Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 176102               November 26, 2014

ROSAL HUBILLA y CARILLO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

RESOLUTION

BERSAMIN, J.:

The Court recognizes the mandate of Republic Act No. 9344 (Juvenile Justice and Welfare Act of 2006) to
protect the best interest of the child in conflict with the law through measures that will ensure the observance of
international standards of child protection,  and to apply the principles of restorative justice in all laws, policies
1

and programs applicable to children in conflict with the law.  The mandate notwithstanding, the Court will not
2

hesitate or halt to impose the penalty of imprisonment whenever warranted on a child in conflict with the law.

Antecedents

The Office of the Provincial Prosecutor of Camarines Sur charged the petitioner with homicide under the
following information docketed as Criminal Case No. 2000-0275 of the Regional Trial Court (RTC), Branch 20, in
Naga City, to wit:

That on or about the 30th day of March, 2000 at about 7:30 P.M., in Barangay Dalupaon, Pasacao, Camarines
Sur, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, and
without any justifiable cause, did then and there willfully, unlawfully and feloniously assault, attack and stab one
JAYSON ESPINOLA Y BANTA with a knife , inflicting upon the latter mortal wounds in his body, thus, directly
causing his death, per Death Certification hereto attached as annex "A" and made an integral part hereof, to the
damage and prejudice of the deceased’s heirs in such amount as may be proven in court.

Acts Contrary to Law. 3

The CA summarized the facts established by the Prosecution and the Defense as follows: Alejandro Dequito
testified that around seven in the evening or so of March 30, 2000, he, together with his compadre Nicasio, was
at the gate of Dalupaon Elementary School watching the graduation ceremony if the high school students. While
watching, his cousin Jason Espinola, herein victim, arrived. Later, however, appellant approached the victim and
stabbed the latter. When asked to demonstrate in open court how the appellant stabbed the victim, this witness
demonstrated that with the appellant’s left arm around the neck of the victim, appellant stabbed the victim using
a bladed weapon.

He aided the victim as the latter was already struggling to his feet and later brought him to the hospital.

Nicasio Ligadia, witness Dequito’s companion at the time of the incident, corroborated the testimony of Dequito
on all material points.

Marlyn Espinosa, the mother of the deceased, testified that her son was stabbed in front of the [elementary]
school and later brought to the Bicol Medical Center. She stated that her son stayed for more than a month in
the hospital. Thereafter, her son was discharged. Later, however, when her son went back to the hospital for a
check-up, it was discovered that her son’s stab wound had a complication. Her son was subjected to another
operation, but died the day after. She, further, stated that the stabbing incident was reported to the police
authorities. She, likewise, stated the amounts she incurred for the wake and burial of her son.

Robert Casin, the medico legal expert, testified that the cause of death of the victim, as stated by Dr. Bichara,
his co-admitting physician, was organ failure overwhelming infection. He, further, stated that the underlined
cause of death was a stab wound.
The appellant, in his testimony, narrates his statement of facts in this manner:

He testified that around seven inthe evening or so of March 30, 2000, he was at the Dalupaon High School
campus watching the high school graduation rites. At half past seven, while walking towards the gate of
Dalupaon High School on his way home, he was ganged up by a group of four (4) men.

The men attacked and started to box him. After the attack he felt dizzy and fell to the ground. He was not able to
see or even recognize who attacked him, so he proceeded home. Shortly after leaving the campus, however, he
met somebody whom he thought was one of the four men who ganged up on him. He stabbed the person with
the knife he was, then, carrying. When asked why he was in possession of a knife, he stated that he used it in
preparing food for his friend, Richard Candelaria, who was graduating that day. He went home after the incident.

While inside his house, barangay officials arrived, took him and brought him to the barangay hall, and later to the
Pasacao PNP. On his way to the town proper, he came to know that the person he stabbed was Jason Espinola.
He felt sad after hearing it.
4

Judgment of the RTC

After trial, the RTC rendered its judgment finding the petitioner guilty of homicide as charged, and sentenced him
to suffer the indeterminate penalty of imprisonment for four years and one day of prision correccional, as
minimum, to eight years and one day of prision mayor, as maximum; and to pay to the heirs of the victim
₱81,890.04 as actual damages for medical and funeral expenses, and ₱50,000.00 as moral damages. 5

Decision of the CA

On appeal, the Court of Appeals (CA) affirmed the petitioner’s conviction but modified the penalty and the civil
liability through the decision promulgated on July 19, 2006,  disposing thus: WHEREFORE, premises
6

considered, the decision of the Regional Trial Court of Naga City, Branch 20, in Criminal Case Number 2000-
0275, finding appellant Rosal Hubilla y Carillo, guilty beyond reasonable doubt of Homicide is, hereby,
AFFIRMED with MODIFICATIONS. Appellants (sic) sentence is reduced to six months and one day to six years
of prision correccionalas minimum, to six years and one day to twelve years of prision mayor as maximum.

The civil aspect of the case is MODIFIED to read: The award of actual damages in the amount of Php
81,890.04, representing expenses for medical and funeral services, is reduced to Php 16,300.00. A civil
indemnity, in the amount of Php 50,000.00, is awarded to the legal heirs of the victim Jason Espinola. Weaffirm
in all other respects.

SO ORDERED.

On motion for reconsideration by the petitioner, the CA promulgated its amended decision on December 7,
2006, decreeing as follows: 7

WHEREFORE, the instant Motion for Reconsideration is PARTIALLY GRANTED. Our decision promulgated on
July 16, 2006, which is the subject of the instant motion is, hereby AMENDED such that the judgment shall now
read as follows:

WHEREFORE, premises considered, the decision of the Regional Trial Court of Naga City, Branch 20, in
Criminal Case Number 2000-0275, finding appellant Rosal Hubilla y Carillo, guilty beyond reasonable doubt of
Homicide is, hereby, AFFIRMED with MODIFICATIONS. Appellant is sentenced to an indeterminate penalty of
six months and one day of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor.

The civil aspect of the case is MODIFIED to read: The award of actual damages in the amount of Php
81,890.04, representing expenses for medical and funeral services, is reduced to Php 16,300.00. A civil
indemnity, in the amount of Php 50,000.00, is awarded to the legal heirs of the victim Jason Espinola. We affirm
in all other respects.

The case is, hereby, remanded to the Regional Trial Court of Naga, Branch 20, for appropriate action on the
application for probation of, herein, appellant.

SO ORDERED.
 Issues

The petitioner has come to the Court imputing grave error to the CA for not correctly imposing the penalty, and
for not suspending his sentence as a juvenile in conflict with the law pursuant to the mandate of Republic Act
No. 9344. In fine, he no longer assails the findings of fact by the lower courts as well as his conviction, and limits
his appeal to the following issues, namely: (1) whether or not the CA imposed the correct penalty imposable on
him taking into consideration the pertinent provisions of Republic Act No. 9344, the Revised Penal Codeand Act
No. 4103 (Indeterminate Sentence Law); (2) whether or not he was entitled to the benefits of probation and
suspension of sentence under Republic Act No. 9344; and (3) whether or not imposing the penalty of
imprisonment contravened the provisions of Republic Act No. 9344 and other international agreements.

Ruling of the Court

Article 249 of the Revised Penal Code prescribes the penalty of reclusion temporalfor homicide. Considering that
the petitioner was then a minor at the time of the commission of the crime, being 17 years, four months and 28
days old when he committed the homicide on March 30, 2000,  such minority was a privileged mitigating
8

circumstance that lowered the penalty to prision mayor. 9

Under the Indeterminate Sentence Law, the minimum of the indeterminate sentence should be within the penalty
next lower than the imposable penalty, which, herein, was prision correccional (i.e., six months and one day to
six years). For the maximum of the indeterminate sentence, prision mayor in its medium period – eight years and
one day to 10 years – was proper because there were no mitigating or aggravating circumstances present.
Accordingly, the CA imposed the indeterminate penalty of imprisonment of six months and one day of prision
correccional, as minimum, to eight years and one day of prision mayor, as maximum.

The petitioner insists, however, that the maximum of his indeterminate sentence of eight years and one day of
prison mayor should be reduced to only six years of prision correccional to enable him to apply for probation
under Presidential Decree No. 968.

The petitioner’s insistence is bereft of legal basis. Neither the Revised Penal Code, nor Republic Act No. 9344,
nor any other relevant law or rules support or justify the further reduction of the maximum of the indeterminate
sentence. To yield to his insistence would be to impose an illegal penalty, and would cause the Court to
deliberately violate the law.

A.M. No. 02-1-18-SC  (Rule on Juveniles in Conflict with the Law) provides certain guiding principles in the trial
10

and judging in cases involving a child in conflict with the law. One of them is that found in Section 46 (2), in
conjunction with Section 5 (k), whereby the restrictions on the personal liberty of the child shall be limited to the
minimum.  Consistent with this principle, the amended decision of the CA imposed the ultimate minimums of the
11

indeterminate penalty for homicide under the Indeterminate Sentence Law. On its part, Republic Act No. 9344
nowhere allows the trial and appellate courts the discretion to reduce or lower the penalty further, even for the
sake of enabling the child in conflict with the law to qualify for probation.

Conformably with Section 9(a) of Presidential Decree 968,  which disqualifies from probation an offender
12

sentenced to serve a maximum term of imprisonment of more than six years, the petitioner could not qualify for
probation. For this reason, we annul the directive of the CA to remand the case to the trial court to determine if
he was qualified for probation.

Although Section 38 of Republic Act No. 9344 allows the suspension of the sentence of a child in conflict with
the law adjudged as guilty of a crime, the suspension is available only until the child offender turns 21 years of
age, pursuant to Section 40 of Republic Act No. 9344, to wit:

Section 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 wilfully failed to comply with the conditions 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.
We note that the petitioner was well over 23 years of age at the time of his conviction for homicide by the RTC
on July 19, 2006. Hence, the suspension of his sentence was no longer legally feasible or permissible.

Lastly, the petitioner posits that condemning him to prison would be in violation of his rights as a child inconflict
with the law as bestowed by Republic Act No. 9344 and international agreements.  A review of the provisions of
1avvphi1

Republic Act No. 9344 reveals, however, that imprisonment of children in conflict with the law is by no means
prohibited. While Section 5 (c) of Republic Act No. 9344 bestows on children in conflict with the law the rightnot
to be unlawfully or arbitrarily deprived of their liberty; imprisonment as a proper disposition of a case is duly
recognized, subject to certain restrictions on the imposition of imprisonment, namely: (a) the detention or
imprisonment is a disposition of last resort, and (b) the detention or imprisonment shall be for the shortest
appropriate period of time.Thereby, the trial and appellate courts did not violate the letter and spirit of Republic
Act No. 9344 by imposing the penalty of imprisonment on the petitioner simply because the penalty was
imposed as a last recourse after holding him to be disqualified from probation and from the suspension of his
sentence, and the term of his imprisonment was for the shortestduration permitted by the law.

A survey of relevant international agreements  supports the course of action taken herein. The United Nations
13

Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Guidelines),  the United Nations
14

Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines) and the United Nations Rules for the
Protection of Juveniles Deprived of Liberty  are consistent in recognizing that imprisonment is a valid form of
15

disposition, provided it is imposed asa last resort and for the minimum necessary period.

Lastly, following Section 51 of Republic Act No. 9344, the petitioner, although he has to serve his sentence, may
serve it in an agricultural camp or other training facilities to be established, maintained, supervised and
controlled by the Bureau of Corrections, in coordination with the Department of Social Welfare and
Development, in a manner consistent with the offender child’s best interest. Such service of sentence will be in
lieu of service in the regular penal institution.

WHEREFORE, the Court DENIES the petition for review on certiorari; AFFIRMS the amended decision
promulgated on December 7, 2006 in C.A.-G.R. CR No. 29295, but DELETING the order to remand the
judgment to the trial court for implementation; and DIRECTS the Bureau of Corrections to commit the petitioner
for the service of his sentence in an agricultural camp or other training facilities under its control, supervision and
management, in coordination with the Department of Social Welfare and Development.

No pronouncement on costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

TERESITA J. LEONARDO-DE CASTRO MARTIN S. VILLARAMA, JR.*

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Resolution had
been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P.A. SERENO

Chief Justice
Footnotes

* Vice Associate Justice Estela M. Perlas-Bernabe per Special Order No. 1885 dated November 24,
2014.

1
 Republic Act No. 9344, Section 2 (b).

2
 Republic Act No. 9344, Section 2 (t).

3
 Rollo, p. 21.

4
 Id. at 31- 33.

5
 Id. at 22-27.

 Id. at 29-44; penned by Associate Justice Jose L. Sabio, Jr. (deceased), concurred in by Associate
6

Justice Rosalinda Asuncion-Vicente (retired) and Associate Justice Sesinando E. Villon.

7
 Id. at 58–62.

8
 Per his birth certificate, Rosal’s date of birth was November 2, 1982.

9
 Article 68, par. 2 of the Revised Penal Code.

10
 Resolution dated November 24, 2009.

 Section 46 (2), A.M. No. 02-1-18-SC, Rule on Juveniles in Conflict with the Law. See alsoSec. 5 (k) of
11

RA 9344 which provides: Every childin conflict with the law shall have the following rights, including but
not limited to:

xxxx

(k) the right to have restrictions on his/her personal liberty limited to the minimum, and where
discretion is given by law to the judge to determine whether to impose fine or imprisonment, the
imposition of fine being preferred as the more appropriate penalty; (Emphasis Supplied)

 Establishing A Probation System, Appropriating Funds Therefor and For Other Purposes (July 24,
12

1976).

13
 The provisions of all these agreements are adopted by or incorporated in RA 9344, perSection 5.

 19.1 of the Beijing Guidelines (November 29, 1985) provides: "The placement of a juvenile in an
14

institution shall be a disposition of last resort and for the minimum necessary period." Also 17.1 (b) also
provides that: "Restrictions on the personal liberty of the juvenile shall be imposed only after careful
consideration and shall be limited to the possible minimum."

15
 Fundamental Perspectives No. 2 states: "Juveniles should only be deprived of their liberty in
accordance with the principles and procedures set forth in these Rules and in the United Nations
standard minimum rules for the Administration of Juvenile Justice (The Beijing Rules). Deprivation of the
liberty of a juvenile should be a disposition of last resort and for the minimum necessary period and
should be limited to exceptional cases. The length of the sanction should be determined by judicial
authority, without precluding the possibility of his or her early release."
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 182941               July 3, 2009

ROBERT SIERRA y CANEDA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BRION, J.:

Before us is the petition of Robert Sierra y Caneda (petitioner) for the review on certiorari1 of the Decision2 and
Resolution3 of the Court of Appeals4 (CA) that affirmed with modification his conviction for the crime of qualified
rape rendered by the Regional Trial Court (RTC), Branch 159, Pasig City, in its decision of April 5, 2006.

THE ANTECEDENT FACTS

In August 2000, thirteen-year-old AAA5 was playing with her friend BBB in the second floor of her family’s house
in Palatiw, Pasig. The petitioner arrived holding a knife and told AAA and BBB that he wanted to play with them.
The petitioner then undressed BBB and had sexual intercourse with her. Afterwards, he turned to AAA,
undressed her, and also had sexual intercourse with her by inserting his male organ into hers. The petitioner
warned AAA not to tell anybody of what they did.

AAA subsequently disclosed the incident to Elena Gallano (her teacher) and to Dolores Mangantula (the parent
of a classmate), who both accompanied AAA to the barangay office. AAA was later subjected to physical
examination that revealed a laceration on her hymen consistent with her claim of sexual abuse. On the basis of
the complaint and the physical findings, the petitioner was charged with rape under the following Information:

On or about August 5, 2000, in Pasig City and within the jurisdiction of this Honorable Court, the accused, a
minor, 15 years old, with lewd designs and by means of force, violence and intimidation, did then and there
willfully, unlawfully and feloniously have sexual intercourse with his (accused) sister, AAA, thirteen years of age,
against the latter’s will and consent.

Contrary to law.6

The petitioner pleaded not guilty to the charge and raised the defenses of denial and alibi. He claimed that he
was selling cigarettes at the time of the alleged rape. He also claimed that AAA only invented her story because
she bore him a grudge for the beatings he gave her. The parties’ mother (CCC) supported the petitioner’s story;
she also stated that AAA was a troublemaker. Both CCC and son testified that the petitioner was fifteen (15)
years old when the alleged incident happened. 7

The defense also presented BBB who denied that the petitioner raped her; she confirmed the petitioner’s claim
that AAA bore her brother a grudge.

On April 5, 2006, the RTC convicted the petitioner of qualified rape as follows:

WHEREFORE, in view of the foregoing, this Court finds the accused ROBERT SIERRA y CANEDA GUILTY
beyond reasonable doubt of the crime of rape (Violation of R.A. 8353 in relation to SC A.M. 99-1-13) and hereby
sentences the said juvenile in conflict with law to suffer the penalty of imprisonment of reclusion perpetua; and to
indemnify the victim the amount of ₱75,000 as civil indemnity, ₱50,000 as moral damages, and ₱25,000 as
exemplary damages.

SO ORDERED.8
The petitioner elevated this RTC decision to the CA by attacking AAA’s credibility. He also invoked paragraph 1,
Section 6 of R.A. No. 9344 (Juvenile Justice and Welfare Act of 2006) 9 to exempt him from criminal liability
considering that he was only 15 years old at the time the crime was committed.

The CA nevertheless affirmed the petitioner’s conviction with modification as to penalty as follows:

WHEREFORE, finding that the trial court did not err in convicting Robert Sierra, the assailed Decision is hereby
AFFIRMED with MODIFICATION that Robert Sierra has to suffer the penalty of imprisonment of RECLUSION
TEMPORAL MAXIMUM. The award of damages are likewise affirmed.

SO ORDERED.10

In ruling that the petitioner was not exempt from criminal liability, the CA held:

As to the penalty, We agree with the Office of the Solicitor General that Robert is not exempt from liability. First,
it was not clearly established and proved by the defense that Robert was 15 years old or below at the time of the
commission of the crime. It was incumbent for the defense to present Robert’s birth certificate if it was to invoke
Section 64 of Republic Act No. 9344. Neither is the suspension of sentence available to Robert as the Supreme
Court, in one case, clarified that:

We note that, in the meantime, Rep. Act No. 9344 took effect on May 20, 2006. Section 38 of the law 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) 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 on Juveniles in Conflict with the
Law.

The law merely amended Article 192 of P.D. No. 603, as amended by A.M. No. 02-1-18-SC, in that the
suspension of sentence shall be enjoyed by the juvenile even if he is already 18 years of age or more at the time
of the pronouncement of his/her guilt. The other disqualifications in Article 192 of P.D. No. 603, as amended,
and Section 32 of A.M. No. 02-1-18-SC have not been deleted from Section 38 of Republic Act No. 9344.
Evidently, the intention of Congress was to maintain the other disqualifications as provided in Article 192 of P.D.
No. 603, as amended, and Section 32 of A.M. No. 02-1-18-SC. Hence, juveniles who have been convicted of a
crime the imposable penalty for which is reclusion perpetua, life imprisonment or reclusion perpetua to death or
death, are disqualified from having their sentences suspended. 11

The CA denied the petitioner’s subsequent motion for reconsideration; hence, the present petition.

THE ISSUES

The petitioner no longer assails the prosecution’s evidence on his guilt of the crime charged; what he now
assails is the failure of the CA to apply paragraph 1, Section 612 of R.A. No. 9344 under the following issues:

(1) Whether or not the CA erred in not applying the provisions of R.A. No. 9344 on the petitioner’s
exemption from criminal liability;

(2) Whether or not the CA erred in ruling that it was incumbent for the defense to present the petitioner’s
birth certificate to invoke Section 64 of R.A. No. 9344 when the burden of proving his age lies with the
prosecution by express provisions of R.A. No. 9344; and

(3) Whether or not the CA erred in applying the ruling in Declarador v. Hon. Gubaton 13 thereby denying
the petitioner the benefit of exemption from criminal liability under R.A. No. 9344.
The threshold issue in this case is the determination of who bears the burden of proof for purposes of
determining exemption from criminal liability based on the age of the petitioner at the time the crime was
committed.

The petitioner posits that the burden of proof should be on the prosecution as the party who stands to lose the
case if no evidence is presented to show that the petitioner was not a 15-year old minor entitled to the exempting
benefit provided under Section 6 of R.A. No. 9344. 14 He additionally claims that Sections 3,15 7,16 and 6817 of the
law also provide a presumption of minority in favor of a child in conflict with the law, so that any doubt regarding
his age should be resolved in his favor.

The petitioner further submits that the undisputed facts and evidence on record – specifically: the allegation of
the Information, the testimonies of the petitioner and CCC that the prosecution never objected to, and the
findings of the RTC – established that he was not more than 15 years old at the time of the commission of the
crime.

The People’s Comment, through the Office of the Solicitor General (OSG), counters that the burden belongs to
the petitioner who should have presented his birth certificate or other documentary evidence proving that his age
was 15 years or below. The OSG also stressed that while petitioner is presumed to be a minor, he is disqualified
to have his sentence suspended following the ruling in Declarador v. Hon. Gubaton. 18

THE COURT’S RULING

We grant the petition.

We examine at the outset the prosecution’s evidence and the findings of the lower courts on the petitioner’s guilt,
since the petition opens the whole case for review and the issues before us are predicated on the petitioner’s
guilt of the crime charged. A determination of guilt is likewise relevant under the terms of R.A. No. 9344 since its
exempting effect is only on the criminal, not on the civil, liability.

We see no compelling reason, after examination of the CA decision and the records of the case, to deviate from
the lower courts’ findings of guilt. The records show that the prosecution established all the elements of the
crime charged through the credible testimony of AAA and the other corroborating evidence; sexual intercourse
did indeed take place as the information charged. 19 As against AAA’s testimony, the petitioner could only raise
the defenses of denial and alibi – defenses that, in a long line of cases, we have held to be inherently weak
unless supported by clear and convincing evidence; the petitioner failed to present this required evidentiary
support.20 We have held, too, that as negative defenses, denial and alibi cannot prevail over the credible and
positive testimony of the complainant. 21 We sustain the lower courts on the issue of credibility, as we see no
compelling reason to doubt the validity of their conclusions in this regard.

While the defense, on appeal, raises a new ground – i.e., exemption from criminal liability under R.A. No. 9344 –
that implies an admission of guilt, this consideration in no way swayed the conclusion we made above, as the
defense is entitled to present all alternative defenses available to it, even inconsistent ones. We note, too, that
the defense’s claim of exemption from liability was made for the first time in its appeal to the CA. While this may
initially imply an essential change of theory that is usually disallowed on appeal for reasons of fairness, 22 no
essential change is really involved as the claim for exemption from liability is not incompatible with the evidence
submitted below and with the lower courts’ conclusion that the petitioner is guilty of the crime charged. An
exempting circumstance, by its nature, admits that criminal and civil liabilities exist, but the accused is freed from
criminal liability; in other words, the accused committed a crime, but he cannot be held criminally liable therefor
because of an exemption granted by law. In admitting this type of defense on appeal, we are not unmindful, too,
that the appeal of a criminal case (even one made under Rule 45) opens the whole case for review, even on
questions that the parties did not raise.23 By mandate of the Constitution, no less, we are bound to look into
every circumstance and resolve every doubt in favor of the accused. 24 It is with these considerations in mind and
in obedience to the direct and more specific commands of R.A. No. 9344 on how the cases of children in conflict
with the law should be handled that we rule in this Rule 45 petition.

We find a review of the facts of the present case and of the applicable law on exemption from liability compelling
because of the patent errors the CA committed in these regards. Specifically, the CA’s findings of fact on the
issues of age and minority, premised on the supposed absence of evidence, are contradicted by the evidence on
record; it also manifestly overlooked certain relevant facts not disputed by the parties that, if properly considered,
would justify a different conclusion.25
In tackling the issues of age and minority, we stress at the outset that the ages of both the petitioner and the
complaining victim are material and are at issue. The age of the petitioner is critical for purposes of his
entitlement to exemption from criminal liability under R.A. No. 9344, while the age of the latter is material in
characterizing the crime committed and in considering the resulting civil liability that R.A. No. 9344 does not
remove.

Minority as an Exempting Circumstance

R.A. No. 9344 was enacted into law on April 28, 2006 and took effect on May 20, 2006. Its intent is to promote
and protect the rights of a child in conflict with the law or a child at risk by providing a system that would ensure
that children are dealt with in a manner appropriate to their well-being through a variety of disposition measures
such as care, guidance and supervision orders, counseling, probation, foster care, education and vocational
training programs and other alternatives to institutional care. 26 More importantly in the context of this case, this
law modifies as well the minimum age limit of criminal irresponsibility for minor offenders; it changed what
paragraphs 2 and 3 of Article 12 of the Revised Penal Code (RPC), as amended, previously provided – i.e., from
"under nine years of age" and "above nine years of age and under fifteen" (who acted without discernment) – to
"fifteen years old or under" and "above fifteen but below 18" (who acted without discernment) in determining
exemption from criminal liability. In providing exemption, the new law – as the old paragraphs 2 and 3, Article 12
of the RPC did – presumes that the minor offenders completely lack the intelligence to distinguish right from
wrong, so that their acts are deemed involuntary ones for which they cannot be held accountable. 27 The current
law also drew its changes from the principle of restorative justice that it espouses; it considers the ages 9 to 15
years as formative years and gives minors of these ages a chance to right their wrong through diversion and
intervention measures.28

In the present case, the petitioner claims total exemption from criminal liability because he was not more than 15
years old at the time the rape took place. The CA disbelieved this claim for the petitioner’s failure to present his
birth certificate as required by Section 64 of R.A. No. 9344. 29 The CA also found him disqualified to avail of a
suspension of sentence because the imposable penalty for the crime of rape is reclusion perpetua to death.

Burden of Proof

Burden of proof, under Section 1, Rule 131 of the Rules on Evidence, refers to the duty of a party to present
evidence on the facts in issue in order to establish his or her claim or defense. In a criminal case, the burden of
proof to establish the guilt of the accused falls upon the prosecution which has the duty to prove all the essential
ingredients of the crime. The prosecution completes its case as soon as it has presented the evidence it believes
is sufficient to prove the required elements. At this point, the burden of evidence shifts to the defense to disprove
what the prosecution has shown by evidence, or to prove by evidence the circumstances showing that the
accused did not commit the crime charged or cannot otherwise be held liable therefor. In the present case, the
prosecution completed its evidence and had done everything that the law requires it to do. The burden of
evidence has now shifted to the defense which now claims, by an affirmative defense, that the accused, even if
guilty, should be exempt from criminal liability because of his age when he committed the crime. The defense,
therefore, not the prosecution, has the burden of showing by evidence that the petitioner was 15 years old or
less when he committed the rape charged.30

This conclusion can also be reached by considering that minority and age are not elements of the crime of rape;
the prosecution therefore has no duty to prove these circumstances. To impose the burden of proof on the
prosecution would make minority and age integral elements of the crime when clearly they are not. 31 If the
prosecution has a burden related to age, this burden relates to proof of the age of the victim as a circumstance
that qualifies the crime of rape.32

Testimonial Evidence is Competent Evidence

to Prove the Accused’s Minority and Age

The CA seriously erred when it rejected testimonial evidence showing that the petitioner was only 15 years old at
the time he committed the crime. Section 7 of R.A. No. 9344 expressly states how the age of a child in conflict
with the law may be determined:

SEC. 7. Determination of Age. - x x x The age of a child may be determined from the child's birth certificate,
baptismal certificate or any other pertinent documents. In the absence of these documents, age may be based
on information from the child himself/herself, testimonies of other persons, the physical appearance of the child
and other relevant evidence. In case of doubt as to the age of the child, it shall be resolved in his/her favor.
[Emphasis supplied]
Rule 30-A of the Rules and Regulations Implementing R.A. No. 9344 provides the implementing details of this
provision by enumerating the measures that may be undertaken by a law enforcement officer to ascertain the
child’s age:

(1) Obtain documents that show proof of the child’s age, such as

(a) Child’s birth certificate;

(b) Child’s baptismal certificate ;or

(c) Any other pertinent documents such as but not limited to the child’s school records, dental
records, or travel papers.

(2) x x x

(3) When the above documents cannot be obtained or pending receipt of such documents, the law
enforcement officer shall exhaust other measures to determine age by:

(a) Interviewing the child and obtaining information that indicate age (e.g. date of birthday, grade
level in school);

(b) Interviewing persons who may have knowledge that indicate[s] age of the child (e.g. relatives,
neighbors, teachers, classmates);

(c) Evaluating the physical appearance (e.g. height, built) of the child; and

(d) Obtaining other relevant evidence of age.

xxx

Section 7, R.A. No. 9344, while a relatively new law (having been passed only in 2006), does not depart from the
jurisprudence existing at that time on the evidence that may be admitted as satisfactory proof of the accused’s
minority and age.

In the 1903 case of U.S. v. Bergantino,33 we accepted testimonial evidence to prove the minority and age of the
accused in the absence of any document or other satisfactory evidence showing the date of birth. This was
followed by U.S. v. Roxas34 where the defendant’s statement about his age was considered sufficient, even
without corroborative evidence, to establish that he was a minor of 16 years at the time he committed the
offense charged. Subsequently, in People v. Tismo, 35 the Court appreciated the minority and age of the accused
on the basis of his claim that he was 17 years old at the time of the commission of the offense in the absence of
any contradictory evidence or objection on the part of the prosecution. Then, in People v. Villagracia, 36 we found
the testimony of the accused that he was less than 15 years old sufficient to establish his minority. We reiterated
these dicta in the cases of People v. Morial 37 and David v. Court of Appeals,38 and ruled that the allegations of
minority and age by the accused will be accepted as facts upon the prosecution’s failure to disprove the claim by
contrary evidence.

In these cases, we gave evidentiary weight to testimonial evidence on the accused’s minority and age upon the
concurrence of the following conditions: (1) the absence of any other satisfactory evidence such as the birth
certificate, baptismal certificate, or similar documents that would prove the date of birth of the accused; (2) the
presence of testimony from accused and/or a relative on the age and minority of the accused at the time of the
complained incident without any objection on the part of the prosecution; and (3) lack of any contrary evidence
showing that the accused’s and/or his relatives’ testimonies are untrue.

All these conditions are present in this case. First, the petitioner and CCC both testified regarding his minority
and age when the rape was committed.39 Second, the records before us show that these pieces of testimonial
evidence were never objected to by the prosecution. And lastly, the prosecution did not present any contrary
evidence to prove that the petitioner was above 15 years old when the crime was committed.

We also stress that the last paragraph of Section 7 of R.A. No. 9344 provides that any doubt on the age of the
child must be resolved in his favor.40 Hence, any doubt in this case regarding the petitioner’s age at the time he
committed the rape should be resolved in his favor. In other words, the testimony that the petitioner as 15 years
old when the crime took place should be read to mean that he was not more than 15 years old as this is the
more favorable reading that R.A. No. 9344 directs.

Given the express mandate of R.A. No. 9344, its implementing rules, and established jurisprudence in accord
with the latest statutory developments, the CA therefore cannot but be in error in not appreciating and giving
evidentiary value to the petitioner’s and CCC’s testimonies relating to the former’s age.

Retroactive Application of R.A. No. 9344

That the petitioner committed the rape before R.A. No. 9344 took effect and that he is no longer a minor (he was
already 20 years old when he took the stand) will not bar him from enjoying the benefit of total exemption that
Section 6 of R.A. No. 9344 grants.41 As we explained in discussing Sections 64 and 68 of R.A. No. 9344 42 in the
recent case of Ortega v. People:43

Section 64 of the law categorically provides that cases of children 15 years old and below, at the time of the
commission of the crime, shall immediately be dismissed and the child shall be referred to the appropriate local
social welfare and development officers (LSWDO). What is controlling, therefore, with respect to the exemption
from criminal liability of the CICL, is not the CICL’s age at the time of the promulgation of judgment but the
CICL’s age at the time of the commission of the offense. In short, by virtue of R.A. No. 9344, the age of criminal
irresponsibility has been raised from 9 to 15 years old. [Emphasis supplied]

The retroactive application of R.A. No. 9344 is also justified under Article 22 of the RPC, as amended, which
provides that penal laws are to be given retroactive effect insofar as they favor the accused who is not found to
be a habitual criminal. Nothing in the records of this case indicates that the petitioner is a habitual criminal.

Civil Liability

The last paragraph of Section 6 of R.A. No. 9344 provides that the accused shall continue to be civilly liable
despite his exemption from criminal liability; hence, the petitioner is civilly liable to AAA despite his exemption
from criminal liability. The extent of his civil liability depends on the crime he would have been liable for had he
not been found to be exempt from criminal liability.

The RTC and CA found, based on item (1) of Article 266-B of the RPC, as amended, that the petitioner is guilty
of qualified rape because of his relationship with AAA within the second civil degree of consanguinity and the
latter’s minority.44 Both courts accordingly imposed the civil liability corresponding to qualified rape.

The relationship between the petitioner and AAA, as siblings, does not appear to be a disputed matter. Their
mother, CCC, declared in her testimony that AAA and the petitioner are her children. The prosecution and the
defense likewise stipulated in the proceedings below that the relationship exists. We find, however, that AAA’s
minority, though alleged in the Information, had not been sufficiently proven. 45 People v. Pruna46 laid down these
guidelines in appreciating the age of the complainant:

In order to remove any confusion that may be engendered by the foregoing cases, we hereby set the following
guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance.

1. The best evidence to prove the age of the offended party is an original or certified true copy of the
certificate of live birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate
and school records which show the date of birth of the victim would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or
otherwise unavailable, the testimony, if clear and credible, of the victim’s mother or a member of the
family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as
the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on
Evidence shall be sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is
less than 7 years old;
 b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is
less than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she
is less than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim’s mother
or relatives concerning the victim’s age, the complainant’s testimony will suffice provided that it is
expressly and clearly admitted by the accused.

5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the
accused to object to the testimonial evidence regarding age shall not be taken against him. [Emphasis
supplied]

The records fail to show any evidence proving the age of AAA. They do not likewise show that the petitioner ever
expressly and clearly admitted AAA’s age at the time of the rape. Pursuant to Pruna, neither can his failure to
object to AAA’s testimony be taken against him.

Thus, the required concurrence of circumstances that would upgrade the crime to qualified rape – i.e.,
relationship within the third degree of consanguinity and minority of the victim – does not exist. The crime for
which the petitioner should have been found criminally liable should therefore only be simple rape pursuant to
par. 1, Article 266-A of the RPC, not qualified rape. The civil liability that can be imposed on the petitioner follows
the characterization of the crime and the attendant circumstances.

Accordingly, we uphold the grant of moral damages of ₱50,000.00 but increase the awarded exemplary
damages ₱30,000.00, both pursuant to prevailing jurisprudence. 47 Moral damages are automatically awarded to
rape victims without the necessity of proof; the law assumes that the victim suffered moral injuries entitling her to
this award.48 Article 2230 of the Civil Code justifies the award of exemplary damages because of the presence of
the aggravating circumstances of relationship between AAA and petitioner and dwelling. 49 As discussed above,
the relationship (between the parties) is not disputed. We appreciate dwelling as an aggravating circumstance
based on AAA’s testimony that the rape was committed in their house. 50 While dwelling as an aggravating
circumstance was not alleged in the Information, established jurisprudence holds that it may nevertheless be
appreciated as basis for the award of exemplary damages. 51 lavvphi1

We modify the awarded civil indemnity of ₱75,000.00 to ₱50,000.00, the latter being the civil indemnity
appropriate for simple rape52 on the finding that rape had been committed.53

In light of the above discussion and our conclusions, we see no need to discuss the petition’s third assignment of
error.

WHEREFORE, premises considered, the instant petition is GRANTED. The Decision dated February 29, 2008
and Resolution dated May 22, 2008 of the Court of Appeals in CA-G.R.-CR.-H.C. No. 02218
are REVERSED and SET ASIDE.

Pursuant to Section 64 of R.A. No. 9344, Criminal Case No. 120292-H for rape filed against petitioner Robert
Sierra y Caneda is hereby DISMISSED. Petitioner is REFERRED to the appropriate local social welfare and
development officer who shall proceed in accordance with the provisions of R.A. No. 9344. Petitioner is
ORDERED to pay the victim, AAA, ₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages, and
₱30,000.00 as exemplary damages.

Unless there are other valid causes for petitioner’s continued detention, we hereby ORDER his IMMEDIATE
RELEASE under the above terms.

Let a copy of this Decision be furnished the Director of the Bureau of Corrections in Muntinlupa City for its
immediate implementation. The Director of the Bureau of Corrections is directed to report to this Court within five
days from receipt of this Decision the action he has taken.

Let a copy of this Decision be likewise furnished the Juvenile Justice and Welfare Council.

SO ORDERED.
ARTURO D. BRION
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CONCHITA CARPIO-MORALES MINITA CHICO-NAZARIO**

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO***

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it is hereby
certified that the conclusions in the above Decision were reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

** Designated additional Member of the Second Division effective June 3, 2009 per Special Order No.
658 dated June 3, 2009.

*** Designated additional Member of the Second Division effective May 11, 2009 per Special Order No.
635 dated May 7, 2009.

1
 Under Rule 45 of the Rules of Court.

2
 Dated February 29, 2008; rollo, pp. 81-103.

3
 Dated May 22, 2008; id., pp. 115-117.

 Docketed as CA-G.R.-CR.-H.C. No. 02218, and penned by Associate Justice Andres B. Reyes, Jr.,
4

with Associate Justice Jose C. Mendoza and Associate Justice Ramon M. Bato, Jr. concurring.

 The real name of the victim as well as those of her immediate family members is withheld per Republic
5

Act (R.A.) No. 7610 (An Act Providing for Stronger Deterrence and Special Protection Against Child
Abuse, Exploitation and Discrimination, and for Other Purposes) and R.A. No. 9262 (An Act Defining
Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing
Penalties Therefore, and for Other Purposes).
6
 This case was docketed as Criminal Case No. 120292-H; rollo, pp. 82-83.

7
 Id., pp. 51 and 53.

8
 Id.,pp. 81-82.

9
 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. x x x

10
 Rollo, pp. 102-103.

11
 Id., pp. 127-129.

12
 SEC. 6. Minimum Age of Criminal Responsibility. – A child fifteen (15) years of age or under at the
time of the commission of offense shall be exempt from criminal liability. However, the child shall be
subjected to an intervention program pursuant to Section 20 of this Act.

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.

The exemption from criminal liability herein established does not include exemption from civil
liability, which shall be enforced in accordance with existing laws.

13
 G.R. No. 159208, August 18, 2006, 499 SCRA 341.

14
 Rollo, pp. 10-23.

15
 SEC. 3. Liberal Construction of this Act. - In case of doubt, the interpretation of any of the
provisions of this Act, including its implementing rules and regulations (IRRs), shall be construed liberally
in favor of the child in conflict with the law.

 SEC. 7. Determination of Age. - The child in conflict with the law shall enjoy the presumption of
16

minority. He/She shall enjoy all the rights of a child in conflict with the law until he/she is proven to be
eighteen (18) years old or older. The age of a child may be determined from the child's birth certificate,
baptismal certificate or any other pertinent documents. In the absence of these documents, age may be
based on information from the child himself/herself, testimonies of other persons, the physical
appearance of the child and other relevant evidence. In case of doubt as to the age of the child, it shall
be resolved in his/her favor.

17
 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 the commission of the offense for which they were convicted
and are serving sentence, shall likewise benefit from the retroactive application of this Act. They shall be
entitled to appropriate dispositions provided under this Act and their sentences shall be adjusted
accordingly. They shall be immediately released if they are so qualified under this Act or other applicable
law.

18
 Supra note 13, citing the case of People v. Lugto, 190 SCRA 754 (1990).

19
 Rollo, p. 46.

20
 People v. Bon, G.R. No. 166401, October 20, 2006, 506 SCRA 168, 185.

21
 Ibid.

22
 Toledo v. People, G.R. No. 158057, September 24, 2004, 439 SCRA 94, 103.
  People v. Yam-Id, G.R. No. 126116, January 21, 1999, 308 SCRA 651, 655, citing Sacay v.
23

Sandiganbayan, 142 SCRA 593 (1986).

24
 Id.

25
 Manila Doctors Hospital v. So Un Chua, G.R. No. 150355, July 31, 2006, 497 SCRA 230, 238.

26
 Section 2(d) of R.A. No. 9344.

27
 See: Reyes, Revised Penal Code; Book 1 (2008 ed.), p. 40.

28
 See Section 4(q) of R.A. No. 9344.

29
 SEC. 64. Children in Conflict with the Law Fifteen (15) Years Old and Below. - Upon effectivity of
this Act, cases of children fifteen (15) years old and below at the time of the commission of the crime
shall immediately be dismissed and the child shall be referred to the appropriate local social welfare and
development officer. Such officer, upon thorough assessment of the child, shall determine whether to
release the child to the custody of his/her parents, or refer the child to prevention programs as provided
under this Act. Those with suspended sentences and undergoing rehabilitation at the youth rehabilitation
center shall likewise be released, unless it is contrary to the best interest of the child.

 People v. Concepcion, G.R. No. 136844, August 1, 2002, 386 SCRA 74, 78; See: People v. Austria,
30

G.R. Nos. 111517-19, July 31, 1996, 260 SCRA 106, 117; Ty v. People, G.R. No. 149275, September
27, 2004, 439 SCRA 220, 231; People v. Castillo, G.R. No. 172695, June 29, 2007, 526 SCRA 215,
227; Ortega v. People, G.R. No. 151085, August 20, 2008.

31
 The elements of rape under paragraph 1 of Article 266-A of the RPC, as amended are: (1) The
offender is a man; (2) The offender had carnal knowledge of a woman; and (3) That such act is
accomplished under any of the following circumstances: (a) by using force and intimidation; or (b) when
the woman is deprived of reason or otherwise unconscious; or (c) by means of fraudulent machination or
grave abuse of authority; or (d) when the woman is under 12 years of age or demented; Reyes, II
Revised Penal Code, p. 556 (2008 edition).

 People v. Dela Cruz, G.R. Nos. 131167-68, August 23, 2000, 338 SCRA 582; People v.
32

Villarama, G.R. No. 139211, February 12, 2003, 397 SCRA 306.

33
 3 Phil 59, 61 (1903).

34
 5 Phil 186, 187 (1905).

35
 G.R. No. 44773, December 4,1991, 204 SCRA 535, 556-557.

36
 G.R. No. 94471, September 14, 1993, 226 SCRA 374, 381.

37
 G.R. No. 129295, August 15, 2001, 368 SCRA 96, 125-126.

38
 G.R. Nos. 11168-69, June 17, 1998, 290 SCRA 727, 745.

39
 See note 7.

40
 Section 7 of R.A. No. 9344.

41
 Rollo, p. 51.

42
 SECTION 64. Children in Conflict with the Law Fifteen (15) Years Old and Below. – Upon effectivity of
this Act, cases of children fifteen (15) years old and below at the time of the commission of the crime
shall immediately be dismissed and the child shall be referred to the appropriate local social welfare and
development officer. Such officer, upon thorough assessment of the child shall determine whether to
release the child to the custody of his/her parents, or refer the child to prevention programs, as provided
under this Act. Those with suspended sentences and undergoing rehabilitation at the youth rehabilitation
center shall likewise be released, unless it is contrary to the best interest of the child.

xxx

SECTION 68. Children Who Have Been Convicted and are Serving Sentences. -- 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. They shall be entitled to appropriate dispositions provided under this Act
and their sentences shall be adjusted accordingly. They shall be immediately released if they are
so qualified under this Act or other applicable laws.

43
 Supra note 30.

44
 1) Whether the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common
law spouse of the parent of the victim.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 182239               March 16, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
HERMIE M. JACINTO, Accused-Appellant.

DECISION

PEREZ, J.:

Once again, we recite the time-honored principle that the defense of alibi cannot prevail over the victim’s
positive identification of the accused as the perpetrator of the crime. 1 For it to prosper, the court must be
convinced that there was physical impossibility on the part of the accused to have been at the locus criminis at
the time of the commission of the crime.2

Nevertheless, a child in conflict with the law, whose judgment of conviction has become final and executory only
after his disqualification from availing of the benefits of suspended sentence on the ground that he/she has
exceeded the age limit of twenty-one (21) years, shall still be entitled to the right to restoration, rehabilitation,
and reintegration in accordance with Republic Act No. 9344, otherwise known as "An Act Establishing a
Comprehensive Juvenile Justice and Welfare System, Creating the Juvenile Justice and Welfare Council under
the Department of Justice, Appropriating Funds Therefor and for Other Purposes."

Convicted for the rape of five-year-old AAA,3 appellant Hermie M. Jacinto seeks before this Court the reversal of
the judgment of his conviction.4

The Facts

In an Information dated 20 March 20035 filed with the Regional Trial Court and docketed as Criminal Case No.
1679-13-141[1],6 appellant was accused of the crime of RAPE allegedly committed as follows:

That on or about the 28th day of January, 2003 at about 7:00 o’clock in the evening more or less, at barangay
xxx, municipality of xxx, province of xxx and within the jurisdiction of this Honorable Court, [Hermie M. Jacinto],
with lewd design did then and there willfully, unlawfully and feloniously had carnal knowledge with one AAA, a
five-year old minor child.

CONTRARY TO LAW, with the qualifying/aggravating circumstance of minority, the victim being only five years
old.7

On 15 July 2003, appellant entered a plea of not guilty. 8 During pre-trial,9 the defense admitted the existence of
the following documents: (1) birth certificate of AAA, showing that she was born on 3 December 1997; (2) police
blotter entry on the rape incident; and (3) medical certificate, upon presentation of the original or upon
identification thereof by the physician.

Trial ensued with the prosecution and the defense presenting witnesses to prove their respective versions of the
story.

Evidence for the Prosecution

The testimonies of AAA,10 her father FFF,11 and rebuttal witness Julito Apiki [Julito]12 may be summarized in the
following manner:

FFF and appellant have been neighbors since they were born. FFF’s house is along the road. That of appellant
lies at the back approximately 80 meters from FFF. To access the road, appellant has to pass by FFF’s house,
the frequency of which the latter describes to be "every minute [and] every hour." Also, appellant often visits FFF
because they were close friends. He bore no grudge against appellant prior to the incident. 13

AAA likewise knows appellant well. She usually calls him kuya. She sees him all the time – playing at the
basketball court near her house, fetching water, and passing by her house on his way to the road. She and
appellant used to be friends until the incident.14

At about past 6 o’clock in the evening of 28 January 2003, FFF sent his eight-year-old daughter CCC to the
store of Rudy Hatague to buy cigarettes. AAA followed CCC. When CCC returned without AAA, FFF was not
alarmed. He thought she was watching television at the house of her aunt Rita Lingcay [Rita]. 15

Julito went to the same store at around 6:20 in the evening to buy a bottle of Tanduay Rum. 16 At the store, he
saw appellant place AAA on his lap.17 He was wearing sleeveless shirt and a pair of short pants. 18 All of them left
the store at the same time.19 Julito proceeded to the house of Rita to watch television, while appellant, who held
the hand of AAA, went towards the direction of the "lower area or place." 20

AAA recalled that appellant was wearing a chaleko (sando) and a pair of short pants21 when he held her hand
while on the road near the store.22 They walked towards the rice field near the house of spouses Alejandro and
Gloria Perocho [the Perochos].23 There he made her lie down on harrowed ground, removed her panty and
boxed her on the chest.24 Already half-naked from waist down, 25 he mounted her, and, while her legs were
pushed apart, pushed his penis into her vagina and made a push and pull movement. 26 She felt pain and
cried.27 Afterwards, appellant left and proceeded to the Perochos. 28 She, in turn, went straight home crying. 29

FFF heard AAA crying and calling his name from downstairs. 30 She was without slippers.31 He found her face
greasy.32 There was mud on her head and blood was oozing from the back of her head. 33 He checked for any
injury and found on her neck a contusion that was already turning black. 34 She had no underwear on and he saw
white substance and mud on her vagina.35 AAA told him that appellant brought her from the store 36 to the grassy
area at the back of the house of the Perochos;37 that he threw away her pair of slippers, removed her panty,
choked her and boxed her breast;38 and that he proceeded thereafter to the Perochos. 39

True enough, FFF found appellant at the house of the Perochos.40 He asked the appellant what he did to
AAA.41 Appellant replied that he was asked to buy rum at the store and that AAA followed him. 42 FFF went home
to check on his daughter,43 afterwhich, he went back to appellant, asked again, 44 and boxed him.45

Meanwhile, at around 7:45 in the evening of even date, Julito was still watching television at the house of
Rita.46 AAA and her mother MMM arrived.47 AAA was crying.48 Julito pitied her, embraced her, and asked what
happened to her, to which she replied that appellant raped her. 49 Julito left and found appellant at the
Perochos.50 Julito asked appellant, "Bads, did you really rape the child, the daughter of [MMM]?" but the latter
ignored his question.51 Appellant’s aunt, Gloria, told appellant that the policemen were coming to which the
appellant responded, "Wait a minute because I will wash the dirt of my elbow (sic) and my knees." 52 Julito did
found the elbows and knees of appellant with dirt. 53

On that same evening, FFF and AAA proceeded to the police station to have the incident blottered. 54 FFF also
had AAA undergo a physical check up at the municipal health center. 55 Dr. Bernardita M. Gaspar, M.D., Rural
Health Physician, issued a medical certificate 56 dated 29 January 2003. It reads:

Injuries seen are as follows:

1. Multiple abrasions with erythema along the neck area.

2. Petechial hemorrhages on both per-orbital areas.

3. Hematoma over the left upper arm, lateral area

4. Hematoma over the upper anterior chest wall, midclavicular line

5. Abrasion over the posterior trunk, paravertebral area

6. Genital and peri-anal area soiled with debris and whitish mucoid-like material

7. Introitus is erythematous with minimal bleeding

 8. Hymenal lacerations at the 5 o’clock and 9 o’clock position

Impression

MULTIPLE SOFT TISSUE INJURIES

HYMENAL LACERATIONS

Upon the recommendation of Dr. Gaspar,57 AAA submitted herself to another examination at the provincial
hospital on the following day. Dr. Christine Ruth B. Micabalo, Medical Officer III of the provincial hospital,
attended to her and issued a medico-legal certificate dated 29 January 2003, 58 the pertinent portion of which
reads:

P.E. = Findings is consistent with Dr. Bernardita M. Gaspar findings except No. 6 and 7 there is no bleeding in
this time of examination. (sic)59

Evidence for the Defense

Interposing the defense of alibi, appellant gave a different version of the story. To corroborate his testimony,
Luzvilla Balucan [Luzvilla] and his aunt Gloria took the witness stand to affirm that he was at the Perochos at the
time of the commission of the crime.60 Luzvilla even went further to state that she actually saw Julito, not
appellant, pick up AAA on the road. 61 In addition, Antonia Perocho [Antonia], sister-in-law of appellant’s aunt,
Gloria,62 testified on the behavior of Julito after the rape incident was revealed. 63

Appellant claimed that he lives with his aunt, not with his parents whose house stands at the back of FFF’s
house.64 He denied that there was a need to pass by the house of FFF in order to access the road or to fetch
water.65 He, however, admitted that he occasionally worked for FFF, 66 and whenever he was asked to buy
something from the store, AAA always approached him. 67

At about 8 o’clock in the morning of 28 January 2003, appellant went to the Perochos to attend a birthday party.
At 6:08 in the evening, while the visitors, including appellant and his uncle Alejandro Perocho [Alejandro], were
gathered together in a drinking session, appellant’s uncle sent him to the store to buy Tanduay Rum. Since the
store is only about 20 meters from the house, he was able to return after three (3) minutes. He was certain of the
time because he had a watch .68

Appellant’s aunt, Gloria, the lady of the house, confirmed that he was in her house attending the birthday party;
and that appellant went out between 6 and 7 in the evening to buy a bottle of Tanduay from the store. She
recalled that appellant was back around five (5) minutes later. She also observed that appellant’s white shorts
and white sleeveless shirt were clean.69

At 6:30 in the evening,70 Luzvilla, who was also at the party, saw appellant at the kitchen having a drink with his
uncle Alejandro and the rest of the visitors.71 She went out to relieve herself at the side of the tree beside the
road next to the house of the Perochos.72 From where she was, she saw Julito, who was wearing black short
pants and black T-shirt, carry AAA.73 AAA’s face was covered and she was wiggling. 74 This did not alarm her
because she thought it was just a game.75 Meanwhile, appellant was still in the kitchen when she
returned.76 Around three (3) minutes later, Luzvilla saw Julito, now in a white T-shirt, 77 running towards the house
of Rita.78 AAA was slowly following behind.79 Luzvilla followed them.80 Just outside the house, Julito embraced
AAA and asked what the appellant did to her.81 The child did not answer.82

Luzvilla also followed FFF to the Perochos. She witnessed the punching incident and testified that appellant was
twice boxed by FFF. According to her, FFF tapped the left shoulder of the appellant, boxed him, and left. FFF
came in the second time and again boxed appellant. This time, he had a bolo pointed at appellant. Appellant’s
uncle Alejandro, a barangay councilor, and another Civilian Voluntary Organization (CVO) member admonished
FFF.83

On sur-rebuttal, Antonia testified that, at 7 o’clock in the evening, she was watching the television along with
other people at the house of Rita. Around 7:10, Julito, who was wearing only a pair of black short pants without a
shirt on, entered the house drunk. He paced back and forth. After 10 minutes, AAA came in crying. Julito tightly
embraced AAA and asked her what happened. AAA did not answer. Upon Antonia’s advice, Julito released her
and went out of the house.84
Appellant further testified that at past 7 o’clock in the evening, FFF arrived, pointed a finger at him, brandished a
bolo, and accused him of molesting AAA. FFF left but returned at around 8 o’clock in the evening. This time, he
boxed appellant and asked again why he molested his daughter. 85

On 26 March 2004, the Regional Trial Court rendered its decision, 86 the dispositive portion of which reads:

WHEREFORE, finding accused Hermie M. Jacinto guilty beyond reasonable doubt of rape committed upon a 5-
year old girl, the court sentences him to death and orders him to pay [AAA] P75,000.000 as rape indemnity and
P50,000.00 as moral damages. With costs87

The defense moved to reopen trial for reception of newly discovered evidence stating that appellant was
apparently born on 1 March 1985 and that he was only seventeen (17) years old when the crime was committed
on 28 January 2003.88 The trial court appreciated the evidence and reduced the penalty from death to reclusion
perpetua.89 Thus:

WHEREFORE, the judgment of the court imposing the death penalty upon the accused is amended in order to
consider the privileged mitigating circumstance of minority. The penalty impos[a]ble upon the accused,
therefore[,] is reduced to reclusion perpetua. xxx

Appealed to this Court, the case was transferred to the Court of Appeals for its disposition in view of the ruling
in People v. Mateo and the Internal Rules of the Supreme Court allowing an intermediate review by the Court of
Appeals of cases where the penalty imposed is death, reclusion perpetua, or life imprisonment.90

On 29 August 2007, the Court of Appeals AFFIRMED the decision of the trial court with the following
MODIFICATIONS:

xxx that Hermie M. Jacinto should suffer the Indeterminate penalty of from six (6) years and one (1) day to
twelve (12) years of prision mayor, as minimum, to seventeen (17) and four (4) months of reclusion temporal, as
maximum. Appellant Hermie M. Jacinto is ordered to indemnify the victim in the sum of P75,000.00 as civil
indemnity, P75,000.00 as moral damages, and P25,000.00 as exemplary damages and to pay the costs. 91

On 19 November 2007, the Court of Appeals gave due course to the appellant’s Notice of Appeal. 92 This Court
required the parties to simultaneously file their respective supplemental briefs. 93 Both parties manifested that
they have exhaustively discussed their positions in their respective briefs and would no longer file any
supplement.94

Before the Court of Appeals, appellant argued that "THE COURT A QUO GRAVELY ERRED IN CONVICTING
HEREIN ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF RAPE" 95 by invoking the
principle that "if the inculpatory facts and circumstances are capable of two or more reasonable explanations,
one of which is consistent with the innocence of the accused and the other with his guilt, then the evidence does
not pass the test of moral certainty and will not suffice to support a conviction." 96

Our Ruling

We sustain the judgment of conviction.

In the determination of the innocence or guilt of a person accused of rape, we consider the three well-
entrenched principles:

(1) an accusation for rape can be made with facility; it is difficult to prove but more difficult for the accused,
though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape in which only two persons are
usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the
evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from
the weakness of the evidence for the defense. 97

Necessarily, the credible, natural, and convincing testimony of the victim may be sufficient to convict the
accused.98 More so, when the testimony is supported by the medico-legal findings of the examining physician. 99

Further, the defense of alibi cannot prevail over the victim’s positive identification of the perpetrator of the
crime,100 except when it is established that it was physically impossible for the accused to have been at the locus
criminis at the time of the commission of the crime.101
 I

A man commits rape by having carnal knowledge of a child under twelve (12) years of age even in the absence
of any of the following circumstances: (a) through force, threat or intimidation; (b) when the offended party is
deprived of reason or otherwise unconscious; or (c) by means of fraudulent machination or grave abuse of
authority.102

That the crime of rape has been committed is certain. The vivid narration of the acts culminating in the insertion
of appellant’s organ into the vagina of five-year-old AAA and the medical findings of the physicians sufficiently
proved such fact.

AAA testified:

PROS. OMANDAM:

xxxx

Q You said Hermie laid you on the ground, removed your panty and boxed you, what else did he do to
you?

A He mounted me.

Q When Hermie mounted you, was he facing you?

A Yes.

Q When he mounted you what did he do, did he move?

A He moved his ass, he made a push and pull movement.

Q When he made a push and pull movement, how were your legs positioned?

A They were apart.

Q Who pushed them apart?

A Hermie.

Q Did Hermie push anything at you?

A Yes.

Q What was that?

A His penis.

Q Where did he push his penis?

A To my vagina.

Q Was it painful?

A Yes.

Q What was painful?

A My vagina.

Q Did you cry?

 A Yes.103

The straightforward and consistent answers to the questions, which were phrased and re-phrased in order to
test that AAA well understood the information elicited from her, said it all – she had been raped. When a woman,
more so a minor, says so, she says in effect all that is essential to show that rape was committed. 104 Significantly,
youth and immaturity are normally badges of truth and honesty. 105

Further, the medical findings and the testimony of Dr. Micabalo106 revealed that the hymenal lacerations at 5
o’clock and 9 o’clock positions could have been caused by the penetration of an object; that the redness of the
introitus could have been "the result of the repeated battering of the object;" and that such object could have
been an erect male organ.107

The credible testimony of AAA corroborated by the physician’s finding of penetration conclusively established
the essential requisite of carnal knowledge. 108

II

The real identity of the assailant and the whereabouts of the appellant at the time of the commission of the crime
are now in dispute.

The defense would want us to believe that it was Julito who defiled AAA, and that appellant was elsewhere when
the crime was committed.109

We should not, however, overlook the fact that a victim of rape could readily identify her assailant, especially
when he is not a stranger to her, considering that she could have a good look at him during the commission of
the crime.110 AAA had known appellant all her life. Moreover, appellant and AAA even walked together from the
road near the store to the situs criminus111 that it would be impossible for the child not to recognize the man who
held her hand and led her all the way to the rice field.

We see no reason to disturb the findings of the trial court on the unwavering testimony of AAA.

The certainty of the child, unusually intelligent for one so young, that it was accused, whom she called "kuya"
and who used to play basketball and fetch water near their house, and who was wearing a sleeveless shirt and
shorts at the time he raped her, was convincing and persuasive. The defense attempted to impute the crime to
someone else – one Julito Apiki, but the child, on rebuttal, was steadfast and did not equivocate, asserting that it
was accused who is younger, and not Julito, who is older, who molested her. 112

In a long line of cases, this Court has consistently ruled that the determination by the trial court of the credibility
of the witnesses deserves full weight and respect considering that it has "the opportunity to observe the
witnesses’ manner of testifying, their furtive glances, calmness, sighs and the scant or full realization of their
oath,"113 unless it is shown that material facts and circumstances have been "ignored, overlooked, misconstrued,
or misinterpreted."114

Further, as correctly observed by the trial court:

xxx His and his witness’ attempt to throw the court off the track by imputing the crime to someone else is xxx a
vain exercise in view of the private complainant’s positive identification of accused and other corroborative
circumstances. Accused also admitted that on the same evening, Julito Apiki, the supposed real culprit, asked
him "What is this incident, Pare?", thus corroborating the latter’s testimony that he confronted accused after
hearing of the incident from the child." 115

On the other hand, we cannot agree with the appellant that the trial court erred in finding his denial and alibi
weak despite the presentation of witnesses to corroborate his testimony. Glaring inconsistencies were all over
their respective testimonies that even destroyed the credibility of the appellant’s very testimony.

Appellant testified that it was his uncle Alejandro Perocho who sent him to store to buy Tanduay; that he gave
the bottle to his uncle; and that they had already been drinking long before he bought Tanduay at the store.

This was contradicted by the testimony of his aunt Gloria, wife of his uncle Alejandro. On cross-examination, she
revealed that her husband was not around before, during, and after the rape incident because he was then at
work.116 He arrived from work only after FFF came to their house for the second time and boxed appellant. 117 It
was actually the fish vendor, not her husband, who asked appellant to buy Tanduay. 118 Further, the drinking
session started only after the appellant’s errand to the store. 119

Neither was the testimony of Luzvilla credible enough to deserve consideration.

Just like appellant, Luzvilla testified that Alejandro joined the drinking session. This is contrary to Gloria’s
statement that her husband was at work.

Luzvilla’s testimony is likewise inconsistent with that of sur-rebuttal witness Antonia Perocho. Antonia recalled
that Julito arrived without a shirt on. This belied Luzvilla’s claim that Julito wore a white shirt on his way to the
house of Rita. In addition, while both the prosecution, as testified to by AAA and Julito, and the defense, as
testified to by Gloria, were consistent in saying that appellant wore a sleeveless shirt, Luzvilla’s recollection differ
in that Julito wore a T-shirt (colored black and later changed to white), and, thus, a short-sleeved shirt.

Also, contrary to Luzvilla’s story that she saw AAA walking towards Rita’s house three (3) minutes after she
returned to the Perochos at 6:38 in the evening, Antonia recalled that AAA arrived at the house of Rita at 7:30. In
this respect, we find the trial court’s appreciation in order. Thus:

xxx. The child declared that after being raped, she went straight home, crying, to tell her father that Hermie had
raped her. She did not first drop into the house of Lita Lingkay to cry among strangers who were watching TV, as
Luzvilla Balucan would have the court believe. When the child was seen at the house of Lita Lingkay by Julito
Apiki and Luzvilla Balucan, it was only later, after she had been brought there by her mother Brenda so that Lita
Lingkay could take a look at her ˗ just as Julito Apiki said. 120

Above all, for alibi to prosper, it is necessary that the corroboration is credible, the same having been offered
preferably by disinterested witnesses. The defense failed thuswise. Its witnesses cannot qualify as such, "they
being related or were one way or another linked to each other." 121

Even assuming for the sake of argument that we consider the corroborations on his whereabouts, still, the
defense of alibi cannot prosper.

We reiterate, time and again, that the court must be convinced that it would be physically impossible for the
accused to have been at the locus criminis at the time of the commission of the crime.122

Physical impossibility refers to distance and the facility of access between the situs criminis and the location of
the accused when the crime was committed. He must demonstrate that he was so far away and could not have
been physically present at the scene of the crime and its immediate vicinity when the crime was committed. 123

In People v. Paraiso,124 the distance of two thousand meters from the place of the commission of the crime was
considered not physically impossible to reach in less than an hour even by foot. 125 Inasmuch as it would take the
accused not more than five minutes to rape the victim, this Court disregarded the testimony of the defense
witness attesting that the accused was fast asleep when she left to gather bamboo trees and returned several
hours after. She could have merely presumed that the accused slept all throughout. 126

In People v. Antivola,127 the testimonies of relatives and friends corroborating that of the appellant that he was in
their company at the time of the commission of the crime were likewise disregarded by this Court in the following
manner:

Ruben Nicolas, the appellant’s part-time employer, and Marites Capalad, the appellant’s sister-in-law and co-
worker, in unison, vouched for the appellant’s physical presence in the fishpond at the time Rachel was raped. It
is, however, an established fact that the appellant’s house where the rape occurred, was a stone’s throw
away from the fishpond. Their claim that the appellant never left their sight the entire afternoon of
December 4, 1997 is unacceptable. It was impossible for Marites to have kept an eye on the appellant for
almost four hours, since she testified that she, too, was very much occupied with her task of counting and
recording the fishes being harvested. Likewise, Mr. Nicolas, who, admittedly was 50 meters away from the
fishpond, could not have focused his entire attention solely on the appellant. It is, therefore, not farfetched that
the appellant easily sneaked out unnoticed, and along the way inveigled the victim, brought her inside
his house and ravished her, then returned to the fishpond as if he never left.128 (Emphasis supplied.) 1avvphi1

As in the cases above cited, the claim of the defense witnesses that appellant never left their sight, save from
the 5-minute errand to the store, is contrary to ordinary human experience. Moreover, considering that the
farmland where the crime was committed is just behind the house of the Perochos, it would take appellant only a
few minutes to bring AAA from the road near the store next to the Perochos down the farmland and consummate
the crime. As correctly pointed out by the Court of Appeals, appellant could have committed the rape after
buying the bottle of Tanduay and immediately returned to his uncle’s house. 129 Unfortunately, the testimonies of
his corroborating witnesses even bolstered the fact that he was within the immediate vicinity of the scene of the
crime.130

Clearly, the defense failed to prove that it was physically impossible for appellant to have been at the time and
place of the commission of the crime.

All considered, we find that the prosecution has sufficiently established the guilt of the appellant beyond
reasonable doubt.

III

In the determination of the imposable penalty, the Court of Appeals correctly considered Republic Act No.
9344 (Juvenile Justice and Welfare Act of 2006) despite the commission of the crime three (3) years before it
was enacted on 28 April 2006.

We recognize its retroactive application following the rationale elucidated in People v. Sarcia:131

[Sec. 68 of Republic Act No. 9344] 132 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.133 (Emphasis supplied.)

Criminal Liability; Imposable Penalty

Sec. 6 of Republic Act No. 9344 exempts a child above fifteen (15) years but below eighteen (18) years of age
from criminal liability, unless the child is found to have acted with discernment, in which case, "the appropriate
proceedings" in accordance with the Act shall be observed. 134

We determine discernment in this wise:

Discernment is that mental capacity of a minor to fully appreciate the consequences of his unlawful act. 135 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.136

xxx The surrounding circumstances must demonstrate that the minor knew what he was doing and that it was
wrong.137 Such circumstance includes the gruesome nature of the crime and the minor’s cunning and
shrewdness.138

In the present case, we agree with the Court of Appeals that: "(1) choosing an isolated and dark place to
perpetrate the crime, to prevent detection[;] and (2) boxing the victim xxx, to weaken her defense" are indicative
of then seventeen (17) year-old appellant’s mental capacity to fully understand the consequences of his unlawful
action.139

Nonetheless, the corresponding imposable penalty should be modified.

The birth certificate of AAA140 shows that she was born on 3 December 1997. Considering that she was only five
(5) years old when appellant defiled her on 28 January 2003, the law prescribing the death penalty when rape is
committed against a child below seven (7) years old141 applies.

The following, however, calls for the reduction of the penalty: (1) the prohibition against the imposition of the
penalty of death in accordance with Republic Act No. 9346; 142 and (2) the privileged mitigating circumstance of
minority of the appellant, which has the effect of reducing the penalty one degree lower than that prescribed by
law, pursuant to Article 68 of the Revised Penal Code. 143

Relying on People v. Bon,144 the Court of Appeals excluded death from the graduation of penalties provided in
Article 71 of the Revised Penal Code. 145 Consequently, in its appreciation of the privileged mitigating
circumstance of minority of appellant, it lowered the penalty one degree from reclusion perpetua and sentenced
appellant to suffer the indeterminate penalty of six (6) years and one (1) day to twelve (12) years of prision
mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, in its medium period, as
maximum.146

We differ.

In a more recent case,147 the Court En Banc, through the Honorable Justice Teresita J. Leonardo-de Castro,
clarified:

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. Thus, the proper imposable penalty for the accused-
appellant is reclusion perpetua.148 (Emphasis supplied.)

Accordingly, appellant should be meted the penalty of reclusion perpetua.

Civil Liability

We have consistently ruled that:

The litmus test xxx 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.149

Likewise, the fact that the offender was still a minor at the time he committed the crime has no bearing on the
gravity and extent of injury suffered by the victim and her family. 150 The respective awards of civil indemnity and
moral damages in the amount of ₱75,000.00 each are, therefore, proper. 151

Accordingly, despite the presence of the privileged mitigating circumstance of minority which effectively lowered
the penalty by one degree, we affirm the damages awarded by the Court of Appeals in the amount of
₱75,000.00 as civil indemnity and ₱75,000.00 as moral damages. And, consistent with prevailing
jurisprudence,152 the amount of exemplary damages should be increased from ₱25,000.00 to ₱30,000.00.

Automatic Suspension of Sentence; Duration; Appropriate Disposition after the Lapse of the Period of
Suspension of Sentence

Republic Act No. 9344 warrants the suspension of sentence of a child in conflict with the law notwithstanding
that he/she has reached the age of majority at the time the judgment of conviction is pronounced. 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 (18) years of age or more at the time of the pronouncement of
his/her guilt. (Emphasis supplied.)

xxxx

Applying Declarador v. Gubaton,153 which was promulgated on 18 August 2006, the Court of Appeals held that,
consistent with Article 192 of Presidential Decree No. 603, as amended, 154 the aforestated provision does not
apply to one who has been convicted of an offense punishable by death, reclusion perpetua or life
imprisonment.155

Meanwhile, on 10 September 2009, this Court promulgated the decision in Sarcia,156 overturning the ruling
in Gubaton. Thus:

The xxx 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. 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. 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.157

The legislative intent reflected in the Senate deliberations 158 on Senate Bill No. 1402 (Juvenile Justice and
Delinquency Prevention Act of 2005) further strengthened the new position of this Court to cover heinous crimes
in the application of the provision on the automatic suspension of sentence of a child in conflict with the law. The
pertinent portion of the deliberation reads:

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 [Senator Miriam Defensor-Santiago’s] 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 in Sarcia.)159

On 24 November 2009, the Court En Banc promulgated the Revised Rule on Children in Conflict with the
Law, which reflected the same position.160

These developments notwithstanding, we find that the benefits of a suspended sentence can no longer apply to
appellant. The suspension of sentence lasts only until the child in conflict with the law reaches the maximum age
of twenty-one (21) years.161 Section 40162 of the law and Section 48163 of the Rule are clear on the matter.
Unfortunately, appellant is now twenty-five (25) years old.

Be that as it may, to give meaning to the legislative intent of the Act, the promotion of the welfare of a child in
conflict with the law should extend even to one who has exceeded the age limit of twenty-one (21) years, so long
as he/she committed the crime when he/she was still a child. The offender shall be entitled to the right to
restoration, rehabilitation and reintegration in accordance with the Act in order that he/she is given the chance to
live a normal life and become a productive member of the community. The age of the child in conflict with the
law at the time of the promulgation of the judgment of conviction is not material. What matters is that the
offender committed the offense when he/she was still of tender age.

Thus, appellant may be confined in an agricultural camp or any other training facility in accordance with Sec. 51
of Republic Act No. 9344.164

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.

Following the pronouncement in Sarcia,165 the case shall be remanded to the court of origin to effect appellant’s
confinement in an agricultrual camp or other training facility.

WHEREFORE, the Decision dated 29 August 2007 of the Court of Appeals in CA-G.R. CR HC No. 00213 finding
appellant Hermie M. Jacinto guilty beyond reasonable doubt of qualified rape is AFFIRMED with the
following MODIFICATIONS: (1) the death penalty imposed on the appellant is reduced to reclusion perpetua;
and (2) appellant is ordered to pay the victim P75,000.00 as civil indemnity, P75,000.00 as moral damages, and
P30,000.00 as exemplary damages. The case is hereby REMANDED to the court of origin for its appropriate
action in accordance with Section 51 of Republic Act No. 9344.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:
 RENATO C. CORONA
Chief Justice
Chairperson

PRESBITERO J. VELASCO, JR. TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA
Chief Justice

Footnotes

1
 People v. Antivola, G.R. No. 139236, 3 February 2004, 421 SCRA 587, 598; People v. Nogar, G.R. No.
133946, 27 September 2000, 341 SCRA 206, 217.

2
 People v. Trayco, G.R. No. 171313, 14 August 2009, 596 SCRA 233, 253; People v. Paraiso, G.R. No.
131823, 17 January 2001, 349 SCRA 335, 350-351.

3
 To maintain the confidentiality of information on child abuse cases, and consistent with the application
in People v. Cabalquinto (G.R. No. 167693, 19 September 2006, 502 SCRA 419) of: (1) the provisions
of Republic Act No. 7610 (Special Protection of Children Against Child Abuse, Exploitation and
Discrimination Act) and its implementing rules; (2) Republic Act No. 9262 (Anti-Violence Against Women
and their Children Act of 2004) and its implementing rules; and (3) this Court’s Resolution dated 19
October 2004 in A.M. No. 04-10-11-SC (Rule on Violence Against Women and their Children), the real
name and the personal circumstances of the victim, and any other information tending to establish or
compromise her identity, including those of her immediate family or household members are withheld.

 Records, pp. 64-69. Decision dated 26 March 2004 of the Regional Trial Court penned by Judge Ma.
4

Nimfa Penaco-Sitaca; Id. at 77. Order dated 6 April 2004 of the Regional Trial Court penned by Judge
Penaco-Sitaca; CA rollo pp. 134-159. Decision dated 29 August 2007 penned by Associate Justice Elihu
A. Ybañez, with Associate Justices Romulo V. Borja and Mario V. Lopez concurring.

 The docket no. indicated in the covering of the trial court’s record of the case and the majority of the
6

Orders and other court processes, including the decisions of the Regional Trial Court and the Court of
Appeals, is Criminal Case No. 1679-13-1411.

20
 Id.

In its decision, the trial court translated the testimony in the following manner: "xxx leaving the
store at the same time, he saw Hermie holding the child by the hand and proceeding downward
while he proceeded upward to the house of Lita Lingkay to watch TV." Records, p. 67. Decision
dated 26 March 2004.

 Sec. 68. Children Who Have Been Convicted and are Servicing Sentence. – Persons who have been
132

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

134
 SEC. 6. Minimum Age of Criminal Responsibility. - xxx

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.

xxxx

 Records, pp. 73-74. Certificate of Live Birth and Certification from the Municipal Office of the Civil
140

Registrar issued on 30 March 2004.

 Paragraph 6, sub-paragraph 5, Article 266-B of the Revised Penal Code, as amended by The Anti-
141

Rape Law of 1997.

142
 Sec. 1, Republic Act No. 9346 (An Act Prohibiting the Imposition of Death Penalty in the Philippines).

 ART. 68 Penalty to be imposed upon a person under eighteen years of age. – When the offender is a
143

minor under eighteen years and his case is one coming under the provisions of the paragraph next to the
last of article 80 of this Code, the following rules shall be observed:

1. xxx

2. Upon a person over fifteen and under eighteen yeras of age the penalty next lower than that
prescribed by law shall be imposed, but always in the proper period.

Article 71 of the Revised Penal Code provides:

ART. 71. Graduated scales. - In the cases in which the law prescribes a penalty lower or higher
by one or more degrees than another given penalty, the rules prescribed in article 61 shall be
observed in graduating such penalty.

xxxx

The courts, in applying such lower or higher penalty, shall observe the following graduated
scales:

SCALE NO. 1

1. Death,

2. Reclusion perpetua,

3. Reclusion temporal,

4. Prision mayor,

5. Prision correccional,

6. Arresto mayor,

7. Destierro,

8. Arresto menor,

9. Public censure,

10. Fine.

xxxx

 Art. 192. Suspension of Sentence and Commitment of Youthful Offender. – If after hearing the
154

evidence in the proper proceedings, the court should find that the youthful offender has committed the
acts charged against him, the ocurt, shall determine the imposable penalty, including any civil liability
chargeable against him. However, instead of pronouncing judgment of conviction, the court, upon
application of the youthful offender and if it finds that the best interest of the public, as well as that of the
offender will be served thereby, may suspend all further proceedings and commit such minor to the
custody or care of the Department of Social Welfare and Development or to any training institution
operated by the government or any other responsible person until he shall have reached twenty-one
years of age, or for a shorter period as the court may deem proper, after considering the reports and
recommendations of the Department of Social Welfare and Development or the government training
institution or responsible person under whose care he has been committed.

Upon receipt of the application of the youthful offender for suspension of his sentence, the court
may require the Department of Social Welfare and Development to prepare and submit to the
court a social case study report over the offender and his family.

The youthful offender shall be subject to visitation and supervision by the representative of the
Department of Social Welfare and Development or government training institution as the court
may designate subject to such conditions as it may prescribe.

The benefits of this article shall not apply to a youthful offender who has once enjoyed
suspension of sentence under its provisions or to one who is convicted for an offense
punishable by death or life imprisonment or to one who is convicted for an offense by the
Military Tribunals. (Emphasis supplied.)

 Section 48. Automatic Suspension of Sentence and Disposition Orders. – If the child is found guilty of
160

the offense charged, the court, instead of executing the judgment of conviction, shall place the child in
conflict with the law under suspended sentence, without need of application. Suspension of sentence
can be availed of even if the child is already eighteen years (18) of age or more but not above twenty-
one (21) years old, at the time of the pronouncement of guilt, without prejudice to the child’s availing of
other benefits such as probation, if qualified, or adjustment of penalty, in the interest of justice.

The benefits of suspended sentence shall not apply to a child in conflict with the law who has
once enjoyed suspension of sentence, but shall nonetheless apply to one who is convicted
of an offense punishable by reclusion perpetua or life imprisonment pursuant to the
provisions of Rep. Act No. 9346 prohibiting the imposition of the death penalty and in lieu
thereof, reclusion perpetua, and after application of the privileged mitigating
circumstance of minority. (Emphasis supplied.)

162
 Sec. 40. Return of the Child in Conflict with the Law to Court. – xxx

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 supplied.)

163
 Section 48. Automatic Suspension of Sentence and Disposition Orders. –

xxxx

If the child in conflict with the law reaches eighteen (18) years of age while under suspended
sentence, the court shall determine whether to discharge the child in accordance with the
provisions of Republic Act No. 9344, or to extend the suspended sentence for a maximum
period of up to the time the child reaches twenty-one (21) years of age, or to order service
of sentence. (Emphasis supplied.)
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 213792               June 22, 2015

GUILLERMO WACOY y BITOL, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent,

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

G.R. No. 213886

JAMES QUIBAC y RAFAEL, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERLAS-BERNABE, J.:

Assailed in these consolidated petitions for review on certiorari  are the Decision  dated December 6, 2013 and
1 2

the Resolution  dated July 21, 2014 of the Court of Appeals (CA) in CA-G.R. CR No. 34078, which, inter alia,
3

found petitioners Guillermo Wacoy y Bitol (Wacoy) and James Quibac Rafael (Quibac) guilty beyond reasonable
doubt of the crime of Homicide.

The Facts

In an Information dated June 10, 2004, Wacoy and Quibac were charged with the crime of Homicide, defined
and penalized under Article 249 of the Revised Penal Code (RPC), before the Regional Trial Court of Benguet,
Branch 10 (RTC), as follows:

That on or about the 11th day of April 2004, at Ambongdolan, Municipality of Tublay, Province of Benguet,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually aiding each other, with intent to kill, did then and there willfully, unlawfully and
feloniously attack, assault, maul and kick the stomach of one ELNER ARO y LARUAN, thereby inflicting upon
him blunt traumatic injuries which directly caused his death thereafter.

That the offense committed was attended by the aggravating circumstance of superior strength. CONTRARY TO
LAW. 4

According to prosecution witness Edward Benito (Benito), at around 3 o'clock in the afternoon of April 11, 2004,
he was eating corn at a sari-sari store located at Bungis Ambongdolan, Tublay, Benguet, when he heard a
commotion at a nearby establishment. Upon checking what the ruckus was all about, he saw his cousin, Elner
Aro (Aro), already sprawled on the ground. While in that position, he saw Wacoy kick Aro's stomach twice, after
which, Wacoy picked up a rock to throw at Aro but was restrained from doing so. As Aro stood up, Quibac
punched him on the stomach, causing him to collapse and cry in pain. Thereafter, Aro was taken to the hospital. 5

At the hospital, Aro was diagnosed to be suffering from "blunt abdominal trauma with injury to the jejunum" and
was set for operation. It was then discovered that he sustained a perforation on his ileum, i.e., the point where
the small and large intestines meet, that caused intestinal bleeding, and that his entire abdominal peritoneum
was filled with air and fluid contents from the bile. However, Aro suffered cardiac arrest during the operation, and
while he was revived through cardiopulmonary resuscitation, he lapsed into a coma after the operation. 6

Due to financial constraints, Aro was taken out of the hospital against the doctor's orders and eventually, died
the next day. While Aro's death certificate indicated that the cause of his
death was "cardiopulmonary arrest antecedent to a perforated ileum and generalized peritonitis secondary to
mauling," an autopsy performed on his remains revealed that the cause of his death was "rupture of the aorta
secondary to blunt traumatic injuries."7

In their defense, herein petitioners, Wacoy and Quibac, denied the charge against them. They averred that while
playing pool, they saw Aro drunk and lying down. Suddenly, Aro became unruly and kicked the leg of the pool
table, causing Wacoy to shout and pick up a stone to throw at Aro but Quibac pacified him. They also claimed
that Aro almost hit Wacoy with a 2x3 piece of wood if not for Quibac' s intervention. Wacoy ran but Aro chased
him and then tripped and fell to the ground. Quiniquin Carias (Kinikin), Aro's companion, followed Wacoy to the
waiting shed nearby, cornered and kicked the latter, and the two engaged in a fist fight. Quibac came over to
pacify the two and told Wacoy to go home. 8

The RTC Ruling In a Judgment  dated February 28, 2011, the RTC found Wacoy and Quibac guilty beyond
9

reasonable doubt of the crime of Death Caused in a Tumultuous Affray under Article 251 of the RPC and,
accordingly, sentenced them to suffer the penalty of imprisonment for an indeterminate period 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, and ordered them to pay Aro's heirs the amounts of ₱25,000.00 as temperate damages, ₱50,000.00
as civil indemnity ex delicto, and ₱50,000.00 as moral damages. 10

The RTC found that Benito's testimony on the mauling incident does not firmly establish that Wacoy and Quibac
conspired in the killing of Aro, and that the medical reports were neither categorical in stating that the injuries Aro
sustained from the mauling directly contributed to his death.  11

In this relation, it opined that "[a]s conspiracy was not proven and the prosecution has failed to show the extent
and effect of injury [that Wacoy and Quibac] personally inflicted on [Aro] that led to his death xx x," Wacoy and
Quibac should be held criminally liable for the crime of Death Caused in a Tumultuous Affray and not for
Homicide. 12

Aggrieved, Wacoy and Quibac appealed to the CA. 13

The CA Ruling

In a Decision  dated December 6, 2013, the CA modified Wacoy and Quibac's conviction to that of Homicide
14

under A1iicle 249 of the RPC with the mitigating circumstance of lack of intent to commit so grave a wrong, and
accordingly adjusted their prison term to an indeterminate period of six (6) years and one (1) day of prision
mayor, as minimum, to twelve (12) years and one ( 1) day of reclusion temporal, as maximum. Further, the CA
also imposed a legal interest of six percent ( 6%) per annum on the damages awarded by the RTC pursuant to
prevailing jurisprudence. 15

In so ruling, the CA gave credence to Benito's simple, direct, and straightforward testimony. In this relation, it
observed that the mere fact that Benito is Aro's cousin should not militate against his credibility since there was
no proof that his testimony was driven by any ill motive.  However, contrary to the RTC's findings, the CA ruled
16

that Wacoy and Quibac should not be convicted of the crime of Death Caused in a Tumultuous Affray since
there were only (2) persons who inflicted harm on the victim, and that there was no tumultuous affray involving
several persons. Instead, they were convicted of the crime of Homicide, with the mitigating circumstance of lack
of intent to commit so grave a wrong appreciated as it was shown that the purpose of their assault on Aro was
only to maltreat or inflict physical harm on him.17

Aggrieved, Wacoy and Quibac separately moved for reconsideration.   In a Resolution  dated July 21, 2014, the
18 19

CA denied Quibac's motions for reconsideration;  hence, the instant petitions.

