Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 80762 March 19, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FAUSTA GONZALES, AUGUSTO GONZALES, CUSTODIO
GONZALES, SR., CUSTODIO GONZALES, JR., NERIO
GONZALES and ROGELIO LANIDA, accused, CUSTODIO
GONZALES, SR., accused-appellant.

SARMIENTO, J.:
In a decision 1 dated October 31, 1984, the Regional Trial Court of
Iloilo, Branch XXXVIII (38), in Criminal Case No. 13661, entitled
"People of the Philippines vs. Fausta Gonzales, Augusto Gonzales,
Custodia Gonzales, Custodio Gonzales, Jr., Nerio Gonzales and Rogelio
Lanida," found all the accused, except Rogelio Lanida who eluded arrest
and up to now has remain at large and not yet arrained, guilty beyond
reasonable doubt of the crime of murder as defined under Article 248 of
the Revised Penal Code. They were sentenced "to suffer the penalty of
imprisonment of twelve (12) years and one (1) day to seventeen (17)
years and four (4) months of reclusion temporal, to indemnify the heirs
of the deceased victim in the amount of P40,000.00, plus moral damages
in the sum of P14,000.00 and to pay the costs." 2 The victim was Lloyd
Peacerrada, 44, landowner, and a resident of Barangay Aspera, Sara,
Iloilo.
Through their counsel, all the accused, except of course Rogelio Lanida,
filed a notice of appeal from the trial court's decision. During the
pendency of their appeal and before judgment thereon could be rendered
by the Court of Appeals, however, all the accused-appellants, except
Custodio Gonzales, Sr., withdrew their appeal and chose instead to

pursue their respective applications for parole before the then Ministry,
now Department, of Justice, Parole Division. 3
On October 27, 1987, the Court of Appeals rendered a decision 4 on the
appeal of Custodio Gonzales, Sr. It modified the appealed decision in
that the lone appellant was sentenced to reclusion perpetua and to
indemnify the heirs of Lloyd Peacerrada in the amount of P30,000.00.
In all other respect, the decision of the trial court was affirmed. Further,
on the basis of our ruling in People vs. Ramos, 5 the appellate court
certified this case to us for review. 6
The antecedent facts are as follows:
At around 9:00 o'clock in the evening of February 21, 1981, Bartolome
Paja, the barangay captain of Barangay Tipacla, Ajuy, Iloilo, was
awakened from his sleep by the spouses Augusto and Fausta Gonzales.
Augusto informed Paja that his wife had just killed their landlord, Lloyd
Peacerrada, and thus would like to surrender to the authorities. Seeing
Augusto still holding the knife allegedly used in the killing and Fausta
with her dress smeared with blood, Paja immediately ordered a nephew
of his to take the spouses to the police authorities at the Municipal Hall
in Poblacion, Ajuy. As instructed, Paja's nephew brought the Gonzales
spouses, who "backrode" on his motorcycle, to the municipal
building. 7 Upon reaching the Ajuy Police sub-station, the couple
informed the police on duty of the incident. That same night, Patrolman
Salvador Centeno of the Ajuy Police Force and the Gonzales spouses
went back to Barangay Tipacla. Reaching Barangay Tipacla the group
went to Paja's residence where Fausta was made to stay, while Paja,
Patrolman Centeno, and Augusto proceeded to the latter's residence at
Sitio Nabitasan where the killing incident allegedly occurred. 8 There
they saw the lifeless body of Lloyd Peacerrada, clad only in an
underwear, sprawled face down inside the bedroom. 9 The group stayed
for about an hour during which time Patrolman Centeno inspected the
scene and started to make a rough sketch thereof and the immediate
surroundings. 10 The next day, February 22, 1981, at around 7:00 o'clock
in the morning, Patrolman Centeno, accompanied by a photographer,
went back to the scene of the killing to conduct further investigations.
Fausta Gonzales, on the other hand, was brought back that same day by
Barangay Captain Paja to the police substation in Ajuy. When Patrolman
Centeno and his companion arrived at Sitio Nabitasan, two members of

the 321st P.C. Company stationed in Sara, Iloilo, who had likewise been
informed of the incident, were already there conducting their own
investigation. Patrolman Centeno continued with his sketch;
photographs of the scene were likewise taken. The body of the victim
was then brought to the Municipal Hall of Ajuy for autopsy.

7. Puncture wound, 1 cm. in width, located at the base of the left armpit
directed toward the left thoracic cavity.

The autopsy of Lloyd Peacerrada's cadaver was performed at about

11:20 a.m. on February 22, 1981; after completed, a report was made
with the following findings:

9. Puncture wound, 3 cm in width, 11.5 cm in length, located at the

anterior aspect, proximal 3rd arm left, directed downward.

8. Puncture wound, 1 cm. in width, 11 cm. in length, directed toward the

left deltoid muscle, located at the upper 3rd axilla left.

PHYSICAL FINDINGS

10. Stab wound, thru and thru, 2.5 cm. in width, and 5 cm. in length,
medial aspect, palm right.

1. Deceased is about 5 ft. and 4 inches in height, body moderately built

and on cadaveric rigidity.

11. Stabwound, 4 cm.in width, iliac area, right, directed inward with
portion of large intestine and mysentery coming out.

EXTERNAL FINDINGS

12. Stab wound, 4 cm. in width, located at the posterior portion of the
shoulder, right, directed downward to the aspex of the light thoracic
cavity.

1. Puncture wound, 1 cm. in width, 9 cm. in length, located at the lower

3rd anterior aspect of the arm, right, directed upward to the right axillary
pit.
2. Stab wound, thru and thru, located at the proximal 3rd, forearm right,
posterior aspect with an entrance of 5 cm. in width and 9 cm. in length
with an exit at the middle 3rd, posterior aspect of the forearm, right, with
1 cm. wound exit.
3. Stab wound, thru and thru, located at the middle 3rd, posterior aspect
of the forearm right, 1 cm. in width.
4. Incised wound, 4 cm. long, depth visualizing the right lateral border
of the sternum, 6th and 7th ribs, right located 1.5 inches below the right
nipple.

13. Incised wound, 1 cm. in width, 10 cm. in length, located at the

medial portion of the medial border of the right scapula.
14. Incised wound, 1 cm. in width, 4.5 cm. in length, located at the
posterior aspect of the right elbow.
15. Incised wound, 1 cm. in width, 2 cm. in length, located at the
posterior portion, middle 3rd, forearm, right.
16. Lacerated wound at the anterior tantanelle with fissural fracture of
the skull.
INTERNAL FINDINGS:

5. Stab wound, 2 cm. in width, 10.5 cm. in depth, directed inward to the
thoracic cavity right, located at the left midclavicular line at the level of
the 5th rib left.

1. Stab wound No. 5, injuring the left ventricle of the heart.

6. Stab wound, 2 cm. in width, 9.5 cm. in depth directed toward the right
thoracic cavity, located at the mid left scapular line at the level of the 8th
intercostal space.

3. Stab wound No. 7, injuring the right middle lobe of the lungs.

2. Stab wound No. 6, severely injuring the right lower lobe of the lungs.

4. Stab wound No. 11, injuring the descending colon of the large
intestine, thru and thru.
5. Stab wound No. 12, severely injuring the apex of the right lungs (sic).
CAUSE OF DEATH:
MASSIVE HEMMORRHAGE DUE TO MULTIPLE LACERATED,
STABBED (sic), INCISED AND PUNCTURED WOUNDS.
JESUS D. ROJAS, M.D.
Rural Health Physician
Ajuy, Iloilo 11
The autopsy report thus showed that Dr. Rojas "found sixteen (16)
wounds, five (5) of which are fatal because they penetrated the internal
organs, heart, lungs and intestines of the deceased." 12
On February 23, two days after the incident, Augusto Gonzales appeared
before the police sub-station in the poblacion of Ajuy and voluntarily
surrendered to Police Corporal Ben Sazon for detention and protective
custody for "having been involved" in the killing of Lloyd Peacerrada.
He requested that he be taken to the P.C. headquarters in Sara, Iloilo
where his wife, Fausta, was already detained having been indorsed
thereat by the Ajuy police force. 13
Based on the foregoing and on the investigations conducted by the Ajuy
police force and the 321st P.C. Company, an information for murder
dated August 26, 1981, was filed by the Provincial Fiscal of Iloilo
against the spouses Augusto and Fausta Gonzales. The information read
as follows:
The undersigned Provincial Fiscal accuses FAUSTA GONZALES and
AUGUSTO GONZALES of the crime of MURDER committed as
follows:
That on or about the 21st day of February, 1981, in the Municipality of
Ajuy, Province of Iloilo, Philippines, and within the jurisdiction of this
Court, the above-named accused with four other companions whose
identities are still unknown and are still at large, armed with sharp-

pointed and deadly weapons, conspiring, confederating and helping each

other, with treachery and evident premeditation, with deliberate intent
and decided purpose to kill, and taking advantage of their superior
strength and number, did then and there wilfully, unlawfully and
feloniously attack, assault, stab, hack, hit and wound Lloyd D.
Peacerrada, with the weapons with which said accused were provided
at the time, thereby inflicting upon said Lloyd D. Peacerrada multiple
wounds on different parts of his body as shown by autopsy report
attached to the record of this case which multifarious wounds caused the
immediate death of said Lloyd D. Peacerrada.
CONTRARY TO LAW.
Iloilo City, August 26, 1981. 14
When arraigned on September 16, 1981, Augusto and Fausta both
entered a plea of not guilty. Before trial, however, Jose Huntoria 15 who
claimed to have witnessed the killing of Lloyd Peacerrada, presented
himself to Nanie Peacerrada, the victim's widow, on October 6, 1981,
and volunteered to testify for the prosecution. A reinvestigation of the
case was therefore conducted by the Provincial Fiscal of Iloilo on the
basis of which an Amended Information, 16 dated March 3, 1982, naming
as additional accused Custodio Gonzales, Sr. (the herein appellant),
Custodio Gonzales, Jr., Nerio Gonzales, and Rogelio Lanida, was filed.
Again, all the accused except as earlier explained, Lanida, pleaded not
guilty to the crime.
At the trial, the prosecution presented Dr. Jesus Rojas, the Rural Health
physician of Ajuy who conducted the autopsy on the body of the victim;
Bartolome Paja, the barangay captain of Barangay Tipacla; Patrolman
Salvador Centeno and Corporal Ben Sazon of the Ajuy Police Force;
Sgt. (ret) Nicolas Belicanao and Sgt. Reynaldo Palomo of the 321st P.C.
Company based in Sara, Iloilo; Jose Huntoria; and Nanie Peacerrada,
the widow.
Dr. Jesus Rojas testified that he performed the autopsy on the body of
the deceased Lloyd Penacerrada at around 11:20 a.m. on February 22,
1981 after it was taken to the municipal hall of Ajuy. 17 His findings
revealed that the victim suffered from 16 wounds comprising of four (4)
punctured wounds, seven (7) stab wounds, four (4) incised wounds, and

one (1) lacerated wound. In his testimony, Dr. Rojas, while admitting the
possibility that only one weapon might have caused all the wounds
(except the lacerated wound) inflicted on the victim, nevertheless opined
that due to the number and different characteristics of the wounds, the
probability that at least two instruments were used is high. 18 The police
authorities and the P.C. operatives for their part testified on the aspect of
the investigation they respectively conducted in relation to the incident.
Nanie Peacerrada testified mainly on the expenses she incurred by
reason of the death of her husband while Barangay Captain Bartolome
Paja related the events surrounding the surrender of the spouses Augusto
and Fausta Gonzales to him, the location of the houses of the accused, as
well as on other matters.

Sitio Nabitasan, in Barangay Tipacla Municipality of Ajuy, to Sara,

Iloilo where Mrs. Peacerrada lived, and related to her what he saw on
February 21, 1981. 29

By and large, the prosecution's case rested on Huntoria's alleged

eyewitness account of the incident. According to Huntoria, who gave his
age as 30 when he testified on July 27, 1982, 19 at 5:00 o'clock in the
afternoon on February 21, 1981, he left his work at Barangay Central, in
Ajuy, Iloilo where he was employed as a tractor driver by one Mr.
Piccio, and walked home; 20 he took a short-cut route. 21 While passing at
the vicinity of the Gonzales spouses' house at around 8:00 o'clock in the
evening, he heard cries for help. 22 Curiosity prompted him to approach
the place where the shouts were emanating. When he was some 15 to 20
meters away, he hid himself behind a clump of banana
trees. 23 From where he stood, he allegedly saw all the accused ganging
upon and takings turns in stabbing and hacking the victim Lloyd
Peacerrada, near a "linasan" or threshing platform. He said he clearly
recognized all the accused as the place was then awash in
moonlight. 24 Huntoria further recounted that after the accused were
through in stabbing and hacking the victim, they then lifted his body and
carried it into the house of the Gonzales spouses which was situated
some 20 to 25 meters away from the "linasan". 25 Huntoria then
proceeded on his way home. Upon reaching his house, he related what
he saw to his mother and to his wife 26 before he went to
sleep. 27 Huntoria explained that he did not immediately report to the
police authorities what he witnessed for fear of his life. 28 In October
1981 however, eight months after the extraordinary incident he allegedly
witnessed, bothered by his conscience plus the fact that his father was
formerly a tenant of the victim which, to his mind, made him likewise a
tenant of the latter, he thought of helping the victim's widow, Nanie
Peacerrada. Hence, out of his volition, he travelled from his place at

The trial court disregarded the version of the defense; it believed the
testimony of Huntoria.

Except Fausta who admitted killing Lloyd Peacerrada in defense of her

honor as the deceased attempted to rape her, all the accused denied
participation in the crime. The herein accused-appellant, Custodio
Gonzales, Sr., claimed that he was asleep 30 in his house which was
located some one kilometer away from the scene of the crime 31when the
incident happened. He asserted that he only came to know of it after his
grandchildren by Augusto and Fausta Gonzales went to his house that
night of February 21, 1981 to inform him. 32

On appeal to the Court of Appeals, Custodia Gonzales, Sr., the lone

appellant, contended that the trial court erred in convicting him on the
basis of the testimony of Jose Huntoria, the lone alleged eyewitness, and
in not appreciating his defense of alibi.
The Court of Appeals found no merit in both assigned errors. In
upholding Huntoria's testimony, the appellate court held that:
. . . Huntoria positively identified all the accused, including the herein
accused-appellant, as the assailants of Peacerrada. (TSN, p. 43, July 27,
1982) The claim that Huntoria would have difficulty recognizing the
assailant at a distance of 15 to 20 meters is without merit, considering
that Huntoria knew all the accused. (Id., pp. 37-39) If Huntoria could not
say who was hacking and who was stabbing the deceased, it was only
because the assailant were moving around the victim.
As for the delay in reporting the incident to the authorities, we think that
Huntoria's explanation is satisfactory. He said he feared for his life. (Id.,
pp. 50-51, 65) As stated in People vs. Realon, 99 SCRA 442, 450
(1980): "The natural reticence of most people to get involved in a
criminal case is of judicial notice. As held in People v. Delfin, '. . . the
initial reluctance of witnesses in this country to volunteer information
about a criminal case and their unwillingness to be involved in or

dragged into criminal investigations is common, and has been judicially

declared not to affect credibility.'"
It is noteworthy that the accused-appellant self admitted that he had
known Huntoria for about 10 years and that he and Huntoria were in
good terms and had no misunderstanding whatsoever. (TSN, p. 33, July
18, 1984) He said that he could not think of any reason why Huntoria
should implicate him. (Id., p. 34) Thus, Huntoria's credibility. is beyond
question. 33
The Court of Appeals likewise rejected the appellant's defense of
alibi. 34 The appellate court, however, found the sentence imposed by the
trial court on the accused-appellant erroneous. Said the appellate court:
Finally, we find that the trial court erroneously sentenced the accusedappellant to 12 years and 1 day to 17 years and 4 months of reclusion
temporal. The penalty for murder under Article 248 isreclusion
temporal in its maximum period to death. As there was no mitigating or
aggravating circumstance, the imposible penalty should be reclusion
perpetua. Consequently, the appeal should have been brought to the
Supreme Court. With regard to the indemnity for death, the award of
P40,000.00 should be reduced to P30,000.00, in accordance with the
rulings of the Supreme Court. (E.g., People v. De la Fuente, 126 SCRA
518 (1983); People v. Atanacio, 128 SCRA 31 (1984); People v. Rado,
128 SCRA 43 (1984); People v. Bautista, G.R. No. 68731, Feb. 27,
1987). 35
The case, as mentioned earlier, is now before us upon certification by the
Court of Appeals, the penalty imposed being reclusion perpetua.
After a careful review of the evidence adduced by the prosecution, we
find the same insufficient to convict the appellant of the crime charged.
To begin with, the investigation conducted by the police authorities
leave much to be desired. Patrolman Centeno of the Ajuy police force in
his sworn statements 36 even gave the date of the commission of the
crime as "March 21, 1981." Moreover, the sketch 37 he made of the scene
is of little help. While indicated thereon are the alleged various blood
stains and their locations relative to the scene of the crime, there was
however no indication as to their quantity. This is rather unfortunate for

the prosecution because, considering that there are two versions

proferred on where the killing was carried out, the extent of blood stains
found would have provided a more definite clue as to which version is
more credible. If, as the version of the defense puts it, the killing
transpired inside the bedroom of the Gonzales spouses, there would have
been more blood stains inside the couple's bedroom or even on the
ground directly under it. And this circumstance would provide an
additional mooring to the claim of attempted rape asseverated by Fausta.
On the other hand, if the prosecution's version that the killing was
committed in the field near the linasan is the truth, then blood stains in
that place would have been more than in any other place.
The same sloppiness characterizes the investigation conducted by the
other authorities. Police Corporal Ben Sazon who claimed that accused
Augusto Gonzales surrendered to him on February 23, 1981 failed to
state clearly the reason for the "surrender." It would even appear that
Augusto "surrendered" just so he could be safe from possible revenge by
the victim's kins. Corporal Sazon likewise admitted that Augusto never
mentioned to him the participation of other persons in the killing of the
victim. Finally, without any evidence on that point, P.C. investigators of
the 321st P.C. Company who likewise conducted an investigation of the
killing mentioned in their criminal complaint 38 four other unnamed
persons, aside from the spouses Augusto and Fausta Gonzales, to have
conspired in killing Lloyd Peacerrada.
Now on the medical evidence. Dr. Rojas opined that it is possible that
the sixteen wounds described in the autopsy report were caused by two
or more bladed instruments. Nonetheless, he admitted the possibility that
one bladed instrument might have caused all. Thus, insofar as Dr. Rojas'
testimony and the autopsy report are concerned, Fausta Gonzales'
admission that she alone was responsible for the killing appears not at all
too impossible. And then there is the positive testimony of Dr. Rojas that
there were only five wounds that could be fatal out of the sixteen
described in the autopsy report. We shall discuss more the significance
of these wounds later.
It is thus clear from the foregoing that if the conviction of the appellant
by the lower courts is to be sustained, it can only be on the basis of the
testimony of Huntoria, the self-proclaimed eyewitness. Hence, a
meticulous scrutiny of Huntoria's testimony is compelling.

To recollect, Huntoria testified that he clearly saw all the accused,

including the appellant, take turns in hacking and stabbing Lloyd
Peacerrada, at about 8:00 o'clock in the evening, on February 21, 1981,
in the field near a "linasan" while he (Huntoria) stood concealed behind
a clump of banana trees some 15 to 20 meters away from where the
crime was being committed. According to him, he recognized the six
accused as the malefactors because the scene was then illuminated by
the moon. He further stated that the stabbing and hacking took about an
hour. But on cross-examination, Huntoria admitted that he could not
determine who among the six accused did the stabbing and/or hacking
and what particular weapon was used by each of them.
ATTY. GATON (defense counsel on cross-examination):
Q And you said that the moon was bright, is it correct?
A Yes, Sir.
Q And you would like us to understand that you saw the hacking and the
stabbing, at that distance by the herein accused as identified by you?
A Yes, sir, because the moon was brightly shining.
Q If you saw the stabbing and the hacking, will you please tell this
Honorable Court who was hacking the victim?
A Because they were surrounding Peacerrada and were in constant
movement, I could not determine who did the hacking.
ATTY. GATON:
The interpretation is not clear.
COURT:

determine who was hacking and who was stabbing. But I saw the
hacking and the stabbing blow.
ATTY. GATON:
Q You cannot positively identify before this Court who really hacked
Lloyd Peacerrada?
A Yes sir, I cannot positively tell who did the hacking.
Q And likewise you cannot positively tell this Honorable Court who did
the stabbing?
A Yes sir, and because of the rapid movements.
Q I noticed in your direct testimony that you could not even identify the
weapons used because according to you it was just flashing?
A Yes, sir. 39
(Emphasis supplied)
From his very testimony, Huntoria failed to impute a definite and
specific act committed, or contributed, by the appellant in the killing of
Lloyd Peacerrada.
It also bears stressing that there is nothing in the findings of the trial
court and of the Court of Appeals which would categorize the criminal
liability of the appellant as a principal by direct participation under
Article 17, paragraph 1 of the Revised Penal Code. Likewise, there is
nothing in the evidence for the prosecution that inculpates him by
inducement, under paragraph 2 of the same Article 17, or by
indispensable cooperation under paragraph 3 thereof. What then was the
direct part in the killing did the appellant perform to support the ultimate
punishment imposed by the Court of Appeals on him?

They were doing it rapidly.

A The moving around or the hacking or the "labu" or "bunu" is rapid. I
only saw the rapid movement of their arms, Your Honor, and I cannot

Article 4 of the Revised Penal Code provides how criminal liability is

incurred.
Art. 4. Criminal liability Criminal liability shall be incurred:

1. By any person committing a felony (delito) although the wrongful act

done be different from that which he intended.
2. By any person performing an act which would be an offense against
persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate or
ineffectual means.
(Emphasis supplied.)
Thus, one of the means by which criminal liability is incurred is through
the commission of a felony. Article 3 of the Revised Penal Code, on the
other hand, provides how felonies are committed.
Art. 3. Definition Acts and omissions punishable by law are felonies
(delitos).
Felonies are committed not only by means of deceit (dolo) but also by
means of fault (culpa).
There is deceit when the act is performed with deliberate intent; and
there is fault when the wrongful act results from imprudence,
negligence, lack of foresight, or lack of skill.
(Emphasis supplied.)
Thus, the elements of felonies in general are: (1) there must be an act or
omission; (2) the act or omission must be punishable under the Revised
Penal Code; and (3) the act is performed or the omission incurred by
means of deceit or fault.
Here, while the prosecution accuses, and the two lower courts both
found, that the appellant has committed a felony in the killing of Lloyd
Peacerrada, forsooth there is paucity of proof as to what act was
performed by the appellant. It has been said that "act," as used in Article
3 of the Revised Penal Code, must be understood as "any bodily
movement tending to produce some effect in the external world." 40 In
this instance, there must therefore be shown an "act" committed by the
appellant which would have inflicted any harm to the body of the victim
that produced his death.

Yet, even Huntoria, as earlier emphasized, admitted quite candidly that

he did not see who "stabbed" or who "hacked" the victim. Thus this
principal witness did not say, because he could not whether the appellant
"hacked or "stabbed" victim. In fact, Huntoria does not know what
specific act was performed by the appellant. This lack of specificity then
makes the case fall short of the test laid down by Article 3 of the Revised
Penal Code previously discussed. Furthermore, the fact that the victim
sustained only five fatal wounds out of the total of sixteen inflicted, as
adverted to above, while there are six accused charged as principals, it
follows to reason that one of the six accused could not have caused or
dealt a fatal wound. And this one could as well be the appellant,
granted ex gratia argumenti that he took part in the hacking and stabbing
alleged by Huntoria. And why not him? Is he not after all the oldest
(already sexagenarian at that time) and practically the father of the five
accused? And pursuing this argument to the limits of its logic, it is
possible, nay even probable, that only four, or three, or two of the
accused could have inflicted all the five fatal wounds to the exclusion of
two, three, or four of them. And stretching the logic further, it is
possible, nay probable, that all the fatal wounds, including even all the
non-fatal wounds, could have been dealt by Fausta in rage against the
assault on her womanhood and honor. But more importantly, there being
not an iota of evidence that the appellant caused any of the said five fatal
wounds, coupled with the prosecution's failure to prove the presence of
conspiracy beyond reasonable doubt, the appellant's conviction can not
be sustained.
Additionally, Huntoria's credibility as a witness is likewise tarnished by
the fact that he only came out to testify in October 1981, or eight long
months since he allegedly saw the killing on February 21, 1981. While
ordinarily the failure of a witness to report at once to the police
authorities
the
crime
he
had witnessed should not be taken against him and should not affect his
credibility, 41 here, the unreasonable delay in Huntoria's coming out
engenders doubt on his veracity. 42 If the silence of coming out an
alleged eyewitness for several weeks renders his credibility
doubtful, 43 the more it should be for one who was mute for eight
months. Further, Huntoria's long delay in reveiling what he allegedly
witnessed, has not been satisfactorily explained. His lame excuse that he
feared his life would be endangered is too pat to be believed. There is no
showing that he was threatened by the accused or by anybody. And if it

were true that he feared a possible retaliation from the accused, 44 why
did he finally volunteer to testify considering that except for the spouses
Augusto and Fausta Gonzales who were already under police custody,
the rest of the accused were then still free and around; they were not yet
named in the original information, 45 thus the supposed danger on
Huntoria's life would still be clear and present when he testified.

financial distress he was in. And Huntoria proved quite sagacious in his
choice of action for shortly after he volunteered and presented himself to
the victim's widow, he was taken under the protective wings of the
victim's uncle, one Dr. Biclar, who gave him employment and provided
lodging for his family. 48 Given all the foregoing circumstances, we can
not help but dismiss Huntoria as an unreliable witness, to say the least.

Moreover, Huntoria is not exactly a disinterested witness as portrayed by

the prosecution. He admitted that he was a tenant of the deceased. In
fact, he stated that one of the principal reasons why he testified was
because the victim was also his landlord.

At any rate, there is another reason why we find the alleged participation
of the appellant in the killing of Lloyd Peacerrada doubtful it is
contrary to our customs and traditions. Under the Filipino family
tradition and culture, aging parents are sheltered and insulated by their
adult children from any possible physical and emotional harm. It is
therefore improbable for the other accused who are much younger and at
the prime of their manhood, to summon the aid or allow the participation
of their 65-year old 49 father, the appellant, in the killing of their lone
adversary, granting that the victim was indeed an adversary. And
considering that the appellant's residence was about one kilometer from
the scene of the crime, 50 we seriously doubt that the appellant went there
just for the purpose of aiding his three robust male sons (Custodia Jr.,
Nerio, and Augusta), not to mention the brother and sister, Rogelio and
Fausta, in the killing of Lloyd Peacerrada, even if the latter were a
perceived enemy.

xxx xxx xxx

Q Now, Mr. Huntoria, why did it take you so long from the time you saw
the stabbing and hacking of Lloyd Peacerrada when you told Mrs.
Peacerrada about what happened to her husband?
A At first I was then afraid to tell anybody else but because I was
haunted by my conscience and secondly the victim was also my
landlord I revealed what I saw to the wife of the victim. 46
xxx xxx xxx
(Emphasis ours.)
At this juncture, it may be relevant to remind that under our
socioeconomic set-up, a tenant owes the very source of his livelihood, if
not existence itself, from his landlord who provides him with the land to
till. In this milieu, tenants like Huntoria are naturally beholden to their
landlords and seek ways and means to ingratiate themselves with the
latter. In this instance, volunteering his services as a purported
eyewitness and providing that material testimony which would lead to
the conviction of the entire family of Augusto Gonzales whose wife,
Fausta, has confessed to the killing of Lloyd Peacerrada, would, in a
perverted sense, be a way by which Huntoria sought to ingratiate himself
with the surviving family of his deceased landlord. This is especially so
because the need to get into the good graces of his landlord's family
assumed a greater urgency considering that he ceased to be employed as
early as May 1981. 47 Volunteering his services would alleviate the

Finally, while indeed alibi is a weak defense, 51 under appropriate

circumstances, like in the instant case in which the participation of the
appellant is not beyond cavil it may be considered as exculpatory. Courts
should not at once look with disfavor at the defense of alibi for if taken
in the light of the other evidence on record, it may be sufficient to acquit
the accused. 52
In fine, the guilt of the appellant has not been proven beyond reasonable
doubt.
WHEREFORE, the Decision of the Court of Appeals is REVERSED
and SET ASIDE and the appellant is hereby ACQUITTED. Costs de
oficio.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.

G.R. No. L-35748

Republic of the Philippines

SUPREME COURT
Manila

2. Finally, the court erred in not acquitting said defendant from the
information upon the ground of insufficient evidence, or at the least, of
reasonable doubt.

EN BANC

The following facts were proved at the hearing beyond a reasonable

doubt:

December 14, 1931

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
ROMANA SILVESTRE and MARTIN ATIENZA, defendantsappellants.
Teofilo Mendoza for appellants.
Attorney-General Jaranilla for appellee.

VILLA-REAL, J.:
Martin Atienza and Romana Silvestre appeal to this court from the
judgment of the Court of First Instance of Bulacan convicting them upon
the information of the crime of arson as follows: The former as principal
by direct participation, sentenced to fourteen years, eight months, and
one day of cadena temporal, in accordance with paragraph 2 of article
550, Penal Code; and the latter as accomplice, sentenced to six years and
one day ofpresidio mayor; and both are further sentenced to the
accessories of the law, and to pay each of the persons whose houses
were destroyed by the fire, jointly and severally, the amount set forth in
the information, with costs.
Counsel appointed by the court to defend the accused- appellants de
oficio, after delivering his argument, prayed for the affirmance of the
judgment with reference to the appellant Martin Atienza, and makes the
following assignments of error with reference to Romana Silvestre, to
wit:
1. The lower court erred in convincing Romana Silvestre as accomplice
of the crime charged in the information.

Romana Silvestre, wife of Domingo Joaquin by her second marriage,

cohabited with her codefendant Martin Atienza from the month of
March, 1930, in the barrio of Masocol, municipality of Paombong,
Province of Bulacan. On May 16, 1930, the complaining husband,
Domingo Joaquin, filed with the justice of the peace for that
municipality, a sworn complaint for adultery, supported by affidavits of
Gerardo Cabigao and Castor de la Cruz (Exhibit B). On the same date,
May 16, 1930, the said accused were arrested on a warrant issued by
said justice of the peace. On the 20th of the month, they were released
on bail, each giving a personal bond of P6,000. Pending the preliminary
investigation of the case, the two defendants begged the municipal
president of Paombong, Francisco Suerte Felipe, to speak to the
complaint, Domingo Joaquin, urging him to withdraw the complaint, the
two accused binding themselves to discontinue cohabitation, and
promising not to live again in the barrio of Masocol; Martin Atienza
voluntarily signed the promise (Exhibit A). The municipal president
transmitted the defendants' petition to the complaining husband, lending
it his support. Domingo Joaquin acceded to it, and on May 20, 1930,
filed a motion for the dismissal of his complaint. In consideration of this
petition, the justice of the peace of Paombong dismissed the adultery
case commenced against the accused, and cancelled the bonds given by
them, with the costs against the complainant.
The accused then left the barrio of Masocol and went to live in that of
Santo Nio, in the same municipality of Paombong.
About November 20, 1930, the accused Romana Silvestre met her son
by her former marriage, Nicolas de la Cruz, in the barrio of Santo Nio,
and under pretext of asking him for some nipa leaves, followed him
home to the village of Masocol, and remained there. The accused,
Martin Atienza, who had continued to cohabit with said Romana
Silvestre, followed her and lived in the home of Nicolas de la Cruz. On
the night of November 25, 1930, while Nicolas de la Cruz and his wife,

Antonia de la Cruz, were gathered together with the appellants herein

after supper, Martin Atienza told said couple to take their furniture out of
the house because he was going to set fire to it. Upon being asked by
Nicolas and Antonia why he wanted to set fire to the house, he answered
that that was the only way he could be revenged upon the people of
Masocol who, he said, had instigated the charge of adultery against him
and his codefendant, Romana Silvestre. As Martin Atienza was at that
time armed with a pistol, no one dared say anything to him, not even
Romana Silvestre, who was about a meter away from her codefendant.
Alarmed at what Martin Atienza had said, the couple left the house at
once to communicate with the barrio lieutenant, Buenaventura Ania, as
to what they had just heard Martin Atienza say; but they had hardly gone
a hundred arms' length when they heard cries of "Fire! Fire!" Turning
back they saw their home in flames, and ran back to it; but seeing that
the fire had assumed considerable proportions, Antonia took refuge in
the schoolhouse with her 1 year old babe in her arms, while Nicolas
went to the home of his parents-in-law, took up the furniture he had
deposited there, and carried it to the schoolhouse. The fire destroyed
about forty-eight houses. Tomas Santiago coming from the barrio
artesian well, and Tomas Gonzalez, teacher at the barrio school of
Masocol, and Felipe Clemente, an old man 61 years of age, coming from
their homes, to the house on fire, saw Martin Atienza going away from
the house where the fire started, and Romana Silvestre leaving
it.lawphil.net

Paombong, the complaining husband asked for the dismissal of the

complaint; that in pursuance of their promise, both of the accused went
to lived in the barrio of Santo Nio, in the same municipality; that under
pretext for some nipa leaves from her son by her former marriage,
Nicolas de la Cruz, who had gone to the barrio of Santo Nio, Romana
Silvestre followed him to his house in the barrio of Masocol on
November 23, 1930, and remained there; that her codefendant, Martin
Atienza followed her, and stayed with his coaccused in the same house;
that on the night of November 25, 1930, at about 8 o'clock, while all
were gathered together at home after supper, Martin Atienza expressed
his intention of burning the house as the only means of taking his
revenge on the Masocol resident, who had instigated Domingo Joaquin
to file the complaint for adultery against them, which compelled them to
leave the barrio of Masocol; that Romana Silvestre listened to her
codefendant's threat without raising a protest, and did not give the alarm
when the latter set fire to the house. Upon the strength of these facts, the
court below found her guilty of arson as accomplice.

As stated in the beginning, counsel appointed by this court to defend the

accused-appellant de oficio, prays for the affirmance of the judgment
appealed from with reference to defendant Martin Atienza. The facts
related heretofore, proved beyond a reasonable doubt at the hearing,
justify this petition of the de oficio counsel, and establish beyond a
reasonable doubt said defendant's guilt of arson as charged, as principal
by direct participation.

Now then, which previous or simultaneous acts complicate Romana

Silvestre in the crime of arson committed by her codefendant Martin
Atienza? Is it her silence when he told the spouses, Nicolas de la Cruz
and Antonia de la Cruz, to take away their furniture because he was
going to set fire to their house as the only means of revenging himself on
the barrio residents, her passive presence when Martin Atienza set fire to
the house, where there is no evidence of conspiracy or cooperation, and
her failure to give the alarm when the house was already on fire?

With respect to the accused-appellant Romana Silvestre, the only

evidence of record against her are: That, being married, she lived
adulterously with her codefendant Martin Atienza, a married man; that
both were denounced for adultery by Domingo Joaquin, Romana
Silvestre's second husband; that in view of the petition of the accused,
who promised to discontinue their life together, and to leave the barrio
of Masocol, and through the good offices of the municipal president of

Article 14 of the Penal Code, considered in connection with article 13,

defines an accomplice to be one who does not take a direct part in the
commission of the act, who does not force or induce other to commit it,
nor cooperates in the commission of the act by another act without
which it would not have been accomplished, yet cooperates in the
execution of the act by previous or simultaneous actions.

The complicity which is penalized requires a certain degree of

cooperation, whether moral, through advice, encouragement, or
agreement, or material, through external acts. In the case of the accusedappellant Romana Silvestre, there is no evidence of moral or material
cooperation, and none of an agreement to commit the crime in question.
Her mere presence and silence while they are simultaneous acts, do not

constitute cooperation, for it does not appear that they encouraged or

nerved Martin Atienza to commit the crime of arson; and as for her
failure to give the alarm, that being a subsequent act it does not make her
liable as an accomplice.
The trial court found the accused-appellant Martin Atienza guilty of
arson, defined and penalized in article 550, paragraph 2, of the Penal
Code, which reads as follows:
ART. 550. The penalty of cadena temporal shall be imposed upon:
xxx

xxx

xxx

2. Any person who shall set fire to any inhabited house or any building
in which people are accustomed to meet together, without knowing
whether or not such building or house was occupied at the time, or any
freight train in motion, if the damage caused in such cases shall exceed
six thousand two hundred and fiftypesetas.
While the defendant indeed knew that besides himself and his
codefendant, Romana Silvestre, there was nobody in De la Cruz's house
at the moment of setting fire to it, he cannot be convicted merely arson
less serious than what the trial court sentenced him for, inasmuch as that
house was the means of destroying the others, and he did not know
whether these were occupied at the time or not. If the greater seriousness
of setting fire to an inhabited house, when the incendiary does not know
whether there are people in it at the time, depends upon the danger to
which the inmates are exposed, not less serious is the arson committed
by setting fire to inhabited houses by means of another inhabited house
which the firebrand knew to be empty at the moment of committing the
act, if he did not know whether there were people or not in the others,
inasmuch as the same danger exists.
With the evidence produced at the trial, the accused-appellant Martin
Atienza might have been convicted of the crime of arson in the most
serious degree provided for in article 549 of the Penal Code, if the
information had alleged that at the time of setting fire to the house, the
defendant knew that the other houses were occupied, taking into account
that barrio residents are accustomed to retire at the tolling of the bell for
the souls in purgatory, i.e., at 8 o'clock at night.

For all the foregoing considerations, we are of the opinion and so hold,
that: (1) Mere passive presence at the scene of another's crime, mere
silence and failure to give the alarm, without evidence of agreement or
conspiracy, do not constitute the cooperation required by article 14 of
the Penal Code for complicity in the commission of the crime witnessed
passively, or with regard to which one has kept silent; and (2) he who
desiring to burn the houses in a barrio, without knowing whether there
are people in them or not, sets fire to one known to be vacant at the time,
which results in destroying the rest, commits the crime of arson, defined
and penalized in article 550, paragraph 2, Penal Code.
By virtue wherefore, the judgment appealed from is modified as follows:
It is affirmed with reference to the accused-appellant Martin Atienza,
and reversed with reference to the accused-appellant Romana Silvestre,
who
is
hereby
acquitted
with
one-half of the costs de oficio. So ordered.
Avancea, C.J., Johnson, Street, Malcolm,
Romualdez, and Imperial, JJ., concur.

Villamor, Ostrand,

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 152133

February 9, 2006

ROLLIE CALIMUTAN, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, ET AL., Respondents.
DECISION
CHICO-NAZARIO, J.:
In this Petition for Review on Certiorari under Rule 45 of the Revised
Rules of Court, petitioner Rollie Calimutan prays for the reversal of the

Decision of the Court of Appeals in CA-G.R. CR No. 23306, dated 29

August 2001,1affirming the Decision of the Regional Trial Court (RTC),
Branch 46, of Masbate, Masbate, in Criminal Case No. 8184, dated 19
November 1998,2 finding petitioner Calimutan guilty beyond reasonable
doubt of the crime of homicide under Article 249 of the Revised Penal
Code.
The Information3 filed with the RTC charged petitioner Calimutan with
the crime of homicide, allegedly committed as follows
That on or about February 4, 1996, in the morning thereof, at sitio
Capsay, Barangay Panique, Municipality of Aroroy, Province of
Masbate, Philippines within the jurisdiction of this Honorable Court, the
above-named accused with intent to kill, did then and there willfully,
unlawfully and feloniously attack, assault and throw a stone at PHILIP
CANTRE, hitting him at the back left portion of his body, resulting in
laceration of spleen due to impact which caused his death a day after.

paths with petitioner Calimutan and a certain Michael Bulalacao. Victim

Cantre was harboring a grudge against Bulalacao, suspecting the latter as
the culprit responsible for throwing stones at the Cantres house on a
previous night. Thus, upon seeing Bulalacao, victim Cantre suddenly
punched him. While Bulalacao ran away, petitioner Calimutan dashed
towards the backs of victim Cantre and witness Saano. Petitioner
Calimutan then picked up a stone, as big as a mans fist, which he threw
at victim Cantre, hitting him at the left side of his back. When hit by the
stone, victim Cantre stopped for a moment and held his back. Witness
Saano put himself between the victim Cantre and petitioner Calimutan,
and attempted to pacify the two, even convincing petitioner Calimutan to
put down another stone he was already holding. He also urged victim
Cantre and petitioner Calimutan to just go home. Witness Saano
accompanied victim Cantre to the latters house, and on the way, victim
Cantre complained of the pain in the left side of his back hit by the
stone. They arrived at the Cantres house at around 12:00 noon, and
witness Saano left victim Cantre to the care of the latters mother,
Belen.8

CONTRARY TO LAW.
Masbate, Masbate, September 11, 1996.
Accordingly, the RTC issued, on 02 December 1996, a warrant 4 for the
arrest of petitioner Calimutan. On 09 January 1997, however, he was
provisionally released5 after posting sufficient bailbond.6 During the
arraignment on 21 May 1997, petitioner Calimutan pleaded not guilty to
the crime of homicide charged against him.7
In the course of the trial, the prosecution presented three witnesses,
namely: (1) Dr. Ronaldo B. Mendez, a Senior Medico-Legal Officer of
the National Bureau of Investigation (NBI); (2) Belen B. Cantre, mother
of the victim, Philip Cantre; and (3) Rene L. Saano, companion of the
victim Cantre when the alleged crime took place. Their testimonies are
collectively summarized below.
On 04 February 1996, at around 10:00 a.m., the victim Cantre and
witness Saano, together with two other companions, had a drinking
spree at a videoke bar in Crossing Capsay, Panique, Aroroy, Masbate.
From the videoke bar, the victim Cantre and witness Saano proceeded
to go home to their respective houses, but along the way, they crossed

Victim Cantre immediately told his mother, Belen, of the stoning

incident involving petitioner Calimutan. He again complained of
backache and also of stomachache, and was unable to eat. By nighttime,
victim Cantre was alternately feeling cold and then warm. He was
sweating profusely and his entire body felt numb. His family would have
wanted to bring him to a doctor but they had no vehicle. At around 3:00
a.m. of the following day, 05 February 1996, Belen was wiping his son
with a piece of cloth, when victim Cantre asked for some food. He was
able to eat a little, but he also later vomited whatever he ate. For the last
time, he complained of backache and stomachache, and shortly
thereafter, he died.9
Right after his death, victim Cantre was examined by Dr. Conchita S.
Ulanday, the Municipal Health Officer of Aroroy, Masbate. The PostMortem Examination Report10 and Certification of Death,11 issued and
signed by Dr. Ulanday, stated that the cause of death of victim Cantre
was cardio-respiratory arrest due to suspected food poisoning. The body
of victim Cantre was subsequently embalmed and buried on 13 February
1996.

Unsatisfied with the findings of Dr. Ulanday, the Cantre family, with the
help of the Lingkod Bayan-Circulo de Abogadas of the ABS-CBN
Foundation, requested for an exhumation and autopsy of the body of the
victim Cantre by the NBI. The exhumation and autopsy of the body of
the victim Cantre was conducted by Dr. Ronaldo B. Mendez on 15 April
1996,12 after which, he reported the following findings
Body; fairly well-preserved with sign of partial autopsy; clad in white
Barong Tagalog and blue pants placed inside a wooden golden-brown
coffin and buried in a concrete niche.
Contused-abrasion, 2.3 x 1.0 cms., posterior chest wall, left side.
Hematoma, 16.0 x 8.0 cms., abdomen, along mid-line.
Hemoperitoneum, massive, clotte [sic].
Laceration, spleen.
Other visceral organ, pale and embalmed.
Stomach contains small amount of whitish fluid and other partially
digested food particles.
xxxx
CAUSE OF DEATH: TRAUMATIC INJURY OF THE ABDOMEN.
In his testimony before the RTC, Dr. Mendez affirmed the contents of
his exhumation and autopsy report. He explained that the victim Cantre
suffered from an internal hemorrhage and there was massive
accumulation of blood in his abdominal cavity due to his lacerated
spleen. The laceration of the spleen can be caused by any blunt
instrument, such as a stone. Hence, Dr. Mendez confirmed the
possibility that the victim Cantre was stoned to death by petitioner
Calimutan.13
To counter the evidence of the prosecution, the defense presented the
sole testimony of the accused, herein petitioner, Calimutan.

