged does not, unlike the original information, charge
appellant with murder but with mere unlawful killing albeit
through the use of an unlicensed firearm. Note further that the
amended information does not definitely and categorically state
that the unlawful killing was attended by the aggravating or
qualifying circumstances of treachery, evident premeditation,
and nocturnity.
The 2000 Revised Rules of Criminal Procedure requires that
the qualifying and aggravating circumstances must be
specifically alleged in the information.[66] Although the Revised
Rules of Criminal Procedure took effect only on December 1,
2000 or long after the fatal shooting of Nemesio Lopate, as a
procedural rule favorable to the accused, it should be given
retrospective application. Hence, absent specific allegations of
the attendant circumstances of treachery, evident
premeditation, and nocturnity in the amended information, it
was error for the trial court to consider the same in adjudging
appellant guilty of murder. As worded, we find that the
amended information under which appellant was charged and
arraigned, at best indicts him only for the crime of homicide.
Any conviction should, thus, fall under the scope and coverage
of Article 249[67] of the Revised Penal Code.
As for the separate case for illegal possession of firearm, we
agree with the trial courts order to dismiss the information for
illegal possession of firearm and ammunition in Criminal Case
No. 97-CR-2753.[68] Under R.A. No. 8294,[69] which took
effect on July 8, 1997, where murder or homicide is committed
with the use of an unlicensed firearm, the separate penalty for
illegal possession of firearm shall no longer be imposed since it
becomes merely a special aggravating circumstance.[70] This
Court has held in a number of cases[71] that there can be no
separate conviction of the crime of illegal possession of firearm
where another crime, as indicated by R.A. No. 8294, is
committed. Although R.A. No. 8294 took effect over a year
after the alleged offense was committed, it is advantageous to
the appellant insofar as it spares him from a separate
conviction for illegal possession of firearms and thus should be
given retroactive application.[72]
2. Sufficiency of the Prosecutions Evidence
But is the prosecutions evidence sufficient to sustain a
conviction for homicide?
Appellant primarily contests the accuracy of the identification
made by the prosecution witnesses who testified that they saw
him at the locus criminis, tucking a gun in his pants and
casually walking away. For one, he contends that the
prosecution witnesses who were present at the scene did not
in fact see appellant as the person who allegedly shot the
victim. Witness Marlon Manis was not certain that the person
he saw walking away from the fallen victim was appellant. As
per Manis own admission, he merely presumed that it was
appellant. As to witness Annie Bayanes, her identification of
appellant as the assailant was equally doubtful. The fact is she
did not see the alleged gunmans face, considering that the only
illumination on the scene was a vehicles taillight. Appellant
stresses that both Bayanes and Manis were in a state of
excitement and nervousness as a result of the incident, hence
the resultant commotion and fear distracted their powers of
observation. Appellant insists that given these considerations,
the testimonies of Bayanes and Manis failed to show that he
was at the scene of the crime, much less prove that he was the
gunman.
For the appellee, the Office of the Solicitor General (OSG)
contends that the failure of Manis to see the actual shooting is
irrelevant, as such was not the purpose for which his testimony
was offered in evidence. Rather, Manis testimony was meant
to provide circumstantial evidence tending to show the physical
description of Nemesios attacker, and not as an eyewitness
testimony to positively identify said assailant. Neither was
Bayanes presented to testify as an eyewitness to the shooting,
but to declare that she got a clear look at the face of the
suspected gunman.
We note that at the heart of the prosecutions case is the
familiarity of Annie Bayanes and Marlon Manis with appellant.
Absent this familiarity, the prosecutions theory that
circumstantial evidence shows that appellant killed Nemesio
would collapse like a house of cards. It was precisely this
familiarity with appellant, which enabled said witnesses to
recognize him as the person tucking a gun in his waistband
and walking away from the fallen victim. Bayanes had known
appellant for some ten (10) years before the incident and even
described him as a good man.[73] She was only five or six
meters away from the scene of the crime and was able to fully
look at the face of the person tucking a gun in his pants and
walking away. Familiarity with the physical features, particularly
those of the face, is actually the best way to identify the
person.[74] That the only illumination in the area came from the
taillight of a parked vehicle and the lights on the roof of the
bagsakan does not discredit her account. We have held that
moonlight,[75] starlight,[76] kerosene lamps,[77] a
flashlight,[78] and lights of passing vehicles[79] may be
adequate to provide illumination sufficient for purposes of
recognition and identification. Under the circumstances of
these cases, this Court believes that Bayanes was in the
position and had a fair opportunity to identify appellant as the
person leaving the crime scene with a gun tucked in his waist.
Her testimony was buttressed by that of witness Marlon Manis.
A former neighbor of appellant, he had known appellant since
1993. He was a frequent customer at appellants bakery. In the
rural areas, people tend to be more familiar with their
neighbors. This familiarity may extend to body movements,
which cannot easily be effaced from memory. Hence, Manis
testimony that he could recognize appellant even just from his
build and manner of walking is not improbable. His declaration
that he was some twenty-five (25) meters away from the
person walking away from the victim does not make
recognition far-fetched. Once a person has gained familiarity
with another, identification is an easy task, even from that
distance.[80]
Evidence should only be considered for the purpose it was
formally offered.[81] As the Solicitor General points out, the
statements of Bayanes and Manis were not offered to
positively identify appellant as the assailant, but to provide
circumstantial evidence concerning Nemesios assailant,
tending to prove that appellant did shoot the victim. Thus, the
court a quo committed no reversible error in giving weight and
credence to the testimonies of Bayanes and Manis for the
stated purposes therefor.
Appellant next assails the testimonies of the following
prosecution witnesses: (1) Pauline Gumpic for being
inconsistent and flawed with contradictions; (2) Annie Bayanes
and Julio Bayacsan for their unexplained delay in giving their
respective sworn statements to the police; and (3) Mona
Barredo for flip-flopping with respect to the alleged admission
to her by appellant and how the police investigators knew
about said admission, after she claimed that she did not tell
anyone about his revelation. Appellant submits that the trial
court erred in giving weight to the aforementioned testimonies.
For appellee, the OSG argues that with respect to Gumpics
alleged contradictions, they refer only to unimportant and
collateral matters; they do not affect her credibility. With
respect to the delay or vacillation by Bayacsan and Bayanes in
giving their statements to the authorities, the OSG points out
that a reading of their declarations in court will show that the
alleged delay was adequately explained. As to Barredos
testimony, a closer reading of her supposed flip-flopping shows
that the alleged contradictions were due to an honest
misapprehension of fact on her part.
When the issue boils down to the credibility of witnesses, the
appellate court will not generally disturb the findings of the trial
court because the latter is in the vantage position of observing
witnesses through the various indicia of truthfulness or
falsehood.[82] However, this rule is not absolute. One
exception is where the judge who wrote the decision did not
personally hear the prosecutions evidence.[83] In this case, the
records show that Judge Angel V. Colet, who authored the
assailed decision, took over from Judge Benigno M. Galacgac
only on April 29, 1997 or after the witnesses for the prosecution
had testified. It does not follow, however, that a judge who was
not present at the trial cannot render a just and valid judgment.
The records and the transcripts of stenographic notes are
available to him as basis for his decision.
After going over the transcripts of the witnesses testimonies,
we find no reason to disturb the findings of the trial court. With
respect to the statements of Gumpic, we agree with the
Solicitor General that alleged inconsistencies refer only to
irrelevant and collateral matters, which have nothing to do with
the elements of the crime. It is axiomatic that slight variations in
the testimony of a witness as to minor details or collateral
matters do not affect his or her credibility as these variations
are in fact indicative of truth and show that the witness was not
coached to fabricate or dissemble.[84] An inconsistency, which
has nothing to do with the elements of a crime, is not a ground
to reverse a conviction.[85]
We likewise find no basis for appellants contention that
Bayanes and Bayacsan failed to give a satisfactory explanation
for the delay or vacillation in disclosing to the authorities what
they knew. Bayanes gave a satisfactory reason for her delay in
reporting to the authorities what she knew. She had simply
gone about her normal business activities for some months,
unaware that a case had been filed concerning the killing of
Nemesio. It was only nine (9) months after the incident that she
read a notice for help posted by the victims relatives at the
Trading Post, appealing to possible witnesses to the killing to
come forth and assist them in their quest for justice. It was only
then that she decided to reveal to the authorities what she
knew.
As to Bayacsan, he candidly admitted in court that he
considered appellant his friend and he wanted to protect him
and hence, he only disclosed appellants admission to him
when the police started questioning him. There is no rule that
the suspect in a crime should immediately be named by a
witness.[86] Different people react differently to a given
situation and there is no standard form of human behavior
when one is confronted with a strange, startling, or frightful
experience.[87] The Court understands the natural reluctance
or aversion of some people to get involved in a criminal
case.[88] More so where, as in these cases, a townmate of
Bayanes and Bayacsan is involved. We have taken notice that
when their townmates are involved in a criminal case, most
people turn reticent.[89] Hence, the failure of Bayanes and
Bayacsan to immediately volunteer information to the police
investigators will not lessen the probative value of their
respective testimonies. The delay, having been satisfactorily
explained, has no effect on their credibility.[90]
We have likewise closely scrutinized the testimony of Mona
Barredo regarding the alleged admission by appellant to her
that he killed the victim. We find nothing flip-flopping about her
testimony. Instead, we find a witness who admitted she was
nervous that she might not be able to answer all the
questions.[91] Said nervousness was engendered by her
erroneous belief that to be a credible witness, she must have
personal knowledge of the crime.[92] Even the most candid
witnesses make mistakes and may give some contradictory or
inconsistent statements, but such honest lapses need not
necessarily affect their credibility. Ample margin should be
accorded a witness who is tension-filled with the novelty of
testifying before a court.[93]
Appellant further contends that the trial court erred in giving
credence to the verbal admissions of guilt he made to Gumpic
and SPO4 Bomagao inside the police station since said
admissions are inadmissible in evidence as uncounseled
confessions.
The OSG submits that said verbal admissions of complicity, as
well as those made to appellant to Bayacsan and Barredo, are
admissible as statements forming part of the res gestae. We
agree on this point with the OSG.
The requisites of res gestae are: (1) the principal act or res
gestae must be a startling occurrence; (2) the statement is
spontaneous or was made before the declarant had time to
contrive or devise a false statement, and the statement was
made during the occurrence or immediately prior or
subsequent to thereto; and (3) the statement made must
concern the occurrence in question and its immediately
attending circumstances.[94] All these elements are present in
appellants verbal admission to Barredo that he killed the victim
when he went to the latters house half an hour after the fatal
shooting of Nemesio.
The verbal admission by appellant to Barredo was made
before appellant had the time and opportunity to contrive a
falsehood. Similar statements have been held to be part of the
res gestae: (1) a childs declaration made an hour after an
alleged assault;[95] (2) the testimony of a police officer as to
what the victim revealed to him some 30 minutes after the
commission of an alleged crime;[96] and (3) a victims
declaration made some 5 to 10 minutes after an alleged felony
took place.[97] Note that since appellants admission was not
solicited by police officers in the course of a custodial
investigation, but was made to a private person, the provisions
of the Bill of Rights on custodial investigation do not apply. The
Rules of Court[98] provides that an admission made to a
private person is admissible in evidence against the
declarant.[99]
Prosecutions evidence here is admittedly circumstantial. But in
the absence of an eyewitness, reliance on circumstantial
evidence is inevitable.[100] Resort thereto is essential when
the lack of direct evidence would result in setting a felon
free.[101]
Circumstantial evidence suffices to convict if the following
requisites are met: (1) there is more than one circumstance; (2)
the facts from which the inferences are derived are proven; and
(3) the combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt.[102] In our
mind, the following pieces of circumstantial evidence show with
moral certainty that appellant was responsible for the death of
Nemesio:
1. Appellant had the motive to kill Nemesio Lopate for having
an affair with his wife, and appellant had openly expressed his
desire and intention to do so;
2. At around 10:00 p.m. of March 10, 1996, Annie Bayanes and
Marlon Manis heard two gun shots at the Trading Post, La
Trinidad, Benguet and saw Nemesio Lopate fall to the ground;
3. Bayanes saw appellant behind the victim, tucking a gun into
his waistband, and walking away;
4. From another angle, Manis also saw a person whose gait
and built resembled that of appellant walking away from the
crime scene;
5. At around 10:30 p.m. of March 10, 1996, appellant went to
the house of Mona Barredo, brought out a handgun, emptied it
of two spent .38 caliber shells and instructed Barredo to throw
the shells out of the window, which she did;
6. Appellant then told Barredo that he had shot and killed his
wifes paramour, after which he stayed at Barredos house for
the night;
7. On March 11, 1996, Dr. Doris C. Jovellanos, Municipal
Health Officer of La Trinidad, Benguet recovered a .38 caliber
slug from Nemesios corpse and found two (2) bullet entry
wounds on the said cadaver;
8. On March 18, 1996, police investigators, assisted by
Barredo, recovered two (2) spent .38 caliber shells from
Barredos sweet potato patch, immediately outside her
residence wherein appellant had slept a week before.
The foregoing circumstances clearly show that appellant had
the motive, the opportunity, and the means to commit the crime
at the place and time in question. Simply put, the circumstantial
evidence adduced by the prosecution has successfully
overcome the claim of innocence by appellant. Under the
proved circumstances, appellants defense of alibi is untenable.
More so, in this situation where prosecution witness Bayanes
unflinchingly declared that she saw appellant standing behind
the victim, tucking a gun in his pants, moments after the latter
was shot. As we held in People v. Salveron,[103] and
reiterated in People v. Sesbreo,[104] where an eyewitness saw
the accused with a gun, seconds after the gunshot and after
the victim fell to the ground, the reasonable conclusion is that
said accused killed the victim.
Appellants alibi cannot prevail over the positive testimony of
Bayanes concerning appellants identification and presence at
the crime scene. Basic is the rule that for alibi to prosper, the
accused must prove that he was somewhere else when the
crime was committed and that it was physically impossible for
him to have been at the scene of the crime.[105] Physical
impossibility refers to the distance between the place where
the appellant was when the crime transpired and the place
where it was committed, as well as the facility of access
between the two places.[106] In these cases, the defense
admitted that the distance between La Trinidad, Benguet and
Kayapa, Nueva Vizcaya is 79 kilometers, which can be
negotiated in 4 or 5 hours.[107] Clearly, it was not physically
impossible for appellant to be at the locus criminis at the time
of the killing. Hence, the defense of alibi must fail.
In sum, we find that the prosecutions evidence suffices to
sustain the appellants conviction for homicide.
3. Crime and its Punishment
As appellant can only be convicted of homicide, it follows that
he cannot, under the provisions of RA No. 7659, be sentenced
to suffer the death penalty. The penalty for homicide under
Article 249 of the Revised Penal Code is reclusion temporal.
Our task now is to determine whether there are aggravating or
mitigating circumstances which could modify the penalty.
More specifically, may the special aggravating circumstance of
use of an unlicensed firearm be taken against the appellant?
Appellant argues that the trial court erred in appreciating the
special aggravating circumstance of use of unlicensed firearm
in the present case. Like the killing, said aggravating
circumstance must likewise be proved beyond reasonable
doubt, says the appellant. On this point, he adds, the
prosecution failed to adduce the necessary quantum of proof.
We find merit in the appellants contentions. It is not enough
that the special aggravating circumstance of use of unlicensed
firearm be alleged in the information, the matter must be
proven with the same quantum of proof as the killing itself.
Thus, the prosecution must prove: (1) the existence of the
subject firearm; and (2) the fact that the accused who owned or
possessed it does not have the corresponding license or permit
to own or possess the same.[108] The records do not show
that the prosecution presented any evidence to prove that
appellant is not a duly licensed holder of a caliber .38 firearm.
The prosecution failed to offer in evidence a certification from
the Philippine National Police Firearms and Explosives Division
to show that appellant had no permit or license to own or
possess a .38 caliber handgun. Nor did it present the
responsible police officer on the matter of licensing as a
prosecution witness. Absent the proper evidentiary proof, this
Court cannot validly declare that the special aggravating
circumstance of use of unlicensed firearm was satisfactorily
established by the prosecution. Hence such special
circumstance cannot be considered for purposes of imposing
the penalty in its maximum period.
Coming now to the obverse side of the case, is the appellant
entitled to benefit from any mitigating circumstance?
Appellant, firstly contends that assuming without admitting that
he is guilty, the lower court should have considered at least the
mitigating circumstance of immediate vindication of a grave
offense as well as that of passion and obfuscation. Appellant
points out that the victims act of maintaining an adulterous
relationship with appellants wife constituted a grave offense to
his honor, not to mention the shame, anguish, and anxiety he
was subjected to. Even the mere sight of the victim must have
triggered an uncontrollable emotional outburst on appellants
part, so that even a chance meeting caused in him an
irresistible impulse powerful enough to overcome all reason
and restraint. Secondly, appellant points out that the trial court
failed to consider his voluntary surrender as a mitigating
circumstance.
The Solicitor General counters that there was literally no
immediate vindication to speak of in this case. Appellant had
sufficient time to recover his serenity following the discovery of
his wifes infidelity. Nor could passion and obfuscation be
appreciated in appellants favor because the killing was not
proximate to the time of the offense. Appellant became aware
of the treatment offensive to his dignity as a husband and to
the peace and tranquility of his home two weeks earlier. This
interval between the revelation of his wifes adultery and the
fatal shooting was ample and sufficient for reason and self-
control to reassert themselves in appellants mind. As to the
mitigating circumstance of voluntary surrender, the OSG
stresses that his supposed surrender at Kayapa, Nueva
Vizcaya was actually due to the efforts of law enforcers who
came looking for him. There he did not resist, but lack of
resistance alone is not tantamount to voluntary surrender,
which denotes a positive act and not merely passive conduct.
According to the OSG, for the mitigating circumstance of
vindication of a grave offense to apply, the vindication must be
immediate. This view is not entirely accurate. The word
immediate in the English text is not the correct translation of
the controlling Spanish text of the Revised Penal Code, which
uses the word proxima.[109] The Spanish text, on this point,
allows a lapse of time between the grave offense and the
actual vindication.[110] Thus, in an earlier case involving the
infidelity of a wife, the killing of her paramour prompted
proximately though not immediately by the desire to avenge
the wrong done, was considered an extenuating circumstance
in favor of the accused.[111] The time elapsed between the
offense and the suspected cause for vindication, however,
involved only hours and minutes, not days. Hence, we agree
with the Solicitor General that the lapse of two (2) weeks
between his discovery of his wifes infidelity and the killing of
her supposed paramour could no longer be considered
proximate. The passage of a fortnight is more than sufficient
time for appellant to have recovered his composure and
assuaged the unease in his mind. The established rule is that
there can be no immediate vindication of a grave offense when
the accused had sufficient time to recover his serenity.[112]
Thus, in this case, we hold that the mitigating circumstance of
immediate vindication of a grave offense cannot be considered
in appellants favor.
We likewise find the alleged mitigating circumstance of passion
and obfuscation inexistent. The rule is that the mitigating
circumstances of vindication of a grave offense and passion
and obfuscation cannot be claimed at the same time, if they
arise from the same facts or motive.[113] In other words, if
appellant attacked his victim in proximate vindication of a grave
offense, he could no longer claim in the same breath that
passion and obfuscation also blinded him. Moreover, for
passion and obfuscation to be well founded, the following
requisites must concur: (1) there should be an act both
unlawful and sufficient to produce such condition of mind; and
(2) the act which produced the obfuscation was not far
removed from the commission of the crime by a considerable
length of time, during which the perpetrator might recover his
moral equanimity.[114] To repeat, the period of two (2) weeks
which spanned the discovery of his wifes extramarital dalliance
and the killing of her lover was sufficient time for appellant to
reflect and cool off.
Appellant further argues that the lower court erred in failing to
consider voluntary surrender as a mitigating circumstance. On
this point, the following requirements must be satisfied: (1) the American Expectancy Table of Mortality, the life expectancy of
offender has not actually been arrested; (2) the offender the victim at age 29 is set at 34 years.
surrendered himself to a person in authority; and (3) the
surrender was voluntary.[115] Records show, however, that Therefore, total loss of Earning Capacity (X) should be
leaflets and posters were circulated for information to bring the computed as follows:
killer of Nemesio to justice. A team of police investigators from
La Trinidad, Benguet then went to Kayapa, Nueva Vizcaya to X = 2/3 (80-29) x P30,000
invite appellant for questioning. Only then did he return to
Benguet. But he denied the charge of killing the victim. Clearly, X = 2/3 (51) x P30,000
appellants claimed surrender was neither spontaneous nor
voluntary. X = 34 x P30,000

Absent any aggravating or mitigating circumstance for the X = P1,020,000

offense of homicide the penalty imposable under Art. 64 of the
Revised Penal Code is reclusion temporal in its medium
period. Applying the Indeterminate Sentence Law, the penalty
which could actually be imposed on appellant is an
indeterminate prison term consisting of eight (8) years and one
(1) day of prision mayor as minimum to fourteen (14) years,
eight (8) months and one (1) day of reclusion temporal as
maximum.
4. Proper Award of Damages
Appellant and the Solicitor General are one in contending that
the trial court awarded excessive actual damages without
adequate legal basis. Thus, the amount of P150,000.00 was
awarded for funeral and burial expenses without any
supporting evidence on record.[116] This cannot be sustained
in this review. In order for actual damages to be recovered, the
amount of loss must not only be capable of proof but must
actually be proven with reasonable degree of certainty,
premised upon competent proof or best evidence obtainable of
the actual amount thereof, such as receipts or other documents
to support the claim.[117] The records clearly show in this case
that only the amount of P7,000 as funeral expenses was duly
supported by a receipt.[118] Hence, the award of actual
damages should be limited to P7,000 only.
Appellant further contests the award of P2,040,000 for loss of
earning capacity as unconscionable. Since the victims widow
could not present any income tax return of her husband to
substantiate her claim that his net income was P60,000
annually, then according to appellant, there is no basis for this
award at all. At best, appellant says, only temperate or nominal
damages may be awarded.
The OSG responds that the award for loss of earning capacity
has adequate basis as the prosecution presented sufficient
evidence on the productivity of the landholdings being tilled by
the deceased and the investments made by the Lopate family
from their income. Hence, said the OSG, it was not a product
of sheer conjecture or speculation. Nonetheless, the OSG
submits that the original amount of P1,800,000 for loss of
earning capacity should be restored as it is this amount which
takes into account only a reasonable portion of annual net
income which would have been received as support by the
heirs.
This amount should form part of the damages awarded to the
heirs.
We sustain the award of P50,000 as indemnity ex delicto. But
there being no testimony or other proof thereon, the award of
P50,000 as moral damages cannot now be sustained. Instead,
temperate damages in the amount of P25,000 should be
awarded.
The award of P20,000 in attorneys fees should be maintained.
Records show that the victims widow had to hire the services
of a private prosecutor to actively prosecute the civil aspect of
this case,[121] and in line with Article 2208 of the Civil
Code,[122] reasonable attorney fees may be duly recovered.
WHEREFORE, the judgment of the Regional Trial Court of La
Trinidad, Benguet, Branch 8, in Criminal Case No. 96-CR-2522
is MODIFIED as follows:
Appellant June Ignas y Sanggino is found GUILTY beyond
reasonable doubt of the crime of HOMICIDE as defined and
penalized under Article 249 of the Revised Penal Code, as
amended. There being neither aggravating nor mitigating
circumstance, he is hereby sentenced to suffer an
indeterminate penalty of ten (10) years and one (1) day of
prision mayor as minimum, to fourteen (14) years, eight (8)
months, and one (1) day of reclusion temporal as maximum.
Appellant June Ignas y Sanggino is ORDERED TO PAY the
heirs of the victim, Nemesio Lopate, the following sums: a)
P7,000 as actual damages; b) P1,020,000 for loss of earning
capacity; c) P50,000 as civil indemnity; d) P25,000 as
temperate damages; and e) P20,000 as attorneys fees. Costs
de oficio.

In setting said award at P2,040,000, amended from

P1,800,000, for lost earnings, the trial court took note of the
following factors in its computations:

The Death Certificate of Nemesio Lopate shows that he died at

the age of 29.[119] His widows detailed testimony shows that
their average annual net income from vegetable farming was
P60,000.[120] The victims share of the annual net income from
the couples farm is half thereof, or P30,000. Using the
G.R. No. 169533 March 20, 2013
GEORGE BONGALON, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
Not every instance of the laying of hands on a child constitutes the
crime of child abuse under Section 10 (a) of Republic Act No. 7610.1
Only when the laying of hands is shown beyond reasonable doubt to
be intended by the accused to debase, degrade or demean the intrinsic
worth and dignity of the child as a human being should it be punished
as child abuse. Otherwise, it is punished under the Revised Penal
Code.
The Case
On June 22, 2005,2 the Court of Appeals (CA) affirmed the conviction
of the petitioner for the crime of child abuse under Section 10 (a) of
Republic Act No. 7610.
Antecedents
On June 26, 2000, the Prosecutor’s Office of Legazpi City charged the
petitioner in the Regional Trial Court (RTC) in Legazpi City with child
abuse, an act in violation of Section 10(a) of Republic Act No. 7610,
alleging as follows:
That on or about the 11th day of May 2000, in the City of Legazpi
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there wilfully, unlawfully and
feloniously commit on the person of JAYSON DELA CRUZ, a twelve
year-old,
Grade VI pupil of MABA Institute, Legazpi City, acts of physical abuse
and/or maltreatment by striking said JAYSON DELA CRUZ with his
palm hitting the latter at his back and by slapping said minor hitting his
left cheek and uttering derogatory remarks to the latter’s family to wit:
"Mga hayop kamo, para dayo kamo digdi, Iharap mo dito ama mo"
(You all animals, you are all strangers here. Bring your father here),
which acts of the accused are prejudicial to the child’s development
and which demean the intrinsic worth and dignity of the said child as a
human being.
CONTRARY TO LAW.3
The Prosecution showed that on May 11, 2002, Jayson Dela Cruz
(Jayson) and Roldan, his older brother, both minors, joined the evening
procession for the Santo Niño at Oro Site in Legazpi City; that when
the procession passed in front of the petitioner’s house, the latter’s
daughter Mary Ann Rose, also a minor, threw stones at Jayson and
called him "sissy"; that the petitioner confronted Jayson and Roldan
and called them names like "strangers" and "animals"; that the
petitioner struck Jayson at the back with his hand, and slapped Jayson
on the face;4 that the petitioner then went to the brothers’ house and
challenged Rolando dela Cruz, their father, to a fight, but Rolando did
not come out of the house to take on the petitioner; that Rolando later
brought Jayson to the Legazpi City Police Station and reported the
incident; that Jayson also underwent medical treatment at the Bicol
Regional Training and Teaching Hospital;5 that the doctors who
examined Jayson issued two medical certificates attesting that Jayson
suffered the following contusions, to wit: (1) contusion .5 x 2.5 scapular
area, left; and (2) +1x1 cm. contusion left zygomatic area and
contusion .5 x 2.33 cm. scapular area, left.6
On his part, the petitioner denied having physically abused or
maltreated Jayson. He explained that he only talked with Jayson and
Roldan after Mary Ann Rose and Cherrylyn, his minor daughters, had
told him about Jayson and Roldan’s throwing stones at them and about
Jayson’s burning Cherrylyn’s hair. He denied shouting invectives at
and challenging Rolando to a fight, insisting that he only told Rolando
to restrain his sons from harming his daughters.7
To corroborate the petitioner’s testimony, Mary Ann Rose testified that
her father did not hit or slap but only confronted Jayson, asking why
Jayson had called her daughters "Kimi" and why he had burned
Cherrlyn’s hair. Mary Ann Rose denied throwing stones at Jayson and
calling him a "sissy." She insisted that it was instead Jayson who had
pelted her with stones during the procession. She described the
petitioner as a loving and protective father.8
Ruling of the RTC
After trial, the RTC found and declared the petitioner guilty of child
abuse as charged, to wit:9
WHEREFORE, in view of the foregoing considerations, judgment is
hereby rendered finding the accused GEORGE BONGALON @ "GI"
GUILTY beyond reasonable doubt of Violation of Republic Act No.
7610, and is hereby ordered to undergo imprisonment of six (6) years
and one (1) day to eight (8) years of prision mayor in its minimum
period.
SO ORDERED.
Ruling of the CA
On appeal, the petitioner assailed the credibility of the Prosecution
witnesses by citing their inconsistencies. He contended that the RTC
overlooked or disregarded material facts and circumstances in the
records that would have led to a favorable judgment for him. He
attacked the lack of credibility of the witnesses presented against him,
citing the failure of the complaining brothers to react to the incident,
which was unnatural and contrary to human experience.
The CA affirmed the conviction, but modified the penalty,10 viz:
WHEREFORE, premises considered, the decision dated October 20,
2003 of the Regional Trial Court, Branch 9 of Legazpi City is hereby
AFFIRMED with MODIFICATION in that accused-appellant George
Bongalon is sentenced to suffer the indeterminate penalty of (4) years,
two (2) months and one (1) day of prision correccional, as minimum
term, to six (6) years, eight (8) months and 1 day of prision mayor as
the maximum term.
Further, accused-appellant is ordered to pay the victim, Jayson de la
Cruz the additional amount of P5,000 as moral damages.
SO ORDERED.
Issues
The petitioner has come to the Court via a petition for certiorari under
Rule 65 of the Rules of Court.11
The petitioner asserts that he was not guilty of the crime charged; and
that even assuming that he was guilty, his liability should be mitigated
because he had merely acted to protect her two minor daughters.
Ruling of the Court
At the outset, we should observe that the petitioner has adopted the
wrong remedy in assailing the CA’s affirmance of his conviction. His
proper recourse from the affirmance of his conviction was an appeal
taken in due course. Hence, he should have filed a petition for review
on certiorari. Instead, he wrongly brought a petition for certiorari. We
explained why in People v. Court of Appeals:12
The special civil action for certiorari is intended for the correction of
errors of jurisdiction only or grave abuse of discretion amounting to
lack or excess of jurisdiction. Its principal office is only to keep the
inferior court within the parameters of its jurisdiction or to prevent it
from committing such a grave abuse of discretion amounting to lack or
excess of jurisdiction. As observed in Land Bank of the Philippines v.
Court of Appeals, et al. "the special civil action for certiorari is a remedy
designed for the correction of errors of jurisdiction and not errors of
judgment. The raison d’etre for the rule is when a court exercises its
jurisdiction, an error committed while so engaged does not deprived it
of the jurisdiction being exercised when the error is committed. If it did,
every error committed by a court would deprive it of its jurisdiction and
every erroneous judgment would be a void judgment. In such a
scenario, the administration of justice would not survive. Hence, where
the issue or question involved affects the wisdom or legal soundness of
the decision–not the jurisdiction of the court to render said decision–the
same is beyond the province of a special civil action for certiorari. The
proper recourse of the aggrieved party from a decision of the Court of
Appeals is a petition for review on certiorari under Rule 45 of the
Revised Rules of Court.
It is of no consequence that the petitioner alleges grave abuse of
discretion on the part of the CA in his petition. The allegation of grave
abuse of discretion no more warrants the granting of due course to the
petition as one for certiorari if appeal was available as a proper and
adequate remedy. At any rate, a reading of his presentation of the
issues in his petition indicates that he thereby imputes to the CA errors
of judgment, not errors of jurisdiction. He mentions instances attendant
during the commission of the crime that he claims were really
constitutive of justifying and mitigating circumstances; and specifies
reasons why he believes Republic Act No. 7610 favors his innocence
rather than his guilt for the crime charged.13 The errors he thereby
underscores in the petition concerned only the CA’s appreciation and
assessment of the evidence on record, which really are errors of
judgment, not of jurisdiction.
Even if we were to treat the petition as one brought under Rule 45 of
the Rules of Court, it would still be defective due to its being filed
beyond the period provided by law. Section 2 of Rule 45 requires the
filing of the petition within 15 days from the notice of judgment to be
appealed. However, the petitioner received a copy of the CA’s decision
on July 15, 2005,14 but filed the petition only on September 12,
2005,15 or well beyond the period prescribed by the Rules of Court.
The procedural transgressions of the petitioner notwithstanding, we opt
to forego quickly dismissing the petition, and instead set ourselves
upon the task of resolving the issues posed by the petition on their
merits. We cannot fairly and justly ignore his plea about the sentence
imposed on him not being commensurate to the wrong he committed.
His plea is worthy of another long and hard look. If, on the other hand,
we were to outrightly dismiss his plea because of the procedural lapses
he has committed, the Court may be seen as an unfeeling tribunal of
last resort willing to sacrifice justice in order to give premium to the
rigidity of its rules of procedure. But the Rules of Court has not been
intended to be rigidly enforced at all times. Rather, it has been
instituted first and foremost to ensure justice to every litigant. Indeed,
its announced objective has been to secure a "just, speedy and
inexpensive disposition of every action and proceeding."16 This
objective will be beyond realization here unless the Rules of Court be
given liberal construction and application as the noble ends of justice
demand. Thereby, we give primacy to substance over form, which, to a
temple of justice and equity like the Court, now becomes the ideal
ingredient in the dispensation of justice in the case now awaiting our
consideration.
The petitioner’s right to liberty is in jeopardy. He may be entirely
deprived of such birthright without due process of law unless we shunt
aside the rigidity of the rules of procedure and review his case. Hence,
we treat this recourse as an appeal timely brought to the Court.
Consonant with the basic rule in criminal procedure that an appeal
opens the whole case for review, we should deem it our duty to correct
errors in the appealed judgment, whether assigned or not.17
The law under which the petitioner was charged, tried and found guilty
of violating is Section 10 (a), Article VI of Republic Act No. 7610, which
relevantly states:
Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and
other Conditions Prejudicial to the Child’s Development. –
(a) Any person who shall commit any other acts of child abuse, cruelty
or exploitation or be responsible for other conditions prejudicial to the
child’s development including those covered by Article 59 of
Presidential Decree No. 603, as amended, but not covered by the
Revised Penal Code, as amended, shall suffer the penalty of prision
mayor in its minimum period.
Child abuse, the crime charged, is defined by Section 3 (b) of Republic
Act No. 7610, as follows:
Section 3. Definition of terms. –
(b) "Child Abuse" refers to the maltreatment, whether habitual or not, of
the child which includes any of the following:
(1) Psychological and physical abuse, neglect, cruelty, sexual abuse
and emotional maltreatment;
(2) Any act by deeds or words which debases, degrades or demeans
the intrinsic worth and dignity of a child as a human being;
(3) Unreasonable deprivation of his basic needs for survival, such as
food and shelter; or
(4) Failure to immediately give medical treatment to an injured child
resulting in serious impairment of his growth and development or in his
permanent incapacity or death.
Although we affirm the factual findings of fact by the RTC and the CA
to the effect that the petitioner struck Jayson at the back with his hand
and slapped Jayson on the face, we disagree with their holding that his
acts constituted child abuse within the purview of the above-quoted
provisions. The records did not establish beyond reasonable doubt that
his laying of hands on Jayson had been intended to debase the
"intrinsic worth and dignity" of Jayson as a human being, or that he had
thereby intended to humiliate or embarrass Jayson. The records
showed the laying of hands on Jayson to have been done at the spur
of the moment and in anger, indicative of his being then overwhelmed
by his fatherly concern for the personal safety of his own minor
daughters who had just suffered harm at the hands of Jayson and
Roldan. With the loss of his self-control, he lacked that specific intent to
debase, degrade or demean the intrinsic worth and dignity of a child as
a human being that was so essential in the crime of child abuse.
It is not trite to remind that under the well-recognized doctrine of pro
reo every doubt is resolved in favor of the petitioner as the accused.
Thus, the Court should consider all possible circumstances in his
favor.18
What crime, then, did the petitioner commit?
Considering that Jayson’s physical injury required five to seven days of
medical attention,19 the petitioner was liable for slight physical injuries
under Article 266 (1) of the Revised Penal Code, to wit:
Article 266. Slight physical injuries and maltreatment. — The crime of
slight physical injuries shall be punished:
1. By arresto menor when the offender has inflicted physical injuries
which shall incapacitate the offended party for labor from one to nine
days, or shall require medical attendance during the same period.
The penalty for slight physical injuries is arresto menor, which ranges
from one day to 30 days of imprisonment.20 In imposing the correct
penalty, however, we have to consider the mitigating circumstance of
passion or obfuscation under Article 13 (6) of the Revised Penal
Code,21 because the petitioner lost his reason and self-control,
thereby diminishing the exercise of his will power.22 Passion or
obfuscation may lawfully arise from causes existing only in the honest
belief of the accused.23 It is relevant to mention, too, that in passion or
obfuscation, the offender suffers a diminution of intelligence and intent.
With his having acted under the belief that Jayson and Roldan had
thrown stones at his two minor daughters, and that Jayson had burned
Cherrlyn’s hair, the petitioner was entitled to the mitigating
circumstance of passion. Arresto menor is prescribed in its minimum
period (i.e., one day to 10 days) in the absence of any aggravating
circumstance that offset the mitigating circumstance of passion.
Accordingly, with the Indeterminate Sentence Law being inapplicable
due to the penalty imposed not exceeding one year,24 the petitioner
shall suffer a straight penalty of 10 days of arresto menor.
