SECOND DIVISION

[A.M. No. RTJ-00-1528. March 28, 2000]

ROMULO SJ TOLENTINO, State Prosecutor and Acting Provincial Prosecutor of Camarines Sur, complainant, vs. JUDGE ALFREDO A. CABRAL, Regional Trial Court, Branch 30, San Jose, Camarines Sur, respondent. DECISION
MENDOZA, J.: This is a complaint1[1] filed by State Prosecutor and Acting Provincial Prosecutor of Camarines Sur Romulo SJ Tolentino against Judge Alfredo A. Cabral of the Regional Trial Court, Branch 30, San Jose, Camarines Sur, for grave abuse of discretion, gross ignorance of the law, grave abuse of authority, violations of Canons 1, 2, and 3 of the Code of Judicial Conduct, rendering unjust orders, and grave misconduct in connection with the trial of Criminal Case No. T-1417 entitled "People v. Roderick Odiamar." The facts are as follows: Roderick Odiamar was charged with rape upon the complaint of Cecille Buenafe before the sala of herein respondent judge. On October 24, 1994, he filed a motion for bail, which the prosecution opposed. In an order, dated March 24, 1995, respondent judge granted bail stating that the evidence against the accused was not strong. 2[2] On April 19, 1995, counsel for the accused filed an ex-parte motion for the confinement of the accused in a hospital on the ground that he was suffering from "Type I insulin dependent diabetes mellitus." On the same date, respondent judge granted the said motion, at the same time setting a hearing on April 26, 1995 for the purpose of determining the status of the illness of the accused and the nature and duration of his treatment. Complainant was furnished a copy of the order setting the motion for hearing. Thus, even as he failed to appear, the hearing proceeded. Dr. Benjamin Florendo testified, after which respondent judge issued an order, dated May 5, 1995, confirming the hospitalization of the accused. The records further show that on June 19, 1995, respondent judge issued an order amending his March 24, 1995 order granting bail in order to correct some clerical and
1[1]

Amended Administrative Complaint, pp. 1-22; Rollo, p. 12-32. Id., Annex A; id., pp. 51-52.

2[2]

typographical errors. The records of the case were then transmitted to the RTC, Branch 58, San Jose, Camarines Sur presided over by Judge Policarpio Camano, Jr. But, Judge Camano, Jr. inhibited himself, for which reason the records were returned to the RTC, Branch 30 of respondent judge.3[3] Prior to the said transfer, the prosecution filed several motions, namely, Motion to Recall and Invalidate Order of March 24, 1995 granting bail, Motion to Recall and/or Reconsider Order of May 5, 1995 confirming the hospitalization of the accused, and Motion for Clarification. In an order, dated June 14, 1996, respondent judge denied the first two motions for lack of merit but took no action on the other motions filed by the prosecution, to wit, Motion for Clarification, Motion to Resolve Pending Motions, and its Supplemental Motion. Respondent judge considered the motions to be mere reiterations of the two motions denied by him. On June 26, 1996, respondent judge ordered the release of the accused from detention.4[4] Complainant then filed this complaint, alleging that the order of March 24, 1995 of respondent judge, which granted bail to the accused, was carelessly prepared, if not ghostwritten, because of its "incredible reasoning, grammatical, and clerical errors"; that the belated efforts of respondent judge to correct the alleged typographical errors in his order of June 19, 1995, which substantially changed the meaning of the order granting bail, was resorted to in order to conceal his negligence and partiality; that the factual findings were arbitrary and partial to the accused; and that the conclusions were based on misapplied, misunderstood, and overlooked facts and circumstances, such as the intentional omissions of the pertinent testimonies of witnesses, which would alter the result of the order if they were considered.5[5] Moreover, complainant points out that respondent judge granted the request of the accused for hospitalization merely on the basis of an ex-parte motion which should have been denied for being a mere scrap of paper. Although notice was later sent to the prosecution, complainant claims that he was not able to attend the hearing on April 26, 1995, because he received the notice on the same day the hearing was held.

Order, dated June 14, 1996, issued by respondent judge; id., pp. 33-34. Transmittal letter given by the Clerk of Court of the RTC, Branch 58 received by the RTC, Branch 30 on April 15, 1996, pp. 1-9; id., pp. 154-161.
3[3] 4[4]

Order, dated June 26, 1996, issued by respondent judge; id., p. 77. Id., pp. 12-32.

5[5]

Respondent judge thereafter issued his order of May 5, 1995 confirming the order for the hospitalization of the accused.6[6] Complainant further alleges that the resolution of the prosecutions several motions were made beyond the reglementary period. As regards the bail granted to the accused, complainant claims that the amount of P30,000.00 fixed by respondent judge is only 15% of the recommended amount of P200,000.00 in the 1996 Bail Bond Guide; that the bail was approved without registration in the Provincial Assessors Office; and that when apprised of the need for registration, respondent judge, instead of cancelling the bond, issued an order, dated June 14, 1996, requiring the bondsman to register the same. Finally, complainant makes much of the detachment of certain pages of the records in Criminal Case No. T-1417 (pages 2, 17, 41, 44, 47, 50, 53, 58, 63, 66, 69, and 73) and the error in pagination of pages 525 and 585. These, according to complainant, raise a suspicion that the records have been tampered with or altered. Complainant contends that the foregoing acts complained of constitute bad faith, partiality, and bias on the part of respondent. On the other hand, respondent judge denies the charges against him and alleges the following: He issued the March 24, 1995 order granting bail because the prosecution failed to show that the evidence against the accused was strong. The testimony of the offended party in the criminal case, given on cross-examination, casts doubts on her claim that she was sexually abused through force and coercion. Respondent judge relied on the testimony of the examining physician given on cross-examination that it was possible that the lacerations on the hymen of the offended party had been caused a month, six months, or even one year, before the alleged rape.7[7] Respondent judge vehemently denies complainants allegation that his order granting bail was ghostwritten. While there may have been grammatical errors in the order, he claims that the same were committed by an aide whom he had asked to type the order. But, he said, he subsequently amended his order to correct the typographical errors. With respect to allegations that respondent judge omitted certain material facts in his order granting bail in order to favor the accused, respondent judge states that he is not Supplemental to Reply filed by complainant, dated September 30, 1997, p. 1; id., pp. 36-38. Motion to Recall and/or Reconsider Order of May 5, 1995 filed by the Prosecution dated May 19, 1995, pp.1-3; id., p. 208.
6[6] 7[7]

Id., pp. 39-52, 126-132.

really required to quote everything in the transcripts, but that he is at liberty to include or disregard testimony which he thought was "insignificant, irrelevant, immaterial, incredible, [or] absurd." As regards his order of April 19, 1995 granting the request of the accused to be ordered hospitalized, respondent judge explains that the accused is a "Type I insulin dependent" diabetic person, any delay in the treatment of whom could be fatal. Hence, for humanitarian reasons, he decided to "act now and investigate later." Respondent judge claims that the prosecution was given a copy of the ex-parte motion, as well as the April 19, 1995 order setting the hearing on the motion for hospitalization. However, despite notice to it, the prosecution did not attend the hearing on April 26, 1995. He alleges that because medical evidence presented during the hearing was uncontradicted, he issued on May 5, 1995 his order confirming his previous order for the confinement of the accused in the hospital. On the alleged delay in resolving the prosecutions Motion to Recall and Invalidate Order of March 24, 1995 and Motion to Recall and/or Reconsider Order of May 5, 1995, respondent judge states that the delay was due to the fact that the case stayed in the RTC, Branch 58, presided by Judge Policarpio Camano, Jr. from April 10, 1995 until April 15, 1996, when the records were returned to respondents sala at Branch 30, because Judge Camano, Jr. had inhibited himself from the case. But, respondent claims, 60 days after receipt of the records, he resolved the two motions in an order dated June 14, 1996. Relative to the alleged improper posting of bond, respondent judge claims that he required the bondsman to comply with the registration requirement instead of ordering the bonds cancellation because the defect was only formal and that he could not have been guilty of violation of the 1996 Bail Bond Guide because he fixed the amount of the bail prior to the promulgation of said Bail Bond Guide. On the other hand, the fact that the accused was ill, coupled with the fact that the prosecution did not present strong evidence to prove his guilt, rendered the probability of flight remote, according to respondent judge. With reference to the alleged detaching of pages of the criminal case, respondent judge argues that he has no supervision over the Clerk of Court of RTC, Branch 58 and of the Municipal Circuit Trial Court of San Jose, Camarines Sur where the case originated. On the other hand, the error in pagination was the result of the mistakes of an overburdened utility worker in the court.8[8] Respondent judge filed counter-charges against complainant for breach of Code of Professional Responsibility consisting of the following:

8[8]

Respondents Rejoinder, dated November 11, 1997, pp. 1-8; id., pp. 258-265.

1. violation of Canon 10, Rule 10.02 (knowingly misguiding or misrepresenting the contents of a paper); 2. violation of Canon 10, Rule 10.01 (doing falsehood in court, misleading the court); and 3. violation of Canon 11, Rule 11.03 (for using offensive and menacing language before the court). Respondent judge claims that complainant deliberately and maliciously distorted some of his orders by misrepresenting their contents, thus- 1. The order of June 14, 1996 in which it was stated: Now going over the grounds stated in the first motion, the court believes that the same are not well-founded and meritorious. Rightly so, because they are anchored on the misappreciation of evidence and on clerical, if not, typographical errors. . . . According to respondent judge, complainant made it appear that the judge had admitted misappreciating the evidence of the prosecution in granting bail. 2. Likewise, respondent judge allegedly admitted that a court aide tampered with or altered the draft of the order granting bail. However, what respondent judge said in his order, dated June 19, 1995, correcting alleged errors in his order, dated March 24, 1995, granting bail, was the following: For utilizing an aide to type the order dated March 24, 1995 due to the volume of work of the stenographers as a consequence of the morning and afternoon hearings, errors were committed consisting of an omission of words or a word, misspelling and other clerical mistakes. . . . 3. Complainant misled the court when he stated in his Motion to Resolve Pending Motions, dated March 29, 1996, that the counter-affidavits of accused and his witness were attached to said motion when this was not so, as there were no such counter-affidavits in the records of the case. 4. Lastly, complainant in his Final Manifestation, dated June 20, 1996, stated: The PEOPLE OF THE PHILIPPINES, by the undersigned State Prosecutor and Acting Provincial Prosecutor on Case, to this Honorable Court respectfully manifests that should there be no

favorable court action before the end of June 1996 . . . the undersigned will be constrained to file the necessary complaint before the Honorable Supreme Court . . .
I.

The Office of the Court Administrator recommends that respondent judge be found guilty of the charges against him. On April 19, 1999, however, complainant filed a Manifestation stating that the complaint against respondent judge has been rendered moot and academic by the decision of this Court in People v. Cabral9[9] annulling the March 24, 1995 order granting bail of respondent judge. Hence, the preliminary question is whether, as a result of the decision in the aforesaid case for certiorari, this case has become moot and academic. We hold that the decision in the certiorari case has not in any way rendered this administrative case moot and academic. To the contrary, we think that because of that decision finding respondent judge guilty of grave abuse of discretion in issuing his order of March 24, 1995, there is more reason to proceed with the instant case to determine whether he is administratively liable. Grave abuse of discretion may constitute serious misconduct warranting discipline by this Court. Moreover, as this Court has said: Administrative actions cannot be made to depend upon the will of every complainant who may, for one reason or another, condone a detestable act. The Supreme Court does not, as a matter of course, dismiss administrative cases against members of the Bench on account of withdrawal of charges.10[10]
II.

We thus proceed to determine whether respondent judge is guilty of the charges leveled against him, warranting the imposition of administrative sanctions. Re: Order of March 24, 1995 granting bail In the decision in the certiorari case, it was found that respondent judge omitted certain material facts to justify the grant of bail to the accused. It was held in that case: [T]he lower courts order failed to mention and include some significant factors and circumstances which, to the mind of this Court, are strong, clear and convincing. First, it excluded the testimony of Dr. Belmonte about her psychiatric examination of the victim as well as her findings that the latter manifested "psychotic signs and symptoms such as unusual fear, sleeplessness, suicidal thoughts, psychomotor retardation, poverty of
9[9]

303 SCRA 361 (1999). Sandoval v. Manalo, 260 SCRA 611 (1996).

10[10]

thought content as well as depressive signs and symptom." This particular testimony should have been considered and included in the summary as it was given by an expert witness. Second, the unrebutted offer of compromise by accused-respondent is an implied admission of guilt which should have been noted as an offer of a compromise is generally considered as admissible evidence against the party making it.11[11] Not only did respondent judge omit vital and material facts in his order granting bail, he also misapplied legal doctrines in order to favor the accused. On this point, this Court said: Aside from failing to mention those important pieces of evidence and testimonies, this Court has likewise observed that the lower court misapplied some doctrines in criminal law. First, the lower court, in its order, intoned the following doctrine that "evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself in conformity with common experience and observation of mankind." According to the lower court, the credibility of the complainant is suspect because she willingly went with accused-respondent to the resort where she was allegedly raped. In the scene of the crime, complainant allegedly voluntarily drank four shots of gin. The complainant, likewise, never protested nor cried while they were on their way to accused-respondents house. Because of those findings, the lower court doubted the credibility of complainant and stated that the crime of rape is not to be presumed and that sexual acts between a man and a woman are presumed to be consensual. In overcoming such presumption, much depends on the credibility of the complainant. This Court cannot agree. First, there was no finding of any ill-motive on the part of complainant in filing the rape charge against accusedrespondent. This should have been taken into consideration. The following rebuttal of petitioner to the findings of the lower court is more credible: "It must also be stressed that Cecille testified that she was forced by respondent to drink gin with the help of his friends by holding her hair and putting the glass on her mouth (Pages 5-7, TSN, November 17, 1994). More, respondent and his friends blew smoke into her face forcing her to inhale the intoxicating smoke. Whenever she attempted to leave the place, she was forced to sit down by Odiamar and his friends (Pages 6-7, TSN, November 17, 1994).

11[11]

People v. Cabral, supra at 372-373.

Similarly, Cecille categorically declared that she was threatened by Florece with a gun (Pages 17, TSN, November 17, 1994). The requirement of force and intimidation in the crime of rape are relative and must be viewed in light of the victims perspective and the offenders physical condition (People v. Plaza, 242 SCRA 724 [1995]). Further, physical resistance need not be established in rape when intimidation is exercised upon the victim and the latter submits herself against her will because of fear for life and personal safety. (People v. Ramos, 245 SCRA 405 [1995]) In this case, Cecille was only fifteen (15) years old at the time of the incident in question. At her age, it is reasonable to assume that a shot of gin rendered her tipsy. Thus, four (4) shots of gin must have rendered her dizzy, intoxicated and deprived of will or reason. The resulting weakness and dizziness which deprived Cecille of reason, will and freedom must be viewed in light of her perception and judgment at the time of the commission of the crime, and not by any hard and fast rule because in "rape cases, submission does not necessarily imply volition." (Querido, 229 SCRA 745 [1994])" It must likewise be taken into consideration that when Cecille went with the group of accused-respondent, she was of the impression that it was just for a joy ride. The conclusion made by the trial court that Cecille must have consented to the sexual act because she acquiesced to go with them in the first place is, therefore, bereft of any legal or factual support, if not non sequitur. That she agreed to accompany them for a joy ride does not mean that she also agreed to the bestial acts later committed against her person. Second, the lower court stated that "force and violence in the offense of rape are relative terms, depending on the age, size and strength of the parties and their relation to each other." The lower court enunciated this doctrine in finding that the alleged rape was actually a consensual act since the prosecution was unable to show that complainant suffered any injury nor show any evidence that her pants or blouse was torn. Neither was there any evidence that accused-respondent exerted overpowering and overbearing moral influence over the offended party. This Court is of the impression that when the lower court invoked the above doctrine, it readily concluded that complainant agreed to the sexual act disregarding testimonies lending credence to complainants allegation that she was threatened and intimidated as well as rendered weak and dizzy, not only by the smoke of the marijuana cigarette but also by intoxication, thereby facilitating the commission of the crime. It was not imperative for the prosecution, in order to prove the elements of force or

intimidation to show that Cecille had broken limbs or that her blouse or pants were torn. Her testimony to that effect would have sufficed. Nevertheless, the prosecution still exerted efforts to corroborate Cecilles claim by presenting the examining physician who testified that Cecille suffered hymenal lacerations and lesions near the umbilicus area. Unfortunately, however, the lower court chose to ignore these telling pieces of evidence. This Court views this apparent lapse on the part of the lower court with concern and agrees with petitioner, in accordance with well established jurisprudence, that proof of hymenal laceration is not indispensable in indictments for rape as a broken hymen is not an essential element of the crime. Further, in crimes against chastity, the medical examination of the victims genitalia is not an indispensable element for the successful prosecution of the crime. The examination is merely corroborative in nature. And contrary to the theory espoused by the lower court, a hymenal laceration is not conclusive proof that one is experienced in sexual intercourse. Second, the lower court highlighted the testimony of Dr. Decena to the effect that the cigarette burns indicated that the lesions near complaina nts umbilicus were due to skin diseases. Notably, however, the lower court again failed to mention that Dr. Decena likewise positively testified that the wounds could have been "caused by cigarette butts as alleged by the victim" which corroborates Cecilles testimony that respondent burned her "right side of the stomach" thrice. It is thus indicative from the above observations that the lower court abused its discretion and showed manifest bias in favor of accusedrespondent in determining which circumstances are to be considered in supporting its decision as to the guilt of accused-respondent. . . .12[12] As thus shown by the records, respondent judge granted bail despite sufficient evidence presented by the prosecution showing the guilt of the accused. Respondent judge's contention that the court is at liberty to omit evidence or testimony if he finds it "insignificant, irrelevant, immaterial, [or] absurd" is untenable. As the decision in the certiorari case demonstrates, the evidence omitted was vital or important in showing that the evidence of guilt of the accused is strong. Furthermore, respondent judge failed to consider basic criminal law doctrines in the issuance of his questioned order, which omission, to the mind of this Court, constitutes

12[12]

Id., at 373-376. (Emphasis added)

gross ignorance of the law. In Bacar v. De Guzman, Jr.,13[13] it was held that when the law violated is elementary, the failure to know or observe it constitutes gross ignorance of the law. Reiterating this ruling, it was emphasized in Almeron v. Sardido14[14] that the disregard of an established rule of law which amounts to gross ignorance of the law makes a judge subject to disciplinary action. Prescinding from the foregoing, it is undeniable that respondent judge knowingly issued a manifestly unjust order granting bail to the accused. As the OCA noted: . . . There is no doubt that the respondent Judge rendered the assailed order knowing it to be unjust as it was clearly contrary to the applicable laws, not supported by evidence; and more importantly, there are indications that respondent issued the order with conscious and deliberate intent to do an injustice (Gonzales v. Bersamin, 254 SCRA 652 [1996]; Contreras v. Solis, 260 SCRA 572 [1996]). In the case at bar, respondent Judge granted bail to the accused in willful and manifest disregard of evidences presented by the prosecution which strongly warrants denial of the bail obviously to favor the accused. Re: Order directing and confirming the hospitalization of the accused With respect to the order granting the ex-parte motion for hospitalization of the accused, we likewise find that respondent judge issued the same with grave abuse of discretion and manifest bias. He justified his order of April 19, 1995, granting the motion of the accused for hospitalization and setting the same for hearing on April 26, 1995, on the need to act promptly, because the life of the accused was at stake. Hence, he thought he could "act now and investigate later," as he in fact set a hearing on the motion on a later date. However, the prosecution was not able to attend the hearing set on April 26, 1995 because a copy of the order setting the motion for hearing was received by the prosecution only on the day of the hearing. The order was sent to the prosecution by mail despite the fact that, as respondent judge admitted, his court and the office of the public prosecutor are in the same building. Certainly, it would have been easier and more effective if the order was personally served on the prosecution. Nor was there a need to resolve the motion immediately as the accused was already confined in the hospital. Respondent judge must have been aware that the prosecution was going to oppose the motion for hospitalization as the prosecution had vehemently done so in the past. Apparently, it was to give the prosecution no chance to file an opposition that respondent judge fixed the date of the hearing close to the date of its 271 SCRA 328 (1997). 281 SCRA 415 (1997).

13[13]

14[14]

mailing to the complainant. Once again, respondent judge clearly showed partiality for the accused. Re: Detached pages of the records of the case involving accused Odiamar As administrators of their courts, judges should adopt a system of record management. In this case, the loss of records in his office indicates gross negligence on his part.15[15] When the Clerk of Court of the RTC, Branch 58, of which Judge Policarpio Camano, Jr. was the presiding judge, returned the records of the criminal case to the RTC, Branch 30 of respondent judge, the Clerk of Court stated in his transmittal letter that "pages 2, 17, 41, 44, 47, 50, 53, 58, 63, 66, 69, 73 were detached per notation appearing in the records and pages 525 and 585 were skipped/mispaged." The pages in question had been missing even when the records of the case were still in the RTC, Branch 30 of respondent judge. He cannot, therefore, excuse himself for the loss of the pages in question on the ground that the Clerk of Court of the RTC, Branch 58 was not under his administrative supervision and control. A prudent person would have exerted effort to determine the cause of the loss considering that the alleged detached pages consisted of several affidavits and preliminary examinations of relevant witnesses. His failure to do so constitutes gross negligence and inefficiency. Re: Delay in the resolution of motions However, we find merit in respondent judges explanation for the seeming delay in the resolution of some motions. It appears that the records of the case were transmitted to the RTC, Branch 58 immediately after Judge Camano Jr.'s appointment on April 10, 1995. The records were not returned to the RTC, Branch 30, until April 15, 1996, after Judge Camano Jr. had inhibited himself from the consideration of the case. On the other hand, with respect to the amount of the bail bond as fixed by respondent judge and its approval without registration in the Provincial Assessors Office, the OCA correctly observed that there is no need to pass upon the validity of the same in view of the cancellation of the bail bond by the Court in People v. Cabral. Re: Penalty to be imposed for respondents infractions We find respondent judge guilty of violation of Canon 1, Rule 1.02, Canon 3, Rules 3.01, 3.02, 3.08, and 3.09 of the Code of Judicial Conduct.16[16] With reference to the penalty to be imposed on him, the OCA recommends as follows:

15[15] 16[16]

Sabitsana v. Villamor, 202 SCRA 435 (1991), Longboan v. Polig, 186 SCRA 557 (1990).
These provision reads:

Canon 1, Rule 1.02: A judge should administer justice impartially and without delay. Canon 3, Rule 3.01: A judge shall be faithful to the law and maintain professional competence.

Indeed in his order, respondent Judge exhibited gross incompetence, gross ignorance of the law and gross misconduct. And under Rule 140, these charges are classified as serious charges (3) and carries a penalty ranging from fine to dismissal from service (10). However, this is his first administrative offense of this nature since his appointment as an RTC judge which may be considered to mitigate his liability. Hence, a penalty lower than removal may be properly imposed. It may be stated in this connection that complainant also filed an administrative complaint for violations of Canons 1, 2, and 3 of the Code of Judicial Conduct and for incompetence against then Judge Policarpio Camano, Jr. in connection with the grant of bail to herein accused Roderick Odiamar in Criminal Case No. T-1468 for violation of the Child Abuse Act (R.A. No. 7610), also allegedly committed against herein offended party Cecille Buenafe.17[17] The case was dismissed and Judge Camano, Jr. was exonerated, because it was found that, although the imposable penalty could be reclusion perpetua, there was no showing that the evidence of guilt of the accused was strong. In fact, a preliminary investigation had been ordered in that case, but it was emphasized therein that if after preliminary investigation it was shown that there was strong evidence of the guilt of the accused, the bail granted to him should be cancelled. The facts of that case are, therefore, different from those of the case at bar. Re: Counter-charges against herein complainant We find the countercharges against complainant to be meritorious. First, complainant is guilty as charged of misrepresenting the contents of respondent judges order of June 19, 1995, which constitutes violation of Canon 10, Rule 10.02,18[18] by declaring in his Motion for Clarification:

Rule 3.02: In every case, a judge shall endeavor diligently to ascertain the facts and the applicable law unswayed by partisan interests, public opinion or fear of criticism. Rule 3.08: A judge should diligently discharge administrative responsibilities, maintain professional competence in court management, and facilitate the performance of the administrative functions of other judges and court personnel.

Rule 3.09: A judge should organize and supervise the court personnel to ensure the prompt and efficient dispatch of business, and require at all times the observance of high standards of public service and fidelity.
17[17]

Tolentino v. Camano, A.M. No. RTJ-00-1522, Jan. 20, 2000.

A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved.
18[18]

. . . The admission that a court aide tampered with or altered the draft of subject order which change is indicative of inexcusable negligence, fraud and falsification committed by that aide prejudicial to our rights . . . . The allegation that respondent admitted tampering with or altering the records is obviously an attempt by complainant either to obtain a favorable action by misleading the trial court or to badger, annoy, and cast disrepute to the respondent judge. Second, complainants explanation concerning the questioned counter-affidavits is unsatisfactory. He said: The foregoing quoted statement and the succeeding statements referring to the counter-affidavits of the accused and his witness . . . have never been objected [to] by the respondent and the accused until respondents Comment, and therefore by silence and operation of law respondent should be deemed to have admitted the veracity of said motion . . . ...All our cited motions and other submissions kept referring to said counter-affidavits but respondent never reacted that these counteraffidavits are not parts of the records. Accused never objected and to date has not done so. In view of respondent and accuseds silence we were of the honest belief that these counter-affidavits are on file with the records. . . .19[19] If there were indeed counter-affidavits in the records or at least attached to complainants Motion to Resolve Pending Motions, he should have said so in his Reply or Supplemental to Reply or appended copies of the said counter-affidavits, but he did none of these. Instead, he contended that the failure of respondent judge to object to the lack of counter-affidavits was an admission of the veracity of his assertion. This is sophistry. Complainant should be reminded that lawyers have an obligation to the court as well as to the opposing party to make only truthful statements in their pleadings. For his violation of this duty, complainant committed a breach of Canon 10, Rule 10.01 of the Code of Professional Responsibility.20[20] In addition, he likewise committed a violation of Canon 11 of Rule 11.0321[21] by threatening respondent judge that if his motions were not granted, respondent judge would be administratively charged. To be sure, the threat made against respondent judge was not a threat to do him bodily harm. Nonetheless, it was a threat. Needless to say, disrespectful, abusive and abrasive language, offensive personalities, unfounded accusations, or intemperate words tending
19[19]

Supplemental to Reply, dated September 30, 1997, pp. 1-7; Rollo, 208-214.

A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor shall he mislead, or allow the court to be misled by any artifice.
20[20]

A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the courts.
21[21]

to obstruct, embarrass, or influence the court in administering justice or to bring it into disrepute have no place in a pleading.22[22] WHEREFORE, respondent Judge Alfredo A. Cabral of the Regional Trial Court, Branch 30, San Jose, Camarines Sur, is hereby found liable for grave abuse of authority, gross ignorance of the law, gross negligence and inefficiency, rendering unjust judgment and for violations of the Code of Judicial Conduct and, accordingly, is SUSPENDED from office for SIX (6) MONTHS without pay. On the other hand, complainant Romulo SJ Tolentino is REPRIMANDED for breach of Canon 10, Rules 10.01 and 10.02 as well as Canon 11, Rule 11.03 of the Code of Professional Responsibility. Both complainant and respondent judge are WARNED that repetition of the same or similar offenses in the future will be severely dealt with by this Court. SO ORDERED. Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

See Lim Se v. Argel, 70 SCRA 378 (1976); Urbina v. Maceren, 57 SCRA 403 (1974); Surigao Mineral Reservation Board v. Cloribel, 31 SCRA 1 (1970); In re Almacen, 31 SCRA 562 (1970); Rheem of the Philippines v. Ferrer, 20 SCRA 441 (1967); People v. Manobo, 18 SCRA 30 (1966).
22[22]

[G.R. No. 129604. July 12, 1999] PEOPLE OF THE PHILS. vs. COURT OF APPEALS, et al. FIRST DIVISION Gentlemen: Quoted hereunder, for your information, is a resolution of this Court dated JUL 12, 1999. G.R. No. 129604 (People of the Philippines vs. Court of Appeals, Joven de Grano, Armando de Grano and Estanislao Lacaba.) This is a petition for certiorari under Rule 65 of the Rules of Court, assailing the decision1 [Promulgated on May 8, 1997, penned by Justice Consuelo Ynares-Santiago, concurred in by Justices Nathanael P. de Pano, Jr. and Conrado M. Vasquez, Jr., Rollo, pp. 15-23.] of the Court of Appeals, denying the petition for certiorari filed before it, of the following orders of the Regional Trial Court, Branch 11, Manila,2 [Presided over by Judge Roberto A. Barrios.] in Criminal Case No. 93-129988, to wit: 1. Order dated December 12, 1995, granting private respondents' Motion for Bail; and 2. Order dated April 22, 1996; denying petitioner's Motion for Reconsideration of the above order; for having been issued with grave abuse of discretion amounting to lack of jurisdiction. An information for murder committed against Emmanuel Mendoza was filed with the Regional Trial Court, Tanauan, Batangas, against private respondents Joven de Grano, Armando de Grano and Estanislao Lacaba, together with Leonides Landicho, Domingo Landicho and Leonardo Genil. On Motion of petitioner, the venue was transferred to Regional Trial Court, Branch 11, Manila, and docketed as Criminal Case No. Q-93129988. Upon arraignment, respondents Joven de Grano, Armando de Grano and Estanislao Lacaba pleaded not guilty; while co-accused Leonides Landicho, Domingo Landicho and Leonardo Genil remained at large. Private respondents filed a motion for bail contending that the prosecution's evidence was not strong. The trial court held in abeyance the resolution of the motion and allowed prosecution to present evidence. After prosecution rested its case and private respondents presented four (4) witnesses, the latter reiterated the motion for bail.

The hearing of the application for bail ensued, wherein prosecution presented eyewitness Teresita Duran and Dr. Leonardo Salvador, who conducted the post-mortem examination of the victim's body. After the hearing, the trial court granted the motion for bail, ruling that the evidence presented to prove the existence of treachery and evident premeditation was not strong. Petitioner's motion for reconsideration was denied. Petitioner filed a petition for certiorari with the Court of Appeal, contending that the trial court acted with grave abuse of discretion in granting the motion for bail of private respondents. On May 8, 1997, the Court of Appeals denied the petition.3 [Rollo, pp. 1523.] The appellate court held that since the prosecution's lone eyewitness did not see the actual shooting or the events which led to the same, no direct evidence was presented to prove treachery and evident premeditation. The appellate court found prosecution's evidence to be weak and insufficient. Hence, this petition for certiorari. Petitioner contends that it has adequately proven the attendance of treachery and evident premeditation in the killing of Mendoza. The prosecution admitted that it may have failed to prove treachery and evident premeditation on the first attack on the victim. However, witness Duran testified that, upon instruction of respondent Joven de Grano, respondents returned and again shot the victim who was already defenseless and helpless. The second attack adequately established the presence of treachery and evident premeditation. We resolve to grant the petition. In the instant case, the private respondents were charged with murder.4 [Under Article 248 of the Revised Penal Code, as amended by R.A. 7659, murder is punishable by reclusion perpetua to death.] After conducting the requisite hearing for the motion for bail, the trial court found that the prosecution failed to prove that treachery and evident premeditation attended the killing. The lone eyewitness testified as the circumstances of the second attack on the victim, as the latter was defenseless. Even if treachery was absent in the first attach, it was present in the second attack and treachery existed at the time of the killing. Furthermore, instead of leaving the prostrate and defenseless body of the victim's death. Respondents employed means, methods and manner of execution that would ensure their safety from any defensive and retalitory act on the part of the victim.5 [Rollo, Petition, p. 8.] Hence, treachery can be appreciated. Thus, the evidence of guilt of the crime charged, that is, murder, is strong. When the accused is charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, the evidence of guilt is strong, bail shall be denied, as it is neither a matter of right nor of discretion.6 [Obosa v. Court of Appeals, 266 SCRA 281, 300, citing Padilla v. Court of Appeals, 260 SCRA 155.] "The determination of whether the evidence of guilt is strong, in this regard, is a matter of judicial discretion, this Court would unhesitatingly reverse the trial court's findings if

found to be laced with grave abuse of discretion."7 [People v. Hon. Alfredo Cabral and Roderick Odiamar, G.R. No. 131909, February 18, 1999.] We agree with the prosecution that the evidence of guilt against the private respondents for the crime of murder is strong. WHEREFORE, we GRANT the petition. We SET ASIDE the decision of the Court of Appeals in CA G.R. SP No. 41110 and the orders of the Regional Trial Court, Manila, Branch 11, granting bail to respondents in Criminal Cas3e No. 93-12998. We deny the motion for bail filed by the accused therein, pending trial and finality of the aforesaid case. the court a quo shall immediately issue a warrant for the re arrest of the accused, if their bail bonds have been approved and thereafter, proceed with dispatch in the disposition of the said case. this resolution is immediately executory. No costs. Ynares-Santiagi, J., no part. Very truly yours, (Sgd.) VIRGINIA ANCHETA-SORIANO Clerk of Court

SECOND DIVISION

THE PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 180925 Present: QUISUMBING, J.,

- versus -

Chairperson, CARPIO MORALES, TINGA, VELASCO, JR., and

JAIME DEL CASTILLO, Appellant.

BRION, JJ.

Promulgated: August 20, 2008 x---------------------------------------------------------------------------------x DECISION

Tinga, J.:
This Court is called upon to review the Decision23[1] rendered by the Court of Appeals on 5 July 2007, which affirmed with modification the Decision24[2] of the Regional Trial Court of Calabanga, Camarines Sur, Branch 63 dated 14 December 2004 finding Jaime del Castillo guilty of rape.

23[1]Rollo, pp. 2-11; penned by Associate Justice Estela M. Perlas-Bernabe and concurred in by Associate Justices Regalado E. Maambong and Lucas P. Bersamin.

24[2]CA rollo, pp. 17-39.

In an Information dated 26 September 2002, appellant was charged with rape, thus: That at about 11:00 p.m. of June 29, 2002 at Brgy. Sabang, Calabanga, Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, by means of force and intimidation did then and there, wil[l]fully, unlawfully and feloniously has [sic] carnal knowledge of victim ANA,25[3] a 16 year old minor against her will, which act of the accused debases, degrades and demeans the intrinsic worth and dignity of the minor as a human being and prejudicial to her development, to her damage.

ACTS CONTRARY TO LAW.26[4]

Upon arraignment, appellant pleaded not guilty to the charge. Trial on the merits ensued. The evidence for the prosecution is as follows: Sixteen-year old ANA was living with her parents and siblings in a house at Sabang, Calabanga, Camarines Sur. On 29 June 2002, she was alone in their house as her parents and siblings had gone to Vinzons, Camarines Norte. At around 11:00 oclock that night, she was already in bed, half -asleep, when suddenly, turning on her side, she felt someone poke her neck with the tip of a spoon. She was able to identify the man holding the spoon as appellant through the light coming from the neighbors house. She tried to fight back but appellant punched her on the face. Appellant then removed ANAs dress and pulled down her gartered shorts. ANA fought back again but this time, appellant punched her on the abdomen and removed her panties. Holding ANAs neck tightly, appellant then spread ANAs legs and inserted his penis into her vagina.

25[3]Pursuant to Republic Act No. 9262, otherwise known as the "Anti-Violence Against Women and Their Children Act of 2004" and its implementing rules, the real name of the victim, together with that of her immediate family members, is withheld and fictitious initials instead are used to represent her, both to protect her privacy. People v. Cabalquinto, G.R. No. 167693, 19 September 2006, 502 SCRA 419.

26[4]Records, p. 1.

After committing the dastardly act, appellant told ANA that he would take her to Manila to make her happy. When ANA hinted her refusal, appellant slapped her on the left cheek. Appellant then started to put on his clothes and ordered ANA to turn her back, threatening to stab ANA if she faced him. After appellant had ran outside and away from the house, ANA proceeded to the house of a certain Ate Sharon.27[5] On 30 June 2002, ANA was fetched by her aunt, ABING,28[6] to whom she related her ordeal. After relating the whole incident to ABING, they went to the barangay captain to report the rape but were told to go directly to the police station of Calabanga. After narrating the incident to the police, they went to the hospital where ANA was examined by Dr. Ma. Agnes Ali.29[7] The results of the examination are contained in the medico-legal report which states: PPE: Hematoma on the right cheek. Abrasions on the neck, left side External Genitalia: Well distributed pubic hair Hematoma noted on the perineal area Fresh lacerations, hymenal at 4, 8, 10 and 12 oclock positions Introitus admits 1 finger with ease (+) vaginal bleeding (4th day of menses)30[8]

27[5]TSN, 8 April 2003, pp. 4-11. 28[6] Name of aunt is withheld. Supra note 2. 29[7]TSN, 4 April 2003, pp. 3-4. 30[8]Records, p. 5.

Appellant set up the defense of alibi. He claimed that at 11:00 p.m. on 29 June 2002, he was at the wedding celebration of Edgar (Egay) Balder amas daughter and that he was already there as early as 10:00 a.m. as he assisted in the wedding preparations and in serving food to the guests. The wedding party allegedly ended at about 7:00 p.m. but he was supposedly invited by Egay to a drinking spree. He recounted that he left Egays house shortly after 12:00 a.m. and arrived at his aunts house twenty minutes later. According to him, he went to sleep after having his dinner and found himself already handcuffed when he woke in the morning.31[9] Egay corroborated the alibi that on 29 June 2002, appellant was in attendance at the wedding celebration of his daughter from 10:00 a.m. to 12:00 a.m.32[10] Ronald Vargas (Vargas), a friend of appellants, also testified that both appellant and himself rendered assistance to Egays family during the wedding celeberations on 29 June 2002, and that they were also together at the drinking session that night which lasted until 12:00 a.m.33[11] Arnel Rosco (Arnel) was presented to rebut the testimonies of Egay and Vargas. He stated that on 29 June 2002, he was on a boat docked at the side of the bridge when he saw appellant pass by in front of him. Arnel estimated the time to be 11:00 p.m. because after the said encounter, he immediately went to the house of his sibling and checked the time on the wall clock.34[12] On 14 December 2004, the trial court rendered judgment finding appellant guilty beyond reasonable doubt of rape. The dispositive portion reads: WHEREFORE, in view of the foregoing, the prosecution having proven the guilt of the accused beyond reasonable doubt, accused Jaime del Castillo is found guilty of the crime of rape as charged. He is hereby sentenced to suffer the penalty of reclusion perpetua. Accused is likewise ordered to pay the private complainant [ANA] the amount of P50,000.00 as civil indemnity and P50,000.00 as moral damages and to pay the cost. He is likewise meted the accessory penalties as provided for under Article 41 of the Revised Penal Code. 31[9]TSN, 11 February 2004, pp. 3-6. 32[10]TSN, 8 June 2004, pp. 4-5. 33[11]TSN, 9 December 2003, pp. 4-5. 34[12]TSN, 23 June 2004, pp. 3-5.

Considering that the accused has undergone preventive imprisonment, he shall be credited in the service of his sentence with the time he has undergone preventive imprisonment subject to the conditions provided for in Article 29 of the Revised Penal Code. SO ORDERED.35[13]

The trial court found the testimony of the victim to be credible, and disregarded appellants defenses of alibi and denial. The trial court pointed out that the veracity of the rape accusation was manifested by the following facts: (1) the spontaneous identification of appellant as the one who raped her; (2) the immediate revelation of her predicament to her aunt the following day; (3) the immediate reporting of the incident to the barangay captain; (4) the immediate reporting thereof to the police; (5) the immediate submission to a medical examination; and (6) the corroboration between finding of the medico-legal expert and ANAs testimony.36[14] The case was directly elevated to this Court for automatic review. However, pursuant to our decision in People v. Mateo,37[15] this case was transferred to the Court of Appeals which affirmed with modification the decision of the trial court, thus: WHEREFORE, premises considered, the instant appeal is DENIED. The

assailed Decision dated December 14, 2004 of the RTC of Calabanga, Camarines Sur, Branch 63, in Criminal Case No. RTC-02-744 is AFFIRMED with MODIFICATION further ordering accused-appellant to pay complainant exemplary damages in the

35[13]CA rollo, p. 39. 36[14]Id. at 33. 37[15]G.R. Nos. 147678-87, 7 July 2004, 464 SCRA 640.

amount of P25,000.00 in addition to the award of P50,000.00 in civil indemnity and P50,000.00 moral damages.38[16] Appellant filed a notice of appeal on 18 July 2007.39[17] In the Resolution of 12 March 2008, we accepted the appeal and ordered the respective parties to file their supplemental briefs.40[18] Both appellant and the Office of the Solicitor General (OSG) manifested that they would adopt their briefs previously filed before the appellate court.41[19] Thereafter, the case was deemed submitted for decision. Appellant maintains his innocence and casts doubt on ANAs credibility because of the alleged inconsistencies in her testimony. In a prosecution for rape, the victims credibility becomes the single most important issue. For, when a woman says she was raped, she says in effect all that is necessary to show that rape was committed; thus, if her testimony meets the test of credibility, the accused may be convicted on the basis thereof.42[20] In this case, the test of credibility of the rape victim was more than sufficiently met. ANAs account of the rape was spontaneous, categorical and detailed. 43[21] As observed by the trial court, she testified in a straightforward manner on the rape incident from its start until its consummation.44[22]

38[16]Rollo, p. 11. 39[17]Id. at 12. 40[18]Id. at 16-17. 41[19]Id. at 20-23; 28-30. 42[20]People v. Capareda, G.R. No. 128363, 27 May 2004, 429 SCRA 301, 323; People v. Galido, G.R. Nos. 148689-92, 30 March 2004, 426 SCRA 502, 516. 43[21]TSN, 8 April 2003, pp. 4-10.

Moreover, the trial court noted that the inconsistencies adverted to by appellant were not that substantial which would lead to discredit her testimony. 45[23] ANAs apparent conflicting testimonies with respect to the order of injuries inflicted on her, as well as the time she claimed she told a friend about her plight are not material to the identification of appellant as the perpetrator. The failure of a witness to recall each and every detail of an occurrence may even serve to strengthen rather than weaken his or her credibility because it erases any suspicion of a coached or rehearsed testimony.46[24] Appellant argues that it was improbable for ANA to identify the perpetrator because the house was without electricity and that it was dark. We are not persuaded. As correctly observed by the Office of the Solicitor General (OSG), ANA testified that appellants face was illuminated by the light coming from the neighbors house. Besides, ANA was familiar with appellant as the latter had been known to her for quite some time.47[25] Furthermore, while it is true that ANA was lying down and thus could not have seen the face of her assailant at the first instance, she nevertheless was able to identify him when the latter mounted her.48[26] Appellants contention that ANA could not have seen the face of her assailant as she admitted that she never glanced at him after the assault was consummated, should likewise fail because at the time appellant supposedly ordered ANA to turn her back on him, ANA had already seen and identified his face and the rape had already been consummated. Appellant also questions the failure of ANA to resist the alleged advances considering that the latter is taller and bigger than him.49[27] Against this question, the OSG argues that appellant, a male, is more powerful than ANA in terms of physical strength despite the fact that they are of the same height.50[28] It bears stressing that 44[22]CA rollo, p. 78. 45[23]Id. 46[24]Rivera v. People, G.R. No. 138553, 30 June 2005, 462 SCRA 350, 359-360. 47[25]TSN, 8 April 2003, p. 6. 48[26]Id. at 5. 49[27]CA rollo, p. 55. 50[28]Id. at 99.

the absence of struggle on the part of the rape victim does not necessarily negate the commission of the offense. Failure to shout for help or fight back cannot be equated to voluntary submission to the criminal intent of the accused. It should be remembered that ANA was first threatened by appellant with a spoon which the latter poked at her neck. Fear, in lieu of force or violence, is subjective. Addressed to the mind of the victim of rape, its presence cannot be tested by any hard-and-fast rule but must instead be viewed in the light of the perception and judgment of the victim at the time of the commission of the crime. In addition, as the Court has repeatedly observed, people act differently to a given stimulus or type of situation, and there is no standard form of behavioral response that can be expected from those who are confronted with a strange, startling or frightening experience.51[29] Appellant claims that his non-flight is an indication of his innocence. We do not agree. Non-flight is not proof of innocence. The culprit of a crime may choose to remain within the area of the crime scene because he lives there and flight may only raise suspicions against him. No case law exists to support appellant's claim that his nonflight precludes the possibility that he is guilty of the crime. To accept the defense offered by appellant would allow people to commit a crime and avoid liability by simply choosing to stay in the crime scene afterwards.52[30] Appellants alibi was properly rejected by the lower courts. For alibi to prosper, appellant must not only prove that he was somewhere else when the crime was committed. He must also convincingly demonstrate the physical impossibility of his presence at the locus criminis at the time of the incident.53[31] In the instant case, appellant failed to show that it would have been physically impossible for him to be at the scene of the crime on the occasion of the rape. All told, there is no cogent reason to deviate from the jurisprudential precept that findings of the trial court on the credibility of witnesses and their testimonies are accorded with great respect. As a final point, the Court observes that the appellate court erred in awarding exemplary damages. There is no showing that any aggravating or qualifying

51[29]People v. Lustre, 386 Phil. 390, 397-398 (2000). 52[30]People v. Sumalinog, Jr., 466 Phil. 637, 652 (2004). 53[31]People v. Carpio, G.R. No. 170840, 29 November 2006, 508 SCRA 604, 627.

circumstance attended the commission of the rape; hence, the award of exemplary damages has no factual and legal basis.54[32] WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals finding appellant Jaime del Castillo guilty of rape and sentencing him to suffer the penalty of reclusion perpetua is AFFIRMED, with the MODIFICATION that appellant is ordered to pay ANA (to be identified through the Information) P50,000.00 as civil indemnity and, in addition, P50,000.00 as moral damages. The award of P25,000.00 as exemplary damages is DELETED. SO ORDERED.

DANTE O. TINGA Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING Associate Justice Chairperson

CONCHITA CARPIO MORALES Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

54[32]People v. Layoso, 443 Phil. 827, 840 (2003).

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 Courts Division.

LEONARDO A. QUISUMBING Associate Justice Chairperson, Second Division

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby certified 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 Courts Division.

REYNATO S. PUNO Chief Justice

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 190616 Present: CORONA, C.J., Chairperson, VELASCO, JR.,

- versus -

LEONARDO-DE CASTRO, DEL CASTILLO, and PEREZ, JJ. Promulgated:

PASTOR LLANAS, JR. y BELCHES, Accused-Appellant.

June 29, 2010

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

DECISION

VELASCO, JR., J.:

On September 26, 2005, in the Regional Trial Court (RTC) of Calabanga, Camarines Sur, three (3) separate informations for rape under Article 266-A in relation to Art. 266-B of the Revised Penal Code were filed against herein appellant Pastor Llanas, Jr. The informations, docketed as Criminal Case Nos. RTC 05-1035, 05-1043, and 05-1044, were eventually raffled to Branch 63 of the court.
The first information, Criminal Case No. RTC 05-1035, reads as follows:

That on or about August 4, 2005 at 1:00 P.M., in Bgy. Cabanbanan, Municipality of Calabanga, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, willfully, unlawfully and feloniously by force or intimidation has carnal knowledge with his daughter [FE], 15 years old against her will to her damage and prejudice. The crime is committed with the following attendant aggravating/qualifying circumstances: The victim is under 18 and the offender is her father. ACTS CONTRARY TO LAW.55[1]

The other informations for the same crime were worded similarly, as above, but reflected the years 1998 and 1999 as the date of the commission of the crime and the corresponding age of FE,56[2] the private offended party, as 9 and 10 years old, respectively.
55[1] Rollo, p. 2. 56[2] The identity of the victims or any information tending to establish or compromise their identities, as well as those of their immediate family or household members, shall be withheld pursuant to RA No. 7610, An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination, and for Other Purposes, RA No. 9262, An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims;, and Sec. 40 of A.M. No. 04-10-11-SC, known as Rule on Violence Against Women and Their Children effective November 15, 2004; People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419.

When arraigned, appellant, assisted by counsel, pleaded not guilty to all the charges contained in the three (3) informations. During pre-trial, the parties stipulated on the following: Appellant is legally married to LUCY, FEs mother, and that he is the father of FE, his and LUCYs only child. Marked at that time as Exh. B for the prosecution was a xerox copy of FEs Birth Certificate and Exh. C, a xerox copy of the LUCYs and appellants Certificate of Marriage. In the ensuing joint trial, the prosecution presented in evidence the testimony of FE, her examination covering the three cases, LUCY, the municipal civil registrar of Calabanga and the examining physician. As summarized in the decision57[3] of the Court of Appeals (CA) subject of review, the relevant antecedents facts are as follows: The first incident happened sometime in 1998 when FE was only a 9-year old grade III schoolgirl.58[4] On the fateful day of that year, appellant tricked FE into going with him to a camalig to play. Once inside, appellant laid her on the bamboo floor and removed her garments. In all her innocence, FE asked why she is being undressed only to be told by the appellant not to report anything, else he would kill her and LUCY. After taking off his clothes, appellant parted FEs legs, went on top of her, inserted his sex organ to hers and made the usual push-and-pull routine. After he was done, appellant left FE crying in pain. At home later, FE, remembering the threat her father made, kept her peace.

57[3] Rollo, pp. 2-14. 58[4] The OSG places the age of AAA in 1998 at 8 years old.

One day the following year, appellant again sexually abused FE, now 10 years old. In the witness box, FE could not recall whether the incident happened in the morning or in the afternoon, but she distinctly remembered that it occurred in 1999, being in Grade IV at that time and it was the year the family moved to another house in the same barrio. Then on August 4, 2005, at around 1:00 oclock in the afternoon, while LUCY was out of the house, appellant approached FE, now 15 years old, to ask her to play. This remark frightened FE, as this was the same line used when she was abused in the past. FE spurned the invitation to play, but the insistent appellant told her that: para lang yan. Its just that. You are not going to be pregnant because Im withdrawing my semen.59[5] There and then, appellant brought her to a room, stripped her of her shorts and panty and likewise removed his garments. What happened next was a virtual repeat of what appellant did in 1998 and 1999 after he asked FE to play. On August 12, 2005, while LUCY was out selling camote, appellant made an attempt, but failed, to again ravish FE. Responding later to LUCYs questioning why she was crying, FE disclosed everything to her mother. Thereafter, LUCY, with FE in tow, proceeded to the local police station to report about the incidents, after which LUCY repaired to the local National Bureau of Investigation office to have FE physically examined. The records of the physical examination conducted by Dr. Jane P. Fajardo yielded the following entries: no extragenital physical injury x x x on the body of [FE] at the time of examination; old healed hymenal lacerations present; and
59[5] Rollo, p. 5.

hymenal orifice wide x x x as to allow complete penetration by an average sized adult male organ in full erection without producing hymenal injury . Per Dr. Fajardos account, the old hymenal laceration could, in all probability, have been caused by sexual intercourse, occurring a month or even years before the examination. Appellant testified for the defense. He denied allegations about raping FE in 1998 and 1999. He also professed innocence of the August 4, 2005 rape incident, being, according to him, then in Brgy. Quinale, Calabanga working with one Roger Evangelista from August 3 to August 10, 2005. Evangelista, in the witness box, lent his voice to buttress what essentially was appellants defenses of alibi and denial proffered in relation to the August 2005 rape charge. On June 7, 2007, the RTC rendered a joint decision finding appellant guilty of raping FE, her minor legitimate child, a crime which, as thus specially qualified, is punishable under Art. 266-B of the Penal Code by death, as a single penalty. In view, however, of the passage of Republic Act No. (RA) 9346,60[6] the RTC sentenced appellant to suffer the penalty of reclusion perpetua for each count of qualified rape. In full, the dispositive portion of the trial courts decision reads:
WHEREFORE, in view of the foregoing, the prosecution having proven the guilt of Pastor Llanas, Jr. Y Belches beyond reasonable doubt of the offense of rape, said accused is convicted of the offense charged and to suffer the following penalties: 1. In Crim. Case No. RTC 05-1035, accused is hereby sentenced to suffer the penalty of reclusion perpetua. He is likewise ordered to pay [FE] civil liability in the amount of P75,000.00; P75,000.00 for moral damages, exemplary damages in the amount of P25,000. 00, and to pay the cost.

60[6] An Act Abolishing the Death Penalty in the Philippines.

2.

In Crim. Case No. RTC 05-1043, accused is hereby sentenced to suffer the penalty of reclusion perpetua. He is likewise ordered to pay [FE] civil liability in the amount of P75,000.00; P75,000.00 for moral damages, exemplary damages in the amount of P25,000. 00, and to pay the cost.

3.

In Crim. Case No. RTC 05-1044 accused is hereby sentenced to suffer the penalty of reclusion perpetua. He is likewise ordered to pay [FE] civil liability in the amount of P75,000.00; P75,000.00 for moral damages, exemplary damages in the amount of P25,000. 00, and to pay the cost.

