EN BANC
[G.R. No. 135981. January 15, 2004]
PEOPLE OF THE PHILIPPINES,
appellee, vs. MARIVIC GENOSA,
appellant.
DECISION
PANGANIBAN, J.:
Admitting she killed her husband,
appellant anchors her prayer for
acquittal on a novel theory -- the
battered woman syndrome (BWS),
which allegedly constitutes self-defense.
Under the proven facts, however, she is
not entitled to complete exoneration
because there was no unlawful
aggression -- no immediate and
unexpected attack on her by her
batterer-husband at the time she shot
him.
Absent unlawful aggression, there can
be no self-defense, complete or
incomplete.
But all is not lost. The severe beatings
repeatedly inflicted on appellant
constituted a form of cumulative
provocation that broke down her
psychological resistance and self-
control. This psychological paralysis she
suffered diminished her will power,
thereby entitling her to the mitigating
factor under paragraphs 9 and 10 of
Article 13 of the Revised Penal Code.
In addition, appellant should also be
credited with the extenuating
circumstance of having acted upon an
impulse so powerful as to have naturally
produced passion and obfuscation. The
acute battering she suffered that fatal
night in the hands of her batterer-
spouse, in spite of the fact that she was
eight months pregnant with their child,
overwhelmed her and put her in the
aforesaid emotional and mental state,
which overcame her reason and
impelled her to vindicate her life and her
unborn childs.
Considering the presence of these two
mitigating circumstances arising from
BWS, as well as the benefits of the
Indeterminate Sentence Law, she may
now apply for and be released from
custody on parole, because she has
already served the minimum period of
her penalty while under detention during
the pendency of this case.
The Case
For automatic review before this Court is
the September 25, 1998 Decision[1] of
the Regional Trial Court (RTC) of Ormoc
City (Branch 35) in Criminal Case No.
5016-0, finding Marivic Genosa guilty
beyond reasonable doubt of parricide.
The decretal portion of the Decision
reads:
WHEREFORE, after all the foregoing
being duly considered, the Court finds
the accused, Marivic Genosa y Isidro,
GUILTY beyond reasonable doubt of the
crime of Parricide as provided under
Article 246 of the Revised Penal Code
as restored by Sec. 5, RA No. 7659, and
after finding treachery as a generic
aggravating circumstance and none of
mitigating circumstance, hereby
sentences the accused with the penalty
of DEATH.
The Court likewise penalizes the
accused to pay the heirs of the
deceased the sum of fifty thousand
pesos (P50,000.00), Philippine currency
as indemnity and another sum of fifty
thousand pesos (P50,000.00), Philippine
currency as moral damages.[2]
The Information[3] charged appellant with
parricide as follows:
That on or about the 15th day of
November 1995, at Barangay Bilwang,
Municipality of Isabel, Province of Leyte,
Philippines and within the jurisdiction of
this Honorable Court, the above-named
accused, with intent to kill, with
treachery and evident premeditation, did
then and there wilfully, unlawfully and
feloniously attack, assault, hit and
wound one BEN GENOSA, her
legitimate husband, with the use of a
hard deadly weapon, which the accused
had provided herself for the purpose,
[causing] the following wounds, to wit:
Cadaveric spasm.
Body on the 2nd stage of decomposition.
Face, black, blownup & swollen w/
evident post-mortem lividity. Eyes
protruding from its sockets and tongue
slightly protrudes out of the mouth.
Fracture, open, depressed, circular
located at the occipital bone of the head,
resulting [in] laceration of the brain,
spontaneous rupture of the blood
vessels on the posterior surface of the
brain, laceration of the dura and
meningeal vessels producing severe
intracranial hemorrhage.
Blisters at both extrem[i]ties, anterior
chest, posterior chest, trunk w/ shedding
of the epidermis.
Abdomen distended w/ gas. Trunk
bloated.
which caused his death.[4]
With the assistance of her counsel,[5]
appellant pleaded not guilty during her
arraignment on March 3, 1997.[6] In due
course, she was tried for and convicted
of parricide.
The Facts
Version of the Prosecution
The Office of the Solicitor General
(OSG) summarizes the prosecutions
version of the facts in this wise:
Appellant and Ben Genosa were united
in marriage on November 19, 1983 in
Ormoc City. Thereafter, they lived with
the parents of Ben in their house at
Isabel, Leyte. For a time, Bens younger
brother, Alex, and his wife lived with
them too. Sometime in 1995, however,
appellant and Ben rented from Steban
Matiga a house at Barangay Bilwang,
Isabel, Leyte where they lived with their
two children, namely: John Marben and
Earl Pierre.
On November 15, 1995, Ben and Arturo
Basobas went to a cockfight after
receiving their salary. They each had
two (2) bottles of beer before heading
home. Arturo would pass Bens house
before reaching his. When they arrived
at the house of Ben, he found out that
appellant had gone to Isabel, Leyte to
look for him. Ben went inside his house,
while Arturo went to a store across it,
waiting until 9:00 in the evening for the
masiao runner to place a bet. Arturo did
not see appellant arrive but on his way
home passing the side of the Genosas
rented house, he heard her say I wont
hesitate to kill you to which Ben replied
Why kill me when I am innocent? That
was the last time Arturo saw Ben alive.
Arturo also noticed that since then, the
Genosas rented house appeared
uninhabited and was always closed.
On November 16, 1995, appellant asked
Erlinda Paderog, her close friend and
neighbor living about fifty (50) meters
from her house, to look after her pig
because she was going to Cebu for a
pregnancy check-up. Appellant likewise
asked Erlinda to sell her motorcycle to
their neighbor Ronnie Dayandayan who
unfortunately had no money to buy it.
That same day, about 12:15 in the
afternoon, Joseph Valida was waiting for
a bus going to Ormoc when he saw
appellant going out of their house with
her two kids in tow, each one carrying a
bag, locking the gate and taking her
children to the waiting area where he
was. Joseph lived about fifty (50) meters
behind the Genosas rented house.
Joseph, appellant and her children rode
the same bus to Ormoc. They had no
conversation as Joseph noticed that
appellant did not want to talk to him.
On November 18, 1995, the neighbors
of Steban Matiga told him about the foul
odor emanating from his house being
rented by Ben and appellant. Steban
went there to find out the cause of the
stench but the house was locked from
the inside. Since he did not have a
duplicate key with him, Steban
destroyed the gate padlock with a
borrowed steel saw. He was able to get
inside through the kitchen door but only
after destroying a window to reach a
hook that locked it. Alone, Steban went
inside the unlocked bedroom where the
offensive smell was coming from. There,
he saw the lifeless body of Ben lying on
his side on the bed covered with a
blanket. He was only in his briefs with
injuries at the back of his head. Seeing
this, Steban went out of the house and
sent word to the mother of Ben about his
sons misfortune. Later that day,
Iluminada Genosa, the mother of Ben,
identified the dead body as that of [her]
son.
Meanwhile, in the morning of the same
day, SPO3 Leo Acodesin, then assigned
at the police station at Isabel, Leyte,
received a report regarding the foul
smell at the Genosas rented house.
Together with SPO1 Millares, SPO1
Colon, and Dr. Refelina Cerillo, SPO3
Acodesin proceeded to the house and
went inside the bedroom where they
found the dead body of Ben lying on his
side wrapped with a bedsheet. There
was blood at the nape of Ben who only
had his briefs on. SPO3 Acodesin found
in one corner at the side of an aparador
a metal pipe about two (2) meters from
where Ben was, leaning against a wall.
The metal pipe measured three (3) feet
and six (6) inches long with a diameter
of one and half (1 1/2) inches. It had an
open end without a stop valve with a red
stain at one end. The bedroom was not
in disarray.
About 10:00 that same morning, the
cadaver of Ben, because of its stench,
had to be taken outside at the back of
the house before the postmortem
examination was conducted by Dr.
Cerillo in the presence of the police. A
municipal health officer at Isabel, Leyte
responsible for medico-legal cases, Dr.
Cerillo found that Ben had been dead for
two to three days and his body was
already decomposing. The postmortem
examination of Dr. Cerillo yielded the
findings quoted in the Information for
parricide later filed against appellant.
She concluded that the cause of Bens
death was cardiopulmonary arrest
secondary to severe intracranial
hemorrhage due to a depressed fracture
of the occipital [bone].
Appellant admitted killing Ben. She
testified that going home after work on
November 15, 1995, she got worried
that her husband who was not home yet
might have gone gambling since it was a
payday. With her cousin Ecel Arao,
appellant went to look for Ben at the
marketplace and taverns at Isabel, Leyte
but did not find him there. They found
Ben drunk upon their return at the
Genosas house. Ecel went home
despite appellants request for her to
sleep in their house.
Then, Ben purportedly nagged appellant
for following him, even challenging her
to a fight. She allegedly ignored him and
instead attended to their children who
were doing their homework. Apparently
disappointed with her reaction, Ben
switched off the light and, with the use of
a chopping knife, cut the television
antenna or wire to keep her from
watching television. According to
appellant, Ben was about to attack her
so she ran to the bedroom, but he got
hold of her hands and whirled her
around. She fell on the side of the bed
and screamed for help. Ben left. At this
point, appellant packed his clothes
because she wanted him to leave.
Seeing his packed clothes upon his
return home, Ben allegedly flew into a
rage, dragged appellant outside of the
bedroom towards a drawer holding her
by the neck, and told her You might as
well be killed so nobody would nag me.
Appellant testified that she was aware
that there was a gun inside the drawer
but since Ben did not have the key to it,
he got a three-inch long blade cutter
from his wallet. She however, smashed
the arm of Ben with a pipe, causing him
to drop the blade and his wallet.
Appellant then smashed Ben at his nape
with the pipe as he was about to pick up
the blade and his wallet. She thereafter
ran inside the bedroom.
Appellant, however, insisted that she
ended the life of her husband by
shooting him. She supposedly distorted
the drawer where the gun was and shot
Ben. He did not die on the spot, though,
but in the bedroom.[7] (Citations omitted)
Version of the Defense
Appellant relates her version of the facts
in this manner:
1. Marivic and Ben Genosa were
allegedly married on November 19,
1983. Prior to her marriage, Marivic had
graduated from San Carlos, Cebu City,
obtaining a degree of Bachelor of
Science in Business Administration, and
was working, at the time of her
husbands death, as a Secretary to the
Port Managers in Ormoc City. The
couple had three (3) children: John
Marben, Earl Pierre and Marie Bianca.
2. Marivic and Ben had known each
other since elementary school; they
were neighbors in Bilwang; they were
classmates; and they were third degree
cousins. Both sets of parents were
against their relationship, but Ben was
persistent and tried to stop other suitors
from courting her. Their closeness
developed as he was her constant
partner at fiestas.
3. After their marriage, they lived first in
the home of Bens parents, together with
Bens brother, Alex, in Isabel, Leyte. In
the first year of marriage, Marivic and
Ben lived happily. But apparently, soon
thereafter, the couple would quarrel
often and their fights would become
violent.
4. Bens brother, Alex, testified for the
prosecution that he could not remember
when Ben and Marivic married. He said
that when Ben and Marivic quarreled,
generally when Ben would come home
drunk, Marivic would inflict injuries on
him. He said that in one incident in 1993
he saw Marivic holding a kitchen knife
after Ben had shouted for help as his left
hand was covered with blood. Marivic
left the house but after a week, she
returned apparently having asked for
Bens forgiveness. In another incident in
May 22, 1994, early morning, Alex and
his father apparently rushed to Bens aid
again and saw blood from Bens
forehead and Marivic holding an empty
bottle. Ben and Marivic reconciled after
Marivic had apparently again asked for
Bens forgiveness.
Mrs. Iluminada Genosa, Marivics
mother-in-law, testified too, saying that
Ben and Marivic married in 1986 or
1985 more or less here in Fatima,
Ormoc City. She said as the marriage
went along, Marivic became already
very demanding. Mrs. Iluminada Genosa
said that after the birth of Marivics two
sons, there were three (3)
misunderstandings. The first was when
Marivic stabbed Ben with a table knife
through his left arm; the second incident
was on November 15, 1994, when
Marivic struck Ben on the forehead
using a sharp instrument until the eye
was also affected. It was wounded and
also the ear and her husband went to
Ben to help; and the third incident was in
1995 when the couple had already
transferred to the house in Bilwang and
she saw that Bens hand was plastered
as the bone cracked.
Both mother and son claimed they
brought Ben to a Pasar clinic for medical
intervention.
5. Arturo Basobas, a co-worker of Ben,
testified that on November 15, 1995
After we collected our salary, we went to
the cock-fighting place of ISCO. They
stayed there for three (3) hours, after
which they went to Uniloks and drank
beer allegedly only two (2) bottles each.
After drinking they bought barbeque and
went to the Genosa residence. Marivic
was not there. He stayed a while talking
with Ben, after which he went across the
road to wait for the runner and the usher
of the masiao game because during that
time, the hearing on masiao numbers
was rampant. I was waiting for the
ushers and runners so that I can place
my bet. On his way home at about 9:00
in the evening, he heard the Genosas
arguing. They were quarreling loudly.
Outside their house was one Fredo who
is used by Ben to feed his fighting
cocks. Basobas testimony on the root of
the quarrel, conveniently overheard by
him was Marivic saying I will never
hesitate to kill you, whilst Ben replied
Why kill me when I am innocent.
Basobas thought they were joking.
He did not hear them quarreling while he
was across the road from the Genosa
residence. Basobas admitted that he
and Ben were always at the cockpits
every Saturday and Sunday. He claims
that he once told Ben before when he
was stricken with a bottle by Marivic
Genosa that he should leave her and
that Ben would always take her back
after she would leave him so many
times.
Basobas could not remember when
Marivic had hit Ben, but it was a long
time that they had been quarreling. He
said Ben even had a wound on the right
forehead. He had known the couple for
only one (1) year.
6. Marivic testified that after the first year
of marriage, Ben became cruel to her
and was a habitual drinker. She said he
provoked her, he would slap her,
sometimes he would pin her down on
the bed, and sometimes beat her.
These incidents happened several times
and she would often run home to her
parents, but Ben would follow her and
seek her out, promising to change and
would ask for her forgiveness. She said
after she would be beaten, she would
seek medical help from Dr. Dino Caing,
Dr. Lucero and Dra. Cerillo. These
doctors would enter the injuries inflicted
upon her by Ben into their reports.
Marivic said Ben would beat her or
quarrel with her every time he was
drunk, at least three times a week.
7. In her defense, witnesses who were
not so closely related to Marivic, testified
as to the abuse and violence she
received at the hands of Ben.
7.1. Mr. Joe Barrientos, a fisherman,
who was a [neighbor] of the Genosas,
testified that on November 15, 1995, he
overheard a quarrel between Ben and
Marivic. Marivic was shouting for help
and through the open jalousies, he saw
the spouses grappling with each other.
Ben had Marivic in a choke hold. He did
not do anything, but had come
voluntarily to testify. (Please note this
was the same night as that testified to
by Arturo Busabos.[8])
7.2. Mr. Junnie Barrientos, also a
fisherman, and the brother of Mr. Joe
Barrientos, testified that he heard his
neighbor Marivic shouting on the night of
November 15, 1995. He peeped through
the window of his hut which is located
beside the Genosa house and saw the
spouses grappling with each other then
Ben Genosa was holding with his both
hands the neck of the accused, Marivic
Genosa. He said after a while, Marivic
was able to extricate he[r]self and enter
the room of the children. After that, he
went back to work as he was to go
fishing that evening. He returned at 8:00
the next morning. (Again, please note
that this was the same night as that
testified to by Arturo Basobas).
7.3. Mr. Teodoro Sarabia was a former
neighbor of the Genosas while they
were living in Isabel, Leyte. His house
was located about fifty (50) meters from
theirs. Marivic is his niece and he knew
them to be living together for 13 or 14
years. He said the couple was always
quarreling. Marivic confided in him that
Ben would pawn items and then would
use the money to gamble. One time, he
went to their house and they were
quarreling. Ben was so angry, but would
be pacified if somebody would come. He
testified that while Ben was alive he
used to gamble and when he became
drunk, he would go to our house and he
will say, Teody because that was what
he used to call me, mokimas ta, which
means lets go and look for a whore. Mr.
Sarabia further testified that Ben would
box his wife and I would see bruises and
one time she ran to me, I noticed a
wound (the witness pointed to his right
breast) as according to her a knife was
stricken to her. Mr. Sarabia also said
that once he saw Ben had been injured
too. He said he voluntarily testified only
that morning.
7.4. Miss Ecel Arano, an 18-year old
student, who is a cousin of Marivic,
testified that in the afternoon of
November 15, 1995, Marivic went to her
house and asked her help to look for
Ben. They searched in the market place,
several taverns and some other places,
but could not find him. She
accompanied Marivic home. Marivic
wanted her to sleep with her in the
Genosa house because she might be
battered by her husband. When they got
to the Genosa house at about 7:00 in
the evening, Miss Arano said that her
husband was already there and was
drunk. Miss Arano knew he was drunk
because of his staggering walking and I
can also detect his face. Marivic entered
the house and she heard them quarrel
noisily. (Again, please note that this is
the same night as that testified to by
Arturo Basobas) Miss Arano testified
that this was not the first time Marivic
had asked her to sleep in the house as
Marivic would be afraid every time her
husband would come home drunk. At
one time when she did sleep over, she
was awakened at 10:00 in the evening
when Ben arrived because the couple
were very noisy in the sala and I had
heard something was broken like a
vase. She said Marivic ran into her room
and they locked the door. When Ben
couldnt get in he got a chair and a knife
and showed us the knife through the
window grill and he scared us. She said
that Marivic shouted for help, but no one
came. On cross-examination, she said
that when she left Marivics house on
November 15, 1995, the couple were
still quarreling.
7.5. Dr. Dino Caing, a physician testified
that he and Marivic were co-employees
at PHILPHOS, Isabel, Leyte. Marivic
was his patient many times and had also
received treatment from other doctors.
Dr. Caing testified that from July 6, 1989
until November 9, 1995, there were six
(6) episodes of physical injuries inflicted
upon Marivic. These injuries were
reported in his Out-Patient Chart at the
PHILPHOS Hospital. The prosecution
admitted the qualifications of Dr. Caing
and considered him an expert witness.
xxxxxxxxx
Dr. Caings clinical history of the tension
headache and hypertention of Marivic
on twenty-three (23) separate occasions
was marked at Exhibits 2 and 2-B. The
OPD Chart of Marivic at the Philphos
Clinic which reflected all the
consultations made by Marivic and the
six (6) incidents of physical injuries
reported was marked as Exhibit 3.
On cross-examination, Dr. Caing said
that he is not a psychiatrist, he could not
say whether the injuries were directly
related to the crime committed. He said
it is only a psychiatrist who is qualified to
examine the psychological make-up of
the patient, whether she is capable of
committing a crime or not.
7.6 Mr. Panfilo Tero, the barangay
captain in the place where the Genosas
resided, testified that about two (2)
months before Ben died, Marivic went to
his office past 8:00 in the evening. She
sought his help to settle or confront the
Genosa couple who were experiencing
family troubles. He told Marivic to return
in the morning, but he did not hear from
her again and assumed that they might
have settled with each other or they
might have forgiven with each other.
xxxxxxxxx
Marivic said she did not provoke her
husband when she got home that night it
was her husband who began the
provocation. Marivic said she was
frightened that her husband would hurt
her and she wanted to make sure she
would deliver her baby safely. In fact,
Marivic had to be admitted later at the
Rizal Medical Centre as she was
suffering from eclampsia and
hypertension, and the baby was born
prematurely on December 1, 1995.
Marivic testified that during her marriage
she had tried to leave her husband at
least five (5) times, but that Ben would
always follow her and they would
reconcile. Marivic said that the reason
why Ben was violent and abusive
towards her that night was because he
was crazy about his recent girlfriend,
Lulu x x x Rubillos.
On cross-examination, Marivic insisted
she shot Ben with a gun; she said that
he died in the bedroom; that their
quarrels could be heard by anyone
passing their house; that Basobas lied in
his testimony; that she left for Manila the
next day, November 16, 1995; that she
did not bother anyone in Manila, rented
herself a room, and got herself a job as
a field researcher under the alias
Marvelous Isidro; she did not tell anyone
that she was leaving Leyte, she just
wanted to have a safe delivery of her
baby; and that she was arrested in San
Pablo, Laguna.
Answering questions from the Court,
Marivic said that she threw the gun
away; that she did not know what
happened to the pipe she used to
smash him once; that she was wounded
by Ben on her wrist with the bolo; and
that two (2) hours after she was whirled
by Ben, he kicked her ass and dragged
her towards the drawer when he saw
that she had packed his things.
9. The body of Ben Genosa was found
on November 18, 1995 after an
investigation was made of the foul odor
emitting from the Genosa residence.
This fact was testified to by all the
prosecution witnesses and some
defense witnesses during the trial.
10. Dra. Refelina Y. Cerillo, a physician,
was the Municipal Health Officer of
Isabel, Leyte at the time of the incident,
and among her responsibilities as such
was to take charge of all medico-legal
cases, such as the examination of
cadavers and the autopsy of cadavers.
Dra. Cerillo is not a forensic pathologist.
She merely took the medical board
exams and passed in 1986. She was
called by the police to go to the Genosa
residence and when she got there, she
saw some police officer and neighbor
around. She saw Ben Genosa, covered
by a blanket, lying in a semi-prone
position with his back to the door. He
was wearing only a brief.
xxxxxxxxx
Dra. Cerillo said that there is only one
injury and that is the injury involving the
skeletal area of the head which she
described as a fracture. And that based
on her examination, Ben had been dead
2 or 3 days. Dra. Cerillo did not testify as
to what caused his death.
Dra. Cerillo was not cross-examined by
defense counsel.
11. The Information, dated November
14, 1996, filed against Marivic Genosa
charged her with the crime of
PARRICIDE committed with intent to kill,
with treachery and evidence
premeditation, x x x wilfully, unlawfully
and feloniously attack, assault, hit and
wound x x x her legitimate husband, with
the use of a hard deadly weapon x x x
which caused his death.
12. Trial took place on 7 and 14 April
1997, 14 May 1997, 21 July 1997, 17,
22 and 23 September 1997, 12
November 1997, 15 and 16 December
1997, 22 May 1998, and 5 and 6 August
1998.
13. On 23 September 1998, or only fifty
(50) days from the day of the last trial
date, the Hon. Fortunito L. Madrona,
Presiding Judge, RTC-Branch 35,
Ormoc City, rendered a JUDGMENT
finding Marivic guilty beyond reasonable
doubt of the crime of parricide, and
further found treachery as an
aggravating circumstance, thus
sentencing her to the ultimate penalty of
DEATH.
14. The case was elevated to this
Honorable Court upon automatic review
and, under date of 24 January 2000,
Marivics trial lawyer, Atty. Gil Marvel P.
Tabucanon, filed a Motion to Withdraw
as counsel, attaching thereto, as a
precautionary measure, two (2) drafts of
Appellants Briefs he had prepared for
Marivic which, for reasons of her own,
were not conformed to by her.
The Honorable Court allowed the
withdrawal of Atty. Tabucanon and
permitted the entry of appearance of
undersigned counsel.
15. Without the knowledge of counsel,
Marivic Genosa wrote a letter dated 20
January 2000, to the Chief Justice,
coursing the same through Atty. Teresita
G. Dimaisip, Deputy Clerk of Court of
Chief Judicial Records Office, wherein
she submitted her Brief without counsels
to the Court.
This letter was stamp-received by the
Honorable Court on 4 February 2000.
16. In the meantime, under date of 17
February 2000, and stamp-received by
the Honorable Court on 19 February
2000, undersigned counsel filed an
URGENT OMNIBUS MOTION praying
that the Honorable Court allow the
exhumation of Ben Genosa and the re-
examination of the cause of his death;
allow the examination of Marivic Genosa
by qualified psychologists and
psychiatrists to determine her state of
mind at the time she killed her husband;
and finally, to allow a partial re-opening
of the case a quo to take the testimony
of said psychologists and psychiatrists.
Attached to the URGENT OMNIBUS
MOTION was a letter of Dr. Raquel
Fortun, then the only qualified forensic
pathologist in the country, who opined
that the description of the death wound
(as culled from the post-mortem
findings, Exhibit A) is more akin to a
gunshot wound than a beating with a
lead pipe.
17. In a RESOLUTION dated 29
September 2000, the Honorable Court
partly granted Marivics URGENT
OMNIBUS MOTION and remanded the
case to the trial court for the reception of
expert psychological and/or psychiatric
opinion on the battered woman
syndrome plea, within ninety (90) days
from notice, and, thereafter to forthwith
report to this Court the proceedings
taken, together with the copies of the
TSN and relevant documentary
evidence, if any, submitted.
18. On 15 January 2001, Dra. Natividad
A. Dayan appeared and testified before
the Hon. Fortunito L. Madrona, RTC-
Branch 35, Ormoc City.
Immediately before Dra. Dayan was
sworn, the Court a quo asked if she had
interviewed Marivic Genosa. Dra. Dayan
informed the Court that interviews were
done at the Penal Institution in 1999, but
that the clinical interviews and
psychological assessment were done at
her clinic.
Dra. Dayan testified that she has been a
clinical psychologist for twenty (20)
years with her own private clinic and
connected presently to the De La Salle
University as a professor. Before this,
she was the Head of the Psychology
Department of the Assumption College;
a member of the faculty of Psychology
at the Ateneo de Manila University and
St. Josephs College; and was the
counseling psychologist of the National
Defense College. She has an AB in
Psychology from the University of the
Philippines, a Master of Arts in Clinical
[Counseling], Psychology from the
Ateneo, and a PhD from the U.P. She
was the past president of the
Psychological Association of the
Philippines and is a member of the
American Psychological Association.
She is the secretary of the International
Council of Psychologists from about 68
countries; a member of the Forensic
Psychology Association; and a member
of the ASEAN [Counseling] Association.
She is actively involved with the
Philippine Judicial Academy, recently
lecturing on the socio-demographic and
psychological profile of families involved
in domestic violence and nullity cases.
She was with the Davide Commission
doing research about Military
Psychology. She has written a book
entitled Energy Global Psychology
(together with Drs. Allan Tan and Allan
Bernardo). The Genosa case is the first
time she has testified as an expert on
battered women as this is the first case
of that nature.
Dra. Dayan testified that for the research
she conducted, on the socio-
demographic and psychological profile
of families involved in domestic violence,
and nullity cases, she looked at about
500 cases over a period of ten (10)
years and discovered that there are lots
of variables that cause all of this marital
conflicts, from domestic violence to
infidelity, to psychiatric disorder.
Dra. Dayan described domestic violence
to comprise of a lot of incidents of
psychological abuse, verbal abuse, and
emotional abuse to physical abuse and
also sexual abuse.
xxxxxxxxx
Dra. Dayan testified that in her studies,
the battered woman usually has a very
low opinion of herself. She has a self-
defeating and self-sacrificing
characteristics. x x x they usually think
very lowly of themselves and so when
the violence would happen, they usually
think that they provoke it, that they were
the one who precipitated the violence,
they provoke their spouse to be
physically, verbally and even sexually
abusive to them. Dra. Dayan said that
usually a battered x x x comes from a
dysfunctional family or from broken
homes.
Dra. Dayan said that the batterer, just
like the battered woman, also has a very
low opinion of himself. But then emerges
to have superiority complex and it
comes out as being very arrogant, very
hostile, very aggressive and very angry.
They also had (sic) a very low tolerance
for frustrations. A lot of times they are
involved in vices like gambling, drinking
and drugs. And they become violent.
The batterer also usually comes from a
dysfunctional family which over-pampers
them and makes them feel entitled to do
anything. Also, they see often how their
parents abused each other so there is a
lot of modeling of aggression in the
family.
Dra. Dayan testified that there are a lot
of reasons why a battered woman does
not leave her husband: poverty, self-
blame and guilt that she provoked the
violence, the cycle itself which makes
her hope her husband will change, the
belief in her obligations to keep the
family intact at all costs for the sake of
the children.
xxxxxxxxx
Dra. Dayan said that abused wives react
differently to the violence: some leave
the house, or lock themselves in another
room, or sometimes try to fight back
triggering physical violence on both of
them. She said that in a normal marital
relationship, abuses also happen, but
these are not consistent, not chronic,
are not happening day in [and] day out.
In an abnormal marital relationship, the
abuse occurs day in and day out, is long
lasting and even would cause
hospitalization on the victim and even
death on the victim.
xxxxxxxxx
Dra. Dayan said that as a result of the
battery of psychological tests she
administered, it was her opinion that
Marivic fits the profile of a battered
woman because inspite of her feeling of
self-confidence which we can see at
times there are really feeling (sic) of
loss, such feelings of humiliation which
she sees herself as damaged and as a
broken person. And at the same time
she still has the imprint of all the abuses
that she had experienced in the past.
xxxxxxxxx
Dra. Dayan said Marivic thought of
herself as a loving wife and did not even
consider filing for nullity or legal
separation inspite of the abuses. It was
at the time of the tragedy that Marivic
then thought of herself as a victim.
xxxxxxxxx
19. On 9 February 2001, Dr. Alfredo
Pajarillo, a physician, who has since
passed away, appeared and testified
before RTC-Branch 35, Ormoc City.
Dr. Pajarillo was a Diplomate of the
Philippine Board of Psychiatry; a Fellow
of the Philippine Board of Psychiatry and
a Fellow of the Philippine Psychiatry
Association. He was in the practice of
psychiatry for thirty-eight (38) years.
Prior to being in private practice, he was
connected with the Veterans Memorial
Medical Centre where he gained his
training on psychiatry and neurology.
After that, he was called to active duty in
the Armed Forces of the Philippines,
assigned to the V. Luna Medical Center
for twenty six (26) years. Prior to his
retirement from government service, he
obtained the rank of Brigadier General.
He obtained his medical degree from the
University of Santo Tomas. He was also
a member of the World Association of
Military Surgeons; the Quezon City
Medical Society; the Cagayan Medical
Society; and the Philippine Association
of Military Surgeons.
He authored The Comparative Analysis
of Nervous Breakdown in the Philippine
Military Academy from the Period 1954
1978 which was presented twice in
international congresses. He also
authored The Mental Health of the
Armed Forces of the Philippines 2000,
which was likewise published
internationally and locally. He had a
medical textbook published on the use
of Prasepam on a Parke-Davis grant;
was the first to use Enanthate (siquiline),
on an E.R. Squibb grant; and he
published the use of the drug Zopiclom
in 1985-86.
Dr. Pajarillo explained that psychiatry
deals with the functional disorder of the
mind and neurology deals with the
ailment of the brain and spinal cord
enlarged. Psychology, on the other
hand, is a bachelor degree and a
doctorate degree; while one has to finish
medicine to become a specialist in
psychiatry.
Even only in his 7th year as a resident in
V. Luna Medical Centre, Dr. Pajarillo had
already encountered a suit involving
violent family relations, and testified in a
case in 1964. In the Armed Forces of the
Philippines, violent family disputes
abound, and he has seen probably ten
to twenty thousand cases. In those
days, the primordial intention of therapy
was reconciliation. As a result of his
experience with domestic violence
cases, he became a consultant of the
Battered Woman Office in Quezon City
under Atty. Nenita Deproza.
As such consultant, he had seen around
forty (40) cases of severe domestic
violence, where there is physical abuse:
such as slapping, pushing, verbal
abuse, battering and boxing a woman
even to an unconscious state such that
the woman is sometimes confined. The
affliction of Post-Traumatic Stress
Disorder depends on the vulnerability of
the victim. Dr. Pajarillo said that if the
victim is not very healthy, perhaps one
episode of violence may induce the
disorder; if the psychological stamina
and physiologic constitutional stamina of
the victim is stronger, it will take more
repetitive trauma to precipitate the post-
traumatic stress disorder and this x x x
is very dangerous.
In psychiatry, the post-traumatic stress
disorder is incorporated under the
anxiety neurosis or neurologic
anxcietism. It is produced by
overwhelming brutality, trauma.
xxxxxxxxx
Dr. Pajarillo explained that with neurotic
anxiety, the victim relives the beating or
trauma as if it were real, although she is
not actually being beaten at that time.
She thinks of nothing but the suffering.
xxxxxxxxx
A woman who suffers battery has a
tendency to become neurotic, her
emotional tone is unstable, and she is
irritable and restless. She tends to
become hard-headed and persistent.
She has higher sensitivity and her self-
world is damaged.
Dr. Pajarillo said that an abnormal family
background relates to an individuals
illness, such as the deprivation of the
continuous care and love of the parents.
As to the batterer, he normally
internalizes what is around him within
the environment. And it becomes his
own personality. He is very competitive;
he is aiming high all the time; he is so
macho; he shows his strong faade but in
it there are doubts in himself and prone
to act without thinking.
xxxxxxxxx
Dr. Pajarillo emphasized that even
though without the presence of the
precipator (sic) or the one who
administered the battering, that re-
experiencing of the trauma occurred
(sic) because the individual cannot
control it. It will just come up in her mind
or in his mind.
xxxxxxxxx
Dr. Pajarillo said that a woman suffering
post traumatic stress disorder try to
defend themselves, and primarily with
knives. Usually pointed weapons or any
weapon that is available in the
immediate surrounding or in a hospital x
x x because that abound in the
household. He said a victim resorts to
weapons when she has reached the
lowest rock bottom of her life and there
is no other recourse left on her but to act
decisively.
xxxxxxxxx
Dr. Pajarillo testified that he met Marivic
Genosa in his office in an interview he
conducted for two (2) hours and
seventeen (17) minutes. He used the
psychological evaluation and social case
studies as a help in forming his
diagnosis. He came out with a
Psychiatric Report, dated 22 January
2001.
xxxxxxxxx
On cross-examination by the private
prosecutor, Dr. Pajarillo said that at the
time she killed her husband Marivicc
mental condition was that she was re-
experiencing the trauma. He said that
we are trying to explain scientifically that
the re-experiencing of the trauma is not
controlled by Marivic. It will just come in
flashes and probably at that point in time
that things happened when the re-
experiencing of the trauma flashed in
her mind. At the time he interviewed
Marivic she was more subdued, she was
not super alert anymore x x x she is
mentally stress (sic) because of the
predicament she is involved.
xxxxxxxxx
20. No rebuttal evidence or testimony
was presented by either the private or
the public prosecutor. Thus, in accord
with the Resolution of this Honorable
Court, the records of the partially re-
opened trial a quo were elevated.[9]
Ruling of the Trial Court
Finding the proffered theory of self-
defense untenable, the RTC gave
credence to the prosecution evidence
that appellant had killed the deceased
while he was in bed sleeping. Further,
the trial court appreciated the generic
aggravating circumstance of treachery,
because Ben Genosa was supposedly
defenseless when he was killed -- lying
in bed asleep when Marivic smashed
him with a pipe at the back of his head.
The capital penalty having been
imposed, the case was elevated to this
Court for automatic review.
Supervening Circumstances
On February 19, 2000, appellant filed an
Urgent Omnibus Motion praying that this
Court allow (1) the exhumation of Ben
Genosa and the reexamination of the
cause of his death; (2) the examination
of appellant by qualified psychologists
and psychiatrists to determine her state
of mind at the time she had killed her
spouse; and (3) the inclusion of the said
experts reports in the records of the
case for purposes of the automatic
review or, in the alternative, a partial
reopening of the case for the lower court
to admit the experts testimonies.
On September 29, 2000, this Court
issued a Resolution granting in part
appellants Motion, remanding the case
to the trial court for the reception of
expert psychological and/or psychiatric
opinion on the battered woman
syndrome plea; and requiring the lower
court to report thereafter to this Court
the proceedings taken as well as to
submit copies of the TSN and additional
evidence, if any.
Acting on the Courts Resolution, the trial
judge authorized the examination of
Marivic by two clinical psychologists,
Drs. Natividad Dayan[10] and Alfredo
Pajarillo,[11] supposedly experts on
domestic violence. Their testimonies,
along with their documentary evidence,
were then presented to and admitted by
the lower court before finally being
submitted to this Court to form part of
the records of the case.[12]
The Issues
Appellant assigns the following alleged
errors of the trial court for this Courts
consideration:
1. The trial court gravely erred in
promulgating an obviously hasty
decision without reflecting on the
evidence adduced as to self-defense.
2. The trial court gravely erred in finding
as a fact that Ben and Marivic Genosa
were legally married and that she was
therefore liable for parricide.
3. The trial court gravely erred finding
the cause of death to be by beating with
a pipe.
4. The trial court gravely erred in
ignoring and disregarding evidence
adduced from impartial and unbiased
witnesses that Ben Genosa was a
drunk, a gambler, a womanizer and wife-
beater; and further gravely erred in
concluding that Ben Genosa was a
battered husband.
5. The trial court gravely erred in not
requiring testimony from the children of
Marivic Genosa.
6. The trial court gravely erred in
concluding that Marivics flight to Manila
and her subsequent apologies were
indicia of guilt, instead of a clear attempt
to save the life of her unborn child.
7. The trial court gravely erred in
concluding that there was an
aggravating circumstance of treachery.
8. The trial court gravely erred in
refusing to re-evaluate the traditional
elements in determining the existence of
self-defense and defense of foetus in
this case, thereby erroneously
convicting Marivic Genosa of the crime
of parricide and condemning her to the
ultimate penalty of death.[13]
In the main, the following are the
essential legal issues: (1) whether
appellant acted in self-defense and in
defense of her fetus; and (2) whether
treachery attended the killing of Ben
Genosa.
The Courts Ruling
The appeal is partly meritorious.
Collateral Factual Issues
The first six assigned errors raised by
appellant are factual in nature, if not
collateral to the resolution of the
principal issues. As consistently held by
this Court, the findings of the trial court
on the credibility of witnesses and their
testimonies are entitled to a high degree
of respect and will not be disturbed on
appeal in the absence of any showing
that the trial judge gravely abused his
discretion or overlooked, misunderstood
or misapplied material facts or
circumstances of weight and substance
that could affect the outcome of the
case.[14]
In appellants first six assigned items, we
find no grave abuse of discretion,
reversible error or misappreciation of
material facts that would reverse or
modify the trial courts disposition of the
case. In any event, we will now briefly
dispose of these alleged errors of the
trial court.
First, we do not agree that the
lower court promulgated an obviously
hasty decision without reflecting on the
evidence adduced as to self-defense.
We note that in his 17-page Decision,
Judge Fortunito L. Madrona summarized
the testimonies of both the prosecution
and the defense witnesses and -- on the
basis of those and of the documentary
evidence on record -- made his
evaluation, findings and conclusions. He
wrote a 3-page discourse assessing the
testimony and the self-defense theory of
the accused. While she, or even this
Court, may not agree with the trial
judges conclusions, we cannot
peremptorily conclude, absent
substantial evidence, that he failed to
reflect on the evidence presented.
Neither do we find the appealed
Decision to have been made in an
obviously hasty manner. The Information
had been filed with the lower court on
November 14, 1996. Thereafter, trial
began and at least 13 hearings were
held for over a year. It took the trial
judge about two months from the
conclusion of trial to promulgate his
judgment. That he conducted the trial
and resolved the case with dispatch
should not be taken against him, much
less used to condemn him for being
unduly hasty. If at all, the dispatch with
which he handled the case should be
lauded. In any case, we find his actions
in substantial compliance with his
constitutional obligation.[15]
Second, the lower court did not err
in finding as a fact that Ben Genosa and
appellant had been legally married,
despite the non-presentation of their
marriage contract. In People v.
Malabago,[16] this Court held:
The key element in parricide is the
relationship of the offender with the
victim. In the case of parricide of a
spouse, the best proof of the
relationship between the accused and
the deceased is the marriage certificate.
In the absence of a marriage certificate,
however, oral evidence of the fact of
marriage may be considered by the trial
court if such proof is not objected to.
Two of the prosecution witnesses --
namely, the mother and the brother of
appellants deceased spouse -- attested
in court that Ben had been married to
Marivic.[17] The defense raised no
objection to these testimonies.
Moreover, during her direct examination,
appellant herself made a judicial
admission of her marriage to Ben.[18]
Axiomatic is the rule that a judicial
admission is conclusive upon the party
making it, except only when there is a
showing that (1) the admission was
made through a palpable mistake, or (2)
no admission was in fact made.[19] Other
than merely attacking the non-
presentation of the marriage contract,
the defense offered no proof that the
admission made by appellant in court as
to the fact of her marriage to the
deceased was made through a palpable
mistake.
Third, under the circumstances of
this case, the specific or direct cause of
Bens death -- whether by a gunshot or
by beating with a pipe -- has no legal
consequence. As the Court elucidated in
its September 29, 2000 Resolution,
[c]onsidering that the appellant has
admitted the fact of killing her husband
and the acts of hitting his nape with a
metal pipe and of shooting him at the
back of his head, the Court believes that
exhumation is unnecessary, if not
immaterial, to determine which of said
acts actually caused the victims death.
Determining which of these admitted
acts caused the death is not dispositive
of the guilt or defense of appellant.
Fourth, we cannot fault the trial court for
not fully appreciating evidence that Ben
was a drunk, gambler, womanizer and
wife-beater. Until this case came to us
for automatic review, appellant had not
raised the novel defense of battered
woman syndrome, for which such
evidence may have been relevant. Her
theory of self-defense was then the
crucial issue before the trial court. As will
be discussed shortly, the legal requisites
of self-defense under prevailing
jurisprudence ostensibly appear
inconsistent with the surrounding facts
that led to the death of the victim.
Hence, his personal character,
especially his past behavior, did not
constitute vital evidence at the time.
Fifth, the trial court surely
committed no error in not requiring
testimony from appellants children. As
correctly elucidated by the solicitor
general, all criminal actions are
prosecuted under the direction and
control of the public prosecutor, in whom
lies the discretion to determine which
witnesses and evidence are necessary
to present.[20] As the former further
points out, neither the trial court nor the
prosecution prevented appellant from
presenting her children as witnesses.
Thus, she cannot now fault the lower
court for not requiring them to testify.
Finally, merely collateral or
corroborative is the matter of whether
the flight of Marivic to Manila and her
subsequent apologies to her brother-in-
law are indicia of her guilt or are
attempts to save the life of her unborn
child. Any reversible error as to the trial
courts appreciation of these
circumstances has little bearing on the
final resolution of the case.
First Legal Issue:
Self-Defense and Defense of a Fetus
Appellant admits killing Ben Genosa but,
to avoid criminal liability, invokes self-
defense and/or defense of her unborn
child. When the accused admits killing
the victim, it is incumbent upon her to
prove any claimed justifying
circumstance by clear and convincing
evidence.[21] Well-settled is the rule that
in criminal cases, self-defense (and
similarly, defense of a stranger or third
person) shifts the burden of proof from
the prosecution to the defense.[22]
The Battered Woman Syndrome
In claiming self-defense, appellant
raises the novel theory of the battered
woman syndrome. While new in
Philippine jurisprudence, the concept
has been recognized in foreign
jurisdictions as a form of self-defense or,
at the least, incomplete self-defense.[23]
By appreciating evidence that a victim or
defendant is afflicted with the syndrome,
foreign courts convey their
understanding of the justifiably fearful
state of mind of a person who has been
cyclically abused and controlled over a
period of time.[24]
A battered woman has been defined as
a woman who is repeatedly subjected to
any forceful physical or psychological
behavior by a man in order to coerce her
to do something he wants her to do
without concern for her rights. Battered
women include wives or women in any
form of intimate relationship with men.
Furthermore, in order to be classified as
a battered woman, the couple must go
through the battering cycle at least
twice. Any woman may find herself in an
abusive relationship with a man once. If
it occurs a second time, and she
remains in the situation, she is defined
as a battered woman.[25]
Battered women exhibit common
personality traits, such as low self-
esteem, traditional beliefs about the
home, the family and the female sex
role; emotional dependence upon the
dominant male; the tendency to accept
responsibility for the batterers actions;
and false hopes that the relationship will
improve.[26]
More graphically, the battered woman
syndrome is characterized by the so-
called cycle of violence,[27] which has
three phases: (1) the tension-building
phase; (2) the acute battering incident;
and (3) the tranquil, loving (or, at least,
nonviolent) phase.[28]
During the tension-building phase,
minor battering occurs -- it could be
verbal or slight physical abuse or
another form of hostile behavior. The
woman usually tries to pacify the
batterer through a show of kind,
nurturing behavior; or by simply staying
out of his way. What actually happens is
that she allows herself to be abused in
ways that, to her, are comparatively
minor. All she wants is to prevent the
escalation of the violence exhibited by
the batterer. This wish, however, proves
to be double-edged, because her
placatory and passive behavior
legitimizes his belief that he has the right
to abuse her in the first place.
However, the techniques adopted by the
woman in her effort to placate him are
not usually successful, and the verbal
and/or physical abuse worsens. Each
partner senses the imminent loss of
control and the growing tension and
despair. Exhausted from the persistent
stress, the battered woman soon
withdraws emotionally. But the more she
becomes emotionally unavailable, the
more the batterer becomes angry,
oppressive and abusive. Often, at some
unpredictable point, the violence spirals
out of control and leads to an acute
battering incident.[29]
The acute battering incident is said to
be characterized by brutality,
destructiveness and, sometimes, death.
The battered woman deems this incident
as unpredictable, yet also inevitable.
During this phase, she has no control;
only the batterer may put an end to the
violence. Its nature can be as
unpredictable as the time of its
explosion, and so are his reasons for
ending it. The battered woman usually
realizes that she cannot reason with
him, and that resistance would only
exacerbate her condition.
At this stage, she has a sense of
detachment from the attack and the
terrible pain, although she may later
clearly remember every detail. Her
apparent passivity in the face of acute
violence may be rationalized thus: the
batterer is almost always much stronger
physically, and she knows from her past
painful experience that it is futile to fight
back. Acute battering incidents are often
very savage and out of control, such that
innocent bystanders or intervenors are
likely to get hurt.[30]
The final phase of the cycle of violence
begins when the acute battering incident
ends. During this tranquil period, the
couple experience profound relief. On
the one hand, the batterer may show a
tender and nurturing behavior towards
his partner. He knows that he has been
viciously cruel and tries to make up for
it, begging for her forgiveness and
promising never to beat her again. On
the other hand, the battered woman also
tries to convince herself that the battery
will never happen again; that her partner
will change for the better; and that this
good, gentle and caring man is the real
person whom she loves.
A battered woman usually believes that
she is the sole anchor of the emotional
stability of the batterer. Sensing his
isolation and despair, she feels
responsible for his well-being. The truth,
though, is that the chances of his
reforming, or seeking or receiving
professional help, are very slim,
especially if she remains with him.
Generally, only after she leaves him
does he seek professional help as a way
of getting her back. Yet, it is in this
phase of remorseful reconciliation that
she is most thoroughly tormented
psychologically.
The illusion of absolute interdependency
is well-entrenched in a battered womans
psyche. In this phase, she and her
batterer are indeed emotionally
dependent on each other -- she for his
nurturant behavior, he for her
forgiveness. Underneath this miserable
cycle of tension, violence and
forgiveness, each partner may believe
that it is better to die than to be
separated. Neither one may really feel
independent, capable of functioning
without the other.[31]
History of Abuse
in the Present Case
To show the history of violence inflicted
upon appellant, the defense presented
several witnesses. She herself
described her heart-rending experience
as follows:
ATTY. TABUCANON
Q How did you describe your marriage
with Ben Genosa?
A In the first year, I lived with him happily
but in the subsequent year he was cruel
to me and a behavior of habitual drinker.
Q You said that in the subsequent year
of your marriage, your husband was
abusive to you and cruel. In what way
was this abusive and cruelty manifested
to you?
A He always provoke me in everything,
he always slap me and sometimes he
pinned me down on the bed and
sometimes beat me.
Q How many times did this happen?
A Several times already.
Q What did you do when these things
happen to you?
A I went away to my mother and I ran to
my father and we separate each other.
Q What was the action of Ben Genosa
towards you leaving home?
A He is following me, after that he
sought after me.
Q What will happen when he follow you?
A He said he changed, he asked for
forgiveness and I was convinced and
after that I go to him and he said sorry.
Q During those times that you were the
recipient of such cruelty and abusive
behavior by your husband, were you
able to see a doctor?
A Yes, sir.
Q Who are these doctors?
A The company physician, Dr. Dino
Caing, Dr. Lucero and Dra. Cerillo.
xxxxxxxxx
Q You said that you saw a doctor in
relation to your injuries?
A Yes, sir.
Q Who inflicted these injuries?
A Of course my husband.
Q You mean Ben Genosa?
A Yes, sir.
xxxxxxxxx
[Court] /to the witness
Q How frequent was the alleged cruelty
that you said?
A Everytime he got drunk.
Q No, from the time that you said the
cruelty or the infliction of injury inflicted
on your occurred, after your marriage,
from that time on, how frequent was the
occurrence?
A Everytime he got drunk.
Q Is it daily, weekly, monthly or how
many times in a month or in a week?
A Three times a week.
Q Do you mean three times a week he
would beat you?
A Not necessarily that he would beat me
but sometimes he will just quarrel me. [32]
Referring to his Out-Patient Chart[33] on
Marivic Genosa at the Philphos Hospital,
Dr. Dino D. Caing bolstered her
foregoing testimony on chronic battery in
this manner:
Q So, do you have a summary of those
six (6) incidents which are found in the
chart of your clinic?
A Yes, sir.
Q Who prepared the list of six (6)
incidents, Doctor?
A I did.
Q Will you please read the physical
findings together with the dates for the
record.
A 1. May 12, 1990 - physical findings are
as follows: Hematoma (R) lower eyelid
and redness of eye. Attending physician:
Dr. Lucero;
2. March 10, 1992 - Contusion-
Hematoma (L) lower arbital area, pain
and contusion (R) breast. Attending
physician: Dr. Canora;
3. March 26, 1993 - Abrasion, Furuncle
(L) Axilla;
4. August 1, 1994 - Pain, mastitis (L)
breast, 2o to trauma. Attending
physician: Dr. Caing;
5. April 17, 1995 - Trauma, tenderness
(R) Shoulder. Attending physician: Dr.
Canora; and
6. June 5, 1995 - Swelling Abrasion (L)
leg, multiple contusion Pregnancy.
Attending physician: Dr. Canora.
Q Among the findings, there were two
(2) incidents wherein you were the
attending physician, is that correct?
A Yes, sir.
Q Did you actually physical examine the
accused?
A Yes, sir.
Q Now, going to your finding no. 3
where you were the one who attended
the patient. What do you mean by
abrasion furuncle left axilla?
A Abrasion is a skin wound usually when
it comes in contact with something
rough substance if force is applied.
Q What is meant by furuncle axilla?
A It is secondary of the light infection
over the abrasion.
Q What is meant by pain mastitis
secondary to trauma?
A So, in this 4th episode of physical
injuries there is an inflammation of left
breast. So, [pain] meaning there is
tenderness. When your breast is
traumatized, there is tenderness pain.
Q So, these are objective physical
injuries. Doctor?
xxxxxxxxx
Q Were you able to talk with the patient?
A Yes, sir.
Q What did she tell you?
A As a doctor-patient relationship, we
need to know the cause of these
injuries. And she told me that it was
done to her by her husband.
Q You mean, Ben Genosa?
A Yes, sir.
xxxxxxxxx
ATTY. TABUCANON:
Q By the way Doctor, were you able to
physical examine the accused sometime
in the month of November, 1995 when
this incident happened?
A As per record, yes.
Q What was the date?
A It was on November 6, 1995.
Q So, did you actually see the accused
physically?
A Yes, sir.
Q On November 6, 1995, will you please
tell this Honorable Court, was the patient
pregnant?
A Yes, sir.
Q Being a doctor, can you more engage
at what stage of pregnancy was she?
A Eight (8) months pregnant.
Q So in other words, it was an advance
stage of pregnancy?
A Yes, sir.
Q What was your November 6, 1995
examination, was it an examination
about her pregnancy or for some other
findings?
A No, she was admitted for hypertension
headache which complicates her
pregnancy.
Q When you said admitted, meaning
she was confined?
A Yes, sir.
Q For how many days?
A One day.
Q Where?
A At PHILPHOS Hospital.
xxxxxxxxx
Q Lets go back to the clinical history of
Marivic Genosa. You said that you were
able to examine her personally on
November 6, 1995 and she was 8
months pregnant.
What is this all about?
A Because she has this problem of
tension headache secondary to
hypertension and I think I have a record
here, also the same period from 1989 to
1995, she had a consultation for twenty-
three (23) times.
Q For what?
A Tension headache.
Q Can we say that specially during the
latter consultation, that the patient had
hypertension?
A The patient definitely had
hypertension. It was refractory to our
treatment. She does not response when
the medication was given to her,
because tension headache is more or
less stress related and emotional in
nature.
Q What did you deduce of tension
headache when you said is emotional in
nature?
A From what I deduced as part of our
physical examination of the patient is the
family history in line of giving the root
cause of what is causing this disease.
So, from the moment you ask to the
patient all comes from the domestic
problem.
Q You mean problem in her household?
A Probably.
Q Can family trouble cause elevation of
blood pressure, Doctor?
A Yes, if it is emotionally related and
stressful it can cause increases in
hypertension which is unfortunately
does not response to the medication.
Q In November 6, 1995, the date of the
incident, did you take the blood pressure
of the accused?
A On November 6, 1995 consultation,
the blood pressure was 180/120.
Q Is this considered hypertension?
A Yes, sir, severe.
Q Considering that she was 8 months
pregnant, you mean this is dangerous
level of blood pressure?
A It was dangerous to the child or to the
fetus. [34]
Another defense witness, Teodoro
Sarabia, a former neighbor of the
Genosas in Isabel, Leyte, testified that
he had seen the couple quarreling
several times; and that on some
occasions Marivic would run to him with
bruises, confiding that the injuries were
inflicted upon her by Ben.[35]
Ecel Arano also testified[36] that for a
number of times she had been asked by
Marivic to sleep at the Genosa house,
because the latter feared that Ben would
come home drunk and hurt her. On one
occasion that Ecel did sleep over, she
was awakened about ten oclock at night,
because the couple were very noisy and
I heard something was broken like a
vase. Then Marivic came running into
Ecels room and locked the door. Ben
showed up by the window grill atop a
chair, scaring them with a knife.
On the afternoon of November 15, 1995,
Marivic again asked her help -- this time
to find Ben -- but they were unable to.
They returned to the Genosa home,
where they found him already drunk.
Again afraid that he might hurt her,
Marivic asked her to sleep at their
house. Seeing his state of drunkenness,
Ecel hesitated; and when she heard the
couple start arguing, she decided to
leave.
On that same night that culminated in
the death of Ben Genosa, at least three
other witnesses saw or heard the couple
quarreling.[37] Marivic relates in detail the
following backdrop of the fateful night
when life was snuffed out of him,
showing in the process a vivid picture of
his cruelty towards her:
ATTY. TABUCANON:
Q Please tell this Court, can you recall
the incident in November 15, 1995 in the
evening?
A Whole morning and in the afternoon, I
was in the office working then after
office hours, I boarded the service bus
and went to Bilwang. When I reached
Bilwang, I immediately asked my son,
where was his father, then my second
child said, he was not home yet. I was
worried because that was payday, I was
anticipating that he was gambling. So
while waiting for him, my eldest son
arrived from school, I prepared dinner
for my children.
Q This is evening of November 15,
1995?
A Yes, sir.
Q What time did Ben Genosa arrive?
A When he arrived, I was not there, I
was in Isabel looking for him.
Q So when he arrived you were in Isabel
looking for him?
A Yes, sir.
Q Did you come back to your house?
A Yes, sir.
Q By the way, where was your conjugal
residence situated this time?
A Bilwang.
Q Is this your house or you are renting?
A Renting.
Q What time were you able to come
back in your residence at Bilwang?
A I went back around almost 8:00
oclock.
Q What happened when you arrived in
your residence?
A When I arrived home with my cousin
Ecel whom I requested to sleep with me
at that time because I had fears that he
was again drunk and I was worried that
he would again beat me so I requested
my cousin to sleep with me, but she
resisted because she had fears that the
same thing will happen again last year.
Q Who was this cousin of yours who you
requested to sleep with you?
A Ecel Arao, the one who testified.
Q Did Ecel sleep with you in your house
on that evening?
A No, because she expressed fears, she
said her father would not allow her
because of Ben.
Q During this period November 15,
1995, were you pregnant?
A Yes, 8 months.
Q How advance was your pregnancy?
A Eight (8) months.
Q Was the baby subsequently born?
A Yes, sir.
Q Whats the name of the baby you were
carrying at that time?
A Marie Bianca.
Q What time were you able to meet
personally your husband?
A Yes, sir.
Q What time?
A When I arrived home, he was there
already in his usual behavior.
Q Will you tell this Court what was his
disposition?
A He was drunk again, he was yelling in
his usual unruly behavior.
Q What was he yelling all about?
A His usual attitude when he got drunk.
Q You said that when you arrived, he
was drunk and yelling at you? What else
did he do if any?
A He is nagging at me for following him
and he dared me to quarrel him.
Q What was the cause of his nagging or
quarreling at you if you know?
A He was angry at me because I was
following x x x him, looking for him. I
was just worried he might be overly
drunk and he would beat me again.
Q You said that he was yelling at you,
what else, did he do to you if any?
A He was nagging at me at that time and
I just ignore him because I want to avoid
trouble for fear that he will beat me
again. Perhaps he was disappointed
because I just ignore him of his
provocation and he switch off the light
and I said to him, why did you switch off
the light when the children were there.
At that time I was also attending to my
children who were doing their
assignments. He was angry with me for
not answering his challenge, so he went
to the kitchen and [got] a bolo and cut
the antenna wire to stop me from
watching television.
Q What did he do with the bolo?
A He cut the antenna wire to keep me
from watching T.V.
Q What else happened after he cut the
wire?
A He switch off the light and the children
were shouting because they were
scared and he was already holding the
bolo.
Q How do you described this bolo?
A 1 1/2 feet.
Q What was the bolo used for usually?
A For chopping meat.
Q You said the children were scared,
what else happened as Ben was
carrying that bolo?
A He was about to attack me so I run to
the room.
Q What do you mean that he was about
to attack you?
A When I attempt to run he held my
hands and he whirled me and I fell to the
bedside.
Q So when he whirled you, what
happened to you?
A I screamed for help and then he left.
Q You said earlier that he whirled you
and you fell on the bedside?
A Yes, sir.
Q You screamed for help and he left, do
you know where he was going?
A Outside perhaps to drink more.
Q When he left what did you do in that
particular time?
A I packed all his clothes.
Q What was your reason in packing his
clothes?
A I wanted him to leave us.
Q During this time, where were your
children, what were their reactions?
A After a couple of hours, he went back
again and he got angry with me for
packing his clothes, then he dragged me
again of the bedroom holding my neck.
Q You said that when Ben came back to
your house, he dragged you? How did
he drag you?
COURT INTERPRETER:
The witness demonstrated to the Court
by using her right hand flexed forcibly in
her front neck)
A And he dragged me towards the door
backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted
to get something and then he kept on
shouting at me that you might as well be
killed so there will be nobody to nag me.
Q So you said that he dragged you
towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER:
(At this juncture the witness started
crying).
ATTY. TABUCANON:
Q Were you actually brought to the
drawer?
A Yes, sir.
Q What happened when you were
brought to that drawer?
A He dragged me towards the drawer
and he was about to open the drawer
but he could not open it because he did
not have the key then he pulled his
wallet which contained a blade about 3
inches long and I was aware that he was
going to kill me and I smashed his arm
and then the wallet and the blade fell.
The one he used to open the drawer I
saw, it was a pipe about that long, and
when he was about to pick-up the wallet
and the blade, I smashed him then I ran
to the other room, and on that very
moment everything on my mind was to
pity on myself, then the feeling I had on
that very moment was the same when I
was admitted in PHILPHOS Clinic, I was
about to vomit.
COURT INTERPRETER:
(The witness at this juncture is crying
intensely).
xxxxxxxxx
ATTY. TABUCANON:
Q Talking of drawer, is this drawer
outside your room?
A Outside.
Q In what part of the house?
A Dining.
Q Where were the children during that
time?
A My children were already asleep.
Q You mean they were inside the room?
A Yes, sir.
Q You said that he dropped the blade,
for the record will you please describe
this blade about 3 inches long, how
does it look like?
A Three (3) inches long and 1/2 inch
wide.
Q Is it a flexible blade?
A Its a cutter.
Q How do you describe the blade, is it
sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used
when he intimidate me. [38]
In addition, Dra. Natividad Dayan was
called by the RTC to testify as an expert
witness to assist it in understanding the
psyche of a battered person. She had
met with Marivic Genosa for five
sessions totaling about seventeen
hours. Based on their talks, the former
briefly related the latters ordeal to the
court a quo as follows:
Q: What can you say, that you found
Marivic as a battered wife? Could you in
laymans term describe to this Court
what her life was like as said to you?
A: What I remember happened then was
it was more than ten years, that she was
suffering emotional anguish. There were
a lot of instances of abuses, to
emotional abuse, to verbal abuse and to
physical abuse. The husband had a very
meager income, she was the one who
was practically the bread earner of the
family. The husband was involved in a
lot of vices, going out with barkadas,
drinking, even womanizing being
involved in cockfight and going home
very angry and which will trigger a lot of
physical abuse. She also had the
experience a lot of taunting from the
husband for the reason that the husband
even accused her of infidelity, the
husband was saying that the child she
was carrying was not his own. So she
was very angry, she was at the same
time very depressed because she was
also aware, almost like living in
purgatory or even hell when it was
happening day in and day out. [39]
In cross-examining Dra. Dayan, the
public prosecutor not merely elicited, but
wittingly or unwittingly put forward,
additional supporting evidence as shown
below:
Q In your first encounter with the
appellant in this case in 1999, where
you talked to her about three hours,
what was the most relevant information
did you gather?
A The most relevant information was the
tragedy that happened. The most
important information were escalating
abuses that she had experienced during
her marital life.
Q Before you met her in 1999 for three
hours, we presume that you already
knew of the facts of the case or at least
you have substantial knowledge of the
facts of the case?
A I believe I had an idea of the case, but
I do not know whether I can consider
them as substantial.
xxxxxxxxx
Q Did you gather an information from
Marivic that on the side of her husband
they were fond of battering their wives?
A I also heard that from her?
Q You heard that from her?
A Yes, sir.
Q Did you ask for a complete example
who are the relatives of her husband
that were fond of battering their wives?
A What I remember that there were
brothers of her husband who are also
battering their wives.
Q Did she not inform you that there was
an instance that she stayed in a hotel in
Ormoc where her husband followed her
and battered [her] several times in that
room?
A She told me about that.
Q Did she inform you in what hotel in
Ormoc?
A Sir, I could not remember but I was
told that she was battered in that room.
Q Several times in that room?
A Yes, sir. What I remember was that
there is no problem about being
battered, it really happened.
Q Being an expert witness, our
jurisprudence is not complete on saying
this matter. I think that is the first time
that we have this in the Philippines, what
is your opinion?
A Sir, my opinion is, she is really a
battered wife and in this kind happened,
it was really a self-defense. I also
believe that there had been provocation
and I also believe that she became a
disordered person. She had to suffer
anxiety reaction because of all the
battering that happened and so she
became an abnormal person who had
lost shes not during the time and that is
why it happened because of all the
physical battering, emotional battering,
all the psychological abuses that she
had experienced from her husband.
Q I do believe that she is a battered
wife. Was she extremely battered?
A Sir, it is an extreme form of battering.
Yes.[40]
Parenthetically, the credibility of
appellant was demonstrated as follows:
Q And you also said that you
administered [the] objective personality
test, what x x x [is this] all about?
A The objective personality test is the
Millon Clinical Multiaxial Inventory. The
purpose of that test is to find out about
the lying prone[ne]ss of the person.
Q What do you mean by that?
A Meaning, am I dealing with a client
who is telling me the truth, or is she
someone who can exaggerate or x x x
[will] tell a lie[?]
Q And what did you discover on the
basis of this objective personality test?
A She was a person who passed the
honesty test. Meaning she is a person
that I can trust. That the data that Im
gathering from her are the truth.[41]
The other expert witness presented by
the defense, Dr. Alfredo Pajarillo,
testified on his Psychiatric Report,[42]
which was based on his interview and
examination of Marivic Genosa. The
Report said that during the first three
years of her marriage to Ben, everything
looked good -- the atmosphere was fine,
normal and happy -- until Ben started to
be attracted to other girls and was also
enticed in[to] gambling[,] especially
cockfighting. x x x. At the same time Ben
was often joining his barkada in drinking
sprees.
The drinking sprees of Ben greatly
changed the attitude he showed toward
his family, particularly to his wife. The
Report continued: At first, it was verbal
and emotional abuses but as time
passed, he became physically abusive.
Marivic claimed that the viciousness of
her husband was progressive every time
he got drunk. It was a painful ordeal
Marivic had to anticipate whenever she
suspected that her husband went for a
drinking [spree]. They had been married
for twelve years[;] and practically more
than eight years, she was battered and
maltreated relentlessly and mercilessly
by her husband whenever he was drunk.
Marivic sought the help of her mother-in-
law, but her efforts were in vain. Further
quoting from the Report, [s]he also
sought the advice and help of close
relatives and well-meaning friends in
spite of her feeling ashamed of what
was happening to her. But incessant
battering became more and more
frequent and more severe. x x x.[43]
From the totality of evidence presented,
there is indeed no doubt in the Courts
mind that Appellant Marivic Genosa was
a severely abused person.
Effect of Battery on Appellant
Because of the recurring cycles of
violence experienced by the abused
woman, her state of mind
metamorphoses. In determining her
state of mind, we cannot rely merely on
the judgment of an ordinary, reasonable
person who is evaluating the events
immediately surrounding the incident. A
Canadian court has aptly pointed out
that expert evidence on the
psychological effect of battering on
wives and common law partners are
both relevant and necessary. How can
the mental state of the appellant be
appreciated without it? The average
member of the public may ask: Why
would a woman put up with this kind of
treatment? Why should she continue to
live with such a man? How could she
love a partner who beat her to the point
of requiring hospitalization? We would
expect the woman to pack her bags and
go. Where is her self-respect? Why
does she not cut loose and make a new
life for herself? Such is the reaction of
the average person confronted with the
so-called battered wife syndrome.[44]
To understand the syndrome properly,
however, ones viewpoint should not be
drawn from that of an ordinary,
reasonable person. What goes on in the
mind of a person who has been
subjected to repeated, severe beatings
may not be consistent with -- nay,
comprehensible to -- those who have
not been through a similar experience.
Expert opinion is essential to clarify and
refute common myths and
misconceptions about battered women.
[45]
The theory of BWS formulated by
Lenore Walker, as well as her research
on domestic violence, has had a
significant impact in the United States
and the United Kingdom on the
treatment and prosecution of cases, in
which a battered woman is charged with
the killing of her violent partner. The
psychologist explains that the cyclical
nature of the violence inflicted upon the
battered woman immobilizes the latters
ability to act decisively in her own
interests, making her feel trapped in the
relationship with no means of escape.[46]
In her years of research, Dr. Walker
found that the abuse often escalates at
the point of separation and battered
women are in greater danger of dying
then.[47]
Corroborating these research findings,
Dra. Dayan said that the battered
woman usually has a very low opinion of
herself. She has x x x self-defeating and
self-sacrificing characteristics. x x x
[W]hen the violence would happen, they
usually think that they provoke[d] it, that
they were the one[s] who precipitated
the violence[; that] they provoke[d] their
spouse to be physically, verbally and
even sexually abusive to them.[48]
According to Dra. Dayan, there are a lot
of reasons why a battered woman does
not readily leave an abusive partner --
poverty, self-blame and guilt arising from
the latters belief that she provoked the
violence, that she has an obligation to
keep the family intact at all cost for the
sake of their children, and that she is the
only hope for her spouse to change.[49]
The testimony of another expert witness,
Dr. Pajarillo, is also helpful. He had
previously testified in suits involving
violent family relations, having evaluated
probably ten to twenty thousand violent
family disputes within the Armed Forces
of the Philippines, wherein such cases
abounded. As a result of his experience
with domestic violence cases, he
became a consultant of the Battered
Woman Office in Quezon City. As such,
he got involved in about forty (40) cases
of severe domestic violence, in which
the physical abuse on the woman would
sometimes even lead to her loss of
consciousness.[50]
Dr. Pajarillo explained that
overwhelming brutality, trauma could
result in posttraumatic stress disorder, a
form of anxiety neurosis or neurologic
anxietism.[51] After being repeatedly and
severely abused, battered persons may
believe that they are essentially
helpless, lacking power to change their
situation. x x x [A]cute battering
incidents can have the effect of
stimulating the development of coping
responses to the trauma at the expense
of the victims ability to muster an active
response to try to escape further
trauma. Furthermore, x x x the victim
ceases to believe that anything she can
do will have a predictable positive effect.
[52]
A study[53] conducted by Martin
Seligman, a psychologist at the
University of Pennsylvania, found that
even if a person has control over a
situation, but believes that she does not,
she will be more likely to respond to that
situation with coping responses rather
than trying to escape. He said that it was
the cognitive aspect -- the individuals
thoughts -- that proved all-important. He
referred to this phenomenon as learned
helplessness. [T]he truth or facts of a
situation turn out to be less important
than the individuals set of beliefs or
perceptions concerning the situation.
Battered women dont attempt to leave
the battering situation, even when it may
seem to outsiders that escape is
possible, because they cannot predict
their own safety; they believe that
nothing they or anyone else does will
alter their terrible circumstances.[54]
Thus, just as the battered woman
believes that she is somehow
responsible for the violent behavior of
her partner, she also believes that he is
capable of killing her, and that there is
no escape.[55] Battered women feel
unsafe, suffer from pervasive anxiety,
and usually fail to leave the relationship.
[56]
Unless a shelter is available, she
stays with her husband, not only
because she typically lacks a means of
self-support, but also because she fears
that if she leaves she would be found
and hurt even more.[57]
In the instant case, we meticulously
scoured the records for specific
evidence establishing that appellant,
due to the repeated abuse she had
suffered from her spouse over a long
period of time, became afflicted with the
battered woman syndrome. We,
however, failed to find sufficient
evidence that would support such a
conclusion. More specifically, we failed
to find ample evidence that would
confirm the presence of the essential
characteristics of BWS.
The defense fell short of proving all
three phases of the cycle of violence
supposedly characterizing the
relationship of Ben and Marivic Genosa.
No doubt there were acute battering
incidents. In relating to the court a quo
how the fatal incident that led to the
death of Ben started, Marivic perfectly
described the tension-building phase of
the cycle. She was able to explain in
adequate detail the typical
characteristics of this stage. However,
that single incident does not prove the
existence of the syndrome. In other
words, she failed to prove that in at least
another battering episode in the past,
she had gone through a similar pattern.
How did the tension between the
partners usually arise or build up prior to
acute battering? How did Marivic
normally respond to Bens relatively
minor abuses? What means did she
employ to try to prevent the situation
from developing into the next (more
violent) stage?
Neither did appellant proffer sufficient
evidence in regard to the third phase of
the cycle. She simply mentioned that
she would usually run away to her
mothers or fathers house;[58] that Ben
would seek her out, ask for her
forgiveness and promise to change; and
that believing his words, she would
return to their common abode.
Did she ever feel that she provoked the
violent incidents between her and her
spouse? Did she believe that she was
the only hope for Ben to reform? And
that she was the sole support of his
emotional stability and well-being?
Conversely, how dependent was she on
him? Did she feel helpless and trapped
in their relationship? Did both of them
regard death as preferable to
separation?
In sum, the defense failed to elicit from
appellant herself her factual
experiences and thoughts that would
clearly and fully demonstrate the
essential characteristics of the
syndrome.
The Court appreciates the ratiocinations
given by the expert witnesses for the
defense. Indeed, they were able to
explain fully, albeit merely theoretically
and scientifically, how the personality of
the battered woman usually evolved or
deteriorated as a result of repeated and
severe beatings inflicted upon her by her
partner or spouse. They corroborated
each others testimonies, which were
culled from their numerous studies of
hundreds of actual cases. However,
they failed to present in court the factual
experiences and thoughts that appellant
had related to them -- if at all -- based
on which they concluded that she had
BWS.
We emphasize that in criminal cases, all
the elements of a modifying
circumstance must be proven in order to
be appreciated. To repeat, the records
lack supporting evidence that would
establish all the essentials of the
battered woman syndrome as
manifested specifically in the case of the
Genosas.
BWS as Self-Defense
In any event, the existence of the
syndrome in a relationship does not in
itself establish the legal right of the
woman to kill her abusive partner.
Evidence must still be considered in the
context of self-defense.[59]
From the expert opinions discussed
earlier, the Court reckons further that
crucial to the BWS defense is the state
of mind of the battered woman at the
time of the offense[60] -- she must have
actually feared imminent harm from her
batterer and honestly believed in the
need to kill him in order to save her life.
Settled in our jurisprudence, however, is
the rule that the one who resorts to self-
defense must face a real threat on ones
life; and the peril sought to be avoided
must be imminent and actual, not merely
imaginary.[61] Thus, the Revised Penal
Code provides the following requisites
and effect of self-defense:[62]
Art. 11. Justifying circumstances. -- The
following do not incur any criminal
liability:
1. Anyone who acts in defense of his
person or rights, provided that the
following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of
the means employed to
prevent or repel it;
Third. Lack of sufficient provocation on
the part of the person defending himself.
Unlawful aggression is the most
essential element of self-defense.[63] It
presupposes actual, sudden and
unexpected attack -- or an imminent
danger thereof -- on the life or safety of
a person.[64] In the present case,
however, according to the testimony of
Marivic herself, there was a sufficient
time interval between the unlawful
aggression of Ben and her fatal attack
upon him. She had already been able to
withdraw from his violent behavior and
escape to their childrens bedroom.
During that time, he apparently ceased
his attack and went to bed. The reality or
even the imminence of the danger he
posed had ended altogether. He was no
longer in a position that presented an
actual threat on her life or safety.
Had Ben still been awaiting Marivic
when she came out of their childrens
bedroom -- and based on past violent
incidents, there was a great probability
that he would still have pursued her and
inflicted graver harm -- then, the
imminence of the real threat upon her
life would not have ceased yet. Where
the brutalized person is already suffering
from BWS, further evidence of actual
physical assault at the time of the killing
is not required. Incidents of domestic
battery usually have a predictable
pattern. To require the battered person
to await an obvious, deadly attack
before she can defend her life would
amount to sentencing her to murder by
installment.[65] Still, impending danger
(based on the conduct of the victim in
previous battering episodes) prior to the
defendants use of deadly force must be
shown. Threatening behavior or
communication can satisfy the required
imminence of danger.[66] Considering
such circumstances and the existence of
BWS, self-defense may be appreciated.
We reiterate the principle that
aggression, if not continuous, does not
warrant self-defense.[67] In the absence
of such aggression, there can be no
self-defense -- complete or incomplete --
on the part of the victim.[68] Thus,
Marivics killing of Ben was not
completely justified under the
circumstances.
Mitigating Circumstances Present
In any event, all is not lost for appellant.
While she did not raise any other
modifying circumstances that would alter
her penalty, we deem it proper to
evaluate and appreciate in her favor
circumstances that mitigate her criminal
liability. It is a hornbook doctrine that an
appeal in a criminal case opens it wholly
for review on any issue, including that
which has not been raised by the
parties.[69]
From several psychological tests she
had administered to Marivic, Dra.
Dayan, in her Psychological Evaluation
Report dated November 29, 2000,
opined as follows:
This is a classic case of a Battered
Woman Syndrome. The repeated
battering Marivic experienced with her
husband constitutes a form of
[cumulative] provocation which broke
down her psychological resistance and
natural self-control. It is very clear that
she developed heightened sensitivity to
sight of impending danger her husband
posed continuously. Marivic truly
experienced at the hands of her abuser
husband a state of psychological
paralysis which can only be ended by an
act of violence on her part. [70]
Dr. Pajarillo corroborates the findings of
Dra. Dayan. He explained that the effect
of repetitious pain taking, repetitious
battering, [and] repetitious maltreatment
as well as the severity and the
prolonged administration of the battering
is posttraumatic stress disorder.[71]
Expounding thereon, he said:
Q What causes the trauma, Mr.
Witness?
A What causes the trauma is probably
the repetitious battering. Second, the
severity of the battering. Third, the
prolonged administration of battering or
the prolonged commission of the
battering and the psychological and
constitutional stamina of the victim and
another one is the public and social
support available to the victim. If nobody
is interceding, the more she will go to
that disorder....
xxxxxxxxx
Q You referred a while ago to severity.
What are the qualifications in terms of
severity of the postraumatic stress
disorder, Dr. Pajarillo?
A The severity is the most severe
continuously to trig[g]er this
post[t]raumatic stress disorder is injury
to the head, banging of the head like
that. It is usually the very very severe
stimulus that precipitate this
post[t]raumatic stress disorder. Others
are suffocating the victim like holding a
pillow on the face, strangulating the
individual, suffocating the individual, and
boxing the individual. In this situation
therefore, the victim is heightened to
painful stimulus, like for example she is
pregnant, she is very susceptible
because the woman will not only protect
herself, she is also to protect the fetus.
So the anxiety is heightened to the end
[sic] degree.
Q But in terms of the gravity of the
disorder, Mr. Witness, how do you
classify?
A We classify the disorder as [acute], or
chronic or delayed or [a]typical.
Q Can you please describe this
pre[-]classification you called delayed or
[atypical]?
A The acute is the one that usually
require only one battering and the
individual will manifest now a severe
emotional instability, higher irritability
remorse, restlessness, and fear and
probably in most [acute] cases the first
thing will be happened to the individual
will be thinking of suicide.
Q And in chronic cases, Mr. Witness?
A The chronic cases is this repetitious
battering, repetitious maltreatment, any
prolonged, it is longer than six (6)
months. The [acute] is only the first day
to six (6) months. After this six (6)
months you become chronic. It is stated
in the book specifically that after six (6)
months is chronic. The [a]typical one is
the repetitious battering but the
individual who is abnormal and then
become normal. This is how you get
neurosis from neurotic personality of
these cases of post[t]raumatic stress
disorder. [72]
Answering the questions propounded by
the trial judge, the expert witness
clarified further:
Q But just the same[,] neurosis
especially on battered woman syndrome
x x x affects x x x his or her mental
capacity?