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

1996, he was walking with his house helper, Michael Bulalacao, on their
way to Crossing Capsay, Panique, Aroroy, Masbate, when they met with
the victim Cantre and witness Saano. The victim Cantre took hold of
Bulalacao and punched him several times. Petitioner Calimutan
attempted to pacify the victim Cantre but the latter refused to calm
down, pulling out from his waist an eight-inch Batangas knife and
uttering that he was looking for trouble, either "to kill or be killed." At
this point, petitioner Calimutan was about ten meters away from the
victim Cantre and was too frightened to move any closer for fear that the
enraged man would turn on him; he still had a family to take care of.
When he saw that the victim Cantre was about to stab Bulalacao,
petitioner Calimutan picked up a stone, which he described as
approximately one-inch in diameter, and threw it at the victim Cantre.
He was able to hit the victim Cantre on his right buttock. Petitioner
Calimutan and Bulalacao then started to run away, and victim Cantre
chased after them, but witness Saano was able to pacify the victim
Cantre. Petitioner Calimutan allegedly reported the incident to
akagawad of Barangay Panique and to the police authorities and sought
their help in settling the dispute between Bulalacao and the victim
Cantre. Bulalacao, meanwhile, refused to seek medical help despite the
advice of petitioner Calimutan and, instead, chose to go back to his
hometown.14
Petitioner Calimutan was totally unaware of what had happened to the
victim Cantre after the stoning incident on 04 February 1996. Some of
his friends told him that they still saw the victim Cantre drinking at a
videoke bar on the night of 04 February 1996. As far as he knew, the
victim Cantre died the following day, on 05 February 1996, because of
food poisoning. Petitioner Calimutan maintained that he had no personal
grudge against the victim Cantre previous to the stoning incident.15
On 19 November 1998, the RTC rendered its Decision, 16 essentially
adopting the prosecutions account of the incident on 04 February 1996,
and pronouncing that
It cannot be legally contended that the throwing of the stone by the
accused was in defense of his companion, a stranger, because after the
boxing Michael was able to run. While it appears that the victim was the
unlawful aggressor at the beginning, but the aggression already ceased

after Michael was able to run and there was no more need for throwing a
stone. The throwing of the stone to the victim which was a retaliatory act
can be considered unlawful, hence the accused can be held criminally
liable under paragraph 1 of Art. 4 of the Revised Penal Code.
The act of throwing a stone from behind which hit the victim at his back
on the left side was a treacherous one and the accused committed a
felony causing physical injuries to the victim. The physical injury of
hematoma as a result of the impact of the stone resulted in the laceration
of the spleen causing the death of the victim. The accused is criminally
liable for all the direct and natural consequences of this unlawful act
even if the ultimate result had not been intended. (Art. 4, Par. 1, Revised
Penal Code; People vs. Narciso, CA-G.R. No. 03532-CR, Jan. 13, 1964)
One is not relieved from criminal liability for the natural consequences
of ones illegal acts merely because one does not intend to produce such
consequences (U.S. vs. Brobst, 14 Phil. 310).
The crime committed is Homicide as defined and penalized under Art.
249 of the Revised Penal Code.
WHEREFORE, the Court finds and so holds that accused ROLLIE
CALIMUTAN is GUILTY beyond reasonable doubt of the crime of
Homicide defined and penalized under Art. 249 of the Revised Penal
Code with no mitigating or aggravating circumstance and applying the
Indeterminate Sentence Law hereby imposes the penalty of
imprisonment from EIGHT (8) YEARS of Prision Mayor as minimum,
to TWELVE (12) YEARS and ONE (1) DAY of Reclusion Temporal as
maximum, and to indemnify the heirs of Philip Cantre the sum of Fifty
Thousand (P50,000.00) Pesos as compensatory damages and the sum of
Fifty Thousand (P50,000.00) Pesos as moral damages, without
subsidiary imprisonment in case of insolvency.
Petitioner Calimutan appealed the Decision of the RTC to the Court of
Appeals. The Court of Appeals, in its Decision, dated 29 August
2001,17 sustained the conviction of homicide rendered by the RTC
against petitioner Calimutan, ratiocinating thus
The prosecution has sufficiently established that the serious internal
injury sustained by the victim was caused by the stone thrown at the

victim by the accused which, the accused-appellant does not deny. It was
likewise shown that the internal injury sustained by the victim was the
result of the impact of the stone that hit the victim. It resulted to a
traumatic injury of the abdomen causing the laceration of the victims
spleen.
This is clearly shown by the autopsy report prepared by Dr. Ronaldo
Mendez, a Senior Medico Legal Officer of the NBI after the exhumation
of the victims cadaver
The Court cannot give credence to the post mortem report prepared by
Municipal Health Officer Dr. Conchita Ulanday stating that the cause of
the victims death was food poisoning. Dr. Ulanday was not even
presented to testify in court hence she was not even able to identify
and/or affirm the contents of her report. She was not made available for
cross-examination on the accuracy and correctness of her findings.
Dr. Conchita Ulandays post mortem report cannot prevail over the
autopsy report (Exh. "C") of the Medico-Legal Officer of the NBI who
testified and was cross-examined by the defense.
Besides, if accused-appellant was convinced that the victim indeed died
of food poisoning, as reported by Dr. Conchita Ulanday, why did they
not present her as their witness to belie the report of the Medico-Legal
Officer of the NBI.
The trial courts evaluation of the testimony of Dr. Mendez is accorded
the highest respect because it had the opportunity to observe the conduct
and demeanor of said witness.
WHEREFORE, in view of the foregoing, the decision of the Regional
Trial Court of Masbate, Branch 46, finding accused-appellant guilty
beyond reasonable doubt of the crime of homicide is hereby
AFFIRMED.
The Court of Appeals, in its Resolution, dated 15 January 2002,18 denied
the Motion for Reconsideration filed by petitioner Calimutan for lack of
merit since the issues raised therein had already been passed and ruled
upon in its Decision, dated 29 August 2001.

Comes now petitioner Calimutan, by way of the present Petition for

Review on Certiorari, seeking (1) the reversal of the Decisions of the
RTC, dated 19 November 1998, and of the Court of Appeals, dated 29
August 2001, convicting him of the crime of homicide; and, (2)
consequently, his acquittal of the said crime based on reasonable doubt.
Petitioner Calimutan contended that the existence of the two autopsy
reports, with dissimilar findings on the cause of death of the victim
Cantre, constituted reasonable doubt as to the liability of petitioner
Calimutan for the said death, arguing that
x x x [I]t was Dra. Conchita Ulanday, Municipal Health Officer of
Aroroy, Masbate was the first physician of the government who
conducted an examination on the cadaver of the victim Philip Cantre
whose findings was that the cause of his death was due to food
poisoning while the second government physician NBI Medico Legal
Officer Dr. Ronaldo Mendez whose findings was that the cause of the
death was due to a traumatic injury of the abdomen caused by a
lacerated spleen and with these findings of two (2) government
physicians whose findings are at variance with each other materially, it
is humbly contended that the same issue raised a reasonable doubt on the
culpability of the petitioner.
As there are improbabilities and uncertainties of the evidence for the
prosecution in the case at bar, it suffices to reaise [sic] reasonable doubt
as to the petitioners guilt and therefore, he is entitled to acquittal
(People vs. Delmendo, G.R. No. 32146, November 23, 1981).19
In this jurisdiction, an accused in a criminal case may only be convicted
if his or her guilt is established by proof beyond reasonable doubt. Proof
beyond reasonable doubt requires only a moral certainty or that degree
of proof which produces conviction in an unprejudiced mind; it does not
demand absolute certainty and the exclusion of all possibility of error.20

Legal Officer Dr. Mendez, are vital pieces of evidence against petitioner
Calimutan. Dr. Mendez determined that the victim Cantre died of
internal hemorrhage or bleeding due to the laceration of his spleen. In
his testimony, Dr. Mendez clearly and consistently explained that the
spleen could be lacerated or ruptured when the abdominal area was hit
with a blunt object, such as the stone thrown by petitioner Calimutan at
the victim Cantre.
It bears to emphasize that Dr. Mendez was presented by the prosecution
as an expert witness, whose "competency and academic qualification
and background" was admitted by the defense itself. 21 As a Senior
Medico-Legal Officer of the NBI, Dr. Mendez is presumed to possess
sufficient knowledge of pathology, surgery, gynecology, toxicology, and
such other branches of medicine germane to the issues involved in a
case.22
Dr. Mendezs testimony as an expert witness is evidence, 23 and although
it does not necessarily bind the courts, both the RTC and the Court of
Appeals had properly accorded it great weight and probative value.
Having testified as to matters undeniably within his area of expertise,
and having performed a thorough autopsy on the body of the victim
Cantre, his findings as to the cause of death of the victim Cantre are
more than just the mere speculations of an ordinary person. They may
sufficiently establish the causal relationship between the stone thrown by
the petitioner Calimutan and the lacerated spleen of the victim Cantre
which, subsequently, resulted in the latters death. With no apparent
mistake or irregularity, whether in the manner by which Dr. Mendez
performed the autopsy on the body of the victim Cantre or in his
findings, then his report and testimony must be seriously considered by
this Court.
Moreover, reference to other resource materials on abdominal injuries
would also support the conclusion of Dr. Mendez that the stone thrown
by petitioner Calimutan caused the death of the victim Cantre.

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

One source explains the nature of abdominal injuries24 in the following

manner

Undoubtedly, the exhumation and autopsy report and the personal

testimony before the RTC of prosecution witness, NBI Senior Medico-

The skin may remain unmarked inspite of extensive internal injuries

with bleeding and disruption of the internal organs. The areas most

vulnerable are the point of attachment of internal organs, especially at

the source of its blood supply and at the point where blood vessels
change direction.
The area in the middle superior half of the abdomen, forming a triangle
bounded by the ribs on the two sides and a line drawn horizontally
through the umbilicus forming its base is vulnerable to trauma applied
from any direction. In this triangle are found several blood vessels
changing direction, particularly the celiac trunk, its branches (the
hepatic, splenic and gastric arteries) as well as the accompanying
veins. The loop of the duodenum, the ligament of Treitz and the pancreas
are in the retroperitoneal space, and the stomach and transverse colon
are in the triangle, located in the peritoneal cavity. Compression or blow
on the area may cause detachment, laceration, stretch-stress, contusion
of the organs (Legal Medicine 1980, Cyril H. Wecht et., p. 41).
As to injuries to the spleen, in particular,25 the same source expounds
that
The spleen usually suffers traumatic rupture resulting from the impact of
a fall or blow from the crushing and grinding effects of wheels of motor
vehicles. Although the organ is protected at its upper portion by the ribs
and also by the air-containing visceral organs, yet on account of
its superficiality and fragility, it is usually affected by trauma. x x x.
Certainly, there are some terms in the above-quoted paragraphs difficult
to comprehend for people without medical backgrounds. Nevertheless,
there are some points that can be plainly derived therefrom: (1) Contrary
to common perception, the abdominal area is more than just the waist
area. The entire abdominal area is divided into different triangles, and
the spleen is located in the upper triangle, bounded by the rib cage; (2)
The spleen and all internal organs in the same triangle are vulnerable to
trauma from all directions. Therefore, the stone need not hit the victim
Cantre from the front. Even impact from a stone hitting the back of the
victim Cantre, in the area of the afore-mentioned triangle, could rupture
the spleen; and (3) Although the spleen had already been ruptured or
lacerated, there may not always be a perceptible external injury to the
victim. Injury to the spleen cannot, at all times, be attributed to an
obvious, external injury such as a cut or bruise. The laceration of the

victim Cantres spleen can be caused by a stone thrown hard enough,

which qualifies as a nonpenetrating trauma26
Nonpenetrating Trauma. The spleen, alone or in combination with
other viscera, is the most frequently injured organ following blunt
trauma to the abdomen or the lower thoracic cage. Automobile
accidents provide the predominating cause, while falls, sledding and
bicycle injuries, and blows incurred during contact sports are frequently
implicated in children. x x x
The sheer impact of the stone thrown by petitioner Calimutan at the back
of the victim Cantre could rupture or lacerate the spleen an organ
described as vulnerable, superficial, and fragile even without causing
any other external physical injury. Accordingly, the findings of Dr.
Mendez that the victim Cantre died of internal hemorrhage from his
lacerated spleen, and the cause of the laceration of the spleen was the
stone thrown by petitioner Calimutan at the back of the victim Cantre,
does not necessarily contradict his testimony before the RTC that none
of the external injuries of the victim Cantre were fatal.
Based on the foregoing discussion, the prosecution was able to establish
that the proximate cause of the death of the victim Cantre was the stone
thrown at him by petitioner Calimutan. Proximate cause has been
defined as "that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, and
without which the result would not have occurred."27
The two other witnesses presented by the prosecution, namely Saano
and Belen Cantre, had adequately recounted the events that transpired on
04 February 1996 to 05 February 1996. Between the two of them, the
said witnesses accounted for the whereabouts, actions, and physical
condition of the victim Cantre during the said period. Before the
encounter with petitioner Calimutan and Bulalacao, the victim Cantre
seemed to be physically fine. However, after being hit at the back by the
stone thrown at him by petitioner Calimutan, the victim Cantre had
continuously complained of backache. Subsequently, his physical
condition rapidly deteriorated, until finally, he died. Other than being
stoned by petitioner Calimutan, there was no other instance when the
victim Cantre may have been hit by another blunt instrument which
could have caused the laceration of his spleen.

Hence, this Court is morally persuaded that the victim Cantre died from
a lacerated spleen, an injury sustained after being hit by a stone thrown
at him by petitioner Calimutan. Not even the post-mortem report of Dr.
Ulanday, the Municipal Health Officer who first examined the body of
the victim Cantre, can raise reasonable doubt as to the cause of death of
the victim Cantre. Invoking Dr. Ulandays post-mortem report, the
defense insisted on the possibility that the victim Cantre died of food
poisoning. The post-mortem report, though, cannot be given much
weight and probative value for the following reasons
First, a closer scrutiny of the words used by Dr. Ulanday in her postmortem report, as well as in the death certificate of the victim Cantre,
reveals that although she suspected food poisoning as the cause of death,
she held back from making a categorical statement that it was so. In the
post-mortem report, 28 she found that "x x x the provable (sic) cause of
death was due to cardio-respiratory arrest. Food poisoning must be
confirm (sic) by laboratory e(x)am." In the death certificate of the victim
Cantre, 29 she wrote that the immediate cause of death was "CardioRespiratory Arrest" and the antecedent cause was "Food Poisoning
Suspect." There was no showing that further laboratory tests were indeed
conducted to confirm Dr. Ulandays suspicion that the victim Cantre
suffered from food poisoning, and without such confirmation, her
suspicion as to the cause of death remains just that a suspicion.

07. Q: What gave you that suspicion of poisoning?

A: As there were no external signs of fatal injuries except that of the
contusion or abrasion, measuring as that size of a 25 centavo coin, I
based my suspicion from the history of the victim and from the police
investigation.
08. Q: You also mentioned in your Certification that there was no
internal hemorrhage in the cadaver. Did you open the body of the
cadaver?
A: As I have already stated sir, I did not conduct an exhaustive autopsy. I
made an incision on the abdomen and I explored the internal organs of
the cadaver with my hand in search for any clotting inside. But I found
none. I did not open the body of the cadaver.
09. Q: You mentioned about a contusion you have observed on the
cadaver. Where was it located?
A: On the left portion of his back, sir.
10. Q: Now, is it possible that if somebody be hit by a hard object on
that part of his body, his SPLEEN could be injured?

Second, Dr. Ulanday executed before the NBI a sworn statement 30 in

which she had explained her findings in the post-mortem report, to wit

A: Yes, sir. But that would depend on how strong or forceful the impact
was.

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

In contrast, Dr. Mendez described in his testimony before the RTC 31 how
he conducted the autopsy of the body of the victim Cantre, as follows

A: I did sir, but not as exhaustive as that done by the NBI Medico-legal.
06. Q: Now, what do you want to state regarding your certification on
the death of PHILIP B. CANTRE?
A: I stated in the certification and even in the Death Certificate about
"Food Poisoning". What I stated in the Death Certificate was that
CANTRE was a SUSPECTED victim of food poisoning. I didnt state
that he was a case of food poisoning. And in the Certification, I even
recommended that an examination be done to confirm that suspicion.

Q What specific procedure did you do in connection with the

exhumation of the body of the victim in this case?
A We opened the head, chest and the abdomen.
Q That was part of the autopsy you have conducted?
A Yes, sir.

Q Aside from opening the head as well as the body of the victim Philip
Cantre, what other matters did you do in connection therewith?
A We examined the internal organs.

Third, that the prosecution no longer presented Dr. Ulanday before the
RTC despite being included in its list of witnesses did not amount to a
willful suppression of evidence that would give rise to the presumption
that her testimony would be adverse to the prosecution if produced. 32 As
this Court already expounded in the case ofPeople v. Jumamoy33

Q What in particular internal organs you have examined?

A The brain, the heart, the lungs, the liver, the kidneys, the pancreas plus
the intestines.
xxxx
Q The cause of death as you have listed here in your findings is listed as
traumatic injury of the abdomen, will you kindly tell us Doctor what is
the significance of this medical term traumatic injury of the abdomen?
A We, medico-legal officers of the NBI dont do what other doctors do
as they make causes of death as internal hemorrhage we particularly
point to the injury of the body like this particular case the injury was at
the abdomen of the victim.
Q Will you tell as Doctor what particular portion of the abdomen of the
victim this traumatic injury is located?
A Along the midline but the damaged organ was at the left.
Q What particular organ are you referring to?
A The spleen, sir.
The difference in the extent of the examinations conducted by the two
doctors of the body of the victim Cantre provides an adequate
explanation for their apparent inconsistent findings as to the cause of
death. Comparing the limited autopsy conducted by Dr. Ulanday and her
unconfirmed suspicion of food poisoning of the victim Cantre, as
opposed to the exhaustive autopsy performed by Dr. Mendez and his
definitive finding of a ruptured spleen as the cause of death of the victim
Cantre, then the latter, without doubt, deserves to be given credence by
the courts.

The prosecution's failure to present the other witnesses listed in the

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

While this Court is in accord with the factual findings of the RTC and
the Court of Appeals and affirms that there is ample evidence proving
that the death of the victim Cantre was caused by his lacerated spleen, an
injury which resulted from being hit by the stone thrown at him by
petitioner Calimutan, this Court, nonetheless, is at variance with the
RTC and the Court of Appeals as to the determination of the appropriate
crime or offense for which the petitioner should have been convicted for.
Article 3 of the Revised Penal Code classifies felonies according to the
means by which they are committed, in particular: (1) intentional
felonies, and (2) culpable felonies. These two types of felonies are
distinguished from each other by the existence or absence of malicious
intent of the offender
In intentional felonies, the act or omission of the offender is malicious.
In the language of Art. 3, the act is performed with deliberate intent
(with malice). The offender, in performing the act or in incurring the
omission, has the intention to cause an injury to another. In culpable
felonies, the act or omission of the offender is notmalicious. The injury
caused by the offender to another person is "unintentional, it being
simply the incident of another act performed without malice." (People
vs. Sara, 55 Phil. 939). As stated in Art. 3, the wrongful act results from
imprudence, negligence, lack of foresight or lack of skill.34
In the Petition at bar, this Court cannot, in good conscience, attribute to
petitioner Calimutan any malicious intent to injure, much less to kill, the
victim Cantre; and in the absence of such intent, this Court cannot
sustain the conviction of petitioner Calimutan for the intentional crime
of homicide, as rendered by the RTC and affirmed by the Court of
Appeals. Instead, this Court finds petitioner Calimutan guilty beyond
reasonable doubt of the culpable felony of reckless imprudence
resulting in homicide under Article 365 of the Revised Penal Code.
Article 365 of the Revised Penal Code expressly provides for the
definition of reckless imprudence
Reckless imprudence consists in voluntarily, but without malice, doing
or failing to do an act from which material damage results by reason of
inexcusable lack of precaution on the part of the person performing or
failing to perform such act, taking into consideration his employment or

occupation, degree of intelligence, physical condition and other

circumstances regarding persons, time and place.
There are several circumstances, discussed in the succeeding paragraphs,
that demonstrate petitioner Calimutans lack of intent to kill the victim
Cantre, and conversely, that substantiate the view of this Court that the
death of victim Cantre was a result of petitioner Calimutans reckless
imprudence. The RTC and the Court of Appeals may have failed to
appreciate, or had completely overlooked, the significance of such
circumstances.
It should be remembered that the meeting of the victim Cantre and
witness Saano, on the one hand, and petitioner Calimutan and his
helper Bulalacao, on the other, was a chance encounter as the two parties
were on their way to different destinations. The victim Cantre and
witness Saano were on their way home from a drinking spree in
Crossing Capsay, while petitioner Calimutan and his helper Bulalacao
were walking from the market to Crossing Capsay. While the evidence
on record suggests that a running grudge existed between the victim
Cantre and Bulalacao, it did not establish that there was likewise an
existing animosity between the victim Cantre and petitioner
Calimutan.1avvphil.net
In both versions of the events of 04 February 1996 submitted by the
prosecution and the defense, it was the victim Cantre who was the initial
aggressor. He suddenly punched Bulalacao, the helper and companion of
petitioner Calimutan, when they met on the road. The attack of the
victim Cantre was swift and unprovoked, which spurred petitioner
Calimutan into responsive action. Given that this Court dismisses the
claim of petitioner Calimutan that the victim Cantre was holding a knife,
it does take into account that the victim Cantre was considerably older
and bigger, at 26 years of age and with a height of five feet and nine
inches, compared to Bulalacao, the boy he attacked, who was only 15
years old and stood at about five feet. Even with his bare hands, the
victim Cantre could have hurt Bulalacao. Petitioner Calimutan sought
only to protect Bulalacao and to stop the assault of the victim Cantre
against the latter when he picked up a stone and threw it at the victim
Cantre. The stone was readily available as a weapon to petitioner
Calimutan since the incident took place on a road. That he threw the
stone at the back of the victim Cantre does not automatically imply

treachery on the part of petitioner Calimutan as it is highly probable that

in the midst of the fray, he threw the stone rashly and impulsively, with
no regard as to the position of the victim Cantre. When the victim Cantre
stopped his aggression after being hit by the stone thrown by petitioner
Calimutan, the latter also desisted from any other act of violence against
the victim Cantre.
The above-described incident could not have taken more than just a few
minutes. It was a very brief scuffle, in which the parties involved would
hardly have the time to ponder upon the most appropriate course of
action to take. With this in mind, this Court cannot concur in the
declaration made by the Court of Appeals that petitioner Calimutan
threw the stone at the victim Cantre as a retaliatory act. It was evidently
a swift and spontaneous reaction to an unexpected and unprovoked
attack by the victim Cantre on Bulalacao. That Bulalacao was already
able to run away from the victim Cantre may have escaped the notice of
the petitioner Calimutan who, under the pressure of the circumstances,
was forced to act as quickly as possible.
The prosecution did not establish that petitioner Calimutan threw the
stone at the victim Cantre with the specific intent of killing, or at the
very least, of harming the victim Cantre. What is obvious to this Court
was petitioner Calimutans intention to drive away the attacker who was,
at that point, the victim Cantre, and to protect his helper Bulalacao who
was, as earlier described, much younger and smaller in built than the
victim Cantre.35
Granting that petitioner Calimutan was impelled by a lawful objective
when he threw the stone at the victim Cantre, his act was committed
with inexcusable lack of precaution. He failed to consider that a stone
the size of a mans fist could inflict substantial injury on someone. He
also miscalculated his own strength, perhaps unaware, or even
completely disbelieving, that he could throw a stone with such force as
to seriously injure, or worse, kill someone, at a quite lengthy distance of
ten meters.
Since it is irrefragable that the stone thrown by petitioner Calimutan at
the victim Cantre was the proximate cause of the latters death, despite
being done with reckless imprudence rather than with malicious intent,
petitioner Calimutan remains civilly liable for such death. This Court,

therefore, retains the reward made by the RTC and the Court of Appeals
to the heirs of the victim Cantre of the amount of P50,000.00 as civil
indemnity for his death and another P50,000.00 as moral damages.
WHEREFORE, the assailed Decision of the Court of Appeals in CAG.R. CR No. 23306, dated 29 August 2001, affirming the Decision of
the RTC in Criminal Case No. 8184, dated 19 November 1998, is hereby
MODIFIED. Petitioner Calimutan is found GUILTY beyond reasonable
doubt of reckless imprudence resulting in homicide, under Article 365 of
the Revised Penal Code, and is accordingly sentenced to imprisonment
for a minimum period of 4 months of arresto mayor to a maximum
period of two years and one day of prision correccional. Petitioner
Calimutan is further ORDERED to pay the heirs of the victim Cantre the
amount of P50,000.00 as civil indemnity for the latters death
and P50,000.00 as moral damages.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-1477

January 18, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JULIO GUILLEN, defendant-appellant.
Mariano A. Albert for appellant.
Office of the Solicitor General Felix Bautista Angelo and Solicitor
Francisco A. Carreon for appellee.
PER CURIAM, J.:
This case is before us for review of, and by virtue of appeal from, the
judgment rendered by the Court of First Instance of Manila in case No.
2746, whereby Julio Guillen y Corpus, or Julio C. Guillen, is found
guilty beyond reasonable doubt of the crime of murder and multiple

frustrated murder, as charged in the information, and is sentenced to the

penalty of death, to indemnify the of the deceased Simeon Valera (or
Barrela) in the sum of P2,000 and to pay the costs.
Upon arraignment the accused entered a plea of not guilty to the charges
contained in the information.
Then the case was tried in one of the branches of the Court of First
Instance of Manila presided over by the honorable Buenaventura
Ocampo who, after the submission of the evidence of the prosecution
and the defense, rendered judgment as above stated.
In this connection it should be stated that, at the beginning of the trial
and before arraignment, counsel de oficiofor the accused moved that the
mental condition of Guillen be examined. The court, notwithstanding
that it had found out from the answers of the accused to questions
propounded to him in order to test the soundness of his mind, that he
was not suffering from any mental derangement, ordered that Julio
Guillen be confined for Hospital, there to be examined by medical
experts who should report their findings accordingly. This was done,
and, according to the report of the board of medical experts, presided
over by Dr. Fernandez of the National Psychopathic Hospital, Julio
Guillen was not insane. Said report (Exhibit L), under the heading
"Formulation and Diagnosis," at pages 13 and 14, reads:

crime he committed and is equally decided to suffer for it in any manner

or form.
His version of the circumstances of the crime, his conduct and
conversation relative thereto, the motives, temptations and provocations
that preceded the act, were all those of an individual with a sound mind.
On the other hand he is an man of strong will and conviction and once
arriving at a decision he executes, irrespective of consequences and as in
this case, the commission of the act at Plaza Miranda.
What is of some interest in the personality of Julio C. Guillen is his
commission of some overt acts. This is seen not only in the present
instance, but sometime when an employee in la Clementina Cigar
Factory he engaged in a boxing bout Mr. Manzano, a Span-wanted to
abuse the women cigar makers, and felt it his duty to defend them. One
time he ran after a policeman with a knife in hand after being provoked
to a fight several times. He even challenged Congressman Nueno to a
fight sometime before when Mr. Nueno was running for a seat in the
Municipal Board of the City of Manila, after hearing him deliver one of
his apparently outspoken speeches.
All these mean a defect in his personality characterized by a weakness of
censorship especially in relation to rationalization about the
consequences of his acts.

FORMULATION AND DIAGNOSIS

Julio C. Guillen was placed under constant observation since admission.
There was not a single moment during his whole 24 hours daily, that he
was not under observation.

In view of the above findings it is our considered opinion that Julio C.

Guillen is not insane but is an individual with a personality defect which
in Psychiatry is termed, Constitutional Psychopathic Inferiority.
Final Diagnosis

The motive behind the commission of the crime is stated above. The
veracity of this motivation was determined in the Narcosynthesis. That
the narco-synthesis was successful was checked up the day after the test.
The narco-synthesis proved not only reveal any conflict or complex that
may explain a delusional or hallucinatory motive behind the act.
Our observation and examination failed to elicit any sign or symptom of
insanity in Mr. Julio C. Guillen. He was found to be intelligent, always
able to differentiate right from wrong, fully aware of the nature of the

Not insane: Constitutional Psychopathic Inferiority, without psychosis.

In view of the above-quoted findings of the medical board, and
notwithstanding the contrary opinion of one Dr. Alvarez, who was asked
by the defense to give his opinion on the matter, the court ruled that
Guillen, not being insane, could be tired, as he was tired, for the offenses
he committed on the date in question.

THE FACTS
Upon careful perusal of the evidence and the briefs submitted by counsel
for the accused, the Solicitor General and their respective memoranda,
we find that there is no disagreement between the prosecution and the
defense, as to the essential facts which caused the filing of the present
criminal case against this accused. Those facts may be stated as follows:
On the dates mentioned in this decision, Julio Guillen y Corpus,
although not affirmed with any particular political group, has voted for
the defeated candidate in the presidential elections held in 1946. Manuel
A. Roxas, the successful candidate, assumed the office of President of
the Commonwealth and subsequently President of the President of the
Philippine Republic. According to Guillen, he became disappointed in
President Roxas for his alleged failure to redeem the pledges and fulfill
the promises made by him during the presidential election campaign;
and his disappointment was aggravated when, according to him,
President Roxas, instead of looking after the interest of his country,
sponsored and campaigned for the approval of the so-called "parity"
measure. Hence he determined to assassinate the President.
After he had pondered for some time over the ways and means of
assassinating President Roxas, the opportunity presented itself on the
night of March 10, 1947, when at a popular meeting held by the Liberal
Party at Plaza de Miranda, Quiapo, Manila attended by a big crowd,
President Roxas, accompanied by his wife and daughter and surrounded
by a number of ladies and gentlemen prominent in government and
politics, stood on a platform erected for that purpose and delivered his
speech expounding and trying to convince his thousand of listeners of
the advantages to be gained by the Philippines, should the constitutional
amendment granting American citizens the same rights granted to
Filipino nationals be adopted.
Guillen had first intended to use a revolver for the accomplishment of
his purpose, but having lost said firearm, which was duly licensed, he
thought of two hand grenades which were given him by an American
soldier in the early days of the liberation of Manila in exchange for two
bottles of whisky. He had likewise been weighing the chances of killing
President Roxas, either by going to Malacaan, or following his
intended victim in the latter's trips to provinces, for instance, to Tayabas

(now Quezon) where the President was scheduled to speak, but having
encountered many difficulties, he decided to carry out his plan at the
pro-parity meeting held at Plaza de Miranda on the night of March 10,
1947.
On the morning of that he went to the house of Amando Hernandez
whom he requested to prepare for him a document (Exhibit B), in
accordance with their pervious understanding in the preceding afternoon,
when they met at the premises of the Manila Jockey Club on the
occasion of an "anti-parity" meeting held there. On account of its
materially in this case, we deem it proper to quote hereunder the
contents of said document. An English translation (Exhibit B-2) from its
original Tagalog reads:
FOR THE SAKE OF A FREE PHILIPPINES
I am the only one responsible for what happened. I conceived it, I
planned it, and I carried it out all by myself alone. It took me many days
and nights pondering over this act, talking to my own conscience, to my
God, until I reached my conclusion. It was my duty.
I did not expected to live long; I only had on life to spare. And had I
expected to lives to spare, I would not have hesitated either ton sacrifice
it for the sake of a principle which was the welfare of the people.
Thousands have died in Bataan; many more have mourned the loss of
their husbands, of their sons, and there are millions now suffering. Their
deeds bore no fruits; their hopes were frustrated.
I was told by my conscience and by my God that there was a man to be
blamed for all this: he had deceived the people, he had astounded them
with no other purpose than to entice them; he even went to the extent of
risking the heritage of our future generations. For these reasons he
should not continue any longer. His life would mean nothing as
compared with the welfare of eighteen million souls. And why should I
not give up my life too if only the good of those eighteen million souls.
These are the reasons which impelled me to do what I did and I am
willing to bear up the consequences of my act. I t matters not if others

will curse me. Time and history will show, I am sure, that I have only
displayed a high degree of patriotism in my performance of my said act.

mortal wounds caused by the fragments of the grenade (Exhibits F and

F-1) Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang.

Hurrah for a free Philippines.

Guillen was arrested by members of the Police Department about two

hours after the occurrence. It appears that one Angel Garcia, who was
one spectators at that meeting, saw how a person who was standing next
to him hurled an object at the platform and, after the explosion, ran away
towards a barber shop located near the platform at Plaza de Miranda.
Suspecting that person was the thrower of the object that exploded,
Garcia went after him and had almost succeeded in holding him, but
Guillen offered stiff resistance, got loose from Garcia and managed to
escape. Garcia pursued him, but some detectives, mistaking the former
for the real criminal and the author of the explosion, placed him under
arrest. In the meantime, while the City Mayor and some agents of the
Manila Police Department were investigating the affair, one Manuel
Robles volunteered the information that the person with whom Angel
Garcia was wrestling was Julio Guillen; that he (Manuel Robles) was
acquainted with Julio Guillen for the previous ten years and had seen
each other in the plaza a few moments previous to the explosion.

Cheers for the happiness of every Filipino home.

May God pity on me.
Amen.

JULIO C. GUILLEN
A copy (Exhibit B-1) of the original in Tagalog (Exhibit B), made at the
request of Guillen by his nephew, was handed to him only at about 6
o'clock in the afternoon of March 10, 1947, for which reason said
Exhibit B-1 appears unsigned, because he was in a hurry for that
meeting at Plaza de Miranda.
When he reached Plaza de Miranda, Guillen was carrying two hand
grenades concealed in a paper bag which also contained peanuts. He
buried one of the hand grenades (Exhibit D), in a plant pot located close
to the platform, and when he decided to carry out his evil purpose he
stood on the chair on which he had been sitting and, from a distance of
about seven meters, he hurled the grenade at the President when the
latter had just closed his speech, was being congratulated by
Ambassador Romulo and was about to leave the platform.
General Castaeda, who was on the platform, saw the smoking, hissing,
grenade and without losing his presence of mind, kicked it away from
the platform, along the stairway, and towards an open space where the
general thought the grenade was likely to do the least harm; and,
covering the President with his body, shouted to the crowd that
everybody should lie down. The grenade fell to the ground and exploded
in the middle of a group of persons who were standing close to the
platform. Confusion ensued, and the crowd dispersed in a panic. It was
found that the fragments of the grenade had seriously injured Simeon
Varela (or Barrela ) who died on the following day as the result of

The police operatives interrogated Garcia and Robles, and Julio Guillen
was, within two hours after the occurrence, found in his home at 1724
Juan Luna Street, Manila, brought to the police headquarters and
identified by Angel Garcia, as the same person who hurled towards the
platform the object which exploded and whom Garcia tried to hold when
he was running away.
During the investigation conducted by the police he readily admitted his
responsibility, although at the same time he tried to justify his action in
throwing the bomb at President Roxas. He also indicated to his captors
the place where he had hidden his so called last will quoted above and
marked Exhibit B, which was then unsigned by him and subsequently
signed at the police headquarters.
Re-enacting the crime (Exhibit C), he pointed out to the police where he
had buried (Exhibit C-1) the other hand grenade (Exhibit D), and, in the
presence of witnesses he signed a statement which contained his answers
to question propounded to him by Major A. Quintos of the Manila
Police, who investigated him soon after his arrest (Exhibit E). From a
perusal of his voluntary statement, we are satisfied that it tallies exactly

with the declarations and made by him on the witness stand during the
trial of this case.
THE ISSUES
In the brief submitted by counsel de oficio for this appellant, several
errors are assigned allegedly committed by the trial court, namely: first,
"in finding the appellant guilty of murder for the death of Simeon
Varela"; second, "in declaring the appellant guilty of the complex crime
of murder and multiple frustrated murder"; third, "in applying subsection 1 of article 49 of the Revised Penal Code in determining the
penalty to be imposed upon the accused"; and fourth, "in considering the
concurrence of the aggravating circumstances of nocturnity and of
contempt of public authorities in the commission of crime."
The evidence for the prosecution, supported by the brazen statements
made by the accused, shows beyond any shadow of doubt that, when
Guillen attended that meeting, carrying with him two hand grenades, to
put into execution his preconceived plan to assassinate President Roxas,
he knew fully well that, by throwing one of those two hand grenades in
his possession at President Roxas, and causing it to explode, he could
not prevent the persons who were around his main and intended victim
from being killed or at least injured, due to the highly explosive nature
of the bomb employed by him to carry out his evil purpose.
Guillen, testifying in his own behalf, in answer to questions propounded
by the trial judge (page 96 of transcript) supports our conclusion. He
stated that he performed the act voluntarily; that his purpose was to kill
the President, but that it did not make any difference to him if there were
some people around the President when he hurled that bomb, because
the killing of those who surrounded the President was tantamount to
killing the President, in view of the fact that those persons, being loyal to
the President being loyal to the President, were identified with the latter.
In other word, although it was not his main intention to kill the persons
surrounding the President, he felt no conjunction in killing them also in
order to attain his main purpose of killing the President.
The facts do not support the contention of counsel for appellant that the
latter is guilty only of homicide through reckless imprudence in regard
to the death of Simeon Varela and of less serious physical injuries in

regard to Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang,
and that he should be sentenced to the corresponding penalties for the
different felonies committed, the sum total of which shall not exceed
three times the penalty to be imposed for the most serious crime in
accordance with article 70 in relation to article 74 of the Revised Penal
Code.
In throwing hand grenade at the President with the intention of killing
him, the appellant acted with malice. He is therefore liable for all the
consequences of his wrongful act; for in accordance with article 4 of the
Revised Penal Code, criminal liability is incurred by any person
committing felony (delito) although the wrongful act done be different
from that which he intended. In criminal negligence, the injury caused to
another should be unintentional, it being simply the incident of another
act performed without malice. (People vs. Sara, 55 Phil., 939.) In the
words of Viada, "in order that an act may be qualified as imprudence it is
necessary that either malice nor intention to cause injury should
intervene; where such intention exists, the act should qualified by the
felony it has produced even though it may not have been the intention of
the actor to cause an evil of such gravity as that produced.' (Viada's
Comments on the Penal Code, vol. 7, 5th ed., p.7.) And, as held by this
Court, a deliberate intent to do an unlawful act is essentially inconsistent
with the idea of reckless imprudence. (People vs. Nanquil, 43 Phil.,
232.) Where such unlawful act is wilfully done, a mistake in the identity
of the intended victim cannot be considered as reckless imprudence.
(People vs. Gona, 54 Phil., 605)
Squarely on the point by counsel is the following decision of the
Supreme Court of Spain:
Cuestion 62. Se presenta A, a las ocho de la noche, en el estanco de B a
comprar tabaco, y habiendose negado este a darselo al fiado, se retira a
quel sin mediar entre ambos disputa alguna; pero; trnscurrido un cuarto
de hora, hallandose el estanquero despachando a C, se oye la detonacion
de un arma de fuego disparada por A desde la calle, quedando muertos
en el acto C y el estanquero; supuesta la no intencion en A de matar a C
y si solo al estanquero, cabe calificar la muerte de este de homicidio y la
de c de imprudencia temeraria? La Sala de lo Criminal de la
Auudiencia de Granada lo estimo asi, y condeno al procesado a catorse
anos de reclusion por el homivcidio y a un ao de prision correctional

por la imprudencia. Aparte de que la muerte del estanquero debio

calificarse de assesinato y no de homicidio, por haberse ejecutado con
aleviosa. es evidente que la muerte de C, suponiendo que no se
propusiera ejecutaria el procesado, no pudo calificarse de imprudencia
teme raria, sino que tambien debio declararsele responsable de la misma,
a tenor de lo puesto en este apartado ultimo del articulo; y que siendo
ambas muertes producidas por un solo hecho, o sea por un solo disparo,
debio imponerse al reo la pena del delito de asesinato en el grado
maximo, a tenor de lo dispuesto en el art. 90 del Codigo, o sea la pena de
muerte. Se ve, pues, claramente que en el antedicha sentencia, aparte de
otros articulos del Codigo, se infringio por la Sala la disposicion de este
apartado ultimo del articulo muy principalmente, y asi lo declaro el
Tribunal Supremo en S. de 18 junio de 1872. (Gaceta de 1,0 de agosto.)
(I Viada, 5th Ed., p. 42.)
Article 48 of the Revised Penal Code provides as follows:
Art. 48. Penalty for Complex Crimes. When a single act constitutes
two or more grave or less grave felonies, or when an offense is a
necessary means for committing the other, the penalty for the most
serious crime shall be imposed, the same to be applied in its maximum
period.
We think it is the above-quoted article and not paragraph 1 of article 49
that is applicable. The case before us is clearly governed by the first
clause of article 48 because by a single act, that a throwing highly
explosive hand grenade at President Roxas, the accused committed two
grave felonies, namely: (1) murder, of which Simeon Varela was the
victim; and (2) multiple attempted murder, of which President Roxas,
Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang were the
injured parties.
The killing of Simeon Varela was attended by the qualifying
circumstance of treachery. In the case of People vs. Mabug-at, supra,
this court held that the qualifying circumstance of treachery may be
properly considered, even when the victim of the attack was not the one
whom the defendant intended to kill, if it appears from the evidence that
neither of the two persons could in any manner put up defense against
the attack, or become aware of it. In the same case it was held that the
qualifying circumstance of premeditation may not be properly taken into

the account when the person whom the defendant proposed to kill was
different from the one who became his victim.
There can be no question that the accused attempted to kill President
Roxas by throwing a hand grenade at him with the intention to kill him,
thereby commencing the commission of a felony by over acts, but he did
not succeed in assassinating him "by reason of some cause or accident
other than his own spontaneous desistance." For the same reason we
qualify the injuries caused on the four other persons already named as
merely attempted and not frustrated murder.
In this connection, it should be stated that , although there is abundant
proof that , in violation of the provisions of article 148 of the Revised
Penal Code, the accused Guillen has committed among others the
offense of assault upon a person in authority, for in fact his efforts were
directed towards the execution of his main purpose of eliminating
President Roxas for his failure to redeem his electoral campaign
promises, by throwing at him in his official capacity as the Chief
Executive of the nation the hand grenade in question, yet, in view of the
appropriate allegation charging Guillen with the commission of said
offense, we shall refrain making a finding to that effect.
The complex crimes of murder and multiple attempted murder
committed by the accused with the single act of throwing a hand grenade
at the President, was attended by the various aggravating circumstances
alleged in the information, without any mitigating circumstance. But we
do not deem it necessary to consider said aggravating circumstances
because in any event article 48 of the Revised Penal Code above-quoted
requires that the penalty for the most serious of said crimes be applied in
its maximum period. The penalty for murder is reclusion temporalin its
maximum period to death. (Art. 248.)
It is our painful duty to apply the law and mete out to the accused the
extreme penalty provided by it upon the facts and circumstances
hereinabove narrated.
The sentence of the trial court being correct, we have no alternative but
to affirm it, and we hereby do so by a unanimous vote. The death
sentence shall be executed in accordance with article 81 of the Revised
Penal Code, under authority of the Director of Prisons, on such working

day as the trial court may fix within 30 days from the date the record
shall have been remanded. It is so ordered.

After trial, Judge Rodrigo V. Cosico found the following facts to have
been established:

Moran, C.J., Ozaeta, Paras, Pablo, Bengzon, Padilla, Tuason,

Montemayor, Reyes and Torres, JJ., concur.

... On the evening of May 28, 1983, which was a fiesta day, while
Rosette Pagayunan, a teacher at the San Esteban Elementary School,
was preparing to cook food at her house, she found out that there was no
water. Accordingly, Mrs. Pagayunan instructed her two (2) children,
Babette and Nicolas, to get water from the faucet of the accused
Saturnino Rey, also a public school teacher. At that time, Mr. Rey's
faucet was allegedly the only one with water at the neighborhood
because of the long drought. Nicolas was then a nineteen-year old fourth
year high school student at the Colegio de la Purisima Concepcion,
Roxas City. Babette and Nicolas proceeded towards the house of Mr.
Rey to get water. Babette and Nicolas found Roban Rey, son of the
accused, near the faucet. Roban was sitting atop the steps of the kitchen
stairway talking with Nicolas. While Nicolas was standing beside the
faucet waiting for his pail to be filled with water, he was shot twice by
Saturnino Rey from the window of his bedroom which was about four
(4) meters away. The shooting was witnessed by Roban Rey and Babette
Pagayunan, who was about three (3) meters away from the faucet. After
he was hit, Nicolas said to Roban: "I was hit." Soon after, Nicolas fell in
front of Roban Roban went up their house and told Saturnino Rey:
"Daddy you hit Colas." Babette went home and reported the shooting
incident to her mother who fainted. The Pagayunan sisters and their
group went to the place to get the body of Nicolas, who was taken to the
Medicare Hospital in Pilar, Capiz, where he was given a first-aid
treatment. Thereafter, Nicolas was taken to Roxas City but died before
reaching the hospital.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 80089 April 13, 1989
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SATURNINO REY, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Julius L. Abela for defendant-appellant.