Considering that accused has undergone preventive imprisonment, he shall be credited in the services of his sentence with the time he has undergone preventive imprisonment subject to the conditions provided for by law. SO ORDERED. 61[7] In time, appellant went to the Court of Appeals (CA) on appeal on the lone submission that THE TRIAL COURT GRAVELY ERRED IN FINDING [HIM] GUILTY BEYOND REASONABLE DOUBT OF THREE (3) COUNTS OF RAPE.

Equally convinced of FEs credibility and finding appellants arguments in support of his defense untenable, if not downright preposterous, the CA by Decision62[8] of October 26, 2009 affirmed appellants conviction for three counts of qualified rape and the imposition of the main penalty for each crime, with the qualification, however, that appellant should be ineligible for parole. The fallo of the appellate courts decision reads:

61[7] CA rollo, pp. 71-83. Penned by Judge Freddie D. Balonzo. 62[8] Penned by Associate Justice Pampio A. Abarintos and concurred in by Associate Justices Juan Q. Enriquez and Francisco Acosta.

IN LIGHT OF ALL THE FOREGOING, the appeal is hereby DENIED. The Joint Decision of the Regional Trial Court, Branch 63, Calabanga, Camarines Sur, convicting the accused-appellant of the crime of rape under Article 266-A and Article 266-B of the Revised Penal Code in Criminal Cases Nos. RTC 05-1035, RTC 05-1043 and RTC 05-1044 is hereby AFFIRMED with MODIFICATION. For each count, accused-appellant Pastor Llanas, Jr. is sentenced to suffer the penalty of reclusion perpetua without eligibility for parole. SO ORDERED.63[9] Therefrom, appellant filed a notice of appeal, to which the CA, per its resolution of December 2, 2009, gave due course. The case having been elevated to the Court, we now review the RTCs and CA parallel findings. Appellant seeks acquittal, predicating his plea principally on the issue of: (1) the credibility of the prosecutions key witness; and (2) the sufficiency of the Peoples evidence.

Among other things, appellant maintains that the courts a quo erred in giving full credence and reliance on FEs statements, it being his contention that her account of what purportedly happened reeks with inconsistencies and does not jibe with the normal flow of things. As argued, it is unnatural for a person placed in a certain situation, as what FE found herself in, not to struggle or at least offer some resistance to ward off the advances of an unarmed person. And as further asserted, it is contrary to human experience that FE did not cry for help when she was allegedly molested in the family home.
Training his sights on another angle, appellant contends that the physical evidence ran counter to FEs allegations of rape. If, as FE alleged, she was sexually abused in August 4, 2005, then the results of her medical examination undertaken a week after the rape incident would have had demonstrated signs of extra genital physical injury, contusion or abrasion. What the medico legal noted, however, were old healed hymenal lacerations, which, appellant theorized, could have been sustained through promiscuity64[10] of her daughter.

63[9] Rollo, pp. 2-14. 64[10] Id. at 68.

The Court resolves to affirm the CA decision. Penile or organ rape is, in context, committed when the accused has carnal knowledge of the victim by force, threat or intimidation, or when the victim is deprived of reason or is unconscious, or when the victim is under 12 years of age.65[11] Rape is essentially an offense of secrecy involving only two persons and not generally attempted save in secluded places far from prying eyes. By the intrinsic nature of rape cases, the crime usually commences solely upon the word of the offended girl herself and conviction invariably turns upon her credibility, as the Peoples single witness of the actual occurrence. 66[12] Accordingly, certain guiding principles have been formulated in resolving rape cases. Foremost of these: an offended womans testimony hurdling the exacting test of credibility would suffice to convict.67[13] In fine, the credibility of the victim is always the single most important issue in prosecution for rape.68[14] Withal, in passing upon the credibility of the victim-witness, the highest degree of respect must be afforded to the evaluation and findings of the trial court.69[15] Without hesitation, FE had pointed an accusing finger at the appellant, her father no less, as the person who forced himself on her on at least three occasions and who caused her pain when he inserted his sex organ into her vagina. As determined by the trial court, FEs testimony on the fact of molestation was given in a straightforward and candid manner, unshaken by rigid cress -examination that indeed she has been raped by her father in 3 occasions which are the subject of
65[11] REVISED PENAL CODE, Art. 266-A; People v. Barangan, G.R. No. 175480, October 2, 2007, 534 SCRA 570. 66[12] People v. Corpuz, G.R. No. 168101, February 13, 2006, 482 SCRA 435, 444. 67[13] People v. Luceriano, G.R. No. 145223, February 11, 2004; 422 SCRA 486. 68[14] People v. Ceballos Jr., G.R. No. 169642, September 14, 2007, 533 SCRA 493. 69[15] People v. Balonzo, G.R. No. 176153, September 21, 2007, 533 SCRA 760.

these cases.70[16] There is, thus, no cause or reason to withhold credence on her testimony, absent, as here, ill motive on her part that would becloud the veracity of her account. As the Court has often repeated, the issue of credibility is a matter best addressed by the trial court which had the chance to observe the demeanor of the witnesses while testifying. For this reason, the Court accords great weight and

even finality to factual findings of the trial court, especially its assessments of the witnesses and their credibility, barring arbitrariness or oversight of some fact or circumstance of weight and substance.71[17] Testimonies of rape-victims normally carry and are given full weight and credit, since when a girl, particularly if she is a minor, says that she has been raped, she says in effect all that is necessary to show that rape has in fact been committed. When the offended party is of tender age and immature, courts are inclined to give credit to her account of what transpired, considering not only her relative vulnerability but also the shame to which she would be exposed if the matter to which she testified is not true.72[18] Youth and immaturity are generally badges of truth and sincerity.73[19] It cannot be over-emphasized enough that the third rape incident occurred when FE was barely out of her teens. Be that as it may and considering that her attacker held moral and physical dominion over, and had in fact threatened, her, it is understandable if FE was, during that time, cowed into submitting to his fathers
70[16] CA rollo, p. 78. 71[17] People v. Virrey, G.R. No. 133910, November 14, 2001, 368 SCRA 623. 72[18] Llave v. People, G.R. No. 166040, April 26, 2006, 488 SCRA 376. 73[19] People v. Bon, G.R. No. 166401, October 30, 2006, 506 SCRA 168; citing People v. Guambor, G.R. No. 152183, January 22, 2004, 420 SCRA 677, 682.

beastly bent. In light of this perspective, the absence of a struggle or an outcry from FE, if this really were the case vis--vis the 2005 rape incident, does not, standing alone, preclude the commission of the crime. As we have repeatedly held, there is no standard norm of behavior for victims of rape immediately before and during the forcible coitus and its ugly aftermath. This is especially true with minor rape victims.74[20] Appellant has made much of the report on the medical examination conducted on FE showing that it did not complement FEs allegations of rape.75[21] Appellants obvious thesis that a minor rape victim always results in vaginal injury rests on a lot of oversimplification and, hence, must be eschewed. To start with, full penile penetration, which would ordinarily result in hymenal rupture or laceration of the vagina of a girl of tender years, is not a consummating ingredient in the crime of rape. The mere knocking at the door of the pudenda by the accuseds penis suffices to constitute the crime of rape.76[22] And given FEs unwavering testimony as to her harrowing ordeal in the hands of appellant, the Court cannot accord merit to the latters argument that the lack of patent physical manifestation of rape weakens the case against him. The medical report on FE is only corroborative of the finding of rape. The absence of fresh external signs or physical injuries on the complainants body does not necessarily negate the

74[20] People v. Gayomma, G.R.No. 128129, September 30, 1999, 315 SCRA 639, 645. 75[21] CA rollo, pp. 46-63. 76[22] People v. Plurad, G.R. Nos. 138361-63, December 2, 2002, 393 SCRA 306.

commission of rape,77[23] hymenal laceration and like vaginal injuries not being, to repeat, an element of the crime of rape.78[24] What is more, the foremost consideration in the prosecution of rape is the victims testimony and not the findings of the medico-legal officer. In fact, a medical examination of the victim is not indispensable in a prosecution for rape; the victims testimony alone, if credible, is, to repeat, sufficient to convict. 79[25] Appellants defenses of denial and alibi, centering on the argument that it was impossible for him to commit the crime of rape against his daughter on August 4, 2005 as he was in Brgy. Quinale from August 3, to August 10, 2005, deserve scant consideration. As correctly ruled by the RTC, appellant failed to present convincing proof that it was physically impossible for him to be at the locus criminis on August 4, 2005. The trial court wrote:

x x x Likewise the accused should not only prove that he was not at the place of the crime but should likewise prove that it is impossible for him to be at the place of the crime. Barangay Quinale is about 7 kilometers away from Cabanbanan and the accused did not prove that is impossible for him to be at Cabanbanan from Quinale.80[26]

Appellants attempt, in his bid for exculpation, to ride on FEs inability to recall precisely what time of the day the 2005 rape transpired is puerile. Victims of rape hardly retain in their memories the dates and manner they were violated
77[23] People v. Espino, Jr., G.R. No. 176742, June 17, 2008, 554 SCRA 682; citing People v. Boromeo, G.R. No. 150501, 3 June 2004, 430 SCRA 533, 546. 78[24] Id.; citing People v. Esteves, 438 Phil. 687, 699 (2002). 79[25] People v. Boromeo, G.R. No. 150501, June 3, 2004, 430 SCRA 533. 80[26] CA rollo, p. 80.

and it is for this reason that the exact date of the commission of the rape is not an element of the crime.81[27] The gravamen of the offense is carnal knowledge of a woman without her consent.
In all then, we find no reason to disturb the findings and the case disposition of the CA, confirmatory of that of the trial court. The imposition of the penalty of reclusion perpetua, instead of death, for each count of qualified rape, on appellant who shall not be eligible for parole under the Indeterminate Sentence Law is in order in light of R.A. 9346 or the the AntiDeath Penalty Law, which prohibits the imposition of the death penalty.82[28]

The award of PhP 75,000 as civil indemnity ex delicto and the same amount as moral damages for each count of qualified rape is in line with existing case law.83[29] In rape cases, the concurrence, as here, of the victims minority (under 18) and her relationship with the offender is a special qualifying circumstance for which the law prescribes the penalty of death under Art. 266-B84[30] of the
81[27] People v. Tupaz, G.R. No. 136141, October 9, 2002. 82[28] Section 1. The imposition of the penalty is hereby prohibited. Accordingly, [RA] 8177 x x x and all other laws x x x insofar as they impose the death penalty are hereby repealed or amended accordingly. Section. 2. In lieu of the death penalty, the following shall be imposed: (a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code. x x x Section 3. Persons convicted of offenses punished with reclusion perpetua or whose sentences will be reduced to reclusion perpetua shall not be eligible for parole under Act. No. 4103, otherwise known as the Indeterminate Sentence Law, as amended. 83[29] People v. Daco, G.R. No. 168166, October 10, 2008, 568 SCRA 348. 84[30] Art, 266-B Penalties. Rape under paragraph 1 of the next preceding article shall be punishable by reclusion perpetua. x x x The death shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances:

Revised Penal Code. While the new law prohibits the imposition of death, the penalty provided for a heinous crime is still death and qualified rape is still a heinous offense.85[31] The award of exemplary damages is also proper not only to deter outrageous conduct,86[32] but also in view of the aggravating circumstances of minority and relationship surrounding the commission of the offense, 87[33] both of which were alleged in the information and proved during the trial. To conform to current jurisprudence,88[34] PhP 30,000 for each count of rape ought to be awarded, upped from the PhP 25,000 given by the courts a quo. WHEREFORE, the appealed decision of the Court of Appeals dated October 26, 2009 in CA-G.R. CR-H.C. No. 02878 is AFFIRMED with the MODIFICATION that the award of exemplary damages for each count of rape is increased to PhP 30,000. Costs against accused-appellant.

SO ORDERED.

1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent x x x or the common law spouse of the parent of the victim. 85[31] People v. Bidoc, G.R. No. 169430, October 31, 2006, 506 SCRA 481; citing People v. Sambrano, G.R. No. 143708, February 24, 2003, 398 SCRA 106. 86[32] CIVIL CODE, Art. 2229 states: Exemplary or corrective damages are imposed by way of example or correction for the public good. 87[33] CIVIL CODE, Art. 2230 states: Exemplary damages may be imposed when the crime was committed with one or more aggravating circumstances. 88[34] People v. Dalisay, G.R. No. 188106, November 25, 2009, 605 SCRA 807; People v. Perez, G.R. No. 189303, October 13, 2009.

PRESBITERO J. VELASCO, JR. Associate Justice

WE CONCUR:

RENATO C. CORONA Chief Justice Chairperson

TERESITA J. LEONARDO-DE CASTRO Associate Justice

MARIANO C. DEL CASTILLO 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 case was assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONA Chief Justice

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 183709 December 6, 2010

PEOPLE OF THE PHILIPPINES, Appellee, vs. MANUEL "AWIL" POJO, Appellant. DECISION DEL CASTILLO, J.: On appeal is the January 28, 2008 Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 02502 which affirmed the September 4, 2006 Decision2 of the Regional Trial Court of Calabanga, Camarines Sur, Branch 63, finding appellant Manuel "Awil" Pojo guilty beyond reasonable doubt of the crime of statutory rape. Factual Antecedents On March 16, 2004, an Information3 was filed charging appellant with the crime of statutory rape committed as follows: That on or about the 20th day of October, 2003, at around three oclock in the afternoon in x x x, Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused willfully, unlawfully, and feloniously through force or intimidation [had] carnal knowledge [of] "AAA,"4 ten years old, against her will, to her damage and prejudice. ACTS CONTRARY TO LAW. On arraignment, appellant pleaded not guilty to the charge. Trial thereafter ensued. Version of the Prosecution "AAA" testified that appellant is the common-law husband of her mother. On October 20, 2003, at about three oclock in the afternoon, her mother sent her to bring food to the appellant who was working at the camote plantation of a certain Tuason. While thereat, appellant made her lie on the ground which he covered with banana leaves. After ordering "AAA" to remove her shorts and panty, he also removed his undergarments and inserted his penis into the vagina of "AAA." However, appellants penis failed to completely penetrate "AAAs" vagina but merely touched the same. However, "AAA" still felt pain in her private organ. After a while, appellant stood up and ordered "AAA" to go home. "AAA" however noticed a whitish substance coming out of appellants private part.

Upon reaching their house, "AAA" immediately relayed the incident to her sibling and mother. Thereupon, they reported the incident to the police authorities and subjected "AAA" to medical examination. Version of the Defense Appellant admitted that "AAA" is the daughter of his common-law spouse. However, he denied raping her on October 20, 2003. He claimed that he left Camarines Sur on October 20, 2002. On October 20, 2003, he was in Batangas working in a sugarcane plantation of his cousin, Mariano Ate. He also claimed that "AAAs" motive in filing the rape charge against him was to force him to marry her mother. Ruling of the Regional Trial Court The trial court lent credence to the version of the prosecution. It noted that rape was consummated although there was no complete penetration considering the categorical statement of "AAA" that she felt the penis of the appellant touch her private part. "AAA" was only 10 years old when the rape incident transpired; and only 12 years old when placed on the witness stand. According to the trial court, "AAA" could not have concocted the rape incident if it did not actually transpire. Being a minor, she lacked the sophistication to fabricate the crime of rape against the appellant. The trial court brushed aside the defense of denial of the appellant. It held that "AAAs" positive testimony that it was appellant who sexually assaulted her prevails over the bare denial of the appellant. It found that appellants claim that he was in Batangas at the time the crime of rape was committed was self-serving and uncorroborated. The defense did not present anyone who could testify that appellant was indeed in Batangas on October 20, 2003 and that he was working in a sugarcane plantation. Finally, the trial court held that although the minority of the victim was proven by the presentation of her birth certificate, appellant could only be found liable of statutory rape. It noted that although it was proven during trial that appellant was the common-law husband of "AAAs" mother, such fact was not alleged in the Information. The dispositive portion of the Decision of the trial court reads: WHEREFORE, in view of the foregoing, the prosecution having proven the guilt of the accused beyond reasonable doubt of the crime of statutory rape, accused is found guilty of the crime as charged. He is therefore, sentenced to suffer the penalty of Reclusion Perpetua and to pay the private complainant "AAA" the amount of P50,000.00 as civil liability, P50,000.00 as moral damages, and to pay the cost. SO ORDERED.5 Ruling of the Court of Appeals

The appellate court affirmed in toto the Decision of the trial court. It noted that the trial court correctly appreciated and evaluated the facts of the case. It also found unbelievable the appellants claim that "AAAs" motive in filing the case was to force him to marry her mother. According to the CA, "AAA" was too young to be able to think of that elaborate scheme. Likewise, the appellate court held that appellants alibi does not inspire belief as he failed to present any independent evidence to establish his whereabouts on October 20, 2003. Hence, this appeal. On September 3, 2008, we notified both parties that they may file their respective supplemental briefs. However, both parties manifested that they are no longer filing their briefs. Our Ruling The appeal lacks merit. In its attempt to exonerate herein appellant, the defense tries to impute ill motive on the part of "AAA" in filing the instant case. The defense claims that "AAA" harbors ill feelings against the appellant because when the latter started living-in with "AAAs" mother, the latter no longer had time to take care of "AAA" as she devoted most of her time to appellant. We are not persuaded. This line of reasoning totally contradicts the earlier theory adopted by the defense. It will be recalled that when the appellant testified before the trial court, he claimed that "AAAs" motive in filing the charge of rape was to force him to marry her mother. However, in its Appellants Brief, the defense now argues that "AAA" harbored ill feelings towards the appellant because her mother devoted most of her time to the appellant thereby depriving "AAA" and her siblings the care and attention that they deserve from their mother. If indeed this is true, then instead of wanting the appellant to marry her mother, "AAA" would instead have wished for appellant to leave so that their mother could pay more attention to them. We also find no merit in the contention of the defense that "AAAs" delay in reporting the incident should have cautioned the trial court from lending credibility to her testimony.lawphi1 According to the defense, it was only on November 17, 2003, or 27 days after the alleged commission of the rape, that "AAA" signed her affidavit. We consider a lapse of 27 days reasonable for "AAA" to prepare and sign her affidavit. In several cases where the delay consisted of years and months, we still considered the same reasonable and did not in any way diminish the credibility of the complaining witness. In the instant case, "AAAs" "delay" of 27 days did not diminish in any manner her credibility. Said "delay" was inconsequential and did not touch on the elements of the crime. It remains un-rebutted that on October 20, 2003, appellant had carnal knowledge of "AAA" through force and intimidation and without her consent. Also, "AAA" immediately reported the incident to her mother and sibling. On October 21, 2003, or merely a day after the rape was committed, the same was reported to the police authorities. Moreover, "AAA" satisfactorily explained the said "delay." She testified that she and her mother went to the police authorities several times but it was only on November 17, 2003 that she signed her affidavit.

Finally, both the trial court and the appellate court correctly disregarded appellants alibi. Our ruling in People v. Jimenez6 is instructive, thus: It is an established jurisprudential rule that a mere denial, without any strong evidence to support it, can scarcely overcome the positive declaration by the victim of the identity and involvement of appellant in the crimes attributed to him. The defense of alibi is likewise unavailing. Firstly, alibi is the weakest of all defenses, because it is easy to concoct and difficult to disprove. Unless substantiated by clear and convincing proof, such defense is negative, self-serving, and undeserving of any weight in law. Secondly, alibi is unacceptable when there is a positive identification of the accused by a credible witness. Lastly, in order that alibi might prosper, it is not enough to prove that the accused has been somewhere else during the commission of the crime; it must also be shown that it would have been impossible for him to be anywhere within the vicinity of the crime scene. As correctly observed by the lower courts, appellants claim that he was in Batangas on October 20, 2003 deserves scant consideration at all for being self-serving and for lack of any corroborative evidence to establish the same. The Penalty The trial court, as affirmed by the CA, correctly found appellant guilty of statutory rape. Under Article 266-A(1)(d) of the Revised Penal Code, "[r]ape is committed by a man who shall have carnal knowledge of a woman x x x when the offended party is under twelve (12) years of age x x x even though none of the circumstances mentioned above be present." In this case, we find that the prosecution satisfactorily established the fact that appellant had carnal knowledge of "AAA" who was only 10 years of age. Moreover, the courts below correctly imposed the penalty of reclusion perpetua on the appellant pursuant to Article 266-B(1st par.). The Damages The award of P50,000.00 as civil indemnity and another P50,000.00 as moral damages in favor of the victim is in accordance with prevailing jurisprudence.7 In addition, however, "AAA" is entitled to an award of exemplary damages.8 The qualifying circumstance that appellant was the common-law spouse of "AAAs" mother was duly established during trial although it was not properly alleged in the Information. Although appellant may not be convicted of qualified rape, said circumstance however may be taken into account in the award of exemplary damages. 9 Jurisprudence10 dictates that exemplary damages in the amount of P30,000.00 be further awarded to "AAA." WHEREFORE, the appeal is DENIED. The January 28, 2008 Decision of the Court of Appeals in CA-G.R. CR No. 02502 which affirmed the September 4, 2006 Decision of the Regional Trial Court of Calabanga, Camarines Sur, Branch 63, finding appellant Manuel "Awil" Pojo guilty beyond reasonable doubt of the crime of statutory rape, and sentencing him to suffer the penalty of reclusion perpetua and to pay "AAA" the amounts of P50,000,00 as civil indemnity and P50,000.00 as moral damages, is AFFIRMED with modification that appellant is further ordered to pay "AAA" exemplary damages in the amount of P30,000.00.

SO ORDERED. MARIANO C. DEL CASTILLO Associate Justice WE CONCUR: RENATO C. CORONA Chief Justice Chairperson TERESITA J. LEONARDO-DE CASTRO Associate Justice ROBERTO A. ABAD* Associate Justice

JOSE PORTUGAL PEREZ Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified 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 Courts Division. RENATO C. CORONA Chief Justice

Footnotes
*

In lieu of Associate Justice Presbitero J. Velasco, Jr., per Special Order No. 917 dated November 24, 2010.
1

CA rollo, pp. 93-98; penned by Associate Justice Agustin S. Dizon and concurred in by Associate Justices Amelita G. Tolentino and Lucenito N. Tagle.
2

Id. at 28-35; penned by Judge Freddie D. Balonzo. Records, p. 1.

The identity of the victim or any information which could establish or compromise her identity, as well as those of her immediate family or household members, shall be withheld pursuant to Republic Act No. 7610, An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination, and for Other Purposes; Republic Act No. 9262, An Act Defining Violence Against Women and

Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for Other Purposes; and Section 40 of A.M. No. 04-10-11-SC, known as the Rule on Violence Against Women and Their Children, effective November 5, 2004.
5

CA rollo, p. 35.

G.R. No. 170235, April 24, 2009, 586 SCRA 580, 597, citing People v. Nieto, G.R. No. 177756, March 3, 2008, 547 SCRA 511.
7

People v. Pabol, G.R. No. 187084, October 12, 2009, 603 SCRA 522, 532. Id. at 532-533. People v. Rante, G.R. No. 184809, March 29, 2010. Id. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

10

G.R. No. 182094

August 18, 2010

PEOPLE OF THE PHILIPPINES, Appellee, vs. EFREN ALFONSO, Appellant. DECISION DEL CASTILLO, J.: A father, accused of raping his two minor daughters, is before us praying for his acquittal. On appeal is the July 31, 2007 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02312 which affirmed with modifications the Joint Decision2 of the Regional Trial Court (RTC) of Calabanga, Camarines Sur, Branch 63, finding appellant Efren Alfonso guilty of Rape by Sexual Assault under Article 266-A(2) of the Revised Penal Code (RPC) in Criminal Case No. RTC-'02-735 and Statutory Rape under Article 266-A(1)(d) in Criminal Case No. RTC-'02-736. Factual Antecedents On October 1, 2002, two Informations were filed charging appellant with violations of Article 266-A(2) and 266-A(1)(d) of the RPC. The Informations read:

Crim. Case No. RTC02-735 The undersigned Assistant Provincial Prosecutor x x x accuses EFREN ALFONSO [of] the crime of RAPE defined and penalized under Art. 266-A, (2) of the Revised Penal Code as amended by Republic Act 8353 and committed as follows: That on or about the 7th day of April 2002, in x x x Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, willfully, unlawfully and feloniously committed an act of sexual assault upon his three (3)[-]year old daughter, "AAA"3 by inserting his finger into the vagina of the said victim to her damage and prejudice. The crime is committed with the following attendant aggravating/ qualifying circumstances: The victim is a child below seven years old and the offender is the father of the victim. ACTS CONTRARY TO LAW.4 Crim. Case No. RTC02-736 The undersigned Assistant Provincial Prosecutor x x x accuses EFREN ALFONSO [of] the crime of RAPE, defined and penalized under Art. 266-A, (1)(d) of the Revised Penal Code as amended by Republic Act 8353 and committed as follows: That on or about the 7th day of April 2002, in x x x Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, willfully, unlawfully and feloniously succeed[ed] in having carnal knowledge [of] "BBB," his [Five (5)-year] old daughter to her damage and prejudice. The crime is committed with the following attendant aggravating/ qualifying circumstances: The victim is a child below seven years old and the offender is the father of the victim. ACTS CONTRARY TO LAW.5 On arraignment, appellant pleaded not guilty to both charges.6 During pre-trial, appellant admitted that "AAA" and "BBB" are his legitimate children and who were then only 3 and 5 years old, respectively, on April 7, 2002.7 Thereafter, the cases were jointly tried.8 Version of the Prosecution The prosecution's first witness was "CCC," the mother of "AAA" and "BBB." "CCC" testified that on April 6, 2002, she and her sons "DDD" and "EEE" went to Magarao, Camarines Sur, to have "DDD" treated by a quack doctor. They left "AAA" and "BBB" at their residence in the care of herein appellant. When "CCC" returned home on April 8, 2002, she found "AAA" and "BBB" crying and in a state of shock. She initially brought her daughters to the quack doctor but was prevailed upon to bring them to a hospital for medical examination. Upon her prodding,

"AAA" and "BBB" informed her that they were sexually abused by their father, herein appellant.9 The prosecution next presented Dr. Augusto M. Quilon, Jr. (Dr. Quilon), a resident physician at the Bicol Medical Center who testified on the results of the medical examinations conducted on "AAA" and "BBB." Dr. Quilon explained that "AAAs" hymen was intact but her labia majora bore reddish marks which could possibly be caused by the insertion of a finger. "BBB," on the other hand, had superficial lacerations in her hymen which could possibly be caused by sexual contact or insertion of a foreign object.10 The prosecution next presented "BBB" as its witness. "BBB" was only 7 years old when she testified in court, thus: xxxx PROS. OLIVEROS: Q Do you know what x x x your father has done to you? A Yes, Sir. Q Can you tell us what your father has done to you? A He had [sexual] intercourse with me. Q When you said you were molested by your father, what happened to your vagina? A It was painful. Q Do you know also [where] the penis of your father x x x [was] situated? INTERPRETER: A And the witness pointed to her vagina. PROS. OLIVEROS: Q Did x x x your father x x x [insert his penis into] your vagina? A Yes, Sir. xxxx Q You said a while ago that you felt pain, aside from that, what did you [observe] in your vagina?

A It was painful. Q Was there blood that oozed [from] your vagina? A Yes, Sir. Q Do you have clothes x x x when this incident happened? A Yes, Sir. Q [Were] your clothes x x x removed? A Yes, Sir. Q Who removed [your clothes]? A My father. Q Kindly tell us again what is the name of your father who removed your apparel? A Efren. Q If your father Efren is in court, [can you] pinpoint him to us? INTERPRETER: A And the witness pointed to a man, [who] when asked what is his name, answered Efren Alfonso. PROS. OLIVEROS: Q Can you tell us, ["BBB"], after you were sexually abused by your father, do you still remember what happened to your sister ["AAA"]? A Yes, Sir. Q Tell us what did your father do to your sister ["AAA"]? A He used his hand. Q What did your father do [with] his hand? A He used his hand. Q Where did your father [use his hand]?

A On the vagina. INTERPRETER: And the witness pointed to her vagina. PROS. OLIVEROS: Q Vagina of your sister ["AAA"]? A Yes, Sir. xxxx Q By the way, ["BBB"], when [did] this incident [happen] x x x was [it] [nighttime] or x x x [daytime]? A It was x x x [nighttime]. x x x x11 After "BBB," the prosecution presented "AAA" who was only 5 years old when she testified, thus: xxxx PROS. OLIVEROS: Q Do you know also the name of your father? A Yes, Sir. Q Kindly tell us[.] A Efren. PROS. OLIVEROS: Q If your father[,] Efren[,] is in court, please look around and pinpoint him to us[.] INTERPRETER: The witness has pointed to a man [who] when asked what is his name, answered Efren Alfonso. PROS. OLIVEROS:

Q A while ago you pinpointed to your father[,] Efren Alfonso[.] Do you know what [your father did to you?] A Yes, Sir. Q What did your father do to you? A He removed his clothes and he removed also my clothes and he had sexual intercourse with me. Q What did your father use in sexually abusing you? A His forefinger. INTERPRETER: As demonstrated by the witness. PROS. OLIVEROS: Q When you were sexually abused by your father by using his finger, who was your companion then? A Owen and x x x my sister. Q You said that you were sexually molested by your father by using his finger[. Did] x x x your father [insert his finger into] your vagina? A Yes, Sir. Q What did you feel when your father inserted his finger into your vagina? A It was painful. Q A while ago you said you have a companion, a sister of yours, if that sister is in court can you pinpoint her to us? INTERPRETER: The witness x x x pointed to a girl and when asked what is her name, [she] answered ["BBB"]. PROS. OLIVEROS: xxxx

Q You pinpointed your older sister ["BBB"], do you know what x x x your father also [did] to your sister ["BBB"]? A Yes, Sir. Q Kindly tell us what x x x your father [did] to your older sister ["BBB"]. A My sister removed her clothes and my father also removed his clothes. Q After removing those clothes, what did your father do? A He had sexual intercourse with ["BBB"].12 In order to assess whether "AAA" understood what she was testifying on, the trial judge likewise propounded questions to her. Thus: COURT: Few questions from the court. Q You x x x mentioned ["AAA"] that your father had inserted his finger [into] your vagina, was it done [at nighttime?] A Yes, Your Honor. Q And your mother was not around? A Yes, Your Honor. Q And it was only the following day that your mother arrived? A Yes, Sir. Q And that was also the time that you have informed your mother of what happened? A Yes, Your Honor. Q And x x x who were with you on that night? A Erwin and Ate. Q What about your father? A He was with us that night.

Q And it was you, your father, your sister[,] and [a] certain Erwin, who slept together on that night? A Yes, Sir. Q You also x x x mentioned that whenever you take a bath your father [would insert] his finger [into] your vagina, is that correct? A Yes, Sir. Q What did you feel? A Painful. Q And you did not inform your mother [that] whenever your father bathed you, [he would insert] his finger [into] your vagina? A No, Your Honor. Q So it was only the following day after your father had inserted his finger [into] your vagina that you x x x told your mother about it? A Yes, Your Honor.13 Finally, the prosecution presented the Local Civil Registrar who testified on the Certificates of Live Birth of "AAA" and "BBB." It was established that "AAA" was born on January 18, 1999 and was only 3 years old when the incident happened. As regards "BBB," she was born on September 25, 1996 and was only 5 years old when the incident occurred. Version of the Defense The defense presented appellant as its lone witness. He claimed that on April 7, 2002, he was working at the sugarcane plantation located about two kilometers away from their house14 but he took his lunch at their house.15 Contrary to the testimony of "CCC," appellant claimed that his wife did not leave their house on April 7, 2002.161avvphi1 According to appellant, it was already nighttime when he went home on April 7, 2002.17 Upon arrival, he noticed that "AAA" was already asleep but "BBB" was still awake. He was informed by his wife that "BBB" was sick.18 Appellant further testified, thus: Q What did you do after you learned that "BBB" was not feeling well? A I told my wife to ask "BBB" what she feels. Q Did your wife ask "BBB"?

A Yes, sir. Q Did you hear ["BBBs" answer] to the query asked by your wife? A Yes, sir, headache. Q What happened next after you heard "BBB" complaining about her head? A Then my wife asked "BBB" again what else is she feeling[.] Q Did "BBB" answer back? A Yes, sir. Q What did you hear? A She was also complaining about her knees. Q x x x [W]hat happened next, if any? A My wife asked her again. Q What was the question? A What else was wrong with her. Q What did "BBB" answer when she was asked again. A Her vagina is also painful. Q So, what happened next after "BBB" told your wife that her vagina was painful? A "BBB" told us that she was sexually abused by her Manoy, by her elder brother. Q What did you do after "BBB" told you that she was sexually abused by her Manoy? A Nothing, sir. Q How about your wife, what did she do? A None also, sir. Q So, what happened to "BBB" after she told you that she was abused by her Manoy, after telling that what did she do? A Nothing, sir.

Q You said that you [did] nothing together with your wife including "BBB." What [happened] after you heard "BBB" [tell] you x x x that she was sexually abused by her Manoy? A I asked my wife if she will file a case in court but she did not respond. Q So, what did you do after that? A When I asked my wife if she will file a case in court, my wife did not reply. Q That's why after that what happened next? A No more, sir. Q So, what did you do? A Then we went to sleep.19 xxxx Q Who is this ["EEE"] you referred to? A When I married my wife, she already [has] a son. Q ["EEE"] is your step-son, is that correct? A Yes, sir. Q How were you able to say that it was ["EEE"] who sexually abused your two daughters? A It was my wife who asked our daughters and they told my wife that it was ["EEE"] who abused them. xxxx Q Were there other persons aside from ["EEE"] whom they called Manoy? A None, sir.20 xxxx COURT: Only one question from the court.

Q What is the age of ["EEE" in] April, 2002? A [In] April 2002, he was already in Grade III. Q His age may be 10 or 11 years old? A Yes, your Honor.21 Ruling of the Regional Trial Court On May 25, 2006, the RTC rendered its Joint Decision,22 the dispositive portion of which reads: PREMISES CONSIDERED, the prosecution having proven the guilt of the accused beyond reasonable doubt in both Criminal Case No. RTC02-735 and Criminal Case No. RTC02-736, judgment is hereby rendered as follows: 1. In Criminal Case No. RTC02-735, this Court finds the accused, EFREN ALFONSO, guilty beyond reasonable doubt of the offense of Rape by Sexual Assault as defined and penalized under paragraph 2 of Article 266-A of Republic Act 8353 with the qualifying circumstances under number 1 of Article 266-B of Republic Act 8353 that the victim is under 18 years of age and the offender is a parent and under number 5 thereof that the victim is a child below seven years old as charged in the Information and hereby sentences him to suffer the indeterminate penalty of SIX (6) years and ONE (1) day of PRISION MAYOR, as minimum, to SEVENTEEN (17) years, FOUR (4) months and ONE (1) day of RECLUSION TEMPORAL, as maximum; and to indemnify the offended party, "AAA," civil indemnity of P30,000.00, moral damages of P30,000.00 and exemplary damages of P15,000.00. The accused being a detention prisoner is entitled to be credited with 4/5 of his preventive imprisonment in the service of his sentence in accordance with Article 29 of the Revised Penal Code. 2. In Criminal Case No. RTC02-736, this Court finds the accused, EFREN ALFONSO, guilty beyond reasonable doubt of the offense of Statutory Rape by having carnal knowledge of his daughter who is below 12 years of age as defined and penalized under letter (d) paragraph 1 of Article 266-A of R.A. 8353 with the qualifying circumstance under number 1 of Art. 266-B of Republic Act 8353 that the victim is under 18 years of age and the offender is a parent and under number 5 thereof that the victim is a child below seven years old as charged in the Information and hereby sentences him to suffer the extreme penalty of DEATH; and to indemnify the victim, "BBB," the amount of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P30,000.00 as exemplary damages. SO ORDERED.23 The trial court lent credence to the testimony of "CCC" that she was in Magarao on April 6, 2002 and that when she went home on April 8, 2002, she learned that her daughters "AAA" and "BBB" had been sexually molested by the appellant.24 Lending credibility to "CCCs" testimony

were the results of the physical examination conducted on her daughters which indicated that "AAA" had "hyperemic labia majora" while "BBB" had "superficial lacerations in her hymen."25 The court a quo found it unusual that the appellant did nothing at all upon learning of the sexual molestations suffered by his daughters which were allegedly committed by "EEE."26 Worse, after learning over the radio that he was accused of raping his daughters, he did not come forward; instead, he made himself scarce until his apprehension two years later.27 On the other hand, the trial court found "AAA" and "BBB" competent witnesses despite their young age. Carefully observing their manner of testifying, the court below was satisfied that they can "perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court."28 The trial court disregarded the insinuation by the appellant that it was "EEE" who sexually abused "AAA" and "BBB." It noted that despite rigid cross-examination, "AAA" and "BBB" stuck to their testimonies that it was appellant who committed the molestations.29 It also found it highly improbable for "CCC" to coach "AAA" and "BBB" to testify falsely against their father, or for "CCC" to allow "AAA" and "BBB" "to go through the rigors of a public trial"30 just to have her husband convicted for a crime which he did not commit.31 Since the complaints were filed on April 19, 2002 or barely 12 days after the commission of the crimes, the RTC opined that it was inconceivable for "CCC" "to have decided to fabricate a rape charge against the [appellant] much less convince or coach her children to testify falsely against their father."32 Besides, the trial court noted that appellant did not offer any explanation as to why he sold their personal effects and destroyed their house when his wife decided to bring "AAA" and "BBB" to the hospital for medical examination.33 Ruling of the Court of Appeals On appeal, appellant argued that the trial court erred in giving credence to the testimonies of "AAA" and "BBB." He claimed that their testimonies were all lies and fabrications as coached to them by "CCC."34 He also alleged that the trial court erred in appreciating the qualifying circumstance of relationship as it was not proven that appellant is the father of "BBB."35 In its assailed July 31, 2007 Decision,36 the CA found "no reason to reverse the findings of the trial court"37 and thus upheld appellants conviction on both charges. The dispositive portion of the CA Decision reads: WHEREFORE, premises considered, the present appeal is hereby DISMISSED for lack of merit. The appealed Joint Decision dated May 25, 2006 of the Regional Trial Court of Calabanga, Camarines Sur, Branch 63 is hereby AFFIRMED with MODIFICATIONS in that accusedappellant is sentenced to reclusion perpetua with no possibility of parole and reduction of exemplary damages from P30,000.00 to P25,000.00 in Criminal Case No. RTC02-736 and in Criminal Case No. RTC02-735, the increase from P15,000.00 to P25,000.00 in exemplary damages. In all other respects, the decision under review STANDS.

With costs against the accused-appellant. SO ORDERED.38 Our Ruling On July 25, 2008, appellee filed a Manifestation39 stating that it would no longer file a Supplemental Brief having already extensively discussed the issues in its brief filed before the CA. Appellant filed his Supplemental Brief40 on August 8, 2008. He insists that the CA overlooked the fact that the reddening of "AAAs" sexual organ might have been caused by a disease or by the scratching done by "AAA" herself. He claims that he could not be held liable for rape by sexual assault considering that the act imputed against him is nothing different from the accidental or casual touching of "AAAs" vagina which he does every time he gives "AAA" a bath.41 As regards "BBBs" testimony, appellant argues that the same deserves scant consideration because "BBB" was coached by her mother, "CCC." Thus, the possibility that some other person committed the rape is present.42 In particular, he points to "EEE" as the culprit.43 The appeal is bereft of merit. Both the trial court and the CA correctly found appellant guilty of rape by sexual assault. Under Article 266-A(2) of the RPC, rape by sexual assault is committed "[b]y any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another persons mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person." In the present case, there is no doubt that appellant inserted his finger into the genital of "AAA." The claim of the appellant that disease or scratching caused the reddening of "AAAs" genital lacks factual basis. In fact, appellant did not mention this before the court below to bolster his defense of denial albeit Dr. Quilons mentioning that the reddening of "AAAs" genital could have also been caused by scratching or disease. Likewise, the defense never presented any proof that "AAA" was suffering from a disease at the time. Neither did the defense elicit any admission from "AAA" that she scratched her genital thus causing the reddening. On the contrary, records show that "AAA" was forthright in her testimony that her father inserted his finger into her vagina. Moreover, appellants admission that he touches "AAAs" vagina each ti me he gives her a bath strengthens our belief that he is capable of committing sexual abuse to his own daughter. Also, such admission does not negate the possibility of committing rape by sexual assault on "AAA" on April 7, 2002. We reviewed succintly the testimony of "AAA" and we find the same credible and straightforward. At the time of the incident, "AAA" was only 3 years old. She was 5 years old

when she testified before the court. However, despite her age she consistently and without hesitation pointed to her father as the person who inserted his finger into her vagina on April 7, 2002. Her tender age notwithstanding the trial court ably found "AAA" competent to testify on her harrowing experience. As aptly observed by the trial court: Certain nagging questions need to be answered such as for instance did the children fully understand the meaning of what they were telling the court? Were they able to distinguish truth from falsehood? Were they able to appreciate the duty to tell the truth in court? xxxx The competence of "BBB" to testify as to the fact of her having been sexually abused was amply demonstrated before this Court. Both "BBB" and "AAA" were asked questions by the prosecution and defense in order to probe their competency to testify in terms of their ability to perceive, remember, communicate and distinguish truth from falsehood. After observing the manner of testifying and hearing the answers of the child witnesses, this court was satisfied that no substantial doubt existed regarding the ability of the children to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court.44 Both the trial court and the CA correctly found appellant guilty of statutory rape. Under Art. 266-A(1)(d) of the RPC, statutory rape is committed "[b]y a man who shall have carnal knowledge of a woman" who is "under twelve (12) years of age." In the instant case, the prosecution proved beyond reasonable doubt that appellant had carnal knowledge of "BBB" who was only 5 years of age at the time. Both the trial court and the appellate court correctly disregarded appellants contention that "BBBs" testimony was rehearsed. The records clearly show that "BBB" testified in a straightforward and credible manner despite the rigid cross-examination by the appellants counsel. She remained steadfast throughout her narration that it was appellant who sexually abused her. This prompted the trial court to state thus: It is unthinkable that a child of tender years placed under rigid cross-examination would not loosen up or break down and reveal the details of such a traumatic experience including pinpointing the actual perpetrator of the crime. It is believed that such traumatic experiences are deeply engraved in the memory of the victim and will certainly come to the surface once the victim is confronted and cross-examined especially when the victim is an innocent and nave child. Their natural innocence and naivete will prevent them from sustaining a lie.45 There is likewise no basis to appellants claim that "CCC" coached "BBB" to testify falsely against him. We agree with the trial courts observation that: To say that "CCC" deliberately concocted the rape charge against accused who was her husband and that she taught her children, who were only 5 and 7 years of age, to falsely testify against

their very own father would attribute such a high degree of malevolence if not sophistication to said witness. This court finds it highly improbable. To go out of her way to file a complaint and go through the rigors of a public trial for the purpose of having her husband convicted for an offense he did not commit is to this court something the witness does not appear capable of. Moreover, wanting to spare a son from being prosecuted and punished is not a sufficient motivation for a wife and mother to want to have her husband put in prison or punished with the supreme penalty of death. The ordinary functioning of the human mind and human emotion does not seem to work that way. It could probably happen in moments of desperation as when there is no other way to save her son. The sequence of events as shown by the evidence does not bear this out. x x x xxxx The record likewise shows that the complaint was filed on April 19, 2002 or only 9 days after the children were examined and were found to have signs of having been sexually abused. During this span of time, it is inconceivable for "CCC" to have decided to fabricate a rape charge against the accused much less convince or coach her children to testify falsely against their father. Moreover, all these could have been uncovered during cross examination. As it is, despite the rigid cross examination by counsel for the accused, "BBB" and "AAA" did not falter in pointing to their father as the one who did something wrong to their vaginas.46 Finally, the courts below correctly disposed of appellants contention that "EEE" was the real culprit. Both "AAA" and "BBB" were consistent in pointing out that it was appellant who committed the sexual acts against them. Despite the suggestion from appellants counsel, both remained steadfast that their father was the one who raped them. Lending credence to the fact that appellant was indeed guilty of the crimes attributed against him were his own actuations at the time material to this case. By appellants own admission, he did nothing upon learning that his own daughters "AAA" and "BBB" were sexually molested allegedly by "EEE." Instead, he just went to sleep upon learning of the abuses committed against his own daughters. When his wife, "CCC," insisted on bringing "AAA" and "BBB" to the hospital to undergo medical examination, appellant got angry. He sold their personal effects and even destroyed their house. He also made himself scarce. Even after hearing over the radio that he was the one accused of raping his two daughters, he did not come forward to clear his name. Instead, he went on hiding until his capture two years later. "[T]he flight of an accused is an indication of his guilt or of a guilty mind."47 We thus agree with the observation of the court a quo that: The facts as testified to by the accused on the other hand do not seem to jibe with the normal habits of man. For instance, according to the accused, despite having heard that his child "BBB" was sexually abused by his stepson, he did nothing about it. It does not take much education to feel the protective instincts of a father whose child has been violated. He did not confront his stepson nor did he report the matter to the barangay. Not even when he learned over the radio that he was being accused of raping his own daughters did he come forward with what he believed was the truth. Instead, the accused made himself scarce until he was finally

apprehended in the year 2004. Such actuations do not appear consistent with the actuations of an innocent man.48 xxxx It might have been a bit more believable if say the accused reported the matter to the barangay captain or warned ["CCC"] that he would report the matter to the authorities. He did neither. In fact, he did nothing. There is nothing to corroborate his claim that "BBB" told her mother that she was sexually abused by her Manoy.49 All told, we entertain no doubt that appellant committed the imputed acts upon his daughters "AAA" and "BBB" on April 7, 2002. The Penalty Under Article 266-B of the RPC, the penalty for rape by sexual assault is reclusion temporal "if the rape is committed by any of the 10 aggravating/ qualifying circumstances mentioned in this article." In Criminal Case No. RTC-02-735, the rape was committed by a parent against his then 3-year old child. Reclusion temporal ranges from twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, the penalty next lower in degree is prision mayor which ranges from six (6) years and one (1) day to twelve (12) years. Thus, the trial court, as affirmed by the CA, correctly imposed upon appellant the penalty of six (6) years and one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum. In Criminal Case No. RTC-02-736, appellant had carnal knowledge of his daughter, "BBB," who was only 5 years old. Hence, the crime committed was statutory rape, the penalty for which is death.50 However, with the passage of Republic Act No. 934651 prohibiting the imposition of the death penalty, the CA correctly modified the penalty to reclusion perpetua without eligibility for parole. Damages In Criminal Case No. RTC-02-735, the awards of P30,000.00 as civil indemnity and another P30,000.00 as moral damages are proper. However, the award of exemplary damages in the amount of P25,000.00 must be increased to P30,000.00 in line with prevailing jurisprudence.52 In Criminal Case No. RTC-02-736, we find that both the trial court and the CA correctly awarded the amounts of P75,000.00 as civil indemnity and another P75,000.00 as moral damages. However, the award of exemplary damages in the amount of P25,000.00 must be increased to P30,000.00 in line with prevailing jurisprudence.53 WHEREFORE, we AFFIRM with MODIFICATIONS the July 31, 2007 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02312. Appellant Efren Alfonso is found guilty of Rape by Sexual Assault in Criminal Case No. RTC-02-735 and is sentenced to suffer the penalty of six (6) years and one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months

and one (1) day of reclusion temporal, as maximum. He is also ordered to pay "AAA" the amounts of P30,000.00 as civil indemnity, P30,000.00 as moral damages, and P30,000.00 as exemplary damages. Appellant is also found guilty of Statutory Rape in Criminal Case No. RTC02-736 and is hereby sentenced to suffer the penalty of reclusion perpetua without eligibility for parole. He is also ordered to pay "BBB" the amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P30,000.00 as exemplary damages. SO ORDERED. MARIANO C. DEL CASTILLO Associate Justice WE CONCUR: RENATO C. CORONA Chief Justice Chairperson PRESBITERO J. VELASCO, JR. Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice

JOSE PORTUGAL PEREZ Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified 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 Courts Division. RENATO C. CORONA Chief Justice

Footnotes
1

Rollo, pp. 2-24; penned by Associate Justice Martin S. Villarama, Jr. (now a Member of this Court) and concurred in by Associate Justices Noel G. Tijam and Sesinando E. Villon.
2

Records, Vol. 1, pp. 65-90; penned by Judge Freddie D. Balonzo.

The identity of the victim or any information which could establish or compromise her identity, as well as those of her immediate family or household members, shall be

withheld pursuant to Republic Act No. 7610, An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination, and for Other Purposes; Republic Act No. 9262, An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for Other Purposes; and Section 40 of A.M. No. 04-10-11-SC, known as the Rule on Violence Against Women and Their Children, effective November 5, 2004.
4

Records, Vol. 2, p. 1. Records, Vol. 1, p. 1. Id. at 33; Records, Vol. 2, p. 55. Records, Vol. 1, pp. 35-36. Id. TSN, November 23, 2004, pp. 1-11. TSN, December 15, 2004, pp. 1-12. TSN, January 12, 2005, pp. 6-8. TSN, January 19, 2005, pp. 5-7. Id. at 16-17. TSN, April 13, 2005, p. 4. Id. at 5. Id. at 2. Id. at 6. Id. at 7. Id. at 8-10. Id. at 10-11. Id. at 14. Records, Vol. 1, pp. 65-90. Id. at 89.

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Id. at 77. Id. at 77-82. Id. at 77. Id. Id. at 78. Id. at 81-82, 85. Id. at 84. Id. Id. at 85. Id. at 84. CA rollo, p. 75. Id. at 76. Rollo, pp. 2-24. Id. at 17. Id. at 23. Id. at 36-37. Id. at 39-43. Id. at 39. Id. at 39-40. Id. at 40. Records, Vol. 1, pp. 77-78. Id. at 81. Id. at 84-85.

25

26

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29

30

31

32

33

34

35

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38

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40

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47

People v. Vallador, 327 Phil. 303, 315 (1996). Records, Vol. I, p. 77. Id. at 84. Revised Penal Code, Art. 266-B provides in part: xxxx The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent x x x of the victim. xxxx 5. When the victim is a child below seven (7) years old.

48

49

50

51

An Act Prohibiting The Imposition Of The Death Penalty In The Philippines [2006]. See People v. Lindo, G.R. No. 189818, August 9, 2010. See People v. Garbida, G.R. No. 188569, July 13, 2010.

52

53

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 188331 June 16, 2010

PEOPLE OF THE PHILIPPINES, Appellee, vs. RYAN LALONGISIP y DELOS ANGELES, Appellant. DECISION NACHURA, J.: Before this Court is an Appeal1 assailing the Court of Appeals (CA) Decision2 dated February 26, 2009, which affirmed with modification the decision3 dated April 4, 2007 of the Regional Trial Court (RTC), Branch 63, Calabanga, Camarines Sur, finding appellant Ryan Lalongisip y delos Angeles (appellant) guilty beyond reasonable doubt of the crime of Murder for the killing of Romeo Copo (Romeo). The Facts Appellant was charged with the crime of Murder in an Information dated March 9, 2006 which reads: That on or about the 8th day of March, 2006 at around 12:30 P.M. in Barangay Manguiring, Municipality of Calabanga, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery while armed with a kitchen knife measuring (10 ) inches long from the handle to the tip of its blade did then and there willfully, unlawfully and feloniously stab Romeo Copo, hitting the latter at the back portion of his body thereby causing his instantaneous death. The victim was not in position to repeal (sic) the suddenness of attack nor defend himself to the damage and prejudice of his heirs in such amount as may be determined by the Honorable Court. ACTS CONTRARY TO LAW. During the arraignment on March 21, 2006, appellant entered a plea of "not guilty." Thereafter, trial on the merits ensued. In the course of the trial, two varying versions arose. Culled from the records, the two versions were summarized by the CA as follows: The facts, according to the prosecution, are as follows:

On March 8, 2006, the accused-appellant, with the victim Romeo Copo, Victor de Villa, Cesar Andal Jr., Enog [B]ahay, Cesar Andal Sr., certain persons named Badong, Erning, Kuya Canor and some other men were having a drinking spree at the house of Conrado Andal Jr. at Zone 5, Barangay Manguiring, Calabanga, Camarines Sur. It was the first death anniversary of Conrado Andal Jr.s father. They all occupied a table beside Conrados house. Around 12:00 noon, the group was invited to lunch. Romeo Copo then stood up and while he turned his back at the table and moved himself towards the kitchen, the accused-appellant also stood up and suddenly stabbed Romeo at the back. The accused-appellant tried to stab Romeo again but was not able to do so because the handle of the knife used in stabbing was already broken. After he was stabbed, Romeo tried to run towards the kitchen but fell by the kitchen door.1avvphi1 Conrado and his cousin brought Romeo to the hospital. Meanwhile, the accused-appellant went to Barangay Tanod Jose [Peneno] to ask the latter to accompany him as he would like to surrender to police authorities. SPO1 Carlito Capricho testified that he was the investigator on duty on March 8, 2008. Upon learning of the incident, their Desk Officer, SPO4 Conrado Cantorne, dispatched him and SPO2 Talle to make a follow up investigation and to conduct a hot pursuit of the suspect. During the crime scene investigation, Liza Andal turned over to him the kitchen knife used by the accusedappellant to stab Romeo. SPO1 Capricho then returned to their police station where he learned that the accused-appellant had already surrendered. Daniel Tan, the rural health physician of the Municipal Health Office of Calabanga, Camarines Sur testified that he conducted a post-mortem examination on the cadaver of the victim. He found a stab wound at the victims back measuring 5cm. x 1cm., sla nted left vertically. It penetrated into the inferior portion of the heart, 10cm. lateral to midspine, level of thoracic vertebrae 3cm. left. He further opined that the wound caused the death of the victim. The defense maintains a different version of the incident. According to the accused-appellant, he was at the residence of his compadre Conrado Andal on March 8, 2006. He was there because he was asked to cook food for the first death anniversary of Conrado Andals father. He finished cooking around 7:00 oclock in the morning. Thereafter, they started a drinking spree together with other men, including the victim Romeo Copo. Around noontime, while they were still having their drinking spree, the accused-appellant noticed a knife on the table which they used in cooking. Romeo Copo allegedly got hold of the said knife and the accused-appellant grabbed the same from Romeo because the latters family was angry at him for reasons he does not know. He and Romeo grappled for the possession of the knife for about ten minutes. When he was able to grab the knife from Romeo, he was in front of Romeo and he accidentally hit the latters back. This happened because Romeo allegedly turned his back when he was trying to transfer to another place. The accused-appellant swayed his hand because the knife was about to fall and that was the time that he accidentally hit the victim.