The award of moral damages to Jayson is appropriate. Such damages
are granted in criminal cases resulting in physical injuries.25 The
amount of P5,000.00 fixed by the lower courts as moral damages is
consistent with the current jurisprudence.26
WHEREFORE, we SET ASIDE the decision of the Court of Appeals;
and ENTER a new judgment: (a) finding petitioner George Bongalon
GUlLTY beyond reasonable doubt of the crime of SLIGHT PHYSICAL
INJURIES under paragraph 1, Article 266, of the Revised Penal Code;
(b) sentencing him to suffer the penalty of 10 days of arresto menor;
and (c) ordering him to pay Jayson Dela Cruz the amount of P5,000.00
as moral damages, plus the costs of suit.
G.R. No. 107383 December 7, 1994
FELIX NIZURTADO, petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES,
respondents.
An information, accusing Felix Nizurtado of having committed
the complex crime of malversation of public funds through
falsification of public document, reads:
That on or about August 25, 1983, and for sometime prior or
subsequent thereto, in the City of Caloocan, Philippines and
within the jurisdiction of this Honorable Court, the abovenamed
accused, a public officer, being then the Barangay Captain of
Panghulo, Malabon, Metro Manila, did then and there, willfully,
unlawfully and feloniously falsify and attest Resolution No. 17
Series of 1983 by making it appear that on August 25, 1983 the
Barangay council of Panghulo met and identified T-shirt
manufacturing as its livelihood project, when in truth and in
fact, as the accused fully well knew, no such meeting was held,
where T-shirt manufacturing was identified and approved by
the Barangay Council as its livelihood project, and thereafter,
accused submitted the falsified resolution to the MHS-MMC-
KKK Secretariat which endorsed the same to the Land Bank of
the Philippines, which on the basis of said endorsement and
the falsified resolution, encashed LBP check No. 184792 in the
amount of TEN THOUSAND PESOS (P10,000.00), which
check was earlier received by him as Barangay Captain of
Panghulo in trust for the Barangay for its livelihood project and
for which fund accused became accountable, and upon receipt
thereof herein accused, with deliberate intent and grave abuse
of confidence did then and there willfully, unlawfully and
feloniously misappropriate, misapply and convert to his own
personal use and benefit the amount of TEN THOUSAND
PESOS (P10,000.00) out of the funds for which he was
accountable, to the damage and prejudice of the government in
the said amount.
CONTRARY TO LAW. 1
When arraigned by the Sandiganbayan, Nizurtado pleaded
"not guilty" to the charge. During the pre-trial, held on 17 July
1989, the prosecution and the defense stipulated thusly:
1. That sometime in 1983 and 1984, accused Felix
Nizurtado was the Barangay Captain of Barangay Panghulo of
Malabon, Metro Manila and discharged his functions as such;
2. That sometime in 1983, the Ministry of Human
Settlements, the Metro Manila Commission and Kilusang
Kabuhayan at Kaunlaran (KKK) undertook a Livelihood
Program for Barangays in Metro Manila consisting of loans in
the amount of P10, 000.00 per barangay.
3. That as Barangay Captain of Barangay Panghulo,
accused received a check in the amount of P10,000.00 for said
barangay's livelihood program;
4. That the check, to be encashed, had to be supported
by a project proposal to be approved by the KKK;
5. That the accused encashed the check received by
him in the amount of P10,000.00 with the Land Bank of the
Philippines; and
6. That the accused distributed the amount of
P10,000.00 in the form of loans of P1,000.00 each to members
of the barangay council. 2
After evaluating the evidence adduced, the Sandiganbayan
came out with its factual findings and conclusions, hereunder
detailed:
It appears from the evidence, testimonial and documentary, as
well as from the stipulations of the parties that accused Felix V.
Nizurtado was the Barangay Captain of Barangay Panghulo,
Malabon, Metro Manila from 1983 to 1988.
In April or May 1983, Nizurtado and Manuel P. Romero,
Barangay Treasurer of Panghulo, attended a seminar at the
University of Life, Pasig, Metro Manila. The seminar was about
the Barangay Livelihood Program of the Ministry of Human
Settlements (MHS), the Metro Manila Commission (MMC), and
the Kilusang Kabuhayan at Kaunlaran (KKK). Under the
program, the barangays in Metro Manila could avail of loans of
P10,000.00 per barangay to finance viable livelihood projects
which the Barangay Councils would identify from the modules
developed by the KKK Secretariat or which, in the absence of
such modules, the Councils would choose subject to the
evaluation/validation of the Secretariat.
After the seminar, Nizurtado received a check for P10,000.00
intended for Barangay Panghulo and issued in his name. The
check, however, could be encashed only upon submission to
the Secretariat of a resolution approved by the Barangay
Council identifying the livelihood project in which the loan
would be invested. He entrusted the check to Romero for
safekeeping.
In one of its regular sessions, which was on the second
Saturday of each month, the Barangay Council of Panghulo
discussed the project in which to invest the P10,000.00.
Among the proposals was that of Romero that a barangay
service center be established. But the meeting ended without
the Councilmen agreeing on any livelihood project.
A few days after the meeting, Nizurtado got back the check
from Romero, saying that he would return it because, as
admitted by Nizurtado during the trial, the Councilmen could
not agree on any livelihood project. Nizurtado signed a receipt
dated August 4, 1983, for the check "to be returned to the
Metro Manila Commission."
After a few more days, Nizurtado asked Romero to sign an
unaccomplished resolution in mimeograph form. All the blank
spaces in the form were unfilled-up, except those at the bottom
which were intended for the names of the Barangay
Councilmen, Secretary, and Captain, which were already filled-
up and signed by Councilmen Marcelo Sandel, Jose Bautista,
Alfredo Aguilar, Alfredo Dalmacio, F.A. Manalang (the alleged
Barangay Secretary), and Nizurtado. In asking Romero to sign,
Nizurtado said that the MMC was hurrying up the matter and
that the livelihood project to be stated in the resolution was that
proposed by Romero — barangay service center. Trusting
Nizurtado, Romero affixed his signature above his typewritten
name. When he did so, the blank resolution did not yet bear
the signatures of Councilmen Santos Gomez and Ceferino
Roldan.
The blank resolution having already been signed by Romero,
Nizurtado asked him to talk with Gomez and secure the latter's
signature. Romero obliged and upon his pleading that his
proposed barangay service center would be the one written in
the blank resolution, Gomez signed. But before he returned the
resolution, he had it machine copied. The machine copy is now
marked Exhibit J.
Unknown to Romero and Gomez, the blank but signed
resolution was later on accomplished by writing in the blank
space below the paragraph reading:
WHEREAS, the Barangay Council now in this session had
already identified one livelihood project with the following title
and description:
the following:
Title : T-shirt Manufacturing
Description : Manufacture of round neck T-shirts
of
various sizes and colors.
The other blank spaces in the resolution were also filled-up.
Thus "Panghulo," "Brgy. Hall," and "August 25, 1983" were
typewritten in the spaces for the name of the Barangay, the
place where and the date when the council meeting took place,
respectively. In the blank spaces for the names of the
members of the Council who attended the meeting were
typewritten the names of
Felix Nizurtado Barangay Captain
Marcelo Sandel Barangay Councilman
Alfredo Aguilar Barangay Councilman
Santos Gomez Barangay Councilman
Jose Bautista Barangay Councilman
Alfredo Dalmacio Barangay Councilman
Ceferino Roldan Barangay Councilman
The word "none" was inserted in the space intended for the
names of the Councilmen who did not attend. The resolution
was given the number "17" series of "1983." Finally, the last
line before the names and signatures of the Councilmen was
completed by typewriting the date so that it now reads:
UNANIMOUSLY APPROVED this 25th day of August, 1983.
The resolution as fully accomplished is now marked Exhibit D.
Other supporting documents for the encashment of the check
of P10,000.00 were also prepared, signed, and filed by
Nizurtado. They were: Project Identification (Exhibit B), Project
Application in which the borrower was stated to be Samahang
Kabuhayan ng Panghulo (Exhibit C and C-1), Project Location
Map (Exhibit E), and Promissory Note
(Exhibit F).
The application for loan having been approved, the Promissory
Note (Exhibit F) was re-dated from August to October 18,
1983, placed in the name of the Samahang Kabuhayan ng
Panghulo represented by Nizurtado, and made payable in two
equal yearly amortizations of P5,000.00 each from its date.
The purpose of the loan was stated to be
T-Shirt Manufacturing of round neck shirts of various sizes and
colors.
Nizurtado encashed the check on the same day, October 18,
1983, and re-lent the cash proceeds to himself, Sandel,
Aguilar, Bautista, Dalmacio, and Roldan at P1,000.00, and to
Manalang and Oro Soledad, Barangay Court Secretary and
Barangay Secretary, respectively, at P500.00 each.
On April 25, 1984, Nizurtado who was then on leave wrote
Sandel, then acting Barangay Captain, informing him that per
record, he, Romero, and Gomez had not made any remittance
for the account of their P1,000.00 loans from the barangay
livelihood fund of P10,000.00 and advising him to collect,
through the Secretary or Treasurer.
Since Romero and Gomez had not borrowed any amount from
the said fund, they told Sandel to ask Nizurtado if he had any
proof of their alleged loans. So Sandel wrote Nizurtado on May
2, 1984, but the latter did not answer.
This attempt to collect from Romero and Gomez prompted
them to make inquiries. They learned that the check for
P10,000.00 was indeed encashed by Nizurtado and that the
blank resolution which they had signed was filled-up to make it
appear that in a Council meeting where all councilmen were
present on August 25, 1983, T-shirt manufacturing was
adopted as the livelihood project of Panghulo. But no such
meeting occurred on that day or on any other day. Neither was
Nizurtado authorized by the Council to submit T-shirt
Manufacturing as the livelihood project of Panghulo.
On August 9, 1984, Romero and Gomez lodged their complaint
against Nizurtado with the Office of the Tanodbayan. After due
preliminary investigation, this case was filed.
As of September 7, 1984, the members of the Council who had
received P1,000.00 each, as well as Bacani (also referred to as
Manalang) and Soledad who had received P500.00 each had
paid their respective loans to Nizurtado who, in turn, remitted
the payments to the MMC on these dates:
April 16, 1984 P1,450.00
August 14, 1984 3,550.00
September 7, 1984 3,000.00
————
Total P8,000.00
In June 1987, after demands for payment, Dalmacio remitted
the balance of P2,000.00 from his pocket because, as acting
Barangay Captain, he did not want to leave the Barangay with
an indebtedness. 3
On the basis of its above findings, the Sandiganbayan
convicted the accused of the offense charged. The dispositive
portions of its decision, promulgated on 18 September 1992,
read:
WHEREFORE, the Court finds Felix Nizurtado y Victa guilty
beyond reasonable doubt of the complex crime of malversation
of public funds committed through falsification of public
document and, appreciating in his favor . . . two mitigating
circumstances and applying the Indeterminate Sentence Law,
imposes upon him the penalties of imprisonment ranging from
FOUR (4) YEARS, NINE (9) MONTHS, and ELEVEN (11)
DAYS of prision correccional as minimum to EIGHT (8)
YEARS, EIGHT (8) MONTHS, and ONE (1) DAY of prision
mayor as maximum; perpetual special disqualification; and a
fine of P10,000.00.
No pronouncement is made as to civil liability, there having
been complete restitution of the amount malversed.
With costs.
SO ORDERED. 4
His motion for reconsideration having been denied, Nizurtado
has filed the instant petition for review on certiorari. Petitioner
faults the Sandiganbayan in that —
1. It has committed grave abuse of discretion in finding
that Resolution No. 17, dated August 25, 1983, of the
Barangay Council of Panghulo, Malabon, Metro Manila (Exh.
"D") is a falsified document and that the petitioner is the forger
thereof; and
2. It has committed serious error of law and gravely
abused its discretion in finding petitioner guilty of malversation
of the amount of P10,000.00 which he had received as a loan
from the then Metro Manila Commission in his capacity as
representative of the Samahang Kabuhayan ng Barangay
Panghulo, Malabon, Metro Manila. 5
The Solicitor General Agrees in all respects with the
Sandiganbayan in its findings and judgment except insofar as it
has found petitioner to have likewise committed the crime of
falsification of a public document.
Article 217 of the Revised Penal Code provides:
Art. 217. Malversation of public funds or property. —
Presumption of malversation. — Any public officer who, by
reason of the duties of his office, is accountable for public
funds or property, shall appropriate the same, or shall take or
misappropriate or shall consent, or through abandonment or
negligence, shall permit any other person to take such public
funds or property, wholly or partially, or shall otherwise be
guilty the misappropriation or malversation of such funds or
property, shall suffer:
1. The penalty of prision correccional in its medium and
maximum periods, if the amount involved in the
misappropriation or malversation does not exceed two
hundreds pesos.
2. The penalty of prision mayor in its minimum and
medium periods, if the amount involved is more than two
hundred pesos but does not exceed six thousand pesos.
3. The penalty of prision mayor in its maximum period to
reclusion temporal in its minimum period, if the amount
involved is more than six thousand pesos but is less than
twelve thousand pesos.
4. The penalty of reclusion temporal in its medium and
maximum periods, if the amount involved is more than twelve
thousand pesos but is less than twenty-two thousand pesos. If
the amount exceeds the latter, the penalty shall be reclusion
temporal in its maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the
penalty of perpetual special disqualification and a fine equal to
the amount of the funds malversed or equal to the total value of
the property embezzled.
The failure of a public officer to have duly forthcoming any
public funds or property with which he is chargeable, upon
demand by any duly authorized officer, shall be prima facie
evidence that he has put such missing funds or property to
personal use.
The elements of malversation, essential for the conviction of an
accused, under the above penal provisions are that —
(a) the offender is a public officer;
(b) he has the custody or control of funds or property by
reason of the duties of his office;
(c) the funds or property involved are public funds or
property for which he is accountable; and
(d) he has appropriated, taken or misappropriated, or has
consented to, or through abandonment or negligence
permitted, the taking by another person of, such funds or
property.
Nizurtado was a public officer, having been the Barangay
Captain of Panghulo, Malabon, Metro Manila, from 1983 to
1988; in that capacity, he received and later encashed a check
for P10,000.00, specifically intended by way of a loan to the
barangay for its livelihood program; and the funds had come
from the Ministry of Human Settlements, the Metro Manila
Commission and "Kilusang Kabuhayan at Kaunlaran."
The only point of controversy is whether or not Nizurtado has
indeed misappropriated the funds.
Petitioner was able to encash the check on 18 October 1988
on the basis of a resolution of the Barangay Council, submitted
to the KKK Secretariat, to the effect that a livelihood project,
i.e., "T-shirt manufacturing," had already been identified by the
council. The money, however, instead of its being used for the
project, was later lent to, along with petitioner, the members of
the Barangay Council. Undoubtedly, the act constituted
"misappropriation" within the meaning of the law. 6
Accused-appellant sought to justify the questioned act in that it
was only when the members of the Barangay Council had
realized that P10,000.00 was not enough to support the T-shirt
manufacturing project, that they decided to distribute the
money in the form of loans to themselves. He submitted, in
support thereof, a belated 7 certification issued by Rodolfo B.
Banquicio, Chief of District IV of the Support Staff and Malabon
Sub-District Officer of KKK, to the effect that Barangay
Captains were given discretionary authority to invest the
money in any viable project not falling within the list of project
modules provided by the MHS-NCR Management. Lending the
unutilized funds to the members of the Barangay council could
have hardly been meant to be the viable project contemplated
under that certification. Furthermore, it would appear that only
Regional Action Officer Ismael Mathay, Jr., and Deputy
Regional Action Officer Lilia S. Ledesma were the officials duly
authorized to approve such projects upon the recommendation
of the KKK Secretariat. 8 We could see no flaw in the
ratiocination of the Sandiganbayan, when, in rejecting this
defense, it said:
The defense evidence that the Barangay Council changed the
T-shirt Manufacturing to whatever business ventures each
members of the Council would select for investment of his
P1,000.00 has, as already stated, little, if any, probative value.
But assuming there was such a change, the same is of no
avail. The Resolution marked Exhibit D expressly stated that
the P10,000.00 "shall only be appropriated for the purpose/s as
provided in the issued policies and guidelines of the program."
The guidelines, in turn, prescribed that the livelihood project
shall be identified from the modules developed by the KKK
Secretariat or, as stipulated in the Resolution itself, in the
absence of such modules, shall be chosen by the Samahang
Kabuhayan "subject to the evaluation/validation of the KKK
Secretariat." There is absolutely no showing that the alleged
substitute projects which each lendee of P1,000.00 would
select were among those of the developed modules or were
submitted to the KKK Secretariat for evaluation/validation. 9
Accused-appellant criticizes the Sandiganbayan for its having failed to
consider the fact that no valid demand has been made, or could have
been made, for the repayment of the loaned sum. Demand merely
raises a prima facie presumption that missing funds have been put to
personal use. The demand itself, however, is not an element of, and
not indispensable to constitute, malversation. Even without a demand,
malversation can still be committed when enough facts, such as here,
are extant to prove it. 10
Accused-appellant was charged with having committed the crime
through the falsification of a public document punishable under
paragraph 2 of Article 171 of the Revised Penal Code.
The pertinent provisions read:
Art. 171. Falsification by public officer, employee or notary or
ecclesiastic minister. — The penalty of prision mayor and a fine not to
exceed 5,000 pesos shall be imposed upon any public officer,
employee, or notary who, taking advantage of his official position, shall
falsify a document by committing any of the following acts:
xxx xxx xxx
2. Causing it to appear that persons have participated in any
act or proceeding when they did not in fact so participate;
In falsification under the above-quoted paragraph, the document need
not be an authentic official paper since its simulation, in fact, is the
essence of falsification. So, also, the signatures appearing thereon
need not necessarily be forged. 11
In concluding that the Barangay Council resolution, Exhibit "D," 12 was
a falsified document for which petitioner should be held responsible,
the Sandiganbayan gave credence to the testimonies of Barangay
Councilman Santos A. Gomez and Barangay Treasurer Manuel P.
Romero. The two testified that no meeting had actually taken place on
25 August 1983, the date when
"T-shirt manufacturing" was allegedly decided to be the barangay
livelihood project. The Sandiganbayan concluded that Nizurtado had
induced Romero and Gomez to sign the blank resolution, Exhibit "J" 13
on the representation that Romero's proposal to build a barangay
service center would so later be indicated in that resolution as the
barangay livelihood project.
The established rule is that unless the findings of fact of the
Sandiganbayan are bereft of substantial evidence to support it, those
findings are binding on this court.
The Sandiganbayan has considered the mitigating circumstances of
voluntary surrender and restitution in favor of Nizurtado. Deputy Clerk
of Court Luisabel Alfonso Cortez, on 17 January 1989, has certified to
the voluntary surrender of the accused thusly:
CERTIFICATION
THIS CERTIFIES that accused FELIX NIZURTADO in criminal Case
No: 13304 voluntarily surrendered before this court on JANUARY 17,
1989 and posted his bail bond in said case.
Manila, Philippines, JANUARY 17, 1989
(sgd.)
LUISABEL ALFONSO CORTEZ
Deputy Clerk of Court 14
Voluntary surrender (Art. 13, par. 7, Revised Penal Code), therefore,
may thus be treated as a modifying circumstance independent and
apart from restitution of the questioned funds by petitioner (Art. 13, par.
10, Revised Penal Code). We are convinced, furthermore, that
petitioner had no intention to commit so grave a wrong as that
committed. (Art. 13, par. 3, Revised Penal Code), entitling him to three
distinct mitigating circumstances.
Under Article 48 of the Revised Penal Code, when a single act
constitutes two or more grave or less grave felonies, or when an
offense is a necessary means for committing the other, the penalty for
the most serious crime shall be imposed, the same (the penalty) to be
applied in the maximum period. The penalty prescribed for the offense
of malversation of public funds, when the amount involved exceeds six
thousand pesos but does not exceed twelve thousand pesos, is prision
mayor in its maximum period to reclusion temporal in its minimum
period; in addition, the offender shall be sentenced to suffer perpetual
special disqualification and to pay a fine equal to the amount
malversed (Art. 217[3], Revised Penal Code). The penalty of prision
mayor and a fine of five thousand pesos is prescribed for the crime of
falsification under Article 171 of the Revised Penal Code. The former
(that imposed for the malversation), being more severe than the latter
(that imposed for the falsification), is then the applicable prescribed
penalty to be imposed in its maximum period. The actual attendance of
two separate mitigating circumstances of voluntary surrender and
restitution, also found by the Sandiganbayan and uncontested by the
Solicitor General, entitles the accused to the penalty next lower in
degree. For purposes of determining that next lower degree, the full
range of the penalty prescribed by law for the offense, not merely the
imposable penalty because of its complex nature, should, a priori, be
considered. It is our considered view that the ruling in People vs.
Gonzales, 73 Phil. 549, as opposed to that of People vs. Fulgencio, 92
Phil. 1069, is the correct rule and it is thus here reiterated. In fine, the
one degree lower than prision mayor maximum to reclusion temporal
minimum is prision mayor minimum to prision mayor medium (being
the next two periods in the scale of penalties [see Art. 64, par 5, in
relation to Art. 61, par 5, Revised Penal Code]) the full range of which
is six years and one day to ten years. This one degree lower penalty
should, conformably with Article 48 of the Code (the penalty for
complex crimes), be imposed in its maximum period or from eight
years, eight months and one day to ten years. The presence of the
third mitigating circumstance of praeter intentionem (lack of intention to
commit so grave a wrong as that committed) would result in imposing a
period the court may deem applicable. 15 Considering, however, that
the penalty has to be imposed in the maximum period, the only effect
of this additional mitigating circumstance is to impose only the
minimum portion of that maximum period, 16 that is, from eight years,
eight months and one day to nine years, six months and ten days, from
which range the maximum of the indeterminate sentence shall be
taken.
Under the Indeterminate Sentence Law (which can apply since the
maximum term of imprisonment would exceed one year), the court is to
impose an indeterminate sentence, the minimum of which shall be
anywhere within the range of the penalty next lower in degree (i.e.,
prision correccional in its medium period to prision correccional in its
maximum period or anywhere from two years, four months and one
day to six years) and the maximum of which is that which the law
prescribes after considering the attendant modifying circumstances. In
view of the mitigating circumstances present in this case, the fine of
P10,000.00 may also be reduced (Art. 66, Revised Penal Code) and,
since the principal penalty is higher than prision correccional,
subsidiary imprisonment would not be warranted. (Art. 39, par. 3,
Revised Penal Code).
The law and the evidence no doubt sustains Nizurtado's conviction.
Given all the attendant circumstances, it is, nevertheless, the personal
and humble opinion of the assigned writer of this ponencia that
appellant deserves an executive commutation of the statutory minimum
sentence pronounced by this Court.
WHEREFORE, the decision of the Sandiganbayan convicting
Nizurtado for malversation of public funds through falsification of public
document is AFFIRMED but the sentence, given the circumstances
here obtaining, is MODIFIED by imposing on petitioner a reduced
indeterminate sentence of from two years, four months and one day to
eight years, eight months and one day, perpetual special
disqualification and a fine of P2,000.00.
G.R. No. 178145 July 7, 2014
REYNALDO S. MARIANO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
The courts of law are hereby reminded once again to exercise
care in the determination of the proper penalty imposable upon
the offenders whom they find and declare to be guilty of the
offenses charged or proved. Their correct determination is the
essence of due process of law. The Office of the Provincial
Prosecutor of Bulacan charged the petitioner with frustrated
murder for hitting and bumping Ferdinand de Leon while
overtaking the latter's jeep in the information filed in the
Regional Trial Court, Branch 81, in Malolos, Bulacan (RTC),
viz:
That on or about the 12th day of September, 1999, in the
municipality of Angat, Province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the above-
named accused did then and there wilfully, unlawfully and
feloniously, with the use of the motor vehicle he was then
driving, with evident premeditation, treachery and abuse of
superior strength, hit, bump and run over with the said motor
vehicle one Ferdinand de Leon, thereby inflicting upon him
serious physical injuries which ordinarily would have causedthe
death of the said Ferdinand de Leon, thus performing all the
acts of execution which should have produced the crime of
murder asa consequence, but nevertheless did not produce it
by reason of causes independent of his will, that is, by the
timely and able medical assistance rendered to said Ferdinand
de Leon. Contrary to law.1
The CA summarized the antecedent events as follows:
At about 6:30 in the evening of September 12, 1999, Ferdinand
de Leon was driving his owner type jeep along Barangay
Engkanto, Angat, Bulacan. With him were his wife, Urbanita,
and their two-year old son, as they just came from a baptismal
party. Luis de Leon, an uncle of Ferdinand, also came from the
baptismal party and was driving his owner type jeep. Accused-
appellant Reynaldo Mariano was driving his red Toyota pick-up
with his wife, Rebecca, and their helper, Rowena Años, as
passengers. They had just attendeda worship service in
Barangay Engkanto.
The Toyota pick-up overtook the jeep of Ferdinand de Leon
and almost bumped it. Ferdinand got mad, overtook the pick-
up and blocked its path. Reynaldo Mariano stopped the pick-up
behind the jeep. Ferdinand alighted from his jeep and
approached Reynaldo. Ferdinand claimed that he and
Reynaldo had an altercation. However, Reynaldo insisted that
he just stayed inside the pick-up and kept quiet while
Ferdinand hurled invectives at him. Urbanita tried to pacify
Ferdinand and sought the assistance of Luis de Leon. Luis
intervened and told Ferdinand and Reynaldo
"magpasensiyahan na lamang kayo at pagpasensiyahan mo si
Ferdinand." Ferdinand and Reynaldo heeded the advice of
Luis and they went their separate ways.
Instead of proceeding to his house in Norzagaray, Ferdinand
decided to drop by his mother’s house in San Roque, Angat to
pick up some items. He parked his jeep in front of the house of
his mother and alighted therefrom. However, hewas bumped
by a moving vehicle, thrown four (4) meters away and
lostconsciousness. Urbanita shouted, "Mommy, Mommy,
nasagasaan si Ferdie." She identified the fast moving vehicle
that bumped Ferdinand as the same red Toyota pick-up driven
by Reynaldo.
On the other hand, Reynaldo and his wife, Rebecca, tried to
show that the jeep of Ferdinand stopped on the road in front of
the house of the latter’s mother about five (5) to six (6) meters
away from their pick-up. Reynaldo stopped the pick-up as he
saw an oncoming vehicle, which he allowed to pass.
Thereafter, Reynaldo made a signal and overtook the jeep of
Ferdinand. However, Ferdinand suddenly alighted from his
jeep, lost his balance and was sideswipedby the overtaking
pick-up. Reynaldo did not stop his pick-up and he proceeded
on his way for fear that the bystanders might harm him and his
companions. After bringing his companions to their house in
Marungko, Angat, Bulacan, Reynaldo proceeded to Camp
Alejo S. Santos in Malolos, Bulacan to surrender and report the
incident.
Ferdinand was brought to the Sto. Niño Hospital in Bustos,
Bulacan, where he stayed for two and a half days and incurred
medical expenses amounting to P17,800.00 OnSeptember 15,
1999, Ferdinand was transferred to St. Luke’s Medical Center
in Quezon City, where he stayed until September 25, 1999 and
incurred medical expenses amounting to P66,243.25. He
likewise spent P909.50 for medicines, P2,900.00 for scanning,
P8,000.00 for doctor’s fee and P12,550.00 for the services of
his caregivers and masseur from September 12 to October 31,
1999. Ferdinand suffered multiple facial injuries, a fracture of
the inferior part of the right orbital wall and subdural
hemorrhage secondary to severe head trauma, as evidenced
by the certification issued by Dr. Hernando L. Cruz, Jr. of St.
Luke’s Medical Center. Urbanita, received the amount of
P50,000.00 from Reynaldo Mariano by way of financial
assistance, as evidenced by a receipt dated September 15,
1999.2
Under its decision rendered on May 26, 2003 after trial,
however, the RTC convicted the petitioner of frustrated
homicide,3 to wit:
WHEREFORE, the foregoing considered, this Court hereby
finds the accused Reynaldo Mariano GUILTYfor the lesser
offense of Frustrated Homicide under Article 249 of the
Revised Penal Code in relation to Article 50 thereof and is
hereby sentenced to suffer the indeterminate penalty of three
(3) years and four (4) months of Prision Correccional as
minimum to six (6) years and one (1) day of Prision Mayor as
maximum and is hereby directed to pay the complainant,
Ferdinand de Leon, the amount of P196,043.25 less
P50,000.00 (already given) as actual damages, P100,000.00
as moral damages, and the costs of the suit.
SO ORDERED.4
On appeal, the CA promulgated itsassailed decision on June
29, 2006,5 modifying the felony committed by the petitioner
from frustrated homicide to reckless imprudence resulting in
serious physical injuries, ruling thusly:
WHEREFORE, the Decision appealed from is MODIFIEDand
accused-appellant Reynaldo Mariano is found guilty of the
crime of reckless imprudence resulting in serious physical
injuries and is sentenced to suffer the indeterminate penalty
oftwo (2) months and one (1) day of arresto mayor, as
minimum, to one (1) year, seven (7) months and eleven (11)
days of prision correccional, as maximum, and to indemnify
Ferdinand de Leon in the amount of P58,402.75 as actual
damages and P10,000.00 as moral damages.
SO ORDERED.6
In this appeal, the petitioner arguesthat his guilt for any crime
was not proved beyond reasonable doubt, and claims that
Ferdinand’s injuries were the result of a mere accident. He
insists that he lacked criminal intent; that he was not negligent
in driving his pick-up truck; and that the CA should have
appreciated voluntary surrender asa mitigating circumstance in
his favor.
Ruling
We affirm the conviction of the petitioner for reckless
imprudence resulting in serious physical injuries.
The following findings by the CA compel us to affirm, to wit:
Reynaldo tried to show that he stopped his pick-up five (5) to
six (6) meters behind the jeep of Ferdinand, as he allowed an
oncoming vehicle to pass. Thereafter, he overtook the jeep of
Ferdinand. However, the fact that Ferdinand’s body was
thrown four (4) meters away from his jeep showed that
Reynaldo was driving his pick-up at a fast speed when he
overtook the jeep of Ferdinand. It is worthy to note that
Reynaldo admitted that he has known Ferdinand and the
latter’s family since 1980 because they have a store where he
used to buy things. As aptly observed by the OSG, Reynaldo
should have foreseen the possibilitythat Ferdinand would alight
from his jeep and go inside the house of his mother where the
store is also located.
As aptly observed by the court a quo, only a vehicle that is
moving beyond the normal rate of speed and within the control
of the driver’s hands could have caused Ferdinand’s injuries.
The very fact of speeding is indicative of imprudent behavior,
as a motorist must exercise ordinary care and drive at a
reasonable rate of speed commensurate with the conditions
encountered, which will enable him or her to keep the vehicle
under control and avoid injury to others using the highway. As
held in People v. Garcia:
"A man must use common sense, and exercise due reflection
in all his acts; it is his duty to be cautious, careful, and prudent,
if not frominstinct, then through fear of incurring punishment.
He is responsible for such results as anyone might foresee and
for acts which no one would have performed except through
culpable abandon. Otherwise his own person, rights and
property, all those of his fellow-beings, would ever be exposed
to all manner of danger and injury."
Thus, had Reynaldo not driven his pick-up at a fast speed in
overtaking the jeep of Ferdinand, he could have easily stopped
his pick-up or swerved farther to the left side of the road, as
there was no oncoming vehicle, when he saw that Ferdinand
alighted from his jeep and lost his balance, in order to avoid
hitting the latter or, at least, minimizing his injuries.7
The findings by the CA are controlling on the Court. Indeed, the
findings of both lower courts on the circumstances that had led
to the injuries of Ferdinand fully converged except for the
RTC’s conclusion that malicious intent had attended the
commission of the offense. Such findings cannot be disturbed
by the Court in this appellate review, for it is a well-settled rule
that the findings of the trial court, especially when affirmed by
the CA, are binding and conclusive upon the Court.8
"Reckless imprudence consists involuntary, 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 of failing to perform such act, taking
intoconsideration his employment or occupation, degree of
intelligence, physical condition and other circumstances
regarding persons, time and place."9 To constitute the offense
of reckless driving, the act must be something more than a
mere negligence in the operation of the motor vehicle, but a
willful and wanton disregard of the consequences is
required.10 The Prosecution must further show the direct
causal connection between the negligence and the injuries or
damages complained of. In Manzanares v. People,11 the
petitioner was found guilty of reckless imprudence resulting in
multiple homicide and serious physical injuries because of the
finding that hehad driven the Isuzu truck very fast before it
smashed into a jeepney. In Pangonorom v. People,12 a public
utility driver driving his vehicle very fast was held criminally
negligent because he had not slowed down to avoid hitting a
swerving car. In the absence of any cogent reasons, therefore,
the Court bows to the CA’s observations that the petitioner had
driven his pick-up truck at a fast speed in order to overtake the
jeep of Ferdinand, and in so attempting to overtake
unavoidably hit Ferdinand, causing the latter’s injuries.
Contrary to the petitioner’s insistence, the mitigating
circumstance of voluntary surrender cannot be appreciated in
his favor. Paragraph 5 of Article 365, Revised Penal Code,
expressly states that in the imposition of the penalties, the
courts shall exercise their sound discretion, without regard to
the rules prescribed in Article 64 of the Revised Penal Code.
"The rationale of the law," according to People v. Medroso,
Jr.:13
x x x can be found in the fact thatin quasi-offenses penalized
under Article 365, the carelessness, imprudence or negligence
which characterizes the wrongful act may vary from one
situation to another, in nature, extent, and resulting
consequences, and in order that there may be a fair and just
application of the penalty, the courts must have ample
discretion in its imposition, without being bound by what We
may call the mathematical formula provided for inArticle 64 of
the Revised Penal Code. On the basis of this particular
provision, the trial court was not bound to apply paragraph 5 of
Article 64 in the instant case even if appellant had two
mitigating circumstances in his favor with no aggravating
circumstance to offset them.
Even so, the CA erred in imposing on the petitioner the penalty
for reckless imprudence resulting in seriousphysical
injuries.1âwphi1 The error should be avoided because no
person should be condemned tosuffer a penalty that the law
does not prescribe or provide for the offense charged or
proved. Verily, anyone judicially declared guiltyof any crime
must be duly punished in accordance with the law defining the
crime and prescribing the punishment. Injustice would always
result to the offender should the penalty exceed that allowed by
the law. The imposition of the correct penalty on the offender is
the essence ofdue process of law.
The penalty for the offender guilty ofreckless imprudence is
based on the gravity of the resulting injuries had his act been
intentional. Thus, Article 365 of the Revised Penal
Codestipulates that had the act been intentional, and would
constitute a grave felony, the offender shall suffer arresto
mayor in its maximum period to prision correccionalin its
medium period; if it would have constituted a less grave felony,
arresto mayorin its minimum and medium periods shall be
imposed; and if it would have constituted a light felony, arresto
menorin its maximum period shall be imposed. Pursuant to
Article 9 of the Revised Penal Code, a grave felony is that to
which the law attaches the capital punishment or a penalty that
in any of its periods is afflictivein accordance with Article 25 of
theRevised Penal Code; a less grave felony is that which the
law punishes with a penalty that is correctionalin its maximum
period in accordance with Article 25 of the Revised Penal
Code; and a light felony is an infraction of law for the
commission of which a penalty of either arresto menoror a fine
not exceeding P200.00, or both is provided.
In turn, Article 25 of the Revised Penal Codeenumerates the
principal afflictive penaltiesto be reclusion perpetua, reclusion
temporal, andprision mayor; the principal correctional
penaltiesto beprision correccional, arresto mayor, suspension
and destierro; and the light penalties to be arresto menorand
fine not exceeding P200.00. Under this provision, death stands
alone as the capital punishment.
The Revised Penal Codeclassifies the felony of serious
physical injuries based on the gravity ofthe physical injuries, to
wit:
Article 263. Serious physical injuries. — Any person who shall
wound, beat, or assault another, shall be guilty of the crime of
serious physical injuries and shall suffer:
1. The penalty of prision mayor, if in consequence of the
physical injuries inflicted, the injured person shall become
insane, imbecile, impotent, or blind;
2. The penalty of prision correccionalin its medium and
maximum periods, if in consequence ofthe physical injuries
inflicted, the person injured shall have lost the use of speech or
the power to hear or to smell, or shall have lost an eye, a hand,
a foot, an arm, or a leg or shall have lost the use of any such
member, or shall have become incapacitated for the work in
which he was therefor habitually engaged;
3. The penalty of prision correccionalin its minimum and
medium periods, if in consequence of the physical injuries
inflicted, the person injured shall have become deformed,
orshall have lost any other part of his body, or shall have lost
the use thereof, or shall have been ill or incapacitated for the
performance of the work in which he as habitually engaged for
a period of more than ninety days;
4. The penalty of arresto mayorin its maximum period to prision
correccionalin its minimum period, if the physical injuries
inflicted shall have caused the illness or incapacity for labor of
the injured person for more than thirty days.