20

The Issue Before the Court

The core issue for the Court's resolution is whether or not the CA correctly found Wacoy and Quibac guilty
beyond reasonable doubt of the crime of Homicide.

The Court's Ruling

The petition is without merit.

At the outset, it must be stressed that in criminal cases, an appeal throws the entire case wide open for review
and the reviewing tribunal can correct errors, though unassigned in the appealed judgment, or even reverse the
trial court's decision based on grounds other than those that the parties raised as errors. The appeal confers
upon the appellate court full jurisdiction over the case and renders such court competent to examine records,
revise the judgment appealed from, increase the penalty, and cite the proper provision of the penal law. 21

Proceeding from the foregoing, the Court agrees with the CA's ruling modifying Wacoy and Quibac' s conviction
from Death Caused in a Tumultuous Affray to that of Homicide, as will be explained hereunder.

Article 251 of the RPC defines and penalizes the crime of Death Caused in a Tumultuous Affray as follows:

Art. 251. Death caused in a tumultuous affray. - When, while several persons, not composing groups organized
for the common purpose of assaulting and attacking each other reciprocally, quarrel and assault each other in a
confused and tumultuous manner, and in the course of the affray someone is killed, and it cannot be ascertained
who actually killed the deceased, but the person or persons who inflicted serious physical injuries can be
identified, such person or persons shall be punished by prision mayor.

If it cannot be determined who inflicted the serious physical injuries on the deceased, the penalty of prision
correccional in its medium and maximum periods shall be imposed upon all those who shall have used violence
upon the person of the victim.

The elements of Death Caused in a Tumultuous Affray are as follows: (a) that there be several persons; (b) that
they did not compose groups organized for the common purpose of assaulting and attacking each other
reciprocally; (c) that these several persons quarrelled and assaulted one another in a confused and tumultuous
manner; (d) that someone was killed in the course of the affray; (e) that it cannot be ascertained who actually
killed the deceased; and (j) that the person or persons who inflicted serious physical injuries or who used
violence can be identified.  Based on case law, a tumultuous affray takes place when a quarrel occurs between
22

several persons and they engage in a confused and tumultuous affray, in the course of which some person is
killed or wounded and the author thereof cannot be ascertained. 23

On the other hand, the crime of Homicide is defined and penalized under Article 249 of the RPC, which reads:

Art. 249. Homicide. - Any person who, not falling within the provisions of Article 246, shall kill another, without
the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of
homicide and be punished by reclusion temporal. The elements of Homicide are the following: (a) a person was
killed; (b) the accused killed him without any justifying circumstance; (c) the accused had the intention to kill,
which is presumed; and (d) the killing was not attended by any of the qualifying circumstances of Murder, or by
that of Parricide or Infanticide. 24

In the instant case, there was no tumultuous affray between groups of persons in the course of which Aro
died.  On the contrary, the evidence clearly established that there were only two (2) persons, Wacoy and
1âwphi1

Quibac, who picked on one defenseless individual, Aro, and attacked him repeatedly, taking turns in inflicting
punches and kicks on the poor victim. There was no confusion and tumultuous quarrel or affray, nor was there a
reciprocal aggression in that fateful incident.  Since Wacoy and Quibac were even identified as the ones who
25

assaulted Aro, the latter's death cannot be said to have been caused in a tumultuous affray.  Therefore, the CA
26

correctly held that Wacoy and Quibac' s act of mauling Aro was the proximate cause  of the latter's death; and
27

as such, they must be held criminally liable therefore, specifically for the crime of Homicide.

On this note, the Court does not find merit in Wacoy's contention that in view of their intent only to inflict slight
physical injuries on Aro, they should only be meted the corresponding penalty therefore in its maximum
period,  pursuant to Article 49 of the RPC. The said provision reads:
28

Art. 49. Penalty to be imposed upon the principals when the crime committed is different from that intended. - In
cases in which the felony committed is different from that which the offender intended to commit, the following
rules shall be observed.

1. If the penalty prescribed for the felony committed be higher than that corresponding to the offense
which the accused intended to commit, the penalty corresponding to the latter shall be imposed in its
maximum period.
 2. If the penalty prescribed for the felony committed be lower than that corresponding to the one which
the accused intended to commit, the penalty for the former shall be imposed in its maximum period.

3. The rule established by the next preceding paragraph shall not be applicable if the acts committed by
the guilty person shall also constitute an attempt or frustration of another crime, if the law prescribes a
higher penalty for either of the latter offenses, in which case the penalty provided for the attempt or the
frustrated crime shall be imposed in the maximum period.

Jurisprudence instructs that such provision should only apply where the crime committed is different from that
intended and where the felony committed befalls a different person (error in personae); and not to cases where
more serious consequences not intended by the offender result from his felonious act (praeter intentionem), 29

as in this case. It is well-settled that if the victim dies because of a deliberate act of the malefactors, intent to kill
is conclusively presumed.  In such case, even if there is no intent to kill, the crime is Homicide because with
30

respect to crimes of personal violence, the penal law looks particularly to the material results following the
unlawful act and holds the aggressor responsible for all the consequences thereof. 31

Be that as it may, the penalty for the crime of Homicide must be imposed in its minimum period due to the
presence of the mitigating circumstance of lack of intention to commit so grave a wrong under Article 13 (3) of
the RPC in favor of Wacoy and Quibac, as correctly appreciated by the CA. In determining the presence of this
circumstance, it must be considered that since intention is a mental process and is an internal state of mind, the
accused's intention must be judged by his conduct and external overt acts.  In this case, the aforesaid mitigating
32

circumstance is available to Wacoy and Quibac, given the absence of evidence showing that, apart from kicking
and punching Aro on the stomach, something else had been done; thus, evincing the purpose of merely
maltreating or inflicting physical harm, and not to end the life of Aro.

Anent the proper penalty to be imposed on Wacoy and Quibac, the CA correctly imposed the penalty of
imprisonment for an indeterminate period of six ( 6) years and one ( 1) day of prision mayor, as minimum, to
twelve (12) years and one (1) day of reclusion temporal, as maximum, taking into consideration the provisions of
the Indeterminate Sentence Law.

Finally, the awards of civil indemnity and moral damages in the original amount of ₱50,000.00 each are
increased to ₱75,000.00 each in order to conform with prevailing jurisprudence.  All other awards, as well as the
33

imposition of interest at the rate of six percent ( 6%) per annum on all the monetary awards from the date of
finality of judgment until the same are fully paid, are retained.

WHEREFORE, the petition is DENIED. The Decision dated December 6, 2013 and the Resolution dated July 21,
2014 of the Court of Appeals in CA-G.R. CR No. 34078 are hereby AFFIRMED with MODIFICATION.
Accordingly, petitioners Guillermo Wacoy y Bitol and James Quibac y Rafael are found GUILTY beyond
reasonable doubt of the crime of Homicide defined and penalized under Article 249 of the Revised Penal Code
with the mitigating circumstance of lack of intent to commit so grave a wrong under Article 13 (3) of the same
Code. They are sentenced to suffer the penalty of imprisonment for an indeterminate period of six ( 6) years and
one (1) day of prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal, as
maximum, and ordered to pay the heirs of Elner Aro the amounts of ₱25,000.00 as temperate damages,
₱75,000.00 as civil indemnity ex delicto, and ₱75,000.00 as moral damages, all with interest at the rate of six
percent (6%) per annum from the finality of this Decision until fully paid.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO LUCAS P. BERSAMIN

Associate Justice Associate Justice
 JOSE PORTUGAL PEREZ
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had
been reached in consultation before the cases were assigned to the writer of the opinion of the Court’s Division.

MARIA LOURDES P.A. SERENO

Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 183566               May 8, 2009

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
BONIFACIO BADRIAGO,** Accused-Appellant.

DECISION

VELASCO, JR., J.:

On automatic review is the Decision dated April 22, 2008 of the Court of Appeals (CA) in CA G.R. CR-H.C. No.
00129, which found accused-appellant Bonifacio Badriago guilty of Frustrated Homicide in Criminal Case No.
4255 and Murder in Criminal Case No. 4276.

The Facts

Accused-appellant was charged before the Regional Trial Court (RTC) under the following Informations:

Criminal Case No. 4255

That on or about the 13th day of September 2002 in the Municipality of Carigara, [P]rovince of Leyte, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent and with
intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and hack one ADRIAN
QUINTO, with the use of a long sharp bolo (sundang) which the accused had provided himself for the purpose,
thereby inflicting upon the latter the following wounds, to wit:

SURGERY NOTES:

(+) hacked wounds transverse approximately 16 cms.

Linear (L) lumbar area level of L-L5

(+) hacked wound (L) forearm.

ORTHO NOTES:

A) Near amputation M/3rd (L) forearm 2˚ to hack wound.

DIAGNOSIS:

Hack wound 15 cms. oblique level of L2 posterior

lumbar area, transecting underlying muscle.

Fracture both radius and ulna.

OPERATION: September 14, 2002.

Wound Debridement and Repair

ORIF (Pinning)
Which wounds required a period of from thirty (30) days to ninety (90) days to heal and incapacitated said
offended party from performing his habitual work for the same period of time; thus the accused performed all the
acts of execution which [would] have produced the crime of Homicide as a consequence thereof, but
nevertheless did not produce it by reason or causes independent of the will of the accused, that is the timely and
able medical assistance rendered to the said Adrian Quinto which prevented his death.

CONTRARY TO LAW.

Criminal Case No. 4276

That on or about the 13th day of September, 2002, in the Municipality of Carigara, Province of Leyte, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent, with
treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and
stab one OLIVER QUINTO with the use of a long sharp bolo (sundang) which the accused had provided himself
for the purpose, thereby inflicting upon the latter the following wounds, to wit:

1. [Stab] wound 4 cm. x 1.5 cm. x 16 cm. (L) ant. chest at the level of 5th ICS along the (L) ICL;

2. [Stab] wound 6.5 x 3 cm. x 22 cm. (L) ant. chest at the level of 6th ICS along (L) anterior AAL;

3. [Stab] wound 3.5 cm. x 1.5 x 2 cm., (L) arm proximal 3rd lateral aspect;

4. Amputating wound (L) 3rd, 4th and 5th finger;

5. [Stab] wound 5 cm. x 3.5 cm. x 6 cm. umbilical area with intestinal and omental prolapsed;

6. Hacking wound 9 cm. x 2 cm. (L) occipital area with skull fracture;

7. [Stab] wound 3 cm. x 1 cm. x 15 cm. (L) posterior back at the level of T 12, 3 cm. away from vertebral
line;

8. [Stab] wound 2 cm. x 1 cm. x 9 cm. (L) posterior back 8 cm. away from vertebral line;

9. Hacking wound 11 cm. x 2 cm. x 9 cm. (L) posterior iliac with fracture of hip bone;

10. [Stab] wound 3 cm. x 2 cm. x 3 cm. (L) buttocks;

11. [Stab] wound 5.5 cm. x 1.5 cm. x 2.5 cm. lumbar area along the vertebral line.

which wounds caused the death of said Oliver Quinto.

CONTRARY TO LAW.1

Upon arraignment, accused-appellant pleaded not guilty to both charges. The parties later agreed to try the case
jointly. During trial, the prosecution presented the following witnesses: Dr. Ma. Bella Profetana, Adrian Quinto,
Dr. Frederic Joseph Asanza, and Victoriano Quinto. The defense witnesses consisted of accused-appellant and
Rodolfo Gabon.

The prosecution’s presentation of evidence is summarized as follows: Adrian testified that on the morning of
September 13, 2002, he was asked by his mother to bring a letter to one Berting Bello at Barangay
Guindapunan, Leyte. He drove a tricycle to deliver the letter along with his younger brother, Oliver. After finishing
the errand they headed back to the town plaza where their mother was waiting for them. Before they could reach
their destination, however, they were approached by accused-appellant at Sitio Mombon in Carigara. Accused-
appellant then suddenly hacked him with a sundang or long bolo on his lumbar area. 2 Accused-appellant aimed
a second time but Adrian was able to somehow shield himself. His lower left arm suffered a hack wound as a
result. Struck with panic, he jumped off the tricycle but could not run away. He was able to push Oliver off the
tricycle so he could run away and call for help. He could no longer testify on what happened thereafter as he lost
consciousness and only woke up while confined at Carigara District Hospital. His mother later informed him that
Oliver was also attacked and did not survive.
Dr. Asanza’s testimony showed that Adrian suffered from two wounds that could have been fatal: the hack
wound on the lumbar area and on his left arm. He explained that Adrian could have died had he not been
brought to the hospital. When cross-examined, he stated that there was a possibility that Adrian could still crawl
or walk despite the infliction of the wound on the lumbar area. He also testified that it was possible that Adrian
was first hit on the forearm as he was facing accused-appellant and that he could have been hit on the lumbar
area while he was running.3

Dr. Profetana told the court that her post-mortem examination of Oliver showed that eight of the 11 wounds
inflicted on him were fatal. She identified hypovolemic shock as Oliver’s cause of death. Furthermore, she stated
that it was impossible for the victim to have survived the wounds as these severed the blood vessels and caused
hemorrhage.4

Victoriano, father of the victims, testified that his family incurred PhP 20,000 in expenses for the stainless bar
placed on Adrian’s injured arm. According to his estimate, they spent about PhP 50,000 for Adrian’s two-month
hospitalization but they were not able to keep the receipts. For the death of his other son, Oliver, they spent PhP
9,000 for the coffin and about PhP 10,000 for the wake. He likewise testified that if his family’s losses could be
quantified they would claim the amount of PhP 100,000. 5

In his defense, accused-appellant stated under oath that on the morning of September 13, 2002, he was on his
pedicab looking for passengers. While he was on his way to the bus terminal in Carigara, Leyte, he was
accosted by Adrian and Oliver, who carried stones with them. Adrian called out to him, "Now Boning, let us
fight." He tried to speed away but the two chased him, with Adrian driving his pedicab and Oliver standing on the
cargo compartment. They bumped accused-appellant’s pedicab, causing him to swerve to the middle of the
road.6 When accused-appellant looked back, Adrian got out of his pedicab and approached him with a knife
about 10 inches long. Seeing Adrian was about to stab him, he grabbed a bolo from his pedicab’s passenger
seat and used it to strike at Adrian, injuring his left hand. Adrian’s knife fell and when he bent to pick it up,
accused-appellant again hacked at him with his bolo. Adrian then managed to run away from accused-appellant
and head towards Barangay Guindapunan. Accused-appellant, meanwhile, ran towards the municipal building to
inform the police that he had injured someone. He denied killing Oliver as while he was fighting with Adrian he
did not even see Oliver.7l a vv p h i l.zw+

When cross-examined accused-appellant admitted that he did not suffer any injury following the confrontation
with Adrian. He claimed not to know what happened to Oliver.

The other defense witness, Rodolfo, testified that he knew accused-appellant as a pedicab driver. On the day of
the incident he saw two pedicabs engaged in a chase. He noticed that accused-appellant was in one pedicab
and he was being chased by the pedicab driven by Adrian. The bumper of accused-appellant’s pedicab was
bumped by Adrian’s pedicab. From a distance of about four arms’ length, he saw the two go down from their
respective pedicabs. Adrian said "let’s have a fight" while drawing a short bolo from his waist. Adrian tried to stab
accused-appellant but was unable to hit him. He then saw accused-appellant draw his own bolo from his waist
and hit the left arm of Adrian. Adrian’s bolo fell to the ground and when he was about to pick it up he was again
hit by accused-appellant.

On cross-examination, Rodolfo stated that he had not seen if Adrian had a passenger on board his pedicab, and
that the incident occurred along a national road with many houses and shrubbery. 8

On July 29, 2004, the RTC rendered its judgment. Accused-appellant was found guilty of the crimes charged.
The fallo of the Decision is as follows:

WHEREFORE, premises considered, with the aggravating circumstance of treachery, the Court [finds] accused
BONIFACIO BARDIAGO, GUILTY beyond reasonable doubt of the crime of FRUSTRATED MURDER instead of
Frustrated Homicide in Criminal Case No. 4255, and [sentences him] to suffer an indeterminate penalty of SIX
(6) YEARS and ONE (1) DAY OF Prision Mayor as Minimum to TWELVE (12) YEARS and one (1) DAY of
Reclusion Temporal as Maximum, and to pay Adrian Quinto actual damages in the amount of Twenty Thousand
(P20,000.00) Pesos and exemplary damages in the amount of Ten Thousand (P10,000.00) pesos.

Likewise, pursuant to Art. 248 of the Revised Penal Code as amended and further amended by R.A. No. 7659
(The Death Penalty Law) the Court found accused BONIFACIO BARDIAGO, GUILTY beyond reasonable doubt
of the crime of MURDER charged under the information in Criminal Case No. 4276, and sentenced to suffer the
maximum penalty of DEATH, and pay the heirs of Oliver Quinto civil indemnity in the amount of Seventy Five
Thousand (P75,000.00) and exemplary damages in the amount of Twenty Five Thousand (P25,000.00) Pesos;
and [to] pay the cost.
SO ORDERED.9

On September 14, 2004, the records of the case were transferred to this Court on automatic review as the death
penalty was involved. But conformably with People v. Mateo, 10 the case was transferred to the CA via a
Resolution dated February 15, 2005.

Accused-appellant, in his Brief filed before the CA, claimed that the trial court erred in convicting him of
frustrated murder as what was read to him at his arraignment was a charge for frustrated homicide, and the trial
court likewise erred in convicting him of frustrated murder and murder as his guilt was not proved beyond
reasonable doubt. He also challenged the conviction on the ground that the mitigating circumstances of
voluntary surrender, incomplete self-defense, and lack of intention to commit so grave a wrong were not
appreciated by the trial court.

The CA sustained accused-appellant’s first contention. It ruled that his conviction for frustrated murder was a
gross violation of his constitutional right to be informed of the nature and the cause of accusation against him.
Accused-appellant’s other arguments, however, were not given merit. The CA noted the undisputed fact that it
was accused-appellant, claiming self-defense, who inflicted the wounds sustained by Adrian and Oliver. The
circumstantial evidence presented showed accused-appellant’s culpability. Moreover, according to the CA, his
choice of weapon and the areas he hacked on the victim’s bodies revealed a clear intention to kill. The CA said
he was able to injure the brothers with no injury caused to himself.

Lastly, the appellate court rejected the mitigating circumstances proffered by accused-appellant. It ruled that
there was no voluntary surrender as accused-appellant himself testified that he had merely reported the injury
and did not surrender. As to the self-defense theory, the CA stated that accused-appellant failed to establish the
victims’ unlawful aggression, a requisite in such a mitigating circumstance.

In view of Republic Act No. 9346 or An Act Prohibiting the Imposition of Death, 11 the CA reduced accused-
appellant’s penalty to reclusion perpetua with respect to the murder charge in Criminal Case No. 4276.

The decretal portion of the CA Decision reads:

WHEREFORE, all the foregoing taken into account, the instant appeal is partially granted.

Accordingly, in Criminal Cases No. 4255 accused-appellant is found guilty only of FRUSTRATED HOMICIDE
and is hereby penalized to suffer an indeterminate sentence of 2 years, 4 months and 1 day of prision
correccional as minimum to 8 years and 1 day of prison mayor as maximum and to pay Adrian Quinto the sum of
twenty five thousand pesos (P25,000.00) by way of temperate damages.

In criminal case no. 4276 accused-appellant is found guilty of MURDER and is hereby sentenced to Reclusion
Perpetua and to pay the amount of fifty thousand pesos (Php50,000.00) as civil indemnity; twenty five thousand
pesos (P25,000.00) by way of temperate damages, fifty thousand pesos (P50,000.00) as moral damages and
twenty-five thousand pesos (P25,000.00) as exemplary damages.

With costs.

SO ORDERED.12

The Issues

On September 1, 2008, this Court notified the parties that they may file supplemental briefs if they so desired.
The parties manifested that they were dispensing with such filing. Accused-appellant, thus, re-pleads his
arguments first made before the CA. His appeal being partially granted, the only remaining issues to be resolved
are the following:

THE COURT OF APPEALS ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF

FRUSTRATED HOMICIDE AND MURDER DESPITE THE FACT THAT HIS GUILT WAS NOT PROVEN
BEYOND REASONABLE DOUBT

II
THE COURT OF APPEALS ERRED IN NOT APPRECIATING THE MITIGATING CIRCUMSTANCES OF
VOLUNTARY SURRENDER, INCOMPLETE SELF-DEFENSE, AND LACK OF INTENTION TO COMMIT SO
GRAVE A WRONG

Our Ruling

We affirm accused-appellant’s conviction.

Frustrated Homicide

To successfully prosecute the crime of homicide, the following elements must be proved beyond reasonable
doubt: (1) that a person was killed; (2) that the accused killed that person without any justifying circumstance; (3)
that the accused had the intention to kill, which is presumed; and (4) that the killing was not attended by any of
the qualifying circumstances of murder, or by that of parricide or infanticide. 13 Moreover, the offender is said to
have performed all the acts of execution if the wound inflicted on the victim is mortal and could cause the death
of the victim without medical intervention or attendance. 14

On the other hand, the essential elements of a frustrated felony are as follows: (1) The offender performs all the
acts of execution; (2) all the acts performed would produce the felony as a consequence; (3) but the felony is not
produced; and (4) by reason of causes independent of the will of the perpetrator. 15

From the evidence presented to the trial court, it is very much clear that accused-appellant was able to perform
all the acts that would necessarily result in Adrian’s death. His intention to kill can be presumed from the lethal
hacking blows Adrian received. His attack on Adrian with a bolo was not justified. His claim of self-defense was
not given credence by both the trial and appellate courts. Neither are there any of the qualifying circumstances
of murder, parricide, and infanticide. The circumstances, thus, make out a case for frustrated homicide as
accused-appellant performed all the acts necessary to kill Adrian; Adrian only survived due to timely medical
intervention as testified to by his examining physician.

Murder Qualified by Treachery

It is also argued by the defense that the attendant qualifying circumstance of treachery was not proved by clear
and convincing evidence. Accused-appellant reasons that Adrian was still able to put up a defense by parrying
the blow made by accused-appellant and was even able to jump off from the pedicab he was driving. He, thus,
maintains that the trial court erroneously characterized the incident as a sudden attack.

The essence of treachery is a deliberate and sudden attack, offering an unarmed and unsuspecting victim no
chance to resist or to escape.16 There is treachery even if the attack is frontal if it is sudden and unexpected, with
the victims having no opportunity to repel it or defend themselves, for what is decisive in treachery is that the
execution of the attack made it impossible for the victims to defend themselves or to retaliate. 17 The records
show that Adrian was suddenly attacked with a bolo, and the most he could do at that moment was to shield
himself somehow from the blow with his arm. Another blow to Adrian’s back showed the vulnerability of his
position as he had his back turned to accused-appellant and was not able to flee from attack. Treachery may
also be appreciated even if the victims were warned of the danger to their lives where they were defenseless
and unable to flee at the time of the infliction of the coup de grace.18

Sufficiency of the Prosecution’s Evidence

Accused-appellant speculates that if the incident happened in broad daylight and near a bus terminal, there
should have been independent eyewitnesses identifying accused-appellant as Oliver’s killer. Much is made of
the fact that not even Adrian was able to identify accused-appellant as Oliver’s assailant.

The failure by the prosecution to present the weapon allegedly used in the attack is, in accused-appellant’s
mind, yet another obstacle to the State’s obligation to prove guilt beyond reasonable doubt.

We hold that the circumstantial evidence available was enough to convict accused-appellant. Circumstantial
evidence may be competent to establish guilt as long as it is sufficient to establish beyond a reasonable doubt
that the accused, and not someone else, was responsible for the killing. 19 Circumstantial evidence is sufficient for
conviction as long as there is (1) more than one circumstance; (2) the facts from which the inferences are
derived are proved; and (3) the combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.20
We go back to accused-appellant’s own admission that he indeed injured Adrian, causing him near-fatal injuries.
From this admission the rest of the evidence, albeit circumstantial, made out a clear case for Oliver’s murder.
First, the victims were together in Adrian’s pedicab when the attack took place; second, accused-appellant
hacked Adrian with a bolo; third, Adrian’s injuries were caused by a bolo; fourth, Adrian tried to push Oliver to
safety before he lost unconsciousness; fifth, Oliver’s wounds were found to have been caused by a weapon that
made similar hacking wounds as the one made by accused-appellant when he assaulted Adrian; and sixth,
Oliver died on the same day Adrian sustained stab wounds. Although there is no direct evidence of Oliver’s
actual wounding, the circumstantial evidence presented sufficiently established that it was accused-appellant
who perpetrated the twin attacks on the brothers.

Accused-appellant, thus, cannot argue that the prosecution’s evidence was insufficient to convict him.
Furthermore, we have long ago held that the presentation of the murder weapon is not even essential for a
conviction.21

Voluntary Surrender

For the mitigating circumstance of voluntary surrender to be appreciated, the surrender must be spontaneous
and in a manner that shows that the accused made an unconditional surrender to the authorities, either based
on recognition of guilt or from the desire to save the authorities from the trouble and expenses that would be
involved in the accused’s search and capture.22 Moreover, it is imperative that the accused was not actually
arrested, the surrender is before a person in authority or an agent of a person in authority, and the surrender
was voluntary.23

None of these requisites are present in accused-appellant’s case. In fact, jurisprudence holds that merely
reporting the incident cannot be considered voluntary surrender within contemplation of the law. 24 By accused-
appellant’s own admission, he only went to the authorities to inform them that Adrian was injured. What is more,
accused-appellant claims he had nothing to do with the murder of Oliver. Even if we were to consider voluntary
surrender as mitigating, this would only apply to the injury inflicted on Adrian. Accused-appellant denies
culpability in Oliver’s death and this negates any acknowledgement of guilt.

Incomplete Self-Defense

We likewise find implausible accused-appellant’s assertion that he employed self-defense. The records show
that the requisites of a successful claim of self-defense were not met. As found in the Revised Penal Code,
these are:

Art. 11. Justifying circumstances.––The following do not incur any criminal liability:

1. Any one 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.

In incomplete self-defense, the indispensable requisite is unlawful aggression. 25 What is missing is either
reasonable necessity of the means employed to prevent or repel it or lack of sufficient provocation on the part of
the persons defending themselves. In the instant case, accused-appellant’s self-serving claim of self-defense
coupled with the fact that he did not sustain any injuries from his supposed attacker, Adrian, fails to support any
claim of unlawful aggression, the crucial requisite to his defense. As the appellate court noted, there was no
clear, credible, and convincing evidence that Adrian was the one who instigated the fight and that accused-
appellant was merely fending off an attack. Unlawful aggression by the victim must be clearly shown. 26

Lack of Intention to Commit So Grave a Wrong

Under Article 13(3) of the Code, the circumstance that the offender had no intention to commit so grave a wrong
as that committed mitigates criminal liability. This mitigating circumstance addresses itself to the intention of the
offender at the particular moment when the offender executes or commits the criminal act. 27 Looking at the
victims’ wounds, however, we cannot count the circumstance in accused-appellant’s favor. Adrian suffered a
hacking wound on his left forearm that caused near amputation, and another one on his lumbar area. These
wounds would have been fatal were it not for timely medical assistance. Oliver, on the other hand, bore the brunt
of the attack with eleven (11) different stab wounds, including one on the skull and on the chest. The number,
location, and nature of these stab wounds belie accused-appellant’s claim of lack of intention to commit so grave
a wrong against his victim.281avvphi1

Conclusion

We agree with the findings by the trial and appellate courts on the particulars of the case. Findings of facts of the
trial court, as affirmed by the appellate court, are conclusive absent any evidence that both courts ignored,
misconstrued, or misinterpreted cogent facts and circumstances of substance which, if considered, would
warrant a modification or reversal of the outcome of the case. 29 Since the aforementioned exceptions are not
present, accused-appellant’s conviction is warranted.

Finally, we affirm the sentence imposed on accused-appellant in both criminal cases. In accordance with
jurisprudence,30 we, however, additionally award moral damages of PhP 50,000 to Adrian. His physical,
psychological, and moral sufferings from the wounds inflicted on him serve as the basis for the award and this
does not require proof or pleading as ground for this award. 31 1awphi1

WHEREFORE, the appeal is DENIED. The CA Decision in CA-G.R. CR-H.C. No. 00129 which found accused-
appellant guilty of Frustrated Homicide in Criminal Case No. 4255 and Murder in Criminal Case No. 4276
is AFFIRMED with the MODIFICATION that he is likewise ordered to pay Adrian the amount of PhP 50,000 as
moral damages.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

CONCHITA CARPIO MORALES*

Associate Justice
Acting Chairperson

DANTE O. TINGA TERESITA J. LEONARDO-DE CASTRO***

Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

CONCHITA CARPIO MORALES

Associate Justice
Acting Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Acting Chairperson’s Attestation, I certify
that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 182750               January 20, 2009

RODEL URBANO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

VELASCO, JR., J.:

This petition for review under Rule 45 seeks to reverse and set aside the Decision 1 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 Resolution 7 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:

xxxx

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.

No pronouncement as to costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CONCHITA CARPIO MORALES DANTE O. TINGA

Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that
the conclusions in the above Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

 Rollo, pp. 86-101. Penned by Associate Justice Apolinario D. Bruselas, Jr. and concurred in by
1

Associate Justices Bienvenido L. Reyes and Monina Arevalo Zenarosa.

2
 Id. at 51-60. Penned by Judge Dionisio C. Sison.

3
 Id. at 89.

4
 Supra note 2, at 59-60.

5
 Supra note 1, at 100.

6
 Art. 249. Homicide.––Any person who, not falling within the provisions of Art. 246, shall kill another
without the attendance of any of the circumstances enumerated in the next preceding article, shall be
deemed guilty of homicide and be punished by reclusion temporal.

7
 Rollo, p. 110.

8
 Id. at 17.

9
 Id. at 18.

10
 Id. at 19.

11
 Supra note 1, at 96-97.

 Navarro v. Court of Appeals, G.R. No. 121087, August 26, 1999, 313 SCRA 153, 166; citing Pepito v.
12

CA, G.R. No. 119942, July 8, 1999, 310 SCRA 128.

 Cano v. People, G.R. No. 155258, October 7, 2003, 413 SCRA 92, 105; citing 1 Aquino, Revised
13

Penal Code 116 (1997).

14
 Navarro, supra; citing People v. Nabora, 73 Phil. 434 (1941).

15
 Id.; citing People v. Paga, No. L-32040, October 25, 1977, 79 SCRA 570.

16
 Cano, supra note 13; citing 1 L.B. Reyes, The Revised Penal Code 179-180 (14th revised ed., 1998).

17
 TSN, November 25, 1998, pp. 6-7.

18
 TSN, December 1, 1998, p. 4.

19
 TSN, January 31, 2000, pp. 21-22.

20
 No. L-30489, June 30, 1975, 64 SCRA 659.

21
 Supra note 12.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 155094             January 30, 2007

MANUEL O. ORIENTE, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

For review before the Court are the Decision1 dated February 14, 2002 of the Court of Appeals (CA) which
affirmed the Decision of the Regional Trial Court of Quezon City, Branch 103 (RTC), dated November 15, 1999,
in Criminal Case No. 96-65313, finding Manuel Oriente (petitioner) guilty of the crime of Homicide; and the CA
Resolution2 dated September 9, 2002 which denied petitioner’s Motion for Reconsideration.

An Information dated March 18, 1996 was filed with the RTC charging the petitioner with the crime of Murder,
committed as follows:

That on or about the 16th day of March 1996, in Quezon City, Philippines, the said accused conspiring,
confederating with three other persons whose true names and whereabouts have not as yet been ascertained
and mutually helping one another, with intent to kill, qualified by evident premeditation and treachery, taking
advantage of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and employ
personal violence upon the person of one ROMULO CARIÑO Y VALLO by then and there hitting him with a lead
pipe on the different parts of his body thereby inflicting upon him serious and mortal wounds which were the
direct and immediate cause of his death, to the damage and prejudice of the heirs of the victim.

CONTRARY TO LAW.3

Upon arraignment, petitioner pleaded not guilty to the crime charged. Thereafter, trial on the merits ensued.

The evidence presented by the parties, as summarized by the CA, are as follows:

The prosecution’s version of the case is as follows:

On 16 March 1996, at around 10:00 o’clock in the evening, Arnel Tanael was on his way to the house of Romulo
Cariño y Vallo at No. 40 Lukban Street, Area 9, Luzon Avenue, Brgy. Pasong Tamo, Tandang Sora, Quezon
City. He passed in front of the house of [petitioner] Manuel Oriente and saw the latter and his companions
having a drinking spree at the terrace of the [petitioner’s] house. He arrived at Romulo’s house where the latter
was drinking beer alone. Thereafter, Romulo went out of the house to buy cigarette. While watching television in
the house of Romulo, Arnel Tanael heard two gunshots. Hence, he rushed outside the house to check on what
the gunshots were all about.

Peeping through potted plants (about 3 feet high) perched on top of a neighbor’s fence (about 2 feet high), and
at a distance of more or less eight (8) meters, he saw Romulo Cariño, [petitioner] Manuel Oriente, the latter’s
daughter Marilou Lopez and the latter’s husband, Paul Lopez and one Rogelio Gascon arguing along the alley
beside the concrete fence in front of Manuel Oriente’s house where there was a lighted fluorescent light. He
heard Paul Lopez telling Romulo Cariño, "Ikaw Cariño, and liit-liit mo, and yabang mo!" Then Arnel Tanael saw
Marilou coming out from their house with a lead pipe and handed it over to Paul. Paul then hit Romulo with a
lead pipe at his right arm. Accused-appellant got the lead pipe from Paul and hit Romulo on his left eyebrow.
Romulo reeled and fell down. Upon seeing Romulo fall down, Arnel got confused, hence, he went back inside
the house and switched off the light and turned the television off. He went outside again and saw Romulo
moaning. At this point, Paul Lopez was already poking a gun at Romulo, then pulled the trigger twice but the gun
did not fire. Arnel then shouted, "Putang ina ninyo, bakit niyo ginagawa iyan sa bayaw ko, bakit ninyo ginaganito
siya, ano ba ang kasalanan niya sa inyo." Oriente and his company did not say anything. Arnel carried Romulo
and brought the latter inside the house. He called up Mario at the Panabuilt Transport office to get a cab. When
the cab arrived, Romulo Cariño was brought by Arnel to the East Avenue Medical Center where Romulo, two
hours after, passed away.

Dr. Roberto Garcia, the NBI Medico-Legal Officer who conducted the post-mortem examination on the victim’s
cadaver declared that the cause of death of Romulo Cariño was traumatic head injury. He opined that even with
immediate and adequate medical attendance, the victim would not have survived due to the extensive nature of
hemorrhage suffered by Romulo.

In an attempt to exculpate [the petitioner], the defense gave the following version:

On the night of the commission of the crime, [petitioner] Manuel Oriente was fetched by Tanod members in their
area to attend a wake. It was already the Tanods’ off-duty. While he was on his way out of the house, he saw
spouses Paul and Malou and his granddaughter inside the car going out of the garage. The three went to visit
Malou’s in-laws.

At the gate of his house, while having a conversation with the Tanod members who fetched him, they heard two
gunshots coming from downhill. They noticed that the person who fired the shots was walking towards them.
They waited for him to pass by. This person was Romulo Cariño. When the latter reached a store, which is a
fence away from Oriente’s house, the latter asked Romulo what was his problem. Suddenly, Cariño extended his
arms and poked [his] gun to Oriente and his companions. Romulo told them not to get near him or he will shoot
and kill all of them. Surprised by the victim’s response and for fear of being shot, [petitioner] Oriente stepped
back towards his yard and was able to take hold of a piece of wood and hit Romulo. [Petitioner] Oriente
mentioned that he does not know if he hit Cariño’s hands, eyebrow and other parts of his body with that single
blow but he saw Romulo Cariño lose his balance, fall and hit his head on the ground. The victim was still holding
the gun. After five seconds, Romulo Cariño stood up and ran (pasuray-suray) towards the direction of his house.
Fearing that Cariño will shoot them if they would go after him, [petitioner] Oriente told the Tanods that they will
just attend to him the following day. [Petitioner] Oriente further testified that he had no intention of killing Cariño
and that his purpose was only to disarm him.4

The RTC rendered a Decision dated November 4, 1999 convicting the petitioner of the crime of Homicide. The
dispositive portion of the Decision states:

ACCORDINGLY, the court renders judgment finding the accused MANUEL ORIENTE Y ORILLO GUILTY
beyond reasonable doubt as Principal of the crime of HOMICIDE as defined and penalized by the Revised Penal
Code with two (2) mitigating circumstances of lack of intent to commit so grave a wrong and sufficient
provocation and so he is hereby sentenced to suffer a jail term of Six (6) Months of Arresto Mayor as minimum
and Four Years and One (1) Day of Prision Correctional as maximum.

On the civil aspect, the accused Manuel Oriente y Orillo is ordered to pay the lawful heirs of the victim Romulo
Carino y Orillo the sum of P41,500.00 as actual damages and P50,000.00 as indemnification damages.

Costs against the accused.

SO ORDERED.5

However, on November 12, 1999, before the foregoing judgment became final and executory, the RTC issued
an Order motu proprio setting aside the said judgment because of a mistake in the "judgment proper" and
requiring both petitioner and his counsel to appear before the court on November 17, 1999. 6

On the latter date, the RTC promulgated its second Decision dated November 15, 1999, the dispositive portion
of which states:

ACCORDINGLY, the court renders judgment finding the accused MANUEL ORIENTE y Orillo GUILTY beyond
reasonable doubt as Principal of the crime of HOMICIDE as defined and penalized by the Revised Penal Code
with two (2) mitigating circumstances of lack of intent to commit so grave a wrong and sufficient provocation and
so, applying Article 64, paragraph 5, of the Revised Penal Code and also the Indeterminate Sentence Law, [the]
accused is hereby sentenced to suffer an indeterminate jail term of Four (4) Years, Two (2) Months and One (1)
Day of Prision Correccional as minimum and Eight (8) Years and One (1) Day of Prision Mayor as maximum.
On the civil aspect, the accused Manuel Oriente y Orillo is ordered to pay the lawful heirs of the victim Romulo
Cariño y Vallo the sum of P41,500.00 as actual damages and P50,000.00 as indemnification damages.

Costs against the accused.

SO ORDERED.7 (Emphasis supplied)

The RTC found that the testimonies of the defense witnesses, including the petitioner, are incredible; that the
victim suffered extensive head injuries; that the defense failed to show any imminent threat or danger to the life
of the accused; that the accused has in his favor the mitigating circumstance of lack of intent to commit so grave
a wrong under Article 4 of the Revised Penal Code; that there was sufficient provocation on the part of the victim
since the incident was preceded by an intense argument, and, therefore, the provocation qualifies as another
mitigating circumstance in favor of the petitioner; that treachery is not present since there was an altercation
immediately preceding the incident; that the prosecution failed to prove the elements of evident premeditation;
that there is no clear showing that the accused took advantage of superior strength; and, finally, that the
prosecution duly proved actual damages amounting to P38,500.00 for the funeral services and P3,000.00 for the
cemetery lot and religious services, while the other expenses were not supported by evidence.

The petitioner appealed to the CA. On February 14, 2002, the CA rendered its Decision, the dispositive portion
of which states:

WHEREFORE, in view of the foregoing, the decision dated 4 November 1999 rendered by the trial court is
hereby AFFIRMED with MODIFICATION that the penalty imposed is an indeterminate prison term of six (6)
years and one (1) day of prision mayor as minimum to twelve (12) years and one (1) day of reclusion
temporal as maximum, and to indemnify the heirs of the deceased Romulo Cariño y Vallo in the amount of Fifty
Thousand (P50,000.00) Pesos.

SO ORDERED.8 (Emphasis supplied)

The CA held that there is no cogent reason to depart from the findings of the RTC convicting the petitioner; that,
at most, the inconsistencies of prosecution witness Arnel Tanael refer to minor details only, which tend to
strengthen, rather than weaken, his credibility, and, moreover, prove that his testimony was unrehearsed; that,
all in all, the testimonies of the prosecution witnesses are highly credible; that the evaluation of the testimonies
of the eyewitnesses by the RTC should be accorded great weight and respect; that the testimony of Tanael on
the injuries inflicted on the victim is supported by the findings of the NBI medico-legal officer as stated in the post
mortem report; that the detailed testimony of a witness in homicide cases acquires greater weight and credibility
if it corresponds with the autopsy report; that the mere fact that the judge who penned the decision was not the
same judge who heard the testimonies of the witnesses does not ipso facto render the decision erroneous, more
so when the judgment appears to be fully supported by the evidence on record; that the alleged act of the victim
poking the gun at the petitioner and his companions does not constitute unlawful aggression, an essential
requirement for self-defense, since the mere aiming of the gun and threat to kill merely constitute a threat or
intimidating attitude which does not amount to an actual and unexpected attack or imminent danger thereof; and
that the accused did not resist but went peacefully with the police authorities when the latter invited the petitioner
to the station does not amount to voluntary surrender.

Finding that the RTC erred in finding that two mitigating circumstances were present, namely, lack of intent to
commit so grave a wrong and sufficient provocation or threat on the part of the offended party immediately
preceding the act, the CA modified the penalty imposed by the RTC. According to the CA, the extensive nature
of the injuries as stated in the post-mortem findings negates the contention of the petitioner that he had no
intention of killing the victim because his purpose was only to disarm him; and the provocation, if any, done by
the victim was not immediate to the act of petitioner’s beating the victim, since a certain Paul Lopez had already
previously assaulted the victim, and, moreover, there was a sufficient interval of time between the provocation of
the offended party and the commission of the crime by the petitioner.

Hence, herein petition for review raising the following assignment of errors:

A.

THE HON. COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE DECISION OF THE LOWER
COURT THAT THE ACCUSED IS GUILTY OF HOMICIDE ALTHOUGH IT WAS OBVIOUS THAT THE LOWER
COURT FOUND OUT THAT THERE WAS NO INTENT ON THE PART OF THE PETITIONER TO COMMIT
SAID CRIME AND THERE WAS NO PROVOCATION AT ALL ON HIS PART;

B.

THE HON. COURT OF APPEALS AND THE REGIONAL TRIAL COURT BELOW ERRED IN NOT
APPRECIATING THAT THERE WAS AN UNLAWFUL AGGRESSION ON THE PART OF THE VICTIM, AND
THE MEANS EMPLOYED BY PETITIONER TO PREVENT THE SAME WAS REASONABLE AND FALLS
UNDER THE JUSTIFYING CIRCUMSTANCES OR SELF-DEFENSE;

C.

THE HON. COURT OF APPEALS AND THE LOWER COURT GRAVELY ERRED IN GIVING CREDENCE TO
THE TESTIMONY OF THE LONE ALLEGED EYE WITNESS, WHEN SAID TESTIMONY HAS FULL OF
INCONSISTENCIES; AND

D.

THE HON. COURT OF APPEALS HAS COMMITTED GRAVE ABUSE OF DISCRETION TANTAMOUNT TO
LACK OF JURISDICTION WHEN IT MODIFIED THE DECISION OF THE REGIONAL TRIAL COURT,
INCREASING THE PENALTY THEREOF WITHOUT ANY DISCUSSION OR EXPLANATION IN THE
DECISION ITSELF WHY SAID MODIFICATION OF PENALTY IS NECESSARY AND IN ACCORDANCE WITH
LAW.

The Court affirms the conviction of the petitioner except as to damages and the penalty imposed.

The petitioner emphasizes that the victim, allegedly a troublemaker in the vicinity, was drunk, fired his gun twice,
and then proceeded towards the petitioner and his companions. Petitioner argues that the victim’s act of poking
the gun at him constitutes unlawful aggression sufficient to warrant his claim of self-defense.

The Court is not convinced.

When self-defense is invoked, the burden of evidence shifts to the accused to show that the killing was legally
justified. Having owned the killing of the victim, the accused should be able to prove to the satisfaction of the
Court the elements of self-defense in order to avail of this extenuating circumstance. He must discharge this
burden by clear and convincing evidence. When successful, an otherwise felonious deed would be excused,
mainly predicated on the lack of criminal intent of the accused.

Self-defense requires that there be (1) an unlawful aggression by the person injured or killed by the offender, (2)
reasonable necessity of the means employed to prevent or repel that unlawful aggression, and (3) lack of
sufficient provocation on the part of the person defending himself. All these conditions must concur. 9 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. 10

Unlawful aggression, a primordial element of self-defense, would presuppose an actual, sudden and unexpected
attack or imminent danger on the life and limb of a person – not a mere threatening or intimidating attitude – but
most importantly, at the time the defensive action was taken against the aggressor. 11 To invoke self-defense
successfully, there must have been an unlawful and unprovoked attack that endangered the life of the accused,
who was then forced to inflict severe wounds upon the assailant by employing reasonable means to resist the
attack.12

The petitioner’s plea of self-defense contradicts common knowledge and experience. No better test has yet been
found to measure the value of a witness’ testimony than its conformity to the knowledge of mankind. 13

The Court agrees with the findings of the RTC which are supported by the evidence on record:

The testimonies of the defense witnesses, including the accused, that Cariño threatened the persons gathered in
front of Oriente’s house with a gun is quite difficult to believe in view of the admissions of the same defense
witnesses, including the accused, that Cariño was able to get up from the ground after being hit and ran away
with gun in hand. A person who was already threatening to kill with a gun and who was then hit with a piece of
wood in a serious manner, can be reasonably expected to make use thereof. Here, the defense makes a rather
unusual claim that Cariño simply ran away and did not use the gun he was holding while running.

The testimony of Arnel Tanael that Cariño did not run away but he got him at the place where he fell in the alley
beside Oriente’s house appears more credible and reasonable than that of the defense.

Moreover, considering the extensive injuries suffered by Cariño – several contusions on the face and head
fractures – it is doubtful that a person in that condition, aggravated by what the defense claimed to be Cariño’s
state of stupor (drunk and "pasuray-suray"), could still run, much less hold a handgun while running.

In his testimony, the accused stated that Cariño walked towards him and his companions saying: "Don’t come
near me. I will shoot all of you. I will kill all of you." In the first place, why will Cariño utter such statements when
there was no evidence by the defense that the accused and/or any of his companions at that time – 10:00 in the
evening of March 16, 1996 – and place – in front of the house of the accused at Brgy. Pasong Tamo, Q.C. –
were in the act of arresting Cariño. In the second place, the alleged statement of Cariño: "Don’t come near me,"
shows that there were then persons in the act of going near him. In the third place, if indeed as claimed, Cariño
was poking his gun with both arms extended at Oriente and his Tanod-companions, it is quite difficult to
appreciate how he could not have seen the person in the act of hitting him right across his face and, as he
allegedly threatened, how he could not have shot that person too[,] instinctive self-defense[,] instead of running
away with gun in hand.14

Not that the RTC is alone. The CA, too, aptly observed:

x x x We find the testimony of [defense] witnesses highly incredible. Their version is that Cariño, after he was hit
with the lead pipe, fell on the ground still holding a gun. Thereafter, he just stood up and ran away. It is
surprising, however, why these Tanod members including accused-appellant did not wrestle for the gun when
they had all the opportunities to do so when Cariño fell down, if there was indeed a threat to their life and limb.
And letting an armed man go would not be the normal reaction of persons in charge of peace and order in the
community, especially if the armed man had previously threatened to shoot them. The only logical conclusion is
that Cariño was not a threat to them and to their community, for as accused-appellant testified, "they will just
deal with him the following day."15

Noteworthy is the testimony of NBI Medico-Legal Officer, Dr. Roberto Garcia, on his findings from his post-
mortem examination of the cadaver of the victim that the cause of death was traumatic head injury, viz:

1. abrasion, right forearm;

2. contused-abrasion, left temple;

3. lacerated wounds above the left eyebrow; over the left eyebrow;

4. hematomas orbital, left. Scalp frontal region, left side;

5. fractures, skull

6. hemorrhages: extensive

7. visceral organs, congested. 16

On cross-examination, Dr. Garcia opined that even with immediate and adequate medical attendance, the victim
would not have survived considering the extensive nature of the hemorrhages found. 17 As the RTC held:

[C]onsidering the extensive injuries suffered by the victim – several contusions on the face and head fractures –
it is doubtful that a person in that condition, aggravated by what the defense claimed to be Cariño’s state of
stupor (drunk and "pasuray-suray"), could still run, much less hold a handgun while running. 18

Thus, the defense failed to establish the existence of the gun being pointed at petitioner to constitute unlawful
aggression on the part of the victim.
While petitioner avers that the testimony of Arnel Tanael is burdened with improbabilities and inconsistencies,
after having owned the crime, however, the burden of proof is reversed and, therefore, he cannot simply protest
that the evidence of the prosecution is weak. It then becomes incumbent upon petitioner to rely on the strength
of his own evidence and not on the weakness of the evidence of the prosecution, for even if the latter were
weak, it could not be disbelieved after he had admitted the killing. Hence, if the accused fails to discharge the
burden of proof, his conviction must ensue as a matter of consequence. 19

The petitioner insists that the CA erred in modifying the RTC’s decision by increasing the penalty imposed upon
him. It is settled that in a criminal case, an appeal throws the whole case

open for review, and it becomes the duty of the appellate court to correct such errors as may be found in the
judgment appealed from, whether they are made the subject of assignment of errors or not, 20 including the
propriety of the imposable penalty.21

There is also no point in considering petitioner’s argument that the RTC promulgated two decisions and, by
doing so, he was placed in double jeopardy.

Courts have the inherent power to amend their decisions to make them conformable to law and justice. This
prerogative, however, is not absolute. The rules do not contemplate amendments that are substantial in
nature.22 They merely cover formal changes or such that will not affect the crux of the decision, like the correction
of typographical or clerical errors. Courts will violate due process if they make substantial amendments in their
decisions without affording the other party the right to contest the new evidence presented in a motion for
reconsideration.23 The Court finds that the change in the penalty by the RTC in the instant case did not involve
the consideration of any new evidence but a mere "correction" of the penalty imposed to conform with the
Revised Penal Code and The Indeterminate Sentence Law.

And as the Solicitor General correctly noted, the trial court modified the penalty in its Decision dated November
15, 1999 before the petitioner could perfect his appeal from the first Decision dated November 4, 1999 which
was promulgated on November 10, 1999. Noteworthy is that it was the RTC’s second Decision dated November
15, 1999 which the petitioner elevated on appeal to the CA. It is well settled that when an accused appeals from
the sentence of the trial court, he waives the constitutional safeguard against double jeopardy, and, as
discussed above, throws the whole case open to the review of the appellate court, which is then called to render
judgment as the law and justice dictate, whether favorable or unfavorable, and whether they are made the
subject of assigned errors or not. This precept should be borne in mind by every lawyer of an accused who
unwittingly takes the risk involved when he decides to appeal his sentence. 24

As to the mitigating circumstances, the CA is correct in finding that the RTC erred in appreciating in favor of the
petitioner the mitigating circumstances of lack of intent to commit so grave a wrong and sufficient provocation on
the part of the victim, Romulo Cariño.

On the first circumstance, the RTC held:

According to the accused, he did not intend to kill Cariño. In turn, Cariño did not die immediately from his
wounds as he still lived for around two (2) hours after his body was taken to the hospital. This fact and the fact
that Cariño was hit by a hard, blunt object, convince [sic] this court that the intent of the accused to kill Cariño
appears to be reasonably doubtful. . . .25

However, the CA correctly took into consideration the post-mortem findings of the NBI medico-legal expert and
his testimony that even with immediate and adequate medical attendance, the victim would not have survived
due to the extensive nature of the hemorrhage suffered by the victim. The brute force employed by the petitioner
contradicts the claim that he had no intention to kill the victim. The mitigating circumstance of lack of intent to
commit so grave a wrong as that actually perpetrated cannot be appreciated where the acts employed by the
accused were reasonably sufficient to produce and did actually produce the death of the victim. 26

On the second circumstance, the RTC pointed to the fact that the incident was preceded by an intense argument
between the victim and the accused so as to qualify the situation as a mitigating circumstance of sufficient
provocation or threat on the part of the offended party which immediately preceded the act. 27

Provocation is defined to be any unjust or improper conduct or act of the offended party, capable of exciting,
inciting, or irritating anyone. In order to be mitigating, provocation must be sufficient and should immediately
precede the act. Provocation is sufficient if it is adequate to excite a person to commit the wrong, which must
accordingly be proportionate in gravity. That the provocation must immediately precede the act means that there
should not be any interval of time between the provocation by the offended party and the commission of the
crime by the person provoked.28

The fact that a heated or intense argument preceded the incident is not by itself the sufficient provocation on the
part of the offended party as contemplated by law. Moreover, petitioner failed to establish by competent
evidence that the victim had a gun and used it to threaten petitioner.

With respect to the other aggravating circumstances of treachery, evident premeditation, and grave abuse of
superior strength, the Court likewise agrees with the findings of the RTC, as affirmed by the CA, that none of
these circumstances are present for lack of evidence.

Thus, the CA is partly correct in modifying the penalty imposed by the RTC. The RTC imposed an indeterminate
prison term of four (4) years, two (2) months and one (1) day of prision correccional as minimum to eight (8)
years and one (1) day of prision mayor as maximum, while the CA adjusted the sentence upwards since no
mitigating circumstances attended the crime, and imposed an indeterminate prison term of six (6) years and one
(1) day of prision mayor as minimum to twelve (12) years and one (1) day of reclusion temporal as maximum.
Article 249 of the Revised Penal Code provides that any person found guilty of homicide shall be punished
by reclusion temporal, i.e., twelve (12) years and one (1) day to twenty (20) years. Applying Section 1 of the
Indeterminate Sentence Law, the minimum term of the sentence shall be within the range of the penalty next
lower, which is prision mayor, i.e., anywhere between six (6) years and one (1) day to eight (8) years. The CA
appropriately exercised its discretion when it imposed six (6) years and one (1) day of prision mayor as the
minimum term.

However, the CA erred in imposing twelve (12) years and one (1) day of reclusion temporal as the maximum
term of the indeterminate sentence. In the computation of the maximum term, the law prescribes that the
attending circumstances should be considered. There being no aggravating or mitigating circumstance in this
case, the penalty that should be imposed is the medium period of the penalty prescribed by law, 29 that
is, reclusion temporal in its medium period, or, anywhere between fourteen (14) years, eight (8) months and one
(1) day to seventeen (17) years and four (4) months.

And last, the CA, without reason, omitted a portion of the award of damages by the RTC in the civil aspect of the
case, namely, the amount of actual damages which comprised the expenses for the cemetery lot and religious
services. In particular, the RTC held that the prosecution was able to prove actual damages amounting
to P41,500.00 based on supporting evidence, 30 in addition to the death indemnity of P50,000.00 as required by
current jurisprudence.31 On the other hand, the dispositive portion of the CA judgment merely ordered petitioner
to indemnify the heirs of the deceased victim in the amount of P50,000.00.

The Court restores the full amount of actual damages originally awarded by the RTC.

Moral damages are not awarded for lack of basis in fact and law. 32 No witnesses testified to prove the existence
of the factual basis therefor.

Pursuant to Article 2230 of the Civil Code, in criminal offenses, exemplary damages may be imposed when the
crime is committed with one or more aggravating circumstances. Considering that no aggravating circumstance
is present in this case, the lower courts are correct in not awarding exemplary damages.

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of Appeals
are AFFIRMED with MODIFICATION. The petitioner is found GUILTY beyond reasonable doubt of Homicide
and is sentenced to suffer the penalty of an indeterminate sentence of six (6) years and one (1) day of prision
mayor as minimum to fourteen (14) years, eight (8) months, and one (1) day, as maximum. The petitioner is
further ordered to pay the heirs of the victim the amounts of P50,000.00 as death indemnity and P41,500.00 as
actual damages.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

WE CONCUR:
 CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

ROMEO J. CALLEJO, SR. MINITA V. CHICO-NAZARIO

Associate Justice Asscociate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it is hereby
certified that the conclusions in the above Decision were reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice
 FIRST DIVISION

G.R. No. 168051             September 27, 2006

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
HONORATO C. BELTRAN, JR., accused-appellant.

CHICO-NAZARIO, J.:

Murder is one of the instances when man descends to a level lower than that of the beast, for it is non-instinctive
killing, a deliberate destruction of a member of the same species for reasons other than survival. 1

This is an appeal from the Decision of the Court of Appeals in CA-G.R. CR No. 00755, dated 31 March
2005,2 affirming with modifications the Decision of the Regional Trial Court (RTC) of Pallocan, Batangas City,
Branch 4, in Criminal Case No. 10525, dated 9 October 2001, 3 convicting the accused-appellant Honorato C.
Beltran, Jr., alias Jun-Jun and Junior, of the crime of murder, sentencing him to suffer the penalty of reclusion
perpetua, and ordering him to pay the heirs of deceased Norman H. Concepcion, the amount of P75,000.00 as
moral damages, P50,000.00 as civil indemnity, and P18,252.00 as actual damages.

On 3 November 1999, appellant was indicted in an Information 4 for Murder allegedly committed as follows:

That on or about October 25, 1999 at around 10:00 o'clock in the evening at Velasquez Road, Brgy. Sta.
Rita, Batangas City, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, while armed with a bolo, 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
hack with the said bolo, suddenly and without warning one Norman Concepcion y Habla while the latter
was unarmed and completely defenseless, thereby hitting him on the different parts of his body, which
directly caused the victim's death.

When arraigned on 9 November 1999, appellant pleaded "Not Guilty" to the charge therein. 5 Thereafter, trial on
the merits ensued.

The prosecution established its case through the testimonies of its witnesses, namely: Ever D. Sales, Rolando
G. Dalisay, Dr. Dinah R. Lucero, SPO1 Julian M. de Castro and Normita H. Concepcion. Their testimonies are
summarized as follows:

Ever D. Sales (Ever) was a resident of Velasquez Subdivision, Barangay Sta. Rita, Batangas City. He worked as
a gasoline boy in Caltex Gasoline Station at San Pascual, Batangas City.

Ever testified that on 25 October 1999, at about 10:00 in the evening, he left his workplace and proceeded home
using his bicycle. While traversing the Velasquez Road, he saw appellant holding a bolo and standing in front of
his house situated at the side of Velasquez Road. On the opposite side of the same road, he saw Norman H.
Concepcion (Norman) standing in front of an automobile repair shop. Exhausted by the travel, Ever decided to
stop by and rest momentarily at a nipa hut near the same road. Minutes later, he saw appellant, from a distance
of six meters, stalking Norman who was then walking near the automobile shop. Appellant approached Norman,
and, without a warning, hacked him with a bolo. Norman tried to avoid the blow by moving backwards and
shielding his face with his left arm. However, Norman's left hand was hit and wounded by the bolo. When
Norman turned around and ran, appellant hacked him at the back causing him to fall down on a grassy area.
Appellant repeatedly hacked Norman with a bolo.
Fearing for his own safety, Ever immediately left the nipa hut and sought help in a nearby sari-sari store. Later,
he went to the crime scene and found no trace of appellant. He also discovered the bloodied and lifeless body of
Norman sprawled on the ground. Afterwards, he proceeded home and narrated to a relative named Renato
Sales (Renato) what he just witnessed. Later, Renato informed a certain Carmina Baliwag of the incident, who in
turn, relayed the same to Normita Concepcion (Normita), the sister of Norman. Ever also declared that he did
not know of any reason why appellant hacked Norman to death. 6

Rolando G. Dalisay (Rolando) is a resident of Velasquez Subdivision, Barangay Sta. Rita, Batangas City, where
he is engaged in a carpentry business.

Rolando supported the testimony of Ever by stating that on 25 October 1999, at around 10:00 in the evening, he
was walking along Velasquez Road to buy some medicines when, at a distance of about 15 meters, he saw
appellant hacking Norman with a bolo. He noticed that when Norman fell on the ground, appellant continued his
onslaught by relentlessly hacking the former. Afraid that he might be seen by the appellant, he immediately went
home and informed his wife about the incident. When the barangay tanod and policemen arrived at the crime
scene, he proceeded thereto and told them what he had witnessed. Further, he stated that he personally knows
appellant as the latter was a former employee in his carpentry business. He also personally knew Norman since
the latter was a relative of his wife. Lastly, he testified that appellant and Norman had a previous quarrel which,
however, was subsequently settled in their barangay office. 7

SP01 Julian D. Mendoza was the investigating officer of the instant case. On 26 October 1999, at about 12:00
midnight, his station received an information regarding the hacking incident. He and a certain SPO3 Mario
Panaligan rushed to the crime scene. Upon arriving thereat, he inquired from the people present the identity of
the dead person and of the killer. Rolando approached him and narrated that the dead person was Norman and
the killer was appellant. Normita also arrived at the crime scene and told him relevant information. With this lead,
they proceeded to appellant's house but the latter was not there.

On 27 October 1999, a certain Tomas Dimacuha surrendered the appellant. Later, the brother of appellant,
Sherman Beltran, brought before him the bolo, about three palms in length, used by appellant in hacking
Norman to death.8

Dr. Dinah R. Lucero, Medical Officer IV of the Batangas City Health Office, testified that she conducted the post
mortem examination on the cadaver of Norman on 26 October 1999 at the Eternal Memorial Chapel. She
declared that, aside from the fact that Norman's body was almost decapitated, the latter suffered seven stab
wounds and his cause of death was "massive blood loss secondary to multiple hacking wound." 9 The death
certificate issued by Lucero shows that Norman was twenty-two (22) years of age at the time of his demise. 10

Lastly, Normita, sister of Norman, testified that on the evening of 25 October 1999, Carmina Baliwag called her
on the telephone and instructed her to proceed to Velasquez Road. Upon arriving thereat, she was shocked to
discover the dead body of Norman lying on the ground. She claimed that appellant had a motive to kill Norman
since an altercation occurred between the two on 22 October 1999, which, however, was settled later on 25
October 1999. In establishing her claim for damages, she stated that she spent an amount of P61,000.00 in
connection with Norman's death, and that the latter worked as an assistant to the electrician at First Gas
Company with a monthly income of P6,000.00. She also claimed that she was "shocked" at the sudden and
gruesome death of Norman, and that she felt "pity" for him. 11

On the other hand, the defense argued its case by presenting the testimony of the appellant himself and a
certain Dr. Luisito Briones.

Appellant admitted that he hacked Norman with a bolo but insisted that he did the same in self-defense. He
narrated that on 25 October 1999, at about 10:00 in the evening, he and his mother were resting inside their
house when suddenly, he heard Norman shouting and insulting him outside their house and challenging him to a
fight. When he came out of the house, he noticed that Norman was accompanied by several unidentified
persons. Thereafter, he tried to pacify Norman but the latter slapped the back of his head and pulled out an ice
pick from his pocket. He retreated and looked for something to defend himself. He found a bolo near a tamarind
tree in front of their house and took the same. When Norman was about to enter appellant's house, the latter
hacked him with the bolo. Norman tried to avoid the blow but the same hit his left arm. Appellant lost grip of the
bolo and the same fell on the ground. While appellant was reaching for the bolo, Norman grabbed his head and
tried to stab him with the ice-pick. Appellant, however, eluded the counter-attack but he sustained a minor
wound on the forehead. Upon gaining control of the scuffle, appellant took the bolo and hacked Norman four
consecutive times, most of them landed on the head. When appellant noticed that Norman was no longer
moving, he fled therein and went to his brother, Sherman Beltran, in Bauan, Batangas, where he stayed that
same night and hid therein the bolo. The next day, he went to his sister's house in Lipa City. Later that day, he
went to the Granja Hospital, also in Lipa City, for treatment of his wound on the forehead.

Appellant also claimed that on 22 October 1999, he was mauled by Norman near a sari-sari store; that Norman
is taller than him since he is only 5'4 in height; that he was forced to kill Norman because the latter insulted him
and his mother; and that he was on his way to Bauan City to surrender to police when he was apprehended by
the barangay officers in Lipa City.12 Appellant was twenty-nine years (29) of age at the time of his arrest. 13

Dr. Luisito D. Briones testified that he treated appellant on the morning of 26 October 1999 at Granja Hospital in
Lipa City for a lacerated wound on the forehead. He also claimed that the wound was possibly caused by a knife
and that it was already on the healing stage. He also issued a medical certificate attesting to the same. 14

On 9 October 2001, the RTC rendered its Decision 15 finding appellant guilty beyond reasonable doubt of the
crime of murder. It reasoned that appellant's claim of self-defense cannot be sustained in view of the positive
and credible testimonies of the prosecution witnesses. In closing, the trial court ruled:

In the light of all the foregoing consideration and upon the evidence, accused Honorato Beltran, Jr. y
Casia alias "Jun-Jun" is hereby found GUILTY beyond reasonable doubt of the crime of Murder charged
in the information. Consequently, the accused is hereby sentenced to Reclusion perpetua together with
all the accessory penalties inherent therewith and to pay the costs. He is further directed to indemnify the
heirs of Norman Concepcion in the sum of P61,000.00 as actual damages and the sum of P75,000.00 as
moral damages.16

Aggrieved, appellant filed a notice of appeal therein on 22 October 2001. 17 Subsequently, on 3 January 2003,
appellant filed his Appellant's Brief with this Court assailing the Decision of the RTC dated 9 October
2001.18 Pursuant to our ruling in the case of People v. Mateo,19 we issued a Resolution dated 8 November 2004,
transferring the instant case to the Court of Appeals for disposition. 20 On 31 March 2005, the Court of Appeals
promulgated its Decision affirming with modifications the assailed RTC Decision. Aside from reducing the
amount of actual damages awarded by the RTC, it also ordered appellant to pay the heirs of Norman an amount
of P50,000.00 as civil indemnity. The dispositive portion thereof reads:

WHEREFORE, the appealed Decision is AFFIRMED with MODIFICATION. Aside from moral damages
in the amount of P75,000.00, appellant is ordered to pay the heirs of the deceased, Norman Concepcion,
the following amounts: (a) Fifty Thousand (P50,000.00) as civil indemnity; and (b) Eighteen Thousand
Five Hundred Twenty-Five (P18,525.00) as actual damages.21

Dismayed, appellant appealed the afore-quoted Decision before this Court by adopting and invoking the same
arguments stated in his Appellant's Brief dated 3 January 2003, to wit:

I.

THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE TESTIMONY OF EVER
SALES DESPITE OF ITS BEING UNBELIEVABLE AND BIASED, INSTEAD OF THE SELF-DEFENSE
INTERPOSED BY THE APPELLANT.

II.

THE TRIAL COURT GRAVELY ERRED IN CONSIDERING THE QUALIFYING CIRCUMSTANCE OF

TREACHERY DESPITE THE PROSECUTION'S FAILURE TO ESTABLISH THE SAME BEYOND
REASONABLE DOUBT.

III.

ASSUMING THAT ACCUSED-APPELLANT IS NOT ENTITLED TO THE JUSTIFYING

CIRCUMSTANCE OF SELF-DEFENSE, THE TRIAL COURT ERRED IN NOT CONSIDERING IN HIS
FAVOR THE MITIGATING CIRCUMSTANCES OF SUFFICIENT PROVOCATION ON THE PART OF
THE OFFENDED PARTY WHICH IMMEDIATELY PRECEDED THE ACT AND VOLUNTARY
SURRENDER.

IV.
 THE TRIAL COURT GRAVELY ERRED IN AWARDING EXCESSIVE ACTUAL DAMAGES. 22

Anent the first issue, appellant argued that the testimony of prosecution witness, Ever, is biased, unbelievable
and confusing; that the trial court should not have considered them; that his acquittal is proper on the ground of
self-defense; and that the elements of self-defense are present in the instant case.

The contention is without merit.

Prosecution eyewitness, Ever, testified that on 25 October 1999, at about 10:00 in the evening, he left his
workplace and proceeded home using his bicycle. While traversing Velasquez Road, he saw appellant holding a
bolo and standing in front of his house situated at the side of Velasquez Road. On the opposite side of the same
road, he saw Norman standing in front of an automobile repair shop. Exhausted by the travel, he decided to stop
by and rest momentarily at a nipa hut near the same road. Minutes later, he saw appellant, from a distance of six
meters, stalking Norman who was walking then near the automobile repair shop. Appellant approached Norman,
and without a warning, repeatedly hacked him with a bolo. Although it occurred late in the evening, the light
coming from the moon and the electric post therein provided him with good visibility to identify appellant and
Norman, and to witness how the heinous act was executed. 23 This testimony was corroborated by another
prosecution eyewitness, Rolando. Thus, the positive identification and categorical declarations of Ever on the
witness stand under solemn oath deserves full faith and credence.

Appellant, however, posited that there were inconsistencies between the testimony of Ever in open court and his
sworn statements before the investigators. According to appellant, Ever testified during his direct examination
that he was at a distance of about six meters, more or less, from appellant and Norman when the hacking
occurred; that the place where the killing occurred was "lighted" by the moon; and that during his cross-
examination, he stated that there was no other person within the area when he witnessed the hacking. On the
other hand, appellant claimed that Ever declared in his sworn statements before the investigators that he was
more or less 20 meters from the place where the hacking took place; that there was light coming from the
electric post and the moon; and that during his cross-examination, he also stated that the mother of appellant
was outside the house when the hacking took place. 24

This Court had consistently ruled that the alleged inconsistencies between the testimony of a witness in open
court and his sworn statement before the investigators are not fatal defects to justify a reversal of judgment of
conviction. Such discrepancies do not necessarily discredit the witness since ex-parte affidavits are almost
always incomplete. It bears emphasis that a sworn statement or an affidavit does not purport to contain a
complete compendium of the details of the event narrated by the affiant. Sworn statements taken ex-parte are
generally considered to be inferior to the testimony given in open court. 25

Moreover, as aptly stated by the Office of the Solicitor General (OSG), when Ever testified in court that "there
was light coming from the moon, sir" he was not denying what he stated in his sworn statement that "there was a
light from the lamp (electric) post and the moon." 26 The appellant also testified that the place where the hacking
incident occurred was lighted by an electric post. As the foregoing circumstances clearly established that the
place where the hacking occurred was lighted by the moon and an electric post, the testimony of Ever as to the
identity of the killer and the victim, and how the killing was executed, must stand.

Further, the alleged inconsistencies with respect to the presence of appellant's mother in the place where the
hacking took place, and the distance between the nipa hut where Ever rested and the area where the hacking
took place, are minor inconsistencies and trivial matters that serve to strengthen rather than weaken the
credibility of Ever for they erase the suspicion of rehearsed testimony. Also, they are not material in the instant
case since none of them is an essential element of murder. 27

More importantly, the RTC had observed that Ever was candid, straightforward and credible in giving his
testimony on the witness stand. It found Ever to be unbiased since he was neither a friend nor an enemy of
appellant and Norman but just a mere neighbor. It also found that there was no ulterior motive for him to testify
against appellant.28

It is a well-settled doctrine in our jurisprudence 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.29 This is because the trial court has the unique opportunity to observe the demeanor of a witness and is in
the best position to discern whether they are telling the truth. 30 It is worth stressing at this point that the Court of
Appeals affirmed such findings of the RTC. In this regard, it is settled that when the trial court's findings have
been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court. 31 We
find no compelling reason to deviate from such findings of the RTC and the Court of Appeals.

On another point, appellant contended that he merely acted in self-defense when he hacked Norman to death.

We disagree.

Article 11, paragraph (1), of the Revised Penal Code provides for the elements and/or requisites in order that a
plea of self-defense may be validly considered in absolving a person from criminal liability, viz:

ART. 11. Justifying circumstances. – The following do not incur any criminal liability:

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.

As an element of self-defense, unlawful aggression refers to an assault or attack, or a threat thereof in an

imminent and immediate manner, which places the defendant's life in actual peril. 32 It is an act positively strong
showing the intent of the aggressor and not merely a threatening or intimidating attitude. 33 It is also described as
a sudden and unprovoked attack of immediate and imminent kind to the life, safety or rights of the person
attacked.34

There is an unlawful aggression on the part of the victim when he puts in actual or imminent peril the life, limb, or
right of the person invoking self-defense. There must be actual physical force or actual use of weapon. 35 In order
to constitute unlawful aggression, the person attacked must be confronted by a real threat on his life and limb;
and the peril sought to be avoided is imminent and actual, not merely imaginary. 36

In the instant case, there was no unlawful aggression on the part of Norman that justified the act of appellant in
hacking him to death. There was no actual or imminent danger on the life of appellant when he came face to
face with Norman. As narrated by Ever, Norman was just walking on the road and was not provoking appellant
into a fight. It was the appellant who approached and suddenly hacked Norman repeatedly even when the latter
was already fallen on the ground. In short, appellant was the unlawful aggressor.

Even if this Court were to adopt the version of facts of appellant, the result or conclusion would be the same.

Appellant alleged that he was resting inside his house when he heard Norman shouting invectives against him
and challenging him to a fight. When he went outside the house to pacify Norman, the latter slapped the back of
his head and brought out an ice-pick. Appellant retreated and when Norman tried to follow him inside the house,
he took a bolo and repeatedly hacked Norman. The foregoing circumstances does not justify the act of appellant
in hacking Norman. Obviously, mere shouting of invectives and challenging one to a fight does not put one's life
in actual or imminent danger. In the same vein, mere slapping of one's head does not place a person's life in
serious danger such that it compels him to use a bolo and hack the offender.

As regards the brandishing of an ice-pick, appellant had several less harmful means of avoiding the same as he
was not cornered or trapped. He could have run inside his house and locked the door, or, called the neighbors or
authorities for help. Unfortunately, appellant did not avail himself of any of those options and instead chose to
hack Norman. Quite conspicuously, no convincing evidence was presented to show that Norman was, indeed,
armed with an ice-pick at the time of the incident. In fact, no ice-pick was found in the crime scene nor in the
body of Norman. There was also no proof adduced showing that Norman attempted to stab appellant or tried to
barge into the latter's house.37

The fact that appellant sustained an injury on his head, allegedly caused by Norman's ice-pick, does not signify
that he was a victim of unlawful aggression or that he acted in self-defense. 38 The physician who treated
appellant testified that the latter was diagnosed on 26 October 1999, the day after the hacking incident; that
appellant was discharged on the same day he was treated in the hospital since he was only an out-patient; and
that at the time he examined the head injury of appellant, it was already on its healing stage. 39 It is clear from the
foregoing that appellant's head injury was not serious or severe. The cause of the same is likewise doubtful.
Thus, the superficiality of the injury sustained by appellant is no indication that his life and limb were in actual
peril.40

In stark contrast, Norman was almost decapitated and sustained fatal injuries on the head and neck. All in all,
Norman sustained seven fatal wounds, most of them located at the head and neck. Based on the foregoing, it is
difficult to believe that Norman was the unlawful aggressor. The gravity, location, and number of wounds
sustained by Norman are eloquent physical evidence showing a determined effort on the part of appellant to kill
Norman, and not just to defend himself.41

Time and again, we held that unlawful aggression is a sine qua non for upholding the justifying circumstance of
self-defense.42 It is an essential and indispensable requisite, for without unlawful aggression on the part of the
victim, there can be, in a jural sense, no complete or incomplete self-defense. 43 Without unlawful aggression,
self-defense will not have a leg to stand on and this justifying circumstance cannot and will not be appreciated
even if the other elements are present.44 To our mind, unlawful aggression is clearly absent in the case at bar.

The second element of self-defense requires that the means employed by the person defending himself must be
reasonably necessary to prevent or repel the unlawful aggression of the victim. The reasonableness of the
means employed may take into account the weapons, the physical condition of the parties and other
circumstances showing that there is a rational equivalence between the means of attack and the defense. 45

The act of appellant in repeatedly hacking Norman on his head and neck was not a reasonable and necessary
means of repelling the aggression allegedly initiated by the latter. As stated earlier, no convincing evidence was
presented to show that Norman was armed with an ice-pick at the time of the incident. In fact, no ice-pick was
found in the crime scene or in the body of the victim. There was also no proof showing that Norman attempted to
stab appellant or tried to barge into the latter's house. Granting arguendo that Norman was armed with an ice-
pick, the repeated hackings were not necessary since he can overpower or disable Norman by a single blow on
non-vital portion/s of his body.

Again, as correctly observed by the OSG, had the appellant merely wanted to protect himself from what he
perceived as an unlawful aggression of Norman, he could have just disabled Norman. 46 When Norman fell on the
ground, appellant should have ceased hacking the former since the alleged aggression or danger no longer
exists. By appellant's own testimony, however, he hacked Norman with his bolo even when the latter was
already lying on the ground. It appears, therefore, that the means used by appellant, which were simultaneous
and repeated hackings, were adopted by him not only to repel the aggression of Norman but to ensure the
latter's death. In sum, such act failed to pass the test of reasonableness of the means employed in preventing or
repelling an unlawful aggression.

Like an alibi, self-defense is inherently weak for it is easy to fabricate. 47 Thus, this Court had consistently ruled
that where an accused admits killing the victim but invokes self-defense, it is incumbent upon the accused to
prove by clear and convincing evidence that he acted in self-defense. 48 As the burden of evidence is shifted on
the accused to prove all the elements of self-defense, he must rely on the strength of his own evidence and not
on the weakness of the prosecution. 49 In the instant case, appellant failed to discharge such burden with clear
and convincing evidence. Therefore, his plea of lawful self-defense must fall.

With regard to the second issue, appellant contended that there was no treachery that qualified his act to murder
in the absence of direct evidence showing that his attack on Norman was sudden; that Norman was not deprived
of an opportunity to defend himself; and that appellant did not employ treachery to insure the execution of the
crime.

Appellant's contention is bereft of merit.

Treachery is a sudden and unexpected attack under circumstances that render the victim unable and
unprepared to defend himself by reason of the suddenness and severity of the attack. 50 It is as an aggravating
circumstance that qualifies the killing of a person to murder. Article 14, paragraph (16) of the Revised Penal
Code states the concept and essential elements of treachery as an aggravating circumstance, thus:

ART. 14. Aggravating circumstances. - The following are aggravating circumstances:

xxxx

16. That the act be committed with treachery (alevosia).

 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.

As can be gleaned from the foregoing, two essential elements/conditions are required in order that treachery
may be appreciated: (1) The employment of means, methods or manner of execution that would insure the
offender's safety from any retaliatory act on the part of the offended party, who has, thus no opportunity for self-
defense or retaliation; and (2) deliberate or conscious choice of such means, methods or manner of execution.
Further, it must always be alleged in the information and proved in trial in order that it may be validly
considered.51

In the case at bar, treachery was alleged in the Information against appellant. Moreover, all the essential
elements/conditions of treachery were established and proven during the trial.

Appellant, while holding a bolo, had waited for the dark to set in before making his move so that nobody,
especially Norman, would notice his impending attack. When he saw Norman, alone and unarmed, casually
walking near an auto repair shop, he followed him surreptitiously. Later, appellant came out and approached the
unsuspecting Norman, who, in turn, faced the former. Appellant took advantage of the stunned and hapless
Norman by swiftly hacking him with a bolo. As the assault was sudden and unexpected, Norman was forced to
move backwards and raise his left arm to shield his face but it was too late. Norman's left arm was immediately
hit by the bolo. When Norman turned his back on appellant and tried desperately to run, appellant hacked him
again at the back causing him to fall on the ground. As the bloodied and moaning Norman was lying on the
ground, appellant unleashed his full wrath by repeatedly hacking him on the neck and head. Upon noticing that
Norman was no longer moving and was, in fact, almost decapitated, he stopped the hacking and fled the scene.

As viewed from the foregoing, the suddenness and unexpectedness of the appellant's attack rendered Norman
defenseless, vulnerable and without means of escape. Appellant's use of nighttime and a deadly bolo, as well as
the sudden attack and repeated hackings on the vital portions of Norman's body, were especially adopted by
him to immediately cripple Norman and prevent him from retaliating or escaping. Appellant deliberately adopted
them in order to overpower the much younger, taller, and larger Norman. Considering that Norman was alone
and unarmed, there was absolutely no way for him to defend himself or escape. Further, the fact that Norman
sustained several fatal wounds while appellant allegedly sustained a single superficial wound on his forehead
shows that Norman was not able to retaliate or defend himself. Given the foregoing, there is no doubt in our
minds that appellant intended and was determined to kill Norman.

Appellant, however, asseverated that there was no treachery since the attack was frontal or face to face, such
that Norman had been forewarned of the attack and, thus, placed him in a position where he can defend himself.
Appellant also claimed that there was a quarrel between him and Norman prior to the hacking incident which, in
effect, negate treachery since it disproved the fact that the attack was sudden and unexpected. We are not
persuaded.

There is no dispute that Norman was facing appellant at the time of the first blow. Subsequently, however,
Norman turned his back and tried to run but he was hacked at the back, and when he fell on the ground, he was
hacked again repeatedly. It is settled that treachery is to be appreciated when the victim was initially attacked
frontally, but was attacked again after being rendered helpless and had no means to defend himself or to
retaliate.52 As long as the attack was sudden and unexpected, and the unarmed victim was not in a position to
repel the attack, there is treachery.53

The quarrel between Norman and appellant prior to the hacking incident does not negate treachery. It is true that
there is no treachery if the killing was preceded by an altercation or dispute. The same, however, does not apply
in the instant case. The misunderstanding between the two occurred on 22 October 1999. This was settled
before their barangay officials on the morning of 25 October 1999. Cooler heads then had already set in. In fact,
the two shook hands before the same barangay officials. Thus, there was no reason for Norman to suspect that
appellant still held a grudge against him and to prepare or anticipate appellant's retaliation. It must also be noted
that no conversation or struggle occurred between them shortly before the hacking incident.