He denied the testimonies of Conrado Andal and Genorio Bacay that the stabbing was intentional on his part because according to the accused-appellant, what happened was an accident. The reason that the two testified against him was because they were afraid of the family of the victim considering that they are a family of troublemakers. In fact in 2001, the accused-appellant was stabbed by a member of the Copo family and in 2005, the accused-appellants sibling was chased by one of the members of the Copo family. The accused-appellant admitted that before March 8, 2006, he and Romeo Copo had a misunderstanding regarding a cockfight that they had. He likewise admitted that he had to take hold of a knife to defend himself because Romeo might stab him [considering] the existing previous disagreement between their families. Immediately after the incident, the accused-appellant went to Barangay Tanod Jose Peneno and asked the latter to accompany him in surrendering to the police.4 The RTC's Ruling On April 4, 2007, the RTC found appellant guilty beyond reasonable doubt of the crime of Murder and sentenced him to suffer the penalty of reclusion perpetua and to pay the heirs of Romeo the amount of P25,000.00 as temperate damages, P50,000.00 as civil liability, and to pay the cost. Appellant interposed an appeal,5 assailing the RTC decision, before the CA. The CA's Ruling In its Decision dated February 26, 2009, the CA affirmed with modification the decision of the RTC, imposing upon appellant the penalty of reclusion perpetua and ordering him to pay the heirs of Romeo the amount of P50,000.00 as civil indemnity, and P50,000.00 as moral damages. Aggrieved, appellant elevated the case to this Court. In their respective Manifestations filed before this Court, appellant, as represented by the Public Attorney's Office, and the Office of the Solicitor General (OSG) opted to adopt their respective Briefs filed before the CA as their Supplemental Briefs. Appellant assigns the following errors: I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT WHEN HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT. II. THE TRIAL COURT GRAVELY ERRED IN NOT APPRECIATING THE JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE IN FAVOR OF THE ACCUSED-APPELLANT. III.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF MURDER INSTEAD OF HOMICIDE.6 The core issue in this appeal is whether appellant's guilt has been proven beyond reasonable doubt. Appellant avers that he merely acted in self-defense because Romeo was the unlawful aggressor when the latter got hold of a knife that was used for cooking; that his life was imperilled; that the means he employed to repel said aggression were reasonably necessary; that the stabbing incident was merely accidental; and that he did not provoke Romeo. Appellant argues that no treachery attended the killing because the prosecution's evidence failed to show that there was a conscious effort on his part to adopt particular means, methods or forms of attack to ensure the commission of the crime without affording the victim any opportunity to defend himself. Thus, appellant claims that if he is to be held liable at all, his liability should be merely for homicide, not murder.7 On the other hand, the OSG asseverates that appellant, by claiming self-defense, had the burden of proving the existence of all the elements constituting said defense; that appellant failed to discharge this burden; that the killing was attended by treachery because Romeo had his back turned when appellant suddenly stabbed him; that even prosecution witnesses Conrado Andal, Jr. and Genorio Bacay were caught off guard by the suddenness of the unprovoked attack; and that the findings of the trial court are binding and conclusive on this Court.8 Our Ruling We dismiss the appeal. First. We discard appellant's claim of self-defense. When self-defense is invoked by an accused charged with murder or homicide, he necessarily owns up to the killing but intends to evade criminal liability by proving that the killing was justified. Hence, it becomes incumbent upon the accused to prove by clear and convincing evidence the three (3) elements of self-defense, namely: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel the aggression; and (3) lack of sufficient provocation on the part of the person defending himself. Of these elements, the accused must, initially, prove unlawful aggression, because without it, there can be no self-defense, either complete or incomplete.9 Even if we consider appellants own version of the facts, we find that there was no unlawful aggression on the part of Romeo. Appellant himself testified that he did not have any prior argument with Romeo immediately before the stabbing incident; that they were freely conversing with each other; and that, other than allegedly holding a knife, Romeo did not commence any act constitutive of unlawful aggression or demonstrative of any imminent threat of attack.

Appellant's tale that he grappled with Romeo for the possession of the knife for almost 10 minutes is incredible. There were many persons present. It is highly unbelievable that not one of the many men present intervened or tried to pacify them. Moreover, not one of those who were present came forward to corroborate appellants version of the incident. Second. There was treachery in the killing of Romeo. Article 248 of the Revised Penal Code (RPC) clearly provides: 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 or assault upon a railroad, 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.10 Treachery exists when an offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend directly and specially to ensure its execution, without risk to himself, arising from the defense which the offended party might make.11 The events narrated by the prosecution eyewitnesses point to the fact that Romeo could not have been aware that he would be attacked by appellant. There was no opportunity for him to defend himself, since appellant, suddenly and without provocation, stabbed the victim at the back as they were about to partake of their lunch. The essence of treachery is the unexpected and sudden attack on the victim which renders the latter unable and unprepared to defend himself by reason of the suddenness and severity of the attack. This criterion applies whether the attack is frontal or from behind.12 Appellant's argument that prosecution witnesses Conrado Andal, Jr. and Genorio Bacay testified against him because they were afraid of Romeo's family deserves scant consideration. No evidence was presented to

show that the eyewitnesses had any motive to prevaricate and falsely point to appellant as the perpetrator of such heinous crime. It is a doctrine well settled 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. This is because the trial court has the unique opportunity to observe the demeanor of witnesses and is in the best position to discern whether they are telling the truth. It is worth stressing that the CA affirmed the RTC's findings, according credence and great weight to the testimonies of the prosecution's witnesses. In this regard, it is the rule that when the trial court's findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court.13 We find no compelling reason to deviate from the uniform finding of both the RTC and the CA that indeed appellant is guilty beyond reasonable doubt of the crime of Murder. We also agree with the RTC that appellant voluntarily surrendered. The appellant's conduct was spontaneous when he gave himself up to the authorities, thus saving the State the trouble and the expenses necessarily incurred in his search and capture.14 However, in accordance with current jurisprudence, we modify the award of damages, and apply People of the Philippines v. Richard O. Sarcia,15 where we said: The principal consideration for the award of damages, under the ruling in People v. Salome and People v. Quiachon is the penalty provided by law or imposable for the offense because of its heineousness, not the public penalty actually imposed on the offender. Regarding the civil indemnity and moral damages, People v. Salome explained the basis for increasing the amount of said civil damages as follows: The Court, likewise, affirms the civil indemnity awarded by the Court of Appeals to Sally in accordance with the ruling in People v. Sambrano which states: "As to damages, we have held that if the rape is perpetrated with any of the attending qualifying circumstances that require the imposition of the death penalty, the civil indemnity for the victim shall be P75,000.00 . . . Also, in rape cases, moral damages are awarded without the need of proof other than the fact of rape because it is assumed that the victim has suffered moral injuries entitling her to such an award. However, the trial courts award of P50,000.00 as moral damages should also be increased to P75,000.00 pursuant to current jurisprudence on qualified rape." It should be noted that while the new law prohibits the imposition of the death penalty, the penalty provided for by law for a heinous offense is still death and the offense is still heinous. Consequently, the civil indemnity for the victim is still Php75,000.00. People v. Quiachon also rationcinates as follows:

With respect to the award of damages, the appellate court, following prevailing jurisprudence, correctly awarded the following amounts: P75,000.00 as civil indemnity which is awarded if the crime is qualified by circumstances warranting the imposition of the death penalty; P75,000.00 as moral damages because the victim is assumed to have suffered moral injuries, hence, entitling her to an award of moral damages even without proof thereof, x x x. Even if the penalty of death is not to be imposed on the appellant because of the prohibition in R.A. No. 9346, the civil indemnity of P75,000.00 is still proper because, following the rationcination in People v. Victor, the said award is not dependent on the actual imposition of the death penalty but on the fact that qualifying circumstances warranting the imposition of the death penalty attended the commission of the offense. The Court declared that the award of P75,000.00 shows "not only a reaction to the apathetic societal perception of the penal law and the financial fluctuations over time but also the expression of the displeasure of the court of the incidence of heinous crimes against chastity." The litmus test therefore, in the determination of the civil indemnity is the heinous character of the crime committed, which would have warranted the imposition of the death penalty, regardless of whether the penalty actually imposed is reduced to reclusion perpetua. Thus, based on the foregoing disquisition, we increase the amount of damages awarded by the CA. The amount of P50,000.00 as civil indemnity and P50,000.00 as moral damages shall be increased to P75,000.00 respectively. Likewise, exemplary damages should also be imposed at P30,000.00.16 Finally, in addition to the damages awarded, the appellant should also pay interest at the legal rate of 6% per annum from this date until full payment.17 In sum, appellant failed to show that the CA committed any reversible error in its assailed Decision which would warrant the reversal of the same. WHEREFORE, the Court of Appeals Decision dated February 26, 2009 in CA-G.R. CR H.C. No. 02802 finding appellant Ryan Lalongisip y delos Angeles guilty beyond reasonable doubt of Murder and sentencing him to suffer the penalty of reclusion perpetua is AFFIRMED with the MODIFICATION that appellant is ordered to pay the heirs of Romeo Copo P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P30,000.00 as exemplary damages. Costs against appellant. SO ORDERED. ANTONIO EDUARDO B. NACHURA Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice Chairperson

DIOSDADO M. PERALTA Associate Justice

ROBERTO A. ABAD Associate Justice

JOSE PORTUGAL PEREZ 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 Courts Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division 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 Courts Division. RENATO C. CORONA Chief Justice

Footnotes
*

Additional member in lieu of Associate Justice Jose Catral Mendoza per Special Order No. 842 dated June 3, 2010.
1

Rollo, pp. 10-12.

Particularly docketed as CA-G.R. CR H.C. No. 02802, penned by Associate Justice Bienvenido L. Reyes, with Associate Justices Isaias P. Dicdican and Marlene GonzalesSison, concurring; id. at 2-9.
3

CA rollo, pp. 49-57. Supra note 2, at 3-5. (Citations omitted.) CA rollo, p. 24. Brief for the Accused-Appellant; id. at 33-47, at 41-42. Id.

Brief for the Appellee; id. at 73-91.

People v. Regalario, G.R. No. 174483, March 31, 2009, 582 SCRA 738, 750-751, citing People v. More, 378 Phil. 1153, 1158-1159 (1999).
10

Emphasis supplied. People v. Perez, G.R. No. 179154, July 31, 2009, 594 SCRA 701, 716. People v. Alfon, G.R. No. 126028, March 14, 2003, 399 SCRA 64, 73-74. People v. Beltran, Jr., G.R. No. 168051, September 27, 2006, 503 SCRA 715, 730. People v. Callet, 431 Phil. 622, 636 (2002). G.R. No. 169641, September 10, 2009. People v. Achas, G.R. No. 185712, August 4, 2009, 595 SCRA 341, 355. People of the Philippines v. Manuel Bagos, G.R. No. 177152, January 6, 2010.

11

12

13

14

15

16

17

SECOND DIVISION

PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 177563

Present:

QUISUMBING, J., Chairperson, CARPIO MORALES, - versus TINGA, VELASCO, JR., and BRION, JJ.

DIOSDADO BALOBALO, Appellant.

Promulgated:

October 10, 2008

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

DECISION

CARPIO MORALES, J.:

Appellant was charged before the Regional Trial Court of Calabanga, Camarines Sur with two counts of Rape which were docketed as Criminal Case Nos. RTC98-300 and RTC98-302, and Attempted Rape which was docketed as RTC98-301. He was acquitted in the second and third cases, but was convicted in the first case, hence, the present appeal. The accusatory portion of the Information in Criminal Case No. RTC98300 subject of the present appeal reads:

That on or about 1:00 oclock [sic] in the morning of January 16, 1997 at Barangay Salvacion Baybay, Municipality of Calabanga, Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with lewd designs [sic], wil[l]fully, unlawfully and feloniously, by means of force, threat and intimidation[,] succeed [sic] in having carnal knowledge with his 12-year[-]old daughter, AAA[,] against her will and without her consent, to her damage and prejudice as evidenced by the Medical Certificate marked as Annex A hereof.

ACTS CONTRARY TO LAW.89[1] (Underscoring supplied)

The victim, AAA, gave the following account.

At around one oclock in the morning of January 16, 1997, as AAA was sleeping together with her siblings in a room in their house, she was awakened by appellant who was caressing her right leg. Appellant soon instructed her to

transfer to his room and to move there from her brother to her room. AAA obliged.

Appellant then led AAA to his room where he ran his fingers on her jogging pants. As she restrained appellant, he asked her if she loves him, to which AAA replied in the affirmative. Appellant thereupon proceeded to caress her breasts, and instructed her to pull down her jogging pants.90[2] As she started crying, appellant removed her jogging pants, mounted her, inserted his penis into her vagina and made push-and-pull movements. He then laid next to her and

cautioned her not to reveal the incident to her mother, BBB, who had repaired to Naga City following a quarrel with him over his alleged mistress. He warned her that if she did not heed him, he would abandon her and her siblings and they would grow up without a father.91[3]

89[1] 90[2] 91[3]

Records, p. 1. TSN, January 19, 1999, p. 4. Id. at 5.

AAA then returned to her room, crying and in pain. She kept her silence, however, out of fear that appellant would abandon them.92[4] She was later to confide about what appellant did to her to her cousin CCC93[5] who, on May 1, 1998,94[6] echoed it to her uncle DDD.

On May 4, 1998, AAA was examined by Dr. Salvacion Pantorgo who noted in her medical certificate95[7] the presence of old multiple hymenal lacerations at 2, 7 and 8 oclock positions which the doctor opined were likely caused by sexual intercourse.96[8]

Prosecution witness AAAs mother BBB, who is the common -law wife of appellant, declared that AAA, who was born on June 27, 1983, is the eldest of nine children she begot with appellant. She identified the birth certificate97[9] of AAA where her and appellants name appear as the parents of AAA.98[10]

Denying the charges and proffering alibi, appellant, a motorcycle sales agent for a marketing company, claimed that on January 15, 1997, at 8:00 in the evening,

92[4] 93[5] 94[6] 95[7] 96[8] 97[9]

Id at 7. TSN, February 3, 1999, pp. 8-9; Cross-examination of AAA. TSN, February 23, 1999, p. 3. Records, p. 7; Exhibit A. TSN, February 26, 1999, p. 8-9. Records, p. 69; Exhibit B.

98[10] Ibid.; Exhibits B-2 and B-3.

he, together with another agent, Jesus Tible Jr., went to the house of a prospective client, Augusto Tible, to follow up a projected sale of a motorcycle to him, and their meeting lasted up to 2 oclock the next morning of January 16, 1997. 99[11]

Appellant insinuated that AAAs mother-his former common-law wife BBB and the latters brother DDD may have influenced AAA in the filing of the cases after they learned that he was going to marry another woman.100[12]

Jesus Tible, Jr. corroborated appellants testimony.

Towing appellants defensive line, appellants mother EEE declared that on January 16, 1997, she was at appellants residence to take care of his children, including AAA, as appellant and BBB were said to have been in Naga City at the time.101[13] She added that appellant was with Jesus Tible Jr. on the third week of February 1997.102[14]

Joy Babiera, a sister of appellant, related that AAA confided to her that she was not raped by her father and that the charges were hatched by BBB and DDD to put appellant to jail.103[15]

99[11] TSN, June 30, 1999, pp. 2-3; Direct examination of appellant. 100[12] 101[13] 102[14] 103[15] Id. at 12. TSN, June 2, 1999, p. 5. Id. at 6. TSN, May 26, 2000, pp. 3-10.

The three cases having been consolidated and tried before Branch 63 of the Calabanga RTC, the trial court, by Joint Decision of February 26, 2001, convicted appellant of rape only in Criminal Case No. RTC98 -300 as stated earlier on. The fallo of the trial courts decision reads:

WHEREFORE, in view of the foregoing, the prosecution having proven the guilt of the accused beyond reasonable doubt in Crim. Case No. RTC98300, accused Diosdado Balobalo is hereby found guilty of the offense of rape as charged. He is sentenced to suffer the penalty of DEATH and to pay AAA the amount of P75,000.00 as indemnity, P50,000.00 as moral damages, P25,000.00 as exemplary damages and to pay the costs. In Crim. Case No. RTC98-301[,] the prosecution having failed to prove the guilt of the accused beyond reasonable doubt, accused Diosdado Balobalo is hereby ACQUITTED of the offense of attempted rape as charged. No pronouncement as to cost. In Crim. Case No. RTC98-302, accused Diosdado Balobalo is likewise ACQUITTED for reason that Republic Act No. 8353 otherwise known as the Anti-Rape Law of 1997 which took effect only on October 22, 1997, and the law cannot be given retroactive effect, hence the acquittal. No pronouncement as to cost. SO ORDERED.104[16] (Emphasis and underscoring supplied)

In brushing aside appellants version in Criminal Case No. RTC No. 98 -300, the trial court held:
x x x. [H]is alibi is self-serving in the absence of any showing that it was impossible for him to be on that early morning to go to his own residence [after] coming either from the Cristy Pub House located at x x x or x x x. His alibi became even more doubtful because of his failure to present Augusto Tible as his witness in order to corroborate his story that indeed he was at his residence on January 15, 1997 at 8:00 oclock P.M up to 2:00 oclock the following morning (January 16, 1997). x x x. Likewise, the testimony of his mother that he went to xxx at the residence of Augusto Tible to follow-up the sale of his motorcycle was 104[16] CA rollo, pp. 153-154.

inconsistent with his testimony. His mother testified that it was on the third week of February, 1997 that he went to Balongoy to follow-up the sale of his motorcycle not on the evening of January 15, 1997.105[17] (Emphasis and underscoring supplied)

Appellant appealed to this Court which, pursuant to People v. Mateo,106[18] referred the case to the Court of Appeals for disposition.107[19] By Decision of October 31, 2006, the appellate court affirmed the judgment of the trial court but modified the penalty to reclusion perpetua in view of the prohibition of the imposition of the death penalty after the passage of Republic Act No. 9346.108[20] Hence, the present appeal, appellant insisting that the trial court erred in
I. . . . FINDING [HIM] GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE. . . . GIVING CREDENCE TO THE INCONSISTENT AND INCREDIBLE TESTIMONIES OF PROSECUTION WITNESSES .

II.

III. . . . NOT CONSIDERING THE DEFENSE OF ALIBI INTERPOSED BY THE ACCUSED-APPELLANT.109[21] (Underscoring supplied) 105[17] Id. at p. 144.

106[18] G.R. No. 147678-87, July 7, 2004, 433 SCRA 640. Said case modified Section 3 and Section 10 of Rule 122. Section 13 of Rule 134, Section 3 of Rule 125 of the Revised Rules of Criminal Procedures and any other rule in insofar as they provide direct appeals from the RTC to this Court in cases where the penalty imposed is death, reclusion perpetua or life imprisonment and allowed an intermediate review by the Court of Appeals before such cases are elevated to this Court. 107[19] Per Resolution dated September 28, 2004.

108[20] AN ACT PROHIBITING THE IMPOSITION OF THE DEATH PENALTY IN THE PHILIPPINES, which took effect on June 29, 2006 109[21] CA rollo, p. 157.

Appellant assails the evidence for the prosecution as insufficient. And he questions the trial courts appreciation of the result of the medical examination which was conducted more than a year after the alleged occurrence of the crime.

Appellant invites particular attention to the testimony of AAA on the fact of penetration, specifically that given during the preliminary examination of the case conducted on May 13, 1998,110[22] thus:

xxxx Q A Q A What did your father do next? He forced me to lie down and raped me, sir. What do you mean by []he raped you[]? What I mean of rape is that he was trying to insert his organ to my organ, sir. Was he able to insert his organ into your vagina? No sir, he was not able to. x x x x (Emphasis and underscoring supplied)

Q A

And appellant finds it incredible that the rape subject of this appeal, like the two other cases, was allegedly committed at a fixed time 1:00 a.m.

Additionally, he reasserts that AAA was merely induced by her mother and uncle to fabricate the charge in retaliation for his pending marriage to another woman.

110[22]

Exhibit H-H-1; records, pp. 10-11.

The People through the Office of the Solicitor-General (OSG) points to appellants having expediently omitted the succeeding portions of AAAs testimony during the preliminary examination, viz:

Q A

Are you sure that he was not able to insert his penis into your vagina even a little? I am not sure, sir, but when I urinate [sic] early in the morning I felt pain. So there is a probability that he was able to insert his penis inside your vagina? I had a wound near the rectum, sir. (Emphasis and underscoring supplied)

Q A

And the People reiterates this Courts instruction in People v. Brigildo111[23] that the mere touching of the labia or pudendum by the phallus is already enough to consummate the crime of rape.

To sustain a conviction for rape, there must be proof of the penetration of the female organ.112[24] Consider the following testimony of AAA:

Q. A.

When he lied [sic] on top of you what[,] if anything[,] did he do next? He placed his penis on my vagina. He made a push and pull movement of his body while on top of my body. And what[,] if anything[,] did you feel when you were seeing your father when he were [sic] making a pumping motion[?]. I got scared and I was crying. What[,] if anything[,] did you feel on your organ? Painful, sir. 380 Phil. 610, 623 (2000). People v. Pandapatan, G.R. No. 173050, April 13, 2007, 521 SCRA 304, 319.

Q. A. Q. A. 111[23] 112[24]

Q. A.

Why was it painful? Because his penis was pressing my vagina. underscoring supplied)

(Emphasis and

The foregoing testimony vis a vis Dr. Pantargos finding of the presence of old multiple hymenal lacerations at 2, 7 and 8 oclock positions which constitute physical evidence of forcible defloration113[25] suffices to sustain the case for the prosecution.

That AAA was medically examined more than a year after the commission of the rape does not lose significance, for healed lacerations do not negate the commission of rape.114[26]

The medical report aside as anyway it is not indispensable to an accuseds conviction, nay an element of rape, AAAs testimony suffices to convict appellant.115[27]

As this Court has unrelentingly stressed, the issue of a witness credibility is best addressed to the sound discretion of the trial court, it having the exclusive opportunity to scrutinize her demeanor, analyze her conduct and assess her attitude while under taxing inquisition. Since no compelling reason was shown why this
113[25] People v. Montemayor, 444 Phil. 169, 185 (2003) citing People v. Belen, 432 Phil. 881 (2002); People v. Alcala, G.R. No. 168442, 307 SCRA 330, 345 (1999). 114[26] People v. Teodoro, G.R. No. 170473, October 12, 2006, 504 SCRA 304 (2006); People v. Espinoza, 317 Phil. 79, 87 (1995). 115[27] People v. Arango, 168442, August 30, 2006, 500 SCRA 259.

Court should veer off from the findings of the trial court, the clear and credible testimony of AAA remains.

As for the alleged fixed time of the commission of the subject and of the two other charges as affecting the credibility of AAAs testimony, the Court finds the OSGs following rationalization thereon well-taken.

The time indicated by AAA is a mere estimate of the time when the crime took place because during all those instances, she was suddenly awakened from her slumber and, given the circumstances of her fathers actuations, had no opportunity to check the exact time. She only knew that it was still dark and that all the people in the house were still fast asleep when her father woke her up . . . Hence her own calculation of the time when the rapes took place is not incredible. (Emphasis and underscoring supplied)

Respecting the purported motive that induced the filing of this case, the Court notes that it was only after appellant was confronted by BBB that he abandoned his family.116[28] His claim of a pending marriage thus appears to be an after-thought, contrived in order to impute motive on AAA and her mother to file false charges against him. If BBB was impelled by any motive, it could not have been other than to bring justice to her daughter. BBB would not expose her daughter to such ignominy in retaliation for an alleged nuptial rebuff.

116[28]

TSN, March 3, 1999, pp. 25-28.

On appellants alibi, given AAAs positive, forthright and unwavering testimony even on cross examination and her positive identification of appellant as her rapist, such defense fails.117[29] Except for the award of moral damages the amount of which is increased from P50,000 to P75,000 conformably with current jurisprudence,118[30] the Court affirms the modified penalty imposed by the appellate court. WHEREFORE, the assailed Decision of the Court of Appeals is AFFIRMED with MODIFICATION. As modified, appellant, Diosdado Balobalo, is found guilty of qualified rape in Criminal Case No. RTC 98 -300 and is sentenced to suffer reclusion perpetua without eligibility for parole, to pay the victim the amounts of P75,000 as civil indemnity, P75,000 as moral damages and P25,000 as exemplary damages. No pronouncement as to costs.

SO ORDERED.

CONCHITA CARPIO MORALES Associate Justice

117[29]

People v. Bidoc, G.R. No. 169430, October 31, 2006, 506 SCRA 481.

118[30] People v. Salome, G.R. No. 169077, August 31, 2006, 500 SCRA 659; People v. Quiachon, G.R. No. 170236, August 31, 2006, 500 SCRA 704, 719; People v. Sambrano, 446 Phil. 145 (2003).

WE CONCUR:

LEONARDO A. QUISUMBING Associate Justice Chairperson

DANTE O. TINGA Associate Justice

PRESBITERO J. VELASCO, JR. 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 Courts Division.

LEONARDO A. QUISUMBING Associate Justice Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons 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 Courts Division.

REYNATO S. PUNO Chief Justice

FIRST DIVISION [G.R. No. 140404. February 27, 2003] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BONIFACIO ALIBEN, DIOSDADO NICOLAS and RONNIE NICOLAS, accused-appellants. DECISION AZCUNA, J.: Before us is an appeal from the Decision119[1] of the Regional Trial Court, Fifth Judicial Region, Branch 63, Calabanga, Camarines Sur, in Criminal Case No. RTC 98-236 (Cal), finding appellants Bonifacio Aliben, Diosdado Nicolas and Ronnie Nicolas guilty beyond reasonable doubt of the crime of Murder and sentencing them to suffer the penalty of reclusion perpetua. The Information120[2] filed against appellants reads: That on or about 6:00 oclock in the evening of the 5th day of October, 1997, at Bgy. Siba-o, Calabanga, Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and while armed with a bolo and pieces of wood, conspiring, confederating and mutually helping one another, with treachery and abuse of superior strength, did then and there willfully, unlawfully and feloniously attack, beat, stab and employ personal violence upon Juanito P. Bongon, Sr., the latter thereby sustaining wounds which caused his death, to the damage and prejudice of his heirs. ACTS CONTRARY TO LAW. When arraigned on April 28, 1998, appellants pleaded not guilty.121[3] During the hearing of the petition for bail filed by appellants, the prosecution and the defense presented all their witnesses. After the bail hearing, the respective counsel for the different parties manifested their agreement that the case be decided on the merits since they had presented all their witnesses. The trial court thus considered the case submitted for decision. The Prosecutions Evidence Romeo Barsaga, a mat vendor and a resident of Bacacay, Albay, testified that on October 5, 1997, he was in the house of the victim Juanito Bongon, Sr. in Siba-o, Calabanga, Camarines
119[1]

Rollo, pp. 39-67. Records, p. 1. Records, p. 41.

120[2]

121[3]

Sur, bringing with him mats for sale. Juanito Bongon, Sr. was in charge of delivering the mats. Barsaga had been in Siba-o several times for the same purpose and would stay in the residence of Juanito Bongon, Sr. for about three days until he received the proceeds of the sale.122[4] At around 6:00 o clock in the evening of the said date, Barsaga went out to buy cigarettes at the store near the house of Floserfida Puring Fabricante. Before he could reach the store, he saw, at a distance of seven (7) meters, three (3) persons hitting Juanito Bongon, Sr. on the head with pieces of wood and a bolo. He recognized the faces of the assailants, but did not know their names. Nevertheless, in court, Barsaga pointed at the man whom he saw strike the victim with a bolo who identified himself as Bonifacio Aliben. Barsaga also pointed at the two persons whom he saw hit the victim with pieces of wood and they identified themselves as Ronnie Nicolas and Diosdado Nicolas. Barsaga declared that he recognized the faces of the assailants because he saw them often at the store whenever he was in Siba-o.123[5] Barsaga watched the incident for about four (4) minutes. While Aliben was hacking the victim, Diosdado Nicolas and Ronnie Nicolas were at the back of the victim. The witness demonstrated the position of the victim while he was being attacked by appellants by bowing his head, bending his body towards the ground with his two hands in front of his chest. Barsaga could not remember how many times Aliben hacked the victim and did not see which part of the victims body was hit. 124[6] Barsaga further testified that he got scared after witnessing the incident, so he returned to the house of the victim. He narrated what he witnessed to the mother of the victim and a child who were the only ones present during that time. The following day, he went home to Bacacay because his mats were already sold. He learned that Juanito Bongon, Sr. was already dead from the relatives of the victim in Bacacay.125[7] Floserfida Fabricante, sister of the victim, testified that at around 6:00 o clock in the evening of October 5, 1997, she was in her residence. She heard a noise that sounded as though someone was being mauled. She went outside the house and saw Bonifacio Pacio Aliben hacking a person with a bolo, while Diosdado Dado Nicolas and Ronnie Nicolas were also hitting the same person with a piece of wood many times. She saw Aliben hack the victim once on the upper right side of the head, just above the forehead. She did not recognize the victim because he was already lying down. She was about ten (10) meters away from the assailants.126[8]

122[4]

TSN, June 19, 1998, pp. 28-29. TSN, June 19, 1998, pp. 27-31. TSN, June 19, 1998, pp. 32-33, 52-53. TSN, June 19, 1998, pp. 33-35. TSN, June 24, 1998, pp. 3-6, 12-13.

123[5]

124[6]

125[7]

126[8]

After witnessing the incident, Fabricante went inside her house and drank water because she was scared. After a while, Josefa Bongon arrived and asked Fabricante if she knew the whereabouts of her husband Juanito Bongon, Sr. Fabricante replied that she did not know. She informed Josefa Bongon that a person was mauled outside her house and told her to inquire about it. Josefa Bongon and her son went to the place of the incident. Afterwards, Fabricante heard Josefa shouting for help. The following day, October 6, 1997, Fabricante learned that Juanito Bongon, Sr. was already dead.127[9] Juanito Bongon, Jr., the victims son and a padyak128[10] (tricycle) driver, testified that at around 6:00 o clock in the evening of October 5, 1997, he was in Siba-o, Calabanga, Camarines Sur, driving his padyak. He was taking two passengers, Raquel Seguenza and Dalia Requinta, to their respective residences in Siba-o. After his two passengers had alighted from the padyak, Bongon, Jr. made a U-turn to proceed to the town proper of Siba-o at which instance he saw appellant Bonifacio Aliben holding a 24-inch-bolo stained with blood. Rommel Cabiles then approached Bongon, Jr. and told him that a person was mauled. Wanting to help the victim, Bongon, Jr. drove to the place of the incident, which was about five (5) meters away from the house of Ester Nicolas in Siba-o. Bongon, Jr. saw the victim lying with his face down on the ground, still moaning. He carried the victim and placed him inside his padyak. After he turned on the motor and the lights of the padyak, he recognized the victim to be his father, Juanito Bongon, Sr. He immediately asked his father who mauled him. His father answered Dado and Ronnie, and was about to say more, but his serious physical condition prevented him from doing so. By this time, the mother and brother of Bongon, Jr. had arrived. They rushed the victim to the Bicol Regional Hospital where he was declared dead on arrival.129[11] Josefa Bongon (Josefa for brevity), wife of the victim, testified that at around 6:00 o clock in the evening of October 5, 1997, she left the house leaving behind her mother-in-law, her youngest son and Romeo Barsaga. On her way to their other house in Siba-o, she saw people running around. She was not able to reach their other house because Dado Nicolas suddenly appeared and was about to bump her. Dado Nicolas was running fast, away from the direction where the incident happened. Josefa was then looking for her husband. She saw Pepito Seguenza who told her that he did not see her husband. She immediately proceeded back to their house. While she was about three arms length away from their house, she saw her son carrying the body of her husband, which he placed inside his padyak.130[12] Moreover, Josefa testified that while her husband was on board the padyak, her son Jojo asked her husband who mauled him. Her husband uttered the names Dado and Ronnie, and was about to say something more, but he was already choking. The only persons she knew in their
127[9]

TSN, June 24, 1998, pp. 3-8. Also spelled padjak in the TSN. TSN, May 26, 1998, pp. 1-9, 12-16. TSN, August 28, 1998, pp. 2-5, 20.

128[10]

129[11]

130[12]

barangay with the names Dado and Ronnie were Dado Nicolas and Ronnie Nicolas. They brought her husband to the Regional Hospital, but her husband was already dead.131[13] Josefa testified that they spent P13,000.00 for the funeral services.132[14] She borrowed money from the cooperative to defray the funeral expenses of her husband. They also sold their carabao and pig.133[15] Josefa declared that she was deeply affected by the death of her husband and could not sleep, and that she still missed him.134[16] Dalia Requinta testified that at around 6:00 o clock in the evening of October 5, 1997, she was on her way home on board a padyak together with co-passenger Raquel Seguenza. As Raquel Seguenza was about to alight, the padyak slowly turned to the right and its headlight focused on the hand of appellant Bonifacio Aliben who was holding a 17-inch-bolo stained with blood. Aliben was one (1) meter away from the padyak and was walking toward the direction of his residence. She knew the appellants because they resided in the same barangay.135[17] Pepito Seguenza corroborated the testimony of Dalia Requinta. He testified that at around 6:00 o clock in the evening of October 5, 1997, he was in his house drinkin g with a visitor. While drinking, he noticed that there was a commotion outside his house. He went out and while going outside their front yard, he saw appellant Bonifacio Aliben walking fast with a bloodstained bolo in his hand. He saw that Alibens bolo was bloody because the headlight of a motor lighted Alibens hand. Aliben was walking toward the direction of his residence. Seguenza went to the road, and after a while, Mrs. Bongon and her son, Juanito Bongon, Jr. arrived riding in a padyak. Mrs. Bongon was shouting for help, so Seguenza boarded the padyak and went with them to bring the victim Juanito Bongon, Sr. to the hospital.136[18] Dr. Rey Millena, municipal health officer of Calabanga, Camarines Sur, conducted the autopsy of the body of the victim. He testified that he found no sign of physical injuries at the upper and lower extremities of the victims body. The injuries were more or less concentrated on the head and face.137[19]

131[13]

TSN, August 28, 1998, pp. 5-6. Exhibits D and D-1, Records, pp. 85-86. TSN, August 28, 1998, pp. 7-8. TSN, August 28, 1998, p. 8. TSN, June 19, 1998, pp. 2-8. TSN, June 19, 1998, pp. 13-17. TSN, August 11, 1998, pp. 4, 11.

132[14]

133[15]

134[16]

135[17]

136[18]

137[19]

His Necropsy Report138[20] contained the following findings: External Findings height, 159 cms. rigor mortis complete. post-mortem lividity found at the back, dull red to purplish in color.

negative sign of relevant physical injury at the upper and lower extremities, chest, abdomen, and back. contusion from fronto-temporal area of head, extending to right side of face, down to antero-lateral of right side of neck, measuring about 19 cms. x 8 cms.; with superficial laceration 1.5 cms., horizontal, right side neck; with [abrasion] 1.0 cms. x 2 cms. at the rght cheekbone; with linear laceration 1.0 cms., horizontal, from lateral canthus of right eyelids. contusion of right eyelids, with linear laceration 3 cms. along the upper eyelid.

contusion and depression of whole right forehead extending to the upper-medial-half of left forehead; with linear laceration 1.8 cms., oblique towards the medial, just 2 cms. above right eyebrow; with linear laceration 2 cms., vertical, lower extremity 4 cms. above left eyebrow, corresponding to the end/edge of contusion at left forehead. Marked depression from right eye upwards measures 10 cms.; depression from anterior-upper part of right ear to medial-upper-half of left forehead (the vertical laceration of 2 cms.) measures 21 cms. incised wound, 7 cms., slightly oblique towards the front (edges clean-cut, presence of cut hairs along the wound), with notching = lacerated wound 1.5 cms. from upper edge or lip of the incised wound and 2.5 cms. from the upper extremity of the incised wound; splinter of fractured bone protrudes from the wound and presence of blood coming out. Internal Findings fracture of right and left parietal bone and fractures at the point of the right pterion; comminuted fractures, variable in sizes and shapes, of right frontal bone extending to the uppermedial-half of left. From right supra-orbital ridge of frontal towards the back of head and up to the edge of the fracture of right parietal bone measures 17 cms.. comminuted fractures left parietal bone, near the vertex, largest splinter is triangular in shape with base posterior and apex anterior. 138[20]

[meninges] lacerated and anterior brain tissues crashed and displaced posteriorly. Exhibit B, Records, p. 11.

fracture of zygomatic process of mastoid and part of zygomatic bone, right. fracture of mandible, right.

CAUSE OF DEATH: CARDIO-RESPIRATORY ARREST DUE TO COMMINUTED SKULL FRACTURES, SECONDARY TO TRAUMATIC FORCE, HEAD. Dr. Millena testified that the first internal finding was caused by a blunt force which produced comminuted fractures, variable in sizes and shapes, of the right frontal bone extending to the upper-medial-half of the left. He explained that comminuted fracture means splintering or fragmentation of the skull bone. Fragmentation of the bone was concentrated at the right frontal of the right side of the forehead. 139[21] The second internal finding showed that the victim sustained comminuted fractures left parietal bone, near the vertex. Dr. Millena explained that the parietal bone was near the vertex or top of the skull.140[22] The third internal finding showed that the meninges or the protective covering of the brain was lacerated and the anterior brain tissues were crushed and displaced posteriorly. This is in relation to the pressure exerted in the first internal finding.141[23] Dr. Millena also found that the victim sustained a fracture on his right cheekbone and the right side of his lower jaw.142[24] Dr. Millena opined that the internal injuries were caused by a blunt instrument. He also found an incised wound, seven (7) centimeters long, at the right side of the victims head, which may have been caused by a sharp-edged instrument. Hence, Dr. Millena concluded that more than one instrument was used in inflicting the injuries sustained by the victim.143[25] Dr. Millena declared that the injuries sustained by the victim were fatal injuries. The injuries immediately caused cardio-respiratory arrest due to comminuted skull fractures which caused the victims death.144[26]

139[21]

TSN, August 11, 1998, pp. 8-9. Ibid. TSN, August 11, 1998, p. 10. TSN, August 11, 1998, p. 11. TSN, August 11, 1998, pp. 11-13. TSN, August 11, 1998, pp. 11-12.

140[22]

141[23]

142[24]

143[25]

144[26]

On cross-examination, Dr. Millena testified that the most fatal injuries sustained by the victim were those on the right side of his forehead corresponding to the first internal finding. It was possible that said injuries were caused by three hits of a blunt instrument on the right part of the head, left upper parietal part of the head. Dr. Millena opined that after infliction of said injuries, the victim could no longer talk and would immediately die.145[27] SPO1 Carlito Capricho testified that on October 5, 1997, he was the duty investigator and temporary desk officer at the Police Station of Calabanga. At around 9:30 o clock in the evening, he recorded in the police blotter (Exhibit C) that he and SPO4 Leonardo Argamosa had investigated a homicide case which happened in Barangay Siba-o, Calabanga at about 6:30 o clock in the evening of said date where a certain Juanito Bongon y Pabiles was found dead with injuries on different parts of his body.146[28] At around 11:15 o clock in the evening of the same date, SPO1 Tarala, a member of the Calabanga Police Station, Barangay Captain William Sanchez of Siba-o and Ronnie Nicolas arrived at the police station. Ronnie Nicolas had earlier surrendered to Barangay Captain Sanchez. SPO1 Capricho entered in the police blotter, as an addendum to his previous entry, that Ronnie Nicolas voluntarily surrendered to their station and reported that while he was inside their house, the victim Juanito Bongon, Sr. stoned their house; that when he was about to confront the victim, the latter who was armed with a bladed weapon chased him, which prompted him to strike the victim with a piece of wood several times. According to Ronnie Nicolas, the piece of wood that he used to strike the victim was the temporary block of the door of their residence.147[29] Glenda Sancha, daughter of the victim, testified on the funeral, burial and other expenses incurred in connection with the death of the victim in the total sum of P18,918.00, which were supported by receipts.148[30] The Defenses Evidence Appellant Ronnie Nicolas (Ronnie for brevity), 23 years old, single, a farmer, testified that at around 6:30 o clock in the evening of October 5, 1997, he was inside their house located in Siba-o, Calabanga, Camarines Sur. Rommel Cabiles, Dennis Florendo and he were watching the group of Victorino Bernal, Allan Cabiles, Generoso San Jose and Edgar Florendo play tongits (a game of cards). Dante Nicolas, Junior Nicolas, Bobby Quiones and Ponciano Alcantara

145[27]

TSN, August 11, 1998, pp. 16-18. TSN, August 14, 1998, p. 3. TSN, August 14, 1998, pp. 4-8. TSN, August 28, 1998, p. 6; Rollo, p. 67.

146[28]

147[29]

148[30]

were also playing tong-its inside their house. Bonifacio Aliben, Diosdado Nicolas and Junior Godoy were watching this other group play.149[31] While Ronnie was watching the game, somebody threw small stones with soil at the place where the Bernal group was playing, and Victorio Bernal was hit on the forehead. Then another stone was thrown which landed on top of the table used by said group. They then all went out.150[32] Ronnie looked for the person who threw the stones in their backyard and found Juanito Bongon, Sr. hiding behind a coconut tree. Bongon, Sr. stabbed Ronnie three (3) times with a balisong, but he was not hit. Ronnie moved backward, then Bongon, Sr. pursued him. Ronnie was able to get hold of a piece of wood and hit Bongon, Sr., who was facing him, on the left temple causing Bongon, Sr. to fall down. Ronnie lost control of himself and did not know if he continued hitting Bongon, Sr. When Bongon, Sr. was silent, Ronnie left him.151[33] Ronnie proceeded to the house of William Sanchez, barangay captain of Siba-o, to surrender himself. He was accompanied by Bonifacio Aliben and Dante Nicolas. He narrated the incident to Barangay Captain Sanchez who is his relative by affinity. He also surrendered to Sanchez the piece of wood he used in hitting Bongon, Sr. Sanchez then went to the Calabanga Police Station, after which Sanchez with Police Officer Ramon Tarala and Diosdado Nicolas went to fetch Ronnie from the latters house in Siba-o. They brought him to the Municipal Hall of Calabanga where he was investigated and then imprisoned.152[34] Ronnie denied that Diosdado Nicolas and Bonifacio Aliben helped him in striking Bongon, Sr., and stated that he was the only one involved in the incident. Diosdado Nicolas is his brother, while Bonifacio Aliben is his friend.153[35] Appellant Diosdado Nicolas (Diosdado for brevity), 29 years old, married, a laborer, denied that he participated in the killing of Juanito Bongon, Sr. He testified that at around 6:30 o clock in the evening of October 5, 1997, he was in the store of his mother. Bonifacio Aliben, Solomon Godoy, Jr. and he were watching Ponciano Alcantara, Dante Nicolas, Fabi Quiones and Pedro Nicolas, Jr. play tong-its. Another group of players, including Victorio Bernal, was also playing tong-its, while Ramil Cabiles, Dennis Florendo and Ronnie Nicolas were only watching them play. While Diosdado was watching the game, someone threw soil with little sand, hitting Victorio Bernal on the left side of his forehead and on his left shoulder. Then a stone was thrown that landed on top of the table where the game was being played. They all
149[31]

TSN, November 6, 1998, pp. 3-4. TSN, November 6, 1998, pp. 5-6. TSN, November 6, 1998, pp. 7-9. TSN, November 6, 1998, pp. 9-12, 27, 29. TSN, November 6, 1998, pp. 2-3, 13.

150[32]

151[33]

152[34]

153[35]

stood up and went out of the house. Victorio Bernal told Diosado to inform his mother about the incident. Diosdado ran to their house in Iraya, Siba-o, Calabanga, Camarines Sur and informed his mother about the stoning incident, then returned to his own house. After twenty minutes, Diosdado returned to his mothers house and asked his mother if Ronnie, who lived there, already went home. His mother responded in the negative. Diosdado went back to their store, but Ronnie was not there. He went to the house of the barangay captain and found Ronnie there. He asked Ronnie why he had not gone home, but Ronnie did not answer. The barangay captain asked Diosdado to accompany him to the police station to report the incident. From the police station, they were accompanied by Police Officer Ramon Tarala to fetch Ronnie from his mothers house in Iraya. They brought Ronnie to the police station where he was i nvestigated and then placed in a room. Diosado slept on a bench and went home the following morning with the barangay captain.154[36] Appellant Bonifacio Aliben, 41, married, a farmer, testified that at around 6:30 o clock in the evening of October 5, 1997, he was in the store of Ester Nicolas. Diosdado Nicolas, Junior Godoy and he were watching Dante Nicolas, Ponciano Alcantara and Bobby Quiones play tong-its. Another group of persons, including Victorio Bernal, was also playing tong-its, while Dennis Florendo, Rommel Cabiles and Ronnie Nicolas were only watching the game. Suddenly, someone threw soil which hit Victorio Bernal on the forehead. Then a stone was thrown which landed on the table where the game was being played. All of them went out. Aliben went in front of the store and no longer knew where his companions went. He, together with Dante Nicolas, stayed in front of the store for about twenty (20) minutes doing nothing. Then Ronnie passed by and asked to be accompanied to the barangay captain. Ronnie did not tell them why they were going to the barangay captain. They only learned that Ronnie hit Juanito Bongon, Sr. with a piece of wood when Ronnie narrated the incident to the barangay captain. After the barangay captain investigated Ronnie about the incident, Aliben went home, while Ronnie was left behind.155[37] Bonifacio Aliben denied that he participated in the killing of Juanito Bongon, Sr. and claimed that it was only Ronnie who killed him. He also denied the allegations of the prosecution witnesses that he was seen walking briskly towards his home carrying a bloodstained bolo at around 6:30 o clock in the evening of October 5, 1995, stating that it was Ronnie whom they saw.156[38] Victorio Bernal corroborated the testimonies of appellants. He testified that at around 6:30 o clock in the evening of October 5, 1997, while he was playing tong-its in the store of Ester Nicolas, somebody threw a small stone with soil which hit him on the head. Then a bigger stone was thrown which fell on top of their table. Everyone in the store went out. When Bernal reached the door, he heard a voice say, The person is here. He looked at the direction where TSN, December 2, 1998, pp. 3-12. TSN, November 4, 1998, pp. 12-21. TSN, November 4, 1998, pp. 17-18.

154[36]

155[37]

156[38]

the voice came from and saw Juanito Bongon, Sr. standing at the back of the house and holding a bladed weapon or lanceta. Bernal got scared and immediately fled. The following morning, he heard that Juanito Bongon, Sr. was already dead.157[39] Solomon Godoy, Jr. also corroborated appellants testimonies. He testified that at around 6:30 o clock in the evening of October 5, 1997, he was in the house of Ester Nicolas. Bonifacio Aliben, Diosdado Nicolas and he were watching the group of Dante Nicolas play tong-its. While he was watching the game, somebody threw small stones with soil which hit Victorio Bernal, a member of the other group of players, on the forehead. Then another stone was thrown at the other group, so they all went out. While Godoy, Jr. was standing on the side of the road for a few minutes, he heard the name of Juanito Bongon, Sr. He also heard a commotion but he did not bother to investigate it because he got scared and went directly home.158[40] William Sanchez, barangay captain of Siba-o, Calabanga, Camarines Sur, testified that at about 6:30 o clock in the evening of October 5, 1997, while he was in his house watching television, Ronnie Nicolas, Bonifacio Aliben and Dante Nicolas entered his house. Ronnie reported to him that Juanito Bongon, Sr. was already dead and admitted that he killed him. After asking Ronnie questions, Sanchez went out of the house to look for a tanod because he intended to go to the place of the incident. Unable to find a tanod, he returned to his house with the intention of surrendering Ronnie. Sanchez and Diosdado Nicolas went to the Calabanga Police Station and reported the incident to Police Officer Ramon Tarala. Police Officer Tarala went with them to Siba-o to fetch Ronnie from the latters house. Thereafter, they brought Ronnie to the police station where he was investigated and then imprisoned.159[41] Sanchez further testified that on the next day, October 6, 1997, Ester Nicolas, the mother of Ronnie, surrendered to him the balisong (a bladed weapon) which they allegedly found at the place of the incident. On the same day, he immediately turned over to the Calabanga Police Station the said balisong, together with the 2x2 piece of wood that Ronnie surrendered to him in the evening of October 5, 1997. Sanchez told the desk officer that the piece of wood was used by Ronnie in hitting the Bongon, Sr. and that the knife was allegedly used by Bongon, Sr. in attempting to stab Ronnie.160[42] On cross-examination, Sanchez admitted that he is a relative by affinity of appellants Diosdado Nicolas and Ronnie because their mother is the sister of his wife.161[43]

157[39]

TSN, October 20, 1998, pp. 14-18. TSN, November 9, 1998, pp. 5-6, 11. TSN, November 24, 1998, pp. 6-10, 20, 22, 26. TSN, November 24, 1998, pp. 11, 31-32, 39. TSN, November 24, 1998, p. 12.

158[40]

159[41]

160[42]

161[43]

SPO1 Dante Sta. Rosa, a member of the Philippine National Police (PNP for brevity), Calabanga, Camarines Sur, produced in court the balisong162[44] and the piece of wood163[45] which were allegedly turned over to the PNP, Calabanga on October 6, 1997 by Sanchez through SPO1 Leopoldo Talle. He testified that the investigator on duty turned over to him said pieces of evidence when they were surrendered.164[46] On cross-examination, SPO1 Sta. Rosa admitted that SPO1 Leopoldo Talle delivered to him the piece of wood and the balisong on October 8, 1997 after the turnover of said evidence was entered in the police blotter as Entry No. 1020 dated October 8, 1997 by SPO1 Talle. It was the custom in their office, he said, that whenever evidence was received in a particular case, it was recorded on the date it was received.165[47] Rebuttal Evidence The prosecution presented as rebuttal witness SPO1 Leopoldo Talle who testified that on October 8, 1997, he was the acting desk officer of the Calabanga Police Station. On said date, he received a piece of wood166[48] measuring about 1 x 2 x 5 inches and one balisong knife167[49] measuring about eight and three-fourths (8 ) inches long. He recorded his receipt of said evidence in the Police Blotter as Entry No. 1020 dated October 8, 1997 at 10:30 a.m.168[50] The Trial Courts Ruling The trial court gave credence to the testimonies of prosecution eyewitnesses Ramon Barsaga and Floserfida Fabricante who positively identified appellants Ronnie Nicolas, Diosdado Dado Nicolas and Bonifacio Aliben as the assailants responsible for the victims death. Said court stated that their testimonies were corroborated by Dalia Requinta and Pepito Seguenza who saw Aliben walking with a bloodstained bolo in his hand on the date and at the time of the incident. The court also admitted in evidence the dying declaration of the victim Juanito Bongon, Sr. naming Dado and Ronnie as his assailants. It found no ulterior motive on the part of Juanito Bongon, Jr. and Josefa Bongon to fabricate the declaration of the victim. The court ruled that the

162[44]

Exhibit 3, TSN, December 4, 1998. p. 4. Exhibit 2, TSN, December 4, 1998, p. 4. TSN, December 4, 1998, pp. 3-4. TSN, December 4, 1998, pp. 4, 8, 11. Exhibit 2, TSN, January 13, 1999, p. 4. Exhibit 3, TSN, January 13, 1999, p. 5. TSN, January 13, 1999, pp. 3-4.