PADILLA, J.:
Saturnino Rey was charged with the crime of Murder before the
Regional Trial Court of Capiz, committed as follows:
That on or about 8:40 o'clock in the evening of May 28, 1983, at
Poblacion, Pilar, Capiz, Philippines, within the jurisdiction of this Court,
the above-named accused armed with a .45 caliber pistol, did then and
there, wilfully, unlawfully and feloniously shoot one NICOLAS
PAGAYUNAN in a sudden and in unexpected manner, thereby inflicting
upon the latter a gunshot wound above the nipple and sternum, right,
thru and thru which caused his death thereafter; 1

On the morning of May 29, 1983, Patrolmen Jose Ballera and Hanzel
Villareal conducted an investigation at the place of the shooting incident
and found an empty shell (Exh. C) below the window of the room of
Saturnino Rey. During the investigation, Roban Rey, in the presence of
the police investigators and Romeo Bacalocos, pointed to the direction
of the window of the room of his father, Saturnino Rey, as the place
where the firing came from. 2
The trial court found the defendant-appellant guilty, as charged, and
sentenced him to suffer the penalty ofreclusion perpetua to indemnify
the heirs of the victim in the amount of P30,000.00, to pay the heirs of

the victim the amount of P50,000.00 for moral damages and to pay the
costs.
From this judgment, the accused Saturnino Rey appealed. His counsel
assails the trial court for completely believing the testimony of the
prosecution witnesses. Counsel points to certain facts and circumstances
of weight and substance which the trial court allegedly overlooked,
misapplied or misinterpreted, and which, if considered, will materially
alter the result, to wit: "1) the fact that it was summer and the water
system connections, particularly those in the higher level of the town,
were not functioning; 2) the fact that the water faucet at the backyard of
the accused-appellant was not functioning, not merely because the water
pressure was too weak for the faucet to function but also because the
water connection had been disconnected (t.s.n., p. 283); 3) the fact that
the houses of both the deceased and the accused-appellant and their
immediate neighborhood are on the same higher level of the town; 4) the
fact that the household of the accused-appellant were getting their water
supply from Martin Cunada, their nearest neighbor, because he had a
water pump, several water storage tanks, and a well; 5) the fact that the
immediate neighbors of the Pagayunans had wells, water storage tanks,
as well as water system connections and some of their neighbors were
relatives and close friends of the Pagayunans; 6) the fact that the
Pagayunans were known and seen to obtain their water supply from
these immediate neighbors; 7) the fact that the Pagayunans (who were
relatively new in the neighborhood) had never drawn water from the
faucet of the accused-appellant; 8) the fact that the house of the accusedappellant was at least 120 meters away from the house of the deceased;
9) the fact that the only access to the accused-appellant's bedroom
window from the outside was through the shuttered gate of the wireenclosed vegetable garden; 10) the fact that the six-foot-high chicken
and barb-wire fence of the vegetable garden was covered with climbing
plants, thereby blocking the view from the windows as well as from the
outside into the bedroom; 11) the fact that the accused- appellant's house
was of the bungalow type and the sill of the bedroom window was only
about 3.5 feet from the ground; 12) the fact that the deceased was found
just below or near the bedroom window and within the enclosed
vegetable garden, not only by members of the accused-appellant's family
but also by Martin Cunada, a friend and barkadaof the deceased, who
happened to be passing by just after gunfire sounded; 13) the fact that
Martin Cunada, who stayed for some five minutes at the scene of the

incident right after the shooting, did not see Babette Pagayunan or any
other member of the deceased's family anywhere in the vicinity; 14) the
fact that after the shooting only Babette Pagayunan of the Pagayunan
household was seen with the deceased and the Rey children at the
Medicare Hospital and in Roxas City; 15) the fact that none of the four
water containers the deceased allegedly brought with him to the
accused-appellant's backyard faucet was ever found or seen before,
during, or after the shooting; 16) the fact that except for Dr. Buenvenida,
all the other four (4) witnesses of the prosecution concocted some
material portions of their testimonies; 17) the fact that in a small rural
town in the interior the inhabitants sup and sleep early; and 18) the fact
that it was the night of the town fiesta and older folks tend to be more
security-conscious." 3
The appeal is without merit. The circumstances enumerated by the
counsel for the appellant are of little importance because the accusedappellant, Saturnino Rey, had admitted having fired the shot that killed
the deceased Nicolas Pagayunan. His testimony in court reads, as
follows:
Q Now, will you please inform the Honorable Court at about 8:40 in the
night of May 28, 1983 where you were and what you were doing.
A I was inside my room of my house.
Q And what were you doing.
A I was lying down.
Q Did you have any companion in your room that night and at that time?
A Yes, sir.
Q Inform the court who were your companions.
A My child aging four years of age with my second wife.
Q What happened while you were in your room that night and that time
with your child?

A There was a person who opened my window, the window of my room

where I was lying down.

Q And did you see anybody to whom or at whom you fired your pistol?
A The first shot that I fired was upward, on the air.

Q Now do you know who was that person who opened the window of
your room where you were, lying down?

Q My question to you is, did you see any person outside the window?

A No, sir. At first I did not know.

A Yes, sir.

Q Will you please describe to the Honorable Court the room where you
were staying in and the window which was opened?

Q Were you able to discern the facial features of the person you saw at
the window?

A The frontage of my house is facing (witness pointing to the western

direction). The elevation of the flooring is one foot. The height of the
window from the floor is this high (witness referring to the window of
the courtroom estimated to be 2 1/2 feet).

ATTY. PATRICIO:
Objection, your Honor.
COURT:

Q After you noticed that a person opened your window, the window of
your bedroom, what happened?

All right, reform.

A I felt for my pistol.

ATTY. ABELA:

Q What happened after that?

Q How well did you see the person you saw at your window?

A I sat on the bed and asked, Who are you?'

A Silhouette.

Q And did you receive an answer after asking who was that person?

Q Will you be able to recognize the person you saw at your window that
night?

A No, sir.
A No, sir.
Q What happened after you received no answer?
A I fired a shot.

Q And what was the person you saw at your window doing when you
fired the shot?

Q How many times did you fire your pistol?

A You mean the first shot?

A Twice.

Q The first shot what was the person doing.?

Q By the way, how wide was that window in your room?

A After he pushed the shutter of the window he put his hand down.

A About 1 1/2 meters wide.

Q And at that time you fired the second shot what was the man doing.?

A I was looking at him and he had the action of drawing something and
that was the time I fired the second shot.
Q By the way how close was the man to your window that night?
A Just like this, from myself up to Atty. Abela (distance estimated to be
1 1/2 meters).
Q My question to you is, how close was that man to the window of your
room?
A He was right at the window.
Q And what part of the body of that man can be seen by you?
A From the waist.
Q And how far were you seated on your bed, how far was your bed from
the wall of the window?
A About one foot.
Q What happened after you fired the second shot directed at that man at
your window?
A I gave out an alarm to my children. 4
Having invoked self-defense, it was incumbent upon the defendantappellant to prove by clear and convincing evidence the fact that he
acted in self-defense. The defendant must rely on the strength of his own
evidence and not on the weakness of that of the prosecution, for even if
it were weak, it could not be disbelieved after the accused himself
admitted the killing. 5 In this regard, defendant-appellant failed to
discharge the burden reposed upon him by law to prove self-defense.
The trial court found that the testimony of the defendant-appellant gave
evasive and ambiguous answers before the court. 6 We have examined
the record of the case and we find no cogent reason to disturb said
findings of the trial court. The witnesses for the prosecution had no evil
motive to testify falsely against the appellant.

Besides, defendant-appellant's testimony, even if true, does not establish

a case of self-defense. There is no evidence of unlawful aggression on
the part of the deceased. The defendant-appellant merely testified that he
saw a person open the window of his bedroom and when he inquired
who the person was and received no answer, he fired a shot into the air
then, when said person lifted his right arm chest high, 7 he fired the
second shot. The interval between the two shots was only about three (3)
to five (5) seconds. 8 For unlawful aggression to be appreciated in selfdefense, there must be an actual sudden and unexpected attack or
imminent danger thereof, and not merely a threatening or intimidating
attitude. 9 The raising of the right arm chest high alone by an unarmed
person cannot be considered unlawful aggression. Absent unlawful
aggression on the part of the deceased, there cannot be self-defense on
the part of the accused.
The defendant-appellant also failed to rebut the presumption that the
shooting was done with criminal intention. His conduct after the
shooting incident was inconsistent with the conduct of a person who had
innocently shot a person by accident. It would appear that he did not do
anything to help his victim who was lying down on the ground, bleeding
and moaning. He did not go down from his house even after finding that
the person he had shot was Nicolas Pagayunan. Instead, he uttered
curses. 10 Then, very early the next morning, at about 5:30 o'clock, he left
his house and stayed with his brother in a neighboring
municipality, 11 and did not go home even to help the police in their
investigation. 12 Flight is an indication of a guilty mind.
The defendant-appellant also contends that treachery or alevosia was not
charged in the information filed against him, or proven by the evidence
presented by the prosecution at the trial.
The contention is without merit. The information filed in this case
specifically stated that the accused, Saturnino Rey, armed with a.45
caliber pistol, wilfully, unlawfully and feloniously shot Nicolas
Pagayunan "in a sudden and unexpected manner." This is sufficient
allegation of treachery because a sudden and unexpected attack, without
the slightest provocation on the person of the one attacked is the essence
of treachery or alevosia. It is not necessary that the information should
use specifically the word "alevosia" or treachery. It is sufficient if the

information alleges facts in clear and explicit language which would

show treachery or alevosia without the use of the specific word. 13

A The interval was only seconds.

Q About two seconds?

Treachery in the shooting of Nicolas Pagayunan was established by the

testimony of Babette Pagayunan who declared that the accused-appellant
suddenly and without warning shot the deceased as the latter was
waiting for his pail to be filled with water and while talking to the son of
the accused-appellant. The attack was sudden, unexpected, without
warning, and without giving the victim an opportunity to defend himself
or repel the aggression. In fact, the deceased did not sense any danger
that he would be shot by the defendant-appellant as there was no
previous grudge or misunderstanding between them.
The claim of the defendant-appellant that he had fired a warning shot
into the air appears to be an afterthought. Babette Pagayunan
categorically declared that her brother, Nicolas Pagayunan, was hit on
the first shot. Her testimony, on cross examination, reads as follows:
Q How many shots did Saturnino Rey the accused, direct to your
brother?
A Two shots were delivered by Saturnino Rey. The first shot hit my
brother. I did not know whether the second shot hit my brother. After the
first shot my brother staggered towards Roban. 14

A Three seconds or more.

Q But it could not be more than five seconds, right?
A No, sir. 16
As the People's counsel observed, if the version of the defendantappellant were true, the empty shell would have fallen near the
defendant-appellant's bed, inside his room, and not outside the house
where Pat. Hanzel Villareal found it; and that the first shot would have
hit a part of the house.
The trial court, therefore, correctly found the offense committed by the
defendant-appellant to be murder, qualified as it was by treachery.
WHEREFORE, the judgment appealed from is AFFIRMED With costs
against the appellant.
SO ORDERED.

Besides, the shots were fired in rapid succession so that the first shot
could not serve as a warning shot. Babette Pagayunan stated:

Melencio-Herrera, J., (Chairman), Paras, Sarmiento, Regalado, JJ,

With reservations as to the penalty only consistent with my dissent in P.
vs. Millora.

Q How long after the first shot did you hear the second shot?

G.R. No. 5126, U.S. v. Apostol, 14 Phil. 92

A Seconds only. The interval was seconds.

Q So that the second shot came right after the first shot?

Republic
SUPREME
Manila

A Yes, sir. 15

EN BANC

The defendant-appellant, Saturnino Rey, also testified, as follows:

September 2, 1909

Q You testified a while ago that you fired two shots. How long after you
fired the first shot that you also fired the second shot?

G.R.
THE

of

the

No.
UNITED

Philippines
COURT

5126
STATES, plaintiff-appellee,

vs.
CATALINO APOSTOL, defendant-appellant.
appellant.

ARELLANO, C.J.:

replied that they knew nothing, the former set fire to the house and they
jumped out of it; that the witness and two companions lived in the
house; that it was situated in an uninhabited place, surrounded by
fields; that the nearest houses were far away, and cries could not be
heard from one house to another; and that the burnt house was not
worth more than P1, because it was a small one, the witness himself
having constructed it.

The judgment entered in this case by the Court of First Instance of

Nueva Ecija finds that on the 16th of December, 1907, five individuals,
among them being the accused herein, went to the house where Pedro
Tabilisima, Celestino Vergara, and Tranquilino Manipul were living,
and there inquired after some carabaos that had disappeared, and
because these above-mentioned inmates answered that they knew
nothing about the matter, ordered them to leave the house, but as the
three men named above refused to do so the accused Catalino Apostol,
set fire to the hut and the same was burnt down.

Celestino Vergara says that several individuals arrived at 8 o'clock at

night, asked them for carabaos that they claimed to have lost, wounded
Tranquilino Manipul, who was asleep, and Pedro Tabilisima, forced
them to leave the house, and as they did not want to do so for fear of
being assaulted the accused set fire to the same; they tried to put out the
fire as long as they could, but when no longer able jumped out of the
house. The house was in an uninhabited locality, in the fields, the
nearest house being a small store to which the cry of a person night
carry, and the neighboring houses could be seen.

In the opinion of the trial court the responsibility of the accused has
been fully established by the testimony of the injured parties. And
inasmuch as, according to the same, the act comes within the provisions
of article 549 of the Penal Code, Catalino Apostol was sentenced to
sixteen years and one day of cadena temporal, to the accessories of the
law, to indemnify the value of the burnt hut in the sum of P1, and to pay
the costs.

Tranquilino Manipul testified in almost the same terms as this last

witness. The argument which the defense advances, based on article
554, which in connection with 553 punishes the setting fire to a building
intended for habitation, in an uninhabited place, does not apply,
because the article question refers to an edifice intended for human
habitation in an uninhabited place at a time when the same is
unoccupied. It is article 549, which punishes with the very severe
penalties of cadena temporal to cadena perpetua "those who shall set
fire to any edifice, farmhouse, hut, shed, or vessel in port, with
knowledge that one or more persons were within the same," that must be
applied.

Francisco
Ortigas
for
Office of the Solicitor-General Harvey for appellee.

An appeal having been taken to this court, the defense claimed, on

behalf of the offender: (1) The absence of proof of criminal intent; (2)
that in view of the fact that the burnt hut was situated in an uninhabited
place, it is not proper to apply article 549, but article 554 of the Penal
Code.
Criminal intent as well as the will to commit a crime are always
presumed to exist on the part of the person who executes an act which
the law punishes, unless the contrary shall appear. (Art. 1, Penal Code.)
As to the circumstances connected with the burning of the hut Pedro
Tabilisima testified that he and his friends were in the same; that the
accused and his companions arrived at 8 p.m. and questioned them
about carabaos that they said had been stolen from them; that after they

The law must be applied as laid down in the above quoted excerpt.
But the court, in view of the nature of the crime and considering the
circumstances attending the same, recognizes the extreme severity of the
penalty; therefore we apply the remedy afforded it by article 2,
paragraph 2, of the Penal Code, when a strict application of the
provisions of the code would result in an excessive penalty, taking into
consideration the degree of malice and the injury caused by the crime.

For the reasons above set forth the judgment appealed from is hereby
affirmed with costs against the appellant. Ten days from date let a
confirming judgment be entered, and ten days thereafter let the case be
remanded to the lower court of action.

defendant of the crime of malversation of public funds and sentencing

him to two months' imprisonment, to perpetual disqualification to hold
public office or public employment of any kind, and to the payment of
the costs.

Without prejudice to the immediate execution of the judgment, let the

clerk of this court, as provided in the said article 2 of the Penal Code,
respectfully address a communication to the Honorable, the GovernorGeneral of these Islands, giving the result of this decision and the
sentence, requesting him, should he so desire, to make use of the
prerogative with which he is invested in order to reduce or mitigate the
penalty imposed. So ordered.

It appears from the proofs of the prosecution that the accused as justice
of the peace of Baggao, Province of Cagayan, on the 2d day of October,
1909, had before him sixteen separate civil cases commenced by Juan
Canillas against sixteen distinct individuals, each one for damages
resulting from a breach of contract; that said cases were all decided by
the appellant in favor of the plaintiff; that each one of the defendant in
said cases appealed from the decision of the justice of the peace and
deposited P16 as required by law, at the same time giving a bond of
P50, each one of which was approved by the court; that on the 12th day
of said month the plaintiff in said cases presented a writing to the
appellant as said justice of the peace, alleging that the sureties on the
said bonds were insolvent and later demonstrated this to the satisfaction
of the appellant; that thereupon the latter ordered the cancellation of the
said bonds and, in the same order, required each of the appellants to file
another bond within fifteen days, that, inasmuch as none of the
appellants in said causes presented new bonds within the time fixed, the
plaintiff in said causes applied to the appellant, as said court, for an
order declaring final the judgment entered in each of the said sixteen
cases and commanding the execution of the same, at the same time
asking that the sums deposited by the defendants in said actions be
attached (so called in the record) and delivered to him in satisfaction of
said judgments; that the accused acceded to the petition of the plaintiff,
ordered said sums attached and delivered same to the plaintiff, at the
same time requiring of the plaintiff a bond of P50 for each attachment,
conditioned that he would respond for the damages which should result
from such attachment.

Torres, Johnson, Carson, and Moreland, JJ., concur.

PhilippineLaw.info Jurisprudence 1911 March
PhilippineLaw.info Jurisprudence Phil. Rep. Vol. 18
G.R. No. 6486, U.S. v. Catolico, 18 Phil. 504
Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
March 2, 1911
G.R.
No.
6486
THE
UNITED
STATES, plaintiff-appellee,
vs.
RAFAEL B. CATOLICO, defendant-appellant.
B.
Pobre
for
Acting Attorney-General Harvey for appellee.

appellant.

MORELAND, J.:
This is an appeal from a judgment of the Court of First Instance of the
Province of Cagayan, Hon. Charles A. Low presiding, convicting the

After this attachment (so called) the attorney for the defendants in the
said sixteen cases presented a complaint against the appellant to the
Court of First Instance, by virtue of which said court ordered that the
plaintiff, Juan Canillas, deliver to the clerk of the Court of First
Instance the sums deposited by the defendants in said actions. Canillas
obeyed the order of the court and made the delivery as required.

Upon these facts the Acting Attorney-General recommends the acquittal

of the accused. We are in entire accord with that recommendation. The
case made against the appellant lacks many of the essential elements
required by law to be present in the crime of malversation of public
funds. The accused did not convert the money to his own use or to the
use of any other person; neither did he feloniously permit anybody else
to convert it. Everything he did was done in good faith under the belief
that he was acting judicially and correctly. The fact that he ordered the
sums, deposited in his hands by the defendants appellants in the
sixteen actions referred to, attached for the benefit of the plaintiff in
those actions, after the appeals had been dismissed and the judgments in
his court had become final, and that he delivered the said sums to the
plaintiff in satisfaction of the judgment which he held in those cases, can
not be considered an appropriation or a taking of said sums within the
meaning of Act No. 1740. He believed that, as presiding officer of the
court of justice of the peace, he had a perfect right under the law to
cancel the bonds when it was clearly shown to him that the sureties
thereon were insolvent, to require the filing of new undertakings, giving
the parties ample time within which to do so, to dismiss the appeals in
case said undertakings were not filed, and to declare the judgment final.
He believed that after said appeals had been dismissed and said
judgment had become final, the sums deposited were subject to be
applied in payment of the judgments in the actions in which said sums
had been deposited and that he was acting judicially and legally in
making such applications.
To constitute a crime, the act must, except in certain crimes made such
by statute, be accompanied by a criminal intent, or by such negligence
or indifference to duty or to consequences, as, in law, is equivalent to
criminal intent. The maxim is, actus non facit reum, nisi mens rea a
crime is not committed if the mind of the person performing the act
complained of be innocent.
In the case at bar the appellant was engaged in exercising the functions
of a court of justice of the peace. He had jurisdictions of the actions
before him. He had a right and it was his duty to require the payment by
each appellant of P16, as well as the giving of a proper undertaking
with solvent sureties. While, in dismissing the appeals and delivering the
P256 to the plaintiff in the said cases, he may have exceeded his
authority as such court and passed beyond the limits of his jurisdiction

and power, a question we do not now discuss or decide, it was, so far as

appears from the record, at most a pure mistake of judgment, an error of
the mind operating upon a state of facts. Giving the act complained of
the signification most detrimental to the appellant, it, nevertheless, was
simply the result of the erroneous exercise of the judicial function, and
not an intention to deprive any person of his property feloniously. His
act had back of it the purpose to do justice to litigants and not to
embezzle property. He acted that honest debts might be paid to those to
whom they were legally and justly due, and not to enrich himself or
another by criminal misappropriation. It was an error committed by a
court, not an act done by a criminal-minded man. It was a mistake, not a
crime.
It is true that a presumption of criminal intention may arise from proof
of the commission of a criminal act; and the general rule is that, if it is
proved that the accused committed the criminal act charged, it will be
presumed that the act was done with criminal intention, and that it is for
the accused to rebut this presumption. But it must be borne in mind that
the act from which such presumption springs must be a criminal act. In
the case before us the act was not criminal. It may have been an error; it
may have been wrong and illegal in the sense that it would have been
declared erroneous and set aside on appeal or other proceeding in the
superior court. It may well be that his conduct was arbitrary to a high
degree, to such a degree in fact as properly to subject him to reprimand
or even suspension or removal from office. But, from the facts of record,
it was not criminal. As a necessary result no presumption of criminal
intention arises from the act.
Neither can the presumption of a criminal intention arise from the act
complained of, even though it be admitted that the crime, if any, is that
of malversation of public funds as defined and penalized in Act No.
1740. It is true that that Act provides that "In all prosecutions for
violations of the preceding section, the absence of any of the public
funds or property of which any person described in said section has
charge, and any failure or inability of such person to produce all the
funds and property properly in his charge on the demand of any officer
authorized to examine or inspect such person, office, treasury, or
depositary shall be deemed to be prima facie evidence that such missing
funds or property have been put to personal uses or used for personal
ends by such person within the meaning of the preceding section."

Nevertheless, that presumption is a rebuttable one and constitutes only

a prima facie case against the person accused. If he present evidence
showing that, in fact, he has not put said funds or property to personal
uses, then that presumption is at an end and the prima facie case
destroyed. In the case at bar it was necessary for the accused to offer
any such evidence, for the reason that the people's own pleading
alleged, and its own proofs presented, along with the criminal
charge, facts which showed, of themselves, that said money had not been
put to personal uses or used for personal ends. In other words, the
prosecution demonstrated, both by the allegations in its information
filed against the accused and by its proofs on the trial, that the absence
of the funds in question was not due to the personal use thereof by the
accused, thus affirmatively and completely negativing the presumption
which, under the act quoted, arises from the absence of the funds. The
presumption was never born. It never existed. The facts which were
presented for the purpose of creating such presumption were
accompanied by other facts which absolutely prevented its creation.
On the other hand, if it be admitted that the crime, if any, is that
of estafa, as defined in paragraph 5 of article 535 of the Penal Code,
then the presumption just referred to does not arise. Mere absence of the
funds is not sufficient proof of conversion. Neither is the mere failure of
the accused to turn over the funds at any given time sufficient to make
even a prima facie case. (U. S. vs.Morales, 15 Phil. Rep., 236; U.
S. vs. Dominguez, 2 Phil. Rep., 580.) Conversion must be affirmatively
proved, either by direct evidence or by the production of facts from
which conversion necessarily follows. (U. S. vs. Morales, supra.)
The judgment of conviction is reversed and the defendant ordered
discharged from custody forthwith.
Arellano, C. J., Mapa and Trent, JJ., concur.
Separate Opinion
CARSON, J., concurring:
I am strongly inclined to doubt the bona fides of the defendant in the
transactions herein set out, but in the absence of proof beyond a

reasonable doubt upon this point I concur in the judgment of acquittal of

the crime charged in the information.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 75256 January 26, 1989
JOHN PHILIP GUEVARRA, petitioner,
vs.
HONORABLE IGNACIO ALMODOVAR, respondent.
Teresita Dy-Liacco and Roberto Madrid for petitioner.

PARAS, J.:
Presented before Us is a special civil action for certiorari against the
Honorable Judge Ignacio Almodovar of the City Court of Legaspi,
Branch 1, Legaspi City, raising beautiful questions of law which We are
tasked to resolve. Considering the issues and arguments raised by
petitioner, We impleaded the People of the Philippines as party
respondents herein in a resolution dated 17 September 1986 (p. 41,
Rollo).
The relevant facts gathered from the records are as follows:
Petitioner John Philip Guevarra, then 11 years old, was playing with his
best friend Teodoro Almine, Jr. and three other children in their backyard
in the morning of 29 October 1984. They were target-shooting a bottle
cap (tansan) placed around fifteen (15) to twenty (20) meters away with
an air rifle borrowed from a neighbor. In the course of their game,
Teodoro was hit by a pellet on his left collar bone which caused his
unfortunate death.

After conduct a preliminary investigation, the examining Fiscal

exculpated petitioner due to his age and because the unfortunate
occurrence appeared to be an accident. The victim's parents appealed to
the Ministry of Justice, which ordered the Fiscal to file a case against
petitioner for Homicide through reckless Imprudence. The information
dated 9 October 1985 was consequently filed, which narrated in part:
. . . the above-named accused, who is over 9 years but below 15 years of
age and acting with discernment, did then and there, without taking the
necessary precautions to prevent and/or avoid accident or injuries to
persons, willfully, unlawfully and feloniously operate and cause to be
fired, in a reckless and imprudent manner, an air rifle with .22 caliber
bore with rifling, oxygen and bolt operated thereby hitting as a result of
said carelessness and imprudence one TEODORICO PABLO ALMINE
at the left side of the body with its pellet, causing injuries which directly
caused his untimely death; . . . (p. 8, Rollo)
On 25 October 1985, petitioner moved to quash the said information on
the following grounds:
I
THAT THE FACTS CHARGED DO NOT CONSTITUTE OFFENSE.
II
THAT THE INFORMATION CONTAINS AVERMENTS WHICH IF
TRUE WOULD CONSTITUTE A LEGAL EXCUSE OR
JUSTIFICATION.
III
THAT THIS HONORABLE COURT HAS NO JURISDICTION OVER
THE OFFENSE CHARGED AND THE PERSON OF THE
DEFENDANT. (p. 9, Rollo)
This motion, in an Order dated 4 April 1986, was denied with respect to
the first and third grounds relied upon. However, the resolution of the
second ground was deferred until evidence shall have been presented
during trial.

On 26 July 1986, this present petition for certiorari was filed, raising
two (2) issues, to wit:
I
WHETHER AN ELEVEN (11) YEAR OLD BOY COULD BE
CHARGED WITH THE CRIME OF HOMICIDE THRU RECKLESS
IMPRUDENCE, AND
II
WHETHER THE COURT HAD JURISDICTION OVER THE CASE
NOTWITHSTANDING THE FACT THAT IT DID NOT PASS THRU
THE BARANGAY LUPON. (Petition, p. 3, Rollo)
Going through the written arguments of the parties, the surfacing of a
corollary controversy with respect to the first issue raised is evident, that
is, whether the term "discernment", as used in Article 12(3) of the
Revised Penal Code (RPC) is synonymous with "intent." It is the
position of the petitioner that "discernment" connotes 'intent' (p. 96,
Rollo), invoking the unreported case of People vs. Nieto, G.R. No.
11965, 30 April 1958. In that case We held that the allegation of "with
intent to kill . . ." amply meets the requirement that discernment should
be alleged when the accused is a minor between 9 and 15 years old.
Petitioner completes his syllogism in saying that:
If discernment is the equivalent of 'with intent', then the allegation in the
information that the accused acted with discernment and willfully
unlawfully, and feloniously, operate or cause to be fired in a reckless and
imprudent manner an air rifle .22 caliber' is an inherent contradiction
tantamount to failure of the information to allege a cause of action or
constitute a legal excuse or exception. (Memorandum for Petitioner, p.
97, Rollo)
If petitioner's argument is correct, then no minor between the ages of 9
and 15 may be convicted of a quasi-offense under Article 265 of the
RPC.

On the contrary, the Solicitor General insists that discernment and intent
are two different concepts. We agree with the Solicitor General's view;
the two terms should not be confused.
The word "intent" has been defined as
(a) design; a determination to do a certain things; an aim; the purpose of
the mind, including such knowledge as is essential to such intent;. . .; the
design resolve, or determination with which a person acts.' (46 CJS
Intent p. 1103.)
It is this intent which comprises the third element of dolo as a means of
committing a felony, freedom and intelligence being the other two. On
the other hand, We have defined the term discernment, as used in Article
12(3) of the RPC, in the old case of People vs. Doquena, 68 Phil.
580(1939), in this wise:
The discernment that constitutes an exception to the exemption from
criminal liability of a minor under fifteen years of age but over nine,
who commits an act prohibited by law, is his mental capacity to
understand the difference between right and wrong . . . (Emphasis
supplied) p. 583
From the foregoing, it is clear that the terms "intent" and "discernment"
convey two distinct thoughts. While both are products of the mental
processes within a person, the former refers to the desired of one's act
while the latter relates to the moral significance that person ascribes to
the said act. Hence a person may not intend to shoot another but may be
aware of the consequences of his negligent act which may cause injury
to the same person in negligently handling an air rifle. It is not connect,
therefore, to argue, as petitioner does, that since a minor above nine
years of age but below fifteen acted with discernment, then he intended
such act to be done. He may negligently shoot his friend, thus did not
intend to shoot him, and at the same time recognize the undesirable
result of his negligence.
In further outlining the distinction between the words "intent" and
"discernment," it is worthy to note the basic reason behind the enactment
of the exempting circumstances embodied in Article 12 of the RPC; the
complete absence of intelligence, freedom of action, or intent, or on the

absence of negligence on the part of the accused.1 In expounding on

intelligence as the second element of dolus, Albert 2 has stated:
The second element of dolus is intelligence; without this power,
necessary to determine the morality of human acts to distinguish a licit
from an illicit act, no crime can exist, and because ... the infant 3(has) no
intelligence, the law exempts (him) from criminal liability. (Emphasis
supplied)
lt is for this reason, therefore, why minors nine years of age and below
are not capable of performing a criminal act. On the other hand, minors
above nine years of appeal but below fifteen are not absolutely exempt.
However, they are presumed to be without criminal capacity, but which
presumption may be rebutted if it could be proven that they were
"capable of appreciating the nature and criminality of the act, that is, that
(they) acted with discernment. " 4 The preceding discussion shows that
"intelligence" as an element of dolo actually embraces the concept of
discernment as used in Article 12 of the RPC and as defined in the
aforecited case of People vs. Doquena, supra. It could not therefore be
argued that discernment is equivalent or connotes 'intent' for they refer to
two different concepts. Intelligence, which includes discernment, is a
distinct element of dolo as a means of committing an offense.
In evaluating felonies committed by means of culpa, three (3) elements
are indispensable, namely, intelligence, freedom of action, and
negligence. Obviously, intent is wanting in such felonies. However,
intelligence remains as an essential element, hence, it is necessary that a
minor above nine but below fifteen years of age be possessed with
intelligence in committing a negligent act which results in a quasioffense. For him to be criminally liable, he must discern the rightness or
wrongness of the effects of his negligent act. Indeed, a minor over nine
years of age but below fifteen may be held liable for a quasi-offense
under Article 365 of the RPC. A reading of the said Article would reveal
such fact as it starts off with the phrase "Any person. . ." without any
distinction or exception made. Ubi lex non distinquit nec nos distinguere
debemos.
In his last attempt to justify his position equating the words "intent" and
"discernment" used under the law, he cites the case of People vs.

Nieto, supra. However, petitioner failed to present the qualifying

sentence preceding the ruling he now invokes, which reads:

Expounding on the above provision, a member of the committee that

drafted P.D. 1508 has said:

That requirement should be deemed amply met with the allegation in the
information that she. . ."with the intent to kill, did then and there
wilfully, criminally and feloniously push one Lolita Padilla . . ." into a
deep place of the Pearanda River and as a consequence thereof Lolita
Padilla got drowned and died right then and there.' This allegation
clearly conveys the Idea that she knew what would be the consequence
of her unlawful act of pushing her victim into deep water and that she
knew it to be wrong. (Emphasis supplied)

The law says 'punishable,' not 'punished.' One should therefore consider
the penalty provided for by law or ordinance as distinguished from the
penalty actually imposed in particular cases after considering the
attendant circumstances affecting criminal liability. 5

From the above, it is clear that We did not mean to equate the words
"intent" and "discernment." What We meant was that the combined
effect of the words used in the information is to express a knowledge, on
the part of the accused Nieto, of the wrongness or rightness of her act.
Hence, petitioner may not validly contend that since the information
now in question alleged "discernment", it in effect alleged "intent." The
former may never embrace the Idea of the latter; the former expresses
the thought of passivity while the latter signifies activity.
Coming now to the second issue of jurisdiction, it is contended by the
petitioner that the case against him should have first been brought before
the Lupong Tagapayapa pursuant to Presidential Decree No. 1508,
Section 2(3). He submits that, considering his entitlement to a twodegree privileged mitigating circumstance due to his minority, P.D. 1508
applies to his case because the penalty imposable is reduced to not
higher than arresto menor from an original arresto mayor maximum
to prision correccional medium as prescribed in Article 365 of the RPC.
This is not correct. The jurisdiction of a court over a criminal case is
determined by the penalty imposable under the law for the offense and
not the penalty ultimately imposed (People vs. Caldito, 72 Phil. 263;
People vs. Purisima, 69 SCRA 314; Dioquino vs. Cruz and People vs.
Savellano, 116 SCRA 451). The same principle applies in construing
Section 2(3) of P.D. 1508, which states:
xxx xxx xxx
(3) Offense punishable by imprisonment exceeding 30 day , or a fine
exceeding P 200.00; ... (emphasis supplied)

The foregoing finds support in our jurisprudence as above cited. We

therefore rule that, in construing Section 2(3) of P.D. 1508, the penalty
which the law defining the offense attaches to the latter should be
considered. Hence, any circumstance which may affect criminal liability
must not be considered.
The petitioner, in his arguments, asserts that since P.D. 1508 has not
been complied with, the trial court has no jurisdiction over the case. This
erroneous perception has been corrected long before. As intimated in the
case ofRoyales vs. IAC, 127 SCRA 470, and categorically stated in Ebol
vs. Amin, 135 SCRA 438, P.D. 1508 is not jurisdictional.
WHEREFORE, PREMISES CONSIDERED, this petition is hereby
DISMISSED for lack of merit and the Temporary Restraining Order
effective 17 September 1986 is LIFTED. Let this case be REMANDED
to the lower court for trial on the merits. No cost.
SO ORDERED.
Melencio-Herrera, (Chairperson), Padilla, Sarmiento and Regalado,
JJ., concur.
Republic of the Philippines
SUPREME COURT
SECOND DIVISION
G.R. No. 165842 November 29, 2005
EDUARDO
P.
MANUEL, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

C. Reyes, the Presiding Judge of the RTC of Baguio City, Branch 61. 5 It
appeared in their marriage contract that Eduardo was "single."

CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision1 of the
Court of Appeals (CA) in CA-G.R. CR No. 26877, affirming the
Decision2 of the Regional Trial Court (RTC) of Baguio City, Branch 3,
convicting Eduardo P. Manuel of bigamy in Criminal Case No. 19562-R.
Eduardo was charged with bigamy in an Information filed on November
7, 2001, the accusatory portion of which reads:
That on or about the 22nd day of April, 1996, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused EDUARDO P. MANUEL, being then previously
and legally married to RUBYLUS [GAA] and without the said
marriage having been legally dissolved, did then and there willfully,
unlawfully and feloniously contract a second marriage with TINA
GANDALERA-MANUEL, herein complainant, who does not know the
existence of the first marriage of said EDUARDO P. MANUEL to
Rubylus [Gaa].
CONTRARY TO LAW. 3
The prosecution adduced evidence that on July 28, 1975, Eduardo was
married to Rubylus Gaa before Msgr. Feliciano Santos in Makati,
which was then still a municipality of the Province of Rizal. 4 He met the
private complainant Tina B. Gandalera in Dagupan City sometime in
January 1996. She stayed in Bonuan, Dagupan City for two days looking
for a friend. Tina was then 21 years old, a Computer Secretarial student,
while Eduardo was 39. Afterwards, Eduardo went to Baguio City to visit
her. Eventually, as one thing led to another, they went to a motel where,
despite Tinas resistance, Eduardo succeeded in having his way with her.
Eduardo proposed marriage on several occasions, assuring her that he
was single. Eduardo even brought his parents to Baguio City to meet
Tinas parents, and was assured by them that their son was still single.
Tina finally agreed to marry Eduardo sometime in the first week of
March 1996. They were married on April 22, 1996 before Judge Antonio

The couple was happy during the first three years of their married life.
Through their joint efforts, they were able to build their home in Cypress
Point, Irisan, Baguio City. However, starting 1999, Manuel started
making himself scarce and went to their house only twice or thrice a
year. Tina was jobless, and whenever she asked money from Eduardo, he
would slap her.6 Sometime in January 2001, Eduardo took all his clothes,
left, and did not return. Worse, he stopped giving financial support.
Sometime in August 2001, Tina became curious and made inquiries from
the National Statistics Office (NSO) in Manila where she learned that
Eduardo had been previously married. She secured an NSO-certified
copy of the marriage contract.7 She was so embarrassed and humiliated
when she learned that Eduardo was in fact already married when they
exchanged their own vows.8
For his part, Eduardo testified that he met Tina sometime in 1995 in a
bar where she worked as a Guest Relations Officer (GRO). He fell in
love with her and married her. He informed Tina of his previous
marriage to Rubylus Gaa, but she nevertheless agreed to marry him.
Their marital relationship was in order until this one time when he
noticed that she had a "love-bite" on her neck. He then abandoned her.
Eduardo further testified that he declared he was "single" in his marriage
contract with Tina because he believed in good faith that his first
marriage was invalid. He did not know that he had to go to court to seek
for the nullification of his first marriage before marrying Tina.
Eduardo further claimed that he was only forced to marry his first wife
because she threatened to commit suicide unless he did so. Rubylus was
charged with estafa in 1975 and thereafter imprisoned. He visited her in
jail after three months and never saw her again. He insisted that he
married Tina believing that his first marriage was no longer valid
because he had not heard from Rubylus for more than 20 years.
After trial, the court rendered judgment on July 2, 2002 finding Eduardo
guilty beyond reasonable doubt of bigamy. He was sentenced to an

indeterminate penalty of from six (6) years and ten (10) months, as
minimum, to ten (10) years, as maximum, and directed to indemnify the
private complainant Tina Gandalera the amount ofP200,000.00 by way
of moral damages, plus costs of suit.9
The trial court ruled that the prosecution was able to prove beyond
reasonable doubt all the elements of bigamy under Article 349 of the
Revised Penal Code. It declared that Eduardos belief, that his first
marriage had been dissolved because of his first wifes 20-year absence,
even if true, did not exculpate him from liability for bigamy. Citing the
ruling of this Court in People v. Bitdu,10 the trial court further ruled that
even if the private complainant had known that Eduardo had been
previously married, the latter would still be criminally liable for bigamy.
Eduardo appealed the decision to the CA. He alleged that he was not
criminally liable for bigamy because when he married the private
complainant, he did so in good faith and without any malicious intent.
He maintained that at the time that he married the private complainant,
he was of the honest belief that his first marriage no longer subsisted. He
insisted that conformably to Article 3 of the Revised Penal Code, there
must be malice for one to be criminally liable for a felony. He was not
motivated by malice in marrying the private complainant because he did
so only out of his overwhelming desire to have a fruitful marriage. He
posited that the trial court should have taken into account Article 390 of
the New Civil Code. To support his view, the appellant cited the rulings
of this Court inUnited States v. Pealosa11 and Manahan, Jr. v. Court of
Appeals.12
The Office of the Solicitor General (OSG) averred that Eduardos
defense of good faith and reliance on the Courts ruling in United States
v. Enriquez13 were misplaced; what is applicable is Article 41 of the
Family Code, which amended Article 390 of the Civil Code. Citing the
ruling of this Court in Republic v. Nolasco,14 the OSG further posited
that as provided in Article 41 of the Family Code, there is a need for a
judicial declaration of presumptive death of the absent spouse to enable
the present spouse to marry. Even assuming that the first marriage was
void, the parties thereto should not be permitted to judge for themselves
the
nullity
of
the
marriage;
the matter should be submitted to the proper court for resolution.
Moreover, the OSG maintained, the private complainants knowledge of

the first marriage would not afford any relief since bigamy is an offense
against the State and not just against the private complainant.
However, the OSG agreed with the appellant that the penalty imposed by
the trial court was erroneous and sought the affirmance of the decision
appealed from with modification.
On June 18, 2004, the CA rendered judgment affirming the decision of
the RTC with modification as to the penalty of the accused. It ruled that
the prosecution was able to prove all the elements of bigamy. Contrary
to the contention of the appellant, Article 41 of the Family Code should
apply. Before Manuel could lawfully marry the private complainant,
there should have been a judicial declaration of Gaas presumptive
death as the absent spouse. The appellate court cited the rulings of this
Court in Mercado v. Tan15 and Domingo v. Court of Appeals16 to support
its ruling. The dispositive portion of the decision reads:
WHEREFORE, in the light of the foregoing, the Decision promulgated
on July 31, 2002 is hereby MODIFIED to reflect, as it hereby reflects,
that accused-appellant is sentenced to an indeterminate penalty of two
(2) years, four (4) months and one (1) day of prision correccional, as
minimum, to ten (10) years of prision mayor as maximum. Said
Decision is AFFIRMED in all other respects.
SO ORDERED.17
Eduardo, now the petitioner, filed the instant petition for review on
certiorari, insisting that:
I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR
OF LAW WHEN IT RULED THAT PETITIONERS FIRST WIFE
CANNOT BE LEGALLY PRESUMED DEAD UNDER ARTICLE 390
OF THE CIVIL CODE AS THERE WAS NO JUDICIAL
DECLARATION OF PRESUMPTIVE DEATH AS PROVIDED FOR
UNDER ARTICLE 41 OF THE FAMILY CODE.
II

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR

OF LAW WHEN IT AFFIRMED THE AWARD OF PHP200,000.00 AS
MORAL DAMAGES AS IT HAS NO BASIS IN FACT AND IN
LAW.18

private complainant was a "GRO" before he married her, and even knew
that he was already married. He genuinely loved and took care of her
and gave her financial support. He also pointed out that she had an illicit
relationship with a lover whom she brought to their house.

The petitioner maintains that the prosecution failed to prove the second
element of the felony, i.e., that the marriage has not been legally
dissolved or, in case his/her spouse is absent, the absent spouse could not
yet be presumed dead under the Civil Code. He avers that when he
married Gandalera in 1996, Gaa had been "absent" for 21 years since
1975; under Article 390 of the Civil Code, she was presumed dead as a
matter of law. He points out that, under the first paragraph of Article 390
of the Civil Code, one who has been absent for seven years, whether or
not he/she is still alive, shall be presumed dead for all purposes except
for succession, while the second paragraph refers to the rule on legal
presumption of death with respect to succession.

In its comment on the petition, the OSG maintains that the decision of
the CA affirming the petitioners conviction is in accord with the law,
jurisprudence and the evidence on record. To bolster its claim, the OSG
cited the ruling of this Court in Republic v. Nolasco.19

The petitioner asserts that the presumptive death of the absent spouse
arises by operation of law upon the satisfaction of two requirements: the
specified period and the present spouses reasonable belief that the
absentee is dead. He insists that he was able to prove that he had not
heard from his first wife since 1975 and that he had no knowledge of her
whereabouts or whether she was still alive; hence, under Article 41 of
the Family Code, the presumptive death of Gaa had arisen by operation
of law, as the two requirements of Article 390 of the Civil Code are
present. The petitioner concludes that he should thus be acquitted of the
crime of bigamy.

The petition is denied for lack of merit.