Appellant argued that if his plea of self-defense cannot be considered, he is still entitled to the mitigating
circumstances of sufficient provocation on the part of the offended party and voluntary surrender under Article 13
paragraphs (4) and (7) of the Revised Penal Code, respectively.

We reject these contentions.

Article 13 paragraph (4) of the Revised Penal Code provides that a person's criminal liability may be mitigated if
there was a sufficient provocation or threat on the part of the offended party which immediately preceded the
crime. Before the same can be appreciated, the following elements must concur: (1) That the provocation or
threat must be sufficient or proportionate to the crime committed and adequate to arouse one to its commission;
(2) That the provocation or threat must originate from the offended party; and (3) That the provocation must be
immediate to the commission of the crime by the person provoked.

Norman did not in any way provoke appellant into a fight on that fateful night. There was no argument or
physical struggle that ensued between them shortly before appellant hacked Norman with a bolo. Norman was
innocently walking along the road when, all of a sudden, appellant surfaced and hacked him in rapid succession.
The alleged altercation between the two occurred much earlier (22 October 1999) as to reasonably and
sufficiently incite the appellant to act the way he did. In the absence of sufficient provocation on the part of the
offended party, appellant's assertion of mitigating circumstance cannot be sustained. Moreover, and more
importantly, this ordinary mitigating circumstance cannot offset the qualifying aggravating circumstance
of treachery which is present in the instant case.

Likewise, appellant is not entitled to the mitigating circumstance of voluntary surrender. Article 13, paragraph (7)
of the Revised Penal Code states that the offender's criminal liability may be mitigated if he voluntarily
surrendered to a person in authority or his agents. Accordingly, the essential elements of voluntary surrender
are: (1) that the offender had not been actually arrested or apprehended; (2) that the surrender was voluntary
and spontaneous; and (3) that the offender surrendered himself to a person in authority or his agent.

Appellant was already apprehended for the hacking incident by the barangay officials of Lipa City just before he
was turned over to the police by a certain Tomas Dimacuha. 54 Assuming that appellant had indeed surrendered
to the authorities, the same was not made spontaneously. 55 Immediately after the hacking incident, appellant,
instead of proceeding to the barangay or police, went to his brother, Sherman Beltran, in Bauan, Batangas, and
the next day, to his sister in Lipa City. It took him three long days to surrender to the police
authorities.56 Moreover, the flight of appellant and his act of hiding until he was apprehended by the barangay
officials are circumstances highly inconsistent with the spontaneity that characterizes the mitigating
circumstance of voluntary surrender. 57

As to the last issue, appellant insisted that the trial court has awarded excessive damages in favor of Norman's
heirs. He argued that there was no proof or justification for the same.

When death occurs due to a crime, the following damages may be awarded: (1) a civil indemnity ex delicto for
the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and
(5) temperate damages.58 Thus, we agree with the Court of Appeals that the award of P50,000.00 for civil
indemnity ex delicto to Norman's heirs is proper without need of proof other than appellant's commission of
murder that resulted in Norman's death. 59 Likewise, we agree with the Court of Appeals that moral damages
should be awarded since Normita testified during the trial that she suffered moral shock and wounded feelings
because of the brutal and sudden death of Norman. However, we deem it necessary to reduce the amount of the
same from P75,0000.00 to P50,000.00.

Normita claimed that she spent a total amount of P61,080 for the burial and funeral expenses of Norman.
However, the receipts on record shows that only an amount of P18,420.82 was spent therein.60 Normita's claim
of expenses for the food, drinks, flowers, chairs and tables during the funeral and burial of Norman, as well as
the traditional 40 days prayer thereafter, were not supported by any receipts. These expenses are merely
written, listed, and signed by Normita in one sheet of yellow paper, and submitted as evidence in the trial court.
Thus, as general rule, Normita is entitled only to an amount of P18,420.82 since actual damages may be
awarded only if there are receipts to support the same. However, in the case of People v. Dela Cruz,61 this Court
declared that when actual damages proven by receipts during the trial amount to less than P25,000.00, such as
in the present case, the award of temperate damages for P25,000.00, is justified in lieu of actual damages for a
lesser amount. This Court ratiocinated therein that it was anomalous and unfair that the heirs of the victim who
tried but succeeded in proving actual damages to less P25,000.00 only would be in a worse situation than those
who might have presented no receipts at all but would be entitled to P25,000.00 temperate damages. Thus,
instead of P18,420.82, an amount of P25,000.00 as temperate damages should be awarded to the heirs of
Norman. Actual damages for loss of earning capacity cannot be awarded in this case since there was no
documentary evidence to substantiate the same.62 Although there are exceptions to this rule, none is availing in
the present case.63

Moreover, exemplary damages in the amount of P25,000.00 should be awarded in this case since the qualifying
circumstance of treachery was firmly established.64
WHEREFORE, the Decision of the Court of Appeals dated 31 March 2005 is
hereby AFFIRMED with MODIFICATIONS: We award Norman's heirs civil indemnity of P50,000.00 for
Norman's death; moral damages, in the amount of P50,000.00; temperate damages, in lieu of actual damages,
in the amount of P25,000.00; and lastly, exemplary damages in the amount of P25,000.00.

SO ORDERED.

Panganiban, C.J., Chairperson, Ynares-Santiago, Austria-Martinez, Callejo, Sr., J.J., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-32040 October 25, 1977

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PEDRO PAGAL y MARCELINO and JOSE TORCELINO y TORAZO, defendants-appellants.

Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista and Solicitor Leonardo L. Cruz
for appellee.

Ciriaco Lopez, Jr. for appellants.

CONCEPCION, JR. J.: têñ.£îhqwâ£

In Criminal Case No. CCC-VI-5 (70) of the Circuit Criminal Court of Manila, the accused, Pedro Pagal y
Marcelino and Jose Torcelino y Torazo were charged with the crime of robbery with homicide, committed as
follows: 
ñé+.£ªwph!1

That on or about December 26, 1969, in the City of Manila, Philippines, the said accused,
conspiring and confederating together and mutually helping each other, did then and there
wilfully, unlawfully and feloniously, with intent to gain, and by means of violence, take away from
the person of one Gau Guan, cash amounting Pl,281.00. Philippine currency, to the damage and
prejudice of the said Gau Guan in the said sum of Pl,281.00; that on the occasion of the said
robbery and for the purpose of enabling them to take, steal and carry away the said amount of
P1,281.00, the herein accused, in pursuance of their conspiracy, did then and there wilfully,
unlawfully and feloniously, with intent to kill and taking advantage of their superior strength,
treacherously attack, assault and use personal violence upon the said Gau Guan, by then and
there stabbing him with an icepick and clubbing him with an iron pipe on different parts of his
body, thereby inflicting upon him mortal wounds which were the direct and immediate cause of
his death thereafter.

Contrary to law, and with the generic aggravating circumstances of (1) nightime purposely sought
to better accomplish their criminal design; (2) evident premeditation; (3) in disregard of the
respect due the offended party; and (4) with abuse of confidence, the accused being then
employees of the offended party. 1

When the case was called for affaigmnent, counsel de oficio for the accused infomred said court of their
intention to enter a plea of guilty provided that they be allowed afterwards to prove the mitigating circumstances
of sufficient provocation or threat on the part of the offended party immediately preceding the act, and that of
having acted upon an impulse so powerful as to produce passion and obfuscation. 2 Therafter, the trial judge
propounded to them the questions and the accused gave the answers quoted hereunder:  ñé+.£ªwph!1

Court:

Your lawyer here has manifested your desire to enter a plea of guilty to the
offense charged, robbery with homicide. Do you know that by agreeing to that
manifestation of your lawyer, you will be admitting the commission of the crime
charged?

Accused:

We agree, your honor, to what our lawyer said, but we would like to explain
something.
 Court:

Your lawyer here has stated that you will still prove mitigating circumstances. Is
that what you like to explain?

Accused:

Yes, your honor.

Court:

If that is the case, I will give you a chance.

Accused:

Yes, your honor.

Court:

Do you know that by agreeing to that manifestation, you will be admitting the
commission of the crime charged, robbery wit,. homicide?

Accused:

Yes, your honor.

Court:

And for which this court might sentence you to death or life imprisonment?

Accused:

Yes, your honor.

Court:

And notwithstanding what is explained to you, you still insist in your desire to
enter a plea of guilty to the offense charged?

Accused:

Yes, your honor.

Court:

Q Notwithstanding again the warning of the court that the maximum penalty
impossable is death?

A Yes, your honor.

Court:

Arraign the accused.

(At this stage, both accused were arraigned and both pleaded guilty to the offense charged). 3

Thereafter, the accused presented evidence to prove the mitigating circumstances of sufficient provocation on the part
of the victim immediately preceding the act and acting upon an impulse so powerful as to produce passion and
obfuscation. After the accused had rested their case, the prosecution presented the statements 4 of the accused, and
other pertinent documents regarding the investigation of the case. 5

After the trial, the court a quo  rendered its decision, the dispositive portion of which reads as follows:  ñé+.£ªwph!1

WHEREFORE, both accused are hereby found guilty beyond reasaonable doubt as principals of
the crime of robbery with homicide and there being proven the aggravating circumstances of
nighttime, evident premeditation and disregard of respect due the offended party offset only by
the mitigating circumstance of their plea of guilty, sentences each one of them to DEATH, jointly
and severally indemnify the heirs of the deceased Gau Guan; P15,000.00 for moral damages;
P15,000.00 for exemplary damages, all amounts to bear interest until they shall have been fully
paid; the sum of P1,281.00 represnting the amount taken from the victim; and to pay
proportionately the costs. 6

The case is now before this Court for mandatory review on account of the death penalty imposed upon the accused.

The appellant Pedro Pagal contends that the trial court erred in convicting him of the crime of robbery with
homicide instead of declaring him liable only for his individual acts, claiming that the record is bereft of any proof
or evidence that he and his co-appellant Jose Torcelino conspired to commit the crime of robbery with homicide.

The appellant's position is not well-taken. His denial of conspiracy with his co-appellant Jose Torcelino cannot
be given credence in view of the clear and convincing confession of his guilt in his statement 7 signed by him
before the police investigators several hours after the commission of the crime. Besides, when he pleaded guilty to the
charge, he is deemed to have admitted all the material facts alleged in the information. 8 By his plea, the appellant
admitted not only the commission of the crime but also the circumstances surrounding its commission, including the
allegations of conspiracy. A plea of guilty when formally entered on arraignment, is sufficient to sustain a conviction
even for a capital offense without the introduction of further evidence, 9 the requisite proofs having been supplied by
the accused himself. 10 We find, therefore, that the trial court did not commit any error in convicting the appellant Pedro
pagal of the crime of robbery with homicide.

The appellants further assail the trial court in not appreciating in their favor the mitigating circumstances of
sufficient provocation, and passion or obfuscation.

Again, the appeflants'contention is devoid of merit. Firstly, since the alleged provocation which caused the
obfuscation of the appellants arose from the same incident, that is, the alleged maltreatment and/or ill-treatment
of the appellants by the deceased, these two mitigating circumstances cannot be considered as two distinct and
separate circumstances but should be treated as one. 11 Secondly, the circumstance of passion and obfuscation
cannot be mitigating in a crime which — as in the case at bar — is planned and calmly meditated before its execution.
Thus, in People vs. Daos, 12 a case of robbery with homicide, this Court rejected the claim of the appellants therein
that passion and obfuscation should have been estimated in their favor, because the death of the victim therein took
place on the occasion of a robbery, which, before its execut,.on, had been planned and calmly meditated by the
appellants. Thirdly, the maltreatment that appellants claim the victim to have committed against them occurred much
earlier than the date of the commission of the crime. Provocation in order to be a mitigating circumstance must be
sufficient and immediately proceeding the act. We hold that the trial court did not commit any error in not appreciating
the said mitigating circumstances in favor of the appellants.

Finally, the appellants claim that the trial court erred in considering the aggravating circumstances of nighttime,
evident premeditation, and disregard of the respect due the offended party on account of his rank and age.

Although the trial court correctly considered the aggravating circumstance of nocturnity because the same was
purposely and deliberately sought by the a,)pellants to facilitate the commission of the crime, nevertheless, We
disagree with its conclusion that evident premeditation and disregard of the respect due the offended party were
present in the commission of the crime.

Evident premeditation is inherent in the crime of robbery. 13 However, in the crime of robbery with homicide, if there
is evident premeditation to kill besides stealing, it is considered as an aggravating circumstance. 14 In other words,
evident premeditation will only be aggravating in a complex crime of robbery with homicide if it is proved that the plan
is not only to rob, but also to kill. 15 In the case at bar, a perusal of the written statements 16 of the appellants before the
police investigators show that their original plan was only to rob, and that, they killed the deceased only when the
latter refused to open the "kaha de yero", and fought with them. The trial court, therefore, erred in taking into
consideration the aggravating circumstance of evident premeditation.
The aggravating circumstance that the crime was committed with insult or in disregard of the respect due the
offended party on account of his rank, age or sex may be taken into account only in crimes against persons or
honor, when in the commission of the crime there is some insult or disrespect shown to rank, age, or sex. 17 lt is
not proper to consider this aggravating circumstance in crimes against property. 18 Robbery with homicide is primarily
a crime against property and not against persons. Homicide is a mere incident of the robbery, the latter being the main
purpose and object of the criminal. 19 The trial court erred in taking into account this aggravating circumstance.

It results that in the commission of the crime, there is only generic aggravating circumstance, i.e., nighttime or
nocturnity.

Robbery with homicide is punished by reclusion perpetua to death. 20 Since the aggravating circumstance of
nighttime is offset by the mitigating circumstance of plea of guilty, the lesser penalty, which is reclusion perpetua,
should be imposed upon the appellants. 21

ACCORDINGLY, the judgment of the trial court is modified and the appellnts Pedro Pagal y Marcelino and Jose
Torcefino y Torazo are hereby sentenced to suffer each the penalty of reclusion perpetua. In all other respects, the
judgment of the trial court is affirmed. With costs against the appellants.

SO ORDERED.

Castro, C.J., Fernando, Aquino, Martin, Santos, Fernandez and Guerrero, JJ., concur. 1äwphï1.ñët

Teehankee and Makasiar, JJ., concur in the result.

Antonio, J., took no part.

Separate Opinions

MUÑ;OZ PALMA, J., concuring:

I would state however that the rulings in People vs. Parete and People vs. Santos, et al., cited in page 7 of the
Opinion must be taken in conjunction with recent jurisprudence that extra solicitous care is required in the
admission of a plea of guilty and that the taking of testimony and other evidence notwithstanding a plea of guilty
is the prudent and proper course to follow by trial judges. (People vs. Villafuerte, March 28, 1974, citing
numerous cases; People vs. Hondolero, August 25, 1976). These safeguards appear to have been taken in the
instant case.

BARREDO, J., concurring:

While I am not fully satisfied that appellants were entirely aware of the meaning of their plea of guilty, I find that
the rebuttal evidence of the prosecution proved their guilt, which evidence the appellants did not dispute.

 Separate Opinions

MUÑ;OZ PALMA, J., concuring:

I would state however that the rulings in People vs. Parete and People vs. Santos, et al., cited in page 7 of the
Opinion must be taken in conjunction with recent jurisprudence that extra solicitous care is required in the
admission of a plea of guilty and that the taking of testimony and other evidence notwithstanding a plea of guilty
is the prudent and proper course to follow by trial judges. (People vs. Villafuerte, March 28, 1974, citing
numerous cases; People vs. Hondolero, August 25, 1976). These safeguards appear to have been taken in the
instant case.

BARREDO, J., concurring:

While I am not fully satisfied that appellants were entirely aware of the meaning of their plea of guilty, I find that
the rebuttal evidence of the prosecution proved their guilt, which evidence the appellants did not dispute.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 182551               July 27, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ROSENDO REBUCAN y LAMSIN, Accused-Appellant.

DECISION

LEONARDO–DE CASTRO, J.:

Assailed before this Court is the Decision1 dated August 21, 2007 of the Court of Appeals in CA-G.R. CR.-H.C.
No. 00282, which modified the Decision2 dated November 3, 2003 of the Regional Trial Court (RTC) of Carigara,
Leyte, Branch 13, in Criminal Case No. 4232. In the Decision of the Court of Appeals, the accused-appellant
Rosendo Rebucan y Lamsin was adjudged guilty beyond reasonable doubt of two (2) separate counts of murder
and was sentenced to suffer the penalty of reclusion perpetua for each count.

On January 23, 2003, the accused-appellant was charged with the crime of double murder in an Information, the
accusatory portion of which reads:

That on or about the 6th day of November, 2002, in the Municipality of Carigara, Province of Leyte, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to kill, with
treachery and evident premeditation and abuse of superior strength, did then and there willfully, unlawfully and
feloniously attack, assault and wound FELIPE LAGERA Y OBERO, 65 years old and RANIL TAGPIS Y
LAGERA, 1 year old, with the use of a long bolo (sundang) which the accused had provided himself for the
purpose, thereby inflicting upon Felipe Lagera:

Hypovolemic shock, massive blood loss and multiple hacking wounds upon Ranil Tagpis:

Hypovolemic shock, massive blood loss and hacking wound, head[,] which wounds caused the death of Felipe
Lagera y Obera and Ranil Tagpis y Lagera, immediately thereafter. 3

When arraigned on February 10, 2003, the accused-appellant pleaded not guilty to the charge. 4 Trial, thereafter,
ensued.

The prosecution presented as witnesses: (1) Dr. Ma. Bella V. Profetana, Municipal Health Officer of Carigara,
Leyte; (2) Carmela Tagpis, the 5-year-old granddaughter of the victim Felipe Lagera and sister of the victim
Ranil Tagpis, Jr.;5 (3) Adoracion Lagera, the wife of Felipe Lagera; and (4) Alma Tagpis, the daughter of Felipe
Lagera and mother of Ranil Tagpis, Jr.

Dr. Profetana testified that she conducted a post-mortem examination on the body of the victim Felipe Lagera on
November 6, 2002. She stated that Felipe sustained three hacking wounds, the first of which was located at his
right arm and was about 23x2x4 centimeters. The said wound was fatal and could have been caused by a sharp
instrument such as a bolo. The second wound was located at Felipe’s "nose maxillary area," 6 measuring 13
centimeters, with an inverted C shape. The second wound was not fatal and could have been caused by a
sharp-edged instrument like a bolo. The third wound was located at Felipe’s left arm and was measured as
9x1x1.5 centimeters. The said wound was fatal and could have likewise been caused by a sharp-edged
instrument. Dr. Profetana concluded that the causes of death of Felipe were hypovolemic shock, massive blood
loss and multiple hacking wounds. She also conducted a post-mortem examination on the body of Ranil Tagpis,
Jr. on the aforementioned date. The results revealed that Ranil sustained a hacking wound at the "fronto-
temporal area"7 with a skull fracture. In the case of Ranil, the cause of death was "hypovolemic shock secondary
to massive blood loss secondary to [the] hacking wound to the head." 8 The instrument that was most likely used
was sharp-edged like a bolo.9

Carmela Tagpis testified as an eyewitness to the incident in question. She pointed to the accused-appellant as
the "Bata Endong"10 (Uncle Endong) who hacked her grandfather and brother. She stated that Ranil was hit in
the forehead, while Felipe was hit on the face, the left shoulder and the right shoulder. After Felipe was hacked
by the accused-appellant, the former was still able to walk outside of his house, to the direction of the coconut
tree and thereafter fell to the ground. Carmela said that she saw that a long bolo was used in the killing of Felipe
and Ranil. She related that Felipe also owned a bolo but he was not able to use the same when he was
attacked. She was then inside the house with Felipe and her two younger brothers, Jericho and Bitoy (Ranil).
She was sitting about four meters away when the hacking incident occurred indoors. 11

On cross-examination, Carmela stated that at the time of the incident, she was playing with a toy camera inside
the house and she was situated beside a chicken cage, near a bench. Felipe was also there near the bench and
he was carrying Ranil in his right arm. When asked whether the accused-appellant came inside the house in a
sudden manner, Carmela answered in the affirmative. She insisted that Ranil was indeed carried by Felipe when
the accused-appellant entered the house. She said that no fight or altercation occurred between Felipe and the
accused-appellant. After Felipe was hacked, he immediately ran outside of the house. Carmela and Jericho then
ran to the back of the house.12

Adoracion Lagera testified that at 4:00 p.m. on November 6, 2002, she was at the house of a certain Justiniano
Rance. After arriving there, she was fetched by a little boy who told her to go home because Felipe had been
hacked. She ran towards the direction of her house. When she got there, she saw the lifeless body of Felipe
sprawled on the ground. She then went inside the house and found her daughter, Alma Tagpis, cuddling the
body of Ranil whose head was wounded. She told Alma to look for a motor vehicle to bring the child to the
hospital. She also found out that the other two children, Carmela and Jericho, hid when they saw Felipe being
hacked. When she asked them who went to their house, Carmela told her that it was the accused-appellant who
entered their house and hacked the victims.13

Alma Tagpis testified that at about 4:00 p.m. on November 6, 2002, she was in Brgy. Sogod, having their palay
(unhusked rice grain) milled. Shortly thereafter, she went home and proceeded to the house of her father, Felipe,
where she left her children. She then met a person looking for her mother who was about to tell the latter that
Felipe was hacked. When she rushed to Felipe’s house, she saw him lying in the grassy place, wounded and
motionless. She asked Felipe who hacked him, but he was not able to answer anymore. She went inside the
house and saw blood on the floor and the feet of her son Ranil. Thinking that the killer was still inside, she went
to the back of the house and pulled a slot of board on the wall so she could get inside. Upon seeing the body of
Ranil, she took him and ran towards the road. She was able to bring Ranil to the hospital, but the doctor already
pronounced him dead. Her other two children, Carmela and Jericho, soon arrived at the hospital with the police.
When she asked them who killed Felipe, Carmela answered that it was the accused-appellant. 14

Thereafter, the prosecution formally offered the following documentary evidence, to wit: (1) Exhibit A – the Post-
mortem Examination Report on Felipe;15 (2) Exhibit B – the sketch of the human anatomy indicating the wounds
sustained by Felipe;16 (3) Exhibit C – the Certificate of Death of Felipe;17 (4) Exhibit D – the Post-mortem
Examination Report on Ranil;18 (5) Exhibit E – the sketch of the human anatomy indicating the wounds sustained
by Ranil;19 and (6) Exhibit F – the Certificate of Death of Ranil. 20

The defense, on the other hand, presented the following witnesses, namely: (1) Raymond Rance, the stepson of
the accused-appellant; (2) Renerio Arminal,21 the barangay chairperson of Brgy. Canlampay, Carigara, Leyte; (3)
Arnulfo Alberca, a member of the Philippine National Police (PNP) stationed at Carigara, Leyte; and (4) the
accused-appellant Rosendo Rebucan y Lamsin.

Raymond Rance testified that his mother’s name is Marites Rance. The accused-appellant is not his biological
father but the former helped in providing for his basic needs. He narrated that on the night of July 18, 2002, he
saw Felipe Lagera inside their house. Felipe placed himself on top of Raymond’s mother, who was lying down.
Raymond and his younger sister, Enda, were then sleeping beside their mother and they were awakened. His
mother kept pushing Felipe away and she eventually succeeded in driving him out. In the evening of July 20,
2002, at about 11:00 p.m., Raymond recounted that he saw Felipe’s son, Artemio alias Timboy, inside their
house. Timboy was able to go upstairs and kept trying to place himself on top of Raymond’s mother. The latter
got mad and pushed Timboy away. She even pushed him down the stairs. The accused-appellant was working
in Manila when the aforesaid incidents happened. Raymond said that his mother thereafter left for Manila.
Subsequently, he saw the accused-appellant at the house of a certain Bernie, several days after the accused-
appellant arrived in Leyte. He told the accused-appellant about the incidents involving Felipe and Timboy. On
November 6, 2002, Raymond and the accused were already living in the same house. On the said date, the
accused-appellant left their house after they had lunch and he told Raymond that he was going to call the latter’s
mother. Raymond testified that the accused-appellant is a good man and was supportive of his family. He also
stated that the accused-appellant seldom drank liquor and even if he did get drunk, he did not cause any
trouble.22
Renerio Arminal testified that on November 6, 2002, the accused-appellant surrendered to him. The latter came
to him alone and told him that he (the accused-appellant) fought with Felipe Lagera. Arminal then ordered the
human rights action officer, Ricky Irlandez, and the chief tanod, Pedro Oledan, to bring the accused-appellant to
the police station. Afterwards, the police officers came to his place and he accompanied them to the house of
Felipe.23

Arnulfo Alberca was likewise called upon to the witness stand to prove that the voluntary surrender of the
accused-appellant was entered into the records of the police blotter. He was asked to read in open court the
Police Blotter Entry No. 5885 dated November 6, 2002, which recorded the fact of voluntary surrender of the
accused-appellant. His testimony was no longer presented, however, since the prosecution already admitted the
contents of the blotter.24

The accused-appellant testified that he arrived in Carigara, Leyte from Manila on August 15, 2002. He went to
the house of his elder brother, Hilario, to look for his children. There, he learned that his wife went to Manila and
his brother was taking care of his two children and his stepson, Raymond. On November 2, 2002, he saw
Raymond at the place of his friend, Bernie Donaldo. He asked Raymond why the latter’s mother went to Manila
and he was told that, while he was still in Manila, Felipe and Timboy Lagera went to their house and tried to
place themselves on top of his wife. He then said that he harbored ill feelings towards the said men but he was
able to control the same for the sake of his children. On November 6, 2002, at about 2:00 p.m., he went to the
house of barangay chairperson Arminal to place a call to his wife who was in Manila. He was carrying a bolo at
that time since he was using the same to cut cassava stems in his farm. When he talked to his wife, she
confirmed that she was sexually molested by Felipe and Timboy. Thereafter, as the accused-appellant
proceeded to go home, it rained heavily so he first sought shelter at the place of his friend, Enok. The latter was
drinking gin and he was offered a drink. After staying there and drinking for half an hour, the accused-appellant
decided to go home. Afterwards, he remembered that he had to buy kerosene so he went to the store of Felipe
Lagera.25

The accused-appellant further testified that when he reached the house of Felipe, the latter was feeding
chickens. When Felipe asked him what was his business in going there, he confronted Felipe about the alleged
sexual abuse of his wife. Felipe allegedly claimed that the accused-appellant had a bad purpose for being there
and that the latter wanted to start a fight. Accused-appellant denied the accusation and responded that Felipe
should not get angry, as it was he (Felipe) who committed a wrong against him and his wife. Felipe allegedly got
mad and hurled the cover of a chicken cage at him, but he was able to parry it with his hand. The accused-
appellant then drew his long bolo and hacked Felipe on the left side of the abdomen, as the latter was already
turning and about to run to the house. He also went inside the house since Felipe might get hold of a weapon.
When they were both inside and he was about to deliver a second hacking blow, Felipe held up and used the
child Ranil as a shield. As the second hacking blow was delivered suddenly, he was not able to withdraw the
same anymore such that the blow landed on Ranil. When he saw that he hit the child, he got angry and
delivered a third hacking blow on Felipe, which landed on the right side of the latter’s neck. Thereafter, Felipe
ran outside. He followed Felipe and hacked him again, which blow hit the victim’s upper left arm. At that time,
Felipe was already on the yard of his house and was about to run towards the road. He then left and
surrendered to the barangay chairperson. 26

During his cross-examination, the accused-appellant said that he was a bit tipsy when he proceeded to Felipe’s
house, but he was not drunk. When Felipe ran inside the house after the first hacking blow, the accused-
appellant stated that he had no intention to back out because he was thinking that the victim might get a gun and
use the same against him. The accused-appellant also asserted that when he was about to deliver the second
hacking blow, Felipe simultaneously took Ranil who was sitting on a sack and used him to shield the blow. There
was a long bolo nearby but Felipe was not able to take hold of the same because the accused-appellant was
chasing him. He admitted that he had a plan to kill Felipe but claimed that when he arrived at the latter’s house
on the day of the attack, he had no intention to kill him. 27

The defense also presented the following documentary evidence: (1) Exhibit 1 – the Police Blotter Entry No.
5885 dated November 6, 2002;28 and (2) Exhibit 2 – the Civil Marriage Contract of Rosendo Rebucan and
Marites Rance.29

On November 3, 2003, the RTC rendered a decision, convicting the accused-appellant of the crime of double
murder. The trial court elucidated thus:

[In view of] the vivid portrayal of Raymond on how [the wife of the accused] was sexually abused by the father
and son Lagera, the accused hatched a decision to avenge his wife’s sexual molestation. Days had passed, but
this decision to kill Felipe did not wither, instead it became stronger, that on the 6th of November 2002, he
armed himself with a sharp long bolo known as "sundang" and went to Brgy. Canlampay, Carigara, Leyte where
the victim live[d]. Fueled by hatred and the spirit of London gin after consuming one bottle with his compadre
"Enok", he decided to execute his evil deeds by going to the house of Felipe Lagera, in the guise of buying
kerosene and once inside the house hacked and wounded the victim, Felipe Lagera who was then holding in his
arm his grandson, one and half years 1 ½ old, Ramil Tagpis, Jr.

The manner by which the accused adopted in killing the victim, Felipe Lagera, and Ramil Tagpis, Jr. was a
premeditated decision and executed with treachery.

xxxx

There is credence to the testimony of the minor eyewitness Carmela Tagpis that the victim, Felipe was holding in
his arms her younger brother, Ramil Tagpis, Jr. inside his house, when the accused entered, and without any
warning or provocation coming from the victim, the accused immediately delivered several hacking blows on the
victim giving no regard to the innocent child in the arms of Lagera. With this precarious situation, the victim who
was unarmed has no opportunity to put up his defense against the unlawful aggression of the accused, moreso,
to retaliate. Moreover, what defense could an innocent 1 1/2 years old Ramil Tagpis, Jr. put up against the
armed and superior strength of the accused, but to leave his fate to God.

The circumstance that the attack was sudden and unexpected and the victims, unarmed, were caught totally
unprepared to defend themselves qualifies the crime committed as murder. x x x.

After the incident, the accused Rosendo Rebucan immediately went to the house of Brgy. Chairman, Renerio
Arcenal at sitio Palali, Brgy. Canlampay, Carigara, Leyte, to surrender, because he killed Felipe Lagera and
Ramil Tagpis, Jr. The Brgy. Chairman instructed his Brgy. Human Rights Action Officer, Ricky Irlandez and his
Chief Tanod, Pedro Oledan to bring Rosendo to the Police Authorities of Carigara, Leyte. This fact of voluntary
surrender was corroborated by Police Officer Arnulfo Alberca, who presented to Court the police blotter, under
entry No. 5885, dated November 6, 2002, of the PNP, Carigara, Leyte.

Clearly, the act of the accused in surrendering to the authorities showed his intent to submit himself
unconditionally to them, to save the authorities from trouble and expenses that they would incur for his capture.
For this reason, he has complied with the requisites of voluntary surrender as a mitigating circumstance[.] x x x.

From the circumstances obtaining, the mitigating circumstances of admission and voluntary surrender credited
to the accused are not sufficient to offset the aggravating circumstances of: a) evident premeditation; b)
treachery (alevosia); c) dwelling – the crime was committed at the house of the victim; d) intoxication – the
accused fueled himself with the spirit of London gin prior to the commission of the crime; e) abuse of superior
strength; and f) minority, in so far as the child victim, Ramil Tagpis, Jr. is concerned, pursuant to Article 63 of the
Revised Penal Code as amended. x x x.

xxxx

In the mind of the Court, the prosecution has substantially established the quantum of evidence to prove the guilt
of the accused beyond reasonable doubt.30

The RTC, thus, decreed:

WHEREFORE, premises considered, pursuant to Sec. 6, Art. 248 of the Revised Penal Code, as amended and
further amended by R.A. 7659 (The Death Penalty Law), the Court found accused ROSENDO REBUCAN y
LAMSIN, GUILTY beyond reasonable doubt of the crime of DOUBLE MURDER charged under the information
and sentenced to suffer the maximum penalty of DEATH, and to pay civil indemnity to the heirs of Felipe Lagera
and Ramil Tagpis, Jr. in the amount of Seventy-Five Thousand (₱75,000.00) Pesos for each victim and moral
damages in the amount of Seventy-Five Thousand (₱75,000.00) Pesos to each; and

Pay the Cost.31 (Emphases ours.)

The case was originally elevated to this Court on automatic review and the same was docketed as G.R. No.
161706.32 The parties, thereafter, submitted their respective appeal briefs. 33 In our Resolution34 dated July 19,
2005, we ordered the transfer of the case to the Court of Appeals for appropriate disposition, pursuant to our
ruling in People v. Mateo.35 Before the appellate court, the case was docketed as CA-G.R. CR.-H.C. No. 00282.
The Court of Appeals promulgated the assailed decision on August 21, 2007, modifying the judgment of the
RTC. The appellate court adopted the position of the Office of the Solicitor General (OSG) that the felonious acts
of the accused-appellant resulted in two separate crimes of murder as the evidence of the prosecution failed to
prove the existence of a complex crime of double murder. The Court of Appeals subscribed to the findings of the
RTC that the killing of Felipe Lagera was attended by the aggravating circumstances of treachery and evident
premeditation. With respect to the ensuant mitigating circumstances, the Court of Appeals credited the
circumstance of voluntary surrender in favor of the accused-appellant, but rejected the appreciation of
intoxication, immediate vindication of a grave offense and voluntary confession. As for the death of Ranil, the
appellate court also ruled that the same was attended by the aggravating circumstance of treachery and the
mitigating circumstance of voluntary surrender. Thus, the Court of Appeals disposed of the case as follows:

WHEREFORE, IN VIEW OF THE FOREGOING, the Decision appealed from is hereby MODIFIED. As modified,
accused-appellant is hereby adjudged guilty beyond reasonable doubt for two (2) counts of murder for the
deaths of Felipe Lagera and Ramil Tagpis, Jr., and is hereby sentenced to suffer the penalty of reclusion
perpetua for each count of murder he has committed.

The award of civil indemnity is reduced to ₱50,000.00 for each victim; the award of moral damages is likewise
reduced to ₱50,000.00 for each victim. Further, exemplary damages in the amount of ₱25,000.00 is awarded to
the heirs of each victim.36

The accused-appellant filed a Notice of Appeal37 of the above decision. In a Resolution 38 dated February 6, 2008,
the Court of Appeals ordered that the records of the case be forwarded to this Court.

On June 18, 2008, we resolved to accept the appeal and required the parties to file their respective
supplemental briefs, if they so desire, within thirty days from notice. 39 Thereafter, both parties manifested that
they were adopting the briefs they filed before the Court of Appeals and will no longer file their respective
supplemental briefs.40

The accused-appellant sets forth the following assignment of errors:

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND

REASONABLE DOUBT FOR THE CRIME OF MURDER.

II

THE COURT A QUO GRAVELY ERRED IN FAILING TO APPRECIATE THE MITIGATING

CIRCUMSTANCE OF IMMEDIATE VINDICATION OF A GRAVE OFFENSE IN FAVOR OF THE
ACCUSED-APPELLANT.

III

THE COURT A QUO GRAVELY ERRED IN FAILING TO APPRECIATE INTOXICATION AS A

MITIGATING CIRCUMSTANCE IN FAVOR OF THE ACCUSED-APPELLANT.

IV

THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCES

OF DWELLING, ABUSE OF SUPERIOR STRENGTH AND MINORITY. 41

The accused-appellant admits to the killing of Felipe but denies that the crime was committed with treachery and
evident premeditation. He argues that there is doubt as to the presence of treachery given that there was no
eyewitness who categorically stated that the accused-appellant attacked the victims suddenly, thereby depriving
them of the means to defend themselves. He brushed aside the testimony of Carmela Tagpis, insisting that she
was not in a position to say that there was no altercation between him and Felipe, which could have put the latter
on guard. The prosecution allegedly failed to prove that the accused-appellant intentionally waited for the time
when Felipe would be defenseless before initiating the attack. The fact that he voluntarily surrendered to the
barangay chairperson and the police and admitted the killings supposedly showed that it was not intentional and
he did not consciously adopt the method of attack upon the two victims. The accused-appellant similarly rejects
the finding of the RTC that there was evident premeditation on his part since the prosecution failed to prove that
he deliberately planned the killing of Felipe.

The accused-appellant maintains that at the time of the incident, he was still unable to control his anger as he
just recently discovered that his wife was sexually abused by Felipe and the latter’s son, Timboy. He also avers
that he was a bit intoxicated when the crime took place so that he was not in total control of himself. He claims
that he is not a habitual drinker and that he merely consumed the alcohol prior to the incident in order to
appease his friend. He likewise argues that the aggravating circumstance of dwelling should not have been
appreciated inasmuch as the same was not alleged in the information. Moreover, the aggravating circumstance
of abuse of superior strength cannot be appreciated since he did not deliberately harm or attack Ranil Tagpis, Jr.
and the death of the latter was accidental. The accused-appellant prays that he should only be found guilty of
the crime of homicide with the mitigating circumstances of voluntary surrender, immediate vindication of a grave
offense and intoxication.

The appeal lacks merit.

Basic is the rule that in order to affirm the conviction of an accused person, the prosecution must establish his
guilt beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof as,
excluding possibility of error, produces absolute certainty. Only moral certainty is required, or that degree of
proof which produces conviction in an unprejudiced mind. 42 Ultimately, what the law simply requires is that any
proof against the accused must survive the test of reason for it is only when the conscience is satisfied that the
perpetrator of the crime is the person on trial should there be a judgment of conviction. 43 A finding of guilt must
rest on the strength of the prosecution’s own evidence, not on the weakness or even absence of evidence for
the defense.44

In the instant case, the evidence of the prosecution established the fact that the killings of Felipe and Ranil were
attended by treachery, thus qualifying the same to murder.

According to Article 24845 of the Revised Penal Code, as amended, any person who shall kill another shall be
guilty of murder if the same was committed with the attendant circumstance of treachery, among other things,
and that the situation does not fall within the provisions of Article 246. 46 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.47 The essence of treachery is a deliberate and sudden attack, offering an
unarmed and unsuspecting victim no chance to resist or to escape. There is treachery even if the attack is
frontal if it is sudden and unexpected, with the victims having no opportunity to repel it or defend themselves, for
what is decisive in treachery is that the execution of the attack made it impossible for the victims to defend
themselves or to retaliate.48

In the case at bar, the RTC gave more weight to the testimony of Carmela Tagpis in establishing the presence of
treachery in the manner with which the accused-appellant carried out the violent killings of Felipe and Ranil. In
this regard, we reiterate the established doctrine articulated in People v. De Guzman 49 that:

In the resolution of the factual issues, the court relies heavily on the trial court for its evaluation of the witnesses
and their credibility. Having the opportunity to observe them on the stand, the trial judge is able to detect that
sometimes thin line between fact and prevarication that will determine the guilt or innocence of the accused.
That line may not be discernible from a mere reading of the impersonal record by the reviewing court. x x x. 50

Moreover, we have oftentimes ruled that the Court will not interfere with the judgment of the trial court in
determining the credibility of witnesses unless there appears in the record some fact or circumstance of weight
and influence which has been overlooked or the significance of which has been misinterpreted. 51

Carmela testified as follows:

PROS. TORREVILLAS:

Q: Do you have a brother named Ranil Tagpis, Jr?

A: Yes sir.

Q: Where is he now?
A: He is dead.

Q: Do you know the circumstance of his death?

A: Yes sir.

Q: Why did he die?

A: Because he was hacked by Bata Endong.

Q: Do you know also your grandfather Felipe Lagera, Jr?

A: Yes sir.

Q: Where is he now?

A: He is dead also.

Q: Why did he die?

A: Because he was hacked by Bata Endong.

Q: Is the person your Bata Endong here in the court room who hacked your brother and your
grandfather?

A: Yes sir.

COURT INTERPRETER:

Witness pointing to a person when asked of his name identified himself as Rosendo Rebucan.

xxxx

Q: What instrument did the accused use in killing your [brother and] your grandfather?

A: Long bolo, sundang.

Q: Were you able to see that long bolo?

A: Yes sir.

xxxx

Q: Was your grandfather armed that time?

A: He has his own bolo but he placed it on the holder of the long bolo.

Q: Was that long bolo used by your grandfather?

A: No sir.

xxxx

Q: How far were you to the incident, when this hacking incident happened?

A: (witness indicating a distance of about 4 meters).

xxxx
 COURT:

Cross.

ATTY. DICO:

Q: You stated awhile ago that your brother Jericho, Bitoy [Ranil] and you and your papo Felipe were at
the house of your papo Felipe?

A: Yes sir.

Q: You mean to say that there were no other persons present in that house other than you four (4)?

A: Yes sir.

xxxx

Q: So, you were playing that toy camera inside the room of your papo Felipe?

A: No sir, I was playing then at the side of the chicken cage.

Q: Is that chicken cage was inside or outside the house of your papo Felipe’s house?

A: Inside the house of my grandfather.

xxxx

Q: Was your brother Ranil carried by your grandfather Felipe?

A: Yes sir.

He was carried by his right arm.

Q: So, you mean to say that your uncle Endo went inside, it was so sudden?

A: Yes sir.

Q: Because it was sudden, you were not able to do anything, what did you do?

A: I then cried at that time.

xxxx

Q: But you are sure that when your uncle Endo entered as you said that your brother Ramil was carried
by your papo Felipe?

A: Yes sir.

Q: Did your uncle Endo and your papo Felipe fight or was there an altercation?

A: No sir.52

As can be gleaned from the above testimony, Carmela firmly and categorically pointed to the accused-appellant
as the person who entered the house of Felipe. She clearly stated that the attack was not preceded by any fight
or altercation between the accused-appellant and Felipe. Without any provocation, the accused-appellant
suddenly delivered fatal hacking blows to Felipe. The abruptness of the unexpected assault rendered Felipe
defenseless and deprived him of any opportunity to repel the attack and retaliate. As Felipe was carrying his
grandson Ranil, the child unfortunately suffered the same fatal end as that of his grandfather. In the killing of
Ranil, the trial court likewise correctly appreciated the existence of treachery. The said circumstance may be
properly considered, even when the victim of the attack was not the one whom the defendant intended to kill, if it
appears from the evidence that neither of the two persons could in any manner put up defense against the
attack or become aware of it.53 Furthermore, the killing of a child is characterized by treachery even if the manner
of assault is not shown. For the weakness of the victim due to his tender years results in the absence of any
danger to the accused.54

Although the accused-appellant painted a contrasting picture on the matter, i.e., that the attack was preceded by
a fight between him and Felipe, the Court is less inclined to be persuaded by the accused-appellant’s version of
the events in question. Indeed, the Court has ruled that the testimony of children of sound mind is "more correct
and truthful than that of older persons" and that "children of sound mind are likely to be more observant of
incidents which take place within their view than older persons, and their testimonies are likely more correct in
detail than that of older persons."55 In the instant case, Carmela was cross-examined by the defense counsel but
she remained steadfast and consistent in her statements. Thus, the Court fails to see any reason to distrust the
testimony of Carmela.

Incidentally, the testimony of the accused-appellant not only contradicts that of Carmela, but some portions
thereof do not also conform to the documentary evidence admitted by the trial court. The testimony of Dr.
Profetana and the sketch of the human anatomy of Felipe, which was marked as Exhibit B for the prosecution,
stated that Felipe sustained three hacking wounds that were found on his right arm, at his "nose maxillary
area"56 and on his left arm. On the other hand, the accused-appellant testified that he delivered four hacking
blows on Felipe, the three of which landed on the left side of the victim’s abdomen, the right side of his neck and
on his upper left arm. When confronted on the said apparently conflicting statements, the accused-appellant did
not offer any explanation.57

Therefore, on the strength of the evidence of the prosecution, we sustain the ruling of the RTC and the Court of
Appeals that the circumstance of treachery qualified the killings of Felipe and Ranil to murder.

The Court finds erroneous, however, the trial court’s and the Court of Appeals’ appreciation of the aggravating
circumstance of evident premeditation. For evident premeditation to aggravate a crime, there must be proof, as
clear as the evidence of the crime itself, of the following elements: (1) the time when the offender determined to
commit the crime; (2) an act manifestly indicating that he clung to his determination; and (3) sufficient lapse of
time, between determination and execution, to allow himself to reflect upon the consequences of his act. 58 It is
not enough that evident premeditation is suspected or surmised, but criminal intent must be evidenced by
notorious outward acts evidencing determination to commit the crime. In order to be considered an aggravation
of the offense, the circumstance must not merely be "premeditation"; it must be "evident premeditation." 59 In the
case at bar, the evidence of the prosecution failed to establish any of the elements of evident premeditation
since the testimonies they presented pertained to the period of the actual commission of the crime and the
events that occurred thereafter. The prosecution failed to adduce any evidence that tended to establish the exact
moment when the accused-appellant devised a plan to kill Felipe, that the latter clung to his determination to
carry out the plan and that a sufficient time had lapsed before he carried out his plan.

Likewise, the trial court erred in appreciating the aggravating circumstances of abuse of superior strength,
dwelling, minority and intoxication. When the circumstance of abuse of superior strength concurs with treachery,
the former is absorbed in the latter.60 On the other hand, dwelling, minority and intoxication cannot be
appreciated as aggravating circumstances in the instant case considering that the same were not alleged and/or
specified in the information that was filed on January 23, 2003. Under the Revised Rules of Criminal Procedure,
which took effect on December 1, 2000, a generic aggravating circumstance will not be appreciated by the Court
unless alleged in the information. This requirement is laid down in Sections 8 and 9 of Rule 110, to wit:

SEC. 8. Designation of the offense. - The complaint or information shall state the designation of the offense
given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and
aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or
subsection of the statute punishing it.

SEC. 9. Cause of the accusation. - The acts or omissions complained of as constituting the offense and the
qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily
in the language used in the statute but in terms sufficient to enable a person of common understanding to know
what offense is being charged as well as its qualifying and aggravating circumstances and for the court to
pronounce judgment.
With regard to the conflicting rulings of the RTC and the Court of Appeals vis-à-vis the nature of crimes
committed, we agree with the appellate court that the accused-appellant should be held liable for two (2)
separate counts of murder, not the complex crime of double murder.

Article 48 of the Revised Penal Code provides that "[w]hen 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 to be applied in its maximum period." There are, thus, two kinds of
complex crimes. The first is known as compound crime, or when a single act constitutes two or more grave or
less grave felonies. The second is known as complex crime proper, or when an offense is a necessary means
for committing the other.61

The Court finds that there is a paucity of evidence to prove that the instant case falls under any of the two
classes of complex crimes. The evidence of the prosecution failed to clearly and indubitably establish the fact
that Felipe and Ranil were killed by a single fatal hacking blow from the accused-appellant. The eyewitness
testimony of Carmela did not contain any detail as to this material fact. To a greater degree, it was neither
proven that the murder of Felipe was committed as a necessary means for committing and/or facilitating the
murder of Ranil and vice versa. As the factual milieu of the case at bar excludes the application of Article 48 of
the Revised Penal Code, the accused-appellant should be made liable for two separate and distinct acts of
murder. In the past, when two crimes have been improperly designated as a complex crime, this Court has
affirmed the conviction of the accused for the component crimes separately instead of the complex crime. 62

In the determination of the penalty to be imposed on the accused-appellant, we uphold the trial court’s ruling that
the mitigating circumstance of voluntary surrender should be appreciated. For voluntary surrender to mitigate
criminal liability, the following elements must concur: (1) the offender has not been actually arrested; (2) the
offender surrenders himself to a person in authority or to the latter’s agent; and (3) the surrender is
voluntary.63 To be sufficient, the surrender must be spontaneous and made in a manner clearly indicating the
intent of the accused to surrender unconditionally, either because they acknowledge their guilt or wish to save
the authorities the trouble and the expense that will necessarily be incurred in searching for and capturing
them.64 The accused-appellant has duly established in this case that, after the attack on Felipe and Ranil, he
surrendered unconditionally to the barangay chairperson and to the police on his own volition and before he was
actually arrested. The prosecution also admitted this circumstance of voluntary surrender during trial.

We reject, however, the accused-appellant’s contention that the trial court erred in failing to appreciate the
mitigating circumstances of intoxication and immediate vindication of a grave offense.

The third paragraph of Article 15 of the Revised Penal Code provides that the intoxication of the offender shall
be taken into consideration as a mitigating circumstance when the offender has committed a felony in a state of
intoxication, if the same is not habitual or subsequent to the plan to commit said felony; but when the intoxication
is habitual or intentional, it shall be considered as an aggravating circumstance. The Court finds that the
accused-appellant is not entitled to the mitigating circumstance of intoxication since his own testimony failed to
substantiate his claim of drunkenness during the incident in question. During his cross-examination, the
accused-appellant himself positively stated that he was only a bit tipsy but not drunk when he proceeded to the
house of Felipe.65 He cannot, therefore, be allowed to make a contrary assertion on appeal and pray for the
mitigation of the crimes he committed on the basis thereof.

As regards the mitigating circumstance of immediate vindication of a grave offense, the same cannot likewise be
appreciated in the instant case. Article 13, paragraph 5 of the Revised Penal Code requires that the act be
"committed in the immediate vindication of a grave offense to the one committing the felony (delito), his spouse,
ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by affinity within the
same degrees." The established rule is that there can be no immediate vindication of a grave offense when the
accused had sufficient time to recover his equanimity. 66 In the case at bar, the accused-appellant points to the
alleged attempt of Felipe and Timboy Lagera on the virtue of his wife as the grave offense for which he sought
immediate vindication. He testified that he learned of the same from his stepson, Raymond, on November 2,
2002. Four days thereafter, on November 6, 2002, the accused-appellant carried out the attack that led to the
deaths of Felipe and Ranil. To our mind, a period of four days was sufficient enough a time within which the
accused-appellant could have regained his composure and self-control. Thus, the said mitigating circumstance
cannot be credited in favor of the accused-appellant.

Article 248 of the Revised Penal Code, as amended, prescribes the penalty of reclusion perpetua to death for
the crime of murder. In this case, apart from the qualifying circumstance of treachery, the prosecution failed to
prove the existence of any other aggravating circumstance in both the murders of Felipe and Ranil. On the other
hand, as the presence of the lone mitigating circumstance of voluntary surrender was properly established in
both instances, Article 63, paragraph 3 of the Revised Penal Code 67 mandates that the proper penalty to be
imposed on the accused-appellant is reclusion perpetua for each of the two counts of murder.

Anent the award of damages, when death occurs due to a crime, the following may be recovered: (1) civil
indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4)
exemplary damages; (5) attorney's fees and expenses of litigation; and (6) interest, in proper cases. 68

The RTC awarded in favor of the heirs of Felipe and Ranil the amounts of ₱75,000.00 as civil indemnity and
₱75,000.00 as moral damages for each set of heirs. The Court of Appeals, on the other hand, reduced the
aforesaid amounts to ₱50,000.00 and further awarded the amount of ₱25,000.00 as exemplary damages to the
heirs of the victim.

Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the
commission of the crime.69 Similarly, moral damages may be awarded by the court for the mental anguish
suffered by the heirs of the victim by reason of the latter’s death. The purpose for making such an award is not to
enrich the heirs of the victim but to compensate them for injuries to their feelings. 70 The award of exemplary
damages, on the other hand, is provided under Articles 2229-2230 of the Civil Code, viz:

Art. 2229. Exemplary or corrective damages are imposed, by way of example or correction for the public good, in
addition to the moral, temperate, liquidated or compensatory damages.

Art. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime
was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines
and shall be paid to the offended party.

In People v. Dalisay,71 the Court clarified that "[b]eing corrective in nature, exemplary damages, therefore, can be
awarded, not only in the presence of an aggravating circumstance, but also where the circumstances of the case
show the highly reprehensible or outrageous conduct of the offender. In much the same way as Article 2230
prescribes an instance when exemplary damages may be awarded, Article 2229, the main provision, lays down
the very basis of the award."72

Thus, we affirm the Court of Appeals’ award of ₱50,000.00 as civil indemnity and ₱50,000.00 as moral
damages. The award of exemplary damages is, however, increased to ₱30,000.00 in accordance with the
prevailing jurisprudence. As held in People v. Combate, 73 when the circumstances surrounding the crime call for
the imposition of reclusion perpetua only, the proper amounts that should be awarded are ₱50,000.00 as civil
indemnity, ₱50,000.00 as moral damages and ₱30,000.00 as exemplary damages.

In lieu of actual or compensatory damages, the Court further orders the award of ₱25,000.00 temperate
damages to the heirs of the two victims in this case. The award of ₱25,000.00 for temperate damages in
homicide or murder cases is proper when no evidence of burial and funeral expenses is presented in the trial
court. Under Article 2224 of the Civil Code, temperate damages may be recovered, as it cannot be denied that
the heirs of the victim suffered pecuniary loss, although the exact amount was not proven. 74

WHEREFORE, the Court hereby AFFIRMS with MODIFICATION the Decision dated August 21, 2007 of the
Court of Appeals in CA-G.R. CR.-H.C. No. 00282. The accused-appellant Rosendo Rebucan y Lamsin is found
GUILTY of two (2) counts of murder for the deaths of Felipe Lagera and Ranil Tagpis, Jr. and is hereby
sentenced to suffer the penalty of reclusion perpetua for each count. The accused-appellant is further ordered to
indemnify the respective heirs of the victims Felipe Lagera and Ranil Tagpis, Jr. the amounts of ₱50,000.00 as
civil indemnity, ₱50,000.00 as moral damages, ₱30,000.00 as exemplary damages and ₱25,000.00 as
temperate damages for each victim, plus legal interest on all damages awarded at the rate of 6% from the date
of the finality of this decision. No costs.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

WE CONCUR:
 RENATO C. CORONA
Chief Justice
Chairperson

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA
Chief Justice

Footnotes

Art. 248. Murder. — Any person who, not falling within the provisions of Article 246, shall kill another,
shall be guilty of murder and shall be punished by reclusion perpetua to death, if committed with any of
the following attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing
means to weaken the defense or of means or persons to insure or afford impunity;

2. In consideration of a price, reward, or promise;

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment of

or assault upon a railroad, fall of an airship, or by means of motor vehicles, or with the use of any
other means involving great waste and ruin;

4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an

earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity;

5. With evident premeditation;

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging
or scoffing at his person or corpse. (As amended by Republic Act No. 7659.)

46
 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. (As amended by Republic Act No. 7659.)

 Art. 63. Rules for the application of indivisible penalties. — In all cases in which the law prescribes a
67

single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating
circumstances that may have attended the commission of the deed.

In all cases in which the law prescribes a penalty composed of two indivisible penalties, the
following rules shall be observed in the application thereof:

xxxx

3. When the commission of the act is attended by some mitigating circumstances and there is no
aggravating circumstance, the lesser penalty shall be applied.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 149372             September 11, 2007

RICARDO BACABAC, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

CARPIO MORALES, J.:

In the evening of December 23, 1990, Hernani Quidato (the victim) was at a dance hall in Purok 4, San Joaquin,
Iloilo City in the company of Eduardo Selibio (Eduardo) and Melchor Selibio (Melchor). And so were Jonathan
Bacabac (Jonathan) and Edzel Talanquines (Edzel). 1

Jonathan and Edzel left the dance hall. Not long after, the victim and his companions also left and on their way
home, they encountered Jonathan and Edzel. It appears that the two groups then and there figured in a
misunderstanding.

On his way home, Jesus Delfin Rosadio (Jesus), who was also at the dance hall, noticed a commotion. He soon
saw that Melchor was "hugging" Edzel, and later "tying" Jonathan "with his hands." Still later, he saw the victim
hit Edzel with a "stick."2 He thus told the victim and his companions that Edzel is the son of Councilor Jose
Talanquines, Jr. (Jose), whereupon Eduardo 3 told him (Jesus) to go away for they might shoot him. Jesus thus
left and proceeded to Edzel's residence to report to his father what he had witnessed. In the meantime, Edzel
and Jonathan managed to flee.

The victim and his companions thereafter headed for home in the course of which they met Pat. Ricardo
Bacabac (herein petitioner), together with Edzel and Jonathan who are his nephews, and Edzel's father, Jose,
his mother, and two sisters at the corner of M.H. Del Pilar and Sto. Domingo Streets. Petitioner and Jose were
carrying M-16 armalites, while Jonathan and Edzel were carrying a piece of wood and a revolver, respectively.

Jesus thereupon pointed to the victim and his companions as the ones who had manhandled Jonathan and
Edzel. The victim apologized, explaining that he and his companions mistook Jonathan and Edzel for other
persons. Jesus blurted out, however, "You are just bragging that you are brave. You are only bullying small
children."4 Petitioner, at that instant, fired his armalite into the air, while Jose fired his armalite ("as if spraying his
rifle from right to left") at the victim and Eduardo, even hitting Jonathan in the thigh as he (Jonathan) "was on the
move to strike [the victim] with a piece of wood." Eduardo fell. And so did the victim who was in a kneeling
position, and as he was raising his hands in surrender, Jose shot him again.

Meanwhile, Melchor escaped.5

The victim, Eduardo, and Jonathan were brought to the hospital. The victim was pronounced dead on arrival.
Eduardo died two hours later.

Post-mortem examination showed that the victim sustained two bullet wounds in the thoraco-abdominal regions
and one bullet wound in the extremities, and that he died due to "maceration of the internal organs due to bullet
wounds."6 Eduardo sustained two bullet wounds in the thoraco-abdominal region, and died of "hemorrhage due
to gunshot wounds."7

Two Informations for Murder were filed with the Regional Trial Court (RTC) of Iloilo City against Jose, Edzel,
Jonathan, Jesus, and the herein petitioner. The accusatory portion of the first Information, docketed as Criminal
Case No. 35783, reads:

That on or about the 23rd day of December, 1990, in the Municipality of San Joaquin, Province of Ilo-ilo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another to better realize their purpose, armed with two (2) M16
 [a]rmalite [r]ifles and one (1) nickel-plated revolver of unknown make and caliber, with deliberate intent
and decided purpose to kill, with treachery and evident premeditation and without any justifiable cause or
motive, did then and there willfully, unlawfully and feloniously assault, attack and shoot one HERNANI
QUIDATO with the firearms they were then provided, inflicting upon the latter gunshot wounds on the
different parts of his body which caused the immediate and instantaneous death of said Hernani
Quidato.

CONTRARY TO LAW.8

The accusatory portion of the second Information, docketed as Criminal Case No. 35784, reads:

That on or about the 23rd day of December, 1990, in the Municipality of San Joaquin, Province of Iloilo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another to better realize their purpose, armed with two (2) M16
[a]rmalite [r]ifles and one (1) nickel-plated revolver of unknown make and caliber, with deliberate intent
and decided purpose to kill, with treachery and evident premeditation and without any justifiable cause or
motive, did then and willfully, unlawfully and feloniously assault, attack and shoot one EDUARDO
SELIBIO with the firearms they were then provided inflicting upon the latter gunshot wounds on the
different parts of his body which caused the immediate and instantaneous death of said Eduardo Selibio.

CONTRARY TO LAW.9

The cases were jointly tried.

By Decision of April 30, 1993, Branch 39 of the Iloilo RTC, finding the presence of conspiracy among petitioner
and his co-accused,10 convicted them of murder qualified by treachery.11 The dispositive portion of the decision of
the trial court reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

In Criminal Case No. 35783, all the accused, namely; Jose Talanquines, Jr., Edzel Talanquines,
Jonathan Bacabac, Pat. Ricardo Bacabac, and Jesus Delfin Rosadio are hereby found guilty beyond
reasonable doubt of the crime of murder and there being no aggravating circumstances with one
mitigating circumstance [immediate vindication for Jose and Jesus; voluntary surrender for Pat. Ricardo
Bacabac12], and applying the indeterminate sentence law, accused Jose Talanquines, Jr., Ricardo
Bacabac and Jesus Delfin Rosadio are hereby sentenced each to suffer imprisonment for a period of 10
years and 1 day, as minimum, to 17 years, 4 months and 1 day as maximum; while accused Edzel
Talanquines and Jonathan Bacabac who are entitled to the privileged mitigating circumstance of minority
and the ordinary mitigating circumstance of immediate vindication of a grave offense are hereby
sentenced each to suffer imprisonment for a period of four (4) years, 2 months, and 1 day, as minimum,
to 10 years and 1 day as maximum. All the accused are ordered to pay jointly and severally the heirs of
the deceased Hernani Quidato, the amount of P50,000.00 for his wrongful death; P20,000.00 for moral
damages; P10,000.00 for attorneys fees; and the costs of the suit. (Underscoring supplied)

In Criminal Case No. 35784, judgment is hereby rendered as follows:

All the accused, namely; Jose Talanquines, Jr., Edzel Talanquines, Jonathan Bacabac, Pat. Ricardo
Bacabac and Jesus Delfin Rosadio are hereby found guilty of the crime of Murder and there being no
aggravating circumstance with one mitigating circumstance, accused Jose Talanquines, Jr., Ricardo
Bacabac and Jesus Delfin Rosadio are hereby sentenced each to suffer imprisonment for a period of 10
years and 1 day as minimum, to 17 years, 4 months and 1 day, as maximum; while accused Edzel
Talanquines and Jonathan Bacabac who are entitled to the privileged mitigating circumstance of minority
and the ordinary mitigating circumstance of immediate vindication of a grave offense, are hereby
sentenced to suffer imprisonment for a period of 4 years, 2 months and 1 day, as minimum to 10 years
and 1 day as maximum. All the accused are ordered to pay jointly and severally the heirs of the
deceased Eduardo Selibio, the amount of P50,000.000 for his wrongful death; P20,000.00 for moral
damages; P10,000.00 for attorney's fees; and the costs of the suit. (Underscoring supplied)

Accused Jesus Delfin Rosadio, who is detained, is hereby credited with the number of days he spent
under detention, if he is qualified.
 SO ORDERED.13

While petitioner and his co-accused filed a Notice of Appeal 14 which was given due course,15 only petitioner filed
a Brief, albeit beyond the extensions granted to him, drawing the Court of Appeals to dismiss his appeal. 16 The
conviction of petitioner's co-accused had thus become final and executory.

Petitioner's Motion for Reconsideration 17 of the dismissal of his appeal having been denied, 18 he filed a Petition
for Review with this Court which, by Resolution of October 22, 1997, directed the Court of Appeals to reinstate
petitioner's appeal.19

By Decision20 of June 28, 1999, the Court of Appeals affirmed the trial court's decision. Entry of final judgment
was made by the Court of Appeals on July 22, 1999. 21

The trial court thereafter issued a February 7, 2000 Order directing the issuance of warrants for the arrest of the
accused.22 Except petitioner, all were arrested. 23

On February 24, 2000, petitioner filed before the appellate court a Petition for Relief from Judgment, Order,
and/or Denial of Appeal24 which was granted,25 hence, the Entry of Judgment issued by the appellate court on
July 22, 1999 was set aside. He thereafter filed a Motion for Reconsideration 26 of the appellate court's June 28,
1999 Decision which was denied by Resolution of August 8, 2001; 27 hence, the present Petition for Review on
Certiorari.28

Petitioner assails the Court of Appeals' decision as follows:

First: Contrary to its conclusion on the basis of the facts of the case, Petitioner may not be deemed to
be in conspiracy with the other Accused.

Second: Contrary to its conclusion, there was no treachery.

Third: Contrary to its conclusion, Petitioner, assuming in gratis argumenti the correctness of the

pronouncement of guilt, should have been credited with the mitigating circumstance of immediate
vindication of a grave offense, in the same manner that the other Accused were so credited.

Fourth: Contrary to its conclusion, the guilt of the Petitioner has not been proved beyond reasonable
doubt; hence, by the equipoise rule, should have been acquitted.

Fifth: Contrary to its conclusion, Petitioner is not civilly liable.29 (Emphasis in the original)

The Court notes that the first, second, and fifth arguments of petitioner were, in the main, raised before the
appellate court.30

During the pendency of the present petition, petitioner, through counsel, filed before the trial court an "Urgent Ex
Parte Alternative Motions (Re: Pat. Ricardo Bacabac's Motion for Reconsideration and/or to Vacate the Order
dated February 7, 2000 [directing the arrest of the accused] and to Recall the Warrant of Arrest Dated the Same
Date in so far as the Accused Pat. Ricardo Bacabac Only is Concerned)." 31 The trial court denied32 the motion as
it did deny33 petitioner's motion for reconsideration, 34 drawing petitioner to file before this Court on October 5,
2006 a "Motion to Vacate Order for the Arrest of the Accused and the Warrant of Arrest Issued by the Regional
Trial Court (Branch 39) of Iloilo City."35

In his "Motion to Vacate Order for the Arrest of the Accused and the Warrant of Arrest Issued by the Regional
Trial Court . . . ," petitioner argues that

[T]he basis of the RTC's Order of February 7, 2000 was the Entry of Judgment by the Court of
Appeals dated 25 November 1999.36 BUT THE SAID ENTRY OF JUDGMENT was ALREADY
VACATED and SET-ASIDE BY THE COURT OF APPEALS ITSELF ON ITS RESOLUTION DATED 13
DECEMBER 2000. Therefore, the RTC's Order of 7 February 2000 was ipso facto vacated.37 (Emphasis
in the original)

and that
 [T]he second sentence of Section 7, Rule 65 of the Rules of Court cited by the Order of 13 July 2006
does not apply to the case at bench because the main case on the merits which originated in the RTC
as Criminal Cases Nos. 35783-84, went to the Court of Appeals as CA-G.R. No. 16348 and is now
pending in the Supreme Court (Third Division) as G.R. No. 149372 because of the Petition for Review
On Certiorari filed by Movant herein x x x. THE MAIN CASE IS NO LONGER PENDING IN THIS
HONORABLE COURT [sic]. THEREFORE, THE RTC HAS NO JURISDICTION TO REITERATE AND
EXECUTE THE ORDER OF 7 FEBRUARY 2000. 38 (Emphasis in the original)

As this Court hereby affirms petitioner's conviction, resolution of his "Motion to Vacate . . ." is rendered
unnecessary.

Petitioner, denying the presence of conspiracy on his part, argues:

[The petitioner] affirms that he was at the scene of the incident and merely fired a warning shot into
the air to respond to a public disturbance, and his firing a warning shot into the air was intended to
avert further acts of violence; both circumstances, therefore, being merely and solely in pursuance to
his avowed duty to keep peace and order in the community and clearly not to be part of any alleged
community of design to kill the victims.

xxxx

Another indication that there was no unity of purpose and of execution in so far as the Petitioner is
concerned is his conduct after Jose Talanquines, Jr. shot the victims. Eyewitness accounts state
that after that lone warning shot, closely followed by Jose Talanquines, Jr. firing at the victims, the
petitioner merely stood there and did nothing and said nothing. This is obviously because he was himself
stunned by the fast happening of events. The investigating police officer, PO3 NESTOR SANTACERA,
on rebuttal, likewise, admitted to the facts that ten (10) minutes after the incident, they (the police)
responded and upon arrival thereat, learned that the Petitioner already reported the incident to their
station and that it was the Petitioner who first reported the shooting incident officially to their
office. The aforedescribed proven conduct of the Petitioner during and immediately after the incident in
question are, Petitioner respectfully submits, inconsistent with what a co-conspirators is [sic] wont to
do under the circumstances. It is submitted instead that his conduct on the contrary underscores the lack
or want of community of purpose and interest in the killing incident to make him criminally liable under
the conspiracy theory.

Finally, in connection with the conspiracy theory and anent the finding below that the Petitioner and his
Co-Accused waited for the victims' arrival  at the corner of St. Domingo and M.H. del Pilar Streets, it is
asserted that the same runs counter to the natural and ordinary experience of things and
event [sic], and raises a cloud of doubt over the correctness of the lower Courts decision which are
based on the Prosecution's version of the incident. Since, according to the prosecution, the Petitioner
and the other Accused were armed with high-powered firearms (armalite rifles and revolver); they waited
at the stated street corner for thirty (30) minutes; the stated street corner was well lighted;
accompanying them were the wife and two (2) young daughters of Jose Talanquines, Jr; and they
stood there conversing with the group of Elston Saquian [a prosecution witness who testified that he saw
the petitioner and his co-accused waiting for the victims 39 and admitting that they were waiting for certain
persons who mauled Edzel Talanquines and Jonathan Bacabac.

In other words, the lower Courts gave credence to an improbable scenario painting the Petitioner,
known to the place as a police officer, and co-accused to have recklessly and uncaringly displayed, for
all and sundry to see, their alleged criminal intentions. It would indeed be the height of foolishness for
them to be by a well lighted street corner, perhaps even well traversed, conspicuously fully armed,
waiting for persons who were not even sure would pass by such place, and apparently willing to admit to
other passers-by that they were indeed waiting for the persons who mauled Edzel and Jonathan, and
consequently give out the impression that they were intending to retaliate – which is what the lower
Courts regrettably observed.

xxxx

Likewise, the presence of the wife and two (2) young daughters of the accused Jose Talanquines,
Jr. at the scene of the alleged crimes, as testified to by the prosecution witnesses and believed by the
lower Courts, assumes importance in the matter of determining which version of the incident is correct.
 The Prosecution places the wife and the daughters with the alleged fully armed Petitioner and Co-
Accused at Sto. Domingo Streets, also waiting during the same length of time as the men for the
(probable) arrival of the group of the victims. But such a scenario is, likewise, unnatural. Because,
will the male relatives unhesitatingly expose their defenseless womenfolk to imminent danger?
40
 (Citations omitted, emphasis in the original, and underscoring supplied)

Petitioner's argument that it is improbable for him and his co-accused to have waited for the victims at a well-
lighted street corner does not persuade. Crimes are known to have been brazenly committed by perpetrators,
undeterred by the presence of onlookers or even of peace officers, completely impervious of the inevitability of
criminal prosecution and conviction.41

From the mode and manner in which the crimes were perpetrated, the conduct of petitioner before, during, and
after their commission,42 and the conditions attendant thereto, 43 conspiracy, which need not be proved by direct
evidence, is deduced.44 Petitioner's firing of his armalite could not have amounted to none other than lending
moral assistance to his co-accused, thereby indicating the presence of conspiracy. 45

As the appellate court observed which is quoted with approval:

In the present recourse, when informed that Jonathan and Edzel were being manhandled and assaulted
by male persons, Appellant armed himself with an M-16 armalite. Jose Talanquines, Jr., the father of
Edzel, followed suit and armed himself with an M-16 armalite gun. Jesus armed himself with a revolver
while Jonathan armed himself with a piece of wood. Jonathan and Edzel were nephews of the Appellant
who resided in the house of Jose Talanquines, Jr. All the Accused including the Appellant then
proceeded posthaste to the corner of M.H. del Pilar corner Sto. Domingo Streets where the
culprits would pass by and waited for the advent of the culprits. Even as Hernani apologized for
his and his companions' assault of Edzel and Jonathan, Jesus berated Hernani and his
companions. Almost simultaneously, the Appellant fired his gun into the air as Jonathan lunged
at Hernani and his companions to hit them with the piece of wood. Almost simultaneously, Jose
Talaquines, Jr. fired his gun at Hernani and shot Eduardo hitting them and, in the process, hitting his
nephew, Jonathan Bacabac. The Appellant did not lift a finger when Jose fired at and shot Hernani
and Eduardo. He stood by as Jose shot Hernani anew when the latter on bended knees, raised
his two (2) hands, in surrender. The Appellant and the other Accused then fled from the scene,
with their respective firearms and weapons. The overt act of the Accused and the Appellant
in conjunto, constitute proof of conspiracy.

The Appellant and Jose were armed with high-powered guns. Jesus was armed with a revolver. The
nature of the weapons of the Accused evinced a common desire to do away with the culprits, not
merely to scare them.

What is outrageous is that the Appellant was a policeman. He could very well have just arrested
the culprits as they sauntered by and brought them to the police station for the requisite
investigation and the institution of criminal complaints, if warranted. He could have dissuaded
Jose and Jesus and assured them that the culprits will be duly investigated and charged if
warranted. The Appellant did not. He armed himself with an M-16 armalite x x x. [T]he three (3)
positioned themselves at the corner of M.H. del Pilar and Sto. Domingo Streets for the culprits to arrive.
Hernani and his companions were doomed. It may be true that the Appellant did not aim his gun at the
deceased but the same is peu de chose. By his overt acts, in unison with the other Accused and his
kinship with Jonathan and Edzel, We are convinced that he conspired with Jose Talanquines, Jr. and the
other Accused to achieve a common purpose to kill Hernani and Eduardo. 46 (Emphasis and underscoring
supplied)

Petitioner's failure to assist the victims after the shooting reinforces this Court's appreciation of community of
design between him and his co-accused to harm the victims. That it was he who first officially reported the
shooting to the police station47 does not make him any less a conspirator. Voluntary surrender and non-flight do
not conclusively prove innocence. 48 Besides, a conspirator who wants to extricate himself from criminal liability
usually performs an overt act to dissociate or detach himself from the unlawful plan to commit the felony while
the commission of the felony is in progress.49 In petitioner's case, he reported the shooting incident after it had
already taken place. In legal contemplation, there was no longer a conspiracy to be repudiated since it had
already materialized.50

Contrary to petitioner's assertion,51 the appellate court did not err in appreciating the presence of conspiracy
despite its finding that there was no evident premeditation. This Court's pronouncement that conspiracy
presupposes the existence of evident premeditation 52 does not necessarily imply that the converse ─ that evident
premeditation presupposes the existence of a conspiracy ─ is true. In any event, a link between conspiracy and
evident premeditation is presumed only where the conspiracy is directly established and not where conspiracy is
only implied, as in the present case.53

Neither did the appellate court err in finding the presence of treachery. Treachery, under Article 14, paragraph
16 of the Revised Penal Code, is present "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."

What is decisive in treachery is that "the attack was executed in such a manner as to make it impossible for the
victim to retaliate."54 In the case at bar, petitioner, a policeman, and his co-accused were armed with two M-16
armalites and a revolver. The victim and his companions were not armed. 55 The attack was sudden and
unexpected,56 and the victim was already kneeling in surrender when he was shot the second time. Clearly, the
victim and his companion Eduardo had no chance to defend themselves or retaliate.

Petitioner nevertheless argues that he not being the trigger man, it is not logical nor legal to hold him guilty of
treachery.57 This argument falls in the face of the settled doctrine that once conspiracy is established, the act of
one is the act of all even if not all actually hit and killed the victim. 58

As for petitioner's invocation of the mitigating circumstance of "immediate vindication of a grave offense," it fails.
For such mitigating circumstance to be credited, the act should be, following Article 13, paragraph 5 of the
Revised Penal Code, "committed in the immediate vindication of a grave offense to the one committing the
felony (delito), his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters,
or relatives by affinity within the same degree."59 The offense committed on Edzel was "hitting" his ear with
a stick60 (according to Jesus), a bamboo pole (according to Edzel).61 By Edzel's own clarification, "[he] was hit at
[his] ear, not on [his] head."62 That act would certainly not be classified as "grave offense." And Edzel is
petitioner's nephew, hence, not a relative by affinity "within the same degree" contemplated in Article 13,
paragraph 5 of the Revised Penal Code.

WHEREFORE, the petition is DISMISSED and the appellate court's decision is AFFIRMED.

Costs against petitioner.

SO ORDERED.

Puno*,C.J., Carpio*** , Tinga, Velasco, Jr., JJ., concur.

Quisumbing**, J., on leave.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 181409               February 11, 2010

INTESTATE ESTATE OF MANOLITA GONZALES VDA. DE CARUNGCONG, represented by MEDIATRIX

CARUNGCONG, as Administratrix, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES and WILLIAM SATO, Respondents.

DECISION

CORONA, J.:

Article 332 of the Revised Penal Code provides:

ART. 332. Persons exempt from criminal liability. – No criminal, but only civil liability shall result from the
commission of the crime of theft, swindling, or malicious mischief committed or caused mutually by the following
persons:

1. Spouses, ascendants and descendants, or relatives by affinity in the same line;

2. The widowed spouse with respect to the property which belonged to the deceased spouse before the
same shall have passed into the possession of another; and

3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together.

The exemption established by this article shall not be applicable to strangers participating in the commission of
the crime. (emphasis supplied)

For purposes of the aforementioned provision, is the relationship by affinity created between the husband and
the blood relatives of his wife (as well as between the wife and the blood relatives of her husband) dissolved by
the death of one spouse, thus ending the marriage which created such relationship by affinity? Does the
beneficial application of Article 332 cover the complex crime of estafa thru falsification?

Mediatrix G. Carungcong, in her capacity as the duly appointed administratrix 1 of petitioner intestate estate of her
deceased mother Manolita Gonzales vda. de Carungcong, filed a complaint-affidavit 2 for estafa against her
brother-in-law, William Sato, a Japanese national. Her complaint-affidavit read:

I, MEDIATRIX CARUNGCONG Y GONZALE[S], Filipino, of legal age, single, and resident of Unit 1111, Prince
Gregory Condominium, 105 12th Avenue, Cubao, Quezon City, after being duly sworn, depose and state that:

1. I am the duly appointed Administratrix of the Intestate Estate of Manolita Carungcong Y Gonzale[s],
docketed as Spec. Procs. No. [Q]-95-23621[,] Regional Trial Court of Quezon City, Branch 104, being
one (1) of her surviving daughters. Copy of the Letters of Administration dated June 22, 1995 is hereto
attached as Annex "A" to form an integral part hereof.

2. As such Administratrix, I am duty bound not only to preserve the properties of the Intestate Estate of
Manolita Carungcong Y Gonzale[s], but also to recover such funds and/or properties as property
belonging to the estate but are presently in the possession or control of other parties.

3. After my appointment as Administratrix, I was able to confer with some of the children of my sister
Zenaida Carungcong Sato[,] who predeceased our mother Manolita Carungcong Y Gonzales, having
died in Japan in 1991.
 4. In my conference with my nieces Karen Rose Sato and Wendy Mitsuko Sato, age[d] 27 and 24
respectively, I was able to learn that prior to the death of my mother Manolita Carungcong Y Gonzale[s],
[s]pecifically on o[r] about November 24, 1992, their father William Sato, through fraudulent
misrepresentations, was able to secure the signature and thumbmark of my mother on a Special Power
of Attorney whereby my niece Wendy Mitsuko Sato, who was then only twenty (20) years old, was made
her attorney-in-fact, to sell and dispose four (4) valuable pieces of land in Tagaytay City. Said Special
Power of Attorney, copy of which is attached as ANNEX "A" of the Affidavit of Wendy Mitsuko Sato, was
signed and thumbmark[ed] by my mother because William Sato told her that the documents she was
being made to sign involved her taxes. At that time, my mother was completely blind, having gone blind
almost ten (10) years prior to November, 1992.

5. The aforesaid Special Power of Attorney was signed by my mother in the presence of Wendy, my
other niece Belinda Kiku Sato, our maid Mana Tingzon, and Governor Josephine Ramirez who later
became the second wife of my sister’s widower William Sato.

6. Wendy Mitsuko Sato attests to the fact that my mother signed the document in the belief that they
were in connection with her taxes, not knowing, since she was blind, that the same was in fact a Special
Power of Attorney to sell her Tagaytay properties.

7. On the basis of the aforesaid Special Power of Attorney, William Sato found buyers for the property
and made my niece Wendy Mitsuko Sato sign three (3) deeds of absolute sale in favor of (a) Anita Ng
(Doc. 2194, Page No. 41, Book No. V, Series of 1992 of Notary Public Vicente B. Custodio), (b) Anita Ng
(Doc. No. 2331, Page No. 68, Book No. V, Series of 1992 of Notary Public Vicente B. Custodio) and (c)
Ruby Lee Tsai (Doc. No. II, Page No. 65, Book No. II, Series of 1993 of Notary Public Toribio D. Labid).
xxx

8. Per the statement of Wendy Mitsuko C. Sato, the considerations appearing on the deeds of absolute
sale were not the true and actual considerations received by her father William Sato from the buyers of
her grandmother’s properties. She attests that Anita Ng actually paid ₱7,000,000.00 for the property
covered by TCT No. 3148 and ₱7,034,000.00 for the property covered by TCT No. 3149. All the
aforesaid proceeds were turned over to William Sato who undertook to make the proper accounting
thereof to my mother, Manolita Carungcong Gonzale[s].

9. Again, per the statement of Wendy Mitsuko C. Sato, Ruby Lee Tsai paid ₱8,000,000.00 for the
property covered by Tax Declaration No. GR-016-0735, and the proceeds thereof were likewise turned
over to William Sato.

10. The considerations appearing on the deeds of sale were falsified as Wendy Mitsuko C. Sato has
actual knowledge of the true amounts paid by the buyers, as stated in her Affidavit, since she was the
signatory thereto as the attorney-in-fact of Manolita Carungcong Y Gonzale[s].

11. Wendy was only 20 years old at the time and was not in any position to oppose or to refuse her
father’s orders.

12. After receiving the total considerations for the properties sold under the power of attorney
fraudulently secured from my mother, which total ₱22,034,000.00, William Sato failed to account for the
same and never delivered the proceeds to Manolita Carungcong Y Gonzale[s] until the latter died on
June 8, 1994.

13. Demands have been made for William Sato to make an accounting and to deliver the proceeds of
the sales to me as Administratrix of my mother’s estate, but he refused and failed, and continues to
refuse and to fail to do so, to the damage and prejudice of the estate of the deceased Manolita
Carungcong Y Gonzale[s] and of the heirs which include his six (6) children with my sister Zenaida
Carungcong Sato. x x x3

Wendy Mitsuko Sato’s supporting affidavit and the special power of attorney allegedly issued by the deceased
Manolita Gonzales vda. de Carungcong in favor of Wendy were attached to the complaint-affidavit of Mediatrix.