163[45]

164[46]

165[47]

166[48]

167[49]

168[50]

positive testimonies of the prosecution witnesses prevailed over the denial and alibi of appellants Diosdado Nicolas and Bonifacio Aliben. The trial court rejected the theory of self-defense of appellant Ronnie Nicolas because the latter continued hitting the victim after he had immobilized him by hitting him on the head. Moreover, Dr. Rey Millena found that there was more than one instrument used against the victim and the numerous injuries sustained by the victim were fatal injuries that negated self-defense. Further, the trial court ruled that conspiracy and abuse of superior strength were present in the commission of the crime. It considered voluntary surrender in favor of appellant Ronnie Nicolas. The trial court pronounced judgment, thus: WHEREFORE, in view of the foregoing, the prosecution having proved the guilt of the accused beyond reasonable doubt and having prove[d] conspiracy, accused are hereby found guilty of murder. There being no aggravating nor mitigating circumstances, accused Diosdado Nicolas and Bonifacio Aliben are hereby sentenced to suffer the penalty of RECLUSION PERPETUA. Accused Ronnie Nicolas, after taking into consideration the mitigating circumstance of voluntary surrender, is hereby sentenced to suffer the penalty of RECLUSION PERPETUA. Likewise, they are ordered to jointly and severally indemnify the heirs of victim Juanito Bongon, Sr. the amount of P50,000.00 for his death; moral damages in the amount of P30,000.00; P18, 918.05 as actual damages; and to pay the costs. SO ORDERED.169[51] Appellants thereafter moved for a new trial on the ground of newly discovered evidence. They prayed that the supposed witness of the prosecution, Rommel Cabiles, be allowed to testify for the defense since he was recanting his sworn statement which was used as a supporting affidavit of the criminal complaint. The trial court denied said motion on the ground that the sworn statement attached to the motion did not constitute new evidence and merely corroborated the testimony of appellant Ronnie Nicolas. Appellants motion for reconsideration was likewise denied. Hence, this appeal. Appellants ascribe to the trial court the following errors: 1. THE LOWER COURT ERRED IN RULING THAT THE ACCUSED WERE POSITIVELY IDENTIFIED ON THE BASES OF THE BIASED AND INCREDIBLE TESTIMONIES OF THE ALLEGED EYEWITNESSES, NAMELY ROMEO BARSAGA AND FLOSERFIDA FABRICANTE, THE FRIEND AND THE SISTER OF THE VICTIM, RESPECTIVELY.

169[51]

Rollo, pp. 66-67.

2. THE LOWER COURT ERRED IN CONSIDERING THE DYING DECLARATION OF THE VICTIM JUANITO BONGON, SR. ON THE BASIS OF THE FABRICATED AND INCONSISTENT TESTIMONIES OF JUANITO BONGON, JR., AND JOSEFA BONGON, THE SON AND WIFE OF THE VICTIM, RESPECTIVELY, DESPITE THE TESTIMONY OF DR. REY MILLENA THAT THE VICTIM COULD HAVE IMMEDIATELY DIED AND THAT THERE WAS NO POSSIBILITY FOR THE VICTIM TO TALK AFTER HE SUSTAINED THE FATAL INJURIES. 3. THE LOWER COURT ERRED IN RULING THAT THERE WAS MORE THAN ONE INSTRUMENT USED IN ATTACKING THE VICTIM BECAUSE OF THE SINGLE INCISED WOUND FOUND ON THE HEAD OF THE VICTIM. 4. THE LOWER COURT ERRED IN RULING THAT THERE WAS CONSPIRACY AMONG THE ACCUSED IN ATTACKING THE VICTIM, INSPITE OF THE DECLARATION OF ACCUSED NICOLAS THAT IT WAS ONLY [HE] WHO KILLED THE VICTIM IN SELFDEFENSE. 5. THE LOWER COURT ERRED IN DISREGARDING THE THEORY OF SELF-DEFENSE PUT UP BY ACCUSED RONNIE NICOLAS. 6. THE LOWER COURT ERRED WHEN IT CONVICTED ALL THE ACCUSED BASED ON THE ALLEGED CORROBORATIVE TESTIMONIES OF THE PROSECUTIONS WITNESSES AND TOTALLY DISREGARDING THE [ACCUSEDS] TESTIMONIES AND [THOSE] OF THEIR WITNESSES.170[52] The Courts Ruling First Issue: Credibility of the Prosecution Witnesses Appellants contend that the trial court erred in ruling that they were positively identified based on the testimonies of prosecution eyewitnesses Romeo Barsaga and Floserfida Fabricante who were not credible witnesses. Appellants assert that the testimony of Romeo Barsaga, a friend of the victim, was not credible. First, Barsaga was just seven (7) meters away from the place of the incident, but he did nothing except watch his friend being beaten up. Second, Barsaga neither shouted nor sought assistance. Third, he did not report the incident to any member of the family except to the victims mother and a Grade One boy who were not capable of responding to the incident. Barsaga could not even name the victims mother and the boy although he had stayed in the victims house on several occasions. Fourth, Barsaga went home to Bacacay, Albay after the incident instead of rendering assistance to the victims family or inquiring about the condition of his friend. Appellants contention is not tenable.

170[52]

Rollo, pp. 99-100.

Different people react differently to an unusual event, and there is no standard form of behavior when an individual witnesses something so shocking or gruesome as murder especially if the assailant is near.171[53] Reluctance to get involved in the criminal incident is not an unnatural reaction of some individuals.172[54] Barsaga testified that he got scared after witnessing appellants attack the victim, Juanito Bongon, Sr.173[55] Thus, he returned to the victims house where he was then staying and immediately informed the victims mother and a certain boy about what he had witnessed.174[56] The wife and children of the victim were not around then and he later learned that they brought the victim to the hospital.175[57] The reaction of Barsaga upon witnessing the incident and Barsagas failure to state the names of the victims mother and the boy to whom he narrated the incident pertain to collateral matters, which do not touch upon the commission of the crime itself and do not detract from the positive identification of appellants as the assailants, and therefore do not affect the substance, veracity or weight of his testimony.176[58] The fact that Barsaga went home the day after the incident, knowing that the victim was already in the hospital, in no way impairs his credibility. Appellants further question the credibility of Barsaga because he testified that the victim was repeatedly hacked by appellant Bonifacio Aliben with a bolo, but could not tell how many times the victim was hacked and which part his body was hit. Also noteworthy, they claim, is the fact that there was also only one (1) incised wound found on the victims head, despite Barsagas testimony that the victim was hacked repeatedly. As the Solicitor General stated, it has been held that eyewitnesses to a horrifying event cannot be expected to be completely accurate in picturing to the court all that had transpired and every detail of what they had seen or heard.177[59] Although Barsaga testified that he could not give an estimate of the number of times Aliben hacked the victim, this is not sufficient to cast doubt on the testimony of Barsaga that he saw the appellants hit the victim on the head with pieces of wood and a bolo. From a distance of seven (7) meters, Barsaga recognized the faces of appellants as he often saw them at the store whenever he was in Siba-o.178[60] Although there was only one
171[53]

People v. Naredo, 276 SCRA 489, 496 (1997). Ibid. TSN, June 19, 1998, p. 33. TSN, June 19, 1998, pp. 33-34. TSN, June 19, 1998, p. 34. People v. Irinea, 164 SCRA 121, 127 (1988). People v. Bihison, 308 SCRA 510, 517 (1999). TSN, June 19, 1998, pp. 30-31.

172[54]

173[55]

174[56]

175[57]

176[58]

177[59]

178[60]

incised wound found on the victims head, this is not inconsistent with several blows having been made with said bolo, since a bolo has dull sides and not all blows find their target. Appellants argued that it was quite impossible that Floserfida Fabricante, the victims sister, who witnessed the incident from a distance of only ten (10) meters, failed to recognize that the victim was her brother. Appellants may have been unaware or unmindful of Fabricantes explanation that she did not recognize that the victim was her brother because when she saw him being mauled, he was already lying down on the ground,179[61] which we find to be satisfactory. Appellants also contend that the testimony of Fabricante that they allegedly concentrated their attack on the head of the victim was incredible. They insist that the normal tendency of attackers is to hit the victim in whatever part of the body is exposed to them. Hence, it was unthinkable that Ronnie Nicolas and Diosdado Nicolas would be hitting the head of the victim with a piece of wood simultaneously, while Aliben was likewise hacking the head of the victim. The Solicitor General correctly countered that there is no such normal tendency in attacking a victim, as a malefactor could attack his victim in any part of the body he chooses and in any manner he pleases. There is no standard manner or form of executing a criminal design. Significantly, Dr. Rey Millena, who autopsied the body of the victim, testified that he found no sign of physical injuries at the upper and lower extremities of the victims body. 180[62] He found that the injuries were more or less concentrated on the head and face.181[63] Dr. Millenas findings, therefore, supported the testimony of Fabricante that the appellants concentrated their attack on the victims head. Appellants also point out the alleged inconsistent testimonies of Barsaga and Fabricante. Barsaga allegedly testified that he was going to the store of Puring to buy cigarettes when he saw the incident, while Fabricante, whose nickname was Puring, testified that she was not operating a store. We found no inconsistency in their statements. The transcript of stenographic notes shows that Barsaga testified that he was going to the store near the house of Floserfida Puring Fabricante to buy cigarettes when he witnessed the incident.182[64] Hence, Fabricante consistently testified that she was not operating a store.

179[61]

TSN, June 24, 1998, pp. 6, 13. TSN, August 11, 1998, p. 7. Ibid. TSN, June 19, 1998, p. 29.

180[62]

181[63]

182[64]

Appellants also contend that Barsaga testified that he saw Aliben hack the victim several times, but Fabricante testified that she saw Aliben hack the victim only once. It has been held that a witness testifying about the same nerve-wracking event can hardly be expected to be correct in every detail and consistent with other witnesses in every respect, considering the inevitability of differences in perception, recollection, viewpoint or impressions, as well as in their physical, mental, emotional and psychological states at the time of the reception and recall of such impressions.183[65] After all, no two persons are alike in powers of observation and recall.184[66] Total recall or perfect symmetry is not required as long as witnesses concur on material points.185[67] Notably, both Barsaga and Fabricante positively identified appellants as the assailants of the victim and they testified in a straightforward manner. Since there is no evidence that these principal witnesses for the prosecution were actuated by improper motive, their testimonies are entitled to full faith and credit.186[68] Further, it is a well-settled doctrine that findings of trial courts on the credibility of witnesses deserve a high degree of respect. Having observed the deportment of witnesses during the trial, the trial judge is in a better position to determine the issue of credibility; thus, his findings will not be disturbed on appeal in the absence of any clear showing that he overlooked, misunderstood or misapplied some facts or circumstances of weight and substance that could have altered the conviction of appellants.187[69] We have carefully reviewed the records of this case and found no reason to disturb the findings of the trial court. Second Issue: Dying Declaration Appellants would fault the trial court for considering the dying declaration of the victim which they alleged was based on the fabricated and the inconsistent testimonies of Juanito Bongon, Jr. and Josefa Bongon. They point to the contradictory testimonies of Juanito Bongon, Jr. and Josefa Bongon as to the exact instance when the victim gave his dying declaration and on the manner the victim was retrieved from the place of the incident. Appellants contend that Juanito Bongon, Jr. testified that it was only after he started the engine of the motorized padyak which turned on its lights that he was able to recognize that the victim he placed on his padyak was his father. It was at this juncture when he asked his father who his assailants were and that his father answered Dado and Ronnie. Appellants argue that Juanito Bongon, Jr. never testified that the dying declaration of his father was made in the presence of
183[65]

People v. Mamalayan, 280 SCRA 748, 761 (1997). Ibid. Ibid. People v. Legaspi, 331 SCRA 95, 115 (2000). Espano v. Court of Appeals, 288 SCRA 558, 563 (1998).

184[66]

185[67]

186[68]

187[69]

his mother Josefa Bongon. However, Josefa Bongon testified that she was present and heard the dying declaration of her husband. Josefa Bongon also declared that her husband gave his dying declaration to her son before the motorized padyak was started, which is inconsistent with the testimony of Juanito Bongon, Jr. The transcript of stenographic notes shows otherwise. Juanito Bongon, Jr. testified on crossexamination that his mother Josefa Bongon and his brother arrived when he placed the body of his father inside his padyak.188[70] This was before he turned on the motor and the lights of his padyak, which enabled him to recognize the victim to be his father. It was only when Bongon, Jr. recognized that the victim was his father that he elicited his fathers dying declaration. Hence, the testimonies of Juanito Bongon, Jr. and Josefa Bongon were consistent on her presence when the victim gave his dying declaration. Although Josefa Bongon testified that her son Juanito Bongon, Jr. asked his father who mauled him before he started his padyak, which differs from her sons testimony, said inconsistency refers to a minor detail which does not impair the essential integrity of the prosecutions evidence as a whole or detract from the witnesses testimonies that the victim gave a dying declaration naming Dado and Ronnie as his assailants.189[71] On the contrary, said inconsistency tends to strengthen the credibility of the prosecution witnesses because it erases the suspicion of a rehearsed testimony.190[72] The allegations of appellants that there were inconsistencies in the testimonies of Fabricante and Josefa Bongon regarding the manner the victim was retrieved from the place of the incident likewise refer to minor details and collateral matters, which do not touch upon the commission of the crime itself or detract from the positive identification of the appellants as the assailants.191[73] Therefore, the alleged inconsistencies do not affect the substance of the prosecution witnesses declarations, their veracity, or the weight of their testimonies.192[74] Appellants also contend that based on the testimonies of the prosecution witnesses, the victim was already dead when he was found, so he could not have uttered his dying declaration. This conclusion was allegedly supported by Dr. Rey Millena who testified that based on the fatal injuries sustained by the victim, there was no possibility for the victim to talk because his injuries would cause his immediate death. Hence, appellants insist that it was error for the trial court to consider the alleged dying declaration of the victim.

188[70]

TSN, May 26, 1998, p. 16. People v. Conde, 252 SCRA 681, 691 (1996). Ibid. People v. Irinea, supra. Ibid.

189[71]

190[72]

191[73]

192[74]

We are not persuaded. According to the trial court, although the doctor testified that based on his post-mortem examination, the victim could have died immediately after sustaining the injuries on the right side of his head, Josefa Bongon and Juanito Bongon, Jr. however testified that the victim remained alive for a few seconds.193[75] Bongon, Jr. testified that when he saw the victim, he was still alive, moaning.194[76] After he carried the victim to his padyak, the victim was able to reply to his question as to the identity of his assailants by uttering the names Dado and Ronnie.195[77] The victim was about to say more but his serious physical condition prevented him from doing so.196[78] We agree with the Solicitor General that there is no evidence or any indication showing that a dubious reason or improper motive impelled Juanito Bongon, Jr. to make a false testimony; thus, his testimony deserves full faith and credence. It would be unnatural for the victims relatives to commit an injustice by taking the witness stand and imputing the crime to innocent persons and not to those who were actually responsible therefor.197[79] Hence, the trial court did not err when it believed the testimonies of Josefa Bongon and Juanito Bongon, Jr. that Juanito Bongon, Sr. was able to name his assailants before he died. For a dying declaration to be admissible in evidence, the following requisites must concur: (1) the dying declaration must concern the cause and surrounding circumstances of the declarants death; (2) at the time of making his declaration, the declarant was under a consciousness of impending death; (3) the declarant must have been competent to testify as a witness; and (4) the declaration was offered in a criminal case for homicide, murder or parricide in which the declarant was the victim.198[80] These requisites are present in the case at bar. The injuries sustained by the victim were serious enough to make the declarant conscious of impending death, which in fact occurred even before he reached the hospital. His declaration, which identified his assailants, referred to the cause of his death. The declarant was competent to testify as a witness if he had been called upon to give testimony in court. The declarants dying declaration was offered in this case wherein he is the victim. Having satisfied all the aforementioned requisites, the trial court did not err in admitting
193[75]

Rollo, p. 59. TSN, May 26, 1998, p. 14. TSN, May 26, 1998, p. 7; August 28, 1998, p. 5. Ibid. People v. Legaspi, supra.

194[76]

195[77]

196[78]

197[79]

People v. Norrudin, G.R. No. 129053, January 25, 2002, citing People v. Taeza, 334 SCRA 30, 43 (2000).
198[80]

in evidence the victims dying declaration. A dying declaration is an exception to the hearsay rule, because of its necessity and trustworthiness:199[81] Necessity, because the declarants death makes it impossible for him to take the witness stand; and trustworthiness, because when a person is at the point of death, every motive for falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth.200[82] Third Issue: The number of weapons used to commit the crime Appellants next contend that the trial court erred in ruling that more than one instrument was used in attacking the victim. We disagree. Dr. Millena, who conducted the autopsy of the body of the victim, testified that the victims internal injuries, consisting of fractures on the head and the face, were caused by a blunt instrument, while the incised wound on the right side of the victims head may have been caused by a sharp-edged instrument.201[83] Hence, the trial court correctly ruled that more than one instrument was used in inflicting the injuries sustained by the victim, which was supported by the findings of Dr. Millena.202[84] Fourth Issue: Presence of Conspiracy Appellants also contend that the trial court erred in ruling that there was conspiracy among them in the commission of the crime. The contention is without merit. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.203[85] In the absence of direct proof of conspiracy, it may be deduced from the mode, method and manner by which the offense was perpetrated, or inferred from the acts of the accused themselves when such acts point to a joint purpose and design, concerted action and community of interest.204[86]

199[81]

People v. De Leon, G.R. No. 144052, March 6, 2002. Id. TSN, August 11, 1998, pp. 11-12. TSN, August 11, 1998, p. 13. People v. Fuertes, 326 SCRA 382, 407 (2000). People v. Dacibar, 325 SCRA 725, 743 (2000).

200[82]

201[83]

202[84]

203[85]

204[86]

In the case at bar, prosecution eyewitnesses Barsaga and Fabricante testified that they saw appellants help each other in attacking the victim. Appellant Bonifacio Aliben was striking the victim with a bolo, while appellants Ronnie Nicolas and Diosdado Nicolas were hitting him with a piece of wood.205[87] Their concerted action showed unity of purpose to harm the victim. As noted by the Solicitor General, not one of the three appellants prevented the attack on the victim nor did any of them do anything to discontinue the commission of the crime. The trial court also noted that prior to the incident, appellants admitted that they were together inside the store of Ester Nicolas. Considering these circumstances, the trial court correctly ruled that there was conspiracy among the appellants. Where conspiracy is established, the act of one is the act of all.206[88] All the conspirators are liable as co-principals.207[89] Appellants further contend that the testimonies of Requinta and Seguenza that they saw Aliben carrying a bloodstained bolo was contrary to human experience. The normal actuation of an assailant, they argue, is to hide his weapon and not brandish the same before the public. We agree with the Solicitor General that the alleged actuation of Aliben is not contrary to human experience, considering the number of incidents where criminals, particularly of late, boldly execute their evil design and walk away in public. Fifth Issue: Self-defense Appellants fault the trial court for discrediting the claim of Ronnie Nicolas that he killed the victim in self-defense. When the accused invokes self-defense, it becomes incumbent upon him to prove by clear and convincing evidence that he indeed acted in defense of himself.208[90] Self-defense as a justifying circumstance is present when the following concur: (1) unlawful aggression; (2) reasonable necessity of the means employed to repel or prevent it; and (3) lack of sufficient provocation on the part of the person defending himself.209[91] Appellant Ronnie Nicolas contends that unlawful aggression came from the victim with no provocation on his part. He testified that while he was looking in their backyard for the person who threw the stones into their store, he found the victim Juanito Bongon, Sr. hiding behind a coconut tree.210[92] It was Bongon, Sr. who attacked him first by stabbing him three (3) times
205[87]

TSN, June 19, 1998, pp. 30-31; June 24, 1998, pp. 4-5, 9. People v. Pablo, 349 SCRA 79, 96 (2001). Ibid. Jacobo v. Court of Appelas, 270 SCRA 270, 282 (1997).

206[88]

207[89]

208[90]

Escato v. Court of Appeals, 278 SCRA 752, 755 (1997); People v. Tobias, 267 SCRA 229, 255 (1997); People v. Alib, 322 SCRA 93, 99 (2000).
209[91] 210[92]

TSN, November 6, 1998, p. 7.

with a balisong, but he was not hit.211[93] He moved backward, then Bongon, Sr. pursued him.212[94] He was able to get hold of a piece of wood and hit Bongon, Sr. on his left temple causing Bongon, Sr. to fall down.213[95] He lost control of himself and he did not know if he continued hitting the victim.214[96] When the victim was silent, he left him.215[97] The testimony of Ronnie Nicolas shows that the victim, who allegedly attacked him first, was immobilized when he hit the victim with a piece of wood on the temple causing the victim to fall down. At that point, the alleged unlawful aggression of the victim ceased. Yet, Ronnie continued hitting the victim until the latter was silent, which already manifested intent to kill. The Necropsy Report216[98] showed that the victim sustained an incised wound on the right side of the victims head217[99] and several fractures, as well as, three (3) contusions with lacerations and abrasions on the head and face. Dr. Millena testified that the injuries sustained by the victim on the head were fatal. 218[100] The nature, number and location of the wounds sustained by the victim belie the assertion of selfdefense since the gravity of said wounds is indicative of a determined effort to kill and not just to defend.219[101] Moreover, as earlier mentioned, Dr. Millena testified that more than one instrument was used in inflicting the injuries sustained by the victim.220[102] The fractures on the head were caused by a blunt instrument,221[103] while the incised wound may have been caused by a sharp-edged

211[93]

TSN, November 6, 1998, pp. 7-8. TSN, November 6, 1998, p. 8. Ibid. TSN, November 6, 1998, p. 9. Ibid. Exhibit B, Records, p. 11. TSN, August 11, 1998, p. 12. TSN, August 11, 1998, p. 11. People v. Baniel, 275 SCRA 472, 482 (1997). TSN, August 11, 1998, p. 13. TSN, August 11, 1998, p. 11.

212[94]

213[95]

214[96]

215[97]

216[98]

217[99]

218[100]

219[101]

220[102]

221[103]

instrument.222[104] This led the trial court to conclude that the injuries inflicted were caused by more than one person and with two kinds of weapons.223[105] Considering the foregoing and the positive testimonies of Barsaga and Fabricante identifying the three appellants as the assailants of the victim, we agree with the trial court that Ronnie Nicolas declaration that he killed the victim in self-defense cannot be given credence. Sixth Issue: Defense of Denial and Alibi Appellants assert that the trial court erred in convicting Diosdado Nicolas and Bonifacio Aliben because they have clearly established that they did not participate in killing the victim. Diosdado Nicolas and Bonifacio Aliben put up the defense of denial and alibi. The defense of denial, like alibi, is considered with suspicion and is always received with caution, not only because it is inherently weak and unreliable, but also because it can be fabricated easily.224[106] For alibi to be given weight, the accused must prove not only that he was somewhere else when the crime was committed, but also that he was so far away that it was physically impossible for him to be present at the scene of the crime or its immediate vicinity at the time of its commission.225[107] Alibens alibi was that after someone threw a stone into the store of Ester Nicolas, he went out of the store.226[108] Then he merely stood in front of the store for twenty (20) minutes doing nothing.227[109] He even testified on cross-examination that he was then with Dante Nicolas before Ronnie Nicolas passed by and asked them to accompany him to the house of the barangay captain, which was inconsistent with the testimony of Diosdado Nicolas.228[110] Diosdado Nicolas testified that after someone threw a stone into the store of his mother, he immediately went to his mothers residence in Iraya to inform his mother about what happened,
222[104]

TSN, August 11, 1998, p. 12. Rollo, p. 61.

223[105]

People v. Vialon, et al., G.R. No. 135542, July 18, 2002, citing People v. Batidor, 303 SCRA 335, 350 (1999).
224[106]

People v. Alib, supra at 100; People v. Juan, 322 SCRA 598, 616 (2000); People v. Rendoque, 322 SCRA 622, 636 (2000).
225[107] 226[108]

TSN, December 4, 1998, p. 16. Ibid. TSN, December 4, 1998, p. 19.

227[109]

228[110]

and then returned to his own house.229[111] After twenty minutes, he went back to his mothers house where Ronnie lived and asked his mother if Ronnie was already home.230[112] When his mother responded in the negative, he returned to their store, but Ronnie was not there. 231[113] He then went to the house of the barangay captain where he found Ronnie.232[114] Despite the different versions of their testimonies, it is evident that appellants Bonifacio Aliben and Diosdado Nicolas were very near the place of the incident at the time the victim was killed. The victim was killed only about five (5) meters away from the store of Ester Nicolas.233[115] At that time, Aliben was in front of the said store, while Diosado Nicolas was within Barangay Siba-o, if not in the vicinity of his mothers store. Ronnie Nicolas admitted killing the victim, but Diosdado Nicolas and Bonifacio Aliben denied participation. The trial court held that it was impossible to believe that while they were at the store, they had no knowledge of what was going on.234[116] Appellants Diosdado Nicolas and Bonifacio Aliben failed to satisfy the requirement of alibi that it was physically impossible for them to be present at the scene of the crime or its immediate vicinity at the time of its commission. Furthermore, it is well settled that positive identification, where categorical and consistent and not attended by any showing of ill motive on the part of the eyewitnesses testifying on the matter, prevails over alibi and denial which, if not substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving weight in law.235[117] Hence, the defense of denial and alibi cannot prosper in the light of the positive identification by eyewitnesses Ramon Barsaga and Floserfida Fabricante that appellants were the perpetrators of the crime.236[118] Taking advantage of superior strength We agree with the trial court that the killing was attended by the aggravating circumstance of taking advantage of superior strength which was alleged in the Information. Superiority in number does not necessarily amount to the aggravating circumstance of taking advantage of
229[111]

TSN, December 2, 1998, p. 7. TSN, December 2, 1998, p. 8. Ibid. TSN, December 2, 1998, pp. 8-9. TSN, May 26, 1998, p. 16. Rollo, p. 61. People v. Galano, 327 SCRA 462, 474 (2000). People v. Rendoque, supra.

230[112]

231[113]

232[114]

233[115]

234[116]

235[117]

236[118]

superior strength.237[119] It is necessary to show that the aggressors cooperated in such a way as to secure advantage from their superiority in strength.238[120] There must be proof of the relative physical strength of the aggressors and the assaulted party or proof that the accused simultaneously assaulted the deceased.239[121] The circumstance of taking advantage of superior strength depends on the age, size and strength of the parties.240[122] It is considered whenever there is a notorious inequality of forces between the victim and the aggressor, assessing a superiority of strength notoriously advantageous for the aggressor which is selected or taken advantage of by him in the commission of the offense.241[123] The trial court correctly ruled that taking advantage of superior strength was present, thus: In the instant case, the 3 accused were all armed. Ronnie Nicolas and Diodado Nicolas were armed with a piece of wood while Bonifacio Aliben was armed with a bolo and they helped one another in assaulting the victim who was alone. Furthermore, the victim at the time of his death was 52 years old while appellant Ronnie Nicolas at the time of the incident was 23 years old; Diosdado Nicolas was 29 years old and Bonifacio Aliben was 41 years old. There is a wide gap of the age between the victim and the accused, showing that the victim was much older than the three (3) accused who are younger and physically stronger.242[124] The attendant circumstance of taking advantage of superior strength qualifies the killing to murder under Article 248 of the Revised Penal Code: 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 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. x x x The Penalty

237[119]

People v. Pablo, supra at 98, citing People v. Casey, 103 SCRA 21, 34 (1981). Ibid. Ibid. People v. Bongadillo, 234 SCRA 233, 245 (1994). Ibid. Rollo, p. 65.

238[120]

239[121]

240[122]

241[123]

242[124]

Murder is punishable by reclusion perpetua to death. The voluntary surrender of Ronnie Nicolas to the barangay captain immediately after the incident is a mitigating circumstance. Under Article 63 (3) of the Revised Penal Code, when the commission of the act is attended by some mitigating circumstances and there is no aggravating circumstance, the lesser penalty shall be applied. On the other hand, no mitigating or aggravating circumstance may be considered against appellants Bonifacio Aliben and Diosdado Nicolas. Under Article 63 (2) of the Revised Penal Code, when there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied. Hence, the trial court correctly imposed upon the appellants the lesser penalty for the offense, which is reclusion perpetua. Damages The trial court correctly awarded to the heirs of the victim actual damages in the amount of Eighteen Thousand Nine Hundred Eighteen Pesos and Five Centavos (P18,918.05), which was supported by receipts.243[125] The trial court also correctly awarded to the heirs of the victim civil indemnity in the amount of P50,000.00, which needs no proof other than that of the death of the victim.244[126] Finally, the trial court correctly awarded moral damages to the heirs of the victim as the victims wife testified that she suffered mental anguish as a result of her husbands death. However, the amount of P30,000.00 it awarded should be increased to P50,000.00, in accordance with prevailing jurisprudence.245[127] An award of P25,000.00 for exemplary damages should also be added. WHEREFORE, the assailed Decision of the Regional Trial Court, Fifth Judicial Region, Branch 63, Calabanga, Camarines Sur, in Criminal Case No. RTC 98-236 (Cal), finding appellants Ronnie Nicolas, Diosdado Nicolas and Bonifacio Aliben GUILTY beyond reasonable doubt of the crime of murder and sentencing them to suffer the penalty of reclusion perpetua is hereby AFFIRMED. Appellants are ordered jointly and severally to pay the heirs of the victim, Juanito P. Bongon, Sr., civil indemnity in the amount of Fifty Thousand Pesos (P50,000.00); actual damages in the amount of Eighteen Thousand Nine Hundred Eighteen Pesos and Five Centavos (P18,918.05); moral damages in the amount of Fifty Thousand Pesos (P50,000.00), and exemplary damages in the amount of Twenty Five Thousand Pesos (P25,000.00). Costs de oficio. Records, Exhibits D-D-2, pp. 85-87; Exhibits E-E-2, pp. 88-90; Exhibit F, p. 91; Exhibit G, p. 92.
243[125] 244[126]

People v. Abadies, G.R. No. 135975, August 14, 2002.

People v. Domingo, G.R. No. 143660, June 5, 2002; People v. Dela Cruz, G.R. No. 139970, June 6, 2002.
245[127]

SO ORDERED. Davide, Jr., C.J., (Chairman), Vitug, and Carpio. JJ., concur. Ynares-Santiago, J., on leave.

Republic of the Philippines

Supreme Court
Manila

THIRD DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 179476 Present: CARPIO MORALES, Chairperson, BRION, PERALTA,* BERSAMIN, and VILLARAMA, JR., JJ. Promulgated:

-versus-

RUEL TUY , Accused-Appellant.

February 9, 2011

* In lieu of Justice Maria Lourdes P. A. Sereno who is on leave per Office Order No. 944 dated February 9, 2011.

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

RESOLUTION

BERSAMIN, J.:

Together with Ramon Salcedo, Jr. and Raul Salcedo, who have remained at large, appellant Ruel Tuy was charged with murder in the Regional Trial Court in Calabanga, Camarines Sur (RTC) for the killing of Orlando Barrameda in the afternoon of October 11, 2001 in Brgy.Bani, Tinambac, Camarines Sur, under the following information:

That on or about 4:00 oclock in the afternoon of October 11, 2001 at Bani, Tinambac, Camarines Sur, Philippines and within the jurisdiction of the Honorable Court, the said accused with intent to kill and while armed with firearms and a bolo and with conspiracy between and among themselves, did then and there, willfully, unlawfully and feloniously attack, assault and harm one Orlando Barrameda thereby inflicting mortal wounds on the different part of his body which caused his instantaneous death, to the damage of his heirs in such amount as maybe duly proven in court. Attendant during the commission of the crime is treachery because the accused took advantage of their superior strength, with arms and employed 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. Further, the offended party was at the time of the crime the incumbent barangay captain of the place where the incident happened. ACTS CONTRARY TO LAW.246[1]

Upon arraignment, the accused-appellant pleaded not guilty to the charge of murder. Thereafter, trial on the merits ensued.

For the Prosecution, Severino Barrameda (Severino), the son of the victim, declared that he had witnessed the Salcedos shooting and Tuy hacking his father. The medico-legal evidence presented through Dr. Salvador Betito, Jr. (Betito), who had conducted the autopsy, established that the victim had sustained five hack wounds and two gunshot wounds. Betito concluded that the cause of death was rapid external and internal hemorrhage secondary to multiple gunshot wounds and hack wounds.

246[1]

Records, p. 1.

In his defense, Tuy denied his participation in the crime and claimed that he was processing copra at the time of the killing in Sitio Olango, Brgy. Bani Tinambac, Camarines Sur. His brother Ramil Tuy corroborated him.

On February 22, 2006, the RTC rendered its decision convicting Tuy of murder, and archiving the case as against the Salcedos. The RTC based its judgment on the eyewitness testimony of Severino and on the testimony of Dr. Betito. The dispositive portion reads:

WHEREFORE, in view of the foregoing, the prosecution having proven the guilt of the accused Ruel Tuy beyond reasonable doubt, he is hereby found guilty of the crime of Murder as charged. He is hereby sentenced to suffer the penalty of RECLUSION PERPETUA and to pay the heirs of Orlando Barrameda the amount of P50,000 as civil indemnity; P50,000 as moral damages; P38,000 as actual damages and to pay the

costs. He is likewise meted the accessory penalty as provided for under the Revised Penal Code. xxx SO ORDERED. 247[2]

On appeal, the Court of Appeals (CA) affirmed the conviction,248[3] rejecting Tuys defenses of denial and alibi. It ruled that it was still physically

247[2] CA Rollo, pp. 65-66.

possible for him to come from Brgy. Olango and be at the seashore of Brgy. Bani, Tinambac, Camarines Sur where the killing happened. The decretal portion of the decision reads:

WHEREFORE, the assailed Decision of the Regional Trial Court, Branch 63, Calabanga, Camarines Sur in Criminal Case No. 02-697 dated 22 February 2006 is AFFIRMED. SO ORDERED.249[4]

Tuy now insists to us that the CA committed reversible error in affirming his conviction.

We affirm the decision of the CA.

Firstly, the findings of the RTC are accorded the highest degree of respect, especially if adopted and confirmed by the CA, because of the first-hand opportunity of the trial judge to observe the demeanor of the witnesses when they testified at trial; such findings are final and conclusive and may not be reviewed on

248[3] Rollo, pp. 2-12; penned by Associate Justice Romeo F. Barza, with Associate Justice Mariano C. Del Castillo (now a Member of the Court) and Associate Justice Arcangelita M. Romilla-Lontok (retired) concurring. 249[4] Id., pp. 11-12.

appeal unless there is clear misapprehension of facts.250[5] Here, there was no showing that the RTC and the CA erred in appreciating the worth of Severinos eyewitness testimony.

Secondly, the CA and the RTC rejected the alibi of Tuy. We agree with their rejection. To begin with, his absence from the scene of the murder was not firmly established considering that he admitted that he could navigate the distance between Brgy. Olango (where he was supposed to be) and Brgy. Bani (where the crime was committed) in an hour by paddle boat and in less than that time by motorized banca. Also, eyewitness Severino positively identified him as having hacked his father.251[6] The failure of Tuy to prove the physical impossibility of his presence at the crime scene negated his alibi.252[7]

And, thirdly, the medico-legal evidence indicating that the victim sustained several hack wounds entirely corroborated Severinos recollection on the hacking.

On the civil liability, we increase the civil indemnity and the moral damages from P50,000.00 to P75,000.00, and add exemplary damages of P30,000.00 in
250[5] Garong v. People, G.R. No. 148971, November 29, 2006, 508 SCRA 446, 455; Lubos v. Galupo, G.R. No. 139136, January 16, 2002, 373 SCRA 618, 622; Montecillo v. Reynes, G.R. No. 138018, July 26, 2002, 385 SCRA 244, 255. 251[6] People v. Malones, G.R. No. 124388-90, March 11, 2004, 425 SCRA 318, 338. 252[7] People v. Bracamonte, G.R. No. 95939, June 17, 1996, 257 SCRA 380, 384.

order to accord with current jurisprudence to the effect that damages in such amounts are granted whenever the accused is adjudged guilty of a crime covered by Republic Act No. 7659 like murder.253[8]

WHEREFORE, the Court affirms the decision promulgated on April 25, 2007 finding RUEL TUY guilty beyond reasonable doubt of murder, subject to the modification that the civil indemnity is P75,000.00; the moral damages is P75,000.00; and the exemplary damages is P30,000.00.

SO ORDERED.

LUCAS P. BERSAMIN Associate Justice

WE CONCUR:

253[8] People v. Arbalate, G.R. No. 183457, September 17, 2009, 600 SCRA 239, 255.

CONCHITA CARPIO MORALES Associate Justice Chairperson

ARTURO D. BRION Associate Justice

DIOSDADO M. PERALTA Associate Justice

MARTIN S. VILLARAMA, 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 Courts Division

CONCHITA CARPIO MORALES Associate Justice Chairperson

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 Courts Division.

RENATO C. CORONA Chief Justice

FIRST DIVISION [G.R. No. 152176. October 1, 2003] PEOPLE OF THE PHILIPPINES, appellee, vs. ROGER DELA CRUZ y DOE, appellant. DECISION YNARES-SANTIAGO, J.: This is an appeal from the decision254[1] of the Regional Trial Court of Calabanga, Camarines Sur, Branch 63, in Criminal Case No. RTC 99-323, finding appellant Roger Dela Cruz y Doe guilty beyond reasonable doubt of the crime of Murder and sentencing him to suffer the penalty of reclusion perpetua, and to indemnify the heirs of the victim the amounts of P50,000.00 as civil indemnity and P50,000.00 as moral damages, and to pay the costs. On December 28, 1998, an Information for Murder was filed against Roger Dela Cruz y Doe. The Information reads: That on or about 10:00 oclock in the evening of August 29, 1998 at Bgy. Cabanbanan, Calabanga, Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, and with treachery, while armed with a deadly weapon - an icepick, did then and there willfully, unlawfully and feloniously attack, assault and stab with the said weapon one, Mark Lester Resterio Suarez, inflicting upon the latter one (1) fatal wound on his chest, which injury he sustained caused his death, to the prejudice of his heirs. ACTS CONTRARY TO LAW.255[2] Appellant was arraigned on June 30, 2000 and pleaded not guilty.256[3] Trial on the merits thereafter ensued. Prosecution witness Joseph Sanchez testified that at 10:00 p.m. of August 29, 1998, he was walking along Barangay Cabanbanan, Calabanga, Camarines Sur together with his friends, Mark Lester Suarez and Edgar delos Santos, on their way towards Barangay Cagsao, Calabanga, Camarines Sur. He stopped at a store to buy a cigarette. Suddenly, he heard Mark shout that he was stabbed. When he looked over his shoulder, he saw appellant, running away. Mark told him that it was appellant who stabbed him. Sanchez ran to the house of Marks mother, Milagros Suarez, to tell her that Mark had been stabbed by Roger dela Cruz. Together, he and Milagros rushed Mark to the Bicol Medical Center but he died on the way. Penned by Judge Freddie D. Balonzo. Records, p. 1 Records, p. 43.

254[1]

255[2]

256[3]

Milagros testified that she incurred P8,500.00 for the funeral expenses, P2,000.00 for the wake and P750.00 for church rites. Chief Tanod Felix delos Santos of Barangay Cabanbanan, who responded to the stabbing incident, narrated that he was awakened by the shouts of Sanchez that somebody had been stabbed. He and the other tanods went with Sanchez to the place where Mark was lying about fifteen meters from his residence. He saw Marks wound on the right side of his chest and ordered somebody to call the police from the Cabanbanan Kababayan Center. He asked Mark who stabbed him, and the latter answered, Roger. After several days, he learned that Mark died. Dr. Daniel Y. Tan, who performed the necropsy on the cadaver, found that the cause of the victims death was hypovolemic shock secondary to mortal stab wound. He testified that the victim sustained a stab wound which pierced into the right lobe of the liver, diaphragm, right lung lobe and right ventricle of the heart. The wound was fatal.257[4] In his defense, appellant testified that on August 23, 1998, he went to Manila with his friend, Victorio Delfin, to look for a job. Prior to that, he worked as operator of JBL Mobile Disco for one week before he left for Manila. When he failed to obtain employment in Manila, he went to his sister and brother-in-laws house at Barangay Buck Estate, Alfonso, Cavite on August 27, 1998. His mother also stayed in his sisters house. On August 29, 1998, he started working as a construction worker in Sta. Lucia, Tagaytay. The project lasted for three weeks. He looked for another job but he was not able to find one. When appellant learned that a case was filed against him, he returned to Cabanbanan, Calabanga, Camarines Sur. On June 9, 2000, he was arrested. He testified that he knew the victim Mark, who was his friend. Zenaida dela Cruz, appellants mother, and Victorio Delfin corroborated appellants testimony. On October 13, 2001, the trial court rendered its decision, the dispositive portion of which states: WHEREFORE, in view of the foregoing, the prosecution having proven the guilt of the accused beyond reasonable doubt, accused Roger dela Cruz y Doe is hereby convicted of the crime of Murder as charged. He is sentenced to suffer the penalty of reclusion perpetua and to pay the heirs of Mark Lester Suarez the following damages: 1. 3. P50,000.00 as civil liability for his death; 2. P50,000.00 as moral damages; and to pay the costs.

257[4]

Records, p. 5.

SO ORDERED.258[5] Hence this appeal, based on the following assignment of errors: I THE COURT A QUO GRAVELY ERRED IN GIVING FULL FAITH AND CREDENCE TO THE TESTIMONIES OF PROSECUTION WITNESSES JOSEPH SANCHEZ AND FELIX DELOS SANTOS. II THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY ON THE ASSUMPTION THAT INDEED ACCUSEDAPPELLANT WAS THE ONE WHO STABBED THE VICTIM. III THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER.259[6] We agree with the trial court that the anti mortem statement of the victim cannot be considered a dying declaration as the same was not made with awareness of his impending death. In People v. Bautista, et al.,260[7] we held that it is not indispensable that a declarant expires immediately thereafter. It is the belief of an impending death and not the rapid succession of death, in point of fact, that renders the dying declaration admissible. Nonetheless, his declaration is admissible as part of the res gestae. A declaration is deemed part of the res gestae and admissible in evidence as an exception to the hearsay rule when the following requisites concur: (1) the principal act, the res gestae, is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise; and (3) the statements must concern the occurrence in question and its immediately attending circumstances. 261[8] All these requisites are present in this case. The principal act, i.e., the stabbing, was a startling occurrence. The declaration was made right after the stabbing while the victim was still under the exciting influence of the startling occurrence, without any prior opportunity to contrive a story implicating the appellant. The declaration concerns the one who stabbed the victim. Thus, the Records, p. 137. Rollo, p. 53.

258[5]

259[6]

344 Phil. 158 (1997), citing People v. Sabio, G.R. No. L-26193, 27 January 1981, 102 SCRA 218, 230-231 (1981) and U.S. v. Virrey, 37 Phil. 625 (1918).
260[7] 261[8]

People v. Cantonjos, G.R. No. 136748, 21 November 2001.

trial court correctly appreciated the testimonies of prosecution witnesses Sanchez and Delos Santos on what the victim told them as part of the res gestae. Basic is the rule that the findings of the trial court on the credibility of witnesses and their testimonies are entitled to the highest respect and will not be disturbed on appeal, in the absence of any clear showing that it overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which would have affected the result of the case.262[9] None of the aforesaid exceptions obtains in the case at bar. We cannot sustain appellants defenses of denial and alibi. Denial is intrinsically a weak defense. It must be supported by strong evidence of non-culpability in order to be credible. Correspondingly, courts view the defense of alibi with suspicion and caution, not only because it is inherently weak and unreliable, but also because it can be fabricated easily.263[10] In the case at bar, appellant claimed that on August 23, 1998, he went to Manila with Victorio Delfin to look for a job. When he was not able to find any job, he went to his sisters house in Cavite on August 27, 1998. He started working as a construction worker in Sta. Lucia, Tagaytay on August 29, 1998. Appellant, however admitted that it was his first time to look for a job outside Cabanbanan, Camarines Sur. On the other hand, prosecution witness Sanchez testified that he saw appellant leaving the scene of the crime on that fateful night. Time-tested is the rule that between the positive assertions of prosecution witness and the negative averments of appellant, the former indisputably deserve more credence and evidentiary weight.264[11] Moreover, appellant fled from the scene of the crime after the stabbing incident. The trial judge had issued a warrant for his arrest on February 17, 1999 but the authorities arrested him only on June 9, 2000. The flight of an accused is an indication of his guilt or of a guilty mind.265[12] Indeed, the wicked man flees though no man pursueth, but the righteous are as bold as a lion.266[13] We agree with appellant that the crime committed was not murder. The qualifying circumstance of treachery was not sufficiently established by the prosecution. The essence of treachery is the sudden and unexpected attack by an aggressor on an unsuspecting victim, depriving the latter of People v. Diaz, G.R. No. 133737, 13 January 2003, citing People v. Pacina, 338 SCRA 195 (2000).
262[9]

People v. Tuppal, G.R. Nos. 137982-85, 13 January 2003, citing People v. Batidor, 362 Phil. 673 (1999).
263[10]

People v. Patco, et al., G.R. No. 140217, 21 February 2003, citing People v. Natore, G.R. No. 131874, 22 August 2002.
264[11] 265[12]

People v. Bracamonte, 327 Phil. 172 (1996). People v. Landicho, et al., G.R. No. 116600, 3 July 1996.

266[13]

any real chance to defend himself, thereby ensuring its commission without risk to the aggressor, without the slightest provocation on the part of the victim.267[14] The prosecution witness did not see the actual stabbing of the victim. Therefore, there is no way of determining on how the attack was initiated. In the same way that no testimony would prove that the appellant contemplated upon the mode to insure the killing. Therefore, the crime committed by appellant is homicide. Under Article 249 of the Revised Penal Code, homicide is punished by reclusion temporal. There being no mitigating or aggravating circumstance, the penalty shall be imposed in its medium period. Appellant is entitled to the benefits under the Indeterminate Sentence Law, and may thus be sentenced to an indeterminate penalty the minimum term of which shall be taken from the penalty next lower in degree, namely, prision mayor. Thus, appellant may be sentenced to an indeterminate penalty ranging from eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum. In keeping with prevailing jurisprudence, the heirs of the deceased are entitled to the amount of P50,000.00 by way of civil indemnity ex delicto. The moral damages awarded in the amount of P50,000.00 is affirmed, there being proof that because of Mark Lesters death, his mother Milagros Suarez suffered wounded feelings, mental anguish, anxiety and similar injury. However, the trial court failed to award actual damages. To be entitled to such damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable to the injured party.268[15] In the case at bar, the prosecution was able to substantiate the claim for funeral expenses in the amount of P8,500.00 with receipts.269[16] In the case of People v. Villanueva,270[17] it was held that when actual damages proven by receipts during the trial amount to less than P25,000.00, 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 that it was anomalous and unfair that the heirs of the victim who tried but succeeded in proving actual damages amounting to less than P25,000.00 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.

267[14]

People v. Hate, G.R. No. 145712, 24 September 2002.

People v. Acosta, G.R. No. 140386, 29 November 2001; People v. Suelto, G.R. No. 126097, 8 February 2000, 325 SCRA 41 and People v. Samolde, 376 SCRA 632 (2000).
268[15] 269[16]

Records, p. 88. G.R. No. 139177, 11 August 2003.

270[17]

WHEREFORE, in view of the foregoing, the appealed decision of the Regional Trial Court of Calabanga, Camarines Sur, Branch 63 in Criminal Case No. RTC 99-323, is MODIFIED. As modified, appellant Roger dela Cruz y Doe is found GUILTY beyond reasonable doubt as principal of the crime of Homicide and is sentenced to suffer the indeterminate penalty ranging from eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum. He is further ordered to pay the heirs of the deceased the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as temperate damages. Costs de oficio. SO ORDERED. Davide, Jr., C.J., (Chairman), Vitug, and Carpio, JJ., concur. Azcuna, J., on leave.

SECOND DIVISION PEOPLE OF THE PHILIPPINES, Appellee, G.R. No. 188331 Present: CARPIO, J., - versus Chairperson, NACHURA, PERALTA, RYAN LALONGISIP y DELOS ANGELES, Appellant. Promulgated: June 16, 2010 ABAD, and PEREZ,* JJ.

x------------------------------------------------------------------------------------x DECISION

NACHURA, J.: Before this Court is an Appeal271[1] assailing the Court of Appeals (CA) Decision272[2] dated February 26, 2009, which affirmed with modification the
* Additional member in lieu of Associate Justice Jose Catral Mendoza per Special Order No. 842 dated June 3, 2010. 271[1] Rollo, pp. 10-12.

decision273[3] dated April 4, 2007 of the Regional Trial Court (RTC), Branch 63, Calabanga, Camarines Sur, finding appellant Ryan Lalongisip y delos Angeles (appellant) guilty beyond reasonable doubt of the crime of Murder for the killing of Romeo Copo (Romeo). The Facts

Appellant was charged with the crime of Murder in an Information dated March 9, 2006 which reads:

That on or about the 8th day of March, 2006 at around 12:30 P.M. in Barangay Manguiring, Municipality of Calabanga, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery while armed with a kitchen knife measuring (10 ) inches long from the handle to the tip of its blade did then and there willfully, unlawfully and feloniously stab Romeo Copo, hitting the latter at the back portion of his body thereby causing his instantaneous death. The victim was not in position to repeal (sic) the suddenness of attack nor defend himself to the damage and prejudice of his heirs in such amount as may be determined by the Honorable Court. ACTS CONTRARY TO LAW.

272[2] Particularly docketed as CA-G.R. CR H.C. No. 02802, penned by Associate Justice Bienvenido L. Reyes, with Associate Justices Isaias P. Dicdican and Marlene Gonzales-Sison, concurring; id. at 2-9. 273[3] CA rollo, pp. 49-57.

During the arraignment on March 21, 2006, appellant entered a plea of not guilty. Thereafter, trial on the merits ensued. In the course of the trial, two varying versions arose. Culled from the records, the two versions were summarized by the CA as follows:
The facts, according to the prosecution, are as follows: On March 8, 2006, the accused-appellant, with the victim Romeo Copo, Victor de Villa, Cesar Andal Jr., Enog [B]ahay, Cesar Andal Sr., certain persons named Badong, Erning, Kuya Canor and some other men were having a drinking spree at the house of Conrado Andal Jr. at Zone 5, Barangay Manguiring, Calabanga, Camarines Sur. It was the first death anniversary of Conrado Andal Jr.s father. They all occupied a table beside Conrados house.

Around 12:00 noon, the group was invited to lunch. Romeo Copo then stood up and while he turned his back at the table and moved himself towards the kitchen, the accused-appellant also stood up and suddenly stabbed Romeo at the back. The accusedappellant tried to stab Romeo again but was not able to do so because the handle of the knife used in stabbing was already broken. After he was stabbed, Romeo tried to run towards the kitchen but fell by the kitchen door. Conrado and his cousin brought Romeo to the hospital. Meanwhile, the accused-appellant went to Barangay Tanod Jose [Peneno] to ask the latter to accompany him as he would like to surrender to police authorities. SPO1 Carlito Capricho testified that he was the investigator on duty on March 8, 2008. Upon learning of the incident, their Desk Officer, SPO4 Conrado Cantorne, dispatched him and SPO2 Talle to make a follow up investigation and to conduct a hot pursuit of the suspect. During the crime scene investigation, Liza Andal turned over to him the kitchen knife used by the accused-appellant to stab Romeo. SPO1 Capricho then returned to their police station where he learned that the accused-appellant had already surrendered. Daniel Tan, the rural health physician of the Municipal Health Office of Calabanga, Camarines Sur testified that he conducted a post-mortem examination on the cadaver of the victim. He found a stab wound at the victims back measuring 5cm. x 1cm., slanted left vertically. It penetrated into the inferior portion of the heart, 10cm. lateral to midspine, level of thoracic vertebrae 3cm. left. He further opined that the wound caused the death of the victim. The defense maintains a different version of the incident. According to the accused-appellant, he was at the residence of his compadre Conrado Andal on March 8, 2006. He was there because he was asked to cook food for the first death anniversary of Conrado Andals father. He finished cooking around 7:00 oclock in the morning. Thereafter, they started a drinking spree together with other men, including the victim Romeo Copo. Around noontime, while they were still having their drinking spree, the accused-appellant noticed a knife on the table which they used in cooking. Romeo Copo allegedly got hold of the said knife and the accused-appellant grabbed the same from Romeo because the latters family was angry at him for reasons he does not know. He and Romeo grappled for the possession of the knife for about ten minutes. When he was able to grab the knife from Romeo, he was in front of Romeo and he accidentally hit the latters back. This happened because Romeo allegedly turned his back when he was trying to transfer to another place. The accused-appellant swayed his hand because the knife was about to fall and that was the time that he accidentally hit the victim.

He denied the testimonies of Conrado Andal and Genorio Bacay that the stabbing was intentional on his part because according to the accused-appellant, what happened was an accident. The reason that the two testified against him was because they were afraid of the family of the victim considering that they are a family of troublemakers. In fact in 2001, the accused-appellant was stabbed by a member of the Copo family and in 2005, the accused-appellants sibling was chased by one of the members of the Copo family. The accused-appellant admitted that before March 8, 2006, he and Romeo Copo had a misunderstanding regarding a cockfight that they had. He likewise admitted that he had to take hold of a knife to defend himself because Romeo might stab him [considering] the existing previous disagreement between their families. Immediately after the incident, the accused-appellant went to Barangay Tanod Jose Peneno and asked the latter to accompany him in surrendering to the police.274[4]

The RTC's Ruling

On April 4, 2007, the RTC found appellant guilty beyond reasonable doubt of the crime of Murder and sentenced him to suffer the penalty of reclusion perpetua and to pay the heirs of Romeo the amount of P25,000.00 as temperate damages, P50,000.00 as civil liability, and to pay the cost. Appellant interposed an appeal,275[5] assailing the RTC decision, before the CA.