Article 349 of the Revised Penal Code, which defines and penalizes
bigamy, reads:
Art. 349. Bigamy. The penalty of prision mayor shall be imposed upon
any person who shall contract a second or subsequent marriage before
the former marriage has been legally dissolved, or before the absent
spouse has been declared presumptively dead by means of a judgment
rendered in the proper proceedings.
The provision was taken from Article 486 of the Spanish Penal Code, to
wit:
El que contrajere Segundo o ulterior matrimonio sin hallarse
legtimamente disuelto el anterior, ser castigado con la pena de prision
mayor. xxx

The petitioner insists that except for the period of absences provided for
in Article 390 of the Civil Code, the rule therein on legal presumptions
remains valid and effective. Nowhere under Article 390 of the Civil
Code does it require that there must first be a judicial declaration of
death before the rule on presumptive death would apply. He further
asserts that contrary to the rulings of the trial and appellate courts, the
requirement of a judicial declaration of presumptive death under Article
41 of the Family Code is only a requirement for the validity of the
subsequent or second marriage.

The reason why bigamy is considered a felony is to preserve and ensure

the juridical tie of marriage established by law.20 The phrase "or before
the absent spouse had been declared presumptively dead by means of a
judgment rendered in the proper proceedings" was incorporated in the
Revised Penal Code because the drafters of the law were of the
impression that "in consonance with the civil law which provides for the
presumption of death after an absence of a number of years, the judicial
declaration of presumed death like annulment of marriage should be
a justification for bigamy."21

The petitioner, likewise, avers that the trial court and the CA erred in
awarding moral damages in favor of the private complainant. The

For the accused to be held guilty of bigamy, the prosecution is burdened

to prove the felony: (a) he/she has been legally married; and (b) he/she

contracts a subsequent marriage without the former marriage having

been lawfully dissolved. The felony is consummated on the celebration
of the second marriage or subsequent marriage. 22 It is essential in the
prosecution for bigamy that the alleged second marriage, having all the
essential requirements, would be valid were it not for the subsistence of
the first marriage.23 Viada avers that a third element of the crime is that
the second marriage must be entered into with fraudulent
intent (intencion fraudulente) which is an essential element of a felony
by dolo.24 On the other hand, Cuello Calon is of the view that there are
only two elements of bigamy: (1) the existence of a marriage that has not
been lawfully dissolved; and (2) the celebration of a second marriage. It
does not matter whether the first marriage is void or voidable because
such marriages have juridical effects until lawfully dissolved by a court
of competent jurisdiction.25 As the Court ruled in Domingo v. Court of
Appeals26 and Mercado v. Tan,27 under the Family Code of the
Philippines, the judicial declaration of nullity of a previous marriage is a
defense.
In his commentary on the Revised Penal Code, Albert is of the same
view as Viada and declared that there are three (3) elements of bigamy:
(1) an undissolved marriage; (2) a new marriage; and (3) fraudulent
intention constituting the felony of the act.28 He explained that:
This last element is not stated in Article 349, because it is
undoubtedly incorporated in the principle antedating all codes, and,
constituting one of the landmarks of our Penal Code, that, where there is
no willfulness there is no crime. There is no willfulness if the subject
believes that the former marriage has been dissolved; and this must be
supported by very strong evidence, and if this be produced, the act shall
be deemed not to constitute a crime. Thus, a person who contracts a
second marriage in the reasonable and well-founded belief that his first
wife is dead, because of the many years that have elapsed since he has
had any news of her whereabouts, in spite of his endeavors to find her,
cannot be deemed guilty of the crime of bigamy, because there is no
fraudulent intent which is one of the essential elements of the crime.29
As gleaned from the Information in the RTC, the petitioner is charged
with bigamy, a felony by dolo (deceit). Article 3, paragraph 2 of the
Revised Penal Code provides that there is deceit when the act is
performed with deliberate intent. Indeed, a felony cannot exist without

intent. Since a felony by dolo is classified as an intentional felony, it is

deemed voluntary.30 Although the words "with malice" do not appear in
Article 3 of the Revised Penal Code, such phrase is included in the word
"voluntary."31
Malice is a mental state or condition prompting the doing of an overt act
without legal excuse or justification from which another suffers
injury.32 When the act or omission defined by law as a felony is proved
to have been done or committed by the accused, the law presumes it to
have been intentional.33 Indeed, it is a legal presumption of law that
every man intends the natural or probable consequence of his voluntary
act in the absence of proof to the contrary, and such presumption must
prevail unless a reasonable doubt exists from a consideration of the
whole evidence.34
For one to be criminally liable for a felony by dolo, there must be a
confluence of both an evil act and an evil intent. Actus non facit reum,
nisi mens sit rea.35
In the present case, the prosecution proved that the petitioner was
married to Gaa in 1975, and such marriage was not judicially declared
a nullity; hence, the marriage is presumed to subsist. 36 The prosecution
also proved that the petitioner married the private complainant in 1996,
long after the effectivity of the Family Code.
The petitioner is presumed to have acted with malice or evil intent when
he married the private complainant. As a general rule, mistake of fact or
good faith of the accused is a valid defense in a prosecution for a felony
by dolo; such defense negates malice or criminal intent. However,
ignorance of the law is not an excuse because everyone is presumed to
know the law. Ignorantia legis neminem excusat.
It was the burden of the petitioner to prove his defense that when he
married the private complainant in 1996, he was of the well-grounded
belief
that his first wife was already dead, as he had not heard from her for
more than 20 years since 1975. He should have adduced in evidence a
decision of a competent court declaring the presumptive death of his first
wife as required by Article 349 of the Revised Penal Code, in relation to
Article 41 of the Family Code. Such judicial declaration also constitutes

proof that the petitioner acted in good faith, and would negate criminal
intent on his part when he married the private complainant and, as a
consequence, he could not be held guilty of bigamy in such case. The
petitioner, however, failed to discharge his burden.
The phrase "or before the absent spouse has been declared
presumptively dead by means of a judgment rendered on the
proceedings" in Article 349 of the Revised Penal Code was not an
aggroupment of empty or useless words. The requirement for a judgment
of the presumptive death of the absent spouse is for the benefit of the
spouse present, as protection from the pains and the consequences of a
second marriage, precisely because he/she could be charged and
convicted of bigamy if the defense of good faith based on mere
testimony is found incredible.
The requirement of judicial declaration is also for the benefit of the
State. Under Article II, Section 12 of the Constitution, the "State shall
protect and strengthen the family as a basic autonomous social
institution." Marriage is a social institution of the highest importance.
Public policy, good morals and the interest of society require that the
marital relation should be surrounded with every safeguard and its
severance only in the manner prescribed and the causes specified by
law.37 The laws regulating civil marriages are necessary to serve the
interest, safety, good order, comfort or general welfare of the community
and the parties can waive nothing essential to the validity of the
proceedings. A civil marriage anchors an ordered society by encouraging
stable relationships over transient ones; it enhances the welfare of the
community.
In a real sense, there are three parties to every civil marriage; two
willing spouses and an approving State. On marriage, the parties assume
new relations to each other and the State touching nearly on every aspect
of life and death. The consequences of an invalid marriage to the parties,
to innocent parties and to society, are so serious that the law may well
take means calculated to ensure the procurement of the most positive
evidence of death of the first spouse or of the presumptive death of the
absent spouse38 after the lapse of the period provided for under the law.
One such means is the requirement of the declaration by a competent
court of the presumptive death of an absent spouse as proof that the
present spouse contracts a subsequent marriage on a well-grounded

belief of the death of the first spouse. Indeed, "men readily believe what
they wish to be true," is a maxim of the old jurists. To sustain a second
marriage and to vacate a first because one of the parties believed the
other to be dead would make the existence of the marital relation
determinable, not by certain extrinsic facts, easily capable of forensic
ascertainment and proof, but by the subjective condition of
individuals.39 Only with such proof can marriage be treated as so
dissolved as to permit second marriages.40 Thus, Article 349 of the
Revised Penal Code has made the dissolution of marriage dependent not
only upon the personal belief of parties, but upon certain objective facts
easily capable of accurate judicial cognizance,41 namely, a judgment of
the presumptive death of the absent spouse.
The petitioners sole reliance on Article 390 of the Civil Code as basis
for his acquittal for bigamy is misplaced.
Articles 390 and 391 of the Civil Code provide
Art. 390. After an absence of seven years, it being unknown whether or
not, the absentee still lives, he shall be presumed dead for all purposes,
except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his
succession till after an absence of ten years. If he disappeared after the
age of seventy-five years, an absence of five years shall be sufficient in
order that his succession may be opened.
Art. 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aeroplane
which is missing, who has not been heard of for four years since the loss
of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been
missing for four years;
(3) A person who has been in danger of death under other circumstances
and his existence has not been known for four years.

The presumption of death of the spouse who had been absent for seven
years, it being unknown whether or not the absentee still lives, is created
by law and arises without any necessity of judicial
declaration.42 However, Article 41 of the Family Code, which amended
the foregoing rules on presumptive death, reads:
Art. 41. A marriage contracted by any person during the subsistence of a
previous marriage shall be null and void, unless before the celebration of
the subsequent marriage, the prior spouse had been absent for four
consecutive years and the spouse present had a well-founded belief that
the absent spouse was already dead. In case of disappearance where
there is danger of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence of only two
years shall be sufficient.
For the purpose of contracting the subsequent marriage under the
preceding paragraph, the spouse present must institute a summary
proceeding as provided in this Court for the declaration of presumptive
death of the absentee, without prejudice to the effect of reappearance of
the absent spouse.43
With the effectivity of the Family Code, 44 the period of seven years
under the first paragraph of Article 390 of the Civil Code was reduced to
four consecutive years. Thus, before the spouse present may contract a
subsequent marriage, he or she must institute summary proceedings for
the declaration of the presumptive death of the absentee
spouse,45 without prejudice to the effect of the reappearance of the
absentee spouse. As explained by this Court in Armas v. Calisterio:46
In contrast, under the 1988 Family Code, in order that a subsequent
bigamous marriage may exceptionally be considered valid, the following
conditions must concur, viz.: (a) The prior spouse of the contracting
party must have been absent for four consecutive years, or two years
where there is danger of death under the circumstances stated in Article
391 of the Civil Code at the time of disappearance; (b) the spouse
present has a well-founded belief that the absent spouse is already dead;
and (c) there is, unlike the old rule, a judicial declaration of presumptive
death of the absentee for which purpose the spouse present can institute
a summary proceeding in court to ask for that declaration. The last
condition is consistent and in consonance with the requirement of

judicial intervention in subsequent marriages as so provided in Article

41, in relation to Article 40, of the Family Code.
The Court rejects petitioners contention that the requirement of
instituting a petition for declaration of presumptive death under Article
41 of the Family Code is designed merely to enable the spouse present to
contract a valid second marriage and not for the acquittal of one charged
with bigamy. Such provision was designed to harmonize civil law and
Article 349 of the Revised Penal Code, and put to rest the confusion
spawned by the rulings of this Court and comments of eminent
authorities on Criminal Law.
As early as March 6, 1937, this Court ruled in Jones v. Hortiguela47 that,
for purposes of the marriage law, it is not necessary to have the former
spouse judicially declared an absentee before the spouse present may
contract a subsequent marriage. It held that the declaration of absence
made in accordance with the provisions of the Civil Code has for its sole
purpose the taking of the necessary precautions for the administration of
the estate of the absentee. For the celebration of civil marriage, however,
the law only requires that the former spouse had been absent for seven
consecutive years at the time of the second marriage, that the spouse
present does not know his or her former spouse to be living, that such
former spouse is generally reputed to be dead and the spouse present so
believes at the time of the celebration of the marriage. 48 In In Re
Szatraw,49 the Court declared that a judicial declaration that a person is
presumptively dead, because he or she had been unheard from in seven
years, being a presumption juris tantum only, subject to contrary proof,
cannot reach the stage of finality or become final; and that proof of
actual death of the person presumed dead being unheard from in seven
years, would have to be made in another proceeding to have such
particular fact finally determined. The Court ruled that if a judicial
decree declaring a person presumptively dead because he or she had not
been heard from in seven years cannot become final and executory even
after the lapse of the reglementary period within which an appeal may be
taken, for such presumption is still disputable and remains subject to
contrary proof, then a petition for such a declaration is useless,
unnecessary, superfluous and of no benefit to the petitioner. The Court
stated that it should not waste its valuable time and be made to perform a
superfluous and meaningless act.50 The Court also took note that a

petition for a declaration of the presumptive death of an absent spouse

may even be made in collusion with the other spouse.
In Lukban v. Republic of the Philippines,51 the Court declared that the
words "proper proceedings" in Article 349 of the Revised Penal Code
can only refer to those authorized by law such as Articles 390 and 391 of
the Civil Code which refer to the administration or settlement of the
estate of a deceased person. In Gue v. Republic of the Philippines,52 the
Court rejected the contention of the petitioner therein that, under Article
390 of the Civil Code, the courts are authorized to declare the
presumptive death of a person after an absence of seven years. The
Court reiterated its rulings in Szatraw, Lukban and Jones.
Former Chief Justice Ramon C. Aquino was of the view that "the
provision of Article 349 or "before the absent spouse has been declared
presumptively dead by means of a judgment reached in the proper
proceedings" is erroneous and should be considered as not written. He
opined that such provision presupposes that, if the prior marriage has not
been legally dissolved and the absent first spouse has not been declared
presumptively dead in a proper court proceedings, the subsequent
marriage is bigamous. He maintains that the supposition is not true. 53 A
second marriage is bigamous only when the circumstances in paragraphs
1 and 2 of Article 83 of the Civil Code are not present. 54 Former Senator
Ambrosio Padilla was, likewise, of the view that Article 349 seems to
require judicial decree of dissolution or judicial declaration of absence
but even with such decree, a second marriage in good faith will not
constitute bigamy. He posits that a second marriage, if not illegal, even if
it be annullable, should not give rise to bigamy.55 Former Justice Luis B.
Reyes, on the other hand, was of the view that in the case of an absent
spouse who could not yet be presumed dead according to the Civil Code,
the spouse present cannot be charged and convicted of bigamy in case
he/she contracts a second marriage.56
The Committee tasked to prepare the Family Code proposed the
amendments of Articles 390 and 391 of the Civil Code to conform to
Article 349 of the Revised Penal Code, in that, in a case where a spouse
is absent for the requisite period, the present spouse may contract a
subsequent marriage only after securing a judgment declaring the
presumptive death of the absent spouse to avoid being charged and
convicted of bigamy; the present spouse will have to adduce evidence

that he had a well-founded belief that the absent spouse was already
dead.57 Such judgment is proof of the good faith of the present spouse
who contracted a subsequent marriage; thus, even if the present spouse
is later charged with bigamy if the absentee spouse reappears, he cannot
be convicted of the crime. As explained by former Justice Alicia
Sempio-Diy:
Such rulings, however, conflict with Art. 349 of the Revised Penal
Code providing that the present spouse must first ask for a declaration of
presumptive death of the absent spouse in order not to be guilty of
bigamy in case he or she marries again.
The above Article of the Family Code now clearly provides that for the
purpose of the present spouse contracting a second marriage, he or she
must file a summary proceeding as provided in the Code for the
declaration of the presumptive death of the absentee, without prejudice
to the latters reappearance. This provision is intended to protect the
present spouse from a criminal prosecution for bigamy under Art. 349 of
the Revised Penal Code because with the judicial declaration that the
missing spouses presumptively dead, the good faith of the present
spouse in contracting a second marriage is already established.58
Of the same view is former Dean Ernesto L. Pineda (now
Undersecretary of Justice) who wrote that things are now clarified. He
says judicial declaration of presumptive death is now authorized for
purposes
of
remarriage. The present spouse must institute a summary proceeding for
declaration of presumptive death of the absentee, where the ordinary
rules of procedure in trial will not be followed. Affidavits will suffice,
with possible clarificatory examinations of affiants if the Judge finds it
necessary for a full grasp of the facts. The judgment declaring an
absentee as presumptively dead is without prejudice to the effect of
reappearance of the said absentee.
Dean Pineda further states that before, the weight of authority is that the
clause "before the absent spouse has been declared presumptively dead x
x x" should be disregarded because of Article 83, paragraph 3 of the
Civil Code. With the new law, there is a need to institute a summary
proceeding for the declaration of the presumptive death of the absentee,
otherwise, there is bigamy.59

According to Retired Supreme Court Justice Florenz D. Regalado, an

eminent authority on Criminal Law, in some cases where an absentee
spouse is believed to be dead, there must be a judicial declaration of
presumptive death, which could then be made only in the proceedings
for the settlement of his estate.60 Before such declaration, it was held that
the remarriage of the other spouse is bigamous even if done in good
faith.61 Justice Regalado opined that there were contrary views because
of the ruling in Jones and the provisions of Article 83(2) of the Civil
Code, which, however, appears to have been set to rest by Article 41 of
the Family Code, "which requires a summary hearing for the declaration
of presumptive death of the absent spouse before the other spouse can
remarry."
Under Article 238 of the Family Code, a petition for a declaration of the
presumptive death of an absent spouse under Article 41 of the Family
Code may be filed under Articles 239 to 247 of the same Code.62
On the second issue, the petitioner, likewise, faults the trial court and the
CA for awarding moral damages in favor of the private complainant. The
petitioner maintains that moral damages may be awarded only in any of
the cases provided in Article 2219 of the Civil Code, and bigamy is not
one of them. The petitioner asserts that the appellate court failed to apply
its ruling in People v. Bondoc,63 where an award of moral damages for
bigamy was disallowed. In any case, the petitioner maintains, the private
complainant failed to adduce evidence to prove moral damages.
The appellate court awarded moral damages to the private complainant
on its finding that she adduced evidence to prove the same. The
appellate court ruled that while bigamy is not included in those cases
enumerated in Article 2219 of the Civil Code, it is not proscribed from
awarding moral damages against the petitioner. The appellate court ruled
that it is not bound by the following ruling in People v. Bondoc:
... Pero si en dichos asuntos se adjudicaron daos, ello se debi
indedublamente porque el articulo 2219 del Cdigo Civil de Filipinas
autoriza la adjudicacin de daos morales en los delitos de estupro,
rapto, violacin, adulterio o concubinato, y otros actos lascivos, sin
incluir en esta enumeracin el delito de bigamia. No existe, por
consiguiente, base legal para adjudicar aqu los daos de P5,000.00
arriba mencionados.64

The OSG posits that the findings and ruling of the CA are based on the
evidence and the law. The OSG, likewise, avers that the CA was not
bound by its ruling in People v. Rodeo.
The Court rules against the petitioner.
Moral damages include physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock,
social humiliation, and similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they are the proximate
result of the defendants wrongful act or omission. 65An award for moral
damages requires the confluence of the following conditions: first, there
must be an injury, whether physical, mental or psychological, clearly
sustained by the claimant; second, there must be culpable act or
omission factually established; third, the wrongful act or omission of the
defendant is the proximate cause of the injury sustained by the claimant;
and fourth, the award of damages is predicated on any of the cases stated
in Article 2219 or Article 2220 of the Civil Code.66
Moral damages may be awarded in favor of the offended party only in
criminal cases enumerated in Article 2219, paragraphs 1, 3, 4, 5 and 7 of
the Civil Code and analogous cases, viz.:
Art. 2219. Moral damages may be recovered in the following and
analogous cases.
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;

(8) Malicious prosecution;

(9) Acts mentioned in article 309;
(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34
and 35.
The parents of the female seduced, abducted, raped, or abused, referred
to in No. 3 of this article, may also recover moral damages.
The spouse, descendants, ascendants, and brothers and sisters may bring
the action mentioned in No. 9 of this article in the order named.
Thus, the law does not intend that moral damages should be awarded in
all cases where the aggrieved party has suffered mental anguish, fright,
moral anxieties, besmirched reputation, wounded feelings, moral shock,
social humiliation and similar injury arising out of an act or omission of
another, otherwise, there would not have been any reason for the
inclusion of specific acts in Article 221967 and analogous cases (which
refer to those cases bearing analogy or resemblance, corresponds to
some others or resembling, in other respects, as in form, proportion,
relation, etc.)68
Indeed, bigamy is not one of those specifically mentioned in Article
2219 of the Civil Code in which the offender may be ordered to pay
moral damages to the private complainant/offended party. Nevertheless,
the petitioner is liable to the private complainant for moral damages
under Article 2219 in relation to Articles 19, 20 and 21 of the Civil
Code.
According to Article 19, "every person must, in the exercise of his rights
and in the performance of his act with justice, give everyone his due, and
observe honesty and good faith." This provision contains what is
commonly referred to as the principle of abuse of rights, and sets certain
standards which must be observed not only in the exercise of ones
rights but also in the performance of ones duties. The standards are the
following: act with justice; give everyone his due; and observe honesty
and good faith. The elements for abuse of rights are: (a) there is a legal
right or duty; (b) exercised in bad faith; and (c) for the sole intent of
prejudicing or injuring another.69

Article 20 speaks of the general sanctions of all other provisions of law

which do not especially provide for its own sanction. When a right is
exercised in a manner which does not conform to the standards set forth
in the said provision and results in damage to another, a legal wrong is
thereby committed for which the wrongdoer must be responsible.70 If the
provision does not provide a remedy for its violation, an action for
damages under either Article 20 or Article 21 of the Civil Code would be
proper. Article 20 provides that "every person who, contrary to law,
willfully or negligently causes damage to another shall indemnify the
latter for the same." On the other hand, Article 21 provides that "any
person who willfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the
latter
for
damages."
The
latter
provision
is adopted to remedy "the countless gaps in the statutes which leave so
many victims of moral wrongs helpless, even though they have actually
suffered material and moral injury should vouchsafe adequate legal
remedy for that untold number of moral wrongs which it is impossible
for human foresight to prove for specifically in the statutes." Whether or
not the principle of abuse of rights has been violated resulting in
damages under Article 20 or Article 21 of the Civil Code or other
applicable provisions of law depends upon the circumstances of each
case.71
In the present case, the petitioner courted the private complainant and
proposed to marry her. He assured her that he was single. He even
brought his parents to the house of the private complainant where he and
his parents made the same assurance that he was single. Thus, the
private complainant agreed to marry the petitioner, who even stated in
the certificate of marriage that he was single. She lived with the
petitioner and dutifully performed her duties as his wife, believing all
the while that he was her lawful husband. For two years or so until the
petitioner heartlessly abandoned her, the private complainant had no
inkling that he was already married to another before they were married.
Thus, the private complainant was an innocent victim of the petitioners
chicanery and heartless deception, the fraud consisting not of a single act
alone, but a continuous series of acts. Day by day, he maintained the
appearance of being a lawful husband to the private complainant, who
changed her status from a single woman to a married woman, lost the
consortium, attributes and support of a single man she could have

married lawfully and endured mental pain and humiliation, being bound
to a man who it turned out was not her lawful husband.72
The Court rules that the petitioners collective acts of fraud and deceit
before, during and after his marriage with the private complainant were
willful, deliberate and with malice and caused injury to the latter. That
she did not sustain any physical injuries is not a bar to an award for
moral damages. Indeed, in Morris v. Macnab,73 the New Jersey Supreme
Court ruled:
xxx The defendant cites authorities which indicate that, absent physical
injuries, damages for shame, humiliation, and mental anguish are not
recoverable where the actor is simply negligent. See Prosser, supra, at p.
180; 2 Harper & James, Torts, 1031 (1956). But the authorities all
recognize that where the wrong is willful rather than negligent, recovery
may be had for the ordinary, natural, and proximate consequences
though they consist of shame, humiliation, and mental anguish. See
Spiegel v. Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585 (Sup. Ct.
1936); Kuzma v. Millinery Workers, etc., Local 24, 27 N.J. Super, 579,
591, 99 A.2d 833 (App. Div. 1953); Prosser, supra, at p. 38. Here the
defendants conduct was not merely negligent, but was willfully and
maliciously wrongful. It was bound to result in shame, humiliation, and
mental anguish for the plaintiff, and when such result did ensue the
plaintiff became entitled not only to compensatory but also to punitive
damages. See Spiegel v. Evergreen Cemetery Co., supra; Kuzma v
Millinery Workers, etc., Local 24, supra. CF. Note, "Exemplary
Damages in the Law of Torts," 70 Harv. L. Rev. 517 (1957). The
plaintiff testified that because of the defendants bigamous marriage to
her and the attendant publicity she not only was embarrassed and
"ashamed to go out" but "couldnt sleep" but "couldnt eat," had terrific
headaches" and "lost quite a lot of weight." No just basis appears for
judicial interference with the jurys reasonable allowance of $1,000
punitive damages on the first count. See Cabakov v. Thatcher, 37 N.J.
Super 249, 117 A.2d 298 (App. Div.74 1955).
The Court thus declares that the petitioners acts are against public
policy as they undermine and subvert the family as a social institution,
good morals and the interest and general welfare of society.

Because the private complainant was an innocent victim of the

petitioners perfidy, she is not barred from claiming moral damages.
Besides, even considerations of public policy would not prevent her
from recovery. As held inJekshewitz v. Groswald:75
Where a person is induced by the fraudulent representation of another to
do an act which, in consequence of such misrepresentation, he believes
to be neither illegal nor immoral, but which is in fact a criminal offense,
he has a right of action against the person so inducing him for damages
sustained by him in consequence of his having done such act. Burrows v.
Rhodes, [1899] 1 Q.B. 816. In Cooper v. Cooper, 147 Mass. 370, 17
N.E. 892, 9 Am. St. Rep. 721, the court said that a false representation
by the defendant that he was divorced from his former wife, whereby the
plaintiff was induced to marry him, gave her a remedy in tort for deceit.
It seems to have been assumed that the fact that she had unintentionally
violated the law or innocently committed a crime by cohabiting with him
would be no bar to the action, but rather that it might be a ground for
enhancing her damages. The injury to the plaintiff was said to be in her
being led by the promise to give the fellowship and assistance of a wife
to one who was not her husband and to assume and act in a relation and
condition that proved to be false and ignominious. Damages for such an
injury were held to be recoverable in Sherman v. Rawson, 102 Mass.
395 and Kelley v. Riley, 106 Mass. 339, 343, 8 Am. Rep. 336.
Furthermore, in the case at bar the plaintiff does not base her cause of
action upon any transgression of the law by herself but upon the
defendants misrepresentation. The criminal relations which followed,
innocently on her part, were but one of the incidental results of the
defendants fraud for which damages may be assessed.
[7] Actions for deceit for fraudulently inducing a woman to enter into
the marriage relation have been maintained in other jurisdictions. Sears
v. Wegner, 150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.) 819; Larson
v. McMillan, 99 Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y. 434,
97 Am. Dec. 747; Morril v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411.
Considerations of public policy would not prevent recovery where the
circumstances are such that the plaintiff was conscious of no moral
turpitude, that her illegal action was induced solely by the defendants
misrepresentation, and that she does not base her cause of action upon
any transgression of the law by herself. Such considerations

distinguish this case from cases in which the court has refused to lend its
aid to the enforcement of a contract illegal on its face or to one who has
consciously and voluntarily become a party to an illegal act upon which
the cause of action is founded. Szadiwicz v. Cantor, 257 Mass. 518, 520,
154 N.E. 251, 49 A. L. R. 958.76
Considering the attendant circumstances of the case, the Court finds the
award of P200,000.00 for moral damages to be just and reasonable.
IN LIGHT OF ALL THE FOREGOING, the petition
is DENIED. The assailed decision of the Court of Appeals
isAFFIRMED. Costs against the petitioner.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-31695

November 26, 1929

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
SIA TEB BAN (alias JUAN TONINO, alias JUAN
ANTONIO, alias PEDRO ANTONIO), defendant-appellant.
Teofilo Mina for appellant.
Attorney-General Jaranilla for appellee.

ROMUALDEZ, J.:
Found guilty of qualified theft and habitual delinquency, the defendant
was sentenced by the municipal court of Manila and on appeal, by the
Court of First Instance of this City, to two years, four months, and one
day presidio correccional, with costs, and to the additional penalty of
twenty-one years' imprisonment.
He now contends that he is not guilty of the crime with which he is
charged.
But it has been proved that he took the watch described in the
information without the owner's consent, having been overtaken a few
moments later by a friend of the offended party, who found the stolen
watch on the appellant. It is alleged that animus lucrandi has not been
proved. We find it sufficiently established, as the acts of the accused
(one's intention may be gathered from one's deeds) unequivocally
show. 1awphil.net
It is a fundamental doctrine of law that the act penalized by the law is
presumed to be voluntary unless contrary is shown (art. 1, Penal Code).
And from the appellant's felonious acts, freely and deliberately executed,
the moral and legal presumption of a criminal and injurious intent arises
conclusively and indisputably, in the absence of evidence to the contrary
(sec. 334, No. 2, Act No. 190).
In view of the fact that we find no merit in this appeal and that the law
provides for the imposition of accessory penalties, the appealed
judgment is modified, the appellant being sentenced to the accessory
penalties provided in article 58 of the Penal Code, the said judgment
being affirmed in all other respects, with costs against the appellant. So
ordered.
Avancea, C.J., Johnson, Street, Malcolm, Ostrand and Johns, JJ.,
concur.
EN BANC
[G.R. No. 142773. January 28, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARLON

DELIM, LEON DELIM, MANUEL DELIM alias BONG (At Large),
ROBERT
DELIM
(At
Large),
and
RONALD
DELIM alias BONG, accused-appellants.

At their arraignment, Marlon, Ronald and Leon, with the assistance of

their counsel, pleaded not guilty to the charge.

DECISION

Marlon, Manuel and Robert Delim are brothers. They are the uncles of
Leon Delim and Ronald Delim. Modesto Manalo Bantas, the victim, was
an Igorot and a carpenter. He took the surname Delim after he was
adopted by the father of Marlon, Manuel and Robert. However,
Modestos wife, Rita, an illiterate, and their 16-year old son, Randy,
continued using Manalo Bantas as their surname. Modesto, Rita and
Randy considered Marlon, Robert, Ronald, Manuel and Leon as their
relatives. Manuel and Leon were the neighbors of Modesto. Marlon,
Robert and Ronald used to visit Modesto and his family. Modesto and
his family and the Delim kins resided in Barangay Bila, Sison,
Pangasinan.

CALLEJO, SR., J.:

Before the Court on automatic review is the Decision,[1] dated January
14, 2000, of the Regional Trial Court, Branch 46, Urdaneta City, finding
accused-appellants Marlon Delim, Leon Delim and Ronald Delim guilty
beyond reasonable doubt of the crime of murder and sentencing them to
suffer the supreme penalty of death. The court also ordered accusedappellants to pay, jointly and severally, the heirs of the victim the sums
of P75,000.00 as moral damages and P25,000.00 as exemplary
damages.
Accused-appellants Marlon, Ronald and Leon, together with Manuel
alias Bong and Robert, all surnamed Delim, were indicted for murder
under an Information dated May 4, 1999 which reads:
That on or about January 23, 1999, in the evening at Brgy. Bila, Sison,
Pangasinan, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with short firearms barged-in and entered
the house of Modesto Delim and once inside with intent to
kill, treachery, evident premedidation (sic), conspiring with one another,
did then and there, wilfully, unlawfully and feloniously grab, hold,
hogtie, gag with a piece of cloth, brought out and abduct Modesto
Delim, accused Leon Delim and Manuel Delim stayed in the house
guarded and prevented the wife and son of Modesto Delim from helping
the latter, thereafter with abuse of superior strength stabbed and killed
said Modesto Delim, to the damage and prejudice of his heirs.
CONTRARY to Article 248 of the Revised Penal Code, as amended by
Republic Act No. 7659.[2]
Only accused-appellants Marlon (Bongbong), Leon and Ronald, all
surnamed Delim, were apprehended. Accused Robert and Manuel
remain at-large.

At the trial, the prosecution established the following relevant facts[3]

On January 23, 1999, at around 6:30 in the evening, Modesto, Rita and
Randy were preparing to have their supper in their home. Joining them
were Modesto and Ritas two young grandchildren, aged 5 and 7 years
old. They were about to eat their dinner when Marlon, Robert and
Ronald suddenly barged into the house and closed the door. Each of the
three intruders was armed with a short handgun. Marlon poked his gun
at Modesto while Robert and Ronald simultaneously grabbed and hogtied the victim. A piece of cloth was placed in the mouth of Modesto.
[4] Marlon, Robert and Ronald herded Modesto out of the house on
their way towards the direction of Paldit, Sison, Pangasinan. Rita and
Randy were warned by the intruders not to leave the house. Leon and
Manuel, who were also armed with short handguns, stayed put by the
door to the house of Modesto and ordered Rita and Randy to stay where
they were. Leon and Manuel left the house of Modesto only at around
7:00 a.m. the following day, January 24, 1999.
As soon as Leon and Manuel had left, Randy rushed to the house of his
uncle, Darwin Nio, at Sitio Labayog, informed the latter of the incident
the night before and sought his help for the retrieval of Modesto. Randy
was advised to report the matter to the police authorities. However,
Randy opted to first look for his father. He and his other relatives
scoured the vicinity to locate Modesto to no avail. They proceeded to
Paldit, Sison, Pangasinan, around 200 meters away from Modestos

house, to locate Modesto but failed to find him there. On January 25,
1999, Randy and his relatives returned to the housing project in Paldit,
Sison, Pangasinan to locate Modesto but again failed to find him
there. On January 26, 1999, Randy reported the incident to the police
authorities.

- 10 x 10 ml. GSW, pre-auricular area, right

At around 3:00 in the afternoon of January 27, 1999, Randy, in the

company of his relatives, Nida Pucal, Pepito Pucal, Bernard Osias and
Daniel Delim, returned to the housing project in Paldit, Sison,
Pangasinan and this time they found Modesto under thick bushes in a
grassy area. He was already dead. The cadaver was bloated and in the
state of decomposition. It exuded a bad odor. Tiny white worms swarmed
over and feasted on the cadaver. Randy and his relatives immediately
rushed to the police station to report the incident and to seek assistance.

- 10 x 10 ml. GSW, below middle nose, directed upward (POE)

When informed of the discovery of Modestos cadaver, the local chief of

police and SPO2 Jovencio Fajarito and other policemen rushed to the
scene and saw the cadaver under the thick bushes. Pictures were taken
of the cadaver.[5] Rita and Randy divulged to the police investigators
the names and addresses of Marlon, Ronald, Robert, Leon and Manuel,
whom they claimed were responsible for the death of Modesto. Rita and
Randy were at a loss why the five malefactors seized Modesto and killed
him. Rita and Randy gave their respective sworn statements to the police
investigators.[6] Police authorities proceeded to arrest Marlon, Ronald,
Robert, Manuel and Leon but failed to find them in their respective
houses. The police officers scoured the mountainous parts of Barangays
Immalog and Labayog to no avail.
The cadaver was autopsied by Dr. Maria Fe L. De Guzman who
prepared her autopsy report, which reads:

- 20 x 20 ml. GSW, mandibular areas, right

- 10 x 10 ml. GSW, maxillary area, right

- 30 x 40 ml. GSW, mid parieto occipital area (POEx)

- 2 x 1 cms. lacerated wound, right cheek
- 1 x 1 cm. stabbed wound, axillary area, left
- 1 x 1 cm. stabbed wound, lateral aspect M/3rd left arm
- 1 x 1 cm. stabbed wound, lateral aspect D/3rd, left arm
- 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm
- 1 x 1 cm. stabbed wound, medial aspect D/3rd, left arm
- #3; 1 x 1 cm. in line with each other, stabbed wound, medial aspect,
M/3rd, left forearm
- 1 x 1 cm. stabbed wound, medial aspect, D/3rd, left forearm
-

10 x 6 cms. Inflamed scrotum

penis inflamed

SIGNIFICANT EXTERNAL FINDINGS:

SIGNIFICANT INTERNAL FINDINGS:

- Body - both upper extremities are flexed

- no significant internal findings

- both lower extremities are flexed

CAUSE OF DEATH:

- (+) body decomposition

GUN SHOT WOUND, HEAD.[7]

- (+) worms coming out from injuries

The stab wounds sustained by Modesto on his left arm and forearm were
defensive wounds. The police investigators were able to confirm that
Marlon, Ronald, Robert, Leon and Manuel had no licenses for their
firearms.[8]

lived with his sister, Francisca Delim. Upon his return to Manila on
January 29, 1999, he immediately proceeded to Baguio to visit his
cousin. Marlon denied setting foot in Bila, Sison, Pangasinan after his
sojourn in Dumaguete City.

Records of the PNP Criminal Investigation and Detection Group in

Baguio City show that Marlon had pending cases for robbery in the
Regional Trial Court of Baguio City in Criminal Case No. 16193-R, and
for robbery in band in Criminal Cases Nos. 9801 and 9802 pending with
the Regional Trial Court in Urdaneta, Pangasinan.[9]

The trial court rendered judgment finding accused-appellants guilty of

murder. The dispositive portion of the trial courts decision reads:

To exculpate themselves, Marlon, Ronald and Leon interposed denial

and alibi.[10]
Ronald claimed that on January 23, 1999, he, his wife and children, his
mother, his brothers and sisters were in their house at Asan Norte, Sison,
Pangasinan about two kilometers away from Modestos house.
He denied having been in the house of Modesto on January 23, 1999
and of abducting and killing him. He theorized that Rita and Randy
falsely implicated him upon the coaching of Melchor Javier who
allegedly had a quarrel with him concerning politics.
Leon for his part averred that on January 23, 1999, he was in the house
of his sister, Hermelita Estabillo at No. 55-B, Salet, Laoag City, Ilocos
Norte where he had been living since 1997 after leaving Asan Norte,
Sison, Pangasinan. Since then, he had been working for Sally Asuncion
at a hollow-block factory in that city where he was a stay-in worker.

WHEREFORE, JUDGMENT OF CONVICTION beyond reasonable

doubt is hereby rendered against Ronald Delim, Marlon Delim and Leon
Delim (for) the commission of Aggravated Murder, an offense defined
and penalized under Article 248 of the Revised Penal Code, as amended
by R.A. 7659 and the Court sentences Marlon Delim, Ronald Delim and
Leon Delim to suffer the penalty of DEATH, to be implemented in the
manner as provided for by law; the Court likewise orders the accused,
jointly and solidarily, to indemnify the heirs of Modesto Delim the sum
of P75,000.00 as moral damages, plus the amount of P25,000.00 as
exemplary damages.
The Branch Clerk of Court is hereby ordered to transmit the entire
records of this case to the Honorable Supreme Court, and to prepare the
mittimus fifteen (15) days from date of promulgation.
The Jail Warden, Bureau of Jail Management and Penology, Urdaneta
District Jail, Urdaneta City is hereby ordered to transmit the persons of
Marlon, Ronald and Leon, all surnamed Delim to the New Bilibid
Prisons, Muntinlupa City, fifteen days from receipt of this decision.
SO ORDERED.[12]

Sally Asuncion corroborated Leons alibi. She testified that Leon Delim
never went home to his hometown in Pangasinan during his
employment. His sister, Hermelita Estabillo, likewise averred that on
January 23, 1999, his brother was at her house to give her his
laundry. She claimed that the distance between Laoag City and Bila,
Sison, Pangasinan can be traversed in six hours by bus. Leon presented
a Barangay Certificate to prove that he was a resident of Laoag City
from January 1998 up to February 1999.[11]
Marlon asserted that he was on vacation in Dumaguete City from
December 26, 1998 up to January 29, 1999. During his stay there, he

The trial court appreciated treachery as a qualifying circumstance and

of taking advantage of superior strength, nighttime and use of
unlicensed firearms as separate of aggravating circumstances in the
commission of the crime. Marlon, Ronald and Leon, in their appeal
brief, assail the decision alleging that:
I

THE COURT A QUO GRAVELY ERRED IN FINDING THE

ACCUSED-APPELLANTS GUILTY BEYOND REASONABLE DOUBT
OF THE CRIME OF MURDER.
II
THE COURT A QUO GRAVELY ERRED IN FINDING THAT
CONSPIRACY EXISTED IN THE CASE AT BAR.
III
THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT
AND CREDENCE TO ACCUSED-APPELLANTS DEFENSE OF ALIBI.
[13]
Before resolving the merits of the case at bar, we first resolve the matter
of whether the crime charged in the Information is murder or
kidnapping. During the deliberation, some distinguished members of the
Court opined that under the Information, Marlon, Ronald and Leon are
charged with kidnapping under Article 267 of the Revised Penal Code
and not with murder in its aggravated form in light of the allegation
therein that the accused willfully, unlawfully and feloniously grab(bed),
h(e)ld, hog-tie(d), gag(ged), with a piece of cloth, brought out and
abduct(ed) Modesto Delim (while) Leon Delim and Manuel Delim
stayed in the house (and) guarded and prevented the wife and son of
Modesto Delim from helping the latter. They submit that the foregoing
allegation constitutes the act of deprivation of liberty of the victim, the
gravamen in the crime of kidnapping. They contend that the fact that the
Information went further to charge accused with the killing of the victim
should be of no moment, the real nature of the criminal charge being
determined not from the caption or the preamble of the Information nor
from the specification of the law alleged to have been violated these
being conclusions of law but by the actual recital of facts in the
complaint or information. They further submit that since the prosecution
failed to prove motive on the part of Marlon, Ronald and Leon to kill
Modesto, they are not criminally liable for the death of the victim but
only for kidnapping the victim.
It bears stressing that in determining what crime is charged in an
information, the material inculpatory facts recited therein describing the

crime charged in relation to the penal law violated are

controlling. Where the specific intent of the malefactor is determinative
of the crime charged such specific intent must be alleged in the
information and proved by the prosecution. A decade ago, this Court
held in People v. Isabelo Puno, et al.,[14] that for kidnapping to exist,
there must be indubitable proof that the actual specific intent of the
malefactor is to deprive the offended party of his liberty and not where
such restraint of his freedom of action is merely an incident in the
commission of another offense primarily intended by the
malefactor. This Court further held:
x x x. Hence, as early as United States vs. Ancheta, and consistently
reiterated thereafter, it has been held that the detention and/or forcible
taking away of the victims by the accused, even for an appreciable
period of time but for the primary and ultimate purpose of killing them,
holds the offenders liable for taking their lives or such other offenses
they committed in relation thereto, but the incidental deprivation of the
victims liberty does not constitute kidnapping or serious illegal
detention.[15]
If the primary and ultimate purpose of the accused is to kill the victim,
the incidental deprivation of the victims liberty does not constitute the
felony of kidnapping but is merely a preparatory act to the killing, and
hence, is merged into, or absorbed by, the killing of the victim.[16] The
crime committed would either be homicide or murder.
What is primordial then is the specific intent of the malefactors as
disclosed in the information or criminal complaint that is determinative
of what crime the accused is charged with--that of murder or
kidnapping.
Philippine and American penal laws have a common thread on the
concept of specific intent as an essential element of specific intent
crimes. Specific intent is used to describe a state of mind which exists
where circumstances indicate that an offender actively desired certain
criminal consequences or objectively desired a specific result to follow
his act or failure to act.[17]Specific intent involves a state of the
mind. It is the particular purpose or specific intention in doing the
prohibited act. Specific intent must be alleged in the Information and

proved by the state in a prosecution for a crime requiring specific intent.