A Yes, your Honor.
Q As you were saying[,] it x x x
obfuscated her rationality?
A Of course obfuscated.[73]
In sum, the cyclical nature and the
severity of the violence inflicted upon
appellant resulted in cumulative
provocation which broke down her
psychological resistance and natural
self-control, psychological paralysis, and
difficulty in concentrating or impairment
of memory.
Based on the explanations of the
expert witnesses, such manifestations
were analogous to an illness that
diminished the exercise by appellant of
her will power without, however,
depriving her of consciousness of her
acts. There was, thus, a resulting
diminution of her freedom of action,
intelligence or intent. Pursuant to
paragraphs 9[74] and 10[75] of Article 13 of
the Revised Penal Code, this
circumstance should be taken in her
favor and considered as a mitigating
factor. [76]
In addition, we also find in favor of
appellant the extenuating circumstance
of having acted upon an impulse so
powerful as to have naturally produced
passion and obfuscation. It has been
held that this state of mind is present
when a crime is committed as a result of
an uncontrollable burst of passion
provoked by prior unjust or improper
acts or by a legitimate stimulus so
powerful as to overcome reason.[77] To
appreciate this circumstance, the
following requisites should concur: (1)
there is an act, both unlawful and
sufficient to produce such a condition of
mind; and (2) this act is not far removed
from the commission of the crime by a
considerable length of time, during
which the accused might recover her
normal equanimity.[78]
Here, an acute battering incident,
wherein Ben Genosa was the unlawful
aggressor, preceded his being killed by
Marivic. He had further threatened to kill
her while dragging her by the neck
towards a cabinet in which he had kept
a gun. It should also be recalled that she
was eight months pregnant at the time.
The attempt on her life was likewise on
that of her fetus.[79] His abusive and
violent acts, an aggression which was
directed at the lives of both Marivic and
her unborn child, naturally produced
passion and obfuscation overcoming her
reason. Even though she was able to
retreat to a separate room, her
emotional and mental state continued.
According to her, she felt her blood
pressure rise; she was filled with
feelings of self-pity and of fear that she
and her baby were about to die. In a fit
of indignation, she pried open the
cabinet drawer where Ben kept a gun,
then she took the weapon and used it to
shoot him.
The confluence of these events
brings us to the conclusion that there
was no considerable period of time
within which Marivic could have
recovered her normal equanimity.
Helpful is Dr. Pajarillos testimony[80] that
with neurotic anxiety -- a psychological
effect on a victim of overwhelming
brutality [or] trauma -- the victim relives
the beating or trauma as if it were real,
although she is not actually being
beaten at the time. She cannot control
re-experiencing the whole thing, the
most vicious and the trauma that she
suffered. She thinks of nothing but the
suffering. Such reliving which is beyond
the control of a person under similar
circumstances, must have been what
Marivic experienced during the brief time
interval and prevented her from
recovering her normal equanimity.
Accordingly, she should further be
credited with the mitigating circumstance
of passion and obfuscation.
It should be clarified that these two
circumstances -- psychological paralysis
as well as passion and obfuscation -- did
not arise from the same set of facts.
On the one hand, the first
circumstance arose from the cyclical
nature and the severity of the battery
inflicted by the batterer-spouse upon
appellant. That is, the repeated beatings
over a period of time resulted in her
psychological paralysis, which was
analogous to an illness diminishing the
exercise of her will power without
depriving her of consciousness of her
acts.
The second circumstance, on the
other hand, resulted from the violent
aggression he had inflicted on her prior
to the killing. That the incident occurred
when she was eight months pregnant
with their child was deemed by her as
an attempt not only on her life, but
likewise on that of their unborn child.
Such perception naturally produced
passion and obfuscation on her part.
Second Legal Issue:
Treachery
There is treachery when one commits
any of the crimes against persons by
employing means, methods or forms in
the execution thereof without risk to
oneself arising from the defense that the
offended party might make.[81] In order to
qualify an act as treacherous, the
circumstances invoked must be proven
as indubitably as the killing itself; they
cannot be deduced from mere
inferences, or conjectures, which have
no place in the appreciation of evidence.
[82]
Because of the gravity of the resulting
offense, treachery must be proved as
conclusively as the killing itself.[83]
Ruling that treachery was present in the
instant case, the trial court imposed the
penalty of death upon appellant. It
inferred this qualifying circumstances
merely from the fact that the lifeless
body of Ben had been found lying in bed
with an open, depressed, circular
fracture located at the back of his head.
As to exactly how and when he had
been fatally attacked, however, the
prosecution failed to establish
indubitably. Only the following testimony
of appellant leads us to the events
surrounding his death:
Q You said that when Ben came back to
your house, he dragged you? How did
he drag you?
COURT:
The witness demonstrated to the Court
by using her right hand flexed forcibly in
her front neck)
A And he dragged me towards the door
backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted
to get something and then he kept on
shouting at me that you might as well be
killed so there will be nobody to nag me
Q So you said that he dragged you
towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER
(At this juncture the witness started
crying)
ATTY. TABUCANON:
Q Were you actually brought to the
drawer?
A Yes, sir.
Q What happened when you were
brought to that drawer?
A He dragged me towards the drawer
and he was about to open the drawer
but he could not open it because he did
not have the key then he pulled his
wallet which contained a blade about 3
inches long and I was aware that he was
going to kill me and I smashed his arm
and then the wallet and the blade fell.
The one he used to open the drawer I
saw, it was a pipe about that long, and
when he was about to pick-up the wallet
and the blade, I smashed him then I ran
to the other room, and on that very
moment everything on my mind was to
pity on myself, then the feeling I had on
that very moment was the same when I
was admitted in PHILPHOS Clinic, I was
about to vomit.
COURT INTERPRETER
(The witness at this juncture is crying
intensely).
xxxxxxxxx
Q You said that he dropped the blade,
for the record will you please describe
this blade about 3 inches long, how
does it look like?
A Three (3) inches long and inch wide.
Q It is a flexible blade?
A Its a cutter.
Q How do you describe the blade, is it
sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used
when he intimidate me.
xxxxxxxxx
ATTY. TABUCANON:
Q You said that this blade fell from his
grip, is it correct?
A Yes, because I smashed him.
Q What happened?
A Ben tried to pick-up the wallet and the
blade, I pick-up the pipe and I smashed
him and I ran to the other room.
Q What else happened?
A When I was in the other room, I felt
the same thing like what happened
before when I was admitted in
PHILPHOS Clinic, I was about to vomit.
I know my blood pressure was raised. I
was frightened I was about to die
because of my blood pressure.
COURT INTERPRETER:
(Upon the answer of the witness getting
the pipe and smashed him, the witness
at the same time pointed at the back of
her neck or the nape).
ATTY. TABUCANON:
Q You said you went to the room, what
else happened?
A Considering all the physical sufferings
that Ive been through with him, I took
pity on myself and I felt I was about to
die also because of my blood pressure
and the baby, so I got that gun and I
shot him.
COURT
/to Atty. Tabucanon
Q You shot him?
A Yes, I distorted the drawer.[84]
The above testimony is insufficient to
establish the presence of treachery.
There is no showing of the victims
position relative to appellants at the time
of the shooting. Besides, equally
axiomatic is the rule that when a killing
is preceded by an argument or a
quarrel, treachery cannot be appreciated
as a qualifying circumstance, because
the deceased may be said to have been
forewarned and to have anticipated
aggression from the assailant.[85]
Moreover, in order to appreciate
alevosia, the method of assault adopted
by the aggressor must have been
consciously and deliberately chosen for
the specific purpose of accomplishing
the unlawful act without risk from any
defense that might be put up by the
party attacked.[86] There is no showing,
though, that the present appellant
intentionally chose a specific means of
successfully attacking her husband
without any risk to herself from any
retaliatory act that he might make. To
the contrary, it appears that the thought
of using the gun occurred to her only at
about the same moment when she
decided to kill her batterer-spouse. In
the absence of any convincing proof that
she consciously and deliberately
employed the method by which she
committed the crime in order to ensure
its execution, this Court resolves the
doubt in her favor.[87]
Proper Penalty
The penalty for parricide imposed by
Article 246 of the Revised Penal Code is
reclusion perpetua to death. Since two
mitigating circumstances and no
aggravating circumstance have been
found to have attended the commission
of the offense, the penalty shall be
lowered by one (1) degree, pursuant to
Article 64 of paragraph 5[88] of the same
Code.[89] The penalty of reclusion
temporal in its medium period is
imposable, considering that two
mitigating circumstances are to be taken
into account in reducing the penalty by
one degree, and no other modifying
circumstances were shown to have
attended the commission of the offense.
[90]
Under the Indeterminate Sentence
Law, the minimum of the penalty shall
be within the range of that which is next
lower in degree -- prision mayor -- and
the maximum shall be within the range
of the medium period of reclusion
temporal.
Considering all the circumstances of the
instant case, we deem it just and proper
to impose the penalty of prision mayor in
its minimum period, or six (6) years and
one (1) day in prison as minimum; to
reclusion temporal in its medium period,
or 14 years 8 months and 1 day as
maximum. Noting that appellant has
already served the minimum period, she
may now apply for and be released from
detention on parole.[91]
Epilogue
Being a novel concept in our
jurisprudence, the battered woman
syndrome was neither easy nor simple
to analyze and recognize vis--vis the
given set of facts in the present case.
The Court agonized on how to apply the
theory as a modern-day reality. It took
great effort beyond the normal manner
in which decisions are made -- on the
basis of existing law and jurisprudence duly established.
applicable to the proven facts. To give a WHEREFORE, the conviction of
just and proper resolution of the case, it Appellant Marivic Genosa for parricide is
endeavored to take a good look at hereby AFFIRMED. However, there
studies conducted here and abroad in being two (2) mitigating circumstances
order to understand the intricacies of the and no aggravating circumstance
syndrome and the distinct personality of attending her commission of the offense,
the chronically abused person. Certainly, her penalty is REDUCED to six (6) years
the Court has learned much. And and one (1) day of prision mayor as
definitely, the solicitor general and minimum; to 14 years, 8 months and 1
appellants counsel, Atty. Katrina day of reclusion temporal as maximum.
Legarda, have helped it in such learning Inasmuch as appellant has been
process. detained for more than the minimum
While our hearts empathize with penalty hereby imposed upon her, the
recurrently battered persons, we can director of the Bureau of Corrections
only work within the limits of law, may immediately RELEASE her from
jurisprudence and given facts. We custody upon due determination that
cannot make or invent them. Neither can she is eligible for parole, unless she is
we amend the Revised Penal Code. being held for some other lawful cause.
Only Congress, in its wisdom, may do Costs de oficio.
so. SO ORDERED.
The Court, however, is not discounting
the possibility of self-defense arising
from the battered woman syndrome. We
now sum up our main points. First, each
of the phases of the cycle of violence
must be proven to have characterized at
least two battering episodes between
the appellant and her intimate partner.
Second, the final acute battering
episode preceding the killing of the
batterer must have produced in the
battered persons mind an actual fear of
an imminent harm from her batterer and
an honest belief that she needed to use
force in order to save her life. Third, at
the time of the killing, the batterer must
have posed probable -- not necessarily
immediate and actual -- grave harm to
the accused, based on the history of
violence perpetrated by the former
against the latter. Taken altogether,
these circumstances could satisfy the
requisites of self-defense. Under the
existing facts of the present case,
however, not all of these elements were

FIRST DIVISION
[G.R. No. 142682. June 5, 2002]
PEOPLE OF THE PHILIPPINES,
plaintiff-appellee, vs. CRISPULO
DIJAN y MACAJIYA, accused-
appellant.
DECISION
VITUG, J.:
Accused Crispulo Dijan y Macajiya
was indicted on 15 April 1998, along
with Romualdo Paglinawan and Oliver
Lizardo, for the crime of murder before
the Regional Trial Court, Branch 272, of
Marikina. The information read:
That on or about the 11th day of April,
1998 in the City of Marikina, Philippines
and within the jurisdiction of this
Honorable Court, the above-named
accused, conspiring and confederating
together and mutually helping and aiding
one another, while armed with a knife
and an ice-pick with intent to kill and by
means of treachery and abuse of
superior strength, did then and there
willfully, unlawfully and feloniously
attack, assault and stab one ALVARO
HILARIO, thereby inflicting upon the
latter moral wounds which directly
caused his death.[if !supportFootnotes][1][endif]
Upon arraignment, the three
accused separately and independently
entered a plea of not guilty to the
offense charged; trial ensued.
Evidence for the Prosecution
On the evening of 11 April 1998,
about ten oclock, Roderick Silvestre and
Alvaro Hilario were at a store located
around the corner of Paraiso and
Sumulong Streets in Parang, Marikina
City, to buy some cigarettes when they
saw the group of Crispulo Dijan,
Romualdo Paglinawan and Oliver
Lizardo, passing by the store. The two
groups came to an encounter when
Romualdo Paglinawan suddenly
confronted Alvaro Hilario for purportedly
giving him a bad stare. Silvestre
apologized to the group and, offering
them some cigarettes, explained that it
was the natural way Hilario gazed at
people. Dijan, Paglinawan and Lizardo
then left the place while Silvestre and
Hilario who lived in the same house
proceeded home. While Silvestre and
Hilario were walking, the three accused,
who apparently were waiting for the duo,
suddenly ganged up on, and took turns
in stabbing, Hilario. At that point, Hilario,
who was walking slightly ahead of
Silvestre, cried out and told the latter to
flee. Silvestre ran away until he was
able to cling to a passing passenger
jeepney.
Responding policemen, soon
informed of the stabbing incident
through radio communication,
proceeded to the crime scene and there
found the lifeless body of Hilario
sprawled on the ground. After receiving
a report on the identity and the
whereabouts of the assailants, the
policemen proceeded to a place about
200 meters away from the site of the
stabbing incident. Barangay tanods
assisted the police in arresting the
suspected assailants. The following day,
12 April 1998, Dr. Ma. Cristina B. Freyra,
Medico-Legal Officer of the Philippine
National Police (PNP), conducted an
autopsy on the victims cadaver. Hilario
was found to have sustained several
stab wounds, punctured and incised
wounds, and abrasion in various parts of
the body which caused his death. The
medico-legal officer concluded that the
wounds could have been inflicted by two
assailants with the use of two single-
bladed weapons and an icepick.
The version of the Defense -
The defense claimed that on the
night of the incident, Crispulo Dijan and
his two companions, Romualdo
Paglinawan and Oliver Lizardo, were
walking on their way home when they
dropped by a store to buy some
cigarettes. There, they met two persons,
later identified to be Alvaro Hilario and
Roderick Silvestre. who were partaking
of drinks. Paglinawan accosted one of
the duo for allegedly sharply staring at
him but the other apologized to their
group and explained that his companion
was already drunk. Paglinawan himself
then also made an apology, and
everybody shook hands. Dijan and his
friends started to walk along Paraiso
Street. When Dijan happened to look
behind, he was surprised to see
Paglinawan being stabbed with a knife
by Alvaro Hilario. He saw that when
Paglinawan was hit on the left arm, the
two grappled for the knifes possession.
Seeing Roderick Silvestre to have pulled
out an icepick himself, Dijan promptly
held his hand. After disarming Silvestre,
Dijan saw Paglinawan still grappling with
Hilario for the knifes possession.
Realizing that Paglinawan was no match
for Hilario, the latter being much taller
than Paglinawan, Dijan helped his friend
and stabbed Hilario with the icepick he
wrestled away from Silvestre. He
assisted Paglinawan in getting home
which was only about 20 meters away
from the scene of the crime.
Dijans two co-accused, Oliver
Morales Lizardo and Romualdo
Paglinawan, gave a similar account.
Lizardo claimed that he ran away when
Silvestre, holding an icepick, rushed
towards them. Romualdo Paglinawan
said that, when their group was already
at the corner of Paraiso and Sumulong
streets, he heard rushing steps of
slippers and, turning his head around,
Hilario suddenly stabbed him with a
knife. He was able to evade the thrust
directed on his chest, wounding him
instead on his left forearm. The two
grappled for the knifes possession for
about five minutes until he was
weakened by the bleeding of his wound.
Dijan was able to timely pull away
Hilario. Dijan then stabbed Hilario.
Paglinawan stood up and walked home
followed by Dijan. He requested Dijan to
bring him to the hospital for treatment
but it was the policemen, who
meanwhile arrived, who brought him to
the hospital. After his wounds were
treated, he was taken to the police
headquarters.
The defense also presented Lani
Sarmiento and Dr. Alfredo Garcia to the
stand. Sarmiento claimed that when she
and a companion passed by Lindas
Bakery on the night of the incident, they
noticed two male persons, a tall fellow
and the other of average height,
overtake them causing her to exclaim
Fe, tingnan mo yan, parang
nagmamadali, parang galit sa mundo.[if !
supportFootnotes][2][endif]
Nearing Sumulong
Street, they saw the two men approach
three other male persons who were
walking towards Paraiso Street.
Suddenly, the tall guy pulled out a knife
and gave a stabbing thrust to one of the
three men. When they reached home,
they learned that it was their Kuya Jojo
or Romualdo Paglinawan who had been
stabbed. Dr. Garcia testified having
treated Romualdo Paglinawan on 11
April 1998 at the Amang Rodriguez
Medical Centre for a stab wound at the
right forearm.
The Judgment of the Trial Court. -
The trial court saw the case for the
prosecution insofar as accused-
appellant Crispulo M. Dijan was
concerned whom the court found guilty
of the crime of murder, acquitting
thereby Dijans two co-accused,
Romualdo Paglinawan and Oliver
Lizardo, based on reasonable doubt; viz:
WHEREFORE, foregoing premises
considered, accused CRISPULO DIJAN
y MACAJIYA is hereby found GUILTY
beyond reasonable doubt of the crime of
Murder qualified by treachery as
charged against him and is ordered to
suffer the penalty of RECLUSION
PERPETUA, to indemnify the heirs of
the victim Alvaro Hilario the amount of
Fifty Thousand (P50,000.00) Pesos; to
pay the said heirs the amount of Thirty
Four Thousand Two Hundred
(P34,200.00) Pesos as funeral
expenses; and the amount of Fifty
Thousand (P50,000.00) Pesos as moral
and exemplary damages. The accused
ROMUALDO PAGLINAWAN y
RICAMORA and OLIVER LIZARDO y
MORALES are hereby ACQUITTED of
the crime charged against them for
failure of the prosecution to prove their
guilt beyond reasonable doubt. The Jail
Warden of the Marikina City Jail is
ordered to immediately release the
persons of Romualdo Paglinawan and
Oliver Lizardo unless validly held for
some other offense.[if !supportFootnotes][3][endif]
Appealing his conviction to this
Court, accused-appellant would argue
that -
I. The trial court erred in finding
accused-appellant Crispulo Dijan guilty
beyond reasonable doubt of the crime of
murder.
II. Assuming for the sake of argument
that accused-appellant is guilty, the trial
court erred in appreciating the qualifying
circumstance of treachery.[if !supportFootnotes][4]
[endif]
A party who invokes the justifying
circumstance of defense of a stranger
has the burden of proving by clear and
convincing evidence the exculpatory
cause that can save him from
conviction.[if !supportFootnotes][5][endif] In order to
successfully put up this defense an
accused must show (1) the existence of
unlawful aggression on the part of the
victim; (2) the reasonable necessity of
the means employed to prevent or repel
it; and (3) that the accused has not been
induced by revenge, resentment, or
other evil motive.[if !supportFootnotes][6][endif] The
unlawful aggression must be a
continuing circumstance or must have
been existing at the time the defense is
made. Once unlawful aggression is
found to have ceased, the one making
the defense of a stranger would likewise
cease to have any justification for killing,
or even just wounding, the former
aggressor.[if !supportFootnotes][7][endif]
From the defense account, it would
appear that Hilario was already
disarmed and the unlawful aggression
by Hilario (if indeed he was the
aggressor) to have by then been abated,
when accused-appellant still delivered
the fatal thrusts on the victim.
Paglinawan himself testified:
Q. And because Crispulo Dijan was
already able to take possession of the
weapon from Roderick Silvestre, you
yourself was able to take possession of
the weapon from Hilario there was no
more danger to you as well as to
Crispulo Dijan?
A. Yes, sir.[if !supportFootnotes][8][endif]
The number of wounds sustained by the
victim would itself likewise negate
accused-appellants claim of defense of
a stranger. The autopsy conducted on
the corpse would show that the
deceased sustained fourteen injuries
consisting of nine stab wounds, three
punctured wounds, an incised wound
and an abrasion.[if !supportFootnotes][9][endif]
Certainly, the nature and number of
wounds inflicted by an accused on the
victim should be significant indicia in
determining the plausibility of the
defense plea.[if !supportFootnotes][10][endif]
The Court, however, finds the
evidence of the prosecution to be
wanting in respect to the qualifying
circumstance of treachery. The essence
of treachery is the sudden and
unexpected attack by an aggressor on
an unsuspecting victim, depriving the
latter of any real chance to defense
himself and thereby ensuring its
commission with no risk to the
aggressor.[if !supportFootnotes][11][endif]
The
conditions that must concur in order that
treachery may be appreciated are: (a)
the employment of means of execution
that gives the person attacked no
opportunity to defend himself or to
retaliate; and (b) that the means of
execution are deliberately and
consciously adopted.[if !supportFootnotes][12][endif]
These elements must be proven as
indubitably as the killing itself and
cannot be deduced from conjecture.[if !
supportFootnotes][13][endif]
Here, it was not satisfactorily
established that the victim was unarmed
at the time of the stabbing incident. On
the contrary, the stab wound on the
person of Romualdo Paglinawan, a
companion and co-accused of herein
appellant, could indicate that the victim
might have also been armed. Neither
was it made clear that there was no
provocation on the part of the victim.
Accused-appellant can thus only
be convicted of the crime of homicide,
the penalty for which, under Article 249
of the Revised Penal Code, is reclusion
temporal that, absent any mitigating nor
aggravating circumstance, shall be
imposed in its medium period. Applying
the Indeterminate Sentence Law,
accused-appellant should thus be
penalized by an indeterminate sentence
of anywhere within the range of prision
mayor, or from six years and one day to
12 years, by way of minimum, and
anywhere within the range of reclusion
temporal in its medium period of from
fourteen years, eight months and one
day to seventeen years and four
months, by way of maximum.[if !
supportFootnotes][14][endif]
The award of damages made by
the court a quo should be affirmed
insofar as the civil indemnity of
P50,000.00 and actual damages of
P34,200.00 are concerned, the latter
being amply supported by receipts. [if !
supportFootnotes][15][endif]
The additional award of
moral and exemplary damages should
be deleted for lack of factual and legal
grounds.
WHEREFORE, the appealed decision of
the Regional Trial Court is AFFIRMED
with MODIFICATION in that accused-
appellant is only found GUILTY of
HOMICIDE and sentenced to an
indeterminate penalty of nine (9) years
and one (1) day of prision mayor, as
minimum, to fifteen (15) years and
eleven (11) months and three (3) days of
reclusion temporal, as maximum, and is
ordered to pay the heirs of the victim
Alvaro Hilario civil indemnity of Fifty
Thousand (P50,000.00) pesos and
actual damages of Thirty-four Thousand
Two Hundred (P34,200.00) Pesos. The
award by the trial court of moral and
exemplary damages are deleted. Costs
against appellant.
SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 158057 September 24, 2004
NOE TOLEDO y TAMBOONG,
petitioner,
vs.
PEOPLE OF THE PHILIPPINES,
respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review of the
Decision1 of the Court of Appeals (CA) in
CA-G.R. CR No. 23742 affirming on
appeal, the Decision2 of the Regional
Trial Court (RTC) of Odiongan,
Romblon, Branch 82, in Criminal Case
No. OD-861, convicting the petitioner of
homicide.
In an Information filed in the RTC of
Romblon, the petitioner was charged
with homicide allegedly committed as
follows:
That on or about the 16th day of
September 1995, at around 9:30 oclock
in the evening, in Barangay Libertad,
municipality of Odiongan, province of
Romblon, Philippines, and within the
jurisdiction of this Honorable Court, the
said accused, with intent to kill, did then
and there, willfully, unlawfully and
feloniously attack, assault and stab with
a bolo, one RICKY F. GUARTE, which
causes (sic) his untimely death.
Contrary to law.3
In due course, the prosecution adduced
evidence against the petitioner which
was synthesized by the appellate court
as follows:
On September 16, 1995, appellant went
to a black-smith who made the design of
his bolo. When he went home to
Tuburan, Odiongan, Romblon late in the
afternoon (TSN, September 4, 1998, p.
2), appellant saw the group of Lani
Famero, Michael Fosana, Rex Cortez
and Ricky Guarte drinking gin at the
house of the Spouses Manuel and Eliza
Guarte, Rickys parents. Appellants
house is about five (5) meters away
from the house of Spouses Guarte.
Appellant requested the group of Ricky
to refrain from making any noise.
Thereupon, appellant proceeded inside
his house and went to sleep (ibid., p. 3).
Around 9:00 p.m., Gerardo Faminia,
Eliza Guartes brother arrived at the
Guarte house and asked for any left-
over food (TSN, August 5, 1998, p. 3).
Eliza prepared dinner for him and after
Gerardo finished eating, he went home
accompanied by Ricky (TSN, April 26,
1996, p. 5). Gerardos home is about
twelve (12) meters away from the
Guarte home (TSN, February 17, 1997,
p. 11). Minutes later, Ricky came back
and together with Lani, Rex and
Michael, went to sleep at the Guarte
house. They had not laid down for long
when they heard stones being hurled at
the roof of the house. The stoning was
made three (3) times (TSN, August 5,
1998, pp. 2-3). Ricky rose from bed and
peeped through a window. He saw
appellant stoning their house. Ricky
went out of the house and proceeded to
appellants house. Ricky asked
appellant, his uncle, why he was stoning
their house. Appellant did not answer
but met Ricky at the doorstep of his
(appellants) house (TSN, April 26, 1996,
p. 6; August 5, 1998, pp. 4-5) and,
without any warning, stabbed Ricky on
the abdomen with a bolo (TSN, August
5, 1998, p. 8). Eliza had followed his son
Ricky and upon seeing that Ricky was
stabbed, shouted for help (TSN,
February 17, 1997, p. 13). Lani heard
Elizas cry for help and immediately
rushed outside the house. Lani saw
Ricky leaning on the ground and
supporting his body with his hands. Lani
helped Ricky stand up and brought him
to the main road. Lani asked Ricky who
stabbed him and Ricky replied that it
was appellant who stabbed him. Then
Docloy Cortez arrived at the scene on
board his tricycle. Accordingly, Ricky
was put on the tricycle and taken to the
Romblon Provincial Hospital (TSN,
January 19, 1998, pp. 4-6).
At the Romblon Provincial Hospital, Dr.
Noralie Fetalvero operated on Ricky that
very night. Ricky had sustained one (1)
stab wound but due to massive blood
loss, he died while being operated on
(TSN, November 24, 1997, pp. 2, 6-7).
Dr. Fetalvero issued a Medico-Legal
Certificate showing the injuries
sustained by Ricky, thus:
Stab wound, left chest with gastric &
transverse colon evisceration measuring
6 cms. long, irregular-edged at 8th ICS,
left penetrating (operative findings):
(1) abdominal cavity perforating the
stomach (thru & thru) and the left lobe of
the liver
(2) thoracic cavity thru the left dome of
the diaphragm perforating the lower lobe
of the left lung.
(Exhibit C)
The Certificate of Death issued by Dr.
Fetalvero stated the cause of Rickys
death as:
CAUSES OF DEATH:
Immediate cause : a. Cardiorespiratory Arrest
Antecedent cause : b. Hypovolemic shock
Underlying cause : c. Multiple thoraco-abdominal
injury 2 to stab wound
(Exhibit B)4
The Evidence of the Petitioner
The petitioner adduced evidence that at
around 5:00 p.m. on September 16,
1995, he was on his way home at
Tuburan, Odiongan, Romblon. He saw
his nephew, Ricky Guarte, and the
latters friends, Michael Fosana, Rex
Cortez, and Lani Famero, about five
meters away from his house, having a
drinking spree. He ordered them not to
make loud noises, and they obliged. He
then went to his house, locked the door
with a nail, and went to sleep. However,
he was awakened at around 9:30 p.m.
by loud noises coming from Ricky and
his three companions. He peeped
through the window grills of his house
and admonished them not to make any
loud noises. Ricky, who was then
already inebriated, was incensed; he
pulled out a balisong, pushed the door,
and threatened to stab the petitioner.
The petitioner pushed their sala set
against the door to block the entry of
Ricky, but the latter continued to push
the door open with his hands and body.
The petitioner ran to the upper portion of
their house and got his bolo.5 He
returned to the door and pushed it with
all his might using his left hand. He then
pointed his bolo, which was in his right
hand, towards Ricky. The bolo
accidentally hit Ricky on the stomach,
and the latter lost his balance and fell to
the floor. The petitioner, thereafter,
 surrendered to the barangay captain at
11:00 a.m. on September 17, 1995.
After trial, the court rendered judgment
finding the petitioner guilty as charged.
The fallo of the decision reads:
WHEREFORE, premises considered,
NOE TOLEDO is hereby found GUILTY
beyond reasonable doubt of homicide
with the mitigating circumstance of
voluntary surrender and is meted the
indeterminate penalty of from six (6)
years and one (1) day of prision mayor
minimum, as minimum, to twelve (12)
years and one (1) day of reclusion
temporal minimum, as maximum.
Accused is condemned to pay the
amount of P50,000.00 as civil liability to
the heirs of the victim.6
The trial court did not give credence and
probative weight to the testimony of the
petitioner that his bolo accidentally hit
the victim on the stomach.
On appeal in the CA, the petitioner
raised the following issue in his brief as
appellant:
WHETHER OR NOT ACCUSED-
APPELLANT CAN BE CRIMINALLY
HELD LIABLE FOR THE ACCIDENTAL
DEATH OF RICKY GUARTE7
Invoking Article 12, paragraph 4 of the
Revised Penal Code, the petitioner
claimed that he stabbed the victim by
accident; hence, he is exempt from
criminal liability for the death of the
victim.
The CA rendered judgment affirming the
assailed decision with modifications.
The CA also denied the petitioners
motion for reconsideration thereof. The
appellate court ruled that the petitioner
failed to prove that he acted in self-
defense.
Aggrieved, the petitioner filed the instant
petition for review, contending that the
CA erred in not finding that he acted in
self-defense when he stabbed the victim
by accident and prays that he be
acquitted of the crime charged.
The sole issue in this case is whether or
not the petitioner is guilty beyond
reasonable doubt of homicide based on
the evidence on record.
The petitioner contends that the CA
committed a reversible error when it
affirmed the decision of the RTC
convicting him of homicide, on its finding
that he failed to prove that he acted in
complete self-defense when the victim
was hit by his bolo. The petitioner insists
that he acted in complete self-defense
when his bolo accidentally hit the victim
on the stomach.
For its part, the Office of the Solicitor
General asserts that the petitioner failed
to prove self-defense with clear and
convincing evidence. Hence, the
decision of the CA affirming, on appeal,
the decision of the RTC is correct.
The contention of the petitioner has no
merit.
The petitioner testified that his bolo hit
the victim accidentally. He asserted in
the RTC and in the CA that he is exempt
from criminal liability for the death of the
victim under Article 12, paragraph 4 of
the Revised Penal Code which reads:
4. Any person who, while performing a
lawful act with due care, causes an
injury by mere accident without fault or
intention of causing it.
In his brief in the CA, the petitioner
argued that:
In the case at bar, with all due respect,
contrary to the findings of the lower
court, it is our humble submission that
the death of Ricky Guarte was merely a
sad and unwanted result of an accident
without fault or intention of causing it on
the part of accused-appellant. We
submit, there were clear and indubitable
factual indicators overlooked by the
lower court, bolstering the theory of the
 defense on accidental death.8
However, the petitioner changed gear,
so to speak, and now alleges that he
acted in self-defense when he stabbed
the victim. As such, he contends, he is
not criminally liable under Article 11,
paragraph 1 of the Revised Penal Code
which reads:
Art. 11. Justifying circumstances. The
following do not incur any criminal
liability:
1. Anyone who acts in defense of his
person or rights, provided that the
following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the
means employed to prevent or repel it:
Third. Lack of sufficient provocation on
the part of the person defending himself.
The petitioner avers that he was able to
prove the essential elements of
complete self-defense, thus:
A close scrutiny of the records of the
case would show that the petitioner
acted in self-defense.
The essential requisites of self-defense
are: (1) unlawful aggression on the part
of the victim; (2) reasonable scrutiny of
the means employed to prevent or repel
it; and (3) lack of sufficient provocation
on the part of the person defending
himself (People vs. Silvano, 350 SCRA
650)9
However, the petitioner also claims that
his bolo accidentally hit the stomach of
the victim.
It is a matter of law that when a party
adopts a particular theory and the case
is tried and decided upon that theory in
the court below, he will not be permitted
to change his theory on appeal. The
case will be reviewed and decided on
that theory and not approached and
resolved from a different point of view.
To permit a party to change his theory
on appeal will be unfair to the adverse
party.10
The petitioner is proscribed from
changing in this Court, his theory of
defense which he adopted in the trial
court and foisted in the CA by claiming
that he stabbed and killed the victim in
complete self-defense. The petitioner
relied on Article 12, paragraph 4 of the
Revised Penal Code in the trial and
appellate courts, but adopted in this
Court two divergent theories (1) that
he killed the victim to defend himself
against his unlawful aggression; hence,
is justified under Article 11, paragraph 1
of the Revised Penal Code; (2) that his
bolo accidentally hit the victim and is,
thus, exempt from criminal liability under
Article 12, paragraph 4 of the Revised
Penal Code.
It is an aberration for the petitioner to
invoke the two defenses at the same
time because the said defenses are
intrinsically antithetical.11 There is no
such defense as accidental self-defense
in the realm of criminal law.
Self-defense under Article 11, paragraph
1 of the Revised Penal Code necessarily
implies a deliberate and positive overt
act of the accused to prevent or repel an
unlawful aggression of another with the
use of reasonable means. The accused
has freedom of action. He is aware of
the consequences of his deliberate acts.
The defense is based on necessity
which is the supreme and irresistible
master of men of all human affairs, and
of the law. From necessity, and limited
by it, proceeds the right of self-defense.
The right begins when necessity does,
and ends where it ends.12 Although the
accused, in fact, injures or kills the
victim, however, his act is in accordance
with law so much so that the accused is
deemed not to have transgressed the
law and is free from both criminal and
civil liabilities.13 On the other hand, the
basis of exempting circumstances under
Article 12 of the Revised Penal Code is
the complete absence of intelligence,
freedom of action, or intent, or the
absence of negligence on the part of the
accused.14 The basis of the exemption in
Article 12, paragraph 4 of the Revised
Penal Code is lack of negligence and
intent. The accused does not commit
either an intentional or culpable felony.
The accused commits a crime but there
is no criminal liability because of the
complete absence of any of the
conditions which constitute free will or
voluntariness of the act.15 An accident is
a fortuitous circumstance, event or
happening; an event happening wholly
or partly through human agency, an
event which under the circumstances is
unusual or unexpected by the person to
whom it happens.16
Self-defense, under Article 11,
paragraph 1, and accident, under Article
12, paragraph 4 of the Revised Penal
Code, are affirmative defenses which
the accused is burdened to prove, with
clear and convincing evidence. Such
affirmative defenses involve questions of
facts adduced to the trial and appellate
courts for resolution. By admitting killing
the victim in self-defense or by accident
without fault or without intention of
causing it, the burden is shifted to the
accused to prove such affirmative
defenses. He should rely on the strength
of his own evidence and not on the
weakness of that of the prosecution. If
the accused fails to prove his affirmative
defense, he can no longer be acquitted.
The petitioner failed to prove that the
victim was killed by accident, without
fault or intention on his part to cause it.
The petitioner was burdened to prove
with clear and convincing evidence, the
essential requisites for the exempting
circumstance under Article 12,
paragraph 4, viz:
1. A person is performing a lawful act;
2. With due care;
3. He causes an injury to another by
mere accident;
4. Without fault or intention of causing it.
To prove his affirmative defense, the
petitioner relied solely on his testimony,
thus:
Q What happened next when Ricky
Guarte was able to push through the
door and you ran away?
A When Ricky Guarte was able to push
the door, that is the time I go (sic)
downstairs and got my bolo and at that
time the body of Ricky Guarte was at the
entrance of the door and accidentally
the bolo reached him.
Q Where did you get the bolo?
A I got the bolo in the post or wall of our
house.
Q Was Ricky Guarte hit the first time
you boloed him?
A Not hacking but accidentally.
Q What do you mean by accidentally?
A Because when Ricky Guarte pushed
the door and unbalance himself (sic) the
bolo which I was carrying hit him
accidentally.
Q Where was he hit by the bolo you
were carrying?
A In the stomach.17
Q And since you were at the left side of
the door, your right hand was at the
center part of the door, correct?
A No, Sir.
Q Where was your right hand?
A Holding a bolo.
Q Where, in what part of the door?
A Right side.
Q When Ricky Guarte was pushing the
door, the door was not opened?
A It was opened.
Q It was opened because you opened
the door, correct?
 A No, Sir.
Q Now, why was it opened?
A Because he was pushing it.
Q With his left hand?
A With his both hands and body.
Q Now, when he fell down because,
according to you, he losses (sic) his
balance, the left side of the body was
the first to fell (sic) down, correct?
A Yes, Sir.
Q You are sure of your answer now Mr.
Toledo?
A Yes, Sir.
Q Now, and while holding that bolo, you
are doing that in [an] upward position,
correct?
A No, Sir, pointing the door.
Q Yes, you are pointing the tip of your
bolo to the door upward, correct?
A No, Sir, steady pointing to the door.
Q Now, when the door was opened,
your bolo did not hit any part of that
door, correct?
A "Ginaiwas ko ang sunrang," meaning I
was able to get away from hitting any
part of the door.
Q The question Mr. Toledo is simple,
while the door was opened and while
you were pointing directly your bolo at
the door, not any part of the door hit the
bolo (sic), correct?
ATTY. FORMILLEZA:
It was a valid answer, it did not hit any
part of the door.
COURT:
Answer.
A No, Sir.
PROS. FRADEJAS continuing:
Q You were only about five inches away
from your door while pushing it, correct?
A Yes, Sir.
Q Now, when the door was pushed
already by Ricky Guarte, not any part of
your body hit the door, correct?
A No, Sir.18
The petitioner also testified that the
victim was armed with a balisong and
threatened to kill him as the said victim
pushed, with his body and hands, the
fragile door of his house:
Q Where were you when you saw Ricky
went out?
A I was at the door.
Q Did Ricky proceed to the door where
you were?
A Yes, Sir.
Q What did he do, if any?
A He drew his fan knife or balisong and
asked me what do you like, I will stab
you?
Q What did you do?
A I told him I have not done you
anything wrong, I am only scolding you
or telling you not to make noise.
Q What, if any, did Ricky Guarte do to
you?
A He pushed the door.
Q Whose door did he push?
A My own door.
Q Where were you when he pushed the
door?
A Inside our house.19
We find the testimony of the petitioner
incredible and barren of probative
weight.
First. If the testimony of the petitioner is
to be believed, the force of the struggle
between him and the victim would have
caused the door to fall on the petitioner.
However, the petitioner failed to adduce
real evidence that the door of his house
was destroyed and that he sustained
any physical injuries,20 considering that
he was only five inches away from the
door.
Second. If the door fell to the sala of the
house of the petitioner, the victim must
have fallen on top of the door. It is
incredible that the bolo of the petitioner
could have hit the stomach of the victim.
The claim of the petitioner that he
managed to step aside and avoid being
crushed by the door belies his claim that
the bolo accidentally hit the victim on the
stomach.
Third. When he surrendered to the
barangay captain and to the policemen,
he failed to relate to them that his bolo
accidentally hit the stomach of the
victim:
Q Now, that very night when you said
Ricky Guarte was accidentally hit by
your bolo, you did not surrender to the
police, correct?
A I surrendered to the barangay captain
at one oclock in Panique, in the
afternoon.
Q Now, you only surrendered to the
police when a certain person advised
you to surrender, correct?
A On my own volition, I surrendered to
the barangay captain.
Q You did not narrate the incident to the
barangay captain whom you have
surrendered, correct?
A No, Sir.
Q When you were brought to the
municipal jail, you did not also narrate to
the police what happened, correct?
A No, Sir.
Q You just remained silent thinking of an
excuse that happened that evening of
September 16, 1995, correct?
A No, Sir.21
Fourth. There is no evidence that the
petitioner surrendered either the bolo
that accidentally hit the victim or the
balisong held by the deceased to the
barangay captain or the police
authorities. Such failure of the petitioner
negates his claim that his bolo
accidentally hit the stomach of the victim
and that he acted in self-defense.22
Fifth. To prove self-defense, the
petitioner was burdened to prove the
essential elements thereof, namely: (1)
unlawful aggression on the part of the
victim; (2) lack of sufficient provocation
on the part of the petitioner; (3)
employment by him of reasonable
means to prevent or repel the
aggression. Unlawful aggression is a
condition sine qua non for the justifying
circumstances of self-defense, whether
complete or incomplete.23 Unlawful
aggression presupposes an actual,
sudden, and unexpected attack, or
imminent danger thereof, and not merely
a threatening or intimidating attitude.24
We agree with the ruling of the CA that
the petitioner failed to prove self-
defense, whether complete or
incomplete:
The evidence on record revealed that
there is no unlawful aggression on the
part of Ricky. While it was established
that Ricky was stabbed at the doorstep
of appellants house which would give a
semblance of verity to appellants
version of the incident, such view,
however, is belied by the fact that Ricky
arrived at appellants house unarmed
and had only one purpose in mind, that
is, to ask appellant why he threw stones
at his (Rickys) house. With no weapon
to attack appellant, or defend himself, no
sign of hostility may be deduced from
Rickys arrival at appellants doorstep.
Ricky was not threatening to attack nor
in any manner did he manifest any
aggressive act that may have imperiled
appellants well-being. Rickys want of
any weapon when he arrived at
appellants doorstep is supported by the
fact that only one weapon was
presented in court, and that weapon was
the bolo belonging to appellant which he
used in stabbing Ricky. Thus, appellants
version of the events does not support a
finding of unlawful aggression. In People
vs. Pletado, the Supreme Court held:
"xxx (F) or aggression to be
appreciated, there must be an actual,
sudden, [un]expected attack or imminent
 danger thereof, and not merely a
threatening or intimidating attitude
(People vs. Pasco, Jr., supra, People vs.
Rey, 172 SCRA 149 [1989]) and the
accused must present proof of positively
strong act of real aggression (Pacificar
vs. Court of Appeals, 125 SCRA 716
[1983]). Unlawful aggression must be
such as to put in real peril the life or
personal safety of the person defending
himself or of a relative sought to be
defended and not an imagined threat."
Appellant was not justified in stabbing
Ricky. There was no imminent threat to
appellants life necessitating his assault
on Ricky. Unlawful aggression is a
condition sine qua non for the justifying
circumstance of self-defense. For
unlawful aggression to be appreciated,
there must be an actual, sudden,
unexpected attack or imminent danger
thereof, not merely a threatening or
intimidating attitude. In the absence of
such element, appellants claim of self-
defense must fail.
Further, appellants plea of self-defense
is not corroborated by competent
evidence. The plea of self-defense
cannot be justifiably entertained where it
is not only uncorroborated by any
separate competent evidence but is in
itself extremely doubtful.25
Sixth. With the failure of the petitioner to
prove self-defense, the inescapable
conclusion is that he is guilty of
homicide as found by the trial court and
the CA. He cannot even invoke Article
12, paragraph 4 of the Revised Penal
Code.26
IN LIGHT OF ALL THE FOREGOING,
the petition is DENIED. The assailed
decision of the Court of Appeals is
AFFIRMED. Costs against the
petitioner.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Baguio City
SECOND DIVISION
G.R. No. 132028 April 19, 2002
PEOPLE OF THE PHILIPPINES,
plaintiff-appellee,
vs.
EUSEBIO ENFECTANA, alias
"Toytoy", and ERWIN ENFECTANA,
accused-appellants.
QUISUMBING, J.:
Before us on appeal is the decision 1
dated June 24, 1997 of the Regional
Trial Court, Borongan, Eastern Samar,
Branch 1, in Criminal Case No. 10582,
finding appellants guilty of murder and
sentencing them to suffer the
imprisonment of reclusion perpetua.
Appellants herein were indicted in an
Information2 as follows:
That on November 2, 1994, at about
11:00 oclock in the morning, at the
National Highway, Barangay Cabay,
Balangkayan, Eastern Samar,
Philippines, and within the jurisdiction of
this Honorable Court, the above-named
accused conspiring, confederating and
helping one another, with intent to kill
and with evident premeditation and
treachery and without justifiable cause,
did then and there wilfully, unlawfully
and feloniously bumped Leo Boco and
the complainant Adelaida Boco with the
trycicle (sic) of the accused, when the
victim has just alighted from a
passenger jeepney, then attacked,
assaulted, hacked, stabbed and
wounded Leo Boco with the use of
sharp bladed weapons, which the
accused provided themselves for the
purpose, thereby inflicting injuries upon
Leo Boco, which injuries caused the
instantaneous death of Leo Boco, to the
damage and prejudice of the heirs of the
victim, in such amount as may be
awarded to them under the provisions of
the Civil Code of the Philippines and
other related laws and caused injuries
on the complainant, Adelaida Boco,
when she was bumped by the trycicle
(sic) named "Pepit" owned and operated
by the herein accused and driven by co-
accused Erwin Enfectana.1wphi1.nt
CONTRARY TO LAW, with the
attendance of the aggravating
circumstances of: Evident premeditation,
Conspiracy, Treachery and advantage
taken due to superior strength or means
employed to weaken the defense of the
victim.
Upon arraignment, appellants pleaded
"not guilty" to the charge. Thereafter trial
ensued.
The first witness for the prosecution was
ADELAIDA BOCO, widow of the victim,
Leo Boco. She testified that on
November 2, 1994, at around 11:00
A.M., while she and her husband were
on their way home, they were
sideswiped by a tricycle driven by
appellant Erwin Enfectana with Efren
Enfectana as passenger. As a result, her
husband fell in a crouching position.
When he was about to get up, appellant
Eusebio Enfectana came from behind to
stab him. Then appellant Erwin
Enfectana and accused Efren Enfectana
took turns stabbing Leo Boco, causing
his death.3
DOMINADOR DIALINO, a 52-year-old
farmer, testified that he saw appellants
and co-accused kill the victim. According
to the witness, he was at the store of
one Olivo Contado, at around 11:00
A.M. of November 2, 1994. From there,
he saw Leo and Adelaida Boco alight
from a jeepney. He also saw a fast
running tricycle which bumped the
vehicle of the Boco spouses. The
tricycle was being driven by Erwin
Enfectana who was with Efren
Enfectana. They missed the Boco
spouses who jumped away. Erwin and
Efren Enfectana alighted from the
tricycle and walked towards Leo Boco,
who had fallen down. They were
carrying short bladed weapons known
as "depang".4 Dominador Dialino tried to
stop them by going between them and
the Boco spouses, to no avail. He heard
Efren Enfectana shout, "bon-a na Tatay"
(Father, stab him). He then saw Eusebio
Enfectana stab Leo Boco. After Leo
Boco fell, Erwin and Efren also stabbed
him.5
BARTOLOME BAHASAN, a 54-year-old
resident of Bgy. Cabay, Balangkayan,
Eastern Samar, testified that sometime
in 1985, the family of Eusebio Enfectana
tried to move into the residence of Leo
and Adelaida Boco but they were
prevented by Leo. He also alleged that
sometime in 1985, Leo Boco was
waylaid by the Enfectanas (Eusebio,
Erwin and Efren) but he was able to
escape by swimming across the river.
From then on, Leo Boco always tried to
evade the Enfectanas.6
Dr. MICHAEL TAN, the Municipal Health
Officer of Balangkayan, Eastern Samar,
testified that he was the one who
conducted the post-mortem examination
on the cadaver of Leo Boco. According
to him, the deceased suffered six stab
wounds, and that the probable cause of
death was the stab wound at the back
that caused hemorrhage. He opined that
in all probability, based on the sizes and
nature of the wounds, not less than two
weapons were used against the victim.7
On June 15, 1995, ADELAIDA BOCO
was recalled to the witness stand to
testify on the damages she and her
family suffered and the expenses they
incurred as a result of Leo Bocos death.
According to her, Leo Boco was a
businessman who earns at least
P20,000 a month by selling automotive
parts in Cebu. She said that she
incurred P50,000 in funeral expenses.
She also spent for legal fees because
she engaged a lawyer for the fee of
P500 per appearance in court. Aside
from these, she also alleged that since
her husbands death, she became the
sole breadwinner of her family and the
main source of livelihood for her five
children.8
For its part, the defense presented
DARIO D. ALDE, municipal treasurer of
Balangkayan, Eastern Samar, as its first
witness. He testified that there is no
record of Leo Boco as businessman in
the Municipality of Balangkayan.9
Next witness for the defense was Mrs.
MANUELA CONTADO DIALINO. She
testified that on November 2, 1994, she
went to the cemetery of Balangkayan
where she stayed from 8:30-9:30 A.M.
She then proceeded to the waiting shed
where she waited for a ride home. She
was able to ride a tricycle at around
11:00 A.M. She alleged that Dominador
Dialino was with her in the tricycle and
that they arrived in Cabay at around
12:00 noon. Upon arriving home, they
were informed that Leo Boco had been
killed.10
Appellant EUSEBIO ENFECTANA
testified that on November 2, 1994, at
around 11:00 A.M., while he was at
home, someone arrived and informed
him that his tricycle was involved in an
accident. He went to the place and saw
his tricycle turned upside down with its
windshield broken. Suddenly, he saw
Leo Boco running towards him with a
"dipang" (a small bolo). He evaded the
attacks of Leo Boco and managed to get
hold of a piece of wood which he used
to defend himself. Still, Leo Boco
persisted in attacking him until he was
able to get hold of a bolo which he used
in stabbing Leo. According to him, he
was able to stab Leo in the right hand
and chest. Aside from this he was also
able to hack him in the neck. As Leo fell
down from these counter-attacks,
according to appellant, he took Leos
bolo and used this to stab him. He was
then chased by the sons and the cousin
of Leo Boco up to his house which they
pelted with stones. After they stopped,
Eusebio decided to call the authorities to
surrender himself.11
Appellant ERWIN ENFECTANA testified
that he is 24 years old, married, and a
resident of Cabay, Balangkayan,
Eastern Samar. According to him, at
around 11:00 A.M. of November 2, 1994,
while he was waiting for passengers in
Bgy. Cabay, Balangkayan, he saw Leo
Boco running toward him with a small
bolo. In his effort to escape, he
accidentally bumped his tricycle on a
fence. He fell down because of the
impact but he immediately stood up and
ran away because Leo Boco was still
chasing him with a bolo. In order to
escape, he hid in the house of Osias
Montes where he learned that his father,
Eusebio Enfectana, and Leo Boco had a
quarrel.12
FE ANDALIZA GLINO testified that on
the morning of November 2, 1994, while
she was ironing clothes in the house of
Nestor Borja, she heard a tricycle
crashing into a wooden fence. When
she looked out the window, she saw
appellant Erwin Enfectana sprawled on
the ground trying to get up. She also
saw Leo Boco with a "dipang"
approaching Erwin and trying to stab
him. Erwin got up and ran away. She
returned to her chores but after a while,
she heard a woman shout, "Leo, ayaw
kamo pag-igi, ayaw hito" (Leo, do not
quarrel, not here.) She looked out the
window and saw Leo Boco advancing,
this time towards appellant Eusebio
Enfectana. Leo was trying to stab
Eusebio Enfectana while the latter
parried the blows with a piece of wood.
When Eusebio Enfectana was cornered
against a banana store, witness Fe
Glino said, she looked away until she
heard somebody shouting, "Patay na si
Leo Boco" (Leo Boco is already dead).13
Defense witness NENITA ALDE testified
that she was the one who took the
pictures of the appellants house, which
show shattered windows and the stones
allegedly used in breaking these
windows.14
Another defense witness, EDDIE
AMBAL, testified that on November 2,
1994, while he was on his way home
from his aunts house, he saw a tilted
tricycle. He also saw appellant Eusebio
Enfectana being attacked by Leo Boco
with a "dipang". According to him,
Eusebio Enfectana managed to parry
these blows with a piece of wood until
he reached a banana store where he
was able to get hold of a bolo. This he
used to stab and hack the victim, Leo
Boco.15
Witness MARCOS LADIAO testified that
on November 2, 1994, at around 11:00
A.M., while he was on his way to the
house of a certain Romulo Elpedes, he
noticed a tilted tricycle by the side of the
road. He saw appellant Eusebio
Enfectana standing near the said
tricycle. He also saw Leo Boco with a
small bolo approaching Eusebio
Enfectana from the direction of the
seashore. He heard Leo Boco shout,
"kay waray ko man kamatay an anak, it
amay it ak papatayon" (Because I failed
to kill the son, I will kill the father). With
these words, Leo Boco bumped Eusebio
Enfectana and tried to stab him with the
"dipang". But Eusebio Enfectana
managed to evade the thrust of Leo
Bocos weapon. Eusebio Enfectana was
able to pick a piece of wood which he
used to parry the blows of Leo Boco, at
the same time backpedalling across the
street where he (Eusebio Enfectana)
was eventually cornered against the
banana store of Contado. At said store,
Eusebio Enfectana managed to get hold
of a long bolo which he used to stab Leo
Boco. When the victim fell down,
appellant Eusebio Enfectana ran and
jumped over the fence.16
Later, the prosecution recalled
ADELAIDA BOCO as its rebuttal witness
to disprove the allegations of Eddie
Ambal that he (Ambal) actually saw the
killing of Leo Boco.17
On June 24, 1997, the trial court
rendered its decision as follows:
WHEREFORE, in view of the foregoing
facts and circumstances, EUSEBIO
ENFECTANA and ERWIN ENFECTANA
are found guilty beyond reasonable
doubt as co-principals of the crime of
Murder, defined and penalized under
Article 248 of the Revised Penal Code,
as amended, and further amended by
R.A. 7659, section 6, which provide the
penalty of Reclusion Perpetua to Death.
Accordingly, Eusebio Enfectana and
Erwin Enfectana are hereby sentenced
to serve the indivisible penalty of
reclusion perpetua, to pay the cost and
to indemnify the heirs of Leo Boco in the
amount of Fifty Thousand Pesos
(P50,000.00) pursuant to a recent ruling
of the Supreme Court (citing People vs.
Chica, GR No. 117732, 1995. PP. vs.
Sison, 159 SCRA 645). Records show,
Eusebio Enfecatana and Erwin
Enfectana are out on bail, the same is
hereby ordered cancelled pursuant to
Supreme Court Circular No. 2-92. As far
as accused Efren Enfectana is
concerned, he is still at large to date.
SO ORDERED.18
Aggrieved, appellants filed this appeal
alleging that the trial court erred:
I even if self-defense could not be
IN NOT CONSIDERING THAT
APPELLANT EUSEBIO ENFECTANA
ACTED IN SELF-DEFENSE.
II
[IN] FINDING BOTH APPELLANTS
GUILTY OF MURDER.
III
IN CONVICTING APPELLANTS.
In essence, the issues here are (1)
whether the trial court properly gave
credence to the version of the
prosecution while disbelieving that of the
defense; (2) whether there is self
defense on the part of Eusebio
Enfectana; and, (3) whether the
circumstance of treachery should be
appreciated to qualify the offense to
murder. Likewise, we must further
inquire into the propriety of the civil
indemnity and damages awarded by the
trial court.
Appellant Eusebio Enfectana admits that
he killed Leo Boco. He, however, alleges
that he acted in self-defense. According
to him, he was attacked first and he had
no option but to kill the aggressor. On
the other hand, appellant Erwin denies
any participation in the killing and
alleges that he was nowhere near the
place where the incident transpired.
Both appellants assail the finding of the
trial court that they are liable for the
death of Leo Boco. According to them, it
was the victim, Leo Boco, who had the
motive to commence the assault upon
Eusebio Enfectana because of Bocos
conviction resulting from a complaint
lodged against him by the Enfectanas.
They add that Boco also lost in a civil
case involving his house. 1wphi1.nt
Appellants also assail the
inconsistencies in the testimonies of the
prosecution witnesses, particularly those
of Adelaida Boco and Dominador
Dialino. Lastly, appellants contend that
appreciated, the crime committed was
merely homicide and that only Eusebio
should be held liable therefor.19
The Office of the Solicitor General
(OSG), for the appellee, avers that the
trial court committed no error in
convicting appellants Eusebio and Erwin
Enfectana for murder. The OSG
contends that the failure of appellants to
submit any counter-affidavit immediately
after the complaint was filed against
them is an indication that their version
was no longer spontaneous nor truthful.
According to the OSG, the claim that it
was the victim who had the motive to
commence the assault against the
Enfectanas is unrealistic, since it is also
true that the Enfectanas harbored ill
feelings towards Leo Boco. The OSG
stresses that the testimonies of the
prosecution witnesses, as a whole,
show no real discrepancy and that the
inconsistencies pointed out by
appellants refer only to minor and trivial
matters.
Considering the evidence presented and
the arguments adduced by appellants
and appellee, we are unable to find
merit in the present appeal.
The conviction of the Enfectanas was
primarily based on the testimonial
accounts of Adelaida Boco and
Dominador Dialino which was found by
the trial court to be more credible than
the version of the appellants. It is
doctrinally settled that when the issue is
one of credibility of witnesses, appellate
courts will generally not disturb the
findings of the trial court, considering
that the latter is in a better position to
decide the issue, having heard the
witnesses themselves and observed
their deportment and manner of
testifying during trial. This rule admits of
exceptions, such as when the evaluation
was reached arbitrarily or when the trial
court overlooked, misunderstood, or
misapplied some facts or circumstances
of weight and substance which could
affect the result of the case.20
Unfortunately for appellants, none of
these exceptions is present in this case.
The testimonies of prosecution
witnesses Adelaida Boco and
Dominador Dialino were both positive
and categorical. The assertion of
appellants that they contradicted each
other has no support in the records.
Moreover, even if we were to agree with
appellants that there were
inconsistencies in their testimonies, they
refer only to trivial and immaterial
details. Thus, assuming these
inconsistencies to be present, they tend
to show that the witnesses were being
spontaneous and were not coached or
rehearsed. Settled is the rule that minor
inconsistencies do not affect the
credibility of a witness. On the contrary,
they may be considered badges of
veracity or manifestations of truthfulness
on material points and they may even
heighten the credibility of the witness. 21
The records of this case show that the
prosecution witnesses were consistent
in their narration as to WHO committed
the crime, WHEN and HOW it was
committed. These are the material facts
in this case which had been sufficiently
and convincingly established by the
prosecution. Compared with the
allegation of the appellants, the
prosecutions version is more believable
and in accord with reality, hence
deserving full faith and credence.
Appellants would want us to believe that
it was the victim, Leo Boco, who initiated
the attacks, first against Erwin
Enfectana and then against Eusebio
Enfectana, and that notwithstanding the
fact that said Erwin and Eusebio were
both caught unaware and unarmed by
the sudden attacks of Leo Boco, they
managed to evade him and escape
unscathed. This is highly suspect and in
our view, quite incredible. Evidence to
be believed must not only come from the
mouth of a credible witness but must
itself be credible.22 It is very unlikely that
Leo Boco, if the version of the
appellants were true, would fail to land
even a single hit upon the body of either
appellants. Yet neither Erwin nor
Eusebio Enfectana showed such injury.
The version of the appellants would not
explain why co-accused Efren
Enfectana suddenly disappeared after
the incident. If it was true that they were
innocent, then there is no reason for
Efren Enfectana to flee and hide. Flight
is an indication of guilt23 and lends
credence to the version of the
prosecution in this case.
As for the issue of self -defense, it is an
established principle that once this
justifying circumstance is raised, the
burden of proving the elements of the
claim shifts to him who invokes it.24 The
elements of self-defense are: (1) that the
victim has committed unlawful
aggression amounting to actual or
imminent threat to the life and limb of
the person claiming self-defense; (2)
that there be reasonable necessity in the
means employed to prevent or repel the
unlawful aggression; and (3) that there
be lack of sufficient provocation on the
part of the person claiming self-defense
or, at least, that any provocation
executed by the person claiming self-
defense be not the proximate and
immediate cause of the victims
aggression.25 The condition of unlawful
aggression is a sine qua non; otherwise
stated, there can be no self-defense,
complete or incomplete, unless the
victim has committed unlawful
aggression against the person
26
defending himself.
Given the fact that the relationship
between the parties had been marred by
ill will and animosities, and pursuant to
the rule on the burden of evidence
imposed by law on the party invoking
self-defense, the admission of appellant
Eusebio Enfectana that he killed Leo
Boco made it incumbent upon appellant
to convincingly prove that there was
unlawful aggression on the part of the
victim which necessitated the use of
deadly force by appellant. Unfortunately,
appellant miserably failed to prove the
existence of unlawful aggression on the
part of the victim. As found by the trial
court:
The version of the accused [appellant]
that it was Leo Boco who was the
unlawful aggressor and that Leo Boco
attacked and stabbed him while he was
inspecting his tilted tricycle on the
highway cannot be given faith and credit
it being an afterthought, self-serving and
expert invention and/or imagination sans
truth.27
Weighing the conflicting versions of the
prosecution and the defense, we agree
with the trial courts conclusion that the
prosecutions version is more in accord
with the natural course of things, hence
more credible.
Anent the third issue, we also agree with
the trial court that treachery is present in
this case. The victim and his wife were
suddenly attacked as they were coming
down from a jeepney. They had no idea
that they were going to be assaulted.
The manner by which the appellants
commenced and perpetrated their
assault, (1) by trying to bump Leo and
Adelaida Boco, making the former lose
his balance and more susceptible to an
attack, and (2) by simultaneously
attacking Leo Boco, hence preventing
him from putting up any semblance of
defense, shows beyond any doubt that
there was alevosia in this case. Settled
is the rule that an unexpected and
sudden attack under circumstances that
render the victim unable and unprepared
to defend himself constitutes alevosia.28
As to damages, there is no dispute as to
the propriety of P50,000 as civil
indemnity for the death of Leo Boco.
There being uncontradicted testimony
regarding the funeral expenses and
legal fees paid by the widow, Adelaida
Boco, at least P50,500 should be
awarded to her as actual damages.
WHEREFORE, the assailed decision of
Branch 1 of the Regional Trial Court of
Borongan, Eastern Samar, in Criminal
Case No. 10582, finding the appellants
Eusebio Enfectana and Erwin Enfectana
guilty of murder, is AFFIRMED. Each of
them is sentenced to the penalty of
reclusion perpetua as well as to pay the
heirs of the victim Leo Boco P50,000 as
civil indemnity. In addition, appellants
are hereby ordered jointly and severally
to pay P50,500 as actual damages to
the widow, Adelaida Boco. Lastly, let a
copy of this decision be furnished to the defense.
National Bureau of Investigation and the Petitioner Conrado Cano y Sampang
Philippine National Police so that co- and his deceased brother Orlando Cano
accused Efren Enfectana be were rivals in the Rush ID Photo
apprehended promptly and brought to business and had booths along the
the bar of justice. 1wphi1.nt sidewalk of Rizal Avenue, Sta. Cruz,
Costs against appellants. Manila fronting the Philippine Trust Bank
SO ORDERED. and Uniwide Sales Department Store.
The fateful altercation which culminated
in the fatal stabbing of Orlando Cano
stemmed out of this rivalry, particularly
the incident where Conrado took the
business permit from the booth of
Orlando without his permission thus
incurring the latters ire.
The prosecutions version of what
transpired as summarized in the
Peoples brief1 shows that in the
morning of May 31, 1993, at about 7:00
oclock, the victim Orlando Cano arrived
at the Rush ID Booth of petitioner
located below the LRT line in Rizal
Avenue, Sta. Cruz, Manila. The victim
asked David Olivario, an employee of
petitioner, where the latter was. The
victim angrily said that petitioner was
pakialamero. He also said, "Putang ina
niya! Why did he Xerox our permit."
Since petitioner had not yet arrived, the
victim returned to his own Rush ID booth
located several meters away.2
Republic of the Philippines Later, at about 9:30 a.m., petitioner
SUPREME COURT arrived at his Rush ID booth. After giving
Manila supplies to Olivario, petitioner said he
FIRST DIVISION was going to the City Hall. He faced the
G.R. No. 155258 October 7, 2003 mirror and started to comb his hair. The
CONRADO CANO y SAMPANG, victim suddenly arrived and held
petitioner, petitioner on the shoulders and turned
vs. him around. The victim asked him,
PEOPLE OF THE PHILIPPINES, "Anong gusto mong mangyari?"
respondent. Accused did not answer.3
DECISION The victim tried to stab petitioner with a
YNARES-SANTIAGO, J.: balisong but the latter was able to run
The primordial issue to be resolved in and lock himself inside the dark room
this petition for certiorari is whether or inside his booth. The victim followed him
not petitioner killed his brother in self- and tried to open the door of the dark
room and shouted, "Lumabas ka diyan!
Putang ina mo, papatayin kita!"
Petitioner did not come out. The victim
tried to force the door open by kicking it
and stabbed the door with his balisong.
The door of the dark room suddenly
opened and petitioner emerged carrying
a pair of scissors. The victim and
petitioner struck at each other. During
the scuffle, the scissors fell from
petitioners hand. He then grabbed the
knife of the victim who, in turn, picked up
the scissors. They again attacked each
other.4
The victim fell and his wife rushed to his
side. Petitioner fled from the scene. The
victims wife asked for assistance from
the people in the vicinity. The victim was
then loaded on a jeep and was rushed
to a hospital, but he was dead on
arrival.5
The autopsy report submitted by the
medico-legal officer of the Western
Police District, Dr. Manuel Lagonera,
shows that the victim sustained at least
thirty (30) stab wounds, six (6) of which
were fatal.6 On the other hand, petitioner
suffered only an incised wound on the
right hand measuring six (6) cm., which
required less than nine (9) days of
treatment.
Petitioner had a different account of
what transpired. He testified that on May
31, 1993 at around 9:30 a.m. he went to
his Rush ID booth in front of the Philtrust
Bank to deliver supplies to his
photographer, David Olivario.7 After
handing over said supplies to Olivario,
petitioner intended to go to the Manila
City Hall to apply for a business permit.8
Petitioners earlier application for a
permit was denied.9 He sought a
reconsideration from the city officials
and argued that his brother was issued
a similar permit. In order to prove his
point, he borrowed the permit of his
brother from his nephew, Wilson Reyes,
to have it machine copied.10 After doing
so, petitioner returned it.11 The victim
apparently resented this because
petitioner was informed by David
Olivario that Gloria Cano later went to
petitioners stall angrily inquiring why
they got the permit.12
As petitioner was combing his hair and
preparing to leave for the Manila City
Hall, the victim, Orlando, suddenly
appeared from behind, grabbed him by
the left shoulder and jerked him around
so that they were face to face.13 As they
stood face to face, Orlando menacingly
said, "Anong gusto mong mangyari?"14
Petitioner noticed Orlando holding a
balisong, and he ran to the dark room of
his stall.15
The victim pursued him and tried to
force open the locked dark room door by
kicking it and stabbing it with the fan
knife.16 He kept shouting, "Get out of
there! Pakialamero ka! Get out of there
and I will kill you!"17 The door suddenly
gave way and, as it opened, the victim
charged at petitioner, but he was able to
evade the attack. Snatching a pair of
scissors nearby, petitioner retaliated but
the scissors fell from his grasp because
it was parried by the victim.18 Petitioner
then grabbed the hand of the victim
holding the balisong and they grappled
to gain possession thereof. He
eventually wrested control of the knife
and as he stood momentarily, the victim
picked up the scissors and again lunged
at him.19
With nowhere to go, petitioner was
forced to defend himself from the
onslaught of the victim who was armed
with the nine-inch long pair of pointed
scissors.20 No bystanders tried to pacify
them as they engaged in their deadly
struggle for almost two (2) minutes.
Suddenly, the victim collapsed and fell
bloodied to the floor.21
Petitioner stooped to lift his brother up,
intending to bring him to the
hospital.1a\^/phi1.net However, he was
hit by the victims wife with a chair.
Then, she started shouting,
"Holdupper!"22 Petitioner was forced to
flee from the scene for fear of being
lynched by the people who had gathered
around armed with clubs. The people
pursued him but when he saw a
policeman coming in his direction, he
threw the balisong away and raised his
hands in surrender.23 He was then
brought to the police precinct and later
to the hospital for treatment of his
injuries.24
Petitioner was charged with Homicide in
an Information25 which alleges
That on or about May 31, 1993, in the
City of Manila, Philippines, the said
accused, with intent to kill, did then and
there willfully, unlawfully and feloniously
attack, assault and use personal
violence upon one ORLANDO CANO y
SAMPANG, by then and there stabbing
the latter on the different parts of his
body, thereby inflicting upon the said
ORLANDO CANO Y SAMPANG mortal
and fatal wounds which were the direct
and immediate cause of his death
thereafter.
CONTRARY TO LAW.
The case was docketed as Criminal
Case No. 93-121668 and filed with the
Regional Trial Court of Manila, Branch
31.
Upon arraignment, petitioner pleaded
not guilty to the offense charged. The
case thereupon proceeded to trial. After
trial, the court a quo rendered
judgment26 finding petitioner guilty
beyond reasonable doubt of the crime
and sentencing him to serve an
imprisonment of seventeen (17) years,
four (4) months and one (1) day of
reclusion temporal and to indemnify the
heirs of the deceased P50,000.00 plus
costs.
Petitioner interposed an appeal to the
Court of Appeals, where it was docketed
as CA-G.R. CR No. 19254.
During the pendency of the appeal, 27
Gloria Cano, the widow of the victim,
executed a Sinumpaang Salaysay28
stating, among others, that petitioner
merely acted in self-defense and that
she was withdrawing the charge against
him. This sworn statement became the
basis of an Urgent Motion for New Trial29
on the ground of newly discovered
evidence filed by counsel for petitioner.
This motion for new trial was, however,
denied by the Court of Appeals in a
Resolution dated March 19, 1998.30
The appellate court subsequently
rendered judgment affirming petitioners
conviction but modifying the penalty to
an indeterminate sentence of
imprisonment ranging from nine (9)
years and one (1) day of prision mayor,
as minimum, to fourteen (14) years and
eight (8) months of reclusion temporal,
as maximum. Petitioner was likewise
ordered to pay the heirs of the victim
actual damages of P24,605.75;
P50,000.00 as moral damages and
another P50,000.00 as civil indemnity ex
delicto plus costs.31
Preliminarily, the Solicitor General
argues that the petition raises merely
factual issues, such as whether or not
petitioner is entitled to the justifying
circumstance of self-defense and the
mitigating circumstance of provocation
or threat and voluntary surrender. These
issues, says the Solicitor, are not proper
for a petition for review under Rule 45 of
the Rules of Civil Procedure.
Concededly, those who seek to avail of
the remedies provided by the rules must
adhere to the requirements thereof,
failure of which the right to do so is lost.
It is, however, equally settled that rules
of procedure are not to be applied in a
very rigid, technical sense and are used
only to help secure substantial justice. If
a technical and rigid enforcement of the
rules is made, their aim would be
defeated.32 They should be liberally
construed so that litigants can have
ample opportunity to prove their claims
and thus prevent a denial of justice due
to technicalities.33
Therefore, we shall proceed to resolve
the issue of whether or not petitioner is
entitled to invoke the justifying
circumstance of self-defense,
considering that what is at stake is not
merely his liberty, but also the distinct
possibility that he will bear the stigma of
a convicted felon and be consigned to
the fate of being a social pariah for the
rest of his life.
As can be seen from the foregoing, the
prosecution and the defense have
diametrically opposed factual versions of
what transpired immediately preceding
the killing. Our task is to determine
which of them is the truth. In resolving
such conflict, dealing as it does with the
credibility of witnesses, the usual rule is
for us to respect the findings of the trial
court considering that it was in a better
position to decide the question, having
heard the witnesses themselves and
having observed their deportment and
manner of testifying during trial.34
Nonetheless, this rule is circumscribed
by well-established exceptions.35
In the case at bar, the record shows
circumstances of weight and influence
which have been overlooked, or the
significance of which has been
misinterpreted, that if considered would
affect the result of the
case.361a\^/phi1.net
For self-defense to prosper, petitioner
must prove by clear and convincing
evidence the following elements: (1)
unlawful aggression on the part of the
victim; (2) reasonable necessity of the
means employed to prevent or repel it;
and (3) lack of sufficient provocation on
the part of the person defending
himself.37 Although all the three
elements must concur, self-defense
must rest firstly on proof of unlawful
aggression on the part of the victim. If
no unlawful aggression has been
proved, no self-defense may be
successfully pleaded, whether complete
or incomplete.38 In other words in self-
defense, unlawful aggression is a
primordial element. It presupposes an
actual, sudden and unexpected attack or
imminent danger on the life and limb of
a person not a mere threatening or
intimidating attitude but most
importantly, at the time the defensive
action was taken against the
aggressor.39
In the case at bar, there are several
material circumstances which were
ignored by both the court a quo and the
appellate tribunal.
First, contrary to the findings of both the
appellate and trial courts, there are facts
extant on record which clearly shows
that it was an armed victim who initially
attacked the petitioner with a balisong.
Petitioner testified on the assault thus:
Atty. Ferrer:
What happened after that when Orlando
Cano grabbed you and came face to
face with him?
A. I answered him none but he was in a
menacing position with his hands
around something and I suddenly ran
away.
Q. What was that something in the
hands of Orlando Cano that made you
run away?
A. Balisong "29," Sir.
Atty. Ferrer:
And where did you run to?
A. I went inside my booth because that
is the only place I can run to.
Q. And what happened inside your
booth, if any?
A. He also ran after me and then when I
was inside we were having a tug of war
of the doorknob which I tried to close
and which he tried to open.
Q. What happened after that?
A. But I was able to close the door but
he kept on kicking the door that I turned
deaf.
Q. What else happened, if any?
A. While he was kicking, he was also
stabbing the door with the "29"
(balisong) he was holding.
Q. And you said you heard the thudding
of the door making noise, what
happened if any?
A. He kept on shouting, "Get out of
there! Pakialamero ka!" "Get out of there
and I will kill you."
Q. What did you do did you go out?
A. While he was shouting I did not notice
that the door was not completely closed
because the lock went on and the door
suddenly opened.
Q. What happened after the door got
open?
A. When the door opened he again
rushed me, stabbed and I was able to
evade it.
Atty. Ferrer:
What else happened?
Witness:
A. I was able to grab a scissors and that
was the time I retaliated.
Q. Who owned this scissors?
A. That scissors was mine because it is
used in cutting paper.
Q. Now, you said you retaliated after
grabbing a pair of scissors where did
you retaliate?
A. I was about to retaliate in the door of
the room because the room was very
small.
Q. Where you able to retaliate?
A. No, sir, I was not able to retaliate
because the scissors fell when he was
able to parry it.
Q. What happened after that, after that
piece of scissors fell from your hold?
A. I took hold of his hand holding the
"balisong" and we had a scuffle to get
hold or possession of the "balisong."
Q. What happened after the scuffling for
the "balisong"?
A. After one (1) minute I was able to
grab possession of the "balisong."
Q. What happened after that?
A. When I was able to get hold of the
"balisong" I just remained standing and I
just . . .
Q. What else happened?
A. He was able to pick up the scissors
that I dropped and he again launched
[himself] at me [with] the scissors.
Q. What did you do, if any?
A. That was the time when my mind was
confused and I dont have any place to
go and I tried to defend myself and we
fought each other.
Atty. Ferrer :
And at the time when you said you
fought each other, Orlando Cano was
holding the scissors and you were
holding the "balisong," correct?
A. Yes, sir.40
David Olivario, who was five meters
away and saw what transpired,
corroborated petitioners account.41 He
remained steadfast and unwavering on
cross-examination despite intense
grilling by the prosecution42 and further
clarificatory questioning from the trial
court itself.43
Second, the physical evidence is more
in accord with petitioners version of
what transpired, specifically his
assertion that it was the victim who was
armed and persisted in his attack on the
petitioner even though the latter locked
himself inside the dark room of his stall
to protect himself. The findings of Police
Investigator SPO3 Julian Z. Bustamante
contained in his Advance Information
Report44 discloses that "[H]oles were
observed at the door near the door lock
of suspects rush ID photo booth
apparently made by a hard pointed
instrument"45 Aside from stating that a
fan knife and a pair of scissors which
both yielded positive results for traces of
human blood were recovered, the report
went further to note that the "bloodied
scissor were (sic) recovered in front of
suspects rush ID photo booth door." 46
The foregoing entries of the Advance
Information Report, particularly that
referring to the location of the bloodied
scissors, supports petitioners claim that
when he could no longer avoid the
unlawful aggression of the victim, he
was compelled to grab at the instrument
inside the booth to defend himself.
However, the scissors fell from his
grasp, thus forcing him to desperately
grapple for possession of the fan knife.
Third, circumstances prior to the fatal
incident shows that it was the victim who
purposely sought to confront the
petitioner because the latter had his
business permit machine copied without
his permission. Maria Cano, an aunt of
the victim and petitioner, testified thus:
Q: And Orlando Cano, did he tell you
any reason why he was waiting for
Conrado Cano [at] that particular
morning?
A: Because he was very angry and said
that there will be an encounter between
them.
Atty. Ferrer:
What did you do, if any?
Witness:
A: You brothers you should calm down
because you are brothers.
Q: By the way what was the reason why,
if you know why, Orlando told you that
"silay magtutuos," quoting your own
words?
A: Orlando Cano is mad because
Conrado Cano got Orlandos business
permit and had it xeroxed and after
xeroxing it and he returned the permit of
Orlando Cano.
Q: Could you tell us how Orlando Cano
uttered those words "magtutuos"?