If the offense shall have been committed against any of the
persons enumerated in Article 246, or with attendance of any
of the circumstances mentioned in Article 248, the case
covered by subdivision number 1 of this Article shall be
punished by reclusion temporalin its medium and maximum
periods; the case covered by subdivision number 2 by prision
correccionalin its maximum period to prision mayorin its
minimum period; the case covered by subdivision number 3 by
prision correccional in its medium and maximum periods; and
the case covered by subdivision number 4 by prision
correccionalin its minimum and medium periods.
The provisions of the preceding paragraph shall not be
applicable to a parent who shall inflict physical injuries upon his
child by excessive chastisement.
In its decision,14 the CA found that Ferdinand had sustained
multiple facial injuries, a fracture of the inferior part of the right
orbital wall, and subdural hemorrhage secondary to
severehead trauma; that he had become stuporous and
disoriented as to time, place and person. It was also on record
that he had testified at the trial thathe was unable to attend to
his general merchandise store for three months due to
temporary amnesia; and that he had required the attendance of
caregivers and a masseur until October 31, 1999.
With Ferdinand not becoming insane, imbecile, impotent, or
blind, his physical injuries did not fall under Article 263, 1,
supra. Consequently, the CA incorrectly considered the
petitioner’s act as a grave felony had it been intentional, and
should not have imposed the penalty at arresto mayorin its
maximum period to prision correccionalin its medium period.
Instead, the petitioner’s act that caused the serious physical
injuries, had it been intentional, would be a less grave
felonyunder Article 25 of the Revised Penal Code, because
Ferdinand’s physical injuries were those under Article 263, 3,
supra, for having incapacitated him from the performance of
the work in which he was habitually engaged in for more than
90 days.
Conformably with Article 365 of the Revised Penal Code, the
proper penalty is arresto mayorin its minimum and medium
periods, which ranges from one to four months. As earlier
mentioned, the rules in Article 64 of the Revised Penal
Codeare not applicable in reckless imprudence, and
considering further that the maximum term of imprisonment
would not exceed one year, rendering the Indeterminate
Sentence Lawinapplicable,15 the Court holds that the straight
penalty of two months of arresto mayorwas the correct penalty
for the petitioner.
The Court agrees with the CA’s modification of the award of
actual and moral damages amounting to P58,402.75 and
P10,000.00, respectively.
Actual damages, to be recoverable, must not only be capable
of proof, but must actually be proved with a reasonable degree
of certainty. This is because the courts cannot rely on
speculation, conjecture or guesswork in determining the fact
and amount of damages. To justify an award of actual
damages, there must be competent proof of the actual loss
suffered, which should be based on the amounts actually
expended by the victim,16 or other competent proof. Here, the
receipts presented by the Prosecution proved the expenses
actually incurred amounting toP108,402.75, but such
aggregate was reduced by the victim’s earlier receipt of
P50,000.00 from the petitioner in the form of financial
assistance. Hence, the victim should recover only the unpaid
portion of P58,402.75.
Moral damages are given to ease the victim's grief and
suffering. Moral damages should reasonably approximate the
extent of the hurt caused and the gravity of the wrong done.17
Accordingly, the CA properly reduced to P10,000.00 the moral
damages awarded to Ferdinand. In addition, we impose an
interest of 6% per annum on the actual and moral damages
reckoned from the finality of this decision until the full payment
of the obligation. This is because the damages thus fixed
thereby become a forbearance. The rate of 6% per annum is
pursuant to Circular No. 799, series of 2013, issued by the
Office of the Governor of the Bangko Sentral ng Pilipinas on
June 21, 2013, and the pronouncement in Nacar v. Gallery
Frames.18 WHEREFORE, the Court AFFIRMS the decision
promulgated on June 29, 2006, subject to the modifications
that: (a) the penalty to be imposed on the petitioner shall be a
straight penalty of two months of arresto mayor; and (b) the
awards for actual and moral damages shall earn 6% interest
rate per annum commencing from the finality of this decision
until fully paid.
The petitioner shall pay the costs of suit.
G.R. No. L-44680 January 11, 1979
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DOMINADOR MOLO, defendant-appellant.
Automatic review of the death sentence with accessory
penalties imposed on September 3, 1976 upon accused-
appellant Dominador Molo by Hon. Job B. Mandayag of the
Court of First Instance of Romblon, 11th Judicial District, in
Criminal Case No. 571 for the murder of Venancio Gapisa on 9
April 1976 at Sitio Dacotan, Barrio Tambac, Romblon,
Romblon.
The above-named accused was charged with murder in an
Information filed by Asst. Provincial Fiscal Cesar M. Solis, on
May 31,1976, as follows:
The undersigned Assistant Provincial Fiscal of Romblon
accuses DOMINADOR MOLO of the crime of MURDER
committed as follows:
That on or about the 9th day of April 1976, at around 8:00
o'clock in the evening, at sitio Dacotan, barrio of Tambac
municipality of Romblon, province of Romblon, Philippines and
within the jurisdiction of this Honorable Court, the above-
named accused with treachery and taking advantage of
superior strength, did then and there wilfully, unlawfully and
feloniously attack and assault one Venancio Gapisa, with the
use of a bolo as a consequence of which he sustained mortal
injuries that resulted in his death thereafter.
That the killing was attended with the following aggravating
circumstances:
(A) Dwelling, for the crime was committed in the house of
the offended party who has not given any provocation at all.
(B) Recidivism in view of the fact that the accused has
been charged for (1) Frustrated Murder before the Court of
First instance of Mindoro in Criminal Case V-542 entitled
People va. Dominador Molo and convicted thereof on
September 2, 1950; and (2) Murder, before the Court of First
Instance of Romblon in Criminal Case No. 862 entitled People
vs. Dominador Molo and convicted thereof on July 27, 1961.
(C) Reiteration, since he has been charged and convicted
before different courts in the following criminal cases:
(1) Grave Slander, before the Court of First Instance of
Romblon in Criminal Case No. V-669 and convicted on June 5,
1957.
(2) Less Serious Physical Injuries, before the Municipal
Court of Romblon, Romblon in Criminal Case No. 839 and
convicted on October 9, 1959.
(3) Qualified Trespass to Dwelling, before the Municipal
Court of Romblon, Romblon in Criminal Case No. 845 and
convicted on February 25, 1960.
(4) Robbery, before the Court of First Instance of Davao
in Criminal Case No. 9982 and convicted on March 1, 1967.
That as a consequence of the aforementioned act committed
by the accused. the heirs of the deceased are entitled to
recover civil damages pursuant to the provisions of law.
CONTRARY TO LAW.
Romblon, Romblon, May 31,1976.
(SGD.) CESAR M. SOLIS
Assistant Provincial Fiscal
At the trial, the prosecution presented the testimonies of — (1)
the victim's wife, Simeona Gapisa, an eye-witness to the
alleged murder; (2) Alejandro Gapisa, a son of the victim who
went to the rescue of his father after he was stabbed by
accuse-appellant and was able to talk with him before he
succumbed to several bolo wounds; (3) Roman man a
neighbor of Alejandro; and (4) Dr. Victorio Benedicto, who
performed the autopsy and accomplished the Autopsy Report,
Exhibits "A" and "A.1 The accused, who offered alibi as a
defense, presented his testimony and that of his wife. Barbara
Mingo, and Police Patrolman Rodolfo Manunggay and Exhibits
1, a bolo and 1-a, scabbard.
The operative facts of the case and the circumstances
surrounding the apprehension and investigation of the accused
now appellant established by the evidence on record are as
follow.
In the evening of April 9, 1976 at about 8:00 p.m. at Sitio
Dacotan, Barrio Tambac, Municipality of Romblon, Venancio
Gapisa and Simeona Rapa-Gapisa, husband and wife, retired
to sleep. The couple lived in a typical hut made of bamboo
flooring and dilapidated burl walling surrounded by fruit.
bearing banana plants. Venancio Gapisa immediately fell
asleep because he was tired from clearing the fields, and
besides, had drunk tuba on that day. He slept near the door
lying on his right side. 1
Not long after the couple had retired, Simeona, who had not
yet fallen asleep, heard an indistinct sound of murmur and
gnashing of teeth. Although she was seized by fear, she
managed to peep through the dilapidated buri wall and saw
accused Dominador Molo attired only in short pants. He was
alone. Trembling, she immediately lighted a kerosene lamp
and placed it on top of the trunk nearby. She tried to awaken
her husband, but the latter did not respond. 2
Meanwhile, the accused had already climbed up the house
which was only a flight of two steps. The accused forcibly
pushed the sliding door and barged into the house. He inquired
from Simeona where Venancio was and she replied that he
was asleep. Finding Venancio sleeping near the door, he
immediately grabbed his left wrist and started hacking at the
sleeping old man. Rudely awakened, Venancio quickly stood
up and with his right hand reached for his bolo which was atop
the table nearby; but he was not able to retaliate in as much as
Dominador Molo was quick to hack at him again. Fearing for
her own life, Simeona rushed out of the house through the door
of the unfinished kitchen to summon help from her son,
Alejandro Gapisa, who was at Roman Mangaring's house
some 100 meters away. Trembling, she told him that his father
was boloed by Boslo, the name by which accused-appellant
was known in their locality. 3
Upon being informed, Alejandro and Roman ran towards the
house of Venancio, followed by Simeona. Upon arrival, they
saw Venancio bleeding profusely and in weakened condition.
He was sitting on the floor of the kitchen, defecating in his
pants. When Alejandro took him in his arms, Venancio told him
that he was boloed by Boslo. Roman Mangaring who was
present also inquired from Venancio who his assailant was and
elicited the answer, "Boslo". 4 Venancio was then rushed to the
hospital and arrived there at about 1:50 a.m. He expired a few
minutes after. 5
An autopsy of the victim disclosed that he died of hemorrhage
from multiple incised wounds. The wounds sustained were:
1. Incised wound, 10 cms. in length, gaping about 4
cms., slanting in position with the lower portion located
anteriorly, penetrating the bone, at the anterolateral aspect of
the distal 3rd of the left arm.
2. Incised wound, about 10 cms. in length, gaping,
slanting in position, with the lower and located anteriorly,
penetrating the bone, located 3 cms. below the wound
mentioned above.
3. Incised wound, about 10 cms. in length, gaping
slightly at the anterolateral aspect of the neck, left side,
slanting, with the lower and located anteriorly penetrating the
muscle layer.
4. Incised wound, about 10 cms. gaping, slightly slanting
with the lower end located anteriorly, located 3 cms. below the
3rd wound, fracturing the clavicle, the costo-chondral portion of
the 2nd rib and the lateral portion of the sternum, left side.
5. Incised wound, 8 cms. in length, gaping about 4 cms.,
slanting with the lower end located anteriorly, penetrating the
bone, located at the lower end of the distal 3rd of the right arm,
anterolateral portion.
6. Incised wound, 5 cms. in length, gaping slightly,
slanting with the lower end located anteriorly, penetrating the
bone, at the; upper 3rd of the right forearm, anterolateral
aspect.
7. Incised wound, 4 cms., superficial, at the anterior
portion of the neck,
8. Incised wound 4 cms., superficial, right medial aspect,
upper 3rd, right forearm.
Internal Findings:
Wound No. 4 penetrated the apex of the left lung inflicting a
small wound, about 2-3 cms. causing minimal bleeding.
The Cause of Death: Hemorrhage from multiple incised
wounds. 6
The following morning an investigation of the fatal incident was
conducted. Pat. Manuel Marino in the presence of Patrolmen
Montojo and Antonio Madali took the statement of Simeona
Gapisa, who Identified Dominador Molo as the assailant of her
deceased husband. 7 Thereafter, PC soldiers and policemen
were dispatched to the house of Dominador Molo some one
and a half (1-1/2) kilometers away from the scene of the killing.
Dominador Molo was placed under arrest and brought by the
arresting officers to the poblacion. Investigated at the PC
barracks, Molo denied having committed any wrong and having
gone to the place of Venancio Gapisa. 8
On April 23, 1976, after additional statements of Alejandro
Gapisa, Roman Mangaring and Florencio Guarte were
secured, a criminal complaint was filed in the Municipal Court
of Romblon. 9 The preliminary examination was conducted by
Mayor Peter M. Montojo, for and in the absence of the
municipal judge. Thereafter, he issued an order confirming the
detention of accused who was then detained in the Municipal
jail of Romblon, there being "... reasonable ground to believe
that the offense was committed and that the accused is
probably guilty thereof. 10 The accused waived the second
stage of the preliminary investigation. 11 On May 31, 1976, an
information, as adverted to above, was filed against Molo
accusing him of the crime of murder. 12
After trial, the court a quo — relying on the testimony of
Simeona Gapisa who was an eye- and ear-witness to the
incident and the corroborating testimonies of Alejandro Gapisa
and Roman Mangaring, who testified on the antemortem
statements of the victim Identifying accused as the assailant;
discounting the defense of alibi put forth by the accused and
his wife; appreciating the qualifying circumstance of treachery
and the aggravating circumstances of dwelling, recidivism and
reiteration alleged in the Information, and a mitigating
circumstance, voluntary surrender, sentenced the accused on
September 3, 1976, as follows:
WHEREFORE, this Court renders judgment finding accused
Dominador Molo guilty beyond reasonable doubt of the crime
of murder, charged in the information and, since after off-
setting the lone mitigating circumstance of voluntary surrender
with the aggravating circumstance of either dwelling, recidivism
or reiteration there remains two aggravating circumstances,
sentencing him to suffer the supreme Penalty of death. He is
further adjudged to pay the heirs of the deceased Venancio
Gapisa, the sum of Twelve Thousand Pesos (P 12,000), and to
pay the cost.
SO ORDERED. 13
Accused-appellant thru Atty. Pedro Q. Quadra, counsel de
oficio now seeks acquittal on the basis of two assigned erors,
to wit -
1. Appellant was convicted upon proof not beyond
reasonable doubt;
2. Identification of the appellant was not proven beyond
reasonable doubt. 14
1. In support of the first, he argues that while proof of
motive is unnecessary if the evidence of Identification is
convincing — citing People vs. Cunanan, 19 SCRA 769;
People vs. Portugueza, 20 SCRA 901; People vs. Jamero, 24
SCRA 206; and People vs. Guardo, 24 SCRA 851 — there is,
he claims, a total want of motive on appellant's part, as
admitted by the victim's wife, Simeona Gapisa, and son,
Alejandro Gapisa. 15
2. In support of the second assigned error, appellant
contents that his Identity as the assailant was not established
beyond reasonable doubt, because of — (a) alleged
inconsistencies and incredible assertions in Simeona's
testimony; (b) physical conditions which rendered it impossible
for her to recognized accused-appellant; (c) her alleged
admission that she pointed to accuse-appellant as the
assailant because he was a hated criminal in their locality; and
(d) that the so-called dying declarations should not have been
accorded credence, because the victim could not have
Identified his assailant. 16
Solicitor General Estelito P. Mendoza - who was assisted by
Assistant Solicitor General Reynato Puno and Solicitors
Romeo S. dela Cruz - after refuting the foregoing assignment
of errors submits the following conclusions as to the nature of
the offense committed, the qualifying and aggravating
circumstances that attended the commission thereof, and, that
the accused is not entitled to the mitigating circumstance of
voluntary surrender, thus —
Since the attack was commenced while Venancio Gapisa was
asleep and therefore he could not make a defense, the killing
was attended with treachery. Treachery qualifies the killing into
murder. (Article 248, Revised Penal Code).
Dwelling is an aggravating circumstance because the killing
was done in the house of Venancio Gapisa who had not given
provocation. (Art. 14 (3), Revised Penal Code).
Other aggravating circumstances are recidivism and
reiteration. (Article 14, paragraphs 9 and 19, Revised Penal
Code). Accused-appellant had been previously convicted of
murder, frustrated murder, grave slander, less serious physical
injuries, qualified trespass to dwelling and robbery. (pp. 10-12,
tsn., July 12, 1976).
Accused-appellant is not entitled to the mitigating circumstance
of voluntary surrender. He did not surrender to the authorities.
As admitted by him, he was arrested by a combined force of
policemen and Philippine Constabulary agents at his residence
the day after the killing. (p, 6, tsn., July 29,1976).
Since there are three aggravating circumstances and no
mitigating circumstance, the penalty properly imposable upon
accused-appellant is death. 17
and recommends that the finding of guilt for the offense of
murder and the death sentence imposed upon appellant be
affirmed in toto. 18
Now, to consider the merits of the alleged errors.
1. Re the claim that there is no proof of motive on
appellant's part. This error may be subsumed under and/or
discussed together with the second, since it admits that motive
need not be shown where there is positive Identification, which,
as We shall explain later, happened in this case. However, by
way of traverse, We find the following observations of the
Solicitor General well-taken, and therefore well worth adopting.
Appellee concedes that it has failed to show any motive of
accused- appellant in killing Venancio Gapisa.
Both Simeona Gapisa and Alejandro Gapisa ventured robbery
as the motive of accused-appellant (pp. 34, 44, tsn., July 12,
1976). They could not, however, state how much money was
taken, from whom it was taken and how it was taken (pp. 34-
38, 44-45, tsn., July 12,1976).
Lest it be thought that Simeona Gapisa and Alejandro Gapisa
gave false testimony, thus rendering themselves untrustworthy
witnesses, it should be pointed out that when they mentioned
robbery as the possible motive of accused-appellant, Alejandro
Gapisa made it clear that was only his "surmise" (p. 34, tsn.,
July 12, 1976) while Simeona Gapisa qualified her assertion
with the word "maybe" (p. 44, tsn., July 12, 1976). They were
not committal or categorical about the matter.
Aside from robbery, there was no other possible motive of
accused-appellant. Both Simeona Gapisa and Alejandro
Gapisa admitted that accused-appellant had no grudge against
Venancio Gapisa and his family and vice-versa (pp. 33-34, 53-
54, tsn., July 12, 1976).
But even in the absence of proof of motive, the conviction of
accused- appellant can stand inasmuch as he had been
positively Identified by Simeona Gapisa and by the deceased
himself through his dying declaration. Motive need not be
shown when there is positive Identification. (People vs.
Feliciano, 58 SCRA 383; People vs. Dorico, 54 SCRA 172). 19
2. Re the contention that his Identity as assailant was
not established beyond reasonable doubt.
(a) That there are inconsistencies and incredible
assertions in Simeona's testimony.Simeona Gapisa — who
was present when accused-appellant attacked her husband
Venancio with a bolo — testified on direct and re-direct
examinations by Assistant Provincial Fiscal Cesar M. Solis and
on cross and recross examinations by Atty. Alexander Mortel,
counsel de oficio of accused, thus —
Fiscal Solis:
Q — By the way, when you first heard the unusual sound since
you were still awake, what did you do?
A — I lighted a lamp, I first looked at him by peeping thru the
wall of our house and once I had recognized his face as that of
Dominador Molo I lighted a lamp.
Q — Was it only the face of Dominador Molo that you
recognized outside?
A — Yes, and he was alone.
Q — What about his body, did you recognize that body belong
to Dominador Molo?
A — I could see and that was the very body of his including his
face because it was bright.
Q — What provides the brightness that allowed you to
recognize him outside the house?
A — The moon was bright.
Q — Now, aside from the unusual murmuring sound, did you
hear the sound of grinding teeth?
A — In fact that was what he had done he was murmuring and
at the same time sounding like grinding teeth.
Q — Now, after you lighted a lamp what else did you do
inside?
A — I stood up and stepped back because he had come up
into the house.
Q — Did you not wake up your husband?
A — I had but he did not notice.
Q — Now, what did you do with the lamp after you lighted it?
A — I placed it on top of our trunk which was towards our
head.
Q — Now, how did you know that Dominador had gone up the
house?
A — Because I saw him going up into our house.
Q — When he went up the house, what did he do?
A — Once up the house he held my husband by the arm and
suddenly pulled out his bolo from his back and hacked him. 20
Q — How long have you known him?
A — Since he was a boy and until he grew up.
Q — By the way, by what affiliation (sic, should be appelation
or name) is he known in your locality?
A — Boslo.
Q — If that Dominador Molo the accused in this case known as
Boslo is present in the court room, will you be able to point him
out in the court?
A — He is here he is the one sitting.
Q — Could you not be mistaken?
A — That is true, it was his very appearance who is looking up
in the ceiling. 21
Atty. Mortel:
Q — Nevertheless, because the moon was a quarter moon
only that night April 9 the illumination any object that could be
seen is quite pale not so bright as if there was an alladin lamp,
correct?
A — Yes.
Q — And as a matter of fact when this person whom you said
was making murmuring sounds when you peeped through your
window he was being illuminated by the beam of the light of the
moon and his face seems to be a yellowish and as clear as if
there is an alladin lamp, correct?
A — But I know that he was the very one I recognized his face
and he is far from the banana plantation and the Moon lights
very well on him.
Q — When the moon lighted very well on him his color was
yellowish was it not?
A — It was indeed his appearance that I saw and that is
exactly how he looked.
Q — And When you looked at him the first time that night he
looked lie Dominador Molo?
A — It was his very own appearance, his appearance never
changed.
Q — And when you saw him you lighted a lamp, is that right?
A — I lighted a lamp because he was already there and I was
afraid of what he had done to us.
Q — You mean from the very first time that you saw him he
was making murmuring sounds you were already afraid that he
would do something bad against you and your husband?
A — Yes, I was already afraid and my skin seemed to shiver.
22
Q — And so when your husband was or rather when your
house that night of April 19 was entered into by a person
making murmuring sounds outside and boloed to death your
husband there was no other conclusion that you made but that
it must be Boslo the killer?
A — Yes, in fact he was the very one it was his very looks. 23
Fiscal Solis:
Q — And who pushed open that door of yours, was it
Dominador Molo or a witch?
A — He was Dominador Molo, it was his very looks of the
same person who pushed the shutter of the door.
Q — What made you sure that the looks of that person was the
one who pushed open the door and went inside and hacked
your husband?
A — He was the one it was his very looks and I saw that it is
his looks.
Q — Now, what is this basis for positively telling us that is
Dominador Molo who killed your husband was it because of
rumor circulating in the locality of Cogon and that the assailant
as to be Dominador Molo because he has killed or because
you saw then Dominador Molo committing the act against your
husband?
A — Not only what was given to me by way of information from
other people but because of what I actually saw with my eyes.
24
Atty. Mortel:
Q — Now, according to you when the door was pushed open
the person entered and he has the looks of that fellow whom
you are pointing to as Dominador Molo, is that correct?
A — He is the very one.
Q — And not only that person who entered the looks of that
Dominador Molo the accused in this case but he also has the
height that looks like the height of Dominador Molo, is that
correct?
A — Yes and he had his shirt off and shorts on.
Q — And he has that looks and built of Dominador Molo, is that
correct?
A — Yes, that is his very appearance and could not be altered
anymore. 25
Appellant contents that inconsistencies exist between
Simeona's statement given to the police and her foregoing
testimony in court, relative to — 1) the precise moment when
Simeona recognized the accused, 26 and 2) whether there was
a conversation between Simeona and the accused. 27
The records show, however, that the alleged statement given
to the police was neither offered as evidence nor shown to
witness in order to enable her to explain the discrepancies if
any in accordance to Section 16, Rule 132 of the Rules of
Court. The proper bast was, therefore, not laid to impeach
Simeona's testimony on the basis of alleged inconsistent
statements which she allegedly made before the police. 28
At any rate, We find the alleged inconsistencies
inconsequential. Inconsistencies on minor details or on matters
that are not of material consequence as to affect the guilt or the
innocence of the accused do not detract from the credibility of
the witnesses. 29 The discordance in their testimonies on
collateral matters heightens their credibility and shows that
their testimonies were not coached or rehearsed. 30 Far from
being evidence of falsehood, they could justifiably be regarded
as a demonstration of good faith. 31
It is also contended that the testimony of Simeona contains
inconsistent averments. According to accused-appellant
Simeona claimed that she was able to Identify him because of
the lamp which was then lighted but that she also declared that
the light was put out when the door was opened because of the
sudden gust of wind. 32 To support this contention, he quoted
Simeona's testimony:
Q — And when the door was pushed open there was a sudden
gust of wind that entered the house, correct?
A — There was a consequence of the sudden entry.
Q — And with that sudden entry and gust of wind carried by
this fellow the light was snuffed out, correct?
A — Yes. (P. 51, tsn., July 12,1976).
A review of the transcript of the testimony shows that the
foregoing is an inaccurate representation of Simeona's
testimony. For she clarified that her husband was already
boloed before the light was snuffed out. Thus, she testified on
cross-examination:
Atty. Mortel:
Q — And with that sudden entry and gust of wind carried by
that fellow the light was snuffed out, correct?
A — Yes.
Q — And in the darkness inside this fellow who entered the
house began stabbing and boloing your husband, correct?
A — My husband was already boloed when the light was put
out because upon entrance he instantly took hold of my
husband's arm and started hacking him all over. 33
On re-direct examination, she declared —
Fiscal Solis:
Q — Now, you admitted on cross examination that the lamp
was put out now how were you able to know that your husband
had attempted to hold his bolo with his right hand and while in
that position he was hacked twice by a bolo by the accused
Dominador Molo?
A — That stage occurred when the light was still on so it was
still bright. 34
Appellant also alleges that her testimony contains incredible
assertions, i.e. that it was very unusual that she remained
silent while witnessing the attack on her husband. 35
But the transcripts show that appellant's own counsel below,
Atty. Alexander Mortel, during the cross-examination, provided
the answer to this misgiving :
Q — When the door was pushed open did you not shout?
A — No, because I was afraid.
Q — Afraid of what?
A — I was afraid because I did not shout for fear that he might
bolo me.
Q — You were tongue-tied?
A — Yes.
Q — Because of fear?
A — Yes.
Q — Terrible fear?
A — Yes, it was terrible fear because my body trembled .
Q — To such extent that you were shocked?
A — Yes. 36
Appellant also argues that Simeona's account is contrary to
physical facts. He claims that if, as she testified, the victim was
lying down when attacked, he would sustain stab, not incised
wounds. He explains that the natural tendency of a person
attacking another who is lying down with a bolo would be to
thrust the bolo towards the body and not hack him. 37 This
claim is without merit. The Solicitor General's explanation on
this point is well-taken. To simply thrust a bolo at a lying person
is not as forceful as to hack him with it. The first is an awkward
if not difficult movement, but the second is natural and can be
done with facility. 38
(b) That conditions rendered it impossible for Simeona to
recognize accused-appellant. It is contended that Simeona
could not have recognized accused-appellant while he was at
the foot of the stairs because the banana plants obstructed the
light cast by the moon. 39
This, again, is without merit. Simeona testified that the banana
plants did not obstruct the light cast by the moon and the
defense did not disprove this fact:
Atty. Mortel:
Q — And because of the banana plantation that is covering
your yard this quarter moon, the illumination thereof is
obstructing a little by this banana plantation?
A — But the bananas are not directly obstructing the door of
our house because they are standing towards the footpath the
part of our house was not obstructed of the light cast by the
moon .
Q — Except by the footpath and the surrounding premises of
the east side of the house is shaded because the banana
plantation are there to obstruct the illumination of the moon,
correct?
A — No, the light coming from the moon could not be
obstructed anymore by that plantation because the main door
of our house is fronting a yard.
Q — Nevertheless, because the moon was a quarter moon
only that night April 9 the illumination to any object that could
be seen is quite pale not so bright as if there was an alladin
lamp, correct ?
A — Yes.
Q — And as a matter of fact when this person whom you said
was making murmuring sounds when you peeped through your
window he was being illuminated by the beam of the light of the
moon and his face seems to be a yellowish and as clear as if
there is an alladin lamp, correct?
A — But I know that he was the very one I recognized his face
and he is far from the banana plantation and the moon lights
very well on him.
Q — When the moon lighted very well on him his color was
yellowish was it not?
A — It was indeed his appearance that I saw and that is
exactly how he looked.
Q — And when you looked at him the first time that night he
looked like Dominador Molo?
A — It was his very own appearance his appearance never
changed. 40
Indeed, Simeona had no difficulty in recognizing the accused,
considering that their house was only elevated by two steps
and at the time she saw him through the dilapidated burl wall
he was already at the foot of the stairs. 41
(c) That Simeona pointed to the accused as the killer
because he was a hated criminal in the locality. 42 Appellant
contends that Simeona pointed to him as the assailant
because he was a hated criminal in the locality - not because
he was properly Identified as the one who attacked the victim.
This claim has no basis in the records. For the testimony of
Simeona shows that she was certain of accused-appellant's
Identity as assailant and that at one point accused-appellant
even inquired from her where her husband was, thus —
Fiscal Solis:
Q — And who pushed open that door of yours, was it
Dominador Molo or a witch?
A — He was Dominador Molo, it was his very looks of the
same person who pushed the shutter of the door.
Q — What made you sure that the looks of that person was the
one who pushed open the door and went inside and hacked
your husband?
A — He was the one it was his very looks and I saw that it is
his looks.
Q — Now, what is this basis for positively telling us that it is
Dominador Molo who killed your husband was it because of
rumor circulating in the locality of Cogon and that the assailant
as to be Dominador Molo because he has killed or because
you saw then Dominador Molo committing the act against your
husband?
A — Not only what was given to me by way of information from
other people but because of what I actually saw with my eyes.
Atty. Mortel:
Q — Now, according to you when the door was pushed open
the person entered and he has the looks of that fellow whom
you are pointing to as Dominador Molo, is that correct.
A — He is the very one.
Q — And not only that person who entered has the looks of
Dominador Molo the accused in this case but he also has the
height that looks like the height of Dominador Molo, is that
correct?
A — Yes and he had his shirt off and shorts on.
Q — And he has that looks and built of Dominador Molo, is that
correct?
A — Yes, that is his very appearance and could not be altered
anymore.
Court: In your entire testimony you did not mention of any
conversation of Dominador Molo as soon as he went up the
house, did you not talk to him, did you not converse with him?
A — No, because he suddenly rushed our house.
Q — And did he not ask you where is your husband and
answered there he is?
A — That was it he was also asking as he entered.
Q — So it is clear that you had a conversation with him?
A — Yes.
Q — And that is what you stated in the police?
A — Yes, sir. 43
(d) Re the dying declarations. Appellant claims that the
same should not be accorded credence because the victim
could not have recognized his assailant, since as testified by
Simeona he was asleep when attacked. 44 Again this is
inaccurate. It was only at the initial stage of the attack when the
victim was asleep, because he was awakened by the first
blows and stood up to defend himself Simeona declared:
Fiscal Solis:
Q — How many times did you see Dominador bolo your
husband on the left arm?
A — I saw him boloed my husband twice on the left arm and
when my husband noticed that he was being hacked he
reached for his bolo with his right arm to which instance
Dominador Molo noticing that he was going to use a bolo
Dominador hacked him again on the right arm.
Q — Was your husband able to take hold of his bolo?
A — He was able to take hold of the handle only because at
this instance he was hacked by Dominador and so the bolo fell
from his hands.
Q — What hand did your husband use in taking hold of his
bolo?
A — Right arm (sic: should be hand).
Q — But was your husband able to rise from where he was
lying to get that bolo?
A — He was able to rise but he was already weak because his
left arm was already wounded. 45
The statements of Venancio Identifying Dominador Molo as his
assailant to Alejandro, his son, and Roman, his neighbor are
dying declarations. Alejandro Gapisa testified:
Q — What was the position when you found him there?
A — He was sitting.
Q — What else if any did you observe of your father?
A — When I came up he said, "Ando I have wounds because I
was boloed by Boslo. "
Q — What was his actual physical situation when he uttered
these words?
A — He was already weak, his body was weak.
Q — How did you observe that he was already very weak, that
he was already weak physically?
A — Because his wounds are big and many.
Q — Was it bleeding?
A — It was bleeding but the flow of the blood had declined
since they had been drained of blood.
Q — In your observation was he dying or not?
A — He was about to die.
Q — Now, since he had wounds what did you do with these
injuries?
A — Upon arrival I tied his wounds.
Q — Which injuries did you bind, what did you tie?
A — The wounds in the arm because it was dangling.
Q — Which arm the left or the right?
A — The left.
Q — What about the right arm?
A — It had also many wounds.
Q — What was your father doing there, in that kitchen?
A — He was sitting.
Q — Was he doing anything else from sitting ?
A — I think he was defecating as a result of the pain.
Q — Did he have his pants on?
A — Yes. 46
Ad Roman Mangaring declared:
A — I was talking to him as to who boloed him.
Q — And his answer to you was Boslo?
A — Yes.
Q — He called his assailant as Boslo?
A — Yes. 47
Considering the nature and extent of the wounds, eight in all,
Venancio must have realized the seriousness of his condition
and it can therefore be inferred that he made the incrimination
under the conciousness of impending death, 48 which, in fact,
supervened barely 4-1/2 hours after he was boloed.
In resume then the credible and unimpeached testimonies of
the victim's widow, Simeona Gapisa, who was an eye-witness
to the fatal incident, and that of Alejandro Gapisa, the victim's
son, and Roman Mangaring, a neighbor, who both testified on
the ante-mortem statements of the victim, establish the guilt of
accused-appellant beyond reasonable doubt of the crime of
murder qualified by treachery, and aggravated by
circumstances of dwelling, recidivism and reiteration, it
appearing that accused has been convicted by final judgment
of murder, frustrated murder, grave slander, less serious
physical injuries, qualified trespass to dwelling and robbery,
and, had served sentences for said crimes.
We agree with the Solicitor General that appellant is not
entitled the mitigating circumstance of voluntary surrender. For
in order that the same may be properly appreciated in favor of
the accused, it must appear that — a) he had not been actually
arrested; b) he surrendered himself to a person in authority or
his agent; and c) his surrender is voluntary, which
circumstances are not present in this case. 49 For appellant
admitted that on the day after the killing, police authorities
surrounded his house and arrested him. The fact that he did
not try to escape or did not resist arrest after he was taken into
custody by the authorities, does not amount to voluntary
surrender. 50
A word about the penalty. It appears that accused-appellant is
an incorrigible criminal with clearly anti-social proclivities
against which the community has the need if not the right, to
defend itself. Where, as in this case, the reformative end of
punishment seems to have failed in amending his criminal
tendencies — he was convicted for frustrated murder in
Criminal Case V-542, Mindoro on September 2, 1950; murder
in Criminal Case No. 862, Romblon on July 27, 1961; grave
slander in Criminal Case No. V-669, Romblon, on June 5,
1957; less serious physical injuries, before the Municipal Court
of Romblon, Romblon in Criminal Case No. 839 on October 9,
1959; qualified by trespass to dwelling, before the Municipal
Court of Romblon, Romblon in - Criminal Case No. 845 on
February 25, 1960 and robbery, before the Court of First
Instance of Davao in Criminal Case No. 9982 on March 1,
1967 — the imposition of the supreme penalty, is not only
justified by the facts of this case, but is required as a measure
of social defense. Society had given accused-appellant several
chances. It would seem that compassion had not reformed him
but had instead made him a hardened criminal and a menace
to his fellow men. To spare his life is to endanger the lives and
properties of others.
WHEREFORE, judgment is hereby affirmed IN TOTO, without
pronouncement as to costs.
G.R. No. 93143 August 4, 1992
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MAXIMO R. RACE, JR. accused-appellant.
Accused appeals from a judgment of conviction for the crime of
Rape in Criminal Case No. 5571 of Branch 44 of the Regional
Trial Court (RTC) of Masbate, the dispositive portion of which
reads:
Wherefore, finding the accused to be guilty beyond reasonable
doubt of the crime of rape the Court hereby finds him guilty
without doubt (sic) and applying the aggravating circumstances
(sic), hereby sentences him to serve a (sic) penalty of reclusion
perpetua to be served at the National penitentiary, and to pay
the victim in the form of moral damages the amount of
P20,000.00 and to pay the cost of the suit. He is credited four
fifth (4/5) of his preventive imprisonment.
The prosecution for rape was commenced by a complaint 1
filed on 22 September 1988 by Corazon E. Collantes, mother
of the offended party, Maria Pura, with the Municipal Trial
Court (MTC) of Masbate which reads:
The undersigned, Complainant under oath (sic), unto this
Honorable Court, accuses MAXIMO ROSERO RASE, JR., for
(sic) the crime of RAPE committed as follows:
That on September 14, 1988 at about 10:00 o'clock in the
morning more or less at Barangay F. Magallanes, Municipality
of Masbate, Province of Masbate, Philippines and within the
preliminary (sic) jurisdiction of this Honorable Court, the above-
named accused, move (sic) by some evil motives, with leud
(sic) design did then and there, willfully, unlawfully and
feloniously and by means of abuse of confidence did lie and
had (sic) carnal sexual intercourse of said (sic) Maria Pura, a
woman of mute, deep and retarded (sic) against her will and
consent.
Having found probable cause to exist after asking the
witnesses searching questions, the Judge of the MTC issued
on 6 October 1988 an order for the arrest of the accused. 2
On 10 November 1988, the MTC issued an order declaring that
the accused had waived his right to a preliminary investigation
and that "a prima facie case" exists against him. It then
forwarded the records of the case to the Office of the Provincial
Fiscal of Masbate. 3
On 29 November 1988, 2nd Assistant Provincial Prosecutor
Iñigo D. Fontelar of the Provincial Prosecution Office of
Masbate issued a resolution, 4 duly approved by Provincial
Prosecutor Hermenegildo F. Betonio, Jr., recommending that
an information for the crime of rape be filed against the
accused because "(t)he undisputed evidence on record as fully
disclosed by the court and discussed in its order of November
10, 1988, (sic) which we agree, no doubt establishes a prima
facie case and/or probable cause to hold the accused for trial."