[18] Kidnapping and murder are specific intent crimes.
Specific intent may be proved by direct evidence or by circumstantial
evidence. It may be inferred from the circumstances of the actions of the
accused as established by the evidence on record.[19]
Specific intent is not synonymous with motive. Motive generally is
referred to as the reason which prompts the accused to engage in a
particular criminal activity. Motive is not an essential element of a
crime and hence the prosecution need not prove the same. As a general
rule, proof of motive for the commission of the offense charged does not
show guilt and absence of proof of such motive does not establish the
innocence of accused for the crime charged such as murder.[20] The
history of crimes shows that murders are generally committed from
motives comparatively trivial.[21] Crime is rarely rational. In murder,
the specific intent is to kill the victim. In kidnapping, the specific intent
is to deprive the victim of his/her liberty. If there is no motive for the
crime, the accused cannot be convicted for kidnapping.[22] In
kidnapping for ransom, the motive is ransom. Where accused kills the
victim to avenge the death of a loved one, the motive is revenge.
In this case, it is evident on the face of the Information that the specific
intent of the malefactors in barging into the house of Modesto was to kill
him and that he was seized precisely to kill him with the attendant
modifying circumstances. The act of the malefactors of abducting
Modesto was merely incidental to their primary purpose of killing
him. Moreover, there is no specific allegation in the information that the
primary intent of the malefactors was to deprive Modesto of his freedom
or liberty and that killing him was merely incidental to kidnapping.
[23] Irrefragably then, the crime charged in the Information is Murder
under Article 248 of the Revised Penal Code and not Kidnapping under
Article 268 thereof.
The threshold issue that now comes to fore is whether or not the
prosecution mustered the requisite quantum of evidence to prove that
Marlon, Ronald and Leon are guilty of murder.
In criminal prosecutions, the prosecution is burdened to prove the guilt
of the accused beyond cavil of doubt. The prosecution must rely on the

strength of its own evidence and not on the weakness of the evidence of
the accused. The proof against the accused must survive the test of
reason; the strongest suspicion must not be permitted to sway judgment.
[24]
In the case at bar, the prosecution was burdened to prove the corpus
delicti which consists of two things: first, the criminal act and second,
defendants agency in the commission of the act.[25] Wharton says
that corpus delicti includes two things: first, the objective; second, the
subjective element of crimes.[26] In homicide (by dolo) and in murder
cases, the prosecution is burdened to prove: (a) the death of the party
alleged to be dead; (b) that the death was produced by the criminal act
of some other than the deceased and was not the result of accident,
natural cause or suicide; and (c) that defendant committed the criminal
act or was in some way criminally responsible for the act which
produced the death.[27] To prove the felony of homicide or murder,
there must be incontrovertible evidence, direct or circumstantial, that
the victim was deliberately killed (with malice); in other words, that
there was intent to kill. Such evidence may consist inter alia in the use of
weapons by the malefactors, the nature, location and number of wounds
sustained by the victim and the words uttered by the malefactors before,
at the time or immediately after the killing of the victim. If the victim
dies because of a deliberate act of the malefactor, intent to kill is
conclusively presumed.
The prosecution is burdened to prove corpus delicti beyond reasonable
doubt either by direct evidence or by circumstantial or presumptive
evidence.[28]
In the case at bar, the prosecution adduced the requisite quantum of
proof of corpus delicti. Modesto sustained five (5) gunshot wounds. He
also sustained seven (7) stab wounds,[29]defensive in nature. The use
by the malefactors of deadly weapons, more specifically handguns and
knives, in the killing of the victim as well as the nature, number and
location of the wounds sustained by said victim are evidence of the
intent by the malefactors to kill the victim with all the consequences
flowing therefrom.[30] As the State Supreme Court of Wisconsin held
in Cupps v. State:[31]

This rule, that every person is presumed to contemplate the ordinary and
natural consequences of his own acts, is applied even in capital
cases. Because men generally act deliberately and by the determination
of their own will, and not from the impulse of blind passion, the law
presumes that every man always thus acts, until the contrary
appears. Therefore, when one man is found to have killed another, if the
circumstances of the homicide do not of themselves show that it was not
intended, but was accidental, it is presumed that the death of the
deceased was designed by the slayer; and the burden of proof is on him
to show that it was otherwise.
The prosecution did not present direct evidence to prove the authors of
the killing of Modesto. It relied on circumstantial evidence to discharge
its burden of proving the guilt of accused-appellants of
murder. Circumstantial evidence consists of proof of collateral facts and
circumstances from which the existence of the main fact may be inferred
according to reason and common experience.[32] What was once a rule
of account respectability is now entombed in Section 4, Rule 133 of the
Revised Rules of Evidence which states that circumstantial evidence,
sometimes referred to as indirect or presumptive evidence, is sufficient
as anchor for a judgment of conviction if the following requisites
concur:
x x x if (a) there is more than one circumstance; (b) the facts from which
the inferences are derived have been established; and (c) the
combination of all the circumstances is such as to warrant a finding of
guilt beyond reasonable doubt.[33]
The prosecution is burdened to prove the essential events which
constitute a compact mass of circumstantial evidence, and the proof of
each being confirmed by the proof of the other, and all without exception
leading by mutual support to but one conclusion: the guilt of accused
for the offense charged.[34] For circumstantial evidence to be sufficient
to support a conviction, all the circumstances must be consistent with
each other, consistent with the hypothesis that accused is guilty and at
the same time inconsistent with the hypothesis that he is innocent, and
with every other rational hypothesis except that of guilt.[35] If the
prosecution adduced the requisite circumstantial evidence to prove the
guilt of accused beyond reasonable doubt, the burden of evidence shifts
to the accused to controvert the evidence of the prosecution.

In the present case, the prosecution mustered the requisite quantum of

circumstantial evidence to prove that accused-appellants, in
confabulation with their co-accused, conspired to kill and did kill
Modesto:
1. Randy Bantas testified that Marlon and Ronald barged into the house
of Modesto, each armed with a handgun. Marlon poked his gun on
Modesto while Ronald hog-tied Modesto.They then seized Modesto and
herded him out of his house:
FISCAL TOMBOC: What were you doing then at that time in your
house?
A We were eating, sir.
Q You said we, who were your companions eating then at that time?
A My father, my mother and the two children and myself, sir.
Q While taking your supper that time, do you recall if there was
anything unusual that happened at that time?
A When we were about to start to eat three armed men entered our
house.
Q Do you know these three armed men who entered your house?
A Yes, sir.
Q Who are they, name them one by one?
A Marlon Delim, Robert Delim and Ronald Delim.
Q Are these three persons inside the courtroom now?
A Two of them, sir.
Q Who are these two who are inside the courtroom?
A Marlon and Ronald, sir.

Q Will you please stand up and point to them?

A (Witness is pointing to a person seated on the bench inside the
courtroom, who, when his name was asked answered Marlon
Delim. Likewise, witness is pointing unto a person seated on the bench
inside the courtroom, who, when his name was asked he answered
Ronald Delim).

A Manuel Delim and Leon Delim said, Stay in your house, and guarded
us.
COURT: You said your father was taken out, who?
A Marlon, Robert and Ronald, sir.
FISCAL TOMBOC: Where did these three persons bring your father?

Q You said that these two armed persons entered your house, what kind
of arm were they carrying at that time?

A I do not know where they brought my father, sir.

A Short handgun, sir.

COURT: Was your father taken inside your house or outside?

Q When these three armed persons whom you have mentioned, armed
with short firearms, what did they do then when they entered your
house?

A Inside our house, sir.

A They took my father, sir.

A Yes, sir.

Q Who took your father?

Q What did Ronald and Robert do while Marlon was poking his gun to
your father?

Q You said that Marlon poked a gun at your father, is that correct?

A Marlon Delim, Robert Delim and Ronald Delim, sir.

A Ronald and Robert were the ones who pulled my father out, sir.[36]
Q When these three persons took your father, what did you do then?
A None, sir.
COURT: How did they get your father?
A They poked a gun and brought him outside the house, sir.

Randys account of the incident was corroborated by his mother, Rita,

who testified:
PROSECUTION TOMBOC: You said during the last hearing that on
January 23, 1999 at around 6:30 in the evening while preparing for
your supper three (3) armed men entered inside your house, who were
these three (3) men who entered your house?

FISCAL TOMBOC: Who poked a gun?

A I know, Marlon, Bongbong and Robert, sir.
A Marlon Delim, sir.
Q Again, Mr. Witness, will you point to the person who poked a gun?
A (Witness is pointing to Malon (sic) Delim, one of the accused).
Q After bringing your father out from your house, what transpired next?

ATTY. FLORENDO: We just make of record that the witness is taking

her time to answer, Your Honor.
PROSECUTOR TOMBOC: You said that Marlon Delim, Robert Delim
and Bongbong entered your house, are these three (3) persons who
entered your house in Court now?

A They are here except the other one, sir.

A Because they were at the door, sir.

Q Will you please step down and point to the persons who entered your
house?

FISCAL TOMBOC: What was their appearance that time when these
two persons were guarding you, these Leon and Manuel?

A Witness is pointing to Marlon Delim, Robert Delim is not in Court and

Bongbong is Ronald Delim.

A They were armed, sir.

Q What do you mean by armed?

Q After these three (3) armed men entered your house, what happened
then?

A They have gun, sir.

A My husband was brought out, sir.

Q What kind of firearm?

Q What is the name of your husband?

A Short firearm, sir.

A Modesto Delim, sir.[37]

Q By the way, where are these Leon and Manuel now, if you know?

2. Randy said that when Marlon and Ronald barged into their house,
Leon, armed with a handgun, acted as a lookout when he stood guard by
the door of the house of Modesto and remained thereat until 7:00 a.m. of
the next day:

A Leon is here, sir.

Q About Manuel?
A None, sir.

FISCAL TOMBOC: When your father was pulled out from your house
by these three persons, what did you and your mother do while these
three persons were taking out of your house?
A We did not do anything because Manuel and Leon Delim guarded us.
COURT: Where, in your house?
A Yes, sir.
FISCAL TOMBOC: From that very time that your father was pulled out
by these three persons Marlon, Robert and Ronal (sic), where were Leon
and Manuel then?
A They were at the door, sir.
COURT: Why do you know that they were guarding you?

Q Will you please stand up and point at Leon, Mr. Witness?

A (Witness pointed to a person seated on the bench inside the
courtroom, who when his name was asked, answered, Leon Delim).[38]
3. Rita and Randy were ordered by Leon not to leave the house as
Ronald and Marlon left the house with Modesto in tow. Rita and Randy
were detained in their house up to 7:00 a.m. of January 24, 1999 to
prevent them from seeking help from their relatives and police
authorities.
4. Randy likewise testified that on January 27, 1999, at about 3:00 p.m.,
the cadaver of Modesto was found under the thick bushes in a grassy
area in the housing project located about 200 meters away from the
house of Modesto. The cadaver exuded bad odor and was already in the
state of decomposition:

Q So what did you do then on January 27, where did you look for your
father?
A The same place and at 3:00 oclock P.M., we were able to find my
father.

The testimony of Randy was corroborated by Dr. de Guzman who

testified that the cadaver of Modesto was in a state of decomposition,
with tiny white worms crawling from his wounds, and that his penis and
scrotum were inflamed. The victim sustained five gunshot wounds and
defensive wounds on the left arm and forearm:

COURT: Where?

PROS. TOMBOC:

A At the housing project at Paldit, Sison, Pangasinan, sir.

Q Will you please tell the Honorable Court your findings, Doctora?

FISCAL TOMBOC: Do you have companions at that time when you

were able to look for your father on January 27, 1999 at 3:00 oclock
P.M.?

WITNESS:

A Yes, sir.
Q Who?

A First finding: Upon seeing the cadaver, this is the position of the body,
both upper extremities are flexed and both lower extremities are flexed
(Nakakukot).
Q How many days had already elapsed when you autopsied the cadaver
of the victim, Doctora?

A My Aunt, sir.
A Four (4) days upon the recovery of the body, sir.
Q What is the name of your Aunt?
Q And what was your findings Doctora?
A Nida Pucal, sir.
Q Who else?

A The body was already under the state of decomposition, sir, with foul
odor and there were so many worms coming out from the injuries, there
were tiny white worms, sir.

A Pepito Pucal, Bernard Osias and Daniel Delim, sir.

Q What else did you observe Doctora?
COURT: When you found your father, what was his condition?
A He was dead, sir.
COURT: Go ahead.
FISCAL TOMBOC: You said that he was already dead, what was his
appearance then when you saw him dead?
A He has bad odor, sir, in the state of decompsition (sic).[39]

A Upon seeing the cadaver I asked the relative to refer it to the NBI
sir. Actually the victim was an igorot (sic) and they have tradition that
they will bury immediately. Whether they like it or not I should do it, sir.
Q What else Doctora?
A And the penis was inflammed (sic), the scrotum was also inflammed
(sic), sir.

And for the head injuries there was 10 x 10 ml. GSW pre-auricular area,
right; there was also 20 ml x 20 ml. GSW, mandibular area, right; I
cannot also determine the exit.

Time Since Death Condition of the Body

Q So there were two (2) gunshot wounds (GSW) Doctora?

Trunk bloated. Face discolored and swollen. Blisters present.

A Yes sir.

Moving maggots seen.

And there was also 10 x 10 ml. GSW, maxillary area, right; there was
also 10 x 10 ml. GSW, below middle nose, directed upward (POE); and
there was also 30 x 40 ml. GSW, mid parieto-occipital area (POEx).

72 hours Whole body grossly swollen and

Q How many all in all are the gunshot wound?

Tissues soft and discolored.[42]

A Five (5) sir.

The lapse of two or three to four days from the seizure of the victim in
the evening of January 23, 1999 to the discovery of his cadaver which
was already in the state of putrefaction in the afternoon of January 27,
1999, about 200 meters away from his house, is consistent with and
confirmatory of the contention of the prosecution that the victim was
killed precisely by the very malefactors who seized him on January 23,
1999.

And also there was 2 x 1 cms. Lacerated wound, right cheek; 1 x 1 cm.
stabbed wound, axillary area, left; 1 x 1 cm. stabbed wound, lateral
aspect M/3rd, left arm; 1 x 1 cm. stabbed wound lateral aspect D/3rd,
left arm; 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm; 1 x 1
cm. stabbed wound, medial aspect D/3rd, left arm; and #3; 1 x 1 cm. in
line with each other, stabbed wound, medial aspect, M/3rd, left forearm.
Q How many stabbed wound are there Doctora?
A There were seven (7) stabbed wounds, sir.

48 hours Ova of flies seen.

disfigured. Hair and nails loose.

5. When police authorities went to the residences of all the malefactors,

the latter had flown the coop and were nowhere to be found:
COURT: In connection with this case, you investigated the wife and son
of Modesto Delim?

Q Those stabbed wounds were defensive wounds, Doctora?

A Yes, sir.
A Yes sir.[40]
The state of decomposition of the cadaver, with tiny white worms
swarming and feasting on it and the distention of his scrotum and penis
are evidence that the cadaver was in the stage of putrefaction and that
the victim had been dead for a period ranging from three to six days.
[41] Admittedly, there are variant factors determinative of the exact
death of the victim. An equally persuasive authority states:
Chronological Sequence of Putrefactive Changes Occurring in Tropical
Region:

Q In the course of the investigation did you come to know who were the
suspects?
A Yes, sir, she elaborated that the suspects were their neighbors, Marlon
Delim and his brothers, sir.
Q What are the names of the brothers?
A Manuel Delim, Leon Delim I cannot remember the others, sir.

Q By reason of that information were you able to apprehend any of them

for investigation?

A Yes, sir, I know them.

Q Why do you know Manuel and Leon prior to January 23, 1999?

A No, sir.
A They are my neighbors, sir.
Q Why?
A Because when we were dispatched by the Chief of Police no Delim
brothers could be found, they all left the place, sir.

Q How about Marlon, Robert and Bongbong do you know them before
January 23, 1999?
A I know them, sir.

Q In what place did you look for the brothers Delim?

Q Why do you know them?
A Within the vicinity, sir.
A They used to go to our house, sir.
Q In what place?
A Brgy. Bila and the place where the crime was committed in Brgy. Bila
and the place where the cadaver was found in Paldit, sir.

Q I noticed that Marlon, Bongbong, Robert, Manuel and Leon are all
Delims and your husbands name is Modesto Delim are they related with
each other?

Q Where did you look for the Delim brothers?

A Yes, sir.[44]

A Nearby barangays, Immalog, sir.

The sudden disappearance of Marlon, Ronald and Leon from their

houses in Barangay Bila, Sison is strong circumstantial evidence of their
guilt for the death of Modesto. Although flight after the commission of
an offense does not create a legal presumption of guilt, nevertheless, the
same is admissible in evidence against them and if not satisfactorily
explained in a manner consistent with their innocence, will tend to show
that they, in fact, killed Modesto.[45]

Q Wherelse (sic)?
A Labayog, Sison, sir.
Q Wherelse?
A In mountainous part of Immalog, part of Tuba Benguet, sir.
Q What was the result?
A Negative result, sir.[43]
6. Leon was the neighbor of Modesto and Rita while Marlon and Ronald
used to go to the house of Modesto and Rita:
COURT: These Leon and Manuel Delim are they known to you prior to
that day, January 23, 1999?

It is true that the prosecution failed to prove motive on the part of the
malefactors to abduct and kill Modesto. Indeed, Randy and Rita testified
that they were not aware of any misunderstanding or grudge between
Modesto on the one hand and Marlon, Ronald and Leon and their coaccused on the other before the incident, or any motivation on the part
of the three malefactors to cause harm to Modesto. Nonetheless, it
cannot thereby be concluded that a person or persons other than
Marlon, Ronald and Leon were criminally responsible for the death of
the victim. It is a matter of judicial notice that nowadays persons have
killed or committed serious crimes for no reason at all.[46] In this case,
the inscrutable facts are that Marlon and Ronald, each of whom was

armed with a handgun, forcibly took Modesto from his house at the
gunpoint, hogtied, put a piece of cloth in his mouth and after Ronald
and Marlon had left the house with Modesto in tow, Rita heard three
gunshots or so and the cadaver of Modesto was found concealed under
the bushes and already in a state of putrefaction in the afternoon of
January 27, 1999. Modesto sustained several gunshot wounds and died
because of a gunshot wound on the head. The criminal acts and the
connection of Marlon, Ronald and Leon with said acts having been
proved by the prosecution beyond reasonable doubt, the act itself
furnishes the evidence, that to its perpetration there was some causes or
influences moving the mind.[47] The remarkable tapestry intricately
woven by the prosecution should not be trashed simply because the
malefactors had no motive to kill Modesto.
Ranged against the evidence of the prosecution, the burden of evidence
shifted on Marlon, Ronald and Leon to rebut the same and explain what
happened to the victim after taking him from his house in the evening of
January 23, 1999. They may have freed the victim shortly after taking
him, or the victim may have been able to escape and that thereafter a
person or some other persons may have killed him. However, Marlon,
Ronald and Leon failed to give any explanation. Instead, they merely
denied having seized and killed the victim and interposed alibi as their
defense.
Leon is equally guilty for the death of Modesto because the evidence on
record shows that he conspired with accused-appellants Marlon and
Ronald and accused Robert and Manuel in killing the victim.
There is conspiracy when two or more persons agree to commit a felony
and decide to commit it.[48] Conspiracy must be proven with the same
quantum of evidence as the felony itself, more specifically by proof
beyond reasonable doubt. Conspiracy is not presumed. It may be proved
by direct evidence or by circumstantial evidence. Conspiracy is
deducible from the acts of the malefactors before, during and after the
commission of the crime which are indicative of a joint purpose,
concerted action and concurrence of sentiment.[49] To establish
conspiracy, it is not essential that there be proof as to the existence of a
previous agreement to commit a crime.[50] It is sufficient if, at the time
of the commission of the crime, the accused had the same purpose and
were united in its execution. If conspiracy is established, the act of one

is deemed the act of all. It matters not who among the accused actually
shot and killed the victim.[51]This is based on the theory of a joint or
mutual agency ad hoc for the prosecution of the common plan:
x x x The acts and declarations of an agent, within the scope of his
authority, are considered and treated as the acts and declarations of his
principal. What is so done by an agent, is done by the principal through
him, as his mere instrument. Franklin Bank of Baltimore v. Pennsylvania
D. & M. Steam Navigation Co., 11 G. & J. 28, 33 (1839). If the
conspiracy be proved to have existed, or rather if evidence be given to
the jury of its existence, the acts of one in furtherance of the common
design are the acts of all; and whatever one does in furtherance of the
common design, he does as the agent of the co-conspirators. R. v.
OConnell, 5 St.Tr. (N.S.) 1, 710.[52]
In the eyes of the law, conspirators are one man, they breathe one
breath, they speak one voice, they wield one arm and the law says that
the acts, words and declaration of each, while in the pursuit of the
common design, are the acts, words and declarations of all.[53]
In the case at bar, Marlon, Ronald and Leon arrived together in the
house of Modesto, each armed with a handgun. Marlon and Ronald
barged into said house while Leon stood guard by the door thereof. After
Marlon and Ronald had left with Modesto in tow, Leon stood by the
door and warned Randy and Rita not to leave the house. Leon stood
guard by the door of the house until 7:00 a.m. of January 24, 1999 when
he left the house. The overt acts of all the malefactors were so
synchronized and executed with precision evincing a preconceived plan
or design of all the malefactors to achieve a common purpose, namely
the killing of Modesto. Irrefragably, the tasks assigned to Leon in the
commission of the crime were (a) to act as a lookout; (b) to ensure that
Rita and Randy remain in their house to prevent them from seeking
assistance from police authorities and their relatives before their
mission to kill Modesto shall have been a fait accompli as well as the
escape of Marlon and Ronald.[54] Patently, Leon, a lookout for the
group, is guilty of the killing of Modesto.[55] Leon may not have been at
the situs criminis when Modesto was killed by Marlon and Ronald
nevertheless he is a principal by direct participation.[56] If part of a
crime has been committed in one place and part in another, each person
concerned in the commission of either part is liable as principal. No

matter how wide may be the separation of the conspirators, if they are
all engaged in a common plan for the execution of a felony and all take
their part in furtherance of the common design, all are liable as
principals. Actual presence is not necessary if there is a direct
connection between the actor and the crime. [57]
Ronald, Marlon and Leon, however, assail the testimonies of Randy and
Rita alleging that the same were marred by inconsistencies:
1. Randy initially stated that he did not know where the assailants
brought his father. Later however, Randy claimed that the malefactors
proceeded to the direction of Paldit, Sison, Pangasinan;
2. Rita on the other hand identified Leon, Marlon and Ronald as those
who barged into their house. She later changed her testimony and
declared that it was Robert, together with Marlon and Ronald who
barged into the house;
3. Rita likewise testified that two men stood outside the house guarding
them. Later, she testified that after the three men brought out the victim,
the two other accused entered the house and guarded them there;
4. Rita claimed that she went out to look for her husband the next day,
or on January 25, 1999, and she was accompanied by her son
Randy. However, Randy testified that he was alone when he looked for
his father from January 24 to 26, 1999.[58]
We do not agree with Marlon, Ronald and Leon. Case law has it that the
findings of facts of the trial court, its calibration of the collective
testimonies of witnesses and its assessment of the probative weight
thereof and its conclusions culled from its findings are accorded by the
appellate court great respect, if not conclusive effect, because of its
unique advantage of observing at close range the demeanor, deportment
and conduct of the witnesses as they give their testimonies before the
court. In the present case, the trial court gave credence and full
probative weight to the testimonies of the witnesses of the
prosecution. Moreover, there is no evidence on record that Randy and
Rita were moved by any improper or ill motive in testifying against the
malefactors and the other accused; hence, their testimonies must be
given full credit and probative weight.[59] The inconsistencies in the

testimonies of Rita and Randy do not render them incredible or their

testimonies barren of probative weight. It must be borne in mind that
human memory is not as unerring as a photograph and a persons sense
of observation is impaired by many factors including the shocking effect
of a crime. A truth-telling witness is not always expected to give an
error-free testimony considering the lapse of time and the treachery of
human memory. What is primordial is that the mass of testimony jibes on
material points, the slight clashing of statements dilute neither the
witnesses credibility nor the veracity of his testimony.[60] Variations on
the testimony of witnesses on the same side with respect to minor,
collateral or incidental matters do not impair the weight of their united
testimony to the prominent facts.[61] Inconsistencies on minor and
trivial matters only serve to strengthen rather than weaken the
credibility of witnesses for they erase the suspicion of rehearsed
testimony.[62]
Moreover, the testimony of a witness should be construed in its entirety
and not in truncated terms and the true meaning of answers to isolated
questions propounded to a witness is to be ascertained by due
consideration of all the questions propounded to the witness and his
answers thereto.[63]
Randys testimony that he did know where the malefactors brought his
father is not inconsistent with his testimony that Ronald and Marlon
brought his father towards the direction of Paldit, Sison,
Pangasinan. Randy may not have known the destination of accusedappellants but he saw the direction to which they went. While it may be
true that when asked to identify the three who barged into their house,
Rita pointed to Leon as one of them, however, Rita had been consistent
throughout her testimony that those who barged into their house were
Ronald and Marlon. Leons counsel never cross-examined Rita and
impeached her testimony on her identification of Leon as one of those
who barged into their house to give her an opportunity to explain her
perceived inconsistency conformably with Rule 132, Section 13 of the
Revised Rules of Evidence which reads:
Before a witness can be impeached by evidence that he has made at
other times statements inconsistent with his present testimony, the
statements must be related to him, with the circumstances of the times
and places and the persons present, and he must be asked whether he

made such statements, and if so, allowed to explain them. If the

statements be in writing they must be shown to the witness before any
question is put to him concerning them.[64]
Hence, the presentation of the inconsistent statements made by Rita is
insufficient for the desired impeachment of her.[65] As to whether Rita
and Randy were together in looking for Modesto or Leon merely stood
guard by the door of the house or entered the house are
inconsequential. The fact is that Leon stood guard throughout the night
to prevent Rita and Randy from seeking assistance for the seizure and
killing of Modesto.
This Court is convinced, as the trial court was, that the respective
testimonies of Randy and Rita bear the earmarks of truth and
sincerity. Despite intense and grueling cross-examination, they
responded with consistency upon material details that could only come
from a firsthand knowledge of the shocking events which unfolded
before their eyes. The Court thus finds no cogent reason to disregard the
findings of the trial court regarding their credibility.
Marlon, Ronald and Leon contend that the trial court committed a
reversible error in not giving credence and probative weight to their
evidence to prove their defense of alibi. They aver that their collective
evidence to prove their defense is strong.
We do not agree. Case law has it that the defense of alibi is one of the
weakest of defenses in criminal prosecution because the same is easy to
concoct between relatives, friends and even those not related to the
offender.[66] It is hard for the prosecution to disprove. For alibi to merit
approbation by the trial court and this Court, Marlon, Ronald and Leon
are burdened to prove with clear and convincing evidence that they were
in a place other than the situs criminis at the time of the commission of
the crime; that it was physically impossible for them to have committed
the said crime.[67] They failed to discharge their burden. Moreover,
Rita and Randy positively and spontaneously identified Marlon, Ronald
and Leon as the culprits. The house of Ronald, where he claimed he was
when the crime was committed, was only two kilometers away from the
house of Modesto and can be negotiated by a tricycle. Leon failed to
adduce any documentary evidence to prove his employment by Sally
Asuncion. The barefaced fact that he was a resident of Laoag City does

not constitute proof that he was in Laoag City on the day of the
commission of the crime. With respect to Marlon, he failed to adduce
evidence aside from his self-serving testimony that he resided in, left
Dumaguete City and arrived in Manila on January 29, 1999.
The trial court convicted Marlon, Ronald and Leon of murder with the
qualifying circumstance of treachery in the killing of Modesto. The trial
court likewise appreciated nighttime and abuse of superior strength and
the use of unlicensed firearms as separate aggravating
circumstances. The Office of the Solicitor General contends that indeed
treachery was attendant in the killing of Modesto. Hence, Marlon,
Ronald and Leon are guilty of murder defined in and penalized by
Article 248 of the Revised Penal Code.
The Court however finds that Marlon, Ronald and Leon are guilty only
of homicide defined in and penalized by Article 248 of the Revised Penal
Code.
Qualifying circumstances such as treachery and abuse of superior
strength must be alleged and proved clearly and conclusively as the
crime itself. Mere conjectures, suppositions or presumptions are utterly
insufficient and cannot produce the effect of qualifying the crime.
[68] As this Court held: No matter how truthful these suppositions or
presumptions may seem, they must not and cannot produce the effect of
aggravating the condition of defendant.[69] Article 14, paragraph 16 of
the Revised Penal Code provides that 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 especially to insure its execution, without risk to himself arising
from the defense which the offended party might make. For treachery to
be appreciated as a qualifying circumstance, the prosecution is
burdened to prove the following elements: (a) the employment of means
of execution which gives the person attacked no opportunity to defend
himself or retaliate; (b) the means of execution is deliberately or
consciously adopted.[70] Although the victim may have been
defenseless at the time he was seized but there is no evidence as to the
particulars of how he was assaulted and killed, treachery cannot be
appreciated against the accused.[71] In this case, the victim was
defenseless when seized by Marlon and Ronald. However, the
prosecution failed to present any witness or conclusive evidence that

Modesto was defenseless immediately before and when he was attacked

and killed. It cannot be presumed that although he was defenseless when
he was seized the victim was in the same situation when he was
attacked, shot and stabbed by the malefactors. To take advantage of
superior strength means to purposely use force that is out of proportion
to the means of defense available to the person attacked.[72] What is
primordial, this Court held in People v. Rogelio Francisco[73] is that
the assailants deliberately took advantage of their combined strength in
order to consummate the crime. It is necessary to show that the
malefactors cooperated in such a way as to secure advantage from their
superiority in strength.[74]In this case, the prosecution failed to adduce
evidence that Marlon and Ronald deliberately took advantage of their
numerical superiority when Modesto was killed. The barefaced facts
that the malefactors outnumbered Modesto and were armed while
Modesto was not does not constitute proof that the three took advantage
of their numerical superioty and their handguns when Modesto was shot
and stabbed.[75]
In sum then, we believe that Marlon, Ronald and Leon are guilty only of
Homicide defined in and penalized by Article 249 of the Revised Penal
Code with reclusion temporal in its full period.
Although the special aggravating circumstance of the use of unlicensed
firearms was proven during the trial, there is no allegation in the
Information that Marlon, Ronald and Leon had no license to possess the
firearm. Lack of license to possess a firearm is an essential element of
the crime of violation of PD1866 as amended by Republic Act No. 8294,
or as a special aggravating circumstance in the felony of homicide or
murder.[76] Neither can dwelling, although proven, aggravate the crime
because said circumstance was not alleged in the Information as
required by Rule 110, Section 8 of the Revised Rules of Court.
[77] Although this rule took effect on December 1, 2000, after the
commission of the offense in this case, nonetheless it had been given
retroactive effect considering that the rule is favorable to the accused.
[78]
There being no modifying circumstances in the commission of homicide,
Marlon, Ronald and Leon should be meted an indeterminate penalty, the
minimum of which shall be taken from the entirety of prision
mayor, ranging from 6 years and one day to 12 years and the maximum

period of which shall be taken from the medium period of reclusion

temporal, ranging from 14 years, 8 months and one day to 17 years and
4 months.
Consequently, the award for damages in favor of the heirs of the victim
should be modified. The sum of P75,000.00 awarded as moral damages
should be reduced to P50,000.00 in accordance with prevailing
jurisprudence.[79] The amount of P25,000.00 as exemplary damages is
in order.[80] In addition, civil indemnity in the amount of P50,000.00
should be awarded without need of proof, likewise in consonance with
prevailing jurisprudence.[81]
IN LIGHT OF ALL THE FOREGOING, the decision of the trial court is
AFFIRMED with MODIFICATION. Accused-appellants Marlon Delim,
Ronald Delim and Leon Delim are hereby found guilty beyond
reasonable doubt of the felony of Homicide defined in and penalized by
Article 249 of the Revised Penal Code. There being no modifying
circumstances in the commission of the crime, each of accusedappellants is hereby meted an indeterminate penalty of from ten (10)
years and one (1) day of prision mayor in its maximum period as
minimum to fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal in its medium period as maximum. Accusedappellants are hereby ordered to pay, jointly and severally, to the heirs
of the victim the amount of P50,000.00 by way of civil indemnity, the
amount of P50,000.00 by way of moral damages and the amount
of P25,000.00 by way of exemplary damages.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing,
Carpio, Austria-Martinez, Corona, Carpio-Morales, and Azcuna, JJ.,
concur.
Vitug, J., see separate opinion.
Ynares-Santiago, and Sandoval-Gutierrez, JJ., joins the dissent of J.
Vitug.

Republic of the Philippines

SUPREME COURT
Manila

of the Revised Penal Code, and to indemnify the heirs of the victim in
the amount of P12,000 without subsidiary imprisonment in case of
insolvency. He appealed.

FIRST DIVISION

The evidence of the prosecution showed that at about 7:30 in the

evening of December 30, 1980, while Cagampang, his wife and their
two children, were conversing in the store adjacent to their house in
Barangay Talo-ao, Buenavista, Province of Agusan del Norte, the
accused Vicente Temblor alias Ronald, arrived and asked to buy a halfpack of Hope cigarettes. While Cagampang was opening a pack of
cigarettes, there was a sudden burst of gunfire and Cagampang instantly
fell on the floor, wounded and bleeding on the head. His wife Victorina,
upon seeing that her husband had been shot, shouted her husband's name
"Jul" Two persons, one of whom she later Identified as the accused,
barged into the interior of the store through the main door and demanded
that she brings out her husband's firearm. "Igawas mo ang iyang armas!"
("You let out his firearm!") they shouted. The accused fired two more
shots at the fallen victim. Terrified, Victorina hurried to get the "maleta"
(suitcase) where her husband's firearm was hidden. She gave the suitcase
to the accused who, after inspecting its contents, took her husband's .38
caliber revolver, and fled.

G.R. No. L-66884 May 28, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
VICENTE TEMBLOR alias "RONALD," defendant-appellant.
The Solicitor General for plaintiff-appellee.
Wilfred D. Asis for defendant-appellant.

GRIO-AQUINO, J.:
The accused-appellant Vicente Temblor alias "Ronald" was charged with
the crime of murder in Criminal Case No. 1809 of the Court of First
Instance (now Regional Trial Court) of Agusan del Norte and Butuan
City for shooting to death Julius Cagampang. The information alleged:
That on or about the evening of December 30, 1980 at Talo-ao,
Buenavista, Agusan del Norte, Philippines and within the jurisdiction of
this Honorable Court, the said accused conspiring, and confederating
with one another with Anecito Ellevera who is at large, did then and
there wilfully, unlawfully and feloniously, with treachery and with intent
to kill, attack, assault and shoot with firearms one Julius Cagampang,
hitting the latter on the vital parts of the body thereby inflicting mortal
wounds, causing the direct and instantaneous death of the said Julius
Cagampang.
CONTRARY TO LAW: Article 248 of the Revised Penal Code.
Upon arraignment on June 8, 1982, he entered a plea of not guilty. After
trial, he was convicted and sentenced to suffer the penalty of reclusion
perpetua, with the accessory penalties thereof under Articles 41 and 42

In 1981, some months after the incident, Victorina was summoned to the
Buenavista police station by the Station Commander Milan, where she
saw and Identified the accused as the man who killed her husband.
The accused's defense was an alibi. He alleged that from 4:00 o'clock in
the afternoon of December 30, 1980, he and his father had been in the
house of Silverio Perol in Barangay Camagong, Nasipit, Agusan del
Norte, where they spent the night drinking over a slaughtered dog as
"pulutan," until 8:00 o'clock in the morning of the following day,
December 31, 1980.
The accused and his companion, admittedly members of the dreaded
NPA (New People's Army) were not apprehended earlier because they
hid in the mountains of Malapong with other members- followers of the
New People's Army. Temblor surrendered to Mayor Dick Carmona of
Nasipit during the mass surrender of dissidents in August, 1981. He was
arrested by the Buenavista Police at the Buenavista public market on
November 26, 1981 and detained at the Buenavista municipal jail.

The accused capitalized the fact that the victim's widow, Victorina, did
not know him by name. That circumstance allegedly renders the
Identification of the accused, as the perpetrator of her husband's killing,
insufficient. However, during the trial, the accused was positively
identified by the widow who recognized him because she was less than a
meter away from him inside the store which was well lighted inside by a
40-watt flourescent lamp and by an incandescent lamp outside. Her
testimony was corroborated by another prosecution witness a tricycle
driver, Claudio Sabanal who was a long-time acquaintance of the
accused and who knew him as "Ronald." He saw the accused in the store
of Cagampang at about 7:30 o'clock in the evening of December 30,
1980. He heard the gunshots coming from inside the store, and saw the
people scampering away.
Dr. Alfredo Salonga who issued the post-mortem examination report
certified that the victim sustained three (3) gunshot wounds.
Rebutting the accused's alibi, the prosecution presented a Certification of
the Nasipit Lumber Company's Personnel Officer, Jose F. Tinga (Exh.
D), and the NALCO Daily Time Record of Silverio Perol (Exh. D),
showing that Perol was not at home drinking with the accused and his
father, but was at work on December 30, 1980 from 10:50 o'clock in the
evening up to 7:00 o'clock in the morning of December 31, 1980. The
accused did not bother to overcome this piece of rebuttal evidence.
In this appeal, the appellant alleges that the court a quo erred:
1. in finding that he was positively identified by the prosecution witness
as the killer of the deceased Julius Cagampang; and
2. in rejecting his defense of allbi.
The appeal deserves no merit. Was the accused positively Identified as
the killer of Cagampang? The settled rule is that the trial court's
assessment of the credibility of witnesses while testifying is generally
binding on the appellate court because of its superior advantage in
observing their conduct and demeanor and its findings, when supported
by convincingly credible evidence as in the case at bar, shall not be
disturbed on appeal (People vs. Dava, 149 SCRA, 582).<re||an1w>

The minor inconsistencies in the testimony of the eyewitness Victorina

Vda. de Cagampang did not diminish her credibility, especially because
she had positively Identified the accused as her husband's assailant, and
her testimony is corroborated by the other witnesses. Her testimony is
credible, probable and entirely in accord with human experience.
Appellant's self-serving and uncorroborated alibi cannot prevail over the
positive Identification made by the prosecution witnesses who had no
base motives to falsely accuse him of the crime. Furthermore, the rule is
that in order for an alibi to be acceptable as a defense, it is not enough
that the appellant was somewhere else when the crime was committed; it
must be demonstrated beyond doubt that it was physically impossible for
him to be at the scene of the crime. Here it was admitted that Perol's
house in barrio Camagong, Nasipit is accessible to barrio Talo-ao in
Buenavista by jeep or tricycle via a well-paved road in a matter of 15 to
20 minutes. The testimony of the witnesses who had positively
Identified him could not be overcome by the defendant's alibi. (People
vs. Mercado, 97 SCRA 232; People vs. Venancio Ramilo, 146 SCRA
258.)
Appellant's alleged lack of motive for killing Cagampang was rejected
by the trial court which opined that the defendant's knowledge that
Cagampang possessed a firearm was motive enough to kill him as
killings perpetrated by members of the New People's Army for the sole
purpose of acquiring more arms and ammunition for their group are
prevalent not only in Agusan del Norte but elsewhere in the country. It is
known as the NPA's "agaw armas" campaign. Moreover, proof of motive
is not essential when the culprit has been positively Identified (People
vs. Tan, Jr., 145 SCRA 615).
The records further show that the accused and his companion fled after
killing Cagampang and taking his firearm. They hid in the mountains of
Agusan del Norte. Their flight was an implied admission of guilt (People
vs. Dante Astor, 149 SCRA 325; People vs. Realon, 99 SCRA 422).
WHEREFORE, the judgment appealed from is affirmed in all respects,
except as to the civil indemnity payable to the heirs of the Julius
Cagampang which is increased to P30,000.00.
SO ORDERED.

Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

of violence, following the odyssey of his widowed mother from one

poverty-stricken area to another in order to escape the ravages of
internicine war and rebellion in Zamboanga del Sur. In the 15 years of
Hassan's existence, he and his family had to evacuate to other places for
fear of their lives, six times. His existence in this world has not even
been officially recorded; his birth has not been registered in the Registry
of Births because the Samal tribe, to which he belongs, does not see the
importance of registering births and deaths.

G.R. No. L-68969 January 22, 1988

PEOPLE OF THE PHILIPPINES, petitioner,
vs.
USMAN HASSAN y AYUN, respondent.

SARMIENTO, J.:
This is a pauper's appeal of the decision 1 of the Regional Trial Court of
Zamboanga City, Ninth Judicial Region Branch XIII, dated January 25,
1984, which "finds the accused USMAN HASSAN y AYUN guilty
beyond reasonable doubt as principal of the Crime of MURDER, and
there being neither aggravating nor mitigating circumstance attending
the commission of the crime, and pursuant to Paragraph No. 1 of Article
64 of the Revised Penal Code, hereby imposes upon the said accused the
penalty of RECLUSION PERPETUA and all its accessory penalties; to
indemnify the heirs of the deceased victim Ramon Pichel, Jr. y Uro the
amount of P12,000.00 and to pay the costs." 2
Usman Hassan was accused of murder for stabbing to death Ramon
Pichel, Jr. y Uro, 24, single, and a resident of Zamboanga City. 3 At the
time of his death on July 23,1981, the deceased was employed as
manager of the sand and gravel business of his father. On the other hand,
Hassan was an illiterate, 15-year-old pushcart cargador. 4
The quality of justice and the majesty of the law shine ever brightest
when they are applied with more jealousy to the poor, the marginalized,
and the disadvantaged. Usman Hassan, the herein accused-appellant,
belongs to this class. At the time of the alleged commission of the crime,
he was poor, marginalized, and disadvantaged. He was a flotsam in a sea

Usman was convicted on the bases of the testimony of a lone eyewitness

for the prosecution and the sloppiness of the investigation conducted by
the police investigator, Police Corporal Rogelio Carpio of the Homicide
and Arson Section of the Zamboanga City Police Station, who also
testified for the prosecution.
We rule that Usman Hassan's guilt was not proved beyond reasonable
doubt and that Usman Hassan must, therefore, be set free.
The lone eyewitness for the prosecution is Jose Samson, 24 years old
when he testified, married, and a resident of Zamboanga City. On the
day of the killing, he was employed at the sand and gravel business of
the father of the deceased but was jobless at the time of his examinationin-chief on February 3, 1982.
He testified that he was with Ramon Pichel, Jr. at about 7:00 o'clock in
the evening of July 23, 1981; that he was a backrider in the motorcycle
of Ramon when they went to buy mangoes at Fruit Paradise near the
Barter Trade Zone in Zamboanga City that while he was selecting
mangoes, he saw a person stab Ramon who was seated at his red Honda
motorcycle which was parked about two or three meters from the fruit
stand where he Samson) was selecting mangoes; that he saw the
assailant stab Ramon "only once" and that after the stabbing, the
assailant ran towards the PNB Building. When asked at the crossexamination if he knew the assailant, Samson said, "I know him by face
but I do not know his name." 5
This sole eyewitness recounted the stabbing thus: "While Ramoncito
Pichel, Jr. was holding the motorcycle with both of his hands, the
assailant come from behind, held his left hand and stabbed him from
behind on his chest while the victim was sitting on the motorcycle." He

claimed that he was able to see the assailant because it was very bright
there that Ramon was facing the light of a petromax lamp, and that all
these happened in front of the fruit stand a distance of about 6 to 7
meters from the side of the road.

Q And it was all La Merced Funeraria that the police brought to you the
accused?

Samson described the assailant as wearing a white, short-sleeved t-shirt

and maong pants, but "he did not see if the aggressor was wearing
shoes," that the assailant stabbed Ramon with a knife but "he did not
exactly see what kind of knife it was, and he did not see how long the
knife was He said he brought the wounded Ramon to the Zamboanga
City General Hospital in a tricycle.

Q For Identification?

On cross-examination, Samson testified:

xxx xxx xxx
Q When you rushed Ramon Pichel, Jr. to the hospital you came to know
that he was already dead, is that correct?
A Yes, sir, I learned that he was already dead.
Q In the hospital, were you investigated by the police?
A They just asked the description of that person as to his attire and his
appearance.
Q And it was while in the hospital that you told them the description of
the one who stabbed Ramon Pichel, Jr.?

A...

A Yes, sir.
Q And he was alone when you Identified him?
A Yes he was alone.
Q Aside from working with the Pichel family in their sand and gravel
business, do you have any blood relationship with them?
A Yes. sir. 6
(Emphasis supplied)
xxx xxx xxx
What comes as a surprise is that Samson's statement 7 which was taken
only on July 25, 1981, two days after the stabbing, and sworn to only on
July 27, 1981, also two days after it was taken, or four days after the
killing, was never presented or mentioned by the prosecution at all. The
information was practically forced out of Police Corporal Rogelio P.
Carpio, a witness for the People, during his cross-examination. 8 The
sworn statement contained the following questions and answers:

A Yes, Sir.
xxx xxx xxx
Q And the body of Ramon Pichel, Jr., was brought to the Funeraria La
Merced?

Q-14. What and please narrate it to me briefly in your own words, the
incident you are referring?

A Yes, sir,
Q Can you recall what time was that?
A I do not know what time was that.

A-14. While I was busy selecting some mangoes, I saw unidentified

person whom I can recognize by face if seen again embraced my
companion Ramon Pitcher Jr. while the latter was aboard his motorcycle
parked within the area. That this person without much ado, and armed
with a knife suddenly stabbed him (Ramon). That by coincidence to this

incident, our eye met each other and immediately thereafter, he fled the
area toward the Philippine National Bank (PNB). That this unidentified
person was sporting a semi-long hair, dressed in White Polo-Shirt (Short
sleeve), maong pants height to more or less 5'5, Dark Complexion. That
as this unidentified person fled the area I immediately came to aid my
companion, Ramon Pitcher, Jr., and rushed him to Zamboanga General
Hospital, on board a Tricycle. That may companion (Ramon) did not
whispered (sic) any words to me for he was in serious condition and few
minutes later, he expired.

A-20. None Sir.

Q-15. Was tills unidentified person was with companion when he attack
(sic) Ramon Pitcher Jr.?

A-22. No more Sir.

A-15. He was alone Sir.

Q-16. Can you really Identified (sic) this person who attacked and
stabbed your companion, Ramon Pitcher, Jr., that evening in question?
A-16. Yes, Sir,
Q-17. Do you still remember that confrontation we made at the Office of
La Merced Funeral Homes, wherein you were confronted with one
Usman Hassan, whom this Officer brought along?