A: Orlando Cano told me this is the day
when we will have a confrontation and
at this juncture, I even tapped [his] right
pocket, I did not see what was there but
I saw the handle.
xxxxxxxxx
Q: As the aunt of the two (2) what was
your reaction when Orlando told you
that?
A: I told, Orlando, calm down because
you are brothers and if something bad
that will happen (sic) your mother will
suffer because of the incident.
Atty. Ferrrer:
And what was the reaction of Orlando, if
any, after you said those words of
advice?
A: Orlando Cano answered me, well,
shall I remain silent and will not utter
any word at all?
Q: And was that that (sic) word confined
to Orlando?
A: No, Sir, because I also advised
Gloria.
Q And what was the advise you gave
Gloria?
A: I told Gloria because the only one
who can prevent this incident is you
because Orlando is your husband.
Q: And what was the reaction, if any of
Gloria Cano?
A: Gloria told me, there is nothing I can
do because they are brothers and they
are responsible for their own lives.
Q: What else happened, if any?
A: That was the time I bid goodbye.47
(emphasis and italics supplied)
Fourth, the record reveals that while
indeed numerous wounds were
sustained by the victim, the Medico-
Legal Officer who conducted the
autopsy admitted that of the thirty-five
(35) wounds supposedly inflicted, thirty-
three (33) were scratches and
contusions while only six (6) were
penetrating or stab wounds.48 As
regards the finding that petitioner
suffered only one hand wound, it should
be stressed that the superficiality of the
nature of the wounds inflicted on the
accused does not, per se, negate self-
defense. Indeed, to prove self-defense,
the actual wounding of the person
defending himself is not necessary. It is
sufficient that the aggression be
attempted so as to give rise to the right
to prevent it.49 The act of a person
armed with a bladed weapon pursuing
another constitutes unlawful aggression
because it signifies the pursuers intent
to commit an assault with this weapon.50
The particular circumstances which
confronted the petitioner at the time of
the incident condoned the means he
employed to protect his life. It must be
remembered that the measure of
rational necessity is to be found in the
situation as it appeared to petitioner at
the time when the blow was struck. The
law does not require that he should
mete out his blows in such manner that
upon a calm and deliberate review of the
incident it will not appear that he
exceeded the precise limits of what was
absolutely necessary to put his
antagonist hors de combat, or that he
struck one blow more than was
absolutely necessary to save his own
life; or that he failed to hold his hand so
as to avoid inflicting a fatal wound where
a less severe stroke might have served
the purpose. Under such conditions, an
accused cannot be expected to reflect
coolly nor wait after each blow to
determine the effects thereof.51
. . . the reasonableness of the means
employed to repel an actual and positive
aggression should not be gauged by the
standards that the mind of a judge,
seated in a swivel chair in a comfortable
office, free from care and unperturbed in
his security, may coolly and
dispassionately set down. The judge
must place himself in the position of the
object of the aggression or his defender
and consider his feelings, his reactions
to the events or circumstances. It is
easy for one to state that the object of
the aggression or his defender could
have taken such action, adopted such
remedy, or resorted to other means. But
the defendant has no time for cool
deliberation, no equanimity of mind to
find the most reasonable action, remedy
or means to. He must act from impulse,
without time for deliberation. The
reasonableness of the means employed
must be gauged by the defenders
hopes and sincere beliefs, not by the
judges.52
Fifth, there was lack of sufficient
provocation on the part of petitioner.
When the law speaks of provocation
either as a mitigating circumstance or as
an essential element of self-defense, it
requires that the same be sufficient or
proportionate to the act committed and
that it be adequate to arouse one to its
commission. It is not enough that the
provocative act be unreasonable or
annoying.53 This third requisite of self-
defense is present: (1) when no
provocation at all was given to the
aggressor; (2) when, even if provocation
was given, it was not sufficient; (3) when
even if the provocation was sufficient, it
was not given by the person defending
himself; or (4) when even if a
provocation was given by the person
defending himself, it was not proximate
and immediate to the act of
aggression.54
Petitioner borrowed the permit of the
victim and had it photocopied without
the latters permission two (2) days
before the incident.55 The victim and his
wife resented this. However, this can
hardly be considered a provocation
sufficient to merit so deadly an assault
with a bladed weapon. Moreover, the act
was neither immediate nor proximate. 56
What, in fact, appears on record is the
bellicose temperament of the victim and
his spouse who, despite the advice of
their Aunt Maria Cano to calm down, still
persisted in confronting petitioner. When
the question is raised who between the
accused and the offended party gave
provocation, the circumstances of
subjective, objective and social
character may be considered in
reaching a definite conclusion.57 Thus an
accused, to prove provocation in
connection with his plea of self-defense,
may show that the victim, as in this
case, had a quarrelsome and irascible
disposition.58
Sixth, two other notable circumstances
on record tend to show that petitioner
was impelled by the instinct of self-
preservation rather than the murderous
urge of one bent on killing. The first is
when petitioner was able to wrest the
balisong from the victim, he never took
advantage of the opportunity to attack
his already weaponless brother. Rather,
he stood still and was forced to act only
when the victim picked up the scissors
and lunged at him again.59 The second
instance is when the victim fell. Had
petitioner been actuated by homicidal
intentions, he would have persisted in
his attack on his prostrate brother. He
did nothing of the sort. He, in fact,
intended to lift the victim up and bring
him to the hospital but the sudden
appearance of the victims wife who hit
him with a chair forced him to flee.
Moreover, armed people were attracted
by the shouts of the victims wife and
had gathered and started pursuing
him.60
Seventh, while the general policy is for
the courts not to attach any persuasive
evidentiary value to the affidavit of
retraction of the victims widow, such
sworn statement acquires a weightier
and more decisive evidentiary
consideration when taken in conjunction
with the other prevailing facts in this
case. Thus, it has oft been said that
where inculpatory facts and
circumstances are susceptible of two or
more interpretations, one of which is
consistent with the innocence of the
accused while the others may be
compatible with a finding of guilt, the
Court must acquit the accused because
the evidence does not fulfill the test of
moral certainty required for conviction.61
All told, evidence shows that petitioner
acted in lawful self-defense. Hence, his
act of killing the victim was attended by
a justifying circumstance, for which no
criminal and civil liability can attach. 62
Article 11 (1) of the Revised Penal Code
expressly provides that anyone who acts
in lawful self-defense does not incur any
criminal liability. Likewise, petitioner is
not civilly liable for his lawful act. The
only instance when a person who
commits a crime with the attendance of
a justifying circumstance incurs civil
liability is when he, in order to avoid an
evil or injury, does an act which causes
damage to another, pursuant to
subdivision 4 of Article 11 of the Revised
Penal Code.63 Otherwise stated, if a
person charged with homicide
successfully pleads self-defense, his
acquittal by reason thereof will
extinguish his civil liability.64
WHEREFORE, in view of all the
foregoing, the judgment appealed from
is REVERSED and SET ASIDE.
Petitioner Conrado Cano y Sampang is
ACQUITTED of the crime charged
against him and his immediate release
from custody is ordered unless there is
another cause for his continued
detention.
Costs de oficio.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 126968 April 9, 2003
RICARDO BALUNUECO, petitioner,
vs.
COURT OF APPEALS AND THE
PEOPLE OF THE PHILIPPINES,
respondents.
BELLOSILLO, J.:
On appeal by certiorari is the Decision1
of the Court of Appeals affirming with
modifications the decision2 of the
Regional Trial Court of Pasig City,
Branch 68, convicting accused
RICARDO BALUNUECO of homicide for
the death of Senando Iguico and
frustrated homicide for injuries inflicted
upon his wife Amelia Iguico.
Of the five (5) original accused,3 only
petitioner Ricardo, accused Reynaldo,
Juanito, all surnamed Balunueco, and
Armando Flores were indicted in two (2)
Informations, the first for homicide 4 and
the second for frustrated homicide.5
Again, of the four (4) indictees, only
Ricardo and Reynaldo were brought to
the jurisdiction of the court a quo, while
Juanito and Armando have remained at
large. Accused Reynaldo died on 17
November 1986. Accordingly, as against
him, the criminal cases were dismissed.
Thus, only the criminal cases against
petitioner Ricardo Balunueco are subject
of this appeal.
As principal witness for the prosecution,
Amelia Iguico narrated that on 2 May
1982 at around 6:00 oclock in the
evening she was coddling her youngest
child in front of her house at Bagong
Tanyag, Taguig, when she saw accused
Reynaldo, his father Juanito and
brothers Ricardo and Ramon, all
surnamed Balunueco, and one Armando
Flores chasing her brother-in-law
Servando Iguico. With the five (5)
individuals in hot pursuit, Servando
scampered into the safety of Amelias
house.
Meanwhile, according to private
complainant Amelia, her husband
Senando, who was then cooking supper,
went out of the house fully unaware of
the commotion going on outside. Upon
seeing Senando, Reynaldo turned his
attention on him and gave chase.
Senando instinctively fled towards the
fields but he was met by Armando who
hit him with a stone, causing Senando to
feel dizzy. Reynaldo, Ricardo, and
Armando cornered their quarry near a
canal and ganged up on him. Armando
placed a can on top of Senandos head
and Ricardo repeatedly struck Senando
with an ax on the head, shoulder, and
hand. At one point, Ricardo lost his hold
on the ax, but somebody tossed him a
bolo and then he continued hacking the
victim who fell on his knees. To shield
him from further violence, Amelia put her
arms around her husband but it was not
enough to detract Ricardo from his
murderous frenzy. Amelia was also hit
on the leg.6
Dr. Maximo Reyes, NBI Senior Medico-
legal officer, declared that on 3 May
1982 he conducted a post mortem
examination on the body of the
deceased Senando Iguico and issued
an Autopsy Report, which contained the
following findings:7 (a) two (2) stab
wounds and nine (9) gaping hack
wounds; and, (b) cause of death was
hemorrhage, acute, profuse, secondary
to multiple stab and hack wounds.
In his defense, accused Ricardo
narrated a different version of the
incident. He testified that at that time he
was fetching water when he heard
somebody shouting: "Saya, saya,
tinataga," referring to his brother
Reynaldo. When he hurried to the place,
he saw his brother Ramon embracing
Senando who was continuously hacking
Reynaldo. Thereafter, Senando shoved
Ramon to the ground and as if further
enraged by the intrusion, he turned his
bolo on the fallen Ramon. Ricardo
screamed, "tama na yan, mga kapatid
ko yan." But the assailant would not be
pacified as he hacked Ramon on the
chest. At this point, Servando,8 the
brother of Senando, threw an axe at him
but Reynaldo picked it up and smashed
Senando with it.
Manuel Flores, another witness for the
defense, gave a substantially similar
version of the story. He testified that on
the fateful day of the incident, while
doing some carpentry work in front of his
mothers house, he saw Senando
Iguico,9 a.k.a. "Bulldog," with a bolo on
hand trailing brothers Reynaldo alias
"Sayas" and Ramon while walking
towards Bagong Bantay. Suddenly,
Senando confronted the two (2) brothers
and started hacking Reynaldo, hitting
him on the head, arm and stomach.
Seeing that his brother was absorbing
fatal blows, Ramon embraced Senando
but the latter shoved him (Ramon) and
directed his fury at him instead. Ricardo
went to the rescue of his brothers but he
too was hacked by Senando.
The trial court disbelieved the version of
accused Ricardo, thus he was found
guilty of homicide in Crim. Case No.
49576 and frustrated homicide in Crim.
Case No. 49577. It reasoned that the
testimony of Amelia Iguico was clear,
positive, straightforward, truthful and
convincing. On the other hand,
according to the trial court, the denial of
Ricardo was self-serving and calculated
to extricate himself from the
predicament he was in. Further, the trial
court added that the wounds allegedly
received by Ricardo in the hands of the
victim, Senando Iguico, if at all there
were any, did not prove that Senando
was the aggressor for the wounds were
inflicted while Senando was in the act of
defending himself from the aggression
of Ricardo and his co-conspirators.10
The Court of Appeals sustained the
conviction of accused Ricardo, giving full
faith to the direct and positive testimony
of Amelia Iguico who pointed to him as
the one who initially axed her husband
Senando on the head, shoulder and
hand.11 While the appellate court upheld
the conviction of Ricardo of homicide for
the death of Senando Iguico, it however
ruled that his conviction for the
wounding of Amelia Iguico, although
likewise upheld, should be for attempted
homicide only. On the wounding of
Amelia, the appellate court had this to
say -12
For while intent to kill was proven,
Amelias hack wound in her left leg was
not proven to be fatal or that it could
have produced her death had there
been no timely medical attention
provided her, hence, the stage of
execution of the felony committed would
only be attempted.
Petitioner now imputes errors to the
Court of Appeals: (a) in not taking into
consideration the fact that petitioner, if
indeed he participated, had acted in
defense of relatives; (b) in giving due
credence to the self-serving and
baseless testimony of Amelia Iguico, the
lone and biased witness for the
prosecution; and, (c) in failing to
consider the several serious physical
injuries sustained by petitioner and his
brother Reynaldo Balunueco.
In a reprise of his stance at the trial,
petitioner argues that assuming he
participated in the killing of Senando, he
acted in defense of his full-blood
relatives: Reynaldo whom he personally
witnessed being boloed by the
deceased in the arms, head and
stomach; and Ramon who also became
a victim of the deceaseds fury after he
was pushed by the deceased and had
fallen to the ground. Under such
circumstances, the act of Senando in
hacking him after he tried to rescue his
brothers, gave rise to a reasonable
necessity for him to use a means to
prevent or repel the unlawful
aggression. Considering further that
there was lack of sufficient provocation
on his part, his acts were therefore
justified under Art. 11, par. (2), of The
Revised Penal Code.
In effect, petitioner invokes the justifying
circumstance of defense of relatives
under Art. 11, par. (2), of The Revised
Penal Code. The essential elements of
this justifying circumstance are the
following: (a) unlawful aggression; (b)
reasonable necessity of the means
employed to prevent or repel it; and, (c)
in case the provocation was given by the
person attacked, the one making the
defense had no part therein.
Of the three (3) requisites of defense of
relatives, unlawful aggression is a
condition sine qua non, for without it any
defense is not possible or justified. In
order to consider that an unlawful
aggression was actually committed, it is
necessary that an attack or material
aggression, an offensive act positively
determining the intent of the aggressor
to cause an injury shall have been
made; a mere threatening or intimidating
attitude is not sufficient to justify the
commission of an act which is
punishable per se, and allow a claim of
exemption from liability on the ground
that it was committed in self-defense or
defense of a relative. It has always been
so recognized in the decisions of the
courts, in accordance with the provisions
of the Penal Code.13
Having admitted the killing of the victim,
petitioner has the burden of proving
these elements by clear and convincing
evidence. He must rely on the strength
of his own evidence and not on the
weakness of that of the prosecution, for
even if the prosecution evidence is weak
it cannot be disbelieved if the accused
has admitted the killing.14
In the case at bar, petitioner Ricardo
utterly failed to adduce sufficient proof of
the existence of a positively strong act of
real aggression on the part of the
deceased Senando. With the exception
of his self-serving allegations, there is
nothing on record that would justify his
killing of Senando.
First, Ricardos theory that when he
reached the crime scene he found
Senando repeatedly hacking his brother
Reynaldo who thereafter retaliated by
smashing an axe on the victims head is
implausible in light of the seriousness of
the wounds sustained by the deceased
as compared to the minor injuries
inflicted upon petitioner and his two (2)
brothers. The fact that three (3) of the
assailants suffered non-fatal injuries
bolsters the fact that Senando tried
vainly to ward off the assaults of his
assailants.
Second, Ricardo failed to present
himself to the authorities. He may have
accompanied the injured Reynaldo to
the hospital after the encounter but still
he failed to present himself to the
authorities and report the matter to
them. The natural impulse of any person
who has killed someone in defense of
his person or relative is to bring himself
to the authorities and try to dispel any
suspicion of guilt that the authorities
might have against him. This fact
assumes a more special significance
considering that his co-accused, Juanito
and Armando, have remained at large.
Third, petitioner had a rather erratic
recollection of people and events. He
vividly remembered how Reynaldo was
injured by Senando but conveniently
failed to recall the events leading to the
fatal wounding of the deceased. At
another point, he testified that Reynaldo
axed Senando but later retracted his
statement by declaring that it was in fact
Senando who hacked Reynaldo. 15 We
observe that the killing occurred within
or near the premises of the deceased.
This proves per adventure the falsity of
petitioners claim that it was Senando,
rather than he and his kin, who had
initiated the unlawful aggression.
On the other hand, private complainant
pointed to petitioner as one of the
principal actors in the slaying of her
husband Senando and the court a quo
found her testimony worthy of belief.
The unbending jurisprudence is that
findings of trial courts on the matter of
credibility of witnesses are entitled to the
highest degree of respect and will not be
disturbed on appeal.16 The lower court
also declared, and we agree, that
private complainants relationship with
the deceased does not disqualify her
from testifying in the criminal case
involving her relative or automatically
sully her testimony with the stain of bias.
On the injuries sustained by Amelia, we
are of the opinion that, contrary to the
finding of the lower court as affirmed by
the appellate court, petitioners
homicidal intent has not been
indubitably established. As held in
People v. Villanueva,17 the intent to kill
being an essential element of the
offense of frustrated or attempted
homicide, said element must be proved
by clear and convincing evidence, and
with the same degree of certainty as
required of the other elements of the
crime. The inference of intent to kill
should not be drawn in the absence of
circumstances sufficient to prove such
intent beyond reasonable doubt.
The facts as borne out by the records do
not warrant a finding that petitioner
intended to kill Amelia. Contrarily, the
circumstances of the instant case
indicate the opposite: (a) that while
petitioner was repeatedly assaulting the
deceased, Amelia embraced her
husband in an attempt to avert further
infliction of pain upon him; and, (b) when
he hit Amelia once on the left leg, a
wound of slight nature, he did not do Ricardo Balunueco is found guilty only
anything more to pursue his homicidal of Slight Physical Injuries for the
urge18 but instead allowed her to scurry wounding of Amelia Iguico, and is
away. This set of details reinforces this accordingly sentenced to suffer a
Courts belief that petitioner had no straight prison term of ten (10) days of
intention of killing Amelia but arresto menor, and to pay the costs.
nonetheless wounded her either SO ORDERED.
because she unwittingly exposed herself
in the so-called "line-of-fire" when she
embraced her husband, or that it was
intended more to deter her from further
interfering. Had killing Amelia actually
crossed petitioners mind, he would
have opted to hit his quarry on the vital
portions of her body or strike her several
times more to attain his objective. But
these he never did.
Considering that the injuries suffered by
Amelia were not necessarily fatal and
required a medical attendance of four
(4) days,19 we hold that the offense
committed by petitioner is only that of
slight physical injuries. Under Art. 266,
par. (1), of The Revised Penal Code,
this is punishable by arresto menor the
duration of which is from one (1) to thirty
(30) days.20
WHEREFORE, the assailed Decision of
the Court of Appeals in Crim. Case No.
49576 finding petitioner Ricardo
Balunueco guilty of Homicide is
AFFIRMED, and there being no
mitigating nor aggravating circumstance,
petitioner is sentenced to an
indeterminate penalty of six (6) years,
two (2) months and ten (10) days of Republic of the Philippines
prision mayor minimum, as minimum, to SUPREME COURT
fourteen (14) years, eight (8) months Manila
and twenty (20) days of reclusion SECOND DIVISION
temporal medium, as maximum. G.R. No. 149275 September 27, 2004
Consistent with prevailing jurisprudence, VICKY C. TY, petitioner,
his civil liability to the heirs of Senando vs.
Iguico is fixed at P50,000.00. The PEOPLE OF THE PHILIPPINES,
assailed Decision in Crim. Case No. respondent.
49577 for Attempted Homicide, on the DECISION
other hand, is MODIFIED. Petitioner TINGA, J.:
Petitioner Vicky C. Ty ("Ty") filed the
instant Petition for Review under Rule
45, seeking to set aside the Decision1 of
the Court of Appeals Eighth Division in
CA-G.R. CR No. 20995, promulgated on
31 July 2001. The Decision affirmed with
modification the judgment of the
Regional Trial Court (RTC) of Manila,
Branch 19, dated 21 April 1997, finding
her guilty of seven (7) counts of violation
of Batas Pambansa Blg. 222 (B.P. 22),
otherwise known as the Bouncing
Checks Law.
This case stemmed from the filing of
seven (7) Informations for violation of
B.P. 22 against Ty before the RTC of
Manila. The Informations were docketed
as Criminal Cases No. 93-130459 to No.
93-130465. The accusatory portion of
the Information in Criminal Case No. 93-
130465 reads as follows:
That on or about May 30, 1993, in the
City of Manila, Philippines, the said
accused did then and there willfully,
unlawfully and feloniously make or draw
and issue to Manila Doctors Hospital to
apply on account or for value to Editha
L. Vecino Check No. Metrobank 487712
dated May 30, 1993 payable to Manila
Doctors Hospital in the amount of
P30,000.00, said accused well knowing
that at the time of issue she did not have
sufficient funds in or credit with the
drawee bank for payment of such check
in full upon its presentment, which check
when presented for payment within
ninety (90) days from the date hereof,
was subsequently dishonored by the
drawee bank for "Account Closed" and
despite receipt of notice of such
dishonor, said accused failed to pay said
Manila Doctors Hospital the amount of
the check or to make arrangement for
full payment of the same within five (5)
banking days after receiving said notice.
Contrary to law.3
The other Informations are similarly
worded except for the number of the
checks and dates of issue. The data are
hereunder itemized as follows:
Check
Criminal Case No. Postdated
No.
93-130459 487710 30 March 1993
93-130460 487711 30 April 1993
93-130461 487709 01 March 1993
93-130462 487707 30 December 1992
93-130463 487706 30 November 1992
93-130464 487708 30 January 1993
93-130465 487712 30 May 1993
The cases were consolidated and jointly
tried. At her arraignment, Ty pleaded not
guilty.5
The evidence for the prosecution shows
that Tys mother Chua Lao So Un was
confined at the Manila Doctors Hospital
(hospital) from 30 October 1990 until 4
June 1992. Being the patients daughter,
Ty signed the "Acknowledgment of
Responsibility for Payment" in the
Contract of Admission dated 30 October
1990.6 As of 4 June 1992, the Statement
of Account7 shows the total liability of the
mother in the amount of P657,182.40.
Tys sister, Judy Chua, was also
confined at the hospital from 13 May
1991 until 2 May 1992, incurring hospital
bills in the amount of P418,410.55.8 The
total hospital bills of the two patients
amounted to P1,075,592.95. On 5 June
1992, Ty executed a promissory note
wherein she assumed payment of the
obligation in installments.9 To assure
payment of the obligation, she drew
several postdated checks against
Metrobank payable to the hospital. The
seven (7) checks, each covering the
amount of P30,000.00, were all
deposited on their due dates. But they
were all dishonored by the drawee bank
and returned unpaid to the hospital due
to insufficiency of funds, with the
"Account Closed" advice. Soon
thereafter, the complainant hospital sent
demand letters to Ty by registered mail.
As the demand letters were not heeded,
complainant filed the seven (7)
Informations subject of the instant
case.10
For her defense, Ty claimed that she
issued the checks because of "an
uncontrollable fear of a greater injury."
She averred that she was forced to
issue the checks to obtain release for
her mother whom the hospital
inhumanely and harshly treated and
would not discharge unless the hospital
bills are paid. She alleged that her
mother was deprived of room facilities,
such as the air-condition unit,
refrigerator and television set, and
subject to inconveniences such as the
cutting off of the telephone line, late
delivery of her mothers food and refusal
to change the latters gown and
bedsheets. She also bewailed the
hospitals suspending medical treatment
of her mother. The "debasing treatment,"
she pointed out, so affected her
mothers mental, psychological and
physical health that the latter
contemplated suicide if she would not be
discharged from the hospital. Fearing
the worst for her mother, and to comply
with the demands of the hospital, Ty was
compelled to sign a promissory note,
open an account with Metrobank and
issue the checks to effect her mothers
immediate discharge.11
Giving full faith and credence to the
evidence offered by the prosecution, the
trial court found that Ty issued the
checks subject of the case in payment of
the hospital bills of her mother and
rejected the theory of the defense. 12
Thus, on 21 April 1997, the trial court
rendered a Decision finding Ty guilty of
seven (7) counts of violation of B.P. 22
and sentencing her to a prison term. The
dispositive part of the Decision reads:
CONSEQUENTLY, the accused Vicky C.
Ty, for her acts of issuing seven (7)
checks in payment of a valid obligation,
which turned unfounded on their
respective dates of maturity, is found
guilty of seven (7) counts of violations of
Batas Pambansa Blg. 22, and is hereby
sentenced to suffer the penalty of
imprisonment of SIX MONTHS per
count or a total of forty-two (42) months.
SO ORDERED.13
Ty interposed an appeal from the
Decision of the trial court. Before the
Court of Appeals, Ty reiterated her
defense that she issued the checks
"under the impulse of an uncontrollable
fear of a greater injury or in avoidance of
a greater evil or injury." She also argued
that the trial court erred in finding her
guilty when evidence showed there was
absence of valuable consideration for
the issuance of the checks and the
payee had knowledge of the
insufficiency of funds in the account.
She protested that the trial court should
not have applied the law mechanically,
without due regard to the principles of
justice and equity.14
In its Decision dated 31 July 2001, the
appellate court affirmed the judgment of
the trial court with modification. It set
aside the penalty of imprisonment and
instead sentenced Ty "to pay a fine of
sixty thousand pesos (P60,000.00)
equivalent to double the amount of the
check, in each case."15
In its assailed Decision, the Court of
Appeals rejected Tys defenses of
involuntariness in the issuance of the
checks and the hospitals knowledge of
her checking accounts lack of funds. It
held that B.P. 22 makes the mere act of
issuing a worthless check punishable as
a special offense, it being a malum
prohibitum. What the law punishes is the
issuance of a bouncing check and not
the purpose for which it was issued nor
the terms and conditions relating to its
issuance.16
Neither was the Court of Appeals
convinced that there was no valuable
consideration for the issuance of the
checks as they were issued in payment
of the hospital bills of Tys mother.17
In sentencing Ty to pay a fine instead of
a prison term, the appellate court
applied the case of Vaca v. Court of
Appeals18 wherein this Court declared
that in determining the penalty imposed
for violation of B.P. 22, the philosophy
underlying the Indeterminate Sentence
Law should be observed, i.e., redeeming
valuable human material and preventing
unnecessary deprivation of personal
liberty and economic usefulness, with
due regard to the protection of the social
order.19
Petitioner now comes to this Court
basically alleging the same issues
raised before the Court of Appeals. More
specifically, she ascribed errors to the
appellate court based on the following
grounds:
A. THERE IS CLEAR AND
CONVINCING EVIDENCE THAT
PETITIONER WAS FORCED TO OR
COMPELLED IN THE OPENING OF
THE ACCOUNT AND THE ISSUANCE
OF THE SUBJECT CHECKS.
B. THE CHECKS WERE ISSUED
UNDER THE IMPULSE OF AN
UNCONTROLLABLE FEAR OF A
GREATER INJURY OR IN AVOIDANCE
OF A GREATER EVIL OR INJURY.
C. THE EVIDENCE ON RECORD
PATENTLY SHOW[S] ABSENCE OF
VALUABLE CONSIDERATION IN THE
ISSUANCE OF THE SUBJECT
CHECKS.
D. IT IS AN UNDISPUTED FACT THAT
THE PAYEE OF THE CHECKS WAS
FULLY AWARE OF THE LACK OF
FUNDS IN THE ACCOUNT.
E. THE HONORABLE COURT OF
APPEALS, AS WELL AS THE
HONORABLE TRIAL COURT [,]
SHOULD NOT HAVE APPLIED
CRIMINAL LAW MECHANICALLY,
WITHOUT DUE REGARD TO THE
PRINCIPLES OF JUSTICE AND
EQUITY.
In its Memorandum,20 the Office of the
Solicitor General (OSG), citing
jurisprudence, contends that a check
issued as an evidence of debt, though
not intended to be presented for
payment, has the same effect as an
ordinary check; hence, it falls within the
ambit of B.P. 22. And when a check is
presented for payment, the drawee bank
will generally accept the same,
regardless of whether it was issued in
payment of an obligation or merely to
guarantee said obligation. What the law
punishes is the issuance of a bouncing
check, not the purpose for which it was
issued nor the terms and conditions
relating to its issuance. The mere act of
issuing a worthless check is malum
prohibitum.21
We find the petition to be without merit
and accordingly sustain Tys conviction.
Well-settled is the rule that the factual
findings and conclusions of the trial
court and the Court of Appeals are
entitled to great weight and respect, and
will not be disturbed on appeal in the
absence of any clear showing that the
trial court overlooked certain facts or
circumstances which would substantially
affect the disposition of the case.22
Jurisdiction of this Court over cases
elevated from the Court of Appeals is
limited to reviewing or revising errors of
law ascribed to the Court of Appeals
whose factual findings are conclusive,
and carry even more weight when said
court affirms the findings of the trial
court, absent any showing that the
findings are totally devoid of support in
the record or that they are so glaringly
erroneous as to constitute serious abuse
of discretion.23
In the instant case, the Court discerns
no compelling reason to reverse the
factual findings arrived at by the trial
court and affirmed by the Court of
Appeals.
Ty does not deny having issued the
seven (7) checks subject of this case.
She, however, claims that the issuance
of the checks was under the impulse of
an uncontrollable fear of a greater injury
or in avoidance of a greater evil or injury.
She would also have the Court believe
that there was no valuable consideration
in the issuance of the checks.
However, except for the defenses claim
of uncontrollable fear of a greater injury
or avoidance of a greater evil or injury,
all the grounds raised involve factual
issues which are best determined by the
trial court. And, as previously intimated,
the trial court had in fact discarded the
theory of the defense and rendered
judgment accordingly.
Moreover, these arguments are a mere
rehash of arguments unsuccessfully
raised before the trial court and the
Court of Appeals. They likewise put to
issue factual questions already passed
upon twice below, rather than questions
of law appropriate for review under a
Rule 45 petition.
The only question of law raised--whether
the defense of uncontrollable fear is
tenable to warrant her exemption from
criminal liability--has to be resolved in
the negative. For this exempting
circumstance to be invoked successfully,
the following requisites must concur: (1)
existence of an uncontrollable fear; (2)
the fear must be real and imminent; and
(3) the fear of an injury is greater than or
at least equal to that committed.24
It must appear that the threat that
caused the uncontrollable fear is of such
gravity and imminence that the ordinary
man would have succumbed to it.25 It
should be based on a real, imminent or
reasonable fear for ones life or limb.26 A
mere threat of a future injury is not
enough. It should not be speculative,
fanciful, or remote.27 A person invoking
uncontrollable fear must show therefore
that the compulsion was such that it
reduced him to a mere instrument acting
not only without will but against his will
as well.28 It must be of such character as
to leave no opportunity to the accused
for escape.29
In this case, far from it, the fear, if any,
harbored by Ty was not real and
imminent. Ty claims that she was
compelled to issue the checks--a
condition the hospital allegedly
demanded of her before her mother
could be discharged--for fear that her
mothers health might deteriorate further
due to the inhumane treatment of the
hospital or worse, her mother might
commit suicide. This is speculative fear;
it is not the uncontrollable fear
contemplated by law.
To begin with, there was no showing that
the mothers illness was so life-
threatening such that her continued stay
in the hospital suffering all its alleged
unethical treatment would induce a well-
grounded apprehension of her death.
Secondly, it is not the laws intent to say
that any fear exempts one from criminal
liability much less petitioners flimsy fear
that her mother might commit suicide. In
other words, the fear she invokes was
not impending or insuperable as to
deprive her of all volition and to make
her a mere instrument without will,
moved exclusively by the hospitals
threats or demands.
Ty has also failed to convince the Court
that she was left with no choice but to
commit a crime. She did not take
advantage of the many opportunities
available to her to avoid committing one.
By her very own words, she admitted
that the collateral or security the hospital
required prior to the discharge of her
mother may be in the form of postdated
checks or jewelry.30 And if indeed she
was coerced to open an account with
the bank and issue the checks, she had
all the opportunity to leave the scene to
avoid involvement.
Moreover, petitioner had sufficient
knowledge that the issuance of checks
without funds may result in a violation of
B.P. 22. She even testified that her
counsel advised her not to open a
current account nor issue postdated
checks "because the moment I will not
have funds it will be a big problem."31
Besides, apart from petitioners bare
assertion, the record is bereft of any
evidence to corroborate and bolster her
claim that she was compelled or
coerced to cooperate with and give in to
the hospitals demands.
Ty likewise suggests in the prefatory
statement of her Petition and
Memorandum that the justifying
circumstance of state of necessity under
par. 4, Art. 11 of the Revised Penal
Code may find application in this case.
We do not agree. The law prescribes the
presence of three requisites to exempt
the actor from liability under this
paragraph: (1) that the evil sought to be
avoided actually exists; (2) that the
injury feared be greater than the one
done to avoid it; (3) that there be no
other practical and less harmful means
of preventing it.32
In the instant case, the evil sought to be
avoided is merely expected or
anticipated. If the evil sought to be
avoided is merely expected or
anticipated or may happen in the future,
this defense is not applicable.33 Ty could
have taken advantage of an available
option to avoid committing a crime. By
her own admission, she had the choice
to give jewelry or other forms of security
instead of postdated checks to secure
her obligation.
Moreover, for the defense of state of
necessity to be availing, the greater
injury feared should not have been
brought about by the negligence or
imprudence, more so, the willful inaction
of the actor.34 In this case, the issuance
of the bounced checks was brought
about by Tys own failure to pay her
mothers hospital bills.
The Court also thinks it rather odd that
Ty has chosen the exempting
circumstance of uncontrollable fear and
the justifying circumstance of state of
necessity to absolve her of liability. It
would not have been half as bizarre had
Ty been able to prove that the issuance
of the bounced checks was done without
her full volition. Under the
circumstances, however, it is quite clear
that neither uncontrollable fear nor
avoidance of a greater evil or injury
prompted the issuance of the bounced
checks.
Parenthetically, the findings of fact in the
Decision of the trial court in the Civil
Case35 for damages filed by Tys mother
against the hospital is wholly irrelevant
for purposes of disposing the case at
bench. While the findings therein may
establish a claim for damages which, we
may add, need only be supported by a
preponderance of evidence, it does not
necessarily engender reasonable doubt
as to free Ty from liability.
As to the issue of consideration, it is
presumed, upon issuance of the checks,
in the absence of evidence to the
contrary, that the same was issued for
valuable consideration.36 Section 2437 of
the Negotiable Instruments Law creates
a presumption that every party to an
instrument acquired the same for a
consideration38 or for value.39 In alleging
otherwise, Ty has the onus to prove that
the checks were issued without
consideration. She must present
convincing evidence to overthrow the
presumption.
A scrutiny of the records reveals that
petitioner failed to discharge her burden
of proof. "Valuable consideration may in
general terms, be said to consist either
in some right, interest, profit, or benefit
accruing to the party who makes the
contract, or some forbearance,
detriment, loss or some responsibility, to
act, or labor, or service given, suffered
or undertaken by the other aide. Simply
defined, valuable consideration means
an obligation to give, to do, or not to do
in favor of the party who makes the
contract, such as the maker or
indorser."40
In this case, Tys mother and sister
availed of the services and the facilities
of the hospital. For the care given to her
kin, Ty had a legitimate obligation to pay
the hospital by virtue of her relationship
with them and by force of her signature
on her mothers Contract of Admission
acknowledging responsibility for
payment, and on the promissory note
she executed in favor of the hospital.
Anent Tys claim that the obligation to
pay the hospital bills was not her
personal obligation because she was
not the patient, and therefore there was
no consideration for the checks, the
case of Bridges v. Vann, et al.41 tells us
that "it is no defense to an action on a
promissory note for the maker to say
that there was no consideration which
was beneficial to him personally; it is
sufficient if the consideration was a
benefit conferred upon a third person, or
a detriment suffered by the promisee, at
the instance of the promissor. It is
enough if the obligee foregoes some
right or privilege or suffers some
detriment and the release and
extinguishment of the original obligation
of George Vann, Sr., for that of
appellants meets the requirement.
Appellee accepted one debtor in place
of another and gave up a valid,
subsisting obligation for the note
executed by the appellants. This, of
itself, is sufficient consideration for the
new notes."
At any rate, the law punishes the mere
act of issuing a bouncing check, not the
purpose for which it was issued nor the
terms and conditions relating to its
issuance.42 B.P. 22 does not make any
distinction as to whether the checks
within its contemplation are issued in
payment of an obligation or to merely
guarantee the obligation.43 The thrust of
the law is to prohibit the making of
worthless checks and putting them into
circulation.44 As this Court held in Lim v.
People of the Philippines,45 "what is
primordial is that such issued checks
were worthless and the fact of its
worthlessness is known to the appellant
at the time of their issuance, a required
element under B.P. Blg. 22."
The law itself creates a prima facie
presumption of knowledge of
insufficiency of funds. Section 2 of B.P.
22 provides:
Section 2. Evidence of knowledge of
insufficient funds. - The making, drawing
and issuance of a check payment of
which is refused by the drawee bank
because of insufficient funds in or credit
with such bank, when presented within
ninety (90) days from the date of the
check, shall be prima facie evidence of
knowledge of such insufficiency of funds
or credit unless such maker or drawer
pays the holder thereof the amount due
thereon, or makes arrangements for
payment in full by the drawee of such
check within five (5) banking days after
receiving notice that such check has not
been paid by the drawee.
Such knowledge is legally presumed
from the dishonor of the checks for
insufficiency of funds.46 If not rebutted, it
suffices to sustain a conviction.47
Petitioner likewise opines that the payee
was aware of the fact that she did not
have sufficient funds with the drawee
bank and such knowledge necessarily
exonerates her liability.
The knowledge of the payee of the
insufficiency or lack of funds of the
drawer with the drawee bank is
immaterial as deceit is not an essential
element of an offense penalized by B.P.
22. The gravamen of the offense is the
issuance of a bad check, hence, malice
and intent in the issuance thereof is
inconsequential.48
In addition, Ty invokes our ruling in
Magno v. Court of Appeals49 wherein this
Court inquired into the true nature of
transaction between the drawer and the
payee and finally acquitted the accused,
to persuade the Court that the
circumstances surrounding her case
deserve special attention and do not
warrant a strict and mechanical
application of the law.
Petitioners reliance on the case is
misplaced. The material operative facts
therein obtaining are different from those
established in the instant petition. In the
1992 case, the bounced checks were
issued to cover a "warranty deposit" in a
lease contract, where the lessor-supplier
was also the financier of the deposit. It
was a modus operandi whereby the
supplier was able to sell or lease the
goods while privately financing those in
desperate need so they may be
accommodated. The maker of the check
thus became an unwilling victim of a
lease agreement under the guise of a
lease-purchase agreement. The maker
did not benefit at all from the deposit,
since the checks were used as collateral
for an accommodation and not to cover
the receipt of an actual account or credit
for value.
In the case at bar, the checks were
issued to cover the receipt of an actual
"account or for value." Substantial
evidence, as found by the trial court and
Court of Appeals, has established that
the checks were issued in payment of
the hospital bills of Tys mother.
Finally, we agree with the Court of
Appeals in deleting the penalty of
imprisonment, absent any proof that
petitioner was not a first-time offender
nor that she acted in bad faith.
Administrative Circular 12-2000,50
adopting the rulings in Vaca v. Court of
Appeals51 and Lim v. People,52
authorizes the non-imposition of the
penalty of imprisonment in B.P. 22 cases
subject to certain conditions. However,
the Court resolves to modify the penalty
in view of Administrative Circular 13-
200153 which clarified Administrative 12-
2000. It is stated therein:
The clear tenor and intention of
Administrative Circular No. 12-2000 is
not to remove imprisonment as an
alternative penalty, but to lay down a
rule of preference in the application of
the penalties provided for in B.P. Blg. 22.
Thus, Administrative Circular 12-2000
establishes a rule of preference in the cases at bar with subsidiary
application of the penal provisions of imprisonment in case of insolvency in
B.P. Blg. 22 such that where the accordance with Article 39 of the
circumstances of both the offense and Revised Penal Code. She is also
the offender clearly indicate good faith ordered to pay private complainant,
or a clear mistake of fact without taint of Manila Doctors Hospital, the amount of
negligence, the imposition of a fine Two Hundred Ten Thousand Pesos
alone should be considered as the more (P210,000.00) representing the total
appropriate penalty. Needless to say, amount of the dishonored checks. Costs
the determination of whether against the petitioner.
circumstances warrant the imposition of SO ORDERED.
a fine alone rests solely upon the Judge.
Should the judge decide that
imprisonment is the more appropriate
penalty, Administrative Circular No. 12-
2000 ought not be deemed a hindrance.
It is therefore understood that: (1)
Administrative Circular 12-2000 does
not remove imprisonment as an
alternative penalty for violations of B.P.
22; (2) the judges concerned may, in the
exercise of sound discretion, and taking
into consideration the peculiar
circumstances of each case, determine
whether the imposition of a fine alone
would best serve the interests of justice,
or whether forbearing to impose
imprisonment would depreciate the
seriousness of the offense, work
violence on the social order, or
otherwise be contrary to the imperatives
of justice; (3) should only a fine be
imposed and the accused unable to pay
the fine, there is no legal obstacle to the
application of the Revised Penal Code
provisions on subsidiary imprisonment.54
WHEREFORE, the instant Petition is
DENIED and the assailed Decision of [G.R. No. 132547. September 20,
the Court of Appeals, dated 31 July 2000]
2001, finding petitioner Vicky C. Ty PEOPLE OF THE PHILIPPINES,
GUILTY of violating Batas Pambansa plaintiff-appellee, vs. SPO1 ERNESTO
Bilang 22 is AFFIRMED with ULEP, accused-appellant.
MODIFICATIONS. Petitioner Vicky C. Ty DECISION
is ORDERED to pay a FINE equivalent BELLOSILLO, J.:
to double the amount of each In the aftermath of an incident
dishonored check subject of the seven where a certain Buenaventura Wapili [if !
supportFootnotes][1][endif]
went berserk at Mundog
Subdivision, Poblacion Kidapawan,
Cotabato, in the early morning of 22
December 1995, Police Officer Ernesto
Ulep was found guilty of murder and
sentenced to death by the trial court for
killing Wapili. Ulep was also ordered to
indemnify the heirs of the victim in the
amount of P50,000.00 and to pay the
costs.[if !supportFootnotes][2][endif]
The evidence shows that at around
two o' clock in the morning of 22
December 1995 Buenaventura Wapili
was having a high fever and was heard
talking insensibly to himself in his room.
His brother-in-law, Dario Leydan,
convinced him to come out of his room
and talk to him, but Wapili told Leydan
that he could not really understand
himself. After a while, Wapili went back
to his room and turned off the lights.
Moments later, the lights went on again
and Leydan heard a disturbance inside
the room, as if Wapili was smashing the
furniture.[if !supportFootnotes][3][endif] Unable to
pacify Wapili, Leydan called Pastor
Bonid of the Alliance Church of
Kidapawan to help him "pray over"
Wapili, but they could not enter the
latter's room as he became wild and
violent. Suddenly, Wapili bolted out of
his room naked and chased Leydan.
Thereafter, Leydan with the aid of two
(2) of his neighbors attempted to tie
Wapili with a rope but was unsuccessful
as Wapili was much bigger in built and
stronger than anyone of them.[if !
supportFootnotes][4][endif]
Wapili, who appeared to
have completely gone crazy, kept on
running without any particular direction.
Thus, Leydan went to the house of
policewoman Norma Plando, a neighbor,
and asked for assistance. As Wapili
passed by the house of Plando, he
banged Plando's vehicle parked outside.
Using a hand-held radio, Plando then
contacted SPO1 Ernesto Ulep, SPO1
Edilberto Espadera and SPO2 Crispin
Pillo, all members of the PNP assigned
to secure the premises of the nearby
Roman Catholic Church of Kidapawan.[if !
supportFootnotes][5][endif]
At around four o'clock in the
morning of the same day, SPO1 Ulep
together with SPO1 Espadera and
SPO2 Pillo arrived at the scene on
board an Anfra police service jeep. The
three (3) police officers, all armed with
M-16 rifles, alighted from the jeep when
they saw the naked Wapili approaching
them. The kind of weapon Wapili was
armed with is disputed. The police
claimed that he was armed with a bolo
and a rattan stool, while Wapili's
relatives and neighbors said he had no
bolo, but only a rattan stool.
SPO1 Ulep fired a warning shot in
the air and told Wapili to put down his
weapons or they would shoot him. But
Wapili retorted "pusila!" ("fire!") and
continued advancing towards the police
officers. When Wapili was only about
two (2) to three (3) meters away from
them, SPO1 Ulep shot the victim with
his M-16 rifle, hitting him in various parts
of his body. As the victim slumped to the
ground, SPO1 Ulep came closer and
pumped another bullet into his head and
literally blew his brains out. [if !supportFootnotes]
[6][endif]
The post mortem examination of
the body conducted by Dr. Roberto A.
Omandac, Municipal Health Officer of
Kidapawan, showed that Wapili
sustained five (5) gunshot wounds: one
(1) on the right portion of the head, one
(1) on the right cheek, one (1) on the
abdomen and two (2) on the right thigh:
SHEENT - gunshot wound on the right
parietal area with fractures of the right
temporoparietal bones with evisceration
of brain tissues, right zygomatic bone
and right mandible, lateral aspect;
CHEST AND BACK - with powder burns
on the right posterior chest; ABDOMEN -
gunshot wound on the right upper
quadrant measuring 0.5 cm. in diameter
(point of entry) with multiple powder
burns around the wound and on the right
lumbar area (point of exit). Gunshot
wound on the suprapubic area (point of
entry); EXTREMETIES - with gunshot
wounds on the right thigh, upper third,
anterior aspect measuring 0.5 cm. in
diameter with powder burns (point of
entry) and right buttocks measuring 0.5
cm. in diameter (point of exit); gunshot
wound on the right thigh, upper third,
posterolateral aspect; CAUSE OF
DEATH - multiple gunshot wounds. [if !
supportFootnotes][7][endif]
Dr. Omandac concluded that the
shots were fired at close range, perhaps
within twenty-four (24) inches, judging
from the powder burns found around
some of the wounds in the body of the
victim,[if !supportFootnotes][8][endif] and that the
wound in the head, which caused the
victim's instantaneous death, was
inflicted while "the victim was in a lying
position."[if !supportFootnotes][9][endif]
The Office of the Ombudsman for
the Military filed an Information for
murder against SPO1 Ulep. The
accused pleaded not guilty to the charge
on arraignment, and insisted during the
trial that he acted in self-defense.
However, on 28 October 1997, the trial
court rendered judgment convicting the
accused of murder and sentencing him
to death -
The means employed by the accused to
prevent or repel the alleged aggression
is not reasonable because the victim,
Buenaventura Wapili, was already on
the ground, therefore, there was no
necessity for the accused to pump
another shot on the back portion of the
victim's head. Clearly the gravity of the
wounds sustained by the victim belies
the pretension of the accused that he
acted in self-defense. It indicates his
determined effort to kill the victim. It is
established that accused (sic) was
already in the ground that would no
longer imperil the accused's life. The
most logical option open to the accused
was to inflict on the victim such injury
that would prevent the victim from
further harming him. The court is not
persuaded by the accused's version
because if it is true that the victim
attacked him and his life was
endangered - yet his two (2)
companions SPO1 Espadera and SPO2
Pillo did not do anything to help him but
just witness the incident - which is
unbelievable and unnatural behavior of
police officers x x x x
WHEREFORE, prescinding from the
foregoing, judgment is hereby rendered
finding the accused Ernesto Ulep guilty
beyond reasonable doubt of the crime of
Murder, the accused is hereby
sentenced to suffer the extreme penalty
of Death, to indemnify the heirs of
Buenaventura Wapili the amount of
P50,000.00 without subsidiary
imprisonment in case of insolvency and
to pay the costs.
Death penalty having been
imposed by the trial court, the case is
now before us on automatic review.
Accused-appellant prays for his acquittal
mainly on the basis of his claim that the
killing of the victim was in the course of
the performance of his official duty as a
police officer, and in self-defense.
Preliminarily, having admitted the
killing of Wapili, accused-appellant
assumed the burden of proving legal
justification therefor. He must establish
clearly and convincingly how he acted in
fulfillment of his official duty and/or in
complete self-defense, as claimed by
him; otherwise, he must suffer all the
consequences of his malefaction. He
has to rely on the quantitative and
qualitative strength of his own evidence,
not on the weakness of the prosecution;
for even if it were weak it could not be
disbelieved after he had admitted the
killing.[if !supportFootnotes][10][endif]
Before the justifying circumstance
of fulfillment of a duty under Art. 11, par.
5, of The Revised Penal Code may be
successfully invoked, the accused must
prove the presence of two (2) requisites,
namely, that he acted in the
performance of a duty or in the lawful
exercise of a right or an office, and that
the injury caused or the offense
committed be the necessary
consequence of the due performance of
duty or the lawful exercise of such right
or office. The second requisite is lacking
in the instant case.
Accused-appellant and the other
police officers involved originally set out
to perform a legal duty: to render police
assistance, and restore peace and order
at Mundog Subdivision where the victim
was then running amuck. There were
two (2) stages of the incident at Mundog
Subdivision. During the first stage, the
victim threatened the safety of the police
officers by menacingly advancing
towards them, notwithstanding accused-
appellant's previous warning shot and
verbal admonition to the victim to lay
down his weapon or he would be shot.
As a police officer, it is to be expected
that accused-appellant would stand his
ground. Up to that point, his decision to
respond with a barrage of gunfire to halt
the victim's further advance was justified
under the circumstances. After all, a
police officer is not required to afford the
victim the opportunity to fight back.
Neither is he expected - when hard
pressed and in the heat of such an
encounter at close quarters - to pause
for a long moment and reflect coolly at
his peril, or to wait after each blow to
determine the effects thereof.
However, while accused-appellant
is to be commended for promptly
responding to the call of duty when he
stopped the victim from his potentially
violent conduct and aggressive
behavior, he cannot be exonerated from
overdoing his duty during the second
stage of the incident - when he fatally
shot the victim in the head, perhaps in
his desire to take no chances, even after
the latter slumped to the ground due to
multiple gunshot wounds sustained
while charging at the police officers.
Sound discretion and restraint dictated
that accused-appellant, a veteran
policeman,[if !supportFootnotes][11][endif] should
have ceased firing at the victim the
moment he saw the latter fall to the
ground. The victim at that point no
longer posed a threat and was already
incapable of mounting an aggression
against the police officers. Shooting him
in the head was obviously unnecessary.
As succinctly observed by the trial court
-
Once he saw the victim he fired a
warning shot then shot the victim hitting
him on the different parts of the body
causing him to fall to the ground and in
that position the accused shot the victim
again hitting the back portion of the
victim's head causing the brain to
scatter on the ground x x x x the victim,
Buenaventura Wapili, was already on
the ground. Therefore, there was no
necessity for the accused to pump
another shot on the back portion of the
victim's head.
It cannot therefore be said that the
fatal wound in the head of the victim was
a necessary consequence of accused-
appellant's due performance of a duty or
the lawful exercise of a right or office.
Likewise, the evidence at hand
does not favor his claim of self-defense.
The elements in order for self-defense to
be appreciated are: (a) unlawful
aggression on the part of the person
injured or killed by the accused; (b)
reasonable necessity of the means
employed to prevent or repel it; and, (c)
lack of sufficient provocation on the part
of the person defending himself.[if !
supportFootnotes][12][endif]
The presence of unlawful
aggression is a condition sine qua non.
There can be no self-defense, complete
or incomplete, unless the victim has
committed an unlawful aggression
against the person defending himself.[if !
supportFootnotes][13][endif]
In the present case, the
records show that the victim was lying in
a prone position on the ground -
bleeding from the bullet wounds he
sustained, and possibly unconscious -
when accused-appellant shot him in the
head. The aggression that was initially
begun by the victim already ceased
when accused-appellant attacked him.
From that moment, there was no longer
any danger to his life.
This Court disagrees with the
conclusion of the court a quo that the
killing of Wapili by accused-appellant
was attended by treachery, thus
qualifying the offense to murder. We
discern nothing from the evidence that
the assault was so sudden and
unexpected and that accused-appellant
deliberately adopted a mode of attack
intended to insure the killing of Wapili,
without the victim having the opportunity
to defend himself.
On the contrary, the victim could
not have been taken by surprise as he
was given more than sufficient warning
by accused-appellant before he was
shot, i.e., accused-appellant fired a
warning shot in the air, and specifically
ordered him to lower his weapons or he
would be shot. The killing of Wapili was
not sought on purpose. Accused-
appellant went to the scene in
pursuance of his official duty as a police
officer after having been summoned for
assistance. The situation that the victim,
at the time accused-appellant shot him
in the head, was prostrate on the ground
is of no moment when considering the
presence of treachery. The decision to
kill was made in an instant and the
victim's helpless position was merely
incidental to his having been previously
shot by accused-appellant in the
performance of his official duty.
There is treachery when the
offender commits any of the crimes
against persons, employing means,
methods, or forms in the execution
thereof which tend directly and specially
to insure its execution, without risk to
himself arising from the defense which
the offended party might make.[if !
supportFootnotes][14][endif]
Considering the rule
that treachery cannot be inferred but
must be proved as fully and convincingly
as the crime itself, any doubt as to its
existence must be resolved in favor of
accused-appellant. Accordingly, for
failure of the prosecution to prove
treachery to qualify the killing to murder,
accused-appellant may only be
convicted of homicide.
Indeed, to hold him criminally liable
for murder and sentence him to death
under the circumstances would certainly
have the effect of demoralizing other
police officers who may be called upon
to discharge official functions under
similar or identical conditions. We would
then have a dispirited police force who
may be half-hearted, if not totally
unwilling, to perform their assigned
duties for fear that they would suffer the
same fate as that of accused-appellant.
This brings us to the imposition of
the proper penalty.
We find in favor of accused-
appellant the incomplete justifying
circumstance of fulfillment of a duty or
lawful exercise of a right. Under Art. 69
of The Revised Penal Code, "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 Arts. 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."
Incomplete justification is a special
or privileged mitigating circumstance,
which, not only cannot be offset by
aggravating circumstances but also
reduces the penalty by one or two
degrees than that prescribed by law.[if !
supportFootnotes][15][endif]
Undoubtedly, the
instant case would have fallen under Art.
11, par. 5 of The Revised Penal Code
had the two (2) conditions therefor
concurred which, to reiterate: first, that
the accused acted in the performance of
a duty or the lawful exercise of a right or
office; and second, 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. But here, only the first
condition was fulfilled. Hence, Art. 69 is
applicable, although its "that the majority
of such conditions be present," is
immaterial since there are only two (2)
conditions that may be taken into
account under Art. 11, par. 5. Article 69
is obviously in favor of the accused as it
provides for a penalty lower than that
prescribed by law when the crime
committed is not wholly justifiable. The
intention of the legislature, obviously, is
to mitigate the penalty by reason of the
diminution of either freedom of action,
intelligence, or intent, or of the lesser
perversity of the offender.[if !supportFootnotes][16]
[endif]
We likewise credit in favor of
accused-appellant the mitigating
circumstance of voluntary surrender.
The police blotter of Kidapawan
Municipal Police Station shows that
immediately after killing Wapili, accused-
appellant reported to the police
headquarters and voluntarily
surrendered himself.[if !supportFootnotes][17][endif]
Article 249 of The Revised Penal
Code prescribes for the crime of
homicide the penalty of reclusion
temporal, the range of which is twelve
(12) years and one (1) day to twenty
(20) years. There being an incomplete
justifying circumstance of fulfillment of a
duty, the penalty should be one (1)
degree lower, i.e., from reclusion
temporal to prision mayor, pursuant to
Art. 69, in relation to Art. 61, par. 2, and
Art. 71, of the Code, to be imposed in its
minimum period since accused-
appellant voluntarily surrendered to the
authorities and there was no
aggravating circumstance to offset this
mitigating circumstance. Applying the
Indeterminate Sentence Law, the
maximum of the penalty shall be taken
from the minimum period of prision
mayor, the range of which is six (6)
years and one (1) day to eight (8) years,
while the minimum shall be taken from
the penalty next lower in degree which is
prision correccional, in any of its
periods, the range of which is six (6)
months and one (1) day to six (6) years.
 The right to kill an offender is not SO ORDERED.
absolute, and may be used only as a
last resort, and under circumstances
indicating that the offender cannot
otherwise be taken without bloodshed.
The law does not clothe police officers
with authority to arbitrarily judge the
necessity to kill.[if !supportFootnotes][18][endif] It may
be true that police officers sometimes
find themselves in a dilemma when
pressured by a situation where an
immediate and decisive, but legal, action
is needed. However, it must be stressed
that the judgment and discretion of
police officers in the performance of
their duties must be exercised neither
capriciously nor oppressively, but within
reasonable limits. In the absence of a
clear and legal provision to the contrary,
they must act in conformity with the
dictates of a sound discretion, and within
the spirit and purpose of the law.[if !
supportFootnotes][19][endif]
We cannot
countenance trigger-happy law
enforcement officers who
indiscriminately employ force and
violence upon the persons they are
apprehending. They must always bear in
mind that although they are dealing with
criminal elements against whom society
must be protected, these criminals are
also human beings with human rights.
WHEREFORE, the appealed Judgment
is MODIFIED. Accused-appellant SPO1
ERNESTO ULEP is found guilty of
HOMICIDE, instead of Murder, and is
sentenced to an indeterminate prison
term of four (4) years, two (2) months
and ten (10) days of prision correccional
medium as minimum, to six (6) years,
four (4) months and twenty (20) days of Republic of the Philippines
prision mayor minimum as maximum. SUPREME COURT
He is further ordered to indemnify the Manila
heirs of Buenaventura Wapili in the EN BANC
amount of P50,000.00, and to pay the
costs. G.R. Nos. 103501-03 February 17,
 1997
LUIS A. TABUENA, petitioner,
vs.
HONORABLE SANDIGANBAYAN, and
THE PEOPLE OF THE PHILIPPINES,
respondents.
G.R. No. 103507 February 17, 1997
ADOLFO M. PERALTA, petitioner,
vs.
HON. SANDIGANBAYAN (First
Division), and THE PEOPLE OF THE
PHILIPPINES, represented by the
OFFICE OF THE SPECIAL
PROSECUTOR, respondents.
FRANCISCO, J.:
Through their separate petitions for
review, 1 Luis A. Tabuena and Adolfo M.
Peralta (Tabuena and Peralta, for short)
appeal the Sandiganbayan decision
dated October 12, 1990, 2 as well as the
Resolution dated December 20. 1991 3
denying reconsideration, convicting
them of malversation under Article 217
of the Revised Penal Code. Tabuena
and Peralta were found guilty beyond
reasonable doubt Of having malversed
the total amount of P55 Million of the
Manila International Airport Authority
(MIAA) funds during their incumbency
as General Manager and Acting Finance
Services Manager, respectively, of
MIAA, and were thus meted the
following sentence:
(1) In Criminal Case No. 11758, accused
Luis A. Tabuena is sentenced to suffer
the penalty of imprisonment of
seventeen (17) years and one (1) day of
reclusion temporal as minimum to
twenty (20) years of reclusion temporal
as maximum, and to pay a fine of
TWENTY-FIVE MILLION PESOS
(P25,000,000.00), the amount
malversed. He shall also reimburse the
Manila International Airport Authority the
sum of TWENTY-FIVE MILLION PESOS
(P25,000,000.00).
In addition, he shall suffer the penalty of
perpetual special disqualification from
public office,
(2) In Criminal Case No. 11759, accused
Luis A. Tabuena is sentenced to suffer
the penalty of imprisonment of
seventeen (17) years and one (1) day of
reclusion temporal as minimum, and
twenty (20) years of reclusion temporal
as maximum, and to pay a fine of
TWENTY-FIVE MILLION PESOS
(P25,000,000.00), the amount
malversed. He shall also reimburse the
Manila International Airport Authority the
sum of TWENTY-FIVE MILLION PESOS
(P25,000,000.00).
In addition, he shall suffer the penalty of
perpetual special disqualification from
public office.
(3) In Criminal Case No. 11760, accused
Luis A. Tabuena and Adolfo M. Peralta
are each sentenced to suffer the penalty
of imprisonment of seventeen (17) years
and one (1) day of reclusion temporal as
minimum and twenty (20) years of
reclusion temporal as maximum and for
each of them to pay separately a fine of
FIVE MILLION PESOS (P5,000,000.00)
the amount malversed. They shall also
reimburse jointly and severally the
Manila International Airport Authority the
sum of FIVE MILLION PESOS
(P5,000,000.00).
In addition, they shall both suffer the
penalty of perpetual special
disqualification from public office.
A co-accused of Tabuena and Peralta
was Gerardo G. Dabao, then Assistant
General Manager of MIAA, has
remained at large.
There were three (3) criminal cases filed
(nos. 11758, 11759 and 11760) since the
total amount of P55 Million was taken on
three (3) separate dates of January,
1986. Tabuena appears as the principal
accused he being charged in all three
(3) cases. The amended informations in
criminal case nos. 11758, 11759 and
11760 respectively read:
That on or about the 16th day of
January, 1986, and for sometime
subsequent thereto, in the City of Pasay,
Philippines, and within the jurisdiction of
this Honorable Court, accused Luis A.
Tabuena and Gerardo G. Dabao, both
public officers, being then the General
Manager and Assistant General
Manager, respectively, of the Manila
International Airport Authority (MIAA),
and accountable for public funds
belonging to the MIAA, they being the
only ones authorized to make
withdrawals against the cash accounts
of MIAA pursuant to its board
resolutions, conspiring, confederating
and confabulating with each other, did
then and there wilfully, unlawfully,
feloniously, and with intent to defraud
the government, take and
misappropriate the amount of TWENTY
FIVE MILLION PESOS
(P25,000,000.00) from MIAA funds by
applying for the issuance of a manager's
check for said amount in the name of
accused Luis A. Tabuena chargeable
against MIAA's Savings Account No.
274-500-354-3 in the PNB Extension
Office at the Manila International Airport
in Pasay City, purportedly as partial
payment to the Philippine National
Construction Corporation (PNCC), the
mechanics of which said accused
Tabuena would personally take care of,
when both accused well knew that there
was no outstanding obligation of MIAA in
favor of PNCC, and after the issuance of
the above-mentioned manager's check,
accused Luis A. Tabuena encashed the
same and thereafter both accused
misappropriated and converted the
proceeds thereof to their personal use
and benefit, to the damage and
prejudice of the government in the
aforesaid amount.
CONTRARY TO LAW.
xxx xxx xxx
That on or about the 16th day of
January, 1986, and for sometime
subsequent thereto, in the City of Pasay.
Philippines and within the jurisdiction of
this Honorable Court, accused Luis A.
Tabuena and Gerardo G. Dabao, both
public officers, being then the General
Manager and Assistant General
Manager, respectively, of the Manila
International Airport Authority (MIAA),
and accountable for public funds
belonging to the MIAA, they being the
only ones authorized to make
withdrawals against the cash accounts
of MIAA pursuant to its board
resolutions, conspiring, confederating
and confabulating with each other, did
then and there wilfully, unlawfully,
feloniously, and with intent to defraud
the government, take and
misappropriate the amount of TWENTY
FIVE MILLION PESOS
(P25,000,000.00) from MIAA funds by
applying for the issuance of a manager.s
check for said amount in the name of
accused Luis A. Tabuena chargeable
against MIAA's Savings Account No.
274-500-354-3 in the PNB Extension
Office at the Manila International Airport
in Pasay City, purportedly as partial
payment to the Philippine National
Construction Corporation (PNCC), the
mechanics of which said accused
Tabuena would personally take care of,
when both accused well knew that there
was no outstanding obligation of MIAA in
favor of PNCC, and after the issuance of
the above-mentioned manager's check,
accused Luis A. Tabuena encashed the
same and thereafter both accused
misappropriated and converted the
proceeds thereof to their personal use
and benefit, to the damage and
prejudice of the government in the
aforesaid amount.
CONTRARY TO LAW.
xxx xxx xxx
That on or about the 29th day of
January, 1986, and for sometime
subsequent thereto, in the City of Pasay,
Philippines, and within the jurisdiction of
this Honorable Court, accused Luis A.
Tabuena and Adolfo M. Peralta, both
public officers, being then the General
Manager and Acting Manager, Financial
Services Department, respectively, of
the Manila International Airport Authority
(MIAA), and accountable for public
funds belonging to the MIAA, they being
the only ones authorized to make
withdrawals against the cash accounts
of MIAA pursuant to its board
resolutions, conspiring, confederating
and confabulating with each other, did
then and there wilfully, unlawfully,
feloniously, and with intent to defraud
the government, take and
misappropriate the amount of FIVE
MILLION PESOS (P5,000,000.00) from
MIAA funds by applying for the issuance
of a manager's check for said amount in
the name of accused Luis A. Tabuena
chargeable against MIAA's Savings
Account No. 274-500- 354-3 in the PNB
Extension Office at the Manila
International Airport in Pasay City,
purportedly as partial payment to the
Philippine National Construction
Corporation (PNCC), the mechanics of
which said accused Tabuena would
personally take care of, when both
accused well knew that there was no
outstanding obligation of MIAA in favor
of PNCC, and after the issuance of the
above-mentioned manager's check,
accused Luis A. Tabuena encashed the
same and thereafter both accused
misappropriated and converted the
proceeds thereof to their personal use
and benefit, to the damage and
prejudice of the government in the
aforesaid amount.
CONTRARY TO LAW.
Gathered from the documentary and
testimonial evidence are the following
essential antecedents:
Then President Marcos instructed
Tabuena over the phone to pay directly
to the president's office and in cash what
the MIAA owes the Philippine National
Construction Corporation (PNCC), to
which Tabuena replied, "Yes, sir, I will
do it." About a week later, Tabuena
received from Mrs. Fe Roa-Gimenez,
then private secretary of Marcos, a
Presidential Memorandum dated
January 8, 1986 (hereinafter referred to
as MARCOS Memorandum) reiterating
in black and white such verbal
instruction, to wit:
Office of the President
of the Philippines
Malacanang
January 8, 1986
MEMO TO: The General Manager
Manila International Airport Authority
You are hereby directed to pay
immediately the Philippine National
Construction Corporation, thru this
Office, the sum of FIFTY FIVE MILLION
(P55,000,000.00) PESOS in cash as
partial payment of MIAA's account with
said Company mentioned in a
Memorandum of Minister Roberto
Ongpin to this Office dated January 7,
1985 and duly approved by this Office
on February 4, 1985.
Your immediate compliance is
appreciated.
(Sgd.) FERDINAND MARCOS. 4
The January 7, 1985 memorandum of
then Minister of Trade and Industry
Roberto Ongpin referred to in the
MARCOS Memorandum, reads in full:
MEMORANDUM
For: The President
From: Minister Roberto V. Ongpin
Date: 7 January 1985
Subject: Approval of Supplemental
Contracts and Request for Partial
Deferment of Repayment of PNCC's
Advances for MIA Development Project
May I request your approval of the
attached recommendations of Minister
Jesus S. Hipolito for eight (8)
supplemental contracts pertaining to the
MIA Development Project (MIADP)
between the Bureau of Air Transport
(BAT) and Philippine National
Construction Corporation (PNCC),
formerly CDCP, as follows:
1. Supplemental Contract No. 12
Package Contract No. 2 P11,106,600.95
2. Supplemental Contract No. 13
5,758,961.52
3. Supplemental Contract No. 14
Package Contract No. 2 4,586,610.80
4. Supplemental Contract No. 15
1,699,862.69
5. Supplemental Contract No. 16
Package Contract No. 2 233,561.22
6. Supplemental Contract No. 17
Package Contract No. 2 8,821,731.08
7. Supplemental Contract No. 18
Package Contract No. 2 6,110,115.75
8. Supplemental Contract No. 3
Package Contract No. II 16,617,655.49
(xerox copies only; original memo was
submitted to the Office of the President
on May 28, 1984)
In this connection, please be informed
that Philippine National Construction
Corporation (PNCC), formerly CDCP,
has accomplishment billings on the MIA
Development Project aggregating P98.4
million, inclusive of accomplishments for
the aforecited contracts. In accordance
with contract provisions, outstanding
advances totalling P93.9 million are to
be deducted from said billings which will
leave a net amount due to PNCC of only
P4.5 million.
At the same time, PNCC has potential
escalation claims amounting to P99
million in the following stages of
approval/evaluation:
Approved by Price Escalation
Committee
(PEC) but pended for lack of funds P1.9
million
Endorsed by project consultants and
currently being evaluated by PEC 30.7
million
Submitted by PNCC directly to PEC
and currently under evaluation 66.5
million
Total P99.1 million
There has been no funding allocation for
any of the above escalation claims due
to budgetary constraints.
The MIA Project has been completed
and operational as far back as 1982 and
yet residual amounts due to PNCC have
not been paid, resulting in undue burden
to PNCC due to additional cost of
money to service its obligations for this
contract.
To allow PNCC to collect partially its
billings, and in consideration of its
pending escalation billings, may we
request for His Excellency's approval for
a deferment of the repayment of
PNCC's advances to the extent of P30
million corresponding to about 30% of
P99.1 million in escalation claims of
PNCC, of which P32.5 million has been
officially recognized by MIADP
consultants but could not be paid due to
lack of funding.
Our proposal will allow BAT to pay
PNCC the amount of P34.5 million out of
existing MIA Project funds. This amount
represents the excess of the gross
billings of PNCC of P98.4 million over
the undeferred portion of the repayment
of advances of P63.9 million.
(Sgd.) ROBERTO V. ONGPIN
Minister 5
In obedience to President Marcos'
verbal instruction and memorandum,
Tabuena, with the help of Dabao and
Peralta, caused the release of P55
Million of MIAA funds by means of three
(3) withdrawals.
The first withdrawal was made on
January 10, 1986 for P25 Million,
following a letter of even date signed by
Tabuena and Dabao requesting the PNB
extension office at the MIAA the
depository branch of MIAA funds, to
issue a manager's check for said
amount payable to Tabuena. The check
was encashed, however, at the PNB
Villamor Branch. Dabao and the cashier
of the PNB Villamor branch counted the
money after which, Tabuena took
delivery thereof. The P25 Million in cash
were then placed in peerless boxes and
duffle bags, loaded on a PNB armored
car and delivered on the same day to
the office of Mrs. Gimenez located at
Aguado Street fronting Malacanang.
Mrs. Gimenez did not issue any receipt
for the money received
Similar circumstances surrounded the
second withdrawal/encashment and
delivery of another P25 Million, made on
January 16, 1986.
The third and last withdrawal was made
on January 31, 1986 for P5 Million.
Peralta was Tabuena's co-signatory to
the letter- request for a manager's check
for this amount. Peralta accompanied
Tabuena to the PNB Villamor branch as
Tabuena requested him to do the
counting of the P5 Million. After the
counting, the money was placed in two
(2) peerless boxes which were loaded in
the trunk of Tabuena's car. Peralta did
not go with Tabuena to deliver the
money to Mrs. Gimenez' office at
Aguado Street. It was only upon delivery
of the P5 Million that Mrs. Gimenez
issued a receipt for all the amounts she
received from Tabuena. The receipt,
dated January 30, 1986, reads:
Malacanang
Manila
January 30, 1986
RECEIVED FROM LOUIE TABUENA
THE TOTAL AMOUNT OF FIFTY FIVE
MILLION PESOS (P55,000,000.00) as
of the following dates:
Jan. 10 P 25,000,000.00
Jan. 16 25,000,000.00
Jan. 30 5,000,000.00
(Sgd.) Fe Roa-Gimenez
The disbursement of the P55 Million
was, as described by Tabuena and
Peralta themselves, "out of the ordinary"
and "not based on the normal
procedure". Not only were there no
vouchers prepared to support the
disbursement, the P55 Million was paid
in cold cash. Also, no PNCC receipt for
the P55 Million was presented. Defense
witness Francis Monera, then Senior
Assistant Vice President and Corporate
Comptroller of PNCC, even affirmed in
court that there were no payments made
to PNCC by MIAA for the months of
January to June of 1986.
The position of the prosecution was that
there were no outstanding obligations in
favor of PNCC at the time of the
disbursement of the P55 Million. On the
other hand, the defense of Tabuena and
Peralta, in short, was that they acted in
good faith. Tabuena claimed that he was
merely complying with the MARCOS
Memorandum which ordered him to
forward immediately to the Office of the
President P55 Million in cash as partial
payment of MIAA's obligations to PNCC,
and that he (Tabuena) was of the belief
that MIAA indeed had liabilities to
PNCC. Peralta for his part shared the
same belief and so he heeded the
request of Tabuena, his superior, for him
(Peralta) to help in the release of P5
Million.
With the rejection by the Sandiganbayan
of their claim of good faith which
ultimately led to their conviction,
Tabuena and Peralta now set forth a
total of ten (10) errors 6 committed by the
Sandiganbayan for this Court's
consideration. It appears, however, that
at the core of their plea that we acquit
them are the following:
1) the Sandiganbayan convicted them of
a crime not charged in the amended
informations, and
2) they acted in good faith.
Anent the first proposition, Tabuena and
Peralta stress that they were being
charged with intentional malversation,
as the amended informations commonly
allege that:
. . . accused . . . conspiring,
confederating and other, then and there
wilfully, unlawfully, feloniously, and with
intent to defraud the government, take
and misappropriated the amount of . . . .
But it would appear that they were
convicted of malversation by negligence.
In this connection, the Court's attention
is directed to p. 17 of the December 20,
1991 Resolution (denying Tabuena's
and Peralta's motion for reconsideration)
wherein the Sandiganbayan said:
xxx xxx xxx
On the contrary, what the evidence
shows is that accused Tabuena
delivered the P55 Million to people who
were not entitled thereto, either as
representatives of MIAA or of the PNCC.
It proves that Tabuena had deliberately
consented or permitted through
negligence or abandonment, some other
person to take such public funds. Having
done so, Tabuena, by his own narration,
has categorically demonstrated that he
is guilty of the misappropriation or
malversation of P55 Million of public
funds. (Emphasis supplied.)
To support their theory that such
variance is a reversible flaw, Tabuena
and Peralta argue that:
1) While malversation may be
committed intentionally or by
negligence, both modes cannot be
committed at the same time.
2) The Sandiganbayan was without
jurisdiction to convict them of
malversation of negligence where the
amended informations charged them
with intentional malversation. 7
3) Their conviction of a crime different
from that charged violated their
constitutional right to be informed of the
accusation. 8
We do not agree with Tabuena and
Peralta on this point. Illuminative and
controlling is "Cabello v.
Sandiganbayan" 9 where the Court
passed upon similar protestations raised
by therein accused-petitioner Cabello
whose conviction for the same crime of
malversation was affirmed, in this wise:
. . . even on the putative assumption that
the evidence against petitioner yielded a
case of malversation by negligence but
the information was for intentional
malversation, under the circumstances
of this case his conviction under the first
mode of misappropriation would still be
in order. Malversation is committed
either intentionally or by negligence. The
dolo or the culpa present in the offense
is only a modality in the perpetration of
the felony. Even if the mode charged
differs from the mode proved, the same
offense of malversation is involved and
conviction thereof is proper. . . .
In Samson vs. Court of Appeals, et. al.,
we held that an accused charged with
willful or intentional falsification can
validly be convicted of falsification
through negligence, thus:
While a criminal negligent act is not a
simple modality of a willful crime, as we
held in Quizon vs. Justice of the Peace
of Bacolor. G.R. No. L-6641, July 28,
1995, but a distinct crime in our Penal
Code, designated as a quasi offense in
our Penal Code, it may however be said
that a conviction for the former can be
had under an information exclusively
charging the commission of a willful
offense, upon the theory that the greater
includes the lesser offense. This is the
situation that obtains in the present
case. Appellant was charged with willful
falsification but from the evidence
submitted by the parties, the Court of
Appeals found that in effecting the
falsification which made possible the
cashing of the checks in question,
appellant did not act with criminal intent
but merely failed to take proper and
adequate means to assure himself of
the identity of the real claimants as an
ordinary prudent man would do. In other
words, the information alleges acts
which charge willful falsification but
which turned out to be not willful but
negligent. This is a case covered by the
rule when there is a variance between
the allegation and proof, and is similar to
some of the cases decided by this
Tribunal.
xxx xxx xxx
Moreover; Section 5, Rule 116, of the
Rules of Court does not require that all
the essential elements of the offense
charged in the information be proved, it
being sufficient that some of said
essential elements or ingredients thereof
be established to constitute the crime
proved. . . .
The fact that the information does not
allege that the falsification was
committed with imprudence is of no
moment for here this deficiency appears
supplied by the evidence submitted by
appellant himself and the result has
proven beneficial to him. Certainly,
having alleged that the falsification has
been willful, it would be incongruous to
allege at the same time that it was
committed with imprudence for a charge
of criminal intent is incompatible with the
concept of negligence.
Subsequently, we ruled in People vs.
Consigna, et. al., that the aforestated
rationale and arguments also apply to
the felony of malversation, that is, that
an accused charged with willful
malversation, in an information
containing allegations similar to those
involved in the present case, can be
validly convicted of the same offense of
malversation through negligence where
the evidence sustains the latter mode of
perpetrating the offense.
Going now to the defense of good faith,
it is settled that this is a valid defense in
a prosecution for malversation for it
would negate criminal intent on the part
of the accused. Thus, in the two (2)
vintage, but significantmalversation
cases of "US v. Catolico" 10 and "US v.
Elvina," 11 the Court stressed that:
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 sit rea a crime is not
committed if the mind of the person
performing the act complained of is
innocent.
The rule was reiterated in "People v.
Pacana," 12 although this case involved
falsification of public documents and
estafa:
Ordinarily, evil intent must unite with an
unlawful act for there to be a crime.
Actus non facit reum, nisi mens sit rea.
There can be no crime when the
criminal mind is wanting.