In a resolution dated March 25, 1997, the City Prosecutor of Quezon City dismissed the complaint. 4 On appeal,
however, the Secretary of Justice reversed and set aside the resolution dated March 25, 1997 and directed the
City Prosecutor of Quezon City to file an Information against Sato for violation of Article 315, paragraph 3(a) of
the Revised Penal Code.5 Thus, the following Information was filed against Sato in the Regional Trial Court of
Quezon City, Branch 87:6

INFORMATION

The undersigned accuses WILLIAM SATO of the crime of ESTAFA under Article 315[,] par. 3(a) of the Revised
Penal Code, committed as follows:

That on or about the 24th day of November, 1992, in Quezon City, Philippines, the above-named accused, by
means of deceit, did, then and there, wil[l]fully, unlawfully and feloniously defraud MANOLITA GONZALES VDA.
DE CARUNGCONG in the following manner, to wit: the said accused induced said Manolita Gonzales Vda. De
Carungcong[,] who was already then blind and 79 years old[,] to sign and thumbmark a special power of attorney
dated November 24, 1992 in favor of Wendy Mitsuko C. Sato, daughter of said accused, making her believe that
said document involved only her taxes, accused knowing fully well that said document authorizes Wendy
Mitsuko C. Sato, then a minor, to sell, assign, transfer or otherwise dispose of to any person or entity of her
properties all located at Tagaytay City, as follows:

1. One Thousand Eight Hundred Seven(ty) One (1,871) square meters more or less and covered by
T.C.T. No. 3147;

2. Five Hundred Forty (540) square meters more or less and covered by T.C.T. No. 3148 with Tax
Declaration No. GR-016-0722, Cadastral Lot No. 7106;

3. Five Hundred Forty (540) square meters more or less and covered by T.C.T. No. 3149 with Tax
Declaration No. GR-016-0721, Cadastral Lot No. 7104;

4. Eight Hundred Eighty Eight (888) square meters more or less with Tax Declaration No. GR-016-1735,
Cadastral Lot No. 7062;

registered in the name of Manolita Gonzales Vda. De Carungcong, and once in the possession of the said
special power of attorney and other pertinent documents, said accused made Wendy Mitsuko Sato sign the
three (3) Deeds of Absolute Sale covering Transfer Certificate of Title [TCT] No. 3148 for ₱250,000.00, [TCT]
No. 3149 for ₱250,000.00 and [Tax Declaration] GR-016-0735 for ₱650,000.00 and once in possession of the
proceeds of the sale of the above properties, said accused, misapplied, misappropriated and converted the
same to his own personal use and benefit, to the damage and prejudice of the heirs of Manolita Gonzales Vda.
De Carungcong who died in 1994.

Contrary to law.7

Subsequently, the prosecution moved for the amendment of the Information so as to increase the amount of
damages from ₱1,150,000, the total amount stated in the deeds of sale, to ₱22,034,000, the actual amount
received by Sato.

Sato moved for the quashal of the Information, claiming that under Article 332 of the Revised Penal Code, his
relationship to the person allegedly defrauded, the deceased Manolita who was his mother-in-law, was an
exempting circumstance.

The prosecution disputed Sato’s motion in an opposition dated March 29, 2006.

In an order dated April 17, 2006, 8 the trial court granted Sato’s motion and ordered the dismissal of the criminal
case:

The Trial Prosecutor’s contention is that the death of the wife of the accused severed the relationship of affinity
between accused and his mother-in-law. Therefore, the mantle of protection provided to the accused by the
relationship is no longer obtaining.

A judicious and thorough examination of Article 332 of the Revised Penal Code convinces this Court of the
correctness of the contention of the [d]efense. While it is true that the death of Zenaida Carungcong-Sato has
extinguished the marriage of accused with her, it does not erase the fact that accused and Zenaida’s mother,
herein complainant, are still son[-in-law] and mother-in-law and they remained son[-in-law] and mother-in-law
even beyond the death of Zenaida.
Article 332(1) of the Revised Penal Code, is very explicit and states no proviso. "No criminal, but only civil
liability[,] shall result from the commission of the crime of theft, swindling or malicious mischief committed or
caused mutually by xxx 1) spouses, ascendants and descendants, or relatives by affinity in the same line."

Article 332, according to Aquino, in his Commentaries [to] Revised Penal Code, preserves family harmony and
obviates scandal, hence even in cases of theft and malicious mischief, where the crime is committed by a
stepfather against his stepson, by a grandson against his grandfather, by a son against his mother, no criminal
liability is incurred by the accused only civil (Vicente Alavare, 52 Phil. 65; Adame, CA 40 OG 12th Supp.
63; Cristobal, 84 Phil. 473).

Such exempting circumstance is applicable herein.

WHEREFORE, finding the Motion to Quash Original Information meritorious, the same is GRANTED and, as
prayed for, case is hereby DISMISSED.

SO ORDERED.9 (underlining supplied in the original)

The prosecution’s motion for reconsideration 10 was denied in an order dated June 2, 2006.11

Dissatisfied with the trial court’s rulings, the intestate estate of Manolita, represented by Mediatrix, filed a petition
for certiorari in the Court of Appeals12 which, however, in a decision13 dated August 9, 2007, dismissed it. It ruled:

[W]e sustain the finding of [the trial court] that the death of Zenaida did not extinguish the relationship by affinity
between her husband, private respondent Sato, and her mother Manolita, and does not bar the application of the
exempting circumstance under Article 332(1) of the Revised Penal Code in favor of private respondent Sato.

We further agree with the submission of the [Office of the Solicitor General (OSG)] that nothing in the law and/or
existing jurisprudence supports the argument of petitioner that the fact of death of Zenaida dissolved the
relationship by affinity between Manolita and private respondent Sato, and thus removed the protective mantle of
Article 332 of the Revised Penal Code from said private respondent; and that notwithstanding the death of
Zenaida, private respondent Sato remains to be the son-in-law of Manolita, and a brother-in-law of petitioner
administratrix. As further pointed out by the OSG, the filing of the criminal case for estafa against private
respondent Sato already created havoc among members of the Carungcong and Sato families as private
respondent’s daughter Wendy Mitsuko Sato joined cause with her aunt [Mediatrix] Carungcong y Gonzales,
while two (2) other children of private respondent, William Francis and Belinda Sato, took the side of their father.

There is a dearth of jurisprudence and/or commentaries elaborating on the provision of Article 332 of the
Revised Penal Code. However, from the plain language of the law, it is clear that the exemption from criminal
liability for the crime of swindling (estafa) under Article 315 of the Revised Penal Code applies to private
respondent Sato, as son-in-law of Manolita, they being "relatives by affinity in the same line" under Article 332(1)
of the same Code. We cannot draw the distinction that following the death of Zenaida in 1991, private
respondent Sato is no longer the son-in-law of Manolita, so as to exclude the former from the exempting
circumstance provided for in Article 332 (1) of the Revised Penal Code.

Ubi lex non distinguit nec nos distinguere debemos. Basic is the rule in statutory construction that where the law
does not distinguish, the courts should not distinguish. There should be no distinction in the application of law
where none is indicated. The courts could only distinguish where there are facts or circumstances showing that
the lawgiver intended a distinction or qualification. In such a case, the courts would merely give effect to the
lawgiver’s intent. The solemn power and duty of the Court to interpret and apply the law does not include the
power to correct by reading into the law what is not written therein.

Further, it is an established principle of statutory construction that penal laws are strictly construed against the
State and liberally in favor of the accused. Any reasonable doubt must be resolved in favor of the accused. In
this case, the plain meaning of Article 332 (1) of the Revised Penal Code’s simple language is most favorable to
Sato.14

The appellate court denied reconsideration. 15 Hence, this petition.

Petitioner contends that the Court of Appeals erred in not reversing the orders of the trial court. It cites the
commentary of Justice Luis B. Reyes in his book on criminal law that the rationale of Article 332 of the Revised
Penal Code exempting the persons mentioned therein from criminal liability is that the law recognizes the
presumed co-ownership of the property between the offender and the offended party. Here, the properties
subject of the estafa case were owned by Manolita whose daughter, Zenaida Carungcong-Sato (Sato’s wife),
died on January 28, 1991. Hence, Zenaida never became a co-owner because, under the law, her right to
the three parcels of land could have arisen only after her mother’s death. Since
Zenaida predeceased her mother, Manolita, no such right came about and the mantle of protection
provided to Sato by the relationship no longer existed.

Sato counters that Article 332 makes no distinction that the relationship may not be invoked in case of death of
the spouse at the time the crime was allegedly committed. Thus, while the death of Zenaida extinguished her
marriage with Sato, it did not dissolve the son-in-law and mother-in-law relationship between Sato and Zenaida’s
mother, Manolita.

For his part, the Solicitor General maintains that Sato is covered by the exemption from criminal liability provided
under Article 332. Nothing in the law and jurisprudence supports petitioner’s claim that Zenaida’s death
dissolved the relationship by affinity between Sato and Manolita. As it is, the criminal case against Sato created
havoc among the members of the Carungcong and Sato families, a situation sought to be particularly avoided by
Article 332’s provision exempting a family member committing theft, estafa or malicious mischief from criminal
liability and reducing his/her liability to the civil aspect only.

The petition has merit.

The resolution of this case rests on the interpretation of Article 332 of the Revised Penal Code. In particular, it
calls for the determination of the following: (1) the effect of death on the relationship by affinity created between
a surviving spouse and the blood relatives of the deceased spouse and (2) the extent of the coverage of Article
332.

Effect of Death on Relationship By Affinity as Absolutory Cause

Article 332 provides for an absolutory cause16in the crimes of theft, estafa (or swindling) and malicious mischief.
It limits the responsibility of the offender to civil liability and frees him from criminal liability by virtue of his
relationship to the offended party.

In connection with the relatives mentioned in the first paragraph, it has been held that included in the exemptions
are parents-in-law, stepparents and adopted children. 17 By virtue thereof, no criminal liability is incurred by the
stepfather who commits malicious mischief against his stepson; 18 by the stepmother who commits theft against
her stepson;19 by the stepfather who steals something from his stepson; 20 by the grandson who steals from his
grandfather;21 by the accused who swindles his sister-in-law living with him; 22 and by the son who steals a ring
from his mother.23

Affinity is the relation that one spouse has to the blood relatives of the other spouse. It is a relationship by
marriage or

a familial relation resulting from marriage. 24 It is a fictive kinship, a fiction created by law in connection with the
institution of marriage and family relations.

If marriage gives rise to one’s relationship by affinity to the blood relatives of one’s spouse, does the
extinguishment of marriage by the death of the spouse dissolve the relationship by affinity?

Philippine jurisprudence has no previous encounter with the issue that confronts us in this case. That is why the
trial and appellate courts acknowledged the "dearth of jurisprudence and/or commentaries" on the matter. In
contrast, in the American legal system, there are two views on the subject. As one Filipino author observed:

In case a marriage is terminated by the death of one of the spouses, there are conflicting views. There are some
who believe that relationship by affinity is not terminated whether there are children or not in the marriage
(Carman vs. Newell, N.Y. 1 [Denio] 25, 26). However, the better view supported by most judicial authorities in
other jurisdictions is that, if the spouses have no living issues or children and one of the spouses dies, the
relationship by affinity is dissolved. It follows the rule that relationship by affinity ceases with the dissolution of
the marriage which produces it (Kelly v. Neely, 12 Ark. 657, 659, 56 Am Dec. 288). On the other hand, the
relationship by affinity is continued despite the death of one of the spouses where there are living issues or
children of the marriage "in whose veins the blood of the parties are commingled, since the relationship of affinity
was continued through the medium of the issue of the marriage" (Paddock vs. Wells, 2 Barb. Ch. 331, 333). 25
The first view (the terminated affinity view) holds that relationship by affinity terminates with the dissolution of the
marriage either by death or divorce which gave rise to the relationship of affinity between the parties. 26 Under this
view, the relationship by affinity is simply coextensive and coexistent with the marriage that produced it. Its
duration is indispensably and necessarily determined by the marriage that created it. Thus, it exists only for so
long as the marriage subsists, such that the death of a spouse ipso facto ends the relationship by affinity of the
surviving spouse to the deceased spouse’s blood relatives.

The first view admits of an exception. The relationship by affinity continues even after the death of one spouse
when there is a surviving issue.27 The rationale is that the relationship is preserved because of the living issue of
the marriage in whose veins the blood of both parties is commingled. 28

The second view (the continuing affinity view) maintains that relationship by affinity between the surviving
spouse and the kindred of the deceased spouse continues even after the death of the deceased spouse,
regardless of whether the marriage produced children or not. 29 Under this view, the relationship by affinity
endures even after the dissolution of the marriage that produced it as a result of the death of one of the parties
to the said marriage. This view considers that, where statutes have indicated an intent to benefit step-relatives or
in-laws, the "tie of affinity" between these people and their relatives-by-marriage is not to be regarded as
terminated upon the death of one of the married parties. 30

After due consideration and evaluation of the relative merits of the two views, we hold that the second view is
more consistent with the language and spirit of Article 332(1) of the Revised Penal Code.

First, the terminated affinity view is generally applied in cases of jury disqualification and incest. 31 On the
other hand, the continuing affinity view has been applied in the interpretation of laws that intend to
benefit step-relatives or in-laws. Since the purpose of the absolutory cause in Article 332(1) is meant to
be beneficial to relatives by affinity within the degree covered under the said provision, the continuing
affinity view is more appropriate.

Second, the language of Article 332(1) which speaks of "relatives by affinity in the same line" is couched
in general language. The legislative intent to make no distinction between the spouse of one’s living child
and the surviving spouse of one’s deceased child (in case of a son-in-law or daughter-in-law with respect
to his or her parents-in-law)32 can be drawn from Article 332(1) of the Revised Penal Code without doing
violence to its language.

Third, the Constitution declares that the protection and strengthening of the family as a basic
autonomous social institution are policies of the State and that it is the duty of the State to strengthen the
solidarity of the family.33 Congress has also affirmed as a State and national policy that courts shall
preserve the solidarity of the family.34 In this connection, the spirit of Article 332 is to preserve family
harmony and obviate scandal. 35 The view that relationship by affinity is not affected by the death of one
of the parties to the marriage that created it is more in accord with family solidarity and harmony.

Fourth, the fundamental principle in applying and in interpreting criminal laws is to resolve all doubts in
favor of the accused. In dubio pro reo. When in doubt, rule for the accused.36 This is in consonance with
the constitutional guarantee that the accused shall be presumed innocent unless and until his guilt is
established beyond reasonable doubt.37

Intimately related to the in dubio pro reo principle is the rule of lenity.38 The rule applies when the court is faced
with two possible interpretations of a penal statute, one that is prejudicial to the accused and another that is
favorable to him. The rule calls for the adoption of an interpretation which is more lenient to the accused.

Lenity becomes all the more appropriate when this case is viewed through the lens of the basic purpose of
Article 332 of the Revised Penal Code to preserve family harmony by providing an absolutory cause. Since the
goal of Article 332(1) is to benefit the accused, the Court should adopt an application or interpretation that is
more favorable to the accused. In this case, that interpretation is the continuing affinity view.

Thus, for purposes of Article 332(1) of the Revised Penal Code, we hold that the relationship by affinity created
between the surviving spouse and the blood relatives of the deceased spouse survives the death of either party
to the marriage which created the affinity. (The same principle applies to the justifying circumstance of defense
of one’s relatives under Article 11[2] of the Revised Penal Code, the mitigating circumstance of immediate
vindication of grave offense committed against one’s relatives under Article 13[5] of the same Code and the
absolutory cause of relationship in favor of accessories under Article 20 also of the same Code.)
Scope of Article 332 of The Revised Penal Code

The absolutory cause under Article 332 of the Revised Penal Code only applies to the felonies of theft, swindling
and malicious mischief. Under the said provision, the State condones the criminal responsibility of the offender in
cases of theft, swindling and malicious mischief. As an act of grace, the State waives its right to prosecute the
offender for the said crimes but leaves the private offended party with the option to hold the offender civilly liable.

However, the coverage of Article 332 is strictly limited to the felonies mentioned therein. The plain, categorical
and unmistakable language of the provision shows that it applies exclusively to the simple crimes of theft,
swindling and malicious mischief. It does not apply where any of the crimes mentioned under Article 332 is
complexed with another crime, such as theft through falsification or estafa through falsification. 39

The Information against Sato charges him with estafa. However, the real nature of the offense is determined by
the facts alleged in the Information, not by the designation of the offense. 40 What controls is not the title of the
Information or the designation of the offense but the actual facts recited in the Information. 41 In other words, it is
the recital of facts of the commission of the offense, not the nomenclature of the offense, that determines the
crime being charged in the Information. 42 It is the exclusive province of the court to say what the crime is or what
it is named.43 The determination by the prosecutor who signs the Information of the crime committed is merely an
opinion which is not binding on the court.44

A reading of the facts alleged in the Information reveals that Sato is being charged not with simple estafa but
with the complex crime of estafa through falsification of public documents. In particular, the Information states
that Sato, by means of deceit, intentionally defrauded Manolita committed as follows:

(a) Sato presented a document to Manolita (who was already blind at that time) and induced her to sign
and thumbmark the same;

(b) he made Manolita believe that the said document was in connection with her taxes when it was in
fact a special power of attorney (SPA) authorizing his minor daughter Wendy to sell, assign, transfer or
otherwise dispose of Manolita’s properties in Tagaytay City;

(c) relying on Sato’s inducement and representation, Manolita signed and thumbmarked the SPA in favor
of Wendy Mitsuko Sato, daughter of Sato;

(d) using the document, he sold the properties to third parties but he neither delivered the proceeds to
Manolita nor accounted for the same and

(d) despite repeated demands, he failed and refused to deliver the proceeds, to the damage and
prejudice of the estate of Manolita.

The above averments in the Information show that the estafa was committed by attributing to Manolita (who
participated in the execution of the document) statements other than those in fact made by her. Manolita’s acts
of signing the SPA and affixing her thumbmark to that document were the very expression of her specific
intention that something be done about her taxes. Her signature and thumbmark were the affirmation of her
statement on such intention as she only signed and thumbmarked the SPA (a document which she could not
have read) because of Sato’s representation that the document pertained to her taxes. In signing and
thumbmarking the document, Manolita showed that she believed and adopted the representations of Sato as to
what the document was all about, i.e., that it involved her taxes. Her signature and thumbmark, therefore, served
as her conformity to Sato’s proposal that she execute a document to settle her taxes.

Thus, by inducing Manolita to sign the SPA, Sato made it appear that Manolita granted his daughter Wendy a
special power of attorney for the purpose of selling, assigning, transferring or otherwise disposing of Manolita’s
Tagaytay properties when the fact was that Manolita signed and thumbmarked the document presented by Sato
in the belief that it pertained to her taxes. Indeed, the document itself, the SPA, and everything that it contained
were falsely attributed to Manolita when she was made to sign the SPA.

Moreover, the allegations in the Information that

(1) "once in the possession of the said special power of attorney and other pertinent documents, [Sato]
made Wendy Mitsuko Sato sign the three (3) Deeds of Absolute Sale" and
 (2) "once in possession of the proceeds of the sale of the above properties, said accused, misapplied,
misappropriated and converted the same to his own personal use and benefit" raise the presumption that
Sato, as the possessor of the falsified document and the one who benefited therefrom, was the author
thereof.

Furthermore, it should be noted that the prosecution moved for the amendment of the Information so as to
increase the amount of damages from ₱1,150,000 to ₱22,034,000. This was granted by the trial court and was
affirmed by the Court of Appeals on certiorari. This meant that the amended Information would now state that,
while the total amount of consideration stated in the deeds of absolute sale was only ₱1,150,000, Sato actually
received the total amount of ₱22,034,000 as proceeds of the sale of Manolita’s properties. 45 This also meant that
the deeds of sale (which were public documents) were also falsified by making untruthful statements as to the
amounts of consideration stated in the deeds.

Therefore, the allegations in the Information essentially charged a crime that was not simple estafa. Sato
resorted to falsification of public documents (particularly, the special power of attorney and the deeds of sale) as
a necessary means to commit the estafa.

Since the crime with which respondent was charged was not simple estafa but the complex crime of estafa
through falsification of public documents, Sato cannot avail himself of the absolutory cause provided under
Article 332 of the Revised Penal Code in his favor.

Effect of Absolutory Cause Under Article 332 on Criminal Liability For The Complex Crime of Estafa
Through Falsification of Public Documents

The question may be asked: if the accused may not be held criminally liable for simple estafa by virtue of the
absolutory cause under Article 332 of the Revised Penal Code, should he not be absolved also from criminal
liability for the complex crime of estafa through falsification of public documents? No.

True, the concurrence of all the elements of the two crimes of estafa and falsification of public document is
required for a proper conviction for the complex crime of estafa through falsification of public document. That is
the ruling in Gonzaludo v. People. 46 It means that the prosecution must establish that the accused resorted to the
falsification of a public document as a necessary means to commit the crime of estafa.

However, a proper appreciation of the scope and application of Article 332 of the Revised Penal Code and of the
nature of a complex crime would negate exemption from criminal liability for the complex crime of estafa through
falsification of public documents, simply because the accused may not be held criminally liable for simple estafa
by virtue of the absolutory cause under Article 332.

The absolutory cause under Article 332 is meant to address specific crimes against property, namely, the simple
crimes of theft, swindling and malicious mischief. Thus, all other crimes, whether simple or complex, are not
affected by the absolutory cause provided by the said provision. To apply the absolutory cause under Article 332
of the Revised Penal Code to one of the component crimes of a complex crime for the purpose of negating the
existence of that complex crime is to unduly expand the scope of Article 332. In other words, to apply Article 332
to the complex crime of estafa through falsification of public document would be to mistakenly treat the crime of
estafa as a separate simple crime, not as the component crime that it is in that situation. It would wrongly
consider the indictment as separate charges of estafa and falsification of public document, not as a single
charge for the single (complex) crime of estafa through falsification of public document.

Under Article 332 of the Revised Penal Code, the State waives its right to hold the offender criminally liable for
the simple crimes of theft, swindling and malicious mischief and considers the violation of the juridical right to
property committed by the offender against certain family members as a private matter and therefore subject
only to civil liability. The waiver does not apply when the violation of the right to property is achieved through
(and therefore inseparably intertwined with) a breach of the public interest in the integrity and presumed
authenticity of public documents. For, in the latter instance, what is involved is no longer simply the
property right of a family relation but a paramount public interest.

The purpose of Article 332 is to preserve family harmony and obviate scandal. 47 Thus, the action provided under
the said provision simply concerns the private relations of the parties as family members and is limited to the civil
aspect between the offender and the offended party. When estafa is committed through falsification of a public
document, however, the matter acquires a very serious public dimension and goes beyond the respective rights
and liabilities of family members among themselves. Effectively, when the offender resorts to an act that
breaches public interest in the integrity of public documents as a means to violate the property rights of a family
member, he is removed from the protective mantle of the absolutory cause under Article 332.

In considering whether the accused is liable for the complex crime of estafa through falsification of public
documents, it would be wrong to consider the component crimes separately from each other. While there may
be two component crimes (estafa and falsification of documents), both felonies are animated by and result from
one and the same criminal intent for which there is only one criminal liability. 48 That is the concept of a complex
crime. In other words, while there are two crimes, they are treated only as one, subject to a single criminal
liability.

As opposed to a simple crime where only one juridical right or interest is violated (e.g., homicide which violates
the right to life, theft which violates the right to property), 49 a complex crime constitutes a violation of diverse
juridical rights or interests by means of diverse acts, each of which is a simple crime in itself. 50 Since only a
single criminal intent underlies the diverse acts, however, the component crimes are considered as elements of
a single crime, the complex crime. This is the correct interpretation of a complex crime as treated under Article
48 of the Revised Penal Code.

In the case of a complex crime, therefore, there is a formal (or ideal) plurality of crimes where the same criminal
intent results in two or more component crimes constituting a complex crime for which there is only one criminal
liability.51 (The complex crime of estafa through falsification of public document falls under this category.) This is
different from a material (or real) plurality of crimes where different criminal intents result in two or more crimes,
for each of which the accused incurs criminal liability. 52 The latter category is covered neither by the concept of
complex crimes nor by Article 48.

Under Article 48 of the Revised Penal Code, the formal plurality of crimes (concursus delictuorum or concurso
de delitos) gives rise to a single criminal liability and requires the imposition of a single penalty:

Although [a] complex crime quantitatively consists of two or more crimes, it is only one crime in law on which a
single penalty is imposed and the two or more crimes constituting the same are more conveniently termed as
component crimes.53 (emphasis supplied)

—∞——∞——∞—

In [a] complex crime, although two or more crimes are actually committed, they constitute only one crime in the
eyes of the law as well as in the conscience of the offender. The offender has only one criminal intent. Even in
the case where an offense is a necessary means for committing the other, the evil intent of the offender is only
one.54

For this reason, while a conviction for estafa through falsification of public document requires that the elements
of both estafa and falsification exist, it does not mean that the criminal liability for estafa may be determined and
considered independently of that for falsification. The two crimes of estafa and falsification of public documents
are not separate crimes but component crimes of the single complex crime of estafa and falsification of public
documents.

Therefore, it would be incorrect to claim that, to be criminally liable for the complex crime of estafa through
falsification of public document, the liability for estafa should be considered separately from the liability for
falsification of public document. Such approach would disregard the nature of a complex crime and contradict
the letter and spirit of Article 48 of the Revised Penal Code. It would wrongly disregard the distinction between
formal plurality and material plurality, as it improperly treats the plurality of crimes in the complex crime of estafa
through falsification of public document as a mere material plurality where the felonies are considered as
separate crimes to be punished individually.

Falsification of Public Documents May Be a Necessary Means for Committing Estafa Even Under Article
315 (3[a])

The elements of the offense of estafa punished under Article 315 (3[a]) of the Revised Penal Code are as
follows:

(1) the offender induced the offended party to sign a document;

(2) deceit was employed to make the offended party sign the document;
 (3) the offended party personally signed the document and

(4) prejudice is caused to the offended party.

While in estafa under Article 315(a) of the Revised Penal Code, the law does not require that the document be
falsified for the consummation thereof, it does not mean that the falsification of the document cannot be
considered as a necessary means to commit the estafa under that provision.

The phrase "necessary means" does not connote indispensable means for if it did, then the offense as a
"necessary means" to commit another would be an indispensable element of the latter and would be an
ingredient thereof.55 In People v. Salvilla,56 the phrase "necessary means" merely signifies that one crime is
committed to facilitate and insure the commission of the other. 57 In this case, the crime of falsification of public
document, the SPA, was such a "necessary means" as it was resorted to by Sato to facilitate and carry out more
effectively his evil design to swindle his mother-in-law. In particular, he used the SPA to sell the Tagaytay
properties of Manolita to unsuspecting third persons.

When the offender commits in a public document any of the acts of falsification enumerated in Article 171 of the
Revised Penal Code as a necessary means to commit another crime, like estafa, theft or malversation, the two
crimes form a complex crime under Article 48 of the same Code. 58 The falsification of a public, official or
commercial document may be a means of committing estafa because, before the falsified document is actually
utilized to defraud another, the crime of falsification has already been consummated, damage or intent to cause
damage not being an element of the crime of falsification of a public, official or commercial document. 59 In other
words, the crime of falsification was committed prior to the consummation of the crime of estafa. 60 Actually
utilizing the falsified public, official or commercial document to defraud another is estafa. 61 The damage to
another is caused by the commission of estafa, not by the falsification of the document. 62 1avvphi1

Applying the above principles to this case, the allegations in the Information show that the falsification of public
document was consummated when Sato presented a ready-made SPA to Manolita who signed the same as a
statement of her intention in connection with her taxes. While the falsification was consummated upon the
execution of the SPA, the consummation of the estafa occurred only when Sato later utilized the SPA. He did so
particularly when he had the properties sold and thereafter pocketed the proceeds of the sale. Damage or
prejudice to Manolita was caused not by the falsification of the SPA (as no damage was yet caused to the
property rights of Manolita at the time she was made to sign the document) but by the subsequent use of the
said document. That is why the falsification of the public document was used to facilitate and ensure (that is, as
a necessary means for) the commission of the estafa.

The situation would have been different if Sato, using the same inducement, had made Manolita sign a deed of
sale of the properties either in his favor or in favor of third parties. In that case, the damage would have been
caused by, and at exactly the same time as, the execution of the document, not prior thereto. Therefore, the
crime committed would only have been the simple crime of estafa. 63 On the other hand, absent any inducement
(such as if Manolita herself had been the one who asked that a document pertaining to her taxes be prepared for
her signature, but what was presented to her for her signature was an SPA), the crime would have only been the
simple crime of falsification.64

WHEREFORE, the petition is hereby GRANTED. The decision dated August 9, 2007 and the resolution dated
January 23, 2008 of the Court of Appeals in CA-G.R. S.P. No. 95260 are REVERSED and SET ASIDE. The
case is remanded to the trial court which is directed to try the accused with dispatch for the complex crime of
estafa through falsification of public documents.

SO ORDERED.

RENATO C. CORONA
Associate Justice
Chairperson

WE CONCUR:

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice
 DIOSDADO M. PERALTA JOSE C. MENDOZA
Associate Justice Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

 An absolutory cause is a circumstance which is present prior to or simultaneously with the offense by
16

reason of which the accused who acts with criminal intent, freedom and intelligence does not incur
criminal liability for an act that constitutes a crime (Regalado, Florenz, Criminal Law Conspectus, Third
Edition, 61-62 [2007]).

 Back v. Back, L.R.A. 1916C,752, 148 Iowa 223, 125 N.W. 1009, Am.Ann.Cas. 1912B, 1025
26

citing Blodget v. Brinsmaid, 9 Vt. 27; Noble v. State, 22 Ohio St. 541; State v. Brown, 47 Ohio St. 102, 23
N. E. 747, 21 Am. St. Rep. 790; Wilson v. State, 100 Tenn. 596, 46 S. W. 451, 66 Am. St. Rep.
789; Johnson v. State, 20 Tex. App. 609, 54 Am. Rep. 535; Pegues v. Baker, 110 Ala. 251, 17 South.
943; Tagert v. State, 143 Ala. 88, 39 South. 293, 111 Am. St. Rep. 17;  Bigelow v. Sprague, 140 Mass.
425, 5 N. E. 144; Vannoy v. Givens, 23 N. J. Law, 201; 1 Bishop, New Crim. Procedure, § 901; 26 Cyc.
845.

27
 In this connection, one of the commentators on the Revised Penal Code wrote:

Death of the spouse terminates the relationship by affinity (Kelly v. Neely, 12 Ark. 6[5]7, 659, 56
AmD 288; Chase v. Jennings, 38 Me. 44, 45) unless the marriage has resulted in issue who is
still living, in which case the relationship of affinity continues (Dearmond v. Dearmond, 10 Ind.
191; Bigelow v. Sprague, 140 Mass. 425, 5 NE 144).

See Reyes, Luis B., Revised Penal Code, Book I, Fifteenth Edition Revised 188, (2001).

 In re Bourdeux’ Estate, supra. This view has been adopted and applied in Security Union Casualty Co.
30

v. Kelly, Tex.Civ.App., 299 S.W. 286; American General Insurance Co. v. Richardson, Tex.Civ.App., 132
S.W.2d 161; Simcoke v. Grand Lodge of A. O. U. W. of Iowa, 84 Iowa 383, 51 N.W. 8, 15 L.R.A.
114; Faxon v. Grand Lodge Brotherhood of Locomotive Firemen and M. E. Rhea, 87 Ill.App.
262; McGaughey v. Grand Lodge A. O. U. W. of State of Minnesota, 148 Minn. 136, 180 N.W.
1001; Hernandez v. Supreme Forest Woodmen Circle, Tex.Civ.App., 80 S.W.2d 346; Renner v.
Supreme Lodge of Bohemian Slavonian Benevolent Society, 89 Wis. 401, 62 N.W. 80 following Jones v.
Mangan, 151 Wis. 215, 138 N.W. 618; Steele v. Suwalski, 7 Cir., 75 F.2d 885, 99 A.L.R. 588; Benefield
v. United States, D.C., 58 F.Supp. 904; Lewis v. O'Hair, Tex.Civ.App., 130 S.W.2d 379.

 Indeed, Kelly v. Neely, supra note 27, Paddock v. Wells, 2 Barb. Ch. 331, 333, Chase v.

31

Jennings, supra note 27, Dearmond v. Dearmond, supra note 27 and Bigelow v. Sprague, supra note 27

are all jury disqualification cases.
 SECOND DIVISION

March 18, 2015

G.R. No. 211159

PEOPLE OF THE PHILIPPINES, Plaintiff-appellee,

vs.
MARCELINO OLOVERIO, Accused-appellant.

DECISION

LEONEN,J.:

Passion and obfuscation as a mitigating circumstance need not be felt only in the seconds before the
commission of the crime. It may build up and strengthen over time until it can no longer be repressed and will
ultimately motivate the commission of the crime.

This is a review of the Decision  dated January 29, 2013 of the Court of Appeals which affirmed the conviction of
1

accused-appellant Marcelino Oloverio (Oloverio) of murder and sentenced him to reclusion perpetua and the
payment of civil indemnity and damages.

An Information was filed charging Oloverio with the crime of murder.  The Information reads:
2

That at around 2:00 o’clock in the afternoon of October 2, 2003, at Brgy. Belen, Palompon, Leyte, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused met the victim, DOLFO GULANE,
while the latter was walking on his lonesome, and with treachery, did then and there willfully, unlawfully and
feloniously, stab the said victim using a sharp-pointed bolo, which the accused has provided for the purpose,
thereby hitting and inflicting mortal wounds on the different parts of the body of the aforesaid victim causing his
instantaneous death.

CONTRARY TO LAW. 3

Oloverio was arraigned on January 25, 2005, where he pleaded not guilty. Trial on the merits ensued. 4

According to the prosecution, on October 2, 2003, at around 3:00 p.m., Rudipico Pogay (Pogay) and Dominador
Panday (Panday) saw Rodulfo Gulane walking about five (5) meters away from them with Oloverio trailing
behind him. Oloverio allegedly tapped Gulane’s right shoulder and hacked him on the chest and extremities with
a bolo until Gulane collapsed on the ground. Oloverio then allegedly took Gulane’s money from his pocket. 5

Pogay heard Oloverio shouting the words, "Patay na ang datu sa Brgy. San Pablo!" ("The rich man in San Pablo
is already dead!") Gulane managed to tell Oloverio, "Man luba ka man, Ling?" ("Ling, why did you stab me?")
After, Gulane died. Panday proceeded to inform Gulane’s family of the incident. 6

In his defense, Oloverio alleged that at the time and day of the incident, Gulane had been accusing him of
having an incestuous relationship with his mother. He allegedly kept his cool and told Gulane to go home, but
the latter continued to mock him by asking in a loud voice, "How many times did you have sexual intercourse
with your mother?" He allegedly asked Gulane to go home again but the latter angrily replied, "Who are you to
tell me to go home?" 7
Gulane allegedly attempted to draw his bolo but Oloverio stopped him by drawing his own bolo. They grappled
with it, and eventually, Oloverio ended up stabbing Gulane, which resulted in the latter’s death. Accompanied by
a barangay tanod, Oloverio went to the municipal hall to surrender to the authorities. He admitted that he
stabbed Gulane because he could no longer bear the insulting remarks against him. 8

Romulo Lamoste (Lamoste), then Barangay Captain of Barangay Belen, Palompon, Leyte, alleged that Gulane
and Oloverio had an altercation before the incident. He alleged that Oloverio’s daughter had once confided to
Oloverio that Gulane wanted to touch her private parts. About a month later, he allegedly heard Gulane ask
Oloverio "in a joking manner about his incestuous relationship with his mother."  Oloverio allegedly got mad and
9

they ended up fighting, but Lamoste was able to subdue them. He, however, admitted that he was not present
during the incident. 10

On January 29, 2010, Branch 17 of the Regional Trial Court of Palompon, Leyte rendered its Decision  finding
11

Oloverio guilty beyond reasonable doubt of murder.

The trial court ruled that the mitigating circumstance of passion and obfuscation was not present in this case
since it could not co-exist with the presence of treachery. The only mitigating circumstance it found present was
of voluntary surrender. As murder was punishable by reclusion perpetua to death, it imposed the lesser penalty
of reclusion perpetua.  The dispositive portion reads:
12

Wherefore, as to the proffer of mitigating circumstances of Passion and Obfuscation as defined by Art. 13 of the
Revised Penal Code cannot be appreciated, what can be appreciated only is the voluntary surrender which is
covered by Art. 13 par. 7 of the Revised Penal Code.

So from the evidence extant from the records, the court finds the accused Marcelino Oloverio, GUILTY of the
crime of Murder as the evidence proved the guilt of the accused beyond reasonable doubt that he committed the
crime of Murder as defined and penalized under Article 248 of the Revised Penal Code and therefore sentences
him to suffer the penalty of Reclusion Perpetua. The voluntary surrender is none availing as reclusion perpetua
is not a divisible penalty as defined by the Revised Penal Code.

The accused Marcelino Oloverio is also ordered to pay Fifty Thousand (50,000.00) Pesos damages to the heirs
of Rodulfo Gulane.

SO ORDERED. 13

The case records were forwarded to the Court of Appeals on May 6, 2010. 14

On January 29, 2013, the Court of Appeals rendered its Decision  affirming the conviction. It found that Oloverio
15

failed to establish with clear and convincing evidence that Gulane "committed an unlawful act which sufficiently
caused him to act with passion and obfuscation." 16

The Court of Appeals found that Gulane’s act of insulting Oloverio before the stabbing was unsupported by
evidence.  Instead, it found that treachery was present since Gulane was unsuspecting when Oloverio suddenly
17

attacked him. The court also noted that Gulane was already 83 years old and might not have had a chance to
defend himself.18

The Court of Appeals also affirmed the trial court’s imposition of the lesser penalty of reclusion perpetua in view
of Oloverio’s voluntary surrender.  It, however, modified the award of damages to include moral, temperate, and
19

exemplary damages.  The dispositive portion reads:

20

WHEREFORE, in view of the foregoing, the appeal is DENIED. The Decision dated January 29, 2010 of the
RTC, Branch 17, of Palompon, Leyte in Criminal Case No. P-1163 finding appellant guilty beyond reasonable
doubt of the crime of murder is AFFIRMED with the MODIFICATION that with respect to the trial court’s award
of Php50,000.00 damages, this should be understood to represent the civil indemnity. Appellant is further
ordered to pay the heirs of Rodulfo Gulane Php50,000.00 as moral damages, Php25,000.00 as temperate
damages, and Php30,000.00 as exemplary damages. All damages shall be subject to interest at the legal rate of
6% per annum from the finality of this Decision until fully paid.

SO ORDERED.  (Emphasis in the original)

21
On March 18, 2013, Oloverio filed his Notice of Appeal,  which was favorably acted upon by the Court of
22

Appeals. 23

In compliance with this court’s Resolution  dated April 2, 2014, Oloverio and the Office of the Solicitor General
24

separately manifested that they were no longer filing their supplemental briefs before this court since they have
already stated their arguments in their briefs before the Court of Appeals.25

Upon review of the case records, this court resolves to modify the Decision of the Court of Appeals.

Accused-appellant Marcelino Oloverio is guilty only of homicide under Article 249 of the Revised Penal Code. He
is entitled to the mitigating circumstances of passion and obfuscation and of voluntary surrender.

Murder is the act of killing a person under the circumstances mentioned in Article 248 of the Revised Penal
Code. The provision states:

ARTICLE 248. Murder. — Any person who, not falling within the provisions of article 246  shall kill another, shall
26

be guilty of murder and shall be punished by reclusion temporal in its maximum period to death, if committed
with any of the following attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to
weaken the defense or of means or persons to insure or afford impunity.

2. In consideration of a price, reward or promise.

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a
street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means
involving great waste and ruin.

4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of
a volcano, destructive cyclone, epidemic, or any other public calamity.

5. With evident premeditation.

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at
his person or corpse.

To be able to sustain a conviction for murder, the prosecution must prove the following elements:

1. That a person was killed.

2. That the accused killed him.

3. That the killing was attended by any of the qualifying circumstances mentioned in Art. 248.

4. The killing is not parricide or infanticide. 27

For murder or homicide, the prosecution must also be able to prove the accused had the intent to kill. 28

The witnesses, Panday and Pogay, positively identified accused-appellant as the one who stabbed Gulane with
a bolo.

Panday stated:

Q: When you saw Rodulfo Gulane walking alone towards Brgy. San Pablo, Palompon, Leyte, do you recall of
any untoward incident that took place?

A: Yes, sir, I saw the incident.

Q: What was that incident?

A: Rodulfo Gulane was killed by [a] certain Marcelino Oloverio.

Q: Now, you said that Rodulfo Gulane was killed by Marcelino Oloverio, what was used by Marcelino Oloverio in
killing the deceased?

A: A bolo.

....

Q: Now, you said that Rodulfo Gulane was killed by Marcelino Oloverio with the use of this bolo, would you
describe to this Honorable Court, how and in what way did Marcelino Oloverio killed [sic] Rodulfo Gulane?

A: Yes, while Rodulfo Gulane was walking, Marcelino Oloverio held the right shoulder of Rodulfo Gulane then
stabbed him many times and there was strucking [sic] the victim Rodulfo Gulane. 29

(Emphasis supplied)

Pogay also testified:

Q: When you reached Brgy. Belen, what have you observed?

A: I observed Lino stabbed Dolpo [sic] Gulane and when Dolfo Gulane fell down, he said "Patay na ang datu sa
Brgy. San Pablo."

....

Q: If you can recall, how many times did Marcelino Oloverio stab Rodulfo Gulane?

A: Many times and there was also a hacking blow. 30

Their testimonies were consistent with the medico-legal findings that Gulane died due to multiple stab wounds.
Both the trial court and the Court of Appeals also found that the witnesses had no ill motive to testify against
accused-appellant. 31

The intent to kill is established not only by the number of stab wounds found on Gulane, but also by accused-
appellant’s own admission that he stabbed Gulane. 32

II

The presence of treachery, however, has not been sufficiently established. Treachery is defined by the Revised
Penal Code as:

ARTICLE 14. Aggravating Circumstances. — The following are aggravating circumstances:

....

16. That the act be committed with treachery (alevosia).

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.

For treachery to be appreciated, the following elements must be proven:

(a) the employment of means of execution that gives the person attacked no opportunity to defend himself or
retaliate, and (b) the means of execution was deliberately or consciously adopted. 33
In People v. Lobino: 34

In People vs. Estrellanes, we declared in no uncertain terms that ‘the mere fact that the victim had no weapon
with which he could have defended himself is not sufficient to prove the existence of the first element of
treachery, for settled is the rule that treachery cannot be presumed; it must be proved by clear and convincing
evidence or as conclusively as the killing itself.’ [sic] Furthermore, there must be some evidence, none of which,
however, obtains in the instant case, showing that this mode of assault is deliberately or consciously adopted to
insure the execution of the crime without risk to the offender. Accordingly, if 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
provocation on the part of the victim, then no treachery attended the commission of the crime. The essence of
treachery is the sudden and unexpected attack without the slightest provocation on the part of the person being
attacked[.]  (Emphasis supplied)
35

Pogay testified that Gulane was walking down the road when accused-appellant came up behind him, tapped
him on the shoulder, and then stabbed him repeatedly, thus:

Q: You said Rodulfo Gulane[,] before the stabbing, was heading towards Brgy. San Pablo, while he was walking
where was the accused positioned himself? [sic]

A: He was following the victim and then he tapped the right shoulder and stabbed him.

....

Pros. Macapugas: Mr. Witness, during the stabbing incident, did you know whether or not the victim in this case
was able to retaliate?

A: No ma’am, he was not able to retaliate.  (Emphasis supplied)

36

The mere suddenness of an attack should not be the sole basis in finding treachery. There must be evidence to
show that the accused deliberately or consciously adopted the means of execution to ensure its success. 37

At the time of the incident, Gulane was already 83 years old. Accused-appellant was standing behind him. He
already had the advantage of surprise with Gulane’s back turned. Gulane’s advanced age and position would
have ensured his death as it would have prevented him from being able to retaliate.

Instead, accused-appellant tapped Gulane on the shoulder as if to call his attention. He waited until Gulane was
facing him before he started stabbing. The medico-legal report indicates stab wounds on the chest and
extremities,  proving that Gulane was stabbed from the front.
38

In People v. Real: 39

As a rule, a sudden attack by the assailant, whether frontally or from behind, is treachery if such mode of attack
was coolly and deliberately adopted by him with the purpose of depriving the victim of a chance to either fight or
retreat. The rule does not apply, however, 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.  (Emphasis supplied)
40

The attack, while sudden, cannot be said to have been unexpected or unprovoked. Accused-appellant alleged
that before the attack, Gulane had been insulting him and mocking him in a loud voice, "How many times did you
have sexual intercourse with your mother?"  This utterance, along with testimonies of Gulane’s previous insults,
41

would have been sufficient provocation for accused-appellant to stab him.

Since treachery has not been proven, the crime is merely homicide. Under the Revised Penal Code:

ARTICLE 249. Homicide. — Any person who, not falling within the provisions of article 246 shall kill another
without the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed
guilty of homicide and be punished by reclusion temporal.

The penalties of the accused-appellant must be modified accordingly.

III

The mitigating circumstance of passion and obfuscation  is present in this case.
42

To be able to successfully plead the mitigating circumstance of passion and obfuscation, the accused must be
able to prove the following elements:

1. that there be an act, both unlawful and sufficient to produce such condition of mind; and

2. that said 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 normal equanimity. 43

In People v. Lobino:44

It has been held that "[T]here is passional obfuscation when the crime was committed due to an uncontrollable
burst of passion provoked by prior unjust or improper acts, or due to a legitimate stimulus so powerful as to
overcome reason."

"The obfuscation must originate from lawful feelings. The turmoil and unreason which naturally result from a
quarrel or fight should not be confused with the sentiment or excitement in the mind of a person injured or
offended to such a degree as to deprive him of his sanity and self-control, because the cause of this condition of
mind must necessarily have preceded the commission of the offense."

Moreover, "the act producing the obfuscation must not be far removed from the commission of the crime by a
considerable length of time, during which the accused might have recovered his normal equanimity."  (Emphasis
45

supplied)

There is no uniform rule on what constitutes "a considerable length of time." The provocation and the
commission of the crime should not be so far apart that a reasonable length of time has passed during which the
accused would have calmed down and be able to reflect on the consequences of his or her actions. What is
important is that the accused has not yet "recovered his normal equanimity" when he committed the crime.

To appreciate passion and obfuscation as a mitigating circumstance, the facts must be examined on a case-to-
case basis.

In People v. Mojica,  Aurelio Mojica was accused of murder for stabbing Diosdado Tormon to death. He
46

attempted to mitigate his liability by alleging that the victim humiliated him a month before the incident. The trial
court convicted him of murder without appreciating the mitigating circumstance of passion and obfuscation. This
court agreed, stating:

The last point to consider is whether the mitigating circumstance of passion or obfuscation ought to have been
appreciated in favor of appellant. What was done to him on that fateful day of November 16, 1968 when he was
subjected to treatment offensive to his dignity, having been slapped and asked to kneel down in the attitude of a
supplicant, certainly could give rise to the feeling of passion or obfuscation. There is a host of cases from United
States v. Ferrer, a 1901 decision, to People v. Pareja, decided in 1969, that so attests. Conduct of that
character, in the language of United States v. Salandanan, would ordinarily be expected to have produced "such
powerful excitement as to overcome reason and self-control." Unfortunately for appellant, however, this
mitigating circumstance cannot be invoked because the killing took place one month and five days later. The
language of Justice Malcolm in United States v. Sarikala is relevant: "As to the mitigating circumstance of
passion and obfuscation we likewise cannot agree that it can be taken into consideration because more than
twentyfour hours elapsed after the insults of Cotton to the accused and the criminal act." In the relatively recent
case of People v. Constantino, such a plea was likewise rejected. There the killing took place after four days. As
pointed out by Justice Romualdez in People v. Alanguilang: "In order that the circumstance of obfuscation can
be considered, it is necessary to establish the existence of an act both unlawful and sufficient to produce such a
condition of mind; and that said 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 normal equanimity."
Reference may also be made to People v. Dagatan, where this Court could not consider the presence of this
mitigating circumstance as the act that caused the resentment "took place long before the commission of the
crime." People v. Gervacio had another way of putting it, "a time not far removed from the commission of the
crime." The lower court, therefore, did not commit any error in refusing to credit appellant with the mitigating
circumstance of passion and obfuscation.  (Emphasis supplied, citations omitted)
47
However, a fight between the accused and the victim prior to the crime is not always enough to be able to
successfully prove that passion and obfuscation attended it.

This court did not appreciate passion and obfuscation in People v. Rabanillo,  where the accused killed the
48

victim 30 minutes after they came to blows:

Suarez and Magalong testified that before the hacking incident, MORALES reprimanded RABANILLO in front of
their drinking mates for dousing him with water, which entered into his ear. RABANILLO resented it and felt
humiliated. Hence, a fistfight ensued, but was eventually broken up. The event must have continued to dominate
RABANILLO’s thought that he decided to strike back at the victim by hacking him to death. Clearly, the assault
was made in a fit of anger.

For passion and obfuscation to be mitigating, the same must originate from lawful feelings. The turmoil and
unreason that naturally result from a quarrel or fight should not be confused with the sentiment or excitement in
the mind of a person injured or offended to such a degree as to deprive him of his sanity and self-control. The
excitement which is inherent in all persons who quarrel and come to blows does not constitute obfuscation.

Moreover, the act producing obfuscation must not be far removed from the commission of the crime by a
considerable length of time, during which the accused might have regained his normal equanimity. Thus, it has
been held that where at least half an hour elapsed between the previous fight and the killing, the accused
cannot be given the benefit of the attenuating circumstance of obfuscation.

In this case, 30 minutes intervened between the fistfight and the killing of MORALES by RABANILLO. The attack
cannot, therefore, be said to be the result of a sudden impulse of natural and uncontrollable fury. Having been
actuated more by the spirit of revenge or by anger and resentment for having been publicly berated by
MORALES, RABANILLO cannot be credited with the extenuating circumstance of passion and
obfuscation.  (Emphasis supplied)
49

This court clarifies in People v. Bautista: 50

The turmoil and unreason which naturally result from a quarrel or fight should not be confused with the sentiment
or excitement in the mind of a person injured or offended to such a degree as to deprive him of his sanity and
self-control, because the cause of this condition of mind must necessarily have preceded the commission of the
offense.51

This court has also ruled that acts done in the spirit of revenge cannot be considered acts done with passion and
obfuscation.

In People v. Caber,  Francisco Caber was seen chasing Teodoro Ramirez with a bladed weapon, locally known
52

as a pisao, and stabbing Ramirez twice, which resulted in his death.

Caber tried to argue that he stabbed Ramirez in a fit of passion and obfuscation and alleged that Ramirez raped
his wife three (3) days before the incident. This court rejected the claim:

Even assuming, however, that he really killed Ramirez because of passion or obfuscation in order to avenge the
wrong done to his wife by the victim, still he cannot be credited with this circumstance as he would then have
acted "in the spirit of revenge." Furthermore, although accused-appellant's wife was allegedly raped by Ramirez
on November 17, 1994, the stabbing incident in question took place three days later or on November 20, 1994.
Thus, the act which was supposed to have caused passion or obfuscation on the part of the accused-appellant
was so far removed from the date of the stabbing. In United States v. Sarikala, the Court ruled that the lapse of
more than 24 hours, reckoned from the commission of the act which produced the passion or obfuscation up to
the time of the commission of the felony, constituted a considerable period of time after which such circumstance
would no longer be deemed present.  (Emphasis supplied)
53

The facts of this case, however, are similar to that in People v. Real.  In Real, Melchor Real and Edgardo
54

Corpuz, his fellow market vendor, engaged in a heated argument over the right to use the market table to display
their fish. The municipal mayor, then present at the scene, tried to pacify them and told them that they were
arguing over trivial matters. Both parties calmed down after a while.
Corpuz, however, said something to Real, to which Real softly uttered, "You are being too oppressive." When
Corpuz kept walking near the table, Real started to sharpen his bolo. As Corpuz turned his back, Real hacked
him with his bolo which caused his death.

Real was held liable for homicide, but this court took into account the mitigating circumstance of passion and
obfuscation, stating that:

[t]he act of the victim in berating and humiliating appellant was enough to produce passion and obfuscation,
considering that the incident happened in a market place within full view and within hearing distance of many
people. 55

This court also noted:

In the case at bench, the assault came in the course of an altercation and after appellant had sharpened his bolo
in full view of the victim. Appellant's act of sharpening his bolo can be interpreted as an attempt to frighten the
victim so the latter would leave him alone. It was simply foolhardy for the victim to continue walking to and fro
near appellant in a taunting manner while the latter was sharpening his bolo. 56

Accused-appellant admitted that he stabbed Gulane but alleged that they had been fighting. He alleged that
Gulane had been hurling insults at him which provoked him to react; in effect, he alleged that the mitigating
circumstance of passion and obfuscation was present in this case. 57

The Court of Appeals rejected his contention and stated that no evidence was presented to prove that
immediately before or at the time of the incident, there was an altercation between accused-appellant and
Gulane that would provoke his reaction.

Panday testified:

Q: Do you remember if there was any altercation that took place between the accused and the victim in this case
before the incident?

A: I have not heard any argument from both of them and he stabbed Rodulfo Gulane and Rodulfo Gulane
uttered the words in a vernacular, "Man luba kaman Ling." 58

Pogay further testified:

Q: Before the stabbing incident, have you noticed if there was an altercation between Rodulfo Gulane and
Marcelino Oloverio?

A: No, sir. 59

Panday, however, clarifies:

Q: Now, before the actual stabbing of the victim in this case, you said there was no altercation between the
accused and Rodulfo Gulane, now, if you can recall[,] if there was any incident that took place immediately
before the stabbing incident?

A: I cannot say any but what I only say is that I only saw the incident.  (Emphasis supplied)
60

The prosecution could not prove that an altercation might have occurred between accused-appellant and Gulane
before the incident since their eyewitnesses could only testify to the actual stabbing.

The Court of Appeals also failed to take into account the testimony of Lamoste, the defense witness.

Lamoste testified that he and accused-appellant worked together, as he was then the barangay captain and
accused-appellant was a barangay tanod. He alleged that accused-appellant’s daughter once confided to
accusedappellant that Gulane told her that he wanted to touch her private parts. 61

Lamoste testified that about a month before the incident, he witnessed Gulane telling accused-appellant,
"Kumusta na man mo imo mama nagtap-il mo imo mama naba mo produkto?" ("How is your relationship with
your mother have you produced fruits with your mother?") He alleged that accused-appellant got angry and tried
to attack Gulane, but he was able to intervene and part the two. 62

The prosecution did not deny any portion of Lamoste’s testimony and only insisted that no altercation occurred
immediately before the stabbing.

Both the trial court and the Court of Appeals narrowed its understanding of passion and obfuscation to refer only
to the emotions accused-appellant felt in the seconds before a crime is committed. It failed to understand that
passion may linger and build up over time as repressed anger enough to obfuscate reason and self-control.

The circumstances of both victim and accused-appellant were also not taken into account by the trial court and
the Court of Appeals.

Accused-appellant referred to Gulane as the "datu" or rich man of Barangay San Pablo. Gulane enjoyed an
economic ascendancy over accused-appellant, a mere barangay tanod.

Gulane not only threatened to molest accused-appellant’s daughter but also accused him in public of having
incestuous relations with his mother. Gulane was said to have insulted accused-appelant in full view of his
immediate superior, the barangay captain.

Both victim and accused-appellant lived in the small locality of Palompon, Leyte. As with any small town, it was a
place where a person’s degrading remarks against another could be made the measure of the latter’s character.
Gulane’s insults would have been taken into serious consideration by the town’s residents because of his wealth
and stature in the community.

There was neither a reason given why Gulane acted that way towards accused-appellant nor any evidence to
show that accused-appellant had previously wronged him.

The prosecution did not deny that Gulane insulted accused-appellant on various occasions. The witnesses could
not state with reasonable certainty that Gulane did not provoke accused-appellant a few minutes before the
incident; they could only testify to the incident itself and the seconds which preceded it.

In view of these considerations, we find that the mitigating circumstance of passion and obfuscation is present in
this case.

IV

According to Article 249 of the Revised Penal Code, homicide is punishable by reclusion temporal. The trial
court and the Court of Appeals considered accused-appellant’s voluntary surrender to the authorities as a
mitigating circumstance.  We find no reason to disturb this conclusion.
63

Considering that there are two (2) mitigating circumstances in accused-appellant’s favor, the imposable penalty
must be that which is next lower to that prescribed by law. Article 64 (5) of the Revised Penal Code provides:

ARTICLE 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
not 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.

Accordingly, the imposable penalty is prision mayor. Applying the Indeterminate Sentence Law, accused-
appellant should be sentenced to suffer the penalty of imprisonment, the minimum of which should be within the
range of prision correccional  and the maximum of which should be within the range of prision mayor.
64 65
Based on the records, accused-appellant was put under preventive imprisonment pending his conviction by the
trial court.

In accordance with Article 29 of the Revised Penal Code, the time undergone by accused-appellant under
preventive imprisonment shall be credited to his service of sentence, provided that he has given his written
conformity to abide by the disciplinary rules imposed upon convicted prisoners. The provision states:

"ART. 29. Period of preventive imprisonment deducted from term of imprisonment. – Offenders or accused who
have undergone preventive imprisonment shall be credited in the service of their sentence consisting of
deprivation of liberty, with the full time during which they have undergone preventive imprisonment if the
detention prisoner agrees voluntarily in writing after being informed of the effects thereof and with the assistance
of counsel to abide by the same disciplinary rules imposed upon convicted prisoners, except in the following
cases:

"1. When they are recidivists, or have been convicted previously twice or more times of any crime; and

"2. When upon being summoned for the execution of their sentence they have failed to surrender voluntarily.

"If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted
prisoners, he shall do so in writing with the assistance of a counsel and shall be credited in the service of his
sentence with four-fifths of the time during which he has undergone preventive imprisonment[.]" 66

The letter of PGI Gilbert P. Cayubit, Officer-in-Charge of the Leyte Sub-Provincial Jail, stated that accused-
appellant had been transferred to Leyte Regional Prison on May 4, 2010.  The transfer to Leyte Regional Prison
67

was also confirmed by SO2 Jorge A. Colanta, Officer-in-Charge of the Leyte Regional Prison, who stated that
accused-appellant was received by the prison on May 27, 2010. 68

As the exact length of time cannot be determined with certainty, the trial court shall determine the exact period of
preventive imprisonment that may be credited in accused-appellant’s favor.

The monetary awards must also be modified. In a prosecution for murder or homicide, civil indemnity and moral
damages may be awarded without need of further proof other than the victim’s death.  The monetary awards of
69

_50,000.00 in civil indemnity and _50,000.00 in moral damages are in line with prevailing
jurisprudence.  Temperate damages may also be awarded in lieu of actual damages, as in this case where the
70

prosecution failed to prove proof of actual damages.  The award of exemplary damages, however, ·must be
71

deleted in view of Article 2230 of the Civil Code.72

WHEREFORE, the Decision of the Court of Appeals is SET ASIDE. Accused-appellant Marcelino Oloverio is

found GUILTY beyond reasonable doubt of the crime of homicide under Article 249 of the Revised Penal Code.

As the crime was attended with the mitigating circumstances of passion and obfuscation and voluntary surrender
with no aggravating circumstance, accused-appellant Marcelino Oloverio is SENTENCED to suffer the
indeterminate penalty of imprisonment for two (2) years, four ( 4) months, and one ( 1) day of prision
correccional as minimum, to eight (8) years and one (1) day of prision mayor as maximum.  The period of his
73

preventive imprisonment shall be credited in his favor if he has given his written confonnity to abide by the
disciplinary rules imposed upon convicted prisoners in accordance with Article 29 of the Revised Penal Code, as
amended.

Accused-appellant Marcelino Oloverio is further ordered to pay the heirs of Rodulfo Gulane the amounts of
P50,000.00 as civi.l indemnity, P50,000.00 as moral damages, and P25,000.00 as temperate damages. All
damages awarded shall be subject to the rate of 6% legal interest per annum from the finality of this Decision
until its full satisfaction.

SO ORDERED.

MARVIC M.V.F. LEONEN

Associate Justice

WE CONCUR:
 ANTONIO T. CARPIO
Associate Justice
Chairperson

PRESBITERO J. VELASCO, JR.

Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

ANTONIO T. CARPIO

Acting Chief Justice

Footnotes

*
 Designated as acting member per S.O. No. I 95 I dated March 18, 2015.

 Rollo, pp. 3-14. The Decision, docketed as CA-G.R. No. CEB-CR HC No. 0 I I 75, was penned by
1

Associate Justice Ramon Paul L. Hernando and concurred in by Associate Justices Carmelita
Salandanan-Manahan and Maria Elisa Sempio-Diy of the Twentieth Division, Court of Appeals Cebu.

 REVISED PENAL CODE. ARTICLE 246. Parricide. — Any person who shall kill his father, mother, or
26

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.

 CIVIL CODE. art. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be
72

imposed when the crime was committed with one or more aggravating circumstances. Such damages
are separate and distinct from fines and shall be paid to the offended party.
 EN BANC

G.R. No. L-22231 March 21, 1968

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. MARCELO PAAT alias

PEDRING, Defendant-Appellant.

Office of the Solicitor General for plaintiff-appellee.

Felix R. Rosacia for defendant-appellant.

DIZON, J.:chanrobles virtual law library

Marcelo Paat alias Pedring, Virgilio Paat and Juan Donato 2.0, were charged below with murder. After
trial upon a plea of not guilty, the lower court acquitted Juan Donato and Virgilio Paat on the ground of
reasonable doubt, but convicted Marcelo Paat as charged and, after considering in his favor the
mitigating circumstance of having acted upon an impulse so powerful as naturally to have produced
passion or obfuscation, sentenced him to suffer an indeterminate penalty of from 10 years and 1 day
of prision mayor to 17 years, 4 months and 1 day of reclusion temporal, with the accessory penalties
provided by law, to indemnify the heirs of the deceased Teodorico Catuiran in the sum of P6,000,
without subsidiary imprisonment in case of insolvency, and to pay 1/3 of the
costs.chanroblesvirtualawlibrarychanrobles virtual law library

Marcelo Paat appealed to the Court of Appeals, but after a review of the evidence, said court found
that, on the basis thereof, Paat was guilty of murder, qualified by treachery, and without any right to
have the mitigating circumstance of passion or obfuscation considered in his favor. As the imposable
penalty would then be reclusion perpetua, said court certified the appeal to Us pursuant to section 34
of the Judiciary Act of 1948, as amended.chanroblesvirtualawlibrarychanrobles virtual law library

The Court of Appeals, after a careful consideration of the testimony of prosecution witnesses, correctly
found that it established the following facts:

x x x           x x x           x x xchanrobles virtual law library

in the morning of August 25, 1957, Juan Donato, Virgilio Paat, and Marcelo Paat were in the market
place of the barrio of Masical in the municipality of Amulong in the province of Cagayan. The three
brothers Ricardo, Eulogio and Teodorico, all surnamed Catuiran, were likewise in the said market place.
Eulogio and Teodorico were drinking basi in a tienda while Ricardo was reading an issue of the
magazine Bannawag some distance from the tienda. Eulogio invited Juan Donato, who was nearby to
drink basi; the latter excused himself, saying that he was not drinking. Eulogio felt insulted and said to
Donato: "It seems that you resent us". An altercation ensued, in which Virgilio Paat and Teodorico
Catuiran intervened. Juan Donato held the right hand of Teodorico while Virgilio held Teodorico's left
hand. At this very juncture, the accused Marcelo Paat approached and stabbed Teodorico in the back
with a small bolo (imuca). When Donato and Virgilio released their hold on Teodorico, the latter drew
his bolo, swung it and hit Virgilio in the abdomen. Teodorico took a few steps, slumped to the ground,
and expired.chanroblesvirtualawlibrarychanrobles virtual law library

According to Dr. Dulce Donato Baculi, the municipal health officer, Teodorico Catuiran sustained a
"stab wound above the superior angle of the right scapula running horizontally, penetrating the upper
lobe of the right lung about 5� inches deep and about 1 inch wide" (see exh. A, post mortem
examination report). This wound was fatal; Teodorico died of hemorrhage and shock.

The same court found that the evidence for the defense tended to prove that on the morning in
question -
. . . Virgilio Paat and Marcelo Paat were in the market place looking for men whom they could employ
to transplant palay in their land in Bayabat. Virgilio was invited by Eulogio Catuiran to drink basi.
Virgilio declined the offer, but because of the insistence of Eulogio he drank a little. Eulogio suggested
to Virgilio that the latter buy another bottle of basi so that all of them could drink. Virgilio declined,
saying that he had no more than P0.20. Nevertheless, he bought another bottle and they drank. After
this bottle was emptied, Eulogio again requested Virgilio to buy another bottle. Virgilio excused himself
this time, saying that he had no more money. At this juncture, Eulogio hurled these remarks at Virgilio.
"You are the same as the old man your uncle Juan Donato. Vulva of your mother". Virgilio was
incensed, and he retorted, "what is the matter with you ? Because this is your place, you are
scandalizing me. Leche!" As Virgilio said this, he swung his hands and struck Eulogio's forehead.
Forthwith, Teodorico stabbed Virgilio, from behind, and hit the right side of the latter's abdomen.
Teodorico attempted to stab Virgilio a second time, but the latter retreated. The appellant Marcelo saw
Teodorico in the act of stabbing Virgilio, and he immediately ran to the rescue of Virgilio, and stabbed
Teodorico in the back. Juan Donato was not present when Marcelo stabbed Teodorico, as he had
walked away to return to his house in Masical.chanroblesvirtualawlibrarychanrobles virtual law library

Virgilio was taken to the hospital in Tuguegarao, Cagayan, and was examined by Dr. Gregorio Reyes.
Virgilio sustained a penetrating wound in his right loin; the right side of the middle third of his large
intestine was punctured. Dr. Reyes performed the necessary surgical operation on Virgilio. In court he
declared that Virgilio could not have survived for more than 48 hours without the surgical operation.

It is clear from the foregoing that the decisive issue to be resolved in this appeal is whether appellant
inflicted the mortal wound that caused the death of Teodorico Catuiran in defense of his brother
Virgilio.chanroblesvirtualawlibrarychanrobles virtual law library

After a careful consideration of the entire testimonial evidence of record, We have come to the
conclusion that the trial court committed no error in according full credit to the testimony of the
prosecution witnesses. Particular mention must be made of that given by prosecution witness Alfonso
Binayug against whose credibility and impartiality the record discloses nothing. In a clear and
straightforward manner he testified that while he was buying some merchandise in the market place of
Masical he heard a scream; that thereupon, as he looked in the direction the scream came from, he
saw Juan Donato holding the right hand of Teodorico Catuiran and Virgilio Paat holding the left; that it
was at that juncture that appellant, coming from behind, stabbed Teodorico in the back; that as
appellant pulled his weapon from the back of his victim, Juan and Virgilio almost simultaneously
released their hold on Teodorico and ran away; that when Virgilio passed in front of Teodorico, the
latter was able to draw his bolo and stabbed him on the right side of his
abdomen.chanroblesvirtualawlibrarychanrobles virtual law library

Having arrived at the conclusion that it is the prosecution evidence that has established the manner
and circumstances under which appellant stabbed the deceased Teodorico, We must necessarily reject
his claim that he committed the crime to defend the life of his brother Virgilio. As it was only after
appellant had already mortally wounded Teodorico Catuiran that the latter, already free from the hold
of Juan Donato and Virgilio Paat, was able to stab Virgilio, it is abundantly clear that the theory of the
defense has no leg to stand upon.chanroblesvirtualawlibrarychanrobles virtual law library

With respect to the mitigating circumstance of passion or obfuscation, We agree with the Solicitor
General that the trial court erred in taking it into account in favor of appellant. Upon the facts proven
beyond reasonable doubt, there was no reason for appellant to have acted under the influence of
passion or obfuscation. While it is true that Teodorico Catuiran tried - as did Virgilio Paat - to intervene
in the altercation that took place between Juan Donato and Eulogio Catuiran, the evidence shows that
Virgilio and Juan Donato immediately rendered Teodorico helpless by holding his hands, and it was
while the latter was in such helpless condition that appellant stabbed him from
behind.chanroblesvirtualawlibrarychanrobles virtual law library

IN VIEW OF THE FOREGOING, We are of the opinion and so hold, that the crime committed by
appellant was that of murder, qualified by treachery. There being no modifying circumstance present,
the penalty provided by law - reclusion temporal to death - should be imposed in its medium period,
that is, reclusion perpetua. Thus modified, the appealed judgment is affirmed in all other respects.

Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Angeles and Fernando, JJ., concur.
Castro, J., took no part.
 EN BANC

G.R. No. 135981             January 15, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
MARIVIC GENOSA, appellant.

DECISION

PANGANIBAN, J.:

Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the "battered
woman syndrome" (BWS), which allegedly constitutes self-defense. Under the proven facts, however, she is not
entitled to complete exoneration because there was no unlawful aggression -- no immediate and unexpected
attack on her by her batterer-husband at the time she shot him.

Absent unlawful aggression, there can be no self-defense, complete or incomplete.

But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of cumulative
provocation that broke down her psychological resistance and self-control. This "psychological paralysis" she
suffered diminished her will power, thereby entitling her to the mitigating factor under paragraphs 9 and 10 of
Article 13 of the Revised Penal Code.

In addition, appellant should also be credited with the extenuating circumstance of having acted upon an impulse
so powerful as to have naturally produced passion and obfuscation. The acute battering she suffered that fatal
night in the hands of her batterer-spouse, in spite of the fact that she was eight months pregnant with their child,
overwhelmed her and put her in the aforesaid emotional and mental state, which overcame her reason and
impelled her to vindicate her life and her unborn child's.

Considering the presence of these two mitigating circumstances arising from BWS, as well as the benefits of the
Indeterminate Sentence Law, she may now apply for and be released from custody on parole, because she has
already served the minimum period of her penalty while under detention during the pendency of this case.

The Case

For automatic review before this Court is the September 25, 1998 Decision of the Regional Trial Court (RTC) of
1 

Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond reasonable doubt of
parricide. The decretal portion of the Decision reads:

"WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic
Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as provided under Article
246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a
generic aggravating circumstance and none of mitigating circumstance, hereby sentences the accused
with the penalty of DEATH.
 "The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand
pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty thousand pesos
(P50,000.00), Philippine currency as moral damages." 2

The Information charged appellant with parricide as follows:

3 

"That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province
of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with
intent to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and
feloniously attack, assault, hit and wound one BEN GENOSA, her legitimate husband, with the use of a
hard deadly weapon, which the accused had provided herself for the purpose, [causing] the following
wounds, to wit:

'Cadaveric spasm.

'Body on the 2nd stage of decomposition.

'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from its sockets
and tongue slightly protrudes out of the mouth.

'Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in]
laceration of the brain, spontaneous rupture of the blood vessels on the posterior surface of the
brain, laceration of the dura and meningeal vessels producing severe intracranial hemorrhage.

'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the epidermis.

'Abdomen distended w/ gas. Trunk bloated.'

which caused his death." 4

With the assistance of her counsel, appellant pleaded not guilty during her arraignment on March 3, 1997. In
5  6 

due course, she was tried for and convicted of parricide.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecution's version of the facts in this wise:

"Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City. Thereafter,
they lived with the parents of Ben in their house at Isabel, Leyte. For a time, Ben's younger brother, Alex,
and his wife lived with them too. Sometime in 1995, however, appellant and Ben rented from Steban
Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived with their two children, namely:
John Marben and Earl Pierre.

"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their salary. They
each had two (2) bottles of beer before heading home. Arturo would pass Ben's house before reaching
his. When they arrived at the house of Ben, he found out that appellant had gone to Isabel, Leyte to look
for him. Ben went inside his house, while Arturo went to a store across it, waiting until 9:00 in the
evening for the masiao runner to place a bet. Arturo did not see appellant arrive but on his way home
passing the side of the Genosas' rented house, he heard her say 'I won't hesitate to kill you' to which
Ben replied 'Why kill me when I am innocent?' That was the last time Arturo saw Ben alive. Arturo also
noticed that since then, the Genosas' rented house appeared uninhabited and was always closed.

"On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living about
fifty (50) meters from her house, to look after her pig because she was going to Cebu for a pregnancy
check-up. Appellant likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie Dayandayan
who unfortunately had no money to buy it.
 "That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to Ormoc when
he saw appellant going out of their house with her two kids in tow, each one carrying a bag, locking the
gate and taking her children to the waiting area where he was. Joseph lived about fifty (50) meters
behind the Genosas' rented house. Joseph, appellant and her children rode the same bus to Ormoc.
They had no conversation as Joseph noticed that appellant did not want to talk to him.

"On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor emanating from his
house being rented by Ben and appellant. Steban went there to find out the cause of the stench but the
house was locked from the inside. Since he did not have a duplicate key with him, Steban destroyed the
gate padlock with a borrowed steel saw. He was able to get inside through the kitchen door but only after
destroying a window to reach a hook that locked it. Alone, Steban went inside the unlocked bedroom
where the offensive smell was coming from. There, he saw the lifeless body of Ben lying on his side on
the bed covered with a blanket. He was only in his briefs with injuries at the back of his head. Seeing
this, Steban went out of the house and sent word to the mother of Ben about his son's misfortune. Later
that day, Iluminada Genosa, the mother of Ben, identified the dead body as that of [her] son.

"Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police station at
Isabel, Leyte, received a report regarding the foul smell at the Genosas' rented house. Together with
SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house and went
inside the bedroom where they found the dead body of Ben lying on his side wrapped with a bedsheet.
There was blood at the nape of Ben who only had his briefs on. SPO3 Acodesin found in one corner at
the side of an aparador a metal pipe about two (2) meters from where Ben was, leaning against a wall.
The metal pipe measured three (3) feet and six (6) inches long with a diameter of one and half (1 1/2)
inches. It had an open end without a stop valve with a red stain at one end. The bedroom was not in
disarray.

"About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken outside at
the back of the house before the postmortem examination was conducted by Dr. Cerillo in the presence
of the police. A municipal health officer at Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo
found that Ben had been dead for two to three days and his body was already decomposing. The
postmortem examination of Dr. Cerillo yielded the findings quoted in the Information for parricide later
filed against appellant. She concluded that the cause of Ben's death was 'cardiopulmonary arrest
secondary to severe intracranial hemorrhage due to a depressed fracture of the occipital [bone].'

"Appellant admitted killing Ben. She testified that going home after work on November 15, 1995, she
got worried that her husband who was not home yet might have gone gambling since it was a payday.
With her cousin Ecel Araño, appellant went to look for Ben at the marketplace and taverns at Isabel,
Leyte but did not find him there. They found Ben drunk upon their return at the Genosas' house. Ecel
went home despite appellant's request for her to sleep in their house.

"Then, Ben purportedly nagged appellant for following him, even challenging her to a fight. She allegedly
ignored him and instead attended to their children who were doing their homework. Apparently
disappointed with her reaction, Ben switched off the light and, with the use of a chopping knife, cut the
television antenna or wire to keep her from watching television. According to appellant, Ben was about to
attack her so she ran to the bedroom, but he got hold of her hands and whirled her around. She fell on
the side of the bed and screamed for help. Ben left. At this point, appellant packed his clothes because
she wanted him to leave. Seeing his packed clothes upon his return home, Ben allegedly flew into a
rage, dragged appellant outside of the bedroom towards a drawer holding her by the neck, and told her
'You might as well be killed so nobody would nag me.' Appellant testified that she was aware that there
was a gun inside the drawer but since Ben did not have the key to it, he got a three-inch long blade
cutter from his wallet. She however, 'smashed' the arm of Ben with a pipe, causing him to drop the blade
and his wallet. Appellant then 'smashed' Ben at his nape with the pipe as he was about to pick up the
blade and his wallet. She thereafter ran inside the bedroom.

"Appellant, however, insisted that she ended the life of her husband by shooting him. She supposedly
'distorted' the drawer where the gun was and shot Ben. He did not die on the spot, though, but in the
bedroom." (Citations omitted)
7 

Version of the Defense

Appellant relates her version of the facts in this manner:

"1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her marriage,
Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor of Science in
Business Administration, and was working, at the time of her husband's death, as a Secretary to the Port
Managers in Ormoc City. The couple had three (3) children: John Marben, Earl Pierre and Marie Bianca.

"2. Marivic and Ben had known each other since elementary school; they were neighbors in Bilwang;
they were classmates; and they were third degree cousins. Both sets of parents were against their
relationship, but Ben was persistent and tried to stop other suitors from courting her. Their closeness
developed as he was her constant partner at fiestas.

"3. After their marriage, they lived first in the home of Ben's parents, together with Ben's brother, Alex, in
Isabel, Leyte. In the first year of marriage, Marivic and Ben 'lived happily'. But apparently, soon
thereafter, the couple would quarrel often and their fights would become violent.

"4. Ben's brother, Alex, testified for the prosecution that he could not remember when Ben and Marivic
married. He said that when Ben and Marivic quarreled, generally when Ben would come home drunk,
Marivic would inflict injuries on him. He said that in one incident in 1993 he saw Marivic holding a kitchen
knife after Ben had shouted for help as his left hand was covered with blood. Marivic left the house but
after a week, she returned apparently having asked for Ben's forgiveness. In another incident in May 22,
1994, early morning, Alex and his father apparently rushed to Ben's aid again and saw blood from Ben's
forehead and Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently
again asked for Ben's forgiveness.

"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that Ben and Marivic married in
'1986 or 1985 more or less here in Fatima, Ormoc City.' She said as the marriage went along, Marivic
became 'already very demanding. Mrs. Iluminada Genosa said that after the birth of Marivic's two sons,
there were 'three (3) misunderstandings.' The first was when Marivic stabbed Ben with a table knife
through his left arm; the second incident was on November 15, 1994, when Marivic struck Ben on the
forehead 'using a sharp instrument until the eye was also affected. It was wounded and also the ear' and
her husband went to Ben to help; and the third incident was in 1995 when the couple had already
transferred to the house in Bilwang and she saw that Ben's hand was plastered as 'the bone cracked.'

"Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.

"5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 'After we collected our
salary, we went to the cock-fighting place of ISCO.' They stayed there for three (3) hours, after which
they went to 'Uniloks' and drank beer – allegedly only two (2) bottles each. After drinking they bought
barbeque and went to the Genosa residence. Marivic was not there. He stayed a while talking with Ben,
after which he went across the road to wait 'for the runner and the usher of the masiao game because
during that time, the hearing on masiao numbers was rampant. I was waiting for the ushers and runners
so that I can place my bet.' On his way home at about 9:00 in the evening, he heard the Genosas
arguing. They were quarreling loudly. Outside their house was one 'Fredo' who is used by Ben to feed
his fighting cocks. Basobas' testimony on the root of the quarrel, conveniently overheard by him was
Marivic saying 'I will never hesitate to kill you', whilst Ben replied 'Why kill me when I am innocent.'
Basobas thought they were joking.

"He did not hear them quarreling while he was across the road from the Genosa residence. Basobas
admitted that he and Ben were always at the cockpits every Saturday and Sunday. He claims that he
once told Ben 'before when he was stricken with a bottle by Marivic Genosa' that he should leave her
and that Ben would always take her back after she would leave him 'so many times'.

"Basobas could not remember when Marivic had hit Ben, but it was a long time that they had been
quarreling. He said Ben 'even had a wound' on the right forehead. He had known the couple for only one
(1) year.

"6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a habitual
drinker. She said he provoked her, he would slap her, sometimes he would pin her down on the bed, and
sometimes beat her.

"These incidents happened several times and she would often run home to her parents, but Ben would
follow her and seek her out, promising to change and would ask for her forgiveness. She said after she
would be beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These
doctors would enter the injuries inflicted upon her by Ben into their reports. Marivic said Ben would beat
her or quarrel with her every time he was drunk, at least three times a week.

"7. In her defense, witnesses who were not so closely related to Marivic, testified as to the abuse and
violence she received at the hands of Ben.

'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on November
15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting for help and through
the open jalousies, he saw the spouses 'grappling with each other'. Ben had Marivic in a choke hold. He
did not do anything, but had come voluntarily to testify. (Please note this was the same night as that
testified to by Arturo Busabos. )
8 

'7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified that he
heard his neighbor Marivic shouting on the night of November 15, 1995. He peeped through the window
of his hut which is located beside the Genosa house and saw 'the spouses grappling with each other
then Ben Genosa was holding with his both hands the neck of the accused, Marivic Genosa'. He said
after a while, Marivic was able to extricate he[r]self and enter the room of the children. After that, he went
back to work as he was to go fishing that evening. He returned at 8:00 the next morning. (Again, please
note that this was the same night as that testified to by Arturo Basobas).

'7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in Isabel, Leyte.
His house was located about fifty (50) meters from theirs. Marivic is his niece and he knew them to be
living together for 13 or 14 years. He said the couple was always quarreling. Marivic confided in him that
Ben would pawn items and then would use the money to gamble. One time, he went to their house and
they were quarreling. Ben was so angry, but would be pacified 'if somebody would come.' He testified
that while Ben was alive 'he used to gamble and when he became drunk, he would go to our house and
he will say, 'Teody' because that was what he used to call me, 'mokimas ta,' which means 'let's go and
look for a whore.' Mr. Sarabia further testified that Ben 'would box his wife and I would see bruises and
one time she ran to me, I noticed a wound (the witness pointed to his right breast) as according to her a
knife was stricken to her.' Mr. Sarabia also said that once he saw Ben had been injured too. He said he
voluntarily testified only that morning.

'7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the afternoon of
November 15, 1995, Marivic went to her house and asked her help to look for Ben. They searched in the
market place, several taverns and some other places, but could not find him. She accompanied Marivic
home. Marivic wanted her to sleep with her in the Genosa house 'because she might be battered by her
husband.' When they got to the Genosa house at about 7:00 in the evening, Miss Arano said that 'her
husband was already there and was drunk.' Miss Arano knew he was drunk 'because of his staggering
walking and I can also detect his face.' Marivic entered the house and she heard them quarrel noisily.
(Again, please note that this is the same night as that testified to by Arturo Basobas) Miss Arano testified
that this was not the first time Marivic had asked her to sleep in the house as Marivic would be afraid
every time her husband would come home drunk. At one time when she did sleep over, she was
awakened at 10:00 in the evening when Ben arrived because the couple 'were very noisy in the sala and
I had heard something was broken like a vase.' She said Marivic ran into her room and they locked the
door. When Ben couldn't get in he got a chair and a knife and 'showed us the knife through the window
grill and he scared us.' She said that Marivic shouted for help, but no one came. On cross-examination,
she said that when she left Marivic's house on November 15, 1995, the couple were still quarreling.

'7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at PHILPHOS, Isabel,
Leyte. Marivic was his patient 'many times' and had also received treatment from other doctors. Dr.
Caing testified that from July 6, 1989 until November 9, 1995, there were six (6) episodes of physical
injuries inflicted upon Marivic. These injuries were reported in his Out-Patient Chart at the PHILPHOS
Hospital. The prosecution admitted the qualifications of Dr. Caing and considered him an expert witness.'

xxx   xxx   xxx

'Dr. Caing's clinical history of the tension headache and hypertention of Marivic on twenty-three (23)
separate occasions was marked at Exhibits '2' and '2-B.' The OPD Chart of Marivic at the Philphos Clinic
which reflected all the consultations made by Marivic and the six (6) incidents of physical injuries
reported was marked as Exhibit '3.'
"On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether the injuries
were directly related to the crime committed. He said it is only a psychiatrist who is qualified to examine
the psychological make-up of the patient, 'whether she is capable of committing a crime or not.'