Q-21. Were you able to note what kind of knife used by said Usman
Hassan in stabbing your companion, Ramon Pitcher Jr.?
A-21: None Sir,
Q-22. Well, I have nothing more to ask of you, do you have anything
more to say, add or alter in this statement?

Q-23. Are you willing to give a supplemental statement if needed in the

future?
A-23. Yes, Sir. 9
(Emphasis supplied)
xxx xxx xxx

A-18. Yes, Sir, he was the very person who attacked and stabbed my
companion, Ramon Pitcher, Jr., that evening in question.

The version of the sole eyewitness appearing in his statement 10 is

substantially the same as that embodied in the "Case Report," Exhibit it
"C", by Police Corporal Carpio, also admitted a s Exhibit "2." This
exhibit for the prosecution confirms the sworn statement of witness
Samson that an unidentified person, whom he recognized only by face,
appeared and without any provocation, the latter embraced the victim
and stabbed the same allegedly with a knife." The rest of the Case
Report: is also significant in that it confirms the confrontation between
the accused and Jose Samson in the funeral parlor arranged by the police
Investigator and prosecution witness, Corporal Carpio.

Q-19. Why?

xxx xxx xxx

A-19. Because his face and other physical appearance were fully noted
by me and this I cannot forget for the rest of my life.

From this end, a follow-up was made within the premises of the Old
Barter Trade, wherein the person of USMAN HASSAN Y AYUN, of
Paso Bolong, this City, was arrested in connection with the above stated
incident. That this Officer and companions arrested this person Usman
due to his physical appearance, which was fully described by victim's
companion. Jose Samson. During his arrest, a knife, measuring to more

A-17. Yes, Sir.

Q-18. Was he the very person, who attacked and stabbed your
companion, Ramon Pitcher, Jr.?

Q-20. Before this incident, was there any altercation that had ensued
while in the process of buying some mangoes in that area?

or less seven (7) inches in blade was confiscated in his possession. The
person of Usman Hassan was brought along at the La Merced Funeral
Homes for a confrontation with victims companion, Jose Samson and in
this confrontation, Jose Samson positively Identified said Usman Hassan
as the very person who stabbed the victim.
Usman Hassan, on the other hand, denied the charges levelled against
hub and admitted ownership of said knife; claiming among other things
that he used said knife for slicing mangoes. 11
xxx xxx xxx
We hold that the evidence for the prosecution in its entirety does not
satisfy the quantum of proof beyond reasonable doubt required by
the Constitution, the law, and applicable jurisprudence to convict an
accused person. The said evidence denies us the moral certainty which
would allow us to pronounce, without uneasiness of conscience. Usman
Hassan y Ayun guilty of the killing of the deceased Ramon Pichel, Jr. y
Uro, and condemn him to life imprisonment and in effect turning him
into a flotsam again in a sea of convicted felons in which he would be a
very young stranger.
In evaluating the worth of the testimony of the lone eyewitness for the
prosecution against the denial and alibi of the accused, value judgment
must not be separated from the constitutionally guaranteed presumption
of innocence.
When the evidence for the prosecution and the evidence for the accused
are weighed, the scales must be tipped in favor of the latter. This is
because of the constitutional presumtion of innocence the accused
enjoys as a counter-foil to the awesome authority of the State that is
prosecuting him.
The element of doubt, if reasonable in this case, must operate against the
inference of guilt the prosecution would draw from its evidence. That
evidence, as it happens, consists only of the uncorroborated statement of
the two policemen which, as previously observed, is flawed and
therefore suspect. 12

The testimony of Jose Samson, the lone eyewitness, is weak and

unconvincing. And so with the evidence sought to be introduced by
Police Corporal Carpio. We discover, for example, that the expert
testimony of the medico-legal officer of the National Bureau of
Investigation, Dr. Valentin Bernalez, presented by the prosecution,
contradicted, on material points, the testimony of the one eyewitness,
Jose Samson. While Samson averred on the witness stand that he saw
the assailant stab the deceased "from behind on his chest" 13 only once,
the NBI medico-legal officer Identified two stab wounds, one at the
front portion of the chest at the level and third rib, (sic) and another stab
wound located at the left arm posterior aspect." 14 The same medical
expert also concluded from the nature and location of the chest wound,
which was the cause of death, that the same was inflicted on the victim
while the alleged accused was in front of him." 15
The investigation of this case by the Homicide/Arson Section of the
Zamboanga Southern Police Sector, 16 at Zamboanga City, particularly
by Police Corporal Rogelio P. Carpio, leaves much to be desired. For
one, we are not satisfied with the procedure adopted by the police
investigators in the Identification of the accused as the assailant. We
have no doubt that Usman Hassan was "presented" alone 17 to Jose
Samson by the police investigator and prosecution witness, Police
Corporal Carpio, and his police companions, at the office of the La
Merced Funeral Homes in Zamboanga City. As correctly termed by the
very evidence 18 of the prosecution, the procedure adopted by the police
investigators was a confrontation" between Jose Samson, Jr. and Usman.
Earlier, on direct examination, Corporal Carpio testified that Usman was
alone when he was brought to Samson for confrontation in the funeral
parlor. However, on cross-examination, Carpio made a turnabout by
saying that the accused was Identified by Samson in a "police line-up;"
this tergiversation we dare say, was an afterthought, more the result of an
over or careless cross-examination, augmented by the leading
questions 19 of the trial judge rather than a fastidiousness if not sincerity,
on the part of the police investigator, to honestly correct erroneous
statements in his examination-in-chief. The fact remains that both
Samson and the accused testified clearly and unequivocably that Usman
was alone when presented to Samson by Carpio. There was no such
police line-up as the police investigator, to honestly correct erreoneous
statements in his examination-in-chief. The fact remains that both
Samson and the accused testified clearly and unequivocably that Usman

was alone when presented to Samson by Carpio. There was no such

police investigator claimed on second thought.
The manner by which Jose Samson, Jr. was made to confront and
Identify the accused alone at the funeral parlor, without being placed in
the police line-up, was "pointedly suggsestive, generated confidence
where there was none, activated visual imagination, and, all told,
subserted his reliability as eyewitness. This unusual, coarse, and highly
singular method of Identification, which revolts against the accepted
principles of scientific crime detection, alienates the esteem of every just
man, and commands neither our respect nor acceptance." 20
Moreover, the confrontation arranged by the police investigator between
the self-proclaimed eyewitness and the accused did violence to the right
of the latter to counsel in all stages of the investigation into the
commission of a crime especially at its most crucial stage the
Identification of the accused.
As it turned out, the method of Identification became just a
confrontation. At that critical and decisive moment, the scales of justice
tipped unevenly against the young, poor, and disadvantaged accused.
The police procedure adopted in this case in which only the accused was
presented to witness Samson, in the funeral parlor, and in the presence of
the grieving relatives of the victim, is as tainted as an uncounselled
confession and thus falls within the same ambit of the constitutionally
entrenched protection. For this infringement alone, the accused-appellant
should be acquitted.
Moreover, aside from this slipshod Identification procedure, the rest of
the investigation of the crime and the preparation of the evidence for
prosecution were done haphazardly, perfunctorily, and superficially.
Samson was not investigated thoroughly and immediately after the
incident. As previously mentioned, his statement was taken by the
investigator only two days after the murder of Ramon Pichel, Jr. and
sworn only two days after it had been taken. Similarly, there is nothing
in the record to show that the fruit vendorfrom whom Samson and the
deceased were buying mangoes that fateful evening and who certainly
must have witnessed the fatal stabbingwas investigated, or why he
was not investigated. Nor is any explanation given as to why the
companion 21 of the accused at the time Corporal Carpio arrested him

(accused) 'sitting on a pushcart " 22 at about 8:00 P.M. (around 7:00 P.M.,
according to Usman) of that same evening near the scene of the crime,
was not also investigated when he could have been a material witness of
the killing or of the innocence of the accused. In addition, the knife and
its scabbard, 23 Confiscated by Carpio from Usman (tucked on the right
side of his waist") at the time of his arrest, were not even subjected to
any testing at all to determine the presence of human blood which could
be typed and compared with the blood type of the deceased. A crime
laboratory test had Carpio or the prosecuting fiscal, or even the trial
judge, insisted on it would have revealed whether or not the knife in
question (confiscated from the accused by Carpio one hour after the
alleged commission of the crime) had indeed been the weapon used to
kill Ramon. The police investigator instead nonchalantly dismissed this
sin of omission by saying that the knife could have been cleaned or the
bloodstain could have been taken away. 24 This presumption of the
deadly weapon's having been "cleaned" of bloodstains is tantamount to
pronouncing the accused of being guilty.
Our doubt about the guilt of the accused is further deepened by a
resolution, 25 in a separate case, 26 of Assistant City Fiscal of Zamboanga
City and deputized Tanod bayan Prosecutor Pablo Murillo, which clearly
reveals that on July 24, 1981, a day after the killing of Ramon Pichel, Jr.,
a similar stabbing took place at Plaza Pershing near the place of the
earlier incident, with the suspect in that frustrated homicide case being a
certain Benhar Isa, 'a notorious and a deadly police character" in
Zamboanga City, with a long record of arrests. In that resolution, Fiscal
Murillo said the same Benhar Isa was tagged as 'also a suspect in the
stabbing of Ramon Pichel, Jr. to death and the stabbing of Pastor Henry
Villagracia at the Fruit Paradise, this City." The said resolution further
states that "with regards to this incident or witnesses ever testified for
fear of possible reprisals." 27
The trial of Usman Hassan began on October 27, 1981. Benhar Isa
himself was killed by a policeman on August 28, 1981, while he (Isa)
"was apparently under the influence of liquor armed with a knife (was)
molesting and extorting money from innocent civilians' and "making
trouble." 28 The records of the case at bar do not show any attempt on the
part of Corporal Carpio, or any other police officer, to investigate or
question Benhar Isa in connection with the killing of Pichel, Jr. Was it
fear of the notorious police character that made the police officers

disregard the possible connection between the slaying of Ramon and that
of the person (Harun Acan y Arang of the Ministry of National
Defense)29 who was allegedly stabbed by Benhar Isa a day after the
killing of Ramon Jr.? And yet questioning Isa might have provided that
vital link to the resolution of Usman's guilt or innocence. But why
should the police officers investigate Isa when Usman Hassan was
already in custody and could be an available fall guy? Usman Hassan,
instead, became a victim of a grave injustice. Indeed, Usman Hassan is
too poor to wage a legal fight to prove his innocence. And he is so
marginalized as to claim and deserve an honest-to-goodness, thorough,
and fair police investigation with all angles and leads pursued to their
logical, if not scientific, conclusions. Sadly circumstanced as he is, the
authority of the State was too awesome for him to counteract.
The appealed decision made much ado of the admission by Usman "that
he was arrested at the former barter trade, which is a place just across the
place of the stabbing at the Fruit Paradise." 30 The trial judge found it
"therefore strange that on the very evening of the stabbing incident he
was still at the barter trade area by 8:00 o'clock in the evening when he
usually comes to the city proper at about 6:00 o'clock in the morning and
goes home at past 5:00 o'clock and sometimes 6:00 o'clock in the
afternoon." 31 Usman's explanation that, at around 7:00 o'clock P.M.,
he was waiting for transportation to take him home was found by the
trial court as 'flimsy and weak since he did not explain why he had to go
home late that evening." 32 But the whole trouble is nobody asked him.
The trial judge did not propound any single question to the accused, and
only three to his mother on innocuous matters, by way of clarification, if
only to put on record what the mother and son could articulate with
clarity. Taking into account their poverty and illiteracy, the mother and
son needed as much, if not more, help, than the trial judge extended to
the prosecution witnesses during their examination by asking them
clarificatory and mostly leading questions. In that sense and to that
extent, the accused was disadvantaged.
A fact that looms large, though mutely to testify on the innocence of the
accused but the importance of which was brushed away by the trial
judge was the presence of the accused near the scene (about 100 to 150
meters away) soon after the stabbing (he testified at around 7:00 P.M.
although Police Corporal Carpio stated it was 8:00 P.M.) where he was
found sitting on his pushcart with a companion. If he were the assailant,

he would have fled. But the trial court instead indulged in conjecture,
foisting the probability that the accused 'was lulled by a false sense of
security in returning to the place (of the stabbing), when no police
officers immediately responded and appeared at the scene of the crime,"
adding 'there are numerous cases in the past where criminals return to
the scene of their crimes, for reasons only psychologist can explain." 33 It
must have escaped the trial court's attention that Usman has no criminal
record, and, therefore, he could not be generally classed with criminals.
In the second place, the trial court's rationalization ignores the biblical
truism recognized by human nature and endorsed with approval by this
Court that "(T)he wicked flee when no man pursueth but the righteous
are as bold as a lion." 34
And now as a penultimate observation, we could not help but note the
total absence of motive ascribed to Usman for stabbing Ramon, a
complete stranger to him. While, as a general rule, motive is not
essential in order to arrive at a conviction, because, after all, motive is a
state of mind, 35 procedurally, however, for purposes of complying with
the requirement that a judgment of guilty must stem from proof beyond
reasonable doubt, the lack of motive on the part of the accused plays a
pivotal role towards his acquittal. This is especially true where there is
doubt as to the Identity of the culprit 36 as when 'the Identification is
extremely tenuous," 37 as in this case.
We can not end this travail without adverting to the cavalier manner in
which the trial court disregarded the claimed young age of Usman
Hassan.
The defense claims that the accused Usman Hassan is a minor, basing
such claim on the testimony of Lahunay Hassan, the mother of said
accused, who declared that her son Usman Hassan, who is one of her
four (4) children, was born in the year 1967. She testified that she was
just told by a person coming from their place about the year of the birth
of her son Usman. However on cross-examination, Lahunay Hassan
cannot even remember the date or year of birth of her other children. The
failure of Lahunay Hassan to remember the date or year of birth of her
children is of course understandable, considering that she is unschooled
and she belongs to a tribe that does not register births, deaths or
marriages, however, it is strange that she only took pains to find out the
year of birth of her son Usman. For this reason, the Court granted a

motion of the defense on September 13, 1982, to have the herein

accused examined by a competent dentist to determine his age.
However, the findings of the dentist of Zamboanga General Hospital
which is marked as Exhibit "5" shows the following: "age cannot be
determined accurately under present mouth conditions. Approximately,
he can be from 14 to 21 years of age." This simply means that the herein
accused could either be 14 years of age or 21 years of age, or any age in
between those aforestated years. From the observation of this court, the
accused Usman Hassan was about 18 years of age at the time he
committed this crime and this observation is based on his personal
appearance, his size and facial features and other personal
characteristics, hence he can not be classified as a youthful offender
under Article. 189 of Presendential Decree No. 603, as ammended by
Presedential Decree No. 1179. In the case of U.S. vs. Mallari, 29 Phil. 13
and People vs. Reyes and Panganiban, CA 48 O.G. 1022, cited in the
Edition, Page 680, it was ruled by the Supreme Court that "In cases
where the age of the culprit is at issue as a basis for claiming an
exempting mitigating circumstance, it is incumbent upon the accused to
establish that circumstance ad any other elements of defense. 38
Considering that the age of the accused could exempt him from
punishment or cause the suspension of his sentence under Articles 12
and 80, respectively of the Revised Penal Code, if found guilty, more
meticulousness and care should have been demanded of medical or
scientific sources, and less reliance on the observation of the judge as
had happened in this case. The preliminary findings of the dentist that
the accused could be anywhere between fourteen to twenty one years,
despite the difficulty of arriving at an accurate determination due to
Hassan's mouth condition, would have placed the trial judge on notice
that there is the probability that the accused might be exempted from
criminal liability due to his young age. All the foregoing indicates that
the accused had not been granted the concern and compassion with
which the poor, marginalized, and disadvantaged so critically deserve. It
is when judicial and police processes and procedures are thoughtlessly
and haphazardly observed that cries of the law and justice being denied
the poor are heard. In any event, all this would not be of any moment
now, considering the acquittal of the accused herein ordered.
WHEREFORE, the decision is hereby REVERSED, and the accused
Usman Hassan y Ayun is ACQUITTED of the crime charged. His

release from confinement is hereby Ordered, unless he is held for

another legal cause. With costs de oficio.
SO ORDERED.
Yap (Chairman), Paras and Padilla, JJ., concur.

FIRST DIVISION

RODOLFO C. VELASCO,

G.R. No. 166479

Petitioner,
Present:
PANGANIBAN, C.J.
Chairperson,
YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
- versus -

CALLEJO, SR. and

CHICO-NAZARIO, JJ.

Promulgated:

PEOPLE OF THEPHILIPPINES,

February 28, 2006

Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

That on or about the 19th day of April, 1998, in the City of Dagupan,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, SN I RODOLFO C. VELASCO, being then
armed with a gun, with treachery and with intent to kill one
FREDERICK MARAMBA, did then and there, wilfully, unlawfully and
criminally, attack, assault and use personal violence upon the latter by
shooting him, hitting him on the left upper arm, the said accused having
thus commenced a felony directly by overt acts but did not perform all
the acts of execution which could have produced the crime of murder, by
reason of some cause or accident other than his own spontaneous
desistance, to the damage and prejudice of said FREDERICK
MARAMBA.

DECISION
When arraigned, petitioner, with the assistance of counsel de oficio,
pleaded not guilty to the crime charged.[5]
CHICO-NAZARIO, J.:

Before Us is a petition for review on certiorari which seeks to set aside

the decision[1] of the Court of Appeals in CA-G.R. CR No. 23366 dated
30 July 2004 which affirmed the decision[2] of Branch 41 of the
Regional Trial Court (RTC) of Dagupan City in Criminal Case No. 9802175-D dated 29 June 1999, finding accused-petitioner Rodolfo C.
Velasco guilty of Attempted Murder, and its Resolution[3] dated 21
December 2004 denying petitioners motion for reconsideration.

An Information[4] dated 20 April 1998 charged petitioner with the

crime of Attempted Murder committed as follows:

On 29 September 1998, the Hon. Luis M. Fontanilla, Executive Judge of

RTC of Dagupan City, ordered the release of petitioner after a surety
bond was posted by the Mega Pacific Insurance Corporation in the
amount of P120,000.00.[6]

The evidence is summarized by the trial court as follows:

The evidence of the prosecution tends to show that on April 19, 1998, at
about 7:30 oclock in the morning, private complainant Frederick
Maramba was cleaning and washing his owner type jeep in front of his
house at Lasip Grande, Dagupan City when a motorized tricycle
stopped near him. Accused Rodolfo Velasco dashed out of the tricycle,

approached the complainant and fired at him several times with a .45
caliber pistol. The accused missed with his first shot but the second one
hit the complainant at the upper arm, causing him to stumble on the
ground. The complainant stood up and ran, while the accused continued
firing at him but missed.

The shooting incident was reported to the police sub-station

in Malued District
by Barangay Captain Dacasin of Lasip Grande,
describing the suspect as wearing a vest or a chaleco. The police,
composed of SPO4 Romulo Villamil, PO3 Rolando Alvendo, and
SPO1 Soliven respondent and pursued the accused who proceeded on
board
a
motorized
tricycle
to
the
highway
going
toBarangay Banaoang in Calasiao town.

The police caught up with the tricycle and brought the accused to the
police sub-station. A firearm (Exhibit A) protruding from the waistline of
the accused, three (3) magazines (Exhibit B, B-1 & B-2) and fourteen
(14) live ammunitions (Exhibits C to C-13) were confiscated from the
possession of the accused. The police also recovered seven (7) spent
ammunitions (Exhibits D to D-6) at the crime scene. At the City Jail
in Dagupan City where the accused was subsequently brought, the
private complainant Frederick Maramba identified and pointed to the
accused as the one who fired at him, hitting him on the upper left
arm. Complainant identified the affidavit which he executed naming the
accused as his assailant (Exhibit H) and who shot him on the morning
ofApril 19, 1998 in front of his residence at Lasip Grande.

Private complainant further testified that he was hospitalized and

treated at the Region 1 Medical Center, Dagupan City by Dr. Arturo de
Vera, Jr. who issued a Medico-Legal Certificate stating that the victim
sustained, Gunshot wound point of entry: 1.5 cm lateral aspect distal,
3rd arm left and; Gunshot wound point of exit: 4 cm lateral aspect
posterior, 3rd arm left (Exhibit I). By reason of his wounds, complainant

incurred expenses for hospitalization and medicines in the total amount

of P2,696.06 (Exhibit J to J-14).

Armando Maramba, the driver of the tricycle in which the accused rode,
testified that he picked up the accused who was wearing a chaleco, at
the intersection of Pogo-Lasip Road. Upon reaching the parked jeep
which was being washed by the private complainant, the accused
ordered him to stop. The accused alighted and fired several shots at the
victim. Then the accused went back to the tricycle and ordered him to
proceed to Calasiao. The accused alighted at the intersection of
the De Venecia Highway and Malued Road and
took
another
tricycle. Witness executed an affidavit before the Police Headquarters
in Dagupan City (Exhibit G) and identified the accused as the one who
shot the private complainant.

The accused, on the other hand, interposed the defense of alibi. He said
that on April 18, 1998, he went to a friends house
in Lingayen, Pangasinan and spent the night there. The following
morning, April 19, 1998, between 6:00 to 7:00 oclock, he
left Lingayen riding in the Volkswagen car of Berting Soriano. He
alighted at the corner of Banaoang diversion road. From there he took a
tricycle and told the driver to bring him at the foot of the bridge going
to Bayambang. While on his way to Calasiao, he heard a jeep behind
him blowing its horn and when he looked back he saw three men on
board pointing their guns at him. He told the tricycle driver to stop and
thereupon the three men approached him and introduced themselves as
policemen. They confiscated his gun and then brought him to the police
station for interrogation. Thereafter, the police lodged him in the City
Jail of Dagupan.

Accused testified that he did not know personally the complaining

witness and denied having fired at him. He further said that his .45
caliber pistol which was seized from him by the police is licensed
(Exhibit 2).[7]

In its decision dated 29 June 1999, the RTC of Dagupan City, Branch
41, found petitioner guilty of the crime charged, disposing of the case in
this wise:

WHEREFORE, finding accused Rodolfo C. Velasco guilty beyond

reasonable doubt of the crime of attempted murder, defined and
penalized under Article 248, in relation to the 3rd par. of Arts. 6 and 51
of the Revised Penal Code, he is hereby sentenced to suffer the
indeterminate penalty of Four (4) years of prision correccional, as
minimum to Eight (8) years and One (1) day of prision mayor, as
maximum.

Pending appeal with the Court of Appeals, petitioner, after filing a

Motion to Bail, was allowed to post bail in the amount of P160,000.00.
[10] To obviate the possibility of flight, the Bureau of Immigration and
Deportation (BID) was directed to include petitioner in its hold
departure list.[11]

On 30 July 2004, the Court of Appeals dismissed the appeal and

affirmed the decision of the RTC. The decretal portion of the decision
reads:

WHEREFORE, for lack of merit, the appeal is DISMISSED. The

assailed Decision dated June 29, 1999 of the Regional Trial Court,
Branch 41 of Dagupan City, in Criminal Case No. 98-02175-D, is
hereby AFFIRMED. Costs against accused-appellant.[12]

Accused is further ordered to indemnify the complaining witness the

amount of P2,696.00, as actual damages.[8]

Petitioner moved for a reconsideration of the decision which motion was

denied per resolution[13] dated 21 December 2004.
The trial court gave credence to the testimonies of the private
complainant Frederick Maramba and Armando Maramba when they
identified petitioner as the assailant. It rejected petitioners defense of
alibi saying it was not impossible for him to be at the crime scene when
the crime was committed because the place where he allegedly alighted
from the car of a certain Berting Soriano was only about ten minutes
away. It concluded that his defense cannot prevail over the positive
identification made by the prosecution witnesses.

Petitioner is now before us via petition for review on certiorari, raising

the following grounds:

I
On 1 July 1999, petitioner filed a Notice of Appeal signifying his
intention to appeal to the Court of Appeals.[9]

THE COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED

THE DECISION OF THE REGIONAL TRIAL COURT.

II

THE COURT OF APPEALS GRAVELY ERRED WHEN IT DENIED

THE MOTION FOR RECONSIDERATION PER THE RESOLUTION
DATED DECEMBER 21, 2004.[14]

Petitioner invokes the defenses of denial and alibi. He denies having

shot the victim. He alleges that the prosecution was not able to
sufficiently establish the identity of the assailant because the Barangay
Chairman, who reported the incident to the policemen, identified the
assailant as one wearing a chaleco, was not presented to corroborate
the
testimony
of
petitioner. He
contends
that
had
the Barangay Chairman been presented, the latters testimony would
have been adverse to the prosecution. Instead, he points out that the
prosecution presented police officers who were not eyewitnesses. He
adds that he had no motive to harm, much less kill, the victim, the latter
being a total stranger. He explains that since the identity of the assailant
is in doubt, motive becomes important and his alibi gains weight and
value.[15]

In a resolution dated 6 April 2005, the Court, without giving due course
to the petition, required respondent to file a Comment.[16]

In its Comment[17] dated 8 September 2005, respondent People of the

Philippines, through the Office of the Solicitor General (OSG), argues
that the factual findings of the Court of Appeals cannot be reviewed
since the issue (i.e., positive identification) petitioner is raising involves
the credibility of witnesses and the weighing of evidence. It asserts that
since the same deals with a question of fact and there being no instance
present to take the case out of the general rule that factual findings of
the Court of Appeals may be reviewed, a review thereof cannot be made
because only a question of law can be re-examined if a petition for
review on certiorari under Rule 45 of the Rules of Court has been
filed. It adds that even if the case is to be decided on the merits, the
petition likewise will fail.

In his Reply,[18] petitioner submits that a review of the facts of the case
is justified on the ground that the Court of Appeals sanctioned
substantial and jurisprudential departures committed by the trial
court. He maintains that (1) the trial court precipitately observed that
alibi is a weak defense; (2) the trial court did not consider that the
prosecution had no evidence proving his intention to kill; (3) the trial
court did not consider the fact that victim did not know him and viceversa; (4) it was impossible for him, a navy man a protector of the
people to have failed to fatally hit the victim after firing seven shots; and
(5) the instant case is a frame up.

On 17 October 2005, the Court gave due course to the petition and
required the parties to submit their respective memoranda.[19]

In his memorandum, petitioner further argues that the findings of fact in

this case should be reviewed because the Court of Appeals erroneously

restated the factual findings of the trial court when it purposely omitted
and added words changing the tenor of the shooting incident as found
by the trial court. He adds that the findings of fact of the trial court do
not support a conviction of attempted murder but only attempted
homicide as there was no treachery since private complainant was still
able to focus his eyes on the gunman until he was fired upon. Further, he
points out that the Court of Appeals made different findings as to where
the seven spent shells were recovered. He maintains there was
suppression of evidence when the prosecution failed to present a
ballistic report on the seven empty shells that would show the identity of
the assailant. In addition, he claims that since there was suppression of
evidence on the part of the prosecution, the testimony of Armando
Maramba is not credible, he being a relative of the victim.

Petitioner primarily invokes the defenses of denial and alibi. It is his

claim that the prosecution failed to conclusively establish the identity of
the assailant and that he was merely framed-up.

At the outset, it must be stressed that the instant petition for review
on certiorari was filed pursuant to Rule 45 of the Rules of Court where a
review is not a matter of right but of sound judicial discretion and will
be granted only when there are special and important reasons therefor.
It is not the function of this Court to re-examine the evidence submitted
by the parties unless the findings of fact of the Court of Appeals are not
supported by evidence on record or the judgment is based on a
misapprehension of facts. This Court is limited to the review or revision
of errors of law and not to analyze or weigh the evidence all over again.
[20]

We agree with the OSG that as ruled by this Court, no questions of facts
may be raised in this Court under Rule 45 of the Rules of Court, unless,
among other grounds, there is clear and convincing proof that the
judgment of the Court of Appeals is based on a misapprehension of facts
or when the Court of Appeals failed to notice and appreciate certain

relevant facts of substance which if properly considered would justify a

different conclusion, and when there is a grave abuse of discretion in the
appreciation of facts in the light of the evidence on record. Anything less
will not suffice to overturn the decision of the Court of Appeals
affirming on appeal the decision of the trial court. It bears stressing that
the findings of facts of the trial court, its calibration of the testimonial
evidence of the parties and the assessment of the credibility and
probative weight of the evidence of the parties and its conclusion
anchored on its findings are given high respect if not conclusive effect by
this Court, especially if affirmed by the Court of Appeals because of the
unique advantage of the trial court of observing and monitoring the
demeanor, conduct and deportment of the witnesses as they regale the
court with their testimonies. The exception to this rule is when the trial
court ignored, overlooked, misconstrued or misappreciated cogent facts
and circumstances of substance which if considered would alter the
outcome of the case.[21] After scrutinizing the records of the case and
thoroughly evaluating all the evidence proffered, we find no reason to
deviate from the findings of facts of the trial court as affirmed by the
Court of Appeals.

In the case at bar, the testimonies of private complainant Frederick

Maramba and Armando Maramba were given credence and full
probative weight and credence by the trial court in the identification of
petitioner as the assailant. Private complainant saw petitioner alight
from the tricycle of Armando Maramba before he successively shot at
him at a distance of about four meters while chasing him for 25 to 30
meters.[22] Armando Maramba witnessed the shooting because he was
the driver of the tricycle in which petitioner rode in going to the house
of private complainant and in leaving the crime scene.[23] After the
shooting incident, private complainant went to the City Jail and
identified petitioner as the person who shot him.[24] At the Dagupan
City Police Station, Armando Maramba pointed to petitioner as the
assailant not because he saw a man wearing a chaleco, but because it
was he whom he saw shoot the private complainant.[25]

Petitioner asks that the findings of fact of the case should be reviewed
because the Court of Appeals erroneously restated the factual findings
of the trial court when itpurposely omitted and added words changing
the tenor of the shooting incident as found by the trial court. Petitioner
said the Court of Appeals purposely added the word suddenly and
replaced the phrase near him with in front of. He adds that the Court of
Appeals added the phrase without any warning and removed the phrase
approached the complainant. He even claims that the Court of Appeals
changed the manner how private complainant was shot, when he was
hit, and how he stumbled and how he was able to stand up and continue
running. He further states that the Court of Appeals made a different
finding as to where the seven spent shells were recovered. He points out
that the Court said the seven spent shells were recovered from the
accused while the trial court found that the same were found in the
crime scene.

As above discussed, the findings of the trial court on its assessment of

the credibility of the witnesses and their testimonies and the probative
weight thereof, are accorded by the appellate court high respect if not
conclusive effect, unless the trial court ignored, misconstrued or
misinterpreted facts and circumstances, which if considered, would alter
the outcome of the case.[26] In the case at bar, the addition or omission
of these words, and the difference between the findings of the trial court
and the Court of Appeals as to where the seven spent shells were found,
are too minor and inconsequential to affect the outcome of this
case. These, even if considered, would not overturn the established fact
that petitioner was identified as the assailant. Nothing in the record
shows that there was any inconsistency as regards the identity of the
assailant. Both private complainant and Armando Maramba were one in
pointing to petitioner as the culprit.

Petitioner interposes the defenses of denial and alibi. He denies

participation in the crime claiming that he was aboard a tricycle on his
way to Calasiao, Pangasinan, when policemen arrested him and
brought him to the Dagupan Police Station. On the other hand, the

victim himself identified petitioner as his attacker which statement was

corroborated by Armando Maramba.

To be believed, denial must be buttressed by strong evidence of nonculpability. Otherwise, it is purely self-serving and without merit.
[27] Settled is the rule that the defense of alibi is inherently weak and
crumbles in the light of positive declarations of truthful witnesses who
testified on affirmative matters.[28] Greater weight is given to the
categorical identification of the accused by the prosecution witnesses
than to the accused's plain denial of participation in the commission of
the crime.[29] There being no strong and credible evidence adduced to
overcome
the
testimonies
of
private
complainant
and
Armando Maramba pointing to him as the culprit, no weight can be
given petitioners denial.

Petitioners defense of alibi likewise fails. As against positive

identification by prosecution witnesses, the accuseds alibi is worthless.
[30] Having been identified by two credible witnesses, petitioner cannot
escape liability. Moreover, for alibi to prosper, it must be proven that
during the commission of the crime, the accused was in another place
and that it was physically impossible for him to be at the locus criminis.
[31] Courts view the defense of alibi with suspicion and caution not
only because it is inherently weak and unreliable, but also it can be
fabricated easily.[32] As found by the trial court, it was not physically
impossible for petitioner to be at the crime scene when the crime was
committed since it only takes a ten-minute ride from the place where he
allegedly alighted from the car of one Berting Soriano to the crime
scene. We have held that:

Alibi, the plea of having been elsewhere than at the scene of the crime at
the time of the commission of the felony, is a plausible excuse for the
accused. Let there be no mistake about it.Contrary to the common
notion, alibi is in fact a good defense. But to be valid for purposes of
exoneration from a criminal charge, the defense of alibi must be such

that it would have been physically impossible for the person charged
with the crime to be at the locus criminis at the time of its commission,
the reason being that no person can be in two places at the same
time. The excuse must be so airtight that it would admit of no
exception. Where there is the least possibility of accuseds presence at
the crime scene, the alibi will not hold water.[33]

Petitioner contends there was suppression of evidence when the

prosecution
did
not
place
on
the
witness
stand Barangay Captain Dacasain of Lasip Grande and when it failed
to present a ballistic report on the seven empty shells because both are
vital evidence to prove the identity of the assailant.

We find such contention untenable.

As to the non-presentation of Barangay Captain Dacasin, the same does

not constitute suppression of evidence. Barangay Captain Dacasin was
not an eyewitness to the shooting incident contrary to the claim of
petitioner. Although he was the one who reported the incident to the
police station, he was merely informed by Armando Maramba that the
person who shot private complainant wore a chaleko or vest.[34] Thus,
not being an eyewitness, his testimony, even if taken, would have
nothing to do with the identification of the assailant. If he really wanted
to have Barangay Captain Dacasin take the witness stand, he could
have asked the trial court for a subpoena ad testificandum. This, he did
not do.

As regards the failure of the police to present a ballistic report on the

seven spent shells recovered from the crime scene, the same does not
constitute suppression of evidence. A ballistic report serves only as a

guide for the courts in considering the ultimate facts of the case.[35] It
would be indispensable if there are no credible eyewitnesses to the crime
inasmuch as it is corroborative in nature.[36] The presentation of
weapons or the slugs and bullets used and ballistic examination are not
prerequisites for conviction. The corpus delicti and the positive
identification of accused-appellant as the perpetrator of the crime are
more than enough to sustain his conviction.[37] Even without a ballistic
report, the positive identification by prosecution witnesses is more than
sufficient to prove accuseds guilt beyond reasonable doubt. [38] In the
instant case, since the identity of the assailant has been sufficiently
established, a ballistic report on the slugs can be dispensed with in
proving petitioners guilt beyond reasonable doubt.
Petitioners asseveration that it is unthinkable for him to shoot private
complainant because he has no motive to harm, much less kill the latter,
he being a total stranger, deserves scant consideration. It must be
stressed that motive is a state of (ones) mind which others cannot
discern. It is not an element of the crime, and as such does not have to
be proved. In fact, lack of motive for committing a crime does not
preclude conviction. It is judicial knowledge that persons have been
killed or assaulted for no reason at all.[39]Even in the absence of a
known motive, the time-honored rule is that motive is not essential to
convict when there is no doubt as to the identity of the culprit.
[40] Motive assumes significance only where there is no showing of who
the perpetrator of the crime was.[41] In the case at bar, since petitioner
has been positively identified as the assailant, the lack of motive is no
longer of consequence.

Petitioner argues that the testimony of prosecution witness

Armando Maramba should not be given weight because the same is
biased and incredible on the ground that he is the uncle of the private
complainant.
This argument does not inspire belief. The blood relationship of
Armando Maramba and private complainant would not render
the formers testimony unworthy of belief.On the contrary, relationship
could strengthen the witnesses credibility, for it is unnatural for an
aggrieved relative to falsely accuse someone other than the actual

culprit. Their natural interest in securing the conviction of the guilty

would deter them from implicating a person other than the true offender.
[42] It is settled that where there is no evidence and 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 testimonies are entitled to full faith and credit.[43] The weight of
the testimony of witnesses is not impaired nor in anyway affected by
their relationship to the victim when there is no showing of improper
motive on their part.[44] Jurisprudence likewise holds that if an
accused had really nothing to do with a crime, it would be against the
natural order of events and of human nature, and against the
presumption of good faith, that a prosecution witness would falsely
testify against him.[45] In the case before us, aside from petitioners
claim that he was framed-up, there is nothing in the records that shows
that Armando Maramba had ulterior motives in testifying against
him. Necessarily, the testimony of Armando Maramba must be given full
credit.

Petitioner claims that as a navy man who is trained to kill enemies of

the state, a protector of the people, he could not have acted in the
manner which the prosecution pointed out. He said it is against human
experience to attempt to kill a person in the presence of a witness and in
broad daylight, and that it is preposterous that after firing seven shots at
close range, he failed to fatally hit the private complainant. All these, he
said, only point to a different assailant.

We are not convinced. The records show that the shooting happened at
around 7:30 a.m. The fact that the shooting occurred in broad daylight
does not render its commission impossible.[46] This Court takes notice
that it is not unusual that killings are perpetrated in front of
witnesses. In the instant case, the attempted killing was witnessed by
Armando Maramba, the driver of the tricycle which petitioner rode in
going to, and in leaving, the crime scene.

Petitioner argues that he could not have been the assailant because it
was simply impossible for him, being a navy man, not to fatally hit
private complainant after firing seven shots at close range. In effect,
what he is saying is that the bungled killing cannot be the handiwork of
an experienced soldier like him. Such an argument does not hold
water. In the case of People v. Mamarion,[47] we brushed aside the very
same argument raised by the accused therein who was an experienced
military man. We ruled that an accused is not entitled to an acquittal
simply because of his previous, or even present, good moral character
and exemplary conduct. The fact that petitioner was a navy man -- a
protector of the people -- does not mean that he is innocent of the crime
charged or that he is incapable of doing it. This argument fails in light
of the identification made by the victim himself and by
Armando Maramba that it was petitioner who was the assailant.

Finally, petitioner submits that if ever he committed a crime, he merely

committed attempted homicide. He maintains there was no sudden firing
because the victim testified he was observing the alleged gunman for a
period of ten seconds before the latter finally drew his .45 caliber pistol
and fired at him. After the first shot, the victim was able to run away.

The lower court was correct in appreciating treachery in the

commission of the crime. There is treachery when the following essential
elements are present, viz: (a) at the time of the attack, the victim was not
in a position to defend himself; and (b) the accused consciously and
deliberately adopted the particular means, methods or forms of attack
employed by him.[48] The essence of treachery is the swift and
unexpected attack on an unarmed victim without the slightest
provocation on the part of the victim.[49] It was clearly established that
private complainant, while washing his jeep, was suddenly fired upon by
petitioner for no reason at all. The suddenness of the shooting and the
fact that he was unarmed left private complainant with no option but to
run for his life. It is likewise apparent that petitioner consciously and
deliberately adopted his mode of attack making sure that private
complainant will have no chance to defend himself by reason of the
surprise attack. Petitioners claim that the shooting was not sudden

because private complainant was observing him from the time he

alighted from the tricycle is belied by the fact that private complainant
was not able to run when he was first fired upon. Though private
complainant was looking at him, the former was not forewarned by any
outward sign that an attack was forthcoming. It was only after the first
shot that he felt his life was in danger.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

Having commenced the criminal act by overt acts but failing to perform
all acts of execution as to produce the felony by reason of some cause
other than his own desistance, petitioner committed an attempted
felony. Petitioner already commenced his attack with a manifest intent to
kill by shooting private complainant seven times, but failed to perform
all the acts of execution by reason of causes independent of his will, that
is, poor aim and the swiftness of the latter. Private complainant
sustained a wound on the left arm that is not sufficient to cause his
death. The settled rule is that where the wound inflicted on the victim is
not sufficient to cause his death, the crime is only attempted murder,
since the accused did not perform all the acts of execution that would
have brought about death.[50]

The penalty imposed by the trial court is correct. Under Article 51 of the
Revised Penal Code, the penalty lower than two degrees than that
prescribed by law for the consummated felony shall be imposed upon the
principal in an attempted felony. Under Article 248 of the Revised Penal
Code, the penalty for murder is reclusion perpertua to death. The
penalty two degrees lower is prision mayor. Applying the Indeterminate
Sentence Law, and there being no aggravating or mitigating
circumstances, the minimum of the penalty to be imposed should be
within the range of prision correccional, and the maximum of the
penalty to be imposed should be within the range of prision mayor in its
medium period.

WHEREFORE, in view of the foregoing, the petition is DENIED. Costs

against petitioner.

G.R. No. L-12743

August 25, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
DOMINGO REYES, defendant-appellant.
Antonio Bengson for appellant.
Acting Attorney-General for appellee.
MALCOLM, J.:
This is an appeal from a judgment finding Domingo Reyes guilty of
estafa and sentencing him to four months and one day of arresto mayor,
to the accessory penalties of the law, and to indemnify R. B. Blackman
in the sum of P118, with subsidiary imprisonment in case of insolvency,
and to pay the costs.
Marked discrepancies in connection with the evidence, particularly that
which concerns the figures, are to be noted. Accepting the findings of
the trial court, we can summarize the facts as follows:
R. B. Blackman is a surveyor in the Province of Pangasinan. Domingo
Reyes, the accused, also lives in that province. Blackman employed
Reyes to collect certain amounts due from twelve individuals for
Blackman's work in connection with the survey of their lands. The total
amount to be collected by Reyes was P860. He only succeeded in
collecting P540. He delivered to Blackman P368. He retained the
balance, or P172. So far as good. The difficult point concerns the exact
terms of the contract. It was merely an oral agreement between
Blackman and Reyes. Blackman claims that he agreed to pay Reyes a

commission of 10 per cent. Reyes claims that he was to receive a

commission of 20 per cent. The trial court, in its decision, states that
"R. B. Blackman, agrimensor, dio al aqui acusado el encargo de cobrar
algunas cuentas de honorarios devengados per mediciones practicadas
por el como agrimensor, concediendole un 10 por ciento sobre todas las
cobranzas." (R. B. Blackman, the surveyor, ordered the said accused to
collect certain debts due for surveying and offered a 10 per cent
commission on all accounts collected.)

The judgment of the trial court being in accord with the facts and the law
is hereby affirmed with the costs. So ordered.

To return to the figures again, it will be noticed that if we accept the

statements of Blackman, Reyes was entitled to 10 per cent of P540 (or
P530), or P54, making P172 misappropriated, or, if we deduct his
commission, P118. On the other hand, if we accept the statements of
Reyes, then 20 per cent of the total amount to be collected, P860, is
exactly P172, the amount claimed to have been misappropriated.

EN BANC

There are a number of reasons which impel us to the conclusion that the
defendant and appellant is guilty as charged. In the first place, in view of
the discrepancy in the evidence we are not disposed to set up our
judgment as superior to that of the trial court. In the second place,
conceding that Reyes was to receive 20 per cent, this, unless some
contrary and express stipulation was included, would not entitle him in
advance to 20 per cent of the amount actually collected. In the third
place, the right to receive a commission of either 10 or 20 per cent did
not make to hold out any sum he chose. (Campbell vs. The State [1878],
35 Ohio St., 70.) In the fourth place, under the oral contract Reyes was
an agent who was bound to pay to the principal all that he had received
by virtue of the agency. (Civil Code, article 1720; U. S. vs. Kiene
[1907], 7 Phil. Rep., 736.) And, lastly, since for all practical purposes,
the agency was terminated, the agent was under the obligation to turn
over to the principal the amount collected, minus his commission on that
amount. (U. S. vs. Schneer [1907], 7 Phil. Rep., 523.)
All the requisites of estafa as punished by article 535, paragraph 5, of the
Penal Code, and as construed by the commentators, are here present. The
assignment of error relative to the nonproduction by the fiscal of the
transcription of the preliminary investigation is not particularly
important as secondary evidence was admitted and the substantial rights
of the accused were not affected.