American jurisprudence echoes the
same principle. It adheres to the view
that criminal intent in embezzlement is
not based on technical mistakes as to
the legal effect of a transaction honestly
entered into, and there can be no
embezzlement if the mind of the person
doing the act is innocent or if there is no
wrongful purpose. 13 The accused may
thus always introduce evidence to show
he acted in good faith and that he had
no intention to convert. 14 And this, to our
mind, Tabuena and Peralta had
meritoriously shown.
In so far as Tabuena is concerned, with
the due presentation in evidence of the
MARCOS Memorandum we are swayed
to give credit to his claim of having
caused the disbursement of the P55
Million solely by reason of such
memorandum. From this premise flows
the following reasons and/or
considerations that would buttress his
innocence of the crime of malversation.
First. Tabuena had no other choice but
to make the withdrawals, for that was
what the MARCOS Memorandum
required him to do. He could not be
faulted if he had to obey and strictly
comply with the presidential directive,
and to argue otherwise is something
easier said than done. Marcos was
undeniably Tabuena's superior the
former being then the President of the
Republic who unquestionably exercised
control over government agencies such
as the MIAA and PNCC. 15 In other
words, Marcos had a say in matters
involving inter-government agency
affairs and transactions, such as for
instance, directing payment of liability of
one entity to another and the manner in
which it should be carried out. And as a
recipient of such kind of a directive
coming from the highest official of the
land no less, good faith should be read
on Tabuena's compliance, without
hesitation nor any question, with the
MARCOS Memorandum. Tabuena
therefore is entitled to the justifying
circumstance of "Any person who acts
in obedience to an order issued by a
superior for some lawful purpose." 16 The
subordinate-superior relationship
between Tabuena and Marcos is clear.
And so too, is the lawfulness of the
order contained in the MARCOS
Memorandum, as it has for its purpose
partial payment of the liability of one
government agency (MIAA) to another
(PNCC). However, the unlawfulness of
the MARCOS Memorandum was being
argued, on the observation, for instance,
that the Ongpin Memo referred to in the
presidential directive reveals a liability of
only about P34.5 Million. The
Sandiganbayan in this connection said:
Exhibits "2" and "2-a" (pages 1 and 2 of
the memorandum of Min. Ongpin to the
President dated January 7, 1985) were
mainly:
a.) for the approval of eight
Supplemental Contracts; and
b.) a request for partial deferment of
payment by PNCC for advances made
for the MIAA Development Project, while
at the same time recognizing some of
the PNCC's escalation billings which
would result in making payable to PNCC
the amount of P34.5 million out of
existing MIAA Project funds.
Thus:
"xxx xxx xxx
To allow PNCC to collect partially its
billings, and in consideration of ifs
pending escalation billings, may we
request for His Excellency's approval for
a deferment of repayment of PNCC's
advances to the extent of P30 million
corresponding to about 30% of P99.1
million in escalation claims of PNCC, of
which P32.6 million has been officially
recognized by MIADP consultants but
could not be paid due to lack of funding.
Our proposal will allow BAT to pay
PNCC the amount of P34.5 million out
of existing MIA Project funds. This
amount represents the excess of the
gross billings of PNCC of P98.4 million
over the undeferred portion of the
repayment of advances of P63.9
million."
While Min. Ongpin may have, therefore
recognized the escalation claims of the
PNCC to MIAA to the extent of P99.1
million (Exhibit 2a), a substantial portion
thereof was still in the stages of
evaluation and approval, with only P32.6
million having been officially recognized
by the MIADP consultants.
If any payments were, therefore, due
under this memo for Min. Ongpin (upon
which President Marcos' Memo was
based) they would only be for a sum of
up to P34.5 million. 17
xxx xxx xxx
V. Pres. Marcos' order to Tabuena dated
January 8, 1986 baseless.
Not only was Pres. Marcos' Memo
(Exhibit "1") for Tabuena to pay P55
million irrelevant, but it was actually
baseless.
This is easy to see.
Exhibit "1" purports to refer itself to the
Ongpin Memorandum (Exhibit "2", "2-
a"); Exhibit "1", however, speaks of P55
million to be paid to the PNCC while
Exhibit "2" authorized only P34.5 million.
The order to withdraw the amount of
P55 million exceeded the approved
payment of P34.5 million by P20.5
million. Min. Ongpin's Memo of January
7, 1985 could not therefore serve as a
basis for the President's order to
withdraw P55 million. 18
Granting this to be true, it will not
nevertheless affect Tabuena's goad faith
so as to make him criminally liable.
What is more significant to consider is
that the MARCOS Memorandum is
patently legal (for on its face it directs
payment of an outstanding liability) and
that Tabuena acted under the honest
belief that the P55 million was a due and
demandable debt and that it was just a
portion of a bigger liability to PNCC. This
belief is supported by defense witness
Francis Monera who, on direct
examination, testified that:
ATTY ANDRES
Q Can you please show us in this
Exhibit "7" and "7-a" where it is indicated
the receivables from MIA as of
December 31, 1985?
A As of December 31, 1985, the
receivables from MIA is shown on page
2, marked as Exhibit "7-a", sir,
P102,475.392.35
xxx xxx xxx 19
ATTY. ANDRES
Q Can you tell us, Mr. Witness, what
these obligations represent?
WITNESS
A These obligations represent
receivables on the basis of our billings to
MIA as contract-owner of the project that
the Philippine National Construction
Corporation constructed. These are
billings for escalation mostly, sir.
Q What do you mean by escalation?
A Escalation is the component of our
revenue billings to the contract-owner
that are supposed to take care of price
increases, sir.
xxx xxx xxx 20
ATTY ANDRES
Q When you said these are accounts
receivable, do I understand from you
that these are due and demandable?
A Yes, sir. 21
 Thus, even if the order is illegal if it is
patently legal and the subordinate is not
aware of its illegality, the subordinate is
not liable, for then there would only be a
mistake of fact committed in good faith.
22
Such is the ruling in "Nassif v. People"
23
the facts of which, in brief, are as
follows:
Accused was charged with falsification
of commercial document. A mere
employee of R.J. Campos, he inserted
in the commercial document alleged to
have been falsified the word "sold" by
order of his principal. Had he known or
suspected that his principal was
committing an improper act of
falsification, he would be liable either as
a co-principal or as an accomplice.
However, there being no malice on his
part, he was exempted from criminal
liability as he was a mere employee
following the orders of his principal. 24
Second. There is no denying that the
disbursement, which Tabuena admitted
as "out of the ordinary", did not comply
with certain auditing rules and
regulations such as those pointed out by
the Sandiganbayan, to wit:
a) [except for salaries and wages and
for commutation of leaves] all
disbursements above P1,000.00 should
be made by check (Basic Guidelines for
Internal Control dated January 31, 1977
issued by COA)
b) payment of all claims against the
government had to be supported with
complete documentation (Sec. 4, P.D.
1445, "State Auditing Code of the
Philippines). In this connection, the
Sandiganbayan observed that:
There were no vouchers to authorize the
disbursements in question. There were
no bills to support the disbursement.
There were no certifications as to the
availability of funds for an
unquestionably staggering sum of P55
Million. 25
c) failure to protest (Sec. 106, P.D.
1445)
But this deviation was inevitable under
the circumstances Tabuena was in. He
did not have the luxury of time to
observe all auditing procedures of
disbursement considering the fact that
the MARCOS Memorandum enjoined
his "immediate compliance" with the
directive that he forward to the
President's Office the P55 Million in
cash. Be that as it may, Tabuena surely
cannot escape responsibility for such
omission. But since he was acting in
good faith, his liability should only be
administrative or civil in nature, and not
criminal. This follows the decision in
"Villacorta v. People" 26 where the Court,
in acquitting therein accused municipal
treasurer of Pandan, Catanduanes of
malversation after finding that he
incurred a shortage in his cash
accountability by reason of his payment
in good faith to certain government
personnel of their legitimate wages
leave allowances, etc., held that:
Nor can negligence approximating
malice or fraud be attributed to
petitioner. If he made wrong payments,
they were in Good faith mainly to
government personnel, some of them
working at the provincial auditor's and
the provincial treasurer's offices And if
those payments ran counter to auditing
rules and regulations, they did not
amount to a criminal offense and he
should only be held administratively or
civilly liable.
Likewise controlling is "US v. Elvina" 27
where it was held that payments in good
faith do not amount to criminal
appropriation, although they were made
with insufficient vouchers or improper
evidence. In fact, the Dissenting
Opinion's reference to certain provisions
 in the revised Manual on Certificate of
Settlement and Balances apparently
made to underscore Tabuena's personal
accountability, as agency head, for MIAA
funds would all the more support the
view that Tabuena is vulnerable to civil
sanctions only Sections 29.2 and 295
expressly and solely speak of "civilly
liable," describe the kind of sanction
imposable on a superior officer who
performs his duties with "bad faith,
malice or gross negligence"' and on a
subordinate officer or employee who
commits "willful or negligent acts . . .
which are contrary to law, morals, public
policy and good customs even if he
acted under order or instructions of his
superiors."
Third. The Sandiganbayan made the
finding that Tabuena had already
converted and misappropriated the P55
Million when he delivered the same to
Mrs. Gimenez and not to the PNCC,
proceeding from the following
definitions/concepts of "conversion":
"Conversion", as necessary element of
offense of embezzlement, being the
fraudulent "appropriation to one's own
use' of another's property which does
not necessarily mean to one's personal
advantage but every attempt by one
person to dispose of the goods of
another without right as if they were his
own is conversion to his own use."
(Terry v. Water Improvement Dist. No. 5
of Tulsa County, 64 p, 2d 904, 906, 179
Okl. 106)
At p. 207, Words and Phrases,
Permanent Edition 9A.
Conversion is any interference
subversive of the right of the owner of
personal property to enjoy and control it.
The gist of conversion is the usurpation
of the owner 's right of property, and not
the actual damages inflicted. Honesty of
purpose is not a defense. (Ferrera v.
Parks, 23 p. 883, 885 19 Or. 141)
At page 168, id.
xxx xxx xxx
The words "convert" and
"misappropriate" connote an act of using
or disposing of another's property as if it
were one's own. They presuppose that
the thing has been devoted to a purpose
or use different from that agreed upon.
To appropriate to one's own use
includes not only conversion to one's
personal advantage but every attempt to
dispose of the property of another
without right.
People vs. Webber, 57 O.G.
p. 2933, 2937
By placing them at the disposal of
private persons without due
authorization or legal justification, he
became as guilty of malversation as if
he had personally taken them and
converted them to his own use.
People vs. Luntao, 50 O.G.
p. 1182, 1183 28
We do not agree. It must be stressed
that the MARCOS Memorandum
directed Tabuena "to pay immediately
the Philippine National Construction
Corporation, thru this office the sum of
FIFTY FIVE MILLION. . .", and that was
what Tabuena precisely did when he
delivered the money to Mrs. Gimenez.
Such delivery, no doubt, is in effect
delivery to the Office of the President
inasmuch as Mrs. Gimenez was Marcos'
secretary then. Furthermore, Tabuena
had reasonable ground to believe that
the President was entitled to receive the
P55 Million since he was certainly aware
that Marcos, as Chief Executive,
exercised supervision and control over
government agencies. And the good
faith of Tabuena in having delivered the
money to the President's office (thru
Mrs. Gimenez), in strict compliance with
the MARCOS Memorandum, was not at
all affected even if it later turned out that
PNCC never received the money. Thus,
it has been said that:
Good faith in the payment of public
funds relieves a public officer from the
crime of malversation.
xxx xxx xxx
Not every unauthorized payment of
public funds is malversation. There is
malversation only if the public officer
who has custody of public funds should
appropriate the same, or shall take or
misappropriate or shall consent, or
through abandonment or negligence
shall permit any other person to take
such public funds. Where the payment
of public funds has been made in good
faith, and there is reasonable ground to
believe that the public officer to whom
the fund had been paid was entitled
thereto, he is deemed to have acted in
good faith, there is no criminal intent,
and the payment, if it turns out that it is
unauthorized, renders him only civilly
but not criminally liable. 29
Fourth. Even assuming that the real and
sole purpose behind the MARCOS
Memorandum was to siphon-out public
money for the personal benefit of those
then in power, still, no criminal liability
can be imputed to Tabuena. There is no
showing that Tabuena had anything to
do whatsoever with the execution of the
MARCOS Memorandum. Nor is there
proof that he profited from the felonious
scheme. In short, no conspiracy was
established between Tabuena and the
real embezzler/s of the P5 Million. In the
cases of "US v. Acebedo" 30 and "Ang v.
Sandiganbayan", 31 both also involving
the crime of malversation, the accused
therein were acquitted after the Court
arrived at a similar finding of non-proof
of conspiracy. In "Acebedo", therein
accused, as municipal president of Palo,
Leyte, was prosecuted for and found
guilty by the lower court of malversation
after being unable to turn over certain
amounts to the then justice of the peace.
It appeared, however, that said amounts
were actually collected by his secretary
Crisanto Urbina. The Court reversed
Acebedo's conviction after finding that
the sums were converted by his
secretary Urbina without the knowledge
and participation of Acebedo. The Court
said, which we herein adopt:
No conspiracy between the appellant
and his secretary has been shown in
this case, nor did such conspiracy
appear in the case against Urbina. No
guilty knowledge of the theft committed
by the secretary was shown on the part
of the appellant in this case, nor does it
appear that he in any way participated in
the fruits of the crime. If the secretary
stole the money in question without the
knowledge or consent of the appellant
and without negligence on his part, then
certainly the latter can not be convicted
of embezzling the same money or any
part thereof. 32
In "Ang", accused-petitioner, as MWSS
bill collector, allowed part of his
collection to be converted into checks
drawn in the name of one Marshall Lu, a
non-customer of MWSS, but the checks
were subsequently dishonored. Ang was
acquitted by this Court after giving
credence to his assertion that the
conversion of his collections into checks
were thru the machinations of one
Lazaro Guinto, another MWSS collector
more senior to him. And we also adopt
the Court's observation therein, that:
The petitioner's alleged negligence in
allowing the senior collector to convert
cash collections into checks may be
proof of poor judgment or too trusting a
nature insofar as a superior officer is
concerned but there must be stronger
evidence to show fraud, malice, or other
 indicia of deliberateness in the
conspiracy cooked up with Marshall Lu.
The prosecution failed to show that the
petitioner was privy to the conspirational
scheme. Much less is there any proof
that he profited from the questioned
acts. Any suspicions of conspiracy, no
matter how sincerely and strongly felt by
the MWSS, must be converted into
evidence before conviction beyond
reasonable doubt may be imposed. 33
The principles underlying all that has
been said above in exculpation of
Tabuena equally apply to Peralta in
relation to the P5 Million for which he is
being held accountable, i.e., he acted in
good faith when he, upon the directive of
Tabuena, helped facilitate the withdrawal
of P5 Million of the P55 Million of the
MIAA funds.
This is not a sheer case of blind and
misguided obedience, but obedience in
good faith of a duly executed order.
Indeed, compliance to a patently lawful
order is rectitude far better than
contumacious disobedience. In the case
at bench, the order emanated from the
Office of the President and bears the
signature of the President himself, the
highest official of the land. It carries with
it the presumption that it was regularly
issued. And on its face, the
memorandum is patently lawful for no
law makes the payment of an obligation
illegal. This fact, coupled with the urgent
tenor for its execution constrains one to
act swiftly without question. Obedientia
est legis essentia. Besides, the case
could not be detached from the realities
then prevailing As aptly observed by Mr
Justice Cruz in his dissenting opinion:
We reject history in arbitrarily assuming
that the people were free during the era
and that the Judiciary was independent
and fearless. We know it was not: even
the Supreme Court at that time was not
free. This is an undeniable fact that we
can not just blink away. Insisting on the
contrary would only make our sincerity
suspect and even provoke scorn for
what can only be described as our
incredible credulity. 34
But what appears to be a more
compelling reason for their acquittal is
the violation of the accused's basic
constitutional right to due process.
"Respect for the Constitution", to borrow
once again Mr. Justice Cruz's words, "is
more important than securing a
conviction based on a violation of the
rights of the accused." 35 While going
over the records, we were struck by the
way the Sandiganbayan actively took
part in the questioning of a defense
witness and of the accused themselves.
Tabuena and Peralta may not have
raised this as an error, there is
nevertheless no impediment for us to
consider such matter as additional basis
for a reversal since the settled doctrine
is that an appeal throws the whole case
open to review, and it becomes the duty
of the appellate court to correct such
errors as may be found in the judgment
appealed from whether they are made
the subject of assignments of error or
not. 36
Simply consider the volume of questions
hurled by the Sandiganbayan. At the
taking of the testimony of Francis
Monera. then Senior Assistant Vice
President and Corporate Comptroller of
PNCC, Atty. Andres asked sixteen (16)
questions on direct examination.
Prosecutor Viernes only asked six (6)
questions on cross-examination in the
course of which the court interjected a
total of twenty-seven (27) questions
(more than four times Prosecutor
Viernes' questions and even more than
the combined total of direct and cross-
examination questions asked by the
 counsels) After the defense opted not to
conduct any re-direct examination, the
court further asked a total of ten (10)
questions. 37 The trend intensified during
Tabuena's turn on the witness stand.
Questions from the court after Tabuena's
cross-examination totalled sixty-seven
(67). 38 This is more than five times
Prosecutor Viernes' questions on cross-
examination (14), and more than double
the total of direct examination and cross-
examination questions which is thirty-
one (31) [17 direct examination
questions by Atty. Andres plus 14 cross-
examination questions by Prosecutor
Viernes]. In Peralta's case, the Justices,
after his cross-examination, propounded
a total of forty-one (41) questions. 39
But more importantly, we note that the
questions of the court were in the nature
of cross examinations characteristic of
confrontation, probing and insinuation. 40
(The insinuating type was best
exemplified in one question addressed
to Peralta, which will be underscored.)
Thus we beg to quote in length from the
transcripts pertaining to witness Monera,
Tabuena and Peralta. (Questions from
the Court are marked with asterisks and
italicized for emphasis.)
(MONERA)
(As a background, what was elicited
from his direct examination is that the
PNCC had receivables from MIAA
totalling P102,475,392.35, and although
such receivables were largely billings for
escalation, they were nonetheless all
due and demandable. What follows are
the cross-examination of Prosecutor
Viernes and the court questions).
CROSS-EXAMINATION BY PROS.
VIERNES
Q You admit that as shown by these
Exhibits "7" and "7- a", the items here
represent mostly escalation billings.
Were those escalation billings properly
transmitted to MIA authorities?
A I don't have the documents right now
to show that they were transmitted, but I
have a letter by our President, Mr.
Olaguer, dated July 6, 1988, following
up for payment of the balance of our
receivables from MIA, sir.
*AJ AMORES
*Q This matter of escalation costs, is it
not a matter for a conference between
the MIA and the PNCC for the
determination as to the correct amount?
A I agree, your Honor. As far as we are
concerned, our billings are what we
deemed are valid receivables And, in
fact, we have been following up for
payment.
*Q This determination of the escalation
costs was it accepted as the correct
figure by MIA ?
A I don't have any document as to the
acceptance by MIA your Honor, but our
company was able to get a document or
a letter by Minister Ongpin to President
Marcos, dated January 7, 1985, with a
marginal note or approval by former
President Marcos.
*PJ GARCHITORENA
*Q Basically, the letter of Mr. Ongpin is
to what effect?
A The subject matter is approval of the
supplementary contract and request for
partial deferment of payment for MIA
Development Project, your Honor.
*Q It has nothing to do with the
implementation of the escalation costs?
A The details show that most of the
accounts refer to our escalations, your
Honor.
*Q Does that indicate the computation
for escalations were already billed or
you do not have any proof of that
A Our subsidiary ledger was based on
billings to MIA and this letter of Minister
Ongpin appears to have confirmed our
billings to MIA, your Honor.
 *AJ AMORES
*Q Were there partial payments made
by MIA an these escalation billings?
A Based on records available as of
today, the P102 million was reduced to
about P56.7 million, if my recollection is
correct, your Honor.
*PJ GARCHITORENA
*Q Were the payments made before or
after February 1986, since Mr. Olaguer
is a new entrant to your company?
WITNESS
A The payments were made after
December 31, 1985 but I think the
payments were made before the entry of
our President, your Honor. Actually, the
payment was in the form of:
assignments to State Investment of
about P23 million; and then there was
P17.8 million application against
advances made or formerly given; and
there were payments to PNCC of about
P2.6 million and there was a payment
for application on withholding and
contractual stock of about P1 million;
that summed up to P44.4 million all in
all. And you deduct that from the P102
million, the remaining balance would be
about P57 million.
*PJ GARCHITORENA
*Q What you are saying is that, for all
the payments made on this P102 million,
only P2 million had been payments in
cash ?
A Yes, your Honor.
*Q The rest had been adjustments of
accounts, assignments of accounts, or
offsetting of accounts?
A Yes, your Honor.
*Q This is as of December 31, 1985?
A The P102 million was as of December
31, 1985, your Honor, but the balances
is as of August 1987.
*Q We are talking now about the P44
million, more or less, by which the basic
account has been reduced. These
reductions, whether by adjustment or
assignment or actual delivery of cash,
were made after December 31, 1985?
WITNESS
A Yes, your Honor.
*Q And your records indicate when
these adjustments and payments were
made?
A Yes, your Honor.
*AJ AMORES
*Q You said there were partial payments
before of these escalation billings. Do
we get it from you that there was an
admission of these escalation costs as
computed by you by MIA, since there
was already partial payments?
A Yes, your Honor.
*Q How were these payments made
before February 1986, in case or check,
if there were payments made?
A The P44 million payments was in the
form of assignments, your Honor.
*PJ GARCHITORENA
*Q The question of the Court is, before
December 31, 1985, were there any
liquidations made by MIA against these
escalation billings?
A I have not reviewed the details of the
record, your Honor. But the ledger card
indicates that there were collections on
page 2 of the Exhibit earlier presented. It
will indicate that there were collections
shown by credits indicated on the credit
side of the ledger.
*AJ AMORES
*Q Your ledger does not indicate the
manner of giving credit to the MIA with
respect to the escalation billings. Was
the payment in cash or just credit of
some sort before December 31, 1985?
A Before December 31, 1985, the
reference of the ledger are official
receipts and I suppose these were
payments in cash, your Honor.
*Q Do you know how the manner of this
payment in cash was made by MIA?
 A I do not know, your Honor.
*PJ GARCHITORENA
*Q But your records will indicate that?
A The records will indicate that, your
Honor.
*Q Except that you were not asked to
bring them?
A Yes, your Honor.
*Q At all events, we are talking of
settlement or partial liquidation prior to
December 31, 1985?
A Yes, your Honor.
*PJ GARCHITORENA
*Q Subsequent thereto, we are talking
merely of about P44 million?
A Yes, your Honor, as subsequent
settlements.
*Q After December 31, 1985?
A Yes, your Honor.
*Q And they have liquidated that, as you
described it, by way of assignments,
adjustments, by offsets and by P2
million of cash payment?
A Yes, your Honor.
*AJ AMORES
*Q Your standard operating procedure
before December 31, 1985 in
connection with or in case of cash
payment, was the payment in cash or
check?
A I would venture to say it was by check,
your Honor.
*Q Which is the safest way to do it?
A Yes, your Honor.
"PJ GARCHITORENA
*Q And the business way?
A Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You mentioned earlier about the letter
of former Minister Ongpin to the former
President Marcos, did you say that letter
concurs with the escalation billings
reflected in Exhibits "7" and "7-a"?
WITNESS
A The Company or the management is
of the opinion that this letter, a copy of
which we were able to get, is a
confirmation of the acceptance of our
billings, sir.
Q This letter of Minister Ongpin is dated
January 7, 1985, whereas the entries of
escalation billings as appearing in
Exhibit "7" are dated June 30, 1985,
would you still insist that the letter of
January 1985 confirms the escalation
billings as of June 1985?
A The entries started June 30 in the
ledger card. And as of December 31,
1985, it stood at P102 million after
payments were made as shown on the
credit side of the ledger. I suppose hat
the earlier amount, before the payment
was made, was bigger and therefore I
would venture to say that the letter of
January 7, 1985 contains an amount
that is part of the original contract
account. What are indicated in the
ledger are escalation billings.
*PJ GARCHITORENA
*Q We are talking about the letter of
Minister Ongpin?
A The letter of Minister Ongpin refers to
escalation billings, sir.
*Q As of what date?
A The letter is dated January 7, 1985,
your Honor.
PJ GARCHITORENA
Continue.
PROS. VIERNES
Q In accordance with this letter marked
Exhibit "7" and "7-a", there were credits
made in favor of MIA in July and
November until December 1985. These
were properly credited to the account of
MIA?
WITNESS
A Yes, sir.
Q In 1986. from your records as
appearing in Exhibit "7-a", there were no
payments made to PNCC by MIA for the
 months of January to June 1986?
A Yes, sir.
Q And neither was the amount of P22
million remitted to PNCC by MIA?
A Yes, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY ANDRES
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ AMORES
*Q From your records, for the month of
January 1986, there was no payment of
this escalation account by MIA?
WITNESS
A Yes, your Honor. But on page 2 of
Exhibit "7" there appears an assignment
of P23 million, that was on September
25, 1986.
*Q But that is already under the present
administration?
A After February 1986, your Honor.
*Q But before February, in January
1986, there was no payment whatsoever
by MIA to PNCC?
A Per record there is none appearing,
your Honor.
*PJ GARCHITORENA
*Q The earliest payment, whether by
delivery of cash equivalent or of
adjustment of account, or by
assignment, or by offsets, when did
these payments begin?
A Per ledger card, there were payments
in 1985, prior to December 31, 1985,
your Honor.
*Q After December 31, 1985?
A There appears also P23 million as
credit, that is a form of settlement, your
Honor.
*Q This is as of September 25?
A Yes, your Honor. There were
subsequent settlements P23 million is
just part of the P44 million.
*Q And what you are saying is that,
PNCC passed the account to State
Investment. In other words, State
Investment bought the credit of MIA?
A Yes, your Honor.
*Q And the amount of credit or
receivables sold by PNCC to State
Investment is P23 million?
A Yes, your Honor.
*Q Is there a payback agreement?
A I have a copy of the assignment to
State Investment but I have not yet
reviewed the same, your Honor.
*AJ AMORES
*Q As of now, is this obligation of MIA,
now NAIA, paid to PNCC?
A There is still a balance of receivables
from MIA as evidenced by a collection
letter by our President dated July 6,
1988, your Honor. The amount indicated
in the letter is P55 million.
PJ GARCHITORENA
Any clarifications you would like to make
Mr. Estebal?
ATTY ESTEBAL
None, your Honor.
PJ GARCHITORENA
Mr. Viernes?
PROS VIERNES
No more, your Honor.
PJ GARCHITORENA
The witness is excused. Thank you very
much Mr. Monera. . . . 41
(TABUENA)
(In his direct examination, he testified
that he caused the preparation of the
checks totalling P55 Million pursuant to
the MARCOS Memorandum and that he
thereafter delivered said amount in cash
on the three (3) dates as alleged in the
information to Marcos' private secretary
Mrs. Jimenez at her office at Aguado
Street, who thereafter issued a receipt.
Tabuena also denied having used the
money for his own personal use.)
 CROSS-EXAMINATION BY PROS.
VIERNES
Q The amount of P55 million as covered
by the three (3) checks Mr. Tabuena,
were delivered on how many occasions?
A Three times, sir.
Q And so, on the first two deliveries, you
did not ask for a receipt from Mrs.
Gimenez?
A Yes, sir.
Q It was only on January 30, 1986 that
this receipt Exhibit "3" was issued by
Mrs. Gimenez?
A Yes, sir.
*PJ GARCHITORENA
*Q So January 30 is the date of the last
delivery?
A I remember it was on the 31st of
January, your Honor What happened is
that, I did not notice the date placed by
Mrs. Gimenez.
Q Are you telling us that this Exhibit "3"
was incorrectly dated
A Yes, your Honor.
*Q Because the third delivery was on
January 31st and yet the receipt was
dated January 30?
A Yes, your Honor.
*Q When was Exhibit "3" delivered
actually by Mrs. Gimenez?
A January 31st, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You did not go to Malacaang on
January 30, 1986?
A Yes, sir, I did not.
Q Do you know at whose instance this
Exhibit "3" was prepared?
A I asked for it, sir.
Q You asked for it on January 31, 1986
when you made the last delivery?
A Yes, sir.
Q Did you see this Exhibit "3" prepared
in the Office of Mrs. Gimenez?
A Yes, sir.
Q This receipt was typewritten in
Malacaang stationery. Did you see who
typed this receipt?
A No, sir. What happened is that, she
went to her room and when she came
out she gave me that receipt.
*PJ GARCHITORENA
Q What you are saying is, you do not
know who typed that receipt?
WITNESS
A Yes, your Honor.
*Q Are you making an assumption that
she typed that receipt?
A Yes, your Honor, because she knows
how to type.
*Q Your assumption is that she typed it
herself?
A Yes, your Honor.
PJ GARCHITORENA
Proceed.
PROS. VIERNES
Q This receipt was prepared on January
31, although it is dated January 30?
A Yes, sir, because I was there on
January 31st.
Q In what particular place did Mrs.
Gimenez sign this Exhibit "3"?
A In her office at Aguado, sir.
Q Did you actually see Mrs. Gimenez
signing this receipt Exhibit "3"?
A No, sir, I did not. She was inside her
room.
Q So, she was in her room and when
she came out of the room, she handed
this receipt to you already typed and
signed?
A Yes, sir.
*AJ HERMOSISIMA
*Q So, how did you know this was the
signature of Mrs. Gimenez?
WITNESS
A Because I know her signature, your
Honor. I have been receiving letters from
her also and when she requests for
something from me. Her writing is
familiar to me.
 So, when the Presiding Justice asked
you as to how you knew that this was
the signature of Mrs. Gimenez and you
answered that you saw Mrs. Gimenez
signed it, you were not exactly truthful?
A What I mean is, I did not see her sign
because she went to her room and
when she came out, she gave me that
receipt, your Honor.
PJ GARCHITORENA
That is why you have to wait for the
question to be finished and listen to it
carefully. Because when I asked you,
you said you saw her signed it. Be
careful Mr. Tabuena.
WITNESS
Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Was there another person inside the
office of Mrs. Gimenez when she gave
you this receipt Exhibit "3"?
A Nobody, sir.
Q I noticed in this receipt that the last
delivery of the sum of P55 million was
made on January 30. Do we understand
from you that this date January 30 is
erroneous?
A Yes, sir, that January 30 is erroneous.
I noticed it only afterwards. This should
be January 31st, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY. ANDRES
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ HERMOSISIMA
*Q Why did you not ask for a receipt on
the first and second deliveries?
A Because I know that the delivery was
not complete yet, your Honor.
*PJ GARCHITORENA
*Q So you know that the total amount to
be delivered was P55 million')
A Yes, your Honor.
PJ GARCHITORENA
Response by Mr. Peralta to the
testimony of Mr. Tabuena.
ATTY. ESTEBAL
We are adopting the testimony of Mr.
Tabuena and we will also present the
accused, your Honor.
*AJ DEL ROSARIO
"Q From whom did you receive the
President's memorandum marked
Exhibit "1"? Or more precisely, who
handed you this memorandum?
A Mrs. Fe Roa Gimenez, your Honor.
Q Did you ask Mrs, Fe Gimenez for
what purpose the money was being
asked?
A The money was in payment for the
debt of the MIA Authority to PNCC, your
Honor.
*Q If it was for the payment of such
obligation why was there no voucher
prepared to cover such payment? In
other words, why was the delivery of the
money not covered by any voucher?
A The instruction to me was to give it to
the Office of the President, your Honor.
*PJ GARCHITORENA
*Q Be that as it may, why was there no
voucher to cover this particular
disbursement?
A I was just told to bring it to the Office
of the President, your Honor.
*AJ DEL ROSARIO
*Q Was that normal procedure for you to
pay in cash to the Office of the President
for obligations of the MIAA in payment of
its obligation to another entity?
WITNESS
A No, your Honor, I was just following
the Order to me of the President.
*PJ GARCHITORENA
*Q So the Order was out of the
ordinary?
 A Yes, your Honor.
*AJ DEL ROSARIO
Did you file any written protest with the
manner with which such payment was
being ordered?
A No, your Honor.
*Q Why not?
A Because with that instruction of the
President to me, I followed, your Honor.
*Q Before receiving this memorandum
Exhibit "1", did the former President
Marcos discuss this maitter with you?
A Yes, your Honor.
*Q When was that?
A He called me up earlier, a week before
that, that he wants to me pay what I owe
the PNCC directly to his office in cash,
your Honor.
*PJ GARCHITORENA
*Q By "I OWE ", you mean the MIAA?
WITNESS
A Yes, your Honor.
*AJ DEL ROSARIO
*Q And what did you say in this
discussion you had with him?
A I just said, "Yes, sir, I will do it/"
*Q Were you the one who asked for a
memorandum to be signed by him?
A No, your Honor.
*Q After receiving that verbal instruction
for you to pay MIAA's obligation with
PNCC, did you not on your own accord
already prepare the necessary papers
and documents for the payment of that
obligation?
A He told me verbally in the telephone
that the Order for the payment of that
obligation is forthcoming, your Honor. I
will receive it.
*Q Is this the first time you received
such a memorandum from the
President?
A Yes, your Honor.
*Q And was that the last time also that
you received such a memorandum?
A Yes, your Honor.
*Q Did you not inquire, if not from the
President, at least from Mrs. Gimenez
why this procedure has to be followed
instead of the regular procedure?
A No, sir.
*AJ DEL ROSARIO
*Q Why did you not ask?
A I was just ordered to do this thing,
your Honor.
*AJ HERMOSISIMA
*Q You said there was an "I OWE
YOU"?
A Yes, your Honor.
*Q Where is that "I OWE YOU" now?
A All I know is that we owe PNCC the
amount of P99.1 million, your Honor.
MIAA owes PNCC that amount.
*Q Was this payment covered by receipt
from the PNCC?
A It was not covered, your Honor.
*Q So the obligation of MIAA to PNCC
was not, for the record, cancelled by
virtue of that payment?
A Based on the order to me by the
former President Marcos ordering me to
pay that amount to his office and then
the mechanics will come after, your
Honor.
*Q Is the PNCC a private corporation or
government entity?
A I think it is partly government, your
Honor.
*PJ GARCHITORENA
*Q That is the former CDCP?
A Yes, your Honor.
*AJ HERMOSISIMA
*Q Why were you not made to pay
directly, to the PNCC considering that
you are the Manager of MIA at that time
and the PNCC is a separate corporation,
not an adjunct of Malacaang?
WITNESS
A I was just basing it from the Order of
Malacanang to pay PNCC through the
Office of the President, your Honor.
*Q Do you know the President or
 Chairman of the Board of PNCC?
A Yes, your Honor.
"Q How was the obligation of MIAA to
PNCC incurred. Was it through the
President or Chairman of the Board?
A PNCC was the one that constructed
the MIA, your Honor.
*Q Was the obligation incurred through
the President or Chairman of the Board
or President of the PNCC? In other
words, who signed the contract between
PNCC and MIAA?
A Actually, we inherited this obligation,
your Honor. The one who signed for this
was the former Director of BAT which is
General Singzon. Then when the MIA
Authority was formed, all the obligations
of BAT were transferred to MIAA. So the
accountabilities of BAT were transferred
to MIAA and we are the ones that are
going to pay, your Honor.
*Q Why did you agree to pay to
Malacaang when your obligation was
with the PNCC?
A I was ordered by the President to do
that, your Honor.
*Q You agreed to the order of the
President notwithstanding the fact that
this was not the regular course or
Malacaang was not the creditor?
A I saw nothing wrong with that because
that is coming, from the President, your
Honor.
*Q The amount was not a joke,
amounting to P55 million, and you
agreed to deliver money in this amount
through a mere receipt from the private
secretary?
A I was ordered by the President, your
Honor.
*PJ GARCHITORENA
*Q There is no question and it can be a
matter of judicial knowledge that you
have been with the MIA for sometime?
A Yes, your Honor.
*Q Prior to 1986?
A Yes, your Honor.
*Q Can you tell us when you became
the Manager of MIA?
A I became Manager of MIA way back,
late 1968, your Honor.
*Q Long before the MIA was constituted
as an independent authority?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And by 1986, you have been running
the MIA for 18 years?
WITNESS
A Yes, your Honor.
*Q And prior to your Joining the MIA, did
you ever work for the government?
A No, your Honor.
*Q So, is it correct for us to say that your
joining the MIA in 1968 as its Manager
was your first employment ,with the
government?
A Yes, your Honor.
*Q While you were Manager of MIA, did
you have other subsequent concurrent
positions in the government also?
A I was also the Chairman of the Games
and Amusement Board, your Honor.
*Q But you were not the executive or
operating officer of the Games and
Amusement Board?
A I was, your Honor.
*Q As Chairman you were running the
Games and Amusement Board?
A Yes, your Honor.
*Q What else, what other government
positions did you occupy that time?
A I was also Commissioner of the Game
Fowl Commission, your Honor.
*PJ GARCHITORENA
*Q That is the cockfighting?
WITNESS
A Yes, your Honor.
*Q Here, you were just a member of the
Board?
A Yes, your Honor.
*Q So you were not running the
commission?
 A Yes, your Honor.
*Q Any other entity?
A No more, your Honor.
*Q As far as you can recall, besides
being the Manager of the MIA and later
the MIAA for approximately 18 years,
you also ran the Games and
Amusement Board as its executive
officer?
A Yes, your Honor.
*Q And you were a commissioner only of
the Came Fowl Commission?
A Yes, your Honor.
*Q Who was running the commission at
that time?
A I forgot his name, but he retired
already, your Honor.
*Q All of us who joined the government,
sooner or later, meet with our Resident
COA representative?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And one of our unfortunate
experience (sic) is when the COA
Representative comes to us and says:
"Chairman or Manager, this cannot be".
And we learn later on that COA has
reasons for its procedure and we learn
to adopt to them?
WITNESS
A Yes, your Honor.
*Q As a matter of fact, sometimes we
consider it inefficient, sometimes we
consider it foolish, but we know there is
reason in this apparent madness of the
COA and so we comply?
A Yes, your Honor.
*Q And more than anything else the
COA is ever anxious for proper
documentation and proper supporting
papers?
A Yes, your Honor.
*Q Sometimes, regardless of the
amount?
A Yes, your Honor.
*Q Now, you have P55 million which you
were ordered to deliver in cash, not to
the creditor of the particular credit, and
to be delivered in armored cars to be
acknowledged only by a receipt of a
personal secretary. After almost 18
years in the government service and
having had that much time in dealing
with COA people, did it not occur to you
to call a COA representative and say,
"What will I do here?"
A I did not, your Honor.
*PJ GARCHITORENA
*Q Did you not think that at least out of
prudence, you should have asked the
COA for some guidance on this matter
so that you will do it properly?
WITNESS
A What I was going to do is, after those
things I was going to tell that delivery
ordered by the President to the COA,
your Honor.
*Q That is true, but what happened here
is that you and Mr. Dabao or you and
Mr. Peralta signed requests for issuance
of Manager's checks and you were
accommodated by the PNB Office at
Nichols without any internal
documentation to justify your request for
Manager's checks?
A Yes, your Honor.
*Q Of course we had no intimation at
that time that Mr. Marcos will win the
elections but even then, the Daily
Express, which was considered to be a
newspaper friendly to the Marcoses at
that time, would occasionally come with
so-called expose, is that not so?
A Yes, your Honor.
*Q And worst, you had the so-called
mosquito press that would always come
out with the real or imagined scandal in
the government and place it in the
headline, do you recall that?
A Yes, your Honor.
*PJ GARCHITORENA
Under these circumstances, did you not
 entertain some apprehension that some
disloyal employees might leak you out
and banner headline it in some mosquito
publications like the Malaya at that time?
WITNESS
A No, your Honor.
*PJ GARCHITORENA
I bring this up because we are trying to
find out different areas of fear. We are in
the government and we in the
government fear the COA and we also
fear the press. We might get dragged
into press releases on the most innocent
thing. You believe that?
A Yes, your Honor.
*Q And usually our best defense is that
these activities are properly
documented?
A Yes, your Honor.
*Q In this particular instance, your
witnesses have told us about three (3)
different trips from Nichols to Aguado
usually late in the day almost in movie
style fashion. I mean, the money being
loaded in the trunk of your official car
and then you had a back-up truck
following your car?
A Yes, your Honor.
*Q Is that not quite a fearful experience
to you ?
A I did not think of that at that time, your
Honor.
*PJ GARCHITORENA
"Q You did not think it fearful to be
driving along Roxas Boulevard with P25
million in the trunk of your car?
WITNESS
A We have security at that time your
Honor.
ATTY. ANDRES
Your Honor, the P25 million was in the
armored car; only P5 million was in the
trunk of his car.
*PJ GARCHITORENA
Thank you for the correction. Even P1
million only. How much more with P5
million inside the trunk of your car, was
that not a nervous experience?
A As I have said, your Honor, I never
thought of that.
PJ GARCHITORENA
Thank you very much, Mr. Tabuena. You
are excused. . . . 42
(PERALTA)
(He testified on direct examination that
he co-signed with Tabuena a
memorandum request for the issuance
of the Manager's Check for P5 Million
upon order of Tabuena and that he
[Peralta] was aware that MIAA had an
existing obligation with PNCC in the
amount of around P27 Million. He
affirmed having accompanied Tabuena
at the PNB Villamor Branch to withdraw
the P5 Million, but denied having
misappropriated for his own benefit said
amount or any portion thereof.)
CROSS-EXAMINATION BY PROS
VIERNES
Q Will you please tell the Honorable
Court why was it necessary for you to
co-sign with Mr. Tabuena the request for
issuance of Manager's check in the
amount of P5 million?
A At that time I was the Acting Financial
Services Manager of MIAA, sir, and all
withdrawals of funds should have my
signature because I was one of the
signatories at that time.
Q As Acting Financial Services Manager
of MIAA, you always co-sign with Mr.
Tabuena in similar requests for the
issuance of Manager's checks by the
PNB?
A That is the only occasion I signed, sir.
Q Did you say you were ordered by Mr.
Tabuena to sign the request?
A Yes, sir, and I think the order is part of
the exhibits and based on that order, I
co-signed in the request for the issuance
of Manager's check in favor of Mr. Luis
Tabuena.
 PROS VIERNES
Q Was there a separate written order for
you to co-sign with Mr. Tabuena?
WITNESS
A Yes, sir, an order was given to me by
Mr. Tabuena.
*PJ GARCHITORENA
Was that marked in evidence?
WITNESS
Yes, your Honor.
*PJ GARCHITORENA
What exhibit?
WITNESS
I have here a copy, your Honor. This
was the order and it was marked as
exhibit "N".
PROS VIERNES
It was marked as Exhibit "M", your
Honor.
Q How did you know there was an
existing liability of MIAA in favor of
PNCC at that time?
A Because prior to this memorandum of
Mr. Tabuena, we prepared the financial
statement of MIAA as of December 31,
1985 and it came to my attention that
there was an existing liability of around
P27,999,000.00, your Honor.
Q When was that Financial Statement
prepared?
A I prepared it around January 22 or 24,
something like that, of 1986, sir.
Q Is it your usual practice to prepare the
Financial Statement after the end of the
year within three (3) weeks after the end
of the year?
A Yes, sir, it was a normal procedure for
the MIAA to prepare the Financial
Statement on or before the 4th Friday of
the month because there will be a Board
of Directors Meeting and the Financial
Statement of the prior month will be
presented and discussed during the
meeting.
*PJ GARCHITORENA
*Q This matter of preparing Financial
Statement was not an annual activity but
a monthly activity?
A Yes, your Honor.
*Q This Financial Statement you
prepared in January of 1986
recapitulated the financial condition as
of the end of the year?
A Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You made mention of a request for
Escalation Clause by former Minister
Ongpin. Did you personally see that
request?
A When this order coming from Mr.
Tabuena was shown to me, I was shown
a copy, sir. I have no file because I just
read it.
Q It was Mr. Tabuena who showed you
the letter of Minister Ongpin?
A Yes, sir.
*PJ GARCHITORENA
And that will be Exhibit?
ATTY. ANDRES
Exhibit "2" and "2-A", your Honor.
PROS VIERNES
Q You also stated that you were with Mr.
Tabuena when you withdrew the amount
of P5 million from the PNB Extension
Office at Villamor?
A Yes, sir.
Q Why was it necessary for you to go
with him on that occasion?
A Mr. Tabuena requested me to do the
counting by million, sir. So what I did
was to bundle count the P5 million and it
was placed in two (2) peerless boxes.
Q Did you actually participate in the
counting of the money by bundles?
A Yes, sir.
Q Bundles of how much per bundle?
A If I remember right, the bundles
consisted of P100s and P50s, sir.
Q No P20s and P10s?
A Yes, sir, I think it was only P100s and
 P50s.
*PJ GARCHITORENA
*Q If there were other denominations,
you can not recall?
A Yes, your Honor.
PROS VIERNES
Q In how many boxes were those bills
placed?
A The P5 million were placed in two (2)
peerless boxes,
Q And you also went with Mr. Tabuena
to Aguado?
A No, sir, I was left behind at Nichols.
After it was placed at the trunk of the car
of Mr. Tabuena, I was left behind and I
went back to my office at MIA.
Q But the fact is that, this P5 million was
withdrawn at passed 5:00 o'clock in the
afternoon?
A I started counting it I think at around
4:30, sir. It was after office hours. But
then I was there at around 4:00 o'clock
and we started counting at around 4:30
p.m. because they have to place it in a
room, which is the office of the Manager
at that time.
Q And Mr. Tabuena left for Malacaang
after 5:00 o'clock in the afternoon of that
date?
A Yes, sir. After we have counted the
money, it was placed in the peerless
boxes and Mr. Tabuena left for
Malacanang.
PROS VIERNES
Q And you yourself, returned to your
office at MIA?
WITNESS
A Yes, sir.
Q Until what time do you hold office at
the MIA?
A Usually I over-stayed for one (1) or
two (2) hours just to finish the paper
works in the office, sir.
Q So, even if it was already after 5:00
o'clock in the afternoon, you still went
back to your office at MIA?
A Yes, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY. ESTEBAL
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ DEL ROSARIO
*Q Did you not consider it as odd that
your obligation with the PNCC had to be
paid in cash?
WITNESS
A Based on the order of President
Marcos that we should pay in cash, it
was not based on the normal procedure,
your Honor.
*Q And, as Acting Financial Services
Manager, you were aware that all
disbursements should be covered by
vouchers?
A Yes, your Honor, the payments should
be covered by vouchers. But then,
inasmuch as what we did was to
prepare a request to the PNB, then this
can be covered by Journal Voucher
also.
*Q Was such payment of P5 million
covered by a Journal Voucher?
A Yes, your Honor.
*Q Did you present that Journal Voucher
here in Court?
A We have a copy, your Honor.
*Q Do you have a copy or an excerpt of
that Journal Voucher presented in Court
to show that payment?
A We have a copy of the Journal
Voucher, your Honor.
*Q Was this payment of P5 million ever
recorded in a cashbook or other
accounting books of MIAA ?
A The payment of P5 million was
recorded in a Journal Voucher, your
Honor.
*PJ GARCHITORENA
 *Q In other words, the recording was
made directly to the Journal?
WITNESS
A Yes, your Honor.
*Q There are no other separate
documents as part of the application for
Manager's Check?
A Yes, your Honor, there was none.
*AJ DEL ROSARIO
*Q After the payment was made, did
your office receive any receipt from
PNCC?
A I was shown a receipt by Mr. Tabuena,
the receipt given by Mrs. Fe Roa
Gimenez, your Honor. Inasmuch as the
payment should be made through the
Office of the president, I accepted the
receipt given by Mrs. Fe Gimenez to Mr.
Tabuena.
*Q After receiving that receipt, did you
prepare the necessary supporting
documents, vouchers, and use that
receipt as a supporting document to the
voucher?
A Your Honor, a Journal Voucher was
prepared for that.
*Q How about a disbursement voucher?
A Inasmuch as this was a request for
Manager's check, no disbursement
voucher was prepared, your Honor.
*AJ DEL ROSARIO
*Q Since the payment was made on
January 31, I986, and that was very
close to the election held in that year,
did you not entertain any doubt that the
amounts were being used for some
other purpose?
ATTY. ESTEBAL
With due respect to the Honorable
Justice, we are objecting to the question
on the ground that it is improper.
*AJ DEL ROSARIO
I will withdraw the question.
*PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct
examination, and secondly, I don't think
there was any basis, your Honor.
*PJ GARCHITORENA
Considering the withdrawal of the
question, just make the objection on
record.
*AJ HERMOSISIMA
*Q As a Certified Public Accountant and
Financial Manager of the MIAA, did you
not consider it proper that a check be
issued only after it is covered by a
disbursement voucher duly approved by
the proper authorities ?
A Your Honor, what we did was to send
a request for a Manager's check to the
PNB based on the request of Mr.
Tabuena and the order of Mr. Tabuena
was based on the Order of President
Marcos.
*PJ GARCHITORENA
*Q In your capacity as Financial
Services Manager of the MIAA, did you
not think it proper to have this
transaction covered by a disbursement
voucher?
WITNESS
A Based on my experience, payments
out of cash can be made through cash
vouchers, or even though Journal
Vouchers, or even through credit memo,
your Honor.
*AJ HERMOSISIMA
*Q This was an obligation of the MIAA to
the PNCC. Why did you allow a
disbursement by means of check in
favor of Mr. Luis Tabuena, your own
manager?
A We based the payment on the order of
Mr. Tabuena because that was the order
of President Marcos to pay PNCC
through the Office of the President and it
should be paid in cash, your Honor.
*Q You are supposed to pay only on
legal orders. Did you consider that
legal?
 ATTY. ESTEBAL
With due respect to the Honorable
Justice, the question calls for a
conclusion of the witness.
*PJ GARCHITORENA
Considering that tire witness is an
expert, witness may answer.
WITNESS
A The order of president Marcos was
legal at that time because the order was
to pay PNCC the amount of P5 million
through the Office of the President and it
should be paid in cash, your Honor. And
at that time, I know for a fact also that
there was an existing P.D. wherein the
President of the Republic of the
Philippines can transfer funds from one
office to another and the PNCC is a
quasi government entity at that time.
*AJ HERMOSISIMA
*Q Are you saying that this transaction
was made on the basis of that P.D.
which you referred to?
A I am not aware of the motive of the
President, but then since he is the
President of the Philippines, his order
was to pay the PNCC through the Office
of the President, your Honor.
*Q As Financial Manager, why did you
allow a payment in cash when ordinarily
payment of an obligation of MIAA is
supposed to be paid in check?
A I caused the payment through the
name of Mr. Tabuena because that was
the order of Mr. Tabuena and also he
received an order coming from the
President of the Philippines at that time,
your Honor.
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers
merely entries in the Journals to correct
certain statements of accounts earlier
made in the same journal?
In other words, really what you are
telling us is that, a Journal Voucher is to
explain a transaction was otherwise not
recorded.
WITNESS
A Yes, your Honor.
*Q Therefore, when you said that a
Journal Voucher here is proper, you are
saying it is proper only because of the
exceptional nature of the transactions?
A Yes, your Honor.
*Q In other words, as an Accountant,
you would not normally authorize such a
movement of money unless it is properly
documented?
ATTY. ESTEBAL
With due respect to the Honorable
Presiding Justice, I think the question is
misleading because what the witness
stated is. . .
*PJ GARCHITORENA
Be careful in your objection because the
witness understands the language you
are speaking, and therefore, you might
be coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant
that is why I could say that. . .
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the
ground that what the witness stated
earlier is that the Journal Voucher in this
particular case was supported, your
Honor.
*PJ GARCHITORENA
Overruled, may answer.
WITNESS
A The transaction was fully documented
since we have the order of the General
Manager at that time and the order of
President Marcos, your Honor.
*Q Are you saying the Order of the
General Manager is an adequate basis
for the movement of money?
A Yes, your Honor, because at that time
we have also a recorded liability of P27
million.
 *Q we are not talking of whether or not
there was a liability. What we are saying
is, is the order of the General Manager
by itself adequate with no other
supporting papers, to justify the
movement of funds?
A Yes, your Honor. The order of Mr. Luis
Tabuena was based on our existing
liability of P27,931,000.00, inasmuch as
we have that liability and I was shown
the order of President Marcos to pay P5
million through the Office of the
President, I considered the order of Mr.
Luis Tabuena, the order of President
Marcos and also the existing liability of
P27 million sufficient to pay the amount
of P5 million. Inasmuch as there is also
an escalation clause of P99.1 million,
the payment of P5 million is fully
covered by those existing documents.
*PJ GARCHITORENA
You keep flooding us with details we are
not asking for. We are not asking you
whether or not there was valid
obligation. We are not asking you about
the escalation clause. We are asking
you whether or not this particular order
of Mr. Tabuena is an adequate basis to
justify the movement of funds?
WITNESS
When we pay, your Honor, we always
look for the necessary documents and at
that time I know for a fact that there was
this existing liability.
*PJ GARCHITORENA
When we ask questions and when we
answer them, we must listen to the
question being asked and not to
whatever you wanted to say. I know you
are trying to protect yourself. We are
aware of your statement that there are
all of these memoranda.
*Q By your disbursement of such
amount, you are saying that the order of
Mr. Tabuena by itself is adequate?
WITNESS
A As far as I am concerned, your Honor,
inasmuch as we have a liability and I
was shown the Order of President
Marcos to pay PNCC through his office,
I feel that the order of the General
Manager, the order of President Marcos,
and also the memorandum of Minister
Ongpin are sufficient to cause the
payment of P5 million.
*PJ GARCHITORENA
*Q This Presidential Decree which
authorizes the President to transfer
funds from one department to another, is
this not the one that refers to the
realignment of funds insofar as the
Appropriation Act is concerned?
WITNESS
A Because at that time, your Honor, I
have knowledge that the President is
authorized through a Presidential
Decree to transfer government funds
from one office to another.
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are
payments of debts of the MIAA covered
by the Appropriation Act?
A I think the liability was duly recorded
and appropriations to pay the amount is.
. . . (interrupted)
*PJ GARCHITORENA
*Q Tell me honestly, is your answer
responsive to the question or are you
just throwing words at us in the hope
that we will forget what the question is?
A No, your Honor.
*Q Are you telling us that the debts
incurred by MIAA ate covered by the
Appropriations Act so that the payment
of this debt would be in the same level
as the realignment of funds authorized
the President? Or are you telling as you
did not read the Decree?
A I was aware of that Decree, your
Honor.
*PJ GARCHITORENA
Mr. Estebal, will you include in your
 memorandum what are the Decrees
authorizing this movement of funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q It is true that President Marcos was
the President, but he was not an officer
of the MIAA, was he?
A No, your Honor.
*Q In fact, for purposes of internal
control, you have different officers and
different officials in any company either
government or private, which are
supposed to check and balance each
other, is it not?
A Yes, your Honor.
*Q So that when disbursements of funds
are made, they are made by authority of
not only one person alone so that
nobody will restrain him?
A Yes, your Honor.
*Q These checks and balances exist in
an entity so that no one person can
dispose of funds in any way he likes?
A Yes, your Honor.
*Q And in fact, the purpose for having
two (2) signatories to documents and
negotiable documents is for the same
purpose?
A Yes, your Honor.
*PJ GARCHITORENA
*Q In other words, the co-signatories
counter check each other?
WITNESS
A Yes, your Honor.
*Q In your case, you would be the
counter check for Mr. Tabuena?
A Yes, your Honor.
*Q In the other words, even if Mr.
Tabuena is the Manager, you as
Financial Services Manager and as
counter signatory are in a position to tell
Mr. Tabuena, "I am sorry, you are my
superior but this disbursement is not
proper and, therefore, I will not sign it".,
if in your opinion the disbursement is not
proper?
A Yes, your Honor.
*Q Therefore, as a co-signatory, you
expected to exercise your judgment as
to the propriety of a particular
transactions?
A Yes, your Honor.
*Q And this is something you know by
the nature of your position and because
you are a Certified Public Accountant?
A Yes, your Honor.
*AJ DEL ROSARIO
*Q You admit that the payment of P5
million and P50 million were unusual in
the manner with which they were
disposed?
A Yes, your Honor.
*Q Did you submit a written protest to
the manner in which such amount was
being disposed of?
A A written protest was not made, your
Honor, but I called the attention of Mr.
Tabuena that since this payment was
upon the order of President Marcos,
then I think as President he can do
things which are not ordinary.
*Q If you did not prepare a written
protest, did you at least prepare a
memorandum for the record that this
was an extra-ordinary transaction?
A I called the attention of Mr. Tabuena
that this was an extra-ordinary
transaction and no written note, your
Honor.
PJ GARCHITORENA
Thank you very much Mr. Peralta, you
are excused. . . . 43
This Court has acknowledged the right
of a trial judge to question witnesses
with a view to satisfying his mind upon
any material point which presents itself
during the trial of a case over which he
presides. 44 But not only should his
examination be limited to asking
"clarificatory" questions, 45 the right
should be sparingly and judiciously
used; for the rule is that the court should
stay out of it as much as possible,
neither interfering nor intervening in the
conduct of the trial. 46 Here, these
limitations were not observed. Hardly in
fact can one avoid the impression that
the Sandiganbayan had allied itself with,
or to be more precise, had taken the
cudgels for the prosecution in proving
the case against Tabuena and Peralta
when the Justices cross-examined the
witnesses, their cross- examinations
supplementing those made by
Prosecutor Viernes and far exceeding
the latter's questions in length. The
"cold neutrality of an impartial judge"
requirement of due process was
certainly denied Tabuena and Peralta
when the court, with its
overzealousness, assumed the dual role
of magistrate and advocate. In this
connection, the observation made in the
Dissenting Opinion to the effect that the
majority of this Court was "unduly
disturbed" with the number of court
questions alone, is quite inaccurate. A
substantial portion of the TSN was
incorporated in the majority opinion not
to focus on "numbers" alone, but more
importantly to show that the court
questions were in the interest of the
prosecution and which thus depart from
that common standard of fairness and
impartiality. In fact, it is very difficult to
be, upon review of the records,
confronted with "numbers" without
necessarily realizing the partiality of the
Court. In "US v. De Sisto" (2 Cir., 1961,
289 F 2d 833), for example, a new trial
was required because the trial judge, as
in this case, indulged in extensive
questioning of defendant and his
witnesses, and the reviewing court also
had to amplify on "numbers" to bolster
this. It was pointed out in the "De Sisto"
case that the judge asked 3,115
questions of all witnesses, the
prosecutor asked but 1,381, defense
counsel 3,330. The judge's questions to
the defendant De Sisto totalled 306, the
prosecutor's 347, and the defense
counsel's, 201. After referring to these
figures, the court stated:
. . . It is indeed an impressive proportion,
but no such mathematical computation
is of itself determinative. However,
taking all this in conjunction with the
long and vigorous examination of the
defendant himself by the judge, and the
repeated belittling by the judge of
defendant's efforts to establish the time
that Fine left the pier, we fear that in its
zeal for arriving at the facts the court
here conveyed to the jury too strong an
impression of the court's belief in the
defendant's probable guilt to permit the
jury freely to perform its own function of
independent determination of the facts. .
..
The majority believes that the
interference by the Sandiganbayan
Justices was just too excessive that it
cannot be justified under the norm
applied to a jury trial, or even under the
standard employed in a non-jury trial
where the judge is admittedly given
more leeway in propounding questions
to clarify points and to elicit additional
relevant evidence. At the risk of being
repetitious, we will amplify on this via
some specific examples. Based on the
evidence on record, and on the
admission of Tabuena himself, the P55
million was delivered to the President's
Office thru Mrs. Gimenez, in obedience
to the Presidential directive. One
Sandiganbayan Justice, however, hurled
the following questions to Peralta:
AJ DEL ROSARIO
Q: Since the payment was made on
January 31, 1986, and that was very
close to the election held in that year,
 did you not entertain any doubt that the
amounts were being used for some
other purposes?
ATTY. ESTEBAL
With due respect to the Honorable
Justice, We are objecting to the question
on the ground that it is improper.
AJ DEL ROSARIO
I will withdraw the question.
PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct
examination, and secondly, I don't think
there was any basis, Your Honor.
PJ GARCHITORENA
Considering the withdrawal of the
question, just make the objection on
record.
Nothing from the preceding questions of
counsels or of the court would serve as
basis for this question. How then, can
this be considered even relevant? What
is the connection between the payment
made to the President's office and the
then forthcoming presidential "snap
election"? In another instance, consider
the following questions of Presiding
Justice Garchitorena:
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers
merely entries in the Journals to correct
certain statements of accounts earlier
made in the same journal?
xxx xxx xxx
*Q In other words, really what you are
telling us is that, a Journal Voucher is to
explain a transaction was otherwise not
recorded.
xxx xxx xxx
*Q Therefore, when you said that a
Journal Voucher here is proper, you are
saying it is proper only because of the
exceptional nature of the transactions?
xxx xxx xxx
*Q In other words, as an Accountant,
you would not normally authorize such a
movement of money unless it is properly
documented?
ATTY. ESTEBAL
With due respect to the Honorable
Presiding Justice, I think the question is
misleading because what the witness
stated is . . .
*PJ GARCHITORENA
Be careful in your objection because the
witness understands the language you
are speaking, and therefore, you might
be coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant
that is why I could say that . . .
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the
ground that what the witness stated
earlier is that the Journal Voucher in this
particular case was supported, your
Honor.
*PJ GARCHITORENA
Overruled may answer.
WITNESS
A The transaction was fully documented
since we have the order of the General
Manager at that time and the order of
President Marcos, your Honor.
*Q Are you saying the Order of the
General Manager is an adequate basis
for the movement of money?
*Q We are not talking of whether or not
there was a liability. What we are saying
is, is the order of the General Manager
by itself adequate with no other
supporting papers, to justify the
movement of funds?
*PJ GARCHITORENA
You keep flooding us with details we are
not asking for. We are not asking you
whether or not there was valid
obligation. We are not asking you about
the escalation clause. We are asking
 you whether or not this particular order
of Mr. Tabuena is an adequate basis to
justify the movement of funds?
*PJ GARCHITORENA
When we ask questions and when we
answer them, we must listen to the
question being asked and not to
whatever you wanted to say. I know you
are trying to protect yourself. We are
aware of your statement that there are
all of these memoranda.
*Q By your disbursement of such
amount, you are saying that the order of
Mr. Tabuena by itself is adequate?
*PJ GARCHITORENA
*Q This Presidential Decree which
authorizes the President to transfer
funds from one department to another, is
this not the one that refers to the
realignment of funds insofar as the
Appropriation Act is concerned?
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are
payments of debts of the MIAA covered
by the Appropriation Act?
*PJ GARCHITORENA
*Q Tell me honestly, is your answer
responsive to the question or are you
just throwing words at us in the hope
that we will forget what the question is?
xxx xxx xxx
*Q Are you telling us that the debts
incurred by MIAA are covered by the
Appropriations Act so that the payment
of this debt would be in the same level
as the realignment of funds authorized
the President? Or are you telling as you
did not read the Decree?
*PJ GARCHITORENA
Mr. Estebal, will you include in your
memorandum what are the Decrees
authorizing this movement of funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q It is true that President Marcos was
the President, but he was not an officer
of the MIAA, was he?
*Q In fact, for purposes of internal
control, you have different in officers and
different officials in any company either
government or private, which are
supposed to check and balance each
other, is it not?
*Q So that when disbursements of funds
are made, they are made by authority of
not only one person alone so that
nobody will restrain him?
*Q These checks and balances exist in
an entity so that no one person can
dispose of funds in any way he likes?
*Q And in fact, the purpose for having
two (2) signatories to documents and
negotiable documents is for the same
purpose?
*PJ GARCHITORENA
*Q In other words, the co-signatories
counter check each other?
*Q In your case, you would be the
counter check for Mr. Tabuena?
*Q In other words, even if Mr. Tabuena
is the Manager, you as Financial
Services Manager and as counter
signatory are in a position to tell Mr.
Tabuena, "I am sorry, you are my
superior but this disbursement is not
proper and, therefore, I will not sign it.",
if in your opinion the disbursement is not
proper?
*Q Therefore, as co-signatory, you are
expected to exercise your judgment as
to the propriety of a particular
transaction ?
*Q And this is something you know by
the nature of your position and because
you are a Certified Public Accountant? 47
How can these questions be considered
clarificatory when they clearly border
more on cross-examination questions?
Thus, the Dissenting Opinion's focus on
the distinction between the two kinds of
trial to justify the Sandiganbayan's
 active participation in the examination of
petitioners Tabuena and Peralta and
witness Monera, with due respect,
appears insignificant to this case. Let it,
therefore, be emphasized anew that:
A trial judge should not participate in the
examination of witnesses as to create
the impression that he is allied with the
prosecution. 48
We doubt not that the sole motive of the
learned judge was to ascertain the truth
of the transaction, but it is never proper
for a judge to discharge the duties of a
prosecuting attorney. However anxious
a judge may be for the enforcement of
the law, he should always remember
that he is as much judge in behalf of the
defendant accused of crime, and whose
liberty is in jeopardy, as he is judge in
behalf of the state, for the purpose of
safeguarding the interests of society. 49
Ordinarily it is not good practice for the
presiding judge himself to examine
witnesses at length. The circumstances
may be such in a given case as to justify
the court in so doing. . . . This court,
however, has more than once said that
the examination of witnesses is the
more appropriate function of counsel,
and the instances are rare and the
conditions exceptional which will justify
the presiding judge in conducting an
extensive examination. It is always
embarrassing for counsel to object to
what he may deem improper questions
by the court. Then, in conducting a
lengthy examination, it would be almost
impossible for the judge to preserve a
judicial attitude. While he is not a mere
figurehead or umpire in a trial, and it is
his duty to see that justice is done, he
will usually not find it necessary to
conduct such examinations. The extent
to which this shall be done must largely
be a matter of discretion, to be
determined by the circumstances of
each particular case, but in so doing he
must not forget the function of the judge
and assume that of an advocate. . . 50
While it is true that the manner in which
a witness shall be examined is largely in
the discretion of the trial judge, it must
be understood that we have not adopted
in this country the practice of making the
presiding judge the chief inquisitor. It is
better to observe our time-honored
custom of orderly judicial procedure,
even at the expense of occasional
delays. . . . The judge is an important
figure in the trial of a cause, and while
he has the right, and it is often his duty,
to question witnesses to the end that
justice shall prevail, we can conceive of
no other reason, for him to take the trial
of the cause out of the hands of counsel.
51
The examination of witnesses is the
more appropriate function of counsel,
and it is believed the instances are rare
and the conditions exceptional in a high
degree which will justify the presiding
judge in entering upon and conducting
an extended examination of a witness,
and that the exercise of a sound
discretion will seldom deem such action
necessary or advisable. 52
He [the judge] may properly intervene in
a trial of a case to promote expedition,
and prevent unnecessary waste of time,
or to clear up some obscurity, but he
should bear in mind that his undue
interference, impatience, or participation
in, the examination of witnesses, or a
severe attitude on his part toward
witnesses, especially those who are
excited or terrified by the unusual
circumstances of a trial, may tend to
prevent the proper presentation of the
cause, or the ascertainment of the truth
in respect thereto. 53
The impartiality of the judge his
avoidance of the appearance of
becoming the advocate of either one
side or the other of the pending
controversy is a fundamental and
essential rule of special importance in
criminal cases. . . 54
Our courts, while never unmindful of
their primary duty to administer justice,
without fear or favor, and to dispose of
these cases speedily and in as
inexpensive a manner as is possible for
the court and the parties, should refrain
from showing any semblance of one-
sided or more or less partial attitude in
order not to create any false impression
in the minds of the litigants. For obvious
reasons, it is the bounden duty of all to
strive for the preservation of the
people's faith in our courts. 55
Time and again this Court has declared
that due process requires no less than
the cold neutrality of an impartial judge.
Bolstering this requirement, we have
added that the judge must not only be
impartial but must also appear to be
impartial, to give added assurance to the
parties that his decision will be just. The
parties are entitled to no less than this,
as a minimum guaranty of due process.
56
We are well aware of the fear
entertained by some that this decision
may set a dangerous precedent in that
those guilty of enriching themselves at
the expense of the public would be able
to escape criminal liability by the mere
expedient of invoking "good faith". It
must never be forgotten, however, that
we render justice on a case to case
basis, always in consideration of the
evidence that is presented. Thus, where
the evidence warrants an acquittal, as in
this case, we are mandated not only by
the dictates of law but likewise of
conscience to grant the same. On the
other hand, it does not follow that all
those similarly accused will necessarily
be acquitted upon reliance on this case
as a precedent. For the decision in this
case to be a precedent, the peculiar
circumstances and the evidence that led
to the petitioner's acquittal must also be
present in subsequent cases.
Furthermore, as between a mere
apprehension of a "dangerous
precedent" and an actual violation of
constitutionally enshrined rights, it is
definitely the latter that merits our
immediate attention. For the most
dangerous precedent arises when we
allow ourselves to be carried away by
such fears so that it becomes lawful to
sacrifice the rights of an accused to
calm the fearful. In our eagerness to
bring to justice the malefactors of the
Marcos regime, we must not succumb to
the temptation to commit the greatest
injustice of visiting the sins of the
wrongdoers upon an innocent.
WHEREFORE, in view of the foregoing,
herein petitioners Luis A. Tabuena and
Adolfo M. Peralta are hereby
ACQUITTED of the crime of
malversation as defined and penalized
under Article 217 of the Revised Penal
Code. The Sandiganbayan Decision of
October 12, 1990 and the Resolution
dated December 20, 1991 are
REVERSED and SET ASIDE.
SO ORDERED
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 125334 January 28, 1998
PEOPLE OF THE PHILIPPINES,
plaintiff-appellee,
vs.
CRESENCIO TABUGOCA, accused-
appellant.
PER CURIAM:
This is an automatic review of the joint
decision 1 rendered by Branch 18 of the
Regional Trial Court of Ilagan, Isabela in
Criminal Cases Nos. 2386 and 2387
finding accused-appellant Cresencio
Tabugoca guilty of two counts of rape
committed against his very own
daughters and imposing upon him the
penalty of reclusion perpetua in the first
case and the death penalty in the
second.
In two informations simultaneously filed
on January 20, 1995 in the aforesaid
trial court, accused-appellant was
accused of raping his daughters in two
separate incidents. The information in
Criminal Case No. 2386 charges him as
follows:
That on or about the 28th day of March,
1992 in the municipality of Naguilian,
province of Isabela, Philippines and
within the jurisdiction of this Honorable
Court, the said accused, did then and
there willfully, unlawfully and feloniously,
by means of force, intimidation and with
lewd designs, have carnal knowledge
with his own daughter JACQUELINE A.
TABUGOCA, a girl of 14 years old (sic),
against the latter's will and consent. 2
The information in Criminal Case No.
2387 alleges:
That on or about the 9th day of
December, 1994, in the municipality of
Naguilian, province of Isabela,
Philippines and within the jurisdiction of
this Honorable Court, the said accused,
did then and there willfully, unlawfully
and feloniously, by means of force,
intimidation and with lewd designs, have
carnal knowledge with his own daughter
JINKY A. TABUGOCA, a girl of 12 years
old (sic), against the latter's will and
consent. 3
Accused-appellant pleaded not guilty
when duly arraigned separately on the
two indictments with the assistance of
counsel de officio. 4 After a consolidated
trial on the merits, on March 15, 1996
the court a quo rendered the decision
now under mandatory review. 5 The
commission of the two felonies was
found by the lower court to have been
attended by the aggravating
circumstances of relationship and
intoxication purposely sought by
accused-appellant to embolden him to
commit the same.
In Criminal Case No. 2386, accused-
appellant was sentenced to suffer the
penalty of reclusion perpetua and
directed to indemnity Jacqueline
Tabugoca in the sum of P50,000.00. In
Criminal Case No. 2387, wherein the
crime charged was committed after the
effectivity of Republic Act No. 7659 on
December 31, 1993, 6 he was
condemned to suffer the capital
punishment of death and ordered to
indemnify Jinky Tabugoca in the sum of
P50,000.00.
The trial court arrived at the conclusion
that, beyond reasonable doubt,
accused-appellant had committed the
crimes charged on the bases of the
testimonies of the victims, as
corroborated by the medical reports, and
the testimony of the physician who
examined them.
The respective complainants in Criminal
Cases Nos. 2386 and 2387, namely,
Jacqueline Tabugoca and Jinky
Tabugoca, are the daughters of
accused-appellant. 7 This was not
denied by him. He even expressly
declared during his testimony that
Jacqueline 8 and Jinky 9 are his
daughters.
Complainant Jacqueline testified that
she and her three younger sisters,
Janet, Jinky and Jewel, lived under the
sole care of their father after their
mother died on August 28, 1991. While
she and her sisters were sleeping in
their house at Barangay Roxas,
Naguilian, Isabela at around 10 o'clock
in the evening of March 28, 1992, she
was roused by her father who asked her
to scratch his back. It turned out,
however, that accused-appellant had
other intentions that night aside from
relief from his itchy discomfort.
While Jacqueline was thus scratching
her father's back, he told her to stay and
wait for a while. Without any intimation,
accused-appellant then removed her
shorts and underwear and made her lie
down beside him. Jacqueline could only
cry at this point. As soon as she was
completely disrobed, accused-appellant
inserted his penis into her vagina. With
his manhood inside his daughter,
accused-appellant warned her not to tell
anyone of his dastardly act if she would
not want to be harmed (makaala ka
kaniak). Complainant was so petrified
with fear that she did not even dare ask
her father why he was sexually
molesting her. 10
Jacqueline was twelve years and three
months old at the time of the incident,
she having been born on December 27,
1979. 11
Because of the incident, Jacqueline
harbored ill-feelings against her father,
and she reportedly became the object of
gossip by her classmates in school. 12
However, she did not tell anyone about
her ordeal at the hands of her own
father until she learned that the same
misfortune had befallen her sister, Jinky.
In Criminal Case No. 2387, complainant
Jinky declared in the court below that
her father tried to rape her in the early
morning of December 9, 1994. While
she was cleaning some articles in their
house, accused-appellant approached
her and then took off his clothes. He
then ordered Jinky to lie down and he
removed her shorts and panty.
Thereafter, he inserted his penis into her
vagina. Jinky cried and complained to
her father that she was in pain.
Accused-appellant explained that it is
ordinary to feel pain because it was her
first time to experience coitus.
After a while, he did not persist anymore
in his sexual pursuit. Appellant lay down
beside Jinky and told her that they will
continue the following day. At dawn of
December 10, 1994, accused-appellant
made another attempt to carnally molest
Jinky. This time, however, Jinky resisted,
thereby causing appellant to just lie
down and leave her alone. 13
Jinky was only 12 years and nine
months old at the time of the incident,
she having been born on March 5,1982.
14
Later, on the same day, while Jacqueline
and Jinky were watching television at
their grandmother's house nearby, Jinky
confided to her grandmother about the
sexual abuses of her father against her.
Upon hearing the revelations of her
sister, Jacqueline also disclosed to her
grandmother her own experience with
her father two years before. 15
The victims' grandmother, Perlita
Alejandro, forthwith brought her
granddaughters to the police authorities
and then to the Municipal Health Officer
of Naguilian for physical examination.
The two were examined on December
12, 1994 by Dr. Maryann M. Fontanares.
16
For Criminal Case No. 2386, with
respect to Jacqueline, the doctor
reduced her findings into a medico-legal
certificate 17 attesting as follows:
LEGAL FINDINGS:
1. PE findings: essentially normal except
for the anxiety that the victim exhibited
2. Internal Examination : multiple healed
lacerations/scars at 3, 5, 6 and 9 o'clock
positions of the hymen.
: introitus admits two fingers with ease
. . . no other findings
noted . . .
RECOMMENDATIONS:
Impression : The above findings suggest
that the victim was forcibly abused and
the incident, the first one happened long
ago based on the healed scars of the
hymen.
For Criminal Case No. 2387, regarding
Jinky, the medico-legal
certificate 18 of the doctor states:
LEGAL FINDINGS:
1. The vulva is edematous although the
hymen is intact. . . . no other findings
noted . . . .
RECOMMENDATIONS:
The above findings suggest that full
penetration was not successful although
attempts were done based on the
swelling vulva of the victim.
During her testimony in court, Dr.
Fontanares explained that the
lacerations found on Jacqueline's
hymen were the result of sexual
intercourse which happened
approximately on the date alleged. She
added that, aside from the swelling of
Jinky's labia, she also found out that
they were tender and reddish. 19
After the examination, Jacqueline
executed a criminal complaint 20 for rape
against accused-appellant, while Jinky
charged accused-appellant with
frustrated rape in her own criminal
complaint. 21
At the trial, accused-appellant raised the
defense of his having been completely
unaware of what transpired on March
28, 1992 and on December 9, 1994 as
he was very drunk on those occasions.
According to him, he does not know if he
had sexually assaulted his daughter,
Jacqueline. He only came to know of the
complaint of Jacqueline against him
after the policemen who arrested him on
December 10, 1994 told him thereof. On
the same day, Jacqueline allegedly
informed him that he was drunk on
March 28, 1992, but he claimed that he
could not recall if indeed he drank liquor
that day. He then surmised that perhaps
he did drink liquor based only on the
supposed statement of Jacqueline. 22
With regard to the complaint of Jinky,
accused-appellant similarly declared in
the lower court that he drank liquor in
their house on December 9, 1994,
Again, he claimed that he could not
recollect the ensuing events after he had
finished drinking. He was allegedly
merely in formed by the arresting
policemen on December 10, 1994 that
Jinky was accusing him of attempted
rape.
Jacqueline, on cross-examination,
stated that her father smelled of liquor
and may have taken some drinks at the
time of the incident. 23 On the part of
Jinky, she testified in turn that her father
was drunk on the night of December 9,
1994. 24
Accused-appellant claimed that he
learned to drink liquor after his wife died
on August 28, 1991. Prior to his wife's
death, he was not used to drinking
alcoholic beverages. He later resorted to
alcohol whenever he would remember
his deceased wife, but he allegedly
drank only once in a while.
Accused-appellant also opined that
Jacqueline and Jinky must have filed
their respective complaints in order to
get back at him for castigating or
whipping them whenever they
committed mistakes.