Accordingly, on 7 December 1988, said Assistant Provincial
Prosecutor filed with the Regional Trial Court of Masbate an
Information for rape, 5 duly approved by the Provincial
Prosecutor, which reads:
The undersigned 2nd Assistant Provincial Prosecutor accuses
Maximo Rosero Race, Jr. of the crime of Rape committed as
follows:
That on or about September 14, 1988, in the morning thereof,
at barangay Magallanes, Municipality of Masbate, Province of
Masbate, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused did then and there
willfully, unlawfully and feloniously (sic) have carnal knowledge
of one Maria Pura, a deaf-mute, retarded and an embecile (sic)
against the latter's will and consent.
Accused entered a plea of not guilty upon arraignment 6 and
trial proceeded thereafter on various dates with the prosecution
presenting Dr. Artemio G. Capellan, Noel Abela and Elena Alim
as its witnesses for its evidence in chief, and Elvira Collantes
as its witnesses on rebuttal. The accused took the witness
stand in his own defense.
On 15 December 1989, the trial court promulgated its decision,
7 convicting the accused of the crime of rape, the dispositive
portion of which was quoted earlier. According to the court,
rape was committed because Maria Pura, being deaf-mute and
mentally retarded, cannot give consent; it was determined that
moral compulsion, amounting to intimidation, was employed by
the accused. Said the court:
The victim being mentally retarded could not be asked
questions as what (sic) happened to her although she
sometimes understands (sic) some questions. The
circumstances appearing as seen by Noel Abela shows (sic)
that sexual intercourse was committed on the person of Maria
Pura a mentally retarded, deaf-mute. Maria Pura being
mentally retarded could not actually give consent in order that
she could have sexual intercourse with the accused.
The Court could not even say as testified that force was
employed upon the victim but the appearance of the woman
alone and her physical condition could not stop any physical
force. However, for the reason that the accused has been
known to the woman who (sic) even slept, though outside of
their house in an attachment, moral compulsion which is
tantamount to intimidation was employed by the accused when
the sexual intercourse happened. It is a sorry state that the
victim could not testify. The Court however, is convinced that
rape was committed. 8
The accused when confronted by the family of the victim
denied having sexual intercourse with Maria Pura. However,
Maria Pura, although a deaf-mute when asked by Collantes
and by Noel Abela, and by the sister Elena Alim pointed to the
accused to have committed, (sic) such a dastardly act. She
pointed to the accused when asked as to what happened.
There is no reason for Maria Pura to tell a lie. Being (sic) of
unsound mind and laughing (sic) at the time when she was
investigated, only shows (sic) that there was sexual intercourse
through moral compulsion which the court believes is
intimidation. That she should give consent, such question when
subjected to all doubts and understanding (sic) would show
that this woman who is mentally retarded and a deaf-mute
could never give consent to any sexual intercourse committed
on her by the accused. 9
It also appreciated against the accused the aggravating
circumstance of reiteracion 10 because he admitted during
cross-examination that he was previously, convicted of the
crime of homicide but was out on parole at the time of the rape.
From the said decision, accused came to this Court by filing a
notice of appeal on 18 December 1989. 11 He has only one
assignment of error in the Brief for the Appellant, 12 to wit:
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-
APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
THE CRIME CHARGED.
In support of the alleged error, he contends that reasonable
doubt exists in this case because: (a) the scene of the crime is
well populated and inhabited; since it was daytime and there
were many people outside the house when the incident
occurred, it is possible that another man or a neighbor of the
Puras, and not the accused, assaulted Maria Pura; (b) he is on
parole and knew that if he violated the terms and conditions
thereof, he would be rearrested to serve the unexpired portion
of his sentence; it was, therefore, unlikely that he would commit
another crime; (c) there is no reliable eyewitness to the crime;
and (d) he manifested his honesty by not denying that he
slapped Noel Abela after the latter made fun of him (the
accused) when he came out of the toilet. 13
The facts of this case as presented by the prosecution are
faithfully summarized by the Solicitor General in the Brief for
the Appellee 14 as follows:
In the morning of September 14, 1988, Elvira Collantes, left her
forty-year old sister Maria Pura in their house located at
Magallanes St., Masbate, Masbate to go to the market. Maria
was cross-eyed, mute, retarded, and a polio victim, standing
less than four feet who could only nod her head and make
signs to be able to communicate. She can crawl but cannot
stand unsupported. (TSN, October 23, 1989, p. 4; TSN , April
26, 1989, p. 3; TSN, June 22, 1989, p. 9; TSN, October 10,
1989, pp. 3-4, 6).
Maria was left alone in the house with Maximo Race, Jr. also
known as Jun, who during that time had asked Elvira for
permission to use the toilet built outside the house. Since Race
had been using the toilet in the past with their permission, she
agreed. She knew Race because he often sleeps outside the
extension of the Pura house, particularly in the Pura store
which is attached to the house (TSN, October 23, 1989, pp. 3,
5; TSN, June 22, 1989, pp. 3, 8).
At around 10 a. m. of the same day, Noel Abila, son of Elena
Alim both of whom lived in the Pura residence together with
Maria, had just come home from school when he heard a
voice. He immediately ran to the kitchen where the voice came
from and saw Race putting his pants on (TSN, June 22, 1989,
p. 4; TSN, October 20, 1989, p. 3).
Noel then saw his Aunt Maria in the dining room. She was
laughing at Race. Noel let Maria sit on a chair. When Noel
asked his Aunt Maria what Race did to her she moved her
body forward and backward in a push-pull movement. Noel
thereupon accused Race of raping Maria and threatened to
report the incident. Race slapped Noel and went out of the
house to the place where he drinks liquor (TSN, June 22, 1989,
pp. 5, 6; TSN, October 23, 1989, p. 4).
Noel afterwards informed his uncle Glen Collantes, husband of
Elvira Collantes of the incident. Glen brought Race to Maria
Pura, who pointed at Race. When Glen asked Maria what
Race did to her she again made the push-pull movement.
Maria was laughing (TSN, June 22, 1989, pp. 7, 8, 10).
Elena Collantes, who was working at D'SAN Restaurant, went
home upon learning of the incident. Elena, together with their
mother "Azon", later went to the Municipal Hall to lodge a
complaint (TSN, October 10, 1989, pp. 4-8).
After the complaint was filed, Maria was examined by Dr.
Artemio Capellan, the Municipal health officer, in their house,
the following day (TSN, October 10, 1989, p. 8; TSN, April 26,
1989, pp. 3, 5).
The results of the examination were stated in a medical
certificate issued by Dr. Capellan (Exh. "A"). To wit:
For External examination:
Fairly developed and fairly nourished, mentally retarded, mute,
female, adult, Filipino. The breast (sic) are fully developed,
hemispherical in shaped (sic) and slightly soft in consistency.
The areola are pinkish brown in color with nipples are (sic)
prominent and protruding.
Contusion, abrasion nor (sic) hematoma were not found in the
body of the victim.
Genital examination:
Pubic hair not abundant, Labia majora and labia minora are
coaptated. Hymenal opening originally linear in shaped (sic)
showing old laceration, corresponding to 5:00, 7:00 o'clock
position in the face of the watch. Hymenal orifice admits the
vaginal speculum without resistance. Vaginal rugosities are
present but obliterated. Vaginal canal is moderately tight.
Conclusion:
1. No extra genital injuries were noted on the person of
Maria Pura.
Microscopic examination:
a) Presence of human semen and dead sperm were
(sic) noted.
Maria had sexual contact because the speculum can be
inserted into her without difficulty. She had an old healed
hymeneal laceration caused a day before. Some of the sperm
found in her vagina were living at the time they were examined
(TSN, April 26, 1989, p. 4).
On the other hand, the accused denies the commission of the
crime. He summarizes his story in his Brief as follows:
. . . In the morning of September 14, 1988, he asked Elvira
Pura-Collantes' permission to use their toilet. Elvira is a
younger sister of Maria. Said toilet is outside the Puras' house.
He did not go to their kitchen nor borrowed (sic) cellophane
from Noel Abela. When he came out of the toilet Noel shouted
at him and teased him. He got angry and slapped Noel and
threw one of his slippers to (sic) the latter. Noel ran away
crying and called for his mother who is working in a restaurant.
Noel's mother arrived home and scolded him (accused). It is
not true that he raped Maria Pura. The Puras are just angry
with him because he slapped Noel. The nearest house to the
Puras is only a meter away. And there were many people
around when he slapped Noel (TSN, pp. 2-7, October 20,
1989).
We find no difficulty in agreeing with the trial court's conclusion
that the accused had sexual intercourse with Maria Pura on the
date as charged. Although there was no eyewitness to the act,
the confluence of the facts and circumstances unerringly
establishes the commission of the act. The Solicitor General
correctly enumerates these facts and circumstances:
(1) When witness Elvira Collantes left the house in the
morning of 14 September 1988, only her sister Maria Pura and
the appellant were left therein;
(2) Witness Noel Abela, upon arriving home at 10:00
o'clock that morning, chanced upon the accused closing the
zipper of his pants in the kitchen while Maria was at the
adjacent dining room, laughing at the accused;
(3) When Noel asked Maria what accused did to her, she
moved her body forward and backward; she repeated this
motion when asked by Glen Collantes, her brother-in-law,
pointing at the same time to the accused;
(4) Upon examining Maria the following day, Dr.
Capellan, the Municipal Health Officer, noticed the presence of
"human semen and dead sperm", thus indicating that she had
sexual intercourse within the past twenty-four (24) hours.
There can be no doubt that if the carnal knowledge was
accomplished under any of the circumstances enumerated in
Article 335 of the Revised Penal Code, the foregoing
circumstantial evidence would have been sufficient to support a
conviction for such a crime pursuant to Section 4, Rule 133 of
the Rules of Court which provides:
Sec. 4. Circumstantial evidence, when sufficient. — in full possession and control of her moral reasoning faculty;
Circumstantial evidence if sufficient for conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inferences are derived are
proven; and
(c) The combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt.
The foregoing disquisitions render utterly ineffectual and
reduce to naught accused's assigned error and the arguments
in support thereof. But did the act of the appellant constitute
the crime of rape as defined under Article 335 of the Revised
Penal Code? To arrive at the answer, the following crucial
issues must be resolved:
1) whether the information properly charges the accused
with the commission of rape; and
2) assuming that it does, whether the evidence for the
prosecution established the guilt of the appellant beyond
reasonable doubt.
Article 335 of the Revised Penal Code pertinently provides:
Art. 335. When and how rape is committed. — Rape is
committed by having carnal knowledge of a woman under any
of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise
unconscious; and
3. When the woman is under twelve years of age, even
though neither of the circumstances mentioned in the two next
preceding paragraphs shall be present.
This crime of rape shall be punished by reclusion perpetua.
The proper complaint and information for rape must clearly
describe the specific circumstances which would make the
carnal knowledge of a woman qualify as such under Article
335. Otherwise stated, the same must concretely describe the
crime of rape in any of the specified forms to duly inform the
accused of the nature of the accusation; 15 the right to be
informed of such accusation is one of his constitutional rights.
16
The accusatory portion of the information in this case reads:
That on or about September 4, 1988, in the morning thereof, at
barangay Magallanes, Municipality of Masbate, Province of
Masbate, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused did then and there
willfully, unlawfully and feloniously (sic) have carnal knowledge
of one Maria Pura, a deaf-mute, retarded and an embecile (sic)
against the latter's will and consent.
As can be readily seen, it does not specifically describe any of
the circumstances under Article 335 of the Revised Penal
Code. It is evident that the information was hurriedly and poorly
crafted for aside from the deficiency abovementioned, the 2nd
Assistant Provincial Prosecutor even wrongly spelled the words
feloniously and imbecile. This notwithstanding, the allegation
therein that the accused had sexual intercourse with a woman
who is retarded and an imbecile implies that the victim was not
this is sufficient enough to have alerted the accused that the
charge against him is for rape under the circumstance that the
woman is deprived of reason. 17 An imbecile is "a mentally
defective person of the second lowest order of intellectual
potential (mental age between 3 and 7 years), usually requiring
custodial and complete protective care." 18 Imbecility is "(a)
form of mental disease consisting in mental deficiency either
congenital or resulting from an obstacle to the development of
the faculties supervening in infancy. Idiocy . . . . For any
process of reasoning, or any general observation or abstract
ideas, imbeciles are totally incompetent. Of law, justice,
morality, property, they have but a very imperfect notion, . . . .
19
And now on the second issue.
It may be recalled that the trial court convicted the accused
based on two circumstances: (a) the use of intimidation and (b)
the inability of the offended party to give consent because she
is "a deaf-mute, retarded and an embecile (sic)".
The first is definitely without basis as no evidence was
adduced to prove it. The trial court merely inferred this from
what it describes as "moral compulsion" which it ascribes to the
fact that "the accused has been known to the woman who (sic)
even slept, although outside their house in an attachment."
These are inferences running riot which elementary logic and
common sense reject.
What has to be determined then is whether the offended party,
Maria Pura, before, during and even after the sexual
intercourse on 14 September 1988, suffers from mental
retardation or, imbecility which deprived her of reason at the
time the appellant had carnal knowledge of her.
Without an admission by the accused, this Court's task of
resolving this issue would have been difficult as it would be
entirely dependent on: (a) the conclusion of the trial court that
Maria Pura is "a deaf mute, retarded and an embecile (sic)";
this conclusion is principally anchored on exactly the same
allegation in the information; (b) the finding by Dr. Capellan,
entered in his physical and medical examination report, that
she is mentally retarded; (c) the testimony of Noel Abela that
when the victim was asked what the accused did to her, she
demonstrated a push-pull movement and was laughing while
looking at the accused; and (d) the court's view of the woman
when she was brought to the court. On that occasion the following
transpired:
ELENA ALIM TESTIFYING UNDER SAME OATH
COURT:
Q You were requested by the court to bring your elder sister
and the court has seen you bringing a woman accompanied by a
certain man, is that your elder sister, Maria Pura?
A Yes, Your Honor.
Q And that man is your younger brother?
A Yes, Your Honor.
Q Who (sic) is the name of your younger brother?
A Gaspar.
Q Gaspar, would you let her stand?
A (Gaspar assisted the woman Maria Pura in standing up)
Q How tall is she?
A (Less than 4 feet and cross-eyed woman (sic))
Q Could you talk?
A (Woman is nodding)
Q Who (sic) is your name?
A (The woman when asked her name just nodded her head,
she is telling something but could not talk) 20
No expert witness was presented to testify on Maria Pura's imbecility.
Fortunately for the Prosecution, the appellant readily admitted that
Maria Pura is mentally deficient:
Thus, in his Brief, he states:
In the case at bar, the evidence for the prosecution was not scrutinized
with extreme caution. To stress, there is no reliable eyewitness to the
crime charged. The alleged rape victim is physically and mentally
deficient being a deaf-mute, retarded and (sic) imbecile. 21
Maria Pura was then incapable of giving rational consent to the sexual
act. In effect, she is deprived of reason. In People vs. Manlapaz, 22
which involves a 13-year old girl with the mentality of a 5-year old child,
this Court held:
Sexual intercourse with a woman who is deprived of reason or with a
girl who is below twelve years of age is rape because she is incapable
of giving rational consent to the carnal intercourse. "Las mujeres
privadas de razon, enajenadas, idiotas, imbeciles, son incapaces por
su estado mental de apreciar la ofensa que el culpable infiere a su
honestidad y, por tanto, incapaces de consentir. Pero no es condicion
precisa que la carencia de razon sea complete, basta la abnormalidad
o deficiencia mental que solo la disminuye, sim embargo, la
jurisprudence es discordante" (II Cuello Calon, Derecho Penal, 14th
Ed., 1975, pp. 538-9).
Comete violacion el que yace can mujer que no tiene normalmente
desarrolladas sus facultades mentales (19 nov. 1930); aqui esta
comprendido el yacimiento con debiles o retrasados mentales (11
mayo 1932, 25 feb. 1948, 27 sept. 1951); constituye este delito el coito
con una niña de 15 años enferma de epilepsia genuina que carece de
capacidad para conocer el valor de sus actos (2 marzo 1953); el
yacimiento con oligofrenicas (mentally deficient persons) 28 abril, 24
octubre, 1956, 19 feb. 1958); . . . (Ibid, note 3).
The same rule prevails in American jurisprudence. "There can be no
question but that a copulation with a woman known to be mentally
incapable of giving even an imperfect consent is rape" (State vs.
Jewett, 192 At. 7).
An accused is guilty of the crime of rape when it is established that he
had sexual intercourse with a female who was mentally incapable of
validly consenting to or opposing the carnal act (65 Am Jur 2nd 766
citing State vs. Prokosch, 152 Minn. 86, 187 NW 971; Cokeley vs.
State, 87 Tex. Crim. 256, 220 SW 1099; 31 ALR 3rd 1227, sec. 3).
In this species of rape neither force upon the part of the man nor
resistance upon the part of the woman forms an element of the crime.
If, by reason of any mental weakness, she is incapable of legally
consenting, resistance is not expected any more than it is in the case
of one who has been drugged to unconsciousness, or robbed of
judgment by intoxicants. Nor will an apparent consent in such a case
avail any more than in the case of a child who may actually consent,
but who by law is conclusively held incapable of legal consent.
Whether the woman possessed mental capacity sufficient to give legal
consent must, saving in exceptional cases, remain a question of fact . .
. It need but be said that legal consent presupposes an intelligence
capable of understanding the act, its nature, and possible
consequences. This degree of intelligence may exist with an impaired
and weakened intellect, or it may not (People vs. Boggs, 290 Pac. 618
citing People vs. Griffin, 49 Pac. 711 and People vs. Peery, 146 Pac.
44).
This rule has been reiterated by this Court in the following decisions
which upheld convictions for the crime of rape: People vs. Gallano, 23
where the 31-year old victim had the mental level of a 7-year old child;
People vs. Asturias, 24 where the 17-year old victim had the mental
level lower even than that of a 7-year old child; People vs. Sunga, 25
where the 23-year old victim had the mentality of an 8 to 9-year old
child; and People vs. Palma, 26 where the victim was a 14-year old
retardate with an intellectual capacity described as ''borderline mental
deficiency".
In the Asturias case, this Court in effect held that if the mental level of a
woman above twelve (12) years old is that of a child below twelve (12)
years old, even if she voluntarily submitted to the bestial desires of the
accused, or even if the circumstances of force or intimidation, or of the
victim being deprived of reason or otherwise unconscious are absent,
the accused would still be liable for rape under the third paragraph of
Article 335. The reason for this is that if intercourse with a victim under
twelve (12) years old is rape, then it should follow that carnal
knowledge of a woman whose mental age is that of a child below
twelve (12) years of age would also constitute rape.
Affirmance of the decision appealed from is thus inevitable. The
accused cannot be permitted to escape from the wrath of the law.
Having succumbed to his bestial instinct and desire to satisfy his
animal greed by preying on a defenseless imbecile who ought to be the
object of sympathy, he has become a two-legged beast which civilized
society must hold in prison in order that he may answer for his evil
deed. However, there is in need to modify both the amount of
indemnity awarded to the offended party and the credit of four-fifths
(4/5) of the accused's preventive imprisonment. Also, the appreciation
of the aggravating circumstance of reiteracion should be set aside.
Pursuant to People vs. Arenas, 27 which involves the rape of a
mentally retarded woman, the indemnity to be paid should be
increased to P40,000.00. The four-fifths (4/5) credit, on the other hand,
is improper. Accused is entitled to be credited with the full time of his
preventive imprisonment under the first paragraph of Article 29 of the
Revised Penal Code and not under paragraph two, which prescribes
the four-fifths (4/5) credit, since there is no evidence that he did not
agree to abide by the same disciplinary rules imposed upon convicted
prisoners.
The trial court likewise erred in appreciating the aggravating
circumstance of reiteracion. This circumstance is not alleged in the
information. The prosecution did not prove it. Upon cross-examination
of the accused by the Prosecutor, over the objection of the defense
counsel, the only information elicited is that the accused had earlier
been convicted for the crime of homicide, had served the sentence and
had later been released. 28
The fact of his being out on parole was brought out upon questioning
by the court after the termination of the cross-examination. 29 It would
thus be unfair to appreciate reiteracion against the accused. Besides,
for the same to exist, it is necessary that "the offender has been
previously punished for an offense to which the law attaches an equal
or greater penalty or for two or more crimes to which it attaches a
lighter penalty." 30 Appellant was earlier convicted for the crime of
homicide which is punishable by reclusion temporal. 31 That penalty is
not equal or greater — but is definitely lower — than that provided for
the crime of ordinary rape which is reclusion perpetua.
WHEREFORE, except as above modified, the decision of the Regional
Trial Court of Masbate, Branch 44, in Criminal Case No. 5571 finding
the accused-appellant MAXIMO R. RACE, JR. guilty beyond
reasonable doubt of the crime of rape, is hereby AFFIRMED in all other
respects.
G.R. No. L-40757 January 24, 1983
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RICARTE MACARIOLA, defendant-appellant.
Automatic review of the Decision of the Circuit Criminal Court, Seventh
Judicial District, Pasig, Metro Manila, in Case No. CCC-VII-1346-Rizal,
finding the accused Ricarte Macariola, a prisoner (No. 66033-P)
confined at the New Bilibid Prisons, Muntinlupa, Metro Manila, guilty of
the crime of MURDER for the death of Romeo de la Peña, a prisoner in
the, same Penal institution, and sentencing the accused to suffer t he
capital Penalty of DEATH.
The Information, dated June 1, 1973, filed against accused-appellant
alleged:
That on or about the 21st day of September, 1971, in the New Bilibid
Prisons, Muntinlupa, Rizal, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused while then confined at
the said institution, with treachery and evident premeditation, and
armed with improvised deadly weapon did then and there willfully,
unlawfully and feloniously assault and wound therewith one Romeo de
la Peña No. 29820-P, a sentenced prisoner in the same institution,
inflicting upon him multiple stab wounds, while then unarmed and
unable to defend himself from the attack launched by the accused, as
a result of which the said Romeo de la Peña died instantly.
CONTRARY TO LAW. 1
The defense does not dispute that the deceased prisoner was stabbed
and killed by the accused. It maintains, however, that the accused
stabbed the deceased in self-defense.
The facts established by the prosecution and synthesized in the
People's Brief follow:
On September 21, 1971, between the hours of 8:00 and 9:30 o'clock in
the morning, Romeo de la Peña No. 29820-P, an inmate at the New
Bilibid Prisons in Muntinlupa, Rizal, was standing in his cell when
suddenly he was approached and stabbed by appellant Ricarte
Macariola with an improvised weapon called 'matalas' (Exhibit 'B'). The
stabbing incident took place while they were inside their cell at Brigade
No. 2-D and was witnessed by fellow inmates Romeo Sato, Fernando
Gomez, now deceased, a certain Alvarez and Severino Pingkian (TSN,
September 30, 1974, pp. 3, 16 and 30; Exhibit 'G', Rec., p. 127; Exhibit
'C', Rec., p. 128). Romeo de la Peña shouted, 'Inay ,Inay 'and ran to a
'kubol'. He was pursued by the appellant, and by inmates Nelson Binas
and a certain 'Bugok'. De la Peña dropped to the ground and lay
prostrate inside the 'kubol'. Again appellant stabbed him followed by
thrusts from Nelson Binas and 'Bugok'. De la Peña died inside the
'kubol'. (TSN, September 30, 1974, pp. 1 0- 11).
Meanwhile, Fernando Gomez, considered the 'Mayor' at Brigade No. 2-
D since 1970, upon hearing the victim shout 'papatayin ako, papatayin
ako,' entered the cell and saw the victim in a lying position with the
appellant bending over him with a blood stained knife in his hand.
Immediately, he reported the incident to prison keeper Alfredo
Manzano who opened the door of the cell. Alberto Supetran, another
prison keeper, entered the cell. Appellant then approached the latter to
whom he surrendered the improvised weapon ('matalas') which he
used in stabbing the victim (Exhibit 'C', Rec., p. 128).
On the same day, an investigation of the stabbing incident was
conducted. Prison guard Jesus B. Tomagan took the sworn statements
of appellant (Exhibit 'A', Rec., p. 125) and prison inmate Fernando
Gomez (Exhibit 'C', Rec., p. 128), who a year later, or on September
12, 1972, was also stabbed to death (Rec., pp. 37 and 66). Francisco
A. Cometa, another prison investigator, took the sworn statement of
prison inmate Romeo Sato (Exhibit 'G', Rec., p. 127). When appellant
was investigated, he admitted having stabbed the victim Romeo de la
Peña (TSN, May 29,1974, p. 10).
An autopsy was conducted on the body of the victim by Dr. Cristino S.
Garcia, medico-legal officer of the National Bureau of Investigation.
The Necropsy Report (Exhibits 'D' & 'D-l', Rec., pp. 123-124) prepared
by him shows that the victim sustained a total of sixteen stab wounds,
of which, wounds nos. 11 and 12 were considered fatal. Stab wound
No. 11 involved the left lobe of the liver and penetrated the left ventricle
of the heart. Stab wound No. 12, was five in number and penetrated
the upper and middle lobe of the right lung (Exhibits 'D-4' and 'D-5'
Rec., p. 124). These wounds produced severe hemorrhage and
caused the death of the victim (TSN, May 31, 1974, pp. 6 and 8).
In his testimony during the trial, Dr. Garcia opined that because the
stab wounds were of different sizes, more than two instruments were
probably used in stabbing the victim and that, judging from the number
of stab wounds found on the body of the victim, there were more than
two assailants. He likewise noted that the five wounds found in stab
wound No. 12 were very near each other, hence, they could have been
delivered while the victim was in a lying position (ibid, pp. 11-13). 2
On the other hand, the accused and another inmate, presented their
own versions:
Accused RICARTE MACARIOLA, 29 single, serving sentence of 8 to
14 years for the crime of Robbery, testified that on September 21,
1971, he was confined at Brigade 2-D together with about 200 inmates,
one of whom was the deceased (Romeo de la Peña that at about 4:00
o'clock in the morning of that day, he and the deceased were gambling
and playing "Hong Chang" near the deceased's "tarima",- that they
gambled for about four hours; that the deceased lost in the said "Hong
Chang", and the accused won all the deceased's money of about P
6.00; that he gave the deceased a blanket as "balato that, while he
was still holding the money he won, the victim snatched them from his
hand; that when he (accused.) was taking the money back, the victim
kicked him on the left chest; that he was then sitting on the floor while
the victim was seated on his "tarima"; that, he fell down as a result; that
he stood up and took his improvised weapon called "matalas " which is
about 12 inches long, placed on his waist near the right pocket; that,
when the victim saw him holding his "matalas ", the victim also tried to
take his own "matalas " which said victim had under his pillow that for
fear that the victim might be able to get hold of his (victim's) "matalas"
and would use it against the accused, the latter stabbed the victim on
the stomach; that the victim failed to take hold of his "matalas" because
it fell down; that both of them fell on the floor because the victim pulled
him; that while the victim was holding him by the neck, the accused
stabbed him again-although the accused says he does riot know how
many times he stabbed the Victim; that the victim is taller, bigger and
huskier than the accused; that the victim was a boxer; that their cell
was closed and there was no exit: that there was no place to run away
from the victim: that the accused had to use the "matalas " in older to
disable the victim, thinking that his life was in imminent danger that the
victim died due to tile stab wounds he had inflicted that the accused
surrendered himself and his "matalas" to jail-keeper Alberto Supetran
when the latter came to the cell; that he also saw said official pick up
the "matalas" of the deceased from under the latter's pillow; that the
accused was brought to the office of the Prisons investigators where
his statement was taken down in writing by Jesus Tomagan; that he
swore to the truth of his statement before the Prisons Administrative
Officer; that the stabbing happened at about past eight in the morning
of that day: that he does not know that inmate called "Bugok" and that
he was placed in the "bartolina" after the incident for about five (5)
months. 3
It is to be noted that the accused mentioned to other participants in the
stabbing. He owned responsibility for the entire incident.
ANTONIO VIVERO, 28, single, inmate of the New Bilibid Prisons,
serving sentence of 12 to 17 years for Murder, declared ared that on
September 21, 1971, he was confined in Brigade 2-D along with
Macariola and the deceased and many others of about 200; that at
about 8 o'clock in the morning of that same day, while he was taking
his breakfast, inside the cell, his attention was called by loud exchange
of words; heated discussion between Macariola and the deceased,
who were about 3 meters away from him; that following the e exchange
of words, he saw the victim kick the accused; that the latter stood up
and then, the accused and the victim face each other; that the accused
gave a thrust at the victim with a "matalas", that the victim was thrown
to the floor near his bed which is about one-half meter away; that a
commotion occured all over the cell; that the jail-keeper went inside the
cell; that he saw the said- keeper inspect de la Peñas pillow and found
thereunder an improvised weapon called "matalas", that the Victim's
improvised weapon. is 14 inches long made of tube, double-bladed;
that he was not aware of the gambling incident between the victim and
the deceased before the stabbing incident; and that the deceased was
bigger in build than the accused. 4
In its Decision dated January 10, 1975, the Trial Court found the
aggravating circumstances of treachery, evident premeditation, and
recidivism present and sentenced the accused as follow
WHEREFORE, finding the accused, Ricarte Macariola, GUILTY, beyond
reasonable doubt, of the crime of Murder, under Article 248 of the Revised
Penal Code, as charged in the information, the Court hereby sentences him
to suffer the Penalty of DEATH; to indemnify the heirs of the victim the
amount of P10,000.00; to pay moral damages in the amount of P5,000.00
and another P5,000.00 as exemplary damages; and to pay the costs. 5
The accused now alleges:
I. The Court a quo erred in not giving credence to defendant-appellant's
defense of complete self-defense.
II. The Court a quo erred in finding defendant-appellant guilty beyond
reasonable doubt of the crime of Murder.
III. The Court a quo erred in finding defendant-appellant a recidivist. 6
Having invoked self-defense, the burden of proving it is on the accused. 7
Self-defense should be established by clear, satisfactory and convincing
evidence. 8
The evidence for the defense falls short of that requirement. The accused
claims that the victim was the unlawful aggressor in that prior to the
stabbing, while he was trying to retrieve the money won from the victim, the
latter kicked him on the chest causing to fall. That act, however, does not
constitute such unlawful aggression as would justify the killing of the victim.
It was not of such a nature that posed actual or imminent and real danger to
the accused's life. 9 Defense witness Antonio Vivero testified that upon
being kicked by the victim, the accused stood up and both protagonists
positioned themselves against each other ("nag pormahan") "as if they were
getting ready" before the accused stabbed the victim with a "matalas. " This
circumstance clearly shows that the accused and the victim were getting
ready for a fight and that the act of the accused was more out of retaliation
than of self-defense.
Besides, even granting that there was unlawful aggression on the victim's
part, it was not continuous. As prosecution witness Romeo Sato testified,
the victim fled to a "kubol" after he was initially wounded and was pursued
by the accused. 10
An act of aggression, when its author does not persist in his purpose, or
when he discontinues his attitude to the extent that the object of the attack
is no longer in peril does not constitute an aggression warranting self-
defense. 11
The accused's contention that he drew from his waist his "matalas" only
when the victim tried to get hold of his own weapon under his pillow, and
that the victim's weapon fell on the floor because the accused was able to
pull said victim 12, is not supported by the evidence. Defense witness,
Antonio Vivero, himself declared that the deceased was not armed during
the stabbing incident and that the victim's weapon was found under the
pillow by the Prisons authorities after the incident. 13
The primal requisite of unlawful aggression being absent, the arguments
regarding the other elements of self-defense serve no useful purpose.
But while the victim's act, of kicking the accused on the chest prior to the
stabbing does not constitute unlawful aggression for purposes of self-
defense, that act may nevertheless be considered as sufficient provocation
on the victim's part, and a mitigating circumstance that may be considered
in favor of the accused. 14
Piecing together the evidence of the prosecution and the defense, this is
what must have transpired: after the accused tried to snatch the money
back from the victim. the latter. then seated on his "tarima" kicked the
accused who was seated on the floor. Both stood up, the accused ready to
box the victim. The latter turned to get something from- under his
pillow.1äwphï1.ñët The accused stabbed the victim the first time. It was this
stabbing that prosecution witness Romeo Sato first saw and narrated. That
witness did not hear the quarrel, nor did he see the victim kick the accused.
The victim ran to a "kubol" pursued by the accused. From here on, the
versions of the prosecution and the defense tally. The victim went under his
"tarima". 'the accused dragged the victim from under and repeatedly
stabbed him until he could move no more.
The commission of the crime was attended by treachery. It may be that, at
the inception, treachery cannot be appreciated as the sudden assault made
by the accused, as testified to by prosecution witness Romeo Sato, was
merely an immediate retaliation for the act of kicking by the victim, thereby
placing the latter on his guard. 15 Yet, although absent initially, if the attack
is continued and the crime is consummated with treachery, it may still be
taken into consideration.
Even though an attack may be begun under conditions not exhibiting the
feature of alevosia yet if the assault is continued and the crime
consummated with alevosia,, such circumstance may be taken into
consideration as a qualifying factor in the offense of murder. 16
Treachery exists when the offender employs means, methods or forms
which tend directly and specially to insure the execution of the offense
without risk to the accused arising from the defense which the victim might
make. 17 The concurrence of the two conditions necessary for treachery to
exist are present in this case, namely: (1) the employment of means,
method or manner of execution which would insure the offender's safety
from any defensive or retaliatory act on the party of the offended party,
which means that no opportunity is given the latter to defend himself or to
retaliate; and (2) such means, method or manner of execution was
deliberately or consciously chosen. 18
According to the accused's own version, after he was kicked by the victim
and as the latter turned to retrieve something from under his pillow, the
accused drew his improvised deadly weapon from his waist, pulled the
victim, and stabbed the latter on the back. Then, according to prosecution
witness, Romeo Sato, the victim ran to the "kubol" where he was pursued
by the accused and two other inmates and as the victim lay prostrate on the
floor the accused and two other inmates kept on stabbing him without let
up.1äwphï1.ñët The risk to the accused arising from any defense that the
victim might have made had ceased the moment the victim fled and hid
under his "tarima " after being initially wounded. Yet, the accused went in
pursuit and continued attacking the victim to s death. According to the
accused himself, after he had stabbed the victim the latter sought refuge
under his "tarima"; but the accused pulled him from under and continued
assaulting him even as he was lying prostrate with half of his body under
the " tarima " ; The, victim was in no position to retaliate. He was unarmed
and completely defenseless. The state of helplessness of the victim is
evidenced by the 16 stab wounds he received. As the accused had
described in his sworn statement (Exhibit " A "):
Nagalit siya at sinipa niya ako sa dibdib dahil nasa itaas siya ng kanyang
tarima at ako naman ay nakaupo rin sa sahig. Tumayo ako upang siya ay
suntukin ngunit pumihit siya at may kinukuha sa ilalim nang kanyang unan.
Ang ginawa ko binunot ko ang dala kong patalim na naka sukbit sa aking
baywang at hinila ko siya nang kaliwa kong kamay upang huwag makuha
kung ano man ang kanyang kinukuha sa kanyang unan sabay saksak ko sa
kanyang likod. Siniko niya ako dahil sa hawak ko pa rin siya sa leeg kaya
magkasama kaming natumba. Pumasok siya sa ilalim nang kanyang tarima
at sinipa niya ako. Ang ginawa ko hinawakan ko siya sa paa at hinila ko
palabas. Nang makalabas na ang katawan niya hanggang itaas nang suso
sinaksak ko siyang sinaksak hanggang sa hindi na siya kumilos.
xxx xxx xxx 19 (Emphasis supplied).
The evidence, however, does not support a finding of the existence of
evident premeditation. There is nothing in the testimonies of either
prosecution or defense witnesses from which it may be concluded that the
accused had meditated and reflected upon his decision to kill the victim. On
the contrary, a quarrel had precipitated the stabbing episode.
Contrary to the stand of the Solicitor General's Office, the special
aggravating circumstance of quasi-recidivism, under Article 160 of the
Revised Penal Code, is attendant. The accused committed this new felony
while serving sentence for Robbery imposed upon him by maximum period
of the Penalty prescribed by law for this new offense should thus be
imposed.
The presence of the mitigating circumstance of sufficient provocation is of
no consequence as quasi-recidivism cannot be offset by any ordinary
mitigating circumstance. 20
The result is that the crime committed is Murder qualified by treachery, the
maximum of the Penalty for which is death. 21 For lack of the necessary
votes to impose it, however, the Penalty should be commuted to reclusion
perpetua.
WHEREFORE, the judgment appealed from is modified as to the Penalty
imposed and the accused, Ricarte Macariola, is hereby sentenced to suffer
reclusion perpetua. The indemnity awarded by the Trial Court of P10,000.00
is increased to P12,000.00. 22 The judgment is affirmed in all other
respects.