274[4] 275[5]

Supra note 2, at 3-5. (Citations omitted.) CA rollo, p. 24.

The CA's Ruling

In its Decision dated February 26, 2009, the CA affirmed with modification the decision of the RTC, imposing upon appellant the penalty of reclusion perpetua and ordering him to pay the heirs of Romeo the amount of P50,000.00 as civil indemnity, and P50,000.00 as moral damages.

Aggrieved, appellant elevated the case to this Court. In their respective Manifestations filed before this Court, appellant, as represented by the Public Attorney's Office, and the Office of the Solicitor General (OSG) opted to adopt their respective Briefs filed before the CA as their Supplemental Briefs.

Appellant assigns the following errors:

I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT WHEN HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.

II. THE TRIAL COURT GRAVELY ERRED IN NOT APPRECIATING THE JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE IN FAVOR OF THE ACCUSED-APPELLANT. III. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT OF MURDER INSTEAD OF HOMICIDE.276[6]

The core issue in this appeal is whether appellant's guilt has been proven beyond reasonable doubt.

Appellant avers that he merely acted in self-defense because Romeo was the unlawful aggressor when the latter got hold of a knife that was used for cooking; that his life was imperilled; that the means he employed to repel said aggression were reasonably necessary; that the stabbing incident was merely accidental; and that he did not provoke Romeo. Appellant argues that no treachery attended the killing because the prosecution's evidence failed to show that there was a conscious effort on his part to adopt particular means, methods or forms of attack to ensure the commission of the crime without affording the victim any opportunity to defend himself. Thus, appellant claims that if he is to be held liable at all, his liability should be merely for homicide, not murder.277[7]

276[6] 277[7]

Brief for the Accused-Appellant; id. at 33-47, at 41-42. Id.

On the other hand, the OSG asseverates that appellant, by claiming selfdefense, had the burden of proving the existence of all the elements constituting said defense; that appellant failed to discharge this burden; that the killing was attended by treachery because Romeo had his back turned when appellant suddenly stabbed him; that even prosecution witnesses Conrado Andal, Jr. and Genorio Bacay were caught off guard by the suddenness of the unprovoked attack; and that the findings of the trial court are binding and conclusive on this Court.278[8]

Our Ruling

We dismiss the appeal.

First. We discard appellant's claim of self-defense.

When self-defense is invoked by an accused charged with murder or homicide, he necessarily owns up to the killing but intends to evade criminal liability by proving that the killing was justified. Hence, it becomes incumbent upon the accused to prove by clear and convincing evidence the three (3) elements
278[8] Brief for the Appellee; id. at 73-91.

of self-defense, namely: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel the aggression; and (3) lack of sufficient provocation on the

part of the person defending himself. Of these elements, the accused must, initially, prove unlawful aggression, because without it, there can be no selfdefense, either complete or incomplete.279[9]

Even if we consider appellants own version of the facts, we find that there was no unlawful aggression on the part of Romeo. Appellant himself testified that he did not have any prior argument with Romeo immediately before the stabbing incident; that they were freely conversing with each other; and that, other than allegedly holding a knife, Romeo did not commence any act constitutive of unlawful aggression or demonstrative of any imminent threat of attack.

Appellant's tale that he grappled with Romeo for the possession of the knife for almost 10 minutes is incredible. There were many persons present. It is highly unbelievable that not one of the many men present intervened or tried to pacify them. Moreover, not one of those who were present came forward to corroborate appellants version of the incident.

Second. There was treachery in the killing of Romeo.

279[9] People v. Regalario, G.R. No. 174483, March 31, 2009, 582 SCRA 738, 750-751, citing People v. More, 378 Phil. 1153, 1158-1159 (1999).

Article 248 of the Revised Penal Code (RPC) clearly provides:

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 or assault upon a railroad, 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.280[10]

Treachery exists when an offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend directly and specially to ensure its execution, without risk to himself, arising from the defense which the offended party might make.281[11] The events narrated by the prosecution eyewitnesses point to the fact that Romeo could not have been aware that he would be attacked by appellant. There was no opportunity for him to defend himself, since appellant, suddenly and without provocation, stabbed the victim at the back as they were about to partake of their lunch. The essence of treachery is the unexpected and sudden attack on the victim which renders the latter unable and unprepared to defend himself by reason of the suddenness and

280[10]

Emphasis supplied.

281[11] People v. Perez, G.R. No. 179154, July 31, 2009, 594 SCRA 701, 716.

severity of the attack. This criterion applies whether the attack is frontal or from behind.282[12]

Appellant's argument that prosecution witnesses Conrado Andal, Jr. and Genorio Bacay testified against him because they were afraid of Romeo's family deserves scant consideration. No evidence was presented to

282[12] People v. Alfon, G.R. No. 126028, March 14, 2003, 399 SCRA 64, 73-74.

show that the eyewitnesses had any motive to prevaricate and falsely point to appellant as the perpetrator of such heinous crime.

It is a doctrine well settled 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. This is because the trial court has the unique opportunity to observe the demeanor of witnesses and is in the best position to discern whether they are telling the truth. It is worth stressing that the CA affirmed the RTC's findings, according credence and great weight to the testimonies of the prosecution's witnesses. In this regard, it is the rule that when the trial court's findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court.283[13] We find no compelling reason to deviate from the uniform finding of both the RTC and the CA that indeed appellant is guilty beyond reasonable doubt of the crime of Murder.

We also agree with the RTC that appellant voluntarily surrendered. The appellant's conduct was spontaneous when he gave himself up to the authorities, thus saving the State the trouble and the expenses necessarily incurred in his search and capture.284[14]

283[13] People v. Beltran, Jr., G.R. No. 168051, September 27, 2006, 503 SCRA 715, 730. 284[14] People v. Callet, 431 Phil. 622, 636 (2002).

However, in accordance with current jurisprudence, we modify the award of damages, and apply People of the Philippines v. Richard O. Sarcia,285[15] where we said:

285[15] G.R. No. 169641, September 10, 2009.

The principal consideration for the award of damages, under the ruling in People v. Salome and People v. Quiachon is the penalty provided by law or imposable for the offense because of its heineousness, not the public penalty actually imposed on the offender. Regarding the civil indemnity and moral damages, People v. Salome explained the basis for increasing the amount of said civil damages as follows: The Court, likewise, affirms the civil indemnity awarded by the Court of Appeals to Sally in accordance with the ruling in People v. Sambrano which states: As to damages, we have held that if the rape is perpetrated with any of the attending qualifying circumstances that require the imposition of the death penalty, the civil indemnity for the victim shall be P75,000.00 . . . Also, in rape cases, moral damages are awarded without the need of proof other than the fact of rape because it is assumed that the victim has suffered moral injuries entitling her to such an award. However, the trial courts award of P50,000.00 as moral damages should also be increased to P75,000.00 pursuant to current jurisprudence on qualified rape. It should be noted that while the new law prohibits the imposition of the death penalty, the penalty provided for by law for a heinous offense is still death and the offense is still heinous. Consequently, the civil indemnity for the victim is still Php75,000.00. People v. Quiachon also rationcinates as follows: With respect to the award of damages, the appellate court, following prevailing jurisprudence, correctly awarded the following amounts: P75,000.00 as civil indemnity which is awarded if the crime is qualified by circumstances warranting the imposition of the death penalty; P75,000.00 as moral damages because the victim is assumed to have suffered moral injuries, hence, entitling her to an award of moral damages even without proof thereof, x x x. Even if the penalty of death is not to be imposed on the appellant because of the prohibition in R.A. No. 9346, the civil indemnity of P75,000.00 is still proper because, following the rationcination in People v. Victor, the said award is not dependent on the actual imposition of the death penalty but on the fact that qualifying circumstances warranting the

imposition of the death penalty attended the commission of the offense. The Court declared that the award of P75,000.00 shows not only a reaction to the apathetic societal perception of the penal law and the financial fluctuations over time but also the expression of the displeasure of the court of the incidence of heinous crimes against chastity. The litmus test therefore, in the determination of the civil indemnity is the heinous character of the crime committed, which would have warranted the imposition of the death penalty, regardless of whether the penalty actually imposed is reduced to reclusion perpetua.

Thus, based on the foregoing disquisition, we increase the amount of damages awarded by the CA. The amount of P50,000.00 as civil indemnity and P50,000.00 as moral damages shall be increased to P75,000.00 respectively. Likewise, exemplary damages should also be imposed at P30,000.00.286[16] Finally, in addition to the damages awarded, the appellant should also pay interest at the legal rate of 6% per annum from this date until full payment.287[17]

In sum, appellant failed to show that the CA committed any reversible error in its assailed Decision which would warrant the reversal of the same.

286[16] 287[17] 2010.

People v. Achas, G.R. No. 185712, August 4, 2009, 595 SCRA 341, 355. People of the Philippines v. Manuel Bagos, G.R. No. 177152, January 6,

WHEREFORE, the Court of Appeals Decision dated February 26, 2009 in CA-G.R. CR H.C. No. 02802 finding appellant Ryan Lalongisip y delos Angeles guilty beyond reasonable doubt of Murder and sentencing him to suffer the penalty of reclusion perpetua is AFFIRMED with the MODIFICATION that appellant is ordered to pay the heirs of Romeo Copo P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P30,000.00 as exemplary damages. appellant. Costs against

SO ORDERED.

ANTONIO EDUARDO B. NACHURA Associate Justice

WE CONCUR:

ANTONIO T. CARPIO Associate Justice Chairperson

DIOSDADO M. PERALTA Associate Justice

ROBERTO A. ABAD Associate Justice

JOSE PORTUGAL PEREZ 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 Courts Division.

ANTONIO T. CARPIO Associate Justice Chairperson, Second Division

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 Courts Division.

RENATO C. CORONA Chief Justice

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 177162 March 31, 2009

PEOPLE OF THE PHILIPPINES, Appellee, vs. ROBERTO PAJABERA y DOE, Appellant. DECISION CARPIO MORALES, J.: On appeal is the December 22, 2006 Decision of the Court of Appeals in CA-G.R. CR-H.C. 014371 affirming the July 7, 2005 Decision of Branch 63 of the Regional Trial Court of

Calabanga, Camarines Sur in Criminal Case No. RTC 03-878, finding Roberto Pajabera (appellant) guilty beyond reasonable doubt of Murder. The Information dated November 5, 2003 charging appellant with Murder reads: That on or about the 29th day of May, 2003 at about 2:30 P.M., in Barangay Pag-asa, Tinambac, Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent to take the life of one MAJEN B. BOLANOS, with treachery and evident premeditation, did then and there, willfully, unlawfully, feloniously and suddenly attack, assault and stab the latter from behind with a "balisong", fatally hitting the latter on his neck and other parts of his body, which caused the instantaneous and direct death of the said MAJEN B. BOLANOS, to the great damage and prejudice of his heirs, in such amount as may be proven in court.2 On arraignment, appellant pleaded not guilty.3 Culled from the testimonies of Efren Basi (Basi)4 and Ceferino Barcillano (Barcillano)5 is the following version of the prosecution: On May 29, 2003 at around 2:30 in the afternoon, Majen B. Bolanos (the victim) was at the cockpit arena at Barangay Pag-asa, Tinambac, Camarines Sur to watch the scheduled cockfighting event that was part of the barangay fiesta celebrations. Appellant, who was also present thereat, called the victim from behind. When the victim turned around, appellant placed one hand on the victims shoulder. The victim thereafter fell on the ground and blood oozed from his shoulder. Basi, who was standing beside the victim, and Barcillano, soon realized that appellant had stabbed the victim. Appellant quickly pulled out the knife from the victims shoulder, and left. At this juncture, the people at the cockpit arena scampered, and the cockfighting event did not push through. Dr. Salvador Betito (Dr. Betito), Municipal Health Officer of Tinambac, Camarines Sur, who conducted a medico-legal necropsy examination on the body of the victim about two or three days after the incident,6 concluded that the cause of the death of the victim was rapid internal and external hemorrhage secondary to a deep penetrating stab wound measuring 1.5 cm. and .5 cm. on his right shoulder, which could have been caused by anything pointed and sharp like a knife.7 Appellant, admitted having stabbed the victim. He, however, claimed self-defense. By his account, he and the victim had wagered with each other for P300 on the result of the cockfight, and he won.8 When he tried to collect his winning, however, the victim refused to pay; instead, the victim pulled out a bladed instrument and attacked him with it.9 Continued appellant: While he ran away from the victim, fell on the ground face down, and as he turned around, the victim promptly knelt down and stabbed him.10 He was able to parry the blow by holding the victims hand, after which the two of them grappled for possession of the bladed instrument.11

Further, appellant related that in the course of the scuffle, while he was lying with his back on the floor and the victim was stooping down on him in a kneeling position, he (appellant), accidentally pushed the bladed instrument being then held by the victim towards the latter.12 He then saw blood oozing from the victims body, but he was not sure which part,13 drawing him to flee out of fear.14 Salvador Habulin (Habulin), who claimed to have witnessed the incident at a distance of about three meters,15 corroborated appellants account. The trial court, crediting the testimonial evidence for the prosecution vis a vis the findings of Dr. Betito,16 convicted appellant of Murder, qualified by treachery, disposing as follows: WHEREFORE, in view of the foregoing, the prosecution having proven the guilt of accused Roberto Pajabera y Doe beyond reasonable doubt, he is hereby found guilty of the crime of murder as charged. He is sentenced to suffer the penalty of Reclusion Perpetua and to pay the heirs of Majen Bolanos the amount of P50,000.00 as civil indemnity; P50,000.00 as moral damages; P10,000.00 as actual damages and to pay the costs. Accused is likewise meted the accessory penalty of perpetual absolute disqualification as provided in Article 41 of the Revised Penal Code. Considering that herein accused has undergone preventive imprisonment, he shall be credited in the service of his sentence with the time he has undergone preventive imprisonment subject to the conditions provided for in Article 29 of the Revised Penal Code.17 Rejecting appellants claim of self-defense, the trial court found it improbable that the victim could be accidentally hit on the shoulder with the knife during the respective positions of the parties as described by appellant.18 If, posed the trial court, the victim was indeed kneeling and stooping down on appellant who was lying with his back flat on the ground prior to the fatal blow, the victim could have been hit on the chest or the stomach, but not on the shoulder.19 The trial court found that the killing was attended by treachery, the suddenness of the attack having deprived the unarmed victim of any means to defend himself.20 It ruled out evident premeditation, however, there being no proof of when appellant conceived of killing the victim.21 On appeal, the Court of Appeals, by Decision of December 22, 2006,22 affirmed that of the trial court, holding that appellant failed to discharge the burden of proving self-defense by clear and convincing evidence. Appellant thus comes before this Court. Both appellant and the Solicitor General manifested that they were dispensing with the filing of supplemental briefs and submitting the case for decision based on the Briefs they had filed with the appellate court.23 The appeal fails.

What appellant essentially wants is for this Court to weigh the credibility of the prosecution witnesses against that of the defense witnesses and review the observations and conclusions of the trial and appellate courts. It is settled that the issue of credibility is a question best addressed to the trial court, and that its findings of fact, especially when affirmed by the appellate court as in the present case, are accorded the greatest respect in the absence of a showing that it ignored, overlooked, or failed to properly appreciate matters of substance or importance likely to affect the results of the litigation.24 Independently of the factual findings of the lower courts, this Court, in its review of the records, found the findings in order. Appellant would have it that he was lying with his back flat on the floor while the victim was kneeling and stooping down on him holding the knife. Given that, the thrust of the knife could only have been downwards pointing to appellant. Even assuming that appellant was able to twist the victims hand which held the knife, it was unlikely that appellant could "accidentally" stab the victim on the right shoulder. The Court notes that the testimony of Habulin, the defenses so-called "eyewitness," bears lapses on material points: xxxx DIRECT EXAMINATION: xxxx Q Then what happened when the two ran after each other? A Roberto fell down and at that juncture Roberto was able to get hold of the right hand of Majen. Q Then what happened when Roberto got hold of the right hand of Majen? A This Majen was hit by the bladed weapon that he himself was holding. Q When you said Berto and Roberto as you mentioned the person who was ran after by Majen, was he the same Roberto Pajabera the accused in this case? A Yes, Sir. Q After that, what happened, after you saw that bladed weapon being held by Majen struck [sic] him while the two were grappling with each other, what happened next? A The people scampered.

xxxx CROSS EXAMINATION: xxxx Q And how about Roberto, where he was [sic], while you were as you said that [sic] you are at the fence? A Roberto was lying back flat on the ground with his enemy on top of him. xxxx Q And Roberto fell down, when Roberto fell down, did Roberto stood [sic] up? A After the victim was hit that is the time that Roberto left. Q Just answer my question whether or not when Roberto fell down after which he stood up or not [sic]? A Yes, Sir. Q Then when he stood up that is the time that you said they grappled with the knife, correct? A Yes, Sir. Q And when you said that Majen was hit, they were standing position [sic], correct? A When Majen fell down because he was already hit, Roberto left. Q So it is clear from your testimony that when they were grappling in a standing position, thats the time when Majen was hit and Majen fell down, correct? ATTY. NACIONAL: Misleading, Your Honor. There was no testimony that they were grappling in a standing position. PROS. OLIVEROS: Yes, there is already. COURT: They were standing. Both of them were standing.

xxxx COURT: Alright for clarification. Alright, answer. Translate. A They were both lying on the ground and Roberto was lying flat and Majen on his top when they were grappling for the possession of the deadly weapon.25 (Underscoring supplied.) First, on direct examination, Habulin did not positively state that the victim was hit with the knife while grappling with appellant for its possession. The "grappling" part was only inserted in a subsequent question by counsel for the defense. Second, on cross examination, Habulin was tentative on whether appellant and the victim were lying on the ground or standing while "grappling" for possession of the knife. He only remembered the version of appellant, which he was supposed to corroborate, when counsel for the defense led him to restate the same by objecting to the prosecutions question confirming his most recent statement that the "grappling" took place while appellant and the victim were standing. To the Court, these lapses in Habulins testimony cast serious doubt upon his claim that he witnessed the incident. It bears emphasis that the turn of events, particularly the respective position of appellant and the victim before the fatal blow, is crucial in view of appellants claim of self-defense. Hence, the trial and appellate courts did not err in crediting the version of the prosecution.1avvphi1 That there is no evidence of any dubious reason or improper motive why prosecution witnesses would testify falsely against appellant or falsely implicate him in a heinous crime renders their testimonies worthy of full faith and credit.26 Parenthetically, although the incident occurred in a public place, why was appellant only able to present one supposed "eyewitness" who even, as reflected above, contradicted himself? Appellants attack having been made in a swift and unexpected manner on the unsuspecting and unarmed victim who did not give the slightest provocation, treachery attended the killing.27 Perforce, appellants conviction for Murder stands. Since treachery qualified the killing to Murder and absent any aggravating or mitigating circumstances, the penalty of reclusion perpetua is proper, applying Article 63 of the Revised Penal Code.28 Reclusion perpetua carries with it the accessory penalty of perpetual absolute disqualification.29 On the civil aspect of the case, the Court finds the awards of P50,000 as civil indemnity and P50,000 as moral damages in order based on prevailing jurisprudence.30 Instead of actual damages, the Court awards temperate damages of P25,00031 as the actual damages claimed by the prosecution and admitted by appellant amount to P10,00032 or less than P25,000.

The award of exemplary damages in the amount of P25,000 is additionally in order if, as here, there is present an aggravating circumstance (qualifying-treachery) in the commission of the crime.33 The Court thus grants the same. WHEREFORE, the December 22, 2006 Decision of the Court of Appeals affirming that of Branch 63 of the Regional Trial Court of Calabanga, Camarines Sur is MODIFIED in that temperate damages of P25,000 in lieu of P10,000 actual damages, and exemplary damages of P25,000 are AWARDED. In all other respects, the challenged Decision is AFFIRMED. SO ORDERED. CONCHITA CARPIO MORALES Associate Justice WE CONCUR: LEONARDO A. QUISUMBING Associate Justice Chairperson DANTE O. TINGA Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice

DIOSDADO M. PERALTA* 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 Courts Division. LEONARDO A. QUISUMBING Associate Justice Chairperson CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons 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 Courts Division. REYNATO S. PUNO Chief Justice

Footnotes
*

Additional member per Special Order No. 587 dated March 16, 2009 in lieu of the leave of absence due to sickness of Justice Arturo D. Brion.
1

Penned by Associate Justice Arturo G. Tayag, with the concurrence of Associate Justices Remedios A. Salazar-Fernando and Noel G. Tijam.
2

Records, p. 1. Id. at 28. TSN, August 3, 2004, pp. 2-6. TSN, August 17, 2004, pp. 2-5. TSN, August 18, 2004, p. 4. Id. at 4-5. TSN, September 1, 2004, pp. 3-4. Id. at 4-5. Ibid. Id. at 6. Ibid. Id. at 6-7. Ibid. TSN, September 7, 2004, pp. 3-5. Records, p. 71. Id. at 77-78. Id. at 74. Ibid. Id. at 76.

10

11

12

13

14

15

16

17

18

19

20

21

Id. at 77. CA rollo, pp. 110-120. Rollo, pp. 17-21.

22

23

24

Vide De Guia v. Court of Appeals, G.R. No. 120864, October 8, 2003, 413 SCRA 114, 129; Producers Bank of the Philippines v. Court of Appeals, G.R. No. 115324, February 19, 2003, 397 SCRA 651, 658-659.
25

TSN, September 7, 2004, pp. 4-10. Vide People v. Bacungay, G.R. No. 125017, March 12, 2002, 379 SCRA 22, 31.

26

27

Vide People v. Bermas, G.R. Nos. 76416 and 94312, July 5, 1999, 309 SCRA 741, 778.
28

ART. 63. Rules for the application of indivisible penalties. In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed. In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof: 1. When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied. 2. When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied. 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. 4. When both mitigating and aggravating circumstances attended the commission of the act, the court shall reasonably allow them to offset one another in consideration of their number and importance, for the purpose of applying the penalty in accordance with the preceding rules, according to the result of such compensation. (Emphasis supplied)
29

Art. 41, Revised Penal Code. People v. Balais, G.R. No. 173242, September 17, 2008.

30

31

Vide People v. Villanueva, G.R. No. 139177, August 11, 2003, 408 SCRA 571, 581582, wherein the Court held:

[W]hen actual damages proven by receipts during the trial amount to less than P25,000, as in this case, the award of temperate damages for P25,000 is justified in lieu of actual damages of a lesser amount. Conversely, if the amount of actual damages proven exceeds P25,000, then temperate damages may no longer be awarded; actual damages based on the receipts presented during trial should instead be granted.
32

Vide records, p. 43. People v. Balais, supra note 30.

33

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 99869 May 26, 1999 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO BELARO, defendant-appellant.

KAPUNAN, J.: Accused Romeo Belaro appeals from the Decision of the Regional Trial Court (RTC) of Naga City 1 convicting him of Murder. Appellant was charged in an information stating:
That on or about 8:00 o'clock [sic] in the evening of November 2, 1989 at Barangay Sibobo, Municipality of Calabanga, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with evident premeditation and treachery and while armed with M-16, armalite rifle did then and then wilfully, unlawfully and feloniously shoot with said firearms one Salvador Pastor y Salientes hitting the different parts of his body thereby causing his instantaneous death; That the commission of this crime was attended with the aggravating circumstance of nighttime to better accomplish the commission of the offense. ACTS CONTRARY TO LAW.
2

Upon arraignment, appellant pleaded not guilty to the above charge. Trial ensured thereafter. The prosecution's version is synthesized by the Solicitor General, thus:
The only eyewitness for the offense charged, Myrna Azur Pastor ['Myrna'], widow of the deceased Salvador S. Pastor, testified that on 2 November 1989, at approximately 8:10 o'clock [sic] in the evening, she was inside her residence at Sibobo, Calabanga, Camarines Sur, when someone from outside called "Ma" and "Pa", summoning her attention. Since her husband was already reclined on the bed momentarily savoring a local drama aired on the radio, Myrna raced down the stairs to answer the call When Myrna opened the front door, she was surprised to see the caller as their long-time family acquaintance, appellant Romeo Belaro, posing outside the door and armed with armalite that he usually carries. Appellant appeared to be drunk. Since the armalite's nozzle was ominously pointed at the door, Myrna felt an onrush of fear and instinctively shut the door. Thereafter, she raced towards their bedroom and told her husband about appellant. This time, the deceased descended to see appellant while he toted his youngest child. However, the moment the front door was opened, Myrna was simply surprised when her deceased husband tossed to her the child and shoved her aside. Thereafter, a volley of shots from an M-16 rifle rang through the air. The deceased was directly hit as he toppled on the floor. Then again, another series of gunfire emitted. This time, appellant scampered away. Five (5) other unidentified men appeared to have ran away with him. Meanwhile, all that Myrna was cry and shout for help. As Myrna went out of the house to register her shout for help . . . her father, Benedicto Azur, who lived within the vicinity, answered her distress call. Upon reaching her daughter's house, Benedicto Azur saw deceased bathed in his own blood. Upon inquiry, Myrna could only utter that it was appellant who was responsible for her husband's death. Agitated, Myrna and her four (4) children were transferred to 3 Benedicto Azur's house for solace.

The accused's defense consisted of alibi and denial. Appellant, a member of the Civilian Armed Forces Geographical Unit (CAFGU) since June 7, 1989, 4 claimed that he was asleep at the CAFGU detachment center at the time of the incident in question. Following is his account of the events on that fateful day: Appellant was at the detachment center at around 9:00 in the morning of November 2, 1989. 5 A little after nine, appellant asked permission from their Assistant Detachment Commander, Sgt. Esmeraldo Ravara if he could buy medicine for his sick child. 6 Appellant thereafter left for Barangay Sibobo, wearing a T-shirt, maong pants and slippers. 7 Appellant carried with him his armalite, which had a crack at the right side and a hole on the left, but did not have a sling. 8

Appellant arrived in Barangay Sibobo at around 10:00 that same morning. 9 He then went to his aunt to buy fish and saw his cousins who invited him to "a drinking spree." 10 Appellant accepted their invitation and drank with them until 3:00 in the afternoon. 11 He went home thereafter. 12 Upon arriving at his house in Cabanbanan, Calabanga, Camarines Sur, appellant took his lunch and then laid down to rest. 13 Appellant got up at around 5:30 in the afternoon and informed his wife that he was going to report back to the detachment center, 14 which was approximately 100 meters from their house. 15 Back to the barracks, appellant cooked noodles for snack. 16 His Assistant Detachment Commander, Sgt. Ravara, then invited appellant and the other men for a drink. 17 Cafgu Garison, Rogelio Salientes, Renato Quieros, Roberto dela Cruz, appellant and Aproniano Mallo, the Barangay Captain of Cabanbanan, Calabanga, Camarines Sur, obliged. 18 Appellant had three shots of gin. Feeling the effects of the alcohol, appellant took the leave from Sgt. Ravara to retire for the night. 19 Appellant then laid down on his bed about four (4) meters away from where the drinking was taking place, and slept. 20 He woke up at around seven o'clock in the morning 21 only to learn from Sgt. Salvador Ravara that Salvador Pastor was shot dead the night before. 22 The Sergeant warned him not to go to Sibobo as he was the suspect in the killing. 23 Appellant replied that "if that [was] the case, [he] will not go there anymore because the relative[s] [of] Salvador Pastor might harm [him]." 24 Later, appellant did go to the Calabanga police station accompanied by his detachment commander. 25 Appellant's alibi was corroborated by Rogelio Salientes 26 and Eustaquio Aquino, 27 both CAFGU members, Aproniano Mallo, 28 the Barangay Captain of Cabanbanan, Calabanga, Camarines Sur, and Sgt. Ravara. 29 Appellant further alleged that although his rifle had a crack and a hole in it, 30 the same did not have any sling or epoxy since the time of its issuance to him in June 1989. 31 Hence, prosecution witness Myrna Pastor could not have seen the sling and the epoxy in the armalite rifle on or before November 2, 1989. He also claimed that Myrna could not have seen him in uniform and barefoot at the same time since their regulations required them to wear combat or rubber shoes when in uniform. 32 He denied that he was envious of the victim's good fortune as he had a better means of livelihood. 33 The defense likewise attempted to pin the victim's death on the New People's Army (NPA). According to Sgt. Ernesto Austero, the deceased was an "asset" who reported the activities of the NPA to him. 34 Sgt. Austero testified that in a patrol conducted in May 1990, the military discovered a ballot box containing supposedly subversive documents including a list of persons wanted by the NPA. 35 Among the names allegedly in said list 36 was that of the deceased Salvador Pastor who was described therein as "DID, informer, holdupper." 37

In a "Judgment" dated December 14, 1990, the RTC found appellant guilty beyond reasonable doubt as follows:
WHEREFORE premises considered, judgment is hereby rendered declaring that accused ROMEO BELARO guilty beyond reasonable doubt of the crime of Murder as defined and penalizes under Article 248 of the Revised Penal Code without any aggravating or mitigating circumstance and, he is hereby sentenced reclusion perpetua, to indemnify the heirs of Salvador Pastor y Salientes represented by Myrna Azur-Pastor, the sum of P50,000.00 as damages as well as to reimburse Benedicto Azur for the funeral expenses incurred in the burial of the deceased in the sum of P8,421.00 without subsidiary imprisonment in case of insolvency, and, to pay the cost of this suit. Accused is entitled to full credit for the entire period of his detention from February 5, 1990. SO ORDERED.
38

Appellant now questions his conviction, contending that:

a. The accused was denied the right to trial by an impartial and neutral judge; b. The trial court erred when it did not give credence to the testimonies of the witnesses for the accused; c. The trial court erred when it convicted, rather than, acquitted the accused. d. Assuming the accused is guilty, the trial court erred when it concluded that the crime committed was murder qualified with treachery, and not plain and simple homicide. e. Assuming further that the accused is guilty of homicide or murder, the trial court erred in not considering in his favor the mitigating circumstances of drunkenness and illiteracy; and f. Assuming the accused is guilty the trial court erred in imposing the penalty of reclusion 39 perpetua.

Appellant submits that the trial court had prejudged his witnesses' credibility even before the trial started. This prejudgment supposedly manifested in the following portion of the court's decision:
Neither can the Court give credence to the claim of the accused that at the time the victim was shot he was sleeping in their detachment barracks after having drank gin upon the alleged invitation of the Assistant Detachment Commander, Sgt. Esmeraldo Ravara (TSN August 29, 1990, pp. 24-26) notwithstanding the corroborative testimonies of CAFGU member Rogelio Salientes (TSN August 17, 1990, pp. 24-29); Barangay Captain Aproniano Mallo of Cabanbanan, Calabanga, Camarines Sur (TSN Augu 17, 1990, pp. 69); CAFGU Eustaquio Aquino (August 17, 1990, pp. 36-41) and Sergeant Esmeraldo Ravara, (TSN, August 16, 1990, pp. 36-41) as said witnesses, except Barangay Captain Aproniano Mallo, are either members of the military, or at least affiliated with it as CAFGU members, who cannot be free of bias influenced as they are by the spirit of comradeship existing among them. The bias of said defense witnesses was apparent to the Court when almost all of them were present during the trial of this case even at the time when

the prosecution was still presenting evidence and there was no need for them to be in court. Even the 7th CAA Co'y Commander, a 2nd Lt. Arnel B. Escobal made representations with the Court praying for the transfer of the accused from the custody of the Provincial Warden at Tinangis Penal Farm, Tinangis, Pili, Camarines Sur to the detention cell at the 7th CAA Camarines Sur Constabulary/Integrated National Police Command at Concepcion Grande, Naga City (Ex Parte Motion to Transfer Custody of Detention Prisoner dated March 8, 1990, page 24, record) which however was denied by the Court in view of the escape of a CAFGU member who also sought and was granted transfer of detention from Tinangis Penal Farm to the PC Headquarters, Concepcion Grande, Naga City and the Provincial Command has not accounted for his whereabouts 40 even up to now (Order of the Court dated March 13, 1990, page 25, record).

Appellant argues that the trial judge's prejudice calls for a remand to the trial court for re-trial. We discern no prejudice on the part of the trial judge. A judge enjoys the presumption of regularity in the performance of his functions. 41 Accordingly, we construe the above statements of the trial judge not as manifestations of bias but as mere observations that the judge later took into account in the rendition of the judgment. The statements do not necessarily mean that the judge had prejudged the accused, only that he factored his earlier observations when he prepared the decision of conviction. Indeed, judges should be observant in the goings-on in the courtroom, taking note of every relevant detail that may prove to be of weight when they prepare their decision. The judge's observations should form part of his decision. Such practice should be commended rather than condemned for it achieves two purposes. The first is compliance with due process for it informs the parties of the bases of the court's decision. Thus, the Constitution 42 requires that "[n]o decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based." Second, in case of conviction and appeal, the reviewing court or courts would know and appreciate how the trial judge arrived at his conclusions. Moreover, the attendance of the witnesses and the motions for the transfer of the accused are not per se indicative of bias. This was not lost on the trial judge who made the statements merely to support his conclusion that most of the defense witnesses, who were themselves CAFGU members. "cannot be free from bias" in view of the camaraderie between them and the accused. Later in the text of the decision, the judge also noted the demeanor of these witnesses during their examination and found their deportment to be inconsistent with that of a truthful witness. The decision of the court should be read as a whole and the above-quoted statements should be read in the light of the other parts of the decision. In any event, the testimonies of these witnesses corroborating appellant's alibi cannot outweigh positive identification by the victim's widow of appellant as her husband's assailant. 43 This brings us to appellant's second and third assigned errors. Appellant contends that the trial court should have given credence to the testimonies of the defense witnesses corroborating appellant's alibi, especially that of Rogelio Salientes and Barangay

Captain Aproniano Mallo, who are both related to the victim. Salientes is allegedly a cousin of Salvador Pastor while Mallo is the husband of another cousin of the victim. 44 As stated earlier, however, these testimonies cannot prevail over the positive identification of the accused by the victim's bereaved wife. We sustain the assessment of the trial court regarding the credibility of Myrna Pastor, such assessment being consistent with the evidence and the rules governing the same. Thus, the trial court held that:
(1) Myrna Pastor was not impelled by any improper motive. While it may he true that the wife of the victim is the sole eyewitness to the commission of the offense, her relationship to the victim does not, by itself, impair her credibility (People vs. Paras, G.R. No. 61773, January 31, 1987, 147 SCRA 500, People vs. Bautista. G.R. No. 69123, January 30, 1987, 147 SCRA 500; and People vs. Seguerra, G.R. No. 58574, October 12, 1987, 154 SCRA 656), especially because there is no showing of improper motive on the part of said witness for testifying against the accused. Her relationship to the victim does not render her clear, direct and positive testimony less worthy of full faith and credit. On the contrary, her natural interest in securing the conviction of the guilty party would deter her from implicating persons other than the culprit, for otherwise, the latter would thereby gain immunity (People vs. Radomes, 141 SCRA 548, People vs. 45 Gavino Aguinaldo, G.R. No. 75816, September 26, 1988, Paras, J). (2) The scene of the crime enjoyed sufficient lighting for her to identify the accused. The denials of the accused that he did not shoot and kill the victim cannot prevail over the clear, direct and positive identification by the sole eyewitness, Myrna Azur-Pastor, that it was the accused whom she saw that fatal night with an armalite rifle aimed, fired and shot to death her husband as she was near him when he shot her husband and even smelled the liquor coming from the body of the accused (TSN, July 19, 1990, pp. 50-51) and that she was able to identify the accused as she held a lighted lamp when she opened the door; besides, there was also light coming from the house of her uncle which was just a few meters from their house (TSN July 20, 1990, page 9; People vs. Datuya, 154 SCRA 410; People vs. Dava, 149 SCRA 582; People vs. Melgar, G.R. No. 75268, 46 January 29, 1988). (3) She was well acquainted with the accused and therefore could not have been mistaken as to his identity. Furthermore, there is no possibility that she could have been mistaken in the identity of the accused for, apart from being at the scene of the crime, she also knew the accused very well as in the past the latter would go to the house of the former to ask for fish. In fact, the accused also admitted having known the victim and his wife since childhood 47 (TSN, August 29, 1990, page 11). (4) She was able to see and identify appellant's weapon. The armalite rifle itself which was identified by Myrna Azur-Pastor to have been used in shooting to death her husband was brought to court and the description of said rifle by her tallied with the rifle itself as it had a crack and the hole on it was filled up with epoxy resin (Exhibits 'E' and 'E-1' or Exhibits '2' and '2-A'; TSN July 20, 1990 pp. 2 to 4).

Even the evidence for the accused show that the subject armalite rifle was the same rifle issued to accused by C2C Danilo Orquita, the CO Supply Sergeant, under a Memorandum Receipt dated June 5, 1989 (Exhibit 'A' or Exhibit '1') which was taken by T/Sgt. Ernesto Austero, the Detachment Commander of the accused at Cabanbanan, Calabanga, Camarines Sur, from the accused himself on July 8, 1990 (Exhibit '3') and turned over to T/Sgt. Jose Sanchez and later back to C2C Danilo Orquita who finally delivered said weapon to the court to be utilized as evidence (TSN August 9, 1990, 48 pages 8 to 11, Exhibit 'E' or Exhibit '2'). (5) Her statements right after the occurrence of the crime constituted part of the res gestae. Undoubtedly, the Statement of Myrna Azur-Pastor that it was Romeo Belaro who shot and killed her husband when asked by her father as to who killed her husband upon arriving at her house seeing her crying and trembling just immediately after the shooting may be considered as part of the res gestae and the testimonies of Myrna Azur-Pastor and her father Benedicto Azur on said fact are admissible in evidence. This is so because 'all that is required for the admissibility of a given statement as part of the res gestae is that it is made under the influence of a startling event witnessed by the person who made the declaration before she had time to think and make-up a story, or to concoct or contrive a falsehood, or to fabricate an account, and without any undue influence in obtaining it, aside from referring to the event in question or its immediate attending circumstances' (Section 36, Rule 130, Revised Rules of Court; People vs. Ner, G.R. No. L-25504, July 31, 1969, 28 SCRA 1151, 1161-1162; People vs. Abboc. G.R. No. L28327, September 14, 1973, 53 SCRA 54, 61; People vs. Berame, G.R No. L-27606, July 30, 1976, 72 SCRA 184, 190; and Gaspar Medios vs. C.A. and the People of the 49 Philippines, G.R. No. 79570, January 31, 1989, Cortes, J) (6) Her testimony was corroborated by other evidence, namely, (a) the necropsy report, (b) the shells and bullet found at the scene of the crime, and (c) the paraffin tests conducted on appellant. Aside from the testimony of the victim's wife that her husband was shot with an armalite rifle, the Necropsy Report (Exhibit 'B') indicates that Salvador Salientes Pastor died of gunshot wounds at Sibobo, Calabanga, Camarines Sur on November 2, 1989 at about 8:10 o'clock in the evening. There, were seven gunshot wounds, found in various parts of his body and, specifically, the cause of death was severe hemorrhage, internal and external, secondary to gunshot wounds multiple, necks, chin and chest (Exhibits 'C' to 'C2'). This substantiates the testimony of the widow of the victim as to the cause of death of her husband.1wphi1.nt In his testimony, Medico-Legal Officer, Dr. Belindo Tordilla declared that an M-16 armalite rifle could have caused all the gunshot wounds in the body of the victim as the bullets did not enter the body at right angle and the exit wounds were bigger; that one gun could have caused said wounds; and, that the assailant could have shot the victim at a distance of about five meters only (TSN July 18, 1990, p. 59) which testimony jibes with that of the sole eyewitness that the accused shot her husband with an armalite rifle from only a short distance (TSN July 19, 1990, pp. 27 to 31). That an armalite rifle was in fact used in shooting the victim is further shown by the 26 empty shells and 1 live bullet (Exhibits 'G' to 'G-27')which were recovered a day after the incident, by Benedicto Azur, father of the wife of the victim just at the front door of the house where the shooting took place which shells and bullet he turned over to Pat. Leopoldo Bico of the Police Department of Calabanga, Camarines Sur (TSN July 20, 50 1990, pp. 59 to 63).

xxx xxx xxx The paraffin test conducted by NBI Forensic Chemist Julieta Coranes-Flores on the left and right hands of the accused shows that his right hand was found positive with specks located as follows: 1. One (l) speck, distal third second metacarpal, 2. One (l) speck, proximal third, middle phalange, index finger, 3. One (1) speck, proximal third, proximal phalange, ring finger (Chemistry Report No. C-89-1428, Exhibits 'H' to 'H-7'), Which findings also establish the fact that the accused at the time of the taking of the test on November 3, 1989, had recently fired a gun with his right hand (TSN August 3, 1990, pp. 23-29). Although the shells of the bullets that felled the victim (Exhibits 'G' to 'G-27') and the armalite rifle were brought to the NBI Office at Naga City, no ballistic examination was undertaken as the local NBI Office has no facilities for it which fact this Court takes judicial notice of. Nevertheless, a ballistic examination is not indispensable in this case and even if another weapon was in fact actually used in killing the victim, still the accused cannot escape criminal liability therefor as he was positively identified by the prosecutor 51 eyewitness, Myrna Azur-Pastor, as the one who shot to death her husband. (7) Myrna Pastor's demeanor while on the witness stand is consistent with her testimony. The Court noted during the trial that while the witnesses for the prosecution, particularly the sole eyewitness and her father who gave her assistance immediately after the victim was shot, testified in a very natural and normal way expressing their shock fright, anguish, anger and indignation as they related what they actually saw and heard in a 52 straightforward manner . . . In contrast, the trial court observed that the defense witnesses were: . . . fidgety, evasive and could not even look directly at the cross examiner especially 53 when testifying on the defense of alibi which the accused put up.

The trial court's appraisal of the credibility of witnesses deserves utmost respect since said court had the opportunity to observe their demeanor during the trial. 54 The positive identification of the accused was not the only basis for the rejection by the trial court of appellant's alibi. Alibi as a defense, is inherently weak. 55 The accused must prove not only that he was not present at the scene of the crime but also that it was physically impossible for him to have been present at the time the offense was committed. 56 The defense failed to discharge this burden. The trial court correctly ruled that:

Here, the requisites of time and place were not strictly met as the evidence of the accused itself show that Barangay Sibobo, Calabanga, Camarines Sur, where the crime was supposedly committed is only about 5 kilometers from the detachment barracks at Cabanbanan, Calabanga, Camarines Sur, where the accused was supposedly staying and a concrete road connects both barangays so that one can easily take a jeep and reach the place in about 15 minutes or hike for an hour (TSN August 29, 1990, pp. 58 to 59). Hence, the accused was not able to show that he was at some other place for such period of time as to preclude or render impossible his presence at the place where the crime was committed at the time of its commission (People vs. Rizal Idnay, G.R. No. L48269, August 15, 1988, Melencio-Herrera J.) Moreover, alibi as a defense is inherently weak for it is easy to fabricate (Edwin Reano, et al., vs. C.A. and People of the 57 Philippines, G.R. No. 60992, September 21, 1988, Cortes J.).

Considering the foregoing circumstances, we rule that the trial court did not err in convicting appellant. Proof of his guilt was established beyond reasonable doubt. Appellant next questions the appreciation of treachery by the trial court, which circumstances qualified the killing to Murder. 58 Appellant submits that there is no treachery since the attack was frontal and the deceased was forewarned by his wife of the danger that appellant allegedly posed. 59 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. 60 The essence of treachery is a swift and unexpected attack on the unarmed victim without the slightest provocation on the part of the victim. 61 Thus, this Court has ruled that even a frontal attack can be treacherous when it is sudden and unexpected and the victim is unarmed. 62 Treachery may also be appreciated even when the victim is warned of danger to his person if the execution of the attack made it impossible for the victim to defend himself or to retaliate. 63 In the present case, however, the victim did not even have sufficient warning of the danger that lay ahead, the attack against him sudden and unexpected. The victim's widow, Myrna Pastor, narrated the events from the moment appellant came calling at their door:
Q What did the one calling say? A Ma and Pa. Q When you heard that voice from the outside calling Ma and Pa, what did your husband do? A My husband told me to go down the stairs and open the door. Q Do you know why your husband ordered you to open the door, do you know who was outside? xxx xxx xxx

A I do not know him, sir. ATTY. GENERAL Q When you open the door what did you see? A I saw Romeo Belaro. xxx xxx xxx Q What was Romeo Belaro doing? A He was standing near the door with an armalite. Q How was he carrying the armalite? INTERPRETER Witness demonstrated before the court the position of Romeo Belaro while he was carrying the firearm with her two hands holding the rifle. ATTY. GENERAL. Where was the nozzle of the armalite carried by Belaro pointed when you saw him? xxx xxx xxx A Towards the door.

ATTY. GENERAL.
Q What did you do when you saw Belaro standing near you pointing his 64 rifle towards the door?

Thus, Myrna could not have known that appellant was about to kill her husband. She did not have a clue as to appellant's murderous intentions. Appellant did not utter a word that would have put her on alert. Though appellant was pointing his rifle at the door and his breath reeked of alcohol, these circumstances did not necessarily mean that he was going to kill Salvador Pastor. Accordingly, Myrna could not have warned her husband of appellant's impending attack. Her testimony shows that she did not, in fact, convey any warning to her husband, telling him only that "Romeo Belaro was there."
ATTY. GENERAL. Q What did you do when you saw Belaro standing near you pointing his rifle towards the door? A I closed the door because I was afraid and went up the house to my husband and told him that Romeo Belaro was there.

xxx xxx xxx Q What did your husband do? A He stood up and go down to the house. Q What about you, what did you also do? A I was just following, sir. Q What did your husband do next as he came down from your bedroom? A When he went down from the bedroom he opened the door and when he saw Romeo Belaro he gave me the child and pushed me aside. Q What happened after that? A He was shot.
65

That the victim was unaware of appellant's intentions was evident from the fact that, as the Office of the Solicitor General astutely observes, 66 he even carried his youngest child with him when he opened the door for appellant. Thereafter, Salvador tossed the child to his wife and pushed her aside. Only second lapsed until Salvador Pastor was killed, felled by the bullets from appellant's rifle. No doubt, the killing was treacherous, the offense murder. Appellants next faults the trial court for failing to appreciate two alternative circumstances to mitigate his liability. Alternative circumstances are those which must be taken into consideration 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. 67 Appellant invokes the last two circumstances in his favor. People v. Buenaflor 68 provides a succinct summary of the rules in the appreciation of intoxication:
The ordinary rule is that intoxication may be considered either as aggravating or as mitigating, depending upon the circumstances attending the commission of the crime. Intoxication has the effect of decreasing the penalty, if the intoxication is not habitual or subsequent to the plan to commit the contemplated crime; upon the other hand, when intoxication is habitual or intentional, it is considered as an aggravating circumstance. The person pleading intoxication must present proof that had taken a quantity of alcoholic beverage, prior to the commission of the crime, sufficient to produce the effect of blurring his reason, and at the same time, he must prove that not only was intoxication not habitual but also that his imbibing the alcoholic drink was not intended to fortify his resolve to commit the crime.

Appellant failed to introduce evidence to support the presence of this mitigating circumstance. He cannot be entitled to this mitigating circumstance merely on the declaration of the prosecution witness that appellant was drunk. 69 Even if we consider Myrna Pastor's testimony that appellant reeked of alcohol, this does not warrant a conclusion that the degree of intoxication affected his mental faculties. Appellant also did not prove that such intoxication was not habitual or intentional. This he failed to do, for the reason that appellant's defense was that of alibi. 70 Neither can appellant's alleged lack of instruction be appreciated in his favor. Illiteracy alone will not constitute such circumstance; it must be accompanied by lack of sufficient intelligence and knowledge of the full significance of one's act. 71 Thus, it is the trial court, rather than the appellate court, to find and consider the circumstance of lack of instruction. 72 The said court was in a better position to gauge appellant's level of intelligence from his appearance, demeanor and manner of answering questions. 73 In this case, the trial court did not make any findings, as to the degree of instruction of appellant. Indeed, the alleged presence of this circumstance is being raised for the first time here. That alternative circumstance cannot be considered in fixing the penalty to be imposed on appellant on appeal. Moreover, lack of instruction should be proved directly and positively; 74 it cannot be based on mere deduction or inference. 75 There is no such proof in this case. On the contrary, appellant, being a CAFGU member, is presumed to have received some degree of instruction and training. Finally, there is jurisprudence holding that the accused's lack of instruction cannot be considered mitigating in homicide or murder. The reason is that one does not have to be educated or intelligent to be able to know that it is unlawful to take the life of another person even if it is to redress a wrong committed against him 76 Appellant's last assigned error regarding the proper penalty is premised on the absence of treachery and the presence of intoxication and lack of instruction. As shown earlier, however, the qualifying circumstance of treachery is present, in the alternative circumstances of intoxication and lack of instruction are absent. At the time of the commission of the offense, the penalty prescribed by Article 248 of the Revised Penal Code for Murder was reclusion temporal in its maximum period to death. 77 In the absence of either aggravating or mitigating circumstances, the penalty prescribed by law in its medium period shall be imposed, 78 in this case, reclusion perpetua. 79 It may be stated, in this connection, that appellant had filed an "Urgent Motion to Withdraw Appeal," which was endorsed by the Department of justice to Court under date February 4, 1999. As a rule, the withdrawal of an appeal before the filing of the appelle's brief is allowed and granted. 80 However, after a case has been submitted to the court for decision, the appellant cannot, at his election, withdraw the appeal. 81 In the case at bar, appellant filed his notice of withdrawal after the appellee had submitted its brief dated January 2, 1997 and after the case had been submitted for decision on May

4, 1997. 82 The Court is not inclined to grant the motion to withdraw appeal and hence, denies the same. WHEREFORE, the Decision of the Regional Trial Court of Naga City, Branch 27, convicting herein Appellant of Murder and sentencing to him to reclusion perpetua, is AFFIRMED.1wphi1.nt SO ORDERED. Davide, Jr., C.J., Melo, Pardo and Ynares-Santiago, JJ., concur.
#Footnotes

1 Branch 27, presided by Judge Roberto C. Raola. 2 Records, p. 1. 3 Rollo, p. 141-143, Citations omitted. 4 TSN, August 29, 1990. 5 Id., at 14. 6 Id., at 15. 7 Id., at 17. 8 Ibid. 9 Id., at 15. 10 Ibid. 11 Id., at 19. 12 Ibid. 13 Id., at 20. 14 Ibid. 15 Id., at 21. 16 Ibid. 17 Ibid. 18 Id., at 23.

19 Id., at 24. 20 Id., at 25. 21 Ibid. 22 Id., at 26. 23 Ibid. 24 Id., at 27. 25 Ibid. 26 TSN, August 17, 1990. 27 Ibid. 28 Ibid. 29 TSN, August 16, 1990. 30 TSN, August 29, 1990, p. 39. 31 Id., at 40. 32 Id.,at 42-43. 33 Id., at 40. 34 TSN August 10, 1990. p.14. 35 Id., at 19. 36 Exhibit "5." 37 Exhibit "5-B." 38 Rollo., p. 40. 39 Id., at 115. 40 Id., at 36-37, Emphasis supplied. 41 Section 3, Rule 131, Rules of Court. 42 Section 14, Article VIII. 43 People vs. Midtomod, 283 SCRA 395 (1997); People vs. Balad, 274 SCRA 695 (1997); People vs. Patawaran, 274 SCRA 130 (1997), People vs. Salcedo, 273 SCRA 473 (1997).

44 Rollo, p. 118. 45 Id., at 32-33. 46 Id., at 33. 47 Id., at 32. 48 Id., at 33-34 49 Id., at 35. 50 Id., at 33. 51 Id., at 34. 52 Id., at 38. 53 Ibid. 54 People vs. Taedo, 266 SCRA 534 (1997). 55 People vs. Marollana, 276 SCRA 84 (1997). 56 People vs. Zamora, 278 SCRA 60 (1997); People vs. Balderas, 276 SCRA 470 (1997); People vs. Patawaran, supra, note 43. 57 Rollo, pp. 31-32. 58 Before its amendment by Republic Act. No. 7659, which took effect on December 31, 1993 (People vs. Derilo, 271 SCRA 633 [1997]). Article 248 of the Revised Penal Code read as follows: 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 temporal in its maximum period to death if committed with any of the following attendant circumstances: 1. with treachery, . . . 59 Rollo, pp. 122-123. 60 Art. 14 (16), Revised Penal Code. 61 People v. Lascota, 275 SCRA 591 (1997); People v. Quinao, 269 SCRA 495 (1997); People v. Ombrog, 268 SCRA 93 (1997). 62 People v. Chavez, 278 SCRA 230 (1997): People v. Dansal,. 275 SCRA 549 (1997); People v. Tampon, 258 SCRA 115 (1996). 63 People v. Landicho. 258 SCRA 1 (1996). 64 TSN, July 19, 1990, pp. 18-21.