In view of the gravity of the crimes
charged and of the penalty imposable
therefor, we patiently considered and
thoroughly deliberated on all the
arguments and defenses presented by
defendant-appellant not only in his brief
but even in his memorandum before the
trial court, with all the possible
implications and possibilities thereof, no
matter how specious and ridiculous
some of them may appear to be. We
have likewise taken into account the
socio-economic status and the apparent
intellectual level of accused-appellant as
may be gleaned from the record.
After much thought and reflection, we
find no reason to depart from the
judgment of the court a quo.
On its own, the defense presented by
accused-appellant before the lower
court is pitifully and completely
unavailing. In law and in truth, he neither
denied the charges against him nor
raised any absolutory cause in his
defense. His feeble excuse of having
been under the influence of liquor in
order to disclaim knowledge of his
felonious acts does not inspire belief al
all. The defense did not even comply
with the evidentiary elements whereby
he could claim intoxication as a
mitigating circumstance. The categorical
and untraversed testimonies of his
daughters as to how he committed the
bestial outrage, and their identification of
accused-appellant as their defiler,
remain uncontroverted and fully
establish the charges.
Accused-appellant's pretext that he
could not remember the events of March
28, 1992 and December 4, 1994 is
rendered more effete in light of the
arguments in his memorandum 25
submitted before the lower court. There,
he claimed exemption from criminal
liability on the ground of insanity brought
about by intoxication, invoking therefor
some dicta in American jurisprudence.
We have held that the law presumes
every man to be sane. A person
accused of a crime who pleads the
exempting circumstance of insanity has
necessarily the consequent burden of
proving it. 26 Further, in order that
insanity may be taken as an exempting
circumstance, there must be complete
depreciation of intelligence in the
commission of the act or that the
accused acted without the least
discernment. Mere abnormality of his
mental faculties does not preclude
imputability. 27
Accused-appellant has utterly failed to
overthrow the presumption of sanity.
The defense did not present any expert
witness, any psychiatric evaluation
report, or any psychological findings or
evidence regarding his mental condition
at the time of the commission of the
offenses. Accused-appellant's charade
of amnesia is evidently a desperate
gambit for exculpation. Yet, amnesia, in
and of itself, is no defense to a criminal
charge unless it is shown by competent
proof that the accused did not know the
nature and quality of his action and that
it was wrong. Failure to remember is in
itself no proof of the mental condition of
the accused when the crime was
performed. 28
Also in the same memorandum,
accused-appellant posits that he cannot
be prosecuted for rape in Criminal Case
No. 2386 because the criminal
complaint of Jinky only accuses him of
frustrated rape. With such a charge, he
argues that the trial court's jurisdiction to
punish him is limited only to said offense
and cannot cover consummated rape.
This is a meritless argument. When it is
said that the filing of the complaint by
the offended party in cases of rape is
jurisdictional, what is meant is that it is
the complaint that starts the prosecutory
proceeding, but it is not the complaint
which confers jurisdiction on the court to
try the case. The court's jurisdiction is
vested in it by the Judiciary Law. 29 Since
the penalty for the rape in Criminal Case
No. 2387 is properly within the
jurisdiction of the regional trial court, 30
then Branch 18 of the Regional Trial
Court of Ilagan, Isabela may hear and
try the offense charged in the
information and impose the punishment
for it.
In People vs. Bangalao, et al., 31 we
convicted an accused of rape committed
against a minor as charged in the
information, despite the allegation in the
complaint that the rape was committed
through force and intimidation, on this
ratiocination:
It must be borne in mind that complaints
are prepared in municipalities, in most
cases without the advice or help of
competent counsel. When the case
reaches the Court of First Instance, the
Fiscal usually conducts another
investigation, and thereafter files the
information which the results thereof
justify The right and power of the court
to try the accused for the crime of rape
attaches upon the filing of the complaint,
and a change in the allegations thereof
as (to) the manner of committing the
crime should not operate to divest the
court of jurisdiction already acquired.
In his brief, 32 accused-appellant
contends that his guilt has not been
proved beyond reasonable doubt by the
prosecution. In support of this lone
assignment of error, he seeks to
capitalize, among others, on the failure
of Jacqueline to immediately report the
crime. Such failure, appellant contends,
renders doubtful the truth of her
accusation.
The failure of complainant Jacqueline to
immediately report the incident to the
authorities does not necessarily cast
doubt on the credibility of the charge in
Criminal Case No. 2386. It is a settled
decisional rule that delay in reporting a
rape case committed by a father against
his daughter due to threats is justified. 33
In the numerous cases of rape that have
reached this Court, we find that it is not
uncommon for young girls to conceal,
for some time, the assaults on their
honor because of the rapist's threat on
their lives. 34
In many instances, rape victims simply
suffer in silence. With more reason
would a girl ravished by her own father
keep quiet about what befell her.
Furthermore, it is unfair to judge the
action of children who have undergone
traumatic experiences by the norms of
behavior expected of mature individuals
under the same circumstances. 35
In People vs. Melivo, 36 we declared that:
. . . Delay in reporting rape incidents, in
the face of threats of physical violence,
cannot be taken against the victim. A
rape victim's actions are oftentimes
overwhelmed by fear rather than by
reason. It is this fear, springing from the
initial rape, that the perpetrator hopes to
build a climate of extreme psychological
terror, which would, he hopes, numb his
victim into silence and submissiveness.
Incestuous rape magnifies this terror,
because the perpetrator is a person
normally expected to give solace and
protection to the victim. Furthermore, in
incest, access to the victim is
guaranteed by the blood relationship,
proximity magnifying the sense of
helplessness and the degree of fear.
This Court further trenchantly observed
in the same decision that:
In all of these and other cases of
incestuous rape, the perpetrator takes
full advantage of his blood relationship,
ascendancy and influence over the
victim, both to commit the sexual assault
and to intimidate the victim into silence.
Unfortunately for some perpetrators of
incestuous rape, their victims manage to
break out from the cycle of fear and
terror. In People vs. Molero we
emphasized that "an intimidated person
cowed into submitting to a series of
repulsive acts may acquire some
courage as she grows older and finally
state that enough is enough, the
depraved malefactor must be punished.
We cannot therefore expect young
Jacqueline to disregard the threat to her
life and immediately cry rape in the face
of the threats of her father and his
constant presence in their home.
Accused-appellant next asserts in his
brief that Jacqueline filed her complaint
in Criminal Case No. 2386 only out of
sympathy with, and by way of revenge
for what her father had done to, her
younger sister. We find it opportune to
discuss, together with this contention,
the lame excuse of the defense before
the trial court that Jacqueline and Jinky
filed their complaints because they
suffered beatings from accused-
appellant. We find that the motive
imputed to the sisters are grossly
implausible and insufficient to make
them falsely charge their own father. It is
highly inconceivable that they would
claim having been raped just because
their father spanks them whenever they
commit mistakes.
Mere disciplinary chastisement is not
strong enough to make daughters in a
Filipino family invent a charge that would
only bring shame and humiliation upon
them and their own family and make
them the object of gossip among their
classmates and friends. It is
unbelievable that Jacqueline would
fabricate a serious criminal charge just
to get even with her father and to
empathize with her sister. The sisters
would not contrive stories of defloration
and charge their own father with rape
unless these stories are true. For that
matter, no young Filipina of decent
repute would falsely and publicly admit
that she had been ravished and abused
considering the social stigma thereof. 37
At their tender age, Jacqueline and
Jinky needed sustenance and support
from their father. They certainly were
aware that they would be deprived of a
provider once their accusations against
him are proven. In fact, the
consequences of filing a case of rape
are so serious that an ordinary woman
would have second thoughts about filing
charges against her assailant. It requires
much more for a thirteen-year old or a
twelve-year old provincial lass to devise
a story of rape, have her private parts
examined, subject herself to the
indignity of a public trial and endure a
lifetime of ridicule. Even when
consumed with revenge, it takes a
certain amount of psychological
depravity for a young woman to concoct
a story which would at the least put her
own father for the rest of his remaining
life in jail and drag herself and the rest of
her family into a lifetime of shame. 38
Thus, the unfounded claim of evil
motives on the part of the victims would
not destroy the credibility reposed upon
them by the trial court because, as we
have held, a rape victim's testimony is
entitled to greater weight when she
accuses a close relative of having been
raped her, as in the case of a daughter
against her father. 39 Furthermore, the
testimony of the victim who was only
twelve years old at the time of the rape
as to the circumstances thereof must be
given weight, for it is an accepted rule
that testimonies of rape victims who are
young and of tender age are credible. 40
Accused-appellant also faults the trial
court for not duly appreciating the
testimony of Jinky to the effect that he
only attempted to rape her and then
desisted after she felt some pain. In
relation to this, appellant maintains that
there was no rape in Criminal Case No.
2387 because of the absence of
lacerations on Jinky's vagina as found
after medicolegal examination.
It is axiomatic in criminal law that in
order to sustain a conviction for rape, full
penetration of the female genital organ
is not required. It is enough that there is
proof of the entrance of the male organ
within the labia of the pudendum of the
female organ. Penetration of the penis
by entry into the lips of the vagina, even
without rupture or laceration of the
hymen, suffices to warrant conviction for
rape. The rupture of the hymen or
laceration of any part of the woman's
genitalia is not indispensable to a
conviction for rape. Thus, a finding that
the victim's hymen is intact and has no
sign of laceration does not negate a
finding that rape was committed. 41
Jinky, being young and unschooled in
the ways of the law, may have
entertained the notion that complete
penile penetration is necessary when
she declared that her father only
attempted to rape her. She was, of
course, not in any position to legally
distinguish consummated from
attempted rape. This matter concerns a
conclusion of law addressed to the
judgment of the courts. The declaration
of Jinky that her father inserted his penis
into her vagina and the finding of
swelling in her labia are enough to prove
that rape was committed as these are
telltale signs of entry into the vaginal
lips.
Accused-appellant contends in his
memorandum that the prosecution failed
to prove the employment of force and
intimidation against complainants in both
criminal cases. Corollary to his reliance
on the absence of force or intimidation,
he asseverates in his brief that the
absence of resistance from Jinky
suffices to hold that the sexual
intercourse was voluntary. The defense
then begs for this Court's liberality in
considering that Jinky was moved to
engage in copulation by a spirit of
adventurousness.
There is no doubt that the appellant had
carnal knowledge of his two daughters.
The fact of sexual intercourse was
indubitably shown by the testimonies of
the complainants, the medical report
and testimony of Dr. Fontanares, and
even by the alternative submission of
appellant that his sexual intercourse with
Jinky was consensual. Clinging to his
vain hope for acquittal, he then claims
that the element of force or intimidation
essential in rape is lacking in the cases
filed against him.
In direct refutation of appellant's theory,
we once again declare that in
incestuous rape, it is not necessary that
actual force and intimidation be
employed. It is sufficient that the
accused exercised a pervasive influence
and control over the victim. 42 Even if
there was no violence employed in the
sexual congress, the moral influence of
appellant over the complainant suffices
to constitute it into the crime of rape. 43
In People vs. Mabunga, 44 where we
convicted the accused for raping his
thirteen-year old daughter, we held that:
. . . Hence, even assuming that force or
intimidation had not been actually
employed, the crime of rape was
nevertheless committed. The absence of
violence or offer of resistance would not
be significant because of the
overpowering and overbearing moral
influence of the father over the daughter
which takes the place of violence and
offer of resistance required in rape
cases committed by an accused having
no blood relationship with the victim.
The rationale for such a ruling can be
found in our discourse in People vs.
Matrimonio 45 to the effect that:
In a rape committed by a father against
his own daughter, the former's moral
ascendancy and influence over the latter
substitutes for violence or intimidation.
That ascendancy or influence
necessarily flows from the father's
parental authority, which the Constitution
and the laws recognize, support and
enhance, as well as from the children's
duty to obey and observe reverence and
respect towards their parents. Such
reverence and respect are deeply
ingrained in the minds of Filipino
children and are recognized by law.
Abuse of both by a father can subjugate
his daughter's will, thereby forcing her to
do whatever he wants.
Thus two forms of intimidation under
Article 335 of the Revised Penal Code
were recognized in Matrimonio, that is
(1) threats and (2) overpowering moral
influence. Accused-appellant exercised
such moral influence over herein
complainants. Being the victims' father,
accused-appellant had that moral
ascendancy and influence over his
daughters which, in itself, was sufficient
to intimidate and force them to submit to
his desires. 46 The fact that no resistance
was offered by Jinky did not in any way
qualify the coitus as freely consented to
by her. Judging accused-appellant's
threats and intimidation in the context of
Jinky's understanding at the time of the
rape, it can readily be concluded that
her will to resist was overcome by her
father's strong parental authority.
As we held in the aforecited case of
Mabunga, in rape the manner, form and
tenacity of resistance of the victim
therein are dependent on a number of
factors, among which are the age and
size of the victim, as well as of the
aggressor himself; the degree of actual
force and intimidation employed; and, of
utmost importance, the relationship
between the rapist and his prey.
Complementary thereto, we ruled in
People vs. Navarrete 47 that
It must be emphasized also that
considering the relationship between
father and daughter, the degree of force
or intimidation need not be the same as
in other cases of rape where the parties
involved have no relationship at all with
each other; because the father
exercises strong moral and physical
control over his daughter.
Parenthetically, we digress to observe
that for rape to exist it is not necessary
that the intimidation employed be so
great or of such character as could not
be resisted. It is only necessary that the
intimidation be sufficient to consummate
the purpose which the accused had in
mind. Intimidation must be viewed in
light of the victim's perception and
judgment at the time of rape and not by
any hard and fast rule. It is therefore
enough that it produces fear fear that
if the victim does not yield to the bestial
demands of the accused, something
would happen to her at the moment or
thereafter, as when she is threatened
with death if she reports the incident.
Intimidation would also explain why
there are no traces of struggle which
would indicate that the victim fought off
her attacker. 48
With the previous beatings Jinky
received from accused-appellant,
resistance could not have been
expected from her. She dared not risk
another whipping from her father should
she defy his advances. Coupled with the
respect demanded from Jinky by her
father no matter how unreasoning, the
gap between their ages, and Jinky's own
youthful immaturity, the lack or
resistance from Jinky becomes easily
understandable. And, if resistance would
after all be futile because of continuing
intimidation, as in the strong moral
dominance of accused-appellant, then
offering none at all would not mean
consent to the assault as to make the
victim's participation in the sexual act
voluntary. 49
The insistence of accused-appellant that
Jinky consented to his advances is
downright ridiculous. It is hard to believe
that a daughter would simply give in to
her father's lascivious designs had not
her resistance been overpowered. 50 If
Jinky had consented to the sexual
intercourse, she would have kept it to
herself and not denounce it immediately
as rape. Jinky's crying during the sexual
act, and her evasion of her father's
advances the following day, belie his
pretense that she voluntarily participated
in the intercourse. There is no showing
whatsoever that complainant Jinky is a
sexually perverted woman or one of
extremely loose morals.
Consent obtained by fear of personal
violence is no consent at all. Though a
man puts no hand on a woman, yet if by
the use of mental and moral coercion
the accused so overpowers her mind out
of fear that as a result she dare not
resist the dastardly act inflicted on her
person, accused is guilty of the crime
imputed to him. 51 On the other hand, it
is hard to accept that Jinky was that
audacious as to seek and satisfy worldly
pleasures from her own father. To cite
Navarrete again, no daughter in her right
mind would voluntarily submit herself to
her own father unless there was force or
intimidation, as a sexual act between a
father and a daughter is extremely
revolting.
On the matter of the imposable penalties
in the crime of rape when attended by
modifying circumstances, it is opportune
to make some clarifications in light of
succeeding amendments to Article 335
of the Code. With respect to simple
rape, whether in the original codal
provision or after the amendments
thereto, the penalty being the single
indivisible penalty of reclusion perpetua
is not affected by the presence of
ordinary mitigating or aggravating
circumstances. However, under the
amendments introduced by Republic Act
No. 4111 consisting of the so-called
"qualified" form of rape committed with
the use of a deadly weapon or by two or
more persons, or when an attempted or
frustrated rape is accompanied by
homicide, for which the penalty is
reclusion perpetua to death, the
presence of generic mitigating or
aggravating circumstances will
determine whether the lesser or the
higher penalty will be imposed. 52
Republic Act No. 7659 has added seven
more attendant circumstances which, in
effect also create other variants of
"qualified" rape punishable with the
single indivisible penalty of death. In line
with the immediately preceding
observation, the presence of ordinary
mitigating or aggravating circumstances
would be of no moment since the death
penalty shall be imposed regardless of
the number of any of them. 53 The only
possible basis for a reduction of such
penalty under the rules for graduating
penalties under the Code is the
presence of a privileged mitigating
circumstance. 54
Now, it used to be the accepted doctrine
that in crimes against chastity, such as
rape, relationship was always
aggravating. 55 However, among the
"qualifying" circumstances introduced by
Republic Act No. 7659 is the situation
when the victim is under eighteen years
of age and the offender is a parent,
ascendant, step-parent, guardian,
relative by consanguinity or affinity
within the third civil degree, or the
common-law spouse of the parent of the
victim. Obviously, in such a factual
milieu, relationship having been used as
an element in that "qualified" form of
rape, the same circumstance cannot be
used again to aggravate the penalty to
be imposed on the offender. 56
In the case at bar, therefore, relationship
cannot be applied as an aggravating
circumstance. However, we are
persuaded to affirm the attendance of
intoxication as an aggravating
circumstance on the additional finding
that it was habitual on the part of
accused-appellant. Indeed, he admitted
in his memorandum 57 that he took liquor
to forget the memory of his wife ever
since she died on August 28, 1991.
Such admission, together with the
declarations of his daughters and his
own testimony in court that he was also
inebriated on the two occasions when
he separately raped the victims,
reasonably yields the inference that
accused-appellant was a habitual
drunkard.
Yet, even on the remote assumption ex
gratia argument that intoxication can be
considered as a mitigating circumstance
in his favor, its presence would not affect
the two penalties imposed by the court
below. Being indivisible penalties,
reclusion perpetua and death must be
applied by the courts regardless of any
mitigating or aggravating circumstances
that may have attended the commission
of the deed. The rule, however, is
slightly different with respect to the civil
liability.
On this point, we note that the lower
court did not award moral and
exemplary damages to either Jacqueline
or Jinky Tabugoca. Having suffered
wounded feelings and social humiliation,
58
Jacqueline is entitled to an award of
moral damages therefor. 59 In view of the
presence of an aggravating
circumstance, exemplary damages
should also be awarded to her. 60 An
appellate proceeding in a criminal case,
whether at the instance of the accused
or by mandatory provision of law, throws
the whole case open for review, hence
this modification by reason of the
oversight of the trial court.
On the other hand, while Jinky is entitled
to actual or compensatory damages, no
moral damages may be awarded to her
because no sufficient evidence was
introduced in the court a quo which
would have entitled her thereto. 61
However, exemplary damages call be
awarded to her since she has been
correctly granted compensatory
damages and the offense against her
was committed with an aggravating
circumstance. 62
WHEREFORE, the judgment of Branch
18 of the Regional Trial Court of Ilagan,
Isabela, in Criminal Cases Nos. 2386
and 2387 is hereby AFFIRMED, with the
modification that accused-appellant
Cresencio Tabugoca is further ordered
(1) in Criminal Case No. 2386, to pay
Jacqueline Tabugoca the additional
amounts of P25,000.00 as moral
damages and P25,000.00 as exemplary
damages; and (2) in Criminal Case No.
2387, to pay Jinky Tabugoca the further
amount of P25,000.00 by way of
exemplary damages.
Two Members of the Court voted to
impose on appellant the penalty of
reclusion perpetua.
In accordance with Article 83 of the
Revised Penal Code, as amended by
Section 25 of Republic Act No. 7659,
upon the finality or this decision, let the
records of this case be forwarded
immediately to the Office of the
President of the Philippines for possible
exercise of the pardoning power.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 132319 May 12, 2000
PEOPLE OF THE PHILIPPINES,
plaintiff-appellee,
vs.
FERNANDO MADARANG y MAGNO,
accused-appellant.
PUNO, J.:
What distinguishes man from beast is
his intellect. Man's action is guided and
controlled by his mind. Law is designed
for rational beings as it is based on our
inherent sense of right which is
inseparable from reason. Thus, when
man's reasoning is so distorted by
disease that he is totally incapable of
distinguishing right from wrong, he loses
responsibility before the law. In the case
at bar, we are asked to resolve whether
or not the accused, invoking insanity,
can claim exemption from liability for the
crime he committed.
Accused FERNANDO MADARANG y
MAGNO was charged with parricide for
killing his wife LILIA MADARANG in an
Information 1 which reads:
That on or about September 3, 1993, at
Poblacion, municipality of Infante,
province of Pangasinan, Philippines,
and within the jurisdiction of this
Honorable Court, the above-named
accused, with evident premeditation and
treachery, armed with a bladed weapon,
did then and there, wilfully, unlawfully
and feloniously attack and stab LILIA M.
MADARANG, his legitimate wife,
inflicting upon her stab wound 4 1/2
inches by 1 1/2 inch(es) long and 3/16 of
an inch wide, located just below the left
clavicle 1 3/4 inch(es) lateral to the
supra-sternal notch, and plowed along
the interpace slightly coursing upward
and posteriorly and stab wound 1 inch in
length, gaping and 3 1/2 inch(es) deep,
located at the right arm at its medial
aspect, coursing upwards and medially
towards the apex of the right axilla which
caused her instantaneous death, to the
damage and prejudice of the heirs of
Lilia M. Madarang.
Contrary to Art. 246 of the Revised
Penal Code.
At the arraignment, the accused refused
to enter a plea. Pursuant to the Rules,
the trial court entered a "not guilty" plea
for him. At the initial hearing of the case
on May 5, 1994, the accused's counsel
manifested that his client had been
observed behaving in an abnormal
manner inside the provincial jail. Thus,
the Court called the accused to the
stand but he refused to answer any of
the questions propounded by the court.
Hence, on the same date, the Court
issued an Order 2 directing the transfer
of the accused to the National Center for
Mental Health (NCMH) for psychiatric
evaluation to determine his fitness to
stand trial.
The initial examination of the accused at
the NCMH revealed that he was
suffering from a form of psychosis
known as schizophrenia. The accused
was detained at the hospital and was
administered medication for his illness.
On June 19, 1996, after more than two
(2) years of confinement, the accused
was discharged from the NCMH and
recommitted to the provincial jail as he
was already found fit to face the charges
against him. 3
At the resumption of the hearing, a
reverse trial was conducted. The
accused proceeded to adduce evidence
on his claim of insanity at the time he
committed the offense.
As culled from the testimonies of the
accused, his mother-in-law AVELINA
MIRADOR, and his daughter LILIFER
MADARANG, the following facts were
established: The accused and Lilia
Mirador were legally married and their
union was blessed with seven (7)
children. The accused worked as a
seaman for sixteen (16) years. He was
employed in a United States ship until
1972. In 1973, he worked as a seaman
in Germany and stayed there for nine (9)
years, or until 1982. Thereafter, he
returned to his family in Infanta,
Pangasinan, and started a hardware
store business. His venture however
failed. Worse, he lost his entire fortune
due to cockfighting. 4
In the latter part of July 1993, the
accused, his wife Lilia and their children
were forced to stay in the house of
Avelina Mirador as the accused could no
longer support his family. Moreover, Lilia
was then already heavy with their eight
child and was about to give birth. 5
On September 3, 1993, at about 5:00
p.m., the accused and Lilia had a
squabble. The accused was jealous of
another man and was accusing Lilia of
infidelity. In the heat of the fight and in
the presence of their children, the
accused stabbed Lilia, resulting in her
untimely demise. 6
AVELINA MIRADOR was then in the
pigpen when she heard the children of
the accused shouting and crying inside
her house. She called out to them and
asked what was wrong. She received no
reply. Her nephew barged into the house
and brought out the children one at a
time, leaving the accused with Lilia.
While passing by Avelina, her nephew
warned her: "You better run." Avelina
then saw the accused emerge from the
house holding a bolo. She scampered
for safety. 7
She declared that during the period that
the accused and his family stayed in her
house, she did not notice anything
peculiar in accused's behavior that
would suggest that he was suffering
from any mental illness. Neither did she
know of any reason why the accused
killed his wife as she never saw the two
engage in any argument while they were
living with her. 8
The accused declared that he has
absolutely no recollection of the
stabbing incident. He could not
remember where he was on that fateful
day. He did not know the whereabouts
of his wife. It was only during one of the
hearings when his mother-in-law
showed him a picture of his wife in a
coffin that he learned about her death.
He, however, was not aware of the
cause of her demise. He claimed that he
did not know whether he suffered from
any mental illness and did not remember
being confined at the NCMH for
treatment. 9
DR. WILSON S. TIBAYAN, a resident
doctor of the National Center for Mental
Health (NCMH), declared that the
accused was committed to the NCMH
on July 4, 1994 upon order of the court.
The NCMH conducted three (3) medical
and psychiatric evaluations of the
accused during his confinement therein.
Based on the first medical report, dated
August 2, 1994, 10 the accused was
found to be suffering from insanity or
psychosis, classified as schizophrenia.
Dr. Tibayan explained that schizophrenia
is a mental abnormality characterized by
impaired fundamental reasoning,
delusions, hallucinations, preoccupation
with one's thoughts, poor self-care,
insight and judgment, and impaired
cognitive, social and occupational
functions. The patient may be incapable
of distinguishing right from wrong or
know what he is doing. He may become
destructive or have a propensity to
attack any one if his hallucinations were
violent. 11 A schizophrenic, however, may
have lucid intervals during which he may
be able to distinguish right from wrong.
12
Dr. Tibayan opined that the accused's
mental illness may have begun even
prior to his admission to the NCMH and
it was highly possible that he was
already suffering from schizophrenia
prior to his commission of the crime. 1
By December 21, 1994, as per the
second medical report, the accused was
still suffering from schizophrenia. After
one and a half years of confinement, the
third psychiatric evaluation of the
accused, dated May 27, 1996, 14
showed that his mental condition
considerably improved due to
continuous medication. The accused
was recommended to be discharged
from the NCMH and recommitted to jail
to stand trial. 15
The trial court convicted the accused as
his evidence failed to refute the
presumption of sanity at the time he
committed the offense. The dispositive
portion of the Decision reads:
WHEREFORE, in view of all the
foregoing facts and circumstances of
this case, this Court is of the view that
accused Fernando Madarang is of
sound mind at the time of the
commission of the offense and that he
failed to rebut by convincing proof the
evidence on record against him to
exempt him from criminal liablity. And
since the death penalty was suspended
or abolished at the time of the
commission of the offense, this Court
hereby sentences the accused
FERNANDO MADARANG y MAGNO to
suffer the penalty of reclusion perpetua
and to pay the heirs of the victim the
amount of Fifty Thousand (P50,000.00)
Pesos.
SO ORDERED. 16
Hence this appeal.
The appellant insists that at the time he
stabbed his wife, he was completely
deprived of intelligence, making his
criminal act involuntary. His unstable
state of mind could allegedly be
deduced from the following:
First. He had no recollection of the
stabbing incident. Hence, he was
completely unaware of his acts that
fateful day and must have committed the
crime without the least discernment.
Second. His behavior at the time of the
stabbing proved he was then afflicted
with schizophrenia. He cited the
testimony of Dr. Tibayan that a
schizophrenic may go into extremes
he may be violent and destructive, or
very silent and self-focused. The
appellant exhibited his violent
tendencies on that fateful day. He killed
his wife and Avelina and her nephew
were so frightened that they ran away at
the sight of him holding a bolo. He did
not seem to recognize anybody and
could have turned to anyone and
inflicted further injury. He avers that this
is peculiar only to persons who are
mentally deranged for a sane person
who just committed a crime would have
appeared remorseful and repentant after
realizing that what he did was wrong.
Third. The appellant also relies on Dr.
Tibayan's opinion that there was a high
possibility that he was already suffering
from insanity prior to his commission of
the crime on September 3, 1993. 17 The
defense posits that his mental illness
may have been caused by his loss of
fortune. His hardware business, which
he started through 16 years of working
as a seaman, went bankrupt. He ended
up virtually dependent on his mother-in-
law for his family's support and all these
may have been beyond his capacity to
handle.
The appellant further contends that the
fact that he and his wife never engaged
in a fight prior to that fateful day should
be considered. The marked change in
his behavior when he
uncharacteristically quarreled with his
wife on that day and suddenly turned
violent on her confirms that he was
mentally disturbed when he committed
the crime.
Lastly, the appellant urges that he had
no motive to kill Lilia who was scheduled
to give birth to their eighth child three (3)
days prior to the killing. Unless
overpowered by something beyond his
control, nobody in his right mind would
kill his wife who was carrying his child.
Jealousy, the appellant posits, is not a
sufficient reason to kill a pregnant
spouse.
We find these arguments without merit.
In all civilized nations, an act done by a
person in a state of insanity cannot be
punished as an offense. The insanity
defense is rooted on the basic moral
assumption of criminal law. Man is
naturally endowed with the faculties of
understanding and free will. The consent
of the will is that which renders human
actions laudable or culpable. Hence,
where there is a defect of the
understanding, there can be no free act
of the will. An insane accused is not
morally blameworthy and should not be
legally punished. No purpose of criminal
law is served by punishing an insane
accused because by reason of his
mental state, he would have no control
over his behavior and cannot be
deterred from similar behavior in the
future. 18
A number of tests evolved to determine
insanity under the law. In Anglo-
American jurisprudence, the traditional
test is the M'Naghten rule of 1843 which
states that "to establish a defense on
the ground of insanity, it must be clearly
proved that, at the time of committing
the act, the party accused was laboring
under such a defect of reason from
disease of the mind, as not to know the
nature and quality of the act he was
doing, or, if he did know it, that he did
not know he was doing what was
wrong." The M'Naghten rule is a
cognitive measure of insanity as the
accused is required to know two things:
the nature and quality of the act, and
that the act was wrong. This rule has
been criticized for its ambiguity. It was
debated whether the word "wrong"
referred to moral or legal wrong. The
importance of the distinction was
illustrated by Stephen 19 as follows: A
kills B knowing that he is killing B and it
is illegal to kill B but under an insane
delusion that God has commanded him
to kill B to obtain the salvation of the
human race. A's act is a crime if the
word "wrong" means illegal but it is not a
crime if the word "wrong" means morally
wrong. The word "know" was also
assailed as it referred solely to
intellectual reason and excluded
affective or emotional knowledge. It was
pointed out that the accused may know
in his mind what he is doing but may
have no grasp of the effect or
consequences of his actions. 20
M'Naghten was condemned as based
on an obsolete and misleading concept
of the nature of insanity as insanity does
not only affect the intellectual faculties
but also affects the whole personality of
the patient, including his will and
emotions. It was argued that reason is
only one of the elements of a personality
and does not solely determine man's
conduct. 21
Subsequently, M'Naghten was refined
by the "irresistible impulse" test which
means that "assuming defendant's
knowledge of the nature and quality of
his act and knowledge that the act is
wrong, if, by reason of disease of the
mind, defendant has been deprived of or
lost the power of his will which would
enable him to prevent himself from
doing the act, then he cannot be found
guilty." Thus, even if the accused knew
that what he was doing was wrong, he
would be acquitted by reason of insanity
if his mental illness kept him from
controlling his conduct or resisting the
impulse to commit the crime. This rule
rests on the assumption that there are
mental illnesses that impair volition or
self-control, even while there is cognition
or knowledge of what is right and wrong.
22
This test was likewise criticized on the
following grounds: (1) the "impulse"
requirement is too restrictive as it covers
only impulsive acts; (2) the "irresistible"
requirement is also restrictive as it
requires absolute impairment of the
freedom of the will which cases are very
rare; (3) it will not serve the purpose of
criminal law to deter criminals as the will
to resist commission of the crime will not
be encouraged, and; (4) it is difficult to
prove whether the act was the result of
an insane, irresistible impulse. 2
Then came the Durham "product" test in
1954 which postulated that "an accused
is not criminally responsible if his
unlawful act was the product of mental
disease or defect." 24 Critics of this test
argued that it gave too much protection
to the accused. It placed the prosecution
in a difficult position of proving
accused's sanity beyond reasonable
doubt as a mere testimony of a
psychiatrist that accused's act was the
result of a mental disease leaves the
judge with no choice but to accept it as a
fact. The case thus becomes completely
dependent on the testimonies of
experts. 25
Then came the ALI "substantial
capacity" test, integrated by the
American Law Institute (ALI) in its Model
Penal Code Test, which improved on the
M'Naghten and irresistible impulse tests.
The new rule stated that a person is not
responsible for his criminal act if, as a
result of the mental disease or defect,
he lacks substantial capacity to
appreciate the criminality of his act or to
conform his conduct to the requirements
of the law. 26 Still, this test has been
criticized for its use of ambiguous words
like "substantial capacity" and
"appreciate" as there would be
differences in expert testimonies
whether the accused's degree of
awareness was sufficient. 27 Objections
were also made to the exclusion of
psychopaths or persons whose
abnormalities are manifested only by
repeated criminal conduct. Critics
observed that psychopaths cannot be
deterred and thus undeserving of
punishment. 28
In 1984, however, the U.S. Congress
repudiated this test in favor of the
M'Naghten style statutory formulation. It
enacted the Comprehensive Crime
Control Act which made the appreciation
test the law applicable in all federal
courts. The test is similar to M'Naghten
as it relies on the cognitive test. The
accused is not required to prove lack of
control as in the ALI test. The
appreciation test shifted the burden of
proof to the defense, limited the scope
of expert testimony, eliminated the
defense of diminished capacity and
provided for commitment of accused
found to be insane. 29
In the Philippines, the courts have
established a more stringent criterion for
insanity to be exempting as it is required
that there must be a complete
deprivation of intelligence in committing
the act, i.e., the accused is deprived of
reason; he acted without the least
discernment because there is a
complete absence of the power to
discern, or that there is a total
deprivation of the will. Mere abnormality
of the mental faculties will not exclude
imputability. 30
The issue of insanity is a question of fact
for insanity is a condition of the mind,
not susceptible of the usual means of
proof. As no man can know what is
going on in the mind of another, the
state or condition of a person's mind can
only be measured and judged by his
behavior. Establishing the insanity of an
accused requires opinion testimony
which may be given by a witness who is
intimately acquainted with the accused,
by a witness who has rational basis to
conclude that the accused was insane
based on the witness' own perception of
the accused, or by a witness who is
qualified as an expert, such as a
psychiatrist. 31 The testimony or proof of
the accused's insanity must relate to the
time preceding or coetaneous with the
commission of the offense with which he
is charged. 32
In the case at bar, the appellant was
diagnosed to be suffering from
schizophrenia when he was committed
to the NCMH months after he killed his
wife. Medical books describe
schizophrenia as a chronic mental
disorder characterized by inability to
distinguish between fantasy and reality
and often accompanied by
hallucinations and delusions. Formerly
called dementia pracecox, it is the most
common form of psychosis. 3
Symptomatically, schizophrenic
reactions are recognizable through odd
and bizarre behavior apparent in
aloofness or periods of impulsive
destructiveness and immature and
exaggerated emotionality, often
ambivalently directed. The interpersonal
perceptions are distorted in the more
serious states by delusions and
hallucinations. In the most disorganized
form of schizophrenic living, withdrawal
into a fantasy life takes place and is
associated with serious thought disorder
and profound habit deterioration in
which the usual social customs are
disregarded. 34 During the initial stage,
the common early symptom is
aloofness, a withdrawal behind barriers
of loneliness, hopelessness, hatred and
fear. Frequently, the patient would seem
preoccupied and dreamy and may
appear "far away." He does not
empathize with the feelings of others
and manifests little concern about the
realities of life situations. The
schizophrenic suffers from a feeling of
rejection and an intolerable lack of self-
respect. He withdraws from emotional
involvement with other people to protect
himself from painful relationships. There
is shallowness of affect, a paucity of
emotional responsiveness and a loss of
spontaneity. Frequently, he becomes
neglectful of personal care and
cleanliness. 35 A variety of subjective
experiences, associated with or
influenced by mounting anxiety and
fears precede the earliest behavioral
changes and oddities. He becomes
aware of increasing tension and
confusion and becomes distracted in
conversation manifested by his inability
to maintain a train of thought in his
conversations. Outwardly, this will be
noticed as blocks or breaks in
conversations. The schizophrenic may
not speak or respond appropriately to
his companions. He may look fixedly
away, or he may appear to stare, as he
does not regularly blink his eyes in his
attempt to hold his attention. 36
None of the witnesses presented by the
appellant declared that he exhibited any
of the myriad symptoms associated with
schizophrenia immediately before or
simultaneous with the stabbing incident.
To be sure, the record is bereft of even a
single account of abnormal or bizarre
behavior on the part of the appellant
prior to that fateful day. Although Dr.
Tibayan opined that there is a high
possibility that the appellant was already
suffering from schizophrenia at the time
of the stabbing, he also declared that
schizophrenics have lucid intervals
during which they are capable of
distinguishing right from wrong. 37 Hence
the importance of adducing proof to
show that the appellant was not in his
lucid interval at the time he committed
the offense. Although the appellant was
diagnosed with schizophrenia a few
months after the stabbing incident, the
evidence of insanity after the fact of
commission of the offense may be
accorded weight only if there is also
proof of abnormal behavior immediately
before or simultaneous to the
commission of the crime. Evidence on
the alleged insanity must refer to the
time preceding the act under
prosecution or to the very moment of its
execution. 38
In the case at bar, we find the evidence
adduced by the defense insufficient to
establish his claim of insanity at the time
he killed his wife. There is a dearth of
evidence on record to show that the
appellant was completely of unsound
mind prior to or coetaneous with the
commission of the crime. The
arguments advanced by the appellant to
prove his insanity are speculative and
non-sequitur. For one, his claim that he
has absolutely no recollection of the
stabbing incident amounts to a mere
general denial that can be made with
facility. The fact that Avelina and her
nephew were frightened at the sight of
the appellant holding a bolo after he
killed his wife does not, by any stretch of
imagination, prove that the appellant has
lost his grip on reality on that occasion.
Neither is the appellant's seemingly non-
repentant attitude immediately after he
stabbed his wife an indicium of his
alleged insanity. Even criminals of stable
mental condition take this non-
remorseful stance. Similarly, that the
appellant and his wife were never seen
quarreling prior to that fateful day does
not by itself prove the appellant's
unstable mental condition. Neither can it
be said that jealousy is not a sufficient
reason to kill a pregnant spouse. Our
jurisprudence is replete with cases
where lives had been terminated for the
flimsiest reason.
The appellant attributes his loss of
sanity to the fact that he lost his
business and became totally dependent
on his mother-in-law for support. We find
this, however, purely speculative and
unsupported by record. To be sure,
there was no showing of any odd or
bizarre behavior on the part of the
appellant after he lost his fortune and
prior to his commission of the crime that
may be symptomatic of his mental
illness. In fact, the appellant's mother-in-
law declared that during the time that
she knew the appellant and while he
lived in her house, she did not notice
anything irregular or abnormal in the
appellant's behavior that could have
suggested that he was suffering from
any mental illness.
An accused invoking the insanity
defense pleads not guilty by reason
thereof. He admits committing the crime
but claims that he is not guilty because
he was insane at the time of its
commission. Hence, the accused is tried
on the issue of sanity alone and if found
to be sane, a judgment of conviction is
rendered without any trial on the issue of
guilt as he had already admitted
committing the crime. 39 As the
appellant, in the case at bar, failed to
establish by convincing evidence his
alleged insanity at the time he killed his
wife, we are constrained to affirm his
conviction.
IN VIEW WHEREOF, the Decision of the
trial court convicting the appellant of the
crime of parricide is AFFIRMED in toto.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 129291 July 3, 2002
PEOPLE OF THE PHILIPPINES,
plaintiff-appellee,
vs.
ENRICO A. VALLEDOR, accused-
appellant.
YNARES-SANTIAGO, J.:
This is an appeal from the decision1 of
the Regional Trial Court of Palawan and
Puerto Princesa City, Branch 47, in
Criminal Case Nos. 9359, 9401, and
9489, convicting accused-appellant of
the crimes of murder, attempted murder
and frustrated murder, respectively.
The informations filed against accused-
appellant read:
In Criminal Case No. 9359, for murder:
That on or about the 6th day of March,
1991, in the afternoon, at Barangay
Tagumpay, Puerto Princesa City,
Philippines, and within the jurisdiction of
this Honorable Court, the said accused,
with treachery and evident
premeditation, with intent to kill and
while armed with a knife, did then and
there willfully, unlawfully and feloniously
assault, attack and stab therewith one
Elsa Villon Rodriguez thereby inflicting
upon the latter stabbed (sic) wound on
the chest, which was the immediate
cause of her death.
CONTRARY TO LAW.2
In Criminal Case No.9401, for attempted
murder:
That on or about the 6th day of March,
1991, in the afternoon, at Bgy.
Tagumpay, Puerto Princesa City,
Philippines and within the jurisdiction of
this Honorable Court, the said accused,
with intent to kill, with treachery and
evident premiditation (sic) and while
armed with a knife, did then and there
willfully, unlawfully and feloniously
assault, attack and stab therewith one
Ricardo Maglalang thereby inflicting
upon the latter physical injuries on the
different parts of his body, thus
commencing the commission of the
crime of murder directly by overt acts
and does not perform all the acts of
execution which would produce the
felony by reason of some causes or
accident other than his own
spontaneous desistance that is, by the
timely and able medical assistance
rendered to said Ricardo Maglalang
which prevented his death.
CONTRARY TO LAW.3
In Criminal Case No.9489, for frustrated
murder:
That on or about the 6th day of March,
1991 at Bgy. Tagumpay, Puerto Princesa
City, Philippines and within the
jurisdiction of this Honorable Court the
above-named accused, with intent to kill
with treachery and evidence (sic)
premeditation and while armed with a
butcher knife, did then and there willfully,
unlawfully and feloniously assault, attack
and stab therewith on (sic) Roger
Cabiguen, hitting him on his right
forearm, thus performing all the acts of
execution which produce the crime of
murder as a consequence but which
nevertheless did not produce it by
reason of causes independent of his will,
that is, by the timely and able medical
attendance rendered to him which saved
his life.
CONTRARY TO LAW.4
After his arrest, accused-appellant was
intermittently confined at the National
Center for Mental Health. Thus, he was
arraigned only on February 19, 1993
wherein he pleaded not guilty.5
Thereafter, the cases were archived until
November 15, 1994, when accused-
appellant was declared mentally fit to
withstand trial.6 This time, accused-
appellant admitted commission of the
crimes charged but invoked the
exempting circumstance of insanity. The
lower court thus conducted reverse and
joint trial, at which the following facts
were established:
On March 6, 1991, at around 1:45 in the
afternoon, Roger Cabiguen was in his
house at Burgos Street, Barangay
Tagumpay, Puerto Princesa City. He was
working on a lettering job inside his
bedroom together with his first cousin,
then 25-year old Elsa Rodriguez, and
his friends, Simplicio Yayen and Antonio
Magbanua. Roger was working at his
table and seated on his bed while Elsa
was across the table. Antonio was on
the left side, while Simplicio was seated
near the door, on the right side of
Roger.7
All of a sudden, accused-appellant
entered the room; uttered Roger's
nickname ("Jer") and immediately
attacked him with a knife, but Roger was
able to parry the thrust and was stabbed
instead on the right forearm. Accused-
appellant then stabbed Elsa Rodriguez
on the chest and said, "Ako akabales
den, Elsa." (I had my revenge, Elsa).
Thereafter, accused-appellant fled,
leaving the stunned Simplicio and
Antonio unharmed.8
Roger and Elsa were immediately
brought to the hospital. On their way out,
Antonio noticed a commotion and saw
that Ricardo Maglalang, a neighbor of
the victim, was wounded. Antonio
learned from the by-standers that
Ricardo was likewise stabbed by
accused-appellant.9
Upon reaching the hospital, Elsa was
declared dead on arrival. Roger on the
other hand was treated for the 5-
centimeter wound sustained by him on
his right forearm.10
Prosecution witness Roger Cabiguen
testified that sometime in 1980,
accused-appellant suspected him of
killing his pet dog. In 1989, accused-
appellant courted Elsa but she jilted him.
On one occasion, Elsa spat on and
slapped accused-appellant.11
Accused-appellant's defense of insanity
was anchored on the following facts:
Accused-appellant, then 30 years of
age, was a resident of Barangay
Tagumpay, Puerto Princesa City, and
employed as provincial jail guard at the
Palawan Provincial Jail. Sometime in
January 1990, Pacita Valledor, his
mother noticed that accused-appellant
was behaving abnormally. For days he
was restless and unable to sleep. He
likewise complained that their neighbors
were spreading rumors that he was a
rapist and a thief. This prompted Pacita
to bring his son to Dr. Deriomedes de
Guzman, a medical practitioner. Pacita
disclosed to Dr. de Guzman that insanity
runs in their family. After examining
accused-appellant, Dr. de Guzman
diagnosed him as suffering from
"psychosis with schizophrenia."12 He
prescribed a depressant known as
Thoracin, which kept accused-appellant
sane for a period two months.13
On March 4, 1991, Pacita noticed that
accused-appellant was again acting
strangely. She left to buy Thoracin but
when she returned he was nowhere to
be found.14
On March 6, 1991, at around 6:00 in the
morning, accused-appellant was seen
swimming across the river of Barangay
Caruray, San Vicente, Palawan.
Barangay Captain Rufino Nuez and
Barangay Councilman Antonio Sibunga
took accused-appellant out of the water
and took him on board a pump boat.
Inside the boat, accused-appellant kept
on crying and uttering words to the
effect that his family will be killed.
Suspecting that accused-appellant was
mentally ill, Barangay Captain Nuez,
asked Councilman Sibunga to
accompany accused-appellant to Puerto
Princesa City. Sibunga acceded and
thereafter took a jeepney with accused-
appellant at Barangay Bahile. At about
1:00 in the afternoon, they reached
Junction I at the intersection of the
National Highway and Rizal Avenue,
Puerto Princesa City. Suddenly,
accused-appellant jumped off the
jeepney. Sibunga tried but failed to
chase accused-appellant, who
immediately boarded a tricycle. Later
that day, he learned that accused-
appellant killed and harmed somebody.15
Meanwhile, at around 2:00 in the
afternoon of March 6, 1991, Pacita
Valledor was awakened by her daughter
who told her that accused-appellant has
returned. She rushed out of the house
and saw him standing in the middle of
the road, dusty and dirty. She asked him
where he came from but his answer was
"Pinatay niya kayong lahat." Pacita
dragged him inside the house and later
learned that he killed and wounded their
neighbors. Thirty minutes later, accused-
appellant was arrested and detained at
the city jail.16
On March 11, 1991, Dr. Manuel Bilog,
City Health Officer I of Puerto Princesa
City interviewed accused-appellant and
thereafter made the following
conclusions and recommendation, to
wit:
PHYSICAL EXAMINATION:
Cooperative; talkative but incoherent
Disoriented as to time, place and person
DISPOSITION AND
RECOMMENDATION:
Respectfully recommending that subject
patient be committed to the National
Mental Hospital, Metro Manila for proper
medical care and evaluation soonest. 17
The defense offered in evidence the
April 27, 1992 medical findings on
accused-appellant by Dr. Guia
Melendres of the National Center for
Mental Health, pertinent portion of which
reads:
REMARKS AND RECCOMENDATION:
In view of the foregoing history,
observations, physical mental and
psychological examinations the patient
Enrico Valledor y Andusay is found
suffering from Psychosis or Insanity
classified under Schizophrenia. This is a
thought disorder characterized by
deterioration from previous level of
functioning, auditory hallucination, ideas
of reference, delusion of control,
suspiciousness, poor judgment and
absence of insight.
Likewise, he is found to be suffering
from Psychoactive Substance Use
Disorder, Alcohol, abuse. This is
characterized by a maladaptive pattern
of psychoactive substance use indicated
by continued use despite knowledge of
having a persistent or recurrent social,
occupational, psychological or physical
problems.18
Dr. Oscar Magtang, a psychiatrist
assigned at the Medical Service of the
PNP, Puerto Princesa City was likewise
presented by the defense to interpret the
aforecited findings of Dr. Melendres. 19
On February 28, 1997, the trial court
rendered the assailed judgment of
conviction. The dispositive portion
thereof reads:
WHEREFORE, premises considered,
the accused ENRICO A. VALLEDOR is
hereby found guilty beyond reasonable
doubt of the crimes of MURDER in
Criminal Case No. 9359; of
FRUSTRATED MURDER in Criminal
Case No. 9489; and of ATTEMPTED
MURDER in Criminal Case No. 9401 as
charged herein. Accordingly he is
hereby sentenced to suffer the penalty
of reclusion perpetua in Criminal Case
No. 9359; reclusion perpetua in Criminal
Case No. 9489; and imprisonment of
from EIGHT (8) YEARS and ONE (1)
DAY to TEN (10) YEARS in Criminal
Case No. 9401. It is understood that the
accused shall serve these penalties
successively or one after the other.
The accused is also ordered to
indemnify the heirs of the deceased
victim Elsa Villon Rodriguez the sum of
P50,000.00 and to indemnify the victim
Roger Cabiguen, the sum of P14,000.00
as actual damages, and the sum
P15,000.00 for loss of income.
Considering that the accused is found to
be suffering from a serious mental
disorder at present as certified to by the
National Center for Mental Health,
Mandaluyong City, Metro Manila, the
service of his sentence is hereby
ordered SUSPENDED pursuant to
Article 12 and 79 of the Revised Penal
Code. He (Enrico Valledor) is ordered
shipped to and confined at the National
Center for Mental Health, Mandaluyong
City, Metro Manila, for his treatment,
until such time that he becomes fit for
the service of his sentence at the
national penitentiary, Muntinlupa, Metro
Manila. As to his civil liability, the same
is subject to execution after this
judgment shall have become final
executory.
IT IS ORDERED.20
Accused-appellant interposed this
appeal and raised the lone assignment
of error that:
THE LOWER COURT ERRED IN
CONVICTING THE ACCUSED
DESPITE THE FACT THAT WHEN HE
ALLEGEDLY COMMITTED THE
OFFENSE CHARGED HE WAS
MENTALLY ILL, OUT OF HIS MIND OR
INSANE AT THE (sic) TIME.21
The appeal has no merit.
In considering a plea of insanity as a
defense, the starting premise is that the
law presumes all persons to be of sound
mind. Otherwise stated, the law
presumes all acts to be voluntary, and it
is improper to presume that acts were
done unconsciously.22
In People v. Estrada,23 it was held that:
In the eyes of the law, insanity exists
when there is a complete deprivation of
intelligence in committing the act. Mere
abnormality of the mental faculties will
not exclude imputability. The accused
must be "so insane as to be incapable of
entertaining a criminal intent." He must
be deprived of reason and act without
the least discernment because there is a
complete absence of the power to
discern or a total deprivation of freedom
of the will.
Since the presumption is always in favor
of sanity, he who invokes insanity as an
exempting circumstance must prove it
by clear and positive evidence. And the
evidence on this point must refer to the
time preceding the act under
prosecution or to the very moment of its
execution.
Insanity is evinced by a deranged and
perverted condition of the mental
faculties which is manifested in
language and conduct. An insane
person has no full and clear
understanding of the nature and
consequences of his acts. Hence,
insanity may be shown by the
surrounding circumstances fairly
throwing light on the subject, such as
evidence of the alleged deranged
person's general conduct and
appearance, his acts and conduct
consistent with his previous character
and habits, his irrational acts and
beliefs, as well as his improvident
bargains. The vagaries of the mind can
only be known by outward acts, by
means of which we read thoughts,
motives and emotions of a person, and
through which we determine whether the
acts conform to the practice of people of
sound mind.24
In the case at bar, accused-appellant
failed to discharge the burden of
overcoming the presumption of sanity at
the time of the commission of the crime.
The following circumstances clearly and
unmistakably show that accused-
appellant was not legally insane when
he perpetrated the acts for which he was
charged: 1) Simplicio Yayen was
positioned nearest to accused-appellant
but the latter chose to stab Roger and
Elsa; 2) Accused-appellant called out
the nickname of Roger before stabbing
him; 3) Simplicio Yayen and Antonio
Magbanua who were likewise inside the
room were left unharmed; 4) Accused-
appellant, a spurned suitor of Elsa,
uttered the words, "Ako akabales den,
Elsa." (I had my revenge, Elsa) after
stabbing her; and 5) Accused-appellant
hurriedly left the room after stabbing the
victims.
Evidently, the foregoing acts could
hardly be said to be performed by one
who was in a state of a complete
absence of the power to discern.
Judging from his acts, accused-
appellant was clearly aware and in
control of what he was doing as he in
fact purposely chose to stab only the
two victims. Two other people were also
inside the room, one of them was
nearest to the door where accused-
appellant emerged, but the latter went
for the victims. His obvious motive of
revenge against the victims was
accentuated by calling out their names
and uttering the words, "I had my
revenge" after stabbing them. Finally, his
act of immediately fleeing from the
scene after the incident indicates that he
was aware of the wrong he has done
and the consequence thereof.
Accused-appellant's acts prior to the
stabbing incident to wit: crying;
swimming in the river with his clothes
on; and jumping off the jeepney; were
not sufficient to prove that he was
indeed insane at the time of the
commission of the crime. As consistently
held by this Court, "A man may act crazy
but it does not necessarily and
conclusively prove that he is legally
so."25 Then, too, the medical findings
showing that accused-appellant was
suffering from a mental disorder after
the commission of the crime, has no
bearing on his liability. What is decisive
is his mental condition at the time of the
perpetration of the offense. Failing to
discharge the burden of proving that he
was legally insane when he stabbed the
victims, he should be held liable for his
felonious acts.
In Criminal Case No. 9489, accused-
appellant should be held liable only for
attempted murder and not frustrated
murder. The wound sustained by Roger
Cabiguen on his right forearm was not
fatal. 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.26
Pursuant to Article 51 of the Revised
Penal Code, the penalty to be imposed
upon the principal of an attempted crime
shall be lower by two degrees than that
prescribed for the consummated felony.
Before its amendment by R.A. No. 7659,
Article 248 provided that the penalty for
murder was reclusion temporal in its
maximum period to death. Under Article
61(3), the penalty two degrees lower
would be prision correccional maximum
to prision mayor medium. As there is no
modifying circumstance, the medium
period of the penalty, which is prision
mayor minimum, should be imposed.
Under the Indeterminate Sentence Law,
accused-appellant is entitled to a
minimum penalty of arresto mayor in its
maximum period to prision correcional in
its medium period, the penalty next
lower than the penalty for attempted
murder.27
For the murder of Elsa Rodriguez, in
Criminal Case No. 9359, the trial court
correctly imposed upon accused-
appellant the penalty of reclusion
perpetua, considering that no
aggravating or mitigating circumstance
was proven by the prosecution.
Accused-appellant's civil liability must be
modified. Not being substantiated by
evidence, the award of P14,000.00 as
actual damages, and P15,000.00 for
loss of income, to Roger Cabiguen in
Criminal Case No. 9489, should be
deleted. However, in lieu thereof,
temperate damages under Article 2224
of the Civil Code may be recovered, as it
has been shown that Roger Cabiguen
suffered some pecuniary loss but the
amount thereof cannot be proved with
certainty. For this reason, an award of
P10,000.00 by way of temperate
damages should suffice.28
In addition to the amount of P50,000.00
as civil indemnity which was properly
awarded by the trial court in Criminal
Case No. 9359, the heirs of Elsa
Rodriguez are entitled to another
P50,000.00 as moral damages which
needs no proof since the conviction of
accused-appellant for the crime of
murder is sufficient justification for said
award.29 The heirs of the deceased are
likewise entitled to the amount of
P29,250.00 representing actual
damages30 based on the agreement of
the parties.31
WHEREFORE, in view of all the
foregoing, the decision of the Regional
Trial Court of Palawan and Puerto
Princesa City, Branch 47, is MODIFIED
as follows:
1. In Criminal Case No. 9359, accused-
appellant Enrico A. Valledor is hereby
found guilty beyond reasonable doubt of
the crime of murder and is sentenced to
suffer the penalty of reclusion perpetua;
and to indemnify the heirs of the
deceased Elsa Rodriguez the following
amounts: P50,000.00 as civil indemnity,
P50,000.00 as moral damages and
P29,250.00 as actual damages;
2. In Criminal Case No. 9489, accused-
appellant is found guilty beyond
reasonable doubt only of the crime of
attempted murder and is sentenced to
an indeterminate penalty of four (4)
years and two (2) months of prision
correccional, as minimum, to eight (8)
years of prision mayor, as maximum;
and to indemnify Roger Cabiguen in the
amount of P10,000.00 by way of
temperate damages;
3. In Criminal Case No. 9401, accused-
appellant is found guilty beyond
reasonable doubt of the crime of
attempted murder and is sentenced to
an indeterminate penalty of four (4)
years and two (2) months of prision
correccional, as minimum, to eight (8)
years of prision mayor, as maximum.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 162064 March 14, 2006
SONNY ZARRAGA Petitioner,
vs.
PEOPLE OF THE PHILIPPINES,
Respondent.
DECISION
TINGA, J.:
This Petition for Review on Certiorari 1
seeks the reversal of the Decision 2 of
the Court of Appeals in CA-G.R. CR No.
22289 which affirmed with modification
the Decision3 of the Regional Trial Court
of Calamba, Laguna, Branch 36,
convicting the accused of violation of
Republic Act No. 6425 (RA 6425), as
amended.
The facts are as follows:
On December 28, 1995, Sonny Zarraga
(Zarraga) and Alvin Jose (Jose)4 were
charged with violation of Sec. 21(b), Art.
IV in relation to Sec. 29, Art. III of RA
6425, otherwise known as The
Dangerous Drugs Act of 1972, as
amended, in an Information5 which
reads:
That on or about November 14, 1995, in
the municipality of [C]alamba, [P]rovince
of Laguna, and within the jurisdiction of
this Honorable Court, the above-named
accused, conspiring, confederating and
mutually helping one another, not being
licensed or authorized by law, did then
and there willfully, unlawfully and
feloniously sell and deliver to other
person METHAMPHETAMINE
HYDROCHOLORIDE (or Shabu)
weighing 98.40 grams, a regulated drug,
and in violation of the aforestated law.
CONTRARY TO LAW.
The two accused were arraigned on
March 28, 1996. Both pleaded not guilty.
Trial forthwith proceeded.
The prosecution sought to establish that
at around 9:30 in the morning of
November 14, 1995, an informant
known as Noy Canlas, together with
former Narcom officer, P/Sr. Inspector
Recomono, informed P/Supt. Joseph R.
Castro (Castro) of the 4th Narcotics
Regional Field Unit that a group of big
time drug pushers from Greenhills will
deliver and sell 100 grams of shabu at a
price of P1,000.00 per gram or a total of
P100,000.00 at the Chowking
Restaurant located in Brgy. Real,
Calamba, Laguna. The delivery would
be made before lunchtime.
Castro formed a team composed of
himself as team leader, SPO1 Bonifacio
Guevarra (Guevarra) as poseur buyer,
and SPO2 William Manglo (Manglo) and
SPO2 Wilfredo Luna (Luna) as back-up
to carry out a buy-bust operation.
Guevarra was provided with marked
money consisting of a P1,000.00-bill and
99 pieces of boodle money (money
bundle).
Castro, Manglo and Luna proceeded to
the restaurant on board a Mitsubishi
Lancer, while Guevarra and the
informant rode an L-300 van. They
arrived at Chowking at 11:00 oclock in
the morning, parked their vehicles facing
each other, and ensured that their
positions gave them a commanding view
of the people going in and out of the
restaurant.
At around 4:00 oclock in the afternoon,
a silver gray Toyota Corolla with Plate
No. UBV-389 arrived. The informant
waived at the cars driver, Zarraga, to
park near Guevarras van. Zarraga
obliged, parking about three (3) meters
from the van. The informant then moved
towards Zarraga and called Guevarra.
When Guevarra approached, Zarraga
asked him if he could afford to buy 100
grams of shabu. Guevarra replied in the
affirmative. Zarraga then asked his
companion, Jose, to bring out the
shabu. Jose brought out the shabu,
wrapped in plastic and white paper, and
handed it over to Zarraga who gave it to
Guevarra. The latter, in turn, gave the
money bundle to Zarraga.
Guevarra then scratched his head, a
pre-arranged signal that the transaction
has been consummated. Immediately,
Manglo and Luna approached and
introduced themselves as Narcom
operatives and arrested Zarraga and
Jose. The money bundle was recovered
from Zarraga. Guevarra handed the
shabu to Manglo who, in turn, gave it to
Luna. Castro brought Zarraga and Jose
to Camp Vicente Lim for investigation.6
The shabu was brought to the PNP
Crime Laboratory by SPO3 Edgar
Groyon for examination. P/Sr. Inspector
Mary Jean Geronimo, a forensic
chemist, examined the specimen and
issued a Chemistry Report7 confirming
that metamphetamine hydrochloride is
present in the specimen. She further
testified that the specimen is second or
low grade methamphetamine
hydrochloride, i.e., that the specimen
contains more or less 80% of the
substance.8
The evidence for the defense, on the
other hand, showed that in the afternoon
of November 13, 1995, Zarraga and
Jose went to Manuela Complex to
exchange Japanese currency for
Philippine Pesos. They afterwards went
to Megamall to buy hangers upon the
request of Zarragas wife, Pinky. At the
basement of the mall, Zarraga was
accosted by two men, one of whom
[later identified as SPO3 Noel Seno
(Seno)] poked a gun at and handcuffed
him. The man also took Zarragas cash
amounting to P85,000.00. Jose was also
handcuffed.
They went to the third floor where
Zarragas car was parked and were met
by other men whom they later identified
as Castro and a certain Corpuz. A man
in sando, shorts and slippers took the
wheel, while Seno seated himself on the
passengers seat. Another man
accompanied Zarraga and Jose at the
back seat. Zarraga claimed that Seno
took his jewelry, P85,000.00 cash, a
spare tire, jack, and other car
accessories.
The men communicated with some
other persons through a hand-held
radio. Later, one of the men opened the
dashboard compartment and brought
out something that looked like sand. He
tasted it and claimed that the substance
is shabu.9
The group then drove towards
Greenhills and stopped in front of
Tropical Hut. Zarragas blindfold was
removed and he was asked by one of
the men about his mother-in-law,
Elizabeth Espaola, a suspected drug
pusher.
Zarraga had a chance to tell his wife
through his cellular phone that they had
been kidnapped when the abductors
went out to eat. Upon their return,
Zarraga and Jose were boarded on
different cars. They were later taken to a
room with a lavatory. Zarraga was asked
to step out and was shown a picture of
his mother-in-law. He was asked
whether Espaola would pay P1.5
million for their release.
Castro negotiated with Zarragas wife
who offered to withdraw P75,000.00
from a bank. The following day, Seno
met Pinky at the bank, supposedly for
the latter to deliver the ransom money.
However, Pinky refused to withdraw the
money because Zarraga was nowhere
to be seen. She became hysterical,
prompting Seno to hurriedly leave the
bank.
Zarraga and Jose were then taken to
Camp Vicente Lim in Laguna for
investigation. 10
The trial court, giving full faith and
credence to the prosecutions evidence,
convicted the accused. The Court of
Appeals affirmed the conviction but
modified the penalty of imprisonment
and deleted the penalty of fine imposed
by the trial court. The appellate court
disposed as follows:
WHEREFORE, premises considered,
the assailed Decision is hereby
MODIFIED. Appellant Sonny Zarraga is
hereby sentenced to suffer the penalty
of imprisonment from 6 years of prision
correccional as minimum, to 8 years and
1 day of prision mayor as maximum.
Appellant Alvin Jose is hereby
sentenced to suffer an imprisonment of
2 months and 1 day of arresto mayor.
The period of preventive imprisonment
appellants have undergone shall be
credited in their favor pursuant to Article
29 of the Revised Penal Code, as
amended by RA 6127 and as further
amended by Executive Order No. 214
dated July 10, 1997.
The penalty of fine amounting to P2
Million is hereby deleted.
SO ORDERED.
Jose, a minor at the time of the alleged
commission of the offense, filed a
petition for review on certiorari of the
Court of Appeals judgment of
conviction. In a Decision 11 dated
January 13, 2005, this Court acquitted
him for failure of the prosecution to
prove his complicity in the alleged crime.
In the instant petition, Zarraga claims
that the prosecution was not able to
sufficiently establish the corpus delicti
and that the prosecution witnesses
presented conflicting testimonies on
material points sufficient to engender
doubt as to his guilt.
The Solicitor General, on the other
hand, maintains that there was a
legitimate buy-bust operation resulting in
the lawful arrest, prosecution and
conviction of Zarraga; that the
prosecution has sufficiently identified the
corpus delicti; and that Zarragas
defense of frame-up cannot be given
credence. 12
The law presumes that an accused in a
criminal prosecution is innocent until the
contrary is proved. This basic
constitutional principle is fleshed out by
procedural rules which place on the
prosecution the burden of proving that
an accused is guilty of the offense
charged by proof beyond reasonable
doubt. Whether the degree of proof has
been met is largely left for the trial courts
to determine. However, an appeal
throws the whole case open for review 13
such that the Court may, and generally
does, look into the entire records if only
to ensure that no fact of weight or
substance has been overlooked,
misapprehended, or misapplied by the
trial court.
Indispensable in all prosecutions for
violation of RA 6245, such as the instant
case, is the submission of proof that the
sale of the illegal drug took place
between the poseur-buyer and the
seller. The element of sale must be
unequivocally established in order to
sustain a conviction. 14 Further, the
corpus delicti must be presented as
evidence in court. The corpus delicti
should be identified with unwavering
exactitude.15
After a thorough examination of the
evidence presented by both parties, we
find that the prosecution failed to
establish the identity of the prohibited
drug which constitutes the corpus delicti.
In People v. Laxa,16 the policemen
composing the buy-bust team failed to
mark the confiscated marijuana
immediately after the alleged
apprehension of the accused-appellant.
One policeman even admitted that he
marked the seized items only after
seeing them for the first time in the
police headquarters. The Court held that
the deviation from the standard
procedure in anti-narcotics operations
produces doubts as to the origins of the
marijuana and concluded that the
prosecution failed to establish the
identity of the corpus delicti.
Similarly, in People v. Kimura, supra, the
Narcom operatives failed to place
markings on the alleged seized
marijuana on the night the accused were
arrested and to observe the procedure
in the seizure and taking custody of the
drug. Consequently, we held that the
prosecution failed to establish the
identity of the corpus delicti.
In this case, there are material
inconsistencies in the testimonies of
Guevarra and Luna particularly with
regard to when and where the markings
on the shabu were made. Guevarra
testified that he handed the shabu to
Manglo and that he put markings on the
substance. He said:
Q Earlier you said that the shabu was
handed to you. What did you do with
the shabu?
A While we were at the area, I handed
it to SPO1 William Manglo, sir.
Q Tell us, when this shabu was
handed to you by the accused in
what container was it contained?
A When it was handed to me by
Sonny Zarraga it was wrapped in a
plastic and white soft paper, sir.
Q If that shabu which was handed to
you will be shown to you, can you
identify the same?
A Yes, sir.
Q Tell us, do you have any identifying
marks?
A I put markings on the plastic and
on the paper, sir.
Q What kind of marking did you place
in there?
A My initial, sir.
Q I am showing to you here a substance
which is wrapped in white tissue paper
and wrapped likewise in a plastic bag.
Tell us what relation has this substance
to the shabu you said was handed to
you by the accused during the buy bust
operation?
A This is the same shabu that was
handed to me, sir.
Q You said earlier that you place your
initial in the plastic. Which container you
said you place your initial?
A (witness pointing to the handwriting in
black on the plastic).
FISCAL
We request, your honor that this plastic
bag containing the shabu be marked as
Exhibit B and the signature of the
witness which he identified as Exhibit B-
1.
COURT
Mark it.
Q You also said you placed an
identifying marks on the white soft
paper. Where in particular did you place
your marking.
A (witness pointing to the handwriting in
black appearing on the tissue paper).
FISCAL
We request, your honor that it be
marked as Exhibit B-2.
COURT
Mark it. 17 (emphasis supplied.)
Guevarras account leaves a gap as
regards when the shabu was marked,
i.e., whether it was marked before or
after it was handed over to Manglo. He
also did not say specifically in what
place he put the identifying marks.
Lunas testimony on this score fills the
gap and, more, it creates reasonable
doubt as to the identity of the corpus
delicti. Luna said:
Q How about Manglo. Did you come to
know what Manglo did after he alighted
from the car?
A SPO1 Guevarra handed to Manglo the
shabu afterwards SPO1 Manglo handed
it to me.
Q In effect, what you are saying is that
you took the money from Zarraga and
then Manglo later handed to you the
shabu which Guevarra handed to him?
A Yes, sir.
Q So after that, what did you do with
this shabu and this money which you
recovered from Sonny Zarraga?
A After that, the shabu was wrapped
in a tissue then it was brought to
Camp Vicente Lim. It was handed to
SPO2 Groyon in order that a request
can be made.
Q How about the money, what did you
do with the money?
A I handed it to SPO2 Groyon.
Q Will you kindly describe to us the
appearance of that Metamphetamine
Hydrochloride. How was it packaged?
A The shabu was placed in a plastic
wrapped in a tissue and then we put a
markings on it.
Q You said it was wrapped in a tissue
in what particular place was it
wrapped? Where was it wrapped?
A In the office, sir.
Q And who wrapped it with the
tissue?
A The two of us SPO1 Bonifacio
Guevarra.
Q Now, you said there was a marking
placed on the tissue and likewise on
the plastic cellophane which
contained the shabu. Who placed
those markings?
A SPO1 Guevarra, sir.
Q Now, if that shabu which was
contained at the plastic and wrapped in
a tissue paper will be shown to you can
you identify the same?
A Yes, sir.
Q I am showing to you these evidence
as Exhibit B, B-1 and B-2. Tell us what
relation has that piece of evidence of
shabu which you said was handed to
Guevarra and which was handed to
Manglo and which Manglo handed to
you?
A This is the one, sir. 18 (Emphasis
supplied.)
Luna unequivocally declared that he and
Guevarra wrapped the shabu in tissue
only at the office and that the latter put
markings on the tissue and plastic
wrapper, suggesting that Guevarra did
not follow the standard procedure of
marking the confiscated items
immediately after the accused were
apprehended.
Furthermore, nowhere in the records is
there any evidence that the buy-bust
team prepared an inventory of the
seized drugs and had Zarraga and Jose
sign such inventory as required by
Dangerous Drugs Board Regulation No.
3, Series of 1979 amending Board
Regulation No. 7 Series of 1974. 19
We also find bothersome the differing
descriptions of the shabu given by
Guevarra and Luna. According to
Guevarra, the shabu was wrapped in
plastic and white soft paper when it was
handed to him by Zarraga. Luna, on the
other hand, testified that he and
Guevarra wrapped the shabu in tissue at
the office. While "white soft paper" may
also refer to "tissue" as, in fact, the latter
is defined as "a piece of soft, absorbent
paper, used as a disposable
handkerchief, as toilet paper, etc.," 20 the
differing accounts of the witnesses with
regard to whether the shabu was
already wrapped in tissue at the time it
was handed by Zarraga to Guevarra, or
wrapped in tissue by Guevarra and Luna
only at the office, engender serious
doubts as to the existence of the seized
prohibited drug. In fine, the prosecution
has not positively and convincingly
shown that what was submitted for
laboratory examination and presented in
court was actually taken from Zarraga.
In view of these findings, we no longer
deem it necessary to discuss the other
issues raised by Zarraga, except to say
that although his defense of frame-up,
like alibi, is generally viewed with
disfavor, we have consistently held that
the conviction of the accused must rest
not on the weakness of the defense but
on the strength of the prosecution. 21
Having failed to indubitably show the
identity of the shabu which was
allegedly seized from Zarraga, the
prosecutions case should be dismissed.
WHEREFORE, the Decision of the
Court of Appeals is REVERSED and
SET ASIDE. Sonny Zarraga is
ACQUITTED of the crime charged
against him and is ordered immediately
released unless he is being held for
some other valid or lawful cause. The
Director of Prisons is DIRECTED to
inform this Court of the action taken
hereon within five (5) days from receipt
hereof.
Let the Director-General of the
Philippine National Police (PNP) be
furnished a copy of herein decision for
the proper information and guidance of
his police operatives.
Costs de oficio.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 166040 April 26, 2006
NIEL F. LLAVE, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES,
Respondent.
DECISION
CALLEJO, SR., J.:
Before the Court is a Petition for Review
of the Decision1 of the Court of Appeals
(CA) in CA-G.R. CR No. 26962
affirming, with modification, the
Decision2 of the Regional Trial Court
(RTC) of Pasay City, Branch 109, in
Criminal Case No. 02-1779 convicting
Petitioner Neil F. Llave of rape.
On September 27, 2002, an Information
charging petitioner (then only 12 years
old) with rape was filed with the RTC of
Pasay City. The inculpatory portion of
the Information reads:
That on or about the 24th day of
September 2002, in Pasay City, Metro
Manila, Philippines, and within the
jurisdiction of this Honorable Court, the
above-named accused, NEIL LLAVE Y
FLORES, aka NIEL F. LLAVE, a minor
over nine (9) years of age and under
fifteen (15) but acting with discernment,
by means of force threat and
intimidation, did then and there willfully,
unlawfully, feloniously have carnal
knowledge of the complainant,
DEBBIELYN SANTOS y QUITALES, a
minor, seven (7) years of age, against
her will and consent.
Contrary to law.3
The Case for the Prosecution
The spouses Domingo and Marilou
Santos were residents of Pasay City.4
One of their children, Debbielyn, was
born on December 8, 1994.5 In 2002,
she was a Grade II student at the
Villamor Air Base Elementary School in
Pasay City6 and attended classes from
12:00 noon to 6:00 p.m.7
Domingo eked out a living as a jeepney
driver, while Marilou sold quail eggs at a
nearby church.8 Adjacent to their house
was that of Teofisto Bucud, a barbecue
vendor who would usually start selling at
6:30 p.m.9 Next to Teofistos residence
was a vacant house.10
Debbielyn testified that on September
24, 2002, she arrived home at past 6:00
p.m. She changed her clothes and
proceeded to her mothers store.
Marilou asked her daughter to bring
home the container with the unsold quail
eggs.11 Debbielyn did as told and went
on her way. As she neared the vacant
house, she saw petitioner, who suddenly
pulled her behind a pile of hollow blocks
which was in front of the vacant house.
There was a little light from the lamp
post.12 She resisted to no avail.13
Petitioner ordered her to lie down on the
cement. Petrified, she complied. He
removed her shorts and underwear then
removed his own. He got on top of her.14
She felt his penis being inserted into her
vagina. He kissed her.15 She felt pain
and cried.16 She was sure there were
passersby on the street near the vacant
house at the time.
It was then that Teofisto came out of
their house and heard the girls cries. He
rushed to the place and saw petitioner
on top of Debbielyn, naked from the
waist down. Teofisto shouted at
petitioner, and the latter fled from the
scene. Teofisto told Debbielyn to inform
her parents about what happened. 17 She
told her father about the incident.18 Her
parents later reported what happened to
the police authorities.19 Debbielyn told
the police that petitioner was a bad boy
because he was a rapist.20
Teofisto testified that at about 6:25 p.m.
on September 24, 2002, he went out of
their house to get his barbecue grill. He
heard someone moaning from within the
adjacent vacant house.21 He rushed to
the place and saw petitioner, naked from
waist down, on top of Debbielyn, making
pumping motions on her anus.22 The girl
was crying. He shouted at petitioner,
"Hoy, bakit ginawa mo yan?"23 Petitioner
hurriedly put his shorts on and fled.24
Neighbors who had heard Teofisto
shouting arrived.25 Later, Teofisto gave a
written statement to the police
investigator regarding the incident.26
Domingo Santos testified that at about
6:30 p.m. that day, he was inside their
house. His daughter, Kimberly Rose,
suddenly told him that Debbielyn had
been raped near the vacant house by
petitioner.27 He rushed to the place and
found her daughter crying. When he
asked her what happened, she replied
that she had been abused. He brought
Debbielyn to their house and then left. 28
He then looked for petitioner and found
him at his grandmothers house. A
barangay tanod brought petitioner to the
barangay hall.29 On September 25,
2002, he brought her daughter to the
Philippine General Hospital Child
Protection Unit at Taft Avenue, Manila
where she was examined by Dr. Mariella
S. Castillo.
Dr. Castillo declared on the witness
stand that she was a physician at the
Child Protection Unit of the Philippine
General Hospital. On September 25,
2002, she interviewed the victim who
told her "Masakit ang pepe ko," "Ni-rape
ako."30 Dr. Castillo also conducted a
genital examination on the child, and
found no injury on the hymen and
perineum, but found scanty yellowish
discharge between the labia minora.31
There was also a fresh abrasion of the
perineal skin at 1 oclock position near
the anal opening.32 She declared that
the findings support the theory that blunt
force or penetrating trauma (such as an
erect penis, finger, or any other foreign
body33) was applied to the perineal
area34 not more than six or seven days
before.35 The abrasion could have been
caused on September 24, 2002. She
found no spermatozoa in the vaginal
area or injury at the external genitalia;36
neither did she find any other injury or
abrasion on the other parts of the
victims body.37 She concluded that her
findings were consistent with the victims
claim that she was sexually abused by
petitioner.
Barangay Tanod Jorge Dominguez, for
his part, testified that on September 24,
2002, Marilou Santos arrived at the
barangay hall and reported that her
daughter had been raped by petitioner
who was then in his aunts house at
Cadena de Amor Street. Barangay
Captain Greg Florante ordered him and
Barangay Tanod Efren Gonzales to
proceed to Cadena de Amor Street and
take the boy into custody, and they did
as they were told.38
The Case for the Accused
Petitioner, through counsel, presented
Dr. Castillo as witness. She declared
that the abrasions in the perineal area
could have been caused while the
offender was on top of the victim.39 She
explained that the distance between the
anus and the genital area is between 2.5
to 3 centimeters.40 The abrasion was
located at of an inch from the anal
orifice.