AQUINO, J.:, dissenting:
There is no doubt that at about nine-thirty in the morning of September 21, 1971,
Romeo de la Peña 32, a member of the Happy-Go-Lucky gang, was killed in his place
of confinement at Brigade 2D of the national penitentiary in Muntinlupa, Metro Manila,
Seven incised wounds and sixteen stab wounds were found on his body. Two stab
wounds, one in the abdomen, which injured his liver and lung, and another stab wound
on tie right side near his chest, which injured his right lung, were fatal (Exh. F-1 and F2
The examining doctor speculated that there was more than one assailant and that more
than one weapon was used. He noted that no "defense wound" was inflicted (11-15 tsn
May 31,1974).
The question is whether Ricarte Macariola, 26, a prisoner serving sentence for robbery,
who assaulted De la Peña, acted in self-defense, as claimed in his confession and
testimony, or whether he is guilty of murder. The prosecution's evidence reveals two
contradictory versions as to the killing.
One version is found in Macariola's extrajudicial confession (Exh. A), which seems to
show that he acted in self-defense. Another version is found in the statement and
testimony of Romeo Sato, a prisoner, who declared that Macariola and other prisoners
feloniously killed De la Peña.
Did Macariola act in self-defense or was he merely provoked to kill De la Peña Was De
la Peña killed by Macariola and other prisoners without any justification?
The prison investigators did not take the trouble of making factual findings and
ascertaining what really happened. This case and similar convict-against-convict killings
show that it Is sometimes difficult to ascertain the truth in the New Bilibid Prison in spite
of the fact that there are witnesses to the killing and it is not as mysterious as a killing in
an Agatha Christie novel.
Macariola's version that he acted in self-defense.— In his confession he said that he
killed De la Peña under the following circumstances:
8. T.—Bakit mo siya sinaksak? — S. — Nag-away po kami. Mga tatlong linggo na ang
nakaraan naliligo ako nang kunin niyang walang paalam ang sabon ko. Nang bawiin ko
sa kanya sinabi niyang parang hindi raw ako Bisaya.
Kagabi nagsugal kami ng Hongkiang. Natalo ko siya ng isang kumot at nabawi ko ang
pantalon kong natalo sa kanya noong isang linggo. Nang kinukuha ko na ang sabi niya
bukas niya ibibigay.
Kaninang umaga pumunta ako sa kanya upang kunin ang pantalon at kumot. Hindi niya
ibinigay sapagkat wala na raw sa kanya ang kumot at ang pantalon ay naibinta niya sa
iba Pinilit ko siyang kahit na hindi niya ibigay ang kumot ang pantalon man na sana.
Nagalit siya at sinipa niya ako sa dibdib dahil nasa itaas siya ng kanyang tarima at ako
naman ay nakaupo rin sa sahig. Tumayo ako upang siya ay suntukin ngunit pumihit
siya at may kinukuha sa ilalim nang kanyang unan.
Ang ginawa ko binunot ko ang dala kong patalim na naka sukbit sa aking baywang at
hinila ko siya nang kaliwa kong kamay upang huwag makuha kung ano man ang
kanyang kinukuha sa kanyang unan sabay saksak ko sa kanyang likod. Siniko niya ako
dahil sa hawak ko pa rin siya sa leeg kaya magkasama kaming natumba. Pumasok
siya sa ilalim nang kanyang tarima at sinipa niya ako.
Ang ginawa ko hinawakan ko siya sa paa at hinila kong palabas. Nang makalabas na
ang katawan niya hanggang itaas nang suso sinaksak ko siya ng sinaksak hanggang
sa hindi na siya kumilos. (Exh. A.)
So, according to Macariola, he had a grudge against De la Peña, his companion in
Brigade 2D because three weeks before the killing, De la Peña got Macariola's toilet
soap. The night before the killing, Macariola and De la Peña were engaged in a
gambling game called Hongkiang. Macariola beat, De la Peña in that game. He
(Macariola) won a blanket and was able to redeem from De la Peña his pants which the
latter won from Macariola the week before (No. 8, Exh. A).
According to the confession, on that fateful morning of September 21, 1971, Macariola
demanded from De la Peña the blanket and pants but the latter said that he did not
have the blanket and he had sold Macariola's pants. Because Macariola nagged De la
Peña about the blanket and pants, the latter, who was sitting on his wooden bed
(tarima), allegedly got annoyed and he kicked in the chest Macariola who was sitting on
the floor.
Macariola declared in his confession that after he was kicked, he stood up in order to
box De la Peña but at that juncture De la Peña moved sidewise to get something under
his pillow. Macariola with his left hand pulled De la Peñas neck and with his right hand
stabbed De la Peña with a bladed weapon (matalas).
De la Peña elbowed Macariola. The two fell on the floor. De la Peña went under his bed
(tarima) and again kicked Macariola who then pulled De la Peñas legs and when the
latter's body up to the nipples was out of the tarima Macariola repeatedly stabbed De la
Peña until he stopped moving ("hanggang hindi na siya kumikilos ").
He surrendered to Alberto Supetran, a prison official and delivered to the latter his
bladed weapon Exh. B), which when presented at the trial was wrapped with two pieces
of paper. On one piece of paper were written the words: "Ito ang ginamit ko sa
pagsaksak kay Romeo de la Peña September 21, 1971 (15-16 tsn Sept. 30, 1974).
Macariola's version finds some corroboration in the statement of Fernando Gomez, 37,
another prisoner, the "mayor" or "bosyo" of Brigade 2D He said that in the morning of
September 21, 1971, when he heard someone shouting "papatayin ako, papatayin
ako", he entered the cell (silda) No. 1 and he saw Macariola holding a bloody weapon
and bending over the prostrate body of De la Peña
Gomez reported the incident to Alfredo Manzano who then opened the cell. When
Supetran asked who stabbed De la Peña Macariola admitted that he was the assailant
(Exh. C). Gomez said that only Macariola assaulted De la Peña.
At the trial, Macariola (who reached Grade four) confirmed his plea of self- defense but
testified on details not found in his confession. His testimony was not coherent. His
recital of how De la Peña was killed was fragmentary. It contained discrepancies and
contradictions. In fact, it weakened his plea of self-defense, Evidently, he testified as a
coached witness. His testimony should be disregarded.
Even the testimony of the other defense witness, Antonio Vivero, a prisoner, impaired
Macariola's claim of self-defense. Vivero categorically declared that he did not know
and he could not tell whether Macariola acted in self-defense (13 tsn October 14,
1974).
In my opinion, on the basis of Macariola's confession alone, which was presented by
the prosecution as its Exhibit A, he should be acquitted. The prosecution is bound by
that confession which it offered as evidence.
Prosecution witness Sato's version that Macariola and other prisoners killed De la Peña
without justification. —It should be noted that the Solicitor General in his brief ignored
Macariola's confession and relied on the testimony of Romeo Sato, a prisoner who
testified for the prosecution, and on the aforementioned statement (Exh. C) of Gomez,
the "mayor" or "bosyo" of Brigade 2-D. On the other hand, the trial judge did not
mention at all the declarations of Sato and Gomez's statement.
Sato in his statement declared that he saw Macariola suddenly stabbing De la Peña
and that the latter ran and fled to his tarima pursued by Macariola (No. 11, Exh. G).
On the witness stand , Sato declared that Macariola suddenly stabbed De la Peña
when the latter was standing and that other prisoners, including Nelson Binas and one
called Bugok, stabbed De la Peña. Sato could not mention the names of the other
assailants because his situation in prison was "very difficult" (6-7 tsn September 30,
1974).
According to Sato, after De la Peña was stabbed, De la Peña ran and took refuge
inside a kubol, a tarima shielded by a blanket, empty flour sacks and clothes serving as
curtains. He was pursued by Macariola, Binas and Bugok.
The conflicting versions given in the prosecution's evidence engender doubt as to
Macariola's guilt. His confession shows that be acted in self-defense while Sato's
statement and testimony reveal that Macariola and other prisoners ganged up against
De la Peña.
The circumstance that the prosecution failed to establish beyond shadow of doubt the
manner in which De la Peña was killed justifies the dismissal of the murder charge
against Macariola.
Alternatively, Macariola is only guilty of homicide.— If Macariola should be held
criminally liable, then he should be adjudged guilty simply of homicide. The killing
cannot be categorized as murder because of the absence of any qualifying
circumstance.
There was no treachery because the assault was made face-to-face on the spur of the
moment. (On cross-examination, the fiscal consulted defense witness Vivero as to the
difference between murder and homicide. Vivero replied that the killing is homicide if
"you did not plan it" and it is murder if "you planned it "you planned it") (16 tsn October
14, 1974).
It is elementary that treachery in order to be regarded as qualifying should exist at the
inception of the attack. A deliberate and unexpected initial attack is the distinguishing
characteristic of alevosia In this case, there was no such surprise and sudden attack.
De la Peña should have known that after kicking Macariola, the latter would retaliate
and injure De la Peña.
The retaliatory injury inflicted by Macariola was certainly not treacherous in the legal
sense. Since De la Peña commenced hostilities by kicking Macariola on the chest, that
circumstance precludes the appreciation of alevosia as a qualifying circumstance in the
killing of De la Peña by Macariola.
The two extenuating circumstances of provocation and voluntary surrender to the
authorities should be appreciated in favor of Macariola. On the other hand, the special
aggravating circumstance of quasi-recidivism, which was alleged in the information and
admitted by Macariola, would raise the Penalty for homicide to the maximum period.
The trial court in mentioning recidivism was referring to quasi-recidivism as shown by
the fact that it cited article 160 of the Revised Penal Code on quasi-recidivism and not
to recidivism in article 14 of the said Code.
The presence of two mitigating circumstances cannot lower the Penalty by one degree
since the rule in article 64(5) regarding the lowering of the Penalty by one degree when
two or more mitigating circumstances are present contemplate a situation where "no
aggravating circumstances are present". As already stated, Macariola is a quasi-
recidivist.
The maximum period of the imposable Penalty should be taken from the minimum
period of reclusion temporal maximum. For purposes of the Indeterminate Sentence
Law, the Penalty next lower in degree should be taken from reclusion temporal medium
(People vs. Gayrama 60 Phil. 796) or from prision mayor maximum if the rule in People
vs. Gonzalez, 73 Phil. 549, should be followed. An indeterminate Penalty of twelve
years of prision mayor as minimum to eighteen years of reclusion temporal as
maximum would be proper.
In view of the foregoing, I dissent from the conclusions found in the opinion prepared by
Justice Melencio-Herrera.
G.R. No. 196434 : October 24, 2012
PEOPLE OF THE PHILIPPINES, Petitioner, v. CHITO NAZARENO,
Respondent.
This case is about the evidence required for proving conspiracy and
the qualifying circumstance of abuse or superior strength in a murder
case.
The Office of the City Prosecutor of Manila charged the accused Chito
Nazareno and Fernando Saliendra, a barangay tanod, of murder
before the Regional Trial Cow1 (RTC) of that city in Criminal Case 94-
133117.1ςrνll
Since Saliendra remained at-large, only Nazareno was tried. The
prosecution presented Roy Magallanes, Roger Francisco, SPO1
Teodoro Sinag, SPO1 Julian Bustamante, Dr. Antonio E. Rebosa, and
Jovelo Valdez.2ςrνll
On November 10, 1993 David Valdez (David), Magallanes, and
Francisco attended the wake of a friend. While there, they drank liquor
with accused Nazareno and Saliendra.3ςrνll A heated argument
ensued between Magallanes and Nazareno but their companions
pacified them.4ςrνll
On the following day, November 11, David, Magallanes, and Francisco
returned to the wake. Accused Nazareno and Saliendra also arrived
and told the three not to mind the previous nights altercation. At around
9:30 in the evening, while David, Francisco, and their friend, Aida Unos
were walking on the street, Nazareno and Saliendra blocked their
path.5ςrνll Nazareno boxed Francisco who fled but Saliendra went
after him with a balisong.6ςrνll Francisco, who succeeded in hiding
saw Nazareno hit David on the body with a stick while Saliendra struck
Davids head with a stone.7ςrνll David ran towards a gasoline station
but Nazareno and Saliendra, aided by some barangay tanods, caught
up with him.8ςrνll As David fell, the barangay tanods took over the
assault.9ςrνll This took place as Magallanes stood about five meters
across the highway unable to help his friend.10ςrνll Afterwards, Unos
brought David to the hospital.11ςrνll Dr. Rebosa performed surgery
on Davids head but he died on November 14, 1993 of massive intra-
cranial hemorrhage secondary to depressed fracture on his right
temporal bone12ςrνll in a form of blunt trauma.13ςrνll
On November 12, 1993 after Davids relatives reported the killing to the
police, SPO1 Sinag investigated the case and took Unoss
statement.14ςrνll On November 15, accompanied by SPO1
Bustamante and two other police officers, SPO1 Sinag went to the
UST Hospital and took a look at Davids body, noting the wounds on his
forehead.15ςrνll Subsequently, the officers went to the crime scene
but found no witness there.
In his defense, accused Nazareno claimed that he left his house at
around 9:30 in the evening on November 11, 1993 to buy milk. While
on a street near his house, he noted a commotion taking place nearby.
He then bumped into Saliendra. Nazareno proceeded home and went
to bed.16ςrνll His wife Isabel supported his testimony, claiming that
she asked her husband on that night to buy milk for their children.
When Nazareno returned home, he informed her of the commotion
outside and how someone bumped into him.17ςrνll
Unos testified that she saw Saliendra chasing David as the latter hang
on the rear of a running jeepney. She claimed that she did not see
Nazareno around the place.18ςrνll
On March 9, 2004, the RTC found Nazareno guilty beyond reasonable
doubt of murder, qualified by abuse of superior strength and
aggravated by treachery. The RTC sentenced Nazareno to suffer the
penalty of reclusion perpetua and ordered him to pay P141,670.25 as
actual damages, P50,000.00 as civil indemnity, and P50,000.00 as
moral damages, without any subsidiary imprisonment.19ςrνll
On appeal, the Court of Appeals (CA) affirmed with modification the
decision of the RTC. 20ςrνll Finding no treachery, it convicted
Nazareno of murder qualified by abuse of superior strength, hence, this
appeal.
The issues in this case are:
1. Whether or not Nazareno took part in a conspiracy to kill David;
2. Whether or not a qualifying circumstance of abuse of superior
strength attended the killing of David.
The Courts Ruling
One. As a rule, the factual findings of the trial court are, except for
compelling or exceptional reasons, conclusive to the Court especially
when fully supported by evidence and affirmed by the CA.21ςrνll
Here, no sound reason exists to alter the findings of the RTC and the
CA with respect to the facts they deemed to have been proved and the
credibility of the witnesses.22ςrνll
There is conspiracy when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.23ςrνll
Actions indicating close personal association and shared sentiment
among the accused can prove its presence.24ςrνll Proof that the
perpetrators met beforehand and decided to commit the crime is not
necessary as long as their acts manifest a common design and
oneness of purpose.
Here, both the RTC and the CA found conspiracy in attendance.
Magallanes and Francisco testified that accused Nazareno and
Saliendra purposely waited for David and his companions out on the
street as they came out of the wake. The witnesses testified that each
of Nazareno and Saliendra took concerted steps aimed at killing or
causing serious harm to David. Nazareno repeatedly struck David on
the area of his neck with a stick; Saliendra hurled a fist-sized stone on
his head. Even when David tried to flee, they still chased him and
together with other barangay tanods, beat him to unconsciousness.
Although Magallanes testified that Saliendra and Nazareno acted
"quite differently" from each other before the attack,25ςrνll their
actions before and during the incident reveal a common
purpose.26ςrνll Saliendra appears to have delivered the fatal blow but
Nazareno cannot escape liability because, in conspiracy, the act of one
is the act of all.27ςrνll
Magallanes and Francisco saw the commission of the offense from
different angles but the core of their stories remains cohesive. The
result of the autopsy of Davids body corroborates such stories. True
their accounts have certain inconsistencies but these do not weaken
their credibility since they concurred on material points.28ςrνll Rather,
those small inconsistencies strengthened their credibility as they
evince spontaneity and candor.29ςrνll Completely uniform and
identical statements manifest rehearsed testimonies.30ςrνll
Taken against these considerations, the Court cannot give credence to
Nazarenos defense of alibi. To be admissible, not only must he be at a different
place during the commission of the crime, his presence at the crime scene must
also be physically impossible.31ςrνll Here, Nazareno even admits that he
encountered Saliendra, the accused who went into hiding, on the street and
noticed the commotion.32ςrνll
Two. The CA held that the killing of David should be characterized as one of
murder qualified by abuse of superior strength. The Court finds no fault in this
ruling. There is abuse of superior strength when the aggressors purposely use
excessive force rendering the victim unable to defend himself.33ςrνll The
notorious inequality of forces creates an unfair advantage for the aggressor.
Here, Nazareno and Saliendra evidently armed themselves beforehand,
Nazareno with a stick and Saliendra with a heavy stone. David was unarmed.
The two chased him even as he fled from them. And when they caught up with
him, aided by some unnamed barangay tanods, Nazareno and Saliendra
exploited their superior advantage and knocked the defenseless David
unconscious. He evidently died from head fracture caused by one of the blows on
his head.
On the matter of penalty, the Court affirms the imposition of reclusion
perpetua.34ςrνll The Court retains the amount of P141,670.25 as actual
damages.35ςrνll But, consistent with current jurisprudence, 36ςrνll the Court is
awarding P75,000.00 as civil indemnity, P75,000.00 as moral damages, and
P30,000.00 as exemplary damages.ςηαοblενιrυαllαωlιbrαr
WHEREFORE, the Court AFFIRMS the assailed Decision of the Court of
Appeals in CA-G.R. CR-H.C. 01308 dated December 17, 2010, that found Chito
Nazareno guilty beyond reasonable doubt of the crime of murder qualified by
abuse of superior strength in Criminal Case 94-133117.
The Court also AFFIRMS the penalty of reclusion perpetua imposed on accused
Nazareno but MODIFIES the award of damages to P141,670.25 as actual
damages, P75,000.00 as civil indemnity, P75,000.00 as moral damages, and
P30,000.00 as exemplary damages, and to pay the costs.ςrαlα
G.R. No. 190912, January 12, 2015
GARY FANTASTICO AND ROLANDO VILLANUEVA,
Petitioners, v. ELPIDIO MALICSE, SR. AND PEOPLE OF
THE PHILIPPINES, Respondent.
For this Court's consideration is the Petition for Review on
Certiorari1 under Rule 45 of the 1997 Rules of Civil Procedure,
dated January 20, 2010 , of petitioners Gary Fantastico and
Rolando Villanueva assailing the Decision2 dated August 31,
2007 and Resolution3 dated January 7, 2010 of the Court of
Appeals (CA) in CA-G. R. CR. No. 31719, affirming the
Decision4 dated March 31, 2008 of the Regional Trial Court,
Branch 11, Manila, in Criminal Case No. 93-127049, finding
petitioners guilty of attempted murder.
The following are the antecedents:
On the afternoon of June 27, 1993, Elpidio Malicse, Sr.
(Elpidio) was outside the house of his sister Isabelita Iguiron
(Isabelita) in Pandacan, Manila when all of a sudden, he heard
Isabelita's son, Winston, throwing invectives at him. Thus,
Elpidio confronted Isabelita but she also cursed him, which
prompted the former to slap the latter. On that occasion,
Elpidio was under the influence of alcohol.
The Barangay Chairman heard what transpired and went to the
place where the commotion was taking place in order to pacify
those who were involved. Elpidio was eventually persuaded to
go home where he drank some coffee. Thereafter, Elpidio went
back to the house of Isabelita to offer reconciliation. On his way
there, he passed by the house of Kagawad Andy Antonio and
requested the latter to accompany him, but was instead told to
go back home, leaving Elpidio to proceed alone.
Upon reaching Isabelita's house, Elpidio saw the former's son,
Titus Iguiron (Titus) and her son-in-law Gary Fantastico (Gary)
and asked the two where he can find their parents. Titus and
Gary responded, “putang ina mo, and kulit mo, lumayas ka,
punyeta ka.”
In his anger with the response of Titus and Gary, Elpidio kicked
the door open and saw Isabelita's elder son, Salvador Iguiron
(Salvador) behind the door holding a rattan stick or arnis.
Salvador hit Elpidio on the right side of his head that forced the
latter to bow his head but Salvador delivered a second blow
that hit Elpidio on the right eyebrow. Salvador attempted to hit
Elpidio for the third time but the latter got hold of the rattan
stick and the two wrestled on the floor and grappled for the
possession of the same rattan stick. Then Titus ran towards
the two and sprayed something on Elpidio's face. Not being
able to free himself from the clutches of Salvador and to
extricate himself, Elpidio bit Salvador's head.
Gary hit Elpidio on the right side of his head with a tomahawk
axe when the latter was about to go out of the house. Elpidio
tried to defend himself but was unable to take the tomahawk
axe from Gary. Elpidio walked away from Titus but Gary, still
armed with the tomahawk axe and Salvador, with his arnis,
including Titus, chased him.
Roland (Rolly) Villanueva, without any warning, hit Elpidio on
the back of his head with a lead pipe which caused the latter to
fall on the ground. Elpidio begged his assailants to stop, but to
no avail. Salvador hit him countless times on his thighs, legs
and knees using the rattan stick. While he was simultaneously
being beaten up by Salvador, Titus, Gary, Rolly, Nestor,
Eugene and Tommy, he tried to cover his face with his arm.
Gary hit him with the tomahawk axe on his right leg, between
the knees and the ankle of his leg, which caused the fracture
on his legs and knees. Rolly hit Elpidio's head with a lead pipe,
while Tommy hit him with a piece of wood on the back of his
shoulder.
Thereafter, a certain “Mang Gil” tried to break them off but
Titus and Gary shouted at him: “Huwag makialam, away ng
mag-anak ito” and the two continued to maul Elpidio. The
people who witnessed the incident shouted “maawa na kayo”
but they only stopped battering him when a bystander fainted
because of the incident. Elpidio then pretended to be dead. It
was then that concerned neighbors approached him and
rushed him to the emergency room of the Philippine General
Hospital (PGH).
Thus, a case for Attempted Murder under Article 248, in
relation to Article 6 of the Revised Penal Code, was filed
against Salvador Iguiron, Titus Malicse Iguiron, Saligan
Malicse Iguiron, Tommy Ballesteros, Nestor Ballesteros,
Eugene Surigao and petitioners Gary Fantastico and Rolando
Villanueva. The Information reads:ChanRoblesVirtualawlibrary
That on or about June 27, 1993, in the City of Manila,
Philippines, the said accused conspiring and confederating
together and helping one another, did then and there willfully,
unlawfully and feloniously, with intent to kill and with treachery
and taking advantage of superior strength, commence the
commission of the crime of murder directly by overt acts, to wit:
by then and there hitting the head of Elpidio Malicse, Sr. y de
Leon with a piece of rattan, axe, pipe and a piece of wood and
mauling him, but the said accused did not perform all the acts
of execution which should have produced the crime of murder,
as a consequence, by reason of causes other than their own
spontaneous desistance, that is, the injuries inflicted upon
Elpidio Malicse, Sr. y de Leon are not necessarily mortal.
They all pleaded “not guilty.” The defense, during trial,
presented the following version of the events that transpired:
Around 4:30 p.m. of June 27, 1993, Salvador was at the
second floor of their house when he heard his tenth son
Winston crying while the latter was being castigated by Elpidio.
He went down and told Elpidio to come back the next day to
settle. His wife Isabelita called the Barangay Chairman two
blocks away. Barangay Chairman Joseph Ramos and Elpidio's
wife and daughter went to the house and Elpidio was given
warm water, but he showered his daughter and Winston with it.
Elpidio was brought to his house and the former told the
Barangay Chairman that it was a family problem. Elpidio went
back to the house of Salvador where Titus was sitting on the
sofa. Elpidio asked Titus to open the door until the former
kicked the door open. Titus escaped through the open door
and Salvador went out of the house because another child was
on the roof, afraid that the said child might fall. Thereafter,
Elpidio went to the street.
According to petitioner Gary Fantastico, he was inside their
house with his wife and Titus when the incident occurred. He
and his wife ran upstairs, while Titus went out when Elpidio hit
the door. Elpidio had a reputation for hurting people when
drunk and Gary learned that Elpidio was brought to the hospital
because he was mauled by the people.
During trial, one of the accused, Salvador Iguiron died.
Eventually, the trial court, in a Decision dated March 31, 2008,
acquitted Titus Iguiron, Saligan Iguiron and Tommy Ballesteros
but found Gary Fantastico and Rolando Villanueva guilty
beyond reasonable doubt for Attempted Murder. The
dispositive portion of the said decision
reads:ChanRoblesVirtualawlibrary
WHEREFORE, the foregoing premises considered, the Court
finds Gary Fantastico and Rolando Villanueva GUILTY of the
crime of attempted murder and sentences them to an
indeterminate penalty of imprisonment of eight (8) years and
one (1) day as minimum, to ten (10) years as maximum. They
are also ordered to pay the actual damages of P17,300.00 and
moral damages of P10,000.00.
Accused Titus Iguiron, Saligan Iguiron and Tommy Ballesteros
ACQUITTED.
SO ORDERED.
After their motion for reconsideration was denied, petitioners
appealed the case to the CA, but the latter court affirmed the
decision of the RTC and disposed the case as
follows:ChanRoblesVirtualawlibrary
WHEREFORE, finding no reversible error in the decision
appealed from, we hereby AFFIRM the same and DISMISS the
instant appeal.
SO ORDERED.
A motion for reconsideration was filed, but it was denied by the
same court.
Hence, the present petition.
Petitioners stated the following
arguments:ChanRoblesVirtualawlibrary
THE CONCLUSIONS DRAWN BY THE COURT OF APPEALS
AND THE TRIAL COURT FROM THE FACTS OF THE CASE
ARE INCORRECT.
THE INFORMATION ITSELF IN THIS CASE DOES NOT
ALLEGE ALL THE ELEMENTS AND THE NECESSARY
INGREDIENTS OF THE SPECIFIC CRIME OF ATTEMPTED
MURDER.
NOT ALL OF THE ELEMENTS OF ATTEMPTED MURDER
ARE PRESENT IN THIS CASE.
THERE IS NO TREACHERY OR ANY OTHER QUALIFYING
CIRCUMSTANCE TO SPEAK OF IN THIS CASE.
THE LOWER COURT AND THE COURT OF APPEALS
FAILED TO CONSIDER THE PRESENCE OF MITIGATING
CIRCUMSTANCES.
THERE ARE MANIFEST MISTAKES IN THE FINDINGS OF
FACTS BY THE COURT OF APPEALS AND THE TRIAL
COURT.
THE CONVICTION OF THE PETITIONERS WAS BASED ON
THE WEAKNESS OF THE DEFENSE EVIDENCE, NOT ON
THE STRENGTH OF THE PROSECUTION EVIDENCE.
THE TESTIMONY OF THE RESPONDENT THAT IT WAS
THE PETITIONERS WHO ATTACKED HIM IS INDEED
UNCORROBORATED AND THUS SELF-SERVING.
CLEARLY, THERE ARE SO MUCH REVERSIBLE ERRORS
IN THE DECISION OF THE COURT OF APPEALS AND THE
LOWER COURT THAT INJURIOUSLY AFFECTED THE
SUBSTANTIAL RIGHTS OF THE PETITIONERS AND THESE
SHOULD BE CORRECTED BY THIS HONORABLE COURT.
At the outset, it bears stressing that under the Rules of Court,
an appeal by certiorari to this Court should only raise questions
of law distinctly set forth in the
petition.5chanRoblesvirtualLawlibrary
In the present case, the issues and arguments presented by
the petitioners involve questions of facts. Therefore, the
present petition is at once dismissible for its failure to comply
with the requirement of Rule 45 of the Rules of Court, that the
petition should only raise questions of law.
The distinction between a “question of law” and a “question of
fact” is settled. There is a “question of law” when the doubt or
difference arises as to what the law is on a certain state of
facts, and which does not call for an examination of the
probative value of the evidence presented by the parties-
litigants. On the other hand, there is a “question of fact” when
the doubt or controversy arises as to the truth or falsity of the
alleged facts. Simply put, when there is no dispute as to fact,
the question of whether or not the conclusion drawn therefrom
is correct, is a question of law.6chanRoblesvirtualLawlibrary
At any rate, the arguments of herein petitioners deserve scant
consideration.
It is the contention of the petitioners that the Information filed
against them was defective because it did not state all the
elements of the crime charged. However, a close reading of
the Information would show the contrary. The Information partly
reads:ChanRoblesVirtualawlibrary
x x x but the said accused did not perform all the acts of the
execution which should have produced the crime of murder, as
a consequence, by reason of causes other than their own
spontaneous desistance, that is, the injuries inflicted upon
Elpidio Malicse, Sr. y de Leon are not necessarily mortal.
From the above-quoted portion of the Information, it is clear
that all the elements of the crime of attempted murder has
been included.
The last paragraph of Article 6 of the Revised Penal Code
defines an attempt to commit a felony,
thus:ChanRoblesVirtualawlibrary
There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his own
spontaneous desistance.7chanRoblesvirtualLawlibrary
The essential elements of an attempted felony are as follows:
The offender commences the commission of the felony directly
by overt acts;
He does not perform all the acts of execution which should
produce the felony;
The offender's act be not stopped by his own spontaneous
desistance;
The non-performance of all acts of execution was due to cause
or accident other than his spontaneous desistance.8
The first requisite of an attempted felony consists of two (2)
elements, namely:ChanRoblesVirtualawlibrary
(1) That there be external acts;
(2) Such external acts have direct connection with the crime
intended to be committed.9
The Court in People v. Lizada10 elaborated on the concept of
an overt or external act, thus:ChanRoblesVirtualawlibrary
An overt or external act is defined as some physical activity or
deed, indicating the intention to commit a particular crime,
more than a mere planning or preparation, which if carried out
to its complete termination following its natural course, without
being frustrated by external obstacles nor by the spontaneous
desistance of the perpetrator, will logically and necessarily
ripen into a concrete offense. The raison d'etre for the law
requiring a direct overt act is that, in a majority of cases, the
conduct of the accused consisting merely of acts of preparation
has never ceased to be equivocal; and this is necessarily so,
irrespective of his declared intent. It is that quality of being
equivocal that must be lacking before the act becomes one
which may be said to be a commencement of the commission
of the crime, or an overt act or before any fragment of the
crime itself has been committed, and this is so for the reason
that so long as the equivocal quality remains, no one can say
with certainty what the intent of the accused is. It is necessary
that the overt act should have been the ultimate step towards
the consummation of the design. It is sufficient if it was the
"first or some subsequent step in a direct movement towards
the commission of the offense after the preparations are
made." The act done need not constitute the last proximate
one for completion. It is necessary, however, that the attempt
must have a causal relation to the intended crime. In the words
of Viada, the overt acts must have an immediate and
necessary relation to the offense.11
Petitioners question the inclusion of the phrase “not necessarily
mortal” in the allegations in the Information. According to them,
the inclusion of that phrase means that there is an absence of
an intent to kill on their part. Intent to kill is a state of mind that
the courts can discern only through external manifestations,
i.e., acts and conduct of the accused at the time of the assault
and immediately thereafter. In Rivera v. People,12 this Court
considered the following factors to determine the presence of
an intent to kill: (1) the means used by the malefactors; (2) the
nature, location, and number of wounds sustained by the
victim; (3) the conduct of the malefactors before, at the time, or
immediately after the killing of the victim; and (4) the
circumstances under which the crime was committed and the
motives of the accused. This Court also considers motive and
the words uttered by the offender at the time he inflicted
injuries on the victim as additional determinative factors.13 All
of these, were proven during the trial. Needless to say, with or
without the phrase, what is important is that all the elements of
attempted murder are still alleged in the Information. Section 6,
Rule 110 of the Rules on Criminal Procedure
states:ChanRoblesVirtualawlibrary
Sec. 6. Sufficiency of complaint or information. – A complaint
or information is sufficient if it states the name of the accused;
the designation of the offense by the statute; the acts or
omissions complained of as constituting the offense; the name
of the offended party; the approximate time of the commission
of the offense; and the place wherein the offense was
committed.
In any case, it is now too late for petitioners to assail the
sufficiency of the Information on the ground that the elements
of the crime of attempted murder are lacking. Section 9, Rule
117 of the Rules of Court provides:ChanRoblesVirtualawlibrary
SEC. 9. Failure to move to quash or to allege any ground
therefor.- The failure of the accused to assert any ground of a
motion to quash before he pleads to the complaint or
information, either because he did not file a motion to quash or
failed to allege the same in said motion, shall be deemed a
waiver of any objections except those based on the grounds
provided for in paragraphs (a), (b), (g), and (i) of section 3 of
this Rule.
Anent the probative value and weight given to the testimony of
Elpidio by the CA and the RTC, the same is not ridden with any
error. In People v. Alvarado,14 we held that greater weight is
given to the positive identification of the accused by the
prosecution witness than the accused's denial and explanation
concerning the commission of the crime. This is so inasmuch
as mere denials are self-serving evidence that cannot obtain
evidentiary weight greater than the declaration of credible
witnesses who testified on affirmative
matters.15chanRoblesvirtualLawlibrary
It is clear from the records that Elpidio was able to make a
positive identification of the petitioners as the assailants,
thus:ChanRoblesVirtualawlibrary
Q. Then what happened next Mr. Witness?
A. When I was able to free myself from Salvador Iguiron, I got
out of the door of the house, then, I saw Gary was hiding in the
kitchen door holding an axe. Tonahawk with blade of ax was
dull and had a handle of one foot, with the diameter of one
inch.
Q. Why did you know that the ax blade of the tom was dull?
(sic)
A. I also used that.
Q. Where do you usually keep that in the house of Iguiron?
A. In the kitchen.
Q. How far is that kitchen from where Gary emerged from?
A. He is right in the kitchen.
Q. Then what happened?
A. When I was able to free myself from Salvador, Gary Iguiron
was hiding in the kitchen door and holding a tomhack (sic)
whose edge is dull and he hit me on my right side and my head
and I got injury (sic) and blood profusely oozing, I want to get
hold of the tomhawk (sic).
Q. Were you able to get of the tomhawk (sic) from Gary?
A. No sir.16chanRoblesvirtualLawlibrary
Q. You said while on that street somebody hit you from behind,
who was that?
A. Rolly Villanueva.
Q. Why do you say that it was Rolly Villanueva, considering
that it was hit from behind?
A. Because they were about 5 of them at the main gate of the
compound.
Q. Who are they?
A. Rolando Villanueva, Nestor Ballesteros, Tommy Ballesteros,
Eugene Surigao, Saligan Iguiron.
Q. You said you were hit by Rolando from behind, do you have
occasion to see first before you were hit?
A. When I was hit I fell down and I was able to see who hit
(sic0, I saw him.
Q. When you fell down, you were able to realize it was Rolando
Villanueva who hit you, you mean you realized what he used in
hitting you from behind?
A. It was a pipe. 1/2 inch thick, 24 inches in length.
Q. You said you fell down because of the blow of Rolando
Villanueva and you saw him holding that pipe, how was he
holding the pipe when you saw him?
A. When I fell down he was about trying to hit me again.17
In connection therewith, one must not forget the well
entrenched rule that findings of facts of the trial court, its
calibration of the testimonial evidence of the parties as well as
its conclusion on its findings, are accorded high respect if not
conclusive effect. This is because of the unique advantage of
the trial court to observe, at close range, the conduct,
demeanor and deportment of the witness as they testify.18 The
rule finds an even more stringent application where the said
findings are sustained by the Court of
Appeals.19chanRoblesvirtualLawlibrary
It is also of utmost significance that the testimony of Elpidio is
corroborated by the medico-legal findings as testified by Dr.
Edgar Michael Eufemio, PGH Chief Resident Doctor of the
Department of Orthopedics. He testified as to the
following:ChanRoblesVirtualawlibrary
Q. And as head of that office, Mr. Witness, why are you here
today?
A. Actually, I was called upon by the complainant to rectify
regarding, the findings supposedly seen when he was admitted
and when I saw him in one of the sessions of our Out Patient
Department.
Q. When was this follow-up session at your department did you
see this complainant?
A. Based on the chart, I think it was four (4) months post injury
when I first saw the patient.
Q. Why does he has (sic) to make a follow up in your
department?
A. Based on this chart, he sustained bilateral leg fractures
which necessitated casting. Normally, casting would take
around three (3) months only but since the nature of his
fracture was relatively unstable, I think it necessitated prolong
immobilization in a case.
PROSECUTOR TEVES:
Q. Did you personally attend on his needs on that date when you saw
him?
A. Yes, ma'am.
Q. And what could have been the cause of these injuries he sustained?
A. I think one of his leg has close fracture, meaning, probably it was
caused by a blunt injury rather than a hacking injury, one on the left
side, with an open wound which was very much compatible with a hack
at the leg area.20
Petitioners also claim that the prosecution was not able to prove the
presence of treachery or any other qualifying circumstance.