Arellano, C.J., Johnson, Carson, Araullo and Street, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila

G.R. No. L-12743

August 25, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
DOMINGO REYES, defendant-appellant.
Antonio Bengson for appellant.
Acting Attorney-General for appellee.
MALCOLM, J.:
This is an appeal from a judgment finding Domingo Reyes guilty of
estafa and sentencing him to four months and one day of arresto mayor,
to the accessory penalties of the law, and to indemnify R. B. Blackman
in the sum of P118, with subsidiary imprisonment in case of insolvency,
and to pay the costs.
Marked discrepancies in connection with the evidence, particularly that
which concerns the figures, are to be noted. Accepting the findings of
the trial court, we can summarize the facts as follows:
R. B. Blackman is a surveyor in the Province of Pangasinan. Domingo
Reyes, the accused, also lives in that province. Blackman employed
Reyes to collect certain amounts due from twelve individuals for
Blackman's work in connection with the survey of their lands. The total
amount to be collected by Reyes was P860. He only succeeded in
collecting P540. He delivered to Blackman P368. He retained the
balance, or P172. So far as good. The difficult point concerns the exact
terms of the contract. It was merely an oral agreement between

Blackman and Reyes. Blackman claims that he agreed to pay Reyes a

commission of 10 per cent. Reyes claims that he was to receive a
commission of 20 per cent. The trial court, in its decision, states that
"R. B. Blackman, agrimensor, dio al aqui acusado el encargo de cobrar
algunas cuentas de honorarios devengados per mediciones practicadas
por el como agrimensor, concediendole un 10 por ciento sobre todas las
cobranzas." (R. B. Blackman, the surveyor, ordered the said accused to
collect certain debts due for surveying and offered a 10 per cent
commission on all accounts collected.)
To return to the figures again, it will be noticed that if we accept the
statements of Blackman, Reyes was entitled to 10 per cent of P540 (or
P530), or P54, making P172 misappropriated, or, if we deduct his
commission, P118. On the other hand, if we accept the statements of
Reyes, then 20 per cent of the total amount to be collected, P860, is
exactly P172, the amount claimed to have been misappropriated.
There are a number of reasons which impel us to the conclusion that the
defendant and appellant is guilty as charged. In the first place, in view of
the discrepancy in the evidence we are not disposed to set up our
judgment as superior to that of the trial court. In the second place,
conceding that Reyes was to receive 20 per cent, this, unless some
contrary and express stipulation was included, would not entitle him in
advance to 20 per cent of the amount actually collected. In the third
place, the right to receive a commission of either 10 or 20 per cent did
not make to hold out any sum he chose. (Campbell vs. The State [1878],
35 Ohio St., 70.) In the fourth place, under the oral contract Reyes was
an agent who was bound to pay to the principal all that he had received
by virtue of the agency. (Civil Code, article 1720; U. S. vs. Kiene
[1907], 7 Phil. Rep., 736.) And, lastly, since for all practical purposes,
the agency was terminated, the agent was under the obligation to turn
over to the principal the amount collected, minus his commission on that
amount. (U. S. vs. Schneer [1907], 7 Phil. Rep., 523.)
All the requisites of estafa as punished by article 535, paragraph 5, of the
Penal Code, and as construed by the commentators, are here present. The
assignment of error relative to the nonproduction by the fiscal of the
transcription of the preliminary investigation is not particularly
important as secondary evidence was admitted and the substantial rights
of the accused were not affected.

The judgment of the trial court being in accord with the facts and the law
is hereby affirmed with the costs. So ordered.
Arellano, C.J., Johnson, Carson, Araullo and Street, JJ., concur.
G.R. No. 27093, People v. Flores, 50 Phil. 548
Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
August 11, 1927
G.R.
No.
27093
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
JULIAN FLORES, defendants-appellants.
Sison
and
Enage
Attorney-General Jaranilla for appelle.

for

appellant.

JOHNSON, J.:
On the 8th day of May, 1926, a complaint was presented in the court of
the justice of the peace of the municipality of Balungao, Province of
Pangasinan, charging the defendant with crime of assassination. Upon
that complaint he was arrested. A preliminary examination was held,
after which the justice of the peace found that there was probable cause
for believing that the defendant was guilty of the crime charged in the
complaint and held him for trial in the Court of First Instance.
Later, and on the 28th day of June, 1926, the prosecuting attorney of the
Province of Pangasinan presented a complaint against the defendant,
charging him with the crime of homicide. The complaint alleged:
Que en o hacia el 7 de mayo de 1926, en el Municipio de Balungao,
Provincia de Pangasinan, Islas Filipinas, el referido acusado,
voluntaria, ilegal y criminalmente acometio y agredio con un

instrumento de madera para pilar arroz llamado vulgarmente alo a

Fernando Ballesteros, causandole al efecto la fractura de los costillas
en el lado izquierdo, la cual es grave y mortal de necesidad que motivo
la muerte de dicho Fernando Ballesteros momentos despues de la
agresion.
Hecho cometido con infraccion de la ley.
Upon that complaint the defendant was arraigned and pleaded not
guilty. The cause was brought on for trial on the 24th day of November,
1926. At the close of the trial and after a consideration of the evidence
adduced, the Honorable Buenaventura Reyes, judge, found that the
evidence showed beyond a reasonable doubt that the defendant was
guilty of the crime of homicide, with the attenuating circumstances of
unjust provocation, arrebato and obcecacion, and sentenced him to be
imprisoned for a period of twelve years and one day of reclusion
temporal, with the accessory penalties of the law, to indemnify the heirs
of the deceased in the sum of P1,000 and to pay the costs. From that
sentence the defendant appealed and now contends that the lower court
committed an error (a) in not absolving the defendant upon the ground
that what he did was done in legitimate self-defense; (b) in not
appreciating in favor of the appellant the attenuating circumstance of
drunkenness; and (c) in not appreciating in favor of the appellant his
lack of intention to cause so serious an injury to the offended person.
An examination of the record discloses the following facts: That on the
7th day of May, 1926, one Miguel Apigo residing in the barrio of Alajal
of the municipality of Balungao, Province of Pangasinan, gave a
luncheon in his house at which were present the defendant, the said
Fernando Ballesteros and others; that after the luncheon was over, all of
the persons present went down court of the house of Miguel Apigo and
seated themselves in the yard; that while they were thus seated a
conversation arose among them concerning the difficulties of life; that
during the discussion the defendant Julian Flores made the following
statements to the said Fernando Ballesteros: "Que fuera a su casa con
su familia y el (el acusado) se encargaria de mantenerlos como cerdos."
Upon hearing that statement of the defendant, Fernando Ballestero
replied, saying: Que no necesitaba que un hijo bastardo mantuviese a el
y a su familia;" That following the interchange of said remarks, together
with others of a like character, apparently the quarrel became quite

heated between them and was only stopped by the kindly intervention of
some of the other persons who were present on that occasion; that soon
thereafter Fernando Ballesteros left the house of Miguel Apigo in
direction of his home, carrying with him his rooster; that a little later
the defendant taking up a piece of timber, which was used by the natives
for the purpose of hulling rice, called "alo", followed Fernando
Ballesteros soon overtaking him, and with said piece of timber struck
him, and with said piece of timber struck him, breaking two ribs of said
Fernando Ballesteros on the left side of his body, from the effects of
which he denied a few moments later.
On the same day the defendant was arrested, and in the presence of the
justice of the peace and the presidente of the said municipality
practically admitted the foregoing facts, but tried to make it appear that
when he approached Fernando Ballesteros, the latter turned around and
was in the act of attacking him and that was the reason why he struck
him with the club which he was then and there carrying.
The lower court found that the evidence did not support that contention
of the appellant. The lower court found that he, suddenly and without
notice and without giving Fernando Ballesteros an opportunity to
defend himself, attacked and caused the death of said Fernando
Ballesteros. Upon that question an examination of the evidence, in our
judgment, clearly supports the conclusion of the lower court. There was
an effort made in the lower court also to show that the appellant was
drunk at the time the acts complained of were committed. The lower
court reached the conclusion that contention of the appellant was not
supported by the evidence. An examination of the record clearly
supports that conclusion of the lower court.
With reference to the contention of the appellant that he had no intention
of causing so serious an injury at the time he struck Fernando
Ballesteros, considering the weapon which the appellant used, which
was a heavy club, in relation with his attitude of mind at that time, and
the fact that he followed the deceased some distance and attacked him
without giving him an opportunity to defend himself, in our opinion
clearly show that he failed to take into consideration the consequences
of his act and that he intended to do exactly what he did and must be
held responsible for the result.

While the Attorney-General hesitates to accept the conclusion of the

lower court with reference to the attenuating circumstances of
unjust provocation, arrebato andobcecacion, we are inclined to accept
that theory. The record discloses that each used very insulting language
concerning the other and that they must have been very greatly excited
as a result of the quarrel, or otherwise the other people present would
not have intervened. The acts complained of were committed by the
defendant soon after the quarrel had taken place.
Considering all of the facts and circumstances from the beginning of the
quarrel between the deceased and the appellant up to the commission of
the acts complained of, we feel justified in sustaining the conclusion of
the lower court upon that question.
We find nothing in the record which justifies a modification of the
sentence appealed from. Therefore the same is hereby affirmed, with
costs. So ordered.
Avancea, C. J., Street, Malcolm, Villamor, Johns, Romualdez and VillaReal, JJ., concur.
G.R. No. L-29066, People v. Amit, 32 SCRA 95
Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
DECISION
March 25, 1970
G.R.
No.
THE PEOPLE OF THE PHILIPPINES,
vs.
MARCELO AMIT, defendant-appellant.

L-29066
plaintiff-appellee,

Office of the Solicitor General Felix V. Makasiar and Solicitor

Dominador L. Quiros for plaintiff-appellee. Emilia Vidanes-Balaoing as
counsel de officio for defendant-appellant.
, J.:
Marcelo Amit was charged in the court below with the complex crime of
rape with homicide described and penalized in Article 335 of
the Revised Penal Code, as amended. Arraigned with the assistance of a
counsel de officio, he pleaded guilty.
Due to the gravity of the offense charged, however, the Court required
additional evidence from the prosecution, which the latter presented in
the form of (1) the extrajudicial confession of appellant in Ilocano
(exhibit A) and its translation into English (Exhibit A-1) wherein he
narrated in detail how the crime was committed; (2) the autopsy report
(Exhibit B) describing the injuries suffered by the victim as she resisted
appellant's criminal advances against her honor; and (3) the medical
certificate (Exhibit C) describing the personal injuries suffered by the
appellant himself during the struggle put up against him by the victim.
On the basis of appellant's plea of guilty and the abovementioned
evidence, the trial court rendered judgment sentencing him "to suffer the
supreme penalty of death, with the accessories prescribed by law; to
indemnify the heirs of the deceased Rufina Arellano in the amount of
P6,000.00, without subsidiary imprisonment in case of insolvency, and
to pay the costs." Pursuant to the provisions of Section 9, Rule 122 of
the Revised Rules of Court, said judgment was elevated to us for review.
While appellant does not question the correctness of the decision under
review in so far as it finds him guilty of the crime charged, he claims,
through his counsel de officio, that the penalty of death imposed upon
him should be reduced to reclusion perpetua in view of the presence of
three mitigating circumstances which the trial court should have
considered in his favor, namely: (1) plea of guilty; (2) voluntary
surrender, and (3) lack of intention to commit so grave a wrong as the
one actually committed.
The Solicitor General admits that the mitigating circumstances of plea
of guilty and voluntary surrender have been proven, but denies that the

mitigating circumstance of lack of intention to commit so grave a wrong

as the one actually committed was similarly established. We agree with
this latter contention.

Q: The left cheek of Rufina Arellano even swelled, do you know how she
sustained it that caused it to swell?
A: I boxed her when she resisted, sir.

Appellant's contention - because of its nature, must necessarily be

judged in the light of the acts committed by him and the circumstances
under which they were committed. Should they show a great
disproportion between the means employed to accomplish the criminal
act - on the one hand - and its consequences - on the other - the
mitigating circumstance under consideration must be considered in
favor of the accused (U.S. vs. Reyes, 36 Phil. 904, 906-907). Otherwise,
it should not.
In the case at bar, the following excerpts taken from appellant's
extrajudicial confession (Exhibit A-1, translation) give us an idea of the
acts committed by him in executing the crime:
Q: And what did Rufina Arellano do to you when you made her lay down
and you immediately place yourself on top of her?
A: She resisted a little, nevertheless I was able to do sexual intercourse
with her, sir.
Q: In her act of resisting you, what did Rufina Arellano do to you?

Q: What hand of yours boxed the left cheek of Rufina Arellano?

A: My left hand, sir, for my right hand was holding her neck.
Q: So what was the position of Rufina Arellano when your right hand
was holding her neck as you boxed her on the cheek with your left
hand?
A: Rufina Arellano was lying down on her back and I was on top of her,
sir. (pp. 23-24, rec.)
At the time of the commission of the crime, appellant was 32 years of
age, while his victim was 25 years his senior; his victim resisted his
attempt to rape her by biting and scratching him; to subdue her,
appellant boxed her and then "held her on the neck and pressed it
down" while she was lying on her back and he was on top of her. These
acts, We believe, were reasonably sufficient to produce the result that
they actually produced - the death of appellant's victim. Consequently,
what we said in People vs. Yu, G.R. L-13780, promulgated on January
28, 1961, would seem to apply:

A: She bit me and scratched me, sir.

Q: What part of your body did Rufina Arellano bit and scratched?
A: She bit me on a place a little below my shoulder and scratched me on
my breast, sir.
Q: When Rufina Arellano put up a little resistance when you placed
yourself on top of her, what did you do also?
A: I held her on the neck and pressed it downward, sir.
xxx xxx xxx

The lack of intention to commit so grave a wrong as that committed

cannot be appreciated in favor of an accused who employed brute force
- choking a 6-year old girl to death, who tried to shout while he was
raping her - intention being gathered from and determined only by the
conduct and external acts of the offender, and the results of the acts
themselves.
The penalty of Death prescribed in the last paragraph of Article 335 of
the Revised Penal Code, as amended by Republic Acts Nos. 2632 and
4111 being an indivisible penalty, it has to be imposed regardless of the
presence of mitigating circumstances, especially in a case like the
present where, according to the evidence of record, the crime was
committed with the aggravating circumstances of nighttime and abuse of
superior strength (first paragraph, Article 63, Revised Penal Code).

Moreover, the civil indemnity awarded by the trial court must be

increased to P12,000.00.
MODIFIED AS ABOVE INDICATED, the judgment appealed from is
affirmed in all other respects. With costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro,
Fernando, Teehankee, Barredo and Villamor, JJ., concur.
G.R. No. 5272, U.S. v. Ah Chong, 15 Phil. 488
Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
March 19, 1910
G.R. No. 5272
THE
UNITED
vs.
AH CHONG, defendant-appellant.
Gibb
&
Gale,
Attorney-General Villamor, for appellee.

STATES, plaintiff-appellee,

for

appellant.

CARSON, J.:
The evidence as to many of the essential and vital facts in this case is
limited to the testimony of the accused himself, because from the very
nature of these facts and from the circumstances surrounding the
incident upon which these proceedings rest, no other evidence as to
these facts was available either to the prosecution or to the defense. We
think, however, that, giving the accused the benefit of the doubt as to the
weight of the evidence touching those details of the incident as to which
there can be said to be any doubt, the following statement of the
material facts disclose by the record may be taken to be substantially
correct:

The defendant, Ah Chong, was employed as a cook at "Officers'

quarters, No. 27," Fort Mc Kinley, Rizal Province, and at the same
place Pascual Gualberto, deceased, was employed as a house boy
or muchacho. "Officers' quarters No. 27" as a detached house situates
some 40 meters from the nearest building, and in August, 19087, was
occupied solely as an officers' mess or club. No one slept in the house
except the two servants, who jointly occupied a small room toward the
rear of the building, the door of which opened upon a narrow porch
running along the side of the building, by which communication was
had with the other part of the house. This porch was covered by a heavy
growth of vines for its entire length and height. The door of the room
was not furnished with a permanent bolt or lock, and occupants, as a
measure of security, had attached a small hook or catch on the inside of
the door, and were in the habit of reinforcing this somewhat insecure
means of fastening the door by placing against it a chair. In the room
there was but one small window, which, like the door, opened on the
porch. Aside from the door and window, there were no other openings of
any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the defendant, who
had received for the night, was suddenly awakened by some trying to
force open the door of the room. He sat up in bed and called out twice,
"Who is there?" He heard no answer and was convinced by the noise at
the door that it was being pushed open by someone bent upon forcing
his way into the room. Due to the heavy growth of vines along the front
of the porch, the room was very dark, and the defendant, fearing that the
intruder was a robber or a thief, leaped to his feet and called out. "If
you enter the room, I will kill you." At that moment he was struck just
above the knee by the edge of the chair which had been placed against
the door. In the darkness and confusion the defendant thought that the
blow had been inflicted by the person who had forced the door open,
whom he supposed to be a burglar, though in the light of after events, it
is probable that the chair was merely thrown back into the room by the
sudden opening of the door against which it rested. Seizing a common
kitchen knife which he kept under his pillow, the defendant struck out
wildly at the intruder who, it afterwards turned out, was his roommate,
Pascual. Pascual ran out upon the porch and fell down on the steps in a
desperately wounded condition, followed by the defendant, who
immediately recognized him in the moonlight. Seeing that Pascual was
wounded, he called to his employers who slept in the next house, No. 28,

and ran back to his room to secure bandages to bind up Pascual's

wounds.
There had been several robberies in Fort McKinley not long prior to the
date of the incident just described, one of which took place in a house in
which the defendant was employed as cook; and as defendant alleges, it
was because of these repeated robberies he kept a knife under his pillow
for his personal protection.
The deceased and the accused, who roomed together and who appear to
have on friendly and amicable terms prior to the fatal incident, had an
understanding that when either returned at night, he should knock at the
door and acquiant his companion with his identity. Pascual had left the
house early in the evening and gone for a walk with his friends,
Celestino Quiambao and Mariano Ibaez, servants employed at officers'
quarters No. 28, the nearest house to the mess hall. The three returned
from their walk at about 10 o'clock, and Celestino and Mariano stopped
at their room at No. 28, Pascual going on to his room at No. 27. A few
moments after the party separated, Celestino and Mariano heard cries
for assistance and upon returning to No. 27 found Pascual sitting on the
back steps fatally wounded in the stomach, whereupon one of them ran
back to No. 28 and called Liuetenants Jacobs and Healy, who
immediately went to the aid of the wounded man.
The defendant then and there admitted that he had stabbed his
roommate, but said that he did it under the impression that Pascual was
"a ladron" because he forced open the door of their sleeping room,
despite defendant's warnings.
No reasonable explanation of the remarkable conduct on the part of
Pascuals suggests itself, unless it be that the boy in a spirit of mischief
was playing a trick on his Chinese roommate, and sought to frightened
him by forcing his way into the room, refusing to give his name or say
who he was, in order to make Ah Chong believe that he was being
attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual was
conveyed to the military hospital, where he died from the effects of the
wound on the following day.

The defendant was charged with the crime of assassination, tried, and
found guilty by the trial court of simple homicide, with extenuating
circumstances, and sentenced to six years and one daypresidio mayor,
the minimum penalty prescribed by law.
At the trial in the court below the defendant admitted that he killed his
roommate, Pascual Gualberto, but insisted that he struck the fatal blow
without any intent to do a wrongful act, in the exercise of his lawful
right of self-defense.
Article 8 of the Penal Code provides that
The following are not delinquent and are therefore exempt from criminal
liability:
xxx

xxx

xxx

4 He who acts in defense of his person or rights, provided there are the
following attendant circumstances:
(1) Illegal aggression.
(2) Reasonable necessity of the means employed to prevent or repel it.
(3) Lack of sufficient provocation on the part of the person defending
himself.
Under these provisions we think that there can be no doubt that
defendant would be entitle to complete exception from criminal liability
for the death of the victim of his fatal blow, if the intruder who forced
open the door of his room had been in fact a dangerous thief or
"ladron," as the defendant believed him to be. No one, under such
circumstances, would doubt the right of the defendant to resist and repel
such an intrusion, and the thief having forced open the door
notwithstanding defendant's thrice-repeated warning to desist, and his
threat that he would kill the intruder if he persisted in his attempt, it will
not be questioned that in the darkness of the night, in a small room, with
no means of escape, with the thief advancing upon him despite his
warnings defendant would have been wholly justified in using any
available weapon to defend himself from such an assault, and in striking

promptly, without waiting for the thief to discover his whereabouts and
deliver the first blow.
But the evidence clearly discloses that the intruder was not a thief or a
"ladron." That neither the defendant nor his property nor any of the
property under his charge was in real danger at the time when he struck
the fatal blow. That there was no such "unlawful aggression" on the part
of a thief or "ladron" as defendant believed he was repelling and
resisting, and that there was no real "necessity" for the use of the knife
to defend his person or his property or the property under his charge.
The question then squarely presents it self, whether in this jurisdiction
one can be held criminally responsible who, by reason of a mistake as to
the facts, does an act for which he would be exempt from criminal
liability if the facts were as he supposed them to be, but which would
constitute the crime of homicide or assassination if the actor had known
the true state of the facts at the time when he committed the act. To this
question we think there can be but one answer, and we hold that under
such circumstances there is no criminal liability, provided always that
the alleged ignorance or mistake or fact was not due to negligence or
bad faith.
In broader terms, ignorance or mistake of fact, if such ignorance or
mistake of fact is sufficient to negative a particular intent which under
the law is a necessary ingredient of the offense charged (e.g., in
larcerny, animus furendi; in murder, malice; in crimes intent) "cancels
the presumption of intent," and works an acquittal; except in those cases
where the circumstances demand a conviction under the penal
provisions touching criminal negligence; and in cases where, under the
provisions of article 1 of the Penal Code one voluntarily committing a
crime or misdeamor incurs criminal liability for any wrongful act
committed by him, even though it be different from that which he
intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited;
McClain's Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap.,
240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y.,
509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met.,
500.)
The general proposition thus stated hardly admits of discussion, and the
only question worthy of consideration is whether malice or criminal

intent is an essential element or ingredient of the crimes of homicide and

assassination as defined and penalized in the Penal Code. It has been
said that since the definitions there given of these as well as most other
crimes and offense therein defined, do not specifically and expressly
declare that the acts constituting the crime or offense must be committed
with malice or with criminal intent in order that the actor may be held
criminally liable, the commission of the acts set out in the various
definitions subjects the actor to the penalties described therein, unless it
appears that he is exempted from liability under one or other of the
express provisions of article 8 of the code, which treats of exemption.
But while it is true that contrary to the general rule of legislative
enactment in the United States, the definitions of crimes and offenses as
set out in the Penal Code rarely contain provisions expressly declaring
that malice or criminal intent is an essential ingredient of the crime,
nevertheless, the general provisions of article 1 of the code clearly
indicate that malice, or criminal intent in some form, is an essential
requisite of all crimes and offense therein defined, in the absence of
express provisions modifying the general rule, such as are those
touching liability resulting from acts negligently or imprudently
committed, and acts done by one voluntarily committing a crime or
misdemeanor, where the act committed is different from that which he
intended to commit. And it is to be observed that even these exceptions
are more apparent than real, for "There is little distinction, except in
degree, between a will to do a wrongful thing and indifference whether it
is done or not. Therefore carelessness is criminal, and within limits
supplies the place of the affirmative criminal intent" (Bishop's New
Criminal Law, vol. 1, s. 313); and, again, "There is so little difference
between a disposition to do a great harm and a disposition to do harm
that one of them may very well be looked upon as the measure of the
other. Since, therefore, the guilt of a crime consists in the disposition to
do harm, which the criminal shows by committing it, and since this
disposition is greater or less in proportion to the harm which is done by
the crime, the consequence is that the guilt of the crime follows the same
proportion; it is greater or less according as the crime in its own nature
does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been
otherwise stated, the thing done, having proceeded from a corrupt mid,
is to be viewed the same whether the corruption was of one particular
form or another.
Article 1 of the Penal Code is as follows:

Crimes or misdemeanors are voluntary acts and ommissions punished

by law.
Acts and omissions punished by law are always presumed to be
voluntarily unless the contrary shall appear.
An person voluntarily committing a crime or misdemeanor shall incur
criminal liability, even though the wrongful act committed be different
from that which he had intended to commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of the
word "voluntary" as used in this article, say that a voluntary act is
a free, intelligent, and intentional act, and roundly asserts that without
intention (intention to do wrong or criminal intention) there can be no
crime; and that the word "voluntary" implies and includes the words
"con malicia," which were expressly set out in the definition of the word
"crime" in the code of 1822, but omitted from the code of 1870, because,
as Pacheco insists, their use in the former code was redundant, being
implied and included in the word "voluntary." (Pacheco, Codigo Penal,
vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the crime
can only be said to exempt from criminal responsibility when the act
which was actually intended to be done was in itself a lawful one, and in
the absence of negligence or imprudence, nevertheless admits and
recognizes in his discussion of the provisions of this article of the code
that in general without intention there can be no crime. (Viada, vol. 1, p.
16.) And, as we have shown above, the exceptions insisted upon by
Viada are more apparent than real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which declared that
where there is no intention there is no crime . . . in order to affirm,
without fear of mistake, that under our code there can be no crime if
there is no act, an act which must fall within the sphere of ethics if there
is no moral injury. (Vol. 2, the Criminal Law, folio 169.)

And to the same effect are various decisions of the supreme court of
Spain, as, for example in its sentence of May 31, 1882, in which it made
use of the following language:
It is necessary that this act, in order to constitute a crime, involve all the
malice which is supposed from the operation of the will and an intent to
cause the injury which may be the object of the crime.
And again in its sentence of March 16, 1892, wherein it held that
"considering that, whatever may be the civil effects of the inscription of
his three sons, made by the appellant in the civil registry and in the
parochial church, there can be no crime because of the lack of the
necessary element or criminal intention, which characterizes every
action or ommission punished by law; nor is he guilty of criminal
negligence."
And to the same effect in its sentence of December 30, 1896, it made use
of the following language:
. . . Considering that the moral element of the crime, that is, intent or
malice or their absence in the commission of an act defined and
punished by law as criminal, is not a necessary question of fact
submitted to the exclusive judgment and decision of the trial court.
That the author of the Penal Code deemed criminal intent or malice to
be an essential element of the various crimes and misdemeanors therein
defined becomes clear also from an examination of the provisions of
article 568, which are as follows:
He who shall execute through reckless negligence an act that, if done
with malice, would constitute a grave crime, shall be punished with the
penalty of arresto mayor in its maximum degree, toprision
correccional in its minimum degrees if it shall constitute a less grave
crime.
He who in violation of the regulations shall commit a crime through
simple imprudence or negligence shall incur the penalty of arresto
mayor in its medium and maximum degrees.

In the application of these penalties the courts shall proceed according

to their discretion, without being subject to the rules prescribed in
article 81.
The provisions of this article shall not be applicable if the penalty
prescribed for the crime is equal to or less than those contained in the
first paragraph thereof, in which case the courts shall apply the next one
thereto in the degree which they may consider proper.
The word "malice" in this article is manifestly substantially equivalent
to the words "criminal intent," and the direct inference from its
provisions is that the commission of the acts contemplated therein, in the
absence of malice (criminal intent), negligence, and imprudence, does
not impose any criminal liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would seem
to approximate in meaning the word "willful" as used in English and
American statute to designate a form of criminal intent. It has been said
that while the word "willful" sometimes means little more than
intentionally or designedly, yet it is more frequently understood to extent
a little further and approximate the idea of the milder kind of legal
malice; that is, it signifies an evil intent without justifiable excuse. In
one case it was said to mean, as employed in a statute in contemplation,
"wantonly" or "causelessly;" in another, "without reasonable grounds to
believe the thing lawful." And Shaw, C. J., once said that ordinarily in a
statute it means "not merely `voluntarily' but with a bad purpose; in
other words, corruptly." In English and the American statutes defining
crimes "malice," "malicious," "maliciously," and "malice aforethought"
are words indicating intent, more purely technical than "willful" or
willfully," but "the difference between them is not great;" the word
"malice" not often being understood to require general malevolence
toward a particular individual, and signifying rather the intent from our
legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and
429, and cases cited.)
But even in the absence of express words in a statute, setting out a
condition in the definition of a crime that it be committed "voluntarily,"
willfully," "maliciously" "with malice aforethought," or in one of the
various modes generally construed to imply a criminal intent, we think
that reasoning from general principles it will always be found that with

the rare exceptions hereinafter mentioned, to constitute a crime evil

intent must combine with an act. Mr. Bishop, who supports his position
with numerous citations from the decided cases, thus forcely present this
doctrine:
In no one thing does criminal jurisprudence differ more from civil than
in the rule as to the intent. In controversies between private parties
the quo animo with which a thing was done is sometimes important, not
always; but crime proceeds only from a criminal mind. So that
There can be no crime, large or small, without an evil mind. In other
words, punishment is the sentence of wickedness, without which it can
not be. And neither in philosophical speculation nor in religious or
mortal sentiment would any people in any age allow that a man should
be deemed guilty unless his mind was so. It is therefore a principle of
our legal system, as probably it is of every other, that the essence of an
offense is the wrongful intent, without which it can not exists. We find
this doctrine confirmed by
Legal maxims. The ancient wisdom of the law, equally with the
modern, is distinct on this subject. It consequently has supplied to us
such maxims as Actus non facit reum nisi mens sit rea, "the act itself
does not make man guilty unless his intention were so;" Actus me incito
factus non est meus actus, "an act done by me against my will is not my
act;" and others of the like sort. In this, as just said, criminal
jurisprudence differs from civil. So also
Moral science and moral sentiment teach the same thing. "By reference
to the intention, we inculpate or exculpate others or ourselves without
any respect to the happiness or misery actually produced. Let the result
of an action be what it may, we hold a man guilty simply on the ground
of intention; or, on the dame ground, we hold him innocent." The calm
judgment of mankind keeps this doctrine among its jewels. In times of
excitement, when vengeance takes the place of justice, every guard
around the innocent is cast down. But with the return of reason comes
the public voice that where the mind is pure, he who differs in act from
his neighbors does not offend. And
In the spontaneous judgment which springs from the nature given by
God to man, no one deems another to deserve punishment for what he

did from an upright mind, destitute of every form of evil. And whenever
a person is made to suffer a punishment which the community deems not
his due, so far from its placing an evil mark upon him, it elevates him to
the seat of the martyr. Even infancy itself spontaneously pleads the want
of bad intent in justification of what has the appearance of wrong, with
the utmost confidence that the plea, if its truth is credited, will be
accepted as good. Now these facts are only the voice of nature uttering
one of her immutable truths. It is, then, the doctrine of the law, superior
to all other doctrines, because first in nature from which the law itself
proceeds, that no man is to be punished as a criminal unless his intent is
wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all things," an apparent
departure from this doctrine of abstract justice result from the adoption
of the arbitrary rule that Ignorantia juris non excusat("Ignorance of the
law excuses no man"), without which justice could not be administered
in our tribunals; and compelled also by the same doctrine of necessity,
the courts have recognized the power of the legislature to forbid, in a
limited class of cases, the doing of certain acts, and to make their
commission criminal without regard to the intent of the doer. Without
discussing these exceptional cases at length, it is sufficient here to say
that the courts have always held that unless the intention of the
lawmaker to make the commission of certain acts criminal without
regard to the intent of the doer is clear and beyond question the statute
will not be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76
and 77); and the rule that ignorance of the law excuses no man has been
said not to be a real departure from the law's fundamental principle that
crime exists only where the mind is at fault, because "the evil purpose
need not be to break the law, and if suffices if it is simply to do the thing
which the law in fact forbids." (Bishop's New Criminal Law, sec. 300,
and cases cited.)
But, however this may be, there is no technical rule, and no pressing
necessity therefore, requiring mistake in fact to be dealt with otherwise
that in strict accord with the principles of abstract justice. On the
contrary, the maxim here is Ignorantia facti excusat ("Ignorance or
mistake in point of fact is, in all cases of supposed offense, a sufficient
excuse"). (Brown's Leg. Max., 2d ed., 190.)

Since evil intent is in general an inseparable element in every crime, any

such mistake of fact as shows the act committed to have proceeded from
no sort of evil in the mind necessarily relieves the actor from criminal
liability provided always there is no fault or negligence on his part; and
as laid down by Baron Parke, "The guilt of the accused must depend on
the circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C.,
387; P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342;
Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625;
Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209;
Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to whether
he honestly, in good faith, and without fault or negligence fell into the
mistake is to be determined by the circumstances as they appeared to
him at the time when the mistake was made, and the effect which the
surrounding circumstances might reasonably be expected to have on his
mind, in forming the intent, criminal or other wise, upon which he acted.
If, in language not uncommon in the cases, one has reasonable cause to
believe the existence of facts which will justify a killing or, in terms
more nicely in accord with the principles on which the rule is founded, if
without fault or carelessness he does believe them he is legally
guiltless of the homicide; though he mistook the facts, and so the life of
an innocent person is unfortunately extinguished. In other words, and
with reference to the right of self-defense and the not quite harmonious
authorities, it is the doctrine of reason and sufficiently sustained in
adjudication, that notwithstanding some decisions apparently adverse,
whenever a man undertakes self-defense, he is justified in acting on the
facts as they appear to him. If, without fault or carelessness, he is misled
concerning them, and defends himself correctly according to what he
thus supposes the facts to be the law will not punish him though they are
in truth otherwise, and he was really no occassion for the extreme
measures. (Bishop's New Criminal Law, sec. 305, and large array of
cases there cited.)
The common illustration in the American and English textbooks of the
application of this rule is the case where a man, masked and disguised
as a footpad, at night and on a lonely road, "holds up" his friends in a
spirit of mischief, and with leveled pistol demands his money or his life,
but is killed by his friend under the mistaken belief that the attack is a
real one, that the pistol leveled at his head is loaded, and that his life
and property are in imminent danger at the hands of the aggressor. No

one will doubt that if the facts were such as the slayer believed them to
be he would be innocent of the commission of any crime and wholly
exempt from criminal liability, although if he knew the real state of the
facts when he took the life of his friend he would undoubtedly be guilty
of the crime of homicide or assassination. Under such circumstances,
proof of his innocent mistake of the facts overcomes the presumption of
malice or criminal intent, and (since malice or criminal intent is a
necessary ingredient of the "act punished by law" in cases of homicide
or assassination) overcomes at the same time the presumption
established in article 1 of the code, that the "act punished by law" was
committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that the person
slain had a felonious design against him, and under that supposition
killed him, although it should afterwards appear that there was no such
design, it will not be murder, but it will be either manslaughter or
excusable homicide, according to the degree of caution used and the
probable grounds of such belief. (Charge to the grand jury in Selfridge's
case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine as
follows:
A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward
him, with an outstretched arms and a pistol in his hand, and using
violent menaces against his life as he advances. Having approached
near enough in the same attitude, A, who has a club in his hand, strikes
B over the head before or at the instant the pistol is discharged; and of
the wound B dies. It turns out the pistol was loaded with powder only,
and that the real design of B was only to terrify A. Will any reasonable
man say that A is more criminal that he would have been if there had
been a bullet in the pistol? Those who hold such doctrine must require
that a man so attacked must, before he strikes the assailant, stop and
ascertain how the pistol is loaded a doctrine which would entirely
take away the essential right of self-defense. And when it is considered
that the jury who try the cause, and not the party killing, are to judge of
the reasonable grounds of his apprehension, no danger can be supposed
to flow from this principle. (Lloyd's Rep., p. 160.)

To the same effect are various decisions of the supreme court of Spain,
cited by Viada, a few of which are here set out in full because the facts
are somewhat analogous to those in the case at bar.
QUESTION III. When it is shown that the accused was sitting at his
hearth, at night, in company only of his wife, without other light than
reflected from the fire, and that the man with his back to the door was
attending to the fire, there suddenly entered a person whom he did not
see or know, who struck him one or two blows, producing a contusion on
the shoulder, because of which he turned, seized the person and took
from his the stick with which he had undoubtedly been struck, and gave
the unknown person a blow, knocking him to the floor, and afterwards
striking him another blow on the head, leaving the unknown lying on the
floor, and left the house. It turned out the unknown person was his
father-in-law, to whom he rendered assistance as soon as he learned his
identity, and who died in about six days in consequence of cerebral
congestion resulting from the blow. The accused, who confessed the
facts, had always sustained pleasant relations with his father-in-law,
whom he visited during his sickness, demonstrating great grief over the
occurrence. Shall he be considered free from criminal responsibility, as
having acted in self-defense, with all the circumstances related in
paragraph 4, article 8, of the Penal Code? The criminal branch of
the Audiencia of Valladolid found that he was an illegal aggressor,
without sufficient provocation, and that there did not exists rational
necessity for the employment of the force used, and in accordance with
articles 419 and 87 of the Penal Code condemned him to twenty months
of imprisonment, with accessory penalty and costs. Upon appeal by the
accused, he was acquitted by the supreme court, under the following
sentence: "Considering, from the facts found by the sentence to have
been proven, that the accused was surprised from behind, at night, in his
house beside his wife who was nursing her child, was attacked, struck,
and beaten, without being able to distinguish with which they might
have executed their criminal intent, because of the there was no other
than fire light in the room, and considering that in such a situation and
when the acts executed demonstrated that they might endanger his
existence, and possibly that of his wife and child, more especially
because his assailant was unknown, he should have defended himself,
and in doing so with the same stick with which he was attacked, he did
not exceed the limits of self-defense, nor did he use means which were
not rationally necessary, particularly because the instrument with which

he killed was the one which he took from his assailant, and was capable
of producing death, and in the darkness of the house and the
consteration which naturally resulted from such strong aggression, it
was not given him to known or distinguish whether there was one or
more assailants, nor the arms which they might bear, not that which they
might accomplish, and considering that the lower court did not find
from the accepted facts that there existed rational necessity for the
means employed, and that it did not apply paragraph 4 of article 8 of
the Penal Code, it erred, etc." (Sentence of supreme court of Spain,
February 28, 1876.) (Viada, Vol. I, p. 266.) .
QUESTION XIX. A person returning, at night, to his house, which was
situated in a retired part of the city, upon arriving at a point where there
was no light, heard the voice of a man, at a distance of some 8 paces,
saying: "Face down, hand over you money!" because of which, and
almost at the same money, he fired two shots from his pistol,
distinguishing immediately the voice of one of his friends (who had
before simulated a different voice) saying, "Oh! they have killed me,"
and hastening to his assistance, finding the body lying upon the ground,
he cried, "Miguel, Miguel, speak, for God's sake, or I am ruined,"
realizing that he had been the victim of a joke, and not receiving a reply,
and observing that his friend was a corpse, he retired from the place.
Shall he be declared exempt in toto from responsibility as the author of
this homicide, as having acted in just self-defense under the
circumstances defined in paragraph 4, article 8, Penal Code? The
criminal branch of the Audiencia of Malaga did not so find, but only
found in favor of the accused two of the requisites of said article, but not
that of the reasonableness of the means employed to repel the attack,
and, therefore, condemned the accused to eight years and one day
of prison mayor, etc. The supreme court acquitted the accused on his
appeal from this sentence, holding that the accused was acting under a
justifiable and excusable mistake of fact as to the identity of the person
calling to him, and that under the circumstances, the darkness and
remoteness, etc., the means employed were rational and the shooting
justifiable. (Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p.
136.)
QUESTION VI. The owner of a mill, situated in a remote spot, is
awakened, at night, by a large stone thrown against his window at
this, he puts his head out of the window and inquires what is wanted,

and is answered "the delivery of all of his money, otherwise his house
would be burned" because of which, and observing in an alley
adjacent to the mill four individuals, one of whom addressed him with
blasphemy, he fired his pistol at one the men, who, on the next morning
was found dead on the same spot. Shall this man be declared exempt
from criminal responsibility as having acted in just self-defense with all
of the requisites of law? The criminal branch of the requisites of law?
The criminal branch of the Audiencia of Zaragoza finds that there
existed in favor of the accused a majority of the requisites to exempt him
from criminal responsibility, but not that of reasonable necessity for the
means, employed, and condemned the accused to twelve months
of prision correctional for the homicide committed. Upon appeal, the
supreme court acquitted the condemned, finding that the accused, in
firing at the malefactors, who attack his mill at night in a remote spot by
threatening robbery and incendiarism, was acting in just self-defense of
his person, property, and family. (Sentence of May 23, 1877). (I Viada,
p. 128.)
A careful examination of the facts as disclosed in the case at bar
convinces us that the defendant Chinaman struck the fatal blow alleged
in the information in the firm belief that the intruder who forced open
the door of his sleeping room was a thief, from whose assault he was in
imminent peril, both of his life and of his property and of the property
committed to his charge; that in view of all the circumstances, as they
must have presented themselves to the defendant at the time, he acted in
good faith, without malice, or criminal intent, in the belief that he was
doing no more than exercising his legitimate right of self-defense; that
had the facts been as he believed them to be he would have been wholly
exempt from criminal liability on account of his act; and that he can not
be said to have been guilty of negligence or recklessness or even
carelessness in falling into his mistake as to the facts, or in the means
adopted by him to defend himself from the imminent danger which he
believe threatened his person and his property and the property under
his charge.
The judgment of conviction and the sentence imposed by the trial court
should be reversed, and the defendant acquitted of the crime with which
he is charged and his bail bond exonerated, with the costs of both
instance de oficio. So ordered.

Johnson
Moreland
and
Arellano, C.J., and Mapa, J., dissent.

Elliott,

JJ., concur.

Separate Opinion

Antonio Z. Oanis in his own behalf.

Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibaez and Assistant Attorney Torres for
appellee.

TORRES, J., dissenting:

MORAN, J.:

The writer, with due respect to the opinion of the majority of the court,
believes that, according to the merits of the case, the crime of homicide
by reckless negligence, defined and punishes in article 568 of the Penal
Code, was committed, inasmuch as the victim was wilfully
(voluntariomente) killed, and while the act was done without malice or
criminal intent it was, however, executed with real negligence, for the
acts committed by the deceased could not warrant the aggression by the
defendant under the erroneous belief on the part of the accused that the
person who assaulted him was a malefactor; the defendant therefore
incurred responsibility in attacking with a knife the person who was
accustomed to enter said room, without any justifiable motive.

Charged with the crime of murder of one Serapio Tecson, the accused
Antonio Z. Oanis and Alberto Galanta, chief of police of Cabanatuan
and corporal of the Philippine Constabulary, respectively, were, after due
trial, found guilty by the lower court of homicide through reckless
imprudence and were sentenced each to an indeterminate penalty of
from one year and six months to two years and two months of prison
correccional and to indemnify jointly and severally the heirs of the
deceased in the amount of P1,000. Defendants appealed separately from
this judgment.

By reason of the nature of the crime committed, in the opinion of the

undersigned the accused should be sentenced to the penalty of one year
and one month of prision correctional, to suffer the accessory penalties
provided in article 61, and to pay an indemnify of P1,000 to the heirs of
the deceased, with the costs of both instances, thereby reversing the
judgment appealed from.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-47722

July 27, 1943

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendantsappellants.

In the afternoon of December 24, 1938. Captain Godofredo Monsod,

Constabulary Provincial Inspector at Cabanatuan, Nueva Ecija, received
from Major Guido a telegram of the following tenor: "Information
received escaped convict Anselmo Balagtas with bailarina and Irene in
Cabanatuan get him dead or alive." Captain Monsod accordingly called
for his first sergeant and asked that he be given four men. Defendant
corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio
Serna and D. Fernandez, upon order of their sergeant, reported at the
office of the Provincial Inspector where they were shown a copy of the
above-quoted telegram and a newspaper clipping containing a picture of
Balagtas. They were instructed to arrest Balagtas and, if overpowered, to
follow the instruction contained in the telegram. The same instruction
was given to the chief of police Oanis who was likewise called by the
Provincial Inspector. When the chief of police was asked whether he
knew one Irene, a bailarina, he answered that he knew one of loose
morals of the same name. Upon request of the Provincial Inspector, the
chief of police tried to locate some of his men to guide the constabulary
soldiers in ascertaining Balagtas' whereabouts, and failing to see anyone
of them he volunteered to go with the party. The Provincial Inspector
divided the party into two groups with defendants Oanis and Galanta,
and private Fernandez taking the route to Rizal street leading to the
house where Irene was supposedly living. When this group arrived at
Irene's house, Oanis approached one Brigida Mallare, who was then

stripping banana stalks, and asked her where Irene's room was. Brigida
indicated the place and upon further inquiry also said that Irene was
sleeping with her paramour. Brigida trembling, immediately returned to
her own room which was very near that occupied by Irene and her
paramour. Defendants Oanis and Galanta then went to the room of Irene,
and an seeing a man sleeping with his back towards the door where they
were, simultaneously or successively fired at him with their .32 and .45
caliber revolvers. Awakened by the gunshots, Irene saw her paramour
already wounded, and looking at the door where the shots came, she saw
the defendants still firing at him. Shocked by the entire scene. Irene
fainted; it turned out later that the person shot and killed was not the
notorious criminal Anselmo Balagtas but a peaceful and innocent citizen
named Serapio Tecson, Irene's paramour. The Provincial Inspector,
informed of the killing, repaired to the scene and when he asked as to
who killed the deceased. Galanta, referring to himself and to Oanis,
answered: "We two, sir." The corpse was thereafter brought to the
provincial hospital and upon autopsy by Dr. Ricardo de Castro, multiple
gunshot wounds inflicted by a .32 and a .45 caliber revolvers were found
on Tecson's body which caused his death.
These are the facts as found by the trial court and fully supported by the
evidence, particularly by the testimony of Irene Requinea. Appellants
gave, however, a different version of the tragedy. According to Appellant
Galanta, when he and chief of police Oanis arrived at the house, the
latter asked Brigida where Irene's room was. Brigida indicated the place,
and upon further inquiry as to the whereabouts of Anselmo Balagtas, she
said that he too was sleeping in the same room. Oanis went to the room
thus indicated and upon opening the curtain covering the door, he said:
"If you are Balagtas, stand up." Tecson, the supposed Balagtas, and Irene
woke up and as the former was about to sit up in bed. Oanis fired at him.
Wounded, Tecson leaned towards the door, and Oanis receded and
shouted: "That is Balagtas." Galanta then fired at Tecson.
On the other hand, Oanis testified that after he had opened the curtain
covering the door and after having said, "if you are Balagtas stand up."
Galanta at once fired at Tecson, the supposed Balagtas, while the latter
was still lying on bed, and continued firing until he had exhausted his
bullets: that it was only thereafter that he, Oanis, entered the door and
upon seeing the supposed Balagtas, who was then apparently watching
and picking up something from the floor, he fired at him.