Petitioner testified and declared that he
was a freshman at the Pasay City South
High School.41 He had been one of the
three outstanding students in grade
school and received awards such as
Best in Mathematics.42 He also finished
a computer course and received a
Certificate of Completion from the
Philippine Air Force Management
Information Center.43 He denied having
raped the private complainant. He
declared that at 6:30 p.m. on September
24, 2002, he was outside of their house
to buy rice in the carinderia44 and he
saw her on his way back.45 He also met
his father, who asked him what he had
done to their neighbor. He was also told
that the victims father was so angry that
the latter wanted to kill him.46 He did not
ask his father for the name of the angry
neighbor. He was also told to pass by
Cadena de Amor Street in going to his
aunts house. Petitioner also declared
that his mother prodded him to go to his
aunts house.47 Later, Domingo and
Barangay Tanod Jorge Dominguez
arrived at his aunts house and brought
him to the barangay hall. He did not
know of any reason why Debbielyn and
her parents would charge him with
rape.48
Petitioner also declared that he played
cards with Debbielyn.49 While confined
at the Pasay City Youth Home during
trial, he had a crush on "Issa," a young
female inmate. Using a piece of broken
glass (bubog) about half-an-inch long,
he inscribed her name on his right thigh,
left leg and left arm.50
Nida Llave testified and identified her
sons Certificate of Live Birth, in which it
appears that he was born on March 6,
1990.51 She declared that at about 6:30
p.m. on September 24, 2000, Marilou
Santos and Marilyn Bucud arrived in
their house looking for her son.
According to Marilyn, her son had raped
the private complainant. She went to
their house to look for her son and came
across Domingo Santos who threatened
to kill her son. She and her husband
proceeded to the house of his sister
Josefina at Cadena de Amor Street
where petitioner had hidden for a
while.52
At the conclusion of the trial, the court
rendered judgment convicting Neil of the
crime charged. The decretal portion of
the decision reads:
FROM ALL THE FOREGOING, the
Court opines that the prosecution has
proven the guilt of the xxx Niel Llave y
Flores beyond reasonable doubt when
he forcibly pulled the complainant
towards the vacant lot, laid on top of her
and had carnal knowledge with the
[complainant] against her will and
consent who is only seven (7) years old
(sic). Moreover, he being a minor, he
cannot be meted with the Death penalty.
WHEREFORE, the Court finds the CICL
[Child in Conflict with the Law] Niel Llave
y Flores guilty beyond reasonable doubt,
and crediting him with the special
mitigating circumstance of minority, this
Court hereby sentences him to prision
mayor minimum, Six (6) years and One
(1) day to Eight (8) years, and pay civil
indemnity of Fifty Thousand Pesos
(Php50,000.00).53
The trial court declared that based on
the evidence of the prosecution that
petitioner pushed the victim towards the
vacant house and sexually abused her,
petitioner acted with discernment. It also
considered petitioners declaration that
he had been a consistent honor
student.54
Petitioner appealed the decision to the
CA, where he averred the following in
his Brief as appellant therein:
I should be acquitted. The appellate court
THE LOWER COURT ERRED WHEN IT
DISREGARDED THE MATERIAL
INCONSISTENCIES OF THE
TESTIMONY OF COMPLAINING
WITNESS WITH THAT OF THE
MEDICAL REPORT ON THE FACTUAL
ALLEGATION OF BLEEDING.
II
THE LOWER COURT ERRED WHEN IT
GAVE CREDENCE TO THE
TESTIMONY OF THE PROSECUTION
WITNESS TEOFISTO BUCUD WHO
HAS REASON TO FABRICATE A
SCENARIO AGAINST ACCUSED-
APPELLANT BECAUSE HE HAS
PERSONAL VENDETTA AGAINST THE
LATTERS FAMILY/RELATIVES.
III
THE LOWER COURT ERRED IN
UPHOLDING THE THEORY OF THE
PROSECUTION OF RAPE BY HAVING
CARNAL KNOWLEDGE, BEING
CONTRARY TO THE PHYSICAL
EVIDENCE.55
The CA rendered judgment affirming the
decision with modification as to the
penalty meted on him.
WHEREFORE, the decision subject of
the instant appeal is hereby MODIFIED
in that the accused-appellant is
sentenced to an indeterminate penalty
of two (2) years and four (4) months of
prision correccional medium as the
minimum to eight (8) years and one (1)
day of prision mayor medium as the
maximum. Additionally, the accused-
appellant is ordered to pay the
complaining witness the amount of
P50,000 by way of moral damages and
P20,000 by way of exemplary damages.
SO ORDERED.56
Petitioner filed a Motion for the
Reconsideration,57contending that the
prosecution failed to adduce proof that
he acted with discernment; hence, he
denied the motion in a Resolution58
dated November 12, 2004 on the
following finding:
As regards the issue of whether the
accused-appellant acted with
discernment, his conduct during and
after the "crime" betrays the theory that
as a minor, the accused-appellant does
not have the mental faculty to grasp the
propriety and consequences of the act
he made. As correctly pointed out by the
prosecution, the fact that forthrightly
upon discovery, the accused-appellant
fled the scene and hid in his
grandmothers house intimates that he
knew that he did something that merits
punishment.
Contrary to the urgings of the defense,
the fact that the accused-appellant is a
recipient of several academic awards
and is an honor student further
reinforces the finding that he [is]
possessed [of] intelligence well beyond
his years and is thus poised to
distinguish, better at least than other
minors his age could, which conduct is
right and which is morally
reprehensible.59
Petitioner now raises the following
issues and arguments in the instant
petition before this Court:
ISSUES
 I damages to the private complainant.
WHETHER OR NOT EVIDENCE WAS
SUFFICIENT TO CONVICT
PETITIONER BEYOND REASONABLE
DOUBT.
II
WHETHER OR NOT PETITIONER,
WHO WAS A MINOR ABOVE 9 YEARS
BUT BELOW 15 YEARS OF AGE AT
THE TIME OF THE CRIME, ACTED
WITH DISCERNMENT.
III
WHETHER OR NOT PETITIONER WAS
DENIED DUE PROCESS OF LAW.
ARGUMENTS
I report stating that there was no
THE MATERIAL INCONSISTENCIES
BETWEEN THE TESTIMONY OF
COMPLAINING WITNESS WITH THE
MEDICAL REPORT BELIE THE
FINDING OF RAPE.
II
PRIVATE COMPLAINANT IS NOT A
CREDIBLE WITNESS.
III
PETITIONER ACTED WITHOUT
DISCERNMENT.
IV
THE TESTIMONY RELIED UPON BY
THE PROSECUTION IS HEARSAY.
V may be caused by an invasion of the
THE COMPLAINT IS FABRICATED.
VI
PETITIONER WAS DENIED DUE
PROCESS OF LAW.60
The issues raised by the petitioner in
this case may be summarized as
follows: (1) whether he was deprived of
his right to a preliminary investigation;
(2) whether he had carnal knowledge of
the private complainant, and if in the
affirmative, whether he acted with
discernment in perpetrating the crime;
(3) whether the penalty imposed by the
appellate court is correct; and (4)
whether he is liable to pay moral
On the first issue, petitioner avers that
he was deprived of his right to a
preliminary investigation before the
Information against him was filed.
On the second issue, petitioner claims
that the prosecution failed to prove
beyond reasonable doubt that he had
carnal knowledge of Debbielyn. He
insists that her testimony is inconsistent
on material points. He points out that
she claimed to have felt pain in her
vagina when petitioner inserted his
penis to the point that she cried; this,
however, is negated by Dr. Castillos
evidence of injury on the victims
external genitalia. Petitioner maintains
that as against the victims testimony
and that of Dr. Castillos report, the latter
should prevail.
According to petitioner, mere touching of
the female organ will not suffice as
factual basis of conviction for
consummated rape. Moreover, the
victims testimony lacks credibility in
view of her admission that, while she
was being allegedly ravished by him,
there were passersby along the street.
Besides, petitioner avers, an abrasion
body through the protective covering of
the skin. Petitioner insists that the
prosecution failed to prove the cause of
the abrasion.
Petitioner also claims that the victim was
tutored or coached by her parents on
her testimony before the trial court. Dr.
Castillo testified that when she
interviewed Debbielyn, the latter
admitted to her that she did not
understand the meaning of the word
"rape" and its Filipino translation,
"hinalay," and that the genital
examination of the girl was at the
insistence of the latters parents.
 Petitioner avers that Teofisto Bucuds
testimony has no probative weight
because and had an ill-motive to testify
against him. Petitioner stated, on cross-
examination, that his uncle, Boy, had the
house rented by Teofisto demolished.
Petitioner avers that the witness
persuaded the victims parents to
complain against him, as gleaned from
the testimony of Police Investigator
Milagros Carroso.
For its part, the Office of the Solicitor
General (OSG) avers that petitioner was
subjected to an inquest investigation
under Section 7, Rule 112 of the
Revised Rules of Criminal Procedure, as
gleaned from the Certification of the City
Prosecutor incorporated in the
Information. It avers that the absence of
external injuries does not negate rape;
neither is it necessary that lacerations
be found on the hymen of a victim. Rape
is consummated if there is some degree
of penetration within the vaginal surface.
Corroborative evidence is not necessary
to prove rape. As long as the testimony
of the victim is credible, such testimony
will suffice for conviction of
consummated rape. When the victim
testified that she was raped, she was, in
effect, saying all that is necessary to
prove that rape was consummated.
Petitioners evidence to prove ill-motive
on the part of Teofisto Bucud in testifying
against him is at best flimsy. Moreover, it
is incredible that the victim and her
parents would charge petitioner with
rape solely on Teofistos proddings.
The OSG insists that the petitioner acted
with discernment before, during, and
after the rape based on the undisputed
facts. The submission of the OSG
follows:
Petitioner argues that since he was only
12 years old at the time of the alleged
rape incident, he is presumed to have
acted without discernment under
paragraph 3 of Article 12 of the Revised
Penal Code. Under said provision, the
prosecution has the burden of proving
that he acted with discernment. In the
instant case, petitioner insists that there
was no evidence presented by the
prosecution to show that he acted with
discernment. Hence, he should be
exempt from criminal liability.
Petitioners arguments are bereft of
merit.
Discernment, as used in Article 12(3) of
the Revised Penal Code is defined as
follows: "the discernment that
constitutes an exception to the
exemption from criminal liability of a
minor under fifteen (15) years of age but
over nine (9), who commits an act
prohibited by law, is his mental capacity
to understand the difference between
right and wrong" (People v. Doquena, 68
Phil. 580 [1939]). For a minor above
nine but below fifteen years of age, he
must discern the rightness or wrongness
of the effects of his act (Guevarra v.
Almodova, G.R. No. 75256, January 26,
1989).
Professor Ambrocio Padilla, in his
annotation of Criminal Law (p. 375, 1998
Ed.), writes that "discernment is more
than the mere understanding between
right and wrong. Rather, it means the
mental capacity of a minor between 9
and 15 years of age to fully appreciate
the consequences of his unlawful act"
(People v. Navarro, [CA] [51 O.G.
4062]). Hence, in judging whether a
minor accused acted with discernment,
his mental capacity to understand the
difference between right and wrong,
which may be known and should be
determined by considering all the
circumstances disclosed by the record
of the case, his appearance, his attitude
and his behavior and conduct, not only
before and during the commission of the
act, but also after and even during the
trial should be taken into consideration
(People v. Doquena, supra).
In the instant case, petitioners
actuations during and after the rape
incident, as well as his behavior during
the trial showed that he acted with
discernment.
The fact appears undisputed that
immediately after being discovered by
the prosecutions witness, Teofisto
Bucud, petitioner immediately stood up
and ran away. Shortly thereafter, when
his parents became aware of the
charges against him and that private
complainants father was looking for
him, petitioner went into hiding. It was
not until the Barangay Tanod came to
arrest him in his grandmothers house
that petitioner came out in the open to
face the charges against him. His flight
as well as his act of going into hiding
clearly conveys the idea that he was
fully aware of the moral depravity of his
act and that he knew he committed
something wrong. Otherwise, if he was
indeed innocent or if he was not least
aware of the moral consequences of his
acts, he would have immediately
confronted private complainant and her
parents and denied having sexually
abused their daughter.
During the trial, petitioner submitted
documentary evidence to show that he
was a consistent honor student and has,
in fact, garnered several academic
awards. This allegation further bolstered
that he acted with discernment, with full
knowledge and intelligence. The fact
that petitioner was a recipient of several
academic awards and was an honor
student further reinforces the finding that
he was possessed of intelligence well
beyond his years and thus was able to
distinguish, better than other minors of
his age could, which conduct is right and
which is morally reprehensible. Hence,
although appellant was still a minor of
twelve years of age, he possessed
intelligence far beyond his age. It cannot
then be denied that he had the mental
capacity to understand the difference
between right and wrong. This is
important in cases where the accused is
minor. It is worthy to note that the basic
reason behind the enactment of the
exempting circumstances under Article
12 of the Revised Penal Code is the
complete absence of intelligence,
freedom of action, or intent on the part
of the accused. In expounding on
intelligence as the second element of
dolus, the Supreme Court 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 has no
intelligence, the law exempts (him) from
criminal liability" (Guevarra v.
Aldomovar, 169 SCRA 476 [1989], at
page 482).
The foregoing circumstances, from the
time the incident up to the time the
petitioner was being held for trial,
sufficiently satisfied the trial court that
petitioner acted with discernment before,
during and after the rape incident. For a
boy wanting in discernment would
simply be gripped with fear or keep
mum. In this case, petitioner was fully
aware of the nature and illegality of his
wrongful act. He should not, therefore,
be exempted from criminal liability. The
prosecution has sufficiently proved that
petitioner acted with discernment.61
In reply, petitioner asserts that the only
abrasion found by Dr. Castillo was on
the peri-anal skin and not in the labia of
the hymen. He further insists that there
 can be no consummated rape absent a
slight penetration on the female organ. It
was incumbent on the prosecution to
prove that the accused acted with
discernment but failed. The mere fact
that he was an honor student is not
enough evidence to prove that he acted
with discernment.
The petition is not meritorious.
On the first issue, petitioners contention
that he was deprived of his right to a
regular preliminary investigation is
barren of factual and legal basis. The
record shows that petitioner was lawfully
arrested without a warrant. Section 7,
Rule 112 of the Revised Rules of
Criminal Procedure provides:
SEC. 7. When accused lawfully arrested
without warrant. When a person is
lawfully arrested without a warrant
involving an offense which requires a
preliminary investigation, the complaint
or information may be filed by a
prosecutor without need of such
investigation provided an inquest has
been conducted in accordance with
existing rules. In the absence or
unavailability of an inquest prosecutor,
the complaint may be filed by the
offended party or a peace officer directly
with the proper court on the basis of the
affidavit of the offended party or
arresting officer or person.
Before the complaint or information is
filed, the person arrested may ask for a
preliminary investigation in accordance
with this Rule, but he must sign a waiver
of the provisions of Article 125 of the
Revised Penal Code, as amended, in
the presence of his counsel.
Notwithstanding the waiver, he may
apply for bail and the investigation must
be terminated within fifteen (15) days
from its inception.
After the filing of the complaint or
information in court without a preliminary
investigation, the accused may, within
five (5) days from the time he learns of
its filing, ask for a preliminary
investigation with the same right to
adduce evidence in his defense as
provided for in this Rule.
As gleaned from the Certification62 of the
City Prosecutor which was incorporated
in the Information, petitioner did not
execute any waiver of the provisions of
Article 125 of the Revised Penal Code
before the Information was filed. He was
arraigned with the assistance of counsel
on October 10, 2002, and thereafter filed
a petition for bail.63 Petitioners failure to
file a motion for a preliminary
investigation within five days from
finding out that an Information had been
filed against him effectively operates as
a waiver of his right to such preliminary
investigation.64
On the second issue, a careful review of
the records shows that the prosecution
adduced evidence to prove beyond
reasonable doubt that petitioner had
carnal knowledge of the private
complainant as charged in the
Information. In People v. Morata65 the
Court ruled that penetration, no matter
how slight, or the mere introduction of
the male organ into the labia of the
pudendum, constitutes carnal
knowledge. Hence, even if the
penetration is only slight, the fact that
the private complainant felt pains, points
to the conclusion that the rape was
consummated.66
From the victims testimony, it can be
logically concluded that petitioners
penis touched the middle part of her
vagina and penetrated the labia of the
pudendum. She may not have had
knowledge of the extent of the
penetration; however, her
straightforward testimony shows that the
rape passed the stage of
 consummation.67 She testified that
petitioner dragged her behind a pile of
hollow blocks near the vacant house
and ordered her to lie down. He then
removed her shorts and panty and
spread her legs. He then mounted her
and inserted his penis into her vagina:
Fiscal Barrera:
Q: From what time up to what time?
A: From 12:00 oclock noon up to 6:00
p.m.
Q: September 24, 2002 and going over
the calendar, it was Tuesday. Did you go
to school from 12:00 oclock noon up to
6:00 p.m.?
A: Yes, Sir, on the same date I went to
school.
Q: At about 6:00 p.m., Sept. 24, 2002,
where were you?
A: I went home.
Q: And by whom you are referring to
your house at 1-C Carnation St., R.
Higgins, Maricaban, Pasay City?
A: Yes, Sir.
Q: And what did you do after you went
home?
A: I changed my clothes and then I
proceeded to the store of my mother.
Q: And where is that store of your
mother where you went?
A: It is near our house, walking distance.
Q: What is your mother selling in that
store?
A: She sells quail eggs.
Q: And were you able to immediately go
to the store of your mother where she
was selling quail eggs?
A: Yes, sir.
Q: And that was past 6:00 p.m. already?
A: Yes, sir.
Q: And what happened when you went
to the store where your mother is selling
quail eggs past 6:00 p.m.?
A: My mother asked me to bring home
something.
Q: What were these things you were
asked by your mother to bring home?
A: The things she used in selling.
Q: And did you obey what your mother
told you to bring home something?
A: Yes, Sir.
Q: And what happened to you in going
to your house?
A: Totoy pulled me.
Q: Pulled you where?
A: Totoy pulled me towards an
uninhabited house.
Q: What happened after Totoy pulled
you in an uninhabited house?
A: He told me to lie down on the cement.
Q: What happened after he laid you
down on the cement?
A: He removed my shorts and panty. He
also removed his shorts.
Q: After Totoy removed your shorts and
panty and he also removed his shorts,
what happened next?
A: He inserted his penis inside my
vagina.
Q: What did you feel when Totoy
inserted his penis inside your vagina?
A: It was painful.
Q: Aside from inserting his penis inside
your vagina, what else did you do to
you?
A: He kissed me on my lips.
Q: After Totoy inserted his penis inside
your vagina and kissed you on your lips,
what did you do?
A: I cried.
Q: What happened when you were
crying when he inserted his penis inside
your vagina and kissed you on your lips.
What happened next?
A: Somebody heard me crying.
Q: Who heard you crying?
A: Kuya Teofe, Sir.
Q: What happened after you cried and
when somebody heard you crying?
A: Totoy ran away.
Q: After Totoy ran away, what happened
next?
A: When Totoy ran away, I was left and
Kuya Teofe told me to tell the matter to
my parents.
Q: Did you tell your parents what Totoy
did to you?
A: Yes, Sir.68
On cross-examination, the victim was
steadfast in her declarations:
ATTY. BALIAD:
Q: Again, in what particular position
were you placed by Totoy when he
inserted his penis inside your vagina?
A: I was lying down.
Q: Aside from lying down, how was your
body positioned at that time?
A: He placed on top of me.
Q: After he placed on top of you, what
else did he do to you, if any?
A: He started to kiss me and then he
inserted his penis inside my vagina.
Q: Did you feel his penis coming in into
your vagina?
A: Yes, Sir.
Q: Are you sure that his penis was
inserted inside your vagina?
A: Yes, Sir.69
When questioned on cross-examination
whether she could distinguish a vagina
from an anus, the victim declared that
she could and proceeded to
demonstrate. She reiterated that the
penis of petitioner penetrated her
vagina, thus, consummating the crime
charged:
Atty. Baliad:
Q: Do you recall having stated during
the last hearing that the accused, Neil
Llave or "Totoy" inserted his penis in
your vagina, do you recall that?
A: Yes, Sir.
Q: And likewise, you testified that you
feel that the penis of Neil entered your
vagina?
A: Yes, Sir.
Q: Could you distinguish vagina from
your anus?
A: Yes, Sir.
Q: Where is your "pepe"?
A: (Witness pointing to her vagina.)
Q: Where is your anus?
A: (Witness pointing at her back, at the
anus.)
Q: In your statement, am I correct to say
that Neil, the accused in this case
penetrated only in your vagina and not
in your anus?
A: Yes, Sir.
Q: So that, your anus was not even
touched by the accused neither by his
penis touched any part of your anus?
A: He did not insert anything on my
anus, Sir.70
While it is true that Dr. Castillo did not
find any abrasion or laceration in the
private complainants genitalia, such fact
does not negate the latters testimony
the petitioner had carnal knowledge of
her. The absence of abrasions and
lacerations does not disprove sexual
abuses, especially when the victim is a
young girl as in this case.71 According to
Dr. Castillo, the hymen is elastic and is
capable of stretching and reverting to its
original form.72 The doctor testified that
her report is compatible with the victims
testimony that she was sexually
assaulted by petitioner:
Atty. Baliad:
Q: Do you recall having stated during
the last hearing that the accused, Neil
Llave or "Totoy" inserted his penis in
your vagina, do you recall that?
A: Yes, Sir.
Q: And likewise, you testified that you
feel (sic) that the penis of Neil entered
your vagina?
A: Yes, Sir.
Q: Could you distinguish vagina from
your anus?
A: Yes, Sir.
Q: Where is your "pepe"?
A: (Witness pointing to her vagina.)
 Q: Where is your anus?
A: (Witness pointing at her back, at the
anus.)
Q: In your statement, am I correct to say
that Neil, the accused in this case
penetrated only in your vagina and not
in your anus?
A: Yes, Sir.
Q: So that, your anus was not even
touched by the accused neither by his
penis touched any part of your anus?
A: He did not insert anything on my
anus, Sir.
xxxx
Fiscal Barrera:
Q: Based on your testimony doctor, and
the medico genital examination
propounded on the report that the victim
here, Debbielyn Santos is complaining
that around 6:00 in the evening of
September 24, 2002, she was sexually
abused and that on the following day,
September 25, you interviewed her and
stated to you that her genitalia was
hurting and in binocular (sic) "masakit
ang pepe ko, ni-rape ako," would your
findings as contained in this Exh. B and
C be compatible with the allegation if the
minor victim that she was sexually
abused on September 24. 2002 at
around 6:00 p.m.?
Atty. Baliad:
Objection, Your Honor. The one who
narrated the incident is the mother.
Court:
What is your objection?
Atty. Baliad:
The objection, Your Honor, is the
question propounded is that it was the
minor who made the complaint
regarding the allegation.
Fiscal Barrera:
The answer were provided..
Court:
The doctor is being asked whether or
not her findings is compatible with the
complaint of the minor. Overruled.
Answer.
Witness:
A It is compatible with the allegation of
the minor.
Fiscal Barrera:
Confronting you again with your two (2)
medico-genital documents, the
Provincial and Final Report mark[ed] in
evidence as Exhs. B and C, at the lower
portion of these two exhibits there
appears to be a signature above the
typewritten word, Mariella Castillo, M.D.,
whose signature is that doctor?
A Both are my signatures, Sir.73
Dr. Castillo even testified that the
abrasion near the private complainants
anal orifice could have been caused by
petitioner while consummating the crime
charged:
Fiscal Barrera:
Q: With your answer, would it be
possible doctor that in the process of the
male person inserting his erect penis
inside the vagina, in the process, would
it be possible that this abrasion could
have been caused while in the process
of inserting the penis into the vagina
touch the portion of the anus where you
find the abrasion?
A: It is possible, Sir.
Q: Now, are you aware, in the course of
your examination, that the alleged
perpetrator is a 12-year-old minor?
A: I only fount it out, Sir, when I testified.
Q: Do you still recall your answer that a
12-year-old boy could cause an erection
of his penis?
A: Yes, sir.
Q: To enlight[en] us doctor, we, not
being a physician, at what age could a
male person can have erection?
A: Even infants have an erection.74
Petitioners contention that the private
complainant was coached by her
parents into testifying is barren of merit.
 It bears stressing that the private
complainant testified in a straightforward
and spontaneous manner and remained
steadfast despite rigorous and intensive
cross-examination by the indefatigable
counsel of the petitioner. She
spontaneously pointed to and identified
the petitioner as the perpetrator.
It is inconceivable that the private
complainant, then only a seven- year old
Grade II pupil, could have woven an
intricate story of defloration unless her
plaint was true.75 The Presiding Judge of
the trial court observed and monitored
the private complainant at close range
as she testified and found her testimony
credible. Case law is that the calibration
by the trial court of the evidence on
record and its assessment of the
credibility of witnesses, as well as its
findings of facts and the conclusions
anchored on said findings, are accorded
conclusive effect by this Court unless
facts and circumstances of substance
were overlooked, misconstrued or
misinterpreted, which, if considered
would merit a nullification or reversal of
the decision. We have held that when
the offended party is young and
immature, from the age of thirteen to
sixteen, courts are inclined to give
credence to their account of what
transpired, considering not only their
relative vulnerability but also the shame
and embarrassment to which they would
be exposed if the matter to which they
testified is not true.76
Neither do we lend credence to
petitioners claim that the charge against
him is but a fabrication and concoction
of the private complainants parents.
Indeed, petitioner admitted in no
uncertain terms that the spouses had no
ill-motive against him. Thus, Neil
testified as follows:
Fiscal Barrera:
Q: As you testified earlier that you have
played post cards with Debbielyn Santos
alias Lyn-lyn and you have no quarrel or
misunderstanding with Lyn-lyn. Do you
know of any reason why Lyn-lyn
complaint (sic) against you for sexual
abuse?
A: I dont know of any reason, Sir.
Q: You also testified that you do not
have any quarrel or misunderstanding
with Lyn-lyns parents, spouses
Domingo Santos, Jr. and Marilou
Santos, do you think of any reason as to
why they would file a complaint against
you for molesting their 7-year-old
daughter?
A: I do not know of any reason why they
filed a complaint against me, Sir.
Fiscal Barrera:
That would be all, Your Honor.77
There is no evidence that the parents of
the offended party coached their
daughter before she testified. No mother
or father would stoop so low as to
subject their daughter to the tribulations
and the embarrassment of a public trial
knowing that such a traumatic
experience would damage their
daughters psyche and mar her life if the
charge is not true.78
On the other hand, when the parents
learned that their daughter had been
assaulted by petitioner, Domingo tried to
locate the offender and when he failed,
he and his wife reported the matter to
the barangay authorities. This
manifested their ardent desire to have
petitioner indicted and punished for his
delictual acts.
That petitioner ravished the victim not
far from the street where residents
passed by does not negate the act of
rape committed by petitioner. Rape is
not a respecter of time and place. The
crime may be committed by the roadside
and even in occupied premises.79 The
 presence of people nearby does not
deter rapists from committing the odious
act.80 In this case, petitioner was so
daring that he ravished the private
complainant near the house of Teofisto
even as commuters passed by,
impervious to the fact that a crime was
being committed in their midst.
Case law has it that in view of the
intrinsic nature of rape, the only
evidence that can be offered to prove
the guilt of the offender is the testimony
of the offended party. Even absent a
medical certificate, her testimony,
standing alone, can be made the basis
of conviction if such testimony is
credible. Corroborative testimony is not
essential to warrant a conviction of the
perpetrator.81 Thus, even without the
testimony of Teofisto Bucud, the
testimonies of the offended party and Dr.
Castillo constitute evidence beyond
reasonable doubt warranting the
conviction of petitioner.
Teofistos testimony cannot be
discredited by petitioner simply because
his uncle caused the demolition of the
house where Teofisto and his family
were residing. It bears stressing that
Teofisto gave a sworn statement to the
police investigator on the very day that
the petitioner raped Debbielyn and
narrated how he witnessed the crime
being committed by the petitioner.82 In
the absence of proof of improper motive,
the presumption is that Teofisto had no
ill-motive to so testify, hence, his
testimony is entitled to full faith and
credit.83
The trial court correctly ruled that the
petitioner acted with discernment when
he had carnal knowledge of the
offended party; hence, the CA cannot be
faulted for affirming the trial courts
ruling.1wphi1
Article 12, paragraph 3 of the Revised
Penal Code provides that a person over
nine years of age and under fifteen is
exempt from criminal liability, unless he
acted with discernment. The basic
reason behind the exempting
circumstance is complete absence of
intelligence, freedom of action of the
offender which is an essential element
of a felony either by dolus or by culpa.
Intelligence is the power necessary to
determine the morality of human acts to
distinguish a licit from an illicit act.84 On
the other hand, discernment is the
mental capacity to understand the
difference between right and wrong. The
prosecution is burdened to prove that
the accused acted with discernment by
evidence of physical appearance,
attitude or deportment not only before
and during the commission of the act,
but also after and during the trial.85 The
surrounding circumstances must
demonstrate that the minor knew what
he was doing and that it was wrong.
Such circumstance includes the
gruesome nature of the crime and the
minors cunning and shrewdness.
In the present case, the petitioner, with
methodical fashion, dragged the
resisting victim behind the pile of hollow
blocks near the vacant house to insure
that passersby would not be able to
discover his dastardly acts. When he
was discovered by Teofisto Bucud who
shouted at him, the petitioner hastily fled
from the scene to escape arrest. Upon
the prodding of his father and her
mother, he hid in his grandmothers
house to avoid being arrested by
policemen and remained thereat until
barangay tanods arrived and took him
into custody.
The petitioner also testified that he had
been an outstanding grade school
student and even received awards.
While in Grade I, he was the best in his
 class in his academic subjects. He
represented his class in a quiz bee
contest.86 At his the age of 12, he
finished a computer course.
In People v. Doquea,87 the Court held
that the accused-appellant therein acted
with discernment in raping the victim
under the following facts:
Taking into account the fact that when
the accused Valentin Doquea
committed the crime in question, he was
a 7th grade pupil in the intermediate
school of the municipality of Sual,
Pangasinan, and as such pupil, he was
one of the brightest in said school and
was a captain of a company of the cadet
corps thereof, and during the time he
was studying therein he always obtain
excellent marks, this court is convinced
that the accused, in committing the
crime, acted with discernment and was
conscious of the nature and
consequences of his act, and so also
has this court observed at the time said
accused was testifying in his behalf
during the trial of this case.88
The CA ordered petitioner to pay
P50,000.00 as moral damages and
P20,000.00 as exemplary damages.
There is no factual basis for the award
of exemplary damages. Under Article
2231, of the New Civil Code, exemplary
damages may be awarded if the crime
was committed with one or more
aggravating circumstances. In this case,
no aggravating circumstance was
alleged in the Information and proved by
the People; hence, the award must be
deleted.
IN LIGHT OF ALL THE FOREGOING,
the petition is DENIED for lack of merit.
The decision of the Court of Appeals in
CA-G.R. CR No. 26962 is AFFIRMED
WITH MODIFICATION that the award of
exemplary damages is DELETED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 136844 August 1, 2002
PEOPLE OF THE PHILIPPINES,
plaintiff-appellee,
vs.
SPO1 RODOLFO CONCEPCION y
PERALTA, accused-appellant.
DECISION
QUISUMBING, J.:
Appellant seeks the reversal of the
decision1 of the Regional Trial Court of
Tarlac, Branch 65, in Criminal Case No.
9776, finding him guilty of murder and
sentencing him to reclusion perpetua.
On January 22, 1998, an information2 for
murder was filed with the trial court
charging him with murder allegedly
committed as follows:
That on or about November 24, 1997
between 10:00 and 11:00 oclock in the
evening, in Brgy. Cut-Cut II, Municipality
of Tarlac, Province of Tarlac, Philippines
and within the jurisdiction of this
Honorable Court the said accused, with
intent to kill and with treachery, did then
and there wilfully, unlawfully and
feloniously shoot with his Armalite rifle
Lorenzo Galang hitting him at the
different parts of his body and as a
result of which said Lorenzo Galang
died instantly.
CONTRARY TO LAW.
Appellant pleaded not guilty to the
charge, and thereafter trial commenced.
The prosecution relied mainly on the
eyewitnesses Maximo Sison, Jr., an
employee of Hacienda Luisita, and
Arturo Yarte, a tricycle driver, both of
Barangay Cut-cut II, Tarlac City. Other
prosecution witnesses were Orlando
Galang, brother of the victim Lorenzo
Galang, and Concordia Galang, his
mother.
Both MAXIMO SISON, JR. and
ARTURO YARTE testified3 that between
10:00 and 11:00 in the evening of
November 24, 1997, Lorenzo Galang, a
resident of their barangay, got involved
in a quarrel at the town plaza. He was
brought to the barangay hall for
questioning by Barangay Captain
Remigio Capitli.
Shortly after, appellant Rodolfo
Concepcion arrived and fired his rifle
twice or thrice past the ears of Lorenzo,
who was then sitting, but without injuring
him. After that, however, appellant thrust
the barrel of the gun against the
abdomen of Lorenzo. Then there was an
explosion. Lorenzo was shot in the
thigh. At least three more shots were
fired, hitting Lorenzo in the chest.
According to Sison and Yarte, appellant
shot Lorenzo deliberately. Lorenzo died
instantly.
ORLANDO GALANG, the victims
brother, recalled that he arrived at the
scene of the crime after Lorenzo was
slain.4 According to him, his brother was
not brought to the hospital.5 Orlando
testified on the anguish he suffered for
having lost his brother. 6
CONCORDIA GALANG, mother of the
victim, testified that Lorenzo worked at
the Hacienda Luisita and was earning
P1,000 more or less a week.7 According
to her, Lorenzo was 27 years old when
he died. He was married and had two
children.8 As a result of Lorenzos death,
the Galangs incurred expenses
amounting to approximately half a
million pesos.9 Concordia Galang
presented a list of these expenses
amounting to P257,259,10 but without
supporting receipts.
In his defense, appellant RODOLFO
CONCEPCION claimed that the
shooting was only accidental. According
to him, he was investigating Lorenzo for
the latters disorderly behavior at the
town plaza when it happened. He said
Lorenzo appeared drunk and unruly, and
even verbally challenged him to fight. At
this juncture, according to appellant, he
fired two shots in the air, but Lorenzo
grabbed the barrel of his gun. The gun
accidentally fired and Lorenzo was hit. 11
Defense witnesses ESTELITA
BALUYOT and MILAGROS VILLEGAS
corroborated appellants story. They said
they witnessed the incident because
they were among the bystanders who
saw the event happen from the time
Lorenzo was brought to the barangay
hall for investigation until he was shot.
Estelita and Milagros testified that
Lorenzo was seated while being
questioned and pacified by appellant.
Appellant was then standing. All of a
sudden, according to the lady-
witnesses, appellant fired two warning
shots in the air. Lorenzo stood up and
grabbed the barrel of the gun which was
then pointed upwards. When it fired,
Lorenzo was hit.12
On November 10, 1998, the trial court
rendered its decision finding appellant
guilty of the crime of murder. Its fallo
reads:
WHEREFORE, finding accused guilty
beyond reasonable doubt of the crime of
murder punished and defined by Article
248 in relation to RA 7659, accused is
hereby sentenced to suffer an
imprisonment of reclusion perpetua and
to indemnify the heirs of the deceased in
the amount of P50,000.00 for his loss of
life; P120,000.00 as expected income;
P100,000.00 as moral damages; and
P10,000.00 as attorneys fees.13
Seasonably, appellant filed his notice of
appeal. In his brief, he makes but one
assignment of error:
THE LOWER COURT GRAVELY
ERRED IN NOT FINDING THAT THE
INJURIES SUSTAINED BY THE
DECEASED WERE
UNINTENTIONALLY INFLICTED
WHILE ACCUSED-APPELLANT WAS
IN THE COURSE OF PERFORMING
HIS LAWFUL DUTY AS A POLICE
OFFICER.14
The sole issue in this case is whether
appellant is exempt from criminal
liability. Under Article 12 (4) of the
Revised Penal Code, among those
exempted from criminal liability is:
Any person who, while performing a
lawful act with due care, causes an
injury by mere accident without fault or
intention of causing it.
Well settled is the rule in criminal cases,
that the prosecution has the burden of
proof to establish the guilt of the
accused.15 However, once the defendant
admits the commission of the offense
charged, but raises an exempting
circumstance as a defense, the burden
of proof is shifted to him. By invoking
mere accident as a defense, appellant
now has the burden of proving that he is
entitled to that exempting circumstance
under Article 12 (4) of the Code.
The existence of accident must be
proved by the appellant to the
satisfaction of the court. For this to be
properly appreciated in appellants favor,
the following requisites must concur: (1)
that the accused was performing a
lawful act with due care; (2) that the
injury is caused by mere accident; and
(3) that there was no fault or intent on
his part to cause the injury.16 Appellant
must convincingly prove the presence of
these elements in order to benefit from
the exempting circumstance of accident.
However, his defense utterly failed to
discharge this burden. Thus, we find no
reversible error in the judgment of the
trial court.
By appellants own testimony, the victim
was unarmed. In contrast, appellant had
an armalite and a handgun. It is highly
inconceivable that an unarmed man
could pose bodily harm to another who
is heavily armed.
We note, that appellants gun
discharged several shots that hit vital
parts of the victims body. Was the
discharge purely accidental? We dont
think so. As observed by the trial court,
recklessly appellant had put his finger
on the trigger of his cocked and loaded
rifle. In that state, with the slightest
movement of his finger,17 the rifle would
fire readily. And it did not just once but
several fires.
Appellant claims that the victim Lorenzo,
who was drunk at the time, was brought
to the barangay hall for investigation.
Lorenzo became unruly while being
questioned, so appellant was
constrained to fire two warning shots in
the air to frighten him. However, the
latter stood up and immediately grabbed
the nozzle of the gun and pulled it
towards him. The gun accidentally went
off and hit Lorenzo in the body. To
buttress his claim, appellant rationalizes
that he could have killed Lorenzo
immediately while creating trouble at the
plaza, if that was indeed his intention.
Since he did not, appellant posits that
there was no intent on his part to kill
Lorenzo.
But we note patent inconsistencies in his
claims. He testified on query by the trial
court that when he was pacifying the
victim, his rifle was hanging on his
shoulder on a swivel, with its barrel
pointed to the floor. At that instance, the
victim grabbed the barrel of the gun
which accidentally fired.18 However, on
direct examination by his defense
counsel, he testified that the victim
grabbed his rifle only after he had fired
the two shots in the air.
His claims do not square with and could
not overcome the testimony of
prosecution witnesses on this score.
Note that Maximo Sison, Jr., an
eyewitness, categorically declared that
he saw appellant shoot the victim with
an M-16 armalite.19 On direct
examination, Sison testified as follows:
Q: Earlier, you stated at the time you
arrived at the barangay hall, Rodolfo
Concepcion was eight (8) meters away
from Lorenzo, at that time Rodolfo
Concepcion shot Lorenzo Galang, how
far is Rodolfo Concepcion from Lorenzo
Galang?
A: He was near him because he
approached him, sir. He was very near.
xxx
Q: How many times did Rodolfo
Concepcion shot (sic) Lorenzo Galang?
A: The first firing were two (2) shots, sir.
Q: Was Lorenzo Galang hit?
A: No sir.
Q: At the time Rodolfo Concepcion fired
these two (2) shots, according to you, it
was near his left ear?
A: Yes, sir.
Q: How far is the barrel from the ear of
Lorenzo Galang when he fired those two
shots? Will you indicate by pointing your
left ear?
A: Less than a foot, sir.
Q: When you are referring to the barrel
of the gun which was pointed at the left
ear of Lorenzo, how far is the barrel of
the gun from the ears of Lorenzo?
A: The barrel was "lampas tainga" so
Lorenzo was not hit, sir.
Q: What happened after that?
A: He put down and thrust the barrel of
the gun toward the stomach of Lorenzo
Galang, sir.
Q: After Rodolfo Concepcion thrust the
barrel of his gun towards the abdomen
of Lorenzo Galang what else transpired?
A: Because he was hurt he tried to push
the barrel of the gun, sir.
Q: What did Lorenzo Galang use in
pushing the barrel when Rodolfo
Concepcion thrust it towards the
stomach?
A: He just pushed a little bit to remove
the barrel of the gun from his abdomen,
sir.
Q: After that what happened?
A: After pushing the barrel of the gun
simultaneously the firing and hitting
Lorenzo at his right thigh, sir.
Q: What did Lorenzo Galang do after he
was hit on the right thigh?
A: Because Lorenzo was seated, he
was lifted from his seat, sir.
Q: Incidentally at that time when Rodolfo
Concepcion placed the barrel of his gun
about a distance away from the ear of
Lorenzo, how far was Lorenzo Galang
positioned that time?
A: He was leaning on the chair sir.
Q: What about Rodolfo Concepcion how
was he positioned when he fired those
first two shots?
A: He was standing, sir.
Q: Now after the right thigh of Lorenzo
Galang was hit by third shot what else
transpired?
A: He again thrust the barrel of his gun
on the chest or towards the chest of
Lorenzo and simultaneously fired the
gun.20
The autopsy report corroborates Sisons
testimony that the victim had three
gunshot wounds: one at the right nipple,
another at the mid-femur (thighbone),
and another above the knee.21 Likewise,
Sisons declaration on material details
coincide with those narrated by Arturo
Yarte, a barangay tanod who also
witnessed the shooting incident. There
is no proof of ill motive on the part of
Sison and Yarte that could have
impelled them to falsely testify against
appellant. In fact, Sison was appellants
childhood friend.22
The trial court found that treachery
attended the commission of the crime.
As hereafter explained, however, in this
case treachery is only an aggravating
and not a qualifying circumstance.
To constitute treachery (alevosia), two
conditions must be present: (1) the
employment of means of execution that
give the person attacked no opportunity
to defend himself or to retaliate; and (2)
the means of execution were
deliberately or consciously adopted.23
Here, treachery was clearly present
considering that the victim was totally
unprepared for the barrage of gunshots
made by appellant. It was undisputed
that the victim was brought to the
barangay hall for questioning. He had
submitted himself to the authority of the
barangay officials and to the police
authorities. He was seated, thereby
excluding any insinuation that he was
violent and unruly. He was weak from
drinking at the time so that he had very
little physical ability to cause harm to
anyone, more so in the presence of the
barangay captain, barangay tanod and a
police officer in the person of
appellant.24
From the circumstances of the case, the
Court agrees with the prosecution that
appellant consciously and purposely
adopted the means of attack to insure
the execution of the crime without risk to
himself.
However, we note that treachery, though
stated in the information, was not
alleged with specificity as qualifying the
killing to murder. Following People vs.
Alba, G.R. No. 130523, January 29,
2002, the information should state not
only the designation of the offense and
the acts and omissions constituting it,
but should also specify the qualifying
and aggravating circumstances. Since
the information in this case failed to
specify treachery as a circumstance
qualifying the killing to murder, under the
present Revised Rules of Criminal
Procedure,25 treachery has to be
considered a generic aggravating
circumstance only. Consequently, the
crime committed by appellant is
homicide and not murder.
Further, we find that the trial court
misappreciated as an aggravating
circumstance the fact that appellant was
a policeman on duty at the time of the
killing. The information charging
appellant bears no mention of this
aggravating circumstance.1wphi1
Pursuant to the Revised Rules of
Criminal Procedure that took effect on
December 1, 2000, every complaint or
information must state not only the
qualifying but also the aggravating
circumstances.26 This provision may be
given retroactive effect in the light of the
well-settled rule that statutes regulating
the procedure of the courts will be
construed as applicable to actions
pending and undetermined at the time of
their passage.27 The aggravating
circumstance of abuse of official
position, not having been alleged in the
information, could thus not be
appreciated to increase appellants
liability.
At any rate, appellants immediate
surrender to police authorities after the
shooting should be credited in his favor
as a mitigating circumstance, pursuant
to Article 13 (7) of the Revised Penal
Code.28
In sum, we find appellant guilty of
homicide. The penalty for homicide
under Article 249 of the Revised Penal
Code is reclusion temporal. There being
one mitigating circumstance of voluntary
surrender and one aggravating
circumstance of treachery, the penalty
should be imposed in its medium
period.1wphi1 Applying the
Indeterminate Sentence Law, appellants
sentence should be within the range of
prision mayor as minimum, and the
medium period of reclusion temporal as
maximum.
As to the award of damages, the trial
court offered no explanation for the
award of P120,000 as expected income.
This figure is without basis. The victims
lost earnings are to be computed
according to the formula adopted by the
Court in several decided cases, to wit:
Net earning capacity = 2/3 x (80-age of
the a reasonable portion
victim at the time of x of the annual net
his death) income which would
have been received by
the heirs for support29
Lorenzo was 27 years old at the time of
his death. His mother testified that he
was earning P1,000 a week during his
lifetime or an annual income of P48,000.
In the absence of proof of his living
expenses, his net income is deemed to
be 50 percent of his gross income.30
Using the above formula, we fix the
indemnity for loss of earning capacity of
Lorenzo at P848,000, thus:
2 (80-27)
Net earning capacity = x [P48,000
3
2 (53)
= x P24,000
3
= 35.33 x P24,000
= P848,000
We find the award of P50,000 as death
indemnity to the heirs of the deceased to
be in accordance with existing
jurisprudence.31 This civil indemnity is
automatically granted to the heirs of the
victim without need of any evidence
other than the fact of the commission of
the crime.32 As for moral damages, the
amount should be reduced to P50,000
also in accordance with existing
jurisprudence.33 The award of P10,000
as attorneys fees is sufficient and
justified.
WHEREFORE, the decision of the
Regional Trial Court, Tarlac, Branch 65,
in Criminal Case No. 9776, convicting
appellant Rodolfo Concepcion of the
crime of murder, is hereby AFFIRMED
with MODIFICATION. Appellant is found
guilty of the crime of homicide and
sentenced to an indeterminate penalty
of eight (8) years and one (1) day of
prision mayor as minimum and fourteen
(14) years, eight (8) months, and one (1)
day of reclusion temporal as maximum.
He is also ordered to pay the heirs of the
victim the amount of P50,000 as civil
indemnity, P50,000 as moral damages,
P848,000 as lost earnings, P10,000 as
attorneys fees, and the costs.
SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 140794 October 16, 2001
PEOPLE OF THE PHILIPPINES,
appellee,
vs.
RICARDO AGLIDAY Y TOLENTINO,
appellant.
PANGANIBAN, J.:
Reckless imprudence consists of
voluntarily doing or failing to do, without
malice, an act from which material
damage results by reason of an
inexcusable lack of precaution on the
part of the person performing or failing
to perform such act. Malice is the
antithesis of reckless imprudence. Once
malice is proven, recklessness
disappears.
The Case
Before us is an appeal from the
September 14, 1997 Decision1 of the
Regional trial Court of San Carlos City
(Branch 57) in Criminal Case No. SCC
3054. The assailed Decision disposed
as follows:
"WHEREFORE, in the light of the
foregoing consideration, the court finds
the accused Ricardo T. Agliday guilty
beyond reasonable doubt of parricide
and hereby sentences him to suffer the
penalty of reclusion perpetua and to
indemnify the heirs of the victim in the
amount of fifty thousand pesos
(50,000.00).
"The PNP Bayambang[,] Pangasinan is
directed to turn over the shotgun to the
Firearm and Explosive Division, Camp
Crame, Quezon City."2
This case originated from the April 22,
1999 Information,3 in which Ricardo
Agliday y Tolentino was accused of
parricide, allegedly committed as
follows:
"That on or about February 25, 1999, in
the evening, at [B]arangay Nalsian Sur,
[M]unicipality of Bayambang, [P]rovince
of Pangasinan, Philippines, and within
the jurisdiction of this Honorable Court,
the above-named accused, with intent to
kill, did then and there, wil[l]fully,
unlawfully and feloniously shoot his son
Richard V. Agliday with a shotgun,
unlicensed causing his death shortly
thereafter due to '[c]ardio respiratory
arrest, hypovolemic shock, gunshot
wound, pt. Of entry at the (L) upper
inner quadrant of gluteus, 3 x 3 cm. (+)
contusion collar', as per Certificate of
Death issued by Dr. Rod Alden
Tamondong, M.D., medical office III,
Region I Medical Center, Arellano St.,
Dagupan City, to the damage and
prejudice of his legal heirs."4
On arraignment, appellant, assisted by
Atty. Bernardo S. Valdez, pleaded not
guilty.5 After trial in due course, the lower
court rendered the assailed Decision.
Atty. Carlito M. Soriano, counsel for
appellant, filed the Notice of Appeal on
September 22, 1999.6
The Facts
Version of the Prosecution
 In its Brief,7 the Office of the Solicitor
General summarized the prosecution's
version of the facts as follows:
"Prosecution witness Conchita Agliday,
wife of appellant Reynaldo Agliday,
testified that about 8:00 o'clock on the
evening of February 25, 1999 while
washing dishes in the kitchen of their
house, her son Richard Agliday was
shot with a shotgun by her husband-
appellant Ricardo Agliday (pp. 4-5, tsn,
July 5, 1999). As a result, her son
Richard fell on his belly; her husband-
appellant ran away. Although shocked,
Conchita was able to rush out of her
house to call for help. Richard was first
brought to the Sto. Nio Hospital, then
to the San Carlos General Hospital, and
finally to the Region I Hospital in
Dagupan City (pp. 5-6, id.).
"Before the shooting, Conchita and her
husband quarreled over her working as
a laundrywoman (p. 7, id.). Her son,
Richard, at the time of his death, was
only nineteen (19) years old and in 4th
year college (p. 9, id.).
"Prosecution witness Rey Agliday,
another son of appellant, testified that
he was in their house resting on a
wooden bed at the time of the incident in
question (p. 3, tsn, June 18, 1999). Rey
saw his father-appellant shoot his
brother Richard with a shotgun, as he
was about four (4) meters from them (p.
4, id.).
"Before the shooting incident, Rey
recounted [that] his mother and his
father-appellant had a quarrel, but he
did not interfere. His brother Richard, on
the other hand, intervened and for that
reason appellant got his shotgun and
shot Richard. Appellant surrendered to
the barangay captain who accompanied
him to the police authorities. Rey
executed a sworn statement (Exhibit 'A')
on the shooting incident (p. 5, id.).
"Dr. Rod Alden Tamondong, medical
health officer, Region I Medical Center,
Dagupan City declared that he attended
to the medical needs of Richard Agliday.
Richard came in looking very pale,
weak, and semi-conscious (p. 3, tsn,
July 13, 1999). He died at the
emergency room.
"Dr. Tamondong found a gunshot wound
at the left buttock of the victim which had
no point of exit; he also found multiple
metallic objects therein based on the
contusion color of the wound and the x-
ray result (pp. 4-5, id.). he stated that
the cause of the victim's death was
cardio-respiratory arrest secondary to
the decrease of the circulating blood of
the victim (pp. 4-5, id.). But he did not
issue a medical certificate as he was
then on official leave; he only issued a
death certificate (Exhibit 'D') (p. 5, id.)." 8
Version of the Defense
Appellant, in his Brief,9 submits his own
narration of the events:
"Appellant Ricardo T. Agliday is a
barangay tanod of Nalsian Sur,
Bayambang, Pangasinan.
"Sometime on February 25, 1999, at or
about 8:00 o'clock in the evening,
appellant was at the first floor of his
house. He was cleaning a homemade
shotgun which he intended to bring to
[his] night patrol in their barangay, with
fellow barangay tanods.1wphi1.nt
"While his wife Conchita and his son
Richard were about to go upstairs, and
while appellant was cleaning the
homemade shotgun, the gun
accidentally went off and Richard's
buttock was hit.
"Appellant went near his son and
embraced him. Appellant and some
relatives brought Richard to the Sto.
Nio Hospital at Bayambang,
Pangasinan. They later transferred him
to the San Carlos General Hospital.
 Finally, they brought him to the Region I
Medical Center at Dagupan City, where
he expired.
"Thereafter, appellant returned to
Bayambang, Pangasinan. He directly
went to the house of Barangay Captain
Jose Matabang, Jr. to whom he
voluntarily surrendered. The barangay
captain brought the appellant to [the]
police station of Bayambang,
Pangasinan, with the homemade
shotgun which [had] accidentally hit
Richard."10
Ruling of the Trial Court
Faced with two conflicting versions of
the facts, the trial court gave credence
to the prosecution witnesses who gave
straightforward, spontaneous, sincere
and frank accounts of the events that
had unfolded before their very eyes.
Because of their relationship with
appellant, there was no reason for them
to testify falsely against him. The first
witness (Rey) was appellant's son who
was the victim's brother, while the other
witness (Conchita) was appellant's wife
who was the victim's mother.
The defense of appellant that what
happened was an accidental shooting
was disbelieved by the trial court. It
viewed such stance as his desperate
attempt to exculpate himself from the
consequences of his acts.
Hence, this appeal.11
The Issues
Appellant submits the following issues:
"First Assignment of Error
"The Honorable Court a quo erred in the
its findings of facts which[,] had they
been in accordance with the evidence
adduced, will suffice to support a
judgment of acquittal for accused-
appellant."12
"Second Assignment of Error
"The Honorable Court a quo erred in
convicting accused appellant [of]
parricide."13
This Court's Ruling
The appeal is devoid of merit.
First Issue:
Credibility of Witnesses
Appellant contends that the trial court
erred in giving credence to the
prosecution witnesses despite his
avowals to the contrary. He claims that it
should have believed him because he
had absolutely no reason or motive to
kill, much less shoot, his own son whom
he considered to have had a very bright
future. He further alleges that the
corroborating testimonies of Jose
Matabang and SPO1 Emilio Opina, who
were not related to the parties and had
absolutely no motive to testify falsely
against him, were more credible than
those of his wife and other son.
We disagree. Long settled is the rule in
criminal jurisprudence that when the
issue is one of credibility of witnesses,
an appellant court will normally not
disturb the factual findings of the trial
court.14 That is, unless the lower court
has reached conclusions that are clearly
unsupported by evidence, or unless it
has overlooked some facts or
circumstances of weight and influence
which, if considered, would affect the
results.15
Matabang's testimony was basically
what appellant had told him and, hence,
biased and limited. The testimony of
Opina that he had been told by
Conchita that the shooting was
accidental was contradicted by her
own statements in open court that she
was still in shock when the police officer
conducted the preliminary investigation.
Such statements taken ex parte, like
affidavits, are held as inferior to
testimonies given in open court.16 Thus,
we find no ground in the case at bar to
overturn the factual findings of the trial
 court.
Second Issue:
Accident as an Exempting
Circumstance
Appellant protests the trial court's ruling
that his defense of accidental shooting
was fabricated. According to him, he
was cleaning the shotgun that he would
have used for the evening patrol with
other barangay tanods when he
accidentally touched the trigger and hit
Richard, who was going up the stairs
into the house with Conchita.17 he
therefore contends that he should be
acquitted on the basis of the exempting
circumstance of accident under Article
12 (paragraph 4) of the Revised Penal
Code.
We are not persuaded. Both the trial
court and the solicitor general rejected
this defense on the basis of the
eyewitness testimonies of Conchita and
Rey. Under Article 12 (paragraph 4) of
the Code, criminal liability does not arise
in a case a crime is committed by "[a]ny
person who, while performing a lawful
act with due care, causes an injury by
mere accident without fault or intention
of causing it." The exemption from
criminal liability under the circumstance
showing accident is based on the lack of
criminal intent.
The declarations of innocence by
appellant are contradicted by the
testimonies of his wife and son. On the
witness stand, Conchita recounts the
incident as follows:
"Q: You said that you were at home
on February 25, 1999 at about 8:00
o'clock in the evening; what were you
doing if you can still remember?
A: I was washing dishes, sir.
Q: While doing so, do you recall if
there was any unusual incident that
happened?
A: Yes, sir.
Q: What was that unusual incident?
A: My son was shot by my husband,
sir.
Q: Where did your husband [shot]
your son?
A: In the kitchen, sir.
Q: What weapon did your husband
use in shooting your son?
A: Shortgun, sir."18
In her Sworn Statement given to SPO1
Emilio Opina of the Bayambang Police
Station, she declared:
"04. Q: Will you please narrate to me
briefly all you know about the incident
you are referring to?
A: That on or about 8:00 o'clock in
the evening o[n] February 25, 1999
while I and my husband Ricardo Agliday
y Tolentino were quarreling in
connection [with] his drinking (liquor)
habit[,] my son Richard V. Agliday tried
to [pacify] us but my husband, instead of
listening, x x x got his gun [from] the bed
where we are sleeping and shot our son
Richard V. Agliday."19
Rey corroborated his mother's testimony
that his brother was shot by their father.
His testimony proceeded as follows:
"Q: On February 25, 1999 at about
8:00 o'clock in the evening, do you
remember where you were?
A: Yes, sir.
Q: Where were you on that day and
[at that] time?
A: I was under the house resting on a
wooden bed, sir.
xxx xxx xxx
Q: While you were under your house
resting do you remember if there was
any unusual incident that happened?
A: Yes, sir.
Q: What was that unusual incident?
A: My brother was shot by my father,
sir.
Q: How far where you when your
father shot your brother?
 A: About four (4) meters, sir.
Q: What weapon did your father use
in shooting your brother?
A: A shotgun, sir.
xxx xxx xxx
Q: Where was your mother, Conchita
at the time your father shot your brother
Richard?
A: She was there and they were both
quarreling, sir.
Q: They were both quarreling before
the incident happened?
A: Yes, sir.
Q: And while your father and mother
were quarreling what did you do?
A: I did not interfere[;] it was my
brother who intervene[d] between them
that is why my father got his gun and
shot my brother, sir."20
Before the accused may be exempted
from criminal liability by reason of Article
12 (paragraph 4), the following elements
must concur: (1) a person is performing
a lawful act (2) with due care, and (3) he
causes an injury to another by mere
accident and (4) without any fault or
intention of causing it.21 For an accident
to become an exempting circumstance,
the act has to be lawful.22 The act of
firing a shotgun at another is not a lawful
act.
An accident is an occurrence that
"happens outside the sway of our will,
and although it comes about through
some act of our will, lies beyond the
bounds of humanly foreseeable
consequences."23 It connotes the
absence of criminal intent. Intent is a
mental state, the existence of which is
shown by a person's overt acts.24 In the
case at bar, appellant got his shotgun
and returned to the kitchen to shoot his
son, who had intervened in the quarrel
between the former and Conchita. It
must also be pointed out that the firearm
was a shotgun that would not have fired
off without first being cocked.
Undoubtedly, appellant cocked the
shotgun before discharging it, showing a
clear intent to fire it at someone.
The Resolution25 dated April 22, 1999,
filed by 4th Asst. Provincial Prosecutor
Emilio R. Soriano, reads thus:
"[O]n the evening of February 25, 1999
at about 8:00 o'clock, complainant and
her husband were then quarreling in
connection with his liquor drinking habit.
While they were quarreling, their son
Richard intervened and tried to pacify
his father who [was] under the influence
of liquor. Apparently angered and not
listening to his son, he proceeded inside
their bedroom and took his gun and
thereafter shot his son Richard who was
trying to pacify them. After seeing her
son being shot by her husband,
complainant ran outside and called for
help. x x x.
"After carefully considering the
uncontroverted evidence adduced by
complainant, undersigned sufficiently
finds a probable cause for [p]arricide
with the use of an unlicensed firearm x x
x."26
Appellant contends that since he was
only negligent, he should have been
convicted, not of parricide, but only of
reckless imprudence resulting in
homicide.27
We disagree. Reckless imprudence
consists of voluntarily doing or failing to
do, without malice, an act from which
material damage results by reason of an
inexcusable lack of precaution on the
part of the person performing or failing
to perform such act. Past jurisprudential
cases of reckless imprudence resulting
in homicide were as follows: (1)
exhibiting a loaded revolver to a friend,
who got killed by the accidental
discharge arising from negligent
handling; (2) discharging a firearm from
 the window of one's house and killing a
neighbor who, at just that moment,
leaned over a balcony front; and (3)
firing a .45 caliber pistol twice in the air
to stop a fist fight; and, as the fight
continued, firing another shot at the
ground but, after the bullet ricocheted,
hitting a bystander who died thereafter.28
Intent is not lacking in the instant case.
Appellant's external acts prove malice or
criminal intent. A deliberate intent to do
an unlawful act is inconsistent with
reckless imprudence.29
In People v. Belbes,30 the Court found
no reckless imprudence in the shooting
of a student who, in the act of destroying
the school's bamboo wall, had been
caught by a policeman who was
responding to a report that somebody
was causing trouble in a school affair.
The policeman's action cannot be
characterized as reckless imprudence,
because the shooting was intentional.
The accused had intended to fire at the
victim and in fact hit only the latter. In
this case, resenting his son's meddling
in his argument with his wife, appellant
purposely took his gun and shot his
son.1wphi1.nt
WHEREFORE, the appeal is hereby
DENIED and the assailed Decision
AFFIRMED. Costs against appellant.
SO ORDERED.
FIRST DIVISION
[G.R. No. 106210-11. January 30,
1998]
PEOPLE OF THE PHILIPPINES,
plaintiff-appellee, vs.
ROBERTO RAMBO LISING,
RODOLFO MANALILI,
FELIMON GARCIA, ENRICO
DIZON and ROBIN MANGA,
accused-appellants.
DECISION
KAPUNAN, J.:
The parents of Cochise and
Beebom must have lifted their sorrowful
faces heavenward and blurted out an
anguished cry: Oh God! Why must it be
they, so young, so loving, so beautiful
and so promising, to be brutally
snatched from our embrace and never
to be seen again?
Conchise, whose full name was
Ernesto Bernabe II, was 26 years old on
the fateful day of April 26, 1990 and Ana
Lourdes Castaos, or Beebom to her
family and friends, was 22. Cochise had
just graduated from the University of the
Philippines with a degree of Bachelor of
Laws and was reviewing for the bar
examinations, while Beebom was a
graduating student at the College of
Mass Communications from the same
university. Both excelled in academic
and extra-curricular activities.
The senseless and gruesome
killing of the young man and woman,
both full of promise, horrifies us. But
what makes this crime more despicable
in our eyes is the involvement of people
sworn to uphold the law.
For the crimes for which they were
charged and sentenced, appellants now
come to this Court asking us to give
their case a second look, insisting on
their innocence.
Sometime in March, 1990, Rodolfo
Manalili, a businessman asked Felimon
Garcia, his townmate, if he knew
somebody who could allegedly effect the
arrest of one Robert Herrera, the
suspect in the killing of his brother,
Delfin Manalili.
Felimon Garcia said he knew one
and arranged a meeting with him.
On April 21, 1990, Felimon Garcia
called up Manalili and informed him that
he already contacted a policeman to
help him and said that the policeman
wanted to talk to him. So an
appointment was set at 12:00 p.m. of
April 22, 1990 at Dau Exit, North
Expressway, Mabalacat, Pampanga.
On said date Manalili, together with
his son Richard, arrived at the Dau Exit
at about 12:30 p.m. of April 22, 1990.
Felimon Garcia was already there
waiting for Manalili.
They proceeded to the Golden
Palace Chinese Restaurant where they
would meet Roberto Lising. They,
however, had to change venue because
Roberto Lisings live-in partner, Ligaya
Faustino and other companions were in
the restaurant. So they went instead to a
nearby carinderia and instructed
Felimon Garcia to follow them there.
Shortly, Felimon Garcia arrived
and introduced Roberto Lising, Enrico
Dizon and another man armed with a
service pistol to Manalili. During the
meeting, Manalili gave them P2,000.00
and instructed them to go and see Vic
Nabua,* his employee who will point to
them the person to be arrested.
On April 23-24, Lisings group went
to Quezon City and met Vic Lisboa.
They conducted a surveillance on the
Castaos residence in the hope of seeing
Herrera. Failing to do so, the group was
asked to come back the next day.
On April 25, the same group
arrived at the vicinity of the Castaos
residence at around 5:00 p.m. to resume
their surveillance. Two hours later,
Lisboa alerted the group after allegedly
spotting Herrera entering the Castaos
residence.
Later, the group saw a man and a
woman who happened to be Cochise
and Beebom leave the Castaos
residence in a green box type Lancer
car. The group followed the Lancer car
with Lising, Dizon and Manga riding in a
black car and Lisboa and Garcia in a
motorcycle.
The Lancer car went to Dayrits
Ham and Burger House on Timog Circle,
Quezon City where the couple intended
to have dinner. Alighting from the car,
they were accosted by Dizon and
Manga who were both carrying firearms.
Amidst protestations, Dizon poked his
gun at Cochise, handcuffed him, and
shoved him into the car. Beebom
protested loudly at the arrest and was
also shoved into the back of the car.
The young couples failure to go
home that night and the next day
alarmed their parents, so a search was
then initiated by close friends and
relatives - inquiring from hospitals,
restaurants, friends houses and possible
places where the couple would go.
 One group chanced upon Dayrits
Ham and Burger House where they
were told that a couple who fitted their
descriptions were taken by three (3)
men believed to be from the military in
the evening of April 25, 1990.
The abduction of Cochise and
Beebom hit the front pages. Appeals by
the parents to locate them reached the
authorities where all possible angles of
their disappearance were explored but
there were no significant leads. After
about two (2) months of futile search for
their whereabouts, a break came on
June 21, 1990 when two (2) security
guards working in a Shellane
Warehouse in San Fernando,
Pampanga went to see Ms. Rosie
Bernabe at her Pasay City Hall office
and had information concerning her son,
Cochise. Mrs. Bernabe referred the two
guards to the CAPCOM who interviewed
them.
The two guards told the CAPCOM
that their friends Raul Morales and Jun
Medrano, both employees of Roberto
Lising, informed them that Lising killed a
mestisuhin man and a woman in their
warehouse.
On June 23, 1990, Raul Morales
was picked up and told his story. In a
sworn statement executed on even date,
he stated that he was a pahinante
residing in the warehouse where LPG
cylinders are stored, located near Valle
Verde Drive-In Lodge in San Fernando,
Pampanga, owned by Ligaya Fausto,
common-law wife of Roberto Lising alias
Rambo. In the main, he said:
21. T: Sa ikaliliwanag ng pagsisiyasat na
ito, maaari bang isalaysay mo
ang sinasabi mong hindi
pangkaraniwang pangyayari?
S: Nangyari yan alas 2:00 ng madaling
araw ng 26 April 1990
natutulog ako, nang mayron
kumatok sa pinto ng bodega at
nagising ako. Tinawag ko si
Aida Morales para buksan ang
gate tapos sabi ni Aida Ikaw na
lang ang magbukas
pagkatapos kinuha ko yung
susi sa kanya para buksan ang
yong gate. Noong binubuksan
ko yong gate sabi sa akin ni
Roberto Llising Bakit ang tagal
mo tapos pakabukas ko ng
gate pumasok yong dalawang
kotse una yung itim
pagkatapos yung green na
kotse na Lancer, tapos unang
bumaba sa kotse na itim si
Rambo, pangalawa si Felimon
bumaba sa kotse na Lancer
may dala na pala. Pagkatapos
lumabas ng gate si Felimon
may dala na pala. Si Rambo
naman binuksan yong
dalawang pinto ng kotseng itim
bumaba yung babae at saka
yung lalaki hinila palabas ni
Rambo. Pagkatapos tinalian
niya ng alambre bukod pa sa
pagtali ng alambre pati pa yong
mukha tinalian ng damit.
Pagkatapos pagtali ni Rambo,
biglang dumating si Felimon
dala pa yong pala pagkatapos
sininyasahan si Rambo na
ilabas na iyong lalaki. Dinala
ulit ni Rambo yung pala noong
palabas na sila nung lalaki.
Pagkatapos ayaw nga lumabas
ng lalaki, itinulak ni Rambo
papunta sa labas, sabi naman
ng babae maawa naman po
kayo sa amin dahil wala
kaming kasalanan pagkatapos
tinutukan ni Rambo yong
babae at sabi Putang ina mo,
wag kang maingay, papatayin
rin kita. Noong dinala na ni
 Rambo, umiiyak na lang yong
babae. Mga kalahating oras
bago bumalik si Rambo sa
bodega na hindi na kasama
yong lalaki. Nakahubad siya at
pinapawisan, bukod pa yan,
naghugas pa ng kamay siya.
Pagkatapos nag-usap-usap
silang tatlo, si Rambo, si
Felimon at yong kasama ni
Rambo. Pagkatapos nagsabi si
Rambo sa akin na buksan na
ang gate at aalis na sila.
Binuksan ko ang gate at
nagsakayan sila sa kotse, si
Rambo sa itim at saka yong
babae, sa Lancer naman ang
nakasakay yong kasama niya
at si Felimon, at pagkatapos
lumabas na sila, tuloy-tuloy na
umalis.[if !supportFootnotes][1][endif]
On June 25, 1990, the body of
Cochise was exhumed. An autopsy was
conducted where the finding was: Cause
of Death: Multiple Stab Wounds
The next day, Beeboms body,
which was in an advanced decomposing
stage was exhumed from a shallow
grave, two (2) kilometers from where
Cochises body was found.
After evading arrest the previous
days, Roberto Lising was finally
apprehended on June 30, 1990. In a
Sworn Statement on the same day at
Camp Bagong Diwa, Bicutan, he
implicated Felimon Garcia and Roberto
Manalili. According to him, this is what
happened:
x x x at about 11:00 oclock in the
evening of April 25, 1990, he
received a telephone call from
FELIMON GARCIA informing
that he and his companions
were at Valle Verde Lodge at
San Fernando, Pampanga
and that they have a problem.
He immediately went to that
place and saw FELIMON
GARCIA who introduced to
him RUDY MANALILI who
was then accompanied by six
(6) other men; that he saw a
yellow Mercedes Benz, a
black Torana and a green
Lancer; that on board the
Lancer were a man and a
woman who were blindfolded
and were introduced to him by
RUDY MANALILI as
ROBERTO HERRERA and
JOY MANALILI; that they
proceeded to one of the
rooms of the motel where
MANALILI told him that the
two persons should die
because they killed his brother
DELFIN MANALILI; that
afterwards RUDY MANALILI
paid the chit and they
proceeded to the warehouse
at Villa Victoria, San
Fernando, Pampanga, owned
by LIGAYA FAUSTO where he
bound COCHISE and led him
back of the warehouse; that
MANALILI stabbed COCHISE
and he acted only as a look-
out; that FELIMON GARCIA
and another person brought
the blindfolded woman to
Brgy. San Agustin where she
was killed that before he,
FILIMON GARCIA and RUDY
MANALILI parted ways,
MANALILI told him to take
care of the Lancer, change its
color and later he will get it
and after that he was given
P40,000.00 in check which he
encashed at the UCPB
Diliman Branch, Quezon City
on April 26, 1990; that he
 gave P15,000.00 to FELIMON
GARCIA and kept the rest;
that he had the Lancer
repainted and used it.[if !
supportFootnotes][2][endif]
Thereafter, the manhunt for
Felimon Garcia and Rodolfo Manalili
began. One by one, the men
responsible for the killing of Cochise and
Beebom fell into the hands of the
authorities.
On January 4, 1991, Garcia
surrendered and was brought to the
NBI. He named Pat. Enrico Dizon as the
companion of Lising when Cochise and
Beebom were kidnapped and brought to
Valle Verde Lodge. He refused to make
a statement or give further information
until Rodolfo Manalili was arrested.
On January 16, 1991, Enrico Dizon
was turned over by his superiors to the
NBI. He named a certain CIC Robin
Manga as one of their companions and
owner of the car they used when
Cochise and Beebom were kidnapped.
Thus, Manga was also picked up.
Meanwhile, Rodolfo Manalili, who
was in Australia at that time was fetched
by then NBI Director Alfredo Lim and
Atty. Diego Gutierrez after proper
representations were made with the
Australian police.
On January 17, 1991 Felimon
Garcia, with the assistance of his
counsel, Atty. Redemberto Villanueva,
executed a statement revealing that:
x x x he met RODOLFO MANALILI
sometime in April 1987 in his
office at No. 71 Mapang-akit
Street corner V. Luna, Quezon
City while soliciting
contribution for Barangay
fiesta of San Isidro, Minalin.
The relationship continued
until he was requested by
MANALILI to look for persons
who could help in arresting
ROBERTO HERRERA, the
suspect in the killing of his
brother DELFIN MANALILI.
He contacted ROBERTO
LISING alias RAMBO, a
policemen assigned with
Pampanga PC Intelligence
Unit, thru LIGAYA FAUSTO,
his relative and live-in partner
of LISING, to help in the arrest
of HERRERA, and on April 21,
1990, while in the residence of
LISING, he placed a long-
distance call to MANALILI to
inform him that LISING is
willing to help. They talked
over the phone and agreed to
meet the following day in Dao.
He met MANALILI at the Dao-
Mabalacat exit and
accompanied the latter to
LISING, ENRICO DIZON AND
ANOTHER MAN ARMED
WITH SERVICE PISTOL (.45
CALIBER AND Armalite.
MANALILI, during the
meeting, said that VIC
NABUA, his employee, will act
as pointer of the persons to be
arrested and LISING agreed
and asked from MANALILI
P50,000.00 for the job to
which MANALILI agreed.
Initially MANALILI gave
P2,000.00 to LISING as
expenses.
He together with LISING, ENRICO
DIZON and the driver of a
Tamaraw went to Quezon City
on April 23 and 24, 1990, but
VIC NABUA failed to spot
HERRERA. On April 25, 1990,
LISING and DIZON returned
on board a black car, Colt
Galant (sic) driven by ROBIN
MANGA and NABUA finally
told then that HERRERA was
at a house near the Camelot.
After a few minutes of
surveillance NABUA
approached them and told
them to follow the car driven
by a man with a woman
companion. Said car
proceeded to Timog Circle
and parked in front of Dayrit
Hamburger House, followed
by the Colt Galant which they
likewise followed on board a
motor and handcuffed the
man and the woman. Then
LISING instructed him to
contact MANALILI and VIC
NABUA proceeded to
Pampanga PC where they
were instructed by the military
on duty to proceed to Valle
Verde Lodge, San Fernando,
Pampanga. There they saw
LISING and ERNESTO
COCHISE BERNABE and
BEEBOM CASTAOS.
MANALILI identified them and
instructed him and LISING to
release COCHISE and
BEEBOM and assured that
whatever MANALILI promised
to LISING WILL BE PAID.
Lising AGREED. However,
after MANALILI left, LISING
told him to bring COCHISE
and BEEBOM to a warehouse
owned by LIGAYA FAUSTO
where COCHISE was killed by
LISING. Thereafter BEEBOM
was forced by ENRICO
DIZON and ROBIN MANGA
top board the Galant car
which left the warehouse
towards Barangay San
Agustin.
He and LISING were left in the
warehouse and proceeded to
the house of LIGAYA FAUSTO
at MALIGAYA Village in San
Fernando. At about 9:00 a.m.
he and LISING went to the
warehouse of MANALILI at
Xavierville Subdivision,
Quezon City and there a
check for P40,000.00 was
given to LISING who
encashed it with Fareast Bank
and went to Pampanga. He
alighted at Sto. Domingo,
Minalin, Pampanga after
LISING gave him P500.00.[if !
supportFootnotes][3][endif]
Rodolfo Manalili, on the other
hand, with the assistance of Atty.
Rodolfo Jimenez manifested on January
18, 1991:
That he met LISING through
FELIMON GARCIA whom he
requested to look for some
police officers who could help
in the arrest of ROBERTO
HERRERA, the accused in
the killing of his brother
DELFIN MANALILI.
He met LISING together with a
certain Pat ENRICO DIZON of
the Guagua police and
another police officer in Dau,
Pampanga on April 22, 1990,
and gave them a sketch of
HERRERA. On April 24, 1990,
he told GARCIA to postpone
 their plan against HERRERA
due to his forthcoming travel
to Germany on April 25.
However, at about 10:00 p.m.
of April 25, GARCIA came to
his office at No. 71
Mapangakit, Diliman, Quezon
City and informed that they
have already arrested
HERRERA with a lady
companion and that he was
instructed to go to Pampanga,
which he did. He was
accompanied in his car by
GARCIA and VICTOR
LISBOA.
They proceeded to Valle Verde
Hotel in San Fernando,
Pampanga, and brought him
to Room 213 where he saw a
man slumped on the floor with
his eyes and mouth covered
with tape. The lady
companion sitting on the bed
had her eyes also taped. He
told LISING that the man is
not HERRERA. He was forced
to peek (sic) inside the room
anew, and this time
recognized the woman to be
BEEBOM CASTAOS. He
pleaded to LISING and
companions to release them
and would give them whatever
amount he promised them.
After he was told that BEEBOM and
COCHISE would be released
he instructed GARCIA to stay
behind and see to it that his
instructions were complied
with. Then, he returned with
VICTOR LISBOA. The
following day, at about 8:00
a.m., LISING and GARCIA
came to his house and told
him that the man and
BEEBOM were already
released and in turn gave
them a Far East Bank check
in the amount of P40,000.00.
On April 26, he left for Germany and
returned on May 28, 1990.
While still in Germany his wife
and househelps have been
receiving threatening
telephone calls and on the
first week of June he received
a call from GARCIA who gave
the telephone to LISING who
asked for P60,000.00,
otherwise he will kill him or
implicate him in the crime.
On June 21, 1990 he left for Hong
Kong then to Melbourne for
fear of his life and that of his
family.
He claimed that the police officers
he saw in Valle Verde Hotel
were Pampanga policeman
and not Quezon City
policeman.[if !supportFootnotes][4][endif]
Consequently, two (2) Amended
Informations were filed in court against
Roberto Rambo Lising, Rodolfo Manalili,
Felimon Garcia, Enrico Dizon, Robin
Manga, and Ligaya Fausto.