'7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified that about
two (2) months before Ben died, Marivic went to his office past 8:00 in the evening. She sought his help
to settle or confront the Genosa couple who were experiencing 'family troubles'. He told Marivic to return
in the morning, but he did not hear from her again and assumed 'that they might have settled with each
other or they might have forgiven with each other.'

xxx   xxx   xxx

"Marivic said she did not provoke her husband when she got home that night it was her husband who
began the provocation. Marivic said she was frightened that her husband would hurt her and she wanted
to make sure she would deliver her baby safely. In fact, Marivic had to be admitted later at the Rizal
Medical Centre as she was suffering from eclampsia and hypertension, and the baby was born
prematurely on December 1, 1995.

"Marivic testified that during her marriage she had tried to leave her husband at least five (5) times, but
that Ben would always follow her and they would reconcile. Marivic said that the reason why Ben was
violent and abusive towards her that night was because 'he was crazy about his recent girlfriend, Lulu x x
x Rubillos.'

"On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the bedroom;
that their quarrels could be heard by anyone passing their house; that Basobas lied in his testimony; that
she left for Manila the next day, November 16, 1995; that she did not bother anyone in Manila, rented
herself a room, and got herself a job as a field researcher under the alias 'Marvelous Isidro'; she did not
tell anyone that she was leaving Leyte, she just wanted to have a safe delivery of her baby; and that she
was arrested in San Pablo, Laguna.

'Answering questions from the Court, Marivic said that she threw the gun away; that she did not know
what happened to the pipe she used to 'smash him once'; that she was wounded by Ben on her wrist
with the bolo; and that two (2) hours after she was 'whirled' by Ben, he kicked her 'ass' and dragged her
towards the drawer when he saw that she had packed his things.'

"9. The body of Ben Genosa was found on November 18, 1995 after an investigation was made of the
foul odor emitting from the Genosa residence. This fact was testified to by all the prosecution witnesses
and some defense witnesses during the trial.

"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at the time of
the incident, and among her responsibilities as such was to take charge of all medico-legal cases, such
as the examination of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic pathologist.
She merely took the medical board exams and passed in 1986. She was called by the police to go to the
Genosa residence and when she got there, she saw 'some police officer and neighbor around.' She saw
Ben Genosa, covered by a blanket, lying in a semi-prone position with his back to the door. He was
wearing only a brief.

xxxxxxxxx

"Dra. Cerillo said that 'there is only one injury and that is the injury involving the skeletal area of the head'
which she described as a 'fracture'. And that based on her examination, Ben had been dead 2 or 3 days.
Dra. Cerillo did not testify as to what caused his death.

"Dra. Cerillo was not cross-examined by defense counsel.

"11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her with the crime
of PARRICIDE committed 'with intent to kill, with treachery and evidence premeditation, x x x wilfully,
unlawfully and feloniously attack, assault, hit and wound x x x her legitimate husband, with the use of a
hard deadly weapon x x x which caused his death.'
"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September 1997,
12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6 August 1998.

"13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon. Fortunito
L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a JUDGMENT finding Marivic guilty
'beyond reasonable doubt' of the crime of parricide, and further found treachery as an aggravating
circumstance, thus sentencing her to the ultimate penalty of DEATH.

"14. The case was elevated to this Honorable Court upon automatic review and, under date of 24
January 2000, Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as
counsel, attaching thereto, as a precautionary measure, two (2) drafts of Appellant's Briefs he had
prepared for Marivic which, for reasons of her own, were not conformed to by her.

"The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of appearance
of undersigned counsel.

"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to the
Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy Clerk of Court of Chief
Judicial Records Office, wherein she submitted her 'Brief without counsels' to the Court.

"This letter was stamp-received by the Honorable Court on 4 February 2000.

"16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable Court on
19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION praying that the
Honorable Court allow the exhumation of Ben Genosa and the re-examination of the cause of his death;
allow the examination of Marivic Genosa by qualified psychologists and psychiatrists to determine her
state of mind at the time she killed her husband; and finally, to allow a partial re-opening of the case a
quo to take the testimony of said psychologists and psychiatrists.

"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only qualified
forensic pathologist in the country, who opined that the description of the death wound (as culled from
the post-mortem findings, Exhibit 'A') is more akin to a gunshot wound than a beating with a lead pipe.

"17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivic's
URGENT OMNIBUS MOTION and remanded the case 'to the trial court for the reception of expert
psychological and/or psychiatric opinion on the 'battered woman syndrome' plea, within ninety (90) days
from notice, and, thereafter to forthwith report to this Court the proceedings taken, together with the
copies of the TSN and relevant documentary evidence, if any, submitted.'

"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon. Fortunito L.
Madrona, RTC-Branch 35, Ormoc City.

"Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed Marivic
Genosa. Dra. Dayan informed the Court that interviews were done at the Penal Institution in 1999, but
that the clinical interviews and psychological assessment were done at her clinic.

"Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her own private
clinic and connected presently to the De La Salle University as a professor. Before this, she was the
Head of the Psychology Department of the Assumption College; a member of the faculty of Psychology
at the Ateneo de Manila University and St. Joseph's College; and was the counseling psychologist of the
National Defense College. She has an AB in Psychology from the University of the Philippines, a Master
of Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD from the U.P. She was the past
president of the Psychological Association of the Philippines and is a member of the American
Psychological Association. She is the secretary of the International Council of Psychologists from about
68 countries; a member of the Forensic Psychology Association; and a member of the ASEAN
[Counseling] Association. She is actively involved with the Philippine Judicial Academy, recently lecturing
on the socio-demographic and psychological profile of families involved in domestic violence and nullity
cases. She was with the Davide Commission doing research about Military Psychology. She has written
a book entitled 'Energy Global Psychology' (together with Drs. Allan Tan and Allan Bernardo). The
Genosa case is the first time she has testified as an expert on battered women as this is the first case of
that nature.
"Dra. Dayan testified that for the research she conducted, on the socio-demographic and psychological
profile of families involved in domestic violence, and nullity cases, she looked at about 500 cases over a
period of ten (10) years and discovered that 'there are lots of variables that cause all of this marital
conflicts, from domestic violence to infidelity, to psychiatric disorder.'

"Dra. Dayan described domestic violence to comprise of 'a lot of incidents of psychological abuse, verbal
abuse, and emotional abuse to physical abuse and also sexual abuse.'

xxx   xxx   xxx

"Dra. Dayan testified that in her studies, 'the battered woman usually has a very low opinion of herself.
She has a self-defeating and self-sacrificing characteristics. x x x they usually think very lowly of
themselves and so when the violence would happen, they usually think that they provoke it, that they
were the one who precipitated the violence, they provoke their spouse to be physically, verbally and
even sexually abusive to them.' Dra. Dayan said that usually a battered x x x comes from a dysfunctional
family or from 'broken homes.'

"Dra. Dayan said that the batterer, just like the battered woman, 'also has a very low opinion of himself.
But then emerges to have superiority complex and it comes out as being very arrogant, very hostile, very
aggressive and very angry. They also had (sic) a very low tolerance for frustrations. A lot of times they
are involved in vices like gambling, drinking and drugs. And they become violent.' The batterer also
usually comes from a dysfunctional family which over-pampers them and makes them feel entitled to do
anything. Also, they see often how their parents abused each other so 'there is a lot of modeling of
aggression in the family.'

"Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave her husband:
poverty, self-blame and guilt that she provoked the violence, the cycle itself which makes her hope her
husband will change, the belief in her obligations to keep the family intact at all costs for the sake of the
children.

xxx   xxx   xxx

"Dra. Dayan said that abused wives react differently to the violence: some leave the house, or lock
themselves in another room, or sometimes try to fight back triggering 'physical violence on both of them.'
She said that in a 'normal marital relationship,' abuses also happen, but these are 'not consistent, not
chronic, are not happening day in [and] day out.' In an 'abnormal marital relationship,' the abuse occurs
day in and day out, is long lasting and 'even would cause hospitalization on the victim and even death on
the victim.'

xxx   xxx   xxx

"Dra. Dayan said that as a result of the battery of psychological tests she administered, it was her
opinion that Marivic fits the profile of a battered woman because 'inspite of her feeling of self-confidence
which we can see at times there are really feeling (sic) of loss, such feelings of humiliation which she
sees herself as damaged and as a broken person. And at the same time she still has the imprint of all
the abuses that she had experienced in the past.'

xxx   xxx   xxx

"Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing for nullity or
legal separation inspite of the abuses. It was at the time of the tragedy that Marivic then thought of
herself as a victim.

xxx   xxx   xxx

"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared and
testified before RTC-Branch 35, Ormoc City.

"Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine Board of
Psychiatry and a Fellow of the Philippine Psychiatry Association. He was in the practice of psychiatry for
thirty-eight (38) years. Prior to being in private practice, he was connected with the Veterans Memorial
Medical Centre where he gained his training on psychiatry and neurology. After that, he was called to
active duty in the Armed Forces of the Philippines, assigned to the V. Luna Medical Center for twenty six
(26) years. Prior to his retirement from government service, he obtained the rank of Brigadier General.
He obtained his medical degree from the University of Santo Tomas. He was also a member of the
World Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical Society;
and the Philippine Association of Military Surgeons.

"He authored 'The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy from
the Period 1954 – 1978' which was presented twice in international congresses. He also authored 'The
Mental Health of the Armed Forces of the Philippines 2000', which was likewise published internationally
and locally. He had a medical textbook published on the use of Prasepam on a Parke-Davis grant; was
the first to use Enanthate (siquiline), on an E.R. Squibb grant; and he published the use of the drug
Zopiclom in 1985-86.

"Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and neurology deals
with the ailment of the brain and spinal cord enlarged. Psychology, on the other hand, is a bachelor
degree and a doctorate degree; while one has to finish medicine to become a specialist in psychiatry.

"Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already encountered
a suit involving violent family relations, and testified in a case in 1964. In the Armed Forces of the
Philippines, violent family disputes abound, and he has seen probably ten to twenty thousand cases. In
those days, the primordial intention of therapy was reconciliation. As a result of his experience with
domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City under
Atty. Nenita Deproza.

"As such consultant, he had seen around forty (40) cases of severe domestic violence, where there is
physical abuse: such as slapping, pushing, verbal abuse, battering and boxing a woman even to an
unconscious state such that the woman is sometimes confined. The affliction of Post-Traumatic Stress
Disorder 'depends on the vulnerability of the victim.' Dr. Pajarillo said that if the victim is not very healthy,
perhaps one episode of violence may induce the disorder; if the psychological stamina and physiologic
constitutional stamina of the victim is stronger, 'it will take more repetitive trauma to precipitate the post-
traumatic stress disorder and this x x x is very dangerous.'

"In psychiatry, the post-traumatic stress disorder is incorporated under the 'anxiety neurosis or
neurologic anxcietism.' It is produced by 'overwhelming brutality, trauma.'

xxx   xxx   xxx

"Dr. Pajarillo explained that with 'neurotic anxiety', the victim relives the beating or trauma as if it were
real, although she is not actually being beaten at that time. She thinks 'of nothing but the suffering.'

xxx   xxx   xxx

"A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable, and
she is irritable and restless. She tends to become hard-headed and persistent. She has higher sensitivity
and her 'self-world' is damaged.

"Dr. Pajarillo said that an abnormal family background relates to an individual's illness, such as the
deprivation of the continuous care and love of the parents. As to the batterer, he normally 'internalizes
what is around him within the environment.' And it becomes his own personality. He is very competitive;
he is aiming high all the time; he is so macho; he shows his strong façade 'but in it there are doubts in
himself and prone to act without thinking.'

xxx   xxx   xxx

"Dr. Pajarillo emphasized that 'even though without the presence of the precipator (sic) or the one who
administered the battering, that re-experiencing of the trauma occurred (sic) because the individual
cannot control it. It will just come up in her mind or in his mind.'

xxx   xxx   xxx
 "Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend themselves, and
'primarily with knives. Usually pointed weapons or any weapon that is available in the immediate
surrounding or in a hospital x x x because that abound in the household.' He said a victim resorts to
weapons when she has 'reached the lowest rock bottom of her life and there is no other recourse left on
her but to act decisively.'

xxx   xxx   xxx

"Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted for two (2)
hours and seventeen (17) minutes. He used the psychological evaluation and social case studies as a
help in forming his diagnosis. He came out with a Psychiatric Report, dated 22 January 2001.

xxx   xxx   xxx

"On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed her husband
Marivic'c mental condition was that she was 're-experiencing the trauma.' He said 'that we are trying to
explain scientifically that the re-experiencing of the trauma is not controlled by Marivic. It will just come in
flashes and probably at that point in time that things happened when the re-experiencing of the trauma
flashed in her mind.' At the time he interviewed Marivic 'she was more subdued, she was not super alert
anymore x x x she is mentally stress (sic) because of the predicament she is involved.'

xxx   xxx   xxx

"20. No rebuttal evidence or testimony was presented by either the private or the public prosecutor.
Thus, in accord with the Resolution of this Honorable Court, the records of the partially re-opened trial
a quo were elevated." 9

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution evidence that
appellant had killed the deceased while he was in bed sleeping. Further, the trial court appreciated the generic
aggravating circumstance of treachery, because Ben Genosa was supposedly defenseless when he was killed --
lying in bed asleep when Marivic smashed him with a pipe at the back of his head.

The capital penalty having been imposed, the case was elevated to this Court for automatic review.

Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the
exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the examination of appellant by
qualified psychologists and psychiatrists to determine her state of mind at the time she had killed her spouse;
and (3) the inclusion of the said experts' reports in the records of the case for purposes of the automatic review
or, in the alternative, a partial reopening of the case for the lower court to admit the experts' testimonies.

On September 29, 2000, this Court issued a Resolution granting in part appellant's Motion, remanding the case
to the trial court for the reception of expert psychological and/or psychiatric opinion on the "battered woman
syndrome" plea; and requiring the lower court to report thereafter to this Court the proceedings taken as well as
to submit copies of the TSN and additional evidence, if any.

Acting on the Court's Resolution, the trial judge authorized the examination of Marivic by two clinical
psychologists, Drs. Natividad Dayan and Alfredo Pajarillo, supposedly experts on domestic violence. Their
10  11 

testimonies, along with their documentary evidence, were then presented to and admitted by the lower court
before finally being submitted to this Court to form part of the records of the case. 12

The Issues

Appellant assigns the following alleged errors of the trial court for this Court's consideration:

"1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting on the
evidence adduced as to self-defense.
 "2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally married and
that she was therefore liable for parricide.

"3. The trial court gravely erred finding the cause of death to be by beating with a pipe.

"4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial and
unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-beater; and further
gravely erred in concluding that Ben Genosa was a battered husband.

"5. The trial court gravely erred in not requiring testimony from the children of Marivic Genosa.

"6. The trial court gravely erred in concluding that Marivic's flight to Manila and her subsequent apologies
were indicia of guilt, instead of a clear attempt to save the life of her unborn child.

"7. The trial court gravely erred in concluding that there was an aggravating circumstance of treachery.

"8. The trial court gravely erred in refusing to re-evaluate the traditional elements in determining the
existence of self-defense and defense of foetus in this case, thereby erroneously convicting Marivic
Genosa of the crime of parricide and condemning her to the ultimate penalty of death." 13

In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense and in
defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa.

The Court's Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution of the
principal issues. As consistently held by this Court, the findings of the trial court on the credibility of witnesses
and their testimonies are entitled to a high degree of respect and will not be disturbed on appeal in the absence
of any showing that the trial judge gravely abused his discretion or overlooked, misunderstood or misapplied
material facts or circumstances of weight and substance that could affect the outcome of the case. 14

In appellant's first six assigned items, we find no grave abuse of discretion, reversible error or misappreciation of
material facts that would reverse or modify the trial court's disposition of the case. In any event, we will now
briefly dispose of these alleged errors of the trial court.

First, we do not agree that the lower court promulgated "an obviously hasty decision without reflecting on the
evidence adduced as to self-defense." We note that in his 17-page Decision, Judge Fortunito L. Madrona
summarized the testimonies of both the prosecution and the defense witnesses and -- on the basis of those and
of the documentary evidence on record -- made his evaluation, findings and conclusions. He wrote a 3-page
discourse assessing the testimony and the self-defense theory of the accused. While she, or even this Court,
may not agree with the trial judge's conclusions, we cannot peremptorily conclude, absent substantial evidence,
that he failed to reflect on the evidence presented.

Neither do we find the appealed Decision to have been made in an "obviously hasty" manner. The Information
had been filed with the lower court on November 14, 1996. Thereafter, trial began and at least 13 hearings were
held for over a year. It took the trial judge about two months from the conclusion of trial to promulgate his
judgment. That he conducted the trial and resolved the case with dispatch should not be taken against him,
much less used to condemn him for being unduly hasty. If at all, the dispatch with which he handled the case
should be lauded. In any case, we find his actions in substantial compliance with his constitutional obligation. 15

Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been legally married,
despite the non-presentation of their marriage contract. In People v. Malabago, this Court held:
16 

"The key element in parricide is the relationship of the offender with the victim. In the case of parricide of
a spouse, the best proof of the relationship between the accused and the deceased is the marriage
certificate. In the absence of a marriage certificate, however, oral evidence of the fact of marriage may
be considered by the trial court if such proof is not objected to."
Two of the prosecution witnesses -- namely, the mother and the brother of appellant's deceased spouse --
attested in court that Ben had been married to Marivic. The defense raised no objection to these testimonies.
17 

Moreover, during her direct examination, appellant herself made a judicial admission of her marriage to
Ben. Axiomatic is the rule that a judicial admission is conclusive upon the party making it, except only when
18 

there is a showing that (1) the admission was made through a palpable mistake, or (2) no admission was in fact
made. Other than merely attacking the non-presentation of the marriage contract, the defense offered no proof
19 

that the admission made by appellant in court as to the fact of her marriage to the deceased was made through
a palpable mistake.

Third, under the circumstances of this case, the specific or direct cause of Ben's death -- whether by a gunshot
or by beating with a pipe -- has no legal consequence. As the Court elucidated in its September 29, 2000
Resolution, "[c]onsidering that the appellant has admitted the fact of killing her husband and the acts of hitting
his nape with a metal pipe and of shooting him at the back of his head, the Court believes that exhumation is
unnecessary, if not immaterial, to determine which of said acts actually caused the victim's death." Determining
which of these admitted acts caused the death is not dispositive of the guilt or defense of appellant.

Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk, gambler,
womanizer and wife-beater. Until this case came to us for automatic review, appellant had not raised the novel
defense of "battered woman syndrome," for which such evidence may have been relevant. Her theory of self-
defense was then the crucial issue before the trial court. As will be discussed shortly, the legal requisites of self-
defense under prevailing jurisprudence ostensibly appear inconsistent with the surrounding facts that led to the
death of the victim. Hence, his personal character, especially his past behavior, did not constitute vital evidence
at the time.

Fifth, the trial court surely committed no error in not requiring testimony from appellant's children. As correctly
elucidated by the solicitor general, all criminal actions are prosecuted under the direction and control of the
public prosecutor, in whom lies the discretion to determine which witnesses and evidence are necessary to
present. As the former further points out, neither the trial court nor the prosecution prevented appellant from
20 

presenting her children as witnesses. Thus, she cannot now fault the lower court for not requiring them to testify.

Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and her
subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life of her unborn
child. Any reversible error as to the trial court's appreciation of these circumstances has little bearing on the final
resolution of the case.

First Legal Issue:

Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or defense of her
unborn child. When the accused admits killing the victim, it is incumbent upon her to prove any claimed justifying
circumstance by clear and convincing evidence. Well-settled is the rule that in criminal cases, self-defense (and
21 

similarly, defense of a stranger or third person) shifts the burden of proof from the prosecution to the defense. 22

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While new in
Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of self-defense or, at
the least, incomplete self-defense. By appreciating evidence that a victim or defendant is afflicted with the
23 

syndrome, foreign courts convey their "understanding of the justifiably fearful state of mind of a person who has
been cyclically abused and controlled over a period of time." 24

A battered woman has been defined as a woman "who is repeatedly subjected to any forceful physical or
psychological behavior by a man in order to coerce her to do something he wants her to do without concern for
her rights. Battered women include wives or women in any form of intimate relationship with men. Furthermore,
in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any
woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains
in the situation, she is defined as a battered woman." 25
Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about the home,
the family and the female sex role; emotional dependence upon the dominant male; the tendency to accept
responsibility for the batterer's actions; and false hopes that the relationship will improve.
26

More graphically, the battered woman syndrome is characterized by the so-called "cycle of violence," which has
27 

three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at
least, nonviolent) phase.28

During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse or
another form of hostile behavior. The woman usually tries to pacify the batterer through a show of kind, nurturing
behavior; or by simply staying out of his way. What actually happens is that she allows herself to be abused in
ways that, to her, are comparatively minor. All she wants is to prevent the escalation of the violence exhibited by
the batterer. This wish, however, proves to be double-edged, because her "placatory" and passive behavior
legitimizes his belief that he has the right to abuse her in the first place.

However, the techniques adopted by the woman in her effort to placate him are not usually successful, and the
verbal and/or physical abuse worsens. Each partner senses the imminent loss of control and the growing tension
and despair. Exhausted from the persistent stress, the battered woman soon withdraws emotionally. But the
more she becomes emotionally unavailable, the more the batterer becomes angry, oppressive and abusive.
Often, at some unpredictable point, the violence "spirals out of control" and leads to an acute battering incident. 29

The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death.
The battered woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no
control; only the batterer may put an end to the violence. Its nature can be as unpredictable as the time of its
explosion, and so are his reasons for ending it. The battered woman usually realizes that she cannot reason with
him, and that resistance would only exacerbate her condition.

At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later clearly
remember every detail. Her apparent passivity in the face of acute violence may be rationalized thus: the
batterer is almost always much stronger physically, and she knows from her past painful experience that it is
futile to fight back. Acute battering incidents are often very savage and out of control, such that innocent
bystanders or intervenors are likely to get hurt.
30

The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil
period, the couple experience profound relief. On the one hand, the batterer may show a tender and nurturing
behavior towards his partner. He knows that he has been viciously cruel and tries to make up for it, begging for
her forgiveness and promising never to beat her again. On the other hand, the battered woman also tries to
convince herself that the battery will never happen again; that her partner will change for the better; and that this
"good, gentle and caring man" is the real person whom she loves.

A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer. Sensing
his isolation and despair, she feels responsible for his well-being. The truth, though, is that the chances of his
reforming, or seeking or receiving professional help, are very slim, especially if she remains with him. Generally,
only after she leaves him does he seek professional help as a way of getting her back. Yet, it is in this phase of
remorseful reconciliation that she is most thoroughly tormented psychologically.

The illusion of absolute interdependency is well-entrenched in a battered woman's psyche. In this phase, she
and her batterer are indeed emotionally dependent on each other -- she for his nurturant behavior, he for her
forgiveness. Underneath this miserable cycle of "tension, violence and forgiveness," each partner may believe
that it is better to die than to be separated. Neither one may really feel independent, capable of functioning
without the other.31

History of Abuse
in the Present Case

To show the history of violence inflicted upon appellant, the defense presented several witnesses. She herself
described her heart-rending experience as follows:

"ATTY. TABUCANON

Q How did you describe your marriage with Ben Genosa?

A In the first year, I lived with him happily but in the subsequent year he was cruel to me and a behavior
of habitual drinker.

Q You said that in the subsequent year of your marriage, your husband was abusive to you and cruel. In
what way was this abusive and cruelty manifested to you?

A He always provoke me in everything, he always slap me and sometimes he pinned me down on the
bed and sometimes beat me.

Q How many times did this happen?

A Several times already.

Q What did you do when these things happen to you?

A I went away to my mother and I ran to my father and we separate each other.

Q What was the action of Ben Genosa towards you leaving home?

A He is following me, after that he sought after me.

Q What will happen when he follow you?

A He said he changed, he asked for forgiveness and I was convinced and after that I go to him and he
said 'sorry'.

Q During those times that you were the recipient of such cruelty and abusive behavior by your husband,
were you able to see a doctor?

A Yes, sir.

Q Who are these doctors?

A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.

xxx   xxx   xxx

Q You said that you saw a doctor in relation to your injuries?

A Yes, sir.

Q Who inflicted these injuries?

A Of course my husband.

Q You mean Ben Genosa?

A Yes, sir.

xxx   xxx   xxx

[Court] /to the witness

Q How frequent was the alleged cruelty that you said?

A Everytime he got drunk.

Q No, from the time that you said the cruelty or the infliction of injury inflicted on your occurred, after your
marriage, from that time on, how frequent was the occurrence?
 A Everytime he got drunk.

Q Is it daily, weekly, monthly or how many times in a month or in a week?

A Three times a week.

Q Do you mean three times a week he would beat you?

A Not necessarily that he would beat me but sometimes he will just quarrel me."  32

Referring to his "Out-Patient Chart" on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing bolstered her
33 

foregoing testimony on chronic battery in this manner:

"Q So, do you have a summary of those six (6) incidents which are found in the chart of your clinic?

A Yes, sir.

Q Who prepared the list of six (6) incidents, Doctor?

A I did.

Q Will you please read the physical findings together with the dates for the record.

A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and redness of eye.
Attending physician: Dr. Lucero;

2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion (R) breast.
Attending physician: Dr. Canora;

3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;

4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending physician: Dr. Caing;

5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr. Canora; and

6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending physician:
Dr. Canora.

Q Among the findings, there were two (2) incidents wherein you were the attending physician, is that
correct?

A Yes, sir.

Q Did you actually physical examine the accused?

A Yes, sir.

Q Now, going to your finding no. 3 where you were the one who attended the patient. What do you mean
by abrasion furuncle left axilla?

A Abrasion is a skin wound usually when it comes in contact with something rough substance if force is
applied.

Q What is meant by furuncle axilla?

A It is secondary of the light infection over the abrasion.

Q What is meant by pain mastitis secondary to trauma?

A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain] meaning
there is tenderness. When your breast is traumatized, there is tenderness pain.

Q So, these are objective physical injuries. Doctor?

xxx   xxx   xxx

Q Were you able to talk with the patient?

A Yes, sir.

Q What did she tell you?

A As a doctor-patient relationship, we need to know the cause of these injuries. And she told me that it
was done to her by her husband.

Q You mean, Ben Genosa?

A Yes, sir.

xxx   xxx   xxx

ATTY. TABUCANON:

Q By the way Doctor, were you able to physical examine the accused sometime in the month of
November, 1995 when this incident happened?

A As per record, yes.

Q What was the date?

A It was on November 6, 1995.

Q So, did you actually see the accused physically?

A Yes, sir.

Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?

A Yes, sir.

Q Being a doctor, can you more engage at what stage of pregnancy was she?

A Eight (8) months pregnant.

Q So in other words, it was an advance stage of pregnancy?

A Yes, sir.

Q What was your November 6, 1995 examination, was it an examination about her pregnancy or for
some other findings?

A No, she was admitted for hypertension headache which complicates her pregnancy.

Q When you said admitted, meaning she was confined?

A Yes, sir.

Q For how many days?

 A One day.

Q Where?

A At PHILPHOS Hospital.

xxx   xxx   xxx

Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine her
personally on November 6, 1995 and she was 8 months pregnant.

What is this all about?

A Because she has this problem of tension headache secondary to hypertension and I think I have a
record here, also the same period from 1989 to 1995, she had a consultation for twenty-three (23) times.

Q For what?

A Tension headache.

Q Can we say that specially during the latter consultation, that the patient had hypertension?

A The patient definitely had hypertension. It was refractory to our treatment. She does not response
when the medication was given to her, because tension headache is more or less stress related and
emotional in nature.

Q What did you deduce of tension headache when you said is emotional in nature?

A From what I deduced as part of our physical examination of the patient is the family history in line of
giving the root cause of what is causing this disease. So, from the moment you ask to the patient all
comes from the domestic problem.

Q You mean problem in her household?

A Probably.

Q Can family trouble cause elevation of blood pressure, Doctor?

A Yes, if it is emotionally related and stressful it can cause increases in hypertension which is
unfortunately does not response to the medication.

Q In November 6, 1995, the date of the incident, did you take the blood pressure of the accused?

A On November 6, 1995 consultation, the blood pressure was 180/120.

Q Is this considered hypertension?

A Yes, sir, severe.

Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood pressure?

A It was dangerous to the child or to the fetus." 

34

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte, testified that he
had seen the couple quarreling several times; and that on some occasions Marivic would run to him with bruises,
confiding that the injuries were inflicted upon her by Ben. 35

Ecel Arano also testified that for a number of times she had been asked by Marivic to sleep at the Genosa
36 

house, because the latter feared that Ben would come home drunk and hurt her. On one occasion that Ecel did
sleep over, she was awakened about ten o'clock at night, because the couple "were very noisy … and I heard
something was broken like a vase." Then Marivic came running into Ecel's room and locked the door. Ben
showed up by the window grill atop a chair, scaring them with a knife.

On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but they were
unable to. They returned to the Genosa home, where they found him already drunk. Again afraid that he might
hurt her, Marivic asked her to sleep at their house. Seeing his state of drunkenness, Ecel hesitated; and when
she heard the couple start arguing, she decided to leave.

On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or heard the
couple quarreling. Marivic relates in detail the following backdrop of the fateful night when life was snuffed out of
37 

him, showing in the process a vivid picture of his cruelty towards her:

"ATTY. TABUCANON:

Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening?

A Whole morning and in the afternoon, I was in the office working then after office hours, I boarded the
service bus and went to Bilwang. When I reached Bilwang, I immediately asked my son, where was his
father, then my second child said, 'he was not home yet'. I was worried because that was payday, I was
anticipating that he was gambling. So while waiting for him, my eldest son arrived from school, I
prepared dinner for my children.

Q This is evening of November 15, 1995?

A Yes, sir.

Q What time did Ben Genosa arrive?

A When he arrived, I was not there, I was in Isabel looking for him.

Q So when he arrived you were in Isabel looking for him?

A Yes, sir.

Q Did you come back to your house?

A Yes, sir.

Q By the way, where was your conjugal residence situated this time?

A Bilwang.

Q Is this your house or you are renting?

A Renting.

Q What time were you able to come back in your residence at Bilwang?

A I went back around almost 8:00 o'clock.

Q What happened when you arrived in your residence?

A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time because I
had fears that he was again drunk and I was worried that he would again beat me so I requested my
cousin to sleep with me, but she resisted because she had fears that the same thing will happen again
last year.

Q Who was this cousin of yours who you requested to sleep with you?
A Ecel Araño, the one who testified.

Q Did Ecel sleep with you in your house on that evening?

A No, because she expressed fears, she said her father would not allow her because of Ben.

Q During this period November 15, 1995, were you pregnant?

A Yes, 8 months.

Q How advance was your pregnancy?

A Eight (8) months.

Q Was the baby subsequently born?

A Yes, sir.

Q What's the name of the baby you were carrying at that time?

A Marie Bianca.

Q What time were you able to meet personally your husband?

A Yes, sir.

Q What time?

A When I arrived home, he was there already in his usual behavior.

Q Will you tell this Court what was his disposition?

A He was drunk again, he was yelling in his usual unruly behavior.

Q What was he yelling all about?

A His usual attitude when he got drunk.

Q You said that when you arrived, he was drunk and yelling at you? What else did he do if any?

A He is nagging at me for following him and he dared me to quarrel him.

Q What was the cause of his nagging or quarreling at you if you know?

A He was angry at me because I was following x x x him, looking for him. I was just worried he might be
overly drunk and he would beat me again.

Q You said that he was yelling at you, what else, did he do to you if any?

A He was nagging at me at that time and I just ignore him because I want to avoid trouble for fear that he
will beat me again. Perhaps he was disappointed because I just ignore him of his provocation and he
switch off the light and I said to him, 'why did you switch off the light when the children were there.' At
that time I was also attending to my children who were doing their assignments. He was angry with me
for not answering his challenge, so he went to the kitchen and [got] a bolo and cut the antenna wire to
stop me from watching television.

Q What did he do with the bolo?

A He cut the antenna wire to keep me from watching T.V.

Q What else happened after he cut the wire?

A He switch off the light and the children were shouting because they were scared and he was already
holding the bolo.

Q How do you described this bolo?

A 1 1/2 feet.

Q What was the bolo used for usually?

A For chopping meat.

Q You said the children were scared, what else happened as Ben was carrying that bolo?

A He was about to attack me so I run to the room.

Q What do you mean that he was about to attack you?

A When I attempt to run he held my hands and he whirled me and I fell to the bedside.

Q So when he whirled you, what happened to you?

A I screamed for help and then he left.

Q You said earlier that he whirled you and you fell on the bedside?

A Yes, sir.

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do in that particular time?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.

Q During this time, where were your children, what were their reactions?

A After a couple of hours, he went back again and he got angry with me for packing his clothes, then he
dragged me again of the bedroom holding my neck.

Q You said that when Ben came back to your house, he dragged you? How did he drag you?

COURT INTERPRETER:

The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me that 'you
might as well be killed so there will be nobody to nag me.'

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER:

(At this juncture the witness started crying).

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open it
because he did not have the key then he pulled his wallet which contained a blade about 3 inches long
and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade
fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to
pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very moment
everything on my mind was to pity on myself, then the feeling I had on that very moment was the same
when I was admitted in PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER:

(The witness at this juncture is crying intensely).

xxx   xxx   xxx

ATTY. TABUCANON:

Q Talking of drawer, is this drawer outside your room?

A Outside.

Q In what part of the house?

A Dining.

Q Where were the children during that time?

A My children were already asleep.

Q You mean they were inside the room?

A Yes, sir.

Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches
long, how does it look like?

A Three (3) inches long and 1/2 inch wide.

 Q Is it a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me."  38

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in
understanding the psyche of a battered person. She had met with Marivic Genosa for five sessions totaling
about seventeen hours. Based on their talks, the former briefly related the latter's ordeal to the court a quo as
follows:

"Q: What can you say, that you found Marivic as a battered wife? Could you in layman's term describe to
this Court what her life was like as said to you?

A: What I remember happened then was it was more than ten years, that she was suffering emotional
anguish. There were a lot of instances of abuses, to emotional abuse, to verbal abuse and to physical
abuse. The husband had a very meager income, she was the one who was practically the bread earner
of the family. The husband was involved in a lot of vices, going out with barkadas, drinking, even
womanizing being involved in cockfight and going home very angry and which will trigger a lot of physical
abuse. She also had the experience a lot of taunting from the husband for the reason that the husband
even accused her of infidelity, the husband was saying that the child she was carrying was not his own.
So she was very angry, she was at the same time very depressed because she was also aware, almost
like living in purgatory or even hell when it was happening day in and day out." 39

In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly put forward,
additional supporting evidence as shown below:

"Q In your first encounter with the appellant in this case in 1999, where you talked to her about three
hours, what was the most relevant information did you gather?

A The most relevant information was the tragedy that happened. The most important information were
escalating abuses that she had experienced during her marital life.

Q Before you met her in 1999 for three hours, we presume that you already knew of the facts of the case
or at least you have substantial knowledge of the facts of the case?

A I believe I had an idea of the case, but I do not know whether I can consider them as substantial.

xxx   xxx   xxx

Q Did you gather an information from Marivic that on the side of her husband they were fond of battering
their wives?

A I also heard that from her?

Q You heard that from her?

A Yes, sir.
 Q Did you ask for a complete example who are the relatives of her husband that were fond of battering
their wives?

A What I remember that there were brothers of her husband who are also battering their wives.

Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc where her
husband followed her and battered [her] several times in that room?

A She told me about that.

Q Did she inform you in what hotel in Ormoc?

A Sir, I could not remember but I was told that she was battered in that room.

Q Several times in that room?

A Yes, sir. What I remember was that there is no problem about being battered, it really happened.

Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think that is the first
time that we have this in the Philippines, what is your opinion?

A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a self-defense. I
also believe that there had been provocation and I also believe that she became a disordered person.
She had to suffer anxiety reaction because of all the battering that happened and so she became an
abnormal person who had lost she's not during the time and that is why it happened because of all the
physical battering, emotional battering, all the psychological abuses that she had experienced from her
husband.

Q I do believe that she is a battered wife. Was she extremely battered?

A Sir, it is an extreme form of battering. Yes. 40

Parenthetically, the credibility of appellant was demonstrated as follows:

"Q And you also said that you administered [the] objective personality test, what x x x [is this] all about?

A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that test is to
find out about the lying prone[ne]ss of the person.

Q What do you mean by that?

A Meaning, am I dealing with a client who is telling me the truth, or is she someone who can exaggerate
or x x x [will] tell a lie[?]

Q And what did you discover on the basis of this objective personality test?

A She was a person who passed the honesty test. Meaning she is a person that I can trust. That the
data that I'm gathering from her are the truth." 41

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric
Report, which was based on his interview and examination of Marivic Genosa. The Report said that during the
42 

first three years of her marriage to Ben, everything looked good -- the atmosphere was fine, normal and happy --
until "Ben started to be attracted to other girls and was also enticed in[to] gambling[,] especially cockfighting. x x
x. At the same time Ben was often joining his barkada in drinking sprees."

The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to his wife. The
Report continued: "At first, it was verbal and emotional abuses but as time passed, he became physically
abusive. Marivic claimed that the viciousness of her husband was progressive every time he got drunk. It was a
painful ordeal Marivic had to anticipate whenever she suspected that her husband went for a drinking [spree].
They had been married for twelve years[;] and practically more than eight years, she was battered and
maltreated relentlessly and mercilessly by her husband whenever he was drunk."

Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the Report, "[s]he
also sought the advice and help of close relatives and well-meaning friends in spite of her feeling ashamed of
what was happening to her. But incessant battering became more and more frequent and more severe. x x x." 43

From the totality of evidence presented, there is indeed no doubt in the Court's mind that Appellant Marivic
Genosa was a severely abused person.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman, her state of mind
metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an ordinary,
reasonable person who is evaluating the events immediately surrounding the incident. A Canadian court has
aptly pointed out that expert evidence on the psychological effect of battering on wives and common law
partners are both relevant and necessary. "How can the mental state of the appellant be appreciated without it?
The average member of the public may ask: Why would a woman put up with this kind of treatment? Why should
she continue to live with such a man? How could she love a partner who beat her to the point of requiring
hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect? Why does she
not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so-
called 'battered wife syndrome.'" 44

To understand the syndrome properly, however, one's viewpoint should not be drawn from that of an ordinary,
reasonable person. What goes on in the mind of a person who has been subjected to repeated, severe beatings
may not be consistent with -- nay, comprehensible to -- those who have not been through a similar experience.
Expert opinion is essential to clarify and refute common myths and misconceptions about battered women. 45

The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has had a
significant impact in the United States and the United Kingdom on the treatment and prosecution of cases, in
which a battered woman is charged with the killing of her violent partner. The psychologist explains that the
cyclical nature of the violence inflicted upon the battered woman immobilizes the latter's "ability to act decisively
in her own interests, making her feel trapped in the relationship with no means of escape." In her years of
46 

research, Dr. Walker found that "the abuse often escalates at the point of separation and battered women are in
greater danger of dying then." 47

Corroborating these research findings, Dra. Dayan said that "the battered woman usually has a very low opinion
of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen the violence would
happen, they usually think that they provoke[d] it, that they were the one[s] who precipitated the violence[; that]
they provoke[d] their spouse to be physically, verbally and even sexually abusive to them." 48

According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an abusive
partner -- poverty, self-blame and guilt arising from the latter's belief that she provoked the violence, that she has
an obligation to keep the family intact at all cost for the sake of their children, and that she is the only hope for
her spouse to change. 49

The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in suits
involving violent family relations, having evaluated "probably ten to twenty thousand" violent family disputes
within the Armed Forces of the Philippines, wherein such cases abounded. As a result of his experience with
domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City. As such, he got
involved in about forty (40) cases of severe domestic violence, in which the physical abuse on the woman would
sometimes even lead to her loss of consciousness. 50

Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in posttraumatic stress disorder, a form
of "anxiety neurosis or neurologic anxietism." After being repeatedly and severely abused, battered persons
51 

"may believe that they are essentially helpless, lacking power to change their situation. x x x [A]cute battering
incidents can have the effect of stimulating the development of coping responses to the trauma at the expense
of the victim's ability to muster an active response to try to escape further trauma. Furthermore, x x x the victim
ceases to believe that anything she can do will have a predictable positive effect." 52
A study conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that "even if a
53 

person has control over a situation, but believes that she does not, she will be more likely to respond to that
situation with coping responses rather than trying to escape." He said that it was the cognitive aspect -- the
individual's thoughts -- that proved all-important. He referred to this phenomenon as "learned helplessness."
"[T]he truth or facts of a situation turn out to be less important than the individual's set of beliefs or perceptions
concerning the situation. Battered women don't attempt to leave the battering situation, even when it may seem
to outsiders that escape is possible, because they cannot predict their own safety; they believe that nothing they
or anyone else does will alter their terrible circumstances."54

Thus, just as the battered woman believes that she is somehow responsible for the violent behavior of her
partner, she also believes that he is capable of killing her, and that there is no escape. Battered women feel
55 

unsafe, suffer from pervasive anxiety, and usually fail to leave the relationship. Unless a shelter is available, she
56 

stays with her husband, not only because she typically lacks a means of self-support, but also because she
fears that if she leaves she would be found and hurt even more. 57

In the instant case, we meticulously scoured the records for specific evidence establishing that appellant, due to
the repeated abuse she had suffered from her spouse over a long period of time, became afflicted with the
battered woman syndrome. We, however, failed to find sufficient evidence that would support such a conclusion.
More specifically, we failed to find ample evidence that would confirm the presence of the essential
characteristics of BWS.

The defense fell short of proving all three phases of the "cycle of violence" supposedly characterizing the
relationship of Ben and Marivic Genosa. No doubt there were acute battering incidents. In relating to the court a
quo how the fatal incident that led to the death of Ben started, Marivic perfectly described the tension-building
phase of the cycle. She was able to explain in adequate detail the typical characteristics of this stage. However,
that single incident does not prove the existence of the syndrome. In other words, she failed to prove that in at
least another battering episode in the past, she had gone through a similar pattern.

How did the tension between the partners usually arise or build up prior to acute battering? How did Marivic
normally respond to Ben's relatively minor abuses? What means did she employ to try to prevent the situation
from developing into the next (more violent) stage?

Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply mentioned
that she would usually run away to her mother's or father's house; that Ben would seek her out, ask for her
58 

forgiveness and promise to change; and that believing his words, she would return to their common abode.

Did she ever feel that she provoked the violent incidents between her and her spouse? Did she believe that she
was the only hope for Ben to reform? And that she was the sole support of his emotional stability and well-
being? Conversely, how dependent was she on him? Did she feel helpless and trapped in their relationship? Did
both of them regard death as preferable to separation?

In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that would clearly
and fully demonstrate the essential characteristics of the syndrome.

The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they were able
to explain fully, albeit merely theoretically and scientifically, how the personality of the battered woman usually
evolved or deteriorated as a result of repeated and severe beatings inflicted upon her by her partner or spouse.
They corroborated each other's testimonies, which were culled from their numerous studies of hundreds of
actual cases. However, they failed to present in court the factual experiences and thoughts that appellant had
related to them -- if at all -- based on which they concluded that she had BWS.

We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven in order to be
appreciated. To repeat, the records lack supporting evidence that would establish all the essentials of the
battered woman syndrome as manifested specifically in the case of the Genosas.

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship does not in itself establish the legal right of the
woman to kill her abusive partner. Evidence must still be considered in the context of self-defense. 59
From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS defense is the
state of mind of the battered woman at the time of the offense -- she must have actually feared imminent harm
60 

from her batterer and honestly believed in the need to kill him in order to save her life.

Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face a real
threat on one's life; and the peril sought to be avoided must be imminent and actual, not merely
imaginary. Thus, the Revised Penal Code provides the following requisites and effect of self-defense:
61  62

"Art. 11. Justifying circumstances. -- The following do not incur any criminal liability:

"1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself."

Unlawful aggression is the most essential element of self-defense. It presupposes actual, sudden and
63 

unexpected attack -- or an imminent danger thereof -- on the life or safety of a person. In the present case,
64 

however, according to the testimony of Marivic herself, there was a sufficient time interval between the unlawful
aggression of Ben and her fatal attack upon him. She had already been able to withdraw from his violent
behavior and escape to their children's bedroom. During that time, he apparently ceased his attack and went to
bed. The reality or even the imminence of the danger he posed had ended altogether. He was no longer in a
position that presented an actual threat on her life or safety.

Had Ben still been awaiting Marivic when she came out of their children's bedroom -- and based on past violent
incidents, there was a great probability that he would still have pursued her and inflicted graver harm -- then, the
imminence of the real threat upon her life would not have ceased yet. Where the brutalized person is already
suffering from BWS, further evidence of actual physical assault at the time of the killing is not required. Incidents
of domestic battery usually have a predictable pattern. To require the battered person to await an obvious,
deadly attack before she can defend her life "would amount to sentencing her to 'murder by installment.'" Still, 65 

impending danger (based on the conduct of the victim in previous battering episodes) prior to the defendant's
use of deadly force must be shown. Threatening behavior or communication can satisfy the required imminence
of danger. Considering such circumstances and the existence of BWS, self-defense may be appreciated.
66 

We reiterate the principle that aggression, if not continuous, does not warrant self-defense. In the absence of
67 

such aggression, there can be no self-defense -- complete or incomplete -- on the part of the victim. Thus,
68 

Marivic's killing of Ben was not completely justified under the circumstances.

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other modifying circumstances that would
alter her penalty, we deem it proper to evaluate and appreciate in her favor circumstances that mitigate her
criminal liability. It is a hornbook doctrine that an appeal in a criminal case opens it wholly for review on any
issue, including that which has not been raised by the parties. 69

From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological Evaluation
Report dated November 29, 2000, opined as follows:

"This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic experienced with
her husband constitutes a form of [cumulative] provocation which broke down her psychological
resistance and natural self-control. It is very clear that she developed heightened sensitivity to sight of
impending danger her husband posed continuously. Marivic truly experienced at the hands of her abuser
husband a state of psychological paralysis which can only be ended by an act of violence on her part."  70

Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of "repetitious pain taking,
repetitious battering, [and] repetitious maltreatment" as well as the severity and the prolonged administration of
the battering is posttraumatic stress disorder. Expounding thereon, he said:
71 

"Q What causes the trauma, Mr. Witness?

 A What causes the trauma is probably the repetitious battering. Second, the severity of the battering.
Third, the prolonged administration of battering or the prolonged commission of the battering and the
psychological and constitutional stamina of the victim and another one is the public and social support
available to the victim. If nobody is interceding, the more she will go to that disorder....

xxx   xxx   xxx

Q You referred a while ago to severity. What are the qualifications in terms of severity of the
postraumatic stress disorder, Dr. Pajarillo?

A The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder is injury to
the head, banging of the head like that. It is usually the very very severe stimulus that precipitate this
post[t]raumatic stress disorder. Others are suffocating the victim like holding a pillow on the face,
strangulating the individual, suffocating the individual, and boxing the individual. In this situation
therefore, the victim is heightened to painful stimulus, like for example she is pregnant, she is very
susceptible because the woman will not only protect herself, she is also to protect the fetus. So the
anxiety is heightened to the end [sic] degree.

Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?

A We classify the disorder as [acute], or chronic or delayed or [a]typical.

Q Can you please describe this pre[-]classification you called delayed or [atypical]?

A The acute is the one that usually require only one battering and the individual will manifest now a
severe emotional instability, higher irritability remorse, restlessness, and fear and probably in most
[acute] cases the first thing will be happened to the individual will be thinking of suicide.

Q And in chronic cases, Mr. Witness?

A The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it is longer
than six (6) months. The [acute] is only the first day to six (6) months. After this six (6) months you
become chronic. It is stated in the book specifically that after six (6) months is chronic. The [a]typical one
is the repetitious battering but the individual who is abnormal and then become normal. This is how you
get neurosis from neurotic personality of these cases of post[t]raumatic stress disorder."  72

Answering the questions propounded by the trial judge, the expert witness clarified further:

"Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x his or her
mental capacity?

A Yes, your Honor.

Q As you were saying[,] it x x x obfuscated her rationality?

A Of course obfuscated." 73

In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in "cumulative
provocation which broke down her psychological resistance and natural self-control," "psychological paralysis,"
and "difficulty in concentrating or impairment of memory."

Based on the explanations of the expert witnesses, such manifestations were analogous to an illness that
diminished the exercise by appellant of her will power without, however, depriving her of consciousness of her
acts. There was, thus, a resulting diminution of her freedom of action, intelligence or intent. Pursuant to
paragraphs 9 and 10 of Article 13 of the Revised Penal Code, this circumstance should be taken in her favor
74  75 

and considered as a mitigating factor. 76

In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an impulse so
powerful as to have naturally produced passion and obfuscation. It has been held that this state of mind is
present when a crime is committed as a result of an uncontrollable burst of passion provoked by prior unjust or
improper acts or by a legitimate stimulus so powerful as to overcome reason. To appreciate this circumstance,
77 

the following requisites should concur: (1) there is an act, both unlawful and sufficient to produce such a
condition of mind; and (2) this act is not far removed from the commission of the crime by a considerable length
of time, during which the accused might recover her normal equanimity. 78

Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his being killed by
Marivic. He had further threatened to kill her while dragging her by the neck towards a cabinet in which he had
kept a gun. It should also be recalled that she was eight months pregnant at the time. The attempt on her life
was likewise on that of her fetus. His abusive and violent acts, an aggression which was directed at the lives of
79 

both Marivic and her unborn child, naturally produced passion and obfuscation overcoming her reason. Even
though she was able to retreat to a separate room, her emotional and mental state continued. According to her,
she felt her blood pressure rise; she was filled with feelings of self-pity and of fear that she and her baby were
about to die. In a fit of indignation, she pried open the cabinet drawer where Ben kept a gun, then she took the
weapon and used it to shoot him.

The confluence of these events brings us to the conclusion that there was no considerable period of time within
which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillo's testimony that with
80 

"neurotic anxiety" -- a psychological effect on a victim of "overwhelming brutality [or] trauma" -- the victim relives
the beating or trauma as if it were real, although she is not actually being beaten at the time. She cannot control
"re-experiencing the whole thing, the most vicious and the trauma that she suffered." She thinks "of nothing but
the suffering." Such reliving which is beyond the control of a person under similar circumstances, must have
been what Marivic experienced during the brief time interval and prevented her from recovering her normal
equanimity. Accordingly, she should further be credited with the mitigating circumstance of passion and
obfuscation.

It should be clarified that these two circumstances -- psychological paralysis as well as passion and obfuscation
-- did not arise from the same set of facts.

On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery inflicted by
the batterer-spouse upon appellant. That is, the repeated beatings over a period of time resulted in her
psychological paralysis, which was analogous to an illness diminishing the exercise of her will power without
depriving her of consciousness of her acts.

The second circumstance, on the other hand, resulted from the violent aggression he had inflicted on her prior to
the killing. That the incident occurred when she was eight months pregnant with their child was deemed by her
as an attempt not only on her life, but likewise on that of their unborn child. Such perception naturally produced
passion and obfuscation on her part.

Second Legal Issue:

Treachery

There is treachery when one commits any of the crimes against persons by employing means, methods or forms
in the execution thereof without risk to oneself arising from the defense that the offended party might make. In 81 

order to qualify an act as treacherous, the circumstances invoked must be proven as indubitably as the killing
itself; they cannot be deduced from mere inferences, or conjectures, which have no place in the appreciation of
evidence. Because of the gravity of the resulting offense, treachery must be proved as conclusively as the killing
82 

itself.
83

Ruling that treachery was present in the instant case, the trial court imposed the penalty of death upon appellant.
It inferred this qualifying circumstances merely from the fact that the lifeless body of Ben had been found lying in
bed with an "open, depressed, circular" fracture located at the back of his head. As to exactly how and when he
had been fatally attacked, however, the prosecution failed to establish indubitably. Only the following testimony
of appellant leads us to the events surrounding his death:

"Q You said that when Ben came back to your house, he dragged you? How did he drag you?

COURT:

The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)
A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me that 'you
might as well be killed so there will be nobody to nag me'

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER

(At this juncture the witness started crying)

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open it
because he did not have the key then he pulled his wallet which contained a blade about 3 inches long
and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade
fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to
pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very moment
everything on my mind was to pity on myself, then the feeling I had on that very moment was the same
when I was admitted in PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER

(The witness at this juncture is crying intensely).

xxx   xxx   xxx

Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches
long, how does it look like?

A Three (3) inches long and ½ inch wide.

Q It is a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

 Q With the same blade?

A Yes, sir, that was the object used when he intimidate me.

xxx   xxx   xxx

ATTY. TABUCANON:

Q You said that this blade fell from his grip, is it correct?

A Yes, because I smashed him.

Q What happened?

A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran to the
other room.

Q What else happened?

A When I was in the other room, I felt the same thing like what happened before when I was admitted in
PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I was frightened I was
about to die because of my blood pressure.

COURT INTERPRETER:

(Upon the answer of the witness getting the pipe and smashed him, the witness at the same time
pointed at the back of her neck or the nape).

ATTY. TABUCANON:

Q You said you went to the room, what else happened?

A Considering all the physical sufferings that I've been through with him, I took pity on myself and I felt I
was about to die also because of my blood pressure and the baby, so I got that gun and I shot him.

COURT

/to Atty. Tabucanon

Q You shot him?

A Yes, I distorted the drawer." 84

The above testimony is insufficient to establish the presence of treachery. There is no showing of the victim's
position relative to appellant's at the time of the shooting. Besides, equally axiomatic is the rule that when a
killing is preceded by an argument or a quarrel, treachery cannot be appreciated as a qualifying circumstance,
because the deceased may be said to have been forewarned and to have anticipated aggression from the
assailant.
85

Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must have been
consciously and deliberately chosen for the specific purpose of accomplishing the unlawful act without risk from
any defense that might be put up by the party attacked. There is no showing, though, that the present appellant
86 

intentionally chose a specific means of successfully attacking her husband without any risk to herself from any
retaliatory act that he might make. To the contrary, it appears that the thought of using the gun occurred to her
only at about the same moment when she decided to kill her batterer-spouse. In the absence of any convincing
proof that she consciously and deliberately employed the method by which she committed the crime in order to
ensure its execution, this Court resolves the doubt in her favor. 87

Proper Penalty
The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to death. Since
two mitigating circumstances and no aggravating circumstance have been found to have attended the
commission of the offense, the penalty shall be lowered by one (1) degree, pursuant to Article 64 of paragraph
5 of the same Code. The penalty of reclusion temporal in its medium period is imposable, considering that two
88  89 

mitigating circumstances are to be taken into account in reducing the penalty by one degree, and no other
modifying circumstances were shown to have attended the commission of the offense. Under the Indeterminate
90 

Sentence Law, the minimum of the penalty shall be within the range of that which is next lower in degree
-- prision mayor -- and the maximum shall be within the range of the medium period of reclusion temporal.

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

Epilogue

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

While our hearts empathize with recurrently battered persons, we can only work within the limits of law,
jurisprudence and given facts. We cannot make or invent them. Neither can we amend the Revised Penal Code.
Only Congress, in its wisdom, may do so.

The Court, however, is not discounting the possibility of self-defense arising from the battered woman syndrome.
We now sum up our main points. First, each of the phases of the cycle of violence must be proven to have
characterized at least two battering episodes between the appellant and her intimate partner. Second, the final
acute battering episode preceding the killing of the batterer must have produced in the battered person's mind
an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order
to save her life. Third, at the time of the killing, the batterer must have posed probable -- not necessarily
immediate and actual -- grave harm to the accused, based on the history of violence perpetrated by the former
against the latter. Taken altogether, these circumstances could satisfy the requisites of self-defense. Under the
existing facts of the present case, however, not all of these elements were duly established.

WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However, there
being two (2) mitigating circumstances and no aggravating circumstance attending her commission of the
offense, her penalty is REDUCED to six (6) years and one (1) day of prision mayor as minimum; to 14 years, 8
months and 1 day of reclusion temporal as maximum.

Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon her, the
director of the Bureau of Corrections may immediately RELEASE her from custody upon due determination that
she is eligible for parole, unless she is being held for some other lawful cause. Costs de oficio.

SO ORDERED.

Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.
Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ., join Justice Santiago in her dissent.
Vitug and Quisumbing JJ., in the result.
Ynares-Santiago J., see dissenting opinion.

DISSENTING OPINION

YNARES-SANTIAGO, J.:
In convicting Marivic Genosa of the crime of parricide, our esteemed colleague Mr. Justice Artemio V.
Panganiban found that there was no factual basis to conclude that Marivic was suffering from "Battered Woman
Syndrome" (BWS) at the time she took the life of her husband. With due respect, I register my dissent.

The novel theory of "Battered Woman Syndrome" is recognized in foreign jurisprudence as a form of self-
defense. It operates upon the premise that a woman who has been cyclically abused and controlled over a
period of time develops a fearful state of mind. Living in constant danger of harm or death, she knows that future
beatings are almost certain to occur and will escalate over time. Her intimate knowledge of the violent nature of
her batterer makes her alert to when a particular attack is forthcoming, and when it will seriously threaten her
survival. Trapped in a cycle of violence and constant fear, it is not unlikely that she would succumb to her
helplessness and fail to perceive possible solutions to the problem other than to injure or kill her batterer. She is
seized by fear of an existing or impending lethal aggression and thus would have no opportunity beforehand to
deliberate on her acts and to choose a less fatal means of eliminating her sufferings. 1

As exhaustively discussed in the ponencia, the "Battered Woman Syndrome" has three phases, to wit: (1) the
tension-building phase, where minor batterings in the form of verbal or slight physical abuse occurs. Here, the
woman tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way;
(2) the acute battering incident phase which is characterized by brutality, destructiveness and sometimes, death.
The battered woman usually realizes that she cannot reason with him and that resistance would only exacerbate
her condition; and (3) the tranquil period, where the couple experience a compound relief and the batterer may
show a tender and nurturing behavior towards his partner.

Contrary to the findings in the ponencia, the defense was able to establish the occurrence on more than one
occasion of the "tension-building phase" of the cycle. The various testimonies of appellant's witnesses clearly
reveal that she knew exactly when she would once again be subjected to acute battery. Her cousin, Ecel Arano,
testified that she often asked the latter to sleep in her house as she was afraid every time her husband came
home drunk. Clearly, whenever appellant requested for Arano's company, she was experiencing a tension-
building phase. The barangay captain, Panfilo Tero, also testified that appellant sought his help two months
before she killed her husband, again demonstrating that she was in the tension-building phase and was
attempting to prevent another incident of acute battery. Appellant presented evidence to prove that the tension-
building phase would occur whenever her husband would go out looking for other women, would lose at
cockfights or would come home drunk. She often tried to ignore her husband's attitude or, as testified to by some
witnesses for the prosecution, even shouted back, fought off or even injured her husband during the tension-
building phase, if only to prevent the onset of acute battery.

Appellant was able to perfectly describe the tension-building phase of the cycle immediately prior to the death of
her husband, i.e., when she knew or felt that she was going to be killed by the deceased. She could not possibly
have testified with clarity as to prior tension-building phases in the cycle as she had never tried to kill her
husband before this time.

It was shown by the testimonies of appellant and even witnesses for the prosecution that appellant would seek
shelter in her mother's or her father's house after an acute battering incident, after which would begin the
process of begging for forgiveness, promises of change in behavior and return to the conjugal home, only for the
same cycle to begin all over again.

To require appellant to prove the state of mind of the deceased, as seems to be required in the ponencia, would
mean that no person would ever be able to prove self-defense in a battered woman case. Appellant could not
possibly prove whether the deceased felt provoked into battering by any act or omission of appellant. She
cannot possibly prove that she felt herself to be the sole support of the deceased's emotional stability and well-
being. Nevertheless, appellant felt trapped and helpless in the relationship as, in the end, she resorted to killing
her husband as no one could or did help her, whether out of fear or insensitivity, during the violent marriage she
endured.

The "acute battering incident stage" was well demonstrated by the severe beatings suffered by Marivic in the
hands of the deceased as well as the threats to kill her using a bolo or a cutter. 2 The physical abuses occurred at
least 3 times a week in the 11 miserable years of their marriage, 3 six incidents of which were documented by the
1990-1995 medical records of Marivic. They included, among others, hematoma, contusion, and pain on the
breasts; multiple contusions and trauma on the different parts of her body even during her pregnancy in
1995.4 The tranquil period underwent by Marivic was shown by the repeated "kiss and make-up" episodes of
their relationship. On more than 5 occasions, Marivic ran to her parents' house after violent fights with the
deceased only to forgive the latter every time he would fetch her and promise to change. 5
All these recurring phases of cycle of violence, repentance and forgiveness developed a trauma in the mind of
Marivic making her believe that a forthcoming attack from the deceased would cause her death. This state of
mind of Marivic was revealed in her testimony given way back in 1998, before she was examined by experts on
BWS. Unaware of the significance of her declarations, she candidly narrated how she felt immediately before
she killed the deceased, thus -

ATTY. TABUCANON

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

xxx       xxx       xxx

Q What happened when you were brought to the drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open it
because he did not have the key. [T]hen he pulled his wallet which contained a blade about 3 inches
long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the
blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was
about to pick-up the wallet and the blade, I smashed him then I ran to the room, and on that very
moment everything on my mind was pity on myself, then the feeling I had on that very moment was the
same when I was admitted in PHILPHOS Clinic, I was about to vomit.

xxx       xxx       xxx6

Q What else happened?

A When I was in the room, I felt the same thing like what happened before I was admitted in PHILPHOS
Clinic, I was about to vomit. I know my blood pressure has raised. I was frightened I was about to die
because of my blood pressure.

xxx       xxx       xxx

A Considering all the physical sufferings that I've been through him, I took pity on myself and I felt I was
about to die also because of my blood pressure and the baby, so I got the gun and shot him. 7

It must be stressed that the defense of "Battered Woman Syndrome" was not raised by Marivic before the lower
court but only here on automatic review. This makes the foregoing testimony more worthy of great weight and
credence considering that the same could not have been cunningly given to suit or conform to the profile of a
battered woman.

Moreover, there was indeed basis for Marivic to fear death because of her medical history. Dr. Dino Caing
testified that he treated Marivic for hypertension due to domestically related emotional stress on 23 separate
occasions. The latest one was on November 6, 1995 when she suffered from severe hypertension and had a
blood pressure of 180/120 on the 8th month of her pregnancy.8

Furthermore, Dr. Natividad A. Dayan, a clinical psychologist and an expert on BWS who examined Marivic,
assessed the effects of the repeated violence on the latter as follows:

A What I remember ... was it was more than ten years that she was suffering from emotional anguish.
There were a lot of instance of abuses, ... emotional abuse...verbal abuse and... physical abuse. The
husband had very meager income, she was the one who was practically the bread earner of the family.
The husband was involved in a lot of vices, going out with barkadas, drinking, even womanizing, being
involved in cockfighting and in going home very angry which... triggered a lot of physical abuse. She also
had the experience of taunting from the husband for the reason that the husband even accused her of
 infidelity, the husband was saying that the child she was carrying was not his own. So she was very
angry, she was at the same time very depressed because she .. .[felt] almost like living in purgatory or
even in hell when it was happening day in and day out.

xxx       xxx       xxx

Q And what was it that triggered ... that tragedy in your opinion?

A I think for several weeks, she was already having all those tensions, all those anxieties, they were not
enough, that the husband was even going to cockfighting x x x

A She was angry with him, he was angry with her and I think he dragged her and even spun her around.
She tried to fight him so there was a lot of fight and when she was able to escape, she went to another
room and she locked herself with the children. And when the husband was for a while very angry he
calms down then and then (sic). But I remember before that the husband was looking for the gun and I
think he was not able to open the cabinet because she had the key. So during that time, I remember,
that she was very much afraid of him, so when the husband calmed down and he was asleep, all she
was concerned was to end up her misery, to save her child which she was carrying and to save her two
children. I believe that somehow she's not rational. 9

xxx       xxx       xxx

PROS. TRUYA

Q Mrs. Witness, being an expert witness, giving more the facts and circumstances on this case that the
books you studied in the expertise in line and in the 77 hour contact with appellant Mrs. Genosa, could
you say that this is not ordinary self-defense but a survival on her part?

A Yes, sir.

Q To what she did to her husband (sic)?

A Yes, sir this is not an ordinary self-defense, but this [is] a need to survive, a need to survive with her
two sons and [the] child she's bringing.

Q Had she not able to kill her husband, would she still be in the very short moment with the victim (sic)?

A If she did not do that she believes that she will be the one who would be killed. 10

There is no doubt therefore that Marivic was afflicted with the "Battered Woman Syndrome" and that it was an
apprehension of death and the instinct to defend her and her unborn child's life that drove her to kill her
husband.

The ponente further refused to sustain the self-defense proffered by Marivic because there was allegedly no
aggression or danger posed on her life by the victim at the time she attacked the latter. Again, I beg to disagree.

Traditionally, in order that self-defense may be appreciated, the unlawful aggression or the attack must be
imminent and actually in existence. This interpretation must, however, be re-evaluated vis-a-vis the recognized
inherent characteristic of the psyche of a person afflicted with the "Battered Woman Syndrome." As previously
discussed, women afflicted by this syndrome live in constant fear for their life and thus respond in self-defense.
Once BWS and an impending danger based on the conduct of the deceased in previous battering episodes are
established, actual occurrence of an assault is no longer a condition sine qua non before self defense may be
upheld. Threatening behavior or communication can satisfy the required imminence of danger. As stated in
the ponencia, to require the battered person to await an obvious deadly attack before she can defend her life
would amount to sentencing her to murder by installment.

In the case at bar, the cycle of violence perpetrated by the deceased, which culminated in the physical assaults
and an attempt to shoot Marivic when she was 8 months pregnant, took the place of unlawful aggression, thus
entitling her to a complete self defense even if there was no actual employment of violence by the deceased at
the time of the killing. Marivic had every reason to believe that the deceased would kill her that night not only
because the latter was verbally threatening to kill her while attempting to get a gun from the drawer, but more
importantly because the deceased wounded her on the wrist with a bolo, and because of the deceased's
previous conduct of threatening to cut her throat with a cutter which he kept in his wallet. Quoted hereunder are
the relevant testimonies of Marivic -

A When I arrived home, he was already in his usual behavior.

xxx       xxx       xxx

A He was drunk again, he was yelling in his usual unruly behavior.

xxx       xxx       xxx

A He was nagging ... me at that time and I just ignore[d] him because I want to avoid trouble for fear that
he will beat me again. Perhaps he was disappointed because I just ignore[d] hi[s] provocation and he
switch off the light and I said to him, "why did you switch off the light when the children were there." At
that time I was also attending to my children who were doing their assignments. He was angry with me
for not answering his challenge, so he went to the kitchen and g[o]t a bolo and cut the antenna wire to
stop me from watching television.

xxx       xxx       xxx

A He switch[ed] off the light and the children were shouting because they were scared and he was
already holding a bolo.

Q How do you describe this bolo?

A 1 1/2 feet.

xxx       xxx       xxx

Q You said the children were scared, what else happened as Ben was carrying that bolo?

A He was about to attack me so I ran to the room.

Q What do you mean that he was about to attack you?

A When I attempted] to run he held my hands and he whirled me and I fell [on] the bedside. 11

xxx       xxx       xxx

COURT

To the witness

xxx       xxx       xxx

Q The bolo that you said which Ben was holding at that time, [was] it a bolo or a knife?

A Bolo.

Q Were you wounded or were there inflictions on your body when he was holding and trying to frighten
you [with] that bolo?

A No, only here.

COURT INTERPRETER

(The witness pointed to her wrist).

COURT

To the witness

Q You were demonstrating a motion, whirling, did your husband really whirl you?

A Yes, your Honor.

Q How did he whirl you?

A Whirled around.

Q Just like spinning.

xxx       xxx       xxx

Q Where did he whirl you, was it inside the bedroom or outside?

A In our bedroom.

Q Then after the whirling what happened?

A He kicked my ass and then I screamed.12

xxx       xxx       xxx

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do...?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.13

A I was frightened that my husband would hurt me, so I packed all his things then on the following day I
will leave, I was afraid and I want to make sure I would deliver my baby safely. 14

xxx       xxx       xxx

A After a couple of hours, he went back again and got angry with me for packing his clothes, then he
dragged me again outside of the bedroom holding my neck.

ATTY. TABUCANON

Q You said that when Ben came back to your house, he dragged you? How did he drag... you?

COURT INTERPRETER

(The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)

A And he dragged me towards the door backwards.

ATTY. TABUCANON

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept shouting at me that "you might
as well be killed so there will be nobody to nag me.

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

xxx       xxx       xxx

Q What happened when you were brought to the drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open it
because he did not have the key. [T]hen he pulled his wallet which contained a blade about 3 inches
long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the
blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was
about to pick-up the wallet and the blade, I smashed him then I ran to the room, and on that very
moment everything on my mind was pity on myself, then the feeling I had on that very moment was the
same when I was admitted in PHILPHOS Clinic, I was about to vomit.

xxx       xxx       xxx

Q You said that he dropped the blade, for the record will you please

describe this blade about 3 inches long, how does it look like?

A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes sir, that was the object used when he intimidate me. 15

RE-DIRECT BY ATTY. TABUCANON

Q In other words, there were two (2) incidents, the first incident and then he left and then two (2) hours
after he came back?

A Yes, sir.

Q And the whirling happened in the first incident?

A Yes, sir.

Q And the dragging with arms flexed in her neck and on that blade
 happened on the second incident (sic)?

A Ye, sir.

xxx       xxx       xxx

COURT

To the witness

Q Why, what is that blade about?

A A cutter about 3 inches long.

Q Who used that?

A Ben.

Q He used that on you?

A He scared me on that (sic).

xxx       xxx       xxx

Q But he did not hit you with that?

A Yes, because I managed to run every time he scared (sic).16

There are many things which cannot be proved by direct evidence. One of this is state of mind. In the case at
bar, there is more than sufficient physical evidence presented by the appellant from which her mental state can
be inferred. The prosecution did not object to the presentation of these physical and testimonial pieces of
evidence, namely, the medical records of 23 instances of domestic violence-related injuries and the testimonies
of neighbors, cousins and even the barangay captain. Indeed, no person would endure 23 reported instances of
beatings if she were planning to kill her spouse in the first place. The majority need not worry that women around
the country will mastermind the killings of their husbands and then use this Decision to bolster their attempts to
employ the BWS defense.

Moreover, as found in the ponencia, appellant should be allowed the mitigating circumstance of passion and
obfuscation. This, at the very least, supports a finding that the acts of violence and battery committed by the
deceased were illegal and unlawful and were committed immediately before appellant could recover her natural
equanimity. But what is the natural equanimity of a battered woman? Appellant was not a normal married
woman. She can never be in a state of natural equanimity as she was in a constant state of alertness and
hypersensitivity to the next phase of acute battery. The esteemed ponente also correctly found that the appellant
acted with diminished will-power. However, he failed to go further. In the case of People v. Javier,17 it was held:

Since accused-appellant has already admitted to the killing, it is incumbent upon him to prove the claimed
mitigating circumstance of illness. In this case, however, aside from the testimony of the accused that his mind
went blank when he killed his wife due to loss of sleep, no medical finding was presented regarding his mental
condition at the time of the killing. This Court can hardly rely on the bare allegations of accused-appellant, nor on
mere presumptions and conjectures. No clear and convincing evidence was shown that accused-appellant was
suffering an illness which diminished his exercise of will-power at the time of the killing. 18

In the case at bar, appellant was allowed and did in fact present clear and convincing evidence that she was a
battered woman for 13-14 years and that she suffered from the "Battered Woman Syndrome". Expert testimony
was presented and admitted to this effect, such that the ponente ably discussed the causes and effects of the
syndrome. To ignore the testimony and the evidence thus presented is to make impossible the proof of mental
state. Evidence as to the mental state need not be also "beyond reasonable doubt."

Verily, the requirement of threatening behavioral pattern of the batterer in previous violent episodes was
sufficiently satisfied in the present case. This, juxtaposed to Marivic's affliction with BWS justified the killing of
the deceased. The danger posed or created in her mind by the latter's threats using bladed weapons, bred a
state of fear, where under the circumstances, the natural response of the battered woman would be to defend
herself even at the cost of taking the life of the batterer.

The ponencia's acknowledgement of "Battered Woman Syndrome" as a valid form of self-defense, is a noble

recognition of the plight of, and a triumph for battered women who are trapped in a culture of silence, shame,
and fear. This would however be an empty victory if we deliberately close our eyes to the antecedents of this
case. The facts are simple. Marivic was suffering from the "Battered Woman Syndrome" and was defending
herself when she killed her husband. Her acquittal of the charge of parricide is therefore in order.

IN VIEW WHEREOF, I vote to ACQUIT Marivic Genosa.

Footnotes

Qualifying her expertise, Dra. Dayan stated that she had been a practising clinical psychologist for over
10 

twenty (20) years. Currently, she is a professor at the De La Salle University. Prior thereto, she was the
head of the Psychology Department of the Assumption College; a member of the faculty of Psychology
of the Ateneo de Manila University and St. Joseph's College; and the counseling psychologist of the
National Defense College. She obtained her bachelor's degree in psychology from the University of the
Philippines (UP), her Master of Arts in Clinical Counseling from Ateneo, and her Ph.D. also from UP. She
is the secretary of the International Council of Psychologists, comprised of members from about 68
countries; and was the past president of the Psychological Association of the Philippines. She is a
member of the Forensic Psychology Association, the American Psychological Association, and the
ASEAN Counseling Association. She authored the book entitled Energy Global Psychology (together
with Drs. Allen Tan and Allan Bernardo). Dra. Dayan also lectures at the Philippine Judicial Academy,
recently on the socio-demographic and psychological profiles of families involved in domestic violence
cases. On the subject, she had conducted, for over a period of ten years, research on the profiles of
about 500 families involved in domestic violence.

Dr. Pajarillo obtained his medical degree from the University of Santo Tomas and has been in the
11 

practice of psychiatry for thirty-eight years. He honed his practice in psychiatry and neurology during his
stint with the Veterans Memorial Medical Centre. Thereafter, he was called to active duty in the Armed
Forces of the Philippines and was assigned at the V. Luna Medical Center for twenty-six years. He was a
diplomate of the Philippine Board of Psychiatry; and a fellow of the Philippine Board of Psychiatry and
the Philippine Psychiatry Association. He was also a member of the World Association of Military
Surgeons; the Quezon City Medical Society; the Cagayan Medical Society; and the Philippine
Association of Military Surgeons. He authored The Comparative Analysis of Nervous Breakdown in the
Philippine Military Academy from the Period 1954-1978, which was presented twice in international
congresses. He also authored "The Mental Health of the Armed Forces of the Philippines 2000," which
was likewise published internationally and locally. On a Parke-Davis grant, he published a medical
textbook on the use of Prasepam; on an ER Squibb grant, he was the first to use Enanthate (siquiline);
and he published the use of the drug Zopiclom in 1985-86. Prior to his retirement from government
service, he obtained the rank of Brigadier General. (TSN, February 9, 2001, pp. 6-9; Exhibits "F"-"F-9"-
Appellant (Bio-Data of Dr. Pajarillo).

Walker, Lenore, The Battered Woman Syndrome (1984), pp. 95-96. Dr. Walker, a clinical psychologist,
27 

is an acknowledged expert on BWS in the United States. She is a pioneer researcher in the field. In this
book, she reports the results of her study involving 400 battered women. Her research was designed to
test empirically the theories expounded in her earlier book, The Battered Woman (1979). In 1989, she
also wrote Terrifying Love: Why Battered Women Kill and How Society Responds.

74 
"Art. 13. Mitigating Circumstances. – The following are mitigating circumstances:

xxx   xxx   xxx

"9. Such illness of the offender as would diminish the exercise of the will-power of the offender
without however depriving him of the consciousness of his acts."

75 
"10. And, finally, any other circumstances of a similar nature and analogous to those above mentioned."
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-10851             August 28, 1959

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SERGIO DAGATAN, ET AL., accused and appellants.

Assistant Solicitor General Jose G. Bautista and Solicitor Troadio T. Quiazon, Jr. for appellee.
Filemon Sotto and Amadeo D. Seno for appellants.

ENDENCIA, J.:

This case was certified to us by the Court of Appeals upon the finding set in its Resolution of April 16, 1956,
reciting the background of the case as follows:

Julio Dagatan, Sergio Dagatan and Saturnino Dagatan were charged for murder before the Court of First
Instance of Cebu in an information filed on October 6, 1937. That case after hearing was submitted for
decision, but the trial judge failed to dispose of the same, and when the last war broke out, all the
records thereof, except the docket entry, were destroyed.

On February 22, 1949, the Provincial Fiscal filed a motion before the Court of First Instance of Cebu,
praying that the original records of the case be reconstituted; that defense counsel Filemon Sotto be
ordered to produce all copies of pertinent papers, if any, in his possession regarding the case; that if
defense counsel had no more copies of said papers, to allow the Provincial Fiscal to file a new
information against Sergio Dagatan and Saturnino Dagatan, because Julio Dagatan had died during the
last war; and that the evidence be taken anew.

As the defense counsel failed to appear and produce the copies of the pertinent papers of the case, a
new information was filed on August 8, 1949, in the Court of First Instance of Cebu, charging said Sergio
and Saturnino, surnamed Dagatan, with the crime of murder. The defense then filed a motion of
dismissal of the case of alleged ground of jeopardy, which was granted by the court, but the matter was
taken to the Supreme Court by appeal of the Fiscal and the Highest Tribunal of the land reversed the
order appealed from and remanded the case to the lower court for further preceedings. Then a hearing
was held and after submission of the evidence by both the prosecution and the defense, the Court
rendered judgment on April 12, 1954, finding both defendants guilty as charged in the information and
sentencing each and every one of them to from 6 years and 1 day of prision mayor to 17 years, 4
months and 1 day of reclusion temporal, to indemnify the family of the deceased, Victorio Ceniza, jointly
and severally in the sum of P3,000.00, and to pay the costs. From this verdict defendants appealed to
this Court.

It is to be noted in this connection that the circumstances attending the commission of the offense of
murder that may be taken into consideration for appreciation in the case at bar, are the following: the
qualifying circumstance of evident premeditation, which was used to raise the crime from homicide to
murder; the aggravating circumstance of taking advantage of superior strength (Art. 14, No. 5, RPC) and
nighttime (Art. 4, No. 6, RPC), and the mitigating circumstances, appreciated by the lower court, to wit:
that the act was committed in the proximate vindication of a grave offense to the one committing the
felony, his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, or
relatives by affinity within the same degrees (Art. 13, No. 5, RPC); and that of having acted upon an
impulse so powerful as naturally to have produced passion or obfuscation (Art. 13, No. 6, RPC).

It appears from the record that the motive of the crime was to vindicate an offense against the honor of
the offenders and their sister Lucia Dagatan, because the latter eloped with one Eleuterio Yara who later
on abandoned her, and it is claimed that the deceased, a very good friend of said Yara, assisted him in
the elopement. It must be stated at this juncture that the deceased was not the one who dishonored their
sister and, anyway, the crime at bar was committed quite a long time after the elopement and
abandonment of appellants' sister by his [her] seducer, and even assuming that this circumstance could
 be appreciated in this case, yet, as stated by the Solicitor General, it cannot be counted separately from
the other circumstance of passion or obfuscation (People vs. Yaon, 43 Off. Gaz., 4142). Moreover, it
may be argued against the appreciation of passion and obfuscation, that the motive of the crime herein
prosecuted took place quite a long time before its commission, aside from the fact that we entertain
serious doubts as to its compatibility with the qualifying circumstances of evident premeditation.

Because of the foregoing considerations, we are of the opinion and so hold that the penalty that shall be
imposed upon each of the defendants in case of conviction, is one not less than reclusion perpetua, a
penalty which, according to the Judiciary Act of 1948, falls beyond the jurisdiction of this Court to
impose.

The testimony of the witnesses for the prosecution established the following facts: On June 11, 1937, at about
eleven o'clock in the evening, after Victorio Ceniza and Leodegario Into had made their purchases in the market
of Moacboac, municipality of Carmen, Cebu, these two young men walked side by side along the national
highway towards their home at Carmen. When they were approaching the Dawis bridge in Carmen, Into noticed
two men sitting on the railing of the bridge which he recognized as Sergio Dagatan and Saturnino Dagatan,
brothers. Suddenly Sergio attacked Victorio with a wooden cane about 4½ feet long and 1¼ inches in diameter,
hitting him on the shoulder, and Saturnino helped his brother in beating up Victorio, using a handy leather-
covered rod containing a hard metal at its end, locally known as "caborrata." The victim fell right then and there,
unconscious. The Dagatan brothers placed the limp body of Victorio in the middle of the road to make it appear
that it was hit by an automobile, but Sergio, on second thought, said "Let us throw him out to the sea in order
that they would believe he died by drowning," so Sergio threw the body into the water. When Leodegario Into
saw that his companion was being beaten up by the two brothers, he started to run, but he was held by Julio
Dagatan, now deceased, father of Sergio and Saturnino, who appeared at the scene. Sergio wanted to kill Into,
but the father dissuaded his son saying, "Don't kill him because he is my relative and he has no fault at all."
Having seen what had happened, Into was taken to the house of the Dagatans and were seen walking together
by Enrique Puno, now deceased. On the way, Julio told Into that they had to kill Victorio Ceniza because the
latter had be smirched the reputation of the Dagatan family for having been instrumental in the elopement of his
daughter Lucila Dagatan with Eleuterio Yara, Ceniza's first cousin, who later abandoned her and returned to
Leyte. Once in the house of the Dagatans, Sergio again wanted to kill Into, but again Julio said, "Let us not kill
him; we will just caution him on pain of life that if this happening would come to the knowledge of the
Government authorities, we are going to kill him." Into passed the night in the house of the Dagatans, and on the
following morning he was allowed to go home after giving him some fresh fish to take to his father so that he
would not be scolded. Before Into boarded the truck towards Carmen, he was again given a parting warning not
to tell the authorities about the incident. The truck had to stop at the Dawis bridge as there were many people
curiously looking at the floating body in the creek near the bridge, but Into did not say a word but merely
looked on, remembering the warning of the Dagatans. Neither did he say anything to his parents about the
incident when he reached home.

On the same morning, June 12th, Domingo f. Buot, then chief of police of Carmen, was notified by one
Florentina Laping, now deceased, that there was a body floating in the creek. He hurried to the place and saw
the body of Victorio Ceniza whom he knew personally. There was already a crowd of people viewing the floating
corpse, among whom was Isabelo Neis who took pictures thereof (Exhs. D and E). The chief of police then
notified the justice of the peace and the president of the sanitary division, Dr. Mercado, and the body was
removed to the house of the mother of the deceased. Autopsy was made by Dr. Mercado, between 9:00 and
10:00 that morning, who found that —

(a) The immediate cause of death was drowning — the lungs and stomach had plenty of water;

(b) Contusions of different parts of the body caused before the body was thrown into the water;

(c) The humerous bone of the left arm was broken, caused by a hard and blunt instrument like a cane
or "caborrata;"

(d) The victim was still alive, although unconscious, when thrown into the water.