65 Id., at 23-24. (Emphasis supplied) 66 Rollo, p. 156. 67 Art. 15, Revised Penal Code. 68 211 SCRA 492 (1992). 69 People v. Ventura, 208 SCRA 55 (1992). 70 Ibid. 71 People v. Verges, 105 SCRA 744 (1981); People v. Rizal, 103 SCRA 282 (1981); People v. Retania y Rodelas, 95 SCRA 201 (1980); People v. Abanes, 73 SCRA 44 (1976); People v. Rodrigo, 16 SCRA 467 (1966); People Tengvao, 8 SCRA 476 (1961). 72 People v. Garcia, 105 SCRA 325 (1981); People v. Casillar, 30 SCRA 352 (1969). 73 People v. Manuel, 29 SCRA 337 (1969). 74 People v. Macatanda, 109 SCRA 35 (1981). 75 People v. Retania y Robles, 95 SCRA 201 (1980), People v. Mongado, 28 SCRA 642 (1969). 76 People v. Lapaz, 171 SCRA 539 (1989). 77 See note 58. 78 Art. 64, Revised Penal Code. 79 See People v. Sator, 268 SCRA 136 (1997). 80 People v. Mendoza, 49 O.G. No. 7. 2740 (1953). 81 United States v. Sotto, 38 Phil. 666 (1918). 82 In ordinary appeals, when no hearing on the merits of the main case is held, a case is deemed submitted for judgment upon the filing of the last pleading, brief, or memorandum required by the Rules or by the court itself, or the expiration of the period of its filing (1, Rule 51, Rules of Court). After the People submitted their brief, this Court, in a Resolution dated March 10, 1997, required appellant "to file reply brief within thirty (30) days from notice hereof if he so desires." Records show that appellant's counsel received said Resolution on April 3, 1997. However, appellant's counsel did not file reply brief and the case was deemed submitted on May 4, 1997, upon the lapse of the 30-day period.
The Lawphil Project - Arellano Law Foundation

G.R. No. 99869

1 THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROMEO BELARO, DEFENDANT-APPELLANT.

1.1 DECISION
1.1.1 KAPUNAN, J.:
Accused Romeo Belaro appeals from the Decision of the Regional Trial Court (RTC) of Naga City[1] convicting him of Murder. Appellant was charged in an information stating: That on or about 8:00 oclock [sic] in the evening of November 2, 1989 at Barangay Sibobo, Municipality of Calabanga, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with evident premeditation and treachery and while armed with M-16, armalite rifle did then and there wilfully, unlawfully and feloniously shoot with said firearms one Salvador Pastor y Salientes hitting the different parts of his body thereby causing his instantaneous death; That the commission of this crime was attended with the aggravating circumstance of nighttime to better accomplish the commission of the offense. ACTS CONTRARY TO LAW.[2] Upon arraignment, appellant pleaded not guilty to the above charge. Trial ensued thereafter. The prosecutions version is synthesized by the Solicitor General, thus: The only eyewitness for the offense charged, Myrna Azur Pastor [Myrna], widow of the deceased Salvador S. Pastor, testified that on 2 November 1989, at approximately 8:10 oclock [sic] in the evening, she was inside her residence at Sibobo, Calabanga, Camarines Sur, when someone from outside called Ma and Pa, summoning her attention. Since her husband was already reclined on the bed momentarily savoring a local drama aired on the radio, Myrna raced down the stairs to answer the call. When Myrna opened the front door, she was surprised to see the caller as their long-time family acquaintance, appellant Romeo Belaro, posing outside the door and armed with the armalite that he usually carries. Appellant appeared to be drunk. Since the armalites nozzle was ominously

pointed at the door, Myrna felt an onrush of fear and instinctively shut the door. Thereafter, she raced towards their bedroom and told her husband about appellant. This time, the deceased descended to see appellant while he toted his youngest child. However, the moment the front door was opened, Myrna was simply surprised when her deceased husband tossed to her the child and shoved her aside. Thereafter, a volley of shots from an M-16 rifle rang through the air. The deceased was directly hit as he toppled on the floor. Then again, another series of gunfire emitted. This time, appellant scampered away. Five (5) other unidentified men appeared to have ran away with him. Meanwhile, all that Myrna could do was cry and shout for help. As Myrna went out of the house to register her shout for help x x x her father, Benedicto Azur, who lived within the vicinity, answered her distress call. Upon reaching her daughters house, Benedicto Azur saw deceased bathed in his own blood. Upon inquiry, Myrna could only utter that it was appellant who was responsible for her husbands death. Agitated, Myrna and her four (4) children were transferred to Benedicto Azurs house for solace.[3] The accuseds defense consisted of alibi and denial. Appellant, a member of the Civilian Armed Forces Geographical Unit (CAFGU) since June 7, 1989,[4] claimed that he was asleep at the CAFGU detachment center at the time of the incident in question. Following is his account of the events on that fateful day: Appellant was at the detachment center at around 9:00 in the morning of November 2, 1989.[5] A little after nine, appellant asked permission from their Assistant Detachment Commander, Sgt. Esmeraldo Ravara, if he could buy medicine for his sick child.[6] Appellant thereafter left for Barangay Sibobo, wearing a T-shirt, maong pants and slippers.[7] Appellant carried with him his armalite, which had a crack at the right side and a hole on the left, but did not have a sling.[8] Appellant arrived in Barangay Sibobo at around 10:00 that same morning.[9] He then went to his aunt to buy fish and saw his cousins who invited him to a drinking spree.[10] Appellant accepted their invitation and drank with them until 3:00 in the afternoon.[11] He went home thereafter.[12] Upon arriving at his house in Cabanbanan, Calabanga, Camarines Sur, appellant took his lunch and then went to laid down to rest.[13] Appellant got up at around 5:30 in the afternoon and informed his wife that he was going to report back to the detachment center,[14] which was approximately100 meters from their house.[15] Back at the barracks, appellant cooked noodles for snacks.[16] His Assistant Detachment Commander, Sgt. Ravara, then invited appellant and the other men for a drink.[17] Cafgu Garison, Rogelio Salientes, Renato Quieros, Roberto dela Cruz, appellant and Aproniano Mallo,

the Barangay Captain of Cabanbanan, Calabanga, Camarines Sur, obliged.[18] Appellant had three shots of gin. Feeling the effects of the alcohol, appellant took leave from Sgt. Ravara to retire for the night.[19] Appellant then laid down on his bed about four (4) meters away from where the drinking was taking place, and slept.[20] He woke up at around seven oclock the next morning[21] only to learn from Sgt. Ravara that Salvador Pastor was shot dead the night before.[22] The Sergeant warned him not to go to Sibobo as he was the suspect in the killing.[23] Appellant replied that if that [was] the case, [he] will not go there anymore because the relative[s] [of] Salvador Pastor might harm [him].[24] Later, appellant did go to the Calabanga police station accompanied by his detachment commander.[25] Appellants alibi was corroborated by Rogelio Salientes[26] and Eustaquio Aquino,[27] both CAFGU members, Aproniano Mallo,[28] the Barangay Captain of Cabanbanan, Calabanga, Camarines Sur, and Sgt. Ravara.[29] Appellant further alleged that although his rifle had a crack and a hole in it,[30] the same did not have any sling or epoxy since the time of its issuance to him in June 1989.[31] Hence, prosecution witness Myrna Pastor could not have seen the sling and the epoxy in the armalite rifle on or before November 2, 1989. He also claimed that Myrna could not have seen him in uniform and barefoot at the same time since their regulations required them to wear combat or rubber shoes when in uniform.[32] He denied that he was not envious of the victims good fortune as he had a better means of livelihood.[33] The defense likewise attempted to pin the victims death on the New Peoples Army (NPA). According to Sgt. Ernesto Austero, the deceased was an asset who reported the activities of the NPA to him.[34] Sgt. Austero testified that in a patrol conducted in May 1990, the military discovered a ballot box containing supposedly subversive documents including a list of persons wanted by the NPA.[35] Among the names allegedly in said list[36] was that of the deceased Salvador Pastor who was described therein as DID, informer, holdupper.[37] In a Judgment dated December 14, 1990, the RTC found appellant guilty beyond reasonable doubt as follows: WHEREFORE, premises considered, judgment is hereby rendered declaring that accused ROMEO BELARO is guilty beyond reasonable doubt of the crime of Murder as defined and penalized under Article 248 of the Revised Penal Code without any aggravating or mitigating circumstance and, he is hereby sentenced to reclusion perpetua, to indemnify the heirs of Salvador Pastor y Salientes represented by Myrna Azur-Pastor, the sum of P50,000.00 as damages as well as to reimburse Benedicto Azur for the funeral expenses incurred in the burial of the deceased in the sum of P8,421.00 without subsidiary imprisonment in case of insolvency; and, to pay the costs of this suit. Accused is entitled to full credit for the entire period of his detention from February 5, 1990. SO ORDERED.[38] Appellant now questions his conviction, contending that:

a. The accused was denied the right to trial by an impartial and neutral judge; b. The trial court erred when it did not give credence to the testimonies of the witnesses for the accused; c. The trial court erred when it convicted, rather than, acquitted the accused. d. Assuming the accused is guilty, the trial court erred when it concluded that the crime committed was murder qualified with treachery, and not plain and simple homicide. e. Assuming further that the accused is guilty of homicide or murder, the trial court erred in not considering in his favor the mitigating circumstances of drunkenness and illiteracy; and f. Assuming the accused is guilty, the trial court erred in imposing the penalty of reclusion perpetua.[39] Appellant submits that the trial court had prejudged his witnesses credibility even before the trial started. This prejudgment supposedly manifested itself in the following portion of the courts decision: Neither can the Court give credence to the claim of the accused that at the time the victim was shot he was sleeping in their detachment barracks after having drank gin upon the alleged invitation of the Assistant Detachment Commander, Sgt. Esmeraldo Ravara (TSN August 29, 1990, pp. 24-26) notwithstanding the corroborative testimonies of CAFGU member Rogelio Salientes (TSN August 17, 1990, pp. 24-29); Barangay Captain Aproniano Mallo of Cabanbanan, Calabanga, Camarines Sur (TSN Augu 17, 1990, pp. 6-9); CAFGU Eustaquio Aquino (August 17, 1990, pp. 36-41) and Sergeant Esmeraldo Ravara, (TSN, August 16, 1990, pp. 36-41) as said witnesses, except Barangay Captain Aproniano Mallo, are either members of the military, or at least affiliated with it as CAFGU members, who cannot be free of bias influenced as they are by the spirit of comradeship existing among them. The bias of said defense witnesses was apparent to the Court when almost all of them were present during the trial of this case even at the time when the prosecution was still presenting evidence and there was no need for them to be in court. Even the 7th CAA Coy Commander, a 2nd Lt. Arnel B. Escobal made representations with the Court praying for the transfer of the accused from the custody of the Provincial Warden at Tinangis Penal Farm, Tinangis, Pili, Camarines Sur to the detention cell at the 7th CAA Camarines Sur Constabulary/Integrated National Police Command at Concepcion Grande, Naga City (Ex Parte Motion to Transfer Custody of the Detention Prisoner dated March 8, 1990, page 24, record) which however was denied by the Court in view of the escape of a CAFGU member who also sought and was granted transfer of detention from Tinangis Penal Farm to the PC Headquarters, Concepcion Grande, Naga City and the Provincial Command has not accounted for his whereabouts even up to now (Order of the Court dated March 13, 1990, page 25, record).[40] Appellant argues that the trial judges prejudice calls for a remand to the trial court for re-trial.

We discern no prejudice on the part of the trial judge. A judge enjoys the presumption of regularity in the performance of his functions.[41] Accordingly, we construe the above statements of the trial judge not as manifestations of bias but as mere observations that the judge later took into account in the rendition of judgment. The statements do not necessarily mean that the judge had prejudged the accused, only that he factored his earlier observations when he prepared the decision of conviction. Indeed, judges should be observant in the goings-on in the courtroom, taking note of every relevant detail that may prove to be of weight when the judges prepare their decision. The judges observations should form part of his decision. Such practice should be commended rather than condemned for it achieves two purposes. The first is compliance with due process for it informs the parties of the bases of the courts decision. Thus, the Constitution[42] requires that [n]o decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. Second, in case of conviction and appeal, the reviewing court or courts would know and appreciate how the trial judge arrived at his conclusions. Moreover, the attendance of the witnesses and the motions for the transfer of the accused are not per se indicative of bias. This was not lost on the trial judge who made the statements merely to support his conclusion that most of the defense witnesses, who were themselves CAFGU members, cannot be free from bias in view of the camaraderie between them and the accused. Later in the text of the decision, the judge also noted the demeanor of these witnesses during their examination and found their deportment to be inconsistent with that of a truthful witness. The decision of the court should be read as a whole and the above-quoted statements should be read in the light of the other parts of the decision. In any event, the testimonies of these witnesses corroborating appellants alibi cannot outweigh positive identification by the victims widow of appellant as her husbands assailant.[43] This brings us to appellants second and third assigned errors. Appellant contends that the trial court should have given credence to the testimonies of the defense witnesses corroborating appellants alibi, especially that of Rogelio Salientes and Barangay Captain Aproniano Mallo, who are both related to the victim. Salientes is allegedly a cousin of Salvador Pastor while Mallo is the husband of another cousin of the victim.[44] As stated earlier, however, these testimonies cannot prevail over the positive identification of the accused by the victims bereaved wife. We sustain the assessment of the trial court regarding the credibility of Myrna Pastor, such assessment being consistent with the evidence and the rules governing the same. Thus, the trial court held that: (1) Myrna Pastor was not impelled by any improper motive. While it may be true that the wife of the victim is the sole eyewitness to the commission of the offense, her relationship to the victim does not, by itself, impair her credibility (People vs. Paras, G.R. No. 61773, January 31, 1987, 147 SCRA 594; People vs. Bautista, G.R. No. 69123, January 30, 1987, 147 SCRA 500; and People vs. Seguerra, G.R. No. 58574, October 12, 1987, 154 SCRA 656), especially because there is no showing of improper motive on the part of said witness for testifying against the accused. Her relationship to the victim does not render her clear, direct and positive testimony less worthy of full faith and credit. On the contrary, her

natural interest in securing the conviction of the guilty party would deter her from implicating persons other than the culprit, for otherwise, the latter would thereby gain immunity (People vs. Radomes, 141 SCRA 548; People vs. Gavino Aguinaldo, G.R. No. 75816, September 26, 1988, Paras, J.).[45] (2) The scene of the crime enjoyed sufficient lighting for her to identify the accused. The denials of the accused that he did not shoot and kill the victim cannot prevail over the clear, direct and positive identification by the sole eyewitness, Myrna Azur-Pastor, that it was the accused whom she saw that fatal night with an armalite rifle aimed, fired and shot to death her husband as she was near him when he shot her husband and even smelled the liquor coming from the body of the accused (TSN, July 19, 1990, pp. 50-51) and that she was able to identify the accused as she held a lighted lamp when she opened the door; besides, there was also light coming from the house of her uncle which was just a few meters from their house (TSN July 20, 1990, page 9; People vs. Datuya, 154 SCRA 410; People vs. Dava, 149 SCRA 582; People vs. Melgar, G.R. No. 75268, January 29, 1988).[46] (3) She was well acquainted with the accused and therefore could not have been mistaken as to his identity. Furthermore, there is no possibility that she could have been mistaken in the identity of the accused for, apart from being at the scene of the crime, she also knew the accused very well as in the past the latter would go to the house of the former to ask for fish. In fact, the accused also admitted having known the victim and his wife since childhood (TSN, August 29, 1990, page 11).[47] (4) She was able to see and identify appellants weapon. The armalite rifle itself which was identified by Myrna Azur-Pastor to have been used in shooting to death her husband was brought to court and the description of said rifle by her tallied with the rifle itself as it had a crack and the hole on it was filled up with an epoxy resin (Exhibits E and E-1 or Exhibits 2 and 2-A; TSN July 20, 1990, pp. 2 to 4). Even the evidence for the accused show that the subject armalite rifle was the same rifle issued to accused by C2C Danilo Orquita, the CO Supply Sergeant, under a Memorandum Receipt dated June 5, 1989 (Exhibit A or Exhibit 1) which was taken by T/Sgt. Ernesto Austero, the Detachment Commander of the accused at Cabanbanan, Calabanga, Camarines Sur, from the accused himself on July 8, 1990 (Exhibit 3) and turned over to T/Sgt. Jose Sanchez and later back to C2C Danilo Orquita who finally delivered said weapon to the court to be utilized as evidence (TSN August 9, 1990, pages 8 to 11; Exhibit E or Exhibit 2).[48] (5) Her statements right after the occurrence of the crime constituted part of the res gestae. Undoubtedly, the statement of Myrna Azur-Pastor that it was Romeo Belaro who shot and killed her husband when asked by her father as to who killed her husband upon arriving at her house seeing her crying and trembling just immediately after the shooting may be considered as part of

the res gestae and the testimonies of Myrna Azur-Pastor and her father Benedicto Azur on said fact are admissible in evidence. This is so because all that is required for the admissibility of a given statement as part of the res gestae is that it is made under the influence of a startling event witnessed by the person who made the declaration before she had time to think and make-up a story, or to concoct or contrive a falsehood, or to fabricate an account, and without any undue influence in obtaining it, aside from referring to the event in question or its immediate attending circumstances (Section 36, Rule 130, Revised Rules of Court; People vs. Ner, G.R. No. L25504, July 31, 1969, 28 SCRA 1151, 1161-1162; People vs. Abboc, G.R. No. L-28327, September 14, 1973, 53 SCRA 54, 61; People vs. Berame, G.R. No. L-27606, July 30, 1976, 72 SCRA 184, 190; and Gaspar Medios vs. C.A. and the People of the Philippines, G.R. No. 79570, January 31, 1989, Cortes, J.).[49] (6) Her testimony was corroborated by other evidence, namely, (a) the necropsy report, (b) the shells and bullet found at the scene of the crime, and (c) the paraffin tests conducted on appellant. Aside from the testimony of the victims wife that her husband was shot with an armalite rifle, the Necropsy Report (Exhibit B) indicates that Salvador Salientes Pastor died of gunshot wounds at Sibobo, Calabanga, Camarines Sur on November 2, 1989 at about 8:10 oclock in the evening. There were seven gunshot wounds found in various parts of his body and, specifically, the cause of death was severe hemorrhage, internal and external, secondary to gunshot wounds multiple, necks, chin and chest (Exhibits C to C-2). This substantiates the testimony of the widow of the victim as to the cause of death of her husband. In his testimony, Medico-Legal Officer, Dr. Belindo Tordilla declared that an M-16 armalite rifle could have caused all the gunshot wounds in the body of the victim as the bullets did not enter the body at right angle and the exit wounds were bigger; that one gun could have caused said wounds; and, that the assailant could have shot the victim at a distance of about five meters only (TSN July 18, 1990, p. 59) which testimony jibes with that of the sole eyewitness that the accused shot her husband with an armalite rifle from only a short distance (TSN July 19, 1990, pp. 27 to 31). That an armalite rifle was in fact used in shooting the victim is further shown by the 26 empty shells and 1 live bullet (Exhibits G to G-27) which were recovered a day after the incident, by Benedicto Azur, father of the wife of the victim, just at the front door of the house where the shooting took place which shells and bullet he turned over to Pat. Leopoldo Bico of the Police Department of Calabanga, Camarines Sur (TSN July 20, 1990, pp. 59 to 63).[50] xxx The paraffin test conducted by NBI Forensic Chemist Julieta Coranes-Flores on the left and right hands of the accused shows that his right hand was found positive with specks located as follows: 1. One (1) speck, distal third, second metacarpal,

2. One (1) speck, proximal third, middle phalange, index finger, 3. One (1) speck, proximal third, proximal phalange, ring finger (Chemistry Report No. C-891428, Exhibits H to H-7), Which findings also establish the fact that the accused at the time of the taking of the test on November 3, 1989, had recently fired a gun with his right hand (TSN August 3, 1990, pp. 23 to 29). Although the shells of the bullets that felled the victim (Exhibits G to G-27) and the armalite rifle were brought to the NBI Office at Naga City, no ballistic examination was undertaken as the local NBI Office has no facilities for it which fact this Court takes judicial notice of. Nevertheless, a ballistic examination is not indispensable in this case and even if another weapon was in fact actually used in killing the victim, still the accused cannot escape criminal liability therefor as he was positively identified by the prosecutor eyewitness, Myrna Azur-Pastor, as the one who shot to death her husband.[51] (7) Myrna Pastors demeanor while on the witness stand is consistent with her testimony. The Court noted during the trial that while the witnesses for the prosecution, particularly the sole eyewitness and her father who gave her assistance immediately after the victim was shot, testified in a very natural and normal way expressing their shock fright, anguish, anger and indignation as they related what they actually saw and heard in a straightforward manner xxx.[52] In contrast, the trial court observed that the defense witnesses were: xxx fidgety, evasive and could not even look directly at the cross-examiner especially when testifying on the defense of alibi which the accused put up.[53] The trial courts appraisal of the credibility of witnesses deserves utmost respect since said court had the opportunity to observe their demeanor during the trial.[54] The positive identification of the accused was not the only basis for the rejection by the trial court of appellants alibi. Alibi, as a defense, is inherently weak.[55] The accused must prove not only that he was not present at the scene of the crime but also that it was physically impossible for him to have been present at the time the offense was committed.[56] The defense failed to discharge this burden. The trial court correctly ruled that: Here, the requisites of time and place were not strictly met as the evidence of the accused itself show that Barangay Sibobo, Calabanga, Camarines Sur, where the crime was supposedly committed is only about 5 kilometers from the detachment barracks at Cabanbanan, Calabanga, Camarines Sur, where the accused was supposedly staying and a concrete road connects both barangays so that one can easily take a jeep and reach the place in about 15 minutes or hike for an hour (TSN August 29, 1990, pp. 58 to 59). Hence, the accused was not able to show that he was at some other place for such period of time as to preclude or render impossible his presence

at the place where the crime was committed at the time of its commission (People vs. Rizal Idnay, G.R. No. L-48269, August 15, 1988, Melencio-Herrera J.). Moreover, alibi as a defense is inherently weak for it is easy to fabricate (Edwin Reano, et al., vs. C.A. and People of the Philippines, G.R. No. 60992, September 21, 1988, Cortes J.).[57] Considering the foregoing circumstances, we rule that the trial court did not err in convicting appellant. Proof of his guilt was established beyond reasonable doubt. Appellant next questions the appreciation of treachery by the trial court, which circumstance qualified the killing to Murder.[58] Appellant submits that there is no treachery since the attack was frontal and the deceased was forewarned by his wife of the danger that appellant allegedly posed.[59] 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.[60] The essence of treachery is a swift and unexpected attack on the unarmed victim without the slightest provocation on the part of the victim.[61] Thus, this Court has ruled that even a frontal attack can be treacherous when it is sudden and unexpected and the victim is unarmed.[62] Treachery may also be appreciated even when the victim is warned of danger to his person if the execution of the attack made it impossible for the victim to defend himself or to retaliate.[63] In the present case, however, the victim did not even have sufficient warning of the danger that lay ahead, the attack against him sudden and unexpected. The victims widow, Myrna Pastor, narrated the events from the moment appellant came calling at their door: Q What did the one calling say? A Ma and Pa. Q When you heard that voice from the outside calling Ma and Pa, what did your husband do? A My husband told me to go down the stairs and open the door. Q Do you know why your husband ordered you to open the door, do you know who was outside? xxx A I do not know him, sir. ATTY. GENERAL Q When you open the door what did you see?

A I saw Romeo Belaro. xxx Q What was Romeo Belaro doing? A He was standing near the door with an armalite. Q How was he carrying the armalite? INTERPRETER Witness demonstrated before the court the position of Romeo Belaro while he was carrying the firearm with her two hands holding the rifle. ATTY. GENERAL Where was the nozzle of the armalite carried by Belaro pointed when you saw him? xxx Towards the door. ATTY. GENERAL Q What did you do when you saw Belaro standing near you pointing his rifle towards the door?[64] Thus, Myrna could not have known that appellant was about to kill her husband. She did not have a clue as to appellants murderous intentions. Appellant did not utter a word that would have put her on alert. Though appellant was pointing his rifle at the door and his breath reeked of alcohol, these circumstances did not necessarily mean that he was going to kill Salvador Pastor. Accordingly, Myrna could not have warned her husband of appellants impending attack. Her testimony shows that she did not, in fact convey any warning to her husband, telling him only that Romeo Belaro was there. ATTY. GENERAL Q What did you do when you saw Belaro standing near you pointing his rifle towards the door? A I closed the door because I was afraid and went up the house to my husband and told him that Romeo Belaro was there. xxx Q What did your husband do?

A He stood up and go down the house. Q What about you, what did you also do? A I was just following, sir. Q What did your husband do next as he came down from your bedroom? A When he went down from the bedroom he opened the door and when he saw Romeo Belaro he gave me the child and pushed me aside. Q What happened after that? A He was shot.[65] That the victim was unaware of appellants intentions was evident from the fact that, as the Office of the Solicitor General astutely observes,[66] he even carried their youngest child with him when he opened the door for appellant. Thereafter, Salvador tossed the child to his wife and pushed her aside. Only seconds lapsed until Salvador Pastor was killed, felled by bullets from appellants rifle. No doubt, the killing was treacherous, the offense-murder. Appellant next faults the trial court for failing to appreciate two alternative circumstances to mitigate his liability. Alternative circumstances are those which must be taken into consideration 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.[67] Appellant invokes the last two circumstances in his favor. People v. Buenaflor[68] provides a succinct summary of the rules in the appreciation of intoxication: The ordinary rule is that intoxication may be considered either as aggravating or as mitigating, depending upon the circumstances attending the commission of the crime. Intoxication has the effect of decreasing the penalty, if the intoxication is not habitual or subsequent to the plan to commit the contemplated crime; upon the other hand, when intoxication is habitual or intentional, it is considered as an aggravating circumstance. The person pleading intoxication must present proof that he had taken a quantity of alcoholic beverage, prior to the commission of the crime, sufficient to produce the effect of blurring his reason; and at the same time, he must prove that not only was intoxication not habitual but also that his imbibing the alcoholic drink was not intended to fortify his resolve to commit the crime. Appellant failed to introduce evidence to support the presence of this mitigating circumstance. He cannot be entitled to this mitigating circumstance merely on the declaration of the prosecution witness that appellant was drunk.[69] Even if we consider Myrna Pastors testimony that appellant reeked of alcohol, this does not warrant a conclusion that the degree of intoxication

affected his mental faculties. Appellant also did not prove that such intoxication was not habitual or intentional. This he failed to do, for the reason that appellants defense was that of alibi.[70] Neither can appellants alleged lack of instruction be appreciated in his favor. Illiteracy alone will not constitute such circumstance; it must be accompanied by lack of sufficient intelligence and knowledge of the full significance of ones act.[71] Thus, it is the trial court, rather than the appellate court, to find and consider the circumstance of lack of instruction.[72] The said court was in a better position to gauge appellants level of intelligence from his appearance, demeanor and manner of answering questions.[73] In this case, the trial court did not make any findings as to the degree of instruction of appellant. Indeed, the alleged presence of this circumstance is being raised for the first time here. That alternative circumstance cannot be considered in fixing the penalty to be imposed on appellant on appeal. Moreover, lack of instruction should be proved directly and positively;[74] it cannot be based on mere deduction or inference.[75] There is no such proof in this case. On the contrary, appellant, being a CAFGU member, is presumed to have received some degree of instruction and training. Finally, there is jurisprudence holding that the accuseds lack of instruction cannot be considered mitigating in homicide or murder. The reason is that one does not have to be educated or intelligent to be able to know that it is unlawful to take the life of another person even if it is to redress a wrong committed against him.[76] Appellants last assigned error regarding the proper penalty is premised on the absence of treachery and the presence of intoxication and lack of instruction. As shown earlier, however, the qualifying circumstance of treachery is present, in the alternative circumstances of intoxication and lack of instruction are absent. At the time of the commission of the offense, the penalty prescribed by Article 248 of the Revised Penal Code for Murder was reclusion temporal in its maximum period to death.[77] In the absence of either aggravating or mitigating circumstances, the penalty prescribed by law in its medium period shall be imposed,[78] in this case, reclusion perpetua.[79] It may be stated, in this connection, that appellant had filed an Urgent Motion to Withdraw Appeal, which was indorsed by the Department of Justice to the Court under date February 4, 1999. As a rule, the withdrawal of an appeal before the filing of the appellees brief is allowed and granted.[80] However, after a case has been submitted to the court for decision, the appellant cannot, at his election, withdraw the appeal.[81] In the case at bar, appellant filed his notice of withdrawal after the appellee had submitted its brief dated January 2, 1997 and after the case had been submitted for decision on May 4, 1997.[82] The Court is not inclined to grant the motion to withdraw appeal and, hence, denies the same. WHEREFORE, the Decision of the Regional Trial Court of Naga City, Branch 27, convicting herein Appellant of Murder and sentencing him to reclusion perpetua, is AFFIRMED. SO ORDERED. Davide. Jr., C.J. (Chairman), Melo, Pardo, and Ynares-Santiago, JJ., concur.

[1] Branch 27, presided by Judge Roberto C. Raola. [2] Records, p. 1. [3] Rollo, p. 141-143. Citations omitted. [4] TSN, August 29, 1990. [5] Id., at 14. [6] Id., at 15. [7] Id., at 17. [8] Ibid. [9] Id., at 15. [10] Ibid. [11] Id., at 19. [12] Ibid. [13] Id., at 20. [14] Ibid. [15] Id., at 21. [16] Ibid. [17] Ibid. [18] Id., at 23. [19] Id., at 24. [20] Id., at 25.

[21] Ibid. [22] Id., at 26.

[23] Ibid. [24] Id., at 27. [25] Ibid. [26] TSN, August 17, 1990. [27] Ibid. [28] Ibid. [29] TSN, August 16, 1990. [30] TSN, August, 29, 1990, p. 39. [31] Id., at 40. [32] Id., at 42-43. [33] Id., at 40. [34] TSN, August 10, 1990, p. 14. [35] Id., at 19. [36] Exhibit 5. [37] Exhibit 5-B. [38] Rollo, p. 40. [39] Id., at 115. [40] Id., at 36-37. Underscoring supplied. [41] Section 3, Rule 131, Rules of Court. [42] Section 14, Article VIII. [43] People vs. Midtomod, 283 SCRA 395 (1997); People vs. Balad, 274 SCRA 695 (1997); People vs. Patawaran, 274 SCRA 130 (1997); People vs. Salcedo, 273 SCRA 473 (1997). [44] Rollo, p. 118. [45] Id., at 32-33.

[46] Id., at 33. [47] Id., at 32. [48] Id., at 33-34. [49] Id., at 35. [50] Id., at 33. [51] Id., at 34. [52] Id., at 38. [53] Ibid. [54] People vs. Taedo, 266 SCRA 534 (1997). [55] People vs. Marollano, 276 SCRA 84 (1997). [56] People vs. Zamora, 278 SCRA 60 (1997); People vs. Balderas, 276 SCRA 470 (1997); People vs. Patawaran, supra, note 43. [57] Rollo, pp. 31-32. [58] Before its amendment by Republic Act No. 7659, which took effect on December 31, 1993 (People vs. Derilo, 271 SCRA 633 [1997]), Article 248 of the Revised Penal Code read as follows: 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 temporal in its maximum period to death if committed with any of the following attendant circumstances: 1. with treachery, x x x. [59] Rollo, pp. 122-123. [60] Article 14 (16), Revised Penal Code. [61] People v. Lascota, 275 SCRA 591 (1997); People v. Quinao, 269 SCRA 495 (1997); People v. Ombrog, 268 SCRA 93 (1997). [62] People v. Chavez, 278 SCRA 230 (1997); People v. Dansal, 275 SCRA 549 (1997); People v. Tampon, 258 SCRA 115 (1996). [63] People v. Landicho, 258 SCRA 1 (1996).

[64] TSN, July 19, 1990, pp. 18-21. [65] Id., at 23-24. (Underscoring supplied.) [66] Rollo, p. 156. [67] Article 15, Revised Penal Code. [68] 211 SCRA 492 (1992). [69] People v. Ventura, 208 SCRA 55 (1992). [70] Ibid. [71] People v. Verges, 105 SCRA 744 (1981); People v. Rizal, 103 SCRA 282 (1981); People v. Retania y Rodelas, 95 SCRA 201 (1980); People v. Abanes, 73 SCRA 44 (1976); People v. Rodrigo, 16 SCRA 467 (1966); People v. Tengyao, 8 SCRA 476 (1961). [72] People v. Garcia, 105 SCRA 325 (1981); People v. Casillar, 30 SCRA 352 (1969). [73] People v. Manuel, 29 SCRA 337 (1969). [74] People v. Macatanda, 109 SCRA 35 (1981). [75] People v. Retania y Robles, 95 SCRA 201 (1980); People v. Mongado, 28 SCRA 642 (1969). [76] People v. Lapaz, 171 SCRA 539 (1989). [77] See note 58. [78] Article 64, Revised Penal Code. [79] See People v. Sator, 268 SCRA 136 (1997). [80] People v. Mendoza, 49 O.G. No. 7, 2740 (1953). [81] United States v. Sotto, 38 Phil. 666 (1918). [82] In ordinary appeals, when no hearing on the merits of the main case is held, a case is deemed submitted for judgment upon the filing of the last pleading, brief, or memorandum required by the Rules or by the court itself, or the expiration of the period of its filing (1, Rule 51, Rules of Court). After the People submitted their brief, this Court, in a Resolution dated March 10, 1997, required appellant to file a reply brief within thirty (30) days from notice hereof if he so desires. Records show that appellants counsel received said Resolution on April

3, 1997. However, appellants counsel did not file a reply brief and the case was deemed submitted on May 4, 1997, upon the lapse of the 30-day period. This entry was posted in Jurisprudence and tagged 1987 Constitution Art. 3 Sec. 1, Arbitrary deprivation of life, Calabanga. Camarines Sur, Citizen Armed Force Geographical Unit (CAFGU), ICCPR Art. 6, Murder, Right to Life, RPC Art. 248, UDHR Art. 3 on May 26, 1999 by ken velez.

SUPREME COURT Manila EN BANC DECISION February 28, 2002 G.R. No. ,, vs. ,. Accused-appellant raised this lone assignment of error before the Court: THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY UPON ACCUSED-APPELLANT DESPITE THE PROSECUTIONS FAILURE TO ALLEGE IN THE TWO (2) INFORMATIONS THAT ACCUSED-APPELLANT IS THE COMMON-LAW SPOUSE OF THE VICTIMS MOTHER.31 , J.: Before us for automatic review is the joint decision, dated 14 April 1999, of the Regional Trial Court of Calabanga, Camarines Sur, Branch 63 in Criminal Cases No. RTC ?97-168 and RTC ?97-169, finding accused-appellant Marcelo Esuela guilty beyond reasonable doubt of two (2) counts of rape committed against his stepdaughter Maricel A. Hilboy and sentencing him to suffer the penalty of death for each count. These criminal cases stemmed from two separate informations filed against accused-appellant Marcelo Esuela for the acts of rape committed sometime in 1995 and 1996 when Maricel A. Hilboy was 13 years old. The informations for both cases are as follows: Crim. Case No. RTC ?97-168: xxx

That on or about 12:00 o?clock midnight sometime in the year 1995 at Barangay Tamban, Municipality of Tinambac, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the said accused willfully, unlawfully and feloniously, with grave abuse of confidence, being the stepfather of Maricel A. Hilboy, with lewd designs and by means of force and intimidation have sexual intercourse with the said private complainant, a 13-year old minor, against her will and without her consent as evidenced by a medical certificate marked as Annex "A" hereof, to the damage and prejudice of said Maricel A. Hilboy. ACTS CONTRARY TO LAW. Naga City, for Calabanga, Camarines Sur, January 22, 1997. Crim. Case No. RTC?97-169: xxx That on or about 12:00 o?clock midnight of December 14, 1996 at Zone 6, Barangay Tamban, Municipality of Tinambac, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the said accused willfully, unlawfully and feloniously, with grave abuse of confidence, being the stepfather of Maricel A. Hilboy, with lewd designs and by means of force and intimidation have sexual intercourse with the said private complainant, a 13 year old minor, against her will and without her consent as evidenced by a medical certificate marked as "Annex A" hereof, to the damage and prejudice of said Maricel A. Hilboy. ACTS CONTRARY TO LAW. Naga City, Philippines, January 22, 1997.1 On April 4, 1997, accused-appellant Marcelo Esuela, duly assisted by counsel de oficio, entered a plea of not guilty in both cases. Thereafter, joint trial ensued. Testifying for the prosecution, Maricel A. Hilboy, then 14 years old, declared that she was born on January 5, 1983.2 Accused-appellant Marcelo Esuela was her stepfather3 being the commonlaw husband of her mother, Concepcion Abadesa. Maricel recalled that on December 14, 1996 at around 12:00 o?clock midnight, she was sleeping inside their house when she was awakened and found out that she was already naked.4 Accusedappellant Esuela was already on top of her, inserting his penis into her vagina. She felt pain but she could not shout because Esuela?s hand was covering her mouth.5 Before dismounting, accused-appellant warned her not to tell her mother about what happened; otherwise, he would inflict physical injuries upon her. Thereafter, accused-appellant Esuela left her, and she just kept on crying.6 She also testified that her stepbrothers and stepsisters were sleeping near her but they were not awakened while the rape was taking place.7 Her mother was sleeping on the other part of the house.8 She did not report the incident to her mother because of accused-appellant?s warning.9

Maricel also testified that the incident in 1996 was the second time that she was raped by accused-appellant. The first incident happened in 1995. She could not remember all the details of the first rape incident that transpired in 1995 but she could remember that accused-appellant kept on kissing her and that he inserted his penis into her vagina.10 She reported the incident to her mother but she could not remember what the response of her mother was.11 Eventually, she told her teacher, Gemma Olarve, of what transpired.12 Dr. Goito Froyalde, the Municipal Health Officer of Tinambac, Camarines Sur, testified that he conducted an internal and physical examination on Maricel A. Hilboy on December 17, 1996.13 His examination revealed lacerations in Maricel?s vagina at 12:00 o?clock and 6:00 o?clock positions, which could be caused by penetration of a penis.14 He concluded that the patient was no longer a virgin.15 Gemalil Buenaobra, a Social Worker from DSWD Center for Girls in Pangpang, Sorsogon, Sorsogon, testified that Maricel was her client at DSWD. Maricels problem was the alleged rape incident, as well as the maltreatment that she suffered from the hands of her stepfather. Maricel told her that the perpetrator of the crime was accused-appellant.16 In the course of the individual counseling sessions with Maricel, she also found out that it was very difficult for the latter to relate her feelings. She asked Maricel to write a letter and draw in order to elicit some information from the latter and she discovered that Maricel was frustrated because of her family and her hatred for her stepfather.17 The rape incident was a traumatic experience for Maricel and it affected her behavior, making it difficult for her to get along with others.18 Concepcion Abadesa, mother of Maricel, testified that her daughter was born on January 5, 1983.19 Maricels father was Vicente Hilboy but they separated. She and accused-appellant lived together in 1986 and they had four (4) children, three of whom are alive.20 It was Maricels teacher, Gemma Olarve, who told her that Maricel was abused by accused-appellant.21 She confronted her daughter and the latter admitted that she was raped by accused-appellant. She quarreled with accused-appellant, after which she went to report the incident to their barangay captain, Socorro Cabral.22 In the presence of Cabral, accused-appellant at first denied but eventually admitted that he raped Maricel. Accused-appellant promised that the incident would not be repeated.23 Concepcion further testified that she consulted her mother about the matter and at first, they thought of having the incident recorded in the police blotter. However, they changed their minds because nobody would take care of the three (3) children since she was jobless and accused-appellant was the only breadwinner of the family.24 For the defense, Natividad Esuela, mother of accused-appellant, testified that her son and Concepcion lived together as husband and wife but separated in 1994 because they quarreled. Accused-appellant started living with her in their house at Zone 6, Tamban, Tinambac, Camarines Sur which was quite far from the house of Concepcion. .Her son was working as a porter and he would usually go out early in the morning and return home at three oclock in the afternoon.25

Accused-appellant Marcelo Esuela denied the accusations against him.26 He testified that at midnight of December 14, 1996, he was sleeping in the house of his parents at Zone 6, Tamban, Tinambac, Camarines Sur. With him were his mother, two (2) small sisters and brother Cris.27 He further testified that he and Concepcion were live-in partners but they parted ways in 1994 because of misunderstanding about money and the meddling of his in-laws in their lives.28 He declared that Maricel was not living with them during his cohabitation with Concepcion but with his in-laws whose house was about 200 meters from their house.29 On 14 April 1999, the trial court rendered its decision, the dispositive portion of which read: WHEREFORE, in view of the foregoing, the prosecution having proved the guilt of the accused beyond reasonable doubt in both cases, accused Marcelo Esuela, is found guilty of the offense of rape. Applying the above-quoted law, the rape cases having been committed in the year 1995 and December 14, 1996, accused Marcelo Esuela is hereby sentenced to suffer the following penalties: 1. In Crim. Case No. RTC 97-168, he is hereby sentenced the penalty of death and to indemnify the private complainant Maricel Hilboy the amount of P75,000.00; 2. In Crim. Case No. RTC 97-169, he is hereby sentenced the penalty of death and to indemnify the private complainant Maricel Hilboy the amount of P75,000.00. The indemnification of P50,000.00 has been increased by the Supreme Court in People vs. Victor, G.R. No. 127903; July 9, 1998 to P75,000.00; 3. He is further ordered to pay the cost. SO ORDERED.30 The decision is now before this court for its automatic review. Accused-appellant raised this lone assignment of error before the Court: THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY UPON ACCUSED-APPELLANT DESPITE THE PROSECUTIONS FAILURE TO ALLEGE IN THE TWO (2) INFORMATIONS THAT ACCUSED-APPELLANT IS THE COMMON-LAW SPOUSE OF THE VICTIMS MOTHER.31 Clearly, accused-appellant does not question the decision of the trial court insofar as his guilt is concerned. Nevertheless, this Court still painstakingly reviewed the records of the cases to determine whether the guilt of accused-appellant has been proved beyond reasonable doubt. Unfortunately for accused-appellant, the Court could not find any reason to reverse his conviction. It is apparent that the trial court arrived at its finding after a careful assessment of the evidence presented, foremost of which was the testimony of the victim in open court. As a rule, we do not disturb the findings by the trial court on the credibility of witnesses since the trial court is in a

better position to pass upon the credibility of witnesses. The trial judge was able to personally evaluate the witnesss manner of testifying, and from there reach a studied opinion as to her credibility.32 Maricel categorically testified: xxx Q You said that something happened to you. Now, I call your attention whether you recall where were you? On December 14, 1996? A Yes, sir. Q Where were you? A I was inside the house sir. Q What were you doing at around 12:00 midnight? A I was sleeping sir. PROS. CU: Q Were you awakened? ATTY. TAYER: Objection your Honor. Leading. COURT: Sustained. Reform. PROS. CU: Q What happened if anything while you were sleeping? A Yes, sir. ATTY. TAYER: We would like to strike out the answer because it was not responsive to the question. COURT: Strike that out.

(The question was repeated to the witness by the interpreter.) WITNESS: A I was awakened to find out that I was already naked without my panty and my dress. Q So when you were awakened noticing that your panty was already been undressed, what if anything transpired next? A He was already on top of me sir. Q You said that somebody was on top of you, who was that person if you recognize him? ATTY. TAYER: I think that the question is not proper your Honor. The translation is not someone but he. Witness: A Marcelo Esuela. PROS. CU: Kindly point at Marcelo Esuela if he is around? INTERPRETER: The witness is pointing at a person who when asked his named answered Marcelo Esuela. ATTY. TAYER: We would like to manifest your Honor that as I observe the witness cannot pinpoint straight or directly to the accused. She cannot face the accused. COURT: Proceed. PROS. CU: Q So you recognized the person who was on top of you to be Marcelo Esuela the accused here. So what if anything transpired after that? A He inserted his penis inside my vagina sir. Q What if anything did you feel when he inserted his penis to your vagina?

A It was painful sir. Q Where if at all was his hands placed while he inserted his penis into your private organ? A He was covering my mouth sir so that I could not shout. Q Maricel Hilboy, while Marcelo Esuela had already inserted his penis to your private organ, what if anything did he do next? ATTY. TAYER: We would like to manifest your Honor that the witness can hardly answer the question. COURT: Make it of record. WITNESS: A He was kissing my lips sir. PROS. CU: Q So for how long do you think had he inserted his penis into your organ? A I could no longer remember sir. Q So what transpired next when he was kissing you Maricel Hilboy? ATTY. TAYER: Objection, your Honor. The witness already say (sic) that nothing already happen (sic). COURT: There was no testimony on that. She said she could not recall how long the penis of the alleged accused was inside her vagina, but not what happened next. There was no question on that. The witness may answer. A He was holding my hands sir so that I could not move. Q What transpired next after that? A He warned me that I should not tell my mother because he will cause some physical injuries on me (babadolan).

COURT: Agreed on the translation of babadolan? ATTY. TAYER: May we request that the word babadolan be placed. PROS. CU: Q So, what if anything did you feel when you were warned that when you report (sic) the incident you will be harmed by Marcelo Esuela? A I got scared. Q So what transpired after that when he warned you not to reveal the incident to anybody? WITNESS: A After that sir he dismount (sic) on top of me and left me. PROS. CU: Q Where did Marcelo Esuela go after he dismounted from on top of you? A He went to the place where he was sleeping. Q So what happened to you after he went to the place where he resumed to sleep? A I kept on crying sir. Q Did you report this incident to your mother? A No, sir. Q Why did you not report it to your mother? A Because sir of what he warned me. He threatened me that he is going to hurt me if I report the incident to my mother.33 xxx As regards the first rape incident, Maricel declared: PROS. CU: Q Tell us about that incident Marcel Hilboy, that incident that happened in 1995. A What happened to me in 1995 is the same of what happened in 1996. Q That is right Maricel Hilboy, but we wish to know what exactly happened to you? ATTY. TAYER: At this juncture, we would like to manifest. The witness had difficulty in answering the question. The question had to be explained by the Honorable Court as well as the prosecutor. WITNESS: A I was raped sir in 1995 but I could no longer remember some of the incidents. PROS. CU: Q You said some of the incidents you have already forgotten. Which or what part of that incident which you have still a recollection? ATTY. TAYER: Since the witness is still thinking, I would like to manifest that the answer she had given a while ago it took time before she can answer the question. WITNESS: A I could remember sir that he kept on kissing me. PROS. CU: Q What else did he do? What else do you remember aside from being kissed by Marcelo Esuela? A I also remember that he inserted his penis into my vagina. Q Please identify the person who inserted his penis into your vagina and which you said he was repeatedly kissing you?

A Marcelo Esuela.34 The testimony of Maricel was candid and straightforward, interrupted only by her tears as she recalled her unpleasant experience at the hands of accused-appellant. As such, it must be given full faith and credit by this Court. On the matter of the victim?s age, this Court ruled that the testimony of the mother is admissible as she is in the best position to know when she delivered her child.35 Further, the trial court observed that Maricel could not have been more than 18 years old when she testified.36 Hence, the age of Maricel at the time of the incident was sufficiently established. As stated earlier, accused-appellant only assails the imposition of the death penalty on him. He alleged that in the two (2) informations, he was considered as the stepfather of the victim but the records would show that he and Concepcion, mother of the victim, only lived as husband and wife without the benefit of marriage. Hence, accused-appellant prays that decision of the trial court be reversed and set aside and that a new one be rendered imposing upon him the penalty of reclusion perpetua.37 Indeed, accused-appellant is correct in assailing the death penalty imposed upon him by the trial court and even the Solicitor General subscribes to this view.38 The informations in Criminal Cases Nos. RTC-88 97-168 and RTC 97-169 alleged that accused-appellant was the stepfather of Maricel. In People vs. Dimapilis,39 this Court declared: The death penalty is imposed when the "victim is under eighteen years of age and the offender is x x x the common law spouse of the parent of the victim. The victim is the daughter of appellants? common-law spouse. Ordinarily, the case would have thus meant the imposition of the mandatory death penalty. Quite fortunately for appellant, however, he would be spared this extreme punishment. The relationship between appellant and his victim the victim is the daughter of appellant?s common-law spouse by the latter?s previous relationship with another man is a qualifying circumstance that has not been properly alleged in the information which erroneously referred to the victim as being, instead, the "step-daughter" of appellant. A stepdaughter is a daughter of one?s spouse by a previous marriage or the daughter of one of the spouses by a former marriage. This Court has successively ruled that the circumstances under the amendatory provisions of Section 11 of Republic Act 7659 the attendance of any which mandates the single indivisible penalty of death, instead of the standard penalty of reclusion perpetua to death prescribed in Article 335 of the Revised Penal Code, are in the nature of qualifying circumstances. Unlike a generic aggravating circumstance which may be proved even if not alleged, a qualifying aggravating cannot be proved as such unless alleged in the information although it may be proved as a generic aggravating circumstance if so included among those enumerated in the Code. Obviously, the technical flaw committed by the prosecution in this instance is a matter that cannot be ignored, and it constrains the Court to reduce the penalty of death imposed by the trial court to that of reclusion perpetua.40 Accordingly, accused-appellant must be sentenced to the lesser penalty of reclusion perpetua. As regards the civil indemnity, this Court has ruled that if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by law, the indemnity for the victim shall be increased to the amount of P75,000.00. However, since the death penalty is not imposable due to the reasons heretofore set forth, the victim is entitled only to P50,000.00 as indemnity for each count of rape.41 In addition, the trial court should have ordered accused-appellant to pay the offended party moral damages. Moral damages are awarded to victims of rape cases involving young girls between thirteen and nineteen years of age, taking into account the immeasurable havoc wrought on their youthful feminine psyche.42 An

additional award of P50,000.00 by way of moral damages is thus awarded in favor of the victim who suffers that injury. WHEREFORE, the joint decision of RTC 5th Judicial Region, Branch 63, Calabanga, Camarines Sur in Criminal Case Nos. RTC 97-168 and RTC 97-169 finding accused Marcelo Esuela guilty beyond reasonable doubt of two counts of rape is AFFIRMED with MODIFICATION that the sentence is reduced in each case from Death to Reclusion Perpetua. The civil indemnity of P150,000.00 awarded by the trial court for the two counts of rape is reduced to P100,000.00. In addition, an amount of P100,000.00 for moral damages for the two counts of rape is hereby awarded to the victim. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno*, Vitug*, Mendoza, Panganiban, Quisumbing, Buena, Ynares-Santiago, De Leon, Jr., Gutierrez, and Carpio, JJ., concur. Footnote * On official leave. 1 Rollo, pp. 26-27. 2 TSN, 17 September 1997, at 3. 3 Id., at 4. 4 Id., at 5-6. 5 Id., at 6-7. 6 Id., at 8-9. 7 TSN, 24 September 1997, at 13. 8 Id., at 5. 9 TSN, 17 September 1997, at 9. 10 Id., at 14. 11 Id., at 16. 12 TSN, 24 September 1997, at 19. 13 TSN, 13 August 1997, at. 3-4. 14 Id., at 5, 8. 15 Id., at 7. 16 TSN, 17 October 1997, at 6-7. 17 Id., at 8-9. 18 Id., at 19. 19 TSN, 22 October 1997, at 4. 20 Id., at 4. 21 Id., at 5. 22 Id., at 6. 23 Id., at 7. 24 Id., at 9. 25 TSN, 17 April 1998, at 2-4. 26 TSN, 01 December 1998, at 3. 27 Id., at 2-4. 28 Id., at 5. 29 Id., at 6. 30 Rollo, p. 55. 31 Id., at 69.

32 People vs. Adajio, 343 SCRA 316 (2000). 33 TSN, 17 September 1997, at. 5-9. 34 Id., at 14. 35 People vs. Boras, 348 SCRA 638 (2000). 36 Rollo, p. 51. 37 Rollo, p. 75. 38 Rollo, p. 119. 39 300 SCRA 279 (1998). 40 Id., at 308-309. 41 People vs. Poado, 311 SCRA 529 (1999). 42 People vs. Sagun, 303 SCRA 382 (1999). Be the first to comment - What do you think? Categories: Jurisprudence Tags:

1.2 G.R. No.

SUPREME COURT Manila EN BANC DECISION February 28, 2002 G.R. No. ,, vs. ,.