Criminal Case No. Q-90-15239
For Carnapping (Violation of
Republic Act No. 6539)[if !supportFootnotes][5][endif]
That on or about the 25thday of
April 1990, in Quezon City, Philippines,
and within the jurisdiction of this
Honorable Court, the said accused,
P/Pfc. Roberto Lising y Canlas, Enrico
Dizon, Robin Manga y Quimzon, being
then members of the Integrated National
Police with Presidential waiver, and
Rodolfo Manalili, Felimon Garcia and
Ligaya Fausto, private individuals and
several Does, conspiring together,
confederating with and mutually helping
one another, with intent to gain, and
without the knowledge and consent of
the owner thereof, by means of violence
and intimidation against persons, did,
then and there, willfully, unlawfully and
feloniously take, rob and carry away one
G.T. Lancer, with plate No. PER 942 in
an undetermined value and belonging to
Ernesto Bernabe II, to the damage and
prejudice of the offended party in such
amount as may be awarded under the
provisions of the Civil Code.[if !supportFootnotes]
[6][endif]
Criminal Case No. Q-90-15240
For: Kidnapping with Double
Murder[if !supportFootnotes][7][endif]
That on or about the 25 th day of
April, 1990, in Quezon City, Philippines,
and within the jurisdiction of this
Honorable Court, the said accused,
P/Pfc. Roberto Rambo Lising y Canlas,
Enrico Dizon, Roberto (sic) Manga y
Quimzon, being then members of the
Integrated National Police with
Presidential waiver,and Rodolfo Manalili,
Felimon Garcia, both private individuals,
and several Does, conspiring together,
confederating with and mutually helping
one another, did, then and there,
willfully, unlawfully and feloniously and
for the purpose of detaining Ernesto
Bernabe II y Blanco @ Cochise and Ana
Lourdes Castaos y Jis de Ortega @
Beebom, kidnap or in any manner
deprive them of their liberty and
thereafter, pursuant to their conspiracy,
took them to San Fernando, Pampanga,
and with intent to kill, with treachery,
evident premeditation and cruelty, did,
then and there stab them several times
in the chest and slit open their necks,
augmenting their sufferings which were
the direct and immediate cause of their
deaths and thereafter burying them to
prevent discovery, and Ligaya Fausto,
also a private individual, knowing the
criminal intent of the above-named
principal accused cooperated in the
execution of the crime by supplying
material and/or moral aid, to the damage
and prejudice of the Heirs of said victims
in such amounts as may be awarded to
them under the provisions of the New
Civil Code.[if !supportFootnotes][8][endif]
Upon arraignment, all the accused
pleaded not guilty.
In building up their case, the
prosecution presented two vital
witnesses: Froilan Olimpia, who
witnesses the abduction of the young
couple at Dayrits Ham and Burger
House; and Raul Morales, the pahinante
who testified on the killing of Cochise.
On May 27, 1991, Froilan Olimpia
testified in court and stated that he was
31 years old and was formerly a security
guard of Nationwide Security and
Investigation Agency. He was assigned
at the Rotonda Wine Station, the
establishment beside Dayrits Ham and
Burger House along Timog Circle,
Quezon City. His tour of duty on April 25,
1990 was from 12:00 noon to 12:00
midnight.
At about 7:00 to 7:30 in the
evening, Olimpia was at his post in front
of the Wine Station. There was a green
box type Lancer car which parked in
front of the Dayrits Ham and Burger
House carrying a man and a woman.
Then a black car with no license plate
parked behind the green car and two
men alighted from it carrying guns. They
announced that they were policemen,
one was carrying a .45 caliber firearm in
his holster and other was carrying a long
firearm. These men went towards the
green box type Lancer and handcuffed
its driver. He only heard the man being
handcuffed retort Bakit? When asked
about the female companion, he said
that his attention was more focused on
the handcuffing incident and just later
noticed that the woman was already
seated at the back of the car. He did not
even see the other man driving the black
car.
Olimpia further explained that the
security guard of Dayrits Ham and
Burger House, Anastacio dela Cruz, was
not really able to witness the whole
incident since he was busy buying a
cigarette stick from a nearby vendor.
Just when the latter was returning to his
post, the cars were already backing up
ready to leave.
He did not tell anyone about the
incident nor bothered to report to the
authorities since he was aware that the
perpetrators were policemen. He came
to know about the identities of the man
and woman and their disappearance
when two persons were making inquiries
about them on April 27, 1990. The next
time, another group of people asked him
about what he witnessed until he was
picked up by the NBI for further
questioning about the whole incident.
Raul Morales was presented in
court on April 17, 1991. He stated that
since March 1988, he had been working
for Ligaya Fausto and Roberto Lising as
a pahinante or truck helper of Crown
Gas Commercial, a dealer of LPG,
located in Valle Victoria Village, San
Fernando, Pampanga. He knew Roberto
Lising to be a policeman and is known
by the name Rambo Lising. He works as
a policeman in the morning and when he
returns home after work, helps in
delivering gas. During his testimony,
Morales was given a clean sheet of
paper and pen where he was asked to
make a sketch of his place of work.
At about 2:00 in the morning of
April 26, 1990, he was awakened by a
knock at the gate of the warehouse.
When he opened the gate, two cars
came in: a green box-type Lancer car
driven by Lising, with Felimon Garcia
seated in front, a man and a woman at
the back seat of the car; and a black car
with Dizon and Manga. After the two
cars entered the premises, he saw
Lising go behind their sleeping quarters
and get a wire. Lising and Dizon then
brought Cochise to an area in the middle
of the warehouse while Manga led
Beebom to another end. After alighting
from the car, Felimon Garcia got a
spade from the back compartment of the
car and went out of the warehouse.
Lising and Dizon then removed the
handcuffs of Cochise, tied his hands
with the wire and blindfolded him with a
tape and torn cloth.
Morales further testified that it was
Lising who closed the gate but left it ajar.
In a little while, he noticed another man
enter the gate and walked towards
Beebom. He heard the woman plead:
Uncle, maawa po kayo sa amin, while
Manga was tying Beeboms hands with
the wire. Garcia, after going inside the
warehouse, was handed a knife by
Lising which he used to stab Cochise on
the chest. Lising then retrieved his knife
from Garcia and continued to stab
Cochise. When Cochise was already
dead, the four men, namely, Lising,
Garcia, Dizon and Manga carried
Cochise out of the warehouse. They
were away for about half an hour and
when they came back, the four men
directly went to the well and washed
their hands. The four walked towards
Manalili and talked with each other. He
could not hear the conversation but saw
that they grouped themselves together.
Before leaving, Lising called on
Morales and told him to close the gate
and keep the shoes of Cochise. Lising
boarded the green box-type Lancer car
with Garcia and the woman. He noticed
Rudy Manalili walk out of the gate.
On April 26, 1991, the court
conducted an ocular inspection of the
scene of the crime. Witness Morales
pointed to the court how events
transpired from where he was seated.
On the basis of the testimonies of
the above witnesses, plus the
confessions made in the extrajudicial
statements executed by Roberto Lising,
Felimon Garcia, and Rodolfo Manalili,
the prosecution presented their version
of the incident as quoted from the trial
courts decision, to wit:
1. The conspiracy to abduct and
subsequently kill Ernesto
Cochise Bernabe II and Ana
Lourdes Beebom Castaos
was hatched sometime in
March 1990 when accused
Rodolfo Manalili secured the
services of accused Felimon
Garcia to look for men who
would be willing to commit the
dastardly deed for a fee.
(Exhibits HH and MM).
2. Accused Garcia then set about
on his task and contacted
accused Roberto Lising and
Enrico Dizon for the job. (Ibid.)
3. At a meeting arranged by Garcia
on 22 April 1990, accused
Manalili talked with Lising and
Dizon at Mabalacat,
Pampanga about the details
of the conspiracy. (Ibid.)
4. Accused Manalili promised
Lising, Dizon and their
companions the amount of
P50,000.00 for the job. (Ibid.)
5. Lising and Dizon readily
accepted Manalilis using a
total of P10,000.00 as
downpayment, the balance of
P40,000.00 payable after the
victims have been kidnapped
and killed. (Ibid.)
6. Accused Lising and Dizon then
recruited accused Robin
Manga to help implement the
orders of Manalili. (Ibid.)
7. On 25 April 1990, at around 5:00
oclock in the afternoon,
accused Lising, Dizon, Garcia
and Manga, on board Mangas
black car, went to the vicinity
of the Camelot Hotel at
Quezon City. They positioned
themselves about 60 meters
away from the Castaos
residence and waited for the
victims. (Exhibit MM)
8. At around 6:30 oclock in the
evening of the same day,
Cochise and Beebom went
out of the Castaos residence,
boarded Cochises green
colored 1985 Lancer car with
plate No. PER 942. (Ibid.)
This Lancer car is owned by,
and registered under the
name of Cochises father,
Fiscal Ernesto Bernabe.
 (Exhibit DD)
9. Cochise and Beebom then
proceeded toward Dayrits
Ham and Burger House at
Timog Avenue, Quezon City.
(Ibid.)
10. Accused Lising, Dizon, Garcia
and Manga immediately
boarded Mangas black car
and tailed the green Lancer.
(Ibid.)
11. Upon reaching Dayrits
hamburger House, Cochise
parked the green Lancer in
front of the restaurant. (TSN,
7 May 1991, p.6)
12. Immediately thereafter, Mangas
black car was parked
immediately behind. (Ibid.)
13. Accused Dizon, armed with a .
45 caliber pistol, and accused
Manga, carrying a long
firearm, alighted from the
black car, proceeded towards
the green Lancer and
announced that they are
policemen. (Id. At 7)
14. While Cochise and Beebom
were alighting from the green
Lancer, Dizon approached,
pointed the .45 caliber pistol
at Cochise and handcuffed
Cochises hands behind his
back. (Id., at 8)
15. Cochise, visibly surprised and
confused, asked Dizon, Bakit?
(Id. at 14)
16. Accused Dizon ignored the
question and rudely pushed
Cochise into the back seat of
the green Lancer. (Id., at 7-9)
17. Similarly, accused Manga
approached Beebom at the
other side of the green
Lancer, and pushed her into
the other back seat of the
green Lancer. (Ibid.)
18. Accused Dizon and Manga then
boarded the front of the green
Lancer, backed the car out of
the parking area of Dayrits
Ham & Burger House and
drove away towards EDSA.
(Id.at 11)
19. Accused Lising and Garcia, on
board Mangas black car,
immediately followed. (Ibid.)
20. After the forcible abduction of
Cochise and Beebom, Garcia
informed Manalili of the
success of the operation.
Garcia further told Manalili to
go to a designated place in
San Fernando, Pampanga,
where Cochise and Beebom
will be taken. (Exhibit MM)
21. Manalili then proceeded to San
Fernando, Pampanga on
board his gray Mercedes
Benz. (Ibid.)
22. At around 2:00 oclock in the
morning of 26 April 1990,
accused Lising, Dizon, Garcia
and Manga brought Cochise
and Beebom to a bodega in
San Fernando, Pampanga
owned by accused Ligaya
Fausto. (TSN, 18 April 1991,
p.6)
23. At this time, Lising was driving
the green Lancer with Garcia
at the front seat. At the rear of
the car were Cochise and
Beebom. (Id. at 8)
24. Manga, on the other hand, was
driving the black car, with
Dizon beside him. (Id., at 8)
25. After the green Lancer and the
black car were parked inside
the bodega, Cochise, blind-
folded, handcuffed and
gagged with several strips of
masking tape, was dragged
out of the green Lancer by
Lising and Dizon towards an
area near the toilet. (Id., at 9-
10; TSN, 26 April 1991, p.3)
26. Beebom, on the other hand,
was taken by Manga to
another area of the Bodega
where she could not see
Cochise or hear what was
being done to him. (Ibid.)
27. At this point in time, Manalili
arrived, parked the car on the
road outside the bodega and
walked inside towards
Beebom. (TSN, 18, April
1991, p.11)
28. Beebom, seeing Manalili,
pleaded, Uncle, parang awa
mo na. Wala kaming
kasalanan. (Ibid.)
29. Manalili simply ignored
Beeboms plea for mercy.
(Ibid.)
30. Meanwhile, Garcia went to the
back of the green Lancer, got
a spade from the truck
compartment, and went out of
the bodega. (Ibid). Garcia
walked towards the back of
the bodega and there, dug a
shallow grave. (Exhibit HH)
31. Lising went to the clothesline
area of the bodega, got a
length of a laundry wire and
some clothes which he tore
apart and made into makeshift
ropes. (TSN, 18 April 1991, p.
12)
33. Garcia then returned to the
bodega with the spade still in
his hands and approached
Cochise. (Id., at 14)
34. Lising handed a knife to Garcia,
who then stabbed Cochise in
the chest. (Ibid.)
35. Lising, appearing, dissatisfied,
grabbed the knife from Garcia
and stabbed Cochise several
times in the chest and
stomach area, as if telling
Garcia how to do it. All this
time, Dizon was holding
Cochise. (Id., at 14-15)
36. Cochise then fell to the ground,
mortally wounded. (Ibid.)
37. Thereupon, Dizon motioned to
Manga to help carry the body
of Cochise. Manalili then was
left to keep watch over
Beebom. (Id., at 16)
38. Lising, Dizon, Garcia and
Manga brought Cochise to the
back of the bodega, into the
shallow grave dug by Garcia.
The four then covered cochise
with soil. (TSN, 26 April 1991,
p. 6; Exhibit MM)
39. They then reported to Manalili
for final instructions. The order
was for all of them to leave.
(TSN, 26 April 1991, p. 18)
40. Beebom inquired about
Cochise, Lising and Dizon
answered that they had
released Cochise, and that
they would likewise release
her. (TSN, 18 April 1991, p.
18; Exhibit MM)
41. Thus, the five accused left the
bodega, Dizon and Manga on
board the black car, Manalili in
his own car, and Lising,
Garcia and Beebom in the
green Lancer. (TSN, 18 April
1991, p. 18)
42. Later, upon the instructions of
Lising, Dizon and Manga took
Beebom with them on the
black car. (Exhibit MM). This
was the last time that Beebom
was seen alive.
43. At around 5:00 oclock in the
morning of the same day,
Fausto arrived at her bodega
and waited for Lising to arrive.
(TSN, 18 April 1991, p. 20)
44. About an hour later, Lising
arrived on board the Lancer
car taken from Cochise. Lising
alighted from the Lancer car,
proceeded to one of the huts
in the bodega where Fausto
was staying, and informed
Fausto about the taking of the
Lancer car. (Id., at 21)
45. After a few minutes, Fausto
emerged from the hut and
instructed a certain Jun
Medrano, one of Faustos
helpers in the bodega, to drive
the Lancer car to her house in
Maligaya Village, San
Fernando, Pampanga, and
hide it there. (Id., at 22)
46. Pursuant to Faustos instruction,
Jun Medrano, together with
two other helpers of Fausto,
Raul Morales, and a certain
Nonoy, drove the Lancer car
 to Faustos house and hid it in
the barbelan area of the
house. (Id., at 23-24; Exhibit
Y)
47. Meanwhile, satisfied that his
orders had been fully
implemented, Manalili paid
Lising the P40,000.00 balance
of the contract, by issuing a
Far East Bank check for the
said amount to Lising at
around 8:00 oclock in the
morning of 26 April 1990.
(Exhibits K and HH)
48. Lising immediately encashed
the check and distributed the
proceeds among himself and
the other accused, Exhibits K-
2 and MM)
49. The Lancer car taken from
Cochise, on the other hand,
remained hidden for sometime
at the residence of Fausto in
Maligaya Village where it was
repainted to a light gray color
upon the instruction of Fausto.
(TSN, 18 April 1991, pp. 26-
27; Exhibits CC, CC-1 to CC-
6)
50. After the Lancer car was
repainted to light gray,
Faustos helpers in the
bodega, namely, Jun
Medrano, Raul Morales, Rudy,
Bebot and Arnold, upon
Faustos instructions, pushed
the Lancer car for about
fifteen minutes to have its
engine started. Thereafter, the
Lancer car was driven to
Faustos bodega. (TSN, 18
April 1991, pp. 28-29)
51. Lising and Fausto thereafter
started using the Lancer car in
going to the bank and other
places in San Fernando,
Pampanga. (Ibid.)
52. The Lancer car was
subsequently recovered by
the PC/CAPCOM and turned
over to the custody of Fiscal
Ernesto Bernabe. (Exhibits
CC, CC-1 to CC-6 and EE)
53. On 25 June 1990, after two
months of frantic and
exhaustive search made by
the Bernabe family, the body
of Cochise was found and
exhumed from the grave
where Cochise was buried by
Lising, Garcia Dizon and
Manga at the back of Faustos
bodega in San Fernando,
Pampanga. It was determined
during an autopsy that
Cochise died to multiple stab
wounds in his chest and upper
stomach. (TSN, 10 April 1991,
p. 33; Exhibits D, D-1 E and
E-1
54. The next day, also after two
months of frantic and
exhaustive search made by
the Castaos family, the body
of Beebom was found and
exhumed from a shallow
grave about two kilometers
from the bodega of Fausto. It
was determined during the
autopsy that Beebom died of
 severe hemorrhage,
secondary to two stab wounds
in the chest. (TSN, 10 April
1991, p. 40; Exhibits 1 and J)
55. Cochise was 26 years old and
Beebom was 22 years old
when their lives were untimely
ended by the accused.
Cochise had just finished his
Bachelor of Laws degree from
the University of the
Philippines and was then
reviewing for his bar
examinations when he was
abducted on 25 April 1990.
Beebom, on the other hand,
was a graduating Mass
Communication student of the
University of the Philippines
when she was abducted on 25
April 1990. Both Cochise and
Beebom excelled in academic
and extra-curricular activities,
their written works having
been published in periodicals
and other publications.
Cochise and Beebom were in
the best of their youth and
health at the time of their
untimely death. (TSN, 9
August 1991, pp. 4-7; TSN, 23
July 1991, pp. 24-26; Exhibit
II)
56. The Bernabe family, in their
attempt to locate Cochise
spent a total of P380,000.00.
in laying Cochise to his final
rest, the Bernabe family spent
a total of P632,222.00 for
funeral and other expenses.
(TSN, 9 August 1991, p. 12;
Exhibits LL, LL-1 to LL-3)
57. The Castaos family, on the other
hand, spent a total of
P350,000.00 for the funeral
services for Beebom. (TSN,
23 July 1991, p. 39)[if !
supportFootnotes][9][endif]
In their defense, the accused
policemen claimed that there was
insufficient evidence to sustain their
conviction. At the same time, each one
had an alibi.
Roberto Lising asserted that on
April 25, 1990, he took a leave of
absence from office to be able to
celebrate his fathers birthday in Arayat,
Pampanga and stayed there for the
night. His father was presented to
corroborate his assertion.
Enrico Dizon testified that April 25,
1990 was an ordinary working day for
him. He left the office at 5:00 p.m. and
headed for home at NO. 107 Kamia St.,
Bgy. Sindalen, San Fernando,
Pampanga. In fact, two of his neighbors
recounted in court the verbal exchange
they had when they saw each other in
their neighborhood.
Roberto Manga, meanwhile
averred that it was impossible for him to
participate in the commission of the
crime since he was still nursing his
gunshot wounds sustained in an
encounter with lawless elements for
about a year already.
Garcia and Manalili did not take
the witness stand. They opted to rely on
their extrajudicial statements executed
the previous days manifesting the
absence if criminal intent.
On July 1, 1992, the trial court
rendered a decision with the following
dispositive portion:
WHEREFORE, premises
considered, this Court finds
accused RODOLFO
 MANALILI, ROBERTO Accused LIGAYA FAUSTO who is
LISING y CANLAS, FELIMON charged as an accessory after the fact
GARCIA, ROBIN MANGA y (not accomplice as alleged by the
QUIMZON and ENRICO Prosecution), is hereby acquitted for
DIZON y ESCARIO, GUILTY insufficiency of evidence.
beyond reasonable doubt of Accused RODOLFO MANALILI,
the crime of Double Murder ROBERTO LISING, ENRICO DIZON,
qualified with treachery and ROBIN MANGA and FELIMON GARCIA
aggravated by evidence are given full credit of their respective
premeditation and abused of sentences in this case.
public position by Lising, With respect to Criminal Case No.
Manga and Dizon, and hereby Q-15239 for carnapping, all the accused
sentences each one of them are hereby ACQUITTED of the crime
to suffer a penalty of double charged, it appearing that the use of the
Reclusion Perpetua with all its car was done only to facilitate the
accessory penalties provided commission of the crime of Slight Illegal
by law (the death penalty Detention.[if !supportFootnotes][10][endif]
having been abolished by the In this appeal, the following
1987 Constitution); to pay assignment of errors were made:
jointly and severally the heirs Roberto Lising contends that:
of Ernesto Bernabe II; I. THAT THE HONORABLE TRIAL
COURT ERRED
IN ADMITTING
(a) P1,000,000.00 as funeral and other AND
expenses; CONSIDERING
(b) P50,000.00 as compensatory THE
damages; STATEMENTS
(c) P500,000.00 as moral damages; OF RODOLFO
(d) P2,000,000.00 for Cochises loss of MANALILI
earning capacity; (EXHS. HH:, HH-
The heirs of Ana Lourdes Castaos: 1 TO HH-25) AND
(a) P350,000.00 for funeral and other THAT OF
expenses; FELIMON
(b) P50,000.00 as compensatory GARCIA (MM,
damages; MM-1 TO MM-14)
(c) P500,000.00 as moral damages; ADMISSIBLE AS
The Court also finds accused AGAINST
Roberto Lising, Enrico Dizon and Robin ROBERTO
Manga GUILTY beyond reasonable RAMBO LISING;
doubt of the crime of Slight Illegal
Detention aggravated by use of a motor
vehicle and hereby sentences each one II. THAT THE HONORABLE TRIAL
of them to suffer the maximum penalty COURT ERRED
of Reclusion Temporal with IN DECLARING
imprisonment from Seventeen (17) RAUL MORALES
years, Four (4) months and one (1) day AS A CREDIBLE
to Twenty years, and to pay the cost. WITNESS, ALSO
 AS AGAINST PURPOSES OF
ROBERTO JURISDICTION;
RAMBO LISING; AND

III. THAT THE HONORABLE TRIAL VI. THAT THE HON. COURT
COURT ERRED, ERRED IN
LIKEWISE, IN CONVICTING TE
STATING THAT HEREIN
HEREIN APPELLANT
APPELLANT (ROBERTO
IMMEDIATELY LISING) AS ONE
ENCASHED THE OF ALL THE
CHECK AND ACCUSED FOR
DISTRIBUTED THE CRIMES OF
THE PROCEEDS DOUBLE
AMONG MURDER AND
HIMSELF AND WITH ENRICO
THE OTHERS DIZON AND
(EXHS. K-2 AND ROBIN MANGA
MM); FOR SLIGHT
ILLEGAL
DETENTION
IV. THAT THE HONORABLE TRIAL BEYOND
COURT ERRED REASONABLE
IN DECLARING DOUBT.[if !
THE supportFootnotes][11][endif]

STATEMENT OF
THE HEREIN
APPELLANT AS Enrico Dizon argues that:
ADMISSIBLE IN 1. THE LOWER COURT ERRED IN
EVIDENCE AS GRANTING THE MOTION TO
AGAINST HIM; DROP THE NAMES OF
ROLANDO KHO, ROLANDO
FERNANDEZ, NOEMI
V. THAT THE HONORABLE TRIAL PANGAN AND JESUS
COURT ERRED REMOLACIO FROM THE
IN DECLARING INFORMATION AND ADMIT
THAT HEREIN AMENDED INFORMATION
APPELLANT IMPLICATING ACCUSED-
(LISING IS APPELLANT ENRICO DIZON
EQUALLY DESPITE CLEAR EVIDENCE
LIABLE FOR OF THE PARTICIPATION OF
KIDNAPPING KHO, FERNANDEZ,
THUS, JIVING PANGAN AND REMOLACIO;
(SIC) THE
PLACE FOR
2. THE LOWER COURT ERRED IN ACTS BASED ON THE
ADOPTING THE DECLARATION OF FELIMON
PROSECUTIONS VERSION GARCIAS EXTRAJUDICIAL
OF STATEMENT OF THE CONFESSION WITHOUT
FACTS ALTHOUGH THERE ESTABLISHING FIRST THE
WERE MISLEADING CONSPIRACY TO WHICH
STATEMENTS AS PROVED ACCUSED-APPELLANT
BY THEIR DIZON WAS A PART.[if !
supportFootnotes][12][endif]
CONTRADICTIONS TO THE
TRANSCRIPTS OF
STENOGRAPHIC NOTES,
AND AFFIDAVITS Robin Manga asserts that:
PRESENTED; I. THE LOWER COURT ERRED IN
GIVING FULL
WEIGHT AND
3. THE LOWER COURT GRAVELY CREDIT ON THE
ERRED IN NOT EXTRAJUDICIAL
CONSIDERING THE STATEMENT OF
PRESUMPTION OF CO-ACCUSED
INNOCENCE FOR IT RELIED RODOLFO
IN THE WEAKNESS OF THE MANALILI AND
DEFENSE OF ALIBI, FELIMON
WITHOUT REGARDING THE GARCIA
INCONSISTENCIES IN THE DESPITE THE
TESTIMONY OF FACT THAT THE
PROSECUTION WITNESS TWO DID NOT
RAUL MORALES AND TAKE THE
FROILAN OLIMPIA; WITNESS
STAND NOR
THEIR
4. THE LOWER COURT STATEMENTS
COMMITTED ERROR WHEN OFFERED IN
IT GAVE CREDENCE TO EVIDENCE;
THE AFFIDAVITS
EXECUTED BY LISING,
MANALILI AND GARCIA II. THE LOWER COURT ERRED IN
DESPITE THE FACT THAT HOLDING THAT
THEY WERE NOT THE
PRESENTED AS EXTRAJUDICIAL
WITNESSES BEFORE THE STATEMENTS
LOWER COURT; OF RODOLFO
MANALILI AND
FELIMON
5. THE LOWER COURT GRAVELY GARCIA
ERRED IN ADJUDGING THE AFFIRMED
ACCUSED-APPELLANT CONSPIRACY
GUILTY OF THE CRIMINAL AMONG THE
 ACCUSED- OF ACCUSED-
APPELLANTS APPELLANT
DESPITE ITS ROBIN MANGA
UTTER LACK OF DESPITE
EVIDENTIARY STATEMENTS
VALUE; BY OLIMPIA
THAT HE SAW
QUEZON CITY
III. THE LOWER COURT ERRED POLICEMEN
IN GIVING FULL ROLANDO KHO
WEIGHT AND AND ROLANDO
CREDIT ON THE FERNANDEZ AS
TESTIMONIES THE PERSONS
OF RAUL WHO
MORALES AND ABDUCTED
FROILAN COCHISE AND
OLIMPIA BEEBOM IN THE
DESPITE THE EARLY EVENING
FACT THAT THE OF APRIL 25,
STATEMENTS 1990 AND
OF THE TWO DESPITE THE
ARE REPLETE FACT THAT THE
WITH EXTRAJUDICIAL
INCONSISTENCI STATEMENT
ES, SELF- FELIMON
CONTRADICTIO GARCIA WAS
NS AND ARE NOT EVEN
HIGHLY IDENTIFIED BY
IMPROBABLE; THE LATTER
DURING THE
TRIAL OF
IV. THE LOWER COURT ERRED
THESE CASES;
IN FINDING
THAT FELIMON
GARCIAS V. THE LOWER COURT ERRED IN
NARRATION OF CONSIDERING
THE AS EVIDENCE
ABDUCTION MATTERS
WAS OBTAINED IN
CONSISTENT VIOLATION OF
WITH THE THE
TESTIMONY OF CONSTITUTION
FROILAN AL RIGHT OF
OLIMPIA WITH THE ACCUSED-
RESPECT TO APPELLANT
THE MANGA;
PARTICIPATION
VI. THE LOWER COURT ERRED II. THE TRIAL COURT GRAVELY
IN FAILING TO ERRED IN NOT
OBSERVE THE FINDING THAT
PHYSICAL ACCUSED
IMPOSSIBILITY RODOLFO
OF ACCUSED- MANALILI DID
APPELLANT NOT HAVE ANY
MANGA BEING CRIMINAL
INVOLVED IN INTENT OF
THE OFFENSES DOING AWAY
CHARGED; WITH THE LIVES
OF ERNESTO
BERNABE II AND
VII. THE LOWER COURT ERRED ANA LOURDES
IN NOT CASTAOS AND
ACQUITTING THAT HE
ACCUSED- LIKEWISE DID
APPELLANT NOT HAVE ANY
MANGA.[if ! MOTIVE
supportFootnotes][13][endif]
WHATSOEVER
IN CONSPIRING
TO DO SO;
Rodolfo Manalili avers that:
I. THE TRIAL COURT GRAVELY
ERRED IN III. THE TRIAL COURT GRAVELY
GIVING TOTAL ERRED IN NOT
CREDIBILITY TO CONCLUDING
RAUL MORALES THAT ACCUSED
AND IN NOT RODOLFO
FINDING THAT MANALILI
RAUL MORALES NEVER
WAS A ENTERED INTO
REHEARSED A CONSPIRACY
AND PERJURED TO COMMIT THE
WITNESS CRIME OF
INSOFAR AS DOUBLE
IMPLICATING MURDER NOR
ACCUSED DID HE COMMIT
RODOLFO ANY ACT/S ON
MANALILI IN THE BASIS OF
THE WHICH IT CAN
COMMISSION BE INFERRED
OF THE CRIME THAT HE
OF DOUBLE ENTERED INTO
MURDER IS SUCH A
CONCERNED; CONSPIRACY
TO COMMIT THE
 CRIME IMPUTED IN THE CRIME;
TO HIM;
V. THE TRIAL COURT GRAVELY
IV. SINCE THERE WAS IN ERRED IN NOT
EFFECT CONSIDERING
SEPARATE SPECIAL
TRIAL OF THE CIRCUMSTANCE
SEVERAL S OF THE CASE
ACCUSED WHO ON THE BASIS
WERE EACH OF WHICH IT
REPRESENTED CAN BE
BY SEPARATE INFERRED THAT
LAWYERS AND ANOTHER
CONSIDERING PARTY WHO
THAT WOULD BE
CONSPIRACY MOST
BETWEEN BENEFITED BY
MANALILI AND DOING AWAY
HIS CO- WITH THE LIVES
ACCUSED HAS OF THE
NOT BEEN VICTIMS, WAS
SHOWN BY ANY BEHIND THE
ACT OR COMMISSION
DECLARATION OF DOUBLE
DURING ITS MURDER;
EXISTENCE,
THE TRIAL
COURT VI. THE TRIAL COURT GRAVELY
GRAVELY ERRED IN NOT
ERRED IN APPLYING THE
TAKING INTO WELL-
ACCOUNT THE ESTABLISHED
SWORN PRINCIPLE IN
STATEMENT OF CRIMINAL LAW
ROBERTO THAT WHEN
LISING AS THE FACTS AND
EVIDENCE CIRCUMSTANCE
AGAINST S OF THE CASE
RODOLFO ARE
MANALILI TO SUSCEPTIBLE
THE EXTENT TO TWO
THAT IT REASONABLE
PURPORTS TO INTERPRETATIO
ATTEST TO NS: ONE
MANALILIS REASONABLE
INVOLVEMENT INTERPRETATIO
 N LEADING TO A EXISTING
DECISION OF JURISPRUDENC
CONVICTION, E.[if !supportFootnotes][14]
[endif]
AND THE
OTHER
REASONABLE
INTERPRETATIO Felimon Garcia contends that:
N LEADING TO A I. THE TRIAL COURT GRAVELY
FINDING OF ERRED IN NOT
ACQUITTAL, FINDING THAT
THEN THE RAUL MORALES
EVIDENCE OF WAS A
THE REHEARSED
PROSECUTION AND PERJURED
HAS NOT WITNESS TO
FULFILLED THE MAKE FALSE
STRINGENT ASSERTIONS
REQUIREMENT IMPLICATING
OF THE LAW OF APPELLANT
PROVING THE FELIMON
GUILT OF GARCIA IN THE
ACCUSED COMMISSION
RODOLFO OF THE CRIME
MANALILI OF DOUBLE
BEYOND DOUBT MURDER;
AND
THEREFROM
II. SINCE THERE WAS IN EFFECT
SAID ACCUSED
SEPARATE
MANALILI IS
TRIALS OF THE
ENTITLED TO
SEVERAL
AN ACQUITTAL;
ACCUSED WHO
AND
WERE EACH
REPRESENTED
VII. THE LOWER COURT BY SEPARATE
GRAVELY LAWYERS AND
ERRED IN CONSIDERING
AWARDING THAT
INFLATED, CONSPIRACY
UNSUBSTANTIA BETWEEN
TED, AND APPELLANT
SPECULATIVE FELIMON
DAMAGES GARCIA AND
WHICH ARE HIS CO-
NOT ACCUSED HAS
RECOVERABLE NOT BEEN
UNDER SHOWN BY ANY
 ACT OR IV. THE TRIAL COURT GRAVELY
DECLARATION ERRED IN NOT
DURING ITS CONCLUDING
EXISTENCE, THAT
THE TRIAL APPELLANT
COURT FELIMON
GRAVELY GARCIA
ERRED IN PERFORMED
TAKING INTO THE ACTS
ACCOUNT THE ADMITTED BY
SWORN HIM UNDER THE
STATEMENT OF COMPULSION
ROBERTO OF AN
LISING AS IRRESISTIBLE
EVIDENCE FORCE AND/OR
AGAINST UNDER THE
APPELLANT IMPULSE OF AN
FELIMON UNCONTROLLA
GARCIA; BLE FEAR OF
AN EQUAL OR
GREATER
III. THE TRIAL COURT GRAVELY INJURY AND
ERRED IN NOT THEREFORE
FINDING THAT EXEMPT FROM
APPELLANT CRIMINAL
FELIMON LIABILITY; AND
GARCIA DID
NOT HAVE ANY
CRIMINAL V. EVEN ASSUMING ARGUENDO
INTENT NOR THAT
MOTIVE APPELLANT
WHATSOEVER FELIMON
TO CONSPIRE GARCIA IS NOT
WITH EXEMPT FROM
APPELLANT CRIMINAL
LISING ET AL TO LIABILITY, THE
KILL ERNESTO TRIAL COURT
BERNABE II AND GRAVELY
ANA LOURDES ERRED IN NOT
CASTAOS BOTH FINDING HIM
OF WHOM GUILTY MERELY
APPELLANT AS AN
GARCIA HAS ACCOMPLICE
NEVER KNOWN OF THE CRIME
OR MET OF DOUBLE
BEFORE APRIL MURDER AND
25, 1990; THEREFORE
 ENTITLED TO A counsel and properly sworn to before a
LOWER duly authorized officer. They merely
PENALTY IN relied on their extra-judicial statements
VIEW OF THE and did not take the witness stand
PRESENCE OF during the trial.
VOLUNTARY Lising, on the other hand, claims
SURRENDER, that he was coerced and tortured into
OBFUSCATION, executing the extrajudicial statement but
AND LACK OF nothing appears on record that such
INTENTION TO extrajudicial statement was made under
COMMIT SO compulsion, duress or violence on his
GRAVE A person. Lising did not present himself for
WRONG, AS physical examination, nor did he file
MITIGATING administrative charges against his
CIRCUMSTANCE alleged tormentors which would
S.[if !supportFootnotes][15] necessarily buttress the claim of torture
[endif]
in the absence of such evidence. There
are in fact indicia of voluntariness in the
execution of his extra-judicial
Basically the present appeal is statements, to wit: (a) it contains many
anchored on three issues: (a) the details and facts which the investigating
admissibility of the extrajudicial officer could not have known and could
statements of appellants Manalili, Garcia have supplied, without the knowledge
and Lising; (b) the credibility of and information given by Lising himself;
prosecution witnesses Froilan Olimpia (b) it bears corrections duly initialed by
and Raul Morales and the (c) finding of him; (c) it tends to explain or justify his
conspiracy among the appellants. conduct and shift the blame to his co-
Extrajudicial statements are as a accused Manalili. Moreover, the claim
rule, admissible as against their that Lising was not assisted by counsel
respective declarants, pursuant to the is belied by the fact that the signature of
rule that the act, declaration or omission his counsel Atty. Yabut appears in all the
of a party as to a relevant fact may be pages of his extrajudicial statements.
given in evidence against him. This is The rule that an extrajudicial
based upon the presumption that no statement is evidence only against the
man would declare anything against person making it, also recognizes
himself, unless such declarations were various exceptions. One such exception
true. A mans act, conduct and worth noting is the rule that where
declarations wherever made, provided several extrajudicial statements had
they be voluntary, are admissible been made by several persons charged
against him, for the reason that it is fair with an offense and there could have
to presume that they correspond with been no collusion with reference to said
the truth and it is his fault if they are not. several confessions, the facts that the
[if !supportFootnotes][16][endif]
statements are in all material respects
There is no question that their identical, is confirmatory of the
respective extrajudicial statement of confession of the co-defendants and is
Manalili and Garcia were executed admissible against other persons
voluntarily. They were assisted by their
implicated therein.[if !supportFootnotes][17][endif]
They are also admissible as
circumstantial evidence against the
person implicated therein to show the
probability of the latters actual
participation in the commission of the
crime and may likewise serve as
corroborative evidence if it is clear from
other facts and circumstances that other
persons had participated in the
perpetration of the crime charged and
proved.[if !supportFootnotes][18][endif] These are
known as interlocking confessions.
No doubt that the statements were
independently executed and rather
identical with each other in their material
details. There are also distinct
similarities in the narration of events
leading to the killings of Cochise and
Beebom.
Manalili and Garcias statements
reveal that Manalili wanted to effect the
arrest of Robert Herrera; that he asked
help from Garcia if the latter knew of
policemen who could do the job for the
promised consideration of P50,000.00;
that a downpayment of P2,000.00 was
made; that Manalili was informed that
Robert Herrera and Joy Ortega were
arrested; that Manalili together with
Garcia and Nabua proceeded to Valle
Verde Motel; that they were met by
Dizon and Manga at the motel and were
told that Herrera was inside the room;
that upon discovery that Lisings group
had taken the wrong person and
recognized Beeboms voice, Manalili
pleaded to the group that the victim be
released, assuring Lising that the
balance P40,000.00 would still be paid;
that Lising and his group refused but
relented upon Manalilis persistence; that
Manalili left for Manila but instructed
Garcia to stay behind and ensure the
release of the victims; and that the next
day Lising went to his office and claimed
the balance to which Manalili issued the
corresponding check.
Garcia added that after Manalili
had left, Lising told him to bring Cochise
and Beebom to the warehouse owned
by Ligaya where Cochise was killed.
Thereafter, they forcibly took Beebom
into the car and proceeded to Brgy. San
Agustin.
Likewise, we find Lisings statement
as corroborative evidence against the
others. Except as to that portion where
he exculpates himself from any liability
stating that it was Manalili and Garcia
who actually stabbed Cochise in the
warehouse and that he was merely a
lookout, Lisings statement is identical as
to the other material facts, namely, that
Cochise and Beebom were brought to
the Valle Verde Motel, blindfolded where
he met Manalili and Garcia; that they
were brought to the warehouse on board
a green box type Lancer car, where
Cochise was killed; that Beebom was
brought to Brgy. San Agustin where she
was eventually killed; that he should
take care of the green box type Lancer
car and was given P40,000.00 in check.
Nonetheless, the trial courts
decision, in convicting all the accused
was based not on the aforesaid
extrajudicial statements of the accused
alone but mainly on the eyewitness
account of the two witnesses, Froilan
Olimpia and Raul Morales, which the
trial court gave weight and credence as
bearing the chime of truth and honesty.
Well-established is the rule that the trial
courts evaluation of the credit-
worthiness of the testimony given before
it by witnesses should be accorded
great respect.[if !supportFootnotes][19][endif] Froilan
Olimpia, a security guard of the Rotonda
Wine Station, an establishment adjacent
to the Dayrits Ham and Burger House
who witnessed the abduction of Cochise
and Beebom in front of the said
restaurant.
He testified that he saw three men
in a black car without a license plate
drive to Dayrits Ham and Burger House
and park behind the green Lancer car.
When the two men alighted from the car,
they introduced themselves as
policemen to the by-standers, one
carrying a .45 caliber firearm in his
holster and the other carrying a long
firearm. The two men approached the
green Lancer car and handcuffed its
driver. Olimpia only heard the man say:
Bakit? He later noticed that the woman
was already seated at the back of the
car. These two men drove the green
Lancer car which was followed by the
black car. When asked to identify the
three men, Olimpia unhesitatingly
identified Dizon and Manga.
Q. Mr. Witness, on April 25, 1990, where
were you employed?
A. Security Guard of Nationwide
Security & Investigation
Agency.
Q. You said you were employed with
Nationwide Security & the left side of the Rotonda
Investigation Agency, as
Security Guard on said date,
where were you assigned as
security guard?
A. At Rotonda Wine Station, sir.
Q. Where is this Rotonda Wine Station
located?
A. At Timog Ave., sir.
Q. What city?
A. Quezon City, sir.
Q. You said you were employed as
security guard of Rotonda Wine
Station, Timog Ave., Quezon
City, do you have proof to show
that you were a security guard
of said Rotonda Wine Station
on April 25, 1990?
A. I have, sir, but it is filed with the
agency.
Q. This Rotonda Wine Station, what
establishments are beside this
establishment, and let us talk
first on the left and then right?
A. The left side of Rotonda Wine Station
is the Dayrit Hamburger House
and the right is a drugstore.
Q. What was your tour of duty on April
25, 1990?
A. 12:00 noon to 12:00 midnight, sir.
Q. And did you report for duty on said
date?
A. Yes, sir.
Q. On or about 7:00 to 7:30 oclock in the
evening of April 25, 1990, what
particular portion of Rotonda
Wine Station were you posted?
A. I was at the door, sir.
Q. Door of what, front or back?
A. Front door of the Rotonda Wine
Station, sir.
Q. When you said you were at the front
door, inside the building or
outside?
A. Outside of the door, sir.
Q. You mentioned a while ago that on
Wine Station where were
posted is the Dayrit Hamburger
House, was there a security
guard there?
A. Yes, sir.
Q. And do you know him?
A. Yes, sir.
Q. What is his name?
A. Anastacio de la Cruz, sir.
Q. You stated that at 7:00 to 7:30 in the
evening of April 25, 1990, you
positioned yourself in front or
outside the door of Rotonda
Wine Station, did you notice
anything unusual while you
were posting there?
A. Yes, sir, there was.
Q. What was that unusual incident that
 took place, if any?
A. There was a vehicle parking in front
of Dayrit Hamburger house.
Q. What kind of a vehicle parked there?
A. Green Lancer, car, box type.
Q. Where was it parked particularly?
A. In front of Dayrit Hamburger house, at
the side of the street.
Q. Did you notice the passenger of that
green Lancer car?
A. No, I did not know them, sir.
Q. But did you have the occasion to look
and see them?
A. Yes, sir.
Q. How many were they?
A. Two, sir.
Q. Were they male and female?
A. Yes, sir, one man a and one woman.
Q. You said you noticed the car with two
persons boarding it, what
happened after the vehicle
parked on the side of the street
in front of the Dayrit Hamburger
house?
A. After they had parked their vehicle, I
noticed that another car parked
behind that green Lancer car
without any plate number.
Q. Did you notice what kind of a car was
that which parked behind the
green Lancer car?
A. I noticed it was a black car without
plate number but I did not
notice the make.
Q. What happened after the black car
parked behind the green
Lancer car?
A. Two men from the black car alighted.
Q. What did the two men do after they
alighted?
A. After they alighted they announced
and introduced themselves that
they were policemen and they
went towards the green Lancer
car.
Q. You said they introduced themselves
as policemen, to whom?
A. To the people around the vicinity, to
the by-standers.
Q. When the two men who introduced
themselves as policemen, did
you notice if they were armed?
A. Yes, sir.
Q. Please inform us what arm or
weapon did they carry?
A. The other one was carrying a .45
firearm on his holster and the
other one was carrying a long
firearm, I do not know what
kind of firearm that long firearm
was.
Q. This person carrying 45 firearm,
could you still recall him or his
figure or feature?
A. If I see him again, I could recognize
him.
Q. But can you describe him before this
Court?
A. Yes, sir, he is tall, a little bit dark
complexion and with a little
mustache.
Q. You said that if you see that person
again, you can recognize him.
Will you please look around the
courtroom and point to him if
he is now inside?
A. Yes, he is here, sir.
Q. If he is here, will you please point to
him?
A. Yes, I can point to him.
Q. Will you please go down from the
witness stand, go to him and
tap him on his shoulder?
A. (Witness went down from the witness
stand, went to the person and
tap the shoulder, who when
asked of his name answered
as ENRICO DIZON).
Q. Go back to the witness stand.
ATTY. CRESCINI:
May we make it of record, Your Honor,
that at the time the witness was
 asked to identify Enrico Dizon,
there are many people, at least
one hundred in number,
standing inside the courtroom
closely to each other.
FISCAL:
I would like to adopt the same
manifestation, Your Honor.
Q. You have identified the person with
45 caliber firearm, the person
who was carrying a long
firearm, can you still recognize
him or can you remember his
feature?
A. If I could see him again, I can
recognize him.
Q. You said that you can see that person
with long firearm again, you
can recognize him, will you
look around the courtroom and
tell us if that person you are
referring to is here?
A. Yes, he is here.
Q. Will you please point to him?
A. (Witness pointing to a person inside
the courtroom who when asked
of his name answered as
ROBIN MANGA).
Q. Now, that you identified the two
armed men who alighted from
the black car and introduced
themselves as policemen, what
did these two men do after
that?
A. They went towards the parked green
Lancer car.
Q. And what did they do when they went
towards the green Lancer car?
A. They immediately handcuffed the
man driving the green Lancer
car.
Q. This person who was handcuffed,
were you able to look and see
him?
A. Yes, sir.
Q. Can you still recognize him if you see
him again?
A. Yes, sir, I can recognize him if I see
him again.
Q. What about a picture, if you are
shown a picture of that man
who was handcuffed, could you
still be able to identify him?
A. Yes, sir, I can.
Q. I am showing to you a picture marked
as Exh. X-4 please look at this
picture and tell us if you could
recognize this picture?
A. Yes, sir, I know this person.
Q. Who is this person?
A. He is Ernesto Bernabe II, sir.
Q. What relation has this person in this
picture and the person who
was handcuffed in the evening
of April 25, 1990 at the time
you saw him?
A. I know, sir, this person in the picture
and the one who was
handcuffed refer to one and the
same person.
Q. You said that Ernesto Bernabe was
handcuffed, you know where
was his companion at the time,
who was a woman?
A. I noticed she was already inside the
car.
Q. What car are you referring, the green
Lancer car or the black car
without plate number?
A. The green Lancer car, sir.
Q. You said you saw the woman, were
you able to look and see her
that evening?
A. Yes, sir.
Q. Would you still be able to identify her
if you see her again?
A. Yes, sir.
Q. I am showing to Exh. X-4 will you
look at this picture, and tell us
what relation has this person in
this picture to the one who was
together with the man who was
 handcuffed?
A. She is the woman I am referring to,
sir, whom I saw inside the
green Lancer, they are one and
the same.
Q. You said you saw the man whom you
identified as Ernesto Bernabe
being handcuffed by the two
policeman, how far were you
from them?
A. Five armslength (sic), sir.
Q. By the way, this front of Dayrit
Hamburger house and this
Rotonda Wine Store, are they
lighted at night?
A. Yes, sir.
Q. What kind of light illuminates the
area?
A. Mercury lamp, sir.
Q. How many lights are there?
A. Many, sir.
Q. You said there were lights, in the area
during nighttime, can you
describe to us from your point
of comparison in daytime
whether it is bright or not more
particularly at the time of the
incident in question?
A. It was bright just like daytime, sir.[if !
supportFootnotes][20][endif]
As to the killing of the two victims,
Raul Morales testimony about what
transpired in the warehouse in the
morning of April 26, 1990 satisfied the
trial court beyond reasonable doubt, as
being consistent and credible, sufficient
to convict all the accused for the crime
of murder. He testified positively, that on
that fateful morning, two cars entered
the warehouse after he opened the gate.
Lising and Garcia alighted from the
green Lancer car and brought out from
the backseat Cochise and Beebom. The
other black car carried Dizon and
Manga. Soon after, Manalili entered the
gate which was left open by Lising, and
stood beside Beebom. Cochise, whose
hands were tied with a wire was brought
to an area far from Beeboms view. He
was stabbed by Garcia, and then by
Lising. After killing Cochise, the four
men carried him out of the warehouse
while Manalili stayed with Beebom.
The trial court was even more
convinced about the witnesses
credibility after conducting an ocular
inspection of the scene of the crime.
ATTY. LLORENTE:
Q. Now, Mr. Morales, from yesterdays
hearing, you mentioned that at
about 2:090, April 26, you were
awakened by a sound of a
motor vehicle and somebody
was knocking. Do you recall
having stated that yesterday?
A. Yes, I remember that, sir.
Q. Now, apart from the sound of the
motor vehicle and the knock at
the door, what else do you
recall?
A. Somebody called for Aida, sir.
Q. What else?
A. I heard somebody said Aida, you
open the door and she told me
just open the door, Sir.
Q. And what did you do?
A. I opened the door, Sir.
xxx.
Q. After the gate was opened, what
happened?
A. Two (2) cars got inside, Sir.
Q. Can you describe the first car that
entered he gate.
A. The first one that got inside was
colored green, Sir.
Q. Do you know the make model or kind
of vehicle that is colored
green?
A. It was a Lancer car, Sir.
Q. Did you notice also who was driving?
A. Yes, I saw, Sir.
Q. Who?
A. It was Roberto Lising, Sir.
Q. Was there anybody else inside the
car?
A. There was, Sir.
Q. Who were inside that car?
A. One was in front and two were at the
back seat, Sir.
Q. The one in front, do you know who
was that?
A. Yes, Sir.
Q. Who?
A. Felimon Garcia, Sir.
Q. Was that the first time that you met
this person?
A. Felimon Garcia?
ATTY. LLORENTE:
Yes.
A. That was the third time, Sir.
Q. Why do you know Felimon Garcia?
A. Because he is a cousin of Ligaya
Fausto, Sir.
Q. Can you please look around the
Courtroom and tell us if you
can point to this Felimon
Garcia and if you can, please
do.
That man, Sir.
(Witness pointing to a man in white t-
shirt who when asked
answered by the name of
Felimon Garcia).
Q. What about the two (2) passengers at
the back of the Lancer car, who
were they?
A. There was one woman and one man
but I dont know their names,
Sir.
Q. Lets go to the man. Did you see his
condition? Physical condition,
his appearance?
A. Tall, medium built, good-looking and
hairy on the arms. He was
wearing white t-shirt and was in
shorts, Sir.
Q. What about the condition under
which this person was seated
at the back of the car, can you
describe that?
A. I was not able to observe how he was
seated, all I know is that I saw
him when he went out of the
car, Sir.
Q. What about the other passengers,
the woman passenger. Can
you describe her.
A. She was medium built, she was
beautiful and fair complexioned
puti.
Q. Now, lets go to the second car. Did
you notice the driver of the
second car?
A. Yes, sir.
Q. Did you recognize this person?
A. Yes, Sir.
Q. Would you be able to identify him?
A. Yes, Sir.
Q. Can you please look around if this
person driving the second car
is in this Courtroom and if so,
please point to him.
(witness pointing to a man in white shirt
who when asked answered by
the name of ROBIN MANGA).
Q. Was there anybody else inside the
second car aside from the
driver?
A. There was, Sir.
Q. Would you be able to identify that
person?
A. Yes, Sir.
Q. Can you again look around the
Courtroom and tell us if that
person is present and if so,
please point to him?
A. (Witness pointing a man in stripe shirt
who when asked answered by
the name of Enrico Dizon).
Q. Now, the two (2) cars having entered
the premises, could you please
tell us what happened with
these two (2) cars after
entering the premises?
A. I saw Roberto Lising went behind the
place of our sleeping quarters
and got a wire, Sir.
xxx
Q. How did that woman reach that
portion of the Lancer car? Can
you describe that?
A. She was brought to that portion by he
companion of Rambo, Sir
Q. Who in particular?
A. That man, Sir, (witness pointing to
accused Robin Manga).
Q. What about the man, how was he
brought to that portion which
you have identified from the
Lancer car?
A. It was Roberto Lising who brought
him there, Sir.
Q. All by himself?
A. They were two (2), Sir.
Q. Whos the second aside from Mr.
Lising?
A. (witness pointing to accused Enrico
Dizon).
Q. After the man and the woman were
placed in that position as you
described, what happened?
A. Felimon Garcia came out and he was
bringing with him a spade
(pala), Sir.
Q. Did you notice where Felimon Garcia
got that spade or pala?
A. Yes, Sir.
Q. Where?
A. They got it from the Lancer car, Sir.
Q. In what particular portion of the
Lancer car?
A. At the back compartment of the car,
Sir.
Q. Incidentally, Mr. Morales, what
happened to the gate? Who
closed the gate?
A. It was they who closed the gate, Sir.
Q. Did anybody else arrive?
A. Yes, there were, Sir.
Q. Who?
(witness pointing to accused Rodolfo
Manalili) witness pointed to a
man in eyeglasses who when
asked answered by the name
of Rodolfo Manalili.
Q. Now, this person that you said
arrived, how did he arrive?
A. When he arrive, he went direct to the
woman and talked with the
woman, Sir.
Q. Did you hear any conversation
between that man as you
identified as accused Manalili
to the woman that you pointed
to here in the sketch?
A. I only heard Dont harm us. We have
done no wrong.
p. 46 missing
person that you have described in that
area present at that time?
A. They were sweethearts, Sir.
Q. Let me just refer you to the woman
that was brought out of the
green car, Lancer car. Did you
ever come to know his name
later on?
A. When I read it from the newspaper,
Sir.
Q. And what was the name that you
were able to read from the
paper that made you identified
that woman from the Lancer
car?
A. Beebom, Sir.
Q. What is the complete name?
A. Beebom Castaos, Sir.
Q. What about the man. Did you also
get his complete name.
A. Yes, Sir.
Q. What is his complete name?
A. Cochise Bernabe, Sir.
Q. Now, after this man that you have just
identified as Cochise Bernabe,
after his hands were tied at the
back, what else did Mr. Lising
and Mr. Dizon do with this
 man?
A. Felimon went inside the bodega, Sir.
Q. And what did Felimon do?
A. After that, he went towards Lising, Sir.
Q. And when Felimon approached
Lising, what happened?
A. Felimon was given a knife, Sir.
(Witness in the vernacular said
kutsilyo)
Q. What did Felimon do with the knife?
A. They went towards the man, Sir.
Q. And what happened?
A. Then he stabbed the man once, Sir.
Q. How? Can you demonstrate?
A. Yes, Sir.
ATTY. LLORENTE:
Please do.
(witness demonstrating by placing his
left hand on the height of his
shoulder and making a thrust
by his left hand forward).
Q. What else happened after what you
had demonstrated happened?
A. Rambo grabbed and took the knife
from Felimon, Sir.
Q. And what did Rambo do with the
knife?
A. He also stabbed the man, Sir.
ATTY. LLORENTE:
Can you demonstrate to us how did he
do this?
A. Yes, sir. (witness demonstrating by
putting his left hand forward at
the height of his shoulder and
making a forward thrust by his
right hand several times).
Q. Did you notice what portion of
Cochise was stabbed when
Lising was doing this?
A. Yes, Sir.
Q. Where?
A. Inside the bodega, Sir. Sa may
bodega.
xxx.[if !supportFootnotes][21][endif]
The defense, however, would
discredit the of Raul Morales alleging
that he was not a credible witness
considering that there were
inconsistencies and improbabilities in his
testimony. To them, he was a rehearsed
witness, since he was taken from the
NBI to the residence of Governor
Remullas son, a good friend of Cochise,
as sanctuary during the trial of this case.
Some of the inconsistencies
pointed out are as follows: (1) in the
sworn statement, Morales claimed that
the black car driven by Lising entered
the compound ahead followed by the
green car driven by Garcia while he
stated in his testimony in court that the
green Lancer car was first to enter,
driven by Lising with Garcia in the
passenger seat followed by the black
car with Manga and Dizon on board; (2)
in his statement, Morales indicated that
he did not see the actual killing of
Cochise since the victim was brought
out, while he testified in court that
Garcia and Lising stabbed the victim
inside the compound; (3) Morales made
mention of a total of five persons,
including the two victims, in the early
morning of April 26, while in court, he
identified the five accused seen with the
two victims.
In has been held that
inconsistencies and discrepancies in the
testimony referring to minor details and
not upon the basic aspect of the crime
do not impair the witness credibility.[if !
supportFootnotes][22][endif]
These inconsistencies
even tend to strengthen, rather than
weaken, the credibility of witnesses as
they negate any suspicion of a
rehearsed testimony.[if !supportFootnotes][23][endif]
The defense finds it also
improbable for Morales to have
witnessed the events at such a vantage
point from the steps of the hut, since the
perpetrators of a crime would not
unnecessarily expose themselves in the
committing the act to prevent possible
identification.
Obviously, it never occurred to
Lising at the time that Morale, who was
under his control and who was afraid of
him, would ever testify against him.
Manalili makes capital of the fact
that Morales did not mention him at all in
his prior sworn statement as being
present at the scene of the crime. For
Manalili, the omission of his name was a
significant development as it appeared
improbable that a vital witness will miss
out an alleged perpetrator if indeed he
was present at the scene of the crime.
Raul Morales himself admitted
later on that there were omissions in his
sworn statement made before the
CAPCOM because he was afraid of his
employer Lising and his companions.
Understandably, he was reluctant to
volunteer all the information about the
killing for fear that he would suffer the
same fate of Cochise and Beebom. The
initial reluctance of witness to volunteer
information about a criminal case and
their unwillingness to be involved in the
criminal investigation is of common
knowledge and has been judicially
declared as insufficient to affect
credibility.[if !supportFootnotes][24][endif] Besides, at
that time, Raul Morales was merely
concerned with bringing out his story
without really paying particular attention
to the details. He related that his
employer Lising and companions
brought a man and a woman to their
warehouse and killed them both. He saw
Cochises face on the papers and
recognized him to be the man whom
Lising s group killed. Morales only
mentioned Lising and Garcias names in
his sworn statement because they were
the only ones known to him. Such
omission and discrepancies should not
be taken against him. It bears emphasis
that a sworn statement or an affidavit
does not purport to be a complete
compendium of the details of the event
narrated by the affiant.[if !supportFootnotes][25][endif]
It is a matter of judicial experience that a
sworn statement being taken ex parte is
almost always incomplete and often and
often inaccurate. Thus, discrepancies
between the statements of the affiant in
his sworn statement and those made on
the witness stand do not necessarily
discredit him.[if !supportFootnotes][26][endif] There is
no rule of evidence to the effect that
omission of certain particulars in an
affidavit or sworn statement would estop
an affiant in making an elaboration
thereof during the trial.[if !supportFootnotes][27][endif]
Whenever there is an inconsistency
between the affidavit and testimony of
the witness, the latter commands
greater weight.[if !supportFootnotes][28][endif]
Roberto Lising discredits Raul
Morales as having a motive in
implicating him to the crime since he
quelled a rally staged by Morales who
was the most arrogant and stubborn of
Faustos employees, seeking an
increase in pay. As pahinante in their
LPG business, Morales, according to
Lising, was oftentimes reprimanded for
not doing his job well and held
responsible for lost gas tanks.
The motive imputed to Morales, a
mere pahinante, if he were arrogant and
stubborn, would be tolerated by Lising,
the live-in partner of Fausto.
By and large, the defenses raised
by the accused do not persuade us.
When it comes to the issue of credibility
of the witness, appellate courts give
much weight and respect to the findings
of the trial court since the trial court is in
the better position to examine real
evidence as well as observe the
demeanor of the witness.[if !supportFootnotes][29]
[endif]
With the eyewitnesses account of
Froilan Olimpia and Raul Morales, the
culpability of the accused for the crimes
charged have been established.
This brings us to the third issue of
whether or not there was conspiracy.
Conspiracy is a unity of purpose
and intention in the commission of a
crime.[if !supportFootnotes][30][endif] Where two or
more persons come to an agreement
concerning the commission of a felony
and decide to commit it then conspiracy
exists. While direct evidence is not
necessary, conspiracy may be inferred
from and proven by acts of the accused
themselves when during and after said
acts point to a joint purpose and design,
concerted action and community of
interest.[if !supportFootnotes][31][endif]
Undoubtedly, the trial court did not
err in finding the existence of conspiracy
in this case. With the interlocking
confessions of Manalili, Garcia and
Lising, the group came to an agreement
to effect the arrest of Robert Herrera for
a considerable sum of P50,000.00. The
stake-out at the Castaos residence, the
tailing of the car, the abduction at
Dayrits Ham and Burger Restaurant and
the detention in the Valle Verde Motel
and the subsequent killing of the two
victims all show that all the accused
acted in unison and cooperated with
each other towards the accomplishment
of a common criminal design. Where
conspiracy is established, the act of one
is the act of all.
Garcia, for his part, prays that his
liability be mitigated on grounds of lack
of intent or motive, acts made under the
compulsion of an irresistible force, and
voluntary surrender, which if considered
would make him merely an accomplice
to the crime. Unfortunately, these
defenses and unavailing.
To be exempt from criminal liability,
a person invoking irresistible force or
uncontrollable fear must show that the
force exerted was such that it reduced
him to a mere instrument who acted not
only without will but against his will.[if !
supportFootnotes][32][endif]
That compulsion must
be of some character as to leave the
accused no opportunity for self-defense
in equal combat of for escape.[if !
supportFootnotes][33][endif]
Garcias participation and presence
from the time the abduction was
hatched, up to the killing of the victims is
undisputed. He was very well aware of
Manalilis plans. He was instrumental in
introducing Lising to Manalili. Likewise,
Lisings intentions to silence both
Cochise and Beebom at the end upon
realizing an alleged mistake was known
to him. He did not do anything to deter
the commission or to report the crimes
immediately thereafter. In fact, he stated
that he and Lising saw each other after
the incident but never mentioned
anything about it, which only goes to
show their intention of concealing the
crime. Only after several months of
being hunted, did he send feelers for
this surrender.
Where conspiracy is established,
the precise modality or extent of
participation of each individual
conspirator becomes secondary since
the act of one is the act of all. [if !
supportFootnotes][34][endif]
The degree of actual
participation in the commission of crime
is immaterial. In People v. Degoma, the
Court explained:
x x x. One who joins a criminal
conspiracy in effect adopts as
his own the criminal designs
of his co-conspirators; he
merges his will into the
common felonious intent. A
person who embraces a
criminal conspiracy is properly
held to have casts his lot with
 his fellow conspirators and to
have taken his chances that
things may go awry and that
the offended party may resists
or third persons may get killed
in the course of implementing
the basic criminal design. To
free himself from such
criminal liability, the law
requires some overt act on
the part of the conspirator, to
seek to prevent commission
of the second or related
felony or to abandon or
dissociate himself from the
conspiracy to commit the
initial felony. (People v.
Salvador, 163 SCRA 574,
580-582 [1988]; People v.
Bazar, 162 SCRA 609, 617
[1988]; People v. Escober,
157 SCRA 541 567 [1988];
People v. Pelagio, 20 SCRA
153, 159-160 [1967] (Italics
supplied).[if !supportFootnotes][35][endif]
For the same reasons. Manalili can
not likewise be exonerated from the
crime. We have examined carefully the
arguments of the Solicitor General in
urging Manalilis acquittal, but the facts
and circumstances surrounding the case
do not support his stand.
We find it difficult to accept
Manalilis contention that he had
contracted the services of policemen to
effect the legal arrest of Robert Herrera,
the main suspect in the killing of his
brother, Delfin Manalili. Equally
preposterous is his assertion that upon
arriving at the Valle Verde Hotel in San
Fernando, Pampanga, he realized there
was a mistake in the identities of the
persons arrested, so he insisted that
they be released. Neither is there factual
basis to his claim that he had every
reason to protect the life of Beebom, in
particular, since the latter is a principal
witness against Robert Herrera, the
suspect in the shooting of his brother.
In the first place, why did he take it
upon himself to employ persons
unknown to him to effect the arrest of
Herrera? The warrant of arrest of
Herrera, if one was really issued, was
never presented in evidence. In the
second place, the surreptitious meeting
of Manalili with Lising arranged by
Garcia, the surveillance or stake out of
the Castaos residence, the manner of
abduction where the victims were
blindfolded, handcuffed and gagged at
Valle Verde Motel, cannot certainly be
considered as acts in the regular
performance of their duties as
policemen. Thirdly, if it was true that
Manalili just wanted the arrest of Robert
Herrera, why did he have to seek the
assistance of Pampanga policemen? It
would have been more logical and
expedient to have utilized the NBI or
Quezon City Police especially when the
alleged warrant of arrest was issued by
a Quezon City court. After all, is was not
difficult to locate Robert Herrera as he
was reportedly frequenting the Castaos
residence in Quezon City. Fourthly, it
does not stand to reason why the
victims were taken to Pampanga after
allegedly being arrested in Quezon City.
It would have been more cogent for the
appellants to have delivered the victims
to the nearest station of the Quezon City
Police Department considering that the
warrant of arrest was allegedly issued
by a Quezon city court. If arrest was
really in the minds of the accused, why
did they hole-up with the victims in a
motel when they arrived in Pampanga?
Finally, if they were bent on legally
arresting one Roberto Herrera, it was
not necessary for them to also take the
woman companion of the person they
mistook as Herrera.
All these only shows that Manalili
had premeditated in his mind a more
sinister plot than merely effecting a legal
arrest.
It is an unmitigated absurdity for
Manalili to pretend that upon his
realization of the mistake in their arrest,
he insisted upon the release of the
victims since he had every reason to
keep Beebom alive. If he had just a bit
of concern for Beeboms safety, why did
Manalili leave for Manila without bringing
her and Cochise with him to make sure
that no harm would befall them,
knowingly full well of Lisings resolve just
revealed to him to silence both victims?
What should be nearer the truth in that
Beebom and Cochise became aware of
Manalilis presence at the motel together
with the other accused and this was the
added reason why the two had to be
eliminated, to do away with having to
explain why he was at the scene. His
pretension that he wanted to keep
Beebom from harms way because she
was to have testified in the prosecution
of his brother brings hollow. It cannot be
assumed that had she lived she would
have testified in court and pointed to
Robert Herrera as the killer of Manalilis
brother.
In any case, assuming the remote
possibility, the mistake in the identity of
the victims does not exonerate Manalili
pursuant to the rule that one who
performs a criminal act should be held
liable for the act and for all its
consequences although the victim was
not the person whom the fellow intended
to injure.[if !supportFootnotes][36][endif]
We are reminded of the rule that
the conviction must not rest on the
weakness of the defense but on the
strength of the prosecutions evidence. In
the instant case, apart from its
interlocking sworn statements of
appellants, Raul Morales positive
testimony that he saw Manalili enter the
bodega, and stand beside Beebom,
while Cochise was being killed,
convinces us with moral certainty that
Manalili is equally guilty of the crime
charged. His presence in the warehouse
clearly belies his claim that from the
motel, he left for Manila already. As
against the positive testimony and
identification, mere denials of the
accused cannot prevail to overcome
conviction by the court.[if !supportFootnotes][37]
[endif]
The inaction of Manalili where he
could have prevented the killings only
reveal his complicity to the crime.
Manalili is certainly part of a complete
whole without whom there would be no
Cochise-Beebom double murder case.
Furthermore, the decision of the
trial court exonerating Manalili and
Garcia for the crime of Kidnapping and
finding the rest of the accused guilty for
the crime of Slight Illegal Detention only
does not escape us. There being
conspiracy, all the accused should be
equally guilty for the crimes as charged.
Unfortunately, we can no longer convict
Manalili and Garcia for Kidnapping in
consonance with the constitutional right
against double jeopardy. Nonetheless,
they stand to suffer the penalty of
Reclusion Perpetua for the double
murder. The crime of Slight Illegal
Detention should be qualified to Serious
Illegal detention under Article 267 of the
Revised Penal Code considering that a
female victim was involved.
WHEREFORE, this Court hereby
renders judgment as follows:
1. The decision of the lower court
finding accused Rodolfo
Manalili, Roberto Rambo
Lising, Felimon Garcia, Robin
 Q. Manga and Enrico Dizon
guilty beyond reasonable
doubt of the crime of double
murder, including their civil
liability is hereby AFFIRMED
in toto, and
2. The decision of the lower court
finding accused Roberto
Rambo Lising, Enrico Dizon,
and Robin Manga guilty of the
crime of slight illegal detention
aggravated by the use of
motor vehicle is hereby
MODIFIED, in that the said
accused are hereby declared
guilty of the crime of
Kidnapping under Article 267
(4) of the Revised Penal
Code, and are hereby
sentenced to suffer the
penalty of reclusion perpetua.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. Nos. 102361-62 May 14, 1993
PEOPLE OF THE PHILIPPINES,
plaintiff-appellee,
vs.
RUDY FRONDA, defendant-appellant.
The Solicitor General for plaintiff-
appellee.
Juan T. Antonio for accused-appellant.
BIDIN, J.:
Appellant, Rudy Fronda, together with
Reynaldo Agcaoili were charged with
murder before Branch 10 of the
Regional Trial Court of Cagayan in two
separate information, Criminal Cases
No. 10-304 and 10-308 alleged to have
been committed in conspiracy with
several John Does. Appellant and his
co-accused were accused of killing the
brothers Esminio and Edwin Balaan of
Allacapan, Cagayan in the two
identically worded informations alleging
the offense to have been committed as
follows:
That on or about June 11, 1968, in the
municipality of Allacapan, province of
Cagayan, and within the jurisdiction of
this Honorable Court, the said accused,
Reynaldo Agcaoili and Rudy Fronda,
together with several John Does who
were not identified, armed with guns and
sharp-pointed instruments, conspiring
together and helping one another, with
intent to kill, with evident premeditation,
with treachery, inconsideration of a price
or reward and with the aid of armed
men, forcibly took one Edwin Balaan
from his residence and brought him
tothe mountains of Barangay Tulong,
Allacapan,Cagayan, and there and then,
the accused, in pursuance of their
conspiracy, did then and there wilfully,
unlawfully, and feloniously assault,
attack torture and stabbed (sic) the said
Edwin Balaan/Esmenio Balaan inflicting
upon him wounds on his body which
cause his death. (Rollo, pp. 122-123)
On May 29, 1989, Reynaldo Agcaoili
was arrested but was subsequently
released on bail two days after. On June
2, 1989, appellant Rudy Fronda was
arrested and detained. Upon
arraignment, both appellant and
accused Reynaldo Agcaoili pleaded not
guilty to the charge of murder.
Thereafter, trial ensued.
On August 7, 1991, the trial court
promulgated its decision convicting
appellant and acquitting Reynaldo
Agcaoili of the crime charged, the
decretal portion of which reads:
WHEREFORE, under cool reflection and
fortified by the balm of clear judicial
conscience, the Court enters a verdict of
acquittal in favor of the accused
Reynaldo Agcaoili for the crime of
murder as charged, in both Criminal
Cases Nos. 10-304 and 10-308, with
costs de oficio. His bail bond is
cancelled and the documents submitted
in support thereof may now be
withdrawn from the records under
proper receipt.
As against the accused Rudy Fronda,
the Court finds him guilty beyond
reasonable doubt as principal by
indispensable cooperation for the crime
of murder as charged in both Criminal
Cases Nos. 10-304 and 10-308, and
sentences him to suffer in each case,
the penalty of RECLUSION
PERPETUA, with all the accessory
penalties provided for by law and to pay
the costs. He is ordered to each pay
(sic) the heirs of the deceased Edwin
(Eduardo) Balaan and Esminio Balaan,
the amount of:
1. P50,000.00 compensatory
damages
2. P50,000.00 death indemnity
3. P20,000.00 moral damages
4. P30,000.00 exemplary damages
5. P15,000.00 expenses during the
wake of Esmenio Balan
6. P10,000.00 expenses during the
wake of Edwin Balaan.
all for the grand total of Three Hundred
Twenty Five Thousand (P325,000.00)
Pesos, but without subsidiary
imprisonment in case of insolvency.
In the service hereof, the accused Rudy
Fronda shall be entitled to the full length
of time, he underwent preventive
imprisonment, provided he voluntarily
agreed in writing to abide by the same
disciplinary rules imposed upon
convicted prisoners, otherwise, he shall
be credited to only four fifth (4/5)
thereof. (Art. 29, NCC, as amended by
RA 617, June 17, 1979; US vs. Ortencio;
38 Phil. 341; People vs. Chavez, 126
SCRA 1).
MORE, there being two (2) perpetual
penalties imposed upon the accused
Rudy Fronda the maximum
simultaneous service of his sentence
shall in no case exceed forty (40) years.
(Art.70, RPC, amended by Com. Act No.
217, threefold rule).
xxx xxx xxx
SO ORDERED. (Rollo, pp. 76-77).
The antecedent facts, as found by the
trial court are as follows:
At about 6:00 o'clock in the morning of
June 11, 1986, the deceased Eduardo
(Edwin) Balaan And Esminio Balaan
who are brothers, were take by seven
(7) armed men in fatigue uniform with
long firearms, suspected to be NPA
members, accompanied by accused
Rudy Fronda and Roderick Padua from
the house of one Ferminio Balaan, at
Barangay Cataratan, Allacapan,
Cagayan. The said Rudy Fronda and
Roderick Padua are residents of the
same place. The armed men tied the
hands of the deceased at their back
lying down face downward, in front of
the house of Ferminio Balaan. The
armed men together with Roderick
Padua and Rudy Fronda proceeded
towards sitio Tulong, Cataratan,
Allacapan, Cagayan passing through the
ricefields (taking along with them the
Balaan brothers).
xxx xxx xxx
Accused Rudy Fronda testified that on
the night of June 10, 1986, he was taken
by the NPA's from his house,
accompanied by Robert Peralta, alias
Ka Jun and Roderick Padua, to look for
the Balaan brothers. They were around
nine (9) NPA's with then. They found
Edwin Balaan and Esmineo Balaan, at
the house of Ferminio Balaan, a brother.
They tied their wrists/hands and brought
them to the mountain at Sitio Tulong,
Cataratan, Allacapan, Cagayan. After
that, the NPA's instructed them to go
home, but in the afternoon of the same
day June 11, 1986, Robert Peralta, alias
Ka Jun, sent Elmer Martinez, Orlando
Gonzales, George Peralta and Librado
Duran to get him and further he was
ordered to get a spade and a crowbar.
They were ordered to dig a hole in the
mountain, one (1) kilometer away from
his house.
On March 21, 1989, the bodies or
remains of the Balaan brothers were
examined by the 17th Infantry Battalion,
under Capt. Benedicto. After which, the
remains, (bones) were brought to the
house of one Freddie Arevalo, a relative
of the deceased, at Barangay Cataratan,
where they were laid in state for the
wake. (Rollo, pp. 27-29)
In its decision, the trial court made a
lengthy enumeration of established facts
and circumstances which was made the
basis of the conviction of appellant, to
wit :
1) Appellant and Roderick Padua, and
NPA member were the ones who
pointed the house where the brothers
Balaan were to be found, 2) appellant
and Roderick Padua accompanied the
members of the armed group to said
house, and tied the victims' hands, 3)
appellant was handed a hunting knife by
one of the armed men when they left the
house, 4) appellant joined the members
of the armed group in bringing the
victims to a forested area in the
mountains, 5) it was appellant who
provided the spade and crowbar used in
digging the hole where the Balaan
brothers were buried, 6) appellant was
the one who pointed the location where
the victms' bodies buried, 7) appellant,
for a period of more than three (3) years,
failed to report the incident to the
authorities, and 8) appellant did not in
any way object, when he was ordered to
tie the hands of the victims.
On the basis of the foregoing, the trial
court declared:
In fine, all of these circumstances
constitute a unbroken chain which leads
to a fair conclusion that accused Rudy
Fronda is guilty as a principal by
indispensable cooperation (People vs.
Colinares, 163 SCRA 313), even as the
same circumstances are inconsistent
with each other, and at the same time
inconsistent with any other hypothesis,
except that of guilty (People vs. Trinidad
162 SCRA 714), all cited in the recent
case of People vs. Tiongson, G.R. No.
89823, June 19, 1991).
It is crystal clear and conclusion is
inescapable that his cooperation was
indeed indispensable in the
consumation of the crime charged,
without which it would not have been
accomplished, (Art. 17, No. 3, RPC).
Accused Rudy Fronda shared the guilty
purpose and encouraged and abetted
the crime by his actuations as above
illustrated, even though he may have
taken no part in the execution. The
chain of circumstances as narrated
above will show that he has rendered
the required assistance intentionally and
knowingly, which led to the execution of
the felony. His external acts more than
explain his participation as principal by
indispensable cooperation. Such
external overt acts, are more than
significant enough constittuting
convincing proof leading to the
ineluctable finding that accused Rudy
Fronda is guilty as such. (Rollo, pp. 74-
75)
Appellant assails the decision of the trial
court, setting forth the following
assignment of errors:
I.
THE TRIAL COURT ERRED IN
FINDING THE ACCUSED-APPELLANT
GUILTY OF MURDER IN TWO
COUNTS AND SENTENCING HIM TO
SUFFER THE PENALTY OF
RECLUSION PERPETUA IN EACH
COUNT.
II.
THE TRIAL COURT ERRED IN
FINDING THE ACCUSED-APPELLANT
GUILTY BEYOND REASONABLE
DOUBT BY CIRCUMSTANTIAL
EVIDENCE. (Appellant's Brief, p. 1)
Accused-appellant maintains that the
prosecution was not able to present
evidence to prove his participation in the
killing of the brothers Balaan. The
defense submits that appellant was
merely taken by the armed men as a
"pointer" and as such, he could not be
considered as a principal by
indispensable cooperation for the
reason that the armed men could have
taken other persons to perform the acts
done by appellant. Furthermore,
appellant interposes the exempting
circumstance of uncontrollable fear (Art.
12 [6] RPC) claiming that all his acts
were performed under the impulse of
uncontrollable fear and to save his life.
This case hinges on the issue of
whether or not accused-appellant could
be convicted as a principal by
indispensable cooperation through
circumstantial evidence.