Police investigation revealed that the last person with whom the deceased was seen before his death was
Leodegario Into. When taken in for questioning, Into told everything he knew about the crime, which led to the
prosecution of herein appellants. In the course of his investigation, the chief of police found the "caborrata," the
middle portion of which was broken, hanging on a post in the house of the Dagatans.
Appellant's defense is alibi. They contend that on the night in question they were not in Dawis bridge in Carmen,
but in the city of Cebu, which is about 40 kilometers from the scene of the crime.

Testifying in his behalf, Sergio Dagatan told the court that he has been a driver of the A & B Taxicab of the city
of Cebu since 1924; that at any time on June 11, 1937, he did not go to Carmen because from about 8:00
o'clock in the morning of June 10th up to about the same hour of the following morning, or a 24-our stretch, he
was on duty driving the A & B taxi within the city of Cebu; that the practice of the company was to assign two
drivers to a given car, who takes turn in driving it for 24 straight hours; that his partner assigned to drive the
same car was Roberto Remolisan; that at about past 8:00 o'clock in the morning of June 11th, after turning over
his receipts of the previous day to Genaro Cabahug of the A & B Taxi, he took his breakfast in a nearby
restaurant and then went to sleep in the upper part of the garage where drivers sleep or rest; that he did not
return to his home at the barrio of Pag-utlan, municipality of Danao, which is about 33 or 34 kilometers from
Cebu city because he had to wait for his wife and his brother Epifanio Dagatan who was taking a boat that
evening from Cebu to go to Manila; that as a matter of fact he and his wife conducted his brother Epifanio to the
wharf to see him off; that he did not go out of the city of Cebu during the whole day of June 11th, but slept in the
company garage with his wife and small child. He also stated that he did not know the deceased Victorio Ceniza
nor witness Leodegario Into, but that he knew their names only when this case was first heard before Judge De
la Rama.

On cross-examination he admitted that he has a house in the barrio of Pag-utlan, municipality of Danao, and that
he lives with his family there; that Danao is about 34 kilometers from Cebu and about 7 kilometers from Carmen;
that he was off-duty on the 11th, and although he was free to go home to Danao, he preferred to stay and sleep
in the company garage in Cebu because, at any rate, he would again be on duty for 24 hours in the following
morning, June 12th; that he used to go home to Danao when off-duty unless he had an important engagement in
Cebu, like the occasion when his brother had to leave for Manila.

Saturnino Dagatan, testifying in his behalf, stated that he was also a driver of the A & B Taxi in Cebu; that on
June 11, 1937, he was driving a taxi within Cebu and did not go outside the city; that he has not gone to Carmen
the evening of June 11th; that everytime he drove his taxi, he was given a ration of 10 liters of gasoline which, if
he went out of the city, had to be replaced and permission had to be sought from the company; that from Cebu
to Carmen the car would consume about 10 liters of gasoline; and that he could not have been to the place of
the crime because he was in Cebu from six to twelve o'clock that evening.

On cross-examination, however, he admitted that there were many buses, trucks and jeepneys plying between
Cebu and Carmen; that if he were to drive himself, it would take him only forty minutes to go to Carmen from
Cebu; that Exhibits 2 and 2-A are samples of the company form wherein the trips and taxi fares are recorded;
that Exhibit 2 is kept by the company, while Exhibit 2-A is retained by the driver; that the records of the company
were presented in court at the first hearing and were seen by Judge De la Rama.

To corroborate them, appellants presented Genaro Cabahug, the person in charge of the company at the time,
who testified that as a general practice of the taxicab company, drivers were only allowed to drive within the city
of Cebu; that if they had to go beyond the city limits they had to notify to Office, and that if they needed more
gasoline for the trip, they had to ask for additional ration; that the company had a place in the upper part of the
garage wherein drivers who do not live in the city of Cebu rest and wait for their turns; that on June 11th, 1937,
he remembers that Sergio Dagatan was in the resting place in the garage, and that Saturnino was on duty until
the latter was relieved the following morning; that Sergio was not driving that evening because it was Saturnino
who was on duty, and that these two were driving the same car, so that if one was driving, the other was off-
duty.

On cross-examination, he told the court that the company had 36 drivers for the 18 cars; that he cannot recall
the exact whereabouts of each and every one of the 36 drivers on that particular day, but that he remembers
particularly those of Sergio and Saturnino Dagatan because of the incident that happened which is of importance
to his (witness) family, the deceased being a distant relative of his; that he cannot remember even the names of
the 16 other drivers on duty on the day in question except herein appellants; neither could he remember the
companions of Sergio while the latter was resting in the garage, but that he only presumed he had companions
because the practice was that drivers living outside the city take their rest in that place and wait for their turns;
that Sergio is from the municipality of Danao and had his family there; that he does not know where Saturnino
was at 6:00 o'clock that evening and does not remember where he was at 10:00 o'clock on the same night,
although he maintains that Saturnino was within the city of Cebu because anytime a driver goes beyond the city
limits, he has to notify the office for advice, and that if their gasoline is not enough for the trip, he has to ask for
additional gasoline; neither does he remember where Saturnino was at 12:00 o'clock that midnight, but that he
presumed he was within the city in accordance with the company record which had been presented at the former
trial, although it was possible that even if it is recorded in the company books that Saturnino was driving within
the city, he could have left the taxi in some corner under the pretext that he is within the city, and could have
taken a bus out of the city.

Appellant's alibi does not merit serious consideration by the court. Time and again we have held that in order
that this kind of defense, which is easily and conveniently manufactured, could prosper, it must be so convincing
as to preclude any doubt that the accuse could not have been physically present at the place of the crime or its
immediate vicinity at the time of its commission. In this particular case, appellants loosely told the court that at
around eleven o'clock on the night of June 11, 1937, they were not in Carmen when the crime was being
committed because they were in Cebu. They, however, failed to present credible and tangible evidence that it
was physically impossible for them for them to be at Carmen at that time. On the contrary, they themselves
furnished evidence that Carmen is only about 40 kilometers from Cebu city, with abundant means of
transportations such as buses, jeepneys and trucks plying between the two places, which would at most take an
hour to go from one place to the other, and according to Saturnino himself, it would only take him 40 minutes if
he were to drive the car himself. With respect to Sergio's assertion that he slept at the company garage with his
wife and child on the night in question, his word alone, devoid of corroboration, is not enough to justify its
veracity and credibility, for he admitted that when he was not on duty, he used to go home to his family at the
barrio of Pag-utlan, Danao, which is about 33 kilometers from Cebu and some 7 kilometers from the scene of the
crime, unless he has an important engagement to attend to in Cebu, it was not impossible for him to go to
Carmen with his brother Saturnino at around ten o'clock. Anent Saturnino's testimony that he was on duty from
8:00 o'clock in the morning of June 11th up to the following morning, driving his taxi within the city of Cebu, his
defense bolsters the contention of the prosecution that he participated in the killing of the deceased rather than
helps his defense, for he could have driven his taxi, with his brother Sergio, to Carmen in just 40 minutes to
commit the crime, and then return to Cebu soon thereafter, without Genaro Cabahug knowing his whereabouts,
for, according to Cabahug himself, there was no way of tracing the movement of each and every driver on duty
despite the standing practice that they must notify the office whenever they made trips outside the city, but that it
was possible for such driver, particularly for Saturnino, to leave his taxi in a certain corner in Cebu and take
another transportation to Carmen without the company knowing about it.

On the other hand, Leodegario Into's positive testimony that he saw the Dagatan brothers beat up the deceased
with the cane and "caborrata" at the Dawis bridge and throw him into the water is corroborated by the pictures
Exhibit D and E and by the unrefuted testimony of the chief of police who stated that he found the "caborrata"
broken at the middle, hanging in a post of the house of the Dagatans. There is no room for doubting, therefore,
that appellants committed the crime as charged.

With respect to the defense of double jeopardy invoked by appellants, suffice it to say that the same has already
been passed upon by us when this case was first brought before this Court on this point (G. R. L-4396, October
30, 1951), wherein we held that jeopardy had not set by reason of the fact that the failure of Judge De la Rama
to decide the case after its submission for decision, did not terminate the case either by dismissal or by
conviction.

The lower court in sentencing appellants to an indeterminate sentence of from 6 years and 1 day of prision
mayor to 17 years, 4 months and 1 day of reclusion temporal, considered in their favor two mitigating
circumstances, namely, that of having committed the crime in the immediate vindication of a grave offense to
their sister Lucila Dagatan (par. 5, Art. 13, RPC), and that they acted upon an impulse so powerful as naturally to
have produced passion or obfuscation (par. 6, Art. 13, RPC). But these two circumstances cannot be considered
not only because the elopement of Lucila Dagatan with Eleuterio Yara and her abandonment by the latter took
place long before the commission of the crime, but also because the deceased was not the one who eloped with
and abandoned her. Furthermore, and as correctly pointed out by the Solicitor-General, these two mitigating
circumstances cannot be counted separately and independently (People vs. Yaon, 43 Off. Gaz., 4142). On the
other hand, we find duly proven the aggravating circumstances of nighttime, superior strength and treachery
which qualify the crime as murder, and following Art. 248, in relation to Art. 64 of the Revised Penal Code, the
penalty that should be imposed upon appellants is reclusion perpetua.

Wherefore, with the modification of the penalty imposed, the judgment appealed from is AFFIRMED in all other
respects.

Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, and Barrera, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-3765             June 21, 1951

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MORO SABILUL, defendant-appellant.

Filoteo Dianelo Jo for appellant.

First Assistant Solicitor General Roberto A. Gianzon and Office of the Solicitor Jose G. Bautista for appellee.

MONTEMAYOR, J.:

Sabilul was charged with murder in the Court of First Instance of Zamboanga on the following information:

That on or about the 14th day of September, 1949, and within the jurisdiction of this Honorable Court,
viz., in the district of Lamitan, City of Basilan, Philippines, the above named accused, with treachery and
evident premeditation, did then and there willfully, unlawfully and feloniously, assault and attack one
Moro Lario by means of a "pira" a Yakan bladed weapon, thereby inflicting upon the body of said Moro
Lario multiple wounds which caused his instant death.

Upon arraignment, and with the assistance of counsel, Atty. Filoteo Dianela Jo, who was appointed counsel de
oficio for him, Sabilul entered a plea of guilty. Without taking any evidence and merely on the basis of the
statements and contentions made by the provincial and counsel de oficio, which, indeed were conflicting, Judge
Pablo Villalobos, presiding over the trial court, forthwith dictated the following sentence in open court:

SENTENCE

The accused herein stands charged with the crime of "Murder" committed according to the information
file by the City Attorney, as follows:

xxx     xxx     xxx

Upon arraignment and assisted by his attorney-de-oficio, Filoteo Dianela Jo, the accused voluntarily
entered the plea of guilty.

The present case falls within the provision of article 248, sub-section 1 of the Revised Penal Code which
prescribes the penalty of RECLUSION TEMPORAL in its maximum period to death. However, there are
three mitigating circumstances present, which are: (a) the accused has acted upon an impulse so
powerful as naturally to have produced passion or obfuscation (b) voluntary surrender and (c) the plea of
guilty, and the same are not offset by any aggravating circumstance. So, the penalty that should be
imposed upon the accused is that one next lower in degree than the penalty above prescribed, in
accordance with article 64, paragraph 5 of the same legal code. Taking into consideration further that the
accused is a "Yakan" belonging to the Non-Christian Tribes and hopelessly ignorant, the provision of
section 106 of the Administrative Code for the Department of Mindanao and Sulu should be made
applicable under the circumstances of the case.

IN VIEW THEREOF, the court finding the accused guilty by his own voluntary confession of the crime of
"Murder" as alleged in the above-quoted information, hereby sentences him to suffer the penalty of not
less than SIX(6) YEARS and ONE (1) DAY nor more than EIGHT (8) YEARS of prision mayor; to pay the
heirs of the deceased Moro Lario in the amount of P2,000; with the accessory penalties prescribed by
law; and to pay the costs of these proceedings.

The defendant thru his same counsel is appealing from that decision, claiming that the lower court erred in
applying the provision of Art. 248, subsection 1 of the Revised Penal Code instead of Art. 247 of the same code
which provides for the application of the penalty only of destierro. The Solicitor General in his brief says that
judging from what transpired during the arraignment as well as from the contention of counsel for the appellant, it
is highly possible that there was misunderstanding on the part of said appellant when he entered the plea of
guilty; also that his counsel may have believed that the entry of plea of guilty by his client was conditioned on the
penalty provided for by Art. 247 of the Revised Penal Code being imposed upon his client. We are inclined to
agree with the Solicitor General.

Examining the record, it seems to us that the proceedings had in the lower court have been quite irregular,
characterized by series of errors and misunderstanding not only on the part of the counsel for the defendant but
also on the part of the court itself. Counsel should have known that an accused may not enter a conditional plea
of guilty in the sense that he admits his guilt provided that a certain penalty be imposed upon him. In such a
case, the information should first be amended or modified with the consent of the Fiscal if the facts of the case
so warrant. Otherwise, by entering a plea of guilty the defendant admits wise, by entering a plea of guilty the
defendants admits all the material allegations of the information which in the present case are that appellant
committed the crime of murder with the aggravating circumstance of evident premeditation.

And as to the trial court, as already stated, without taking any evidence whatsoever, it dictated the decision in
open court containing facts or findings of facts which are not supported by the evidence for the simple reason
that no evidence whatsoever has been presented. For instance the decision enumerates as one of the mitigating
circumstances the fact that the accused acted upon an impulse so powerful as naturally to have produced or
passion or obfuscation. No witness, not even the accused was put on the witness stand. So, naturally this
supposed mitigating circumstance could not have been established. Neither was the theory of the defense as to
how the killing was done, proven or attempted to be proven. The same thing may be said of the supposed
mitigating circumstance of voluntary admission by any official, established this fact. In its decision, the trial court
also states that the accused is a "Yakan" belonging to the non-Christian Tribe and hopelessly ignorant. No
evidence on this point was taken. It seems that the trial court listened to the conflicting statements and claims of
the Fiscal and counsel de officio, accepted some and rejected others and then dictated its sentence on what it
thought to be the facts of the case, plus the plea of guilty entered by the accused. Said procedure is, of course,
wrong. Findings of fact of a court must have basis and support. And in case as serious as murder, the court
should not content itself with a plea of guilty, especially by Non-Christian whom it considers to be hopelessly
ignorant, but should receive evidence to satisfy itself that the crime had already been committed, and the
circumstances surrounding its commission.

It seems to be the theory of the prosecution, judging from the statements of the fiscal, that the victim Moro Lario
and the appellant's wife Mora Masilayan had been maintaining illicit relation, and that because of this, appellant
divorced her according to the Moro custom, and that to avenge the dishonor caused him, on the day of the killing
he surprised Moro Lario taking a bath in a river, whereupon he attacked and killed him. It is equally the claim of
the defense as stated by counsel that altho defendant had divorced his wife, they were later reconciled and
again lived together; that one day said wife went to the river to fetch water but the deceased upon seeing her
there, criminally attacked and succeeded in having sexual intercourse with her; that she shouted for help, her
shouts bringing her husband running to her rescue, and that finding the deceased still on the top of his
(defendants) wife, he (defendant) attacked, pursued and killed Lario with a bladed weapon.

If either one of those theories is correct, it is to interest of justice that it be established in regular proceedings and
by means of evidence.

We repeat that we are inclined to agree with the Solicitor General that there must have been misunderstanding
as to the entry of the plea of guilty by the accused. In this connection we quote a portion of the decision of this
Court in the case of U.S. vs. Jamad, 37, Phil. 305, which we find pertinent:

Having in mind the danger of the entry of improvement pleas of "guilty" in Criminal cases, the prudent
and advisable course, especially in cases wherein grave crimes are charged, is to take additional
evidence as to the guilt of the accused and the circumstances attendant upon the commission of the
crime.

The better practice would indicate that, when practicable, such additional evidence should be sufficient
to of the charges to sustain a judgment of conviction independently of the plea of guilty, or at least to
leave no room for reasonable doubt in the mind of either the trial or the appellate court as to the
possibility of a misunderstanding on the part of the accused as to the precise nature of the charges to
which he pleaded guilty.

xxx     xxx     xxx
 But in the event that no evidence is taken, this Court, if called upon to review the proceedings had in the
court below, may reverse and send back for a new trial, if, on the whole record, reasonable doubt arises
sustain a judgment of conviction independently of the plea of guilty, or at least to leave no room for
reasonable doubt in the mind of either the trial or the appellate court as to the possibility of a
misunderstanding on the part of the accused as to the precise natures as to whether the accused did in
fact enter the plea of "guilty" with full knowledge of the meaning and consequence of the act.

Setting aside the decision appealed from and acting upon the recommendation of the Solicitor General, it is
hereby ordered that the case be returned to the trial court for new trial. It suggested that the observations made
in this decision be noted by the trial court and counsel for the appellant so that the irregularity in the proceedings
had before the errors and misunderstanding attending, be not repeated.

Paras, Bengzon, C.J., Feria, Pablo, Padilla, Tuason, Reyes, and Jugo, JJ., concur.
 EN BANC

G.R. No. 131736-37      March 11, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JOEY MANLANSING y AMBROSIO, and MARIO MANLANSING y AMBROSIO, accused-appellants.

QUISUMBING, J.:

For automatic review is the joint decision 1 dated May 2, 1997, of the Regional Trial Court of Cabanatuan City,
Branch 27, in Criminal Cases No. 6150-AF and No. 6151-AF, convicting appellants of two counts of murder and
sentencing them to suffer the penalty of death for each count. Appellants were also ordered to pay the heirs of
the victims P250,000 for actual damages and P500,000 as moral damages for each count of murder.

Appellants are brothers. For four years they were tenants of the spouses Magin 2 and Jorja Soriano.

In an amended information dated December 30, 1994, appellants were charged with the murder of Jorja Soriano
allegedly committed as follows:

That on or about the 27th day of December, 1994, in the City of Cabanatuan, Republic of the Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and
mutually aiding one another, with intent to kill and with evident premeditation, treachery and taking
advantage of night time and with the use of bolo, did then and there wilfully, unlawfully and feloniously
attack, assault and use personal violence upon the person of JORJA SORIANO y Rigor by hacking the
latter, thereby inflicting upon the latter serious injuries which directly caused her death.

CONTRARY TO LAW.3

In an amended information also dated December 30, 1994, and similarly worded except for the victim's name,
appellants Joey and Mario Manlansing were likewise charged with the murder of Magin Soriano. 4

Inasmuch as the two cases were interrelated, having arisen from the same incident, the two cases were
consolidated.

On arraignment, Joey Manlansing pleaded not guilty to both charges, while Mario Manlansing pleaded guilty to
two counts of murder. After they waived pre-trial, both cases were heard on the merits.

For the prosecution, SPO2 CASTILLONES of the Philippine National Police (PNP), testified that at around 8:00
A.M. on December 28, 1994, a concerned citizen informed the Cabanatuan City Police Station of an alleged
killing in a house at Bitas, Cabanatuan City. Immediately, a team composed of P/Insp. Bienvenido Padua, SPO2
Castillones, and SPO1 Edgardo Pangilinan went to the place. 5 When they arrived at the Soriano residence, they
spotted bloodstains on the ceiling. Before they entered the house, they waited for Nestor Villa of the National
Bureau of Investigation (NBI) who was tasked to take fingerprints at the crime scene. 6 In the stockroom on the
first floor, they found the lifeless body of 70-year-old Magin in a pool of blood. 7 There were several wounds on
his hands and arms, as well as cuts on his head. They took pictures of the corpse. 8 Upstairs, they found the
corpse of his 68-year-old spouse, Jorja, on the floor, her throat slit and her neck hacked. 9 Her throat was stuffed
with a small towel and bloodstains covered her stomach. 10 The investigators also took photos of the deceased.
When they turned her body over, they found a six-inch bloodstained knife, with the initials "JF" carved in the
handle.11 The police made rough sketches12 and took more photographs,13 while Villa lifted fingerprints from the
scene and the knife.14 These were sent to the NBI office in Manila. The cadavers were brought to the City Health
Office for autopsy.

DR. JUN CONCEPCION, medical officer of Cabanatuan City, who autopsied the bodies, testified that Magin's
death was due to "hypovolemic shock secondary to multiple hacking wounds on the head and nape." 15 Jorja's
death was the result of "hypovolemic shock secondary to hacking wound on the neck, right side." 16 They died
between 10:00 P.M. on December 27, 1994 to 3:00 A.M. of December 28, 1994. Dr. Concepcion testified that
from the nature of the injuries sustained, the wounds could have been inflicted by more than one person, since
two different weapons were used.17 He declared that the weapon used to inflict the hacking wounds was not
pointed, while the stab wounds were caused by a sharp and pointed instrument. 18

Two carpenters constructing a chapel for the Sorianos said that appellants frequented the house of the victims
even at night. They reported seeing appellants enter the Sorianos' house on the night of December 27, 1994.
Thus, the police ordered a manhunt for the Manlansing brothers.

On December 28, 1994, appellant Joey Manlansing was arrested in Sta. Clara, Cuyapo, Nueva Ecija and
brought back to Cabanatuan City for questioning. During custodial investigation, Atty. Edgardo Villarin, the city
legal officer, advised him not to talk.19 Nevertheless, he named his brother, Mario, as the killer. He denied
participation in the killing, but he admitted boxing Jorja in the face to prevent her from shouting, while Mario was
assaulting her husband.20

SPO3 CAMPOS declared that on December 29, 1994, the police were tipped that appellant Mario Manlansing
was hiding in Paniqui, Tarlac. Accompanied by Enrique Manlansing, appellants' father, they went to Paniqui and
apprehended Mario.21 During the custodial investigation, assisted by counsel, he confessed. 22 He said he hid the
bolo at his sister-in-law's house in Sta. Clara, Cuyapo, Nueva Ecija. 23 It was recovered and sent to the NBI in
Manila for examination.

NBI forensic chemist ALICIA LIBERATO testified that she examined a bolo and a knife and found human
bloodstains on them.24

On December 30, 1994, a re-enactment of the crime was done at the crime scene. Mario said that after he killed
the spouses, he and Joey ransacked bags in the house but found neither money nor jewelry. He told Joey to
change his clothes so they could go. Mario then got some rags and tried to clean up the place. He went to the
bathroom downstairs to wash the bolo and the rags. 1âwphi1.nêt

NBI fingerprint expert NESTOR VILLA took the fingerprints from the crime scene and sent them to the office in
Manila for examination.

BAYANI25 PALAD, a dactyloscopy expert, testified that a comparison of the prints from the crime scene showed
that two prints matched the left middle and ring fingerprints of appellant Joey Manlansing. 26

For the defense, MARIO MANLANSING claimed he alone was responsible for the deaths. In open court, Mario
affirmed his confession and insisted that his brother had nothing to do with the deaths. 27 He claimed that Joey
woke up only after he killed Magin28 and that Joey tried to unsuccessfully stop him from attacking Jorja. He said
he killed the couple out of anger after Jorja told him that he was going to be ejected as a tenant. Mario said Joey
knew nothing of his motive.29

On the stand, appellant JOEY MANLANSING affirmed his sworn statement naming Mario as the person solely
responsible for killing the spouses. He denied any participation in it,30 but admitted hitting Jorja because she was
shouting and he did not want his brother to hear her, lest he attack her too. 31

The defense also presented ENRIQUE MANLANSING, the father of the appellants. He testified that he fetched
Mario from Paniqui, Tarlac, in order to surrender him to the authorities. 32

Finally, the prosecution presented a balut vendor, MARIO BARTOLOME, as its rebuttal witness. He testified that
on the night of the killings, he was plying his trade at "Cynthia's Eatery," right across the Sorianos' residence. At
around 11:00 P.M. he offered his wares to two persons who came out of the Sorianos' house. He noticed that
both had bloodied shirts. When he inquired about the bloodstains, they answered they had just killed a pig and
threatened he could be next. Scared, he shut up. The following day, he heard about the killings on the radio but
did not inform the police about his encounter with the appellants. It was only after his conscience bothered him
that he reported it to the police.33
After trial, appellants were convicted, thus:

WHEREFORE, this Court holds that the guilt of both accused had been proven beyond reasonable
doubt and therefore sentences them (to):

1) Death in Criminal Case No. 6150;

2) Death in Criminal Case No. 6151;

3) In both cases to pay the heirs of the deceased:

a) P250,000.00 by way of funeral and other expenses and actual damages.

b) P500,000.00 as moral damages.

SO ORDERED.34

Hence, this automatic review. Appellants allege in their brief that the trial court committed the following errors:

THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANT JOEY MANLANSING IN

CRIMINAL CASE NO. 6150-AF AND 6151-AF DESPITE THE FACT THAT HIS GUILT WAS NOT
PROVEN BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE QUALIFYING AGGRAVATING

CIRCUMSTANCE OF EVIDENT PREMEDITATION.

III

THE TRIAL COURT ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCE OF ABUSE

OF SUPERIOR STRENGTH AND TAKING ADVANTAGE OF NIGHTTIME.

IV

THE TRIAL COURT LIKEWISE ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCE

OF TREACHERY.

THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY UPON ACCUSED-
APPELLANTS MARIO MANLANSING AND JOEY MANLANSING.

Two principal issues are for resolution: (1) Did the trial court err in convicting both appellants Mario Manlansing
and Joey Manlansing for alleged conspiracy to kill the Sorianos? (2) Did the trial court err in imposing the death
penalty upon appellants?On the first issue, appellants contend that since there were no other witnesses, nothing
can be clearer than the confession of appellant Mario Manlansing that he alone killed the couple and that his
brother Joey had nothing to do with the incident. They submit that a confession if freely and voluntarily given is
deserving of the highest credit. Inasmuch as Mario's confession was freely and voluntarily given and was
reiterated by him during trial, the lower court erred in not giving credit to said confession.

Appellants also aver that the trial court likewise erred in finding Joey guilty of conspiring with Mario
notwithstanding Mario's categorical confession that Joey had no participation in the killings. Appellants contend
that the mere fact that they are siblings does not mean that Mario's testimony was not credible. According to
appellants, an accused in a criminal case may competently testify for or against any of his co-accused.

For the appellee, the Office of the Solicitor General (OSG) avers that the guilt of appellant Joey Manlansing as a
conspirator has been proven beyond reasonable doubt. First, he admitted boxing Jorja in the face. However, he
explained that he only did this out of fear that Mario might hear her shout and attack her. But, as stressed by the
OSG, the medico-legal evidence contradicts Joey's statement that he boxed Jorja only once. The autopsy report
showed that Jorja sustained hematoma on her face and chest, an indication that she was struck several
times. Second, the city medical officer, Dr. Concepcion, testified that from the nature and types of wounds found
on the bodies of the victims, one person alone could not have inflicted the fatal injuries. The police recovered
two different types of weapons, namely, a bolo and a knife. Third, a comparison of the fingerprints taken from the
crime scene and Joey's standard fingerprints showed that two of his fingerprints were recovered from the crime
scene. Fourth, Mario admitted during the re-enactment of the incident that he and Joey ransacked the place
looking for cash and jewelry. Fifth, rebuttal witness Mario Bartolome testified that he saw appellants step out of
the Sorianos' house on the night of the killings wearing bloodstained shirts. Finally, Joey's flight from
Cabanatuan City belies his innocence regarding the killing of the Sorianos. Flight is an indication of guilt, for a
truly innocent person would normally stand his ground, and grasp the first opportunity to defend himself and
clear his name.

While giving credence to the confession of Mario Manlansing that he killed the couple, the trial court disbelieved
appellant's claim that he alone did both killings and that Joey had no participation therein. Instead, it relied on a
chain of circumstances to show that appellants conspired to kill the Sorianos, and committed the crimes
pursuant to that conspiracy.

The conviction of Joey Manlansing is thus anchored on the premise that there was conspiracy between the
brothers. Conspiracy exists when two or more persons come to an agreement concerning the commission of a
crime and decide to commit it.35 Conspiracy does not require a previous plan or agreement to commit an assault.
It is sufficient that at the time of the aggression all the accused manifested by their acts a common intent or
desire to attack.36 Jurisprudence tells us consistently that the conduct of the accused before, during, and after
the commission of the crime may be considered to show an extant conspiracy. 37 The testimonial and physical
evidence on record reveals that Joey's conduct during and after the attack of his brother on the spouses was
conspiratorial. Most significant of these pieces of evidence is the finding of Dr. Concepcion, that from the depth
and nature of the victims' wounds, the weapon used for hacking could not be the same as the one used for
stabbing. The discovery of the two weapons, a bolo recovered in Tarlac where Mario hid and which he admitted
was his, and a knife recovered underneath Magin's corpse, confirms the finding that the wounds were inflicted
by two different weapons. If indeed, as Mario confessed, he did the killings single-handedly, he would then be
using a bolo and a knife either simultaneously, alternatively, or successively in killing Magin. As Dr. Concepcion
opined, simultaneously hacking and stabbing by using a long weapon and another short bladed weapon was
impossible. That Mario would use both the bolo and the knife alternatively or successively is unlikely to be true
and contrary to the nature of reality. The logical conclusion would then be that, considering the two weapons,
there were at least two attackers, each using one deadly instrument.

There are other reasons for us to discount the story of the brothers that only Mario single-handedly killed the
spouses. For one, we find inconsistencies in their testimonies. In Joey's sworn statement, which he executed in
front of witnesses and in the presence of counsel, he said he punched Jorja , ". . . para walang
makarinig . . . ."38 In his testimony in court he said, "Because she might be heard by my brother and he might
attack her."39 Again, Mario said that Joey tried to stop him from hurting Jorja and while trying to grapple the bolo
from him, Joey got wounded.40 Yet, Joey in his sworn statement does not mention getting wounded and said that
he was merely elbowed by his brother when he tried to stop the latter from harming Jorja. 41 And, in his testimony
in open court, he merely said Mario hurled insulting words at him as they struggled over the bolo. 42 He does not
say anything about being wounded. A major variation in Joey's statements that gives his reason for assaulting a
victim and an omission of an important detail, i.e. his being wounded, together cast doubt on Mario's disavowal
that Joey did not participate in the killings. His story was obviously an afterthought to absolve his younger
sibling. Testimonies to be believed must not only come from the mouth of credible witnesses but should by
themselves be credible, reasonable and in accord with human experience. 43

In addition, the brothers' footprints and fingerprints were lifted from the crime scene. Before they fled they both
tried to wipe out traces of their foot and handprints. Both admitted that they ransacked the place for valuables
after the spouses were slain. Lastly, on their way out of the compound, a witness whom they threatened to be
butchered like a hog, saw them with their shirts bloodstained.

All the foregoing details presented as evidence by the prosecution more than suffices to show that the brothers
were united and had cooperated in a conspiracy to attack the spouses. In a conspiracy, the act of one
conspirator is the act of the other co-conspirator. Thus, Joey is equally responsible as his brother, Mario for the
death of the Sorianos.
Mario and Joey were convicted on the basis of Mario's sworn statements confessing to the killing of the spouses,
the testimonies of the witnesses for the prosecution, as well as on circumstantial evidence addressed before the
trial court. To sustain a conviction on circumstantial evidence, the following requisites must concur: (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.[44] The
circumstances themselves, taken together, should point to overt acts of the accused that would logically point to
the conclusion, and no other, that the accused is guilty of the crime charged and at the same time inconsistent
with the hypothesis that he is innocent.45

We agree with the trial court and the OSG that the chain of circumstances, all of which have already been
discussed, can only lead to the conclusion that Joey and Mario cooperated to commit the killings. To summarize,
they are: (1) the medico-legal officer's testimony that two different bladed weapons were used, (2) his finding
that one person alone could not have inflicted the wounds simultaneously, (3) the recovery of two distinct bladed
weapons, (4) Joey's admission that he boxed Jorja (4) both appellants' admission that they searched the victims'
belongings for cash and valuables, (5) the presence of Joey's fingerprints at the scene of the crime, and (6) the
testimony of the balut vendor that he saw the brothers with bloodstained shirts leaving the locus
criminis together. Thus, we find no error committed by the trial court in holding that both appellants had
conspired and are guilty beyond reasonable doubt of killing Magin and Jorja Soriano.

However, we are unable to agree now with the trial court that the offenses committed by appellants could be
qualified as murder. They are guilty only of double homicide. Hence, it is improper now to impose the death
penalty on each of them.

A review of the informations filed against appellants, in relation to prevailing law and jurisprudence as well as the
newly adopted revisions of the Rules of Court favorable to the accused will show that the crimes of the brothers
could not be qualified as murder. Only recently in People vs. Gario Alba alias "Mario Alba, G.R. No. 130523,
promulgated January 29, 2002, we ruled that pursuant to Sections 8 and 9 of Rule 110 of the Revised Rules on
Criminal Procedure46 which took effect on December 1, 2000, the information should state not only the
designation of the offense and the acts and omissions constituting it but shall also specify its qualifying and
aggravating circumstances.47 We noted in Gario Alba, that although the circumstance of treachery was stated in
the information, it was not alleged with specificity as qualifying the killing to murder. Since the information
in Gario Alba, failed to specify treachery as a circumstance qualifying the killing to murder, treachery was
considered only a generic aggravating circumstance, hence, we said that the crime committed in Gario Alba was
homicide and not murder.

So is it with the present case. None of the aggravating circumstances were alleged in the informations nor in the
amended informations with specificity as a qualifying circumstance elevating either killing to murder. Thus,
conformably with Gario Alba, the offenses committed by appellants only constitute two counts of homicide and
not murder. Since the penalty for homicide under 249 of the Revised Penal Code is reclusion temporal, it is
incorrect to sentence both appellants to death.

In evaluating the circumstances that qualified the crimes to murder, the trial court considered, aside from evident
premeditation, treachery, nighttime, and use of a deadly weapon, the aggravating circumstances of abuse of
superior strength and dwelling.

We note that abuse of superior strength and dwelling were not alleged in the informations. In accordance then
with Section 8 of Rule 110 of the Revised Rules of Criminal Procedure, abuse of superior strength and dwelling
may not be appreciated to convict the brothers. Further, should there be a finding of treachery, then abuse of
superior strength is absorbed by the former. We are thus left to review only the allegation that the aggravating
circumstances of evident premeditation, treachery, and nocturnity were present in the commission of the crimes.

At the outset, we shall discount nocturnity as an aggravating circumstance, since in this case, the darkness of
the night was not purposely sought by the offenders to facilitate the commission of the crime nor to ensure its
execution with impunity.

The element of evident premeditation is manifested by the planning and preparation undertaken by the offender
prior to the commission of the crime.48 It is not presumed from the mere lapse of time49 nor can it be deduced
from sheer speculation.50 An intangible matter, evident premeditation is exhibited from these circumstances ---
(1) the time when the offender has appeared determined to commit the crime; (2) the act evidently indicating that
the offender has clung to his determination; (3) sufficient lapse of time between the determination to commit the
crime and the execution thereof during which the offender could have reflected upon the consequences of his
act.51 In the present case, all three circumstances are present and clear from the testimony alone of Mario. The
TSN reads:

Q:      That conversation about the seedling, how long did it take?

A:      Only about fifteen minutes also, and then they went upstairs.

Q:      How long did you stay there after they left you watching the TV?

A:      When they went up, my brother Joey also retired for the night and I continued watching the TV and
I turned off the TV at round 10:00 o'clock.

Q:      After turning off the TV, what else did you do?

A:      And then, I planned the method by which I could kill.

Q:      Sino? (Literally: "Who?")

Atty. Jackie A. Garcia:

Pinlano mo bang patayin sila? (Literally: "Did you plan to kill them?")

A:      I did not plan. It was only after hearing the words of Mrs. Soriano that she will have us killed.

Fiscal Amis:

When you switch off the TV at 10:00 o'clock, how long did you stay here in the sala before you
went up?

A:      After switching off the TV, I stayed for ten minutes here and planning how to have them out of their
room and I thought of the telephone.

Q:      After deciding about the method by which you can have them out of the room, what did you do?

A:      I got the bolo from my bag which was then placed on a chair. (witness pointing to a chair beside
the door) I went upstairs and I placed it beside the laundry basket.

Q:      What time was that?

Atty. Jackie A. Garcia:

May I request of clarification. Maybe the time element be clarified as to how long from the time to
turn the TV off?

Fiscal Amis:

7:15 when they brought the matter up, saka lang sila na-scold and then again, they watched the
TV until 10:00 o'clock.

Q:      Do you have a watch?

A:      None, Ma'am.

Q:      What time approximately do you think was it when you went upstairs?

A:      It took me ten minutes, after 10:00 o'clock when I stayed in sala and it took me around five minutes
to position the bolo and the telephone before I knock at their door.

Q:      How did you know that it was already 10:00 o'clock when you switched off the TV?
 A:      I was watching and there was no clock there. (witness pointing to the TV)

Q:      You said that you intended to kill the victim with the use of bolo. Was that reason why you brought
the bolo with you?

A:      I have no intention to use the bolo to kill them initially, it was only that I thought of the bolo when
we were scolded.

Q:      Was Majen Soriano able to shout for help?

A:      Only at the time when I first hacked him.

Q:      Was he still able to shout for help again?

A:      No more.

Q:      When he fell down the stairs, was he able to shout for help?

A:      He moaned when he fell down. 52

Earlier, during the re-enactment, Mario testified,

Q:      What did you do when you went upstairs?

A:      The phone was ringing and I told them that there was somebody calling, so I knocked. When I
knocked, the door was opened by the old man who came out of the room.

Q:      Who was that old man?

A:      Majen.

Q:      You are referring to Majen Soriano?

A:      Yes, Ma'am.

Q:      When he went out of the room, what happened?

A:      He went by the telephone which is near the staircase and he told me that there's nobody in the
telephone.

Fiscal Ignacio E. Domingo:

"Talaga bang nagriring ang telepono? (Literally: "Was the telephone ringing really?")

A:      The telephone was not really ringing. It was just my alibi.

Fiscal Amis:

At this juncture, PO3 Enrico Campose is posing as the old man Majen Soriano. PO2 Soriano is
positioning himself upon instruction of the respondent Mario Manlansing beside a small table where the
telephone was supposedly stationed.

Q:      Then what happened?

A:      I gave a telephone to Majen Soriano and then I took two steps backward and I got the bolo which
was placed beside the laundry basket. When he saw that I was holding a bolo, he sprang from his chair
and I immediately hacked him hitting his head and I saw blood from his head, then he made several
steps and again, I hacked his head and he fell down the stairs.
 Q:      Where did you get the bolo?

A:      I placed it there.

Q:      When did you place it there?

A:      When I planned to kill him and before I knock at their door, I placed the bolo beside the laundry
basket. When he fell down the stairs, I followed him there. (witness pointing to the place where the body
was then lying down) Majen rolled down the stairs and his head was near the refrigerator (which is
located at the bottom of the stairs). (witness positioning himself with his left foot on the first step and the
right foot on the second step and demonstrating that he again hacked the victim Majen Soriano)

Q:      Saan-saan tinamaan ang victim? (Literally: "Where was the victim hit?")

A:      I hacked the old man on his head and then I went down and dragged him.

Q:      Saan mo hinawakan? (Literally: Where did you hold him?")

A:      I placed my handkerchief in his mouth and dragged him by his mouth toward the room while my
other hand was holding his clothes. I dragged him inside the room and with the handkerchief stuffed in
his mouth was boiling with blood ("kumukulo ng dugo").

Q:      Was he still alive when you dragged inside the room?

A:      "Buhay siya at nanginginig pa siya at doon na siya nalagutan ng hininga." 53 (Literally: "He was alive
and still shaking and only then did his breathing stop.") (Underscoring ours.)

Based on these testimonies on record, we have no hesitation in concluding that there was evident premeditation
in the commission of the crimes. Likewise, treachery therein attendant was duly proved.

The essence of treachery is the sudden and unexpected attack by an aggressor on an unsuspecting victim,
depriving the latter of any real chance to defend himself, thereby ensuring its commission without any risk to the
aggressor, without the slightest provocation on the victim's part. 54 While mere suddenness of attack does not
automatically mean treachery,55 in these cases the narration of events before and during the commission of the
attacks clearly indicate the presence of treachery. Appellants were allowed inside the house of the couple. They
were even given supper after which the elderly couple went upstairs to their bedroom. Appellants remained
downstairs and continued watching television. As the OSG correctly points out, the victims in extending their
hospitality to their tenants, had neither hint nor suspicion of the fate that Mario had in store for them. When Mario
lured Magin to the phone, the latter was unaware he would be attacked.

In Jorja's case, Joey claims he had boxed Jorja before Mario hacked her to death. But according to Mario, she
was asleep when he entered the bedroom. He said she shouted, but "not loud", before he stuffed her mouth with
a towel and slashed her neck. The attack on Jorja then was also without warning and was treacherous.

We must reiterate at this juncture, however, that the evident premeditation and the treachery in the present
cases may only be considered as generic aggravating circumstances.

Coming now to the consideration of mitigating circumstances in the commission of the offense, Mario contends
that the trial court failed to take into account the mitigating circumstances of his voluntary surrender and plea of
guilty.

For voluntary surrender to be a mitigating circumstance, the following must concur: (1) the offender has not
actually been arrested; (2) the offender surrendered himself to a person in authority; and (3) the surrender was
voluntary.56 Recall that after the killings, Mario went into hiding in Paniqui, Tarlac and only surrendered after the
Cabanatuan City police were tipped on his whereabouts and sent a team to arrest him. He did not spare the
authorities the trouble and expense necessary to search and capture him. Clearly, Mario's surrender was neither
spontaneous nor voluntary. Thus, the OSG was correct when it said that Mario did not voluntarily surrender.

However, the trial court did err when it failed to appreciate Mario's plea of guilty to the two charges against him.
Under Article 13 (7)57 of the Code, a plea of guilty on arraignment is a mitigating circumstance. 1âwphi1.nêt
Insofar as Joey is concerned, there was no voluntary surrender and no voluntary plea of guilt, thus no
circumstance is available to him to mitigate his crime.

The rule is that when both mitigating and aggravating circumstances attend the commission of the crime, the
court shall reasonably allow them to offset one another in consideration of their number and importance, for the
purpose of applying the penalty.58

In the case of Mario, the aggravating circumstance of evident premeditation is offset by his spontaneous and
voluntary admission of guilt. Thus, there is only treachery, treated as a generic aggravating circumstance, left to
consider against him. Applying Article 64, par. 3,59 of the Revised Penal Code, the penalty imposable is reclusion
temporal in its maximum period. Further applying the Indeterminate Sentence Law, the minimum penalty is
imprisonment within the range of prision mayor as minimum and the maximum of reclusion temporal as
maximum.

In Joey's case, no mitigating circumstance could be appreciated in his favor for unlike his brother he did not
plead guilty. Two generic aggravating circumstances, evident premeditation and treachery, are thus to be
considered against him. Applying Article 64, par. 6, of the Revised Penal Code, 60 and the Indeterminate
Sentence Law Joey shall serve the same indeterminate sentence as Mario.

A final word on damages. The trial court awarded the surviving heirs of the victims P250,000 by way of funeral
and other expenses and as actual damages. In these cases, the prosecution failed to present any receipts to
substantiate their claims for expenses allegedly incurred. To be entitled to such damages, it is necessary to
prove the actual amount of loss with reasonable degree of certainty, premised upon competent proof and on the
best evidence available to the injured party.61 However, as the heirs of the victims did actually incur funeral
expenses, we are justified in awarding P10,000 not for purposes of indemnification, but by way of temperate
damages, in each case.62

We also find the award of P500,000 in moral damages excessive. Moral damages are not meant to enrich an
injured party. In line with prevailing jurisprudence, 63 the award in each case should be reduced to P50,000. In
addition, P50,000 as civil indemnity in each of these cases is mandatory and is granted to the heirs of the victims
without need of further proof other than the commission of the crime. 64

WHEREFORE, the decision of the Regional Trial Court, Branch 27 in Cabanatuan City in the consolidated
cases, Criminal Case No. 6150-AF and Criminal Case No. 6151-AF, finding both Joey Manlansing and Mario
Manlansing, guilty of murder beyond reasonable doubt for the death of both Magin Soriano and Jorja Soriano, is
hereby MODIFIED. Appellants Mario Manlansing and Joey Manlansing are each declared GUILTY beyond
reasonable doubt of two counts of HOMICIDE defined in Article 249 of the Revised Penal Code. Each appellant
is sentenced to suffer imprisonment for an indefinite period of 17 years, and 4 months as minimum to twenty (20)
years as maximum for each count of homicide, with accessory penalties provided by law. Further, each
appellant is ORDERED to pay the heirs of each victim P50,000 as civil indemnity, P50,000 as moral damages,
and P10,000 as temperate damages. Costs de officio.

SO ORDERED.

Davide, Jr., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Buena, Ynares-Santiago, De Leon,
Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

Footnote

 Sec. 8. Designation of the offense.- The complaint or information shall state the designation of the
46

offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying
and aggravating circumstances. If there is no designation of the offense, reference shall be made to the
section or subsection of the statute punishing it.

Sec. 9. Cause of the accusation.- The acts or omissions complained of as constituting the offense and
the qualifying and aggravating circumstances must be stated in ordinary and concise language and not
necessarily in the language used in the statute but in terms sufficient to enable a person of common
understanding to know what offense is being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment.

57
 Art. 13. Mitigating circumstances. The following are mitigating circumstances:

7. That the offender had voluntarily surrendered himself to a person in authority or his agents. Or
that he had voluntarily confessed his guilt before the court prior to the presentation of the
evidence for the prosecution.

58
 Rev. Pen. Code, art. 63 (4).

59
 Art. 64. Rules for the application of penalties with 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 Article 76 and
77, the court shall observe for the application of the penalty the following rules, according to whether
there are or there are no mitigating or aggravating circumstances:

xxx

3. When only an aggravating circumstance is present in the commission of the act, they shall
impose the penalty in its maximum period.

xxx

6. Whatever may be the number and nature of the aggravating circumstances, the court shall not impose
a greater penalty than that prescribed by law, in its maximum period.
 EN BANC

G.R. No. 134362               February 27, 2002

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EMELITO SITCHON y TAYAG, accused-appellant.

DECISION

KAPUNAN, J.:

For beating to death the two-year old son of his common-law wife, accused-appellant Emelito Sitchon y Tayag
was convicted of murder and sentenced to death by the Regional Trial Court of Manila. His case is now before
this Court on automatic review.

Appellant was charged in an information stating:

That on or about June 12, 1996, in the City of Manila, Philippines, the said accused did then and there willfully,
unlawfully and feloniously, with intent to kill and with treachery and evident premeditation, attack, assault and
use personal violence upon one MARK ANTHONY FERNANDEZ y TABORA a minor, 2 ½ years old, by then
and there mauling and clubbing him on the different parts of his body with the use of a steel hammer and a
wooden stick, approximately 18 inches long, thereby inflicting upon the latter mortal wounds which were the
direct and immediate cause of his death thereafter.

CONTRARY TO LAW. 1

Appellant pleaded not guilty to the above charge. However, before testifying in his own defense on June 4,
2 

1998, appellant admitted that he killed the victim and changed his plea to guilty. 3

Five witnesses testified for the prosecution, namely, Lilia Garcia, a neighbor; the victim's eight-year old brother
Roberto; the investigating officer, PO3 Paul Dennis Javier; Dr. Manuel Lagonera, medico-legal officer of the
National Bureau of Investigation (NBI); and Felicisima Francisco, a forensic chemist of the same agency.

Appellant lived in the second floor of a three-square meter house located at 2001 Batangas Street, Tondo,
Manila. His neighbor of two months, Lilia Garcia, resided in the first floor of the same house.

At about 10:00 in the morning of June 12, 1996, Lilia was in front of the house attending to her children when
she heard the sound of a boy crying. Curious, Lilia went up the stairway, her children in tow. The open door of
the upper floor allowed Lilia to witness appellant beating two-year old Mark Anthony Fernandez. From a distance
of less than three arms’ length, Lilia saw appellant hit various parts of the boy’s body with a piece of wood, about
14 ½ inches in length and 2 ½ inches in diameter. Appellant also banged the head of the boy against the
wooden wall.

The beating went on for about one hour. Lilia then saw appellant carry the boy down the house to bring him to
the hospital. The two-year old was "already black" and no longer moving. 4

Eight-year old Roberto Fernandez is the elder brother of the victim, also known as Macky. According to Roberto,
Macky had scattered his feces all over the house. Appellant, whom Roberto called Kuya Chito, thus beat Macky
with a belt, a hammer and a "2x2" piece of wood. Roberto could not do anything to help his brother because he
was afraid Kuya Chito might also beat him up. When Kuya Chito brought Macky to the hospital, his little brother,
who could barely talk, was not crying anymore. 5

Roberto identified the two pieces of wood that appellant allegedly used in beating the victim. He also identified
6 

the T-shirt that Macky wore when he died.

7 

A certain Alice Valerio from the Galang Medical Hospital informed PO3 Paul Dennis Javier that a boy had been
admitted there. When PO3 Javier went to the hospital, he found the boy already dead. He observed that the
child had wounds on the left middle finger, the right index finger and both feet. The child also had lacerations in
the upper lip and contusions all over his head and body.

PO3 Javier proceeded to appellant’s house at No. 2001, Batangas Ext., Tondo, Manila. Human feces and fresh
blood splattered on the floor. PO3 Javier recovered from the house the broken wooden sticks, the steel
hammer, which were allegedly used to beat up the boy, as well as a bloodstained white T-shirt.
8 

PO3 Javier then went to the house of appellant’s sister in Del Fierro St., Tondo, who informed him of matters
relative to appellant’s identification. Thereafter, the police conducted a search operation in Cavite where
appellant’s mother lived but they did not find him there.  Later that afternoon, PO3 Javier learned that appellant
1âwphi1

had surrendered to Station 3 of their district.

The following day, a staff member of the television program Magandang Gabi Bayan turned over to PO3 Javier a
brown belt which appellant allegedly also used in beating the victim. Roberto Fernandez, the victim’s brother,
had given the belt to the staff member. 9

Dr. Manuel Lagonera, medico-legal officer of the NBI, conducted the postmortem examination of the victim’s
body on June 12, 1996 at 4:40 p.m. He found that the boy had suffered many injuries, including three wounds at
the head and the anterior chest, which could have been inflicted with the use of blunt objects such as a piece of
wood or a fist. The child could have been dead three to four hours, or not more than eight hours, prior to the
postmortem examination. Dr. Lagonera concluded that the victim died of "bilateral pneumonia secondary to
multiple blunt traversal injuries" or complication of the lungs due to said injuries. The autopsy report of Dr.
10 

Lagonera shows that Mark Anthony Fernandez sustained the following injuries:

EXTERNAL FINDINGS:

1. Multiple old scars, forehead.

2. Healing lacerated wound, left forehead.

3. Healed lacerated wound, above the left eyebrow, measuring 1.2x0.2 cm.

4. Healed linear abrasions, left cheek.

5. Lacerated wound, extending up to the mucous membrane of the upper lip, measuring 2 x0.3 cm.

6. Contussion (sic), left temporo-parietal region, measuring 6x5 cms.

7. Healing lacerated wound, left zygomatic region, measuring 0.5x0.3 cm.

8. Contussion (sic), left jaw, measuring 1.5x1 cm.

9. Contussion (sic), right anterior thorax, measuring 17x12 cms.

10. Contussion (sic), right anterior forearm.

11. Lacerated wound, tip of the forefinger, right.

12. Old scar, upper 3rd , right anterior thigh.

13. Contussion (sic), right lower leg, above and below the knee measuring 9x5 cms.
 14. Contussion (sic), left lower leg, above and below the knee, measuring 13x6 cms.

15. Hematoma, big toe, under the nail bed, right.

16. Contusso-abrasion, dorsum of the left foot, measuring 6x2 cms.

17. Contussion (sic), left posterior thorax, measuring 17x6 cms.

18. Contussion (sic), right postero-lateral thorax, extending up to the right lumbar region, measuring
13x6 cms.

19. Contussion (sic), right posterior forearm, measuring 24x8 cms.

20. Contussion (sic), left posterior forearm, measuring 22x7 cms.

21. Healing abrasion, right buttocks, measuring 2x0.5 cm.

22. Plucked finger nail, left middle finger, with hematoma of the nail bed.

23. Posterior hand, both swollen.

INTERNAL FINDINGS:

1. Presence of left sub-aponeurotic hematoma, temporo-parietal region and over the mid-occipital
region.

2. Hematoma over the sternum and pectoralis muscles.

3. Both lungs showed patcy and confluent consolidations.

4. Small amount of rice porridge was recovered from the stomach. 11

Felicisima M. Francisco, NBI forensic chemist, conducted an examination to determine the presence and
"grouping" of human blood found on the steel hammer, the wooden sticks, and the T-shirt that were sent to his
office by P/Sr. Inspector Pedro Ramos Angulo, Jr. of the Western Police District in Manila. She prepared Report
12 

No. B-96-941 stating that Specimen No. 1 or the steel hammer, was positive for human blood "but insufficient for
blood group." Specimen Nos. 2 (the broken wooden sticks) and 3 (the white T-shirt) were also positive for
human blood "showing reactions of Group A." 13

Only appellant, 40, a sidewalk vendor, testified for the defense. As stated earlier, appellant admitted killing the
two-year old victim, the son of his "live-in" partner. He and the boy’s mother had lived together for two years
before the incident, starting when the boy was about a year old. He claimed he enjoyed a harmonious
relationship with his partner and that he killed the boy only because he was under the influence of shabu,
marijuana and Valium 10 at that time. Appellant professed that he began using drugs in 1974 and that he had
also taken drugs two weeks before the incident.

On June 12, 1996, appellant came upon Macky playing with his feces, scattering them all over the pillow, the
bed sheets and the curtains. Appellant scolded the boy, "Putang-ina ka Macky! Bakit mo ikinalat ng ganyan ang
tae mo? Halika, dadalhin kita sa baba para hugasan!" Appellant got hold of Macky but the boy struggled to free
himself from appellant’s grasp. Appellant, still reeling from the Valium 10 he had just taken, became so angry
that he picked up a broom with a wooden handle, and hit the boy. Appellant did not realize that he had hit Macky
hard until he saw the boy sprawled on the floor, breathing with difficulty. He dressed Macky and brought him to
the Galang Medical Center at the corner of Abad Santos Avenue and Tayabas Street, Manila. He prayed to God
that nothing serious would happen to the boy.

A lady doctor immediately attended to Macky. Appellant pleaded to the lady doctor to do all she can to save the
child; otherwise, he would be in serious trouble. After examining the child, the doctor told appellant that she
could not do anything more – Macky was dead. The same day, appellant surrendered to the police. He was
brought to the Homicide Section at 3:00 p.m.
Explaining his change of plea, appellant clarified that the killing of the boy was "accidental." He reiterated that he
was under the influence of drugs, which he had taken one after the other. He was a drug dependent and, in fact,
had been confined at the Tagaytay Rehabilitation Center. He said he was conscious when the incident
happened but he simply did not realize that he had hit the child hard with the broom’s wooden handle. He denied
having hit the boy with a hammer or having banged his head against the wall. He hoped the trial court would be
lenient with him because of his voluntary surrender. He prayed that the court would not impose upon him the
death penalty. 14

Nevertheless, on July 3, 1998, the trial court promulgated its decision, the dispositive portion of which reads:

WHEREFORE, this Court finds the accused, Emelito Sitchon y Tayag, guilty beyond reasonable doubt of the
crime of murder and is sentenced to suffer the death penalty and to pay the costs. The accused is further
ordered to pay the mother of the victim Christina Tabora, moral and nominal damages in the respective sums of
P100,000.00 and P50,000.00, plus death compensation in the sum of P50,000.00, with interest thereon at the
legal rate from this date until fully paid.

SO ORDERED. 15

The Court entertains little doubt that appellant is guilty of the killing of Mark Anthony Fernandez. Appellant’s guilt
was adequately established by the testimonies of Lilia Garcia and Roberto Fernandez, who both saw appellant
beat Macky. These testimonies were further corroborated by those of PO3 Paul Dennis Javier, Dr. Manuel
Lagonera and Felicisima Francisco, as well as the various pieces of object evidence. Indeed, appellant in open
court admitted beating the poor child, which beating resulted in the latter’s death.

That appellant purportedly did not intend to kill the toddler would not exculpate him from liability. Article 4(1) of
the Revised Penal Code provides that criminal liability shall be incurred by any "person committing a felony
(delito) although the wrongful act done be different from that which he intended." The rationale of the rule is
found in the doctrine that "el que es causa de la causa es causa del mal causado" (he who is the cause of the
cause is the cause of the evil caused). 16

Thus, where the accused violently kicked the sleeping victim in vital parts of the latter’s body, the accused is
liable for the supervening death as a consequence of the injuries. Assuming, therefore, that appellant merely
17 

intended to inflict physical injuries upon the boy, he is nevertheless liable for the death of the victim caused by
such injuries.

The killing in this case was attended by treachery. There is treachery when the offender commits any of the
crimes against persons, employing means, methods or forms in the execution thereof which tend directly and
especially to insure its execution without risk to himself arising from the defense which the offended party might
make. It is beyond dispute that the killing of minor children who, by reason of their tender years, could not be
18 

expected to put up a defense, is treacherous. 19

Evident premeditation is absent. For the court to appreciate evident premeditation, the prosecution must prove:
(a) the time the accused decided to commit the crime; (b) an overt act manifestly indicating that he clung to his
determination; and (c) sufficient lapse of time between the decision and the execution to allow the accused to
reflect upon the consequence of his act. The prosecution failed to establish any of these requisites.
20 

The trial court incorrectly appreciated cruelty against the accused. The test in appreciating cruelty as an
aggravating circumstance is whether the accused deliberately and sadistically augmented the wrong by causing
another wrong not necessary for its commission, or inhumanly increased the victim’s suffering or outraged or
scoffed at his person or corpse. The nature of cruelty lies in the fact that the culprit enjoys and delights in
21 

making his victim suffer slowly and gradually, causing him moral and physical pain which is unnecessary for the
consummation of the criminal act which he intended to commit. The sheer number of wounds, however, is not a
22 

test for determining whether cruelty attended the commission of a crime. 23

The prosecution did not show that appellant enjoyed inflicting injuries upon the victim. The inordinate force
employed by appellant appears to have been caused not by any sadistic bend but rather by the drugs that
diminished his capacity.

The trial court also considered intoxication as an aggravating circumstance. The Solicitor General defends this
ruling, contending that appellant’s habitual drug addiction is an alternative circumstance analogous to habitual
intoxication under Article 15 of the Revised Penal Code:
Intoxication of the offender shall be taken into consideration as a mitigating circumstance when the offender has
committed a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to commit said
felony; but when the intoxication is habitual or intentional, it shall be considered as an aggravating circumstance.

The Court does not agree.  Article 13 of the Revised Penal Code provides a list of mitigating circumstances,
1âwphi1

which work to reduce the accused’s penalty. Article 13(10) allows courts to consider "any other circumstance of
a similar nature and analogous to those" mentioned therein. Neither Article 14 of the same Code on aggravating
circumstances nor Article 15 on alternative circumstances, however, contain a provision similar to Article
24  25 

13(10). Accordingly, the Court cannot consider appellant’s drug addiction as an aggravating circumstance.
Criminal statutes are to be strictly construed and no person should be brought within their terms who is not
clearly within them. 26

Appellant maintains that his plea of guilt mitigates his criminal liability. On this matter, this Court said in People
v. Ramos: 27

To effectively alleviate the criminal liability of an accused, a plea of guilt must be made at the first opportunity,
indicating repentance on the part of the accused. In determining the timeliness of a plea of guilty, nothing could
be more explicit than the provisions of the Revised Penal Code requiring that the offender voluntarily confess his
guilt before the court prior to the presentation of the evidence for the prosecution. It is well-settled that a plea of
guilty made after arraignment and after trial had begun does not entitle the accused to have such plea
considered as a mitigating circumstance.

As appellant changed his plea only after the prosecution had rested its case and just when he was just about to
testify, said mitigating circumstance is unavailing.

The trial court credited appellant with the mitigating circumstance of voluntary surrender.  For voluntary
1âwphi1

surrender to be appreciated, these elements must be established: (1) the offender has not been actually
arrested; (2) he surrendered himself to a person in authority or an agent of a person in authority; and (3) his
surrender was voluntary. It is sufficient that the surrender be "spontaneous and made in a manner clearly
28 

indicating the intent of the accused to surrender unconditionally, either because he acknowledges his guilt or he
wishes to save the authorities the trouble and expense which will necessarily be incurred in searching for and
capturing him. 29

Appellant has failed to adequately prove voluntary surrender. While he claimed that he "surrendered" to the
police on the same day that the victim was killed, he did not detail the circumstances like the time and place of
such surrender. Neither did appellant state to whom he surrendered. He did not indicate if the person was a
person in authority or an agent of the latter. PO3 Javier’s testimony that he "learned" of appellant’s alleged
surrender is hearsay and does not serve to corroborate appellant’s claim.

The Court, however, discerns no intention on the part of appellant to commit so grave a wrong against his victim.
Appellant’s intention was merely to maltreat the victim, not to kill him. When appellant realized the horrible
consequences of his felonious act, he immediately brought the victim to the hospital. Sadly, his efforts were for
30 

naught.

In view of the attendance of the aggravating circumstance of treachery, the killing of the victim is qualified to
murder, punishable under Article 248 of the Revised Penal Code by reclusion perpetua to death. The murder
was attended by the mitigating circumstance of lack of intention to commit so grave a wrong and there is no
aggravating circumstance. Hence, the lesser penalty of reclusion perpetua must be imposed upon appellant. 31

Appellant is liable for civil indemnity of ₱50,000.00 without proof of damages. Moral damages that are
32 

recoverable for the mental anguish or emotional distress suffered by the heirs of the victim cannot be awarded
here as the prosecution did not present any evidence to justify its award. 33

WHEREFORE, accused-appellant Emelito Sitchon y Tayag is found GUILTY beyond reasonable doubt of

Murder, as defined and punished by Article 248 of the Revised Penal Code, and is sentenced to suffer the
penalty of reclusion perpetua. He is ordered to pay the heirs of Mark Anthony Fernandez civil indemnity in the
amount of ₱50,000.00.

SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Buena, Ynares-Santiago, De
Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

Footnotes

24 
ART. 14. Aggravating circumstances. – The following are aggravating circumstances:

1. That advantage be taken by the offender of his public position.

2. That the crime be committed in contempt of or with insult to the public authorities.

3. That the act be committed with insult or in disregard of the respect due to the offended party
on account of his rank, age, or sex, or that it be committed in the dwelling of the offended party, if
the latter has not given provocation.

4. That the act be committed with abuse of confidence or obvious ungratefulness.

5. That the crime be committed in the palace of the Chief Executive, or in his presence, or where
public authorities are engaged in the discharge of their duties, or in a place dedicated to religious
worship.

6. That the crime be committed in the nighttime, or in an uninhabited place, or by a band,

whenever such circumstances may facilitate the commission of the offense.

Whenever more than three armed malefactors shall have acted together in the commission of an
offense, it shall be deemed to have been committed by a band.

7. That the crime be committed on the occasion of a conflagration, shipwreck, earthquake,

epidemic, or other calamity or misfortune.

8. That the crime be committed with the aid of armed men or persons who insure or afford
impunity.

9. That the accused is a recidivist.

A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted
by final judgment of another crime embraced in the same title of this Code.

10. 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.

11. That the crime be committed in consideration of a price, reward, or promise.

12. That the crime be committed by means of inundation, fire, poison, explosion, stranding of a
vessel or intentional damage thereto, derailment of a locomotive, or by the use of any other
artifice involving great waste and ruin.

13. That the act be committed with evident premeditation.

14. That craft, fraud, or disguise be employed.

15. That advantage be taken of superior strength, or means be employed to weaken the
defense.

16. That the act be committed with treachery (alevosia).

 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.

17. That means be employed or circumstances brought about which add ignominy to the natural
effects of the act.

18. That the crime be committed after an unlawful entry.

There is an unlawful entry when an entrance is effected by a way not intended for the purpose.

19. That as a means to the commission of a crime a wall, roof, floor, door, or window be broken.

20. That the crime be committed with the aid of a persons under fifteen years of age or by means
of motor vehicles, motorized watercraft, airships, or other similar means.

21. That the wrong done in the commission of the crime be deliberately augmented by causing
other wrong not necessary for its commission.

ART. 15. The concept. – Alternative circumstances are those which must be taken into consideration
25 

as aggravating or mitigating according to the nature and effects of the crime and the other conditions
attending its commission. They are the relationship, intoxication and the degree of instruction and
education of the offender.

The alternative circumstance of relationship shall be taken into consideration when the offended
party is the spouse, ascendant, descendant, legitimate, natural, or adopted brother or sister, or
relative by affinity in the same degrees of the offender.

The intoxication of the offender shall be taken into consideration as a mitigating circumstance
when the offender has committed a felony in a state of intoxication, if the same is not habitual or
subsequent to the plan to commit said felony; but when the intoxication is habitual or intentional,
it shall be considered as an aggravating circumstance.
 SECOND DIVISION

G.R. No. 136844               August 1, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SPO1 RODOLFO CONCEPCION y PERALTA, accused-appellant.

DECISION

QUISUMBING, J.:

Appellant seeks the reversal of the decision of the Regional Trial Court of Tarlac, Branch 65, in Criminal Case
1 

No. 9776, finding him guilty of murder and sentencing him to reclusion perpetua.

On January 22, 1998, an information for murder was filed with the trial court charging him with murder allegedly
2 

committed as follows:

That on or about November 24, 1997 between 10:00 and 11:00 o’clock in the evening, in Brgy. Cut-Cut II,
Municipality of Tarlac, Province of Tarlac, Philippines and within the jurisdiction of this Honorable Court the said
accused, with intent to kill and with treachery, did then and there wilfully, unlawfully and feloniously shoot with
his Armalite rifle Lorenzo Galang hitting him at the different parts of his body and as a result of which said
Lorenzo Galang died instantly.

CONTRARY TO LAW.

Appellant pleaded not guilty to the charge, and thereafter trial commenced.

The prosecution relied mainly on the eyewitnesses Maximo Sison, Jr., an employee of Hacienda Luisita, and
Arturo Yarte, a tricycle driver, both of Barangay Cut-cut II, Tarlac City. Other prosecution witnesses were
Orlando Galang, brother of the victim Lorenzo Galang, and Concordia Galang, his mother.

Both MAXIMO SISON, JR. and ARTURO YARTE testified that between 10:00 and 11:00 in the evening of
3 

November 24, 1997, Lorenzo Galang, a resident of their barangay, got involved in a quarrel at the town plaza.
He was brought to the barangay hall for questioning by Barangay Captain Remigio Capitli.

Shortly after, appellant Rodolfo Concepcion arrived and fired his rifle twice or thrice past the ears of Lorenzo,
who was then sitting, but without injuring him. After that, however, appellant thrust the barrel of the gun against
the abdomen of Lorenzo. Then there was an explosion. Lorenzo was shot in the thigh. At least three more shots
were fired, hitting Lorenzo in the chest. According to Sison and Yarte, appellant shot Lorenzo deliberately.
Lorenzo died instantly.

ORLANDO GALANG, the victim’s brother, recalled that he arrived at the scene of the crime after Lorenzo was
slain. According to him, his brother was not brought to the hospital. Orlando testified on the anguish he suffered
4  5 

for having lost his brother. 

6

CONCORDIA GALANG, mother of the victim, testified that Lorenzo worked at the Hacienda Luisita and was
earning P1,000 more or less a week. According to her, Lorenzo was 27 years old when he died. He was married
7 

and had two children. As a result of Lorenzo’s death, the Galang’s incurred expenses amounting to
8 

approximately half a million pesos. Concordia Galang presented a list of these expenses amounting to
9 

P257,259, but without supporting receipts.

10 
In his defense, appellant RODOLFO CONCEPCION claimed that the shooting was only accidental. According to
him, he was investigating Lorenzo for the latter’s disorderly behavior at the town plaza when it happened. He
said Lorenzo appeared drunk and unruly, and even verbally challenged him to fight. At this juncture, according to
appellant, he fired two shots in the air, but Lorenzo grabbed the barrel of his gun. The gun accidentally fired and
Lorenzo was hit. 11

Defense witnesses ESTELITA BALUYOT and MILAGROS VILLEGAS corroborated appellant’s story. They said
they witnessed the incident because they were among the bystanders who saw the event happen from the time
Lorenzo was brought to the barangay hall for investigation until he was shot.

Estelita and Milagros testified that Lorenzo was seated while being questioned and pacified by appellant.
Appellant was then standing. All of a sudden, according to the lady-witnesses, appellant fired two warning shots
in the air. Lorenzo stood up and grabbed the barrel of the gun which was then pointed upwards. When it fired,
Lorenzo was hit. 12

On November 10, 1998, the trial court rendered its decision finding appellant guilty of the crime of murder.
Its fallo reads:

WHEREFORE, finding accused guilty beyond reasonable doubt of the crime of murder punished and defined by
Article 248 in relation to RA 7659, accused is hereby sentenced to suffer an imprisonment of reclusion perpetua
and to indemnify the heirs of the deceased in the amount of P50,000.00 for his loss of life; P120,000.00 as
expected income; P100,000.00 as moral damages; and P10,000.00 as attorney’s fees. 13

Seasonably, appellant filed his notice of appeal. In his brief, he makes but one assignment of error:

THE LOWER COURT GRAVELY ERRED IN NOT FINDING THAT THE INJURIES SUSTAINED BY THE
DECEASED WERE UNINTENTIONALLY INFLICTED WHILE ACCUSED-APPELLANT WAS IN THE COURSE
OF PERFORMING HIS LAWFUL DUTY AS A POLICE OFFICER. 14

The sole issue in this case is whether appellant is exempt from criminal liability. Under Article 12 (4) of the
Revised Penal Code, among those exempted from criminal liability is:

Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or
intention of causing it.

Well settled is the rule in criminal cases, that the prosecution has the burden of proof to establish the guilt of the
accused. However, once the defendant admits the commission of the offense charged, but raises an exempting
15 

circumstance as a defense, the burden of proof is shifted to him. By invoking mere accident as a defense,
appellant now has the burden of proving that he is entitled to that exempting circumstance under Article 12 (4) of
the Code.

The existence of accident must be proved by the appellant to the satisfaction of the court. For this to be properly
appreciated in appellant’s favor, the following requisites must concur: (1) that the accused was performing a
lawful act with due care; (2) that the injury is caused by mere accident; and (3) that there was no fault or intent
on his part to cause the injury. Appellant must convincingly prove the presence of these elements in order to
16 

benefit from the exempting circumstance of accident. However, his defense utterly failed to discharge this
burden. Thus, we find no reversible error in the judgment of the trial court.

By appellant’s own testimony, the victim was unarmed. In contrast, appellant had an armalite and a handgun. It
is highly inconceivable that an unarmed man could pose bodily harm to another who is heavily armed.

We note, that appellant’s gun discharged several shots that hit vital parts of the victim’s body. Was the discharge
purely accidental? We don’t think so. As observed by the trial court, recklessly appellant had put his finger on the
trigger of his cocked and loaded rifle. In that state, with the slightest movement of his finger, the rifle would fire
17 

readily. And it did not just once but several fires.

Appellant claims that the victim Lorenzo, who was drunk at the time, was brought to the barangay hall for
investigation. Lorenzo became unruly while being questioned, so appellant was constrained to fire two warning
shots in the air to frighten him. However, the latter stood up and immediately grabbed the nozzle of the gun and
pulled it towards him. The gun accidentally went off and hit Lorenzo in the body. To buttress his claim, appellant
rationalizes that he could have killed Lorenzo immediately while creating trouble at the plaza, if that was indeed
his intention. Since he did not, appellant posits that there was no intent on his part to kill Lorenzo.

But we note patent inconsistencies in his claims. He testified on query by the trial court that when he was
pacifying the victim, his rifle was hanging on his shoulder on a swivel, with its barrel pointed to the floor. At that
instance, the victim grabbed the barrel of the gun which accidentally fired. However, on direct examination by
18 

his defense counsel, he testified that the victim grabbed his rifle only after he had fired the two shots in the air.

His claims do not square with and could not overcome the testimony of prosecution witnesses on this score.
Note that Maximo Sison, Jr., an eyewitness, categorically declared that he saw appellant shoot the victim with an
M-16 armalite. On direct examination, Sison testified as follows:
19 

Q: Earlier, you stated at the time you arrived at the barangay hall, Rodolfo Concepcion was eight (8) meters
away from Lorenzo, at that time Rodolfo Concepcion shot Lorenzo Galang, how far is Rodolfo Concepcion from
Lorenzo Galang?

A: He was near him because he approached him, sir. He was very near.

xxx

Q: How many times did Rodolfo Concepcion shot (sic) Lorenzo Galang?

A: The first firing were two (2) shots, sir.

Q: Was Lorenzo Galang hit?

A: No sir.

Q: At the time Rodolfo Concepcion fired these two (2) shots, according to you, it was near his left ear?

A: Yes, sir.

Q: How far is the barrel from the ear of Lorenzo Galang when he fired those two shots? Will you indicate by
pointing your left ear?

A: Less than a foot, sir.

Q: When you are referring to the barrel of the gun which was pointed at the left ear of Lorenzo, how far is the
barrel of the gun from the ears of Lorenzo?

A: The barrel was "lampas tainga" so Lorenzo was not hit, sir.

Q: What happened after that?

A: He put down and thrust the barrel of the gun toward the stomach of Lorenzo Galang, sir.

Q: After Rodolfo Concepcion thrust the barrel of his gun towards the abdomen of Lorenzo Galang what else
transpired?

A: Because he was hurt he tried to push the barrel of the gun, sir.

Q: What did Lorenzo Galang use in pushing the barrel when Rodolfo Concepcion thrust it towards the stomach?

A: He just pushed a little bit to remove the barrel of the gun from his abdomen, sir.

Q: After that what happened?

A: After pushing the barrel of the gun simultaneously the firing and hitting Lorenzo at his right thigh, sir.
Q: What did Lorenzo Galang do after he was hit on the right thigh?

A: Because Lorenzo was seated, he was lifted from his seat, sir.

Q: Incidentally at that time when Rodolfo Concepcion placed the barrel of his gun about a distance away from
the ear of Lorenzo, how far was Lorenzo Galang positioned that time?

A: He was leaning on the chair sir.

Q: What about Rodolfo Concepcion how was he positioned when he fired those first two shots?

A: He was standing, sir.

Q: Now after the right thigh of Lorenzo Galang was hit by third shot what else transpired?

A: He again thrust the barrel of his gun on the chest or towards the chest of Lorenzo and simultaneously fired
the gun.20

The autopsy report corroborates Sison’s testimony that the victim had three gunshot wounds: one at the right
nipple, another at the mid-femur (thighbone), and another above the knee. Likewise, Sison’s declaration on
21 

material details coincide with those narrated by Arturo Yarte, a barangay tanod who also witnessed the shooting
incident. There is no proof of ill motive on the part of Sison and Yarte that could have impelled them to falsely
testify against appellant. In fact, Sison was appellant’s childhood friend.
22

The trial court found that treachery attended the commission of the crime. As hereafter explained, however, in
this case treachery is only an aggravating and not a qualifying circumstance.

To constitute treachery (alevosia), two conditions must be present: (1) the employment of means of execution
that give the person attacked no opportunity to defend himself or to retaliate; and (2) the means of execution
were deliberately or consciously adopted. Here, treachery was clearly present considering that the victim was
23 

totally unprepared for the barrage of gunshots made by appellant. It was undisputed that the victim was brought
to the barangay hall for questioning. He had submitted himself to the authority of the barangay officials and to
the police authorities. He was seated, thereby excluding any insinuation that he was violent and unruly. He was
weak from drinking at the time so that he had very little physical ability to cause harm to anyone, more so in the
presence of the barangay captain, barangay tanod and a police officer in the person of appellant. 24

From the circumstances of the case, the Court agrees with the prosecution that appellant consciously and
purposely adopted the means of attack to insure the execution of the crime without risk to himself.

However, we note that treachery, though stated in the information, was not alleged with specificity as qualifying
the killing to murder. Following People vs. Alba, G.R. No. 130523, January 29, 2002, the information should
state not only the designation of the offense and the acts and omissions constituting it, but should also specify
the qualifying and aggravating circumstances. Since the information in this case failed to specify treachery as a
circumstance qualifying the killing to murder, under the present Revised Rules of Criminal Procedure, treachery
25 

has to be considered a generic aggravating circumstance only. Consequently, the crime committed by appellant
is homicide and not murder.

Further, we find that the trial court misappreciated as an aggravating circumstance the fact that appellant was a
policeman on duty at the time of the killing. The information charging appellant bears no mention of this
aggravating circumstance.  Pursuant to the Revised Rules of Criminal Procedure that took effect on December
1âwphi1

1, 2000, every complaint or information must state not only the qualifying but also the aggravating
circumstances. This provision may be given retroactive effect in the light of the well-settled rule that statutes
26 

regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at
the time of their passage. The aggravating circumstance of abuse of official position, not having been alleged in
27 

the information, could thus not be appreciated to increase appellant’s liability.

At any rate, appellant’s immediate surrender to police authorities after the shooting should be credited in his
favor as a mitigating circumstance, pursuant to Article 13 (7) of the Revised Penal Code. 28

In sum, we find appellant guilty of homicide. The penalty for homicide under Article 249 of the Revised Penal
Code is reclusion temporal. There being one mitigating circumstance of voluntary surrender and one aggravating
circumstance of treachery, the penalty should be imposed in its medium period.  Applying the Indeterminate
1âwphi1

Sentence Law, appellant’s sentence should be within the range of prision mayor as minimum, and the medium
period of reclusion temporal as maximum.

As to the award of damages, the trial court offered no explanation for the award of P120,000 as expected
income. This figure is without basis. The victim’s lost earnings are to be computed according to the formula
adopted by the Court in several decided cases, to wit:

Net earning capacity = 2/3 x (80-age of the a reasonable portion

victim at the time of x of the annual net
his death) income which would
have been received by

the heirs for support 29

Lorenzo was 27 years old at the time of his death. His mother testified that he was earning P1,000 a week
during his lifetime or an annual income of P48,000. In the absence of proof of his living expenses, his net income
is deemed to be 50 percent of his gross income. Using the above formula, we fix the indemnity for loss of
30 

earning capacity of Lorenzo at P848,000, thus:

2 (80-27)

Net earning capacity = x [P48,000 - P24,000]

2 (53)

= x P24,000

= 35.33 x P24,000

= P848,000

We find the award of P50,000 as death indemnity to the heirs of the deceased to be in accordance with existing
jurisprudence. This civil indemnity is automatically granted to the heirs of the victim without need of any
31 

evidence other than the fact of the commission of the crime. As for moral damages, the amount should be
32 

reduced to P50,000 also in accordance with existing jurisprudence. The award of P10,000 as attorney’s fees is
33 

sufficient and justified.

WHEREFORE, the decision of the Regional Trial Court, Tarlac, Branch 65, in Criminal Case No. 9776,
convicting appellant Rodolfo Concepcion of the crime of murder, is hereby AFFIRMED with MODIFICATION.
Appellant is found guilty of the crime of homicide and sentenced to an indeterminate penalty of eight (8) 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. He is also ordered to pay the heirs of the victim the amount of P50,000 as
civil indemnity, P50,000 as moral damages, P848,000 as lost earnings, P10,000 as attorney’s fees, and the
costs.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, and Corona, JJ., concur.

Footnotes

Sec. 8, Rule 110. Designation of the offense. - The complaint or information shall state the designation
25 

of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its
qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be
made to the section or subsection of the statute punishing it.

Sec. 9, Rule 110. Cause of the accusation. - The acts or omissions complained of as constituting
the offense and the qualifying and aggravating circumstances must be stated in ordinary and
concise language and not necessarily in the language used in the statute but in terms sufficient
to enable a person of common understanding to know what offense is being charged as well as
its qualifying and aggravating circumstances and for the court to pronounce judgment.

28 
ART. 13. Mitigating circumstances. – The following are mitigating circumstances:

xxx

7. That the offender had voluntarily surrendered himself to a person in authority or his agents, or
that he had voluntarily confessed his guilt before the court prior to the presentation of the
evidence for the prosecution.

xxx
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. Nos. L-48519-22             June 12, 1942

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FIDEL FORTUNO, defendant-appellant.

Segundo Martinez for appellant.

Office of the Solicitor-General De la Costa and Solicitor Kapunan, Jr., for appellee.

PARAS, J.:

These four cases are before us in third instance. The defendant-appellant was convicted in the Court of First
Instance of Manila upon appeal from the Municipal Court, of our separate offenses of estafa and sentenced to
undergo imprisonment in G.R. No. 48519 for two months and one day, arresto mayor, and in each of the other
three cases for three months and eleven days, arresto mayor, to indemnify the offended parties respectively in
the sums of P140, P94.50 P83.50 and P189, with subsidiary imprisonment in case of insolvency, and to pay the
costs.

Appellant's counsel de oficio has not assigned any error in the appealed judgments which, as a matter of fact
and of law, are correct. The offenses are penalized with arresto mayor in its medium and maximum periods,
which should be imposed in the minimum degree in G.R. No. 48519 in view of appellant's plea of guilty in the
Municipal Court, and in the medium degree in the other three cases in view of the absence of any modifying
circumstance, it being a settled rule that the appellant's plea of guilty upon appeal in the Court of First Instance
cannot be considered a mitigating circumstance. (People vs. Hermino, 36 Off. Gaz., 2216;
People vs. Bawasanta, 36 Off. Gaz., 2237; People vs. Javier, 36 Off. Gaz., 2701; People vs. Cariaga, G.R. No.
46245, October 18, 1938; People vs. Jose y Payumo, 39 Off. Gaz., 306.)

At the risk of repetition, the following considerations are advanced in support of our adherence to the above-
mentioned rule: (1) The reason for the existence of the mitigating circumstance of plea of guilty is that it reveals
to a certain extent an act of repentance, a moral disposition favorable to the defendant's reform and submission
to the law (People vs. De la Cruz, 36 Off. Gaz., 354, cited in People vs. Hermino, supra), the evident purpose of
the statute being to encourage such repentance which not only ennobles the soul and tends to avoid recidivism
but also saves the Government from the expenses of a trial and the judicial and executive officials from much
trouble (People vs. Javier, supra). Such repentance cannot be attributed to the herein appellant who not only did
not plead guilty in the competent court of origin (Municipal Court) but appealed, first to the Court of First Instance
and, then, to this Court. (2) The contrary rule will open the door to cases wherein the defendant intentionally
abstains from pleading guilty in the justice of the peace or municipal court in the hope being acquitted and, upon
conviction and on appeal to the Court of First Instance, pleads guilty merely for the purpose of enjoying the
benefit of such mitigating circumstance. In such cases the spontaneous willingness on the part of the defendant
to admit the commission of the offense charged, the very thing rewarded by the mitigating circumstance in
question, is certainly absent. (3) While a trial de novo in the Court of First Instance technically means a trial in
the same manner, with the same effect, and upon the same issues as when the case was tried in the Municipal
Court, in accordance with the rules of practice in the appellate court (Crisostomo vs. Director of Prisons, 41 Phil.,
468), it does not follow that all the proceedings in the lower court have thereby been wiped out so as to preclude
the ascertainment of whether the defendant voluntarily pleaded guilty for the purpose of determining the
presence of said mitigating circumstance (People vs. Bawasanta, supra).