In this particular case, there was no treachery. There is treachery when
the offender commits any of the crimes against persons, employing
means, methods, or forms in the execution, which tend directly and
specially to insure its execution, without risk to the offender arising
from the defense which the offended party might make. The essence of
treachery is that the attack comes without a warning and in a swift,
deliberate, and unexpected manner, affording the hapless, unarmed,
and unsuspecting victim no chance to resist or escape. For treachery
to be considered, two elements must concur: (1) the employment of
means of execution that gives the persons attacked no opportunity to
defend themselves or retaliate; and (2) the means of execution were
deliberately or consciously adopted.21 From the facts proven by the
prosecution, the incident was spontaneous, thus, the second element
of treachery is wanting. The incident, which happened at the spur of
the moment, negates the possibility that the petitioners consciously
adopted means to execute the crime committed. There is no treachery
where the attack was not preconceived and deliberately adopted but
was just triggered by the sudden infuriation on the part of the accused
because of the provocative act of the
victim.22chanRoblesvirtualLawlibrary
The RTC, however, was correct in appreciating the qualifying
circumstance of abuse of superior strength,
thus:ChanRoblesVirtualawlibrary
In the case at bar, the prosecution was able to establish that Salvador
Iguiron hit Elpidio Malicsi, Sr. twice on the head as he was entered
(sic) the house of the former. Gary Fantastico hit the victim on the right
side of the head with an axe or tomahawk. The evidence also show
that Rolando “Rolly” Villanueva hit the victim on the head with a lead
pipe. And outside while the victim was lying down, Gary hit the legs of
the victim with the tomahawk. lvador also hit the victim with the rattan
stick on the thighs, legs and knees. And Titus Iguiron hit the victim's
private organ with a piece of wood. The Provisional Medical Slip (Exh.
“D”), Medico Legal Certificate and Leg Sketch (Exh. “D-2”) and the
fracture sheet (Exh. “D-4”) all prove that the victim suffered injuries to
both legs and multiple lacerations on his head. The injury on one leg
which was a close fracture was caused by a blunt instrument like a
piece of wood. This injury was caused by Salvador Iguiron. The other
leg suffered an open fracture caused by a sharp object like a large
knife or axe. This was caused by Gary Fantastico who used the
tomahawk or axe on the victim. The multiple lacerations on the head
were caused by Gary, Rolly and Salvador as it was proven that they hit
Elpidio on the head. There is no sufficient evidence that the other,
accused, namely Saligan Iguiron Y Malicsi, Tommy Ballesteros, Nestor
Ballesteros and Eugene Surigao harmed or injured the victim. Titus
having sprayed Elpidio with the tear gas is not sufficiently proven.
Neither was the alleged blow by Titus, using a piece of wood, on the
victim's private organ sufficiently established as the medical certificate
did not show any injury on that part of the body of the victim.
The said injuries inflicted on the complainant after he went back to his
sister Isabelita's house. When he kicked the door, the melee began.
And the sequence of the injuries is proven by victim's testimony. But it
was a lopsided attack as the victim was unarmed, while his attackers
were all armed (rattan stick, tomahawk and lead pipe). And the victim
was also drunk. This establishes the element of abuse of superior
strength. The suddenness of the blow inflicted by Salvador on Elpidio
when he entered the premises show that the former was ready to hit
the victim and was waiting for him to enter. It afforded Elpidio no
means to defend himself. And Salvador consciously adopted the said
actuation. He hit Elpidio twice on the head. Treachery is present in this
case and must be considered an aggravating circumstance against
Salvador Iguiron. Rolly Villanueva, Gary Fantastico and Salvador
Iguiron were all armed while Elpidio, inebriated, had nothing to defend
himself with. There is clearly present here the circumstance of abuse of
superior strength.23 (Emphasis supplied)
Abuse of superior strength is present whenever there is a notorious
inequality of forces between the victim and the aggressor, assuming a
situation of superiority of strength notoriously advantageous for the
aggressor selected or taken advantage of by him in the commission of
the crime."24 "The fact that there were two persons who attacked the
victim does not per se establish that the crime was committed with
abuse of superior strength, there being no proof of the relative strength
of the aggressors and the victim."25 The evidence must establish that
the assailants purposely sought the advantage, or that they had the
deliberate intent to use this advantage.26 "To take advantage of
superior strength means to purposely use excessive force out of
proportion to the means of defense available to the person
attacked."27 The appreciation of this aggravating circumstance
depends on the age, size, and strength of the
parties.28chanRoblesvirtualLawlibrary
Anent the penalty imposed by the RTC and affirmed by the CA, which
is an indeterminate penalty of eight (8) years and one (1) day as
minimum, to ten (10) years as maximum and ordered them to pay
actual damages of P17,300.00 and moral damages of P10,000.00, this
Court finds an obvious error.
For the crime of attempted murder, the penalty shall be prision mayor,
since Article 51 of the Revised Penal Code states that a penalty lower
by two degrees than that prescribed by law for the consummated
felony shall be imposed upon the principals in an attempt to commit a
felony.29 Under the Indeterminate Sentence Law, the maximum of the
sentence shall be that which could be properly imposed in view of the
attending circumstances, and the minimum shall be within the range of
the penalty next lower to that prescribed by the Revised Penal Code.
Absent any mitigating or aggravating circumstance in this case, the
maximum of the sentence should be within the range of prision mayor
in its medium term, which has a duration of eight (8) years and one (1)
day to ten (10) years; and that the minimum should be within the range
of prision correccional, which has a duration of six (6) months and one
(1) day to six (6) years. Therefore, the penalty imposed should have
been imprisonment from six (6) years of prision correccional, as
minimum, to eight (8) years and one (1) day of prision mayor, as
maximum.
WHEREFORE, the Petition for Review on Certiorari dated January 20,
2010 of petitioners Gary Fantastico and Rolando Villanueva is hereby
DENIED. Consequently, the Decision dated August 31, 2007 and
Resolution dated January 7, 2010 of the Court of Appeals are hereby
AFFIRMED with the MODIFICATION that the petitioners are sentenced
to an indeterminate penalty of imprisonment from six (6) years of
prision correccional, as minimum, to eight (8) years and one (1) day of
prision mayor, as maximum. Petitioners are also ORDERED to pay
P17,300.00 as actual damages, as well as P10,000.00 moral damages
as originally ordered by the RTC. In addition, interest is imposed on all
damages awarded at the rate of six percent (6%) per annum from date
of finality of judgment until fully paid.
G.R. No. 168169 February 24, 2010
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ALBERTO TABARNERO and GARY TABARNERO,
Accused-Appellants.
This is an appeal from the Decision1 of the Court of Appeals in
CA-G.R. CR.-H.C. No. 00027 dated April 29, 2005. In said
Decision, the Court of Appeals affirmed with modification the
August 29, 2002 Decision2 of the Regional Trial Court (RTC),
Branch 78 of Malolos, Bulacan, in Crim. Case No. 888-M-2000,
convicting herein appellants Alberto Tabarnero (Alberto) and
Gary Tabarnero (Gary) of the crime of Murder.
The factual and procedural antecedents of the case are as
follows:
Late at night on October 23, 1999, Gary went to the house of
the deceased Ernesto Canatoy (Ernesto), where he the former
used to reside as the live-in partner of Mary Jane Acibar (Mary
Jane), Ernesto’s stepdaughter. Gary and Ernesto had a
confrontation during which the latter was stabbed nine times,
causing his death. The versions of the prosecution and the
defense would later diverge as regards the presence of other
persons atin the scene and other circumstances concerning
Ernesto’s death.
On March 3, 2000, Gary and his father, Alberto, were charged
with the crime of Murder in an Information which read:
That on or about the 23rd day of October, 1999, in the
municipality of Malolos, province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating together and
mutually helping each other, armed with bladed instrument and
with intent to kill one Ernesto Canatoy, did then and there
willfully, unlawfully, and feloniously, with evident premeditation,
abuse of superior strength and treachery, attack, assault and
stab with the said bladed instrument the said Ernesto Canatoy,
hitting the latter on the different parts of his body, thereby
causing him serious physical injuries which directly caused his
death.3
On 27 March 2000, warrants for the arrest of Gary and Alberto
were issued by the RTC of Malolos, Bulacan.4
On April 22, 20021, Gary surrendered to Barangay Tanod
Edilberto Alarma.5 When he was arraigned Oon April 30, 2001,
Gary pleaded NOT GUILTY to the crime charged. 6 During this
time, Alberto remained at large.
On May 21, 2001, a pre-trial conference was conducted.
Therein, Gary admitted having killed Ernesto, but claimed that
it was an act of self-defense. Thus, pursuant to Section 11(e),
Rule 119 of the Rules of Court, an invertedreverse trial ensued.
Gary, a 22-year-old construction worker at the time of his
testimony in June 2001, testified that he stayed in Ernesto’s
house from 1997 to 1999, as he and Mary Jane were living
together. Mary Jane is the daughter of Teresita Acibar, the
wife7 of Ernesto. However, Gary left the house shortly before
the October 23, 1999 incident because of a misunderstanding
with Ernesto when the latter allegedly stopped the planned
marriage of Gary and Mary Jane, who was pregnant at that
time.
On October 23, 1999, Gary was still allegedly in his house in
Longos, Malolos, Bulacan at around 11:40 p.m. with his friend,
Richard Ulilian; his father, co-appellant Alberto; his mother,
Elvira; and his brother, Jeffrey. Overcome with emotion over
being separated from Mary Jane, HeGary then went to
Ernesto’s house, but was not able to enter as no one went out
of the house to let him in. He instead shouted his pleas from
the outside, asking Ernesto what he had done wrong that
caused Ernesto to break him and Mary Jane up, and voicing
out several times that he loved Mary Jane and was ready to
marry her. When he Gary was about to leave, the gate opened
and Ernesto purportedly struck him with a lead pipe. Ernesto
was aiming at Gary’s head, but the latter blocked the blow with
his hands, causing his left index finger to be broken. Gary
embraced Ernesto, but the latter strangled him. At that point,
Gary felt that there was a bladed weapon tucked at Ernesto’s
back. Losing control of himself, Gary took the bladed weapon
and stabbed Ernesto, although he cannot recall how many
times he did so.8
According to Gary, Ernesto fell to the ground, and pleaded,
"saklolo, tulungan niyo po ako" three times. Gary was stunned,
and did not notice his father, co-appellant Alberto, coming.
Alberto asked Gary, "anak, ano ang nangyari?" To which Gary
responded "nasaksak ko po yata si Ka Erning," referring to
Ernesto. Gary and Alberto fled, ran, since they were
afraidallegedly out of fear.9
Gary denied that he and Alberto conspired to kill Ernesto. Gary
claims that it was he and Ernesto who had a fight, and that he
had no choice but to stab Ernesto, who was going to kill him.10
Gary’s sister, Gemarie Tabarnero, testified that she was a
childhood friend of Mary Jane. Gemarie attested that Mary
Jane was Gary’s girlfriend from 1995 to 1999. Sometime in
1999, however, Gary and Mary Jane were prevented from
talking to each other. During that time, Gary was always sad
and appeared catatonicdumbfounded, sometimes mentioning
Mary Jane’s name and crying.11
On the night of the incident on October 23, 1999, Gemarie
observed that Gary was crying and seemed perplexed. Gary
told Gemarie that he was going to Ernesto’s house to talk to
Ernesto about Mary Jane. Gary was crying and dumbfounded
at that time. Gary allegedly did not bring anything with him
when he went to Ernesto’s house.12
In the meantime, on August 5, 2001, Alberto was
apprehended.13 On August 20, 2001, he pleaded NOT
GUILTY to the charge.14 However, while Alberto’s defense is
denial and not self-defense like Gary’s, the court decided to
proceed with the reverseinverted trial, as it had already started
that way.15
Next on the witness stand was Edilberto Alarma (Alarma), who
was a barangay tanod of Longos, Malolos, Bulacan since
February 2000. Alarma testified that while he was in a meeting
at around 4:00 p.m. on April 22, 2001, Gary arrived and told
him of his intention to surrender to him. Gary told him that he
was responsible for the "incident [that] happened at Daang
Riles." Together with his co- fellow barangay tanod Zaldy
Garcia, Alarma brought Gary to the Malolos Police Station,
where the surrender was entered in the blotter report.16
Appellant Alberto, a construction worker employed as
leadman/foreman of Alicia Builders, was 45 years old at the
time of his testimony in September 2001. He testified that on
October 23, 1999, at the time when of the incident, he was
living in Norzagaray, Bulacan. On October 23, 1999, however,
,he went to visit his children, Gary and Gemarie, in Barangay
Longos, Malolos, Bulacan. Before going to sleep at 11:00 p.m.,
he realized that Gary was not in the place where he would
usually sleep. He went downstairs, thinking that Gary was just
urinating. He waited for five minutes; when Gary did not show
up, he proceeded to Daang Bakal, where Gary had many
friends. He walked for about 10 minutes. About Four400
hundred meters from where the site of the incident, happened,
he saw Gary and asked him what happened and why he was in
a hurry, to which Gary replied: "Wag na kayong magtanong,
umalis na tayo, napatay ko po yata si Kuya Erning." Alberto
and Gary ran in different directions. Alberto passed through the
railways and exited in front of the capitol compound to wait for
a jeepney going to Sta. Maria, his route toward his home in
Norzagaray.17
Alberto claims that he had no knowledge of the accusation that
he conspired with Gary in killing Ernesto. It was three months
after the incident that he came to know that he was being
charged for a crime. At this time, he was already residing in
Hensonville Plaza, Angeles City, Pampanga, where he was
assigned when his engineer, Efren Cruz, got secured a project
in said place.18
During cCross-examinationed, Alberto repeated that he did not
return to Gary’s house after the incident. He said that it did not
occur to him to call inform the authorities about the killing of
Ernesto. Later, Alberto learned from his sibling, whom he
talked to by phone, that Gary had already surrendered. He did
not consider surrendering because, although he wanted to
clear his name, nobody would work to support his family. He
said that he had no previous misunderstanding with Ernesto.19
Answering questions from the court, Alberto stated that he
immediately went home to Norzagaray because he was afraid
to be implicated in the stabbing of Ernesto. It did not occur to
him to stay and help Gary because he did not know where
Gary proceeded after they ran away. The next time he saw
Gary was three months after the incident, when Gary went to
Norzagaray.20
The first to testify for the prosecution was its eyewitness,
Emerito Acibar (Emerito). Emerito, the brother of Mary Jane,21
was inside their house in Daang Bakal, Longos, Malolos,
Bulacan with his brother and his stepfather, Ernesto, at around
eleven o’clock on the night of the incident on October 23, 1999.
He heard somebody calling for Ernesto, but ignored it. He then
heard a "kalabog," followed by Ernesto’s plea asking for help.
Emerito was about to go outside, but, while he was already at
the door of their one-room22 house, he saw Ernesto being held
by a certain Toning "Kulit" and another person, while Gary and
Alberto were stabbing Ernesto with a fan knivesfe. Emerito lost
count of the number of thrusts made by Gary and Alberto, but
each inflicted more than one, and the last stab was made by
Alberto. Emerito shouted for help. The four assailants left when
somebody arrived, allowing Emerito to approach Ernesto and
bring him to the Bulacan Provincial Hospital.23
On cross-examination, Emerito statedconfirmed that Gary and
Mary Jane used to reside in Ernesto’s house. On the date of
the incident, however, Gary had already left the house, while
Mary Jane had moved to Abra with Teresita (the mother of
Emerito and Mary Jane). According to Emerito, his family did
not know that Mary Jane and Gary had a relationship because
they treated Gary like a member of the family. Ernesto got mad
when because his wife, Teresita, found out about Gary and
Mary Jane’s relationship. On the night of the incident, at past
11:00 p.m., Emerito was fixing his things inside their houseat
past 11:00 p.m., when he heard someone calling from for
themoutside, but was not sure if it was Gary. Emerito neither
saw Ernesto leaving the room, nor the fight between Ernesto
and Gary. All he saw was the stabbing, which happened seven
to eight meters away from the doorway where he was standing
him. He was sure that there were four assailants, two of whom
went to a bridge 8 to 10 meters from the incident, where they
boarded a yellow XLT-type car.24
Senior Police Officer 2 (SPO2) Ronnie Morales of the Malolos
Philippine National Police testified that he was on duty at the
police station on the night of October 23, 1999. During that
night, Emerito reported at the police station that Ernesto had
been stabbed. SPO2 Morales and Emerito proceeded to the
Bulacan Provincial Hospital, where SPO2 Morales saw Ernesto
in the operating room, very weak due to multiple injuries. While
in the presence of thetwo doctors on duty, SPO2 Morales
asked Ernesto who stabbed him. Ernesto answered that the
assailants were the father and son, Gary and Alberto
Tabarnero from Longos, Bulacan.25
Cross-examined, SPO2 Morales clarified that it was already
1:00 a.m. of the following day when he and Emerito proceeded
to the hospital. As they went to the hospital, Emerito did not
inform SPO2 Morales that he witnessed the incident. SPO2
Morales did not find it odd that Emerito did not tell him who the
suspects were when Emerito reported the incident, because
they immediately proceeded to the hospital, considering that
the victim, Ernesto, was still alive. Ernesto was not able to affix
his signature on the Sinumpaang Salaysay26 because he
could no longer talk after the fourth question. Answering
questions from the court, SPO2 Morales further stated that he
could not remember talking to Emerito on their way to the
hospital, since they were in a hurry.27
The government physician at the Bulacan Provincial Hospital
who prepared Ernesto’s death certificate, Dr. Apollo Trinidad,
clarified that Ernesto died on October 25, 1999. However,
considering the admission by the defense of the fact of death,
the cause thereof, and the execution of the death certificate,
the prosecution did not proceed to solicit these facts fromno
longer questioned Dr. Trinidad on these matters.28
Teresita’s testimony was likewise dispensed with, in light of the
admission by the defense that she was the common-law wife of
Ernesto, and that she incurred P55,600.00 in expenses in
relation to Ernesto’s death.29
On August 29, 2002, the RTC rendered its Decision convicting
Gary and Alberto of the crime of murder. The decretal portion
of the Decision reads:
WHEREFORE, the foregoing considered, this Court hereby
finds accused Alberto Tabarnero and Gary Tabarnero GUILTY
beyond reasonable doubt of the Crime of Murder defined and
penalized under Art. 248 of the Revised Penal Code, as
amended, and sentences them to suffer the penalty of
Reclusion Perpetua and to pay private complainant Teresita
Acibar the amount of P55,600.000 (sic) as actual damages[,]
P50,000.00 as indemnity for the death of Ernesto Canatoy[,]
P50,000.00 as moral damages, and the costs of suit.30
Gary and Alberto appealed to this Court. After the parties had
filed their respective briefs, this Court, in People v. Mateo,31
modified the Rules of Court in so far as it provides for direct
appeals from the RTC to this Court in cases where the penalty
imposed is death, reclusion perpetua or life imprisonment.
Pursuant thereto, this Court referred32 the case to the Court of
Appeals, where it was docketed as CA-G.R. CR.-H.C. No.
00027.
On April 29, 2005, the Court of Appeals affirmed the conviction
with modification as regards exemplary damages, disposing of
the case in the following manner:
WHEREFORE, the decision of the Regional Trial Court of
Malolos, Bulacan, Branch 78 dated 29 August 2002 is hereby
AFFIRMED with the modification that exemplary damages in
the amount of P25,000.00 is awarded because of the presence
of treachery.33
From the Court of Appeals, the case was elevated to this Court
anew when Gary and Alberto filed a Notice of Appeal on May
13, 2005.34 In its Resolution on August 1, 2005, this Court
required both parties to submit their respective supplemental
briefs, if they so desire. Both parties manifested that they were
adopting the briefs they had earlier filed with this Court.
Gary and Alberto, in their brief filed in this Court before the
referral of the case to the Court of Appeals, assigned the
following errors to the RTC:
I. THE COURT A QUO GRAVELY ERRED IN NOT
CONSIDERING THE JUSTIFYING CIRCUMSTANCE OF
SELF-DEFENSE AND THE MITIGATING CIRCUMSTANCE
OF VOLUNTARY SURRENDER INTERPOSED BY
ACCUSED-APPELLANT GARY TABARNERO
II. THE COURT A QUO GRAVELY ERRED IN FINDING THAT
THERE WAS CONSPIRACY IN THE CASE AT BAR
III. ASSUMING ARGUENDO THAT ACCUSED-APPELLANTS
ARE CULPABLE, THE COURT A QUO GRAVELY ERRED IN
APPRECIATING THE QUALIFYING CIRCUMSTANCE OF
TREACHERY35
The justifying circumstance of self-defense on the part of Gary
cannot be considered
The requisites for self-defense are: 1) unlawful aggression on
the part of the victim; 2) lack of sufficient provocation on the
part of the accused; and 3) employment of reasonable means
to prevent and repel aggression.36
The defense invokes the said justifying circumstance, claiming
that all of the above three elements are present in the case at
bar. There was allegedly unlawful aggression on the part of
Ernesto when the latter delivered the first blow with the lead
pipe. According to the defense, the means Gary used to
defend himself was reasonable, and the shouting shouted
professions of his feelings forabout Mary Jane could not be
considered provocation sufficient for Ernesto to make the
unlawful aggression.
The Court of Appeals noted that the only evidence presented
by the defense to prove the alleged unlawful aggression was
Gary’s own testimony. Citing Casitas v. People,37 the Court of
Appeals held that the nine stab wounds inflicted upon Ernesto
indicate Gary’s intent to kill, and not merely an intent to defend
himself. The number of wounds also negates the claim that the
means used by Gary to defend himself was reasonable.
We agree with the Court of Appeals. Unlawful aggression is an
indispensable requirement of self-defense of self-defense.38
As ruled by the Court of Appeals, the evidence presented by
Gary to prove the alleged unlawful aggression, namely, his
own testimony, is insufficient and self-serving. The alleged
sudden appearance of Ernesto and his first attack with the lead
pipe the very moment Gary decided to leave seems to this
Court to be all too convenient, considering that there was no
one around to witness the start of the fight.
The RTC, which had the opportunity to observe the demeanor
of the witnesses, found Gary’s account concerning the alleged
unlawful aggression on the part of Ernesto to be unconvincing.
Factual findings of the trial court, especially when affirmed by
the Court of Appeals, as in this case, are binding onto this
Court and are entitled to great respect.39 It also bears to
emphasize that by invoking self-defense, Gary, in effect,
admitted killing Ernesto, thus, shifting upon him the burden of
evidence to prove the elements of the said justifying
circumstance.40 A plea of self-defense cannot be justifiably
appreciated where it is not only uncorroborated by independent
and competent evidence, but also extremely doubtful in
itself.41
The defense further argues that assuming that Gary is not
qualified to avail of the justifying circumstance of self-defense,
he would nevertheless be entitled to the mitigating
circumstance of incomplete self-defense under Article 13(1) of
the Revised Penal Code, which provides:
Art. 13. Mitigating circumstances. — The following are
mitigating circumstances:
1. Those mentioned in the preceding chapter, when all the
requisites necessary to justify the act or to exempt from
criminal liability in the respective cases are not attendant.
We disagree. Unlawful aggression is a condition sine qua non,
without which there can be no self-defense, whether complete
or incomplete.42 There is incomplete self-defense when the
element of unlawful aggression by the victim is present, and
any of the other two essential requisites for self-defense.43
Having failed to prove the indispensable element of unlawful
aggression, Gary is not entitled to the mitigating circumstance,
regardless even assuming of the presence of the other two
elements of self-defense.
Gary is not entitled to the mitigating circumstance of voluntary
surrender
The first assignment of error presents another issue for the
consideration of this Court. The defense argues that Gary’s
yielding to Alarma should be credited as a mitigating
circumstance of voluntary surrender. The Solicitor General
agreed with the defense on this point. The Court of Appeals,
however, disagreed, and held that the delay of six months44
before surrendering negates spontaneity,45 a requisite for
voluntary surrender to be considered mitigating.
We agree with the Court of Appeals.
In order that the mitigating circumstance of voluntary surrender
may be credited to the accused, the following requisites should
be present: (a) the offender has not actually been arrested; (b)
the offender surrendered himself to a person in authority; and
(c) the surrender must be voluntary. A surrender, to be
voluntary, must be spontaneous, i.e., there must be an intent to
submit oneself to authorities, either because he acknowledges
his guilt or because he wishes to save them the trouble and
expenses in capturing him.46
In People v. Barcimo, Jr.,47 the pending warrant for the arrest
of the accused and the latter’s surrender more than one year
after the incident were considered by the Court as damaging to
the plea that voluntary surrender be considered a mitigating
circumstance. Thus:
The trial court did not err in disregarding the mitigating
circumstance of voluntary surrender. To benefit an accused,
the following requisites must be proven, namely: (1) the
offender has not actually been arrested; (2) the offender
surrendered himself to a person in authority; and (3) the
surrender was voluntary. A surrender to be voluntary must be
spontaneous, showing the intent of the accused to submit
himself unconditionally to the authorities, either because he
acknowledges his guilt, or he wishes to save them the trouble
and expense necessarily incurred in his search and capture.
Voluntary surrender presupposes repentance. In People v.
Viernes [G.R. No. 136733-35, 13 December 20010], we held
that going to the police station to clear one’s name does not
show any intent to surrender unconditionally to the authorities.
In the case at bar, appellant surrendered to the authorities after
more than one year had lapsed since the incident and in order
to disclaim responsibility for the killing of the victim. This
neither shows repentance or acknowledgment of the crime nor
intention to save the government the trouble and expense
necessarily incurred in his search and capture. Besides, at the
time of his surrender, there was a pending warrant of arrest
against him. Hence, he should not be credited with the
mitigating circumstance of voluntary surrender.
The records show that Gary surrendered on April 22, 2001.48
The commitment order commanding that he be detained was
issued on April 24, 2001.49 The surrender was made almost
one year and six months from the October 23, 1999 incident,
and almost one year and one month from the issuance of the
warrant of arrest against him on March 27, 2000.50 We,
therefore, rule that the mitigating circumstance of voluntary
surrender cannot be credited to Gary.
Alberto is a principal by direct participation in the killing of
Ernesto
In insisting upon Alberto’s innocence, the defense claims that
there was no conspiracy between him and his son, Gary. The
defense asserts that Alberto just happened to be near the
scene of the crime as he was looking for his son, whom he saw
only after the altercation.
The basis of Alberto’s conviction, however, is not solely
conspiracy. A review of the proven facts shows that conspiracy
need not even be proven by the prosecution in this case, since
Alberto was categorically pointed by the eyewitness, Emerito,
as one of the assailants who actively and directly participated
in the killing of Ernesto:
Q Those 2 persons whom you saw and who stabbed your
stepfather in the evening of October 23, 1999, if theyb are now
in court, will you be able to identify them?
A Yes, sir.
Q Would you please point to those 2 persons?
A (Witness pointing to the persons who, when asked answered
to the name of Alberto Tabarnero and Gary Tabarnero)
Q What was the position of Alberto Tabarnero in that stabbing
incident?
A He was the one whom I saw stabbed last my stepfather.
COURT (TO THE WITNESS):
Q How many times did you see Gary stabbed your father?
A I cannot count how many stabs Gary made.
PROS. SANTIAGO:
Q Was it many times or just once?
A I cannot count but more than 1.
Q How about Alberto Tabarnero, how many times did you see
him stabbing your stepfather?
A I cannot count also but he was the last one who stabbed my
stepfather.51
Having actually participated in the stabbing of Ernesto, it was
adequately proven that Alberto is a principal by direct
participation.
Even more persuasive is the statement of the victim himself,
Ernesto, as testified to by SPO2 Morales, that it was "the father
and son, Gary and Alberto Tabarnero from Longos, Bulacan"
who stabbed him.52 While Ernesto was not able to testify in
court, his statement is considered admissible under Section 37,
Rule 130 of the Rules of Court, which provides:
Sec. 37. Dying declaration. — The declaration of a dying
person, made under the consciousness of an impending death,
may be received in any case wherein his death is the subject of
inquiry, as evidence of the cause and surrounding
circumstances of such death.
In applying this exception to the hearsay rule, we held as
follows:
"It must be shown that a dying declaration was made under a
realization by the decedent that his demise or at least, its
imminence -- not so much the rapid eventuation of death -- is
at hand. This may be proven by the statement of the deceased
himself or it may be inferred from the nature and extent of the
decedent’s wounds, or other relevant circumstances."53
In the case at bar, Ernesto had nine stab wounds which
caused his death within the next 48 hours. At the time he
uttered his statement accusing Gary and Alberto of stabbing
him, his body was already very rapidly deteriorating, as shown
by his inability to speak and write towards the end of the
questioning.
We have considered that a dying declaration is entitled to the
highest credence, for no person who knows of his impending
death would make a careless or false accusation. When a
person is at the point of death, every motive of falsehood is
silenced and the mind is induced by the most powerful
consideration to speak the truth.54 It is hard to fathom that
Ernesto, very weak as he was and with his body already
manifesting an impending demise, would summon every
remaining strength he had just to lie about his true assailants,
whom he obviously would want to bring to justice.
The killing of Ernesto is qualified by treachery
Emerito had testified that he saw Ernesto being held by two
persons, while Gary and Alberto were stabbing him with fan
knives with a fan knife:
Q When you said "lalabas po sana," what do you mean by
that?
A I am at the door and saw what happened.
Q What did you see?
A I saw my stepfather being held by two persons and being
stabbed.
Q Will you describe the appearance of your stepfather and the
2 persons whom according to you were stabbing your
stepfather at that time?
A My stepfather is "lupaypay" and he was being stabbed.
Q When you said "lupaypay," will you describe to this
Honorable Court his position and appearance?
A When I saw my stepfather he was about to fall on the ground.
Q Could you describe their appearance?
A They were helping each other in stabbing my grandfather. (sic)
Q Those two persons whom you saw and who stabbed your stepfather
in the evening of October 23, 1999 if they are now in Court, will you be
able to identify them?
A Yes, sir.
Q Could you please point to those 2 persons?
A (Witness pointing to the persons who, when asked answered to the
name of Alberto Tabarnero and Gary Tabarnero)
Q What was the position of Alberto Tabarnero in that stabbing
incident?
A He was the one whom I saw stabbed last my stepfather.
Q What about Gary, what is his position?
A He was helping in the stabbing.
Q What kind of weapon or instrument were used by Gary and Alberto?
A Fan knife, sir.
Q Both of them were armed by a knife?
A Yes, sir.55
From said testimony, it seems uncertain whether Emerito saw the very
first stabbing being thrust. Thus, the defense asseverates that since
Emerito failed to see how the attack commenced, the qualifying
circumstance of treachery cannot be considered, citing People v.
Amamangpang,56 People v. Icalla,57 and People v. Sambulan.58 In
said three cases, this Court held that treachery cannot be appreciated
as the lone eyewitness did not see the commencement of the assault.
Treachery is defined under Article 14(16) of the Revised Penal Code,
which provides:
There is treachery when the offender commits any of the crimes
against the person, employing means, methods, or forms in the
execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the
offended party might make.
The Solicitor General argues that treachery was amply demonstrated
by the restraint upon Ernesto, which effectively rendered him
defenseless and unable to effectively repel, much less evade, the
assault.59
We agree with the Solicitor General.
In the cases cited by the appellants, the eyewitnesses were not able to
observe any means, method or form in the execution of the killing
which rendered the victim defenseless. In Amamangpang, the first
thing the witness saw was the victim already prostrate on the bamboo
floor, blood oozing from his neck and about to be struck by the
accused. In Icalla, the witnesses merely saw the accused fleeing from
the scene of the crime with a knife in his hand. In Sambulan, the
witness saw the two accused hacking the victim with a bolo. Since, in
these cases, there was no restraint upon the victims or any other
circumstance which would have rendered them defenseless, the Court
ruled that it should look into the commencement of the attack in order
to determine whether the same was done swiftly and unexpectedly.
However, the swiftness and unexpectedness of an attack are not the
only means by which the defenselessness of the victim can be
ensured.
In People v. Montejo,60 the prosecution witnesses testified that after
challenging the victim to a fight, the accused stabbed the victim in the
chest while he was held in the arms by the accused and a companion.
Not requiring a swift and unexpected commencement to the attack, the
Court held:
Thus, there is treachery where the victim was stabbed in a defenseless
situation, as when he was being held by the others while he was being
stabbed, as the accomplishment of the accused's purpose was
ensured without risk to him from any defense the victim may offer
[People v. Condemena, G.R. No. L-22426, May 29, 1968, 23 SCRA
910; People v. Lunar, G.R. No. L-15579, May 29, 1972, 45 SCRA 119.]
In the instant case, it has been established that the accused-appellant
stabbed the victim on the chest while his companions held both of the
victim's arms.
In People v. Alvarado,61 the accused and his companions shouted to
the victim: "Lumabas ka kalbo, kung matapang ka." When the victim
went out of the house, the accused’s companions held the victim’s
hands while the accused stabbed him. Despite the yelling which should
have warned the victim of a possible attack, the mere fact that the
accused’s companions held the hands of the victim while the accused
stabbed him was considered by this Court to constitute alevosia.
We, therefore, rule that the killing of Ernesto was attended by
treachery. However, even assuming for the sake of argument that
treachery should not be appreciated, the qualifying circumstance of
abuse of superior strength would nevertheless qualify the killing to
murder. Despite being alleged in the Information, this circumstance
was not considered in the trial court as the same is already absorbed in
treachery. The act of the accused in stabbing Ernesto while two
persons were holding him clearly shows the deliberate use of
excessive force out of proportion to the defense available in to the
person attacked. In People v. Gemoya,62 we held:
Abuse of superior strength is considered whenever there is a notorious
inequality of forces between the victim and the aggressor, assessing a
superiority of strength notoriously advantageous for the aggressor
which is selected or taken advantage of in the commission of the crime
(People vs. Bongadillo, 234 SCRA 233 [1994]). When four armed
assailants, two of whom are accused-appellants in this case, gang up
on one unarmed victim, it can only be said that excessive force was
purposely sought and employed. (Emphasis ours.)
In all, there is no doubt that the offense committed by the accused is
murder.
The award of damages should be modified to include civil indemnity ex
delito
In the Decision of the RTC convicting Gary and Alberto, it awarded the
amount of P55,600.00 as actual damages, P50,000.00 as indemnity for
the death of Ernesto, P50,000.00 as moral damages and an
unidentified amount as costs of suit.63 The Court of Appeals modified
the RTC Decision by awarding an additional amount of P25,000.00 as
exemplary damages on account of the presence of treachery.64
The Solicitor General claims that the award of P55,600.00 in actual
damages is not proper, considering the lack of receipts supporting the
same. However, we held in People v. Torio65 that:
Ordinarily, receipts should support claims of actual damages, but
where the defense does not contest the claim, it should be granted.
Accordingly, there being no objection raised by the defense on Alma
Paulo’s lack of receipts to support her other claims, all the amounts
testified to are accepted. (Emphasis supplied.)
In the case at bar, Teresita Acibar’s testimony was dispensed with on
account of the admission by the defense that she incurred P55,600.00
in relation to the death of Ernesto.66 This admission by the defense is
even more binding to it than a failure on its part to object to the
testimony. We therefore sustain the award of actual damages by the
RTC, as affirmed by the Court of Appeals.
The Solicitor General likewise alleges that a civil indemnity ex delito in
the amount of P50,000.00 should be awarded. Article 220667 of the
Civil Code authorizes the award of civil indemnity for death caused by
a crime. The award of said civil indemnity is mandatory, and is granted
to the heirs of the victim without need of proof other than the
commission of the crime.68 However, current jurisprudence have
already increased the award of civil indemnity ex delicto to
P75,000.00.69 We, therefore, award this amount to the heirs of
Ernesto.1awph!1
Finally, the Court of Appeals was correct in awarding exemplary
damages in the amount of P25,000.00. An aggravating circumstance,
whether ordinary or qualifying, should entitle the offended party to an
award of exemplary damages within the unbridled meaning of Article
223070 of the Civil Code.71
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR.-
H.C. No. 00027 dated April 29, 2005 is hereby AFFIRMED, with the
MODIFICATION that appellants Alberto and Gary Tabarnero are
further ordered to pay the heirs of Ernesto Canatoy the amount of
P75,000.00 as civil indemnity.
G.R. No. 186541 February 1, 2012
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
VICENTE VILBAR, Accused-Appellant.
On appeal is the Decision1 dated February 14, 2008 of the
Court of Appeals in CA-G.R. CR.-H.C. No. 00270 which
modified the Judgment2 promulgated on August 6, 2001 by the
Regional Trial Court (RTC), Branch 35, of Ormoc City, in
Criminal Case No. 5876-0. The RTC originally found accused-
appellant Vicente Vilbar guilty beyond reasonable doubt of the
crime of murder for treacherously stabbing with a knife the
deceased Guilbert Patricio (Guilbert), but the Court of Appeals
subsequently held accused-appellant liable only for the lesser
crime of homicide.
The Information charging accused-appellant with the crime of
murder reads:
That on or about the 5th day of May 2000, at around 7:00
o’clock in the evening, at the public market, this city, and within
the jurisdiction of this Honorable Court, the above-named
accused, VICENTE VILBAR alias Dikit, with treachery, evident
premeditation and intent to kill, did then and there willfully,
unlawfully and feloniously stab, hit and wound the victim herein
GUILBERT PATRICIO, without giving the latter sufficient time
to defend himself, thereby inflicting upon said Guilbert Patricio
mortal wound which caused his death. Post Mortem
Examination Report is hereto attached.