Paragraph 3, Article 17, of the Revised
Penal Code considers as principals by
indispensable cooperation "those who
cooperate in the commission of the
offense by another act without which it
could not have been accomplished". Its
requisites are (1) participation of the
subject accused in the criminal
resolution and (2) performance by him of
another act indispensable to the
accomplishment of the crime.
Records show that appellant's
participation in the commission of the
crime consisted of: (1) leading the
members of the armed group to the
house where the victims were found; (2)
tying the victims' hands and (3) digging
the grave where the victims were buried.
However, it has been established
through the testimony of Alex Utrera, a
former member of the NPA, that
appellant was only picked-up by the
armed men for the purpose of pointing
the residence of the victims. The armed
men never disclosed their purpose in
looking for the brothers Balaan who
were former members of the Armed
Forces of the Philippines nor did the
armed men inform appellant of their plan
to abduct and kill the two brothers.
Save for the open admission of
appellant that he was an NPA
"supporter", no incontrovertible proof
was adduced by the prosecution
supporting the conclusion that appellant
agreed with the members of the armed
group to kill the brothers Balaan.
Furthermore, prosecution witnesses
Freddie Arevalo and Gilbert Viernes
testified that the members of the armed
group were accompanied by, aside from
appellant, another barriomate, Roderick
Padua, known to be a member of the
NPA (Tsn p. 8 & 76). Undoubtedly, ever
without appelant's participation, the
assailants could have easily located the
Balaan brothers thru the assistance of
Roderick Padua. Taking account of the
number of the assailants alone, it is
apparen that the armed men could have
nevertheless committed the crime easily
without the appellant abetting the
commission thereof.
The acts performed by appellant are not,
by themselves, indispensable to the
killing of the brothers Balaan. As
aforesaid to be considered as a principal
by indispensable cooperation, there
must be direct participation in the
criminal design by another act without
which the crime could not have been
committed. We note that the prosecution
failed to present any evidence tending to
establish appellant's conspiracy with the
evil designs of the members of the NPA
armed group. Neither was it established
that appellant's acts were of such
importance that the crime would not
have been committed without him or that
he participated in the actual killing.
Under the circumstances, appellant
cannot therefore be considered as a
principal by indispensable cooperation.
The trial court, therefore, erred when it
found appellant guilty as a principal by
indispensable cooperation.
However, appellant's act of joining the
armed men in going to the mountains,
and his failure to object to their unlawful
orders, or show any reluctance in
obeying the same, may be considered
as circumstances evincing his
concurrence with the objectives of the
malefactors and had effectively supplied
them with material and moral aid,
thereby making him as an accomplice.
He cannot with candor, claim that he
was unaware of the evil intentions of the
armed men which may have been the
case had appellant merely guided the
group to locate the victims' abodes. On
the contrary, appellant himself tied the
victims' hands and even joined the
armed men in taking the victims to the
hills. Appellant's complicity is made
more manifest by the fact that without
any justifiable reason he failed to report
the incident to the authorities for a
period of more than three (3) years.
Article 18 of the Revised Penal Code
provides that an accomplice is one who,
not being a principal, "cooperates in the
execution of the offense by previous or
simultaneous acts". Under this
provision, a person is considered as an
accomplice if his role in the perpetration
of the crime is of a minor character. To
be convicted as such, it is necessary
that he be aware to the criminal intent of
the principal and thereby cooperates
knowingly or intentionally by supplying
material or moral aid for the efficacious
execution of the crime.
It is well settled that if there is ample of
criminal participation but a doubt exist
as to the nature of liability, courts should
resolve to favor the milder form of
responsibility, that of an accomplice.
(People vs. Doctolero, 193 SCRA 632,
[1991] citing People vs. Torejas, 43
SCRA 158, [1972])
Appellant cannot claim the exempting
circumstance of uncontrollable fear (Art.
12, par. 6, RPC). Fear in order to be
valid should be based on a real,
imminent or reasonable fear for one's
life or limb (People vs. Abanes, 73
SCRA 44, [1976]). In the case at bar,
records indicate that appellant was seen
being handed by and receiving from one
of the armed men a hunting knife. Also,
as afoesaid, appellant was not able to
explain his failure to report the incident
to the explain his failure to report the
incident to the authorities for more than
three (3) years. These circumstances,
among others, establish the fact that
appellant consciously concurred with the
acts of the assailants. In order that the
circumstance of uncontrollable fear may
apply, it is necessary that the
compulsion be of such a character as to
leave no opportunity to escape or self-
defense in equal combat. (People vs.
Loreno, 130 SCRA 311, [1984])
Appellant had the opportunity to escape
when he was ordered by the armed men
to go hoome after bringing the victims
the mountains. He did not. Instead he
joined the armed men when required to
bring a spade with which he was
ordered to dig the grave. Appellant also
chose to remain silent for more than
three (3) years before reporting the
killing to the authorities. Based on these
circumstances, We hold that the
contemporaneous and subsequent acts
of appellant can not be regarded as
having been done under the impulse of
uncontrollable fear.
Appellant also argues that the trial court
erred when it convicted him of the crime
charged, alleging that no evidence was
presented to prove any circumstance
that would qualify the crime committed
to murder. Appellant's argument is
devoid of merit. Paragraph 1, Article 248
of the Revised Penal Code provides that
any person who kills another, taking
advantage of superior strength shall be
guilty of murder, and shall be punished
by reclusion temporal in the maximum
period to death. It is manifest that the
group of assailants composed of seven
(7) armed men, and two (2) civilians
including appellant Fronda. It had been
repeatedly held that the number of
assailants, if armed, may be considered
as a qualifying circumstance of abuse of
superior strength. It is indubitable that
assailants deliberately used superior
force of such nature as to be clearly out
of proportion to the means or defense
available to the victims People vs.
Tandoc (40 Phil. 954 [1920]) and People
vs. Verzo (21 SCRA 1403 [1967]). The
assailants took advantage of their
numbers in order to ensure that the
brothers Balaan who are said to be
former members of the Armed Forces of
the Philippines would not be able to put
up any defense. The crime thus
committed is murder.
Be that as it may, and after considering
the attendant circumstances, We hold
that appellant is guilty beyond
reasonable doubt as accomplice to the
crime charged i.e. murder. As such, the
proper imposable penalty is one degree
lower than that prescribed for murder
(Art. 52, Revised Penal Code). The
penalty for murder is reclusion temporal
in its maximum period to death (Art. 248,
RPC). One degree lower is prision
mayor in its maximum period to
reclusion temporal medium (Art. 61 (3),
RPC). There being no mitigating nor
agravating circumstances which
attended the commission of the crime,
the penalty impossable under the law
should be applied in its medium period
(Art. 64 [1], RPC) and applying the
Indeterminate Sentence Law, appellant
is hereby sentenced in each case to
suffer imprisonment ranging from eight
(8) years and one (1) day of prision
mayor as minimum to fourteen (14)
years eight (8) months and one (1) day
of reclusion temporal as maximum.
WHEREFORE, the appealed decision of
the trial court is hereby MODIFIED to
the extent above indicated and
AFFIRMED in all other aspects. Costs
against appellant.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 149275 September 27, 2004
VICKY C. TY, petitioner,
vs.
PEOPLE OF THE PHILIPPINES,
respondent.
DECISION
TINGA, J.:
Petitioner Vicky C. Ty ("Ty") filed the
instant Petition for Review under Rule
45, seeking to set aside the Decision1 of
the Court of Appeals Eighth Division in
CA-G.R. CR No. 20995, promulgated on
31 July 2001. The Decision affirmed with
modification the judgment of the
Regional Trial Court (RTC) of Manila,
Branch 19, dated 21 April 1997, finding
her guilty of seven (7) counts of violation
of Batas Pambansa Blg. 222 (B.P. 22),
otherwise known as the Bouncing
Checks Law.
This case stemmed from the filing of
seven (7) Informations for violation of
B.P. 22 against Ty before the RTC of
Manila. The Informations were docketed
as Criminal Cases No. 93-130459 to No.
93-130465. The accusatory portion of
the Information in Criminal Case No. 93-
130465 reads as follows:
That on or about May 30, 1993, in the
City of Manila, Philippines, the said
accused did then and there willfully,
unlawfully and feloniously make or draw
and issue to Manila Doctors Hospital to
apply on account or for value to Editha
L. Vecino Check No. Metrobank 487712
dated May 30, 1993 payable to Manila
Doctors Hospital in the amount of
P30,000.00, said accused well knowing
that at the time of issue she did not have
sufficient funds in or credit with the
drawee bank for payment of such check
in full upon its presentment, which check
when presented for payment within
ninety (90) days from the date hereof,
was subsequently dishonored by the
drawee bank for "Account Closed" and
despite receipt of notice of such
dishonor, said accused failed to pay said
Manila Doctors Hospital the amount of
the check or to make arrangement for
full payment of the same within five (5)
banking days after receiving said notice.
Contrary to law.3
The other Informations are similarly
worded except for the number of the
checks and dates of issue. The data are
hereunder itemized as follows:
Check
Criminal Case No. Postdated
No.
93-130459 487710 30 March 1993
93-130460 487711 30 April 1993
93-130461 487709 01 March 1993
93-130462 487707 30 December 1992
93-130463 487706 30 November 1992
93-130464 487708 30 January 1993
93-130465 487712 30 May 1993
The cases were consolidated and jointly
tried. At her arraignment, Ty pleaded not
guilty.5
The evidence for the prosecution shows
that Tys mother Chua Lao So Un was
confined at the Manila Doctors Hospital
(hospital) from 30 October 1990 until 4
June 1992. Being the patients daughter,
Ty signed the "Acknowledgment of
Responsibility for Payment" in the
Contract of Admission dated 30 October
1990.6 As of 4 June 1992, the Statement
of Account7 shows the total liability of the
mother in the amount of P657,182.40.
Tys sister, Judy Chua, was also
confined at the hospital from 13 May
1991 until 2 May 1992, incurring hospital
bills in the amount of P418,410.55.8 The
total hospital bills of the two patients
amounted to P1,075,592.95. On 5 June
1992, Ty executed a promissory note
wherein she assumed payment of the
obligation in installments.9 To assure
payment of the obligation, she drew
several postdated checks against
Metrobank payable to the hospital. The
seven (7) checks, each covering the
amount of P30,000.00, were all
deposited on their due dates. But they
were all dishonored by the drawee bank
and returned unpaid to the hospital due
to insufficiency of funds, with the
"Account Closed" advice. Soon
thereafter, the complainant hospital sent
demand letters to Ty by registered mail.
As the demand letters were not heeded,
complainant filed the seven (7)
Informations subject of the instant
case.10
For her defense, Ty claimed that she
issued the checks because of "an
uncontrollable fear of a greater injury."
She averred that she was forced to
issue the checks to obtain release for
her mother whom the hospital
inhumanely and harshly treated and
would not discharge unless the hospital
bills are paid. She alleged that her
mother was deprived of room facilities,
such as the air-condition unit,
refrigerator and television set, and
subject to inconveniences such as the
cutting off of the telephone line, late
delivery of her mothers food and refusal
to change the latters gown and
bedsheets. She also bewailed the
hospitals suspending medical treatment
of her mother. The "debasing treatment,"
she pointed out, so affected her
mothers mental, psychological and
physical health that the latter
contemplated suicide if she would not be
discharged from the hospital. Fearing
the worst for her mother, and to comply
with the demands of the hospital, Ty was
compelled to sign a promissory note,
open an account with Metrobank and
issue the checks to effect her mothers
immediate discharge.11
Giving full faith and credence to the
evidence offered by the prosecution, the
trial court found that Ty issued the
checks subject of the case in payment of
the hospital bills of her mother and
rejected the theory of the defense. 12
Thus, on 21 April 1997, the trial court
rendered a Decision finding Ty guilty of
seven (7) counts of violation of B.P. 22
and sentencing her to a prison term. The
dispositive part of the Decision reads:
CONSEQUENTLY, the accused Vicky C.
Ty, for her acts of issuing seven (7)
checks in payment of a valid obligation,
which turned unfounded on their
respective dates of maturity, is found
guilty of seven (7) counts of violations of
Batas Pambansa Blg. 22, and is hereby
sentenced to suffer the penalty of
imprisonment of SIX MONTHS per
count or a total of forty-two (42) months.
SO ORDERED.13
Ty interposed an appeal from the
Decision of the trial court. Before the
Court of Appeals, Ty reiterated her
defense that she issued the checks
"under the impulse of an uncontrollable
fear of a greater injury or in avoidance of
a greater evil or injury." She also argued
that the trial court erred in finding her
guilty when evidence showed there was
absence of valuable consideration for
the issuance of the checks and the
payee had knowledge of the
insufficiency of funds in the account.
She protested that the trial court should
not have applied the law mechanically,
without due regard to the principles of
justice and equity.14
In its Decision dated 31 July 2001, the
appellate court affirmed the judgment of
the trial court with modification. It set
aside the penalty of imprisonment and
instead sentenced Ty "to pay a fine of
sixty thousand pesos (P60,000.00)
equivalent to double the amount of the
check, in each case."15
In its assailed Decision, the Court of
Appeals rejected Tys defenses of
involuntariness in the issuance of the
checks and the hospitals knowledge of
her checking accounts lack of funds. It
held that B.P. 22 makes the mere act of
issuing a worthless check punishable as
a special offense, it being a malum
prohibitum. What the law punishes is the
issuance of a bouncing check and not
the purpose for which it was issued nor
the terms and conditions relating to its
issuance.16
Neither was the Court of Appeals
convinced that there was no valuable
consideration for the issuance of the
checks as they were issued in payment
of the hospital bills of Tys mother.17
In sentencing Ty to pay a fine instead of
a prison term, the appellate court
applied the case of Vaca v. Court of
Appeals18 wherein this Court declared
that in determining the penalty imposed
for violation of B.P. 22, the philosophy
underlying the Indeterminate Sentence
Law should be observed, i.e., redeeming
valuable human material and preventing
unnecessary deprivation of personal
liberty and economic usefulness, with
due regard to the protection of the social
order.19
Petitioner now comes to this Court
basically alleging the same issues
raised before the Court of Appeals. More
specifically, she ascribed errors to the
appellate court based on the following
grounds:
A. THERE IS CLEAR AND
CONVINCING EVIDENCE THAT
PETITIONER WAS FORCED TO OR
COMPELLED IN THE OPENING OF
THE ACCOUNT AND THE ISSUANCE
OF THE SUBJECT CHECKS.
B. THE CHECKS WERE ISSUED
UNDER THE IMPULSE OF AN
UNCONTROLLABLE FEAR OF A
GREATER INJURY OR IN AVOIDANCE
OF A GREATER EVIL OR INJURY.
C. THE EVIDENCE ON RECORD
PATENTLY SHOW[S] ABSENCE OF
VALUABLE CONSIDERATION IN THE
ISSUANCE OF THE SUBJECT
CHECKS.
D. IT IS AN UNDISPUTED FACT THAT
THE PAYEE OF THE CHECKS WAS
FULLY AWARE OF THE LACK OF
FUNDS IN THE ACCOUNT.
E. THE HONORABLE COURT OF
APPEALS, AS WELL AS THE
HONORABLE TRIAL COURT [,]
SHOULD NOT HAVE APPLIED
CRIMINAL LAW MECHANICALLY,
WITHOUT DUE REGARD TO THE
PRINCIPLES OF JUSTICE AND
EQUITY.
In its Memorandum,20 the Office of the
Solicitor General (OSG), citing
jurisprudence, contends that a check
issued as an evidence of debt, though
not intended to be presented for
payment, has the same effect as an
ordinary check; hence, it falls within the
ambit of B.P. 22. And when a check is
presented for payment, the drawee bank
will generally accept the same,
regardless of whether it was issued in
payment of an obligation or merely to
guarantee said obligation. What the law
punishes is the issuance of a bouncing
check, not the purpose for which it was
issued nor the terms and conditions
relating to its issuance. The mere act of
issuing a worthless check is malum
prohibitum.21
We find the petition to be without merit
and accordingly sustain Tys conviction.
Well-settled is the rule that the factual
findings and conclusions of the trial
court and the Court of Appeals are
entitled to great weight and respect, and
will not be disturbed on appeal in the
absence of any clear showing that the
trial court overlooked certain facts or
circumstances which would substantially
affect the disposition of the case.22
Jurisdiction of this Court over cases
elevated from the Court of Appeals is
limited to reviewing or revising errors of
law ascribed to the Court of Appeals
whose factual findings are conclusive,
and carry even more weight when said
court affirms the findings of the trial
court, absent any showing that the
findings are totally devoid of support in
the record or that they are so glaringly
erroneous as to constitute serious abuse
of discretion.23
In the instant case, the Court discerns
no compelling reason to reverse the
factual findings arrived at by the trial
court and affirmed by the Court of
Appeals.
Ty does not deny having issued the
seven (7) checks subject of this case.
She, however, claims that the issuance
of the checks was under the impulse of
an uncontrollable fear of a greater injury
or in avoidance of a greater evil or injury.
She would also have the Court believe
that there was no valuable consideration
in the issuance of the checks.
However, except for the defenses claim
of uncontrollable fear of a greater injury
or avoidance of a greater evil or injury,
all the grounds raised involve factual
issues which are best determined by the
trial court. And, as previously intimated,
the trial court had in fact discarded the
theory of the defense and rendered
judgment accordingly.
Moreover, these arguments are a mere
rehash of arguments unsuccessfully
raised before the trial court and the
Court of Appeals. They likewise put to
issue factual questions already passed
upon twice below, rather than questions
of law appropriate for review under a
Rule 45 petition.
The only question of law raised--whether
the defense of uncontrollable fear is
tenable to warrant her exemption from
criminal liability--has to be resolved in
the negative. For this exempting
circumstance to be invoked successfully,
the following requisites must concur: (1)
existence of an uncontrollable fear; (2)
the fear must be real and imminent; and
(3) the fear of an injury is greater than or
at least equal to that committed.24
It must appear that the threat that
caused the uncontrollable fear is of such
gravity and imminence that the ordinary
man would have succumbed to it.25 It
should be based on a real, imminent or
reasonable fear for ones life or limb.26 A
mere threat of a future injury is not
enough. It should not be speculative,
fanciful, or remote.27 A person invoking
uncontrollable fear must show therefore
that the compulsion was such that it
reduced him to a mere instrument acting
not only without will but against his will
as well.28 It must be of such character as
to leave no opportunity to the accused
for escape.29
In this case, far from it, the fear, if any,
harbored by Ty was not real and
imminent. Ty claims that she was
compelled to issue the checks--a
condition the hospital allegedly
demanded of her before her mother
could be discharged--for fear that her
mothers health might deteriorate further
due to the inhumane treatment of the
hospital or worse, her mother might
commit suicide. This is speculative fear;
it is not the uncontrollable fear
contemplated by law.
To begin with, there was no showing that
the mothers illness was so life-
threatening such that her continued stay
in the hospital suffering all its alleged
unethical treatment would induce a well-
grounded apprehension of her death.
Secondly, it is not the laws intent to say
that any fear exempts one from criminal
liability much less petitioners flimsy fear
that her mother might commit suicide. In
other words, the fear she invokes was
not impending or insuperable as to
deprive her of all volition and to make
her a mere instrument without will,
moved exclusively by the hospitals
threats or demands.
Ty has also failed to convince the Court
that she was left with no choice but to
commit a crime. She did not take
advantage of the many opportunities
available to her to avoid committing one.
By her very own words, she admitted
that the collateral or security the hospital
required prior to the discharge of her
mother may be in the form of postdated
checks or jewelry.30 And if indeed she
was coerced to open an account with
the bank and issue the checks, she had
all the opportunity to leave the scene to
avoid involvement.
Moreover, petitioner had sufficient
knowledge that the issuance of checks
without funds may result in a violation of
B.P. 22. She even testified that her
counsel advised her not to open a
current account nor issue postdated
checks "because the moment I will not
have funds it will be a big problem."31
Besides, apart from petitioners bare
assertion, the record is bereft of any
evidence to corroborate and bolster her
claim that she was compelled or
coerced to cooperate with and give in to
the hospitals demands.
Ty likewise suggests in the prefatory
statement of her Petition and
Memorandum that the justifying
circumstance of state of necessity under
par. 4, Art. 11 of the Revised Penal
Code may find application in this case.
We do not agree. The law prescribes the
presence of three requisites to exempt
the actor from liability under this
paragraph: (1) that the evil sought to be
avoided actually exists; (2) that the
injury feared be greater than the one
done to avoid it; (3) that there be no
other practical and less harmful means
of preventing it.32
In the instant case, the evil sought to be
avoided is merely expected or
anticipated. If the evil sought to be
avoided is merely expected or
anticipated or may happen in the future,
this defense is not applicable.33 Ty could
have taken advantage of an available
option to avoid committing a crime. By
her own admission, she had the choice
to give jewelry or other forms of security
instead of postdated checks to secure
her obligation.
Moreover, for the defense of state of
necessity to be availing, the greater
injury feared should not have been
brought about by the negligence or
imprudence, more so, the willful inaction
of the actor.34 In this case, the issuance
of the bounced checks was brought
about by Tys own failure to pay her
mothers hospital bills.
The Court also thinks it rather odd that
Ty has chosen the exempting
circumstance of uncontrollable fear and
the justifying circumstance of state of
necessity to absolve her of liability. It
would not have been half as bizarre had
Ty been able to prove that the issuance
of the bounced checks was done without
her full volition. Under the
circumstances, however, it is quite clear
that neither uncontrollable fear nor
avoidance of a greater evil or injury
prompted the issuance of the bounced
checks.
Parenthetically, the findings of fact in the
Decision of the trial court in the Civil
Case35 for damages filed by Tys mother
against the hospital is wholly irrelevant
for purposes of disposing the case at
bench. While the findings therein may
establish a claim for damages which, we
may add, need only be supported by a
preponderance of evidence, it does not
necessarily engender reasonable doubt
as to free Ty from liability.
As to the issue of consideration, it is
presumed, upon issuance of the checks,
in the absence of evidence to the
contrary, that the same was issued for
valuable consideration.36 Section 2437 of
the Negotiable Instruments Law creates
a presumption that every party to an
instrument acquired the same for a
consideration38 or for value.39 In alleging
otherwise, Ty has the onus to prove that
the checks were issued without
consideration. She must present
convincing evidence to overthrow the
presumption.
A scrutiny of the records reveals that
petitioner failed to discharge her burden
of proof. "Valuable consideration may in
general terms, be said to consist either
in some right, interest, profit, or benefit
accruing to the party who makes the
contract, or some forbearance,
detriment, loss or some responsibility, to
act, or labor, or service given, suffered
or undertaken by the other aide. Simply
defined, valuable consideration means
an obligation to give, to do, or not to do
in favor of the party who makes the
contract, such as the maker or
indorser."40
In this case, Tys mother and sister
availed of the services and the facilities
of the hospital. For the care given to her
kin, Ty had a legitimate obligation to pay
the hospital by virtue of her relationship
with them and by force of her signature
on her mothers Contract of Admission
acknowledging responsibility for
payment, and on the promissory note
she executed in favor of the hospital.
Anent Tys claim that the obligation to
pay the hospital bills was not her
personal obligation because she was
not the patient, and therefore there was
no consideration for the checks, the
case of Bridges v. Vann, et al.41 tells us
that "it is no defense to an action on a
promissory note for the maker to say
that there was no consideration which
was beneficial to him personally; it is
sufficient if the consideration was a
benefit conferred upon a third person, or
a detriment suffered by the promisee, at
the instance of the promissor. It is
enough if the obligee foregoes some
right or privilege or suffers some
detriment and the release and
extinguishment of the original obligation
of George Vann, Sr., for that of
appellants meets the requirement.
Appellee accepted one debtor in place
of another and gave up a valid,
subsisting obligation for the note
executed by the appellants. This, of
itself, is sufficient consideration for the
new notes."
At any rate, the law punishes the mere
act of issuing a bouncing check, not the
purpose for which it was issued nor the
terms and conditions relating to its
issuance.42 B.P. 22 does not make any
distinction as to whether the checks
within its contemplation are issued in
payment of an obligation or to merely
guarantee the obligation.43 The thrust of
the law is to prohibit the making of
worthless checks and putting them into
circulation.44 As this Court held in Lim v.
People of the Philippines,45 "what is
primordial is that such issued checks
were worthless and the fact of its
worthlessness is known to the appellant
at the time of their issuance, a required
element under B.P. Blg. 22."
The law itself creates a prima facie
presumption of knowledge of
insufficiency of funds. Section 2 of B.P.
22 provides:
Section 2. Evidence of knowledge of
insufficient funds. - The making, drawing
and issuance of a check payment of
which is refused by the drawee bank
because of insufficient funds in or credit
with such bank, when presented within
ninety (90) days from the date of the
check, shall be prima facie evidence of
knowledge of such insufficiency of funds
or credit unless such maker or drawer
pays the holder thereof the amount due
thereon, or makes arrangements for
payment in full by the drawee of such
check within five (5) banking days after
receiving notice that such check has not
been paid by the drawee.
Such knowledge is legally presumed
from the dishonor of the checks for
insufficiency of funds.46 If not rebutted, it
suffices to sustain a conviction.47
Petitioner likewise opines that the payee
was aware of the fact that she did not
have sufficient funds with the drawee
bank and such knowledge necessarily
exonerates her liability.
The knowledge of the payee of the
insufficiency or lack of funds of the
drawer with the drawee bank is
immaterial as deceit is not an essential
element of an offense penalized by B.P.
22. The gravamen of the offense is the
issuance of a bad check, hence, malice
and intent in the issuance thereof is
inconsequential.48
In addition, Ty invokes our ruling in
Magno v. Court of Appeals49 wherein this
Court inquired into the true nature of
transaction between the drawer and the
payee and finally acquitted the accused,
to persuade the Court that the
circumstances surrounding her case
deserve special attention and do not
warrant a strict and mechanical
application of the law.
Petitioners reliance on the case is
misplaced. The material operative facts
therein obtaining are different from those
established in the instant petition. In the
1992 case, the bounced checks were
issued to cover a "warranty deposit" in a
lease contract, where the lessor-supplier
was also the financier of the deposit. It
was a modus operandi whereby the
supplier was able to sell or lease the
goods while privately financing those in
desperate need so they may be
accommodated. The maker of the check
thus became an unwilling victim of a
lease agreement under the guise of a
lease-purchase agreement. The maker
did not benefit at all from the deposit,
since the checks were used as collateral
for an accommodation and not to cover
the receipt of an actual account or credit
for value.
In the case at bar, the checks were
issued to cover the receipt of an actual
"account or for value." Substantial
evidence, as found by the trial court and
Court of Appeals, has established that
the checks were issued in payment of
the hospital bills of Tys mother.
Finally, we agree with the Court of
Appeals in deleting the penalty of
imprisonment, absent any proof that
petitioner was not a first-time offender
nor that she acted in bad faith.
Administrative Circular 12-2000,50
adopting the rulings in Vaca v. Court of
Appeals51 and Lim v. People,52
authorizes the non-imposition of the
penalty of imprisonment in B.P. 22 cases
subject to certain conditions. However,
the Court resolves to modify the penalty
in view of Administrative Circular 13-
200153 which clarified Administrative 12-
2000. It is stated therein:
The clear tenor and intention of
Administrative Circular No. 12-2000 is
not to remove imprisonment as an
alternative penalty, but to lay down a
rule of preference in the application of
the penalties provided for in B.P. Blg. 22. to double the amount of each
Thus, Administrative Circular 12-2000 dishonored check subject of the seven
establishes a rule of preference in the cases at bar with subsidiary
application of the penal provisions of imprisonment in case of insolvency in
B.P. Blg. 22 such that where the accordance with Article 39 of the
circumstances of both the offense and Revised Penal Code. She is also
the offender clearly indicate good faith ordered to pay private complainant,
or a clear mistake of fact without taint of Manila Doctors Hospital, the amount of
negligence, the imposition of a fine Two Hundred Ten Thousand Pesos
alone should be considered as the more (P210,000.00) representing the total
appropriate penalty. Needless to say, amount of the dishonored checks. Costs
the determination of whether against the petitioner.
circumstances warrant the imposition of SO ORDERED.
a fine alone rests solely upon the Judge.
Should the judge decide that
imprisonment is the more appropriate
penalty, Administrative Circular No. 12-
2000 ought not be deemed a hindrance.
It is therefore understood that: (1)
Administrative Circular 12-2000 does
not remove imprisonment as an
alternative penalty for violations of B.P.
22; (2) the judges concerned may, in the
exercise of sound discretion, and taking
into consideration the peculiar
circumstances of each case, determine
whether the imposition of a fine alone
would best serve the interests of justice,
or whether forbearing to impose
imprisonment would depreciate the
seriousness of the offense, work
violence on the social order, or
otherwise be contrary to the imperatives
of justice; (3) should only a fine be
imposed and the accused unable to pay
the fine, there is no legal obstacle to the
application of the Revised Penal Code
provisions on subsidiary imprisonment.54
WHEREFORE, the instant Petition is Republic of the Philippines
DENIED and the assailed Decision of SUPREME COURT
the Court of Appeals, dated 31 July Manila
2001, finding petitioner Vicky C. Ty EN BANC
GUILTY of violating Batas Pambansa G.R. Nos. 148145-46 July 5, 2004
Bilang 22 is AFFIRMED with PEOPLE OF THE PHILIPPINES,
MODIFICATIONS. Petitioner Vicky C. Ty appellee,
is ORDERED to pay a FINE equivalent vs.
FELIX VENTURA y QUINDOY and
ARANTE FLORES y VENTURA,
appellants.
DECISION
PER CURIAM:
On automatic appeal1 before this Court
is the Decision of the Regional Trial
Court of Negros Occidental, Branch 50,
finding appellants Felix Ventura
(Ventura) and Arante Flores (Flores)
guilty beyond reasonable doubt of
Murder in Criminal Case No. 00-20692
and Attempted Murder in Criminal Case
No. 00-20693.
The accusatory portion of the
Information for Murder in Criminal Case
No. 00-20692 reads as follows:
That on or about the 23rd day of
February, 2000 in the City of Bacolod,
Philippines, and within the jurisdiction of
this Honorable Court, the herein
accused, conspiring, confederating and
acting in concert, without any justifiable
cause or motive, with intent to kill and by
means of treachery and evident
premeditation, accused Felix Q. Ventura
armed with a .38 Caliber Home-made
Revolver and Arante V. Flores armed
with a bladed weapon, and by taking
advantage of their superior strength, did,
then and there willfully, unlawfully and
feloniously assault, attack and stab with
bladed weapon one Aileen Bocateja y
Peruelo, thereby inflicting upon the
person of the latter the following
wounds, to wit:
- Cardio respiratory arrest
- Hemothorax
- stab wounds
which wounds were the direct and
immediate cause of the death of said
victim, to the damage and prejudice of
the heirs of the latter.
That the crime was committed with the
aggravating circumstances of
dwelling, night time and with the use
of an unlicensed firearm.
Act contrary to law.2 (Emphasis
supplied)
The accusatory portion of the
Information for Frustrated Murder in
Criminal Case No. 00-20693 reads as
follows:
That on or about the 23rd day of
February, 2000 in the City of Bacolod,
Philippines, and within the jurisdiction of
this Honorable Court, the herein
accused, conspiring, confederating
and mutually helping each other,
without any justifiable cause or motive,
accused Felix Q. Ventura armed with a .
38 Caliber Homemade Revolver and
Arante Flores y Ventura armed with a
bladed weapon, with intent to kill and by
means of treachery and evident
premeditation, and abuse of superior
strength, did, then and there willfully,
unlawfully and feloniously assault, attack
and stab with said bladed weapon one
Jaime Bocateja, thereby causing upon
of the latter the following wounds, to wit:
- multiple stab wounds
- #1 Posterior axillary area right
- #2 Posterior axillary area left with
minimal hemothorax
- lacerated wound right parietal area
OPERATION PERFORMED:
- Exploration of wound right parietal
for removal of foreign body
thus performing all the acts of execution
which would have produced the crime of
murder as a consequence, but which
nevertheless, did not produce it by
reason of some cause or accident
independent of the will of the
perpetrator, that is, due to the timely and
able medical assistance, which saved
the life of the victim and the victim was
able to escape.
That the crime was committed with the
aggravating circumstances of
dwelling, night time, and with the use
of an unlicensed firearm.
Act contrary to law.3 (Emphasis
supplied)
When arraigned, appellants pleaded not
guilty to both charges.4 The two criminal
cases were consolidated following which
they were jointly tried.5
The spouses Jaime and Aileen Bocateja
were, in the early hours of February 23,
2000, fast asleep in their room on the
ground floor of their two-storey house at
Alunan-Yulo in Bacolod City, Negros
Occidental. The room had a glass wall
with a glass sliding door which was
closed but not locked. The kitchen light
was open, as was the light in the
adjoining room where the couple's
young children, Jummylin and Janine,
were sleeping. Their niece, Aireen
Bocateja, and Jaime's elder daughter,
Rizza Mae, were asleep in their rooms
on the second floor.6
At around 2:00 a.m.,7 Jaime was roused
from his sleep by appellant Ventura who,
together with his nephew appellant
Flores, had stealthily entered the
couple's room after they gained entry
into the house by cutting a hole in the
kitchen door.
As established by the testimonial and
object evidence for the prosecution, the
following transpired thereafter:
Appellant Ventura pointed a revolver at
Jaime's face, announced a hold-up, hit
Jaime on the head with the gun and
asked him for his keys. 8
When appellant Ventura struck him
again, Jaime called out for help and tried
to grab the revolver. The two men then
struggled for possession of the gun. As
Jaime almost succeeded in wresting
possession of the gun from him,
appellant Flores shouted to appellant
Ventura to stab Jaime. Using the knife
he
was carrying, appellant Flores stabbed
Jaime three times. Jaime thereupon
released the gun, threw a nearby plastic
stool at the jalousy glass window
causing it to break and cried out for
help.9
In the meantime, Aileen who had been
awakened, began shouting for help as
she saw her husband in mortal danger.
Appellant Flores stabbed her, however,
with his knife, and although Aileen tried
to defend herself with an electric cord,
appellant Flores continued stabbing
her.10
Awakened by the commotion, Aireen
descended the stairs and saw the knife
wielding appellant Flores whom she
recognized as a former employee of the
butcher shop of the Bocataje spouses.
Pleading with appellant Flores not to
harm her, Aireen ran back upstairs into
Rizza Mae's room, and the two called to
their neighbors for help.11
Appellants Ventura and Flores
thereupon fled the Bocateja house,12
bringing nothing with them.13
Soon members of the Central
Investigation Unit (CIU) of the Philippine
National Police (PNP) arrived in
response to a flash report.14 Some of the
police officers took the spouses to the
Western Visayas Regional Hospital,15
while other elements of the CIU team
intercepted appellants Ventura and
Flores who were being pursued by
neighbors of the spouses at the corner
of Araneta-Yulo. Recovered from
appellant Ventura was a .38 caliber
revolver with five (5) live bullets, and
from appellant Flores a blood stained
knife16 measuring 14 inches from tip to
handle with a 10-inch blade.17
Shortly after their arrest, appellants were
interviewed by reporters from Bombo
Radio to whom they admitted
responsibility for stabbing Jaime and
Aileen. In response to questions from
the reporters, appellant Ventura
explained that he suspected his wife
was carrying on an affair with Jaime.18
In the ocular inspection of the Bocateja
residence, the CIU team found the
spouses' room in disarray, with some
cabinets opened and blood splattered all
over the floor, the bed and the ceiling. 19
Aileen eventually died in the hospital on
the same day of the commission of the
crime.20 Dr. Luis Gamboa, City Health
Officer of Bacolod City who conducted
the autopsy of her body, found that she
suffered a hack wound on her face and
four stab wounds on her body, three at
the chest and one at the back of the
right shoulder, all caused by a sharp
bladed instrument, such as the knife
recovered from appellant Flores. One of
the stab wounds penetrated Aileen's
chest near the left nipple, the
intercoastal space and the middle of her
right lung causing internal hemorrhage
and ultimately resulting in her death.21
Jaime who was hospitalized for a total of
six days, was treated by Dr. Jose
Jocson,22 who certified that he sustained
the following non-lethal injuries: 23
Multiple Stab Wounds
#1 Posterior Axillary Area Right
#2 Posterior Axillary Area Left with
Minimal Hemothorax
Lacerated Wound Right Parietal Area24
From the evidence for the defense
consisting of the testimonies of
appellants Ventura and Flores and
Primitiva Empirado, the following version
is culled:
Four days after February 13, 2000 when
appellant Ventura arrived in Negros
Occidental from Manila where he had
been working as a security guard, 25 he
noticed that his wife, Johanna, who had
previously been employed as a house
helper of the Bocateja spouses, was
wearing a new ring. When he confronted
her, she said that it came from Jaime
who was courting her, and that it was
because Jaime's wife, Aileen, had
discovered their illicit relationship that
she had been dismissed from the
Bocateja household. Incensed at the
revelation, he slapped his wife
whereupon she left the conjugal home.26
On February 22, 2000, Johanna
returned to the conjugal home in
Barangay Alegria, Municipality of
Murcia, Negros Occidental to get her
things. After a verbal confrontation with
her husband, she left to find work in
Kabankalan, Negros Occidental. This
was the last time that Johanna and
appellant Ventura saw each other.27
That same day, appellant Flores visited
his uncle-appellant Ventura. The two
spoke at length and appellant Flores,
who had previously worked for a day at
the meat shop of the Bocateja spouses,
confirmed that Johanna and Jaime were
having an affair.28
Since appellant Flores knew where the
Bocateja spouses lived, appellant
Ventura asked him to go with him to
their residence so he could confront
Jaime about his affair with Johanna.29
Appellants, armed with an unlicensed
revolver and a knife, thus repaired to the
Bocateja residence still on the same
day, February 22, 2000, arriving there at
around 11:00 p.m. They were not able to
immediately enter the premises,
however. After boring a hole through the
kitchen door with the knife, appellants
entered the Bocateja residence at 2:00
a.m. of the next day, February 23,
2000.30
Once inside, appellants entered the
room of the Bocateja spouses through
the unlocked sliding door. Appellant
Ventura woke Jaime up, confronted him
and told him to stop his relationship with
Johanna. Jaime fought back, and he
and appellant Ventura grappled for
possession of the latter's gun.31
Soon after, Aileen woke up, screamed
for help, and began throwing things at
appellant Flores whom she attempted to
strangle with an electrical extension
cord. Unable to breathe, appellant
Ventura stabbed Aileen twice with his
knife. And seeing that Jaime had
wrested control of the gun from
appellant Ventura, appellant Flores also
stabbed Jaime.32
Since appellants had not intended to kill
Aileen or stab Jaime, they fled in the
course of which Jaime began shooting
at them with a 9 mm pistol. Appellants
were eventually intercepted by
policemen who placed them under
arrest.33
Interviewed by the media after his
arrest, appellant Ventura stressed that
he just wanted to confront Jaime about
the latter's relationship with appellant's
wife, Johanna.34
By the appealed Decision of December
15, 2000, the trial court disposed as
follows:
FOR ALL THE FOREGOING, the Court
finds the accused FELIX VENTURA y
QUINDOY and ARANTE FLORES y
VENTURA GUILTY beyond reasonable
doubt as Principals by Direct
Participation of the crime of
ATTEMPTED MURDER as alleged in
Criminal Information No. 00-20693
with the aggravating circumstances
of evident premeditation, dwelling,
nighttime and the breaking of door to
gain entrance to the house and with no
mitigating circumstance. Accordingly,
they are sentenced to suffer the penalty
of Reclusion Temporal in its maximum
period. Applying the Indeterminate
Sentence Law, they shall serve a prison
term of from Eight (8) years of Prision
Mayor as Minimum to Eighteen (18)
years of Reclusion Temporal as
Maximum.
The Court also finds the two (2) above-
named accused GUILTY as Principal[s]
by Direct participation for the crime of
Murder as alleged in Criminal
Information No. 00-20692 qualified by
abuse of superior strength. The
aggravating circumstances of
dwelling, nighttime and by the
breaking of a door are present in the
commission of the crime. There is no
mitigating circumstance. The accused,
therefore, are meted the Supreme
penalty of DEATH.
By way of civil liability, the accused are
solidarily ordered to pay the heirs of
Aileen Bocoteja the sum of P50,000.00
as death indemnity. The accused are
likewise held solidarily liable to pay
Jaime Bocateja the sum of P100,000.00
as moral damages and the sum of
P20,000.00 as exemplary damages.35
(Emphasis supplied)
In their Brief,36 appellants contend that
the trial court erred (1) in convicting
them despite the failure of the
prosecution to prove their guilt beyond
reasonable doubt; (2) in considering
abuse of superior strength as a
qualifying circumstance in Criminal Case
No. 00-20892; (3) in considering
evident premeditation as a qualifying
circumstance in Criminal Case No. 00-
20893; and (4) in considering the
aggravating circumstances of breaking
of door and nocturnity in both cases.37
Appellants argue that, at most, they can
only be convicted of attempted homicide
for the stabbing of Jaime and homicide
for the fatal stabbing of Aileen.38
From a considered review of the records
and applicable jurisprudence, the instant
appeal fails.
The essence of evident premeditation is
that the execution of the criminal act
must be preceded by cool thought and
reflection upon the resolution to carry
out the criminal intent during a space of
time sufficient to arrive at a calm
judgment.39 For it to be appreciated, the
following must be proven beyond
reasonable doubt: (1) the time when the
accused determined to commit the
crime; (2) an act manifestly indicating
that the accused clung to his
determination; and (3) sufficient lapse of
time between such determination and
execution to allow him to reflect upon
the circumstances of his act.40
By appellants' argument, even if
appellant Ventura became jealous when
he learned of the illicit affair between his
wife and Jaime, it is not, by itself,
sufficient proof that he determined to kill
the latter; that with Jaime's testimony
that appellant had announced a "hold-
up," they, at most, intended to rob, but
not kill the spouses; that their only
purpose was to confront Jaime
regarding his supposed affair with
appellant Ventura's wife, Johanna; and
that if they had truly intended to kill
Jaime, then appellant Ventura would not
have bothered to awaken him, but would
just have shot him in his sleep.
These assertions run counter to the
established facts and are debunked by
appellants' own admissions.
Appellants admittedly arrived at the
Bocateja residence at 11:00 p.m. and
surreptitiously entered therein at 2:00
a.m. At that time, the surrounding
premises were decidedly dark, and all
the members of the household were fast
asleep. Armed with a gun and a knife,
they proceeded directly to the bedroom
of the spouses, where appellant Ventura
woke up Jaime. These actuations are
not of those seeking parley, but instead
betray an unmistakable intention to kill,
not merely confront, Jaime.
Indeed, when pressed during cross-
examination to explain why he chose to
"confront" Jaime under the foregoing
circumstances, appellant Ventura
became evasive and did not give a clear
answer:
Q Mr. Witness, you said that your
purpose in going to the house of Jaime
was only to confront him. My question is,
why is it that you went there at 11:00
o'clock in the evening and not in the
morning so that you will have all the
opportunity to confront him?
A Because at that time, I was not
on my proper frame of mind.
Q Why, is it not a fact that as early
as February 17, 2000, you were already
told by your wife that there was that
relationship with Jaime Bocateja and
your wife?
A Yes, sir.
Q Why did you not immediately
confront Mr, Bocateja after that day
or February 17?
WITNESS:
A On that day, I don't know Jaime
Bocateja.
xxx
ATTY. ORTIZ:
Q On February 22. So that you did
not ask your wife where the place of
Jaime Bocateja was at that time you
were by him on February 22, 2000?
A Johanna did not tell me the
place of Jaime Bocateja.
Q Why did you not ask her where
the house is, at that time?
A What she told me was that, she
is working in Bacolod City.
Q Mr. Witness, you had from
February 17 to 22, a number of days
to confront Mr. Jaime Bocateja. Did
you not confront your wife or
perhaps ask her about the place or
where this Jaime Bocateja was at that
time and have the intention to
confront him, if that was really your
intention to confront him?
WITNESS:
A No, I did not ask her because we
had a confrontation and the next day,
February 17, she left.
Q Of course, when you arrived at the
house of the Bocateja [spouses] at
11:00 o'clock in the evening, you were
armed at that time, is that right, you and
your companion, Arante Flores?
A Yes, sir.
Q What was that weapon at that
time?
A .38 caliber revolver.
xxx
ATTY. ORTIZ:
Q Mr. Witness, if your intention
was only to confront Mr. Jaime
Bocateja, why is it that you did not
wait or you did not come to that place
earlier so that at that time, Jaime
Bocateja was still awake or perhaps
waited until the next day?
COURT:
Already answered. He said that he
was not at the proper frame of his
mind.41 (Emphasis supplied)
Cross-examined on the same point,
appellant Flores was equally evasive,
but eventually revealed that the timing
and method of entry were purposely
chosen to avoid detection by either the
Bocateja family or their neighbors:
Q You arrived in the house of
Bocateja at about 11:00 o'clock is
that right?
A Yes, sir.
Q And your purpose in going to the
house of Bocateja was only to confront
Jaime Bocateja about his relationship
with Johanna is that right?
A Yes, sir.
ATTY. ORTIZ:
Q Why did you wait Mr. Witness
why did you and the other accused
Felix Ventura wait for three (3) hours
for you to confront him in his house?
WITNESS:
A Because we were not able to
enter the door right away because the
door could not be opened.
Q My question Mr. Witness, is this
you ate your supper at Libertad
market at about 8:00 o'clock why did
you not go to the house of Jaime
Bocateja at 9:00 o'clock immediately
after supper? At that time when the
members of the family were yet
awake?A We stayed at Burgos market
and then from Burgos to Libertad we
only walk and from Libertad to the
house of Bocateja.
ATTY. ORTIZ:
Q You will admit Mr. Witness at
the time you left your place at Brgy.
Alegria you were already armed, is
that right?
WITNESS:
A Yes, sir.
Q Your uncle Felix Ventura was
armed with [a] .38 caliber revolver, is
that right?
A Yes, sir.
Q And you were also armed with a
bladed weapon is that correct?
A Yes, sir.
Q Why do you have to bring this
weapon Mr. Witness?
A We brought this weapon just to
frighten Jaime Bocateja during [the]
confrontation.
ATTY. ORTIZ:
Q Are you saying Mr. Witness if
your purpose was only to confront
him you have to bring this [sic]
weapons?
WITNESS:
A Yes, sir.
Q When you arrived at the house of
Jaime Bocateja about 11:00 o'clock. . .
by the way when did you arrive at the
house of Jaime Bocateja?
A 11:00 in the evening.
Q Of course you did not anymore
knock at the door Mr. Witness?
A No, sir.
Q Or you did not also call any
member of the family to open [the
door for] you, is that right?
WITNESS:
A No, sir.
ATTY. ORTIZ:
Q As a matter of fact you only broke
the gate Mr. Witness in order to enter
the compound of the Bocateja family?
A We scaled over the gate.
Q And why do you have Mr.
Witness to go over the fence and
open a hole at the kitchen for you to
confront Mr. Jaime Bocateja if that
was your purpose?
A The purpose of my uncle was
just to confront Jaime.
Q And when you confront, are you
saying that you cannot any more
knock at the door, perhaps call any
member of the family inside the
house?
WITNESS:
A No, sir.
ATTY. ORTIZ:
Q Why Mr. Witness, Why?
A We did not call or knock at the
person inside the house because it
will make noise or calls and alarm to
the neighbors.42 (Emphasis and
underscoring supplied)
To be sure, all the elements of evident
premeditation were clearly established
from the lips of appellants themselves.
Thus, on clarificatory questioning by the
trial court, appellant Ventura testified:
COURT:
Q I recall that you left Murcia [at]
4:00 o'clock. Is that morning or
afternoon?
A I left Murcia at 4:00 o'clock in
the afternoon.
Q 4:00 o'clock from Alegria then
to Alangilan, then to Bacolod, is that
correct?
A Yes, sir.
Q From Alangilan to Bacolod, what
mode of transportation did you make?
A From Alegria to Alangilan, we
only hiked and then from Alangilan to
Bacolod we took the passenger
jeepney.
Q From Alegria to Alangilan, how
long did it take you to walk? How
many kilometers?
A Four (4) kilometers.
Q And, I assume that while you
were walking, you were talking with
Arante Flores, your nephew, about
the plans to go to the house of Jaime
Bocateja?
A Yes, sir.
COURT:
Q By the way, what did you do at
Alangilan?
A I went there because my clothes
were at my sister's house.
Q So, what time did you arrive in
[Bacolod]?
A We arrived here in [Bacolod]
late in the evening.
Q I assume that you disembarked at
Burgos Market?
A Yes, sir.
Q And you just walked from Burgos
Market to Libertad Baybay to the house
of Jaime Bocateja?
A Yes, sir.
Q It took you about thirty (30)
[minutes] to one (1) hour, more or
less?
A More than one (1) hour.
Q And during this time, you were
talking again with Arante Flores
[about] the course of action that you
will take once a confrontation takes
place with Jaime Bocateja?
WITNESS:
A Yes, I asked him the location of
3rd Road since I do not know the
house of Jaime Bocateja.
COURT:
Q I assume that the front main door
of the house was close[d] at that time,
correct?
A Yes, sir.
Q You scaled that door, the front
main door of the gate?
A Yes, sir, we scaled the gate.
Q You were not able to open it but
you simply scaled, you went over?
A Yes, sir.
Q And you said yet, you
destroyed the main door of the
house. Can you tell the Court, how
did you destroy the main door of the
house?
A No, the kitchen door, sir.
COURT:
Q How were you able to destroy
it?
WITNESS:
A We used the knife in unlocking
the door. We made a hole.
Q You made a hole and with the use
of your hand, you were able to unlock
the inside lock because of the hole?
A Yes, sir.
Q And I assume that it took you
twenty (20) thirty (30) minutes to
make that hole?
A Yes, sir.43 (Emphasis supplied)
The immediately foregoing narration
was echoed by appellant Flores who
gave the following testimony on direct
examination:
ATTY. JACILDO:
Q So from Brgy. Alegria where did
you proceed?
WITNESS:
A We proceeded to Brgy. Alangilan.
Q This Brgy. Alegria how far is it
from Brgy. Alangilan?
A The distance between Brgy.
Alegria to Brgy. Alangilan is about three
(3) kilometers.
Q So, what means of transportation
did you used in going to Alangilan?
A We walked in going to
Alangilan.
Q When you arrived at Brgy.
Alangilan what did you do?
WITNESS:
A We went to our aunt's house.
ATTY. JACILDO:
Q From Alangilan where did you
proceed?
A In Alangilan, we stayed at the
house of my aunt and then we
proceeded to Bacolod.
Q So what time did you arrived
[sic] in Bacolod?
A 8:00 o'clock in the evening.
Q When you arrived in Bacolod,
what did you do?
A We ate our supper at Libertad
Market.
Q After eating your dinner at
Libertad, what did you do?
A After eating our supper, we
proceeded to the house of Jaime
Bocateja.
ATTY. JACILDO:
Q What time did you arrived [sic]
at the house of Jaime?
WITNESS:
A 11:00 o'clock in the evening.
Q When you arrived at the house of
Jaime, what did you do?
A We enter[ed] the gate of their
house.
Q Please continue?
A Then, we opened the door.
Q And then?
A We reach[ed] [the Bocateja
residence] at around 11:00 o'clock
and we tried to open the door but we
could not open the door immediately.
We made a hole so that we can get in
the house. We entered the house at
about 2:00 o'clock in the morning the
following day.44 (Emphasis supplied)
Undoubtedly, the accounts of appellants
evince not only their resolve to kill
Jaime, but the calm and methodical
manner by which they sought to carry
out his murder. As pointed out by the
Solicitor General, unless shown to be
customary,45 appellants' act of arming
themselves with a gun and a knife
constitutes direct evidence of a careful
and deliberate plan to carry out a killing.
Consider the following ruling of this
Court in People v. Samolde:46
As stated earlier, accused-appellant and
Armando Andres tried to borrow
Cabalin's tear gas gun. This attempt by
the accused-appellant and his co-
accused to arm themselves prior to
the commission of the crime
constitutes direct evidence that the
killing of Feliciano Nepomuceno had
been planned with care and executed
with utmost deliberation. From the
time the two agreed to commit the crime
to the time of the killing itself, sufficient
time had lapsed for them to desist from
their criminal plan had they wanted to.
Instead, they clung to their
determination and went ahead with their
nefarious plan. x x 47 (Emphasis
supplied)
From the time appellants left Murcia,
Negros Occidental, after they had
resolved to go to confront Jaime, to the
time they entered the Bocateja
residence in Bacolod City, ten hours had
elapsed sufficient for appellants to
dispassionately reflect on the
consequences of their actions and allow
for their conscience and better judgment
to overcome the resolution of their will
and desist from carrying out their evil
scheme, if only they had desired to
hearken to such warnings. In spite of
this, appellants evidently clung to their
determination to kill Jaime.
That evident premeditation was
established through the testimonies of
appellants and not by those of the
prosecution witnesses is of no moment.
While appellants could not have been
compelled to be witnesses against
themselves,48 they waived this right by
voluntarily taking the witness stand.
Consequently, they were subject to
cross-examination on matters covered
by their direct examination.49 Their
admissions before the trial court
constitute relevant and competent
evidence which the trial court correctly
appreciated against them. 50
Although he admitted stabbing Jaime,
appellant Flores sought to justify his
actions by claiming that he was impelled
by the need to prevent Jaime from
shooting his uncle, appellant Ventura.
This pretense does not impress.
To successfully claim that he acted in
defense of a relative, the accused must
prove the concurrence of the following
requisites: (1) unlawful aggression on
the part of the person killed or injured;
(2) reasonable necessity of the means
employed to prevent or repel the
unlawful aggression; and (3) the person
defending the relative had no part in
provoking the assailant, should any
provocation have been given by the
relative attacked.51 Of these, the
requisite of "unlawful aggression" is
primary and indispensable without which
defense of relative, whether complete or
otherwise, cannot be validly invoked.52
Not one of the foregoing requisites of
defense of a relative is present. From all
accounts, it was appellants who initiated
the unlawful aggression, and it was the
victim Jaime who acted in self defense.
Hence, neither the justifying
circumstance of defense of a relative 53
nor the special mitigating circumstance
of incomplete defense of a relative54
may be appreciated in appellant Flores'
favor.
While appellant Ventura did not directly
participate in the stabbing of Jaime, the
trial court correctly held both appellants
collectively liable for the attempt on the
latter's life since they were shown to
have acted in conspiracy with each
other.
There is a conspiracy when two or more
persons come to an agreement
concerning the commission of a felony
and decide to commit it.55 Where
conspiracy has been adequately proven,
as in these cases, all the conspirators
are liable as co-principals regardless of
the extent and character of their
participation because, in contemplation
of law, the act of one is the act of all.56
By stabbing Jaime Bocateja pursuant to
their pre-conceived plot, appellants
commenced the commission of murder
directly by overt acts. Despite their
efforts, however, they failed to inflict a
mortal wound on Jaime, hence, their
liability only for attempted murder.57
With respect to the death of Aileen, the
trial court found both appellants guilty of
murder qualified not by evident
premeditation but by taking advantage
of superior strength, 58 to wit:
The killing of Aileen Bocateja is qualified
by the aggravating circumstance of
abuse of superior strength. The
accused Arante Flores who delivered
the stabbing blow is big and strong,
standing about five feet and six (5'6")
inches tall. His weapon was a 14 inch
dagger. Aileen Bocateja [stood] only
about five (5'0") feet tall. The
disparity of their strength is
enormous.59 (Emphasis supplied)
To take advantage of superior strength
means to purposely use excessive force
out of proportion to the means of
defense available to the person
attacked.60 The appreciation of this
aggravating circumstance depends on
the age, size and strength of the parties,
and is considered whenever there is a
notorious inequality of forces between
the victim and the aggressor, assuming
a superiority of strength notoriously
advantageous to the aggressor, which is
selected or taken advantage of by him in
the commission of the crime.61
Appellants "agree with the trial court that
accused-appellant Arante Flores is taller,
and probably stronger than the victim
Aileen Bocateja because of their
difference in sex as well as the fact that
the accused appellant Flores was armed
at that time x x x."62 Nevertheless, they
argue that Aileen's death was not
attended by abuse of superior strength
since: (1) though ultimately
unsuccessful, she was able to put up a
defense against appellant Flores; and
(2) the prosecution failed to show that
appellant Flores deliberately took
advantage of the disparity in their size
and sex in order to facilitate the
commission of the crime.
Unlike in treachery, where the victim is
not given the opportunity to defend
himself or repel the aggression,63 taking
advantage of superior strength does not
mean that the victim was completely
defenseless. Abuse of superiority is
determined by the excess of the
aggressor's natural strength over that of
the victim, considering the momentary
position of both and the employment of
means weakening the defense,
64
although not annulling it. Hence, the
fact that Aileen attempted to fend off the
attack on her and her husband by
throwing nearby objects, such as an
electric cord, at appellant Flores does
not automatically negate the possibility
that the latter was able to take
advantage of his superior strength.
On the contrary, this Court in a very long
line of cases has consistently held that
an attack made by a man with a deadly
weapon upon an unarmed and
defenseless woman constitutes the
circumstance of abuse of that superiority
which his sex and the weapon used in
the act afforded him, and from which the
woman was unable to defend herself. 65
Thus, in People v. Molas,66 where the
accused was convicted of murder for
stabbing to death two women and an
eight year old boy, this Court
discoursed:
While treachery was not appreciated as
a qualifying circumstance against Molas,
the killing of the three victims was raised
to murder by the presence of the
qualifying circumstance of abuse of
superior strength. There was abuse of
superior strength when Molas
inflicted several mortal wounds upon
Soledad. Molas, besides being
younger and stronger, was armed
with a weapon which he used in
seriously wounding her. That
circumstance was also present when
he hacked eight-year old Abelaro and
also Dulcesima who, besides being a
woman of lesser strength was
unarmed.67 (Emphasis supplied)
And in the more recent case of People
v.Loreto,68 this Court opined:
The contention of accused-appellant is
barren of merit. Article 14, paragraph 15
of the Revised Penal Code provides that
a crime against persons is aggravated
by the accused taking advantage of
superior strength. There are no fixed
and invariable rules regarding abuse of
superior strength or employing means to
weaken the defense of the victim.
Superiority does not always mean
numerical superiority. Abuse of
superiority depends upon the relative
strength of the aggressor vis--vis the
victim. There is abuse of superior
strength even if there is only one
malefactor and one victim. Abuse of
superiority is determined by the excess
of the aggressor's natural strength over
that of the victim, considering the
position of both and the employment of
means to weaken the defense, although
not annulling it. The aggressor must
have advantage of his natural strength
to insure the commission of the crime. In
this case, accused-appellant was
armed with a knife and used the same
in repeatedly stabbing Leah, a young
wisp of a girl, no less than eighteen
times after overtaking her in the sala
of Dan's house. Irrefragably, then,
accused-appellant abused his
superior strength in stabbing Leah. In
a case of early vintage [People v.
Guzman, supra. at 1127], the Court held
that:
There is nothing to the argument that
the accused was erroneously convicted
of murder. An attack made by a man
with a deadly weapon upon an
unarmed and defenseless woman
constitutes the circumstance of
abuse of that superiority which his
sex and the weapon used in the act
afforded him, and from which the
woman was unable to defend herself
(U.S. vs. Camiloy, 36 Phil. 757; U.S. vs.
Consuelo, 13 Phil. 612; People vs.
Quesada, 62 Phil. 446). The
circumstance of abuse of superior
strength was, therefore, correctly
appreciated by the trial court, as
qualifying the offense as murder.69
(Emphasis supplied; citations omitted)
By deliberately employing a deadly
weapon against Aileen, appellant Flores
clearly took advantage of the superiority
which his strength, sex and weapon
gave him over his unarmed victim.
As for appellant Flores' claim of self-
defense, it cannot be sustained. As in
defense of a relative, one claiming self
defense must prove by clear and
convincing evidence70 both unlawful
aggression on the part of the person
killed or injured and reasonable
necessity of the means employed to
prevent or repel the unlawful
aggression. As a third requisite, he must
also prove lack of sufficient provocation
on his part.71 None of these requisites
was shown to be present. As expounded
by the trial court:
Arante declared that Aileen panicked
and screamed and was hitting him with
an extension cord so he stabbed her.
Arante was suggesting that had Ai[l]een
remained cool, composed and friendly,
she would not have died.
This perverted reasoning need not
detain the Court. There was an on-going
aggression being committed inside her
house and within the confines of her
room, hence, Aileen's actuations were
perfectly just and legitimate.72
As adverted to earlier, the trial court,
citing People v. Dueno,73 did not
consider evident premeditation as
having aggravated the killing of Aileen
since she was not the intended victim of
appellants' conspiracy. Upon further
scrutiny, however, this Court finds that
this aggravating circumstance should
have been appreciated in connection
with Aileen's murder. Jurisprudence is to
the effect that evident premeditation
may be considered as present, even if a
person other than the intended victim
was killed, if it is shown that the
conspirators were determined to kill not
only the intended victim but also anyone
who may help him put a violent
resistance.74
Here, it was established that upon
seeing her husband being attacked by
appellants, Aileen immediately called for
help and hurled objects at appellant
Flores. And it was because of this
passionate defense of her husband that
appellant Flores hacked at her face and
stabbed her four times. These factual
circumstances are analogous to those in
People v. Belga,75 where this Court had
occasion to state that:
While it would seem that the main target
of the malefactors were Alberto and
Arlene Rose, this does not negative the
presence of evident premeditation on
the physical assault on the person of
Raymundo Roque. We have
established jurisprudence to the
effect that evident premeditation may
be considered as present, even if a
person other than the intended victim
was killed (or wounded, as in this
case), if it is shown that the
conspirators were determined to kill
not only the intended victim but also
anyone who may help him put a
violent resistance. Here, Raymundo
Roque provided such violent
resistance against the conspirators,
giving the latter no choice but to
eliminate him from their path.76
(Emphasis and underscoring supplied,
citations omitted)
Thus, while appellants' original objective
may have only been the killing of Jaime,
the trial court correctly held both of them
responsible for the murder of Aileen. Co-
conspirators are liable for such other
crimes which could be foreseen and are
the natural and logical consequences of
the conspiracy.77 In Pring, et al. v. Court
of Appeals,78 this Court held:
While the acts done by the petitioners
herein vary from those of their co-
accused, there is no question that they
were all prompted and linked by a
common desire to assault and retaliate
against the group of Loreto Navarro.
Thus, they must share equal liability for
all the acts done by the participants in
such a felonious undertaking. While
petitioners herein, Rogelio Pring and
Alberto (Roberto) Roxas, on their part,
had ganged up Jesus Yumol who
belonged to the group of their
adversaries by hitting the latter with a
bench and a piece of wood, and that it
was a certain David Ravago who
stabbed the deceased Loreto Navarro,
nevertheless, it is a rule that
conspirators would necessarily be
liable also for the acts of the other
conspirators unless such acts differ
radically or substantially from that
which they intended to commit
(People vs. Enriquez, 58 Phil. 536;
People vs. Rosario, 68 Phil. 720).
The pronouncements made by this
Court in the aforecited case of People
vs. Enriquez, still serve as the governing
rule that should be applied to the case at
bar. In the said case, this Court stated:
"x x x x x x x x x
'We are of the opinion that this
contention is not tenable. The accused
had undoubtedly conspired to do grave
personal injury to the deceased, and
now that the injuries actually inflicted
have resulted in death, they cannot
escape from the legal effect of their acts
on the ground that one of the wounds
was inflicted in a different way from that
which had been intended. x x x x x x x x
x.
'As has been said by the Supreme Court
of the United States, 'If a number of
persons agree to commit, and enter
upon the commission of the crime which
will probably endanger human life such
as robbery, all of them are responsible
for the death of a person that ensues as
a consequence.' (Boyd vs. U.S., 142
U.S. 450; 35 Law. ed. 1077). In United
States vs. Patten, the court said:
'Conspirators who join in a criminal
attack on a defenseless man with
dangerous weapons, knock him down,
and when he tries to escape, pursue him
with increased numbers, and continue
the assault, are liable for manslaughter
when the victim is killed by a knife
wound inflicted by one of the them
during the beating, although in the
beginning they did not contemplate the
use of a knife.' (42 Appeals, D.C., 239)"
Although during the incident in question
the aggression committed by the
petitioners herein was directed against
the other members of the group of
Loreto Navarro and not on the
deceased, this would not relieve them
from the consequence of the acts jointly
done by another member of the
petitioners' group who stabbed the
deceased Loreto Navarro.79 (Emphasis
supplied, citations omitted)
And in the more recent case of People
v. Bisda, et al.,80 this Court held:
Each conspirator is responsible for
everything done by his confederates
which follows incidentally in the
execution of a common design as
one of its probable and natural
consequences even though it was
not intended as part of the original
design. Responsibility of a
conspirator is not confined to the
accomplishment of a particular
purpose of conspiracy but extends to
collateral acts and offenses incident
to and growing out of the purpose
intended. Conspirators are held to have
intended the consequences of their acts
and by purposely engaging in
conspiracy which necessarily and
directly produces a prohibited result,
they are, in contemplation of law,
chargeable with intending that result.
Conspirators are necessarily liable
for the acts of another conspirator
unless such act differs radically and
substantively from that which they
intended to commit. As Judge Learned
Hand put it in United States v.
Andolscheck, "when a conspirator
embarks upon a criminal venture of
indefinite outline, he takes his chances
as to its content and membership, so be
it that they fall within the common
purposes as he understands them."
(Emphasis supplied; citations omitted)
Indeed, since they deliberately planned
to attack Jaime in the sanctity of his
bedroom where his wife Aileen was also
sleeping, appellants cannot now claim
that the latter's violent resistance was an
unforeseen circumstance. Hence,
neither of them can escape
accountability for the tragic
consequences of their actions.
In determining appellants' criminal
liability, the trial court appreciated the
generic aggravating circumstances of
dwelling,81 nighttime82 and breaking of
door83 in connection with both crimes.
Dwelling is considered aggravating
because of the sanctity of privacy that
the law accords to human abode.84
Thus, it has been said that the
commission of the crime in another's
dwelling shows greater perversity in the
accused and produces greater alarm. 85
Here, dwelling was correctly appreciated
since the crimes were committed in the
place of abode of the victims who had
not given immediate provocation.86
Upon the other hand, as pointed out by
both appellants and the Solicitor
General, the breaking of a door was not
alleged in either of the two informations.
Thus, the same cannot be appreciated
against appellants. On this point, this
Court's discussion in People v.
Legaspi,87 quoted in the Solicitor
General's Brief, is instructive:
Nonetheless, it is to be noted that the
appreciation by the trial court of the
aggravating circumstances of dwelling
and nighttime, despite the non-allegation
thereof in the Information, resulted in the
imposition of the supreme penalty of
death upon accused-appellant. In
People v. Gallego (G.R. No. 130603,
338 SCRA 21, August 15, 2000), We
had occasion to rule thus:
"In People v. Albert (251 SCRA 136,
1995), we admonished courts to
proceed with more care where the
possible punishment is in its severest
form death because the execution of
such a sentence is irrevocable. Any
decision authorizing the State to take life
must be as error-free as possible, hence
it is the bounden duty of the Court to
exercise extreme caution in reviewing
the parties' evidence. Safeguards
designed to reduce to a minimum, if not
eliminate the grain of human fault ought
not to be ignored in a case involving the
imposition of capital punishment for an
erroneous conviction 'will leave a lasting
stain in our escutcheon of justice.' The
accused must thence be afforded
every opportunity to present his
defense on an aggravating
circumstance that would spell the
difference between life and death in
order for the Court to properly 'exercise
extreme caution in reviewing the parties'
evidence.' This, the accused can do
only if he is appraised of the
aggravating circumstance raising the
penalty imposable upon him to death.
Such aggravating circumstance must
be alleged in the information,
otherwise the Court cannot
appreciate it. The death sentence being
irrevocable, we cannot allow the
decision to take away life to hinge on the
inadvertence or keenness of the
accused in predicting what aggravating
circumstance will be appreciated against
him.
xxx
The principle above-enunciated is
applicable to the case at bar.
Consequently, we hold that due to their
non-allegation in the Information for rape
filed against accused-appellant, the
aggravating circumstances of nighttime
and dwelling cannot be considered in
raising the penalty imposable upon
accused-appellant from reclusion
perpetua to death.
xxx
It is to be noted carefully that the rule on
generic aggravating circumstances has
now been formalized in the Revised
Rules of Criminal procedure, which took
effect on December 1, 2000. Section 8
of Rule 110 now provides that:
Sec. 8. Designation of the offense.
The complaint or information shall
state the designation of the offense
given by the statute, aver the acts or
omissions constituting the offense, and
specify its qualifying and aggravating
circumstances. If there is no
designation of the offense, reference
shall be made to the section or
subsection of the statute punishing it.
Likewise, Section 9 of the same Rule
provides:
Sec. 9. Cause of the accusation. The
acts or omission complained of as
constituting the offense and the
qualifying and aggravating
circumstances must be stated in
ordinary and concise language and not
necessarily in the language used in the
statute but in terms sufficient to enable
a person of common understanding
to know what offense is being
charged as well as its qualifying and
aggravating circumstances and for the
court to pronounce
judgment.88(Emphasis supplied)
Appellants and the Solicitor General
also argue that nocturnity should not
have been considered since Jaime
himself testified that their bedroom was
well-lit and there was light coming from
the kitchen and the adjoining bedroom
of their children.89
In determining nocturnity, two tests are
employed in the alternative: (1) the
objective test, under which nighttime is
aggravating because the darkness
facilitated the commission of the
offense; and (2) the subjective test,
under which nighttime is aggravating
because the darkness was purposely
sought by the offender.90 Applying these
tests to the established factual
circumstances, this Court concludes that
nocturnity was correctly appreciated in
connection with both crimes.
While the bedroom where the crimes
occurred was well-lit, the evidence
shows that, in furtherance of their
murderous intent, appellants deliberately
took advantage of nighttime, as well as
the fact that the household members
were asleep, in order to gain entry into
the Bocateja residence. Indeed, their
own testimony indicates that while they
were already outside the Bocateja
house at around 11:00 p.m., they
purposely waited until 2:00 a.m. before
breaking into the residence so as not to
call the attention of the Bocatejas and/or
their neighbors. It is thus clear that
appellants deliberately took advantage
of the darkness of the night, not to
mention the fact that the Bocatejas were
fast asleep, to conceal their actions and
to facilitate and insure that their entry
into the victims' home would be
undetected.
No mitigating circumstances are present
to offset the foregoing aggravating
circumstances. While the trial Court
noted that appellants were apparently
motivated by their belief that Johanna
and Jaime were carrying on an illicit
relationship, to wit:
The accused presented evidence to
prove that Jaime Bocateja and Johanna
Ventura, wife of the accused Felix
Ventura, were maintaining an illicit
relationship. The evidence on this point
is principally hearsay the alleged
admissions made by Johanna of the
relationship. There is no doubt, however,
that the accused Ventura believes that
[his] wife and Jaime Bocateja are
clandestine lovers. It is fairly reasonable,
in the absence of any evidence to the
contrary, that it is Ventura's belief of this
illicit relationship which prompted him to
confront Jaime Bocateja,91
it nevertheless ruled out passion or
obfuscation92 or immediate vindication of
a grave offense93 as mitigating
circumstances.
While jealousy may give rise to passion
or obfuscation,94 for the appreciation of
this mitigating circumstance it is
necessary that the act which produced
the obfuscation was not far removed
from the commission of the crime by a
considerable length of time, during
which the perpetrator might recover his
normal equanimity.95 In the same vein,
while "immediate" vindication should be
construed as "proximate" vindication in
accordance with the controlling Spanish
text96 of the Revised Penal Code, still
this mitigating circumstance cannot be
considered where sufficient time
elapsed for the accused to regain his
composure.97
In these cases, appellant Ventura's
suspicions were aroused as early as
February 17, almost a week before the
stabbing incidents on February 23, when
he first confronted his wife about her
ring. Moreover, as previously noted, ten
hours had elapsed from the time
appellants left Murcia, Negros
Occidental, weapons in hand, to the
time they entered the Bocateja
residence in Bacolod City. Within that
period appellant Ventura had opportunity
to change his clothes at a relatives'
house in a neighboring barangay and
both appellants were able to take their
dinner at the Burgos Market in Bacolod
City. They even waited three hours
outside the Bocateja residence before
carrying out their plan. Without question,
sufficient time had passed for appellants'
emotions to cool and for them to recover
their equanimity.
In fine, for stabbing Jaime, appellants
are guilty beyond reasonable doubt of
attempted murder qualified by evident
premeditation with the aggravating
circumstances of dwelling and nighttime.
However, as pointed out by the Solicitor
General, the trial court erred in imposing
the sentence of Eight (8) Years of
prision mayor as minimum to Eighteen
(18) Years of reclusion temporal as
maximum.
Article 51 of the Revised Penal Code
provides that a penalty two degrees
lower than that prescribed for the
consummated penalty shall be imposed
upon the principals in an attempted
felony. Under Article 248 of the Revised
Penal Code, as amended by Republic
Act No. 7659, the penalty for murder is
reclusion perpetua to death. The penalty
two degrees lower is prision mayor.98
Applying Section 1 of Act No. 4103, 99 as
amended, otherwise known as the
Indeterminate Sentence Law, and
considering the presence of two
aggravating circumstances, the proper
imposable penalty falls within the range
of prision mayor in its maximum period
(from Ten (10) Years and One (1) Day to
Twelve (12) Years) as maximum and
prision correccional (from Six (6) Months
and One (1) Day to Six (6) Years) as
minimum. Accordingly, this Court hereby
sentences appellants to an
indeterminate penalty of Six (6) Years of
prision correccional as minimum to
Twelve (12) Years of prision mayor as
maximum.
For fatally stabbing Aileen, appellants
are guilty beyond reasonable doubt of
murder qualified by abuse of superior
strength with the aggravating
circumstances of evident premeditation,
dwelling and nighttime. As already
noted, the penalty for murder is
reclusion perpetua to death. Article 63 of
the Revised Penal Code provides that
when the law prescribes two indivisible
penalties, the greater penalty shall be
imposed when, in the commission of the
deed, one aggravating circumstance is
present. Consequently, the trial court's
imposition of the supreme penalty of
death must be sustained.
Three members of the Court maintain
their adherence to the separate opinions
expressed in People vs. Echegaray100
that Republic Act No. 7659, insofar as it
prescribes the penalty of death, is
unconstitutional; nevertheless they
submit to the ruling of the majority that
the law is constitutional and that the
death penalty should accordingly be
imposed.
As regards the civil liability of the
appellants, the award of the trial court is
hereby modified as follows:
In Criminal Case No. 00-20692, the
award of P50,000.00 to the heirs of
Aileen as civil indemnity for her death is
sustained, the commission of the crime
by appellants having been duly
proven.101 The award of moral damages
to her heirs is likewise proper
considering that the prosecution
presented adequate proof that they
suffered mental anguish and wounded
feelings.102 However, the amount of
moral damages awarded by the trial
court is hereby reduced from
P100,000.00 to P50,000.00 in line with
current jurisprudence.103 It should be
borne in mind that the purpose for such
award is to compensate the heirs of the
victim for the injuries to their feelings
and not to enrich them.104
The award of exemplary damages
should be increased from P20,000.00 to
P25,000.00. Such award is proper in
view of the presence of aggravating
circumstances.105 Furthermore,
considering that counsel for appellants
admitted that the heirs of Aileen incurred
funeral expenses of P100,000.00 106 and
such admission has not been shown to
have been made through palpable
mistake, the same should be awarded
as actual damages.107
In Criminal Case No. 00-20692, the trial
court did not grant Jaime's claim for
P20,000.00 in actual damages for
hospitalization expenses since he failed
to present any receipts to substantiate
the same. Nonetheless, in light of the
fact that Jaime was actually hospitalized
and operated upon, this Court deems it
prudent to award P20,000.00 as
temperate damages.108 Moreover, Jaime
is also entitled to moral damages in
accordance with Article 2219, paragraph
2 of the Civil Code, which this Court
hereby awards in the amount of
P25,000.00.109 Finally, exemplary
damages of P25,000.00 are also in
order considering that the crime was
attended by two aggravating
circumstances.110
WHEREFORE, the judgment in Criminal
Case No. 00-20693 is hereby
AFFIRMED with MODIFICATION.
Appellants Felix Ventura and Arante discretion, of her power to pardon
Flores are found GUILTY beyond appellants Felix Ventura and Arante
reasonable doubt of the crime of Flores.
attempted murder qualified by evident SO ORDERED.
premeditation with the aggravating
circumstances of dwelling and nighttime
and are hereby sentenced to an
indeterminate penalty of Six (6) Years of
Prision Correccional as minimum to
Twelve (12) Years of Prision Mayor as
maximum.
Appellants are solidarily ORDERED to
pay the victim, Jaime Bocateja, the
amounts of: (a) Twenty Thousand Pesos
(P20,000.00) as temperate damages;
(b) Twenty Five Thousand Pesos
(P25,000.00) as moral damages; and (c)
Twenty Five Thousand Pesos
(P25,000.00) as exemplary damages.
The judgment in Criminal Case No. 00-
20692 is likewise AFFIRMED with
MODIFICATION. Appellants Felix
Ventura and Arante Flores are found
GUILTY beyond reasonable doubt of
murder qualified by abuse of superior
strength with the aggravating
circumstances of evident premeditation,
dwelling and nighttime and are
SENTENCED to the supreme penalty of
DEATH.
Appellants are solidarily ORDERED to
pay the heirs of Aileen Bocateja the
amounts of: (a) Fifty Thousand Pesos
(P50,000.00) as civil indemnity; (b) One
Hundred Thousand Pesos
(P100,000.00) as actual damages; (c)
Fifty Thousand Pesos (P50,000.00) as
moral damages; and (d) Twenty Five
Thousand Pesos (P25,000.00) as
exemplary damages.
Upon the finality of this Decision, and
pursuant to Art. 83 of the Revised Penal
Code, as amended by Sec. 25 of R.A.
No. 7659, let the records of the cases be
immediately forwarded to the President
of the Philippines for the exercise, at her