The trial court refused to believe the appellants. Their testimonies are
certainly incredible not only because they are vitiated by a natural urge
to exculpate themselves of the crime, but also because they are
materially contradictory. Oasis averred that be fired at Tecson when the
latter was apparently watching somebody in an attitudes of picking up
something from the floor; on the other hand, Galanta testified that Oasis
shot Tecson while the latter was about to sit up in bed immediately after
he was awakened by a noise. Galanta testified that he fired at Tecson, the
supposed Balagtas, when the latter was rushing at him. But Oanis
assured that when Galanta shot Tecson, the latter was still lying on bed.
It is apparent from these contradictions that when each of the appellants
tries to exculpate himself of the crime charged, he is at once belied by
the other; but their mutual incriminating averments dovetail with and
corroborate substantially, the testimony of Irene Requinea. It should be
recalled that, according to Requinea, Tecson was still sleeping in bed
when he was shot to death by appellants. And this, to a certain extent, is
confirmed by both appellants themselves in their mutual recriminations.
According, to Galanta, Oanis shot Tecson when the latter was still in bed
about to sit up just after he was awakened by a noise. And Oanis assured
that when Galanta shot Tecson, the latter was still lying in bed. Thus
corroborated, and considering that the trial court had the opportunity to
observe her demeanor on the stand, we believe and so hold that no error
was committed in accepting her testimony and in rejecting the
exculpatory pretensions of the two appellants. Furthermore, a careful
examination of Irene's testimony will show not only that her version of
the tragedy is not concocted but that it contains all indicia of veracity. In
her cross-examination, even misleading questions had been put which
were unsuccessful, the witness having stuck to the truth in every detail
of the occurrence. Under these circumstances, we do not feel ourselves
justified in disturbing the findings of fact made by the trial court.
The true fact, therefore, of the case is that, while Tecson was sleeping in
his room with his back towards the door, Oanis and Galanta, on sight,
fired at him simultaneously or successively, believing him to be
Anselmo Balagtas but without having made previously any reasonable
inquiry as to his identity. And the question is whether or not they may,
upon such fact, be held responsible for the death thus caused to Tecson.
It is contended that, as appellants acted in innocent mistake of fact in the
honest performance of their official duties, both of them believing that
Tecson was Balagtas, they incur no criminal liability. Sustaining this

theory in part, the lower court held and so declared them guilty of the
crime of homicide through reckless imprudence. We are of the opinion,
however, that, under the circumstances of the case, the crime committed
by appellants is murder through specially mitigated by circumstances to
be mentioned below.
In support of the theory of non-liability by reasons of honest mistake of
fact, appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488. The
maxim is ignorantia facti excusat, but this applies only when the
mistake is committed without fault or carelessness. In the Ah Chong
case, defendant therein after having gone to bed was awakened by
someone trying to open the door. He called out twice, "who is there," but
received no answer. Fearing that the intruder was a robber, he leaped
from his bed and called out again., "If you enter the room I will kill
you." But at that precise moment, he was struck by a chair which had
been placed against the door and believing that he was then being
attacked, he seized a kitchen knife and struck and fatally wounded the
intruder who turned out to be his room-mate. A common illustration of
innocent mistake of fact is the case of a man who was marked as a
footpad at night and in a lonely road held up a friend in a spirit of
mischief, and with leveled, pistol demanded his money or life. He was
killed by his friend under the mistaken belief that the attack was real,
that the pistol leveled at his head was loaded and that his life and
property were in imminent danger at the hands of the aggressor. In these
instances, there is an innocent mistake of fact committed without any
fault or carelessness because the accused, having no time or opportunity
to make a further inquiry, and being pressed by circumstances to act
immediately, had no alternative but to take the facts as they then
appeared to him, and such facts justified his act of killing. In the instant
case, appellants, unlike the accused in the instances cited, found no
circumstances whatsoever which would press them to immediate action.
The person in the room being then asleep, appellants had ample time and
opportunity to ascertain his identity without hazard to themselves, and
could even effect a bloodless arrest if any reasonable effort to that end
had been made, as the victim was unarmed, according to Irene Requinea.
This, indeed, is the only legitimate course of action for appellants to
follow even if the victim was really Balagtas, as they were instructed not
to kill Balagtas at sight but to arrest him, and to get him dead or alive
only if resistance or aggression is offered by him.

Although an officer in making a lawful arrest is justified in using such

force as is reasonably necessary to secure and detain the offender,
overcome his resistance, prevent his escape, recapture him if he escapes,
and protect himself from bodily harm (People vs. Delima, 46 Phil, 738),
yet he is never justified in using unnecessary force or in treating him
with wanton violence, or in resorting to dangerous means when the
arrest could be effected otherwise (6 C.J.S., par. 13, p. 612). The
doctrine is restated in the new Rules of Court thus: "No unnecessary or
unreasonable force shall be used in making an arrest, and the person
arrested shall not be subject to any greater restraint than is necessary for
his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot
claim exemption from criminal liability if he uses unnecessary force or
violence in making an arrest (5 C.J., p. 753; U.S.vs. Mendoza, 2 Phil.,
109). It may be true that Anselmo Balagtas was a notorious criminal, a
life-termer, a fugitive from justice and a menace to the peace of the
community, but these facts alone constitute no justification for killing
him when in effecting his arrest, he offers no resistance or in fact no
resistance can be offered, as when he is asleep. This, in effect, is the
principle laid down, although upon different facts, in U.S. vs. Donoso (3
Phil., 234, 242).
It is, however, suggested that a notorious criminal "must be taken by
storm" without regard to his right to life which he has by such notoriety
already forfeited. We may approve of this standard of official conduct
where the criminal offers resistance or does something which places his
captors in danger of imminent attack. Otherwise we cannot see how, as
in the present case, the mere fact of notoriety can make the life of a
criminal a mere trifle in the hands of the officers of the law. Notoriety
rightly supplies a basis for redoubled official alertness and vigilance; it
never can justify precipitate action at the cost of human life. Where, as
here, the precipitate action of the appellants has cost an innocent life and
there exist no circumstances whatsoever to warrant action of such
character in the mind of a reasonably prudent man, condemnation not
condonation should be the rule; otherwise we should offer a premium
to crime in the shelter of official actuation.
The crime committed by appellants is not merely criminal negligence,
the killing being intentional and not accidental. In criminal negligence,
the injury caused to another should be unintentional, it being simply the
incident of another act performed without malice. (People vs. Sara, 55

Phil., 939). In the words of Viada, "para que se celifique un hecho de

imprudencia es preciso que no haya mediado en el malicia ni intencion
alguna de daar; existiendo esa intencion, debera calificarse el hecho del
delito que ha producido, por mas que no haya sido la intencion del
agente el causar un mal de tanta gravedad como el que se produjo."
(Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once
held by this Court, a deliberate intent to do an unlawful act is essentially
inconsistent with the idea of reckless imprudence (People vs. Nanquil,
43 Phil., 232; People vs. Bindor, 56 Phil., 16), and where such unlawful
act is wilfully done, a mistake in the identity of the intended victim
cannot be considered as reckless imprudence (People vs. Gona, 54 Phil.,
605) to support a plea of mitigated liability.

from five (5) years of prision correctional to fifteen (15) years

of reclusion temporal, with the accessories of the law, and to pay the
heirs of the deceased Serapio Tecson jointly and severally an indemnity
of P2,000, with costs.

As the deceased was killed while asleep, the crime committed is murder
with the qualifying circumstance ofalevosia. There is, however, a
mitigating circumstance of weight consisting in the incomplete
justifying circumstance defined in article 11, No. 5, of the Revised Penal
Code. According to such legal provision, a person incurs no criminal
liability when he acts in the fulfillment of a duty or in the lawful
exercise of a right or office. There are two requisites in order that the
circumstance may be taken as a justifying one: (a) that the offender
acted in the performance of a duty or in the lawful exercise of a right;
and (b) that the injury or offense committed be the necessary
consequence of the due performance of such duty or the lawful exercise
of such right or office. In the instance case, only the first requisite is
present appellants have acted in the performance of a duty. The
second requisite is wanting for the crime by them committed is not the
necessary consequence of a due performance of their duty. Their duty
was to arrest Balagtas or to get him dead or alive if resistance is offered
by him and they are overpowered. But through impatience or overanxiety or in their desire to take no chances, they have exceeded in the
fulfillment of such duty by killing the person whom they believed to be
Balagtas without any resistance from him and without making any
previous inquiry as to his identity. According to article 69 of the Revised
Penal Code, the penalty lower by one or two degrees than that prescribed
by law shall, in such case, be imposed.

Anselmo Balagtas, a life termer and notorious criminal, managed to

escape and flee form Manila to the provinces. Receiving information to
the effect that he was staying with one Irene in Cabanatuan, Nueva
Ecija, the office of the Constabulary in Manila ordered the Provincial
Inspector in Cabanatuan by telegram dispatched on December 25, 1938,
to get Balagtas "dead or alive". Among those assigned to the task of
carrying out the said order, were Antonio Z. Oanis, chief of police of
Cabanatuan, and Alberto Galanta, a Constabulary corporal, to whom the
telegram received by the Provincial Inspector and a newspaper picture of
Balagtas were shown. Oanis, Galanta and a Constabulary private, after
being told by the Provincial Inspector to gather information about
Balagtas, "to arrest him and, if overpowered, to follow the instructions
contained in the telegram," proceeded to the place where the house of
Irene was located. Upon arriving thereat, Oanis approached Brigida
Mallari, who was then gathering banana stalks in the yard, and inquired
for the room of Irene. After Mallari had pointed out the room, she was
asked by Oanis to tell where Irene's paramour, Balagtas, was, whereupon
Mallari answered that he was sleeping with Irene. Upon reaching the
room indicated, Oanis and Galanta, after the former had shouted "Stand
up, if you are Balagtas," started shooting the man who was found by
them lying down beside a woman. The man was thereby killed, but
Balagtas was still alive, for it turned out that the person shot by Oanis
and Galanta was one Serapio Tecson.

For all the foregoing, the judgment is modified and appellants are hereby
declared guilty of murder with the mitigating circumstance above
mentioned, and accordingly sentenced to an indeterminate penalty of

Consequently, Oanis and Galanta were charged with having committed

murder. The Court of First Instance of Nueva Ecija, however, convicted
them only of homicide through reckless imprudence and sentenced them

Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.

Separate Opinions
PARAS, J., dissenting:

each to suffer the indeterminate penalty of from 1 year and 6 months to 2

years and 2 months of prision correctional, to jointly and severally
indemnify the heirs of Serapio Tecson in the amount of P1,000, and to
pay the costs. Oanis and Galanta have appealed.
In accomplishing the acts with which the appellants were charged, they
undoubtedly followed the order issued by the Constabulary authorities in
Manila requiring the Provincial Inspector in Cabanatuan to get Balagtas
dead or alive, in the honest belief that Serapio Tecson was Anselmo
Balagtas. As the latter became a fugitive criminal, with revolvers in his
possession and a record that made him extremely dangerous and a public
terror, the Constabulary authorities were justified in ordering his arrest,
whether dead or alive. In view of said order and the danger faced by the
appellants in carrying it out, they cannot be said to have acted
feloniously in shooting the person honestly believed by them to be the
wanted man. Conscious of the fact that Balagtas would rather kill than
be captured, the appellants did not want to take chances and should not
be penalized for such prudence. On the contrary, they should be
commended for their bravery and courage bordering on recklessness
because, without knowing or ascertaining whether the wanted man was
in fact asleep in his room, they proceeded thereto without hesitation and
thereby exposed their lives to danger.
The Solicitor-General, however, contends that the appellants were
authorized to use their revolvers only after being overpowered by
Balagtas. In the first place, the alleged instruction by the Provincial
Inspector to that effect, was in violation of the express order given by the
Constabulary authorities in Manila and which was shown to the
appellants. In the second place, it would indeed be suicidal for the
appellants or, for that matter, any agent of the authority to have waited
until they have been overpowered before trying to put our such a
character as Balagtas. In the third place, it is immaterial whether or not
the instruction given by the Provincial Inspector was legitimate and
proper, because the facts exist that the appellants acted in conformity
with the express order of superior Constabulary authorities, the legality
or propriety of which is not herein questioned.
The theory of the prosecution has acquired some plausibility, though
quite psychological or sentimental, in view only of the fact that it was
not Balagtas who was actually killed, but an "innocent man . . . while he

was deeply asleep." Anybody's heart will be profoundly grieved by the

trade, but in time will be consoled by the realization that the life of
Serapio Tecson was not vainly sacrificed, for the incident will always
serve as a loud warning to any one desiring to follow in the footsteps of
Anselmo Balagtas that in due time the duly constituted authorities will,
upon proper order, enforce the summary forfeiture of his life.
In my opinion, therefore, the appellants are not criminally liable if the
person killed by them was in fact Anselmo Balagtas for the reason that
they did so in the fulfillment of their duty and in obedience to an order
issued by a superior for some lawful purpose (Revised Penal Code, art.
11, pars. 5 and 6). They also cannot be held criminally liable even if the
person killed by them was not Anselmo Balagtas, but Serapio Tecson,
because they did so under an honest mistake of fact not due to
negligence or bad faith. (U.S. vs. Ah Chong, 15 Phil., 488).
It is true that, under article 4 of the Revised Penal Code, criminal
liability is incurred by any person committing a felony although the
wrongful act done be different from that which he intended; but said
article is clearly inapplicable since the killing of the person who was
believed to be Balagtas was, as already stated, not wrongful or felonious.
The case of U.S. vs. Mendieta (34 Phil., 242), cited by the SolicitorGeneral, is not in point, inasmuch as the defendant therein, who intended
to injure Hilario Lauigan with whom he had a quarrel, but killed another
by mistake, would not be exempted from criminal liability if he actually
injured or killed Hilario Lauigan, there being a malicious design on his
part. The other case involved by the prosecution is U.S. vs. Donoso (3
Phil., 234). This is also not in point, as it appears that the defendants
therein killed one Pedro Almasan after he had already surrendered and
allowed himself to be bound and that the said defendants did not have
lawful instructions from superior authorities to capture Almasan dead or
alive.
The appealed judgment should therefore be reversed and the appellants,
Antonio Z. Oanis and Alberto Galanta, acquitted, with costs de oficio.

HONTIVEROS, J., dissenting:

According to the opinion of the majority, it is proper to follow the rule

that a notorious criminal "must be taken by storm without regard to his
life which he has, by his conduct, already forfeited," whenever said
criminal offers resistance or does something which places his captors in
danger of imminent attack. Precisely, the situation which confronted the
accused-appellants Antonio Z. Oanis and Alberto Galanta in the
afternoon of December 24, 1938, was very similar to this. It must be
remembered that both officers received instructions to get Balagtas
"dead or alive" and according to the attitude of not only the said
appellants but also of Capt. Monsod, constabulary provincial inspector
of Nueva Ecija, it may be assumed that said instructions gave more
emphasis to the first part; namely, to take him dead. It appears in the
record that after the shooting, and having been informed of the case,
Capt. Monsod stated that Oanis and Galanta might be decorated for what
they had done. That was when all parties concerned honestly believed
that the dead person was Balagtas himself, a dangerous criminal who
had escaped from his guards and was supposedly armed with a .45
caliber pistol Brigida Mallari, the person whom the appellants met upon
arriving at the house of Irene Requinea, supposed mistress of Balagtas,
informed them that said Balagtas was upstairs. Appellants found there
asleep a man closely resembling the wanted criminal. Oanis said: If you
are Balagtas stand up," But the supposed criminal showed his intention
to attack the appellants, a conduct easily explained by the fact that he
should have felt offended by the intrusion of persons in the room where
he was peacefully lying down with his mistress. In such predicament, it
was nothing but human on the part of the appellants to employ force and
to make use of their weapons in order to repel the imminent attack by a
person who, according to their belief, was Balagtas It was unfortunate,
however that an innocent man was actually killed. But taking into
consideration the facts of the case, it is, according to my humble
opinion, proper to apply herein the doctrine laid down in the case of
U.S. vs. Ah Chong (15 Phil., 488). In the instant case we have, as in the
case supra, an innocent mistake of fact committed without any fault or
carelessness on the part of the accused, who having no time to make a
further inquiry, had no alternative but to take the facts as they appeared
to them and act immediately.

and therefore, according to Article 69 of the Revised Penal Code, the

imposable penalty should be one which is lower by one or two degrees
than that prescribed by law. This incomplete justifying circumstance is
that defined in Article 11, No. 5 of the Revised Penal Code, in favor of
"a person who acts in the fulfillment of a duty or in the lawful exercise
of a right or office." I believe that the application of this circumstance is
not proper. Article 69 of the Revised Penal Code provides as follows:

The decision of the majority, in recognition of the special circumstances

of this case which favored the accused-appellants, arrives at the
conclusion that an incomplete justifying circumstance may be invoked,

Ni tratandose de la imbecilidad, ni de la locura, ni de la menor edad, ni

del que obra violentado por una fuerza inrresistible o impulsado por
miedo insuperable de un mal igual o mayor, o en cumplimiento de un

Art. 69. Penalty to be imposed when the crime committed is not wholly
excusable. A penalty lower by one or two degrees than that prescribed
by law shall be imposed if the deed is not wholly excusable by reason of
the lack of some of the conditions required to justify the same or to
exempt from criminal liability in the several cases mentioned in articles
11 and 12, provided that the majority of such conditions be present. The
courts shall impose the penalty in the period which may be deemed
proper, in view of the number and nature of the conditions of exemption
present or lacking.
This provision has been copied almost verbatim from Article 84 of the
old Penal Code of the Philippines, and which was also taken from
Article 87 of the Spanish Penal Code of 1870.
Judge Guillermo Guevara, one of the members of the Committee created
by Administrative Order No. 94 of the Department of Justice for the
drafting of the Revised Penal Code, in commenting on Article 69, said
that the justifying circumstances and circumstances exempting from
liability which are the subject matter of this article are the following:
self-defense, defense of relatives, defense of strangers, state of necessity
and injury caused by mere accident. Accordingly, justifying
circumstance No. 5 of Article 11 dealing with the fulfillment of a duty or
the lawful exercise of a right, calling or office, cannot be placed within
its scope.
The eminent treatiser of criminal law Mr. Groizard, in his commentary
of Article 87 of the Spanish Penal Code of 1870 which is the source of
Article 69 of our Code says:

deber, o en el ejercito legitimo de un derecho, oficio o cargo, o en virtud

de obediencia debida, ni del que incurre en alguna omision hallandose
impedido por causa legitima o insuperable, puede tener aplicacion al
articulo que comentamos. Y la razon es obvia. En ninguna de estas
execiones hay pluralidad de requisitos. La irrespondabilidad depende de
una sola condicion. Hay o no perturbacion de la razon; el autor del
hecho es o no menor de nueve aos; existe o no violencia material o
moral irresistible, etc., etc.; tal es lo que respectivamente hay que
examinar y resolver para declarar la culpabilidad o inculpabilidad. Es,
por lo tanto, imposible que acontezca lo que el texto que va al frente de
estas lineas rquiere, para que se imponga al autor del hecho la penalidad
excepcional que establece; esto es, que falten algunos requisitos de los
que la ley exige para eximir de responsabilidad, y que concurran
el mayor numero de ellos, toda vez que, en los casos referidos, la ley no
exige multiples condiciones.
It must be taken into account the fact according to Article 69 a penalty
lower by one or two degrees than that prescribed by law shall be
imposed if the deed is not wholly excusable by reason of the lack of
some of the conditions required by the law to justify the same or exempt
from criminal liability. The word "conditions" should not be confused
with the word "requisites". In dealing with justifying circumstance No. 5
Judge Guevara states: "There are two requisites in order that this
circumstance may be taken into account: (a) That the offender acted in
the performance of his duty or in the lawful exercise of a right; and (b)
That the injury or offense committed be the necessary consequence of
the performance of a duty or the lawful exercise of a right or office." It is
evident that these two requisites concur in the present case if we
consider the intimate connection between the order given to the
appellant by Capt. Monsod, the showing to them of the telegram from
Manila to get Balagtas who was with a bailarina named Irene, the
conduct of said appellants in questioning Brigida Mallari and giving a
warning to the supposed criminal when both found him with Irene, and
the statement made by Capt. Monsod after the shooting.
If appellant Oanis is entitled to a reversal of the decision of the court
below, there are more reasons in favor of the acquittal of appellant
Galanta. According to the evidence no bullet from the gun fired by this
accused ever hit Serapio Tecson. Galanta was armed in the afternoon of
December 24, 1938, with a .45 caliber revolver (Exhibit L). He so

testified and was corroborated by the unchallenged testimony of his

superior officer Sgt. Valeriano Serafica. According to this witness, since
Galanta was made a corporal of the Constabulary he was given, as part
of his equipment, revolver Exhibit L with a serial No. 37121. This gun
had been constantly used by Galanta, and, according to Sgt. Pedro
Marasigan, who accompanied said accused when he took it from his
trunk in the barracks on the night of December 24, 1938, upon order of
Captain Monsod, it was the same revolver which was given to the
witness with five .45 caliber bullets and one empty shell. Fourteen
unused bullets were also taken from Galanta by Sergeant Serafica, thus
completing his regular equipment of twenty bullets which he had on the
morning of December 24, 1938, when Sergeant Serafica made the usual
inspection of the firearms in the possession of the non-commissioned
officers and privates of the constabulary post at Cabanatuan. Galanta
stated that he had fired only one shot and missed. This testimony is
corroborated by that of a ballistic expert who testified that bullets
exhibits F and O, the first being extracted from the head of the
deceased, causing wound No. 3 of autopsy report Exhibit C and the
second found at the place of the shooting, had not been fired from
revolver Exhibit L nor from any other revolver of the constabulary
station in Cabanatuan. It was impossible for the accused Galanta to have
substituted his revolver because when Exhibit L was taken from him
nobody in the barracks doubted that the deceased was none other than
Balagtas. Moreover, Exhibit L was not out of order and therefore there
was no reason why Galanta should carry along another gun, according to
the natural course of things. On the other hand, aside from wound No. 3
as above stated, no other wound may be said to have been caused by a .
45 caliber revolver bullet. Doctor Castro's record gives the conclusion
that wound No. 2 must have been caused by a .45 caliber revolver bullet.
Doctor Castro's record gives the conclusion that wound No. 2 must have
been caused by a .45 caliber bullet, but inasmuch as the diameter of the
wound's entrance was only 8 mm., the caliber should be .32 and not .45,
because according to the medico-legal expert who testified in this case, a
bullet of a .45 caliber will produce a wound entrance with either 11 mm.
or 12 mm. diameter. All other wounds found by the surgeon who
performed the autopsy appeared to have been caused by bullets of a
lesser caliber. In consequence, it can be stated that no bullet fired by
Galanta did ever hit or kill Serapio Tecson and therefore there is no
reason why he should be declared criminally responsible for said death.

G.R. No. 24978, People v. De Fernando, 49 Phil. 75

Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
March 27, 1926
G.R.
No.
24978
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
FERNANDO DE FERNANDO, defendant-appellant.
W.
A.
Armstrong
Attorney-General Jaranilla for appellee.

for

appellant.

VILLA-REAL, J.:
This appeal has been taken by the defendant Fernando de Fernando
from the judgment of the Court of First Instance of Zamboanga, in
which he was held guilty of the crime of murder and sentenced to suffer
the penalty of twenty years cadena temporal, to indemnify the heirs of
the deceased Buenventura Paulino in the sum of P1,000 and to pay the
costs, by virtue of a complaint filed by the fiscal charging with the said
crime.
As a basis for his appeal the accused assigns the following errors as
committed by the trial court: (1) in holding that the acts committed by
the accused constituted the crime for murder; (2) in not holding that the
accused was exempt from criminal liability and in not acquitting him.
At the trial the following facts were proven beyond a reasonable doubt:
Before the day of the crime several Moro prisoners had escaped from
the Penal Colony of San Ramon, Zamboanga. The residents of the
barrio of Municahan of the municipality of Zamboanga were alarmed by
the presence of three suspicious looking persons who were prowling
around the place. The accused Fernando de Fernando who, at that time,
was a municipal policeman, when passing in front of the house of one

Remigio Delgado, was called by the latter's daughter Paciencia

Delgado, who stated that her father wished to see him. When the
policeman came up the house Remigio Delgado informed him that three
unknown and suspicious looking persons, dressed in blue, prowling
around his house. The accused remained in the said house talking with
Paciencia Delgado, both being seated on a bench near the window.
While they were thus talking, at about 7 o'clock at night, there appeared
in the dark, at about 4 meters from the stairs, a person dressed in dark
clothes, calling "Nong Miong." At the time the accused nor Paciencia
Delgado knew who was thus calling. The accused inquired what he
wanted but instead of answering he continued advancing with bolo in
hand. Upon seeing this Fernando de Fernando took out his revolver and
fired a shot in the air. As he saw that the unknown continued to ascend
the staircase he fired at him. The unknown disappeared and ran to the
house of a neighbor Leon Torres, where, after placing upon a table the
bolos that he carried, he fell on the floor and expired. Remigio Delgado,
who was in the kitchen and had recognized the voice of the unknown, on
hearing the shots ran into the parlor, took hold of the arm of the
defendant and asked him why he had fired at Buenventura Paulino.
Fernando de Fernando only said "Let me go, that is a cross eyed
person" and immediately repaired to the house of theteniente of the
barrio, Santiago Torres, from where he telephoned to the chief of police
advising him of what had happened. When the body was examined it
was found that a bullet had penetrated the base of the neck at the right,
imbedding itself in the left side under the skin.
The status of the accused on the night in question was that of an agent of
the law, to whom notice had been given of the presence of suspicious
looking persons who might be the Moro prisoners who had escaped
from the Penal Colony of San Ramon. The appearance of a man,
unknown to him, dressed in clothes similar in color to the prisoner's
uniform who was calling the owner of the house, and the silence of
Paciencia Delgado, who did not at the time recognize the man,
undoubtedly caused the accused to suspect that the unknown man was
one of the three persons that the owner of the house said were prowling
around the place. The suspicion become a reality in his mind when he
saw that the man continued ascending the stairs with a bolo in his hand,
not heeding his question as to who he was. In the midst of these
circumstances and believing undoubtedly that he was a wrongdoer he
tried to perform his duty and first fired into the air and then at the

alleged intruder. But it happened that what to him appeared to be

wrongdoer was the nephew of the owner of the house who was carrying
three bolos tied together. At that psychological moment when the forces
of far and the sense of duty were at odds, the accused was not able to
take full account of the true situation and the bundle of bolos seemed to
him to be only one bolo in the hands of a suspicious character who
intended to enter the house. There is, however, a circumstance that
should have made him suspect that the man was not only a friend but
also a relative of the owner of the house from the fact he called "Nong
Miong," which indicated that the owner of the house might be an older
relative of the one calling, or an intimate friend; and in not asking
Paciencia Delgado who was it was that was calling her father with such
familiarity, he did not use the ordinary precaution that he should have
used before taking such fatal action.
Taking into consideration the estate of mind of the accused at the time,
and the meaning that he gave to the attitude of the unknown person, in
shooting the latter he felt that he was performing his duty by defending
the owners of the house against an unexpected attack, and such act
cannot constitute the crime of murder, but only that of simple homicide.
He cannot be held guilty, however, as principal with malicious intent,
because he though at the time that he was justified in acting as he did,
and he is guilty only because he failed to exercise the ordinary diligence
which, under the circumstances, he should have by investigating
whether or not the unknown man was really what he though him to be.
In firing the shot, without first exercising reasonable diligence, he acted
with reckless negligence.
The crime committed by the caused, therefore, is homicide through
reckless negligence defined and punished in article 568, in relation with
article 404, of the Penal Code, the penalty prescribed by law arresto
mayor in its maximum degree toprision correcional in its minimum
degree.
In view of the foregoing and reversing the appealed judgment, the
accused is held guilty of the crime of homicide through reckless
negligence, and he is sentenced to suffer one year prision correcional, to
pay the amount of P500 to the heirs of the deceased as an indemnity,
with subsidiary imprisonment in case of insolvency, the costs and with

credit of one-half of the preventive imprisonment already suffered. So

ordered.
Avancea, C. J., Street, Malcom, Villamor, Ostrand, Johns and
Romualdez, JJ., concur.

big as a mans fist and hitting Cantre at the left side of his back not noticing that
Bulalacao was already able to ran away.
o Cantre stopped for a moment and held his back and Calimutan desisted from any
other act of violence

Witness Saano then brought Cantre home where he complained of backache

and also of stomach ache and was unable to eat

By night time, he felt cold then warm then he was sweating profusely and his
entire body felt numb
o Having no vehicle, they could not bring him to a doctor so his mother just continue
to wipe him with a piece of cloth and brought him some food when he asked.
o After eating a little, he vomited.
o Shortly after complaining again of his backache and stomach ache, he died.

The Post-Mortem Examination Report and Certification of Death, issued and

signed by Dr. Ulanday, stated that the cause of death of victim Cantre was cardiorespiratory arrest due to suspected food poisoning

With the help of the Lingkod Bayan-Circulo de Abogadas of the ABS-CBN

Foundation, an autopsy was done by Dr. Ronaldo B. Mendez which showed that there
was internal hemorrhage and massive accumulation of blood in his abdominal
cavity due to his lacerated spleen caused by a blunt object like a stone.

RTC issued a warrant of arrest and during arraignment Calimutan pleaded not
guilty to the crime of homicide

RTC: Essentially adopting the prosecutions account of the incident, held that
Calimutan was guilty beyond reasonable doubt of homicide with a penalty of
imprisonment from 8 years of Prision Mayor as minimum, to 12 years and 1 day of
Reclusion Temporal as maximum, and to indemnify the heirs of Philip Cantre the sum of
P50,000 as compensatory damages and the sum of P50,000 as moral damages
o NOT defense of stranger , because after the boxing Bulalacao, he was able to run
thereby the unlawful aggression by Cantre ceased
o The act of throwing a stone from behind which hit the victim at his back on the left
side was a treacherous
o criminally liable for all the direct and natural consequences of this unlawful act even
if the ultimate result had not been intended

CA: Affirmed RTC

Calimutan filed a petition for review on certiorari contending that the dissimilar
findings on the cause of death constituted reasonable doubt
ISSUE: W/N he is guilty beyond reasonable doubt of homicide
Calimutan v. People
G.R. No. 152133, February 9, 2006
Lesson: Proof beyond reasonable doubt, Defense of Stranger, Proximate Cause,
intentional felonies and culpable felonies
Laws Applicable: Art. 3, Art. 4, Par. 1
FACTS:

February 4, 1996 around 10 am: Cantre and witness Saano, together with two
other companions, had a drinking spree at a videoke bar but as they were headed
home, they crossed paths with Calimutan and Michael Bulalacao.

Cantre, 26 years old and 5 ft. 9 inches, had a grudge against Bulalacao, a 15
year-old boy of 5ft. for suspecting that he threw stones at the his house on a previous
night so he punched him

Seeking to protect Bulalacao and to stop Cantre, Calimutan picked a stone, as

HELD: NO. MODIFIED Calimutan is found GUILTY beyond reasonable doubt of

reckless imprudence resulting in homicide, under Article 365 of the Revised Penal
Code, and is accordingly sentenced to imprisonment for a minimum period of 4 months
of arresto mayor to a maximum period of two years and one day of prision correccional.
Petitioner Calimutan is further ORDERED to pay the heirs of the victim Cantre the
amount of P50,000.00 as civil indemnity for the latters death and P50,000.00 as moral
damages

Proof beyond reasonable doubt requires only a moral certainty or that degree of
proof which produces conviction in an unprejudiced mind (NOT absolute certainty and
the exclusion of all possibility of error)
o Dr. Mendezs testimony as an expert witness is evidence, and although it does not
necessarily bind the courts, it is accorded great weight and probative value
may sufficiently establish the causal relationship between the stone thrown by the
Calimutan and the lacerated spleen of the Cantre which resulted in the latters death


Proximate cause - cause, which, in natural and continuous sequence, unbroken
by any efficient intervening cause, produces the injury, and WITHOUT which the result
would NOT have occurred
o Prosecution was able to establish that the proximate cause of the death of the
Cantre was the stone thrown at him by petitioner Calimutan.

Comparing the limited autopsy conducted by Dr. Ulanday and her unconfirmed
suspicion of food poisoning of the victim Cantre, as opposed to the exhaustive autopsy
performed by Dr. Mendez and his definitive finding of a ruptured spleen as the cause of
death, then the latter, without doubt, deserves to be given credence by the courts

Article 3 of the Revised Penal Code classifies felonies according to the means by
which they are committed, in particular:
o (1) intentional felonies - existence of malicious intent
act is performed with deliberate intent (with malice)
o (2) culpable felonies - absence of malicious intent
act or omission of the offender is NOT malicious
the wrongful act results from imprudence, negligence, lack of foresight or lack of skill

Absence of intent, Calimutan guilty beyond reasonable doubt of the culpable

felony of reckless imprudence resulting in homicide under Article 365 of the Revised
Penal Code
o Reckless imprudence consists in voluntarily, but without malice, doing or failing to
do an act from which material damage results by reason of inexcusable lack of
precaution on the part of the person performing or failing to perform such act, taking into
consideration his employment or occupation, degree of intelligence, physical condition
and other circumstances regarding persons, time and place.
People v. Gonzales / G.R. No. 80762 / March 19, 1990
FACTS:Fausta Gonzales, Augusto Gonzales, Custodio Gonzales Sr., Custodio
Gonzales, Jr., Nerio Gonzales and Rogelio Lanida were all found guilty of murder for
killingLloyd Peacerrada. All of them except for Custodio Sr. withdrew their appeal.The
decision of the trial court was based on the testimony of witness Jose Huntoria.
Huntoria said that appellant was also one of the attackers of the deceased. Appellant
maintained that he was asleep at the moment.The trial court and the Court of Appeals
rejected appellants defense of alibi.
ISSUE: Whether appellant was guilty.RULING:The Supreme Court found Huntoria to be
an unreliable witness. Huntoria admittedduring cross-examination that he cannot
determine the group of people stabbing the deceased. He failed to point definitely that
appellant also did the crime.As stated in Arts. 3 and 4 of the Revised Penal Code, for
one to be criminally liable, an act should be committed. The SC found no sufficient proof
that appellant has acted.Lastly, the SC found Huntoria was an interested witness as
he was also the tenant of the deceased. His testimony was sought to ingratiate himself
with the deceaseds family.
The SC found appellants guilt not proven by reasonable doubt thus acquitting him.
People v. Silvestre / December 14, 1931 / G.R. No. L-35748
FACTS:Romana Silvestre was found guilty by the trial as accomplice to arson with
Martin Atienza as the principal.Silvestre and Atienza were illicit partners and they were
charged of adultery by Domingo Joaquin, Silvestre second husband. After pleading to
Joaquin, he dropped the charges and Atienza lived in another barangay.Silvestre still
secretly met with Atienza with the pretense of meeting her son from his first husband

Nicolas de la Cruz. On the day of the incident, Atienza burned the de la Cruz house with
Silvestre silently watching.
ISSUE: Whether Silvestre was an accomplice
RULING:An accomplice means doing nothing on the crime itself but cooperated by
executing acts before or after the crime.The Supreme Court found mere presence and
silence do not constitute cooperation. She did not encouraged Atienza to do the act.
The SC reversed the decision on Silvestre while they affirmed the decision on Atienza.
US v. AH CHONG / G.R. No. L-5272 / March 19, 1910
FACTS:Because of recent bouts of burglaries, Ah Chong kept a knife under his pillow
for protection. On the day of the incident, he also placed a chair in front of the door for
further protection. He was awakened when someone was trying to open to door. Ah
Chong asked who the person was, twice, but did not reply until the chair was struck
above his knees. In a fit of panic and confusion and believed that he was being
attacked, he grabbed his knife and stabbed the intruder who turned out was his
roommate, Pascual. He died after and Ah Chon was charged of murder
.ISSUE: Whether was guilty?
RULING:The Supreme Court decided that it was mistake of fact. Ah Chong thought that
the person behind the door was an intruder. The SC was convinced that he acted
in good faith and was defending himself. There was no malice and he only protected his
life and property
.PEOPLE v. OANIS / G.R. No. L-47722 / July 27, 1943
FACTS:Policemen, Antonio Oanis and Alberto Galanta, received information regarding
whereabouts of the criminal Anselmo Balagtas who is with Irene Requinea. Once,
on the location, Oanis and Galanta found a man with his back towards and started
shooting him. The man found to be Serapio Tecson, Requinea

s paramour.Oanis and Galanta gave the trial court contradictory testimonies which they
didnot believe and held them guilty of homicide through reckless imprudence.
ISSUE: Whether Oanis and Galanta was guilty.
RULING:The Supreme Court said that the most important fact was that Tecson was
shot with his back towards the respondents. Even though they acted in mistake of fact
and honest performance of their duty, they found respondents guilty of murder.The SC
said that both men had time not to use violent means. Tecson was not resisting or
showing signs of defense. Also, both men committed treachery making ita qualifying
circumstance to murder.Their arguments of mistake of fact and honest performance was
held as mitigating circumstances.

PEOPLE v. GUILLEN / G.R. No. L-1477 / January 18, 1950FACTS:Julio Guillen

planned to assassinate then president Manuel Roxas as he was disillusioned by the

president

s promise. He threw two grenades during Roxas

speech in Plaza Miranda which killed Simeon Valera and injured four other people
includingRoxas.The trial court sentenced Guillen to death for murder and multiple
frustrated murder.Guillen

s counsel contended that trial court erred in finding him guilty of Valera

s death, in declaring his crimes to be murder and multiple frustrated murder, and
that Art. 49 of the RPC should be ruled.ISSUE: When Guillen

s contentions were valid.RULING:The evidence presented by Guillen was enough to

prove that he did try to blow up the Roxas

meeting. Even though he did not intentionally kill and injure other people, he still
had the intention and malice of the doing the act making him responsible.The
Supreme said that Guillen committed multiple attempted murder and not frustrated as
there he did succeed in killing the others by reason of some cause or accident
which is not his own desistance.The SC also found Art 48 to rule out instead of Art.
49 as it clearly follows the first paragraph of the provision and it was ruled that
Guillen

s act was intentional.Although there were other aggravating circumstances, the SC

found it necessary as the maximum penalty of murder was death.The SC affirmed the
trial court

s decision.

G.R. No. 75256

January 26, 1989
JOHN PHILIP GUEVARRA, petitioner,
vs.
HONORABLE IGNACIO ALMODOVAR, respondent.
FACTS:
On October 29, 1984, the Petitioner who was then 11 years old was playing with best
friend Teodoro Almine Jr. and three other children in their backyard. The children were
target-shooting bottle caps placed 15 to 20 meters away with an air rifle borrowed from
a neighbour.
In the course of game, Teodoro was hit by a pellet on his left collar bone which caused
his unfortunate death.
The examining fiscal after investigation exculpated petitioner due to his age and
because the unfortunate appeared to be an accident.

Victims parents appealed to Ministry of Justice, who ordered fiscal to file a case
against petitioner for Homicide through reckless imprudence.
On October 25, 1985, the petitioner moved to quash the said information on the
following grounds:
a) That the facts charged do not constitute an offense
b) Information contains averments which if true would constitute a legal excuse or
justification
c) That the Court has no jurisdiction over the offense charged and the person of
defendant
His primary argument was that the term discernment connotes intent under the
exempting circumstance found under Article 12, Section 3 of the RPC. If this was true,
then no minor between the age of 9 to 15 may be convicted of quasi offense under
Article 265 which is criminal negligence.
On April 4, 1986, the said motion was denied with respect to the first and third
grounds relied upon decision on and part was deferred until evidence shall have been
presented during trial.
A petition for certiorari was filed.
ISSUES:
1. WHETHER AN ELEVEN (11) YEAR OLD BOY COULD BE CHARGED WITH THE
CRIME OF HOMICIDE THRU RECKLESS IMPRUDENCE, AND
2. WHETHER THE COURT HAD JURISDICTION OVER THE CASE
NOTWITHSTANDING THE FACT THAT IT DID NOT PASS THRU THE BARANGAY
LUPON.
HELD:
Yes.
Intent and discernment are two different concepts. Intent means: a determination to do
certain things; an aim; the purpose of the mind, including such knowledge as is
essential to such intent. Discernment means: the mental capacity to understand the
difference between right and wrong.
The second element of dolus is intelligence; without this power, necessary to determine
the morality of human acts to distinguish a licit from an illicit act, no crime can exist, and
because the infant 3 (has) no intelligence, the law exempts (him) from criminal
liability.
In evaluating felonies committed by means of culpa, three (3) elements are
indispensable, namely, intelligence, freedom of action, and negligence. Obviously, intent
is wanting in such felonies. However, intelligence remains as an essential element,
hence, it is necessary that a minor above nine but below fifteen years of age be
possessed with intelligence in committing a negligent act which results in a quasioffense. For him to be criminally liable, he must discern the rightness or wrongness of
the effects of his negligent act. Indeed, a minor over nine years of age but below fifteen
may be held liable for a quasi-offense under Article 365 of the RPC. A reading of the
said Article would reveal such fact as it starts off with the phrase Any person. . .
without any distinction or exception made. Ubi lex non distinquit nec nos distinguere
debemos.
Minors 9yrs to 15yrs are presumed to be without criminal capacity; but this presumption
may be rebutted if it could be proven that they were capable of appreciating the nature
and criminality of the act, that is, that (they) acted w/ discernment.
Because of this, Guevarra was not exempted.
Yes.
The petitioners contention that he was entitled to a two-degree privileged mitigating
circumstance due to his minority because of P.D. 1508. He argued that this can be
applied to his case because the penalty imposable is reduced to not higher than arresto

menor from an original arresto mayor maximum to prision correccional medium as

prescribed in Article 365 of the RPC.
The jurisdiction of a court over a criminal case is determined by the penalty imposable
under the law for the offense and not the penalty ultimately imposed.
The same principle applies in construing Section 2(3) of P.D. 1508, which states:
xxx xxx xxx
(3) Offense punishable by imprisonment exceeding 30 day , or a fine exceeding P
200.00; (emphasis supplied)
Expounding on the above provision, a member of the committee that drafted P.D. 1508
has said:
The law says punishable, not punished. One should therefore consider the penalty
provided for by law or ordinance as distinguished from the penalty actually imposed in
particular cases after considering the attendant circumstances affecting criminal liability.
5
The foregoing finds support in our jurisprudence as above cited. We therefore rule that,
in construing Section 2(3) of P.D. 1508, the penalty which the law defining the offense
attaches to the latter should be considered. Hence, any circumstance which may affect
criminal liability must not be considered.
The petitioner, in his arguments, asserts that since P.D. 1508 has not been complied
with, the trial court has no jurisdiction over the case. This erroneous perception has
been corrected long before. As intimated in the case of Royales vs. IAC, 127 SCRA
470, and categorically stated in Ebol vs. Amin, 135 SCRA 438, P.D. 1508 is not
jurisdictional.
WHEREFORE, PREMISES CONSIDERED, this petition is hereby DISMISSED for lack
of merit and the Temporary Restraining Order effective 17 September 1986 is LIFTED.
Let this case be REMANDED to the lower court for trial on the merits. No cost.