, J.: This is a petition for review under Rule 45 of the Rules of Court, seeking to annul the January 27, 1999 Decision and the April 13, 1999 Resolution of the Court of Appeals1 in CA-G.R. SP No. 48982 which reversed and set aside the Order dated August 28, 1998 and the July 10, 1998 Writ of Execution issued by the Regional Trial Court of Manila, Branch 49,2 in Civil Case No. 94-70505. The controversy involves the execution of the July 27, 1995 Decision3 of the Regional Trial Court of Manila, Branch 49, in Civil Case No. 94-70505, entitled "Solidbank Corporation, Plaintiff versus Wear Me Garments Manufacturing Inc., Angelita Amparo Go, and spouse

Arnold A. Go, Leonila Cui, Prudential Guarantee and Assurance Inc., and Oriental Assurance Corporation, Defendants." The dispositive portion of the said Decision reads: WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and against the defendants as follows: 1.1. Holding that the plaintiff is entitled to be paid under the loan of P1.2 Million and under the five trust receipts the sum of P4,797,294.88, plus interests and other charges from December 29, 1992, until fully paid; 1.2. Holding defendants WEAR ME, Angelita Amparo Go and spouse, Arnold A. Go, jointly and severally liable to pay the plaintiff the above amounts; 1.3. Prudential Guarantee and Assurance, Inc. and Oriental Assurance Corporation, are held jointly and severally liable to pay the plaintiff, together with defendants WEAR ME, Angelita Amparo Go and her spouse, and Arnold A. Go, the above amounts but limited to the extent of the insurance coverage representing the insurance coverage assigned to Solidbank Corporation under the two (2) fire insurance policies; 1.4. Leonila Cui is held jointly and severally liable to the plaintiff, together with all the defendants, but only with respect to the loan of P1.2 million and the accrued interest and penalties. 2. Ordering all the defendants jointly and severally to pay the plaintiff a sum equal to 10% of the amounts above payable plus the costs of the suit.4 The foregoing decision became final and executory on February 23, 1998. On motion of petitioner, the trial court issued a writ of execution on July 10, 1998 addressed to Sheriffs Gerry C. Duncan and Carmelo Cachero, commanding them as follows: NOW THEREFORE, we command you that of the goods and chattels of Prudential Guarantee and Assurance, Inc. and defendants WEAR ME GARMENTS MANUFACTURING, INC., ANGELITA AMPARO GO and spouse, and (sic) ARNOLD GO, jointly and severally, you cause to be made the insurance coverage assigned to Solid Bank, plus interest and other charges from December 29, 1992 until fully paid, all in Philippine Currency, together with your lawful fees for the service of this execution, all in money of the Philippines, and that you render the same to the plaintiff aside from your fees in this execution. But if sufficient personal property cannot be found to satisfy execution and lawful fees thereon, then you are commanded that of the lands buildings of the said defendants, you cause to be made the sums of money in the manner required by law and the Rules of Court.5 Pursuant to the said writ, a demand letter dated July 13, 1998 was sent to private respondent assessing it with the following amounts, to wit:

Collectible from Prudential Guarantee: Sum Insured 5,000,000.00 Add: Int. at 12% (12.29.92 to 7.15.98) 2024 days 3,373,333.33

8,373,333.33 Add: 10% Atty?s Fees 837,333.33

9,210,666.666 On July 14, 1998, a Notice of Garnishment was served on the Philippine Commercial International Bank (PCI Bank), Manila Branch, as a result of which, private respondent?s deposit therein in the amount of P2.3 million was garnished in satisfaction of the writ. On July 17, 1998, private respondent paid the execution amount of P9,210,666.66, "SUBJECT TO THE FINAL DETERMINATION OF THE LIABILITY OF PRUDENTIAL GUARANTEE AND ASSURANCE INC. UNDER THE JUDGMENT IN SAID CASE DATED JULY 27, 1995."7 On July 20, 1998, private respondent filed a motion to correct the Writ of Execution. Private respondent contended that the phrase "interest and other charges" in the writ should be deleted and that it should be refunded the excess, after deducting from the amount of P9,210,666.66 the insurance coverage amounting to P5 million, and the 10% attorneys fees, in the amount of P500,000.00, plus the cost of suit. On August 28, 1998, the trial court issued the assailed Order denying private respondent?s motion. It sustained the assessment and computation made by the sheriffs and justified the same as follows: The 12% interest appearing on the Sheriffs? computation was taken from clause 29 of the Policy No. 209407 issued by defendant Prudential Guarantee and Assurance, Inc., the pertinent portion of which is hereunder quoted, thus:

x x x, Refusal or failure to pay the loss or damage within the time prescribed herein will entitle the assured to collect the interest on the proceeds of the policy for the duration of the delay, at the rate of twice the ceiling prescribed by the Monetary Board, unless such failure or refusal to pay is based on the grounds that the claim is fraudulent.8 Aggrieved, private respondent filed a petition for certiorari with the Court of Appeals which granted the petition and set aside the assailed Order and Writ of Execution issued by the trial court. The decretal portion of the respondent court?s decision states: WHEREFORE, the petition is GRANTED. The assailed RTC ORDER of August 18, 1998 and the WRIT OF EXECUTION, dated July 9, 1998, in Civil Case No. 94-70505 are hereby REVERSED AND SET ASIDE. A new Order is entered: 1. Declaring that the liability of the petitioner herein as per the Decision rendered on July 27, 1995, which has become final and executory, is limited to FIVE (P5,000,000.00) MILLION PESOS, Philippine currency, the extent of the coverage of the insurance policies assigned or endorsed to the respondent Solid Bank Corporation by spouses Angelita Amparo Go and Arnold Go; plus the amount equivalent to ten (10%) of the said 5 million, or P500,000.00, Philippine Currency; and the cost of suit. 2. Ordering the respondent Solid Bank Corporation to refund to petitioner the amount of P3,710,666.66 which is the amount paid by petitioner to respondent Solid Bank Corporation, in excess of petitioner?s liability under the judgment, plus interest from July 17, 1998 until date of refund, based on current interest rate within the said period. 3. Ordering the Sheriff to forthwith lift immediately the garnishment on petitioners bank deposit with the Philippine Commercial & International Bank (PCI Bank), amounting to 2.3 million, Philippine Currency, plus interest from date of garnishment to the date of lifting of the said garnishment, based on current bank interest rates within the said period. SO ORDERED.9 A motion for reconsideration of the aforequoted decision was denied by the Court of Appeals on April 13, 1999. Hence, the instant petition. I IN HOLDING THAT THE JOINT AND SEVERAL LIABILITY OF THE PRIVATE RESPONDENT UNDER THE DECISION OF THE LOWER COURT DATED 27 JULY 1995 HAS BEEN LIMITED TO THE EXTENT OF THE COVERAGE OF THE FIRE INSURANCE POLICIES AND DID NOT PROVIDE FOR PAYMENT OF INTEREST TO THE PETITIONER, THE HONORABLE COURT OF APPEALS TOTALLY IGNORED THE DISPOSITIVE PORTION OF THE SAID DECISION AND THE JUDICIAL ADMISSION MADE BY THE PRIVATE RESPONDENT.

II THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING THAT THE CASE OF "VILLANUEVA VS. COURT OF APPEALS" APPLIES TO THE INSTANT CASE CONSIDERING THAT, LIKE IN THE INSTANT CASE, THERE WAS NO PROVISION IN THE DISPOSITIVE PORTION OF THE DECISION OF THE TRIAL COURT WHICH DECREED THE PAYMENT OF INTEREST. III THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN PENALIZING THE PETITIONER WITH INTEREST PAYMENTS ON THE AMOUNT OF P3,710,666.66 IT ORDERED PETITIONER TO REFUND TO THE PRIVATE RESPONDENT DESPITE THE ABSENCE OF ANY FINDING BY THE APELLATE COURT THAT THE COMPUTATION DONE BY THE PUBLIC RESPONDENTS WAS DONE IN BAD FAITH OR WAS TAINTED WITH MALICE OR FRAUD, AND DESPITE ITS OWN FINDING THAT PETITIONER IS ENTITLED TO INTEREST AND CHARGES AS A RESULT OF THE INSTANT CONTROVERSY. IV THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN ORDERING THE LIFTING OF THE GARNISHMENT ON PRIVATE RESPONDENT?S DEPOSIT WITH PCI BANK AMOUNTING TO P2.3 MILLION DESPITE ITS OWN PRONOUNCEMENT THAT PETITIONER SHOULD PAY THE COST OF SUIT (sic). V THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN NOT HOLDING THAT PRIVATE RESPONDENT IS BARRED AND IS ESTOPPED FROM QUESTIONING THE CORRECTNESS OF THE AMOUNT WHICH IT VOLUNTARILY PAID THE MANILA REGIONAL TRIAL COURT SHERIFFS.10 It is a settled general principle that a writ of execution must conform substantially to every essential particular of the judgment promulgated. Execution not in harmony with the judgment is bereft of validity. It must conform, more particularly, to that ordained or decreed in the dispositive portion of the decision.11 Corollary thereto, it must be stressed that a judgment which has acquired finality becomes immutable and unalterable, and hence may no longer be modified in any respect except only to correct clerical errors or mistakes ? all the issues between the parties being deemed resolved and laid to rest. This is meant to preserve the stability of decisions rendered by the courts, and to dissuade parties from trifling with court processes. One who has submitted his case to a regular court necessarily commits himself to abide by whatever decision the court may render. Any error in the decision which has not been considered in a timely motion for reconsideration or appeal cannot be impugned when such error becomes apparent only during execution. This rule applies

with more force in the case of the deciding judge who has limited prerogative during execution of the judgment.12 In the case at bar, the dispositive portion of the decision subject of the assailed order and writ of execution specifically limited the liability of private respondent to the following: 1) P5 million, representing the extent of the insurance coverage assigned to petitioner; 2) 10% attorneys fees; and 3) the cost of suit, thus: xxxxxxxxx 1.3 Prudential Guarantee and Assurance, Inc. and Oriental Assurance Corporation, are held jointly and severally liable to pay the plaintiff, together with defendants WEAR ME, Angelita Amparo Go and her spouse, and Arnold A. Go, the above amounts but limited to the extent of the insurance coverage representing the insurance coverage assigned to Solidbank Corporation under the two (2) fire insurance policies; xxxxxxxxx 2. Ordering all the defendants jointly and severally to pay the plaintiff a sum equal to 10% of the amounts above payable plus the costs of the suit. Clearly, no mention was made as to the payment of interest. If the trial court intended to impose interest on the amount adjudged against private respondent, it would have expressly so stated, but it did not. Hence, it cannot, in the execution of the July 27, 1995 decision, modify the same by ordering private respondent to pay interest. Accordingly, the July 9, 1998 Writ of Execution, imposing interest on the amount for which private respondent was held liable, as well as the Order dated August 18, 1998, sustaining the computation and imposition by the sheriff of a 12% interest on the subject liability, are void. Moreover, petitioner?s argument that the interest mentioned in paragraph 1.1 of the dispositive portion of the July 27, 1995 Decision, which should allegedly be read with paragraph 1.3, likewise apply to the liability of private respondent is untenable. Paragraph 1.1, vis-a-vis paragraph 1.3, provides: 1.1. Holding that the plaintiff is entitled to be paid under the loan of P1.2 Million and under the five trust receipts the sum of P4,797,294.88, plus interest and other charges from December 29, 1992, until fully paid; 1.3. Prudential Guarantee and Assurance, Inc. and Oriental Assurance Corporation, are held jointly and severally liable to pay the plaintiff, together with defendants WEAR ME, Angelita Amparo Go and her spouse, and Arnold A. Go, the above amounts but limited to the extent of the Insurance coverage representing the insurance coverage assigned to Solidbank Corporation under the two (2) fire insurance policies; The liability of private respondent insurance company to petitioner originated from a Fire Insurance Policy issued by private respondent to defendant WEAR ME, which the latter, in turn,

assigned to petitioner by way of additional loan collateral. Notably, the interest referred to in paragraph 1.1 is to accrue from December 29, 1992. This interest cannot pertain to the liability of private respondent insurance company, because the right of action of petitioner against the latter arose only on July 12, 1993, when fire gutted the properties subject of the Fire Insurance Policy. Verily, the interest mentioned in paragraph 1.1 applies only to the amount of the loan payable by WEAR ME and its individual co-defendants specified in paragraph 1.2. Thus, the liability of private respondent is limited to the amount of the insurance coverage plus attorney?s fees and the cost of suit. Similarly, in Government Service Insurance System v. Court of Appeals,13 it was held that the trial court gravely abused its discretion in ordering the petitioner to pay interest which was never decreed in the decision to be executed, thus: Petitioner was not ordered to pay interest on the amount it was to hold and deliver to Valencia or to pay attorneys fees. The trial court cannot, therefore, without committing grave abuse of discretion, direct the petitioner to pay interest and attorney?s fees. To do so would be to vary the tenor of the judgment against the latter and increase its liability, thereby rendering nugatory the above proviso. Such imposition would mean, as in this case, the delivery of money to Valencia in excess of that belonging to QRSI which the petitioner has been retaining. It is a settled general principle that a writ of execution must conform substantially to every essential particular of the judgment promulgated. Execution not in harmony with the judgment is bereft of validity. It must conform, more particularly, to that ordained or decreed in the dispositive portion of the decision. The cases of Villanueva v. Court of Appeals, et al.,14 and Rizal Commercial Banking Corporation, et al., v. Court of Appeals, et al.,15 invoked by petitioner, find no application in the case at bar. It is true that in the said cases the Court upheld the imposition of interest on the liability of the parties concerned. It must be stressed, however, that the decisions modified with respect to the payment of interest, were not final and executory decisions, but rather, decisions subject of petitions for review. The imposition of interest in the said cases, therefore, was perfectly within the authority of the Court. Such is not the case here. The present controversy involving a final and executory judgment is evidently anchored on an entirely different factual milieu. Hence, petitioners? reliance on the said cases is misplaced. The Court of Appeals correctly ruled that the payment by private respondent of the entire amount of P9,210,666.66, will not estop it from questioning the same. Worthy of note is the receipt of said payment where private respondent expressly made a reservation that the payment is "SUBJECT TO THE FINAL DETERMINATION OF THE LIABILITY OF PRUDENTIAL GUARANTEE AND ASSURANCE INC. UNDER THE JUDGMENT IN SAID CASE DATED JULY 27, 1995." At any rate, even in the absence of the foregoing, the obligation of petitioner to return to respondent the amount in excess of what is due to it stands, pursuant to the ancient principle that no one shall unjustly enrich oneself at the expense of another.16 So, also, the Court sustains the lifting of the garnishment on the P2.3 million deposit of private respondent with the PCI Bank, as the amount of P9,210,666.66 paid by private respondent could very well cover the cost of suit charged against private respondent.

However, we find merit in the third issue raised by petitioner. The interest imposed by the respondent court on the amount refundable to private respondent in excess of P9,210,666.66, is in the concept of damages which must have factual and legal basis. As no justification was given by the respondent court, the award of interest cannot be affirmed. Moreover, it would be iniquitous to hold petitioner liable for the errors committed by the trial court and the sheriffs concerned in the execution of the decision. Hence, the interest imposed by respondent Court of Appeals should be deleted. In view of the deletion of the award of interest, the amount refundable to private respondent, which the respondent court set at P3,710,666.66, should be recomputed. From the P9,210,666.66 paid by private respondent, the following amounts must be deducted: 1) P5 million as insurance coverage; 2) P500,000.00, representing 10% attorney?s fee; and 3) the costs of suit. WHEREFORE, in view of the foregoing, the January 27 1999 Decision and the April 13, 1999 Resolution of the Court of Appeals in CA-G.R. SP No. 48982 are AFFIRMED with the MODIFICATION that the interest imposed on the amount refundable to private respondent is deleted. The trial court is hereby ordered to determine the cost of suit, which in addition to the P5,000,000.00 insurance coverage and the P500,000.00 attorneys fees, should be deducted from the amount of P9,210,666.66. Any excess should forthwith be refunded to private respondent. SO ORDERED. Davide, Jr., C.J., Puno, and Kapunan, JJ., concur. Footnote 1 Twelfth Division, composed of Associate Justices Corona Ibay-Somera (ponente and chairman); Oswaldo D. Agcaoili (member); and Teodoro P. Regino (member). 2 Presided by Judge Concepcion S. Alarcon-Vergara. 3 Penned by Judge Salvador P. De Guzman, Jr. 4 Rollo, p. 78. 5 Rollo, p. 92. 6 Rollo, p. 98. 7 Rollo, p. 173. 8 Rollo, p. 96. 9 Rollo, pp. 62-63. 10 Rollo, pp. 27-28.

11 Government Service Insurance System v. Court of Appeals, 218 SCRA 233, 250 [1993]; citing Paylago v. Nicolas, 189 SCRA 272 [1990]; Philippine Virginia Tobacco Administration v. Gonzales, 92 SCRA 172 [1972]; Gabaya v. Mendoza, 113 SCRA 400 [1982]; Pamantasan Ng Lungsod Ng Maynila v. Intermediate Appellate Court, 143 SCRA 311 [1986]; Laingco v. Camilo, 130 SCRA 144 [1984]. 12 Johnson & Johnson (Phils.), Inc. v. Court of Appeals, 262 SCRA 298, 309-310 [1996]; citing Korean Airlines Co., Ltd. v. Court of Appeals, 247 SCRA 599 [1995]; Lim v. Jabalde, 172 SCRA 211 [1989]; Calalang v. Register of Deeds of Quezon City, 231 SCRA 88 [1994]; Alabanzas v. Intermediate Appellate Court, 204 SCRA 304 [1991]. 13 Supra. 14 294 SCRA 90 [1998]. 15 289 SCRA 292 [1998]. 16 Citibank v. Court of Appeals, 280 SCRA 459, 475 [1997]. Be the first to comment - What do you think? Categories: Jurisprudence Tags:

1.3 G.R. No.

SUPREME COURT Manila EN BANC DECISION February 28, 2002 G.R. No. ,, vs. ,.

, J.: Attorney?s fees cannot be granted simply because one was compelled to sue to protect and enforce one?s right. The grant must be proven by facts; it cannot depend on mere speculation or conjecture its basis must be stated in the text of the decision.

The Case Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the March 26, 1999 Decision1 of the Court of Appeals (CA) in CA-GR CV No. 46967. The dispositive portion of the challenged Decision reads as follows: "WHEREFORE, the appealed decision is AFFIRMED with MODIFICATION that the legal interest to be paid on the rentals of P76,000.00 and costs of repair in the amount of P132,750.00 is six (6%) percent per annum from June 22, 1994, the date of the decision of the court a quo to the date of its finality. Thereafter, if the amounts adjudged remain unpaid, the interest rate shall be twelve (12%) percent per annum from the date of finality of the decision until fully paid."2 The Facts The factual antecedents of the case are summarized by the CA in this wise: "On February 1991, a verbal agreement was entered into between Ephraim Morillo and Mindex Resources Corporation (MINDEX for brevity) for the lease of the former?s 6 x 6 ten-wheeler cargo truck for use in MINDEX?s mining operations in Binaybay, Bigaan, San Teodoro, Oriental Mindoro, at the stipulated rental of ?P300.00 per hour for a minimum of eight hours a day or a total of P2,400.00 daily.? MINDEX had been paying the rentals until April 10, 1991. "Unknown to Morillo, on April 11, 1991, the truck was burned by unidentified persons while it was parked unattended at Sitio Aras, Bigaan, San Teodoro, Oriental Mindoro, due to mechanical trouble. The findings of the Mindoro Oriental Integrated National Police in their investigation report read: ?3. On 121005H April 1991, Mr Alexander Roxas, project coordinator of MINDEX MINING CORP. reported to this office that on the morning of 12 April 1991 while he was supposed to report for his Work at their office at Sitio Tibonbon, Bigaan, San Teodoro, Oriental Mindoro, he x x x noticed that their hired 6 x 6 Ten wheeler Cargo Truck temporarily parked at Sitio Aras, Bigaan, San Teodoro, Oriental Mindoro for aplha Engine Trouble was burned on the night of April 11, 1991 by still unidentified person. ?x x x x x x x x x ?5. x x x Based also on the facts gathered and incident scene searched it was also found out that said 6 x 6 Ten Wheeler Cargo Truck was burned by means of using coconut leaves and as a result of which said 6 x 6 was totally burned excluding the engine which was partially damaged by still undetermined amount.? "Upon learning of the burning incident, Morillo offered to sell the truck to MINDEX but the latter refused. Instead, it replaced the vehicle?s burned tires and had it towed to a shop for repair and overhauling.

"On April 15, 1991, Morillo sent a letter to Mr. Arni Isberg, the Finance Manager of MINDEX, thru Mr. Ramoncito Gozar, Project Manager, proposing the following: ?x x x x x x x x x ?I have written to let you know that I am entrusting to you the said vehicle in the amount of P275,000.00 which is its cost price. I will not charge your company for the encumbrance of P76,800+ since you used it as my friendly gesture on account of the unforeseen adversity. ?In view of the tragic happening, I am asking you to pay us, in a way which will not be hard for you to settle to pay us in four installment monthly as follows: ?First payment - April 25/91 P[1]50,000.00 ?Second payment - May 15/91 50,000.00 ?Third payme(n)t - June 15/91 50,000.00 ?Fourth payme(n)t - July 15/91 25,000.00 TOTAL P275,000.00 ?I promise to relinquish all the necessary documents upon full payment of said account. ?x x x x x x x x x

"Through Mr. Gozar, MINDEX responded by a handwritten letter to his cousin Malou (wife of Ephraim Morillo), expressing their reservations on the above demands due to their tight financial situation. However, he made the following counter offers: ?a) Pay the rental of the 6 x 6 truck (actual) in the amount of P76,000.00. ?b) Repair and overhaul the truck on our own expenses and; ?c) Return it to you on (A1) good running condition after repair.? "Morillo replied on April 18, 1991, (1) that he will relinquish to MINDEX the damaged truck; (2) that he is amenable to receive the rental in the amount of P76,000.00; and (3) that MINDEX will pay fifty thousand pesos (P50,000.00) monthly until the balance of P275,000.00 is fully paid. It is noteworthy that except for his acceptance of the proffered P76,000.00 unpaid rentals, Morillo?s stand has virtually not been changed as he merely lowered the first payment on the P275,000.00 valuation of the truck from P150,000.00 to P50,000.00. "The parties had since remained intransigent and so on August 1991, Morillo pulled out the truck from the repair shop of MINDEX and had it repaired elsewhere for which he spent the total amount of P132,750.00."3 (Citations omitted) Ruling of the Trial Court After evaluating the evidence adduced by both parties, the Regional Trial Court (RTC) found petitioner responsible for the destruction or loss of the leased 6 x 6 truck and ordered it to pay respondent (1) P76,000 as balance of the unpaid rental for the 6 x 6 truck with interest of 12 percent from June 22, 1994 (the rendition of the judgment) up to the payment of the amount; (2) P132,750 representing the costs of repair and overhaul of the said truck, with interest rate of 12 percent until fully paid; and (3) P20,000 as attorney?s fees for compelling respondent to secure the services of counsel in filing his Complaint. Ruling of the Court of Appeals The appellate court sustained the RTC?s finding that petitioner was not without fault for the loss and destruction of the truck and, thus, liable therefor. The CA said: "The burning of the subject truck was impossible to foresee, but not impossible to avoid. MINDEX could have prevented the incident by immediately towing the truck to a motor shop for the needed repair or by having it guarded day and night. Instead, the appellant just left the vehicle where its transfer case broke down. The place was about twelve (12) kilometers away from the camp site of the appellant corporation and was sparsely populated. It was guarded only during daytime. It stayed in that place for two (2) weeks until it was burned on April 11, 1991 while its transfer case was being repaired elsewhere. It was only after it had been burned that the appellant had it towed to a repair shop.

"The appellant [respondent] was thus not free from fault for the burning of the truck. It miserably failed to overcome the presumption of negligence against it. Neither did it rescind the lease over the truck upon its burning. On the contrary, it offered to pay P76,000.00 as rentals. It did not also complete the needed repair. Hence, the appellee was forced to pull out the truck and had it repaired at his own expense. Since under the law, the ?lessee shall return the thing leased, upon the termination of the lease, just as he receive it, ?the appellant stands liable for the expenses incurred for the repair in the aggregate amount of P132,750.00."4 Nevertheless, the appellate court modified the Decision of the trial court. The 12 percent interest rate on the P76,000 rentals and the P132,750 repair costs, imposed by the RTC, was changed by the CA to 6 percent per annum from June 22, 1994 to the date of finality of the said Decision; and 12 percent per annum thereafter, if the amounts adjudged would remain unpaid from such date of finality until the rentals and the repair costs were fully paid. It affirmed the award of attorney?s fees. Hence, this Petition.5 Issues In its Memorandum, petitioner raises the following issues for the Court?s consideration: "4.1. Whether or not the Court of Appeals gravely erred in finding that petitioner failed to overcome the presumption of negligence against it considering that the facts show, as admitted by the respondent, that the burning of the truck was a fortuitous event. "4.2. Whether or not the Court of Appeals gravely erred in affirming the decision of the trial court finding petitioner liable to pay unpaid rentals and cost of repairs. "4.3. Whether or not the Court of Appeals also erred in affirming the decision of the trial court finding petitioner liable to pay attorney?s fees."6 This Court?s Ruling The Petition is partly meritorious; the award of attorney?s fees should be deleted. First Issue: Petitioner?s Negligence Petitioner claims that the burning of the truck was a fortuitous event, for which it should not be held liable pursuant to Article 11747 of the Civil Code. Moreover, the letter of respondent dated April 15, 1991, stating that the burning of the truck was an "unforeseen adversity," was an admission that should exculpate the former from liability. We are not convinced. Both the RTC and the CA found petitioner negligent and thus liable for the loss or destruction of the leased truck. True, both parties may have suffered from the burning

of the truck; however, as found by both lower courts, the negligence of petitioner makes it responsible for the loss. Well-settled is the rule that factual findings of the trial court, particularly when affirmed by the Court of Appeals, are binding on the Supreme Court. Contrary to its allegations, petitioner has not adequately shown that the RTC and the CA overlooked or disregarded significant facts and circumstances that, when considered, would alter the outcome of the disposition.8 Article 1667 of the Civil Code9 holds lessees responsible for the deterioration or loss of the thing leased, unless they prove that it took place without their fault. Fortuitous Event In order for a fortuitous event to exempt one from liability, it is necessary that one has committed no negligence or misconduct that may have occasioned the loss.10 An act of God cannot be invoked to protect a person who has failed to take steps to forestall the possible adverse consequences of such a loss. One?s negligence may have concurred with an act of God in producing damage and injury to another; nonetheless, showing that the immediate or proximate cause of the damage or injury was a fortuitous event would not exempt one from liability. When the effect is found to be partly the result of a person?s participation whether by active intervention, neglect or failure to act the whole occurrence is humanized and removed from the rules applicable to acts of God.11 This often-invoked doctrine of "fortuitous event" or "caso fortuito" has become a convenient and easy defense to exculpate an obligor from liability. To constitute a fortuitous event, the following elements must concur: (a) the cause of the unforeseen and unexpected occurrence or of the failure of the debtor to comply with obligations must be independent of human will; (b) it must be impossible to foresee the event that constitutes the caso fortuito or, if it can be foreseen, it must be impossible to avoid; (c) the occurrence must be such as to render it impossible for the debtor to fulfill obligations in a normal manner; and (d) the obligor must be free from any participation in the aggravation of the injury or loss.12 Article 1174 of the Civil Code states that no person shall be responsible for a fortuitous event that could not be foreseen or, though foreseen, was inevitable. In other words, there must be an exclusion of human intervention from the cause of injury or loss.13 A review of the records clearly shows that petitioner failed to exercise reasonable care and caution that an ordinarily prudent person would have used in the same situation. Witness Alexander Roxas testified how petitioner fell short of ordinary diligence in safeguarding the leased truck against the accident, which could have been avoided in the first place. Pertinent portions of his testimony are reproduced hereunder: "ATTY. ACERON Q Now, this Barangay Aras where the 6 x 6 truck had transmission trouble, how far is it from the camp site of the defendant corporation? ALEXANDER ROXAS

A Twelve (12) kilometers, more or less, sir. Q Is this Barangay Aras populated? A Not so many, sir. Q The place where the 6 x 6 truck had transmission trouble, how far is the nearest house from it? A Perhaps three hundred meters, sir. Q And how many houses are within the three hundred meter radius from the place where the truck had engine trouble? A Ten, more or less, in scattered. Q You said that after hauling several sand to be used in the camp site the 6 x 6 truck had transmission trouble, what did the company do after the truck had that engine trouble? A For at least two weeks the truck was installed in the place where the said truck had engine trouble. Q Meaning in Barangay Aras? A Yes, sir. Q Was there any guard in that place by the company during the time that the truck was in that place? A Yes, sir, during daytime but at nighttime, there was no guard. Q What happened to that 6 x 6 truck? A In the month of March, 1991, the company dismissed thirteen (13) to seventeen (17) employees and these employees came from Barangays Aras, Botolan, Calsapa, Camatis and Tibonbon and on Aril 11, 1991, the 6 x 6 truck was burned. Q How did you come to know that the 6 x 6 truck was burned on April 11, 1991? A I together with my daughter, I met the service of the company near the ORMECO and I was informed by the Project Engineer that the 6 x 6 truck was burned, so, we returned to San Teodoro and have the incident blottered at the police station. Q Aside from that, what other action did you undertake in connection with the burning of the 6 x 6 truck?

A When we were at the police station, the Project Manager of the company arrived and from the police station we proceeded to the place where the 6 x 6 truck was burned and the Project Manager took pictures of the 6 x 6 truck. Q Now, did you come to know who was responsible or who were responsible for the burning of the 6 x 6 truck? A The responsible is the Mindex Resources Development Corporation, and as far as I know, the persons who actually burned the said 6 x 6 truck were the dismissed employees of the Mindex Resources Development Corporation. Q These dismissed employees of the corporation, why were they employed by the corporation? A Because we have to make a road going to the mining site and in the process of opening the road these dismissed employees happened to be the owners of the land where the road will pass, so, we paid the land. The corporation likewise gave jobs to the owners of the land."14 As can be gleaned from the foregoing testimony, petitioner failed to employ reasonable foresight, diligence and care that would have exempted it from liability resulting from the burning of the truck. Negligence, as commonly understood, is that conduct that naturally or reasonably creates undue risk or harm to others. It may be a failure to observe that degree of care, precaution or vigilance that the circumstances justly demand;15 or to do any other act that would be done by a prudent and reasonable person, who is guided by considerations that ordinarily regulate the conduct of human affairs.16 Second Issue: Unpaid Rentals and Cost of Repairs Petitioner proceeds to argue that "it should be deemed to have already paid the unpaid rentals in the amount of P76,000.00," and that it should not be made to pay the P132,750 repair and overhaul costs. Nothing in the records, not even in the documentary evidence it presented, would show that it already paid the aforesaid amounts. In fact, it seeks to avoid payment of the rental by alleging that respondent already condoned it in his letter dated April 15, 1991. However, a perusal of the letter would show that his offer not to charge petitioner for the P76,000 rental was premised on the condition that it would buy the truck.17 Moreover, the RTC based the P76,000 rental and the costs of repair and overhaul on Exhibit "B," wherein Chito Gozar, the Project Manager of Mindex Resources Development Corporation, proposed through a letter dated April 17, 1991, the following: (1) to pay the P76,000 rental, (2) to repair the truck at the expense of petitioner, and (3) to return the truck in good running condition after the repair. Likewise, the nonpayment of the said amount was corroborated by Roxas thus: "Q During that time when the 6 x 6 truck was already burned and when you went to the Petron Gasoline Station to inform plaintiff about the burning, was the plaintiff paid any amount for the rental of the 6 x 6 truck? A: Before the burning of the 6 x 6 truck, the plaintiff Morillo was already paid partially and there

was a balance of P76,000.00."18 The P132,750 repair and overhaul costs was correctly granted by the lower courts. Article 1667 of the Civil Code holds the lessee responsible for the deterioration or loss of the thing leased. In addition, Article 1665 of the same Code provides that "the lessee shall return the thing leased, upon the termination of the lease, just as he received it, save what has been lost or impaired by the lapse of time, or by ordinary wear and tear, or from an inevitable cause." Courts begin with the assumption that compensatory damages are for pecuniary losses that result from an act or omission of the defendant. Having been found to be negligent in safeguarding the leased truck, petitioner must shoulder its repair and overhaul costs to make it serviceable again. Such expenses are duly supported by receipts; thus, the award of P132,750 is definitely in order. Third Issue: Attorney?s Fees We find the award of attorney?s fees to be improper. The reason which the RTC gave because petitioner had compelled respondent to file an action against it falls short of our requirement in Scott Consultants and Resource Development v. CA,19 from which we quote: "It is settled that the award of attorney?s fees is the exception rather than the rule and counsel?s fees are not to be awarded every time a party wins suit. The power of the court to award attorney?s fees under Article 2208 of the Civil Code demands factual, legal, and equitable justification; its basis cannot be left to speculation or conjecture. Where granted, the court must explicitly state in the body of the decision, and not only in the dispositive portion thereof, the legal reason for the award of attorney?s fees." Moreover, a recent case20 ruled that "in the absence of stipulation, a winning party may be awarded attorney?s fees only in case plaintiff?s action or defendant?s stand is so untenable as to amount to gross and evident bad faith." Indeed, respondent was compelled to file this suit to vindicate his rights. However, such fact by itself will not justify an award of attorney?s fees, when there is no sufficient showing of petitioner?s bad faith in refusing to pay the said rentals as well as the repair and overhaul costs.21 WHEREFORE, the Petition is DENIED, but the assailed CA Decision is MODIFIED by DELETING the award of attorney?s fees. Costs against petitioner. SO ORDERED. Melo, Vitug, Sandoval-Gutierrez, and Carpio, JJ., concur. Footnote 1 Special Tenth Division. Written by Justice Salvador J. Valdez Jr. (Acting Division chair) and concurred in by Justices Eloy R. Bello Jr. and Renato C. Dacudao (members). 2 Assailed Decision, p. 10; rollo, p. 35. 3 CA Decision, pp. 1-4; rollo, pp. 26-29. 4 Ibid., pp. 8 & 33. 5 The case was deemed submitted for decision on June 21, 2001, upon the Court?s receipt of respondent?s Memorandum, which was signed by Atty. Filibon Fabela Tacardon. Petitioner?s Memorandum, signed by Atty. Ricardo P. C. Castro Jr., was received by the Court on January 29, 2001. 6 Petitioner?s Memorandum, p. 6; rollo, p. 114. 7 Article 1174 provides: "Except in cases expressly specified by the law, or when it is otherwise declared by stipulation or

when the nature of the obligation requires the assumption of risk, no person shall be responsible for those events which could not be foreseen, or which though foreseen, were inevitable." 8 Spouses Belo v. Philippine National Bank, GR No. 134330, March 1, 2001; Republic v. CA, 349 SCRA 451, January 18, 2001; Halili v. CA, 287 SCRA 465, March 12, 1998. 9 "Art. 1667. The lessee is responsible for the deterioration or loss of the thing leased, unless he proves that it took place without his fault. This burden of proof on the lessee does not apply when the destruction is due to earthquake, flood, storm or other natural calamity." 10 Tolentino, Civil Code of the Philippines, Vol. IV, 1991 ed., p. 126, citing Tan Chiong Sian v. Inchausti & Co., 22 Phil. 152, March 8, 1912; Juan F. Nakpil & Sons v. CA, 144 SCRA 596, 607, October 3, 1986. Cf. Metal Forming Corporation v. Office of the President, 247 SCRA 731, 738-739, August 28, 1995. 11 Nakpil & Sons v. CA, supra, pp. 606-607. 12 Metal Forming Corp. v. Office of the President, 317 Phil. 853, 859, August 28, 1995; Vasquez v. Court of Appeals, 138 SCRA 553, 557, September 13, 1985, citing Lasam v. Smith Jr. 45 Phil. 657, 661, February 2, 1924; Austria v. CA, 148-A Phil. 462, June 10, 1971; Estrada v. Consolacion, 71 SCRA 523, 530, June 29, 1976. 13 Vasquez v. CA, supra, p. 557. 14 TSN, November 24, 1992, pp. 9-13. 15 Valenzuela v. CA, 253 SCRA 303, February 7, 1996. Cf. Quibal v. Sandiganbayan (Second Division), 244 SCRA 224, May 22, 1995; Citibank, NA v. Gatchalian, 240 SCRA 212, January 18, 1995. 16 Layugan v. Intermediate Appellate Court, 167 SCRA 363, 372-373, November 14, 1988; Bulilan v. COA, 300 SCRA 445, December 22, 1998. 17 See Exh. "C"; records, p. 220. 18 TSN, November 24, 1992, pp. 14-15. 19 242 SCRA 393, 406, March 16, 1995, per Davide Jr., CJ; see also Valiant Machinery & Metal Corp. v. NLRC, 252 SCRA 369, January 25, 1996. 20 National Power Corporation v. Philipp Brothers, GR No. 126204, November 20, 2001, per Sandoval-Gutierrez, J. 21 National Steel Corporation v. CA, 283 SCRA 45, December 12, 1997. Be the first to comment - What do you think? Categories: Jurisprudence Tags:

1.4 G.R. No.

SUPREME COURT Manila EN BANC DECISION February 28, 2002

G.R. No. ,, vs. ,.

, J.: What has been promised as a night of festivity and fun turned out to be Renato Lepasandas last dance. For his death, an Information for murder was filed against accused-appellant Ramonito Saure alias "Dodong" on October 17, 1996 with the Regional Trial Court of Maasin, Southern Leyte. Its accusatory portion reads: "That on or about the 28th of July 1996 at around 1:30 oclock a.m., in Barangay Basak, municipality of Maasin, province of Southern Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with intent to kill, evident premeditation and treachery, and while armed with a fan knife known as "Batangas," which said accused had provided himself for the purpose, did then and there willfully, unlawfully and feloniously attack, assault and stab one Renato Lepasanda, thereby inflicting upon the latter the following injuries: a. Stab would 1 inch in length (L) chest penetrating to thoracic cavity; b. Stab wound (R) chest 1 cm. Level T6; c. Stab wound 1.5 inch in length (R) chest level T7 (R) posterior axillary line penetrating to thoracic cavity; d. Incised wound (R) wrist 1 in. in length muscle deep; e. Incised wound 1 inch in length (L) wrist; which caused the instantaneous death of the said victim to the damage and prejudice of his heirs and of social order. CONTRARY TO LAW."1 The accused-appellant was arraigned on November 20, 1996 and entered a plea of not guilty.2 On trial, the prosecution presented the testimonies of Eleno Alinsub and Ernesto Lacbayo. It also offered the "Batangas" knife3 allegedly used by the accused and the victims Certificate of Death prepared by Dr. Reynaldo Tan who conducted the post-mortem examination.4 The accused-appellant testified on his own behalf along with three (3) corroborating witnesses, namely: (1) Matias Sumampong; (2) Remigio Lacerna; and (3) Relito Dagami.

Prosecution witness Eleno Alinsud testified that on the evening of July 27, 1996, the Barangay Council of Basak organized a benefit dance at the barangay auditorium. Being the chief barangay tanod, he was assigned to oversee the peaceful and orderly conduct of the event.5 At around 1:30 am the following day, Alinsub saw accused-appellant Ramonito "Dodong" Saure stab Renato Lepasanda using a "Batangas" knife. He opined that the stabbing must have been related with the previous verbal altercation between the two, wherein the same reprimanded Lepasanda for forcing one Arlene Lacbayo, alleged niece of the latter, to dance against her wishes.6 After Lepasandas reprimand, accused-appellant went to the side of the dance hall, pulled his "Batangas" knife, rushed towards the victim who was then sitting in an oblique position, and attacked him from the backside. The accused-appellants first thrust landed on the victims upper left chest. Attempting to defend himself, Lepasanda picked up a stool. But as he was raising the stool, the accused-appellant stabbed him again several times, hitting different parts of his upper chest.7 Alinsub, who was three (3) meters away from the scene, shouted at the accused-appellant to avoid any untoward incident. He was hardly heard, though, because the music was still playing.8 While the victim was being attacked, Alinsub rushed towards the accused-appellant, and hit him on the head with a stool. He shoved the victim away to avoid further harm. The accusedappellant, meanwhile, thrust his knife at Alinsub three times but was unable to injure him because the latter was already on guard.9 Upon seeing the incident, Emie Lacerna (also referred to as Remegio Lacerna), a councilman of barangay Canyuom and a companion of the accused-appellant, instructed the latter to board a motorcycle and surrender himself to the authorities. Lacernas son drove the motorcycle and accompanied the accused to the Maasin Police Station. For his part, Alinsub proceeded to the barangay captain of Basak to report the incident.10 Alinsub further testified that the accused-appellant, who was bigger and taller than the victim, appeared to be intoxicated when the incident took place.11 Ernesto Lacbayo, brother of Arlene Lacbayo, corroborated the material allegations of Alinsub. He testified that on July 27, 1996 at about 11:30 in the evening, he was at the barangay auditorium of Basak to attend the benefit dance.12 He was occupying a table with Renato Lepasanda who was seated in front of him. His sister was seated at another table, roughly three (3) open arms stretch from them. He clarified that Lepasanda was not related by blood to him nor to his sister.13 At about 1:30 in the early morning of July 28, 1996, Lepasanda approached the accusedappellant and reprimanded him for forcing Arlene to dance with him. The two had an exchange of words but were pacified by Eleno Alinsub. Lepasanda returned to his seat but moments later, the accused-appellant appeared with a "Batangas" knife and immediately stabbed him in his left chest.14

Lacbayo declared that the victim was not able to defend himself. After hitting the victim on the left chest, the accused-appellant continuously and successively struck the victim for around five (5) times more while the victim was picking up a stool to parry the blows. Lacbayo tried to help the victim but Remegio Lacerna prevented him from doing so. Lacerna grabbed the wooden bench which Lacbayo intended to use against the accused-appellant. The two of them grappled for possession of the bench.15 As this was happening, Eleno Alinsub instructed the victim to run. The accused-appellant, however, pursued him. Because of the accused-appellants persistent pursuit, Alinsub struck him with a bench, hitting him on the forehead. The accused-appellant directed his attack against Alinsub but his attempts were unsuccessful. At this point, Lacerna embraced the accused and ordered him to board a motorcycle.16 Taking the witness stand, accused-appellant belied the foregoing testimonies of the prosecution and interposed the justifying circumstance of self-defense. Hailing from the nearby Barangay Canyuom, accused-appellant testified that he was in Barangay Basak on the night of July 27, 1996 to attend the benefit dance.17 With him were Remegio Lacerna, Matias Sumampong,18 and Melovino Bonote.19 They were occupying a table just across that of Arlene Lacbayo, Ernesto Lacbayo and Renato Lepasanda. The three were seated beside the entrance door.20 Prior to the incident, the accused was not acquainted with either the victim Lepasanda or the Lacbayo siblings.21 At about 1:30 in the morning the following day, he approached Arlene Lacbayo for a special dance. Lepasanda, whom the accused-appellant later learned to be the boyfriend of Arlene, stood up and admonished him. The accused-appellant assured Lepasanda that he would not mind if Arlene would refuse to dance with him. Despite this assurance, however, Lepasanda flared up and a verbal confrontation ensued between them. At this point, Alinsub, a barangay tanod, came and pacified them. Recognizing Alinsubs authority, and considering that he was not from Barangay Basak, accused listened to Alinsubs admonition and went back to his seat. He danced for a while and later on, told his companions that he will urinate.22 On his way to the comfort room, he passed by Lepasandas table. Without provocation, Lepasanda struck him with a stool, hitting him on the forehead. Lepasanda kept on hitting him for some time. Feeling dizzy, he drew his "Batangas" knife to parry the blows. Alinsub also struck him with a stool, hitting his nape.23 Because of the commotion, he was unsure whether he hurt anyone with his "Batangas" knife. He had a feeling, though, that he might have wounded somebody. So when Lacerna embraced him and told him to surrender, he immediately obliged and went to the Maasin Police Station.24 He told the authorities that he might have wounded somebody and surrendered the "Batangas" knife.25 Suffering from swelling, contusion and hematoma, the accused-appellant went to the hospital for medical treatment.26 He was accompanied by two policemen whom he identified as Lito and a certain Dumaguit.27 The hospital personnel, however, refused to give him a medical certificate.

He was instructed to go to the dispensary, instead. When he arrived at the dispensary, he was told that the doctor was in Tacloban so he went back to the municipal building.28 Matias Sumampong, a cousin of both the witness and the accused-appellant, corroborated the accused-appellants testimony.29 He testified that on July 27, 1996, he was with Ramonito Saure and Ruby Bonote in Barangay Basak auditorium to attend the benefit dance. They occupied a table and the three of them had a drink. They consumed one (1) pocket-size Tanduay Rhum and one (1) family-size Coke. That evening, Renato Lepasanda was with some lady-companions. They were occupying a table about three (3) meters from that of the accused-appellant. Sumampong and the accused-appellant had a dance with Lepasandas companions. After some time, the accused-appellant requested Arlene Lacbayo to dance with him again. He likewise sought the permission of Lepasanda who reluctantly acceded to the request. The two danced for a while but sensing Lepasandas reluctance, the accused-appellant escorted Arlene back to her seat.30 At about 1:30 am the following day, he saw Renato Lepasanda strike the accused-appellant on the face with a stool. The accused-appellant drew his "Batangas" knife, parrying the blows inflicted by Lepasanda. In the process, the accused-appellant wounded Lepasanda on the right chest. The accused-appellant and the victim were facing each other when the former inflicted injury on the latter.31 Seized by fear, Sumampong was unable to do anything. He did not want to get involved with his cousins quarrel. He finally regained his composure and asked the accused-appellant to stop thrusting his knife at Lepasanda. By then, several people started ganging up on the accusedappellant.32 Defense also presented Remigio Lacerna, a barangay kagawad of Barangay Canyuom. Lacerna testified that he was in Barangay Basak on July 27, 1996, to attend the benefit dance. He arrived at the barangay auditorium at about 10:00 pm. The accused-appellant joined him at his table an hour later.33 Later that night, Lacerna paid one hundred pesos (P100.00) to the organizer of the benefit dance for five (5) musical pieces and asked a lady to dance with him. Accused-appellant also danced but after the first piece, he approached Arlene Lacbayo, presumably to invite her to dance. Lacerna, however, noticed that the accused-appellant did not dance when the second piece was played.34 At about 1:30 am the following day, Lacerna saw Lepasana hit the accused-appellant with a stool. As the lights were dim, he barely saw what was happening. He thought that the accusedappellant retaliated by boxing Lepasana only.35 It was only later that he realized that the accused-appellant had stabbed Lepasana.36 Nonetheless, he saw Alinsub hit the accusedappellant on the nape using a stool. Seeing this, he embraced the accused-appellant and told him to ride the motorcycle driven by his son, and surrender to police authorities.37 He went home to Canyuom right after the incident. Only then did he learn that the victim was his grandson.38

Lacerna claimed that he was not aware of any verbal altercation between the accused-appellant and the victim before the incident.39 Although he is acquainted with Matias Sumampong and Ruby Rabonete, did not notice their presence at the benefit dance.40 Finally, defense presented SPO3 Relito Dagami, assigned with the General Assignment Services of the Philippine National Police. He testified that on July 28, 1996, at about 9:00 am, the accused-appellant, who was then detained at the Maasin Police Station, requested a medical examination for the injuries he sustained. With a patrol car, he accompanied the accused to the Integrated Provincial Health Office. The accused-appellant, however, was not given a medical certificate. He was instructed to secure the medical certificate from the Rural Health Unit but when they arrived there, they were informed that the doctor was in Tacloban.41 Thus, they went back to the municipal building.42 Dagami attested that the face of the accused-appellant was indeed swollen.43 Giving credence to the witnesses for the prosecution, the trial court disregarded the accusedappellants claim of self-defense, viz:. "Accused denied the murder charge and invokes self-defense anchored mainly on his selfserving testimony, and pleading a mitigation, tried to establish the circumstance of voluntary surrender. His testimony tried to obtain corroboration from witnesses Matias Sumampong and Remigio Lacerna. But to no avail. They were not able to overcome the positive and straightforward declarations of the prosecution witnesses. Accused attempts to lay the blame on victim Renato as the one who first assaulted him by striking him with a stool, and to defend himself, he took hold of his fan knife and did not realize that he was able to hit Renato on the chest. This is specious. Between him and Renato he has more teeth to grit, or axe to grind, or hatred to harbor because Renato prevented him for forcing his way on Renatos niece, Arlene. The rancour was more in his heart. He had more motive to do harm. The Court finds the prosecution witnesses to be more credible than those of the accused no matter how the accused tried to cast doubt on the veracity of the testimonies of the witnesses for the prosecution. The latters testimonies are eyeball testimonies and far from being perjured. No improper motives impelled the prosecution witnesses to testify as they did." Accordingly, the trial court found the accused guilty beyond reasonable doubt of the crime charged. Appreciating the mitigating circumstance of voluntary surrender, the trial court sentenced the accused to an imprisonment term of reclusion perpetua, including its accessory penalties and costs, viz: "WHEREFORE, judgment is hereby rendered finding the accused RAMONITO SAURE @ Dodong GUILTY beyond reasonable doubt of the crime charged and sentences him to a determinate indivisible imprisonment term of RECLUSION PERPETUA, and its accessory penalties, and to pay the costs.

In death indemnity, accused Saure is ordered to pay the heirs of Renato Lepasanda death indemnity in the amount of P50,000.00 and moral damages of P10,000.00. SO ORDERED."44 The accused seasonably appealed to us contending that the trial court erred (1) in not appreciating his claim of self-defense; and (2) in holding the killing was attended by treachery and evident premeditation.45 It is hornbook doctrine that where self-defense is invoked, it is incumbent upon the accusedappellant to prove by clear and convincing evidence that [1] he is not the unlawful aggressor; [2] there was lack of sufficient provocation on his part; and [3] he employed reasonable means to prevent and repel an aggression.46 The accused-appellant must also rely on the strength of his own evidence and not on the weakness of that of the prosecution, for even if the latter were weak, it would not be disbelieved after his open admission of responsibility for the killing. On appeal, this burden becomes even more difficult as the accused-appellant must show that the court below committed reversible error in appreciating the evidence.47 At the heart of the claim for self-defense is the presence of an unlawful aggression committed against the accused-appellant. Without unlawful aggression, self-defense will not have a leg to stand on and this justifying circumstance cannot and will not be appreciated, even if the other elements are present. Unlawful aggression presupposes an actual, sudden, and unexpected attack, or imminent danger thereof.48 The person defending himself must have been attacked with actual physical force or with actual use of weapon.49 In the case at bar, the accused-appellant tried to prove that the unlawful aggression emanated from the victim who struck him with a stool, without any provocation on his part, and after their previous verbal altercation had already been settled. He further testified that he drew his knife to parry the blows but he was not aware that he had accidentally hit the victim, viz: "Q: When you returned to your respective table, what happened next, if any? A: Music were (sic) played and I dance and I asked permission from my companion that I will urinate. Q. Then what happened? A: When I passed by in front of their table, I was struck by a stool in (sic) my forehead and I was hit. Q: Who struck you with a stool? A: I was struck by Renato Lepasanda. Q: Were you hit?

A: Yes, maam. Q: Where? A: Here. Interpreter: Witness is pointing his forehead. COURT: Where is the scar? A: No scar, You Honor just a swell. COURT: What happened next? A: He kept on beating me and I was not anymore aware that I hit him because I used my fan knife or Batangas knife to parry his blows."50 Upon his surrender at the police station, the accused maintained his evasive posture, viz: "ATTY. LESIGUES: When you surrender (sic) to the police authorities in Maasin, what did you tell them? A: I told them that I was attacked without provocation and I was asked who attacked me without provocation I told them I do not know the person. COURT: So you did not surrender because you stabbed somebody but because another person attacked you or gipareglahan ka? A: I surrendered because I told may be (sic) I wounded a person. Here is my fan knife you just verify the person whom I wounded and then they went to the hospital and when they returned I was told that the person was already dead and so they placed me in jail."51 Moreover, SPO3 Relito Degami, who testified for the defense, declared that when he escorted the accused to obtain medical attendance, accused merely told him that he was involved in some trouble, viz: "Q: Did Ramonito Saure tell you how did he sustain that swollen face?

A: I was told by him that he was involved in a trouble. Q: Did he tell you that he killed a certain Renato Lepasanda? A.: No, sir. Q: Did he tell you that he killed the one who caused injuries to him? A: No, sir. Q: So, all that Ramonito Saure told you is that he was involved in a trouble? A: Yes, sir."52 We have ruled that the failure on the part of the accused to inform the police upon his surrender that he acted in self-defense in committing the crime charged is fatal to his defense.53 His testimony to the effect that he does not remember having stabbed the victim is inconsistent with self-defense, which in essence is an admission of the killing in order to preserve ones life or limb. Being evasive, such testimony does not help at all in establishing self-defense.54 Moreover, the defense admitted, without qualification, the victims death certificate, which was offered to prove that the victim died of cardio-respiratory arrest resulting from massive blood loss due to multiple stab wounds. Oft-repeated is the rule that the presence of a large number of wounds, five (5) in this case, negates self-defense and indicates a determined effort to kill the victim.55 Finally, the accused-appellant tried to obtain corroboration from two of his companions that night. Remigio Lacerna, however, testified that he was not able to witness the entire incident because the lights were dim, and from his distance, he could only see an image of the actual events. While insisting that he saw the victim strike the accused-appellant first using a stool, Lacerna thought that the accused-appellant merely boxed the victim in retaliation. He did not see him stab the victim. Just like Lacerna, Matias Sumampong claimed that he saw the victim strike the accusedappellant with the stool and that the latter stabbed the former only once. Seeing everything that transpired, Sumampong was struck by fear and did not bother to do anything despite the fact that both the accused and the victim are his relatives. The trial court found the testimonies of Lacerna and Sumampong incredible and not worthy of belief. We reiterate that when the issue is one of credibility of witnesses, appellate courts will generally not disturb the finding of the trial court, unless it has plainly overlooked certain facts of substance and value that, if considered, might affect the result of the case.56 This is so because the latter is in a better position to decide the question, having heard the witnesses and observed their deportment and manner of testifying during trial. We have carefully examined the records and the accused has failed to convince us that there is room in this appeal for the application of the exception.