It appears that the appellant was sentenced by this Court undergo imprisonment in five cases, namely, G.R. No.
48459 for four months and one day, G.R. No. 48492 for four months and one day, G.R. No. 48523 for three
months and eleven days, G.R. No. 48460 for two months and one day, and G.R. No. 48614 for a period ranging
from four months and twenty days to one year, eight months and twenty-one days. As the most severe penalty
imposed upon the appellant is from four months and twenty days to one year, eight months and twenty-one
days, and the sum total of his several penalties does not exceed threefold the length of time corresponding to
the maximum limit thereof, we cannot for the present make the pronouncement that article 70 of the Revised
Penal Code, as amended by Commonwealth Act No. 217, is applicable. However, in anticipation, we may state
that, if in accordance with the Indeterminate Sentence Law the appellant should be entitled to be released on
parole after service of the minimum limit of the aforesaid indeterminate penalty (from four months and twenty
days to one year, eight months and twenty-one days), or of a greater period below the maximum limit threefold
the length of which is less than the sum total of all the penalties imposed upon him, his aggregate prison term
would be reduced to not more than three times period thus served.

Subject to the limitation herein expressed, the judgments appealed from will be, as the same are hereby,
affirmed, with costs against the appellant. So ordered.

Yulo, C.J., Ozaeta and Moran, JJ., concur.

Separate Opinions

BOCOBO, J., dissenting:

Much to my regret, I am constrained to dissent from the opinion of the majority that the appellant's plea of guilty
in the Court of First Instance cannot be considered a mitigating circumstance.

In the first place, Rule 119, section 8 of the new Rules of Court (formerly section 2473 of the Revised
Administrative Code) provides:

Sec. 8. Effect of appeal. — After the notice of appeal, all the proceedings and judgment of the justice of
the peace or municipal court are vacated, and the case shall be tried in all respects anew in the Court of
First Instance as if it were a case originally instituted in that court. (Emphasis supplied.)

No plainer language could have been employed to convey the idea that the proceedings in the Municipal Court
are to be disregarded. However, the majority opinion makes those proceedings a controlling factor in the
determination of the penalty, by considering the fact that the accussed did not plead guilty before the Municipal
Court. In so doing, the majority opinion rejects the clear and manifest intendment of Rule 119, which is, that the
case in the Court of First Instance shall be deemed to have never been tried in the Municipal Court and shall to
all intents and purposes be treated as though it had been originally instituted in the Court of First Instance. By
the unequivocal terms of said Rule 119, section 8, we are not authorized to look back into what transpired in the
Municipal Court to find out whether or not the accused pleaded guilty there. We can only inquire into his plea
upon arraignment in the Court of First Instance.

Furthermore, in the majority opinion the failure of the accused to plead guilty before the Municipal Court is
counted against him. and his confession of guilt in confession of guilt in the Court of First Instance is absolutely
ignored. What, then, was the use of the arraignment in the Court of First Instance as part of the regular
procedure there, if the admission of guilt by the accused is completely discarded and rendered of no
consequence whatsoever, except to dispense with the presentation of evidence? Why should not all the
consequences of the arraignment become effective?

Secondly, article 13 subsection 7 of the Revised Penal Code provides:

ART. 13. Mitigating circumstances. — The following are mitigating circumstances:

xxx     xxx     xxx

7. That the offender had voluntarily surrendered himself to a person in authority or his agents, or that he
had voluntarily confessed his guilt before the court prior to the presentation of the evidence for the
prosecution.

What "evidence for the prosecution" is referred to in the above legal provision? It cannot be the government
proof in the Municipal Court because such evidence and the proceedings in said court are not to be taken into
consideration at all in the Court of First Instance, as already explained. Therefore, the evidence, for the
prosecution" is that which would have been offered in the Court of First Instance if the accused had not
confessed his guilt to said court.
In this connection, it might be argued that it is dangerous to permit the accused to discover the evidence for the
government in the Municipal Court by going trial there, and then take up his case of the Court of First Instance
so as to prepare his defense accordingly in the latter court. However, there is no such danger, because if the
defense has found out the course of action planned by the prosecution, so has the latter learned the method and
the line of evidence of the defense. Hence, both sides start on the same basis, neither having any advantage
over the other, when the trial begins in the Court of first Instance.

Thirdly, if one of the objectives contemplated by the Revised Penal Code in establishing this mitigating
circumstance is to reward the accused for having spared the government the trouble and expense of a trial, such
purpose was actually attained as far as the trial in the Court of First Instance was concerned. If it should be said
that the government was compelled to have the case tried in the Municipal Court because of the failure of the
accused to confess his guilt there, this matter is discussed in the following four point.

Fourthly, this Court in People vs. Hermino (36 Off. Gaz., 2216), gave as a reason for the doctrine followed by
the majority in the instant case, the requirement that the accused should repeat at the first opportunity. It not
infrequently occurs, however, that before such first opportunity for confession arrives, the accused is advised,
rightly or wrongly, by his attorney of friends to go to trial. In the bewildered state of mind of the accused, he often
yields to such promptings, though his better nature may tell him otherwise. Such yielding may evince a
weakness of purpose (which may be partly explained by his temporary mental agitation) but does not
necessarily denounce an intense perversity of mind, particularly when the accused later confesses in another
court.

Moreover, what mitigates the offense is a voluntary confession of guilt. Such repentance being a spontaneous
act, is it any the less meritorious because it came before the Court of First Instance rather than before the
Municipal Court? Should there be a sort of railroad time-table for the moral process of a human being? Can
anyone say that an earlier confession is per se worthier than a later one? Does not this matter, depend upon the
depth and the sincerity of the moral regeneration rather than on any schedule of time for its appearance?
Therefore, in view of the cherished policy of the law to encourage repentance on the part of the criminal, a
confession of guilt should be considered as a mitigating circumstance, whether it is made earlier in the Municipal
Court or later in the Court of First Instance. And for the reasons just stated, I am unable to subscribe to the
conclusion of the majority that no sincere repentance can be attributed to the accused because he not only failed
to plead guilty in the municipal court but also appealed, first to the Court of First Instance and then to this Court.
Moreover, the courts open to all who seek justice and the fact that the accused resorts to the Court of First
Instance and to this Court does not necessarily mean he was not repentant because his counsel might want to
raise questions of law and other questions not connected with the principal fact of his having committed the act
charged.

The majority also state that there can be not spontaneity in the confession of guilt before the Court of First
Instance because the defendant may intentionally abstain from pleading guilty before the municipal court in the
hope of being acquitted and upon conviction and on appeal to the Court of First Instance, he may plead guilty
merely for the purpose of enjoying the benefit of such mitigating circumstance. But, as already indicated, (1) the
accused is often advised to go to trial in the municipal court, and (2) there can be no schedule of time for such
spontaneous act as confession of guilt. Furthermore, if for any reason the attorney for the accused entertains
some hope for his client's acquittal, it is not improper for him to advise his client not to plead guilty, because such
acquittal may be based on a question of law.

In the fifth place, what could have been the reason behind Rule 119, section 8 of the new Rules of Court
providing that the trial in the Municipal Court shall be disregarded in the Court of First Instance, which shall
consider it as never having been tried in the former court? It must have been to make the case in the latter court
independent in every respect, in order to give a free hand to the Court of First Instance, unhampered by any
proof, incident, order or judgment in the Municipal Court. Now, the arraignment is one of such incident. Why then
should the plea of guilty in the Court of First Instance be authorized by the plea of not guilty in the Municipal
Court? Would this not make the case in the Court of First Instance dependent upon that in the Municipal Court?

Lastly, it is a just and sound principle that criminal laws should be liberally construed in favor of the accused. The
majority seem to have overlooked this fundamental principle, which has a peculiar significance in this case
because it touches upon confession as one of the methods of salvaging man wreckage. Whenever possible we
should throw the life-saver of mitigating circumstance to those criminals who are drowning, without worrying over
any legal technicality. Often these technicalities when set against the historic and tremendous problem of human
amelioration, are but resonant though inconsequential traditions. As between the unmistakable wording of Rule
119, section 8 of the new Rules of Court and the previous decisions of this Court was ignored the clear
provisions of section 2473 of the Administrative Code, the choice should not be hard to make. The doctrine
of stare decisis is in no sense inviolate whenever it is evident that a mistake has been committed. Fortunately,
this Court has never hesitated to rectify its own errors, in order to meet the paramount demands of right and
justice. There is thus an awareness that the doctrine of stare decisis is not for its own sake but for the sake of
justice.

Therefore, I believe the confession of guilt should be considered a mitigating circumstance in each of the four
cases, and the penalty in each of them should be 2 months and 1 day of arresto mayor.
 EN BANC

G.R. No. 139879            May 8, 2003

PEOPLE OF THE PHILIPPINES, appellee,

vs.
GABRIEL ANNIBONG y INGGAO, appellant.

QUISUMBING, J.:

For automatic review is the decision1 of the Regional Trial Court of Apayao, Branch 26, in Criminal Case No. 9-
98, convicting appellant Gabriel Annibong of murder and sentencing him to death.

The information2 filed by the Provincial Prosecutor reads:

That on or about February 13, 1998 at around 2:00 o'clock P.M. at barangay Doña Loreta, Pudtol,
Apayao, within the jurisdiction of this Honorable Court, the above-named accused armed with a long
firearm, with intent to kill and with the attendance of treachery and evident premeditation did then and
there willfully, unlawfully and feloneously (sic) attack, assault and shot one Cpl. Fidel
Obngayan,3 inflicting upon the latter gun shot wounds which caused death.

CONTRARY TO LAW.

When arraigned, appellant pleaded not guilty to the charge. Although he admitted killing the victim, appellant
invoked self-defense. Thus, the order of the trial was reversed, with the defense presenting its evidence first.

For the defense, appellant Gabriel Annibong and lone eyewitness Artemio Tallong, a CAFGU member assigned
at the Army Camp Detachment at Doña Loreta, Pudtol, Apayao, testified. Tallong was also adopted as a
prosecution witness.

Appellant, a kitchen aide serving at the camp, testified that on February 13, 1998, while he and Tallong were in
their camp at Barangay Doña Loreta, Pudtol, Apayao, the victim arrived coming from Centro, Pudtol, Apayao.
When Obngayan went to the kitchen to get a drink, he was irritated to discover the water container empty.
Hopping mad, Obngayan rushed to appellant and boxed him three times in the stomach and uttered: "Vulva of
your mother, it is better that I will kill you." Obngayan proceeded to his bunker, got his M-16 rifle and aimed it at
appellant, prompting the latter to shoot the victim once. After the first shot, the victim managed to stand and aim
his gun at appellant prompting the latter to fire his M-16. But since the M-16 malfunctioned, appellant grabbed
the garand rifle of Artemio Tallong and shot the victim once more.

Immediately after the shooting, appellant escaped with Tallong and proceeded to Suan, Pudtol, Apayao. Two
days later, both surrendered to Governor Batara P. Laoat, who advised them to surrender to the police.

ARTEMIO TALLONG was presented by the defense to show unlawful aggression on the part of the victim. 4 As
one of the CAFGU's on duty at the time of the incident, he said he witnessed the incident from the time Cpl.
Obngayan arrived at the detachment until he was shot.

Tallong narrated that on February 13, 1998, around 2:00 P.M., Cpl. Obngayan arrived at the Philippine Army
detachment in Brgy. Doña Loreta, Pudtol, Apayao where he was then the commanding officer. 5 Still perspiring
and thirsty from an operation in Centro, Pudtol, Apayao, Cpl. Obngayan hurriedly proceeded to the camp's
kitchen for a drink. Incensed that all of the water containers were empty, Obngayan confronted appellant whose
duty it was to maintain the camp's kitchen. He gave appellant a jab in the abdomen, then slowly walked away
towards his bunker.

Infuriated, appellant without warning, picked up his M-14 armalite rifle and strafed the former on the back.
Obngayan sprawled bloodied on the ground. Shortly after, appellant took the garand rifle of Artemio Tallong, and
unleashed another barrage of gunshots. Obngayan died instantaneously with his brain splattered and an eye
fallen on the ground.

The prosecutor adopted the testimony of defense witness Artemio Tallong for purposes of the prosecution. Other
prosecution witnesses were Dr. Dan Redel Edroso, the Municipal Health Officer of Pudtol, Apayao, who
conducted a post-mortem examination on the victim's body; Lt. Walfrido Felix Querubin of the Philippine Army;
Cpl. Robert Salarzon, from the Philippine Army assigned at Nararragan, Ballesteros, Cagayan; Capt. Efren
Paulino, from the Philippine Army assigned at the Headquarters Service Battalion, Camp Upi, Gamu, Isabela;
and Mrs. Agnes Obngayan, the victim's widow.

DR. DAN REDEL EDROSO declared that on February 14, 1998, he conducted an autopsy 6 on the victim's
remains which revealed nine gunshot wounds. From his examination of the wounds, Dr. Edroso opined that two
were inflicted from the back of the victim while five were inflicted while the victim was already lying down with his
face up.7 He said, the multiple shots on the victim's head caused his immediate death.

LT. WALFRIDO FELIX QUERUBIN, the Platoon Leader of the Headquarters Company of the Philippine Army in
Capagaypayan, Luna, Apayao, testified that he arrived at the scene of the crime after Obngayan was
slain.8 According to him, he found the victim lying up, his left eye fallen and brains scattered on the
ground.9 Shortly after his arrival, Lt. Querubin inventoried the firearms issued to the detachment and found the
firearms all intact in the cabinet except an M-14 and a garand rifle 10 - the weapons used by appellant.

CPL. ROBERT SALARZON and CAPT. EFREN PAULINO from the Philippine Army corroborated the testimony
of Lt. Querubin as to the position of the victim's body when they arrived at the scene of the crime for
investigation.11

MRS. AGNES OBNGAYAN testified that her husband was the sole breadwinner of the family and was earning
P9,000 monthly, more or less.12 According to her, Cpl. Obngayan was 35 years old when he died, leaving her
with their two children. As a result of Fidel's death, the Obngayans incurred expenses amounting to thirty
thousand pesos more or less.13

On June 15, 1999, the trial court rendered its decision finding appellant guilty beyond reasonable doubt of the
murder of his commander and sentencing him as follows:

WHEREFORE, foregoing all considered, and finding the accused GABRIEL ANNIBONG y INGAO (sic)
guilty beyond reasonable doubt for the crime of Murder committed under Article 248 paragraph one (1)
of the Revised Penal Code of the Philippines as charged in the information with the special aggravating
circumstance of with insult or in disregard of the respect due the offended party on account of his rank
under Article 14 paragraph 3 of the same Penal Code, this Court hereby sentences said accused Gabriel
Annibong y Ingao to suffer the Supreme penalty of DEATH.

Accused is further ordered to indemnify the surviving spouse of the victim, Cpl. Fidel Obngayan, in the
amount of FIFTY THOUSAND PESOS (P50,000.00), for such death, in addition to the payment of
TWENTY THOUSAND PESOS (P20,000.00) for moral damages, TEN THOUSAND PESOS
(P10,000.00) as and for exemplary damages, TWENTY FIVE THOUSAND PESOS (P25,000.00) for
actual expenses and FIVE HUNDRED THOUSAND PESOS (P500,000.00) for the lost earnings of the
victim and the costs of the suit.

The BJMP, Luna, Apayao is ordered to immediately shift the person of the accused to the Bureau of
Prisons, Muntinlupa City for detention thereat to await the automatic review of this decision.

SO ORDERED.14

By reason of the death sentence imposed upon appellant, the decision is now before us for automatic review.

In his brief, appellant ascribes to the trial court the following errors:
 I. IN FINDING AND HOLDING THAT THERE WERE NO UNLAWFUL AGGRESSION ON THE PART
OF THE VICTIM CORPORAL FIDEL OBNGAYAN AGAINST THE ACCUSED.

II. IN FINDING THAT THERE WAS THE QUALIFYING CIRCUMSTANCE OF TREACHERY WHICH
WOULD QUALIFY THE CRIME TO MURDER.

III. IN FINDING THAT THE AGGRAVATING CIRCUMSTANCE OF INSULT OR DISREGARD TO RANK

IS PRESENT IN THE CASE AT BAR.

IV. IN FINDING THE LONE EYEWITNESS ARTEMIO TALLONG AS CREDIBLE AND TRUSTWORTHY
WITNESS TOGETHER WITH HIS ORAL TESTIMONY.

V. IN NOT FINDING THAT THE ACCUSED ACTED IN SELF-DEFENSE WHEN HE KILLED THE
VICTIM.15

We shall now consider the following pertinent issues: (1) whether there was unlawful aggression on the part of
Cpl. Obngayan; (2) whether the killing was attended by the qualifying circumstances of treachery and evident
premeditation; and (3) whether the imposition of the death penalty on appellant is appropriate.

Appellant admits shooting Cpl. Obngayan. But he claims that he did so merely to repel the victim's unlawful
aggression. He contends that since the victim was the actual aggressor, there can be no treachery. He adds that
he had not intended to insult or disregard the rank of the victim. He insists that Artemio Tallong was a turncoat
whose testimony should, therefore, be considered unworthy of credit.

In his Brief, appellant offers no substantial reason, however, why we should overturn the trial court's appreciation
of the evidence presented against him. Instead, he merely reiterates in this appeal his claim of self-defense. In
cases where the accused admits committing the crime but invokes self-defense, the basic rule that the burden of
proving the guilt of the accused lies on the prosecution is reversed, and the burden of proof is shifted to the
accused to prove the elements of his defense. 16 In our view, the defense has not discharged its burden
successfully.

The elements of self-defense are (1) that the victim has committed unlawful aggression amounting to actual or
imminent threat to the life and limb of the person claiming self-defense; (2) that there is reasonable necessity in
the means employed to prevent or repel the unlawful aggression; and (3) that there is lack of sufficient
provocation on the part of the person claiming self-defense or, at least, that any provocation executed by the
person claiming self-defense be not the proximate and immediate cause of the victim's aggression. 17

Granting that the initial act of aggression came from the victim when he cursed and then punched appellant
three times in the stomach, such aggression did not amount to actual or imminent threat to appellant's life as the
victim already ceased and desisted thereafter. As defense witness Tallong testified, the victim was already
walking slowly away towards his bunker 18 at the time appellant shot him incessantly. At that point, it was no
longer necessary for appellant to shoot Obngayan in order to protect himself. As held in People v. More,19 "In
legitimate self-defense the aggression must still be existing or continuing when the person making the defense
attacks or injures the aggressor. Thus when the unlawful aggression ceases to exist, the one making the
defense has no more right to kill the former aggressor."

Appellant's act of shooting the unarmed victim first with an M-16 and a garand rifle, successively, belies his claim
that he acted in self-preservation and indicates nothing more than the desire to kill. Thus, Tallong testified:

Q:         You said that Gabriel Annibong used the M-14 rifle in shooting Fidel Ubngayan, how come that
the garand was also used by Gabriel Annibong in shooting Fidel Ubngayan?

A:         He used first the M-14 rifle in shooting Fidel Ubngayan but when he was not satisfied he took the
garand and used it again in shooting Ubngayan. 20

Tallong's recital of the events, in our view, is more in accord with the natural course of things and ordinary
human experience. Further, his testimony is validated by the evidence on record on all material points. The post-
mortem examination of Dr. Edroso, while negating appellant's tale that he shot the victim only twice, confirmed
Tallong's story that there were more shots fired. Tallong's narration, as to the position of the victim when shot,
tallied with the doctor's findings that two of the gunshot wounds were inflicted while the assailant was behind the
victim and that the other five were dealt while the victim was lying face up on the ground. 21 His account that the
victim was unarmed matched with Lt. Querubin's testimony that all of the weapons issued to the detachment
were found intact except the M-16 and the garand rifle used in perpetrating the crime. 22

The credibility of prosecution witness Artemio Tallong is not in any way lessened, much less impaired, by the
motives imputed to them by appellant. Appellant claims that Tallong was a defector who fled the scene with him
immediately after the incident, and surfaced with appellant only two days after the shooting. Appellant's
contention is nothing more than a desperate attempt to discredit said witness. Different people react differently to
a given type of situation and there is no standard form of behavioral response when one is confronted with a
startling, strange or frightful experience. Considering that appellant himself admitted that Tallong had no
participation in the murder, the fact that he fled the scene with appellant should not by itself be taken against
him. This Court recognizes that the initial reticence of witnesses to volunteer information about a criminal case
and their aversion to be involved in criminal investigations due to fear of reprisal is not uncommon. 23

The element of treachery attended the slaying of Obngayan because (1) the means of execution employed gave
the person attacked no opportunity to defend himself or to retaliate; and (2) the means of execution were
deliberately or consciously adopted.24 In this case, the victim was totally unprepared for the volley of gunshots by
appellant. The victim unarmed, while appellant was carrying a weapon. 25 When shot, the victim was already
retiring, as he was then slowly turning away towards his bunker. As he was already walking away towards his
bunker, he was clueless of appellant's sudden attack. Such unexpected and sudden attack under circumstances
that render the victim unable and unprepared to defend himself constitutes alevosia.26

From the circumstances of this case, we are persuaded that appellant consciously and purposely adopted the
means of attack to insure the execution of the crime without risk to himself. Thus, the trial court did not err when
it ruled that treachery qualified the killing to murder.

As for evident premeditation, we agree that its elements were not clearly established by the prosecution. To
prove this attendant circumstance, evidence must show: (1) the time the offender determined to commit the
crime; (2) an act indicating that the offender had clung to his determination; and (3) sufficient lapse of time
between the determination to commit the crime and the execution thereof to allow the offender to reflect upon
the consequences of his act.27 There is no clear proof as to when the accused hatched the murderous plan, and
the interval of time therefrom to its commission.

But we differ from the trial court's finding and conclusion with regard to the aggravating circumstance of
disregard of rank as well as respect due to the offended party. Although the victim was the immediate superior
officer of the appellant, being his Detachment Commander at the time of the commission of the crime, 28 this fact
was not alleged in the information. Hence, this circumstance cannot be appreciated to increase appellant's
liability following Section 8 of Rule 110. 29

Appellant's surrender to police authorities after the shooting should be credited in his favor as a mitigating
circumstance, pursuant to Article 13 (7) of the Revised Penal Code. 30 There is voluntary surrender if three
conditions are satisfied: (1) the offender has not been arrested; (2) he surrendered himself to a person in
authority or to an agent of a person in authority; and (3) his surrender was voluntary. There is no dispute that
appellant voluntarily surrendered to the governor 31 a person in authority, then to the police, before he was
arrested. In People v. Antonio,32 the accused's surrender to the mayor was considered as a mitigating
circumstance. In the same way, appellant's voluntary surrender to the governor should be considered in his
favor. It is immaterial that appellant did not immediately surrender to the authorities, but did so only after the
lapse of two days. In People v. Bautista,33 the voluntary surrender of the accused to a police authority four (4)
days after the commission of the crime was considered attenuating. Finally, even if not raised on appeal, since
an appeal opens the whole case for review, we could take into account this mitigating circumstance favorable to
appellant.

The penalty for murder is reclusion perpetua to death, both indivisible penalties. Conformably with Art. 63, par. 3,
of the Revised Penal Code, when the commission of the act is attended by one mitigating and there is no
aggravating circumstance, the lesser penalty shall be imposed. Considering that the crime was not attended by
the alleged circumstance of evident premeditation, the undisputed presence of the mitigating circumstance of
voluntary surrender entitles appellant to the imposition of the minimum penalty for murder. Thus, the proper
imposable penalty is reclusion perpetua, being the lesser penalty.34

As to the award of damages, the trial court offered no explanation for the award of P500,000 as lost earnings.
Cpl. Obngayan was 35 years old at the time of his death. His wife and superiors testified that he was earning
P9,000 a month35 during his lifetime or an annual income of P108,000. Using the accepted formula, we fix the
indemnity for loss of earning capacity36 of Cpl. Obngayan at P1,620,000, thus:
 2 x (80-35) x [P108,000-½
Net earning (P108,000)]
=
capacity -
3
2 x (45) x P54,000
= -
3
= 35.33 x P54,000
= P1,620,000

We delete the twenty five thousand peso-award for actual expenses in the absence of requisite proof, 37 but in
lieu thereof, P10,000 is awarded as nominal damages. 38 As for moral damages, pursuant to current
jurisprudence, the amount should be increased to P50,000. 39 The award of P50,000 as death indemnity to the
heirs of the deceased is retained as well as the award of P20,000 as exemplary damages, which we find to be
sufficient and justified by the presence of the qualifying circumstance of treachery.

WHEREFORE, the decision of the Regional Trial Court, Apayao, Branch 26, in Criminal Case No. 9-98, is
AFFIRMED with MODIFICATION. Appellant Gabriel Annibong y Inggao is declared guilty of murder, but his
sentence is hereby reduced to reclusion perpetua. Further, he is ordered to pay the heirs of the victim the
amount of P50,000.00 as civil indemnity, P1,620,000.00 for lost earnings, P10,000.00 as nominal damages,
P50,000.00 as moral damages, and P20,000 as exemplary damages. Costs de oficio.

SO ORDERED.

Davide, Jr., C .J ., Bellosillo, Puno, Vitug, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez,

Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ ., concur.
Panganiban, J ., on leave.

Footnotes

30
 ART. 13. Mitigating circumstances. - The following are mitigating circumstances:

xxx           xxx           xxx

7. That the offender had voluntarily surrendered himself to a person in authority or his agents, or
that he had voluntarily confessed his guilt before the court prior to the presentation of the
evidence for the prosecution.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-38635 November 17, 1980

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DANIEL HAYAG, accused-appellant.

AQUINO, J.:

Daniel Hayag appealed from the decision of the Court of First Instance of Davao del Norte, Tagum Branch VIII,
convicting him of rape, sentencing him to "imprisonment for the rest of his natural life" and ordering him to pay to
Esperanza Ranga ten thousand pesos as moral damages (Criminal Case No. 1210).

Issue is the trustworthiness of the interpreter's verbalization of deaf-mute's sign language. — In this alleged rape
of Esperanza, 32, a farm girl and a deaf-mute, the case has been simplified by the admission of the accused,
Hayag, 50, a married man with eight children, who finished grade six, that he had sexual intercourse with
Esperanza nine times between 1970 and December 4, 1972 in the town of Carmen, Davao del Norte.

The ultimate issue is whether Virginia Ranga 26, a public school teacher, a college graduate and the victim's
sister, correctly and credibly interpreted and verbalized the sign language of Esperanza as meaning that Hayag
raped Esperanza on October 26, 1972 or whether credence should be given to Hayag's story that the sexual
intercourse on that occasion, as on other occasions, was voluntary.

Attached to the complaint for rape was a certificate from the Davao General Hospital that on December 7, 1972
Esperanza was examined and found to be "positive for pregnancy" (Exh. C or 10). However, the record does not
show whether she gave birth. There was no medical examination of Esperanza immediately after the
rape allegedly perpetrated on October 26, 1972.

The prosecution labored under the handicap that it could prove the alleged rape only through the sign language
of the victim, Esperanza. The victim's sister, Virginia, who has communicated with her since childhood by means
of sign language, was the sole available witness who could make known to her the questions on direct and
cross-examination and could articulate her alleged answers for the record.

Because there was no means of checking the correctness and veracity of Virginia's interpretation and because
she herself believed that Esperanza was raped by Hayag, it is not surprising that the defense counsel
vehemently objected to Virginia's role as interpreter. The defense regarded her as biased and as lacking the
cold neutrality of a third person acting as interpreter.

As Esperanza did not study in the school for deaf-mutes and as there was no instructor in that school available
as an interpreter the trial court had no choice but to use Virginia as the medium for communicating with
Esperanza. Was she a reliable interpreter? That is the intriguing question in this case.

This Court in two cases convicted an accused of having raped a deaf-mute but in those cases an instructor in
the school for deaf-mutes acted as an interpreter and the conviction was not based solely on the evidence given
by the victim. In the instant case, the judgment of conviction was based exclusively on the story of Esperanza
that she was raped, a story made known through her sister, Virginia, who signed the complaint for rape.

In People vs. De Leon, 50 Phil. 539, the accused was charged with having raped his fifteen-year-old step-
daughter, a deaf-mute The trial was held in the house, called "Country Home;" where the accused brought the
girl. She testified in sign language which was interpreted by a teacher in the school for deaf-mutes. The accused
was convicted on the basis of such testimony.
In People vs. Sasota, 52 Phil. 281, the accussed was also charged with having raped a fourteen-year-old deaf-
mute. She testified with the assistance of an instructor in the school for deaf-mutes. Her testimony was
corroborated by her seven-year-old sister who was present when the outrage was committed.

Seven days after the alleged rape, the victim, Rufina Barbuco, submitted to a medical examination. The doctor
introjudo su especulum en la parte genital de ella y dicha Rufina sintio' dolor por la introduccion de dicho
instrumento". The accused was convicted of rape.

But in People vs. Bustos, 51 Phil. 385, a homicide case, the testimony of a deaf-mute, an alleged eyewitness, as
interpreted by a teacher from the school for deaf-mutes, who did not teach the witness (the latter never having
studied in such school) was not given credence. (See People vs. Nava, CA 40 O.G. 4327 and People vs.
Tejano, CA-G.R. No. 21954-R, May 25, 1959, 7 Velayo's Digest 724. As to a deaf-mute convicted of robbery,
see People vs. Nazario, 97 Phil. 990.)

Rules regarding communication with a deaf-mute. — At the outset, it is relevant to state the jurisprudential rules
for verbalizing the perceptions of a deaf-mute.

'Although in ancient times the rule was otherwise, deaf-mutes are now generally accepted as competent
witnesses. In any given case a showing must be made that the witness has a system of communication, and if
he has and he is otherwise competent, his testimony will be received" (81 Am. Jur. 2nd 116).

The modern rule is to the effect that deaf and dumb persons are not incompetent as witnesses
merely because they are deaf and dumb if they are able to communicate the facts by a method
which their infirmity leaves available to them, and are of sufficient mental capacity to observe the
matters as to which they will testify and to appreciate the obligation of an oath; but where the
person is not so educated as it is possible to make him understand the questions which are put
to him he is not competent (97 C.J.S. 454).

The method to be employed in eliciting the testimony of a deaf-mute should be that which is best
suited to attain the desired end, the particular method of examination resting largely in the
discretion of the trial court. Thus, a deaf and dumb witness may be examined by means of
written questions to which he gives written answers, or he may be examined through the medium
of an interpreter who communicates with the witness by means of signs. The qualifications of a
particular person to act as an interpreter for a deaf-mute rests largely in the discretion of the trial
court (98 C.J.S. 25).

The other statements of the procedure for taking the sign-language of a deaf-mute are quoted below:

The modern and generally accepted rule is to the effect that deaf-mutes are competent
witnesses where they have sufficient knowledge to understand and appreciate the sanctity of an
oath and comprehend the facts as to which they wish to speak, and are capable of
communicating their Ideas with respect thereto (Annotation, 9 ALR 482).

If deaf-mutes have sufficient understanding to comprehend facts about which they undertake to
speak, and appreciate the sanctity of an oath, they may give evidence by signs, or through an
interpreter or in writing, and such testimony, through an interpreter, is not hearsay (Bugg vs.
Town of Houlka, 84 So. 387, 9 ALR 480).

It has been said that a court has the inherent power to elicit testimony from a competent deaf-
mute by whatsoever means necessary to the end to be obtained, and that the manner in which
the examination of a deaf-mute should be conducted is a matter to be regulated and controlled
by the trial court in its discretion.

However, it has also been said that the best method should be adopted. And there is authority to
the effect that the method adopted will not be reviewed by an appellate court in the absence of a
showing that the complaining party was in some way injured by reason of the particular method
adopted.

In fact it has been said that, in the absence of a showing as to what constituted the best method
of taking a deaf-mute's testimony, it will be presumed on appeal that the trial court adopted the
best method.
 As is stated in the authorities approved in Bugg vs. Town of Houlka, 84 So. 387, 9 ALR 480, the
general rule is that deaf-mutes who are competent to testify may give evidence by signs, or
through an interpreter, or in writing.

More specifically it has been held that a deaf-mute who can read and write may testify through
that medium. Thus, in Ritchey vs. People (1896), 23 Colo 314, 47 Pac. 272, a deaf-mute was
examined by submitting to him written questions, to which he replied in writing, which questions
and answers were then read to the jury.

And the general rule is that the evidence of a deaf-mute who can be communicated with by signs
may be taken through an interpreter who understands such signs and can interpret them to the
court.

And it has been held that it is permissible to take the testimony of a deaf-mute through an
interpreter by signs notwithstanding the evidence could have been written. At least where there is
no showing that the interpretation by signs is not the better method.

And especially where it appears that the witness is capable of relating the facts "correctly" by
signs, but, while able to read and write, can only communicate Ideas imperfectly' by writing. And
it is not necessary that the witness be able to read and write. However, it has been said that it
would seem to be better in the case of a deaf and dumb witness who can read and write to
conduct his examination in writing.

With respect to the conducting of the examination of a deaf-mute itself, it has been held that the
allowing of leading questions is in the discretion of the court. This discretion was said to arise out
of the fact that 'there is always more or less difficulty in eliciting testimony' where the witness is a
deaf-mute (Annotation, 9 ALR 482-484).

Procedure followed by the lower court in qualifying Virginia Ranga as an interpreter of her sister's sign
language. — How to communicate with the victim, Esperanza, was the problem of the municipal judge during the
preliminary examination. Esperanza knows how to sign her name and to read and write figures. That was all.

The complaint for rape, filed in the municipal court on December 26, 1972, was signed by Esperanza. Her sister
Virginia certified under oath that she translated, interpreted and explained the contents of the complaint
"faithfully and truthfully through sign language" to Esperanza (p. 1, Record).

At the preliminary examination, the municipal judge tested the capacity of Virginia to communicate with
Esperanza. Virginia admitted that there were deficiencies in her mode of communication with Esperanza.
Virginia testified:

17. Q: (by municipal judge). How adequate is the communication between

Esperanza Ranga and you? — A: Not too much but I think only a few things
which she wish to convey which I do not understand.

18. Q: Would you ten me one or two of these few things which you don't
understand? — A: Those things which are very deep like for example
those invisible words.

19. Q: What do you mean by invisible words? — A: For example, the meaning of

the word 'truth' whereby I could not expect to her in one sign only the meaning of
the word 'truth' but I could only explain that through other signs.

20. Q: These signs that you employ in communicating between you and
Esperanza Ranga, are these conventional signs or the 'Deaf and Dumb signs? —
A: No, sir.

21. Q: What then are the signs? — A: Just like the actions.

22. Q: In other words, you just contrived or improvised the signs? — A: Yes, sir.
 23. Q: For how long a time have both of you been at this means of
communications? — A: Since my birth.

24. Q: You mean that when you were born you ready communicate with each
other? — A: Not exactly but when I already teamed to talk and she could not
understand.

25. Q: Do you still employ the same improvised signs in communicating with your
older sister? — A: Yes, sir.

26. Q: Have you ever revised or modify these so-called improvised signs? — A:
No, sir.

27. Q: You have improvised along the way, have you? — A: Yes, sir.

28. Q: Suppose you wanted to convey to your older sister the meaning of: 'She
better dress up because you are going to bring her to the Court'. How would you
communicate with your sister?

A: (The witness demonstrated by raising her two hands from the head then
downward which would imply putting on the dress; her right hand placed over the
nose which means 'good or beautiful' and touch her older sister (Esperanza) on
her shoulder and pointing towards her and touching both of them with the same
hand gesturing towards the road and a sign indicating a roof which implies the
Municipal Hall.)

The Court is of the opinion that witness may adequately communicate with her older sister
Esperanza Ranga through their improvised sign language. In view thereof, this Court hereby
commissions Virginia Ranga to act as an interpreter for her sister, Esperanza Ranga, in this
preliminary examination (pp. 15-16, Record).

The municipal judge then asked Virginia to take an oath as an interpreter. After taking the oath, the judge
instructed Virginia to ask Esperanza whether the latter understood the meaning of an oath. Esperanza replied by
signs that she would tell the truth.

According to the sign language of Esperanza, as interpreted by Virginia, the alleged rape was committed in this
manner:

While she (Esperanza) was she was pulled away from the road and then she resisted and (was) dragged until
she was kicked on her leg whereby she stumbled down. The one (Hayag) who pulled her boxed her on her
breast and on the legs and then she lost consciousness and then when she lost consciousness, she did not
know what happened.

When she regained consciousness, she found out that she was raped by the man who pulled her
(pp. 16-17, Record).

Esperanza Identified the man who raped her as a person with a mole between his eyes just below his forehead.
She pointed to Hayag as the rapist. Hayag and his counsel were present at the preliminary examination.

The rape was not reported because Hayag told Esperanza that she would be killed if she divulged the rape to
anybody (p. 18, Record).

Hayag waived the second stage of the preliminary investigation. The case was elevated to the Court of First
Instance where the provincial fiscal filed an information for rape dated February 12, 1973.

The trial court tested Virginia's capacity to communicate with Esperanza in sign language improvised by the two
sisters, a procedure opposed by defense counsel, as may be seen from the following transcript:

Private prosecutor: ... since the complainant, your Honor, is a deaf-mute, we wig present her
sister as an interpreter, and we will qualify the sister to act as an interpreter. ...
 Defense counsel: ... we object to the competency (of Virginia) on the ground that this witness is
not an expert witness to interpret the language of a deaf-mute. She would not be competent as to
the sign to be conveyed to her, and finally it would be prejudicial and biased, your Honor. ...

I believe, your Honor, that this case is so serious as it involves the liberty of the accused, and if
we will be hasty in proceeding ... even granting that the witness can be able to perceive and
communicate, there is no definite provision in the Rules of Court that a sister could be qualified
as an interpreter to a deaf-mute. ...

Court: ... the Court win allow her (the sister) to be an interpreter in the case as long as she can
be qualified to interpret the signs of her sister.

Defense counsel ... And granting that the sister will be allowed to translate and interpret in behalf
of the offended party, how will we be so sure that the sister will convey the same translation as
the offended party wanted to convey to her? ...

Private prosecutor: Good faith is presumed, your Honor please. Bad faith is not presumed. ...

Court: Well, anyway, those are recorded already and in case of an appeal, those can be taken up
because those will appear in the transcript of the stenographic notes, all the objections that you
have raised insofar as allowing the sister of the offended party to interpret her sign language.

Defense counsel: ... we will submit a memorandum to that effect that the sister is the interpreter
in this case, she being not competent and expert witness.

Court: Well, she is not presented here as an expert witness. She is just being used now as an
interpreter, and you are objecting to that?

Defense counsel: ... We are really seriously objecting.

Court: ... the appellate court will be guided by the stenographic transcript whether you made your
observation and your objection in time before a person is allowed to be an interpreter in a case
like this.

We cannot also ask say a teacher in (the) school for deaf-mutes to be an interpreter here
because, probably, if that deaf-mute did not go to the school for deaf-mutes, she would not know
the sign language of the teacher.

So, probably, this is my personal observation, that they should adapt themselves to the
circumstances of the situation. Now, since their sister is dumb and cannot hear, and because
they were living together, they have to devise a way by which they could communicate (with)
each other, and, probably, not the same sign language in the school for deaf and dumb persons.

So, in the interest of justice, the Court will allow the sister to interpret the testimony of the
offended party. (4-11 tsn June 11, 1973).

After Virginia had taken her oath and testified that she and Esperanza had been communicating by means of
sign language since childhood, she was directed to ask Esperanza's name.

Virginia made a sign to Esperanza to sign her name. Esperanza wrote on a piece of paper "Esperanza Ranga
May 3, 1972 " (17-18 tsn June 11, 1973).

When the trial judge directed Virginia to ask Esperanza why she was in court, Esperanza moved her head
sidewise and placed a finger on her lips. She was not able to answer that question in sign language because, as
the private prosecutor himself admitted, it is difficult to formulate a "why" question in sign language (17-19, 23
tsn).

The fiscal noted that Esperanza could answer "what where and when" questions but it would be difficult to make
her understand a "why" question because "there were certain questions that she cannot easily understand" (26-
27 tsn). The following portion of the transcript is a sample of how Virginia communicated with Esperanza on
direct examination:
 Q. Alright. Tell her (Esperanza) to demonstrate to kick her right leg? — A. Yes,sir.
(Witness-interpreter's sister doing the same.)

Q. Tell her to repulse or fight back an opponent when she is attacked? — A. Yes,
sir. (The sister doing the same.)

Q. Let us be specific. Does your sister know how to look (up) a date in the
calendar? — A. Yes, sir.

Q. You taught her. — A. She has an Idea.

Q. Alright. Do you have ... a calendar? — A. Yes, sir.

xxx xxx xxx

Q Will you tell your sister to point to figure 7? — A. Yes, sir. (Witness-interpreter
translating the same to her sister in sign language and the sister likewise pointed
to figure 7.)

Q Tell her to point to No. 23. — A. Yes, sir. (Witness-interpreter translating the
same to the sister and the sister pointing also to No. 23.)

Q What about the month appearing in that calendar, can she read? What is that
month there appearing there in that calendar for 1973, in her sign language? ...
— A. She cannot read.

Q But she can read the days or the number? — A. Yes, sir.

Q Can she point to No. 18? (Witness-interpreter translating the same to the
sister, and the sister pointing also to No. 18.)

Q Alright. Now, how would she communicate the month of a year. What month is
she referring when she refers to a date, for example. How will she communicate
that with you? — A. She will use the calendar, sir.

Q But she cannot read the month in the calendar, she said already. Is it not? —
A. She can understand, and at least she can point.

Q Alright.Will you tell your sister to see in that calendar the month of July? — A.
We still need to write the month, sir.

Q You give her a piece of paper and write there July. Then let her locate it there
in the calendar. — A. Yes, sir. (Witness-interpreter doing the same and the sister
located the month of July.)

Q Now, tell her to locate the month of November. — A. Yes, sir. (The sister
locating the same )

Q Will you tell her whether she knows the days in the week, like Monday,
Tuesday, Wednesday like that? — A. Yes, sir. I think she knows.

Q And what are the days in the week? Ask her. — A. She does not know, sir.

Q Do you know what day is today? Ask her. — A. Yes, sir. (Witness-interpreter
translating the question to the sister, and she pointed to June 11 in the 1973
Calendar.)

Q Now, can you point therein the calendar any day? — A. (The sister pointed to
Tuesday after the question was properly translated to her by the witness-
interpreter.) "Court: Make it of record that she pointed to Tuesday.
 Q by Court: Do you know what day is today? (Witness pointing to June 11 in the
1973 calendar.) — A: (by Witness-interpreter): She does not know, your Honor.

Q by Court: Do you know what is today? — (Witness pointing to June 11 in the

1973 calendar.)

Court: I think she can adequately communicate, perhaps not to our

satisfaction. Alright, ... (To the Witness-Interpreter Virginia): Do you swear to
interpret faithfully and to the best of your knowledge the questions to your sister
and the answers that she gives to the questions? — Witness-Interpreter: Yes,
your Honor.

Court: Alright. (To private prosecutor )Your first witness

Private prosecutor: Our first witness is the complainant herself, your Honor.

Court: Put her on the stand. (30-37 tsn.)

The oath was then administered to Esperanza. How it was administered is not shown in the record. It should be
recalled that Virginia testified that "invisible words" like truth cannot be made known in sign language to
Esperanza.

When Esperanza was asked as to her age, she write on a piece of paper "May 3, 1983 32" (39 tsn June 11,
1973).

Testimony of Esperanza as verbalized by her sister Virginia. — Esperanza resided in Carmen and worked in the
ricefield of her brother Dencio She used to walk from her house to the ricefield which was quite far. Upon being
asked, Esperanza pointed to the figure "26" in the calendar. She worked in the ricefield on October 26, 1972 up
to the time in the afternoon when the sun was in a certain position which, as calculated by the court, meant that
it was approximately three o'clock.

She was on her way home alone. She sketched the road leading to the highway which was taken by her and the
scene of the alleged rape (Exh. A or 2). When she reached a grassy spot along the road, her left hand was
pulled by a man with a mole between his eyebrows whom Esperanza Identified as Hayag who was in court.
Hayag pulled her to the grassy bush. (At this point, defense counsel manifested that Esperanza did not make
any sign that she was pulled to the grassy bush and that it was Virginia, the interpreter, who supplied that
allegation, 47 tsn).

Esperanza resisted but Hayag kicked her in the right leg and she stumbled. Hayag choked her while she was
prostrate on the ground. Asked if she was boxed, Esperanza replied that Hayag boxed her on the chest while he
was standing. At this point, Esperanza went down the witness stand and demonstrated how she resisted.

Hayag removed her short pants and kissed her and then, as stated by the interpreter, she was raped. Asked the
leading question of whether she was unconscious when she was raped, she replied in the affirmative and added
that she regained consciousness after she was raped. Her pants were on her side on the ground. There was
blood in her private part. She pushed aside Hayag.

Hayag stood up and told Esperanza not to tell anybody what happened or else he would kill her. Hayag picked
up her pants and threw them over her body and left. She put on her pants and went home crying. She was still
crying when she arrived home but she did not disclose to her mother the alleged rape because of the threat
made by Hayag.

Esperanza indicated in the sketch the spot where she was raped on October 26, 1972, Identified as Exhibit A-2
or 2-A (63 tsn).

According to Esperanza. on December 4, 1972 she encountered Hayag in the same place but she avoided him
by passing near the central school and going to the house of her sister-in-law, as indicated in the sketch, Exhibit
A. She arrived home at eight o'clock in the evening and reported the rape incident to her mother.

Hayag's story. — To support his defense that his sexual intercourse with Esperanza was voluntarily
consummated and was not accomplished through force or against her will, he testified that he and Esperanza,
whom he had known for more than fifteen years, loved each other. They were neighbors in the town of Carmen.
Hayag's daughter Ester is married to Antonio, a brother of Esperanza.

Their liaison allegedly started one morning in December, 1970 when Esperanza appeared at the foot of the
stairs of his house and made a sign that she wanted to drink water. Hayag signalled her to go upstairs. He was
absent from work on that day.

He went to the kitchen where Esperanza followed him. After she had drunk water, she made a sign by pointing
to herself and to Hayag and placing her two fingers side by side or juxtaposing them. Hayag said that by means
of that sign Esperanza wanted to convey that she and Hayag were sweethearts. Hayag nodded to show his
assent to Esperanza's offer of love.

Hayag said that thereafter Esperanza embraced him and they kissed each other. After the embrace, Esperanza
disengaged herself and formed a circle with her left thumb and index finger and inserted into the circle the
fingers of her right hand, repeatedly making a push-and-pull movement. That signal meant that she wanted
sexual intercourse. In answer to that signal, Hayag nodded.

Esperanza took off her panties and because the kitchen floor 'was dirty Hayag indicated to her that they would
have sexual congress on the table which was clean. 'They performed the sexual intercourse on the table and
reached the climax in about five minutes.

After they went down from the table, they embraced and kissed and Esperanza allegedly made a sign that they
should repeat the sexual act. At that juncture, Florita Hayag's daughter, barged in and saw them. They
separated.

Four days later, Esperanza met Hayag at about six-thirty in the morning at the crossing or intersection of the
highway going to Tagum and the road going to Tibal-og in the vicinity of the bridge and the chapel. There was a
grassy spot in that place (Exh. 9 and A). There, they had sexual intercourse for about five minutes.

In the meantime, Florita reported to her mother, Adoracion, that she had seen Hayag and Esperanza in a
compromising situation. Hayag and his wife quarrelled. Mrs. Hayag and her three daughters left the conjugal
abode and took refuge in her mother's house in Maco. Hayag was able to persuade his wife to return to their
house after he had promised not to have anything more to do with Esperanza.

For more than a year, Hayag lived up to his promise. Then, in the morning of May 12, 1972, Hayag met
Esperanza on the highway while he was waiting for transportation to take him to his work as a
foreman (capataz) of the Bureau of Public Highways in Mawab Nabunturan.

On that occasion, Esperanza allegedly made a sign to him that they should have sexual intercourse, pointing to
him the grassy spot where they had done it before. Hayag made a counter-sign to convey to Esperanza the
message that they should have sexual intercourse after he had cleared a spot amidst the dense talahib grass.

It took Hayag three days to prepare the place of assignation (See photographs, Exh. 5 to 8). On May 15, 1973
he and Esperanza allegedly had sexual intercourse in the spot which he had cleared. Thereafter, they had six
other acts of sexual intercourse in that place. A white plastic raincoat allegedly belonging to Esperanza was
used to cover the ground (Exh. 4).

Hayag specified that he had carnal intercourse with Esperanza on September 2 and 23, October 20 and 26,
November 4 and December 4, 1972. Esperanza allegedly advised Hayag to remember the dates because she
might become pregnant. The last three acts of sexual intercourse took place in the afternoon after Hayag had
come from work and while Esperanza was on her way home from the farm (13-14 tsn October 26, 1972).

After each sexual intercourse, Esperanza would take Hayag's ball pen and write the date on the palm of his
hand. Hayag himself did not make any record of the dates of the sexual intercourse. He committed them to
memory

In the afternoon of December 4, 1972, after Hayag and Esperanza had sexual intercourse in their usual trysting
place (Exh. 5 to 8), they were seen in that vicinity by Jose Santillan, a close friend of Hayag, and by Esteban
Ranga, the uncle of Esperanza, who appeared to be angry and who held her and brought her home.
Two days later, or on December 6, Hayag was arrested by Patrolmen Rolando Yambao and Samuel Casuga
because Esperanza's mother and uncle had charged him with rape.

Hayag's daughter Florita and his wife Adoracion corroborated his testimony as to the quarrel between him and
his wife when she learned that he had an affair with Esperanza.

Florita testified that Esperanza cried when she learned that Hayag was in prison and in sign language she
allegedly made it known that she had voluntary sexual intercourse with Hayag and that, to prove that she loved
Hayag, she (Esperanza) gave to Florita the plastic raincoat already mentioned (Exh. 4).

Jose Santillan, a farmer, a friend of Hayag and a neighbor of the Ranga family, testified that as a Peeping Tom
or voyeur, he witnessed the sexual intercourse between Hayag and Esperanza in the afternoon of December 4,
1972 in the grassy spot mentioned by Hayag in his testimony.

The trial court reacted in disbelief of Hayag's story. It branded Hayag's version as unusual and bizarre. It
concluded that Hayag took advantage of the physical defect of Esperanza and that he was under the illusion that
because she is a deaf-mute she would not be able to communicate the outrage perpetrated against her.

Ruling. — Hayag's counsel de oficio contends in this appeal that the trial court erred in basing the judgment of
conviction on the testimony of Esperanza in sign language as verbalized by her sister, an alleged biased
interpreter.

We have conscientiously examined the record. Our conclusion is that the prosecution failed to establish the guilt
of the accused beyond reasonable doubt. The culpability of Hayag cannot be made to rest on the
uncorroborated story of Esperanza, as conjectured by her sister and mother. That story in itself is not clear,
convincing, positive and free from suspicion. It is not impeccable and does not ring true throughout (People vs.
Ariarte 60, Phil. 326).

Lack of tenacious resistance on the part of Esperanza Ranga, her delay in reporting the alleged rape to her
mother and the absence of an immediate medical examination of her private organ are circumstances creating
reasonable doubt as to the commission of the rape.

From Esperanza's version, as articulated by her sister, it is at once evident that Esperanza did not offer much
resistance to the alleged sexual assault made by Hayag. She did not suffer any physical injuries. Her dress was
not torn. She did not attempt to free herself from the clutches of Hayag.

This is not a case of a teenage girl being raped by a strong and robust adult. This is a case of a thirty-two-year-
old farm girl who was allegedly forced to have carnal intercourse by a fifty-year-old man. Her story does not
contain details as to how she repelled Hayag's attempts to ravish her. And that story was not recounted by her
directly in her own words but was made known by means of sign language which was interpreted by her sister.
The trustworthiness of that interpretation is doubtful.

The defense objected to such interpretation. The probability of error or fabrication in such a case is very
manifest. As observed by Justice Villa-Real, that is a dangerous procedure for ascertaining the truth especially in
a case where the liberty of an accused is at stake (People vs. Bustos, 51 Phil. 385, 390). The court and the
accused have no means of checking the accuracy of the verbalization made by the interpreter who is herself
interested in sending the accused to prison.

It is difficult to rape a healthy adult woman without the help of confederates or without terrifying her with a deadly
weapon. If she makes a vigorous resistance, the likelihood is that the lascivious desire of her assailant would be
foiled.

The resistance would, as in this case, be more effective in an open field where there are more chances of
eluding the assailant or frustrating his advances. The rape committed by a man without the assistance of other
persons is possible but is a rare case. (2 Cuello Calon, Derecho Penal, 1975 Ed., 588; People vs. Barbo, L-
30988, March 29, 1974, 56 SCRA 459, 467.)

Then, there is the fact that although the alleged rape took place on October 26, 1972, it was only forty days later,
or on December 4, that Esperanza confided to her mother (by means of signs, of course) that she was
supposedly raped. Her story was not corroborated.
The uncorroborated testimony of the offended woman may be sufficient under certain circumstances to warrant
a conviction for rape. Yet, "from the very nature of the charge and the ease with which it may be made and the
difficulty which surrounds the accused in disproving it where the point at issue is as to whether the cohabitation
was had with or without the use of force or threats, it is imperative that such testimony should be scrutinized with
the greatest caution." (Carson, J., in U.S. vs. Flores, 26 Phil. 262, 268.)

In all such cases the conduct of the woman immediately following the alleged assault is of the
utmost importance as tending to establish the truth or falsity of the charge. Indeed it may well be
doubted whether a conviction of the offense of rape should ever be sustained upon the
uncorroborated testimony of the woman unless the court is satisfied beyond a reasonable doubt
that her conduct at the time when the alleged rape was committed and immediately thereafter
was such as might be reasonably expected from her under all the circumstances of the case.
(U.S. vs. Flores, pp. 268-269.)

Moreover, the case for the prosecution was irreparably impaired by the inconsistencies committed by the
complainant's mother, Mrs. Ranga. She first swore that according to her interpretation of Esperanza's sign
language five rapes were admitted on different dates.

Then, she rectified her first affidavit and swore in a second affidavit and during the preliminary examination that
only one rape was committed. (Exh. 1 and 3.)

On the witness stand, she declared that the rape was committed on December 4, 1972 but on cross-
examination she declared that her daughter was abused on October 26, 1972. Contrary to the prosecution's
theory, Mrs. Ranga testified that Hayag did not do anything to Esperanza on December 4, 1972 (56 and 65 tsn
August 6, 1972).

WHEREFORE, the trial court's judgment of conviction is reversed and set aside. On the ground of reasonable
doubt or the insufficiency of the prosecution's evidence, defendant Daniel Hayag is acquitted of the charge of
rape. Costs de oficio.

SO ORDERED.

Barredo (Chairman), Concepcion, Jr., Abad Santos and De Castro, JJ., concur.
 SECOND DIVISION

September 4, 2017

G.R. No. 224886

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
ROGER RACAL @ RAMBO, Accused-Appellant

DECISION

PERALTA, J.:

Before the Court is an ordinary appeal filed by accused-appellant, Roger Racal @ Rambo (Racal), assailing the
Decision  of the Court of Appeals (CA), dated February 27, 2015, in CA-G.R. CR-H.C. No. 01450, which
1

affirmed, with modification, the Decision  of the Regional Trial Court (RTC) of Cebu City, Branch 18, in Criminal
2

Case No. CBU-77654, finding herein appellant guilty of the crime of murder and imposing upon him the penalty
of reclusion perpetua.

The antecedents are as follows:

In an Information filed by the Cebu City Prosecutor's Office on August 15, 2006, Racal was charged with the
crime of murder as defined and penalized under Article 248 of the Revised Penal Code (RPC), as amended. The
accusatory portion of the Information reads, thus:

That on or about the 19th day of April 2006, at about 4:20 A.M., more or less, in the City of Cebu, Philippines,
and within the jurisdiction of this Honorable Court, the said accused, armed with a knife, with deliberate intent,
with treachery and evident premeditation, and with intent to kill, did then and there, suddenly and unexpectedly,
attack, assault, and use personal violence upon the person of one Jose "Joe" Francisco by stabbing the latter, at
his body, thereby inflicting a fatal wound and as a consequence of which he died.

CONTRARY TO LAW. 3

Upon arraignment, Racal entered a plea of not guilty.  Subsequently, trial on the merits ensued.
4

The evidence for the prosecution established that around 4 o'clock in the morning of April 19,
2006, "trisikad" drivers were lining up to pick passengers along Lopez St. at Sitio Alseca in Cebu City. Among
the "trisikad" drivers was Jose Francisco (Francisco). Also present at that place during that time was Racal, who
was then standing near Francisco. While the "trisikad" drivers were waiting for passengers, Racal spoke in a
loud voice, telling the group of drivers not to trust Francisco because he is a traitor. Francisco, who was then
holding a plastic container in one hand and a bread in another, and was eating, retorted and asked Racal why
the latter called him a traitor. Without warning, Racal approached Francisco and stabbed him several times with
a knife, hitting him in the chest and other parts of his body. Francisco, then, fell to the pavement. Immediately
thereafter, Racal stepped backwards and upon reaching a dark portion of the street, he hailed a "trisikad" and
sped away. Thereafter, one of the "trisikad" drivers called the barangay tanod, but by the time they arrived,
Francisco was already dead.

Racal, on his part, did not deny having stabbed Francisco. However, he raised the defense of insanity. He
presented expert witnesses who contended that he has a predisposition to snap into an episode where he loses
his reason and thereby acts compulsively, involuntarily and outside his conscious control. Under this state, the
defense argued that Racal could not distinguish right from wrong and, thus was not capable of forming a mental
intent at the time that he stabbed Francisco.

After Trial, the RTC rendered judgment convicting Racal as charged. The dispositive portion of the RTC
Decision, dated September 14, 2011, read as follows:

WHEREFORE, on the following considerations, the court renders judgment finding accused ROGER RACAL @
RAMBO guilty beyond reasonable doubt of Murder and sentences him to the penalty of reclusion perpetua with
all its accessory penalties. He is likewise directed to pay the heirs of the late Jose "Joe" Francisco the amount of
Thirty Thousand Pesos (P30,000.00) as actual damages, Seventy-Five Thousand Pesos (P75,000.00) as civil
indemnity, and Fifty Thousand Pesos (PS0,000.00) as moral damages.

SO ORDERED. 5

The RTC ruled that the evidence for the defense is insufficient to convince the court that Racal was indeed
deprived of his mind and reason at the time when he committed the crime as to exempt him from criminal liability
becaµse his depression and psychotic features are not the kind of insanity contemplated by law. The trial court
found the circumstance of treachery to be present, but ruled out the presence of the aggravating circumstance of
evident premeditation.

Racal filed a Motion for Reconsideration  contending that the trial court failed to appreciate the mitigating
6

circumstances of sufficient provocation on the part of the offended party and voluntary confession of guilt on the
part of Racal. However, the RTC denied the Motion for

Reconsideration in its Order  dated December 15, 2011. Aggrieved by the ruling of the RTC, Racal appealed to
7

the CA. In his Appellant's Brief, Racal reiterated his defense of insanity contending that, at the time he stabbed
the victim, he snapped into a fatal episode of temporary loss of rational judgment and that such a predisposition
to "snap" was testified upon by his expert witnesses.

In its assailed Decision, the CA affirmed the conviction of Racal but modified the judgment of the RTC by
imposing interest on the damages awarded. The CA disposed, thus:

WHEREFORE, the September 14, 2011 Judgment in Criminal Case No. CBU-77654, convicting accused-
appellant Roger Racal @ Rambo of Murder and sentencing him with reclusion perpetua and its accessory
penalties is AFFIRMED with MODIFICATION. Accusedappellant is also ORDERED to pay the heirs of Jose
"Joe" Francisco, interest on damages awarded, the amount of 6% from the date of finality of the judgment until
fully paid, and to pay costs.

SO ORDERED.  8

The CA held that the prosecution proved all the elements of the crime necessary to convict Racal for the murder
of Francisco. The CA gave credence to the testimonies of the prosecution witnesses. It also affirmed the
presence of the qualifying circumstance of treachery and affirmed the trial court in ruling out the presence of the
aggravating circumstance of evident premeditation. As to Racal's defense of insanity, the CA held that he failed
to rebut the presumption the he was sane at the time of his commission of the crime. The CA, nonetheless,
appreciated the mitigating circumstance which is analogous to an illness of the offender that would diminish the
exercise of his will-power.

Racal filed a Motion for Reconsideration,  questioning the penalty imposed upon him, but the CA denied it in its
9

Resolution   of October 22, 2015.

10

Thus, on November 23, 2015, Racal, through counsel, filed a Notice of Appeal   manifesting his intention to
11

appeal the CA Decision to this Court.

In its Resolution   dated March 16, 2016, the CA gave due course to Racal's Notice of Appeal and directed its
12

Archives Section to transmit the records of the case to this Court.

Hence, this appeal was instituted.

In a Resolution  dated July 20, 2016, this Court, among others, notified the parties that they may file their
13

respective supplemental briefs, if they so desire.

In its Manifestation and Motion,   filed on September 23, 2016, the Office of the Solicitor General (OSG)
14

manifested that it will no longer file a supplemental brief because it had already adequately addressed in its brief
filed before the CA all the issues and arguments raised by accused-appellant in his brief.

On the other hand, Racal filed a Supplemental Brief  dated October 21, 2016, reiterating his defense of insanity
15

by contending that at the time of the commission of the crime, expert evidence demonstrates that he had, within
him, predisposing factors that cause insanity. He also argues that the lower courts failed to appreciate the
mitigating circumstances of sufficient provocation on the part of the victim and voluntary confession of guilt on
his part.

The basic issue for the Court's resolution in the present appeal is whether or not the CA correctly upheld the
conviction of herein appellant, Racal, for murder.

The Court rules in the affirmative.

At the outset, it bears to reiterate that 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
16

substance that were overlooked or misinterpreted and that would materially affect the disposition of the case. 17

In the present case, after a careful rading of the records and pleadings, this Court finds no cogent reason to
deviate from the RTC’s factual findings. There is no indication that the trial court, overlooked, misunderstood or
misapplied the surrounding facts and circumstances of the case. Moreover, the factual findings of the RTC are
affirmed by the CA. Hence, the Court defers to the trial court in this respect, especially considering that it was in
the best position to assess and determine the credibility of the witnesses presented by both parties.

In any case, the Court will proceed to resolve the present appeal on points of law.

The Information in the instant case charged appellant with the crime of murder, for stabbing the victim,
Francisco, which offense was alleged to have been attended by treachery and evident premeditation.

Murder is defined and punished by Article 248 of the RPC, as amended by Republic Act No. 7659, to wit:

Article 248. Murder. - Any person who, not falling within the provisions of Article 246, shall kill another, shall be
guilty of murder and shall be punished by reclusion perpetua, to death if committed with any of the following
attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to
weaken the defense or of means or persons to insure or afford impunity;

xxx

2. With evident premeditation;

xxx

To successfully prosecute the crime of murder, the following elements must be established: (1) that a person
was killed; (2) that the accused killed him or her; (3) that the killing was attended by any of the qualifying
circumstances mentioned in Article 248 of the RPC; and (4) that the killing is not parricide or infanticide. 18

In the present case, the prosecution was able to clearly establish that (1) Francisco was stabbed and killed; (2)
appellant stabbed and killed him; (3) Francisco's killing was attended by the qualifying circumstance of treachery
as testified to by prosecution eyewitnesses; and, (4) the killing of Francisco was neither parricide nor infanticide.

Paragraph 16, Article 14 of the RPC defines treachery as the direct employment of means, methods, or forms in
the execution of the crime against persons 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 is deliberate and without warning, done in a swift and unexpected way, affording the hapless,
unarmed and unsuspecting victim no chance to resist or escape.   In order for treachery to be properly
19

appreciated, two elements must be present: (1) at the time of the attack, the victim was not in a position to
defend himself; and (2) the accused consciously and deliberately adopted the particular means, methods, or
forms of attack employed by him.  These elements are extant in the facts of this case and as testified to by the
20

prosecution witnesses. To emphasize, the victim, Francisco, was caught off guard when appellant attacked him.
As testified to by a prosecution witness, Francisco was then holding a plastic container containing bread and
was eating. The stealth, swiftness and methodical manner by which the attack was carried out gave the victim
no chance at all to evade when appellant thrust the knife to his torso. Thus, there is no denying that appellant's
sudden and unexpected onslaught upon the victim, and the fact that the former did not sustain any injury,
evidences treachery. Also, the fact that appellant was facing Francisco when he stabbed the latter is of no
consequence. Even a frontal attack could be treacherous when unexpected and on an unarmed victim who
would be in no position to repel the attack or avoid it,  as in this case. Undoubtedly, the RTC and the CA
21

correctly held that the crime committed was murder under Article 248 of the RPC by reason of the qualifying
circumstance of treachery.

Appellant, nonetheless, insists on his defense of insanity. In this regard, the Court's pronouncement in the case
of People v. Estrada  is instructive, to wit:
22

The basic principle in our criminal law is that a person is criminally liable for a felony committed by him. Under
the classical theory on which our penal code is mainly based, the basis of criminal liability is human free will.
Man is essentially a moral creature with an absolutely free will to choose between good and evil. When he
commits a felonious or criminal act (delito doloso), the act is presumed to have been done voluntarily, i.e., with
freedom, intelligence and intent. Man, therefore, should be adjudged or held accountable for wrongful acts so
long as free will appears unimpaired.

In the absence of evidence to the contrary, the law presumes that every person is of sound mind and that all
acts are voluntary. The moral and legal presumption under our law is that freedom and intelligence constitute the
normal condition of a person. This presumption, however, may be overthrown by other factors; and one of these
is insanity which exempts the actor from criminal liability.

The Revised Penal Code in Article 12 (1) provides:

ART. 12. Circumstances which exempt from criminal liability. The following are exempt frorri criminal liability:

1. An imbecile or an insane person, unless the latter has acted during a lucid interval.

When the imbecile or an insane person has committed an act which the law defines as a felony (delito), the court
shall order his confinement in one of the hospitals or asylums established for persons thus afflicted, which he
shall not be permitted to leave without first obtaining the permission of the same court.

An insane person is exempt from criminal liability unless he has acted during a lucid interval. If the court
therefore finds the accused insane when the alleged crime was committed, he shall be acquitted but the court
shall order his confinement in a hospital or asylum for treatment until he may be released without danger. An
acquittal of the accused does not result in his outright release, but rather in a verdict which is followed by
commitment of the accused to a mental institution.

In the eyes of the law, insanity exists when there is a complete deprivation of intelligence in committing the act.
Mere abnormality of the mental faculties will not exclude imputability. The accused must be "so insane as to be
incapable of entertaining a criminal intent." He must be deprived of reason and act without the least discernment
because there is a complete absence of the power to discern or a total deprivation of freedor~/ of the will.

Since the presumption is always in favor of sanity, he who invokes insanity as an exempting circumstance must
prove it by clear and positive evidence. And the evidence on this point must refer to the time preceding the act
under prosecution or to the very moment of its execution.

To ascertain a persons mental condition at the time of the act, it is permissible to receive evidence of the
condition of his mind within a reasonable period both before and after that time. Direct testimony is not required.
Neither are specific acts of derangement essential to establish insanity as a defense. Circumstantial evidence, if
clear and convincing, suffices; for the unfathomable mind can only be known by overt acts. A person's thoughts,
motives, and emotions may be evaluated only by outward acts to determine whether these conform to the
practice of people of sound mind. 23

In the present case, the defense failed to overcome the presumption of sanity. The testimonies of Dr. Preciliana
Lee Gilboy (Dr. Gilboy) and Dr. Andres Suan Gerong (Dr. Gerong), as the defense's qualified expert witnesses,
failed to support appellant's claim of insanity. As correctly observed by the CA, the separate psychiatric
evaluations of appellant were taken in June 2009 and July 2010, which are three and four years after the crime
was committed on April 19, 2006. In People v. So,  which is a case of recent vintage, this Court ruled that an
24

inquiry into the mental state of an accused should relate to the period immediately before or at the very moment
the felony is committed.  Hence, the results of the psychiatric tests done on appellant and testified to by the
25

defense witnesses, may not be relied upon to prove appellant's mental condition at the time of his commission of
the crime.

In any case, during cross-examination, Dr. Gilboy testified that for a number of years up to the time that
appellant killed Francisco, he had custody of and served as the guardian of his sister's children.  He took care of
26

their welfare and safety, and he was the one who sends them to and brings them home from school. Certainly,
these acts are not manifestations of an insane mind. On his part, Dr. Gerong testified, on direct examination, that
he found appellant to have "diminish[ ed] capacity to discern what was wrong or right at the time of the
commission of the crime."  "Diminished capacity" is not the same as "complete deprivation of intelligence or
27

discernment." Mere abnormality of mental faculties does not exclude imputability.   Thus, on the basis of these
28

examinations, it is clearly evident that the defense failed to prove that appellant acted without the least
discernment or that he was suffering from a complete absence of intelligence or the power to discern at the time
of the commission of the crime.

Furthermore, appellant's act of treachery, that is by employing means and methods to ensure the killing of
Francisco without risk to himself arising from the defense which the victim might make, as well as his
subsequent reaction of immediately fleeing after his commission of the crime and, thereafter, evading arrest, is
not the product of a completely aberrant mind. In other words, evidence points to the fact that appellant was not
suffering from insanity immediately before, simultaneous to, and even right after the commission of the crime.

In his Supplemental Brief, appellant cites the "Durham Rule" which was used in criminal courts in the United
States of America. This rule postulated that an accused is not criminally responsible if his unlawful act was the
result of a mental disease or defect at the time of the incident.  However, in subsequent rulings, US Federal
29

Courts and State Courts, even by the court which originally adopted it, rejected and abandoned this rule for
being too broad and for lacking a clear legal standard for criminal responsibility.   As earlier discussed, in the
30

Philippines, the courts have established a clearer and more stringent criterion for insanity to be exempting as it is
required that there must be a complete deprivation of intelligence in committing the act, i.e., the accused is
deprived of reason; he acted without the least discernment because there is a complete absence of the power to
discern, or that there is a total deprivation of the will.  Thus, appellant's reliance on the Durham Rule is
31

misplaced and, thus, may not be given credit.

Having been shown beyond doubt that the prosecution was able to prove with certainty all the elements of the
crime charged, the Court will now proceed to determine the correctness of the penalty and the civil liabilities
imposed upon appellant.

As to the penalty, the crime of murder qualified by treachery is penalized under Article 248 of the RPC, as
amended by Republic Act No. 7659, with reclusion perpetua to death. As to the alleged aggravating
circumstance of evident premeditation, this Court has ruled that for it to be considered as an aggravating
circumstance, the prosecution must prove (a) the time when the offender determined to commit the crime, (b) an
act manifestly indicating that the culprit has clung to his determination, and (c) a sufficient lapse of time between
the detennination and execution, to allow him to reflect upon the consequences of his act and to allow his
conscience to overcome the resolution of his will.  In the instant case, no proof has been adduced to establish
32

that appellant had previously planned the killing of Francisco. There is no evidence when and how he planned
and prepared for the same, nor was there a showing that sufficient time had lapsed between his determination
and execution. In this respect, the Court quotes with approval the disquisition of the CA, to wit:

The circumstances that transpired immediately before and after the stabbing negate evident premeditation. The
time when accused-appellant conceived the crime cannot be determined. Even assuming that there was an
altercation that arose between the accused-appellant and the victim due to the remarks made by the former to
the latter, this is not the overt act indicative of his criminal intent. Simply put, the prosecution failed to establish
that there was a sufficient lapse of time for accused-appellant to reflect on his decision to kill the victim and the
actual execution thereof.  33

Thus, the RTC and the CA are correct in not considering the aggravating circumstance of evident premeditation.

The Court likewise agrees with the RTC and the CA in not appreciating the mitigating circumstances of sufficient
provocation on the part of the offended party and voluntary plea of guilt on the part of appellant.
With respect to the alleged mitigating circumstance of sufficient provocation on the part of Francisco, the rule is
that, as a mitigating circumstance, sufficient provocation is any unjust or improper conduct or act of the victim
adequate enough to ~xcite a person to commit a wrong, which is accordingly proportionate in gravity.  In the
34

present case, appellant asserts that several days before he stabbed the victim, the latter teased appellant to be
"gay" and taunted him that the girl whom appellant courted rejected him. However, the Court finds no cogent
reason to depart from the ruling of the RTC on this matter, to wit:

For sufficient provocation under Article 13, paragraph 4 of the Revised Penal Code of the Philippines to apply,
three requisites must be present:

a) provocation must be sufficient;

b) it must be immediate to the commission of the crime; and

c) it must originate from the offended party.

"Sufficient" according to jurisprudence means adequate to excite a person to commit the crime and must
accordingly be proportionate to its gravity. In Bautista v. Court of Appeals [G.R. No. L-46025, September 2,
1992], the mitigating circumstance did not apply since it is not enough that the provocating act be unreasonable
or annoying. Certainly, calling a person gay as in this case is not the sufficient provocation contemplated by law
that would lessen the liability of the accused.

"Immediate" on the other hand means that there is no interval of time between the provocation and the
commission of the crime. Hence, in one case [People v. Co, 67 O.G. 7451] the Supreme Court ruled that
provocation occurring more than one hour before the stabbing incident is not immediate and in People v. Benito
[62 SCRA 351] 24 hours before the commission of the crime. Per admission of the defense witnesses, the
taunting done by the victim occurred days before the stabbing incident hence the immediacy required by law
was absent. The lapse of time would have given the accused [chance] to contemplate and to recover his
serenity enough to refrain from pushing through with his evil plan.  35

Anent the supposed voluntary plea of guilt on appellant's part, it is settled that a plea of guilty made after
arraignment and after trial had begun does not entitle the accused to have such plea considered as a mitigating
circumstance.  Again, the Court quotes with approval the RTC's disquisition, thus:
36

The second mitigating circumstance of voluntary plea of guilt. claimed by the accused could likewise not be
considered.  The voluntary plea of guilt entered by the accused is not spontaneous because it was made after
1âwphi1

his arraignment and only to support his claim of the exempting circumstance of insanity. The voluntary plea of
guilt required by law is one that is made by the accused in cognizance of the grievous wrong he has committed
and must be done as an act of repentance and respect for the law. It is mitigating because it indicated a moral
disposition in the accused favorable to his reform. It may be recalled that accused in the case at bar did not
change his plea from "not guilty" to "guilty". In a last ditch effort to elude liability, however, accused claimed the
defense of admitting the act of [stabbing]. 37

The Court, however, agrees with the CA in appreciating the mitigating circumstance of illness as would diminish
the exercise of willpower of appellant without, however, depriving him of the consciousness of his acts, pursuant
to Article 13, paragraphs 9 and 10 of the RPC, as he was found by his examining doctors to have "diminish[ ed]
capacity to discern what was wrong or right at the time of the commission of the crime."  Thus, on the basis of
38

the foregoing, appellant was correctly meted the penalty of reclusion perpetua, conformably with Article 63,
paragraph 3 of the RPC.

With respect to appellant's civil liability, the prevailing rule is that when the circumstances surrounding the crime
call for the imposition of reclusion perpetua only, there being no ordinary aggravating circumstance, as in this
case, the proper amounts should be ₱75,000.00 as civil indemnity, ₱75,000.00 as moral damages and
₱75,000.00 as exemplary damages, regardless of the number of qualifying aggravating circumstances
present.  In conformity with the foregoing rule, the awards granted by the lower courts must, therefore, be
39

modified. Thus, the award of moral damages should be increased from ₱50,000.00 to P75,000.00. Appellant
should also pay the victim's heirs exemplary damages in the amount of P75,000.00. The award of ₱75,000.00,
as civil indemnity, is sustained.

As regards the trial court's award of actual damages in the amount of P30,000.00, the same must, likewise, be
modified. The settled rule is that when actual damages proven by receipts during the trial amount to less than
the sum allowed by the Court as temperate damages,   the award of temperate damages is justified in lieu of
40

actual damages which is of a lesser amount.  Conversely, ifthe amount of actual damages proven exceeds, then
41

temperate damages may no longer be awarded; actual damages based on the receipts presented during trial
should instead be granted.  The rationale for this rule is that it would be anomalous and unfair for the victim's
42

heirs, who tried and succeeded in presenting receipts and other evidence to prove actual damages, to receive
an amount which is less than that given as temperate damages to those who are not able to present any
evidence at all.  In the present case, Francisco's heirs were able to prove, and were awarded, actual damages
43

in the amount of ₱30,000.00. Since, prevailing jurisprudence now fixes the amount of ₱50,000.00 as temperate
damages in murder cases, the Court finds it proper to award temperate damages to Francisco's heirs, in lieu of
actual damages.

The imposition of six percent (6%) interest per annum on all damages awarded from the time of finality of this
decision until fully paid, as well as the payment of costs, is likewise sustained.

WHEREFORE, the Court AFFIRMS the Decision of the Court of Appeals, dated February 27, 2015, in CA-G.R.
CR-HC No. 01450, finding accused-appellant Roger Racal @ Rambo GUILTY beyond reasonable doubt of the
crime of Murder, with the following MODIFICATIONS:

(1) The award of moral damages is INCREASED to Seventy-Five Thousand Pesos (₱75,000.00);

(2) Accused-appellant is DIRECTED TO PAY the heirs of the victim Jose "Joe" Francisco exemplary damages in
the amount of Seventy-Five Thousand Pesos (₱75,000.00); and (3) The award of actual damages
is DELETED and, in lieu thereof, temperate damages in the amount of Fifty Thousand Pesos (₱50,000.00)
is awarded to the heirs of the victim.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ESTELA M. PERLAS-BERNABE ALFREDO BENJAMIN S. CAGUIOA

Associate Justice Associate Justice

ANDRES B. REYES, JR.

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to the Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that
the conclusions in the above Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.

MARIA LOURDES P.A. SERENO

Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 95029 March 24, 1993

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ADOLFO NARVAS PASCUAL, accused-appellant.

The Solicitor General for plaintiff-appellee.

Sanvicene, De Leon & Associates for accused-appellant.

NOCON, J.:

Accused-appellant Adolfo Pascual disclaims knowledge of raping Virginia de Guzman on the feastday of the Sto.
Niño (January 17, 1982) in Tondo because he was, according to him, insane at that time. Virginia claims she
was raped five (5) times in as many hours.

As summarized by the trial court, the facts of the case are as follows:

[S]ometime in November, 1981, or roughly two (2) months before January 17, 1982, the Accused
began courting Virginia de Guzman in earnest. . . . . His persistency and tenacity and avowals of
love bore fruit because after a month of unrelenting courtship, Virginia de Guzman finally
succumbed and she accepted him as her boyfriend and agreed to be his girlfriend. . . . .

However, the feast of the Sto. Niño, the patron saint of the locality, which was third Sunday of
January of every year, was fast approaching. On January 15, 1982, . . . he invited Virginia de
Guzman to attend and spend the day of the feast on January 17, 1982, and have dinner in the
house of his uncle "Tonying" and his auntie at No. 1602 Velasquez Street, Tondo, Manila. She
saw nothing wrong with the invitation of the Accused and accepted the invitation readily.

. . . (they) started the day of January 17, 1982, by meeting in the house of Virginia de Guzman at
about 3:00 o'clock in the morning and attended mass together.

xxx xxx xxx

When . . . (they) arrived (at the house of his uncle and auntie), . . . the Accused told Virginia de
Guzman that they will go to the old house (which was at the back of the house) to have their
dinner there because there were plenty of people inside the house of his aunt. The Accused then
took some food for him(self) and Virginia de Guzman . . . (he) assured the latter that they will just
stay there for a while and get back to the house after their dinner. On that note, Virginia de
Guzman agreed.

They left the house of the aunt of the Accused, passing through the door near the toilet (Exhibit
"I-E") and proceeded to the old house nearby. Upon reaching the old house, they passed through
the door thereto. The old house is also a two-storey edifice. There were no occupants at the time
the Accused and Virginia de Guzman entered the house. The lights were on.

The two proceeded to the second floor of the house. Virginia de Guzman was then preparing the
food brought for their dinner when the Accused suddenly kissed her and tried to remove her
blouse. She was caught off-guard and, taken aback, instinctively she shouted. She resisted the
advances of the Accused. However, the accused persisted, assuring her that he will answer and
take full responsibility for what will happen. She refused. However, the Accused, took out a
 "balisong" or single bladed knife from his waistline pointed it to her neck, at the same time
unzipping his pants. Virginia de Guzman, thereupon managed to run to the ground floor of the
house to seek help. The door was closed, however. She pounded on the door, shouting: "Diyos
ko, tulungan po ninyo ako." However, the accused followed Virginia de Guzman to the ground
floor and prevented her from pounding on the door some more. Nevertheless, the aunt of the
Accused heard the noise and inquired: "Ano iyon, Dolphy?" However, the Accused replied: "Wala
iyon, Tiyang." Forthwith, the Accused boxed Virginia de Guzman on the stomach and tried to
stab her with his balisong. Instinctively, Virginia de Guzman tried to wrest the knife from the
Accused and got hold of the knife. She, however, failed to wrest the knife from the Accused. In
the process, her palms and fingers were injured. The Accused then held Virginia de Guzman by
putting his right hand around her neck, with the knife, held by the Accused with his right hand,
pointed and pressed to her neck. The Accused uttered invectives at Virginia de Guzman, saying
"Putang Ina mo, dito ka pa gagawa ng gulo." and warning her that something might happen to
both of them. The Accused then pulled her (kinaladkad) towards the second floor as she
continued to resist. Thereupon, the Accused, with the knife still held by him, removed her blouse,
cut off the front portion of her brassiere with the tip of his knife and removed the strap of her
brassiere with his left hand. She did not know where the Accused put her brassiere after
removing it from her. She continued pleading with the Accused, at the same time kicking him.
Instead of relenting, the Accused pointed the knife at her and warned her that if any vehicle was
parked nearby, it might be a vehicle of a policeman and he would have to cut her neck with the
knife. The Accused then removed his pants and clothes. Thereafter, he kicked the lower portion
of her left leg and this forced her to fall down on the floor, on a sitting position. The Accused then
removed her pants with his two hands, the knife still on his hand. The Accused then ordered her
to lie down on the floor and, when she did, the Accused removed her panties with his left hand,
while poking the knife at her neck. Thereupon, the Accused went on top of her and inserted his
private part into her private parts and succeeded in having sexual intercourse with her. The
Accused, in the process, moved his buttock in an "up and down" direction. She cried as she felt
pains in her private parts. She had not experienced sexual congress before. Her love for him
completely evanesced because of what he did.

The Accused was on top of her, having sexual intercourse with her for about one-half hour.
During that period of time, the Accused had his knife pointed at her neck. After about half an
hour, she felt something coming out of the private part of the Accused and thereafter, he
dismounted from her. Both of them sat on the floor, naked, leaning against the wall. The knife, in
the meanwhile, was being held by the Accused. The Accused, assured her that he would take full
responsibility for what happened. It was then about 7:00 o'clock in the evening of January 17,
1982. After an interval of ten (10) minutes, the Accused succeeded in having a second sexual
intercourse with her. Like during the first intercourse, the Accused had with Virginia de Guzman,
the knife was pointed at her. Again, she felt something was coming out of his private parts. They
sat down again, on the floor, still naked for about thirty (30) minutes. Virginia de Guzman then
told the Accused that she wanted to go home already. However, the Accused refused and merely
kept silent. The Accused had sexual congress with her for three (3) more times. It was then
about 2:00 o'clock in the early morning of January 18, 1982. By then she was extremely
exhausted and dizzy. She wanted to put on her clothes back but the Accused did not want her to.
As they laid down on the floor, Virginia de Guzman tried her best to keep awake. However, the
Accused was alert and was able to keep awake too. Unable to keep herself from sleeping,
Virginia de Guzman slept ahead of the Accused. The Accused took a blanket from inside the
aparador and used the said blanket for both of them.  (Sic not used to avoid cluttering of
1

testimony).

Accused-appellant was thus charged in court with the rape of Virginia de Guzman in an Information filed on
February 3, 1982. 2

In defense, accused-appellant pleads insanity and denial of the crime charged.

According to the trial court:

The Accused pleaded ignorance of the charge against him. The accused denied recollection of
his whereabouts on January 17, 1982. Although he admitted knowing the Private Complainant as
his neighbor, he alleged ignorance of any relationship he had with her or having met her on
January 17, 1982, or his whereabouts on January 29, 1982 or why he was brought to the
hospital although his mother, Felicitas Pascual used to visit him there. He recalled his father's
 name, Elpidio Pascual, and his brothers' and sisters' names, as Ernesto Pascual, Hermina
Pascual, Arsenia Pascual and Jonel Pascual. He studied with the Arellano University High
School but finished only the second year. He finished his elementary education at the Yangco
Elementary School.

The Accused adduced evidence, through the testimony of Dr. Eduardo Maaba of the National
Center for Mental Health, to prove that, at the time of the commission of the crime charged, the
Accused was insane within the context of Article 12, paragraph 1 of the Revised Penal Code. It
appears that the Accused was first admitted to the National Mental Hospital (now the National
Center for Mental Health) on May 7, 1980 for "schizoprenia, undifferentiated type" when the
Accused was barely eighteen (18) years of age. Eventually, the Accused was discharged from
the hospital, on January 5, 1982 on an overdue pass. The hospital found
that there was no more need for the further confinement of the Accused although he had to go
back to the hospital for periodic examination and treatment. . . . 3

On March 5, 1982, the trial court ordered the confinement of the accused at the National Mental Hospital for
examination and treatment.

It was only on July 3, 1987 that the accused was certified by the mental health authorities to be fit to stand the
rigors of a court trial.

Consequently, after trial on the merits, the trial court rendered judgment against accused-appellant, on August 1,
1988, finding him guilty of the offense charged, the dispositive portion of which states as follows:

WHEREFORE, judgment is hereby rendered finding the Accused ADOLFO PASCUAL Y

NARVAS guilty beyond reasonable doubt for the crime of Rape defined in and penalized by
Article 335 of the Revised Penal Code and, conformably with said provision, hereby sentences
the said Accused, to the penalty of RECLUSION PERPETUA with all the accessory penalties of
the law and the costs of suit.

The Accused is hereby ordered to pay to the Private Complainant, Virginia de Guzman, the sum
of TWENTY THOUSAND (P20,000.00) PESOS, Philippine Currency, as moral damages.

The period during which the Accused has been confined at the City Jail after his arrest in this
case and the National Center for Mental Health from March 5, 1982 in connection with this case
shall be credited to him in full provided that he agreed, in writing, to abide by and comply strictly
with the rules and regulations of the City Jail.

SO ORDERED. 4

Hence, this appeal, with accused-appellant raising as errors of the trial court:

I. In not finding that the accused was insane at the time of the commission of rape;

II. In proceeding with the trial without first securing the conformity or approval of the Director of Health as
mandated by law that accused was already cured of his mental illness and can stand trial, and

III. On the assumption that the accused was sane, in not acquitting him on ground of reasonable doubt on the
face of the inconsistent, contradictory and incredible testimonies of prosecution witnesses. 5

The principal submission of accused-appellant is that he was suffering from "schizoprenia, undifferentiated type"
on January 17, 1982 that is why he does not remember having raped Virginia five (5) times.

Schizoprenia, as a defense, was discussed extensively in People vs. Rafanan, Jr.,  as follows:
6

Although the Court has ruled many times in the past on the insanity defense, it was only in
People vs. Formigones that the Court elaborated on the required standards of legal insanity,
quoting extensively from the Commentaries of Judge Guillermo Guevara on the Revised Penal
Code, . . :

xxx xxx xxx

 The standards set out in Formigones were commonly adopted in subsequent cases. A linguistic
or grammatical analysis of those standards suggests that Formigones established two (2)
distinguishable tests: (a) the test of cognition — "complete deprivation of intelligence in
committing the [criminal act]," and (b) the test of volition — "or that there be a total deprivation of
freedom of the will." But our caselaw shows common reliance on the test of cognition, rather than
on a test relating to "freedom of the will;" examination of our caselaw has failed to turn up any
case where this Court has exempted an accused on the sole ground that he was totally deprived
of "freedom and will," i.e., without an accompanying "complete deprivation of intelligence." This is
"perhaps to be expected since a person's volition naturally reaches out only towards that which is
presented as desirable by his intelligence, whether that intelligence be diseased or healthy. In
any case, where the accused failed to show complete impairment or loss of intelligence, the
Court has recognized at most a mitigating, not an exempting, circumstance in accord with Article
13(9) of the Revised Penal Code:" Such illness of the offender as would diminish the exercise of
the will-power of the offender without however depriving him of the consciousness of his acts.

Schizoprenia pleaded by appellant has been described as a chronic mental disorder

characterized by inability to distinguish between fantasy and reality, and often accompanied by
hallucinations and delusions. Formerly called dementia praecox, it is said to be the most
common form of psychosis and usually develops between the ages 15 and 30. A standard
textbook in psychiatry describes some of the symptoms of schizoprenia in the following manner:

Eugen Bleuler later described three general primary symptoms of schizoprenia: a

disturbance of association, a disturbance of affect, and a disturbance of activity.
Bleuler also stressed the dereistic attitude of the schizoprenic — that is, his
detachment from reality and his consequent autism and the ambivalence that
expresses itself in his uncertain effectivity and initiative. Thus, Bleuler's system of
schizoprenia is often referred to as the four A's: association, affect, autism, and
ambivalence.

xxx xxx xxx

Kurt Schneider described a number of first-rank symptoms of schizoprenia that he considered in

no way specific for the disease but of great pragmatic value in making a diagnosis. Schneider's
first-rank symptoms include the hearing of one's thoughts spoken aloud, auditory hallucinations
that comment on the patient's behavior, somatic hallucinations, the experience of having one's
thoughts controlled, the spreading of one's thoughts to others, delusions, and the experience of
having one's actions controlled or influenced from the outside.

Schizoprenia, Schneider pointed out, also can be diagnosed exclusively on the basis of second-
rank symptoms, along with an otherwise typical appearances. Second-rank symptoms include
other forms of hallucination, perplexity, depressive and euphoric disorders of affect, and
emotional blunting.

xxx xxx xxx

In previous cases where schizoprenia was interposed as an exempting circumstance, it has

mostly been rejected by the Court. In each of these cases, the evidence presented tended to
show that if there was impairment of the mental faculties, such impairment was not so complete
as to deprive the accused of intelligence or the consciousness of his acts. 7

The following actions on the part of the accused-appellant, which are findings of fact of the trial court, negate
complete destruction of intelligence at the time the rape was committed:

1. the fact that he pointed a "balisong" at the neck of Virginia when she initially resisted his
advances; 8

2. the fact that he told his Auntie that Virginia's pounding at the door of the house, where
accused brought her to be raped, was nothing to worry about; 9

3. the fact that he threatened her with death if any police vehicle will park near that home;  10
 4. the fact that when complainant first resisted accused's advances and after he had
consummated the sexual assault, he assured Virginia that he would answer and take full
responsibility for what will happen;  11

5. the fact that he raped her five (5) times in as many hours;  12

6. the fact that accused took a blanket from the aparador and used it to cover both himself and
the complainant, who having been raped five times, eventually fell asleep as she was tired,
exhausted and emotionally drained;  13

7. the fact that the accused insisted on going with Virginia when her mother rescued her from
accused's auntie's old house.  14

All these indicate to the court that accused-appellant was very much aware of what he had done, contrary to the
requirement of complete deprivation of intelligence for the exempting circumstance of insanity to be appreciated
in accused-appellant's favor. 15

We find, therefore, no exempting circumstance of insanity in accused-appellant's case. With this finding, the
resolution of appellant's second assignment of error would be irrelevant and immaterial.

II

However, appellant contends that, on the assumption that he was sane, he could not be convicted on the basis
of the inconsistent, contradictory and incredible testimonies of the prosecution witnesses, as follows:

1. Accused-appellant threatened Virginia with a knife either when she was boxed by the accused
at the first floor of the house where she was raped  or when he kissed her while they were
16

eating; 
17

2. Either Virginia told her mother she was raped when she and her mother were going home from
accused's auntie's house on the morning of January 18, 1982  or she never informed her mother
18

of the rape committed on her ; and that

19

3. Virginia just slept the whole day of the 18th of January when she arrived at her house. 20

These alleged inconsistencies represent minor lapses on the complaining witness' part and are to be expected
when a person is recounting details of a humiliating experience, which are painful to recall, in open court and in
the presence of strangers on an extremely intimate matter not normally talked about in public, and do not detract
from the credibility of the complaining witness.  What is sufficient is that Virginia's parents did talk things over
21

between themselves lest the entire family be involved in any untoward incident.   After the decision to seek
22

vindication on the wrong done to her was reached, the family lost no time in reporting the incident to the police
and having Virginia medically examined.  23

The fact that Virginia slept the whole day of January 18, 1981 in the safety of her own house has no effect on the
credibility of her testimony that she was raped the previous night by the accused and up to the early morning of
January 18th. Tired and exhausted from her harrowing experience, it is but natural for her to fall asleep.

III

A rule deeply embedded in our jurisprudence is that when a woman testifies that she has been raped, she says
in effect all that is to be said to constitute the commission of said crime.  No young Filipina of decent repute
24

would publicly admit that she has been ravished and abused unless it is the truth. 25

The law presumes every person to be sane. A person accused of a crime has the burden of proving his
affirmative allegations of insanity.  This appellant has failed to prove — that he was insane at the time he raped
26

Virginia — and offered no evidence of his total deprivation of intelligence while he was raping Virginia five (5)
times. On the contrary, accused-appellant's own witness testified as follows:

FISCAL CADELINA:
 When you were examining him on March 9, 1982, he was relating to you the
incident of intercourse, did the Accused show any sign of remorse about the
intercourse or rape?

WITNESS:

The most important thing that I do here is to jot down the acts of the patient, but
there were times when the patient described emotional tunes. In this particular
case I failed to reflect it in the chart of the patient, sir.

FISCAL CADELINA:

But when the patient was answering your questions he answered them
responsively and coherently, is that right?

WITNESS:

Yes, sir. 27

WHEREFORE, finding no reversible error in the decision appealed from, the same is hereby AFFIRMED with
the modification that the indemnity is hereby INCREASED to P40,000.00 in line with current jurisprudence. 28

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Campos, Jr., JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 172697               September 25, 2007

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
REYNALDO VILLANUEVA y MARQUEZ Appellant.

RESOLUTION

CARPIO, J.:

This is an appeal from the 21 February 2006 Decision1 of the Court of Appeals in CA-G.R. CR HC No. 00539.
The Court of Appeals affirmed with modification the decision of the trial court finding appellant Reynaldo
Villanueva y Marquez guilty beyond reasonable doubt of murder, frustrated murder, and attempted murder.

In the afternoon of 21 January 2000, appellant, then 31 years old, killed his niece Angelica Villanueva (Angelica),
aged 8, by boxing her on the head and kicking her several times on the different parts of her body. 2 Appellant
also mauled his nephews Rexie Villanueva (Rexie) and Enrique, Villanueva, Jr. (Enrique, Jr.), aged 5 and 2,
respectively.

Angelica died of massive brain edema, cerebral contusion, subdural hemorrhage due to mauling. Rexie
sustained injuries, which could have resulted to massive brain edema and his subsequent death, were it not for
the medical intervention. Enrique, Jr. suffered a broken mouth and was confined at the Baguio General Hospital
(BGH) for four days.

Consequently, appellant was charged with murder for the death of Angelica, frustrated murder for the serious
injuries suffered by Rexie, and attempted murder for the injuries inflicted on Enrique, Jr. The corresponding
Informations3 were filed before the Regional Trial Court of Baguio City, Branch 6, for murder, 4 frustrated murder,
and attempted murder. The cases were docketed as Criminal Case No. 17427-R for murder, Criminal Case No.
17429-R for frustrated murder, and Criminal Case No. 17428-R for attempted murder.

Appellant pleaded insanity. He claimed that he did not know that he killed his niece Angelica and that he mauled
his nephews Rexie and Enrique, Jr.

However, appellant was able to narrate vividly the events prior to the commission of the brutal crimes. In the
morning of 21 January 2000, appellant consulted Dr. Clarette Rosario P. Dy (Dr. Dy) of the Psychiatric
Department of BGH for a follow-up check-up. Dr. Dy prescribed medicines; then, she allowed appellant to go
home. From BGH, appellant went to 456 Restaurant along Session Road, where he ordered several bottles of
Red Horse beer. After leaving the restaurant, he strolled along Session Road, Maharlika Livelihood Center, and
Burnham Park. On his way home, he passed by a videoke bar along Magsaysay Avenue, where he ordered
more Red Horse beer. A lady joined him in his table so he ordered drinks for her. He took turns in passing the
microphone and singing. He paid a total of ₱650 for their drinks. He only had enough fare when he left the
videoke bar past 4:00 p.m. Upon reaching home, he went to buy some hot dogs which he cooked since he was
hungry. When his mother asked if she could have some, appellant got irked because he did not have breakfast
and lunch. He told her that she must have eaten already as it was late in the afternoon. His mother got scared of
him and ran away. Appellant was so peeved that he wanted to give vent to his anger. After finishing his food, he
went to his mother’s room. It was at this point that appellant committed the crimes.

Dr. Dy testified that she had been attending to appellant for about four years already at the Psychiatric
Department of BGH. She opined that appellant is suffering from a mental disorder classified as schizophrenia,
paranoid, episodic with interepisode residual symptoms characterized by intermittent episodes of psychotic signs
and symptoms. Dr. Dy said that this type of illness is recurrent and not permanent.

Appellant’s mother testified that appellant had a tendency to have violent fits when angry and under the
influence of liquor or drugs.
In its Decision of 11 March 2002, 5 the trial court found appellant guilty of murder under Article 248 of the Revised
Penal Code, as amended by Section 6 of Republic Act No. 7659, frustrated murder, and attempted murder. The
trial court held that appellant failed to overcome the presumption of sanity. The defense evidence even showed
that appellant was sane at the time the crimes were committed. There was sufficient evidence that immediately
prior to the commission of the crimes, appellant was not completely deprived of reason or discernment and
freedom of will. The trial court found it strange that appellant’s memory was sharp as to the incidents prior to the
commission of the crimes but "stood still at that very crucial moment when he mortally injured his victims."
Thereafter, appellant’s memory returned when he was already at the hospital.

The dispositive portion of the trial court’s decision reads:

WHEREFORE, judgment is hereby rendered as follows:

1. In Criminal Case No. 17427-R, the Court finds the accused Reynaldo Villanueva guilty beyond
reasonable doubt of the offense of Murder defined and penalized under Art. 248 of the Revised Penal
Code as amended by Sec. 6 of Republic Act 7659 as charged in the Information, and hereby sentences
him to suffer the penalty of Reclusion Perpetua; to indemnify the heirs of the deceased Angelica
Villanueva the sum of ₱50,000.00 as civil indemnity for her death and ₱200,000.00 as Moral Damages
for the pain and anguish suffered by the heirs as a result of her death, all indemnifications are without
subsidiary imprisonment in case of insolvency and to pay the costs of suit.

The accused Reynaldo Villanueva being a detention prisoner is entitled to be credited 4/5 of his
preventive imprisonment in the service of his sentence in accordance with Art. 29 of the Revised Penal
Code.

2. In Criminal Case No. 17428-R, the Court finds the accused Reynaldo Villanueva guilty beyond
reasonable doubt of the offense of Frustrated Murder defined and penalized under Art. 248 in relation to
Art. 50 and Art. 6 of the Revised Penal Code as charged in the Information, for the injuries suffered by
Rexie Villanueva and hereby sentences to an imprisonment ranging from 10 years and 1 day of Prision
Mayor as Minimum to 14 years and 1 day of Reclusion Temporal as Maximum; to indemnify Rexie
Villanueva the sum of ₱100,000.00 as Moral Damages for his injuries, all indemnification are without
subsidiary imprisonment in case of insolvency and to pay the costs of suit.

The accused Reynaldo Villanueva being a detention prisoner is entitled to be credited 4/5 of his
preventive imprisonment in the service of his sentence in accordance with Art. 29 of the Revised Penal
Code.

3. In Criminal Case No. 17429-R, the Court finds the accused Reynaldo Villanueva guilty beyond
reasonable doubt of the offense of Attempted Murder defined and penalized under Art. 248 in relation to
Art. 51 and Art. 6 of the Revised Penal Code as charged in the Information, for the injuries suffered by
Enrique Villanueva, [Jr.] and hereby sentences him to an imprisonment ranging from 6 months and 1 day
of Prision Correccional as Minimum to 8 years and 1 day of Prision Mayor Maximum; to indemnify
Enrique Villanueva, Jr. the sum of ₱50,000.00 as Moral Damages, all indemnifications are without
subsidiary imprisonment in case of insolvency and to pay the costs of suit.

The accused Reynaldo Villanueva being a detention prisoner is entitled to be credited 4/5 of his
preventive imprisonment in the service of his sentence in accordance with Art. 29 of the Revised Penal
Code.

SO ORDERED.6

In its Decision of 21 February 2006, the Court of Appeals affirmed with modification the trial court’s decision. The
appellate court found appellant’s schizophrenia a mitigating circumstance under Article 13(9) 7 of the Revised
Penal Code. The appellate court reduced the award of moral damages and modified the penalty imposed on
appellant for attempted murder.

WHEREFORE, the appealed decision of the Regional Trial Court of Baguio City (Branch 6) is MODIFIED in that
(i) it is in Crim. Case No. 17429-R where accused-appellant Reynaldo Villanueva y Marquez is adjudged guilty
beyond reasonable doubt of the crime of frustrated murder and meted [out] the indeterminate penalty of ten (10)
years and one (1) day of prision mayor, as minimum, to fourteen (14) years and one (1) day of reclusion
temporal, as maximum; (ii) it is in Crim. Case No. 17428-R where said accused-appellant is adjudged guilty
beyond reasonable doubt of the crime of attempted murder, for which he is sentenced to suffer the indeterminate
penalty of six (6) months and one (1) day of prision correccional, as minimum, to eight (8) years of prision
mayor, as maximum; and (iii) the award of moral damages is REDUCED to ₱50,000.00 in Crim. Case No.
17427-R (for murder) and ₱25,000.00 each in Crim. Cases Nos. 17429-R (for frustrated murder) and 17428-R
(for attempted murder). The appealed judgment is AFFIRMED in all other respects.

SO ORDERED.8

Hence, this appeal.

The issue in this case is whether appellant is guilty beyond reasonable doubt of murder, frustrated murder, and
attempted murder.

The appeal lacks merit.

We affirm the findings of both trial and appellate courts that appellant failed to overcome the presumption of
sanity. Findings of fact of trial courts, specially if affirmed by the appellate courts, are entitled to respect and
generally should not be disturbed on appeal unless certain facts of substance and value were overlooked which,
if considered, may affect the outcome of the case.9 Such exception is inexistent in this case.

The defense failed to prove that appellant was completely deprived of intelligence in committing the dastardly
acts.10 Proof of the existence of some abnormalities in the mental faculties will not exempt the accused from
culpability, if it was shown that he was not completely deprived of freedom and intelligence. 11

Appellant’s recollection of the events prior to the crimes and his emotions afterwards indicate that he was sane
before, during, and after the commission of the crimes. Dr. Dy’s psychiatric report states that appellant felt guilty
about Angelica’s death and apprehensive for being in jail for a longer time. 12 A feeling of remorse is inconsistent
with insanity, as it is a clear indication that he was conscious of his acts. He acknowledged his guilt and was
sorry for his acts.13

We agree with the Court of Appeals in appreciating appellant’s mental disorder as a mitigating circumstance
under Article 13(9) of the Revised Penal Code. There is no dispute that appellant has a history of mental illness.
He was diagnosed to be suffering from "Schizophrenia, Paranoid, Episodic with Interepisode Residual
Symptoms" which began in 1985 and was characterized by intermittent episodes of psychotic signs and
symptoms since then until appellant’s examination on 21 June 2000. 14 We find that such illness diminished the
exercise of appellant’s will power without however depriving him of the consciousness of his acts. In fact,
appellant was aware that he hurt his niece "for he perceived her as a big man with a horrifying appearance." 15 1âwphi1

However, the Court of Appeals erred in the computation of the maximum of the indeterminate penalty for
frustrated murder in Criminal Case No. 17429-R. The Court of Appeals merely sustained the trial court’s
imposition of the penalty. Accordingly, we modify the penalty for frustrated murder and impose the indeterminate
sentence of six (6) years and one (1) day of prision mayor as minimum to twelve (12) years and one (1) day
of reclusion temporal as maximum.

WHEREFORE, we AFFIRM the 21 February 2006 Decision of the Court of Appeals in CA-G.R. CR HC No.
00539 finding appellant Reynaldo Villanueva y Marquez guilty beyond reasonable doubt of murder, frustrated
murder, and attempted murder with the MODIFICATION that the indeterminate penalty for frustrated murder
should be six (6) years and one (1) day of prision mayor as minimum to twelve (12) years and one (1) day
of reclusion temporal as maximum.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson
 CONCHITA CARPIO MORALES DANTE O. TINGA
Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ATTESTATION

I attest that the conclusions in the above Resolution had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that
the conclusions in the above Resolution had been reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

7
 Article 13(9) of the Revised Penal Code provides:

ART. 13. Mitigating circumstances. -- The following are mitigating circumstances:

xxxx

9. Such illness of the offender as would diminish the exercise of the will-power of the offender
without however depriving him of consciousness of his acts.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-54135 November 21, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
POLICARPIO RAFANAN, JR., defendant-appellant.

The Solicitor General for plaintiff-appellee.

Causapin, Millar & Tutana Law Office for defendant-appellant.

FELICIANO, J.:

Policarpio Rafanan, Jr. appeals from a decision of the then Court of First Instance of Pangasinan convicting him
of the crime of rape and sentencing him to reclusion perpetua, to indemnify complainant Estelita Ronaya in the
amount of P10,000.00 by way of moral damages, and to pay the costs.

The facts were summarized by the trial court in the following manner:

The prosecution's evidence shows that on February 27, 1976, complainant Estelita Ronaya who was
then only fourteen years old was hired as a househelper by the mother of the accused, Ines
Rafanan alias "Baket Ines" with a salary of P30.00 a month.

The accused Policarpio Rafanan and his family lived with his mother in the same house at Barangay San
Nicholas, Villasis, Pangasinan. Policarpio was then married and had two children.

On March 16, 1976, in the evening, after dinner, Estelita Ronaya was sent by the mother of the accused
to help in their store which was located in front of their house about six (6) meters away. Attending to the
store at the time was the accused. At 11:00 o'clock in the evening, the accused called the complainant to
help him close the door of the store and as the latter complied and went near him, he suddenly pulled
the complainant inside the store and said, "Come, let us have sexual intercourse," to which Estelita
replied, "I do not like," and struggled to free herself and cried. The accused held a bolo measuring 1-1/2
feet including the handle which he pointed to the throat of the complainant threatening her with said bolo
should she resist. Then, he forced her to lie down on a bamboo bed, removed her pants and after
unfastening the zipper of his own pants, went on top of complainant and succeeded having carnal
knowledge of her inspite of her resistance and struggle. After the sexual intercourse, the accused
cautioned the complainant not to report the matter to her mother or anybody in the house, otherwise he
would kill her.

Because of fear, the complainant did not immediately report the matter and did not leave the house of
the accused that same evening. In fact, she slept in the house of the accused that evening and the
following morning she scrubbed the floor and did her daily routine work in the house. She only left the
house in the evening of March 17, 1976.

Somehow, in the evening of March 17, 1976, the family of the accused learned what happened the night
before in the store between Policarpio and Estelita and a quarrel ensued among them prompting Estelita
Ronaya to go back to her house. When Estelita's mother confronted her and asked her why she went
home that evening, the complainant could not answer but cried and cried. It was only the following
morning on March 18, 1976 that the complainant told her mother that she was raped by the accused.
Upon knowing what happened to her daughter, the mother Alejandra Ronaya, immediately accompanied
her to the house of Patrolman Bernardo Mairina of the Villasis Police Force who lives in Barrio San
 Nicolas, Villasis, Pangasinan. Patrolman Mairina is a cousin of the father of the complainant. He advised
them to proceed to the municipal building while he went to fetch the accused. The accused was later
brought to the police headquarter with the bolo, Exhibit "E", which the accused allegedly used in
threatening the complainant.  1

At arraignment, appellant entered a plea of not guilty. The case then proceeded to trial and in due course of time, the trial court, as already noted, convicted the appellant.

The instant appeal is anchored on the following:

Assignment of Errors

1. The lower court erred in basing its decision of conviction of appellant solely on the testimony of the complainant and her mother.

2. The lower court erred in considering the hearsay evidence for the prosecution, "Exhibits B and C".

3. The lower court erred in not believing the testimony of the expert witnesses, as to the mental condition of the accused-appellant at the time of the alleged commission of the crime
of rape.

4. The lower court erred in convicting appellant who at the time of the alleged rape was suffering from insanity. 2

Appellant first assails the credibility of complainant as well as of her mother whose testimonies he contends are contradictory. It is claimed by appellant that the testimony of complainant on direct
examination that she immediately went home after the rape incident, is at variance with her testimony on cross examination to the effect that she had stayed in the house of appellant until the
following day. Complainant, in saying that she left the house of appellant by herself, is also alleged to have contradicted her mother who stated that she (the mother) went to the store in the
evening of 17 March 1979 and brought Estelita home.

The apparently inconsistent statements made by complainant were clarified by her on cross examination. In any case, the inconsistencies related to minor and inconsequential details which do not touch upon the manner in which the crime had been committed and therefore did not in any way
impair the credibility of the complainant. 3

The commission of the came was not seriously disputed by appellant. The testimony of complainant in this respect is clear and convincing:

Fiscal Guillermo:

Q Now, we go back to that time when according to you the accused pulled you from the door and brought you inside the store after you helped him closed the store. Now, after the
accused pulled you from the door and brought you inside the store what happened then?

A "You come and we will have sexual intercourse," he said.

Q And what did you say?

A "I do not like," I said.

Q And what did you do, if any, when you said you do not like to have sexual intercourse with him?

A I struggled and cried.

Q What did the accused do after that?

A He got a knife and pointed it at my throat so I was frightened and he could do what he wanted to do. He was able to do what he wanted to do.

Q This "kutsilyo" you were referring to or knife, how big is that knife? Will you please demonstrate, if any?

A This length, sir. (Which parties agreed to be about one and one-half [1-1/2] feet long.)

x x x           x x x          x x x

Fiscal Guillermo:

Q Now, you said that the accused was able to have sexual intercourse with you after he placed the bolo or that knife [at] your throat. Now, will you please tell the court what did the
accused do immediately after placing that bolo your throat and before having sexual intercourse you?

A He had sexual intercourse with me.

Q What was your wearing apparel that evening?

A I was wearing pants, sir.

Q Aside from the pants, do you have any underwear?

A Yes, sir, I have a panty.

Q Now, before the accused have sexual intercourse with you what, if any, did he do with respect to your pants and your panty?

A He removed them, sir.

Q Now, while he was removing your pants and your panty what, if any, did you do?

A I continued to struggle so that he could not remove my pants but he was stronger that's why he succeeded.

Q Now, after he had removed your panty and your pants or pantsuit what else happened?

A He went on top of me, sir.

Q At the time what was the accused wearing by way of apparel?

A He was wearing pants.

Q When you said he went on top of you after he has removed your pantsuit and your panty, was he still wearing his pants?

A He unbuttoned his pants and unfastened the zipper of his pants.

Q And after he unbuttoned and unfastened his pants what did you see which he opened?

A I saw his penis.

Q Now, you said that after the accused has unzipped his pants and brought out his penis which you saw, he went on top of you. When he was already on top of you what did you do,
if any?

A I struggled.

Q Now, you said that you struggled. What happened then when you struggled against the accused when he was on top of you?

A Since he was stronger, he succeeded doing what he wanted to get.

x x x           x x x          x x x
 COURT:

Alright, what do you mean by he was able to succeed in what he wanted to get?

Fiscal Guillermo:

Considering the condition of the witness, your honor, with tears, may we just be allowed to ask a leading question which is a follow-up question?

Witness:

A He inserted his private part inside my vagina.

Fiscal Guillermo:

Q Now, when he inserted his private part inside your vagina what did you feel, if any?

A I felt something that came out from his inside.

Q Now, how long, if you remember, did the accused have his penis inside your vagina:?

A Around five minutes maybe, sir.

Q After that what happened then?

A He removed it.

Q After the accused has removed his penis from your vagina what else happened?

A No more, sir, he sat down.

Q What, if any, did he tell you?

A There was, sir. He told me not to report the matter to my

mother and to anybody in their house.

Q What else did he tell you?

A He told me that if I told anyone what happened, he will kill me.

Q After that where did you go?

A I went home already, sir. 4

The principal submission of appellant is that he was suffering from a metal aberration characterized as schizophrenia when he inflicted his violent intentions upon Estelita. At the urging of his
counsel, the trial court suspended the trial and ordered appellant confined at the National Mental Hospital in Mandaluyong for observation and treatment. In the meantime, the case was archived.
Appellant was admitted into the hospital on 29 December 1976 and stayed there until 26 June 1978.

During his confinement, the hospital prepared four (4) clinical reports on the mental and physical condition of the appellant, all signed by Dr. Simplicio N. Masikip and Dr. Arturo E. Nerit, physician-
in-charge and chief, Forensic Psychiatry Service, respectively.
In the first report dated 27 January 1977, the following observations concerning appellant's mental condition were set forth:

On admission he was sluggish in movements, indifferent to interview, would just look up whenever questioned but refused to answer.

On subsequent examinations and observations he was carelessly attired, with dishevelled hair, would stare vacuously through the window, or look at people around him. He was
indifferent and when questioned, he would just smile inappropriately. He refused to verbalize, even when persuaded, and was emotionally dull and mentally inaccessible. He is
generally seclusive, at times would pace the floor, seemingly in deep thought. Later on when questioned his frequent answers are "Aywan ko, hindi ko alam." His affect is dull, he
claimed to hear strange voices "parang ibon, tinig ng ibon," but cannot elaborate. He is disoriented to 3 spheres and has no idea why he was brought here.

The report then concluded:

In view of the foregoing examinations and observations, Policarpio Rafanan, Jr. y Gambawa is found suffering from a mental disorder called schizophrenia, manifested by carelessness in grooming, sluggishness in movements, staring vacuously, indifferen[ce], smiling
inappropriately, refusal to verbalize, emotional dullness, mental inaccessibility, seclusiveness, preoccupation, disorientation, and perceptual aberrations of hearing strange sounds. He is psychotic or insane, hence cannot stand court trial. He needs further hospitalization
and treatment. 5

The second report, dated 21 June 1977, contained the following description of appellant's mental condition:

At present he is still seclusive, undertalkative and retarded in his reponses. There is dullness of his affect and he appeared preoccupied. He is observed to mumble alone by himself
and would show periods of being irritable saying — "oki naman" with nobody in particular. He claim he does not know whether or not he was placed in jail and does not know if he has
a case in court. Said he does not remember having committed any wrong act

and the following conclusions:

In view of the foregoing examinations and observations Policarpio Rafanan, Jr. y Gambawa is at present time still psychotic or insane, manifested by periods of irritability — cursing
nobody in particular, seclusive, underactive, undertalkative, retarded in his response, dullness of his affect, mumbles alone by himself, preoccupied and lack of insight.

He is not yet in a condition to stand court trial. He needs further hospitalization and treatment. 6

In the third report, dated 5 October 1977, appellant was described as having become "better behaved, responsive" and "neat in person," and "adequate in his emotional tone, in touch with his surroundings and . . . free from hallucinatory experiences." During the preceding period, appellant
had been allowed to leave the hospital temporarily; he stayed with a relative in Manila while coming periodically to the hospital for check-ups. During this period, he was said to have been helpful in the doing of household chores, conversed and as freely with other members of the household
and slept well, although, occasionally, appellant smiled while alone. Appellant complained that at times he heard voices of small children, talking in a language he could not understand. The report concluded by saying that while appellant had improved in his mental condition, he was not yet in
a position to stand trial since he needed further treatment, medication and check-ups. 7

In the last report dated 26 June 1978, appellant was described as behaved, helpful in household chores and no longer talking while alone. He was said to be "fairly groomed" and "oriented" and as denying having hallucinations. The report concluded that he was in a "much improved condition"
and "in a mental condition to stand court trial." 8

 The
Trial of the case thus resumed. The defense first presented Dr. Arturo Nerit who suggested that appellant was sick one or two years before his admission into the hospital, in effect implying that appellant was already suffering from schizophrenia when he raped complainant. 9

defense next presented Raquel Jovellano, a psychiatrist engaged in private practice, who testified that she had
examined and treated the appellant.

Appellant's plea of insanity rests on Article 12 of the Revised Penal Code which provides:

Art. 12. Circumstances which exempt from criminal liability. —

The following are exempt from criminal liability:

1. An imbecile or an insane person, unless the latter has acted during a lucid interval.

Where the imbecile or an insane person has committed an act which the law defines as a felony (delito),
the court shall order his confinement in one of the hospitals or asylums established for persons thus
afflicted, which he shall not be permitted to leave without first obtaining the permission of the same court.
 x x x           x x x          x x x

Although the Court has ruled many times in the past on the insanity defense, it was only in People vs.
Formigones   that the Court elaborated on the required standards of legal insanity, quoting extensively from the
10

Commentaries of Judge Guillermo Guevara on the Revised Penal Code, thus:

The Supreme Court of Spain held that in order that this exempting circumstance may be taken into
account, it is necessary that there be a complete deprivation of intelligence in committing the act, that
is, that the accused be deprived of reason; that there be no responsibility for his own acts; that he acts
without the least discernment; (Decision of the Supreme Court of Spain of November 21, 1891; 47 Jur.
Crim. 413.) that there be a complete absence of the power to discern, (Decision of the Supreme Court of
Spain of April 29, 1916; 96 Jur. Crim. 239) or that there be a total deprivation of freedom of the
will. (Decision of the Supreme Court of Spain of April 9, 1872; 6 Jur. Crim. 239) For this reason, it was
held that the imbecility or insanity at the time of the commission of the act should absolutely deprive a
person of intelligence or freedom of will, because mere abnormality of his mental faculties does not
exclude imputability. (Decision of the Supreme Court of Spain of April 20, 1911; 86 Jur. Crim. 94, 97.)

The Supreme Court of Spain likewise held that deaf-muteness cannot be [equated with] imbecility or
insanity.

The allegation of insanity or imbecility must be clearly proved. Without positive evidence that the
defendant had previously lost his reason or was demented, a few moments prior to or during the
perpetration of the crime, it will be presumed that he was in a normal condition. Acts penalized by law
are always reputed to be voluntary, and it is improper to conclude that a person acted unconsciously, in
order to relieve him from liability, on the basis of his mental condition, unless his insanity and absence of
will are proved. (Emphasis supplied.)

The standards set out in Formigones were commonly adopted in subsequent cases.   A linguistic or grammatical 11

analysis of those standards suggests that Formigones established two (2) distinguishable tests: (a) the test of
cognition — "complete deprivation of intelligence in committing the [criminal] act," and (b) the test of volition —
"or that there be a total deprivation freedom of the will." But our caselaw shows common reliance on the test of
cognition, rather than on a test relating to "freedom of the will;" examination of our caselaw has failed to turn up
any case where this Court has exempted an accused on the sole ground that he was totally deprived of
"freedom of the will," i.e., without an accompanying "complete deprivation of intelligence." This is perhaps to be
expected since a person's volition naturally reaches out only towards that which is presented as desirable by his
intelligence, whether that intelligence be diseased or healthy. In any case, where the accused failed to show
complete impairment or loss of intelligence, the Court has recognized at most a mitigating, not an exempting,
circumstance in accord with Article 13(9) of the Revised Penal Code: "Such illness of the offender as would
diminish the exercise of the will-power of the offender without however depriving him of the consciousness of his
acts."  12

Schizophrenia pleaded by appellant has been described as a chronic mental disorder characterized by inability to distinguish between fantasy and reality, and often accompanied by hallucinations and delusions. Formerly called dementia praecox, it is said to be the most common form of

psychosis an usually develops between the ages 15 and 30. 13

 A standard textbook in psychiatry describes some of the symptoms of schizophrenia in
the following manner:

Eugen Bleuler later described three general primary symptoms of schizophrenia: a disturbance of
association, a disturbance of affect, and a disturbance of activity. Bleuler also stressed the dereistic
attitude of the schizophrenic — that is, his detachment from reality and consequent autism and the
ambivalence that expresses itself in his uncertain affectivity and initiative. Thus, Bleuler's system of
schizophrenia is often referred to as the four A's: association, affect, autism, and ambivalence.

x x x           x x x          x x x

Kurt Schneider described a number of first-rank symptoms of schizophrenia that he considered in no

way specific for the disease but of great pragmatic value in making a diagnosis. Schneider's first-rank
symptoms include the hearing of one's thoughts spoken aloud, auditory hallucinations that comment on
the patient's behavior, somatic hallucinations, the experience of having one's thoughts controlled, the
spreading of one's thoughts to others, delusions, and the experience of having one's actions controlled
or influenced from the outside.
 Schizophrenia, Schneider pointed out, also can be diagnosed exclusively on the basis of second-rank
symptoms, along with an otherwise typical clinical appearances. Second-rank symptoms include other
forms of hallucination, perplexity, depressive and euphoric disorders of affect, and emotional blunting.

Perceptual Disorders

Various perceptual disorders occur in schizophrenia . . . .

Hallucinations. Sensory experiences or perceptions without corresponding external stimuli are common

symptoms of schizophrenia. Most common are auditory hallucinations, or the hearing of voices. Most
characteristically, two or more voices talk about the patient, discussing him in the third person.
Frequently, the voices address the patient, comment on what he is doing and what is going on around
him, or are threatening or obscene and very disturbing to the patient. Many schizophrenic patients
experience the hearing of their own thoughts. When they are reading silently, for example, they may be
quite disturbed by hearing every word they are reading clearly spoken to them.

Visual hallucinations occur less frequently than auditory hallucinations in schizophrenic patients, but they
are not rare. Patients suffering from organic of affective psychoses experience visual hallucinations
primarily at night or during limited periods of the day, but schizophrenic patients hallucinate as much
during the day as they do during the night, sometimes almost continuously. They get relief only in sleep.
When visual occur in schizophrenia, they are usually seen nearby, clearly defined, in color, life size, in
three dimensions, and moving. Visual hallucinations almost never in one of the other sensory modalities.

x x x           x x x          x x x

Cognitive Disorders

Delusions. By definition, delusions are false ideas that cannot be corrected by reasoning, and that are
idiosyncratic for the patient — that is, not part of his cultural environment. They are among the common
symptoms of schizophrenia.

Most frequent are delusions of persecution, which are the key symptom in the paranoid type of
schizophrenia. The conviction of being controlled by some unseen mysterious power that exercises its
influence from a distance is almost pathognomonic for schizophrenia. It occurs in most, if not all,
schizophrenics at one time or another, and for many it is a daily experience. The modern schizophrenic
whose delusions have kept up with the scientific times may be preoccupied with atomic power, X-rays, or
spaceships that take control over his mind and body. Also typical for
many schizophrenics are delusional fantasies about the destruction of the world.  14

 it has mostly been rejected by the Court. In each of these cases, the evidence
In previous cases where schizophrenia was interposed as an exempting circumtance, 15

presented tended to show that if there was impairment of the mental faculties, such impairment was not so
complete as to deprive the accused of intelligence or the consciousness of his acts.

The facts of the instant case exhibit much the same situation. Dr. Jovellano declared as follows:

(Fiscal Guillermo:)

Q Now, this condition of the accused schizophrenic as you found him, would you say doctor that he was
completely devoid of any consciousness of whatever he did in connection with the incident in this case?

A He is not completely devoid of consciousness.

Q Would you say doctor, therefore, that he was conscious of threatening the victim at the time of the
commission of the alleged rape?

A Yes, he was conscious.

Q And he was conscious of forcing the victim to lie down?

A Yes.
 Q And he was also conscious of removing the panty of the victim at the time?

A Yes.

Q And he was also conscious and knows that the victim has a vagina upon which he will place his
penis?

A Yeah.

Q And he was conscious enough to be competent and have an erection?

A Yes.

Q Would you say that those acts of a person no matter whether he is schizophrenic which you said,
it deals (sic) some kind of intelligence and consciousness of some acts that is committed?

A Yes, it involves the consciousness because the consciousness there in relation to the act is what we
call primitive acts of any individual. The difference only in the act of an insane and a normal individual, a
normal individual will use the power of reasoning and consciousness within the standard of society while
an insane causes (sic) already devoid of the fact that he could no longer withstand himself in the
ordinary environment, yet his acts are within the bound of insanity or psychosis.

Q Now, Doctor, of course this person suffering that ailment which you said the accused here is
suffering is capable of planning the commission of a rape?

A Yes, they are also capable.

Q He is capable of laying in wait in order to assault?

A Yes.

Q And would you say that condition that ability of a person to plan a rape and to perform all the acts
preparatory to the actual intercourse could be done by an insane person?

A Yes, it could be done.

Q Now, you are talking of insanity in its broadest sense, is it not?

A Yes, sir.

Q Now, is this insane person also capable of knowing what is right and what is wrong?

A Well, there is no weakness on that part of the individual. They may know what is wrong but yet there is
no inhibition on the individual.

Q Yes, but actually, they are mentally equipped with knowledge that an act they are going to commit is
wrong?

A Yeah, they are equipped but the difference is, there is what we call they lost the inhibition. The
reasoning is weak and yet they understand but the volition is [not] there, the drive is [not]
there.  16 (Emphasis supplied)

The above testimony, in substance, negates complete destruction of intelligence at the time of commission of the act charged which, in the current state of our caselaw, is critical if the defense of
insanity is to be sustained. The fact that appellant Rafanan threatened complainant Estelita with death should she reveal she had been sexually assaulted by him, indicates, to the mind of the
Court, that Rafanan was aware of the reprehensible moral quality of that assault. The defense sought to suggest, through Dr. Jovellano's last two (2) answers above, that person suffering from
schizophrenia sustains not only impairment of the mental faculties but also deprivation of there power self-control. We do not believe that Dr. Jovellano's testimony, by itself, sufficiently
demonstrated the truth of that proposition. In any case, as already pointed out, it is complete loss of intelligence which must be shown if the exempting circumstance of insanity is to be found.
  Here, appellant failed to present clear and convincing
The law presumes every man to be sane. A person accused of a crime has the burden of proving his affirmative allegation of insanity. 17

evidence regarding his state of mind immediately before and during the sexual assault on Estelita. It has been
held that inquiry into the mental state of the accused should relate to the period immediately before or at the very
moment the act is committed.   Appellant rested his case on the testimonies of two (2) physicians (Dr. Jovellano
18

and Dr. Nerit) which, however, did not purport to characterize his mental condition during that critical period of
time. They did not specifically relate to circumtances occurring on or immediately before the day of the rape.
Their testimonies consisted of broad statements based on general behavioral patterns of people afflicted with
schizophrenia. Curiously, while it was Dr. Masikip who had actually observed and examined appellant during his
confinement at the National Mental Hospital, the defense chose to present Dr. Nerit.

Accordingly, we must reject the insanity defense of appellant Rafanan.

In People vs. Puno (supra), the Court ruled that schizophrenic reaction, although not exempting because it does
not completely deprive the offender of the consciousness of his acts, may be considered as a mitigating
circumstance under Article 13(9) of the Revised Penal Code, i.e., as an illness which diminishes the exercise of
the offender's will-power without, however, depriving him of the consciousness of his acts. Appellant should have
been credited with this mitigating circumstance, although it would not have affected the penalty imposable upon
him under Article 63 of the Revised Penal Code: "in all cases in which the law prescribes a single indivisible
penalty (reclusion perpetua in this case), it shall be applied by the courts regardless of any mitigating or
aggravating circumstances that may have attended the commission of the deed."

WHEREFORE, the Decision appealed from is hereby AFFIRMED, except that the amount of moral damages is
increased to P30,000.00. Costs against appellant.

Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur.

 FIRST DIVISION

G.R. No. 144933            July 3, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JERRY ANTONIO Y DIOLATA, accused-appellant.

YNARES-SANTIAGO, J.:

This is an appeal from the decision1 of the Regional Trial Court of Mandaue City, Branch 28, in Criminal Case
No. DU-6619 convicting accused-appellant of the crime of murder; sentencing him to suffer the penalty
of reclusion perpetua; and ordering him to pay the heirs of the deceased the amounts of P50,000.00 as civil
indemnity and P20,000.00 as moral damages, plus the costs of suit.

The information against accused-appellant reads:

That on or about the 11th day of October, 1998, in the City of Mandaue, Philippines, and within the
jurisdiction of this Honorable Court, the aforenamed accused, with deliberate intent to kill and with
evident premeditation and treachery, did then and there wilfully, unlawfully and feloniously attack, assault
and stab one Jomar Cardosa Ephan with a sharp bladed weapon, thereby inflicting upon the latter mortal
wound at his vital portion namely:

"Stab wound (L) Lumbar Level of L1 & L2 with grade IV Spleenic injury & grade II Renal (L)
injury."

Which caused his death soon thereafter.

CONTRARY TO LAW.2

Upon arraignment on November 16, 1998, accused-appellant pleaded not guilty. 3 Trial thereafter ensued.

The facts as presented by the prosecution show that at 1:00 in the early morning of October 11, 1998, the victim,
Jomar Ephan, was engaged in a drinking session with Reynaldo Ephan and Roselito Dacillo in front of a store in
Barangay Pakna-an, Mandaue City. Accused-appellant arrived and bought cigarettes. Then, he ordered Jomar,
Reynaldo and Roselito to count the cigarettes he bought, but the three told accused-appellant to let the
storekeeper do the counting. Rebuked, accused-appellant left the store. He returned minutes later and suddenly
stabbed the victim at the back, after which he immediately fled. The victim was rushed by his companions to the
hospital but died the following day.4

Meanwhile, Eduardo Juban, a Barangay Tanod, was awakened by one of his neighbors and was told that there
was trouble at a nearby store. When Eduardo went out, he saw accused-appellant being chased by a crowd who
were shouting, "thief." The group mauled accused-appellant when they caught up with him. Eduardo, however,
pacified the mob and brought accused-appellant to the barangay hall. Eduardo later learned from the group that
accused-appellant had stabbed somebody.5

The examination conducted by Dr. Reynaldo Baclig revealed that the victim sustained a stab wound near the
spinal column, three inches above the waist line, and died from spleen and renal injury and massive blood loss. 6

On the other hand, the defense tried to prove that: at around 1:00 a.m. of October 11, 1998, accused-appellant
was in the house of his friend, Fernando Gelig, at Pakna-an, Mandaue City. While they were drinking liquor,
accused-appellant went out and bought cigarettes from a store across the street. As a token of friendship,
accused-appellant offered the cigarettes to the people in front of the store, but nobody accepted his offer.
Accused-appellant went back to the house of his friend. After a short while, he went back to the same store to
buy "pulutan." For no reason at all, somebody struck him with a stool hitting him on the left eyebrow. Accused-
appellant fell on the ground but the group of the deceased, who were then in front of the store, ganged up on
him. The deceased attempted to hit accused-appellant but because the former was very drunk, he missed and
fell on his belly. It was at this point when accused-appellant got hold of a knife he saw under the table and
stabbed the deceased at the back. Thereafter, accused-appellant immediately fled but the crowd chased and
mauled him. Fortunately, a Barangay Tanod came and stopped the mob. 7

On July 12, 2000, the trial court promulgated the assailed judgment of conviction. The dispositive portion thereof
reads:

WHEREFORE, in view of all the foregoing premises, the Court hereby finds the accused Jerry Antonio y
Diolata GUILTY beyond reasonable doubt of the crime of MURDER as defined and penalized under
Article 248 of the Revised Penal Code, as amended, and hereby imposes upon him the penalty
of Reclusion Perpetua with all the accessory penalties provided for by law. Let him be given full credit for
the preventive imprisonment he has served. Likewise, the accused is ordered to indemnify the heirs of
Jomar Ephan the sum of P50,000.00 as civil indemnity ex delicto and the sum of P20,000.00 as moral
damages. The Court hereby orders too that the accused should pay the cost of this suit.

IT IS SO ORDERED.8

Hence, this appeal based on the following grounds:

I.

FOR FAILURE OF THE PROSECUTION TO ADDUCE EVIDENCE THAT THE ACCUSED WAS THE
UNLAWFUL AGGRESSOR, HE SHOULD BE CONVICTED FOR A LESSER OFFENSE AS
CHARGED (sic).

II.

THE TRIAL COURT FAILED TO APPRECIATE THE PRESENCE OF A MITIGATING CIRCUMSTANCE

OF ILLNESS OF THE OFFENDER AS WOULD DIMINISH THE EXERCISE OF THE WILL-POWER OF
THE OFFENDER WITHOUT HOWEVER DEPRIVING HIM OF CONSCIOUSNESS OF HIS ACTS. 9

Faced with the conflicting versions of the prosecution and the defense, the trial court’s choice of which version to
believe is generally viewed as correct and entitled to the highest respect because it is more competent to
conclude so, having had the opportunity to observe the witnesses' demeanor and deportment on the witness
stand, and the manner in which they gave their testimonies, and therefore could better discern if such witnesses
were telling the truth. The trial court is thus in the best position to weigh conflicting testimonies. Therefore,
unless the trial judge plainly overlooked certain facts of substance and value which, if considered, might affect
the result of the case, his assessment on credibility must be respected. 10

A thorough review of the records of the case at bar shows that the trial court did not miss any such material
circumstance nor did it commit any palpable error in upholding the facts as established by the prosecution. The
positive and direct narration of the prosecution witnesses that accused-appellant suddenly stabbed the victim at
the back, and that no altercation preceded the attack, deserves full faith and credence. These witnesses were
not shown to have been impelled by ill-motive to falsely testify against accused-appellant. 11 Moreover, being
friends and relatives of the deceased, they would naturally be interested in having the real culprit punished. 12

The trial court did not likewise err in rejecting accused-appellant’s self-defense theory. Where an accused
invokes self-defense, he thereby admits authorship of the crime. The burden of proof is thus shifted on him to
prove all the elements of self-defense, to wit: (1) unlawful aggression on the part of the victim; (2) reasonable
necessity of the means employed to repel the aggression; and (3) lack of sufficient provocation on the part of the
accused.13

In the case at bar, even if we sustain the version of accused-appellant that the initial act of aggression came
from the group of the deceased, still we cannot uphold his plea of self-defense. As testified by accused-appellant
himself, the deceased who was at that time very drunk tried to hit him but missed and fell on the ground. At that
point, unlawful aggression ceased and it was no longer necessary for him to stab the deceased. It was accused-
appellant, therefore, who became the aggressor when he, despite the condition of the deceased, proceeded to
stab the latter at the back. His act can no longer be interpreted as an act of self-preservation but a perverse
desire to kill.14 Hence, he cannot successfully claim the benefit of self-defense. Furthermore, if it were true that
the companions of the deceased ganged up on him, his attack should have been directed against them and not
against the deceased who was already defenseless and lying on the ground. Pertinent portion of accused-
appellant’s testimony reads:

x x x           x x x           x x x

Q:         What happened when you bought "pulutan" in the same store where you bought the cigarettes?

A:         I was struck by a person on the head. (Witness indicating left eyebrow.)

Q:         Were you bloodied when you were hit?

A:         Yes. I fell down.

Q:         When you fell down, what happened next?

A:         I stood up.

Q:         Could you recognize the person who hit you with a chair on your left eyebrow?

A:         No.

Q:         When you stood up after you were hit, what happened next?

A:         I saw a kitchen knife under the table upon standing up and they were ganging up on me by
striking me. So, I happened to have stab (sic) him.

Q:         What was the position of the person that you stabbed?

A:         He was very drank (sic) and he fell down.

Q:         Could you show to the Honorable Court the position? Could you demonstrate the position of the
alleged victim that was hit by the knife?

A:         When he struck me, I was able to evade the blow and by his force and momentum, he fell
towards the ground on all force (sic) and so, I stabbed him this way (witness demonstrating by delivering
a blow downwards) and I happen to hit him maybe at the back.

Q:         After hitting him with the knife what happened?

A:         I ran.15

The qualifying circumstance of treachery was properly appreciated by the trial court. Accused-appellant’s attack
on the deceased from behind completely caught the latter by surprise. Accused-appellant therefore effectively
executed the assault without any risk to himself arising from the defense which the deceased might make. 16

The injury sustained by accused-appellant after he was allegedly struck by a stool on the head will not entitle
him to a mitigating circumstance. The alleged injury hardly qualifies as mitigating circumstance analogous to
illness or defect that would diminish the exercise of will-power. More importantly, accused-appellant failed to
prove that he was assaulted by the deceased and the latter’s companions.

The penalty for murder under Article 248 of the Revised Penal Code as amended by R.A. No. 7659, is reclusion
perpetua to death. Since no modifying circumstance was established by the prosecution, the trial court correctly
imposed the lesser penalty of reclusion perpetua on accused-appellant.
As to accused-appellant’s civil liability, the amount of P50,000.00, as indemnity ex delicto is affirmed. The moral
damages awarded by the trial court in the amount of P20,000.00 should, however, be increased to P50,000.00
in line with current jurisprudence. 17

WHEREFORE, in view of all the foregoing, the decision of the Regional Trial Court of Mandaue City, Branch 28,
in Criminal Case No. DU-6619, finding accused-appellant Jerry Antonio y Diolata guilty beyond reasonable
doubt of the crime of murder and sentencing him to suffer the penalty of reclusion perpetua and ordering him to
pay the heirs of the deceased Jomar C. Ephan the amount of P50,000.00 as civil indemnity, is AFFIRMED with
the MODIFICATION that the moral damages to be paid by accused-appellant is increased to P50,000.00.

SO ORDERED.

Davide, Jr., Vitug, Kapunan, and Austria-Martinez, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 113691 February 6, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ALBERTO MEDINA y CATUD, accused-appellant.

PANGANIBAN, J.:

The law presumes that an offender possesses full control of his mental faculties. Thus, the exempting
circumstance of insanity or imbecility under Art. 12, par. 1 of the Revised Penal Code, must be established by
clear and competent evidence showing that the accused completely lost his reason, or was demented
immediately prior to or at the very moment the crime was committed.

The Case

This is the legal precept relied upon by this Court in denying this appeal from the Decision  dated November 17,
1

1993 of the Regional Trial Court of Batangas City, Branch 7, in Criminal Case No. 5787 convicting
Alberto Medina y Catud of murder.

In an Information dated June 10, 1992, Second Assistant Provincial Prosecutor Benito E. Lat charged
appellant with murder allegedly committed as follows: 2

That on or about the 20th day of May, 1992, at about 11:00 o'clock in the evening, in Barangay
Kaingin, Municipality of San Pascual, Province of Batangas, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, armed with a balisong knife, with
intent to kill, with treachery and evident premeditation and without any justifiable cause, did then
and there willfully, unlawfully and feloniously attack, assault and stab with the said balisong
knife one Andres M. Dalisay, suddenly and without warning, thereby inflicting upon the latter stab
wounds on the different parts of his body, which directly caused his death.

Contrary to law.

On arraignment, appellant, assisted by Counsel Jose Contreras, pleaded "not guilty" to the
charge.  After trial in due course, the court a quo rendered the assailed Decision, the decretal portion of
3

which reads: 4

WHEREFORE, the court finds the accused, ALBERTO MEDINA y CATUD, guilty beyond
reasonable doubt of the crime of murder as defined and penalized by Article 248 of the Revised
Penal [Code] and there being no mitigating circumstance to offset the qualifying circumstance of
treachery generic aggravating circumstance of evident premeditation, and hereby sentences him
to suffer the penalty of reclusion perpetua and to pay the heirs of the deceased Andres M.
Dalisay the sum of P50,000.00. Costs against the deceased.

Hence, this appeal. 5

The Facts

Version of the Prosecution

The prosecution's version of the facts, as recounted by the solicitor general in the appellee's brief, is as
follows: 
6

At around 11 pm on May 20, 1991, a party was held in the house of Sebastian and Delia Aguila in
Barangay Caingin, Balite, Batangas, to celebrate the awarding of a championship trophy to the
basketball team of Larry Andal. Among those present during the celebration were Andres
Dalisay, Edgardo Silang, Larry Andal, Norberto Biscocho, Bayani Dorado, Salustiano Aguila and
appellant Alberto Medina (pp. 3-5, tsn, September 9, 1992, testimony of Larry Andal). During the
celebration, appellant and Dalisay danced the "cha-cha" in the shade (sulambi) near the terrace
of the house of Delia and Sebastian Aguila. While the two were dancing, the group watched and
clapped their hands. When the dance was finished, appellant left the house of the Aguilas. After a
while, Dalisay invited Andal to go home (pp. 8-11, tsn, September 11, 1992). The two left the
house of the Aguilas, with Dalisay walking ahead of Andal. While they were walking, Andal saw
appellant, who was waiting along the way, stab Dalisay with a "balisong" in the abdominal
region. Dalisay held the hand of appellant. While they were grappling, Dalisay was able to
extricate himself and started to run away. Appellant chased him. When appellant caught up with
Dalisay, appellant stabbed Dalisay once more at the back. Dalisay fell to the ground. He tried to
get up and run, but he again fell down. Appellant stabbed him [once more] on the chest. Then
[a]ppellant fled from the scene.

Andal, who was about one meter away, was so stunned and shocked by what he saw that he did
not do anything to help Dalisay. Andal and his relatives brought Dalisay to the Batangas Hospital,
but Dalisay was pronounced dead on arrival (pp. 2-6, tsn, Sept. 11, 1992).

At that time of the incident, prosecution witness Edgardo Silang was urinating twenty paces
away. He heard Delia Aguila, the sister of appellant, shouting, "Husay ka Alberto pihadong
makukulong ka, sinaksak mo si Andres." When he turned to where the shout came from, he saw
Dalisay running towards him, pursued by appellant. He saw blood in front of the body of Dalisay.
He held the arm of Dalisay and tried to hug him but Dalisay fell to the ground. At that point, he
saw appellant flee (pp. 5-18, tsn, Sept. 9, 1992, testimony of Edgardo Silang).

Dr. Benjamin M. Aguado, the Municipal Health Officer of San Pascual Rural Health Unit,
conducted post-mortem examination of the body of the deceased. He issued a Post-Examination
Report (Exhibit "C") containing the Mortem following findings:

1. Stab Wound between the 3rd & 4th interspace at the lateral side of the body of the sternum
measuring 1/2 inch in length x 2 cm in wid[th] x 3 cm in depth.

2. Stab Wound at the left Hypochondriac region measuring 1/2 inch in length x 2 cm in wid[th]
exposing the omentum.

3. Stab Wound thigh left just below the Inguinal Hernia measuring 1 inch in length 3 cm in wid[th]
x 4cm in depth.

4. Stab Wound of the thigh left mid portion anterior surface measuring 1 inch in length x 3 cm in
wid[th] x 4 cm depth.

5. Stab Wound at the scapular region mid portion measuring 1/2 inch in length x 2 cm in wid[th] x
3 cm in depth.

6. Stab Wound at the back left between the 7th and 8th interspace measuring 1/2 inch in length x
2 cm in wid[th] x 3 cm in depth.

7. Stab Wound at lower portion of the scapular region left measuring 1/2 inch in length x 2 cm in
wid[th] x 3 cm in depth.

8. Stab Wound at the back right at the level of the kidney measuring 1/2 inch in length x 2 cm in
wid[th] x 4 cm in depth.

(Exhibit "C").
 Version of the Defense

In his brief, appellant sets up insanity as his defense. His version of the facts is as follows: 7

1. Accused-appellant Alberto Medina testified that on the evening of May 20, 1992, he went to the
house of his sister, Delia Aguila, purposely to watch t.v. (TSN, September 9, 1993, p. 5). Upon his
arrival, he saw the group of the deceased Andres Dalisay, Larry Andal and Edgardo Silang who
were then engaged in a drinking spree at the balcony of the Aguila residence (Ibid, p. 6).

2. Accused-appellant refused the group's invitation to join them in their drinking; however, he
accepted their invitation to dance with Andres Dalisay (Ibid.). In fact, accused-appellant danced
with him for about six (6) or seven (7) times (Ibid, p. 7).

3. As the dance and the party ended, the guests started to leave. Accused-appellant left his
sister's house to head for his home at Barangay Balete, which was more or less 200 meters away.
Among the persons left behind was Andres Dalisay.

4. While walking along the path, accused-appellant heard Andres Dalisay say, "Bert, sandali
lang", (TSN, September 9, 1993, p. 10) prompting the former to stop.

5. Thereupon, Andres Dalisay, who appeared to be drunk, approached accused-appellant and

uttered: "Bakit mo ako hiniya?" and hit him (accused-appellant) on the chest (Ibid). Enraged,
accused-appellant prepared to fight back when Andres Dalisay threatened to kill him (Ibid., p. 11).
At this point, accused-appellant further testified, it looked as if Andres Dalisay was taking
something out [of] his pocket.

6. Upon seeing this, accused-appellant beat him to the draw, took out his "balisong" and stabbed
Andres Dalisay, who then looked like a devil with "horns" (Ibid., p. 11 and 19). It was only when
Andres Dalisay uttered "May tama ako" did accused-appellant stop . . . stabbing his victim (Ibid.,
p. 16).

7. Upon realizing that he has stabbed a person, accused-appellant surrendered himself and the
weapon on the same evening to the authorities (TSN, September 9, 1993, p. 20).

8. On several occasions before, specifically during the latter part of 1981, accused-appellant had
exhibited unusual behaviors. His sister Lorna Medina testified that on June 22, 1982, she brought
her brother to the National Mental Hospital after the latter had shown unusual conduct, such as
looking blankly at a distance, hitting his wife or banging her head on the wall for no reason and
having sleepless nights (TSN, August 11, 1993, pp. 13-15).

9. From June to October of 1982, accused-appellant was confined at the National Mental
Hospital. Ms. Lourdes Palapal, the Records Officer of the National Center for Mental Health
(formerly, the National Mental Hospital) testified on the documents issued by their office relative
to the confinement of accused-appellant for "schizophreniform disorder" during that period
(Exhibits 3 to 11).

10. After his release from the hospital, accused-appellant lived with his mother and his two
children at Brgy. Balete, San Pascual, Batangas. His condition did not seem to improve, though.
Lorna Medina further testified that in January of 1992, accused-appellant again exhibited the
same unusual behavior which she had observed from him in 1982 (TSN, August 11, 1993, p. 17).

11. This prompted Lorna to refer her brother's case to Dr. Teresita Adigue, a psychologist-friend
who conducted a psychological examination on accused-appellant (TSN, August 11, 1993, p. 17).

12. Dr. Teresita Adigue, a Doctor of Psychology and a holder of a Master's Degree in Clinical and
Industrial Psychology and another Master's Degree in Guidance and Counselling, and an
accredited psychologist of the Philippine National Police testified that on January 20, 1992, she
administered a psychological evaluation on accused-appellant (TSN, May 24, 1993, p. 5).

13. Dr. Adigue testified that based on the evaluation of accused-appellant, the latter has been
shown to be suffering from depression and was exhibiting homicidal tendencies, and that he did
 not know the difference between right and wrong (TSN, May 24, 1993, p. 10 and TSN, July 20,
1993, p. 16). On cross-examination, the witness affirmed that a person suffering from depression
may be insane (TSN, July 20, 1993, p. 10).

14. Dr. Adigue stated that the psychological evaluation made on accused-appellant was based on
the behavioral history of the latter furnished to her by Lorna Medina and Leticia Regalado, (TSN,
July 20, 1993, p. 11) a case study based on the family background of accused-appellant (Ibid., p.
12), and on a series of psychological tests ("draw a person" test, the "card" test wherein the
emotions of the subject are represented by the cards, and the thematic perception test) (TSN,
May 24, 1993, p. 7).

Ruling of the Trial Court

The trial court rejected the appellant's defense of insanity. It ruled that Dr. Adigue was not properly
qualified as an expert witness because: (1) she did not have the appellant's complete behavioral history;
(2) she failed to demonstrate satisfactorily how she arrived at her conclusions; (3) her method of testing
was incomplete and inconclusive; (4) her examination lasted for only a few hours without any follow-up
evaluation; (5) the university from where she allegedly obtained her doctoral degree is not known to
specialize in psychology or psychiatry; (6) she is not known as a psychiatrist; and (7) she reported that
'the mental activity [of the accused was] functioning on the normal level' at the time of the evaluation,
that he comprehended instructions fast, and that he was suffering only from mild depression.

The testimony of appellant's sister that she had observed unusual behavior on the part of appellant did
not constitute sufficient proof of his insanity, "because not every aberration of the mind or mental
deficiency constitute[s] insanity." That the accused was released from confinement at the National
Center for Mental Health on October 4, 1982 and was not readmitted for any mental disorder for about
ten years militated against his alleged lunacy. Additionally, the trial judge observed that, during the
hearings, appellant was attentive, well-behaved and responsive to the questions propounded to him in
English even without translation.

On the other hand, appellant's mental agility was shown when he admitted seeing the deceased take
something our of his pocket, for which reason he decided to beat him to the draw ("Inunahan ko na").
With his balisong, he repeatedly stabbed the deceased. The trial court appreciated treachery based on
Andal's narration of the stabbing incident.

Assignment of Errors

The defense assigns the following errors allegedly committed by the trial court in convicting appellant:

The trial court gravely erred in not acquitting accused-appellant or mitigating his criminal liability
on the ground of insanity.

Assuming, arguendo, that accused-appellant is criminally liable for the death of Andres Dalisay,
the trial court nevertheless erred in convicting him of the crime of murder by appreciating the
aggravating circumstances of treachery and evident premeditation despite doubt tending to
show the existence of such circumstances.

Assuming, arguendo, that accused-appellant is criminally liable, the trial court likewise erred in
not appreciating the mitigating circumstance of voluntary surrender in his favor.

In short, appellant puts in issue (1) his insanity and (2) the presence and the effect of the following
circumstances: (a) treachery, (b) evident premeditation, and (c) voluntary surrender. We shall deal with
each of these issues.

The Court's Ruling

The appeal is partly meritorious. We reject appellant's plea for acquittal but accept his claim of voluntary
surrender.

First Issue: Appellant's Insanity Not Proven

Appellant insists that the trial court gravely erred in refusing to consider Dr. Adigue as an expert
witness. He argues that Dr. Adigue, being an accredited psychologist of the Philippine National Police
since 1979 and a holder of a doctorate in psychology from the University of Calcutta, India, and a
master's degree in clinical and industrial psychology, deserves credence.

Appellant misses the point. More than her academic qualifications as a psychologist, what really matters
is the failure of Dr. Adigue's testimony to establish legal insanity on the part of the appellant. After
examining the appellant on January 20, 1992, or four months prior to the incident, and after conducting
the "Draw-a-Person" Test, the Thematic Apperception Test and the Hand Test, she reported the results
of her examination as follows:

VII. TEST RESULTS/EVALUATIONS

Psychological test results revealed that subject's mental activity is functioning on the normal
level at the time of evaluation. He can comprehend instructions fast and [was] never hesitant to
take the said examinations.

With regards to some dominant personality factors, test results revealed also the fact that
subject is suffering only from mild depression because of problems he had encountered in life
and in things around him. He had also developed negative reactions and outlook in life, therefore
he undersigned concluded that he has some emotional disturbances.

Verily, such results do not prove the alleged insanity of the appellant. Art. 12, par. 1 of the Revised Penal
Code, requires a complete deprivation of rationality in committing the act; i.e., that the accused be
deprived of reason, that there be no consciousness of responsibility for his acts, or that there be
complete absence of the power to discern.  More relevantly, said report does not support the claim that
8

appellant could not distinguish right from wrong.

Thus, the trial court properly rejected appellant's defense of insanity. The presumption of law, per Art.
800 of the Civil Code, always lies in favor of sanity, and, in the absence of proof to the contrary, every
person is presumed to be of sound mind. 9

The defense of insanity or imbecility must be clearly proved,  for there is a presumption that acts
10

penalized by law are voluntarily.  Hence, in the absence of positive evidence that the accused had
11

previously lost his reason or was demented moments prior to or during the perpetration of the crime,
the courts will always presume that he was in a normal state of mind. In Bascos,  the accused was
12

exempted from criminal liability because he was a violent maniac as confirmed by the acting district
health officer who examined him. In Bonoan,  the Court reversed the conviction of the accused, holding
13

that a person afflicted with dementia praecox and manic depressive psychosis has "no control whatever
of his acts. . . . There is in this disorder a pathologic lessening [of] normal inhibitions and the case [in]
which impulses may lead to actions impairs deliberations and the use of normal checks to motor
impulses (Peterson, Haines and Webster, Legal Medicine and Toxicology [2d, ed., 1926], vol. I, p. 617."
There, the accused was treated at the psychiatric department of San Lazaro Hospital and was released
long before the commission of the crime, but the reports of the alienists  who examined the accused
14

after the crime confirmed his mental disorders. The Court held that the evidence that the accused
appeared lucid when he stabbed the victim did not necessarily prove his sanity, because it was "clear
from what Dr. Sydney Smith, Regius Professor of Forensic Medicine, University of Edinburgh, said in his
work on Forensic Medicine, (3d. ed. [London], p. 382), that in the type of dementia praecox, 'the crime is
usually preceded by much complaining and planning. In these people, homicidal attacks are common,
because of delusions that they are being interfered with sexually or that their property is being taken.'" 15

However, care must be taken to distinguish between lack of reason (insanity) and failure to use reason
or good judgment due to extreme anger (passion). ". . . [I]t is now well settled that mere mental
depravity, or moral insanity, so called, which results, not from any disease of mind, but from a perverted
condition of the moral system, where the person is mentally sane, does not exempt one from
responsibility for crimes committed under its influence." 16
Thus, before the defense of insanity may be accepted as an exempting circumstance, Philippine case
law shows a common reliance on the test of cognition, which requires a complete deprivation of
intelligence — not only of the will — in committing the criminal act.  In the cited case of Rafanan, the
17

fact that appellant threatened the victim with death in case she reported her ravishment indicated that he
was aware of the reprehensible moral depravity of that assault and that he was not deprived of
intelligence. In Dungo, that the accused knew the nature of what he had done negated his claim that he
was insane when he fatally stabbed his victim.  In Aquino , appellant, who took 120 cc of cough syrup
18 19

and consumed three sticks of marijuana before raping his victim and hitting her head with a stone, had
some form of mental illness which did not totally deprive him of intelligence. The presence of his
reasoning faculties, enabling him to exercise sound judgment and to satisfactorily articulate the
aforesaid matters, sufficiently discounted any intimation of insanity when he committed the felony. It
has been held that mere abnormality of the mental faculties does not exclude criminal culpability.

In the present case, Dr. Adigue's testimony did not establish complete deprivation of appellant's reason.
Consequently, appellant cannot claim exemption from criminal liability under Art. 12, par. 1 of the
Revised Penal Code.

Alternatively, appellant argues that his condition should merit, at the very least, the appreciation of a
mitigating circumstance under Art. 13, par. 9 of the Code.  In Formigones, the Court found the
20

feeblemindedness of the accused to be a mitigating circumstance, noting that his faculties were not fully
developed. After stabbing his wife, the accused in said case took her dead body up their house, put her
on the floor and lay beside her for hours, showing remorse at having killed her. The accused was
"suffering [from] some physical defect which thus restrict[ed] his means of action, defense or
communication with his fellow beings,' or such illness 'as would diminish the exercise of his will
power.'"  In Rafanan, schizophrenic reaction, although not exempting because it does not completely
21

deprive the offender of the consciousness of his acts, was considered a mitigating circumstance which
diminished the exercise of the offender's will power without, however, depriving him of the
consciousness of his acts. 22

In the instant case, however, the defense miserably failed to establish the deprivation of the appellant's
will when he stabbed his victim. Appellant testified that he thought the victim was going to pull out a
weapon, thus he beat him to the draw and stabbed him with his balisong.23 This statement shows that he
did not suffer any deprivation of reason or discernment. While the victim appeared to him as a "devil with
horns," such perceptual distortion occurred only after he had dealt the fatal blows on the victim. The Court
cannot, therefore, appreciate this mitigating circumstance in his favor.

Second Issue: Proof of Treachery

The treacherous nature of appellant's attack on the victim was established by Andal who witnessed the
incident. Testified the witness: 24

FISCAL CARAAN:

Q What about you, where [were] you on that occasion?

A I was with Andres in going home sir..

Q Can you tell the court [if you were] walking together at that time?

A Yes sir.

Q Who was ahead?

A Andres was ahead of me, sir.

Q And you [were] following?

A Yes, sir.

x x x           x x x          x x x
 Q While walking together, can you tell the court what actually happened?

A Alberto waited for us on the way that were going pass, sir.

Q Why do you say that Alberto [was] waiting for you and Andres during that time?

A Perhaps he has a bad intentioned, (sic) sir.

Q While walking on that path Andres was ahead of you what did you see if you had
see[n] anything?

A Alberto stabbed Andres Dalisay, sir.

x x x           x x x          x x x

Q What happen[ed] after Alberto had [stabbed] Andres Dalisay?

A They chased one another, sir.

x x x           x x x          x x x

Q What happen[ed] after that?

A When the first stubbed (sic) hit Dalisay, Dalisay tried to hold the hand of Alberto
and when they were struggling Andres was able to push Alberto and they both fell
down and with Alberto on top of Andres, Andres was able to push Alberto and he
was able to get up and Andres ran away and Alberto chased him sir.

FISCAL CARAAN:

Q Did Alberto [catch] up with Andres . . .?

A Yes sir, Andres Dalisay toppled down and Alberto stabbed him at the back, sir.

Q What happen[ed] next?

A After the stabbing of Andres at the back by Alberto, Andres was able to get up
and ran and while running he fell for the second time and Alberto stabbed [him]
again on the chest, sir.

Treachery can be gleaned from the fact that appellant waited behind a chico tree and then, all of a
sudden, jumped on the victim. Appellant's attack was not only sudden and unexpected; it was also
vicious and relentless. After delivering the first stab, appellant chased his victim and stabbed him seven
more times. These seven additional stabs were inflicted when the victim was helpless, as he fell down
several times during the pursuit. Counterattack and escape proved futile because of the injuries that the
victim sustained. The medico-legal officer reported that of the eight stab wounds on the victim, six were
fatal.  Clearly, in killing his victim, appellant employed means which ensured its execution without risk
25

to himself arising from any defense which the victim might make. 26 Treachery which qualified the killing as
murder was properly appreciated by the trial court.

Third Issue: Absence of Evident Premeditation

The Court concurs with appellant and the solicitor general that the trial court erred in appreciating
evident premeditation. The solicitor general explains that "only a few minutes had passed" from the time
appellant left his sister's house to the time he stabbed his victim. Thus, no sufficient lapse of time is
appreciable from the determination to commit the crime until its execution to allow appellant to reflect
upon the consequences of his act.  Under such circumstances, evident premeditation cannot be
27

appreciated.

Fourth Issue: Voluntary Surrender

The mitigating circumstance of voluntary surrender should have been credited in favor of the
appellant.  The solicitor general concurs and notes that appellant, after having earlier given himself up
28

to a certain Col. Faltado, surrendered at midnight on May 20, 1992, or about an hour after the stabbing
incident, to Wilfredo Sevillano, former desk officer of the Batangas City Police Station.  Hence, the
29

evidence sufficiently established the elements of voluntary surrender, namely: (1) the offender has not
been actually arrested; (2) he surrendered himself to a person in authority or an agent of a person in
authority; and (3) his surrender was voluntary. 30

The Proper Penalty

Voluntary surrender diminishes appellant's penalty. Since the crime committed prior to the effectivity of
Republic Act 7659, the imposable penalty for murder is reclusion temporal in its maximum period to
death. The proscription of the death penalty by the 1987 Constitution did not amend the imposable
penalty under said article.  Thus, Art. 64, which provides the rules for the application of penalties
31

containing three periods, governs the determination of the proper penalty in this particular
case.  Contrary to the contention of the solicitor general, Art. 63 of the Revised Penal Code does not
32

apply.33

Following Art. 64 (2) of the Code, the mitigating circumstance of voluntary surrender entitles appellant to
the imposition of reclusion temporal in its maximum period. Applying the Indeterminate Sentence Law
(Act No. 4103, as amended), appellant should be sentenced to an indeterminate sentence of prison
mayor in its maximum period, as minimum, and reclusion temporal in its maximum period, as maximum.

WHEREFORE, the appealed Decision is AFFIRMED with MODIFICATION. Appellant is IMPOSED an

indeterminate sentence of ten years and one day of prison mayor maximum, as minimum, and
seventeen years, four months and one day of reclusion temporal maximum, as maximum.

SO ORDERED.

Davide, Jr., Bellosillo, Vitug and Quisumbing, JJ., concur.

Footnotes

1 Penned by Judge Artermio S. Tipon; rollo, pp. 21-24.

2 Records, p. 1.

3 Ibid., p. 77.

4 Rollo, p. 24.

5 The case was deemed submitted for resolution on July 10, 1996 when the Court noted
receipt of the appellee's brief. Filing of appellant's Reply Brief was deemed waived.

6 Rollo, pp. 140-144. The 25-page appellee's brief was signed by Solicitor General Raul I.
Goco, Assistant Solicitor General Romeo C. dela Cruz and Associate Solicitor Roselyn O.
Balanquit.

7 Rollo, pp. 67-73. Appellant's 42-page brief was prepared by Counsel de

Oficio Constantino B. de Jesus.

8 People vs. Formigones, 87 Phil. 658, 660-663, November 29, 1950; People vs. Rafanan,
Jr., 204 SCRA 65, 74, November 21, 1991; People vs. Dungo, 199 SCRA 860, 866, July 31,
1991; and People vs. Puno, 105 SCRA 151, 158-159, June 29, 1981.

9 People vs. Rafanan, supra, p. 79; People vs. Morales, 121 SCRA 426, 436, April 20, 1983;
and People vs. Aquino, 186 SCRA 851, 858, June 27, 1990.

10 People vs. Bonoan, 64 Phil. 87 [1937], per Laurel, J.

11 People vs. Formigones, supra, p. 661; and People vs. Aquino, supra, p. 861.

12 People vs. Bascos, 44 Phil. 204, 206-207 [1922].

13 Supra.

14 Webster's Third New International Dictionary defines an alienist as one who treats the
diseases of the mind, a physician who specializes in psychiatry.

15 People vs. Bonoan, supra, pp. 99. Emphases found in the original.

16 United States vs. Vaquilar, 27 Phil. 88, 92, March 13, 1914, per Trent, J.

17 People vs. Rafanan, supra; People vs. Dungo, supra, p. 871.

18 Supra.

19 People vs. Aquino, supra, p. 862-863.

20 Art. 13. Mitigating circumstances. — The following are mitigating circumstances:

x x x           x x x          x x x

9. Such illness of the offender as would diminish the exercise of the will-
power of the offender without however depriving him of consciousness of
his acts.

x x x           x x x          x x x

21 Supra.

22 Supra, p. 80.

23 TSN, September 9, 1993, p. 11.

24 TSN, September 11, 1992, pp. 3-5.

25 TSN, November 24, 1992, p. 6.

26 People vs. Marolano, G.R. No. 105004, July 24, 1997, p. 37; People vs. Sol, G.R. No.
118504, May 7, 1997, pp. 12-13; and People vs. Serzo, G.R. No. 118435, June 20, 1997, pp.
20-22.

27 The elements of evident premeditation are: (1) the accused determined to commit the
crime, (2) an act manifestly indicating that he clung to his determination, and (3) a
sufficient lapse of time between such determination and execution to allow him to reflect
upon the consequences of his act. People vs. Estrellanes, 239 SCRA 235, 250, December
15, 1994; People vs. Layno, G.R. No. 110833, November 21, 1996, pp. 20-21; People vs.
Deopante, G.R. No. 102772, October 30, 1996, pp. 8-9; People vs. Sol, supra, pp. 14-15; and
People vs. Nell, G.R. 109660, July 1, 1997, pp. 16-17.

28 People vs. Rivero, 242 SCRA 354.

29 TSN, December 11, 1992, pp. 3-4.

30 People vs. Isleta, G.R. No. 114971, November 19, 1996, p. 19; and People vs. Castillo,
261 SCRA 493, 503, September 6, 1996.

31 People vs. Muñoz, 170 SCRA 107, 122-124, Feb. 9, 1989.

32 People vs. Sol, supra, 16-18.

33 Appellee's Brief, pp. 23-24; rollo, pp. 160-161. The solicitor general misinterpreted
People vs. Buenaflor (211 SCRA 492, 501, July 15, 1992), which applied the rules for the
application of indivisible penalties in Article 63, because said case dealt with rape which
was punishable with reclusion perpetua, a single indivisible penalty.