In violation of Article 248, Revised Penal Code, as amended by
R.A. 7659, Ormoc City, June 13, 2000.3
When accused-appellant was arraigned on July 31, 2000, he
pleaded not guilty to the criminal charge against him.4
During the pre-trial conference, the parties already admitted
that Guilbert was stabbed at the Public Market of Ormoc City
on May 5, 2000 at around seven o’clock in the evening, and
that immediately before the incident, accused-appellant was at
the same place having a drinking spree with a certain Arcadio
Danieles, Jr. and two other companions. However, accused-
appellant denied that it was he who stabbed Guilbert Patricio.5
Trial then ensued.
The prosecution presented the testimonies of Maria Liza
Patricio (Maria Liza),6 the widow of the deceased, and Pedro
Luzon (Pedro),7 an eyewitness at the scene. The defense
offered the testimonies of accused-appellant8 himself and
Cerilo Pelos (Cerilo),9 another eyewitness. On rebuttal, the
prosecution recalled Pedro to the witness stand.10
Below is a summary of the testimonies of the witnesses for
both sides:
Maria Liza testified that in the evening of May 5, 2000, she was
watching her child and at the same time attending to their store
located in the Ormoc City public market. It was a small store
with open space for tables for drinking being shared by other
adjacent stores. At around 7:00 o’clock in the evening, her
husband, Guilbert Patricio (Guilbert) arrived from work. He was
met by their child whom he then carried in his arms. Moments
later, Guilbert noticed a man urinating at one of the tables in
front of their store. The man urinating was among those
engaged in a drinking spree in a nearby store. It appears that
the accused was with the same group, seated about two
meters away. Guilbert immediately admonished the man
urinating but the latter paid no attention and continued relieving
himself. Guilbert then put down his child when the accused
rose from his seat, approached Guilbert, drew out a knife and
stabbed him below his breast. The accused, as well as his
companions, scampered away while Guilbert called for help
saying "I’m stabbed." At that time, she was getting her child
from Guilbert and about two feet away from the accused. She
easily recognized the accused because he would sometimes
drink at their store. Guilbert was immediately brought to the
hospital where he later expired 11:35 of the same evening. She
declared that for Guilbert’s medical and hospitalization
expenses, the family spent about P3,000.00. As for the wake
and burial expenses, she could no longer estimate the amount
because of her sadness.
Pedro, an eyewitness at the scene, corroborated Maria Liza’s
testimonial account of the events. On that night, he was
drinking together with a companion in Maria Liza’s store. He
recalled Guilbert admonishing a person urinating in one of the
tables fronting the store. Thereafter, he saw the accused pass
by him, approach Guilbert and then without warning, stab the
latter. The accused then ran away and left. Together with his
drinking companion, they rushed Guilbert to the hospital. Pedro
asserted that the area’s illumination was "intense" because of
the big white lamp and that he was certain that it was the
accused who attacked Guilbert.
Denial was the accused’s main plea in exculpating himself of
the charge that he killed Guilbert. He claimed that in the
evening of May 5, 2000, he and his wife went to the public
market (new building) to collect receivables out of the sale of
meat. Afterwards, they took a short cut passing through the
public market where they chanced upon his wife’s
acquaintances who were engaged in a drinking spree while
singing videoke. Among them were Dodong Danieles (Dodong
for brevity) and his younger brother. They invited him (the
accused) and his wife to join them. While they were drinking,
Dodong had an altercation with Guilbert that stemmed from the
latter’s admonition of Dodong’s younger brother who had
earlier urinated at the Patricio’s store premises. Suddenly,
Dodong assaulted Guilbert and stabbed him. Fearing that he
might be implicated in the incident, the accused fled and went
to the house of his parents-in-law. Thereafter, he went back to
the market for his wife who was no longer there. When he
learned that the victim was brought to the Ormoc District
Hospital, he went there to verify the victim’s condition. He was
able to talk with the mother and the wife of Guilbert as well as
the police. He was thereafter invited to the precinct so that the
police can get his statement. The next day, the parents of
Dodong Danieles came to his parents-in-law’s house to
persuade him not to help the victim’s family. He declined. Half
a month later, he was arrested and charged for the death of
Guilbert Patricio.
The defense also presented one Cerilo Pelos ("Cerilo") who
claimed to have personally witnessed the stabbing incident
because he was also drinking in the public market on that
fateful night. He insisted that Guilbert was stabbed by someone
wearing a black shirt, whose identity he later on learned to be
Dodong Danieles.11
On August 6, 2001, the RTC promulgated its Decision finding
accused-appellant guilty of murder and decreeing thus:
WHEREFORE, all the foregoing duly considered, the Court
finds the accused Vicente Vilbar alias Dikit GUILTY beyond
reasonable doubt of the crime of murder as charged, and
hereby sentences him to imprisonment of reclusion perpetua,
[and ordered] to pay the offended party the sum of P75,000.00
as indemnity, the sum of P3,000.00 as medical expenses, the
sum of P50,000.00 as moral damages.
If the accused is a detainee, his period of detention shall be
credited to him in full if he abides by the term for convicted
prisoners, otherwise, for only 4/5 thereof.12
The foregoing RTC Judgment was directly elevated to us for
our review, but in accordance with our ruling in People v.
Mateo,13 we issued a Resolution14 dated December 1, 2004
referring the case to the Court of Appeals for appropriate
action.
Accused-appellant, represented by the Public Attorney’s Office,
15 and plaintiff-appellee, through the Office of the Solicitor
General,16 filed their Briefs on August 15, 2006 and April 30,
2007, respectively. The Court of Appeals made the following
determination of the issues submitted for its resolution:
On intermediate review, accused (now accused-appellant)
seeks the reversal of his conviction for the crime of murder or
in the alternative, the imposition of the proper penalty for the
crime of homicide. He argues that the trial court erred in giving
credence to the inconsistent, irreconcilable, and incredible
testimonies of the prosecution witnesses, to wit: (1) the exact
number of persons drinking with accused-appellant in the
adjacent store; (2) what Maria Liza was doing at the exact time
of stabbing; and (3) the accused-appellant’s reaction after he
stabbed the victim. Moreover, accused-appellant argues that if
he was indeed the culprit, why did he approach Guilbert’s
family in the hospital immediately after the stabbing incident?
Granting without admitting that a crime of murder was
committed, accused-appellant insists that he could only be held
guilty of homicide for it was not proven beyond reasonable
doubt that treachery and evident premeditation existed. He
specifically directs our attention to the following details: (1)
there was a heated argument between the victim and a
member or members of his group; (2) the stabbing happened
in a spur of the moment; and (3) the victim then was not
completely defenseless.
Meanwhile, the OSG stresses that the alleged inconsistencies
in the testimonies of the prosecution witnesses are minor and
inconsequential given the positive identification of the accused-
appellant as the assailant. As to accused-appellant’s
contention that he is innocent because he even went to the
hospital and conferred with Guilbert’s relatives immediately
after the stabbing incident, the OSG maintains that such
actuation is not a conclusive proof of innocence.
The issues for resolution are first, the assessment of credibility
of the prosecution witnesses; and second, the propriety of
conviction of the accused-appellant for murder.17
The Court of Appeals rendered its Decision on February 14,
2008, in which it accorded great respect to the assessment by
the RTC of the credibility of the witnesses. The inconsistencies
and inaccuracies in the testimonies of the prosecution
witnesses are relatively trivial, minor, and do not impeach their
credibility. The positive identification and categorical
statements of the prosecution witnesses that it was accused-
appellant who stabbed Guilbert prevail over accused-
appellant’s self-serving denial. However, the appellate court did
not find that treachery attended the stabbing of Guilbert and,
thus, downgraded the crime to homicide. It also reduced the
award of civil indemnity. The dispositive portion of the Court of
Appeals decision sentenced accused-appellant as follows:
WHEREFORE, the 1 August 2001 Decision appealed from
finding accused-appellant VICENTE VILBAR @ "Dikit" guilty
beyond reasonable doubt of murder is MODIFIED. The Court
finds the accused appellant GUILTY beyond reasonable doubt
of HOMICIDE and is hereby sentenced to suffer the penalty of
eight years and one day of prision mayor medium, as
minimum, to fourteen years and eight months of reclusion
temporal medium, as maximum. He is also ordered to pay the
heirs of Guilbert Patricio the amounts of Php50,000.00 as civil
indemnity, Php50,000.00 as moral damages, and Php3,000.00
as actual damages.18
Accused-appellant now comes before us on final appeal.
In our Resolution19 dated April 15, 2009, we gave the parties
the opportunity to file their respective supplemental briefs, but
the parties manifested that they had already exhausted their
arguments before the Court of Appeals.20
After a scrutiny of the records of the case, we find that the
submitted evidence and prevailing jurisprudence duly support
the findings and conclusion of the Court of Appeals.
Evidence in this case chiefly consists of testimonial evidence.
Both the RTC and the Court of Appeals gave credence and
weight to the testimonies of the prosecution witnesses.
Case laws mandate that "when the credibility of a witness is in
issue, the findings of fact of the trial court, its calibration of the
testimonies of the witnesses and its assessment of the
probative weight thereof, as well as its conclusions anchored
on said findings are accorded high respect if not conclusive
effect. This is more true if such findings were affirmed by the
appellate court, since it is settled that when the trial court’s
findings have been affirmed by the appellate court, said
findings are generally binding upon this Court."21 There is no
compelling reason for us to depart from the general rule in this
case.
Prosecution witnesses Maria Liza and Pedro both positively
and categorically identified accused-appellant as the one who
stabbed Guilbert.
Maria Liza vividly recounted her traumatic moment as follows:
Q: Mrs. Patricio, do you know the accused in this case in the
person of Vicente Vilbar alias "Dikit?"
A: Yes, sir.
Q: Why do you know him?
A: He used to go there for drinking in our store.
Q: How long have you known this person?
A: About three (3) months.
Q: Mrs. Patricio, can you recall where were you in the evening
at about 7:00 o’clock of May 5, 2000?
A: I was at the store.
Q: Where?
A: In the market.
Q: What were you doing in the store?
A: I was watching after my, attending to my child there.
Q: How old was the child?
A: Two (2) years old.
Q: When you were attending to your child at this particular
time, what happened?
A: My child saw my husband arriving.
Q: What happened after your child saw your husband arrived
at the store you were tending?
A: He met him.
Q: And what did your husband do when he was met by your
child?
A: He cradled the child.
Q: What happened after that?
A: So at 7:00 o’clock that evening there was somebody
urinated and my husband told that someone not to urinate that
place because that was a table.
Q: Do you know who was this someone admonished by your
husband not to urinate because that was a table?
A: No, sir.
Q: Do you know where did he come from?
A: They were drinking.
Q: Do you know who was his companion while they were
drinking?
A: No, only that Vicente Vilbar.
Q: From where he came from or from where he was drinking in
the group of persons together with the accused Vicente Vilbar,
how far was the place wherein they were drinking to where he
urinated from where the group was drinking?
A: Just near.
Q: When you said near, can you estimate the distance?
COURT INTERPRETER
The witness estimated a distance at about 2 meters.
Q: What was the reaction of the person urinating when your
husband told him not to urinate?
A: He continue urinating.
Q: What was the reaction of your husband when he did not
heed to the advice not to urinate?
A: He put down the child, this Vicente Vilbar rose.
Q: Rose from where?
A: From the table.
Q: And what happened?
A: Without any word stabbed my husband.
Q: What did he use in stabbing your husband, this Vicente
Vilbar?
A: Knife.
Q: Do you know, were you able to see where he kept the knife
which he used in stabbing your husband?
A: From his waist.
Q: When the said Vicente Vilbar delivered the stabbed thrust to
your husband, was your husband hit?
A: He was hit.
Q: On what part of his body was your husband hit?
A: Just below the breast.
Q: Below the left nipple?
A: Yes, sir.
Q: What happened after your husband was hit below the left
nipple?
A: Vicente Vilbar ran away and my husband told me to call for
some help and he said, "I’m stab."
Q: By the way, how far were you to your husband Guilbert
Patricio when he was stabbed?
A: I was behind Vicente Vilbar.
Q: When you said you were behind, how far from Vicente
Vilbar?
A: Just near, sir, from my husband next was the one who
urinated, next Vicente Vilbar and I was behind.22 (Emphases
supplied.)
Pedro corroborated Maria Liza’s testimony, recalling the same
sequence of events the night of May 5, 2000, viz:
Q: Who was the companion of Guilbert when he arrived in the
vicinity?
A: He was alone.
Q: So what happened after his arrival?
A: When he arrived he was with his child.
Q: And what did he do with the child?
A: He carried his child in his arms.
Q: And then what happened after he carried his child?
A: There was someone who [urinated] somewhere behind us
and he was admonished by this Guilbert Patricio by saying,
"Bay, don’t urinate there it would somehow create a bad smell
and considering that this is a drinking area."
Q: Who was that person who relieved himself just nearby?
A: I did not know.
Q: Whose group was he coming from?
A: From Vicente Vilbar’s companion.
Q: Did that person who was admonished accede to the request
of Guilbert Patricio not to relieve just nearby?
A: He just did not do something, he just relieved.
Q: So that person who was admonished in fact urinated?
A: Yes, sir.
Q: And so what happened?
A: I saw this Vicente Vilbar stood up and pass behind me and
went to Guilbert Patricio and just immediately stabbed him.
Q: What was the weapon used in stabbing?
A: It seems like a knife (and the witness demonstrated to the
Court the length of the weapon at about 10 inches with the
width of about 2 inches).
Q: When this stabbing incident took place, was it in front of you
or was it behind?
A: In front of me but I was facing his back.
Q: Will you please point to us a part of your body that he was
hit by the stab thrust?
COURT INTERPRETER
The witness demonstrated below his left nipple and the witness
was pointing to the position below his left nipple.
Q: At the time of that incident which was on the evening of May
5, 2000, did you already know that the person whom you just
pointed earlier was Vicente Vilbar?
A: I did not know about his complete name but I know of him as
"Dikit" as alias and his face.
Q: Under what circumstance that you learned of his name?
A: Because I ask the victim himself, that Guilbert Patricio by
saying, "Who was that person who stabbed you Dong?," and
then he said "He is known to be Dikit and his real name is
Vicente Vilbar."
Q: Prior to the incident, have you seen this Dikit or Vicente
Vilbar?
A: Yes, because after we had our tuba drinking spree in that
same day they were there also.
Q: Would you recall how many times you have seen Vicente
Vilbar prior to the incident?
A: I could not just count how many times but what I’m sure is
we know him
Q: Could it be more than five (5) times?
A: It could be.23 (Emphases supplied.)
The RTC, assessing the aforequoted testimonies, declared:
Maria Liza Patricio is credible. She recognizes the accused,
she was just behind him when he stabbed her husband who
was facing the accused. There was proper illumination of the
place x x x and her testimony was not destroyed in the cross-
examination. Her testimony is positive and spontaneous. The
Court notes nothing in her demeanor and flow of testimony that
would indicate some contradiction or incredibility.
The other witness, Pedro Luzon, corroborates the testimony of
Maria Liza Patricio. x x x.24
The RTC and the Court of Appeals brushed aside the alleged
inconsistencies in the testimonies of Maria Liza and Pedro,25
these being relatively trivial and insignificant, neither pertaining
to the act constitutive of the crime committed nor to the identity
of the assailant. Also, these minor contradictions were
expected from said witnesses as they differ in their impressions
of the incident and vantage point in relation to the victim and
the accused-appellant.
In contrast, accused-appellant admitted being present at the
scene and time of the commission of the crime but asserted
that one Dodong Danieles was the perpetrator thereof. Yet, the
RTC was unconvinced by the version of events as testified to
by accused-appellant himself and Cerilo, because:
In the observation of the Court, the accused is inconsistent and
he talked unintelligibly. His testimony is not credible and
perceived to be flimsy excuses. If it is true that his wife was
with him at the time of the incident and he was not involved in
the stabbing, why did he have to leave the place and his wife
and go to the house of his parents-in-law rather than their
house? The accused should have presented his wife to
corroborate his testimony in that regard, and also his parents-
in-law so the latter can testify regarding the alleged visitors, the
alleged parents of one Dodong Danieles who came to their
place when the accused was also there days after the incident,
telling him not to help the family of the victim.
The accused’s witness, Cerilo Pelos, is the farthest of the
expected witnesses for the defense. He and the accused were
not acquaintances and they only came to know each other in
prison where Pelos is also detained for another charge. x x x.
The testimony of the witness is hazy and full of generalities,
even the way he speaks, the Court notes some inconsistency
in his voice and incoherence in his testimony.26
A closer perusal of the testimony of accused-appellant’s
corroborating witness, Cerilo, reveals just how incoherent and
elusive he was in giving particular details about the stabbing
incident:
Q: Now, while you were there, what happened?
A: When I arrived there, I arrived with this people having a
drinking spree and I myself went to the other table near this
people and this quite thin or slim guy was standing in front of
them and one of these people who were having drinking spree
seemed to relieve himself not to the C.R. but beside the store.
Q: Now, you said a while ago that there were four (4)
companions of the accused. Now, tell us, were all of the four
(4) people that you are referring to that exclude the accused?
A: There were four (4) of them including the accused, sir.
Q: Now, you said that there was somebody from the group who
relieved himself, is that right?
A: Yes, sir, urinated.
Q: And what happened when he urinated?
A: He was confronted by that slim guy because he did not
urinate in the C.R. but just beside the store.
Q: And what happened when the confrontation took place?
A: They exchanged words and after that th[e] slim guy left the
one who urinated because it seemed that they were having an
argument.
Q: And then, what happened after that?
A: The one who confronted left and this accused stood up went
to this slim guy and talked to him.
Q: This slim guy you are referring to is the person who
urinated?
A: Yes, sir.
Q; And so what happened with that meeting between the
accused and the slim guy that you are referring to?
A: They were still and they were talking, sir.
Q: Were you able to hear what they were talking about?
A: No, sir, because the place was quite cacophonic.
Q: And what happened after that?
A: They were still talking when the one who urinated went back
to the table.
Q: And what happened after this person who urinated went
back to the table?
A: They conversed with the one wearing black and after the
conversation he stood up and went to the slim guy.
Q: Who stood up?
A: The one named Dodong, the one who was in black and the
one who stabbed.
Q: So, you said that this one wearing black approached the
slim guy?
A: Yes, sir.
Q: And what happened after that?
A: So then, he stabbed him and the one he stabbed ran away,
because he was hit.
Q: How about the accused, where was the accused then when
the man in black stabbed the slim guy?
A: There, and they were still convering (sic) with each other
with the slim guy, sir.
Q: And what did he do after the man in black stabbed the slim
[g]uy?
A: He ran away passing by the Apollo and (while the witness
was demonstrating by pressing his hand to his chest) that he
was hit.
Q: How about you, what did you do after that?
A: When the commotion of the people subsided, I asked from
the people around there about the name of the man in black
and after getting the name of the said person, I called up the
Police Precinct I to inform them about the incident.
Q: Now, this person whom you said who stabbed the victim,
did you meet him before?
A: Not yet, sir.
Q: As such a police asset, did you endeavor to know the
personalities who were involved in that stabbing incident?
A: Yes, sir.
Q: Now, did you get name?
A: I only got one name only the name of that guy in black, sir.
Q: Why, did you interview the man in black?
A: I asked from those who were there hanging out if ever they
know that person.
Q: Did you not follow the assailant after the stabbing incident?
A: No sir, because after I asked about his name from the
bystanders, I immediately called up.27 (Emphases supplied.)
Cerilo failed to mention what weapon was used to stab Guilbert
or describe the manner Guilbert was stabbed. Cerilo also
appeared to have mixed-up the personalities in his narration.
He first identified the "slim guy" to be Guilbert who
reprimanded the person who urinated, but he subsequently
referred to the "slim guy" as the person who urinated.
Moreover, Cerilo’s identification of the purported assailant of
Guilbert as a certain "Dodong" is highly unreliable, given that
Cerilo admitted that he learned of said assailant’s name from
an unidentified spectator of the stabbing incident.
The fact that it was accused-appellant who stabbed Guilbert to
death on the night of May 5, 2000 was already established
beyond reasonable doubt. The next question is what crime for
which accused-appellant should be held liable: murder as held
by the RTC or homicide as adjudged by the Court of Appeals.
We agree with the Court of Appeals that accused-appellant is
guilty only of homicide in the absence of the qualifying
circumstance of treachery.
In a number of cases, surveyed in People v. Rivera,28 we
ruled that treachery cannot be appreciated simply because the
attack was sudden and unexpected:
[W]e agree with accused-appellant that the qualifying
circumstance of treachery was not established. Surveying the
leading decisions on this question, in People v. Romeo Magaro
we recently stated:
In People v. Magallanes, this Court held:
"There is treachery when the offender commits any of the
crimes against the person, employing means, methods, or
forms in the execution thereof which tend directly and specially
to insure its execution, without risk to himself arising from the
defense which the offended party might make. Thus, for
treachery or alevosia to be appreciated as a qualifying
circumstance, the prosecution must establish the concurrence
of two (2) conditions: (a) that at the time of the attack, the
victim was not in a position to defend himself; and (b) that the
offender consciously adopted the particular means, method or
form of attack employed by him. . . .
. . . where the meeting between the accused and the victim
was casual and the attack was done impulsively, there is no
treachery even if the attack was sudden and unexpected. As
has been aptly observed the accused could not have made
preparations for the attack, . . .; and the means, method and
form thereof could not therefore have been thought of by the
accused, because the attack was impulsively done.
Treachery cannot also be presumed from the mere
suddenness of the attack. . . . In point is the following
pronouncement we made in People v. Escoto:
We can not presume that treachery was present merely from
the fact that the attack was sudden. The suddenness of an
attack, does not of itself, suffice to support a finding of
alevosia, even if the purpose was to kill, so long as the
decision was made all of a sudden and the victim's helpless
position was accidental. . . ."
In People v. Bautista, it was held:
". . . The circumstance that an attack was sudden and
unexpected to the person assaulted did not constitute the
element of alevosia necessary to raise homicide to murder,
where it did not appear that the aggressor consciously adopted
such mode of attack to facilitate the perpetration of the killing
without risk to himself. Treachery cannot be appreciated if the
accused did not make any preparation to kill the deceased in
such manner as to insure the commission of the killing or to
make it impossible or difficult for the person attacked to
retaliate or defend himself. . . ."
Applying these principles to the case at bar, we hold that the
prosecution has not proven that the killing was committed with
treachery. Although accused-appellant shot the victim from
behind, the fact was that this was done during a heated
argument. Accused-appellant, filled with anger and rage,
apparently had no time to reflect on his actions.1âwphi1 It was
not shown that he consciously adopted the mode of attacking
the victim from behind to facilitate the killing without risk to
himself. Accordingly, we hold that accused-appellant is guilty of
homicide only.29
Similar to Rivera and the cases cited therein, the prosecution in
the instant case merely showed that accused-appellant
attacked Guilbert suddenly and unexpectedly, but failed to
prove that accused-appellant consciously adopted such mode
of attack to facilitate the perpetration of the killing without risk
to himself. As aptly observed by the Court of Appeals:
While it appears that the attack upon the victim was sudden,
the surrounding circumstances attending the stabbing incident,
that is, the open area, the presence of the victim’s families and
the attending eyewitnesses, works against treachery. If
accused-appellant wanted to make certain that no risk would
come to him, he could have chosen another time and place to
stab the victim. Yet, accused-appellant nonchalantly stabbed
the victim in a public market at 7:00 o’clock in the evening. The
place was well-lighted and teeming with people. He was
indifferent to the presence of the victim’s family or of the other
people who could easily identify him and point him out as the
assailant. He showed no concern that the people in the
immediate vicinity might retaliate in behalf of the victim. In fact,
the attack appeared to have been impulsively done, a spur of
the moment act in the heat of anger or extreme annoyance.
There are no indications that accused-appellant deliberately
planned to stab the victim at said time and place. Thus, we can
reasonably conclude that accused-appellant, who at that time
was languishing in his alcoholic state, acted brashly and
impetuously in suddenly stabbing the victim. Treachery just
cannot be appreciated.30
Lastly, we review the penalty and damages imposed by the
Court of Appeals upon accused-appellant.
The penalty prescribed by law for the crime of homicide is
reclusion temporal.31 Under the Indeterminate Sentence Law,
the maximum of the sentence shall be that which could be
properly imposed in view of the attending circumstances, and
the minimum shall be within the range of the penalty next lower
to that prescribed by the Revised Penal Code.
Absent any mitigating or aggravating circumstance in this case,
the maximum of the sentence should be within the range of
reclusion temporal in its medium term which has a duration of
fourteen (14) years, eight (8) months, and one (1) day, to
seventeen (17) years and four (4) months; and that the
minimum should be within the range of prision mayor which
has a duration of six (6) years and one (1) day to twelve (12)
years. Thus, the imposition of imprisonment from twelve (12)
years of prision mayor, as minimum, to seventeen (17) years
and four (4) months of reclusion temporal, as maximum, is in
order.
As to the award of damages to Guilbert’s heirs, we affirm the
amounts of P50,000.00 as moral damages and P50,000.00 as
civil indemnity. Medical and burial expenses were indisputably
incurred by Guilbert’s heirs but the exact amounts thereof were
not duly proven. So in lieu of actual damages, we award
Guilbert’s heirs P25,000.00 as temperate damages. Article
2224 of the Civil Code provides that "[t]emperate or moderate
damages, which are more than nominal but less than
compensatory damages, may be recovered when the court
finds that some pecuniary loss has been suffered but its
amount can not, from the nature of the case, be proved with
certainty."32
WHEREFORE, the instant appeal of accused-appellant is
hereby DENIED for lack of merit. The Decision dated February
14, 2008 of the Court of Appeals in CA-G.R. CR.-H.C. No.
00270 is hereby AFFIRMED with MODIFICATION. Accused-
appellant Vicente Vilbar is found GUILTY of the crime of
HOMICIDE, for which he is SENTENCED to imprisonment of
twelve (12) years of prision mayor, as minimum, to seventeen
(17) years and four (4) months of reclusion temporal, as
maximum, and ORDERED to pay the heirs of Guilbert Patricio
the amounts of P50,000.00 as moral damages, P50,000.00 as
civil indemnity, and P25,000.00 as temperate damages.
G.R. No. 206381, March 25, 2015
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v.
DANIEL MATIBAG Y DE VILLA @ “DANI” OR “DANILO,”
Accused-Appellant.
Before the Court is an ordinary appeal1 filed by accused-
appellant Daniel Matibag y De Villa @ “Dani” or “Danilo”
(Matibag) assailing the Decision2 dated September 13, 2012 of
the Court of Appeals (CA) in CA-G.R. CR-HC No. 03759 which
affirmed in toto the Decision3 dated August 1, 2008 of the
Regional Trial Court of Pallocan West, Batangas City, Branch 3
(RTC) in Criminal Case No. 13941, finding Matibag guilty
beyond reasonable doubt of the crime of
Murder.chanroblesvirtuallawlibrary
The Facts
In an Amended Information4 dated May 5, 2005, Matibag was
charged with the crime of Murder defined and penalized under
Article 248 of the Revised Penal Code (RPC), as amended,5
the accusatory portion of which
reads:chanRoblesvirtualLawlibrary
That on or about March 27, 2005 at around 8:40 o’clock [sic] in
the evening at Iron Street, Twin Villa Subdivision, Brgy.
Kumintang Ibaba, Batangas City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused,
while armed with a Beretta Caliber .9MM Pistol with Serial No.
3191M9, a deadly weapon, with intent to kill and with the
qualifying circumstance of treachery, did then and there
willfully, unlawfully and feloniously attack, assault and shoot
with said pistol one Enrico Clar de Jesus Duhan, while the
latter was completely defenseless, thereby hitting him and
causing gunshot wounds at his head and chest, which directly
resulted to the victim’s death.
That the special aggravating circumstance of the use of
unlicensed firearm is attendant in the commission of the
offense.
Matibag entered a plea of not guilty during his arraignment.
After the termination of the pre-trial, trial on the merits
ensued.7cralawred
The prosecution asserted that at around 8:40 in the evening of
March 27, 2005, Enrico Clar de Jesus Duhan (Duhan), who
just came from a meeting with the other officers of the
homeowners’ association of Twin Villa Subdivision, was
walking along Iron Street in Brgy. Kumintang Ibaba, Batangas
City when Matibag confronted Duhan, and asked, “ano bang
pinagsasasabi mo?” Duhan replied “wala,” and without
warning, Matibag delivered a fist blow hitting Duhan on the left
cheek and causing him to teeter backwards. Matibag then
pulled out his gun and shot Duhan, who fell face-first on the
pavement. While Duhan remained in that position, Matibag
shot him several more times. PO2 Tom Falejo, a member of
the Philippine National Police, positively identified Matibag and
stated on record that he arrested the latter on the night of
March 27, 2005. Dr. Antonio S. Vertido who conducted an
autopsy on Duhan confirmed that the latter suffered gunshot
wounds in the head and chest which led to his death.
8cralawred
In his defense, Matibag alleged that on said date, he was at the
despedida party of his neighbor when Duhan arrived together
with the other officers of the homeowners’ association. Wanting
to settle a previous misunderstanding, Matibag approached
Duhan and extended his hand as a gesture of reconciliation.
However, Duhan pushed it away and said, “putang ina mo, ang
yabang mo,” thereby provoking Matibag to punch him in the
face. Matibag saw Duhan pull something from his waist and
fearing that it was a gun and Duhan was about to retaliate,
Matibag immediately drew his own gun, shot Duhan, and
hurriedly left the place. Matibag went to see his police friend,
Sgt. Narciso Amante, to turn himself in, but the latter was
unavailable at the time. As Matibag headed back home, he
was stopped by police officers who asked if he was involved in
the shooting incident. He then readily admitted his
involvement.9cralawred
The RTC Ruling
In a Decision10 dated August 1, 2008, the RTC convicted
Matibag as charged, sentencing him to suffer the penalty of
reclusion perpetua, and ordering him to pay the heirs of Duhan
the amounts of P50,000.00 as civil indemnity, P50,000.00 as
moral damages, ?59,000.00 as actual damages, and
P25,000.00 as exemplary damages.11cralawred
The RTC refused to give credence to Matibag’s claim of self-
defense as he failed to prove the presence of unlawful
aggression on Duhan’s part, finding that: (a) Duhan’s words
and actions prior to Matibag’s attack could not be considered
as a real threat against him; (b) no firearm was recovered from
the victim; (c) Matibag’s account that Duhan was about to pull
something from his waist, which thus led him to believe that he
was about to be shot, remained uncorroborated; and (d) the
number of gunshot wounds Duhan sustained contradicts the
plea of self-defense.12cralawred
Separately, the RTC appreciated the existence of the qualifying
circumstance of treachery since the attack was sudden,
unprovoked, and without any warning on the victim who was
unarmed and in a defenseless position.13 Likewise, the special
aggravating circumstance of use of unlicensed firearm was
appreciated since a firearm was used in the commission of a
crime and, hence, considered unlicensed.14cralawred
Dissatisfied, Matibag appealed15 to the
CA.chanroblesvirtuallawlibrary
The CA Ruling
In a Decision16 dated September 13, 2012, the CA affirmed
Matibag’s conviction in toto.17cralawred
The CA agreed with the RTC’s findings that: (a) treachery
attended the killing of Duhan as the attack on him was
sudden;18 and (b) an unlicensed firearm was used in
committing the crime, which is considered as a special
aggravating circumstance.19cralawred
Hence, the instant appeal.
The Issue Before the Court
The sole issue for the Court’s resolution is whether or not the
CA correctly upheld the conviction of Matibag for
Murder.chanroblesvirtuallawlibrary
The Court’s Ruling
The appeal is bereft of merit.
In the review of a case, the Court is guided by the long-standing
principle that factual findings of the trial court, especially when affirmed
by the CA, deserve great weight and respect. These factual findings
should not be disturbed on appeal, unless there are facts of weight and
substance that were overlooked or misinterpreted and that would
materially affect the disposition of the case. The Court has carefully
scrutinized the records and finds no reason to deviate from the RTC
and CA’s factual findings. There is no indication that the trial court,
whose findings the CA affirmed, overlooked, misunderstood or
misapplied the surrounding facts and circumstances of the case.
Hence, the Court defers to the trial court on this score, considering too
that it was in the best position to assess and determine the credibility of
the witnesses presented by both parties.20cralawred
On this score, the Court now proceeds to resolve this case on points of
law.
Matibag is charged with the crime of Murder, which is defined and
penalized under Article 248 of the RPC, as amended. In order to
warrant a conviction, the prosecution must establish by proof beyond
reasonable doubt that: (a) a person was killed; (b) the accused killed
him or her; (c) the killing was attended by any of the qualifying
circumstances mentioned in Article 248 of the RPC; and (d) the killing
is not Parricide or Infanticide.21cralawred
Under Article 14 of the RPC, there is treachery when the offender
commits any of the crimes against the person, employing means,
methods, or forms in the execution thereof which tend directly and
specially to ensure its execution, without risk to himself arising from the
defense which the offended party might make. In People v. Tan,22 the
Court explained that the essence of treachery is the sudden and
unexpected attack, without the slightest provocation on the part of the
person attacked.23 In People v. Perez,24 it was explained that a
frontal attack does not necessarily rule out treachery. The qualifying
circumstance may still be appreciated if the attack was so sudden and
so unexpected that the deceased had no time to prepare for his or her
defense.25cralawred
In this case, the prosecution was able to prove that Matibag, who was
armed with a gun, confronted Duhan, and without any provocation,
punched and shot him on the chest.26 Although the attack was frontal,
the sudden and unexpected manner by which it was made rendered it
impossible for Duhan to defend himself, adding too that he was
unarmed.27 Matibag also failed to prove that a heated exchange of
words preceded the incident so as to forewarn Duhan against any
impending attack from his assailant.28 The deliberateness of Matibag’s
act is further evinced from his disposition preceding the moment of
execution. As the RTC aptly pointed out, Matibag was ready and
destined to effect such dastardly act, considering that he had an axe to
grind when he confronted Duhan, coupled with the fact that he did so,
armed with a loaded handgun.29 Based on these findings, the Court
concludes that treachery was correctly appreciated.
This finding of treachery further correlates to Matibag’s plea of self-
defense. Note that by invoking self-defense, Matibag, in effect,
admitted to the commission of the act for which he was charged, albeit
under circumstances that, if proven, would have exculpated him. With
this admission, the burden of proof shifted to Matibag to show that the
killing of Duhan was attended by the following circumstances: (a)
unlawful aggression on the part of the victim; (b) reasonable necessity
of the means employed to prevent or repel such aggression; and (c)
lack of sufficient provocation on the part of the person resorting to self-
defense.30cralawred
Among the foregoing elements, the most important is unlawful
aggression. It is well-settled that there can be no self-defense, whether
complete or incomplete, unless the victim had committed unlawful
aggression against the person who resorted to self-defense.31
Jurisprudence states that not every form or degree of aggression
justifies a claim of self-defense.32 For unlawful aggression to be
appreciated, there must be an actual, sudden, and unexpected attack
or imminent danger thereof, not merely a threatening or intimidating
attitude,33 as against the one claiming self-defense.
Evidently, the treacherous manner by which Matibag assaulted Duhan
negates unlawful aggression in the sense above-discussed. As
mentioned, the prosecution was able to prove that the attack was so
sudden and unexpected, and the victim was completely defenseless.
On the other hand, Matibag’s version that he saw Duhan pull
something from his waist (which thereby impelled his reaction),
remained uncorroborated. In fact, no firearm was recovered from the
victim.34 Hence, by these accounts, Matibag’s allegation of unlawful
aggression and, consequently, his plea of self-defense cannot be
sustained. The foregoing considered, the Court upholds Matibag’s
conviction for the crime of Murder, qualified by treachery, as charged.
Moreover, as the RTC and CA held, the special aggravating
circumstance of use of unlicensed firearm, which was duly alleged in
the Information, should be appreciated in the imposition of penalty.
Presidential Decree No. (PD) 1866,35 as amended by Republic Act
No. (RA) 8294,36 treats the unauthorized use of a licensed firearm in
the commission of the crimes of homicide or murder as a special
aggravating circumstance:chanRoblesvirtualLawlibrary
Section 1. Presidential Decree No. 1866, as amended, is hereby
further amended to read as follows:
“Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or
Possession of Firearms or Ammunition or Instruments Used or
Intended to be Used in the Manufacture of Firearms or Ammunition. – x
x x.chanrobleslaw
“If homicide or murder is committed with the use of an unlicensed
firearm, such use of an unlicensed firearm shall be considered as an
aggravating circumstance.
Further, under Section 5 of RA 8294, the scope of the term “unlicensed
firearm” has already been expanded as follows:37cralawred
Sec. 5. Coverage of the Term Unlicensed Firearm. – The term
unlicensed firearm shall include:
1. firearms with expired license; or
2. unauthorized use of licensed firearm in the commission of the crime.
(Emphasis supplied)
cralawlawlibrary
Therefore, when Matibag killed Duhan with his firearm, the use thereof
was unauthorized under the purview of RA 8294 and is equally
appreciated as a special aggravating circumstance. As a result, the
imposition of the maximum penalty of death, which is reduced to
reclusion perpetua in light of RA 9346,38 stands proper. To this, the
Court adds that Matibag is not eligible for parole.39cralawred
Finally, case law provides that for death resulting from the crime of
Murder, the heirs of the victim are entitled to the following awards: (a)
civil indemnity ex delicto for the death of the victim without need of
evidence other than the commission of the crime;40 (b) actual or
compensatory damages to the extent proved,41 or temperate damages
when some pecuniary loss has been suffered but its amount cannot be
provided with certainty;42 (c) moral damages;43 and (d) exemplary
damages when the crime was committed with one or more aggravating
circumstances.44cralawred
In line with recent jurisprudence, civil indemnity in the amount of
P100,000.00 and moral damages in the amount of P100,000.00 are
awarded to Duhan’s heirs without need of evidence other than the
commission of the crime and Duhan’s death. Considering further that
the crime was committed with treachery, exemplary damages in the
sum of P100,000.00 is also granted.45cralawred
The award of P59,000.00 as actual damages should, however, be
deleted as the records do not show that the prosecution was able to
prove the amount actually expended. In lieu thereof, P25,000.00 as
temperate damages is awarded to conform with prevailing
jurisprudence.46 In addition, interest at the legal rate of six percent
(6%) per annum from date of finality of this Decision until fully paid is
imposed on all monetary awards.47cralawred
WHEREFORE, the appeal is DENIED. The Decision dated September
13, 2012 of the Court of Appeals in CA-G.R. CR-HC No. 03759 finding
accused-appellant Daniel Matibag y De Villa @ “Dani” or “Danilo”
GUILTY beyond reasonable doubt of the crime of Murder, defined and
penalized under Article 248 of the Revised Penal Code, as amended,
is hereby AFFIRMED with MODIFICATION sentencing him to suffer
the penalty of reclusion perpetua, without eligibility for parole, and
ordering him to pay the Heirs of Enrico Clar de Jesus Duhan the
amounts of P100,000.00 as civil indemnity, P100,000.00 as moral
damages, P100,000.00 as exemplary damages, and P25,000.00 as
temperate damages, in lieu of actual damages, all with legal interest at
the rate of six percent (6%) per annum from the finality of judgment
until full payment.
G.R. No. 195525 February 5, 2014
PEOPLE OF THE PIDLIPPINES, Plaintiff-Appellee,
vs.
WILFREDO GUNDA alias FRED, Accused-Appellant.
On appeal is the March 30, 2010 Decision1 of the Court of
Appeals (CA) in CA-G.R. CEB CR-HC No. 00397 which
affirmed with modification the May 20, 2005 Decision2 of the
Regional Trial Court (RTC) of Borongan, Eastern Samar,
Branch 2, finding appellant Wilfredo Gunda alias Fred
(appellant) guilty beyond reasonable doubt of the crime of
murder.
Factual Antecedents
At about 4:00 o'clock in the afternoon of May 25, 1997, the
victim, Eladio Globio, Sr., and his son, Eladio Jr., were walking
along a trail at Sitio Candulungon, Barangay Cabay,
Balangkayan, Eastern Samar. Suddenly, when Eladio Jr. was
about 10 meters ahead of his father, the latter was waylaid by
appellant and his unidentified companions. The John Does
held the victim's arms whereupon appellant stabbed him
several times. Fearing for his life, Eladio Jr. fled. The
unidentified assailants pursued him. Fortunately, he was able
to outrun them and was able to reach their house. In the
morning of the following day, Eladio Jr. went to the house of his
sister and informed her of the death of their father. They then
reported the incident to the police authorities who eventually
arrested the appellant. The body of the victim was recovered
and post-mortem examinations revealed that he suffered
multiple stab wounds which caused his death.
Aside from Eladio Jr., Teofilo Ambal, Jr. (Ambal) who is a
brother-in-law of the appellant, also witnessed the crime. In the
afternoon of May 25, 1997, while Ambal was at his farm
gathering feeds for his pigs, he saw appellant who was armed
with a wooden pole position himself at the back of the victim
and strike the latter’s head with the wood. The companions of
appellant then held the victim’s arms whereupon appellant
drew a bolo locally known as depang from his waist and
stabbed the victim several times. Fearing for his life, Ambal
likewise left the crime scene.
On July 31, 1997, an Information3 was filed charging appellant
and the John Does with the crime of murder. The accusatory
portion of the Information reads:
That on May 25, 1997, at about 4:00 o’clock in the afternoon at
Sitio Candulungon, Barangay Cabay, Balangkayan, Eastern
Samar, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused conspiring, confederating
and helping one another, with intent to kill and with evident
premeditation and treachery, and without justifiable cause, did
then and there wilfully, unlawfully and feloniously attack,
assault, stab and wound Eladio Globio, Sr., with the use of a
sharp bladed weapon (Depang) which the accused provided
themselves for the purpose, thereby inflicting injuries upon the
latter, which injuries caused the death of the victim, to the
damage and prejudice of the heirs of the victim.
CONTRARY TO LAW, with aggravating circumstances that the
crime committed in an uninhabited place and the superior
strength [sic].4
Arraigned on September 10, 1997, appellant pleaded not guilty
to the charge.5 The other accused who have not been
identified remained at large.
Appellant denied the charge against him. He claimed that in
the afternoon of May 25, 1997, he was at Barangay Camada
gathering and cleaning rattan poles.
Ruling of the Regional Trial Court
On May 20, 2005, the RTC of Borongan, Eastern Samar,
Branch 2, rendered its Decision6 finding appellant guilty as
charged. The dispositive portion of the Decision reads:
WHEREFORE, finding accused Wilfredo Gunda guilty beyond
reasonable doubt of the crime of murder, he is sentenced to
suffer the penalty of DEATH; and to pay the heirs of the victim
the sum of P50,000.00 as civil indemnity, another sum of
P50,000.00 as moral damages; and another sum of
P25,000.00 as exemplary damages.
SO ORDERED.7
The trial court disregarded the denial of the appellant. On the
other hand, it lent full credence to the testimonies of Eladio Jr.
and Ambal who both positively identified appellant as the
assailant. The RTC noted that their testimonies coincided with
the postmortem findings of Dr. Samuel Baldono that the victim
suffered multiple stab wounds which caused his death. The
RTC likewise brushed aside the alibi of appellant. It noted that
although he claimed that he was in Barangay Camada at the
time of the incident, appellant failed to prove that it was
physically impossible for him to be present at Barangay Cabay
where the crime took place. Appellant even admitted that the
distance between the two barangays could be traversed in an
hour or even less. The RTC also found that appellant
conspired with the John Does in committing the crime. It also
noted that treachery attended the commission of the crime
because the victim was unarmed and totally unaware of the
impending attack. The attack was sudden thus depriving the
victim of any opportunity to escape or defend himself.
In imposing the death penalty, the RTC considered treachery
and conspiracy as qualifying circumstances.
Ruling of the Court of Appeals
On March 30, 2010, the CA rendered its Decision, the
dispositive portion of which reads as follows:
WHEREFORE, premises considered, the appeal is DENIED.
The Decision dated May 20, 2005 of the Regional Trial Court
(RTC), 8th Judicial Region, Branch 2, Borongan, Eastern
Samar, is AFFIRMED with MODIFICATION that the lesser
penalty of Reclusion Perpetua instead of Death be imposed
against appellant.
SO ORDERED.8
The CA affirmed the factual findings of the trial court that
indeed, it was appellant, in conspiracy with the other John
Does, who killed the victim. The CA also agreed with the
findings of the trial court that the killing was done in a
treacherous manner. However, the CA noted that although the
trial court properly appreciated treachery and conspiracy to
have attended the commission of the crime, the presence of
both would not warrant the imposition of the death penalty. It
ratiocinated that -
Treachery in the present case is a qualifying, not a generic
aggravating circumstance. Its presence served to characterize
the killing as murder; it cannot at the same time be considered
as a generic aggravating circumstance to warrant the
imposition of the maximum penalty. Since treachery qualified
the commission of the crime to murder, this circumstance could
no longer be appreciated anew as a generic aggravating
circumstance to warrant the imposition of the death penalty.
Furthermore, although there was conspiracy in this case, it is
neither a qualifying circumstance [nor] a generic aggravating
circumstance to warrant the imposition of the supreme penalty
of death.
The penalty for the crime of murder is reclusion perpetua to
death. The two penalties being both indivisible, and there being
neither mitigating nor aggravating circumstances in the
commission of the deed, the lesser penalty of reclusion
perpetua should be applied pursuant to the second paragraph
of the Revised Penal Code.9
As regards the damages, the amount of civil indemnity must be
increased to P75,000.00 in line with prevailing jurisprudence.16
Exemplary damages must likewise be increased to
P30,000.00.17 Moral damages in the amount of P50,000.00,
however, was correctly awarded by the trial court and the
CA.18 Moreover, we note that the trial court and the CA did not
award actual damages. In lieu thereof, we award temperate
damages in the amount of P25,000.00 "as it cannot be denied
that the heirs of the [victim] suffered pecuniary loss although
the exact amount was not proved."19 "This award is
adjudicated so that a right which has been violated may be
recognized or vindicated, and not for the purpose of
indemnification."20 In addition, all damages awarded shall earn
interest at the rate of 6% per annum from date of finality of this
judgment until fully paid.21

Aggrieved, appellant filed this appeal10 to which the CA gave WHEREFORE, the appeal is DISMISSED. The March 30, 2010
due course in its Resolution11 of December 1, 2010. Decision of the Court of Appeals in CA-G.R. CEB CR-HC No.
00397 which affirmed with modification the May 20, 2005
On March 21, 2011, we required the parties to file their Decision of the Regional Trial Court of Borongan, Eastern
respective supplemental briefs.12 However, both parties opted Samar, Branch 2, finding appellant Wilfredo Gunda alias Fred
not to file their briefs anymore considering that their arguments guilty beyond reasonable doubt of the crime of murder is
had been amply discussed in the briefs that they filed before AFFIRMED with MODIFICATIONS. As modified, appellant is
the CA.13 sentenced to suffer the penalty of reclusion perpetua without
eligibility for parole and is ordered to pay the heirs of the victim
Our Ruling the amounts of P75,000.00 as civil indemnity, PS0,000.00 as
moral damages, P30,000.00 as exemplary damages, and
We dismiss the appeal. P25,000.00 as temperate damages. Interest on all damages
awarded is imposed at the rate of 6% per annum from date of
Based on the above narrations, we find no cogent reason to finality of this judgment until fully paid.
depart from the findings of the trial court as affirmed by the CA,
that appellant is guilty beyond reasonable doubt of the crime of
murder. Two prosecution witnesses positively identified him as
the person who waylaid the victim, and with the help of his
conspirators, stabbed the victim several times. According to the
postmortem findings, the victim suffered 12 stab wounds which
caused his death. There is also no doubt in our mind that the
attack on the victim was attended by treachery. The victim was
unarmed and had no inkling of the impending attack on his
person. In fact, he was just on his way home together with his
son Eladio Jr. The victim was attacked by appellant from
behind with a blow to his head with a wooden pole. His cohorts
then held the victim’s arms rendering him helpless and
immobile. In such position, there is no opportunity for the victim
to escape or even offer a feeble resistance. Appellant then
delivered the coup de grâce by stabbing the victim multiple
times. Undoubtedly, treachery qualified the killing to murder.
"There is treachery when the offender commits [a crime]
against the person, employing means, methods or forms in the
execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense
which the offended party might make."14 As regards
conspiracy, the CA correctly ruled that it is not a circumstance
which would aggravate or qualify the crime.

Under Article 248 of the Revised Penal Code, the penalty for
murder is reclusion perpetua to death.1âwphi1 There being no
other aggravating circumstance other than the qualifying
circumstance of treachery, the CA correctly held that the
proper imposable penalty is reclusion perpetua, the lower of
the two indivisible penalties. "It must be emphasized, however,
that [appellant is] not eligible for parole pursuant to Section 3 of
Republic Act No. 9346 which states that ‘persons convicted of
offenses punished with reclusion perpetua, or whose sentence
will be reduced to reclusion perpetua by reason of this Act,
shall not be eligible for parole under Act No. 4180, otherwise
known as the Indeterminate Sentence Law, as amended’."15
G.R. No. 171018 September 11, 2009
PEOPLE OF THE PHILIPPINES, Plaintiff-appellee,
vs.
ELLY NAELGA, Accused-Appellant.
For Review under Rule 45 of the Revised Rules of Court is the
Decision1 dated 30 November 2005 of the Court of Appeals in
CA-G.R. CR No. 00304 entitled People of the Philippines v.
Elly Naelga, affirming the Decision2 rendered by the Regional
Trial Court (RTC) of Rosales, Pangasinan, Branch 53, in
Criminal Case No. 4649-R, finding Elly Naelga guilty of the
illegal sale of methamphetamine hydrochloride, more popularly
known as shabu.
By virtue of a Criminal Complaint, accused-appellant Elly
Naelga y Bongay (accused-appellant) was indicted before the
RTC of Rosales, Pangasinan, Branch 53, for violation of
Sections 53 and 11(3),4 Article II of Republic Act No. 9165,
otherwise known as the Comprehensive Dangerous Drugs Act
of 2002, the accusatory portion of which reads:
That on or about 3:00 o’clock in the afternoon of July 15, 2003,
in Poblacion, Municipality of Rosales, Province of Pangasinan,
Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, did then and there willfully,
unlawfully and feloniously have in his possession, control and
custody the following, to wit: one (1) piece of small transparent
plastic containing "Shabu" weighing more or less 0.4 grams
which he sold to a poseur-buyer designated by the police, and
without having the necessary permit or license to possess the
same.
Contrary to Article II, Sec. 5 and Sec. 11(3) of R.A. 9165.5
Upon arraignment on 27 August 2003, accused-appellant
pleaded not guilty.6
A pre-trial conference was held on 16 September 2003 in the
presence of the government prosecutor, the accused and his
counsel. Based on the pre-trial order issued by the trial court
on 16 September 2003, the defense only admitted to the
identity of the accused-appellant and the fact of his
apprehension, but denied any knowledge of the existence of a
buy-bust operation. The defense limited its testimonial
evidence to that of accused-appellant himself. On the other
hand, the prosecution limited its testimonial evidence to the
stipulations of Police Officer (PO) 2 Noe Sembran, PO1
Rosauro Valdez, and Forensic Chemist Emelda Besarra
Roderos. The prosecution’s documentary evidence included
the following: (a) Affidavit executed by PO2 Sembran who
acted as poseur-buyer; (b) the marked money/P100 bill with
Serial No. GW877766 recovered from accused-appellant; (c)
confiscation receipt; (d) Chemistry Report; and (e) sachet of
shabu handed by accused-appellant to PO2 Sembran.
Thereafter, trial on the merits ensued.
The prosecution supported its version of the events through
documentary evidence and the testimonies of its two witnesses
from the Rosales Police Station in Rosales, Pangasinan,
namely: PO2 Noe Sembran and PO1 Rosauro Valdez.
PO2 Noe Sembran testified that upon receiving information
from a civilian asset that the accused Elly Naelga was peddling
illegal drugs at the public market of Rosales, Pangasinan,
Police Chief Inspector Policarpio Cayabyab, Jr. hatched a plan
to conduct a buy-bust operation to apprehend the accused.
PO2 Sembran was tasked to act as poseur-buyer, with PO1
Danilo Asis, Senior Police Officer (SPO) 1 Jesus Caspillo, and
PO1 Rosauro Valdez as backup operatives. The money used
for the buy-bust operation was provided by the Rosales
Treasurer’s Office and affixed thereto were his signature and
that of the municipal treasurer of Rosales.
In his testimony, PO2 Sembran narrated that on 15 July 2003,
he was informed by an asset that accused-appellant Elly
Naelga was selling illegal drugs at the Rosales Public Market in
Pangasinan. Thereafter, at about three o’clock in the afternoon
of the same day, PO2 Sembran went inside the public market
and approached accused-appellant. PO2 Sembran was
familiar with accused-appellant, because the police’s
confidential agent had been monitoring accused-appellant’s
activities for several weeks. PO2 Sembran talked to accused-
appellant, who asked the former if he was a security guard, to
which he replied in the affirmative. While engaged in this
conversation, PO2 Sembran asked the accused-appellant what
he could use to keep him awake while on duty as a security
guard. Accused-appellant suggested that he drink Red Bull.
PO2 Sembran replied that he already did, but this did not work,
and that he was caught sleeping on his post. Accused-
appellant then declared that he knew something more
effective, as he passed his index finger under his nose as if
sniffing something. When asked what he meant, accused-
appellant told PO2 Sembran that he was referring to bato or
shabu. PO2 Sembran said he was willing to try this and to buy
Five Hundred Pesos (P500.00) worth of shabu. Accused-
appellant told PO2 Sembran to give him the money and
committed to return with the shabu. PO2 Sembran gave
appellant four One Hundred Pesos (P400.00) in marked bills.
Upon receiving the money, accused-appellant left. PO2
Sembran went back to the police station to plan the arrest of
accused-appellant.1avvphi1
Police Chief Inspector Policarpio C. Cayabyab, Jr. instructed
PO2 Sembran to act as a poseur-buyer and the other members
of the team as backup. PO2 Sembran and his fellow police
officers returned to the public market almost an hour later.
They waited for accused-appellant until he finally arrived,
alighting from a tricycle. PO2 Sembran followed him in an alley.
There were people sleeping on bamboo tables in the alley, and
PO2 Sembran expressed apprehension at being noticed.
Accused-appellant reassured him that they would not be
disturbed and immediately asked for the balance of One
Hundred Pesos (P100.00). PO2 Sembran gave accused-
appellant the marked money. Thereupon, accused-appellant
took out a sachet containing white granules and handed it to
PO2 Sembran, who then revealed that he was a policeman.
Accused-appellant tried to run, but PO2 Sembran held on to
the former’s belt. They struggled and fell to the pavement. PO1
Valdez came to help PO2 Sembran arrest accused-appellant.
PO2 Sembran was able to recover the One-Hundred-Peso
(P100.00) bill from accused-appellant, who had used the Four
Hundred Pesos (P400.00) he earlier received to buy shabu.
Accused-appellant was taken into custody, and PO2 Sembran
executed an affidavit of arrest. The plastic sachet containing
0.04 gram of white crystalline substance purchased from
accused-appellant for P500.00 was marked "EN" and taken to
the Philippine National Police (PNP) Regional Crime
Laboratory Office in Camp Florendo, San Fernando, La Union,
for laboratory examination.7 The four marked One-Hundred-
Peso bills earlier given to accused-appellant were no longer
with him, but the last P100.00 marked bill later paid to him was
recovered.
PO1 Rosauro Valdez corroborated PO2 Sembran’s testimony,
narrating how he acted as backup in connection with the buy-
bust operation that led to the arrest of accused-appellant.
The parties agreed to dispense with the testimony of the
Chemist, Police Inspector Emelda Besarra Roderos, who
conducted the laboratory examination of the subject drug,
considering that the defense admitted the existence,
authenticity and due execution of Chemistry Report Number D-
260-2003-U dated 16 July 2003, showing that the laboratory
examination of the drug confiscated from accused-appellant
yielded a positive result for methamphetamine hydrochloride or
shabu, a dangerous drug. 8
For the defense, accused-appellant took the witness stand.
Accused-appellant denied the accusations against him. He
testified that he was employed by a Muslim named Khadi to
sell compact discs (CDs) in a stall located inside the public
market of Rosales, Pangasinan. PO2 Sembran, who
introduced himself as a security guard, had previously been
buying CDs from him. One Saturday, the exact date of which
he could not recall, PO2 Sembran came at around 8:30 in the
morning and bought a battery worth P5.00. On Tuesday of the
following week or on 15 July 2003, PO2 Sembran returned and
asked accused-appellant to buy shabu for him saying, "We
need that this evening." He told PO2 Sembran that he did not
know anybody selling shabu; nonetheless, PO2 Sembran left
P400.00, which was placed beside him. He took the money,
because it might get lost. At around 3:00 o’clock in the
afternoon of the same day, PO2 Sembran came back to the
stall and waited for him. When he arrived, he gave to PO2
Sembran what he bought. Accused-appellant admitted,
although not certain, that what he bought was shabu, which he
gave to PO2 Sembran. After accused-appellant handed over
the shabu and while he was leaving the place, PO2 Sembran
called him back uttering, "Pare, come here," and then
handcuffed him. PO2 Sembran told him, "Pare, I am a
policeman" (pulis ako). On cross examination, accused-
appellant admitted buying the subject shabu in Urdaneta City.
After hearing, the trial court rendered judgment on the merits.
Finding that the prosecution had proven accused-appellant’s
guilt beyond reasonable doubt, the RTC promulgated its
Decision on 21 June 2004 convicting him of the offense
charged, sentencing him to Life Imprisonment, and imposing
on him a fine of P500,000.00, disposing as follows:
WHEREFORE, the Court hereby finds the accused Elly Naelga
guilty beyond reasonable doubt of the crime of illegal sale of
Methamphetamine Hydrochloride or "shabu" as charged,
defined and penalized under Article II, Section 5 of Republic
Act (RA) No. 9165. Accordingly, he is sentenced to suffer life
imprisonment; to pay a fine of Five Hundred Thousand Pesos
(P500,000.00); and, to pay the costs of suit.9
Accused-appellant appealed the decision of the RTC to the
Court of Appeals. On 30 November 2005, the Court of Appeals
rendered a Decision affirming the challenged decision of the
trial court, reasoning thus:
[T]here is no rigid or textbook method of conducting buy-bust
operations. The choice of effective ways to apprehend drug
dealers is within the ambit of the police authority – police
officers have the expertise to determine which specific
approaches are necessary to enforce their entrapment
operations. The court’s duty in these cases is to ensure that
the rights of the accused have not been violated during buy-
bust operations.
The failure of the police authorities to comply strictly with the
Dangerous Drugs Board’s Resolution on the chain of custody
of the seized shabu and its preservation, by itself, is not fatal to
the prosecution’s case. What is essential or necessary is that
after the subject shabu was seized, the same was duly
identified, marked or preserved, and duly submitted to the
crime laboratory for examination. x x x.
x x x We always adhere to the well-entrenched doctrine in our
jurisdiction that the findings of facts of the trial court, its
calibration of the collective testimonies of the witnesses, its
assessment of the probative weight of the evidence of the
parties as well as its conclusions anchored on said findings are
accorded by the appellate court high respect. In the absence of
any showing that a judge’s factual findings were reached
arbitrarily or without sufficient basis, these findings are to be
received with great respect by the Supreme Court, and indeed
are binding upon it.
Prescinding therefrom, We hold that the court a quo had
sufficiently and clearly established both the factual and legal
basis that led to the verdict of conviction of accused-appellant
Naelga. The Court a quo’s findings and pronouncement that
the police officers who conducted the buy-bust operation
against accused-appellant Naelga, did so pursuant to their
lawful exercise of police functions should gain respect from Us.
This is so because the defense miserably failed to produce any
contrary evidence that would show even how remotely it was,
that police officers Sembran and Valdez were motivated with
grudge or ill-will to allow injustice to be committed against the
person of accused-appellant if their accusation was
fabricated.10
Via a Notice of Appeal,11 accused-appellant elevated the case
to this Court, which thereafter resolved to require the parties to
simultaneously file their respective supplemental briefs, if they
so desired, within 30 days from notice.12 Both the prosecution
and the defense opted to adopt their respective supplemental
briefs filed before the Court of Appeals for purposes of
expediency.13
In its brief, the defense raises the following issues for
resolution by this Court:
I. THE LOWER COURT GRAVELY ERRED IN GIVING
CREDENCE TO THE INCONSISTENT AND INCREDIBLE
TESTIMONIES OF THE PROSECUTION WITNESSES.
II. THE LOWER COURT GRAVELY ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY BEYOND REASONABLE
DOUBT OF THE CRIME CHARGED BASED ON THE
DISPUTABLE PRESUMPTION THAT THE POLICE
OFFICERS REGULARLY PERFORMED THEIR OFFICIAL
FUNCTIONS.
We sustain accused-appellant’s conviction.
Accused-appellant denies the charges against him and attacks
the credibility of the prosecution witnesses.
The core issue for resolution is the issue of the credibility of the
witnesses.
Accused-appellant questions the trial court’s reliance on the
credibility of the two prosecution witnesses in convicting him on
several grounds. First, material inconsistencies and gross
contradictions in the testimonies of the police officers
destroyed their credibility. Second, accused-appellant alleges
that the police officers failed to observe the proper guidelines in
securing the chain of custody of the prohibited drugs; this
alleged failure to follow proper procedure raises doubts as to
whether the specimen examined by the forensic chemist and
presented in court was indeed the one retrieved from accused-
appellant. Thus, there can be no presumption of regularity.
On the other hand, the Office of the Solicitor General is for
sustaining accused-appellant’s conviction, arguing that the
alleged inconsistencies are minor and inconsequential and, in
fact, do not negate the occurrence of the buy-bust operation
and accused-appellant’s involvement.
The instant controversy involves no less than the liberty of
accused-appellant. The presumption of innocence of an
accused in a criminal case is a basic constitutional principle,
fleshed out by procedural rules that place on the prosecution
the burden of proving that the accused is guilty of the offense
charged by proof beyond reasonable doubt. This being an
appeal of a criminal case, opening the entire case up for
review, we have carefully reviewed and evaluated the records
and the decisions of the RTC and the Court of Appeals and
find no reason to deviate from their rulings.
At the outset, it should be pointed out that prosecutions
involving illegal drugs largely depend on the credibility of the
police officers who conducted the buy-bust operation.
Considering that this Court has access only to the cold and
impersonal records of the proceedings, it generally relies upon
the assessment of the trial court.14 This Court will not interfere
with the trial court’s assessment of the credibility of witnesses
except when there appears on record some fact or
circumstance of weight and influence which the trial court has
overlooked, misapprehended, or misinterpreted.15 This rule is
consistent with the reality that the trial court is in a better
position to decide the question, having heard the witnesses
themselves and observed their deportment and manner of
testifying during the trial.16 Thus, factual findings of the trial
court, its calibration of the testimonies of the witnesses, and its
conclusions anchored on its findings are accorded by the
appellate court high respect, if not conclusive effect, more so
when affirmed by the Court of Appeals, as in this case.
A successful prosecution for the illegal sale of
dangerous/prohibited drugs must establish the following
elements:
(1) identities of the buyer and seller, the object, and the
consideration; and
(2) the delivery of the thing sold and the payment therefor.17
As correctly found by the trial court, accused-appellant was
caught in a buy-bust operation. He was caught in flagrante
delicto selling a dangerous drug, methamphetamine
hydrochloride or shabu, to PO2 Noe Sembran on 15 July 2003
at the public market of Rosales, Pangasinan, established not
only by the clear, straightforward, and convincing testimony of
poseur-buyer PO2 Noe Sembran and corroborated by PO1
Rosauro Valdez, but also by accused-appellant’s testimony.
Accused-appellant himself confirmed and admitted to the
occurrence of said transaction. Following his testimony, he
admitted to taking the P400.00 left by PO2 Sembran for the
purchase of shabu, thereafter going to his alleged source in
Urdaneta City, and then returning with the shabu to the
Rosales Public Market, and handing the sachet over to PO2
Sembran. The foregoing were not only undisputed but were, in
fact, admitted by accused-appellant himself in his testimony.
Thus, there is no denying that the said transaction indeed took
place.
Desperate to get himself absolved from culpability, accused-
appellant submits in the alternative that the facts as presented
by the prosecution reveal that the law enforcers, specifically
PO2 Sembran, instigated him to sell shabu. Accused-appellant
claims that it was PO2 Sembran who approached and asked
him to buy shabu, leaving the money even if he said he did not
know anybody selling shabu.
We find no instigation in this case. The general rule is that it is
no defense to the perpetrator of a crime that facilities for its
commission were purposely placed in his way, or that the
criminal act was done upon the "decoy solicitation" of persons
seeking to expose the criminal, or that detectives feigning
complicity in the act were present and apparently assisting in
its commission. This is particularly true in that class of cases
where the offense is of a kind habitually committed, and the
solicitation merely furnishes evidence of a course of conduct.
Mere deception by the detective will not shield defendant, if the
offense was committed by him free from the influence or the
instigation of the detective.18
Here, the law enforcers received a report from their confidential
informant that accused-appellant was engaged in illegal drug
trade in the public market of Rosales. Poseur-buyer PO2
Sembran then pretended to be engaged in the drug trade
himself and, with the help of his fellow buy-bust operatives,
arrested accused-appellant in the act of delivering the shabu to
him. In an entrapment, ways and means are resorted to for the
purpose of trapping and capturing the lawbreakers in the
execution of their criminal plan. In instigation, the instigator
practically induces the would-be defendant into the commission
of the offense, and himself becomes a co-principal. Entrapment
is no bar to prosecution and conviction; in instigation, the
defendant would have to be acquitted.
A buy-bust operation is a form of entrapment, which in recent
years has been accepted as a valid and effective mode of
arresting violators of the Dangerous Drugs Law. In a buy-bust
operation, the idea of committing a crime originates from the
offender, without anybody inducing or prodding him to commit
the offense.19 In the case at bar, the buy-bust operation was
formed by the police officers precisely to test the veracity of the
tip and in order to apprehend the perpetrator.
While accused-appellant claims that it was PO2 Sembran who
approached and asked him to buy shabu for him, the same
cannot be considered as an act of instigation, but an act of
"feigned solicitation." Instigation is resorted to for purposes of
entrapment, based on the tip received from the police
informant that accused-appellant was peddling illegal drugs in
the public market of Rosales. In fact, it was accused-appellant
who suggested to PO2 Sembran to use shabu; and, despite
accused-appellant’s statement that he did not know anybody
selling shabu, he still took the money from PO2 Sembran and
directly went to Urdaneta, where he claimed to have bought the
illegal drug. Then he returned to the Rosales public market and
gave the drug to PO2 Sembran.
The records of the case disclose that PO2 Noe Sembran, the
designated poseur-buyer in the buy-bust operation, positively
identified accused-appellant as the seller of the confiscated
shabu. His testimony was corroborated by PO1 Rosauro
Valdez. The object of the corpus delicti was duly established by
the prosecution. The sachet confiscated from accused-appellant
was positively identified, marked and preserved as evidence, and upon
laboratory examination yielded positive for shabu.
Accused-appellant’s assertion that the police operatives failed to
comply with the proper procedure in the chain of custody of the seized
drugs is premised on the idea that non-compliance with the procedure
in Section 21(a), Article II of the Implementing Rules and Regulations
of Republic Act No. 9165 creates an irregularity and overcomes the
presumption of regularity accorded police authorities in the
performance of their official duties.
The argument fails.
Contrary to appellant’s claim, there is no broken chain in the custody of
the seized items, later on determined to be shabu, from the moment of
its seizure by the entrapment team, to its delivery to the investigating
officer, to the time it was brought to the forensic chemist at the PNP
Crime Laboratory for laboratory examination. It was duly established by
documentary, testimonial, and object evidence, including the markings
on the plastic sachet containing the shabu indicating that the
substance tested by the forensic chemist, whose laboratory tests were
well-documented, was the same as that taken from accused-appellant.
Failure of the buy-bust team to strictly comply with the provisions of
said section did not prevent the presumption of regularity in the
performance of duty from applying. 20
The procedure for the custody and disposition of confiscated, seized
and/or surrendered dangerous drugs, among others, is provided under
Section 21(1), Article II of Republic Act No. 9165:
(1) The apprehending team having initial custody and control of the
drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused or
the person/s from whom such items were confiscated and/or seized, or
his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory and be given a
copy thereof.
Section 21(a), Article II of the Implementing Rules and Regulations of
Republic Act No. 9165, which implements said provision, reads:
(a) The apprehending officer/team having initial custody and control of
the drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused or
the person/s from whom such items were confiscated and/or seized, or
his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory and be given a
copy thereof; x x x Provided, further, that non-compliance with these
requirements under justifiable grounds, as long as the integrity and the
evidentiary value of the seized items are properly preserved by the
apprehending officer/team, shall not render void and invalid such
seizures of and custody over said items.
The above provision further states that non-compliance with the
stipulated procedure, under justifiable grounds, shall not render void
and invalid such seizures of and custody over said items, for as long as
the integrity and evidentiary value of the seized items are properly
preserved by the apprehending officers. The evident purpose of the
procedure provided for is the preservation of the integrity and
evidentiary value of the seized items, as the same would be utilized in
the determination of the guilt or the innocence of the accused. Its
absence, by itself, is not fatal to the prosecution’s case and will not
discharge accused-appellant from his crime. What is of utmost
importance is the preservation of the integrity and the evidentiary value
of the seized items, as the same would be utilized in the determination
of the guilt or innocence of the accused. In the instant case, the
integrity of the drugs seized remained intact, and the crystalline
substance contained therein was later on determined to be positive for
methamphetamine hydrochloride (shabu).
Before the enactment of Republic Act No. 9165, the requirements
contained in Section 21(1) were already present, per Dangerous Drugs
Board Regulation No. 3, Series of 1979. Despite such regulation and
the non-compliance therewith by the buy-bust team, the Court still
applied the presumption of regularity, holding:
The failure of the arresting police officers to comply with said DDB
Regulation No. 3, Series of 1979 is a matter strictly between the
Dangerous Drugs Board and the arresting officers and is totally
irrelevant to the prosecution of the criminal case for the reason that the
commission of the crime of illegal sale of a prohibited drug is
considered consummated once the sale or transaction is established x
x x and the prosecution thereof is not undermined by the failure of the
arresting officers to comply with the regulations of the Dangerous
Drugs Board. 21
Assuming arguendo that the presumption of regularity in the performance of
official duty will not apply due to the failure to comply with Section 21(a), the
same will not automatically lead to the exoneration of the accused.
Accused-appellant’s conviction was based not solely on said presumption,
but on the documentary and real evidence; and, more importantly, on the
oral evidence of prosecution witnesses, whom we found to be credible. One
witness is sufficient to prove the corpus delicti - that there was a
consummated sale between the poseur-buyer and the accused - there
being no quantum of proof as to the number of witnesses to prove the
same. To emphasize, accused-appellant himself verified in his testimony
that the said transaction took place.
The inconsistencies pointed out by the defense pertaining to whether or not
he was already inside the public market of Rosales at the time the
operatives returned, or if the buy-bust team saw him alighting from a
tricycle, is an inconsistency immaterial to the commission of the offense
and, thus, cannot affect the overall credibility of the prosecution witnesses.
The records of the case indicate that after his arrest, accused-appellant was
taken into police custody. After the arrest, the seized item, which had the
marking "EN" and alleged to contain shabu, was brought to the PNP crime
laboratory for examination.22 The request for laboratory examination and
transfer of the confiscated sachet to the PNP crime laboratory was prepared
by Chief of Police Policarpio C. Cayabyab, Jr.23 The request indicated that
the seized item was delivered by PO3 Resuello, Jr. and received by
Forensic Chemist P/Insp. Emelda Besarra Roderos,24 the same person
who conducted laboratory tests on the substance. The transparent plastic
sachet containing a white crystalline substance was later on determined to
be positive for methylamphetamine hydrochloride or shabu.
PO2 Sembran positively identified the plastic sachet containing shabu,
which he had bought from accused-appellant in the buy-bust operation.
Thus, the identity of the shabu taken from accused-appellant had been duly
preserved and established by the prosecution. Besides, the integrity of the
evidence is presumed to be preserved, unless there is a showing of bad
faith, ill will, or proof that the evidence has been tampered with. The
accused-appellant in this case bears the burden of making some showing
that the evidence was tampered or meddled with to overcome the
presumption of regularity in the handling of exhibits by public officers and
the presumption that public officers properly discharged their duties. There
is no doubt that the sachet marked "EN," which was submitted for
laboratory examination and found to be positive for shabu, was the same
one sold by accused-appellant to the poseur-buyer PO2 Sembran during
the buy-bust operation.
Finally, accused-appellant’s claim that he is a victim of a frame-up is viewed
by this Court with disfavor, because being a victim can easily be feigned
and fabricated. There being no proof of ill motive on the part of the police
operatives to falsely accuse him of such a grave offense, the presumption
of regularity in the performance of official duty and the findings of the trial
court with respect to the credibility of witnesses shall prevail over the claim
of the accused-appellant.25 While the presumption of regularity in the
performance of official duty by law enforcement agents should not by itself
prevail over the presumption of innocence, for the claim of frame-up to
prosper, the defense must be able to present clear and convincing evidence
to overcome this presumption of regularity, which the defense was not able
to proffer.
Accused-appellant was charged with the unauthorized sale and delivery of
a dangerous drug in violation of the provisions of Section 5, Article II of
Republic Act No. 9165.
Under Section 5, Article II of Republic Act No. 9165, the penalty of life
imprisonment to death and a fine ranging from P500,000.00 to
P1,000,000.00 shall be imposed upon any person, who, unless authorized
by law, shall sell, trade, administer, dispense, deliver, give away to another,
distribute, dispatch in transit or transport any dangerous drug, including any
and all species of opium poppy regardless of the quantity and purity
involved.
Thus, the trial court, as affirmed by the Court of Appeals, correctly imposed
the penalty of life imprisonment and a fine of P500,000.00.
WHEREFORE, premises considered, the Decision of the Court of Appeals
in CA-G.R. CR No. 00304 convicting accused-appellant ELLY NAELGA of
violation of Section 5, Article II of Republic Act No. 9165, and sentencing
him to suffer the penalty of life imprisonment and to pay a fine of
P500,000.00 is hereby AFFIRMED.