Morever, the accused-appellant has not shown that the witnesses for the prosecution had any illmotive against him which would have moved them to falsely implicate him in the death of Renato Lepasanda. It is settled that where there is nothing to indicate that the principal witnesses for the prosecution were actuated by improper motive, the presumption is that they were not so actuated and their testimony are entitled to full faith and credit.57 All told, the plea of self-defense cannot be justifiably entertained. Accused-appellant having failed to discharge the burden proving his defense, his conviction necessarily follows, on the basis of his admission to the killing. The lower court also held that the accused-appellant committed the crime of murder, as qualified by the treachery, which was specifically alleged in the information. 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 specially to insure its execution, without risk to himself arising from any defense which the offended party may make.58 Treachery is evidently present in the instant case as the accused-appellant, stealthily and without warning, rushed towards the victim from behind and stabbed him in the chest. The victim, who was then seated, was not aware of any impending danger. Although there had been prior verbal altercation, the victim had reasons to believe that the matter has already been settled after Alinsubs intervention. Considering the multitude of persons who participated in the benefit dance, he was totally devoid of any suspicion that the accused-appellant, who was not a resident of Barangay Basak, would perform such a dastardly act. When the victim was trying to run away, the accused-appellant even pursued him and stabbed him repeatedly while trying to defend himself. Although the information also specifically alleged evident premeditation as a qualifying circumstance to the offense charged, the lower court did not rely upon this circumstance to sustain a conviction of murder. Neither was evident premeditation appreciated as a general aggravating circumstance. The lower court explicitly stated that there was no other aggravating circumstance attendant to the commission of the offense.59 At the time of the commission of the crime, R. A. No. 7659 was already in effect. Thus, the applicable penalty for murder is reclusion perpetua to death. There being no aggravating circumstance but with one generic mitigating circumstance of voluntary surrender, the penalty imposable to the accused-appellant, in accordance with article 64 (2) of the Revised Penal Code should be the minimum period, which is reclusion perpetua. Anent the damages, the court was correct in ordering the accused-appellant to pay the heirs of the victim P50,000.00 as civil indemnity. WHEREFORE, the impugned decision of the Regional Trial Court of Maasin, Southern Leyte, Branch 25 in Criminal Case No. 1959 finding accused-appellant Ramonito "Dodong" Saure guilty beyond reasonable doubt of the crime of murder is affirmed. He is hereby sentenced to suffer the indivisible penalty of RECLUSION PERPETUA and to pay the heirs of the victim the amount of P50,000.00 as civil indemnity.

Costs against appellant. SO ORDERED. Davide, Jr., C.J., Kapunan, and Ynares-Santiago, JJ., concur. Footnote 1 Rollo, pp. 1-2. 2 Records, p. 14. 3 Exhibit "A." 4 Exhibit "B." 5 TSN, January 24, 1997, p. 4. 6 Id., pp. 5-6. 7 Id., pp. 7-8. 8 Id., p. 6. 9 Id., p. 8. 10 Id. p. 9 11 Id., p. 10. 12 TSN, March 13, 1997, pp. 2-3. 13 Id., pp. 9-11. 14 Id., pp. 3-4. 15 Id., pp. 4-6. 16 Id., pp. 6-7. 17 TSN, November 21, 1997, p. 4 18 Id., p. 6. 19 Id., p. 14. Levino Bonote is also referred to as "Ruby Bonote." 20 Id., pp. 7-8. 21 Id., p. 5. 22 Id., pp. 5-8. 23 Id., pp. 7, 9-10. 24 Id., p. 10. 25 Id., p. 12. 26 Ibid. 27 Id., p. 22. 28 Id., 12-13. 29 TSN, February 6, 1998, p. 15. 30 Id., pp. 12-13. 31 Id., pp. 3-5. 32 Id., p. 15. 33 Id., p. 14. 34 Id., pp. 16-17. 35 Ibid., also p. 6. 36 Ibid. 37 Id., pp. 6-7. 38 Id., p. 3. 39 Id., p. 15

40 Id., p. 17. 41 Id., pp. 27-28. 42 Id., p. 3. 43 Id., pp. 29. 44 Decision dated August 3, 1998. Rollo, pp. 14-22. 45 Appellants Brief, Rollo, p. 34. 46 People vs. Rabanal, 349 SCRA 655, 659-660 (2001). 47 Jacobo vs. Court of Appeals, 270 SCRA 270, 273 (1997). 48 People vs. Aguilar, 292 SCRA 349 (1998). 49 People vs. Caguing, 347 SCRA 374, 380 (2000), citing People vs. Cario, 288 SCRA 404 (1998). 50 TSN, November 21, 1997, pp. 8-9. 51 Id., pp. 11-12. 52 TSN, May 15, 1998, pp. 29-30. 53 Ingles vs. Court of Appeals, 269 SCRA 122, 129 (1997). 54 Jacobo vs. Court of Appeals, 270 SCRA 270, 286 (1997). 55 People vs. Deopante, 263 SCRA 691, 707 (1997). 56 People vs. Hubilla, 252 SCRA 471, 478 (1996). 57 People vs. Rostata, 218 SCRA 657 (1993); People vs. Taneo, 218 SCRA 494 (1993); People vs. Tranca, 235 SCRA 455 (1994). 58 Art. 14, par. 16, Revised Penal Code; People vs. Taedo, 266 SCRA 34 (1997); People vs. Nacario, 346 SCRA 478 (2000). 59 Decision, p. 8. Be the first to comment - What do you think? Categories: Jurisprudence Tags:

1.5 G.R. No.

SUPREME COURT Manila EN BANC DECISION February 28, 2002 G.R. No. ,, vs. ,.

, J.: This petition for review seeks the reversal of the Decision, dated September 23, 1998, of the Court of Appeals in CA-G.R. CV No. 43915,1 which absolved private respondents MCG Marine Services, Inc. and Doroteo Gaerlan of any liability regarding the loss of the cargo belonging to San Miguel Corporation due to the sinking of the M/V Peatheray Patrick-G owned by Gaerlan with MCG Marine Services, Inc. as agent. On March 1, 1987, San Miguel Corporation insured several beer bottle cases with an aggregate value of P5,836,222.80 with petitioner Philippine American General Insurance Company.2 The cargo were loaded on board the M/V Peatheray Patrick-G to be transported from Mandaue City to Bislig, Surigao del Sur. After having been cleared by the Coast Guard Station in Cebu the previous day, the vessel left the port of Mandaue City for Bislig, Surigao del Sur on March 2, 1987. The weather was calm when the vessel started its voyage. The following day, March 3, 1987, M/V Peatheray Patrick-G listed and subsequently sunk off Cawit Point, Cortes, Surigao del Sur. As a consequence thereof, the cargo belonging to San Miguel Corporation was lost. Subsequently, San Miguel Corporation claimed the amount of its loss from petitioner. Upon petitioners request, on March 18, 1987, Mr. Eduardo Sayo, a surveyor from the Manila Adjusters and Surveyors Co., went to Taganauan Island, Cortes, Surigao del Sur where the vessel was cast ashore, to investigate the circumstances surrounding the loss of the cargo. In his report, Mr. Sayo stated that the vessel was structurally sound and that he did not see any damage or crack thereon. He concluded that the proximate cause of the listing and subsequent sinking of the vessel was the shifting of ballast water from starboard to portside. The said shifting of ballast water allegedly affected the stability of the M/V Peatheray Patrick-G. Thereafter, petitioner paid San Miguel Corporation the full amount of P5,836,222.80 pursuant to the terms of their insurance contract. On November 3, 1987, petitioner as subrogee of San Miguel Corporation filed with the Regional Trial Court (RTC) of Makati City a case for collection against private respondents to recover the amount it paid to San Miguel Corporation for the loss of the latters cargo. Meanwhile, the Board of Marine Inquiry conducted its own investigation of the sinking of the M/V Peatheray Patrick-G to determine whether or not the captain and crew of the vessel should be held responsible for the incident.3 On May 11, 1989, the Board rendered its decision exonerating the captain and crew of the ill-fated vessel for any administrative liability. It found that the cause of the sinking of the vessel was the existence of strong winds and enormous waves in Surigao del Sur, a fortuitous event that could not have been for seen at the time the M/V Peatheray Patrick-G left the port of Mandaue City. It was further held by the Board that said fortuitous event was the proximate and only cause of the vessels sinking.

On April 15, 1993, the RTC of Makati City, Branch 134, promulgated its Decision finding private respondents solidarily liable for the loss of San Miguel Corporations cargo and ordering them to pay petitioner the full amount of the lost cargo plus legal interest, attorneys fees and costs of suit.4 Private respondents appealed the trial courts decision to the Court of Appeals. On September 23, 1998, the appellate court issued the assailed Decision, which reversed the ruling of the RTC. It held that private respondents could not be held liable for the loss of San Miguel Corporations cargo because said loss occurred as a consequence of a fortuitous event, and that such fortuitous event was the proximate and only cause of the loss.5 Petitioner thus filed the present petition, contending that: (A) IN REVERSING AND SETTING ASIDE THE DECISION OF RTC BR. 134 OF MAKATI CITY ON THE BASIS OF THE FINDINGS OF THE BOARD OF MARINE INQUIRY, APPELLATE COURT DECIDED THE CASE AT BAR NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE HONORABLE COURT; (B) IN REVERSING THE TRIAL COURTS DECISION, THE APPELLATE COURT GRAVELY ERRED IN CONTRADICTING AND IN DISTURBING THE FINDINGS OF THE FORMER; (C) THE APPELLATE COURT GRAVELY ERRED IN REVERSING THE DECISION OF THE TRIAL COURT AND IN DISMISSING THE COMPLAINT.6 Common carriers, from the nature of their business and for reasons of public policy, are mandated to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them.7 Owing to this high degree of diligence required of them, common carriers, as a general rule, are presumed to have been at fault or negligent if the goods transported by them are lost, destroyed or if the same deteriorated.8 However, this presumption of fault or negligence does not arise in the cases enumerated under Article 1734 of the Civil Code: Common carriers are responsible for the loss, destruction, or deterioration of the goods, unless the same is due to any of the following causes only: (1) Flood, storm, earthquake, lightning or other natural disaster or calamity; (2) Act of the public enemy in war, whether international or civil;

(3) Act or omission of the shipper or owner of the goods; (4) The character of the goods or defects in the packing or in the containers; (5) Order or act of competent public authority. In order that a common carrier may be absolved from liability where the loss, destruction or deterioration of the goods is due to a natural disaster or calamity, it must further be shown that the such natural disaster or calamity was the proximate and only cause of the loss;9 there must be "an entire exclusion of human agency from the cause of the injury of the loss."10 Moreover, even in cases where a natural disaster is the proximate and only cause of the loss, a common carrier is still required to exercise due diligence to prevent or minimize loss before, during and after the occurrence of the natural disaster, for it to be exempt from liability under the law for the loss of the goods.11 If a common carrier fails to exercise due diligenceor that ordinary care which the circumstances of the particular case demand12 to preserve and protect the goods carried by it on the occasion of a natural disaster, it will be deemed to have been negligent, and the loss will not be considered as having been due to a natural disaster under Article 1734 (1). In the case at bar, the issues may be narrowed down to whether the loss of the cargo was due to the occurrence of a natural disaster, and if so, whether such natural disaster was the sole and proximate cause of the loss or whether private respondents were partly to blame for failing to exercise due diligence to prevent the loss of the cargo. The parties do not dispute that on the day the M/V Peatheray Patrick-G sunk, said vessel encountered strong winds and huge waves ranging from six to ten feet in height. The vessel listed at the port side and eventually sunk at Cawit Point, Cortes, Surigao del Sur. The Court of Appeals, citing the decision of the Board of Marine Inquiry in the administrative case against the vessels crew (BMI646-87), found that the loss of the cargo was due solely to the existence of a fortuitous event, particularly the presence of strong winds and huge waves at Cortes, Surigao del Sur on March 3, 1987: xxx III. WHAT WAS THE PROXIMATE CAUSE OF SINKING? Evidence shows that when LCT Peatheray Patrick-G left the port of Mandawe, Cebu for Bislig, Surigao del Sur on March 2, 1987 the Captain had observed the fair atmospheric condition of the area of the pier and confirmed this good weather condition with the Coast Guard Detachment of Mandawe City. However, on March 3, 1987 at about 10:00 oclock in the evening, when the vessel had already passed Surigao Strait. the vessel started to experience waves as high as 6 to 7 feet and that the Northeasterly wind was blowing at about five (5) knot velocity. At about 11:00 oclock P.M. when the vessel was already about 4.5 miles off Cawit Point, Cortes, Surigao del Sur, the vessel was discovered to be listing 15 degrees to port side and

that the strength of the wind had increased to 15 knots and the waves were about ten (10) feet high [Ramilo TSN 10-27-87 p. 32). Immediately thereafter, emergency measures were taken by the crew. The officers had suspected that a leak or crack might had developed at the bottom hull particularly below one or two of the empty wing tanks at port side serving as buoyancy tanks resulting in ingress of sea water in the tanks was confirmed when the Captain ordered to use the cargo pump. The suction valves to the said tanks of port side were opened in order to suck or draw out any amount of water that entered into the tanks. The suction pressure of the pump had drawn out sea water in large quantity indicating therefore, that a leak or crack had developed in the hull as the vessel was continuously batted and pounded by the huge waves. Bailing out of the water through the pump was done continuously in an effort of the crew to prevent the vessel from sinking. but then efforts were in vain. The vessel still continued to list even more despite the continuous pumping and discharging of sea water from the wing tanks indicating that the amount of the ingress of sea water was greater in volume that that was being discharged by the pump. Considering therefore, the location of the suspected source of the ingress of sea water which was a crack or hole at the bottom hull below the buoyancy tanks port side which was not accessible (sic) for the crew to check or control the flow of sea water into the said tank. The accumulation of sea water aggravated by the continuous pounding, rolling and pitching of the vessel against huge waves and strong northeasterly wind, the Captain then had no other recourse except to order abandonship to save their lives.13 The presence of a crack in the ill-fated vessel through which water seeped in was confirmed by the Greutzman Divers who were commissioned by the private respondents to conduct an underwater survey and inspection of the vessel to determine the cause and circumstances of its sinking. In its report, Greutzman Divers stated that "along the port side platings, a small hole and two separate cracks were found at about midship."14 The findings of the Board of Marine Inquiry indicate that the attendance of strong winds and huge waves while the M/V Peatheray Patrick-G was sailing through Cortes, Surigao del Norte on March 3, 1987 was indeed fortuitous. A fortuitous event has been defined as one which could not be foreseen, or which though foreseen, is inevitable.15 An event is considered fortuitous if the following elements concur: xxx (a) the cause of the unforeseen and unexpected occurrence, or the failure of the debtor to comply with his obligations, must be independent of human will; (b) it must be impossible to foresee the event which constitutes the caso fortuito, or if it can be foreseen, it must be impossible to avoid; (c) the occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner; and (d) the obligor must be free from any participation in the aggravation of the injury resulting to the creditor. xxx16 In the case at bar, it was adequately shown that before the M/V Peatheray Patrick-G left the port of Mandaue City, the Captain confirmed with the Coast Guard that the weather condition would permit the safe travel of the vessel to Bislig, Surigao del Sur. Thus, he could not be expected to have foreseen the unfavorable weather condition that awaited the vessel in Cortes, Surigao del Sur. It was the presence of the strong winds and enormous waves which caused the vessel to list, keel over, and consequently lose the cargo contained therein. The appellate court likewise found

that there was no negligence on the part of the crew of the M/V Peatheray Patrick-G, citing the following portion of the decision of the Board of Marine Inquiry: I. WAS LCT PEATHERAY PATRICK-G SEAWORTHY WHEN SHE LEFT THE PORT OF MANDAWE, CEBU AND AT THE TIME OF SINKING? Evidence clearly shows that the vessel was propelled with three (3) diesel engines of 250 BHP each or a total of 750 BHP. It had three (3) propellers which were operating satisfactorily from the time the vessel left the port of Mandawe up to the time when the hull on the double bottom tank was heavily floaded (sic) by uncontrollable entry of sea water resulting in the stoppage of engines. The vessel was also equipped with operating generator pumps for emergency cases. This equipment was also operating satisfactorily up to the time when the engine room was heavily floaded (sic) with sea water. Further, the vessel had undergone emergency drydocking and repair before the accident occurred (sic) on November 9, 1986 at Trigon Shipyard, San Fernando, Cebu as shown by the billing for the Drydocking and Repair and certificate of Inspection No. 2588-86 issued by the Philippine coast Guard on December 5, 1986 which expired on November 8, 1987. LCT Peatheray Patrick-G was skippered by Mr. Manuel P. Ramilo, competent and experienced licensed Major Patron who had been in command of the vessel for more than three (3) years from July 1984 up to the time of sinking March 3, 1987. His Chief Mate Mr. Mariano Alalin also a licensed Major Patron had been the Chief Mate of LCT Peatheray Patrick-G for one year and three months at the time of the accident. Further Chief Mate Alalin had commanded a tanker vessel named M/T Mercedes of MGM Corporation for almost two (2) years from 1983-1985 (Alalin TSN-4-13-88 pp. 32-33). That the vessel was granted SOLAS clearance by the Philippine Coast Guard on March 1, 1987 to depart from Mandawe City for Bislig, Surigao del Sur as evidenced by a certification issued to D.C. Gaerlan Oil Products by Coast Guard Station Cebu dated December 23, 1987. Based on the foregoing circumstances, LCT Peatheray Patrick-G should be considered seaworthy vessel at the time she undertook that fateful voyage on March 2, 1987. To be seaworthy, a vessel must not only be staunch and fit in the hull for the voyage to be undertaken but also must be properly equipped and for that purpose there is a duty upon the owner to provide a competent master and a crew adequate in number and competent for their duty and equals in disposition and seamanship to the ordinary in that calling. (Ralph 299 F-52, 1924 AMC 942). American President 2td v. Ren Fen Fed 629. AMC 1723 LCA 9 CAL 1924).17 Overloading was also eliminated as a possible cause of the sinking of the vessel, as the evidence showed that its freeboard clearance was substantially greater than the authorized freeboard clearance.18 Although the Board of Marine Inquiry ruled only on the administrative liability of the captain and crew of the M/V Peatheray Patrick-G, it had to conduct a thorough investigation of the circumstances surrounding the sinking of the vessel and the loss of its cargo in order to

determine their responsibility, if any. The results of its investigation as embodied in its decision on the administrative case clearly indicate that the loss of the cargo was due solely to the attendance of strong winds and huge waves which caused the vessel accumulate water, tilt to the port side and to eventually keel over. There was thus no error on the part of the Court of Appeals in relying on the factual findings of the Board of Marine Inquiry, for such factual findings, being supported by substantial evidence are persuasive, considering that said administrative body is an expert in matters concerning marine casualties.19 Since the presence of strong winds and enormous waves at Cortes, Surigao del Sur on March 3, 1987 was shown to be the proximate and only cause of the sinking of the M/V Peatheray PatrickG and the loss of the cargo belonging to San Miguel Corporation, private respondents cannot be held liable for the said loss. WHEREFORE, the assailed Decision of the Court of Appeals is hereby AFFIRMED and the petition is hereby DENIED. SO ORDERED. Davide, Jr., C.J., Puno, and Ynares-Santiago, JJ., concur. Footnote 1 The Philippine American General Insurance Co., Plaintiff-Appellee vs. MCG Marine Services and Doroteo Gaerlan, Defendants-Appellants. 2 The terms and conditions of the contract of insurance are set forth in Marine Risk Note No. 0322788 issued by petitioner in favor of San Miguel Corporation. 3 The administrative case against the vessels crew was docketed as case no. BMI-646-87. 4 Decision dated April 15, 1993 of the Regional Trial Court of Makati City, Branch 134, in Civil Case No. 18197, pp. 3-4; Rollo, pp. 31-32. 5 Decision of the Court of Appeals, pp. 4-8, Id., at 24-28. 6 Petition, Id., at 8-9. 7 Article 1733, par. 1, Civil Code. 8 Articles 1734 and 1735, Civil Code. 9 Article 1739, Civil Code. 10 V Tolentino, Civil Code of the Philippines Annotated 299 (1992 ed.). 11 Article 1739, Civil Code; Yobido vs. Court of Appeals, 281 SCRA 1 (1997).

12 See Compania Maritama vs. Insurance Company of North America, 12 SCRA 213 (1964). 13 Decision of the Court of Appeals, pp. 6-7, Rollo, pp. 26-27. 14 Report, Exhibit "1," Records, p. 134; see also Exhibit "1-B," Records, p. 136. 15 Article 1174, Civil Code. 16 Yobido vs. Court of Appeals, supra, at 9. 17 Id., at 4-6; Id., at 24-26. 18 Id., at 6; Id., at 26. 19 See Vasquez vs. Court of Appeals, 138 SCRA 553, 559 (1985). Be the first to comment - What do you think? Categories: Jurisprudence Tags:

1.6 G.R. No.

SUPREME COURT Manila EN BANC DECISION February 28, 2002 G.R. No. ,, vs. ,.

, J.: Accused-appellant Ruel Alilin was charged with Murder in Criminal Case No. 6074-V-97 before the Regional Trial Court of Valenzuela, Branch 171, allegedly committee as follows: That on or about September 19, 1996 in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, without any justifiable cause, with treachery, evident premeditation, and with deliberate intent to kill, did then and there willfully, unlawfully

and feloniously attack and repeatedly stab with a knife one FREDERICO CALISAAN, thereby inflicting upon the latter serious physical injuries which caused his death. Contrary to law.1 Upon being arraigned, accused-appellant pleaded not guilty. After trial, the lower court rendered a decision,2 the dispositive portion of which reads as follows: WHEREFORE, finding accused Ruel Alilin GUILTY beyond reasonable doubt of the crime of murder qualified by treachery, he is hereby sentenced to suffer the penalty of Reclusion Perpetua and costs of suit. The accused is hereby ordered to pay the heirs of the victim the sum of P21,125.00 representing the expenses for the wake, burial and funeral of the deceased and the amount of P50,000.00 as death indemnity. SO ORDERED.3 The antecedent facts as culled from the testimonies of prosecution witnesses are as follows: In the evening of September 19, 1996 at around 10:30 p.m., prosecution witnesses Armando Ramos and Roderick Lomaan, together with the deceased Federico Calisaan (Rico) and accusedappellant Ruel Alilin had a drinking spree at a basketball court on Delupio Street, Fortune I, Valenzuela City. After finishing the gin which Ruel bought, Armando, Roderick and Rico decided to go home. As they walked away, Ruel suddenly stabbed Rico on the back. The latter fell to the ground. Accused-appellant moved towards Roderick,4 but apparently changed his mind and turned back. Accused-appellant grabbed Ricos shirt and stabbed him several times on the front part of the body. Accused-appellant then chased Armando and Roderick, who scampered away. Accused-appellant fled.5 Armando and Roderick returned and rushed Rico to the Fatima Hospital on board a tricycle. The hospital refused to admit Rico,6 so he was transferred to the Jose Reyes Memorial Hospital. The following day, Rico succumbed to the stab wounds he sustained and expired. The postmortem examination of the body of Federico Calisaan revealed two stab wounds and one incised wound. One stab wound was found at the back.7 The autopsy report confirmed multiple stab wounds as the cause of death.8 In his defense, accused-appellant claimed that in the evening of September 19, 1996, he was on his way home on his motorcycle when Armando Ramos called him from the basketball court at Delupio Street, Fortune I, Karuhatan, Valenzuela and asked him for money to buy liquor. Ruel retorted that he had no money as he had to buy fuel. Armando insisted that Ruel buy him two bottles of Red Horse. Ruel approached the group of Armando on the basketball court to hand over the bottle of gin, Rico offered Ruel a shot. Immediately after Ruel drank, Rico hit him on the nape and lunged on top of him. Accused-appellant drew his bladed weapon and stabbed Rico. After stabbing Rico twice, he ran away.9

Accused-appellant Ruel Alilin alleged that the trial court gravely erred in finding that treachery attended the commission of the crime charged, thus qualifying the same to murder. At the outset, we find no cogent reason to disturb the trial courts findings of fact and evaluation of the witnesses credibility. It is doctrinal in this jurisdiction that trial courts, who have an unmatched opportunity to observe the demeanor of the witnesses, are in a better position to pass upon their credibility.10 Hence, absent any substantial and glaring factual oversight by the trial court, which would warrant a departure therefrom, the findings and conclusions of the trial court are entitled to the highest degree of respect, if not finality. Treachery is the deliberate and unexpected attack on the victim without any warning and without giving him an opportunity to defend himself.11 Hence, for treachery to qualify the killing, two elements must concur, namely: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or retaliate; and (2) the means of execution was deliberately or consciously adopted.12 All the above-mentioned elements are present in the case at bar. Prosecution witnesses Armando Ramos and Roderick Lomaan, who were together with the deceased when the crime was committed, testified that accused-appellant suddenly attacked them from behind and stabbed Rico on the back.13 Surely, the deceased and his companions could not have been aware of the impending attack. They had no reason to expect any violent incident since, as testified to by Roderick Lomaan, he knew of no misunderstanding between accused-appellant and the deceased Federico Calisaan.14 Lomaan also testified that the deceased was in no position to defend himself from the attack, since he was drunk and unable to run.15 In fact, the victim instantly fell to the ground after the first blow on his back. Thereafter, accused-appellant took the victim by his shirt and stabbed him several times while he lay on the ground, indubitably showing a deliberate and conscious intent to kill the victim. Since treachery attended the killing, the lower court, therefore, did not err in convicting accusedappellant of Murder. There being neither aggravating nor mitigating circumstance present, the trial court was correct in imposing the penalty of reclusion perpetua. Likewise, the trial court correctly awarded civil indemnity to the heirs of the deceased. Civil indemnity ex delicto can be awarded without need of further proof other than the commission of the felony itself.16 With respect to the award of actual damages, the rule in this jurisdiction is that the same cannot be based on the allegation of a witness without any tangible document to support such a claim.17 Anent the award of actual damages, the same was the subject of stipulation between the parties.18 Hence, the award of P21,125.00 as actual damages is affirmed.19 In addition, moral damages should be awarded to the heirs of the deceased. The conviction of accused-appellant for the crime charged is sufficient to justify the award thereof.20 Consistent with jurisprudence, the amount of moral damages shall be P50,000.00.21 WHEREFORE, the decision of the Regional Trial Court of Valenzuela, Metro Manila, Branch 171, in Criminal Case No. 6074-V-97, finding accused-appellant Ruel Alilin guilty beyond reasonable doubt of the crime of Murder, sentencing him to suffer the penalty of reclusion perpetua, and ordering him to pay the heirs of the deceased, Federico Calisaan, the amounts of

P50,000.00 as civil indemnity and P21,125.00 as actual damages, is AFFIRMED with the MODIFICATION that accused-appellant is further ordered to pay the heirs of the deceased the amount of P50,000.00 as moral damages. SO ORDERED. Davide, Jr., C.J., and Kapunan, J., concur. Puno, on official leave. Footnote 1 Rollo, p. 6. 2 Ibid., pp. 93-100; penned by Judge Adriano R. Osorio. 3 Ibid., p. 100. 4 TSN, October 17, 1997, p. 4. 5 TSN, September 02, 1997, p. 4-8. 6 Ibid., p. 9. 7 Id. 8 Records, p. 66. 9 TSN, May 04, 1998, pp. 3-10. 10 People v. Cortez, 348 SCRA 663, 668 [2000]. 11 People v. Bagcal, G.R. Nos. 107529-30, January 29, 2001. 12 People v. Amazan, et al., G.R. Nos. 136251, 138606, and 138607, January 16, 2001. 13 TSN, September 2, 1997, pp. 6-7; TSN, September 16, 1997, pp. 5-6; TSN, October 17, 1997, pp. 4-5; TSN, October 29, 1997, p. 2. 14 Ibid. 15 TSN, October 17, 1997. p. 6. 16 People v. Bato, 348 SCRA 253, 263 [2000]. 17 People v. Sanchez, 308 SCRA 264, 287 [1999].

18 TSN, August 6, 1997, p. 2. 19 People v. Francisco, 330 SCRA 497, 506 [2000]. 20 People v. Castillano, G.R. No. 130596, February 15, 2002. 21 People v. Ortiz, G.R. No. 133814, July 17, 2001. Be the first to comment - What do you think? Categories: Jurisprudence Tags:

1.7 G.R. No.

SUPREME COURT Manila EN BANC DECISION February 28, 2002 G.R. No. ,, vs. ,.

, J.: This petition for review seeks to reverse the decision1 dated December 19, 1997, of the Court of Appeals which upheld the ruling of the Department of Agrarian Reform Adjudication Board or DARAB in favor of private respondent Jose Verdillo. The facts of this case, as borne by the records, are as follows: On May 25, 1972, then Secretary of Agrarian Reform issued an "Order of Award" in favor of Jose Verdillo over two (2) parcels of agricultural land, Lots 1932 and 1904 of the Buenavista Estate, San Ildefonso, Bulacan, covering 14,496 and 19,808 square meters, respectively, under the following conditions: That within a period of six (6) months from receipt of a copy, the awardee(s) shall personally cultivate xxx or otherwise develop at least one-fourth of the area xxx or occupy and construct his/her house in case of residential lot and pay at least the first installment xxx; failure on his/her

part to comply with this requirement shall be sufficient cause for cancellation of this order and for allocation xxx in favor of any qualified xxx applicant; and that in no case shall an agreement to sell or deed of sale, as the case may be, issued in favor of the awardee(s) covering the lots without a certification issued by the Land Reform Project Team Leader of Land Settlement Superintendent that the awardee(s) has/have developed or devoted to some productive enterprise at least one-half of the area thereof, or constructed his/her/their house therein in case of residential land.2 On August 26, 1993, or after twenty-one years, private respondent filed an application with the Regional Office of the Department of Agrarian Reform for the purchase of said lots claiming that he had complied with the conditions set forth in the Order. Restituto Rivera, herein petitioner, filed a letter of protest against private respondent claiming that contrary to the manifestation of private respondent, it is petitioner who had been in possession of the land and had been cultivating the same.3 Petitioner had filed his own application for said parcels in opposition to that of private respondent. On December 27, 1993, a representative of the Department of Agrarian Reform Regional Office undertook an investigation to look into the conflicting claims of the petitioner and the private respondent. Based on said investigation, it was found that: xxx the subject lots were previously tenanted by other persons namely, Agapito Garcia and Pablo Garcia for almost sixteen years prior to the entry of Restituto Rivera in 1972 for Lot 1904 and in 1986 for Lot 1932 (pt.) Restituto Rivera at the time of investigation is still in possession/cultivation of the lots in question. These facts have never been refuted by Jose Verdillo who further testified that Restituto Rivera used to pay annual rental of 25 cavans for Lot 1932 (pt.) and 15 cavans of palay for Lot 1904. xxx In the investigationit was undoubtedly established that Lots 1932 (pt.) and 1904, Psd-52045, were in possession/cultivation of tenants or other persons exclusive of Jose VerdilloIt is crystal clear that Jose Verdillo has culpably violated the terms and conditions of the Order of Award issued in his favor for lots covered thereby.4 On January 24, 1994, petitioner, the Regional Director of DAR, Antonio M. Nuesa, promulgated an Order whose decretal portion reads: WHEREFORE, premises considered, Order is hereby issued cancelling Order of Award dated May 25, 1972 issued in favor of Jose Verdillo for Lot 1932 (pt.) and Lot 1904, Psd-52045, Buenavista Estate, for violation of the rules and regulations pertaining to the disposition of lots in landed estates and forfeiting whatever payments made by him on account thereof in favor of the government. Accordingly, the subject lots are hereby declared vacant and open for disposition in favor of qualified applicant. Let the application of Restituto Rivera to purchase these lots be processed in accordance with existing rules and regulations.5

Aggrieved by the cancellation of his award, private respondent then filed on March 20, 1994, a Petition with the Provincial Adjudication Board, Region III, for Annulment of said Order. Instead of filing an Answer to the Petition, herein petitioners (as respondents below) filed a Motion to Dismiss the Petition on the ground that the proper remedy was an appeal to the Secretary of the Department of Agrarian Reform from the Order of the Regional Director, under DAR Memorandum Circular No. 5-87, and not by a Petition with the DARAB Provincial Adjudicator, hence, the aforesaid Order had become final and executory. The petitioners manifested that they were no longer submitting their position paper and were opting to rely solely on their Motion to Dismiss.6 The DARAB Provincial Adjudicator, however, chose to resolve the case on the merits and on October 14, 1994, promulgated a Decision denying the petitioners? Motion to Dismiss and reversing the Order of the Regional Director, thus: WHEREFORE, in view of the foregoing, decision is hereby rendered as follows: 1. Declaring the Order dated January 24, 1994 issued by the then public respondent null and void being contrary to public policy; 2. Directing the Landed Estate Division, Department of Agrarian Reform, Regional Office, San Fernando, Pampanga to immediately execute the necessary deed of conveyance and/or title of the subject landholdings in favor of petitioner, JOSE VERDILLO; and 3. Declaring the subject landholdings fully paid and all rights appurtenant thereto is vested to the herein petitioner.7 Petitioner Rivera filed a Motion for Reconsideration from said Decision, but it was denied by the DARAB Provincial Adjudicator.8 He then interposed an appeal before the DAR Appellate Adjudication Board (DARAB), Diliman, Quezon City. On May 2, 1996, the Board issued its decision affirming that of the Provincial Adjudicator, thus: WHEREFORE, in view of the foregoing, the appeal is hereby DENIED by affirming the decision, dated October 14, 1994 of the Hon. Adjudicator for the Province of Bulacan. Likewise, there being no cogent reason to disturb the Order of February 22, 1995, the same is hereby AFFIRMED.9 The Petition for Review filed by herein petitioners with the Court of Appeals was denied due course and ordered dismissed, with costs against petitioner Rivera.10 Hence, this Petition for Review raising the following errors: I

THAT THE HONORABLE COURT OF APPEALS ERRED IN DENYING AND DISMISSING THE CLAIM OF THE PETITIONERS THAT THE DECISION OF THE BOARD (DARAB) WAS ISSUED IN EXCESS OF JURISDICTION. II THAT THE HONORABLE COURT OF APPEALS ERRED IN INTERPRETING THE APPLICABLE AGRARIAN LAWS ON THE MATTER.11 Briefly stated, the issue for resolution is whether or not the Court of Appeals erred in denying petitioners? claim that in this case, the Board (DARAB) acted in grave abuse of discretion tantamount to lack or excess of its jurisdiction. According to petitioners, the Court of Appeals and the DARAB in affirming the decision of the Provincial Adjudicator of Bulacan committed grave abuse of discretion, tantamount to or in excess or lack of jurisdiction, because public respondents in their questioned Orders/Decisions merely focused on the procedural aspect, avoiding the substantial merits of the case. Petitioners add that public respondents brushed aside the fact that this case involves the conflicting applications to purchase lots within the Buenavista Estate, San Ildefonso, Bulacan, which is under the administration and disposition of the DAR pursuant to the mandate of C.A. No. 539,12 as amended by R.A. No. 1400.13 According to petitioners, this case is not, strictly speaking, a tenurial dispute there being no landlord and tenant relationship, but involves the disposition of the lots subject of the controversy between private petitioner and private respondent. Hence, they contend that this case involves the strict administrative implementation and award of lots within the Buenavista Estate. They conclude that this being the case, the matter falls under the exclusive jurisdiction and administrative competence of the DAR (Regional Director and Department Secretary) and not of the DARAB (including the Provincial Adjudicator and the Provincial Adjudication Board itself). Moreover, petitioners argue, the Order of Director Nuesa dated January 24, 1994, is in keeping with the mandate of the governing agrarian reform law, i.e., C.A. No. 539, as amended by R.A. No. 1400, which requires that lots within the Buenavista Estate shall be strictly awarded and/or disposed of to qualified tenant-beneficiaries. They also assert that private petitioner Rivera is the one in peaceful, adverse, open, continuous and exclusive possession, occupation and cultivation of said lots for the last twenty-one (21) years, while private respondent Verdillo had culpably violated the terms and conditions set forth in the Order of Award in 1972. Citing jurisprudence,14 they claim private respondent Verdillo should be barred by estoppel, whereas petitioner Rivera should be deemed to have acquired, by operation of law, a right to a government grant without the necessity of a certificate of title issued therein since the conditions set by law have been complied with by him.15 Finally, petitioners submit that public respondents grossly erred in affirming the decision of the Provincial Adjudicator at Malolos, Bulacan, because when private respondent filed his petition to the DAR Provincial Adjudication Board on March 20, 1994, against the DAR Regional Director of Region III and private petitioner Restituto Rivera for the annulment of Order, said Order dated

January 24, 1994, of public petitioner had already become final and executory. According to petitioners, no Motion for Reconsideration and/or appeal was interposed by private respondent. Therefore, they conclude that the decision of Director Nuesa had already acquired finality.16 In turn, private respondent Jose Verdillo argues that no grave abuse was committed by the provincial adjudication officer and provincial board of adjudicators when they decided the case on the merits in resolving petitioners? Motion to Dismiss, and by the Central DARAB and the Court of Appeals when they affirmed said decision. According to him, the DARAB is not bound by the technical rules of procedure as provided under Sec. 3 of the DARAB Rules of Procedure,17 and Sec. 2 of Rule 1 of the DARAB Rules.18 The Provincial Adjudication Board?s action, according to private respondent, sought to avoid unnecessary delays in the adjudication of agrarian disputes.19 Moreover, he contends, there is no basis for the allegation that the Court of Appeals erred in appreciating applicable agrarian laws.20 In his Supplemental Memorandum, private respondent further refuted the results of the DAR investigation dated December 27, 1993, and the subsequent Order of Director Nuesa which found private respondent to have violated the terms of the Order of Award in 1972. He claimed that he had complied with said Order of Award and had paid in full the purchase price of the subject lots as evidenced by Official Receipt No. 1890249.21 Private respondent also argued that the January 24, 1994 Order of Director Nuesa was irregular because he had no authority to reverse, alter, modify or amend the order of the Secretary of the Department of Agrarian Reform.22 Finally, private respondent contends that the findings of the tribunals a quo are based on substantial evidence, citing the sworn statement of Herminia G. Garcia, the wife of the deceased Agapito Garcia, who declared that it was really private respondent Verdillo whom she considers to be the owner of the lots subject matter of the controversy, because it was he who financed the cultivation and improvement of the land. Private respondent also cites the joint affidavit of Benedicta Villadarez and Normita Valenzuela corroborating Mrs. Garcia?s affidavit.23 After carefully perusing the records of this case and considering the contentions of the parties thereto, we find the petition impressed with merit. We agree with petitioners that respondent Court of Appeals erred in holding that the DARAB and its officials have not committed grave abuse of discretion tantamount to excess or lack of jurisdiction in this case. P.D. 94624 provides that matters involving the administrative implementation of the transfer of the land to the tenant-farmer under P.D. No. 2725 and amendatory and related decrees, orders, instructions, rules and regulations, shall be exclusively cognizable by the Secretary of Agrarian Reform, including: xxx (5) issuance, recall or cancellation of certificates of land transfer in cases outside the purview of P.D. No. 816.26 The revocation by the Regional Director of DAR of the earlier Order of Award by the Secretary of Agriculture falls under the administrative functions of the DAR. The DARAB and its provincial adjudicator or board of adjudicators acted erroneously and with grave abuse of discretion in taking cognizance of the case, then overturning the decision of the DAR Regional

Director and deciding the case on the merits without affording the petitioner opportunity to present his case. As held by this Court in Centeno vs. Centeno,27 "the DAR is vested with the primary jurisdiction to determine and adjudicate agrarian reform matters and shall have the exclusive jurisdiction over all matters involving the implementation of the agrarian reform program." The DARAB has primary, original and appellate jurisdiction "to determine and adjudicate all agrarian disputes, cases, controversies, and matters or incidents involving the implementation of the Comprehensive Agrarian Reform Program under R.A. 6657, E.O. Nos. 229, 228 and 129-A, R.A. 3844 as amended by R.A. 6389, P.D. No. 27 and other agrarian laws and their implementing rules and regulations."28 Under Section 3(d) of R.A. 6657 (CARP Law), "agrarian dispute" is defined to include "(d) any controversy relating to tenurial arrangements, whether leasehold, tenancy, stewardship or otherwise over lands devoted to agriculture, including disputes concerning farmworkers associations or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of such tenurial arrangements. It includes any controversy relating to compensation of lands acquired under this Act and other terms and conditions of transfer of ownership from landowners to farmworkers, tenants and other agrarian reform beneficiaries, whether the disputants stand in the proximate relation of farm operator and beneficiary, landowner and tenant, or lessor and lessee." In the case at bar, petitioner and private respondent had no tenurial, leasehold, or any agrarian relations whatsoever that could have brought this controversy between them within the ambit of the abovecited provision. Consequently, the DARAB had no jurisdiction over the controversy and should not have taken cognizance of private respondent?s petition in the first place.29 Note that Administrative Order No. 3, Series of 1990, governs the distribution and titling of lots in landed estates administered by the DAR. This Order explicitly provides that "since land has a social function, there is a concomitant social responsibility in its ownership and should, therefore, be distributed to the actual occupant/tillers" thereof. In the investigation on December 27, 1993, conducted by the Regional Officer of DAR, it was established that the subject lots were in the possession and cultivation of persons other than the awardee Verdillo. Clearly, this constituted a violation of the terms of the Order of Award issued in favor of private respondent as an awardee, aside from contravening the underlying principles of agrarian reform as a social justice measure. Given these circumstances, we find petitioner Restituto Rivera?s plea to overturn the ruling of the Court of Appeals meritorious. While it bears emphasizing that findings of administrative agencies, which have acquired expertise because their jurisdiction is confined to specific matters are accorded not only respect but even finality by the courts,30 care should be taken that administrative actions are not done without due regard to the jurisdictional boundaries set by the enabling law for each agency. In this case, respondent DARAB officials and boards, provincial and central, had overstepped their legal boundaries in taking cognizance of the controversy between petitioner Rivera and private respondent Verdillo as to who should be awarded Lots 1932 and 1904 of the Buenavista Estate.

Respondent appellate court erred in sustaining DARAB?s unjustified action taken with grave abuse of discretion resulting in lack or excess of its jurisdiction. WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals dated December 19, 1997, is REVERSED, and the order of DAR Appellate Adjudication Board on May 2, 1996, and of the DARAB Provincial Adjudication Officer and Board dated October 14, 1994, and February 22, 1995, are declared NULL and VOID and SET ASIDE. The order of DAR Regional Director for Region III dated January 24, 1994, in favor of petitioner Restituto Rivera is REINSTATED. No pronouncement as to costs. SO ORDERED. Bellosillo, Mendoza, Buena, and De Leon, Jr., JJ., concur. Footnote 1 Rollo, pp. 30-40. 2 Id. at 30-31. 3 Id. at 31 only. 4 Id. at 74. 5 Id. at 75. 6 Id. at 31. 7 Id. at 32. 8 Order dated February 22, 1995. 9 Id. at 22. 10 Id. at 39. 11 Id. at 23. 12 An Act authorizing the President of the Philippines to acquire private lands for resale in small lots, providing for the creation of an agency to carry out the purposes of this Act, and setting aside funds and authorizing the issuance of bonds for the payment of said lands. 13 An Act defining a Land Tenure Policy, providing for an instrumentality to carry out the policy, and appropriating funds for its implementation.

14 Petitioners cite the cases of Santiago Syjuco, Inc. vs. Castro, G.R. No. 70403, 175 SCRA 171 (1989); Northern Cement Corporation vs. Intermediate Appellate Court, No. L-68636, 158 SCRA 408 (1988) and Nyco Sales Corporation vs. BA Finance Corporation, G.R. No. 71694, 200 SCRA 637 (1991) and National Power Corporation vs. Court of Appeals, G.R. No. 45664, 218 SCRA 41 (1993). 15 Rollo, p. 184. 16 Id. at 185. 17 Section 3. Technical Rules not applicable. The Board and its Regional and Provincial Adjudicator shall not be bound by technical rules of procedure and evidence as prescribed in the Rules of Court, but shall proceed to hear and decide all agrarian cases, disputes or controversies in a most expeditious manner, employing all reasonable means to ascertain the facts of every case in accordance with justice and equity and the merits of the case. xxx 18 Section 2. Construction. These Rules shall be liberally construed to carry out the objectives of agrarian reform and to promote just, expeditious and inexpensive adjudication and settlement of agrarian dispute, case, matter or concern. 19 Rollo, pp. 203-204. 20 Id. at 204. 21 Id. at 220-221. 22 Id. at 221. 23 Id. at 224-225. 24 Reorganizing the Courts of Agrarian Relations, Streamlining their Procedures and Other Purposes. 25 Decreeing the Emancipation of Tenants from the Bondage of the Soil Transferring to Them the Ownership of the Land They Till and Providing the Instruments and Mechanism Therefor. 26 Providing the tenant-farmers/agricultural leases, shall pay the household rentals when they fall due providing penalties therefor. 27 G.R. No. 140825, 343 SCRA 153, 159 (2000). 28 Rule II, Section 1 of the Revised Rules of Procedure of the DARAB.

29 See Heirs of the Late Herman Rey Santos vs. Court of Appeals, G.R. No. 109992, 327 SCRA 293, 299 (2000). 30 Jacinto vs. Court of Appeals, G.R. No. 124540, 281 SCRA 657, 676 (1997); Casa Filipina Realty Corporation vs. Office of the President, G.R. No. 99346, 241 SCRA 165, 174 (1995); Philippine Savings Bank vs. NLRC, G.R. No. 111173, 261 SCRA 409, 417 (1996). Be the first to comment - What do you think? Categories: Jurisprudence Tags:

1.8 G.R. No.

SUPREME COURT Manila EN BANC DECISION February 28, 2002 G.R. No. ,, vs. ,. 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 circumstance , J.: For automatic review is the joint decision1 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 Magin2 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 victims 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 Magins death was due to "hypovolemic shock secondary to multiple hacking wounds on the head and nape."15 Jorjas 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-laws 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. 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 "Cynthias 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: I 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. V 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 Marios 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 Marios categorical confession that Joey had no participation in the killings. Appellants contend that the mere fact that they are siblings does not mean that Marios 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 Joeys 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 Joeys standard fingerprints showed that two of his fingerprints were recovered from the crime scene. Fourth, Mario admitted during the reenactment 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, Joeys 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 appellants 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 Joeys 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 Magins 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 singlehandedly killed the spouses. For one, we find inconsistencies in their testimonies. In Joeys 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 Joeys 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 Marios 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 Marios 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 officers 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) Joeys admission that he boxed Jorja (4) both appellants admission that they searched the victims belongings for cash and valuables, (5) the presence of Joeys 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 oclock.

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 oclock, 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 oclock. Q: Do you have a watch? A: None, Maam. Q: What time approximately do you think was it when you went upstairs? A: It took me ten minutes, after 10:00 oclock 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 oclock 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, Maam. 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 theres 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 victims 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 Jorjas 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, Marios 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 Marios 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. 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 Joeys 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, YnaresSantiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur. Footnote 1 Records, Criminal Case No. 6150-AF, pp. 181-193. 2 Also spelled "Magen" or "Majen" in the records. 3 Records, Criminal Case No. 6150-AF, p. 8. 4 Records, Criminal Case No. 6151-AF, p. 12. 5 TSN, October 18, 1995, pp. 4-6. 6 Id. at 7. 7 Id. at 11. 8 See Exhibits "WW-2," "WW-2-1," "WW-2-4," and "WW-2-8," Exhibits Folder 1, pp. 38-41; TSN, October 18, 1995, p. 11. 9 TSN, October 18, 1995, pp. 13-14. 10 Id. at 14, 21. 11 Exhibit "FF-2," Exhibits Folder 1, p. 20. 12 Exhibits "LL" and sub-markings, "MM" and sub-markings, Exhibits Folder 1, pp. 26-27. 13 See Exhibits "WW-2-2," "WW-2-3," "WW-2-5," "WW-2-6," "WW-2-7," "WW-2-10," and "WW-2-11," Exhibits Folder 1, pp. 39-42. 14 See Exhibits "C" to "Q," Id. at 3-7. 15 Exhibit "HH," Exhibits Folder 1, p. 37. 16 Exhibit "EE," Id. at 35. 17 TSN, March 1, 1995, p. 44. 18 Id. at 44-45. 19 TSN, February 29, 1996, pp. 4-7. 20 Exhibit "QQ and sub-markings," Records, Criminal Case No. 6151-AF, pp. 6-7. 21 TSN, July 2, 1996, pp. 5-8. 22 Exhibit "NN" and sub-markings, Exhibits Folder 1, pp. 28-29; TSN, October 18, 1995, pp. 25-34. 23 Supra, note 21 at 8-9. 24 TSN, August 20, 1995, pp. 12-14. 25 "Benjamin" in the Decision. 26 TSN, March 1, 1995, p. 21. 27 TSN, January 22, 1997, pp. 3-5. 28 Id. at 4. 29 TSN, February 4, 1997, pp. 3-4. 30 TSN, October 30, 1996, p. 18. 31 Id. at 17. 32 Id. at 4-6. 33 TSN, February 18, 1997, pp. 3-7. 34 Records, Criminal Case No. 6150-AF, pp. 192-193.

35 People v. Albao, G.R. No. 117481, 287 SCRA 129, 155 (1998). 36 People v. Robedillo, G.R. No. 95355, 286 SCRA 379, 385 (1998). 37 People v. Gungon, G.R. No. 119574, 287 SCRA 618, 633 (1998). 38 Records, Criminal Case, No. 6151-AF, p.7. 39 TSN, Vol. I October 30, 1996, p. 17. 40 Supra, note 3 at 11; TSN, January 22, 1997, p. 4. 41 Supra, note 3 at 6-7. 42 Id. at 7. 43 People v. Lavapie, et al, G.R. No. 130209, March 14, 2001, p. 24, citing People v. Atad, G.R. No. 114105, 266 SCRA 262, 275-276 (1997). 44 People v. Mercado, G.R. No. 116239, 346 SCRA 256, 283-84 (2000). 45 People v. Abillar, G.R. No. 134606, 346 SCRA 433, 435 (2000). 46 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. 47 People vs. Alba, supra, at 10. 48 People vs. Morin, G.R. No. 101794, 241 SCRA 709, 716 (1995). 49 People vs. Silvestre, G.R. No. 109142, 244 SCRA 479, 495 (1995). 50 People vs. Ganzagan, Jr., G.R. No. 113793, 247 SCRA 220, 235 (1995). 51 People vs. De la Cruz, G.R. No. 111568, 242 SCRA 129, 142 (1995). 52 TSN, Re-enactmment, December 30, 1994, pp. 13-17. 53 TSN, Re-enactment, December 30, 1994, pp. 3-5. 54 People v. Cirilo, G.R. No. 134245, 346 SCRA 648, 660-61 (2000), citing People v. Macuha, 310 SCRA 14, 23-24 (1999). 55 People v. Alo, G.R. No. 125533, 348 SCRA 702, 711 (2000), citing People v. Magallanes, 275 SCRA 222, 234 (1997). 56 People v. Alo, supra, note 54 at 712, citing People v. Sumalpong, 284 SCRA 464, 468 (1998). 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. 60 Ibid. 61 People v. Samolde, G.R. No. 128551, 336 SCRA 632, 654 (2000), citing People v. Suelto, G.R. No. 126097, 325 SCRA 41, 59 (2000). 62 People v. Anivado, G.R. Nos. 131022, 146048-49, 348 SCRA 74, 94 (2000), citing People v. Gopio, G.R. No. 133925, 346 SCRA 408, 431 (2000); People v. Carillo, G.R. No. 129528, 333 SCRA 338, 353 (2000), citing Sumalpong v. Court of Appeals, G.R. No. 123404, 268 SCRA 764, 775 (1997). 63 People v. Casturia, G.R. No. 128819, 345 SCRA 206, 212 (2000). 64 People v. Torres, Jr., G.R. No. 138046, 347 SCRA 526, 540 (2000), citing People v. Adoc, G.R. No. 132079, 330 SCRA 626 (2000). Be the first to comment - What do you think? Categories: Jurisprudence Tags: you think? Categories: Jurisprudence Tags: