Republic of the Philippines presentment, which check when presented for payment within

SUPREME COURT ninety (90) days from the date hereof, was subsequently
Manila dishonored by the drawee bank for "Account Closed" and
despite receipt of notice of such dishonor, said accused failed
SECOND DIVISION to pay said Manila Doctors Hospital the amount of the check or
to make arrangement for full payment of the same within five
G.R. No. 149275 September 27, 2004 (5) banking days after receiving said notice.

VICKY C. TY, petitioner, Contrary to law.3

vs.
PEOPLE OF THE PHILIPPINES, respondent. The other Informations are similarly worded except for the number of
the checks and dates of issue. The data are hereunder itemized as
DECISION follows:

TINGA, J.: Criminal Case Check

Postdated Amount
No. No.
Petitioner Vicky C. Ty ("Ty") filed the instant Petition for Review under 93-130459 487710 30 March 1993 ₱30,000.00
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 93-130460 487711 30 April 1993 ₱30,000.00
2001. The Decisionaffirmed with modification the judgment of the 93-130461 487709 01 March 1993 ₱30,000.00
Regional Trial Court (RTC) of Manila, Branch 19, dated 21 April 1997,
finding her guilty of seven (7) counts of violation of Batas 30 December
93-130462 487707 ₱30,000.00
Pambansa Blg. 222 (B.P. 22), otherwise known as the Bouncing 1992
Checks Law. 30 November
93-130463 487706 ₱30,000.00
1992
This case stemmed from the filing of seven (7) Informations for 93-130464 487708 30 January 1993 ₱30,000.00
violation of B.P. 22 against Ty before the RTC of Manila.
The Informations were docketed as Criminal Cases No. 93-130459 to 93-130465 487712 30 May 1993 ₱30,000.004
No. 93-130465. The accusatory portion of the Information in Criminal
Case No. 93-130465 reads as follows: The cases were consolidated and jointly tried. At her arraignment, Ty
pleaded not guilty.5
That on or about May 30, 1993, in the City of Manila,
Philippines, the said accused did then and there willfully, The evidence for the prosecution shows that Ty’s mother Chua Lao
unlawfully and feloniously make or draw and issue to Manila So Un was confined at the Manila Doctors’ Hospital (hospital) from 30
Doctors’ Hospital to apply on account or for value to Editha L. October 1990 until 4 June 1992. Being the patient’s daughter, Ty
Vecino Check No. Metrobank 487712 dated May 30, 1993 signed the "Acknowledgment of Responsibility for Payment" in the
payable to Manila Doctors Hospital in the amount of Contract of Admission dated 30 October 1990.6 As of 4 June 1992,
₱30,000.00, said accused well knowing that at the time of the Statement of Account7 shows the total liability of the mother in the
issue she did not have sufficient funds in or credit with the amount of ₱657,182.40. Ty’s sister, Judy Chua, was also confined at
drawee bank for payment of such check in full upon its the hospital from 13 May 1991 until 2 May 1992, incurring hospital
bills in the amount of ₱418,410.55.8 The total hospital bills of the two
patients amounted to ₱1,075,592.95. 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 ₱30,000.00, were all
deposited on their due dates. But they were all dishonored by the
drawee bank and returned unpaid to the hospital due to insufficiency
of funds, with the "Account Closed" advice. Soon thereafter, the
complainant hospital sent demand letters to Ty by registered mail. As
the demand letters were not heeded, complainant filed the seven
(7) Informations subject of the instant case.10
For her defense, Ty claimed that she issued the checks because of
"an uncontrollable fear of a greater injury." She averred that she was
forced to issue the checks to obtain release for her mother whom the
hospital inhumanely and harshly treated and would not discharge
unless the hospital bills are paid. She alleged that her mother was
deprived of room facilities, such as the air-condition unit, refrigerator
and television set, and subject to inconveniences such as the cutting
off of the telephone line, late delivery of her mother’s food and refusal
to change the latter’s gown and bedsheets. She also bewailed the
hospital’s suspending medical treatment of her mother. The "debasing
treatment," she pointed out, so affected her mother’s mental,
psychological and physical health that the latter contemplated suicide
if she would not be discharged from the hospital. Fearing the worst for
her mother, and to comply with the demands of the hospital, Ty was
compelled to sign a promissory note, open an account with Metrobank
and issue the checks to effect her mother’s immediate discharge.11
Giving full faith and credence to the evidence offered by the
prosecution, the trial court found that Ty issued the checks subject of
the case in payment of the hospital bills of her mother and rejected
the theory of the defense.12Thus, 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 (₱60,000.00) equivalent to double the amount of the
check, in each case."15
In its assailed Decision, the Court of Appeals rejected Ty’s defenses
of involuntariness in the issuance of the checks and the hospital’s
knowledge of her checking account’s lack of funds. It held that B.P. 22
makes the mere act of issuing a worthless check punishable as a
special offense, it being a malum prohibitum. What the law punishes
is the issuance of a bouncing check and not the purpose for which it
was issued nor the terms and conditions relating to its issuance.16
Neither was the Court of Appeals convinced that there was no
valuable consideration for the issuance of the checks as they were
issued in payment of the hospital bills of Ty’s mother.17
In sentencing Ty to pay a fine instead of a prison term, the appellate
court applied the case of Vaca v. Court of Appeals18 wherein this Court
declared that in determining the penalty imposed for violation of B.P.
22, the philosophy underlying the Indeterminate Sentence Law should
be observed, i.e., redeeming valuable human material and preventing
unnecessary deprivation of personal liberty and economic usefulness,
with due regard to the protection of the social order.19
Petitioner now comes to this Court basically alleging the same issues
raised before the Court of Appeals. More specifically, she ascribed
errors to the appellate court based on the following grounds:
A. THERE IS CLEAR AND CONVINCING EVIDENCE THAT
PETITIONER WAS FORCED TO OR COMPELLED IN THE
OPENING OF THE ACCOUNT AND THE ISSUANCE OF THE
SUBJECT CHECKS.
B. THE CHECKS WERE ISSUED UNDER THE IMPULSE OF
AN UNCONTROLLABLE FEAR OF A GREATER INJURY OR
IN AVOIDANCE OF A GREATER EVIL OR INJURY.
C. THE EVIDENCE ON RECORD PATENTLY
SHOW[S] ABSENCE OF VALUABLE CONSIDERATION IN
THE ISSUANCE OF THE SUBJECT CHECKS.
D. IT IS AN UNDISPUTED FACT THAT THE PAYEE OF THE
CHECKS WAS FULLY AWARE OF THE LACK OF FUNDS IN
THE ACCOUNT.
E. THE HONORABLE COURT OF APPEALS, AS WELL AS
THE HONORABLE TRIAL COURT [,] SHOULD NOT HAVE
APPLIED CRIMINAL LAW MECHANICALLY, WITHOUT DUE
REGARD TO THE PRINCIPLES OF JUSTICE AND EQUITY.
In its Memorandum,20 the Office of the Solicitor General (OSG), citing
jurisprudence, contends that a check issued as an evidence of debt,
though not intended to be presented for payment, has the same effect
as an ordinary check; hence, it falls within the ambit of B.P. 22. And
when a check is presented for payment, the drawee bank will
generally accept the same, regardless of whether it was issued in
payment of an obligation or merely to guarantee said obligation. What
the law punishes is the issuance of a bouncing check, not the purpose
for which it was issued nor the terms and conditions relating to its
issuance. The mere act of issuing a worthless check is malum
prohibitum.21
We find the petition to be without merit and accordingly sustain Ty’s
conviction.
Well-settled is the rule that the factual findings and conclusions of the
trial court and the Court of Appeals are entitled to great weight and
respect, and will not be disturbed on appeal in the absence of any
clear showing that the trial court overlooked certain facts or
circumstances which would substantially affect the disposition of the
case.22Jurisdiction of this Court over cases elevated from the Court of
Appeals is limited to reviewing or revising errors of law ascribed to the
Court of Appeals whose factual findings are conclusive, and carry
even more weight when said court affirms the findings of the trial
court, absent any showing that the findings are totally devoid of
support in the record or that they are so glaringly erroneous as to
constitute serious abuse of discretion.23
In the instant case, the Court discerns no compelling reason to
reverse the factual findings arrived at by the trial court and affirmed by
the Court of Appeals.
Ty does not deny having issued the seven (7) checks subject of this
case. She, however, claims that the issuance of the checks was under
the impulse of an uncontrollable fear of a greater injury or in
avoidance of a greater evil or injury. She would also have the Court
believe that there was no valuable consideration in the issuance of the
checks.
However, except for the defense’s claim of uncontrollable fear of a
greater injury or avoidance of a greater evil or injury, all the grounds
raised involve factual issues which are best determined by the trial
court. And, as previously intimated, the trial court had in fact discarded
the theory of the defense and rendered judgment accordingly.
Moreover, these arguments are a mere rehash of arguments
unsuccessfully raised before the trial court and the Court of Appeals.
They likewise put to issue factual questions already passed upon
twice below, rather than questions of law appropriate for review under
a Rule 45 petition.
The only question of law raised--whether the defense of
uncontrollable fear is tenable to warrant her exemption from criminal
liability--has to be resolved in the negative. For this exempting
circumstance to be invoked successfully, the following requisites must
concur: (1) existence of an uncontrollable fear; (2) the fear must be
real and imminent; and (3) the fear of an injury is greater than or at
least equal to that committed.24
It must appear that the threat that caused the uncontrollable fear is of
such gravity and imminence that the ordinary man would have
succumbed to it.25 It should be based on a real, imminent or
reasonable fear for one’s life or limb.26 A mere threat of a future injury
is not enough. It should not be speculative, fanciful, or remote.27 A
person invoking uncontrollable fear must show therefore that the
compulsion was such that it reduced him to a mere instrument acting
not only without will but against his will as well.28 It must be of such
character as to leave no opportunity to the accused for escape.29
In this case, far from it, the fear, if any, harbored by Ty was not real
and imminent. Ty claims that she was compelled to issue the checks--
a condition the hospital allegedly demanded of her before her mother
could be discharged--for fear that her mother’s health might
deteriorate further due to the inhumane treatment of the hospital or
worse, her mother might commit suicide. This is speculative fear; it is
not the uncontrollable fear contemplated by law.
To begin with, there was no showing that the mother’s illness was so
life-threatening such that her continued stay in the hospital suffering
all its alleged unethical treatment would induce a well-grounded
apprehension of her death. Secondly, it is not the law’s intent to say
that any fear exempts one from criminal liability much less petitioner’s
flimsy fear that her mother might commit suicide. In other words, the
fear she invokes was not impending or insuperable as to deprive her
of all volition and to make her a mere instrument without will, moved
exclusively by the hospital’s threats or demands.
Ty has also failed to convince the Court that she was left with no
choice but to commit a crime. She did not take advantage of the many
opportunities available to her to avoid committing one. By her very
own words, she admitted that the collateral or security the hospital
required prior to the discharge of her mother may be in the form of
postdated checks or jewelry.30 And if indeed she was coerced to open
an account with the bank and issue the checks, she had all the
opportunity to leave the scene to avoid involvement.
Moreover, petitioner had sufficient knowledge that the issuance of
checks without funds may result in a violation of B.P. 22. She even
testified that her counsel advised her not to open a current account
nor issue postdated checks "because the moment I will not have
funds it will be a big problem."31 Besides, apart from petitioner’s bare
assertion, the record is bereft of any evidence to corroborate and
bolster her claim that she was compelled or coerced to cooperate with
and give in to the hospital’s demands.
Ty likewise suggests in the prefatory statement of
her Petition and Memorandum that the justifying circumstance of state
of necessity under par. 4, Art. 11 of the Revised Penal Code may find
application in this case.
We do not agree. The law prescribes the presence of three requisites
to exempt the actor from liability under this paragraph: (1) that the evil
sought to be avoided actually exists; (2) that the injury feared be
greater than the one done to avoid it; (3) that there be no other
practical and less harmful means of preventing it.32
In the instant case, the evil sought to be avoided is merely expected
or anticipated. If the evil sought to be avoided is merely expected or
anticipated or may happen in the future, this defense is not
applicable.33 Ty could have taken advantage of an available option to
avoid committing a crime. By her own admission, she had the choice
to give jewelry or other forms of security instead of postdated checks
to secure her obligation.
Moreover, for the defense of state of necessity to be availing, the
greater injury feared should not have been brought about by the
negligence or imprudence, more so, the willful inaction of the
actor.34 In this case, the issuance of the bounced checks was brought
about by Ty’s own failure to pay her mother’s hospital bills.
The Court also thinks it rather odd that Ty has chosen the exempting
circumstance of uncontrollable fear and the justifying circumstance of
state of necessity to absolve her of liability. It would not have been
half as bizarre had Ty been able to prove that the issuance of the
bounced checks was done without her full volition. Under the
circumstances, however, it is quite clear that neither uncontrollable
fear nor avoidance of a greater evil or injury prompted the issuance of
the bounced checks.
Parenthetically, the findings of fact in the Decision of the trial court in
the Civil Case35 for damages filed by Ty’s mother against the hospital
is wholly irrelevant for purposes of disposing the case at bench. While
the findings therein may establish a claim for damages which, we may
add, need only be supported by a preponderance of evidence, it does
not necessarily engender reasonable doubt as to free Ty from liability.
As to the issue of consideration, it is presumed, upon issuance of the
checks, in the absence of evidence to the contrary, that the same was
issued for valuable consideration.36 Section 2437 of the Negotiable
Instruments Law creates a presumption that every party to an
instrument acquired the same for a consideration38 or for value.39 In
alleging otherwise, Ty has the onus to prove that the checks were
issued without consideration. She must present convincing evidence
to overthrow the presumption.
A scrutiny of the records reveals that petitioner failed to discharge her
burden of proof. "Valuable consideration may in general terms, be
said to consist either in some right, interest, profit, or benefit accruing
to the party who makes the contract, or some forbearance, detriment,
loss or some responsibility, to act, or labor, or service given, suffered
or undertaken by the other aide. Simply defined, valuable
consideration means an obligation to give, to do, or not to do in favor
of the party who makes the contract, such as the maker or indorser."40
In this case, Ty’s mother and sister availed of the services and the
facilities of the hospital. For the care given to her kin, Ty had a
legitimate obligation to pay the hospital by virtue of her relationship
with them and by force of her signature on her mother’s Contract of
Admission acknowledging responsibility for payment, and on the
promissory note she executed in favor of the hospital.
Anent Ty’s claim that the obligation to pay the hospital bills was not
her personal obligation because she was not the patient, and
therefore there was no consideration for the checks, the case
of Bridges v. Vann, et al.41 tells us that "it is no defense to an action on
a promissory note for the maker to say that there was no
consideration which was beneficial to him personally; it is sufficient if
the consideration was a benefit conferred upon a third person, or a
detriment suffered by the promisee, at the instance of the promissor. It
is enough if the obligee foregoes some right or privilege or suffers
some detriment and the release and extinguishment of the original
obligation of George Vann, Sr., for that of appellants meets the
requirement. Appellee accepted one debtor in place of another and
gave up a valid, subsisting obligation for the note executed by the
appellants. This, of itself, is sufficient consideration for the new notes."
At any rate, the law punishes the mere act of issuing a bouncing
check, not the purpose for which it was issued nor the terms and
conditions relating to its issuance.42 B.P. 22 does not make any
distinction as to whether the checks within its contemplation are
issued in payment of an obligation or to merely guarantee the
obligation.43 The thrust of the law is to prohibit the making of worthless
checks and putting them into circulation.44 As this Court held in Lim v.
People of the Philippines,45 "what is primordial is that such issued
checks were worthless and the fact of its worthlessness is known to
the appellant at the time of their issuance, a required element under
B.P. Blg. 22."
The law itself creates a prima facie presumption of knowledge of
insufficiency of funds. Section 2 of B.P. 22 provides:
Section 2. Evidence of knowledge of insufficient funds. - The
making, drawing and issuance of a check payment of which is
refused by the drawee bank because of insufficient funds in or
credit with such bank, when presented within ninety (90) days
from the date of the check, shall be prima facie evidence of
knowledge of such insufficiency of funds or credit unless such
maker or drawer pays the holder thereof the amount due
thereon, or makes arrangements for payment in full by the
drawee of such check within five (5) banking days after
receiving notice that such check has not been paid by the
drawee.
Such knowledge is legally presumed from the dishonor of the checks
for insufficiency of funds.46 If not rebutted, it suffices to sustain a
conviction.47
Petitioner likewise opines that the payee was aware of the fact that
she did not have sufficient funds with the drawee bank and such
knowledge necessarily exonerates her liability.
The knowledge of the payee of the insufficiency or lack of funds of the
drawer with the drawee bank is immaterial as deceit is not an
essential element of an offense penalized by B.P. 22. The gravamen
of the offense is the issuance of a bad check, hence, malice and
intent in the issuance thereof is inconsequential.48
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.
Petitioner’s 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
operandiwhereby the supplier was able to sell or lease the goods
while privately financing those in desperate need so they may be
accommodated. The maker of the check thus became an unwilling
victim of a lease agreement under the guise of a lease-purchase
agreement. The maker did not benefit at all from the deposit, since the
checks were used as collateral for an accommodation and not to
cover the receipt of an actual account or credit for value.
In the case at bar, the checks were issued to cover the receipt of an
actual "account or for value." Substantial evidence, as found by the
trial court and Court of Appeals, has established that the checks were
issued in payment of the hospital bills of Ty’s mother.
Finally, we agree with the Court of Appeals in deleting the penalty of
imprisonment, absent any proof that petitioner was not a first-time
offender nor that she acted in bad faith. Administrative Circular 12-
2000,50 adopting the rulings in Vaca v. Court of Appeals51 and Lim v.
People,52 authorizes the non-imposition of the penalty of imprisonment
in B.P. 22 cases subject to certain conditions. However, the Court
resolves to modify the penalty in view of Administrative Circular 13-
200153 which clarified Administrative 12-2000. It is stated therein:
The clear tenor and intention of Administrative Circular No. 12-
2000 is not to remove imprisonment as an alternative penalty,
but to lay down a rule of preference in the application of the
penalties provided for in B.P. Blg. 22.
Thus, Administrative Circular 12-2000 establishes a rule of
preference in the application of the penal provisions of B.P.
Blg. 22 such that where the circumstances of both the offense
and the offender clearly indicate good faith or a clear mistake
of fact without taint of negligence, the imposition of a fine
alone should be considered as the more appropriate penalty.
Needless to say, the determination of whether circumstances
warrant the imposition of a fine alone rests solely upon the
Judge. Should the judge decide that imprisonment is the more
appropriate penalty, Administrative Circular No. 12-2000 ought
not be deemed a hindrance.
It is therefore understood that: (1) Administrative Circular 12-
2000 does not remove imprisonment as an alternative penalty
for violations of B.P. 22; (2) the judges concerned may, in the
exercise of sound discretion, and taking into consideration the
peculiar circumstances of each case, determine whether the
imposition of a fine alone would best serve the interests of
justice, or whether forbearing to impose imprisonment would
depreciate the seriousness of the offense, work violence on
the social order, or otherwise be contrary to the imperatives of
justice; (3) should only a fine be imposed and the accused
unable to pay the fine, there is no legal obstacle to the
application of the Revised Penal Code provisions on
subsidiary imprisonment.54
WHEREFORE, the instant Petition is DENIED and the
assailed Decision of the Court of Appeals, dated 31 July 2001, finding
petitioner Vicky C. Ty GUILTY of violating Batas Pambansa Bilang 22
is AFFIRMED with MODIFICATIONS. Petitioner Vicky C. Ty
is ORDERED to pay a FINE equivalent to double the amount of each
dishonored check subject of the seven cases at bar with subsidiary
imprisonment in case of insolvency in accordance with Article 39 of
the Revised Penal Code. She is also ordered to pay private
complainant, Manila Doctors’ Hospital, the amount of Two Hundred
Ten Thousand Pesos (₱210,000.00) representing the total amount of
the dishonored checks. Costs against the petitioner.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 178145 July 7, 2014
REYNALDO S. MARIANO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
RESOLUTION
BERSAMIN, J.:
The courts of law are hereby reminded once again to exercise care in the
determination of the proper penalty imposable upon the offenders whom
they find and declare to be guilty of the offenses charged or proved. Their
correct determination is the essence of due process of law. The Office of
the Provincial Prosecutor of Bulacan charged the petitioner with
frustrated murder for hitting and bumping Ferdinand de Leon while
overtaking the latter's jeep in the information filed in the Regional Trial
Court, Branch 81, in Malolos, Bulacan (RTC), viz:
That on or about the 12th day of September, 1999, in the municipality of
Angat, Province of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused did then and there wilfully,
unlawfully and feloniously, with the use of the motor vehicle he was then
driving, with evident premeditation, treachery and abuse of superior
strength, hit, bump and run over with the said motor vehicle one
Ferdinand de Leon, thereby inflicting upon him serious physical injuries
which ordinarily would have causedthe death of the said Ferdinand de
Leon, thus performing all the acts of execution which should have
produced the crime of murder asa consequence, but nevertheless did not
produce it by reason of causes independent of his will, that is, by the
timely and able medical assistance rendered to said Ferdinand de Leon.
Contrary to law.1
The CA summarized the antecedent events as follows:
At about 6:30 in the evening of September 12, 1999, Ferdinand de Leon
was driving his owner type jeep along Barangay Engkanto, Angat,
Bulacan. With him were his wife, Urbanita, and their two-year old son, as
they just came from a baptismal party. Luis de Leon, an uncle of
Ferdinand, also came from the baptismal party and was driving his owner
type jeep. Accused-appellant Reynaldo Mariano was driving his red
Toyota pick-up with his wife, Rebecca, and their helper, Rowena Años, as
passengers. They had just attendeda worship service in Barangay
Engkanto.
The Toyota pick-up overtook the jeep of Ferdinand de Leon and almost
bumped it. Ferdinand got mad, overtook the pick-up and blocked its path.
Reynaldo Mariano stopped the pick-up behind the jeep. Ferdinand
alighted from his jeep and approached Reynaldo. Ferdinand claimed that
he and Reynaldo had an altercation. However, Reynaldo insisted that he
just stayed inside the pick-up and kept quiet while Ferdinand hurled
invectives at him. Urbanita tried to pacify Ferdinand and sought the
assistance of Luis de Leon. Luis intervened and told Ferdinand and
Reynaldo "magpasensiyahan na lamang kayo at pagpasensiyahan mo si
Ferdinand." Ferdinand and Reynaldo heeded the advice of Luis and they
went their separate ways.
Instead of proceeding to his house in Norzagaray, Ferdinand decided to
drop by his mother’s house in San Roque, Angat to pick up some items.
He parked his jeep in front of the house of his mother and alighted
therefrom. However, hewas bumped by a moving vehicle, thrown four (4)
meters away and lostconsciousness. Urbanita shouted, "Mommy,
Mommy, nasagasaan si Ferdie." She identified the fast moving vehicle
that bumped Ferdinand as the same red Toyota pick-up driven by
Reynaldo.
On the other hand, Reynaldo and his wife, Rebecca, tried to show that
the jeep of Ferdinand stopped on the road in front of the house of the
latter’s mother about five (5) to six (6) meters away from their pick-up.
Reynaldo stopped the pick-up as he saw an oncoming vehicle, which he
allowed to pass. Thereafter, Reynaldo made a signal and overtook the
jeep of Ferdinand. However, Ferdinand suddenly alighted from his jeep,
lost his balance and was sideswipedby the overtaking pick-up. Reynaldo
did not stop his pick-up and he proceeded on his way for fear that the
bystanders might harm him and his companions. After bringing his
companions to their house in Marungko, Angat, Bulacan, Reynaldo
proceeded to Camp Alejo S. Santos in Malolos, Bulacan to surrender and
report the incident.
Ferdinand was brought to the Sto. Niño Hospital in Bustos, Bulacan,
where he stayed for two and a half days and incurred medical expenses
amounting to ₱17,800.00 OnSeptember 15, 1999, Ferdinand was
transferred to St. Luke’s Medical Center in Quezon City, where he stayed
until September 25, 1999 and incurred medical expenses amounting to
₱66,243.25. He likewise spent ₱909.50 for medicines, ₱2,900.00 for
scanning, ₱8,000.00 for doctor’s fee and ₱12,550.00 for the services of
his caregivers and masseur from September 12 to October 31, 1999.
Ferdinand suffered multiple facial injuries, a fracture of the inferior part of
the right orbital wall and subdural hemorrhage secondary to severe head
trauma, as evidenced by the certification issued by Dr. Hernando L. Cruz,
Jr. of St. Luke’s Medical Center. Urbanita, received the amount of
₱50,000.00 from Reynaldo Mariano by way of financial assistance, as
evidenced by a receipt dated September 15, 1999. 2
Under its decision rendered on May 26, 2003 after trial, however, the
RTC convicted the petitioner of frustrated homicide, to wit:
3
WHEREFORE, the foregoing considered, this Court hereby finds the
accused Reynaldo Mariano GUILTYfor the lesser offense of Frustrated
Homicide under Article 249 of the Revised Penal Code in relation to
Article 50 thereof and is hereby sentenced to suffer the indeterminate
penalty of three (3) years and four (4) months of Prision Correccional as
minimum to six (6) years and one (1) day of Prision Mayor as maximum
and is hereby directed to pay the complainant, Ferdinand de Leon, the
amount of ₱196,043.25 less ₱50,000.00 (already given) as actual
damages, ₱100,000.00 as moral damages, and the costs of the suit.
SO ORDERED. 4
On appeal, the CA promulgated itsassailed decision on June 29,
2006, modifying the felony committed by the petitioner from frustrated
5
homicide to reckless imprudence resulting in serious physical injuries,
ruling thusly:
WHEREFORE, the Decision appealed from is MODIFIEDand accused-
appellant Reynaldo Mariano is found guilty of the crime of reckless
imprudence resulting in serious physical injuries and is sentenced to
suffer the indeterminate penalty oftwo (2) months and one (1) day of
arresto mayor, as minimum, to one (1) year, seven (7) months and eleven
(11) days of prision correccional, as maximum, and to indemnify
Ferdinand de Leon in the amount of ₱58,402.75 as actual damages and
₱10,000.00 as moral damages.
SO ORDERED. 6
In this appeal, the petitioner arguesthat his guilt for any crime was not
proved beyond reasonable doubt, and claims that Ferdinand’s injuries
were the result of a mere accident. He insists that he lacked criminal
intent; that he was not negligent in driving his pick-up truck; and that the
CA should have appreciated voluntary surrender asa mitigating
circumstance in his favor.
Ruling
We affirm the conviction of the petitioner for reckless imprudence
resulting in serious physical injuries.
The following findings by the CA compel us to affirm, to wit:
Reynaldo tried to show that he stopped his pick-up five (5) to six (6)
meters behind the jeep of Ferdinand, as he allowed an oncoming vehicle
to pass. Thereafter, he overtook the jeep of Ferdinand. However, the fact
that Ferdinand’s body was thrown four (4) meters away from his jeep
showed that Reynaldo was driving his pick-up at a fast speed when he
overtook the jeep of Ferdinand. It is worthy to note that Reynaldo
admitted that he has known Ferdinand and the latter’s family since 1980
because they have a store where he used to buy things. As aptly
observed by the OSG, Reynaldo should have foreseen the possibilitythat
Ferdinand would alight from his jeep and go inside the house of his
mother where the store is also located.
xxxx
As aptly observed by the court a quo, only a vehicle that is moving
beyond the normal rate of speed and within the control of the driver’s
hands could have caused Ferdinand’s injuries. The very fact of speeding
is indicative of imprudent behavior, as a motorist must exercise ordinary
care and drive at a reasonable rate of speed commensurate with the
conditions encountered, which will enable him or her to keep the vehicle
under control and avoid injury to others using the highway. As held in
People v. Garcia:
"A man must use common sense, and exercise due reflection in all his
acts; it is his duty to be cautious, careful, and prudent, if not frominstinct,
then through fear of incurring punishment. He is responsible for such
results as anyone might foresee and for acts which no one would have
performed except through culpable abandon. Otherwise his own person,
rights and property, all those of his fellow-beings, would ever be exposed
to all manner of danger and injury."
Thus, had Reynaldo not driven his pick-up at a fast speed in overtaking
the jeep of Ferdinand, he could have easily stopped his pick-up or
swerved farther to the left side of the road, as there was no oncoming
vehicle, when he saw that Ferdinand alighted from his jeep and lost his
balance, in order to avoid hitting the latter or, at least, minimizing his
injuries.
7
The findings by the CA are controlling on the Court. Indeed, the findings
of both lower courts on the circumstances that had led to the injuries of
Ferdinand fully converged except for the RTC’s conclusion that malicious
intent had attended the commission of the offense. Such findings cannot
be disturbed by the Court in this appellate review, for it is a well-settled
rule that the findings of the trial court, especially when affirmed by the
CA, are binding and conclusive upon the Court. 8
"Reckless imprudence consists involuntary, but without malice, doing or
failing to do an act from which material damage results by reason of
inexcusable lack of precaution on the part of the person performing of
failing to perform such act, taking intoconsideration his employment or
occupation, degree of intelligence, physical condition and other
circumstances regarding persons, time and place." To constitute the
9 correct penalty on the offender is the essence ofdue process of law.
offense of reckless driving, the act must be something more than a mere
negligence in the operation of the motor vehicle, but a willful and wanton
disregard of the consequences is required. The Prosecution must further
10
show the direct causal connection between the negligence and the
injuries or damages complained of. In Manzanares v. People, the 11
petitioner was found guilty of reckless imprudence resulting in multiple
homicide and serious physical injuries because of the finding that hehad
driven the Isuzu truck very fast before it smashed into a jeepney. In
Pangonorom v. People, a public utility driver driving his vehicle very fast
12
was held criminally negligent because he had not slowed down to avoid
hitting a swerving car. In the absence of any cogent reasons, therefore,
the Court bows to the CA’s observations that the petitioner had driven his
pick-up truck at a fast speed in order to overtake the jeep of Ferdinand,
and in so attempting to overtake unavoidably hit Ferdinand, causing the
latter’s injuries.
Contrary to the petitioner’s insistence, the mitigating circumstance of
voluntary surrender cannot be appreciated in his favor. Paragraph 5 of
Article 365, Revised Penal Code, expressly states that in the imposition
of the penalties, the courts shall exercise their sound discretion, without
regard to the rules prescribed in Article 64 of the Revised Penal Code.
"The rationale of the law," according to People v. Medroso, Jr.: 13
x x x can be found in the fact thatin quasi-offenses penalized under
Article 365, the carelessness, imprudence or negligence which
characterizes the wrongful act may vary from one situation to another, in
nature, extent, and resulting consequences, and in order that there may
be a fair and just application of the penalty, the courts must have ample
discretion in its imposition, without being bound by what We may call the
mathematical formula provided for inArticle 64 of the Revised Penal
Code. On the basis of this particular provision, the trial court was not
bound to apply paragraph 5 of Article 64 in the instant case even if
appellant had two mitigating circumstances in his favor with no
aggravating circumstance to offset them.
Even so, the CA erred in imposing on the petitioner the penalty for
reckless imprudence resulting in seriousphysical injuries. The error
1âwphi1
should be avoided because no person should be condemned tosuffer a
penalty that the law does not prescribe or provide for the offense charged
or proved. Verily, anyone judicially declared guiltyof any crime must be
duly punished in accordance with the law defining the crime and
prescribing the punishment. Injustice would always result to the offender
should the penalty exceed that allowed by the law. The imposition of the
The penalty for the offender guilty ofreckless imprudence is based on the
gravity of the resulting injuries had his act been intentional. Thus, Article
365 of the Revised Penal Codestipulates that had the act been
intentional, and would constitute a grave felony, the offender shall suffer
arresto mayor in its maximum period to prision correccionalin its medium
period; if it would have constituted a less grave felony, arresto mayorin its
minimum and medium periods shall be imposed; and if it would have
constituted a light felony, arresto menorin its maximum period shall be
imposed. Pursuant to Article 9 of the Revised Penal Code, a grave felony
is that to which the law attaches the capital punishment or a penalty that
in any of its periods is afflictivein accordance with Article 25 of theRevised
Penal Code; a less grave felony is that which the law punishes with a
penalty that is correctionalin its maximum period in accordance with
Article 25 of the Revised Penal Code; and a light felony is an infraction of
law for the commission of which a penalty of either arresto menoror a fine
not exceeding ₱200.00, or both is provided.
In turn, Article 25 of the Revised Penal Codeenumerates the principal
afflictive penaltiesto be reclusion perpetua, reclusion temporal, andprision
mayor; the principal correctional penaltiesto beprision correccional,
arresto mayor, suspension and destierro; and the light penalties to be
arresto menorand fine not exceeding ₱200.00. Under this provision,
death stands alone as the capital punishment.
The Revised Penal Codeclassifies the felony of serious physical injuries
based on the gravity ofthe physical injuries, to wit:
Article 263. Serious physical injuries. — Any person who shall wound,
beat, or assault another, shall be guilty of the crime of serious physical
injuries and shall suffer:
1. The penalty of prision mayor, if in consequence of the physical
injuries inflicted, the injured person shall become insane,
imbecile, impotent, or blind;
2. The penalty of prision correccionalin its medium and maximum
periods, if in consequence ofthe physical injuries inflicted, the
person injured shall have lost the use of speech or the power to
hear or to smell, or shall have lost an eye, a hand, a foot, an arm,
or a leg or shall have lost the use of any such member, or shall
have become incapacitated for the work in which he was therefor
habitually engaged;
3. The penalty of prision correccionalin its minimum and medium
periods, if in consequence of the physical injuries inflicted, the
person injured shall have become deformed, orshall have lost any
other part of his body, or shall have lost the use thereof, or shall
have been ill or incapacitated for the performance of the work in
which he as habitually engaged for a period of more than ninety
days;
4. The penalty of arresto mayorin its maximum period to prision
correccionalin its minimum period, if the physical injuries inflicted
shall have caused the illness or incapacity for labor of the injured
person for more than thirty days.
If the offense shall have been committed against any of the persons
enumerated in Article 246, or with attendance of any of the circumstances
mentioned in Article 248, the case covered by subdivision number 1 of
this Article shall be punished by reclusion temporalin its medium and
maximum periods; the case covered by subdivision number 2 by prision
correccionalin its maximum period to prision mayorin its minimum period;
the case covered by subdivision number 3 by prision correccional in its
medium and maximum periods; and the case covered by subdivision
number 4 by prision correccionalin its minimum and medium periods.
The provisions of the preceding paragraph shall not be applicable to a
parent who shall inflict physical injuries upon his child by excessive
chastisement.
In its decision, the CA found that Ferdinand had sustained multiple facial
14
injuries, a fracture of the inferior part of the right orbital wall, and subdural
hemorrhage secondary to severehead trauma; that he had become
stuporous and disoriented as to time, place and person. It was also on
record that he had testified at the trial thathe was unable to attend to his
general merchandise store for three months due to temporary amnesia;
and that he had required the attendance of caregivers and a masseur
until October 31, 1999.
With Ferdinand not becoming insane, imbecile, impotent, or blind, his
physical injuries did not fall under Article 263, 1, supra. Consequently, the
CA incorrectly considered the petitioner’s act as a grave felony had it
been intentional, and should not have imposed the penalty at arresto
mayorin its maximum period to prision correccionalin its medium period.
Instead, the petitioner’s act that caused the serious physical injuries, had
it been intentional, would be a less grave felonyunder Article 25 of the
Revised Penal Code, because Ferdinand’s physical injuries were those
under Article 263, 3, supra, for having incapacitated him from the
performance of the work in which he was habitually engaged in for more
than 90 days.
Conformably with Article 365 of the Revised Penal Code, the proper
penalty is arresto mayorin its minimum and medium periods, which
ranges from one to four months. As earlier mentioned, the rules in Article
64 of the Revised Penal Codeare not applicable in reckless imprudence,
and considering further that the maximum term of imprisonment would
not exceed one year, rendering the Indeterminate Sentence
Lawinapplicable, the Court holds that the straight penalty of two months
15
of arresto mayorwas the correct penalty for the petitioner.
The Court agrees with the CA’s modification of the award of actual and
moral damages amounting to ₱58,402.75 and ₱10,000.00, respectively.
Actual damages, to be recoverable, must not only be capable of proof,
but must actually be proved with a reasonable degree of certainty. This is
because the courts cannot rely on speculation, conjecture or guesswork
in determining the fact and amount of damages. To justify an award of
actual damages, there must be competent proof of the actual loss
suffered, which should be based on the amounts actually expended by
the victim, or other competent proof. Here, the receipts presented by the
16

Prosecution proved the expenses actually incurred amounting

to₱108,402.75, but such aggregate was reduced by the victim’s earlier
receipt of ₱50,000.00 from the petitioner in the form of financial
assistance. Hence, the victim should recover only the unpaid portion of
₱58,402.75.

Moral damages are given to ease the victim's grief and suffering. Moral
damages should reasonably approximate the extent of the hurt caused
and the gravity of the wrong done. Accordingly, the CA properly reduced
17

to ₱10,000.00 the moral damages awarded to Ferdinand. In addition, we

impose an interest of 6% per annum on the actual and moral damages
reckoned from the finality of this decision until the full payment of the
obligation. This is because the damages thus fixed thereby become a
forbearance. The rate of 6% per annum is pursuant to Circular No. 799,
series of 2013, issued by the Office of the Governor of the Bangko
Sentral ng Pilipinas on June 21, 2013, and the pronouncement in Nacar
v. Gallery Frames. WHEREFORE, the Court AFFIRMS the decision
18

promulgated on June 29, 2006, subject to the modifications that: (a) the
penalty to be imposed on the petitioner shall be a straight penalty of two
months of arresto mayor; and (b) the awards for actual and moral
damages shall earn 6% interest rate per annum commencing from the
finality of this decision until fully paid.

The petitioner shall pay the costs of suit.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 182750 January 20, 2009
RODEL URBANO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
VELASCO, JR., J.:
This petition for review under Rule 45 seeks to reverse and set aside the
Decision1 dated January 25, 2008 of the Court of Appeals (CA) in CA-
G.R. CR No. 25371 which affirmed with modification the April 30, 2001
Decision2 of the Regional Trial Court (RTC), Branch 39 in Lingayen,
Pangasinan in Criminal Case No. L-5028. The RTC found petitioner
Rodel Urbano guilty beyond reasonable doubt of the crime of Homicide.
The Facts
In an Information filed before the RTC, petitioner was charged with
Homicide, committed as follows:
That on or about the 28th of September 1993 in the evening, in Barangay
Poblacion, Municipality of Lingayen, Province of Pangasinan, Philippines
and within the jurisdiction of this Honorable Court, the above-named
accused, with intent to kill, did then and there willfully, unlawfully and
feloniously attack, assault, hit and maul Brigido Tomelden, inflicting upon
him mortal injuries and as borne out from the autopsy report the following
findings:
EXTERNAL FINDINGS:
A- Softened portion of the scalp over (R) occipito-temporal area
about 5 inches above and posterior to the (R) ear.
B- Clotted blood over the (R) occipito-temporal area.
C- No lacerations noted.
INTERNAL FINDINGS:
A- On opening the skull there is oozing of dark colored blood from
the brain substances.
B- More darked blood vessels at the (L) side of the brain.
CAUSE OF DEATH:
Cardio-respiratory arrest secondary to cerebral concussion with
resultant cerebral hemorrhage due to mauling incident.
Which directly caused his death, to the damage and prejudice of the heirs
of the said Brigido Tomelden.
CONTRARY to Article 249 of the Revised Penal Code.
Petitioner, when arraigned, pleaded not guilty to the charge. Following
the parties’ waiver of pre-trial, trial on the merits then ensued.
As summarized in the decision subject of review, the prosecution’s
evidence established the following facts:
On September 28, 1993, at around 8:00 p.m., the victim Brigido
Tomelden and petitioner were at the compound of the Lingayen Water
District (LIWAD) in Lingayen, Pangasinan, having just arrived from a
picnic in the nearby town of Bugallon, Pangasinan, where, with some
other co-workers, they drunk beer in a restaurant. While inside the
compound, the two had a heated altercation in the course of which
Tomelden hurled insulting remarks at petitioner. Reacting, petitioner
asked why Tomelden, when drunk, has the penchant of insulting
petitioner.
The exchange of words led to an exchange of blows. Cooler heads
succeeded in breaking up the fight, but only for a brief moment as the
protagonists refused to be pacified and continued throwing fist blows at
each other. Then petitioner delivered a "lucky punch," as described by
eyewitness Orje Salazar, on Tomelden’s face, which made Tomelden
topple down. Tomelden was on the verge of hitting his head on the
ground had their companions not caught him and prevented the fall. The
blow, however, caused Tomelden’s nose to bleed and rendered him
unconscious.
Petitioner and his other co-workers brought Tomelden to the office of the
LIWAD general manager where he spent the night. He remained in the
compound the following day, September 29, 1993. Upon arriving home at
around 6:00 p.m. of that day, Tomelden informed his wife, Rosario, of the
fight the previous night and of his having been rendered unconscious. He
complained of pain in his nape, head, and ear which impelled Rosario to
immediately bring him to the Lingayen Community Hospital where Dr.
Daisy Arellano examined him and treated his lacerated left index finger,
contusions, and hematoma at the right cerebrum.
On October 2 and 7, 1993, Tomelden went back to the hospital
complaining of dizziness, headache, and other pains. The attending
doctors observed the patient to be in a state of drowsiness and frequent
vomiting. On October 8, 1993, Rosario brought Tomelden to the Sison
Memorial Provincial Hospital in Dagupan City, where the attending
physician, Dr. Ramon Ramos, diagnosed Tomelden suffering from "brain
injury, secondary to mauling to consider cerebral hemorrhage." 3
Tomelden was confined in the provincial hospital until 3:00 p.m. of
October 10, 1993, and, due to financial constraints, was thereafter
discharged despite signs negating physical condition improvement. Upon
reaching their house, however, Tomelden again complained of extreme
head pain, prompting his wife to bring him back to the Lingayen
Community Hospital where Dr. Arellano again attended to him. This time,
things turned for the worst, the doctor noting that Tomelden appeared to
be semi-conscious, sleepy, uncooperative, and not responding to any
stimulant. Tomelden died at 9:00 p.m. of that day due, per Dr. Arellano, to
"cardio-respiratory arrest secondary to cerebral concussion with resultant
cerebral hemorrhage due to mauling incident."
The defense presented petitioner who denied having any intention to kill,
asserting that hypertension, for which Tomelden was receiving treatment,
was the cause of the latter’s death.
The Ruling of the RTC
On April 30, 2001, the RTC rendered judgment finding petitioner guilty as
charged. The fallo of the RTC’s decision reads:
WHEREFORE, the prosecution having established beyond reasonable
doubt the guilt of the accused of the crime of HOMICIDE as defined and
penalized under Art. 249 of the Revised Penal Code, this Court in the
absence of any modifying circumstances, hereby sentences said
accused to suffer the indeterminate prison term of eight (8) years and one
(1) day of Prision Mayor as minimum to seventeen (17) years and four (4)
months of Reclusion Temporal as maximum and to indemnify the legal
heirs of the victim in the amount of PHP50,000.00, plus cost of the suit.
The period of preventive imprisonment suffered by the accused shall be
credited in full in the service of his sentence in accordance with Art. 29 of
the Revised Penal Code.4
Therefrom, petitioner appealed to the CA, his recourse docketed as CA-
G.R. CR No. 25371.
The Ruling of the CA
On January 25, 2008, the CA rendered a decision, affirming the
conviction of petitioner, but awarding moral damages to the heirs of
Tomelden, disposing as follows:
WHEREFORE, in the light of the foregoing, the appeal of the accused-
appellant is DISMISSED. The decision appealed from is AFFIRMED with
MODIFICATION that an award of P50,000.00 moral damages is
GRANTED.
Remand of the records should immediately follow finality for the
consequent execution of the decision.5
The appellate court held that the commission by petitioner of the crime of
homicide, as defined and penalized under Article 2496 of the Revised
Penal Code (RPC), had been proved beyond moral certainty of doubt,
pointing to the lucky punch as the proximate cause of Tomelden’s
hospitalization and ultimately his death. And like the RTC, the CA found
no qualifying circumstance to increase or lower the penalty.
Following the denial of petitioner’s motion for reconsideration, per the CA
Resolution7 of April 24, 2008, he interposed this petition.
The Issues
On essentially the same issues raised before the CA, petitioner now
urges the Court to set aside the appealed decision, or at least modify it,
maintaining that the appellate court:
I. x x x erred in affirming the decision of the [RTC] finding [him]
guilty beyond reasonable doubt of the crime charged.
II. x x x erred in not appreciating the mitigating circumstances of
sufficient provocation on the part of the victim and lack of intent to
commit so grave a wrong in favor of the petitioner. 8
The Court’s Ruling
The petition is partly meritorious.
Homicide Duly Proved
It is petitioner’s threshold posture that the fistic injury Tomelden sustained
was not "the main underlying cause of his death."9 In this regard,
petitioner draws attention to the fact that the fist fight in question
happened on September 28, 1993. Tomelden, however, died only on
October 10, 1993 or 12 days thereafter and that, during the intervening
days, particularly September 29, 1993, the deceased regularly reported
for work. Moreover, petitioner avers that days prior to the fateful incident
of September 28, 1993, Tomelden failed to come to work as he was
suffering from malignant hypertension and that this circumstance greatly
engenders doubt as to the proximate cause of the victim’s death.
Petitioner, thus, contends that he could only be adjudged guilty of
physical injuries.10
We are not persuaded.
The prosecution witness, Salazar, testified about petitioner’s lucky punch
hitting Tomelden right smack on the face. And even if Tomelden’s head
did not hit the ground as his co-workers averted that actuality, that punch
gave him a bleeding nose and rendered him unconscious right after the
September 28, 1993 fight. From then on, Tomelden was in and out of the
hospital complaining of headache, among other pains, until his demise on
October 10, 1993, or 12 days after the blow that made Tomelden
unconscious.
Significantly, Dr. Arellano testified conducting an autopsy on the body of
Tomelden and stressed that the "softened portion of the scalp over (R)
occipito-temporal area about 5 inches above and posterior to the (R) ear"
of the victim could have been caused by a fist blow. She also opined that
the fist blow which landed on Tomelden’s head could have shaken his
brain which caused the cerebral concussion; and that the cause of the
victim’s death was "cardio-respiratory arrest secondary to cerebral
concussion with resultant cerebral hemorrhage due to mauling incident."
The combined effects of the testimonies of Salazar and Dr. Arellano,
buttressed by that of Rosario who related about her husband’s post
September 28, 1993 severe head pain, clearly establish beyond cavil the
cause of Tomelden’s death and who was liable for it.
The CA observed aptly:
It was through the direct accounts of the prosecution witnesses of the
events that transpired during the fisticuff incident x x x more specifically
the landing of the "lucky punch" on the face of [Tomelden], taken together
with the result of the medical examinations and autopsy report which
described the death of the victim as "cardio-respiratory arrest secondary
to cerebral concussion with resultant cerebral hemorrhage due to
mauling incident" that we are convinced that the "lucky punch" was the
proximate cause of [Tomelden’s] death. The prosecution had satisfactorily
proven that it was only after the incident that transpired on September 28,
1993 that the victim was hospitalized on several occasions until he
expired, twelve days later x x x. It is moreover of no consequence
whether the victim was able to report for work during the intervening days
x x x.
We find no reason to depart from the doctrinal rule that great weight is
accorded the factual findings of the trial court, particularly with respect to
the ascertainment of the credibility of witnesses. There was absence of
any ill motive on the part of x x x Salazar who in fact testified that he was
a friend of both [petitioner] and [Tomelden]; more so on the part of the
attending physicians.11 x x x
Petitioner’s suggestion that Tomelden succumbed to heart ailment and/or
that his death was the result of his malignant hypertension is untenable,
given that the post-mortem report yields no positive indication that he
died from such malady.
Mitigating Circumstances Present
Petitioner next contends that the mitigating circumstances of no intention
to commit so grave a wrong and sufficient provocation on the part of the
victim ought to be appreciated in petitioner’s favor.
On this score, we agree with petitioner.
Paragraphs 3 and 4 of Art. 13, RPC provide as follows:
Art. 13. Mitigating circumstances.––The following are mitigating
circumstances:
xxxx
3. That the offender had no intention to commit so grave a wrong as that
committed.
4. That sufficient provocation or threat on the part of the offended party
immediately preceded the act.
When the law speaks of provocation either as a mitigating circumstance
or as an essential element of self-defense, the reference is to an unjust
or improper conduct of the offended party capable of exciting, inciting, or
irritating anyone;12 it is not enough that the provocative act be
unreasonable or annoying;13 the provocation must be sufficient to excite
one to commit the wrongful act14 and should immediately precede the
act.15 This third requisite of self-defense is present: (1) when no
provocation at all was given to the aggressor; (2) when, even if
provocation was given, it was not sufficient; (3) when even if the
provocation was sufficient, it was not given by the person defending
himself; or (4) when even if a provocation was given by the person
defending himself, it was not proximate and immediate to the act of
aggression.16
In the instant case, Tomelden’s insulting remarks directed at petitioner
and uttered immediately before the fist fight constituted sufficient
provocation. This is not to mention other irritating statements made by the
deceased while they were having beer in Bugallon. Petitioner was the
one provoked and challenged to a fist fight.
Petitioner’s unrebutted testimony on the events immediately preceding
the fisticuff and earlier dovetails with the testimony of Salazar.
In gist, petitioner testified being, in the afternoon of September 28, 1993,
in the nearby town of Bugallon for a picnic. He was with Tomelden and
several others, including Dominador Navarro, Chairperson of LIWAD. At
a restaurant in Bugallon, the group ordered goat’s meat and drank beer.
When it was time to depart, Navarro asked petitioner to inform Tomelden,
then seated in another table, to prepare to leave.
When so informed, Tomelden insulted petitioner, telling the latter he had
no business stopping him from further drinking as he was paying for his
share of the bill. Chastised, petitioner returned to his table to report to
Navarro. At that time, petitioner saw that Tomelden had already
consumed 17 bottles of beer. In all, the group stayed at the picnic place
for three and a half hours before returning to the LIWAD.
Upon reaching the LIWAD compound, Tomelden allegedly slapped and
hurled insults at him, calling him "sipsip" just to maintain his employment
as Navarro’s tricycle driver. Tomelden allegedly then delivered several fist
and kick blows at petitioner, a couple of which hit him despite his evasive
actions. Petitioner maintained that he only boxed the victim in retaliation,
landing that lucky punch in the course of parrying the latter’s blows.
The following testimony of Salazar attests to the provocative acts of
Tomelden and to his being the aggressor:
PROSECUTOR CHIONG
Q After you heard from the accused those remarks, what if any did the
victim replied if any?
WITNESS
A They exchanged angry words, sir.
Q What were these words?
A Rodel Urbano said, "When you’re already drunk, you keep on
insulting me."
Q And what was the reply if any?
A ‘Akina tua lanti".
PROS. CHIONG Q When the victim and this accused had this fight, fist fight, they
exchanged blows, but there was this lucky punch that hit the victim
Q Who said that? because the victim fall down, is that correct?

WITNESS A When I stop pacifying them x x x, I saw Biring the late Brigido
Tomelden, he was much aggressive than the accused, sir.
A It was Brigido Tomelden, sir.
Q You mean that although it was the victim who was more aggressive
Q And what transpired next? than the accused here, he also [threw] punches but sometime some of
his punches most of which did not hit the victim?
A After that they exchange words, sir. " If you like we will have a fist fight"
he said. A He tried to parry the blows of the late Brigido Tomelden, sir.

Q Who said that?
A Brigido Tomelden said.
Q At that time, were you already inside the compound of the LIWAD?
A Yes, sir.
Q After the victim allegedly told the accused, "If you want a fist fight,"
what transpired next?
A Rodel Urbano said, "if it is a fist fight we fight."17
Q And when you were already in the compound of LIWAD Office, Brigido
Tomelden was challenging the accused for a fist fight?
A Yes, sir.
Q And the accused refused to accept the challenge?
A Yes because Mr. Brigido Tomelden is very much bigger than Mr.
Rodel Urbano. He is stouter than the accused.
Q But finally the fist fight took place?
A Yes, sir.18
PROS. CHIONG
Q Because he tried to parry the blow of the Brigido Tomelden, when the
accused throw punches, the punch was directed to the victim but most of
them did not hit the victim, is that what you saw?
A Yes, sir.19 (Emphasis added.)
It is abundantly clear from the above transcript that the provocation came
from Tomelden. In fact, petitioner, being very much smaller in height and
heft, had the good sense of trying to avoid a fight. But as events turned
out, a fisticuff still ensued, suddenly ending when petitioner’s lucky punch
found its mark. In People v. Macaso,20 a case where the accused police
officer shot and killed a motorist for repeatedly taunting him with defiant
words, the Court appreciated the mitigating circumstance of sufficient
provocation or threat on the part of the offended party immediately
preceding the shooting. The Court had the same attitude in Navarro v.
Court of Appeals,21 a case also involving a policeman who killed a man
after the latter challenged him to a fight. Hence, there is no rhyme or
reason why the same mitigating circumstance should not be considered
in favor of petitioner.
Moreover, the mitigating circumstance that petitioner had no intention to
commit so grave a wrong as that committed should also be appreciated
in his favor. While intent to kill may be presumed from the fact of the
death of the victim, this mitigating factor may still be considered when
attendant facts and circumstances so warrant, as in the instant case.
Consider: Petitioner tried to avoid the fight, being very much smaller than
Tomelden. He tried to parry the blows of Tomelden, albeit he was able,
during the scuffle, to connect a lucky punch that ended the fight. And lest
it be overlooked, petitioner helped carry his unconscious co-worker to the
office of the LIWAD’s general manager. Surely, such gesture cannot
reasonably be expected from, and would be unbecoming of, one
intending to commit so grave a wrong as killing the victim. A bare-knuckle
fight as a means to parry the challenge issued by Tomelden was
commensurate to the potential violence petitioner was facing. It was just
unfortunate that Tomelden died from that lucky punch, an eventuality that
could have possibly been averted had he had the financial means to get
the proper medical attention. Thus, it is clear that the mitigating
circumstance of "no intention to commit so grave a wrong as that
committed" must also be appreciated in favor of petitioner while finding
him guilty of homicide. That petitioner landed a lucky punch at
Tomelden’s face while their co-workers were trying to separate them is a
compelling indicium that he never intended so grave a wrong as to kill the
victim.
Withal, with no aggravating circumstance and two mitigating
circumstances appreciable in favor of petitioner, we apply par. 5 of Art.
64, RPC, which pertinently provides:
Art. 64. Rules for the application of penalties which contain three
periods.––In cases in which the penalties prescribed by law contain three
periods, whether it be a single divisible penalty or composed of three
different penalties, each one of which forms a period in accordance with
the provisions of Articles 76 and 77, the courts shall observe for the
application of the penalty the following rules, according to whether there
are or are no mitigating or aggravating circumstances:
minimum and prision mayor as maximum. In view of the circumstances of
the case, considering that the petitioner never meant or intended to kill
the victim, a prison term of eight (8) years and one (1) day of prision
mayor as maximum period is proper while the period of two (2) years and
four (4) months of prision correccional as minimum period is reasonable.
We find no reason to modify the award of civil indemnity and moral
damages.
WHEREFORE, the CA Decision dated January 25, 2008 in CA-G.R. CR
No. 25371 is, in the light of the presence and the appreciation of two
mitigating circumstances in favor of petitioner, hereby MODIFIED by
decreasing the term of imprisonment. As thus modified, petitioner Rodel
Urbano is hereby sentenced to serve an indeterminate prison term of
from two (2) years and four (4) months of prision correccional, as
minimum, to eight (8) years and one (1) day of prision mayor, as
maximum, with whatever imprisonment he has already served fully
credited in the service of this sentence. The rest of the judgment is
hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.

xxxx

5. When there are two or more mitigating circumstances and no

aggravating circumstances are present, the court shall impose the
penalty next lower to that prescribed by law, in the period that it may
deem applicable, according to the number and nature of such
circumstances.

The prescribed penalty for homicide under Art. 249 of the RPC is
reclusion temporal or from 12 years and one day to 20 years. With the
appreciation of two mitigating circumstances of no intention to commit so
grave a wrong as that committed and of sufficient provocation from the
victim, and the application of par. 5 of Art. 64, RPC, the imposable
penalty would, thus, be the next lower penalty prescribed for homicide
and this should be prision mayor or from six years and one day to 12
years. Consequently, with the application of the Indeterminate Sentence
Law, petitioner ought to be incarcerated from prision correccional as
 [G.R. Nos. 140514-15. September 30, 2003]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUNE IGNAS y
SANGGINO, accused-appellant.
DECISION
QUISUMBING, J.:
In the amended decision[1] dated June 2, 1999, in Criminal Case No. 96-
CR-2522, the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 8,
found appellant June Ignas y Sanggino guilty of murder aggravated
especially by the use of an unlicensed firearm. Appellant was initially
sentenced to suffer the penalty of reclusion perpetua,[2] but on motion for
reconsideration by the prosecution, the penalty was upgraded to death by
lethal injection.[3] Hence, the case is now before us for automatic review.
Appellant is an elementary school graduate. He resided at Cruz, La
Trinidad, Benguet, where he operated a bakery. [4] He is married to Wilma
Grace Ignas, by whom he has a son of minor age. [5]Wilma Grace used to be
the cashier of Windfield Enterprise, which is owned by Pauline Gumpic.
[6]
Pauline had a brother, Nemesio Lopate. It was he whom appellant fatally
shot.
In the amended Information,[7] pursuant to Section 14, Rule 110 [8] of the
1985 Rules of Criminal Procedure, the Provincial Prosecutor of Benguet
charged appellant as follows:
That on or about the 10th day of March 1996 at Trading Post, Km. 5, Municipality of
La Trinidad, Province of Benguet, Philippines, and within the jurisdiction of this
Honorable Court, without any authority of law or without any lawful permit did then
and there willfully, unlawfully and knowingly have in his possession, control and
custody a Cal. .38 hand gun and two (2) ammunitions, (sic) which firearm and
ammunitions were used by the accused in unlawfully killing NEMESIO LOPATE at
the above-mentioned place and date in violation of the said law.
CONTRARY TO LAW.[9]
Appellant was arraigned and pleaded not guilty to the foregoing
amended information. The case then proceeded to be heard on the merits.
Gleaned from the records, the facts of this case are as follows:
Sometime in September 1995, appellants wife, Wilma Grace Ignas,
confided to her close friend, Romenda [10] Foyagao, that she was having an
affair with Nemesio Lopate.[11]
On the evening of October 16, 1995, Wilma Grace, Romenda, and
Nemesio went to Manila. Romenda and Nemesio were sending off Wilma
Grace at the Ninoy Aquino International Airport as she was leaving for Taiwan
to work as a domestic helper. Upon arrival in Manila, the trio checked at
Dangwa Inn, with Nemesio and Wilma Grace sharing a room. [12] All three of
them stayed at the inn until October 18, 1995, when Wilma Grace left for
Taiwan.[13]
Thereafter, Romenda received from Taiwan four letters written by Wilma
Grace on various dates. Although all the letters were addressed to Romenda,
two of them were meant by Wilma Grace to be read by her paramour,
Nemesio.[14] In the other two letters, Wilma Grace instructed Romenda to
reveal to appellant her affair with Nemesio.
It was only sometime late in February 1996 that Romenda, following her
bosom friends written instructions, informed appellant about the extramarital
affair between Wilma Grace and Nemesio. Romenda informed him that the
two had spent a day and a night together in a room at Dangwa Inn in Manila.
[15]
Appellant became furious. He declared Addan to aldaw na dayta nga
Nemesio, patayek dayta nga Nemesio (There will be a day for that Nemesio.
I will kill that Nemesio).[16] Appellant then got all the letters of Wilma Grace
from Romenda.[17]
That same week Alfred Mayamnes, appellants neighbor who was
presented at the trial as a prosecution witness, had a talk with appellant.
Mayamnes was an elder of the Kankanaey tribe to which appellant
belonged. He wanted to confirm whether Nemesio Lopate, who was likewise
from the same tribe, [18] was having an affair with appellants spouse. Talk
apparently had reached the tribal elders and they wanted the problem
resolved as soon as possible.[19] A visibly angry appellant confirmed the
gossip.[20] Mayamnes also testified that he advised Nemesio to stay at the
Mountain Trail Kankanaey community until things had cooled down. [21]
Shortly after their talk, appellant closed down his bakeshop and offered
his equipment for sale. Among the potential buyers he approached was
Mayamnes, but the latter declined the offer.[22]
Sometime during the first week of March, Mayamnes saw appellant load
his bakery equipment on board a hired truck and depart for Nueva Vizcaya. [23]
At around 10:00 p.m. of March 10, 1996, according to another
prosecution witness, Annie Bayanes, a trader in vegetables, she was at the
Trading Post, La Trinidad, Benguet. [24] The Trading Post is a popular depot
where vegetable growers in the Cordilleras bring their produce late in the
evenings for sale to wholesalers and retailers. Witness Bayanes said she
was at the unloading area (bagsakan), conversing with another dealer at the
latters booth, when suddenly two gunshots shattered the quiet evening. [25]
 Bayanes turned towards the place where the sound of the gunshots
came from. She testified that she saw a person falling to the ground.
[26]
Standing behind the fallen individual, some 16 inches away, [27] was
another person who tucked a handgun into his waistband and casually
walked away.[28]
Initially, she only saw the gunmans profile, but when he turned, she
caught a glimpse of his face. [29] She immediately recognized him as the
appellant June Ignas. She said she was familiar with him as he was her
townmate and had known him for several years. Witness Bayanes was five
or six meters away from the scene, and the taillight of a parked jeepney,
which was being loaded with vegetables, plus the lights from the roof of
the bagsakan, aided her recognition of appellant.[30]
Also at the bagsakan area that night was prosecution witness Marlon
Manis. He testified that on hearing gunshots from the Trading Post entrance,
he immediately looked at the place where the gunfire came from. He saw
people converging on a spot where a bloodied figure was lying on the
ground.[31] Witness Manis saw that the fallen victim was Nemesio Lopate,
whom he said he had known since Grade 2 in elementary school. [32] Manis
then saw another person, some 25 meters away, hastily walking away from
the scene. He could not see the persons face very well, but from his gait and
build, he identified the latter as his close friend and neighbor, June Ignas.
[33]
Manis said that the scene was very dimly lit and the only illumination was
from the lights of passing vehicles, but he was familiar with appellants build,
hairstyle, and manner of walking.[34]
Prosecution witness Mona Barredo, a bakery worker, testified that she
knew appellant. She said they were co-workers formerly at the Annaliza
Bakery at Km. 10, Shilan, La Trinidad, Benguet. [35]Barredo declared that at
around 10:30 p.m. of March 10, 1996, appellant came to her residence at
Pico, La Trinidad. After being served refreshments, appellant took out a
handgun from his jacket and removed the empty shells from the chamber.
[36]
Appellant then told her to throw the empty cartridges out of the
window. Because of nervousness she complied. [37] Barredo also said that
appellant disclosed to her that he had just shot his wifes paramour.
[38]
Appellant then stayed at her house for 8 or 9 hours; he left only in the
morning of March 11, 1996,[39] according to her. Police investigators later
recovered the spent gun shells from witness Barredos sweet potato garden.
[40]
According to witness on the scene, responding policemen immediately
brought the victim, Nemesio Lopate, to the Benguet General Hospital where
he was pronounced dead on arrival.[41]
Dr. Doris C. Jovellanos, Municipal Health Officer of La Trinidad,
Benguet, testified during that trial that she conducted the post-mortem
examination of the victims cadaver. Among her findings were:
1. Ovaloid hole, 2.0 x 5.0 cm. dms., with blackened edges (1.8 x 1.3 cms. span), on
the right side of the mouth, above the edge of the upper lip
xxx
3. Exit hole on the left side of the mouth, 5.0 x 1.3 cm. dms., with avulsion of the
upper lip on the left side
xxx
9. Circular hole, penetrating, on the back, right side, 0.7 cm. x 0.7 cm. diam., with
blackened edges (0.9 x 0.9 cm. span), at the level of the fifth intercostal space,
subscapular area, 13 cm. from the midline, directed to the left side of the chest, 38.0
cm. from the embedded bullet slug of the left shoulder.[42]
Dr. Jovellanos determined the cause of death to be Hypovolemia due to
gunshot wound, back, right, (Point of Entry fifth intercostal space subscapular
area).[43] She further stated on the witness stand that she recovered a bullet
from the victims left shoulder, which she turned over to the police
investigators.[44] According to her, given the blackened edges of the gunshot
wound at the victims back, Nemesio was shot from a distance of less than
three (3) feet.[45]
On March 14, 1996, police investigators accompanied by one of
appellants brother as well as prosecution witness Julio Bayacsan, a friend of
appellant, went to Kayapa, Nueva Vizcaya, to invite appellant to shed light on
the slaying of Nemesio. The law enforcers found appellant selling bread at
Kayapa and brought him back to La Trinidad, Benguet. [46]
Witness Bayacsan testified that shortly after they arrived from Kayapa,
he had an opportunity to talk with appellant at the La Trinidad Police
Station. There, appellant disclosed to this witness that he shot and killed
Nemesio.[47] Bayacsan, however, did not inform the police about appellants
revelation as he considered appellant his good friend. [48]
Prosecution witness Pauline Gumpic, the victims sister, testified that she
and appellant had a private talk, while the latter was in police custody, and
appellant admitted to her that he killed her brother. [49] Gumpic declared that
appellant revealed to her that he shot Nemesio for having illicit relations with
appellants wife and failing to ask for his forgiveness. [50]
SPO4 Arthur Bomagao[51] of the La Trinidad police, who headed the
team that investigated the fatal shooting of Nemesio, declared on the stand
that appellant voluntarily admitted to him that he shot the victim with a .38
caliber handgun.[52] Bomagao further testified that appellant surrendered to
him the letters of Wilma Grace, wherein the latter admitted her affair with
Nemesio.[53]
 Appellant interposed the defense of alibi. Sometime during the last week SO ORDERED in Chambers this 18th day of February 1999 at La Trinidad, Benguet,
of February 1996, he said, he entered into a partnership with a friend and Philippines.[62]
fellow baker, Ben Anoma, to operate a bakery in Kayapa, Nueva Vizcaya.
[54]
Appellant claimed that he was having a hard time operating his bakeshop Both the prosecution and the defense filed their respective motions for
in La Trinidad as he had no helpers. When Anoma proposed a business reconsideration. The prosecution sought the imposition of the death penalty.
arrangement, he added, he immediately seized the opportunity. [55] On March [63]
The defense prayed for acquittal on the ground of reasonable doubt.
8, 1996, he and Anoma then transferred his equipment to Anomas bakery in
Kayapa,[56] which is some four (4) to five (5) hours away from La Trinidad, On June 2, 1999, the trial court granted the prosecutions motion. It
according to appellant. He averred that he was baking bread with Anoma in amended its judgment to read as follows:
Kayapa on the night Nemesio was killed. [57] Under oath, appellant said that
he never left Kayapa since his arrival on March 8, 1996. He and Anoma were WHEREFORE, premises considered, the accused June Ignas is hereby found
engrossed in baking and marketing their produce, he testified, until the GUILTY beyond reasonable doubt of the crime of MURDER as defined and
policemen from La Trinidad brought him back to Benguet for questioning on penalized under Article 248 of the Revised Penal Code, and considering the
March 14, 1996.[58] aggravating circumstances of treachery, nighttime and the special aggravating
circumstance of the use of an unlicensed firearm, without any mitigating
Defense witness Ben Anoma corroborated appellants alibi. Anoma
circumstance, he is hereby sentenced to suffer the penalty of death by lethal
declared that during the last week of February 1996, he met with appellant in
injection. He is further sentenced to pay the heirs of the victim the following sums:
La Trinidad. There, the witness said, he proposed a partnership with
appellant in the baking business to be based in Kayapa. [59] Appellant agreed
and on March 8, 1996, they transferred appellants equipment to Kayapa. 1. P150,000.00 for funeral expenses and those incurred for and during the wake;
[60]
They immediately commenced their operations and on the evening of
March 10, 1996, he and appellant baked bread at his bakery in Kayapa until 2. P2,040,000.00 for unearned income;
11:00 p.m., when they rested for the night.[61]
3. P50,000.00 as death compensation established by jurisprudence; and
The trial court disbelieved appellants defense and sustained the
prosecutions version. Its initial judgment reads:
4. P50,000.00 as and for moral damages; and
WHEREFORE, premises considered, the accused June Ignas is hereby found
GUILTY beyond reasonable doubt of the crime of MURDER as defined and 5. P20,000.00 as attorneys fees.
penalized under Article 248 of the Revised Penal Code, and considering the
aggravating circumstances of treachery, nighttime and the special aggravating Costs against the accused.
circumstance of the use of an unlicensed firearm, without any mitigating
circumstance, he is hereby sentenced to suffer the penalty of Reclusion Perpetua. He SO ORDERED in Chambers.[64]
is further sentenced to pay the heirs of the VICTIM the following sums:
Hence, this automatic review, with appellant imputing the following
1. P150,000.00 for funeral expenses and those incurred for and during the wake; errors to the court a quo:
I
2. P1,800,000.00 for unearned income;

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-

3. P50,000.00 as death compensation established by jurisprudence; and
APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF
MURDER DESPITE THE WEAKNESS OF THE CIRCUMSTANTIAL
4. P50,000.00 as and for moral damages; and EVIDENCE OF THE PROSECUTION.

5. P20,000.00 as attorneys fees. II

Costs against the accused.

THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY WEIGHT
TO THE ALLEGED EXTRA-JUDICIAL ADMISSIONS MADE BY ACCUSED-
APPELLANT DESPITE ITS BEING HEARSAY IN NATURE AND IN
VIOLATION OF HIS RIGHTS UNDER CUSTODIAL INVESTIGATION.
III
THE TRIAL COURT GRAVELY ERRED IN NOT GIVING PROBATIVE VALUE
TO THE DEFENSE OF ALIBI INTERPOSED BY ACCUSED-APPELLANT.
IV
ASSUMING ARGUENDO THAT THE ACCUSED-APPELLANT IS GUILTY, THE
TRIAL COURT GRAVELY ERRED WHEN IT RULED THAT THE KILLING OF
THE DECEASED WAS ATTENDED BY EVIDENT PREMEDITATION,
TREACHERY AND NIGHTTIME.
V retrospective application.Hence, absent specific allegations of the attendant
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
APPRECIATED THE ALLEGED USE OF AN UNLICENSED .38 CALIBER
FIREARM AS AN AGGRAVATING CIRCUMSTANCE IN THE COMMISSION
OF THE CRIME OF MURDER WITHOUT ANY FACTUAL AND LEGAL BASIS.
VI
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID NOT
APPRECIATE IN FAVOR OF THE ACCUSED-APPELLANT THE MITIGATING
CIRCUMSTANCES OF IMMEDIATE VINDICATION OF A GRAVE OFFENSE,
PASSION AND OBFUSCATION AND VOLUNTARY SURRENDER.
VII
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
AWARDED EXCESSIVE DAMAGES IN THE FORM OF FUNERAL EXPENSES
AND UNEARNED INCOME OF THE DECEASED WHICH WERE NOT
SUFFICIENTLY PROVEN.[65]
Appellants assigned errors may be reduced to the following pertinent
issues: (1) the nature of the crime committed, if any; (2) the sufficiency of the
prosecutions evidence to prove appellants guilt; (3) the correctness of the
penalty; and (4) the propriety of the damages awarded.
1. Murder or Homicide
Assuming arguendo that the evidence on record suffices to sustain the
appellants conviction for the unlawful killing of Nemesio Lopate, the question
arises: Was the killing murder as found by the trial court or mere homicide?
Note that the amended information under which the appellant stands charged
does not, unlike the original information, charge appellant with murder but
with mere unlawful killing albeit through the use of an unlicensed firearm.
Note further that the amended information does not definitely and
categorically state that the unlawful killing was attended by the aggravating
or qualifying circumstances of treachery, evident premeditation, and
nocturnity.
The 2000 Revised Rules of Criminal Procedure requires that the
qualifying and aggravating circumstances must be specifically alleged in the
information.[66] Although the Revised Rules of Criminal Procedure took effect
only on December 1, 2000 or long after the fatal shooting of Nemesio Lopate,
as a procedural rule favorable to the accused, it should be given
circumstances of treachery, evident premeditation, and nocturnity in the
amended information, it was error for the trial court to consider the same in
adjudging appellant guilty of murder. As worded, we find that the amended
information under which appellant was charged and arraigned, at best indicts
him only for the crime of homicide. Any conviction should, thus, fall under the
scope and coverage of Article 249[67] of the Revised Penal Code.
As for the separate case for illegal possession of firearm, we agree with
the trial courts order to dismiss the information for illegal possession of
firearm and ammunition in Criminal Case No. 97-CR-2753. [68] Under R.A. No.
8294,[69] which took effect on July 8, 1997, where murder or homicide is
committed with the use of an unlicensed firearm, the separate penalty for
illegal possession of firearm shall no longer be imposed since it becomes
merely a special aggravating circumstance. [70] This Court has held in a
number of cases[71] that there can be no separate conviction of the crime of
illegal possession of firearm where another crime, as indicated by R.A. No.
8294, is committed. Although R.A. No. 8294 took effect over a year after the
alleged offense was committed, it is advantageous to the appellant insofar as
it spares him from a separate conviction for illegal possession of firearms and
thus should be given retroactive application.[72]
2. Sufficiency of the Prosecutions Evidence
But is the prosecutions evidence sufficient to sustain a conviction for
homicide?
 Appellant primarily contests the accuracy of the identification made by
the prosecution witnesses who testified that they saw him at the locus
criminis, tucking a gun in his pants and casually walking away. For one, he
contends that the prosecution witnesses who were present at the scene did
not in fact see appellant as the person who allegedly shot the victim. Witness
Marlon Manis was not certain that the person he saw walking away from the
fallen victim was appellant. As per Manis own admission, he merely
presumed that it was appellant. As to witness Annie Bayanes, her
identification of appellant as the assailant was equally doubtful. The fact is
she did not see the alleged gunmans face, considering that the only
illumination on the scene was a vehicles taillight. Appellant stresses that both
Bayanes and Manis were in a state of excitement and nervousness as a
result of the incident, hence the resultant commotion and fear distracted their
powers of observation. Appellant insists that given these considerations, the
testimonies of Bayanes and Manis failed to show that he was at the scene of
the crime, much less prove that he was the gunman.
For the appellee, the Office of the Solicitor General (OSG) contends that
the failure of Manis to see the actual shooting is irrelevant, as such was not
the purpose for which his testimony was offered in evidence. Rather, Manis
testimony was meant to provide circumstantial evidence tending to show the
physical description of Nemesios attacker, and not as an eyewitness
testimony to positively identify said assailant. Neither was Bayanes
presented to testify as an eyewitness to the shooting, but to declare that she
got a clear look at the face of the suspected gunman.
We note that at the heart of the prosecutions case is the familiarity of
Annie Bayanes and Marlon Manis with appellant. Absent this familiarity, the
prosecutions theory that circumstantial evidence shows that appellant killed
Nemesio would collapse like a house of cards. It was precisely this familiarity
with appellant, which enabled said witnesses to recognize him as the person
tucking a gun in his waistband and walking away from the fallen victim.
Bayanes had known appellant for some ten (10) years before the incident
and even described him as a good man. [73] She was only five or six meters
away from the scene of the crime and was able to fully look at the face of the
person tucking a gun in his pants and walking away. Familiarity with the
physical features, particularly those of the face, is actually the best way to
identify the person.[74] That the only illumination in the area came from the
taillight of a parked vehicle and the lights on the roof of the bagsakan does
not discredit her account. We have held that moonlight,[75] starlight,
[76]
kerosene lamps,[77] a flashlight,[78] and lights of passing vehicles[79] may be
adequate to provide illumination sufficient for purposes of recognition and
identification. Under the circumstances of these cases, this Court believes
that Bayanes was in the position and had a fair opportunity to identify
appellant as the person leaving the crime scene with a gun tucked in his
waist.
Her testimony was buttressed by that of witness Marlon Manis. A former
neighbor of appellant, he had known appellant since 1993. He was a
frequent customer at appellants bakery. In the rural areas, people tend to be
more familiar with their neighbors. This familiarity may extend to body
movements, which cannot easily be effaced from memory. Hence, Manis
testimony that he could recognize appellant even just from his build and
manner of walking is not improbable. His declaration that he was some
twenty-five (25) meters away from the person walking away from the victim
does not make recognition far-fetched. Once a person has gained familiarity
with another, identification is an easy task, even from that distance. [80]
Evidence should only be considered for the purpose it was formally
offered.[81] As the Solicitor General points out, the statements of Bayanes and
Manis were not offered to positively identify appellant as the assailant, but to
provide circumstantial evidence concerning Nemesios assailant, tending to
prove that appellant did shoot the victim. Thus, the court a quo committed no
reversible error in giving weight and credence to the testimonies of Bayanes
and Manis for the stated purposes therefor.
Appellant next assails the testimonies of the following prosecution
witnesses: (1) Pauline Gumpic for being inconsistent and flawed with
contradictions; (2) Annie Bayanes and Julio Bayacsan for their unexplained
delay in giving their respective sworn statements to the police; and (3) Mona
Barredo for flip-flopping with respect to the alleged admission to her by
appellant and how the police investigators knew about said admission, after
she claimed that she did not tell anyone about his revelation. Appellant
submits that the trial court erred in giving weight to the aforementioned
testimonies.
For appellee, the OSG argues that with respect to Gumpics alleged
contradictions, they refer only to unimportant and collateral matters; they do
not affect her credibility. With respect to the delay or vacillation by Bayacsan
and Bayanes in giving their statements to the authorities, the OSG points out
that a reading of their declarations in court will show that the alleged delay
was adequately explained. As to Barredos testimony, a closer reading of her
supposed flip-flopping shows that the alleged contradictions were due to an
honest misapprehension of fact on her part.
When the issue boils down to the credibility of witnesses, the appellate
court will not generally disturb the findings of the trial court because the latter
is in the vantage position of observing witnesses through the
various indicia of truthfulness or falsehood. [82] However, this rule is not
absolute. One exception is where the judge who wrote the decision did not
personally hear the prosecutions evidence.[83] In this case, the records show
that Judge Angel V. Colet, who authored the assailed decision, took over
from Judge Benigno M. Galacgac only on April 29, 1997 or after the
witnesses for the prosecution had testified. It does not follow, however, that a
judge who was not present at the trial cannot render a just and valid
judgment. The records and the transcripts of stenographic notes are
available to him as basis for his decision.
After going over the transcripts of the witnesses testimonies, we find no
reason to disturb the findings of the trial court. With respect to the statements
of Gumpic, we agree with the Solicitor General that alleged inconsistencies
refer only to irrelevant and collateral matters, which have nothing to do with
the elements of the crime. It is axiomatic that slight variations in the
testimony of a witness as to minor details or collateral matters do not affect
his or her credibility as these variations are in fact indicative of truth and
show that the witness was not coached to fabricate or dissemble. [84] An
inconsistency, which has nothing to do with the elements of a crime, is not a
ground to reverse a conviction.[85]
We likewise find no basis for appellants contention that Bayanes and
Bayacsan failed to give a satisfactory explanation for the delay or vacillation
in disclosing to the authorities what they knew.Bayanes gave a satisfactory
reason for her delay in reporting to the authorities what she knew. She had
simply gone about her normal business activities for some months, unaware
that a case had been filed concerning the killing of Nemesio. It was only nine
(9) months after the incident that she read a notice for help posted by the
victims relatives at the Trading Post, appealing to possible witnesses to the
killing to come forth and assist them in their quest for justice. It was only then
that she decided to reveal to the authorities what she knew.
As to Bayacsan, he candidly admitted in court that he considered
appellant his friend and he wanted to protect him and hence, he only
disclosed appellants admission to him when the police started questioning
him. There is no rule that the suspect in a crime should immediately be
named by a witness.[86] Different people react differently to a given situation
and there is no standard form of human behavior when one is confronted
with a strange, startling, or frightful experience. [87] The Court understands the
natural reluctance or aversion of some people to get involved in a criminal
case.[88] More so where, as in these cases, a townmate of Bayanes and
Bayacsan is involved. We have taken notice that when their townmates are
involved in a criminal case, most people turn reticent. [89] Hence, the failure of
Bayanes and Bayacsan to immediately volunteer information to the police
investigators will not lessen the probative value of their respective
testimonies. The delay, having been satisfactorily explained, has no effect on
their credibility.[90]
We have likewise closely scrutinized the testimony of Mona Barredo
regarding the alleged admission by appellant to her that he killed the victim.
We find nothing flip-flopping about her testimony. Instead, we find a witness
who admitted she was nervous that she might not be able to answer all the
questions.[91] Said nervousness was engendered by her erroneous belief that
to be a credible witness, she must have personal knowledge of the crime.
[92]
Even the most candid witnesses make mistakes and may give some
contradictory or inconsistent statements, but such honest lapses need not
necessarily affect their credibility. Ample margin should be accorded a
witness who is tension-filled with the novelty of testifying before a court. [93]
Appellant further contends that the trial court erred in giving credence to
the verbal admissions of guilt he made to Gumpic and SPO4 Bomagao
inside the police station since said admissions are inadmissible in evidence
as uncounseled confessions.
The OSG submits that said verbal admissions of complicity, as well as
those made to appellant to Bayacsan and Barredo, are admissible as
statements forming part of the res gestae. We agree on this point with the
OSG.
The requisites of res gestae are: (1) the principal act or res gestae must
be a startling occurrence; (2) the statement is spontaneous or was made
before the declarant had time to contrive or devise a false statement, and the
statement was made during the occurrence or immediately prior or
subsequent to thereto; and (3) the statement made must concern the
occurrence in question and its immediately attending circumstances. [94] All
these elements are present in appellants verbal admission to Barredo that he
killed the victim when he went to the latters house half an hour after the fatal
shooting of Nemesio.
The verbal admission by appellant to Barredo was made before
appellant had the time and opportunity to contrive a falsehood. Similar
statements have been held to be part of the res gestae: (1) a childs
declaration made an hour after an alleged assault; [95] (2) the testimony of a
police officer as to what the victim revealed to him some 30 minutes after the
commission of an alleged crime;[96]and (3) a victims declaration made some 5
to 10 minutes after an alleged felony took place. [97] Note that since appellants
admission was not solicited by police officers in the course of a custodial
investigation, but was made to a private person, the provisions of the Bill of
Rights on custodial investigation do not apply. The Rules of Court [98] provides
that an admission made to a private person is admissible in evidence against
the declarant.[99]
Prosecutions evidence here is admittedly circumstantial. But in the
absence of an eyewitness, reliance on circumstantial evidence is inevitable.
[100]
Resort thereto is essential when the lack of direct evidence would result
in setting a felon free.[101]
Circumstantial evidence suffices to convict if the following requisites are
met: (1) there is more than one circumstance; (2) the facts from which the
inferences are derived are proven; and (3) the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt.
[102]
In our mind, the following pieces of circumstantial evidence show with
moral certainty that appellant was responsible for the death of Nemesio:
1. Appellant had the motive to kill Nemesio Lopate for having an affair with his
wife, and appellant had openly expressed his desire and intention to do so;
2. At around 10:00 p.m. of March 10, 1996, Annie Bayanes and Marlon Manis heard
two gun shots at the Trading Post, La Trinidad, Benguet and saw Nemesio Lopate
fall to the ground;
3. Bayanes saw appellant behind the victim, tucking a gun into his waistband, and
walking away;
4. From another angle, Manis also saw a person whose gait and built resembled that
of appellant walking away from the crime scene;
5. At around 10:30 p.m. of March 10, 1996, appellant went to the house of Mona
Barredo, brought out a handgun, emptied it of two spent .38 caliber shells and
instructed Barredo to throw the shells out of the window, which she did;
6. Appellant then told Barredo that he had shot and killed his wifes paramour, after
which he stayed at Barredos house for the night;
7. On March 11, 1996, Dr. Doris C. Jovellanos, Municipal Health Officer of La
Trinidad, Benguet recovered a .38 caliber slug from Nemesios corpse and found two
(2) bullet entry wounds on the said cadaver;
8. On March 18, 1996, police investigators, assisted by Barredo, recovered two (2)
spent .38 caliber shells from Barredos sweet potato patch, immediately outside her
residence wherein appellant had slept a week before.
The foregoing circumstances clearly show that appellant had the motive,
the opportunity, and the means to commit the crime at the place and time in
question. Simply put, the circumstantial evidence adduced by the prosecution
has successfully overcome the claim of innocence by appellant. Under the
proved circumstances, appellants defense of alibi is untenable. More so, in
this situation where prosecution witness Bayanes unflinchingly declared that
she saw appellant standing behind the victim, tucking a gun in his pants,
moments after the latter was shot. As we held in People v. Salveron,[103] and
reiterated in People v. Sesbreo,[104] where an eyewitness saw the accused
with a gun, seconds after the gunshot and after the victim fell to the ground,
the reasonable conclusion is that said accused killed the victim.
Appellants alibi cannot prevail over the positive testimony of Bayanes
concerning appellants identification and presence at the crime scene. Basic
is the rule that for alibi to prosper, the accused must prove that he was
somewhere else when the crime was committed and that it was physically
impossible for him to have been at the scene of the crime. [105] Physical
impossibility refers to the distance between the place where the appellant
was when the crime transpired and the place where it was committed, as well
as the facility of access between the two places. [106] In these cases, the
defense admitted that the distance between La Trinidad, Benguet and
Kayapa, Nueva Vizcaya is 79 kilometers, which can be negotiated in 4 or 5
hours.[107] Clearly, it was not physically impossible for appellant to be at
the locus criminis at the time of the killing. Hence, the defense of alibi must
fail.
In sum, we find that the prosecutions evidence suffices to sustain the
appellants conviction for homicide.
3. Crime and its Punishment
As appellant can only be convicted of homicide, it follows that he
cannot, under the provisions of RA No. 7659, be sentenced to suffer the
death penalty. The penalty for homicide under Article 249 of the Revised
Penal Code is reclusion temporal. Our task now is to determine whether
there are aggravating or mitigating circumstances which could modify the
penalty.
More specifically, may the special aggravating circumstance of use of an
unlicensed firearm be taken against the appellant?
Appellant argues that the trial court erred in appreciating the special
aggravating circumstance of use of unlicensed firearm in the present case.
Like the killing, said aggravating circumstance must likewise be proved
beyond reasonable doubt, says the appellant. On this point, he adds, the
prosecution failed to adduce the necessary quantum of proof.
We find merit in the appellants contentions. It is not enough that the
special aggravating circumstance of use of unlicensed firearm be alleged in
the information, the matter must be proven with the same quantum of proof
as the killing itself. Thus, the prosecution must prove: (1) the existence of the
subject firearm; and (2) the fact that the accused who owned or possessed it
does not have the corresponding license or permit to own or possess the
same.[108] The records do not show that the prosecution presented any
evidence to prove that appellant is not a duly licensed holder of a caliber .38
firearm. The prosecution failed to offer in evidence a certification from the
Philippine National Police Firearms and Explosives Division to show that
appellant had no permit or license to own or possess a .38 caliber
handgun. Nor did it present the responsible police officer on the matter of
licensing as a prosecution witness. Absent the proper evidentiary proof, this
Court cannot validly declare that the special aggravating circumstance of use
of unlicensed firearm was satisfactorily established by the
prosecution. Hence such special circumstance cannot be considered for
purposes of imposing the penalty in its maximum period.
Coming now to the obverse side of the case, is the appellant entitled to
benefit from any mitigating circumstance?
Appellant, firstly contends that assuming without admitting that he is
guilty, the lower court should have considered at least the mitigating
circumstance of immediate vindication of a grave offense as well as that of
passion and obfuscation. Appellant points out that the victims act of
maintaining an adulterous relationship with appellants wife constituted a
grave offense to his honor, not to mention the shame, anguish, and anxiety
he was subjected to. Even the mere sight of the victim must have triggered
an uncontrollable emotional outburst on appellants part, so that even a
chance meeting caused in him an irresistible impulse powerful enough to
overcome all reason and restraint. Secondly, appellant points out that the trial
court failed to consider his voluntary surrender as a mitigating circumstance.
The Solicitor General counters that there was literally no immediate
vindication to speak of in this case. Appellant had sufficient time to recover
his serenity following the discovery of his wifes infidelity. Nor could passion
and obfuscation be appreciated in appellants favor because the killing was
not proximate to the time of the offense. Appellant became aware of the
treatment offensive to his dignity as a husband and to the peace and
tranquility of his home two weeks earlier. This interval between the revelation
of his wifes adultery and the fatal shooting was ample and sufficient for
reason and self-control to reassert themselves in appellants mind. As to the
mitigating circumstance of voluntary surrender, the OSG stresses that his
supposed surrender at Kayapa, Nueva Vizcaya was actually due to the
efforts of law enforcers who came looking for him. There he did not resist, but
lack of resistance alone is not tantamount to voluntary surrender, which
denotes a positive act and not merely passive conduct.
According to the OSG, for the mitigating circumstance of vindication of a
grave offense to apply, the vindication must be immediate. This view is not
entirely accurate. The word immediate in the English text is not the correct
translation of the controlling Spanish text of the Revised Penal Code, which
uses the word proxima.[109] The Spanish text, on this point, allows a lapse of
time between the grave offense and the actual vindication. [110] Thus, in an
earlier case involving the infidelity of a wife, the killing of her paramour
prompted proximately though not immediately by the desire to avenge the
wrong done, was considered an extenuating circumstance in favor of the
accused.[111] The time elapsed between the offense and the suspected cause
for vindication, however, involved only hours and minutes, not days. Hence,
we agree with the Solicitor General that the lapse of two (2) weeks between
his discovery of his wifes infidelity and the killing of her supposed paramour
could no longer be considered proximate. The passage of a fortnight is more
than sufficient time for appellant to have recovered his composure and
assuaged the unease in his mind. The established rule is that there can be
no immediate vindication of a grave offense when the accused had sufficient
time to recover his serenity. [112] Thus, in this case, we hold that the mitigating
circumstance of immediate vindication of a grave offense cannot be
considered in appellants favor.
We likewise find the alleged mitigating circumstance of passion and
obfuscation inexistent. The rule is that the mitigating circumstances of
vindication of a grave offense and passion and obfuscation cannot be
claimed at the same time, if they arise from the same facts or motive. [113] In
other words, if appellant attacked his victim in proximate vindication of a
grave offense, he could no longer claim in the same breath that passion and
obfuscation also blinded him. Moreover, for passion and obfuscation to be
well founded, the following requisites must concur: (1) there should be an act
both unlawful and sufficient to produce such condition of mind; and (2) the
act which produced the obfuscation was not far removed from the
commission of the crime by a considerable length of time, during which the
perpetrator might recover his moral equanimity. [114] To repeat, the period of
two (2) weeks which spanned the discovery of his wifes extramarital
dalliance and the killing of her lover was sufficient time for appellant to reflect
and cool off.
Appellant further argues that the lower court erred in failing to consider
voluntary surrender as a mitigating circumstance. On this point, the following
requirements must be satisfied: (1) the offender has not actually been
arrested; (2) the offender surrendered himself to a person in authority; and
(3) the surrender was voluntary. [115] Records show, however, that leaflets and
posters were circulated for information to bring the killer of Nemesio to
justice. A team of police investigators from La Trinidad, Benguet then went to
Kayapa, Nueva Vizcaya to invite appellant for questioning. Only then did he
return to Benguet. But he denied the charge of killing the victim. Clearly,
appellants claimed surrender was neither spontaneous nor voluntary.
Absent any aggravating or mitigating circumstance for the offense of
homicide the penalty imposable under Art. 64 of the Revised Penal Code
is reclusion temporal in its medium period. Applying the Indeterminate
Sentence Law, the penalty which could actually be imposed on appellant is
an indeterminate prison term consisting of eight (8) years and one (1) day
of prision mayor as minimum to fourteen (14) years, eight (8) months and
one (1) day of reclusion temporal as maximum.
4. Proper Award of Damages
Appellant and the Solicitor General are one in contending that the trial
court awarded excessive actual damages without adequate legal
basis. Thus, the amount of P150,000.00 was awarded for funeral and burial X = P1,020,000
expenses without any supporting evidence on record. [116] This cannot be
sustained in this review. In order for actual damages to be recovered, the This amount should form part of the damages awarded to the heirs.
amount of loss must not only be capable of proof but must actually be proven
with reasonable degree of certainty, premised upon competent proof or best We sustain the award of P50,000 as indemnity ex delicto. But there
evidence obtainable of the actual amount thereof, such as receipts or other being no testimony or other proof thereon, the award of P50,000 as moral
documents to support the claim.[117] The records clearly show in this case that damages cannot now be sustained. Instead, temperate damages in the
only the amount of P7,000 as funeral expenses was duly supported by a amount of P25,000 should be awarded.
receipt.[118] Hence, the award of actual damages should be limited to P7,000
The award of P20,000 in attorneys fees should be maintained. Records
only.
show that the victims widow had to hire the services of a private prosecutor
Appellant further contests the award of P2,040,000 for loss of earning to actively prosecute the civil aspect of this case, [121] and in line with Article
capacity as unconscionable. Since the victims widow could not present any 2208 of the Civil Code,[122] reasonable attorney fees may be duly recovered.
income tax return of her husband to substantiate her claim that his net
WHEREFORE, the judgment of the Regional Trial Court of La Trinidad,
income was P60,000 annually, then according to appellant, there is no basis
Benguet, Branch 8, in Criminal Case No. 96-CR-2522 is MODIFIED as
for this award at all. At best, appellant says, only temperate or nominal
follows:
damages may be awarded.
Appellant June Ignas y Sanggino is found GUILTY beyond reasonable
The OSG responds that the award for loss of earning capacity has
doubt of the crime of HOMICIDE as defined and penalized under Article 249
adequate basis as the prosecution presented sufficient evidence on the
of the Revised Penal Code, as amended.There being neither aggravating nor
productivity of the landholdings being tilled by the deceased and the
mitigating circumstance, he is hereby sentenced to suffer an indeterminate
investments made by the Lopate family from their income. Hence, said the
penalty of ten (10) years and one (1) day of prision mayor as minimum, to
OSG, it was not a product of sheer conjecture or speculation. Nonetheless,
fourteen (14) years, eight (8) months, and one (1) day of reclusion
the OSG submits that the original amount of P1,800,000 for loss of earning
temporal as maximum.
capacity should be restored as it is this amount which takes into account only
a reasonable portion of annual net income which would have been received Appellant June Ignas y Sanggino is ORDERED TO PAY the heirs of the
as support by the heirs. victim, Nemesio Lopate, the following sums: a) P7,000 as actual damages;
b) P1,020,000 for loss of earning capacity; c) P50,000 as civil indemnity;
In setting said award at P2,040,000, amended from P1,800,000, for lost
d) P25,000 as temperate damages; and e) P20,000 as attorneys
earnings, the trial court took note of the following factors in its computations:
fees. Costs de oficio.
The Death Certificate of Nemesio Lopate shows that he died at the age
SO ORDERED.
of 29.[119] His widows detailed testimony shows that their average annual net
income from vegetable farming was P60,000.[120] The victims share of the
annual net income from the couples farm is half thereof, or P30,000. Using
the American Expectancy Table of Mortality, the life expectancy of the victim
at age 29 is set at 34 years.
Therefore, total loss of Earning Capacity (X) should be computed as
follows:

X = 2/3 (80-29) x P30,000

X = 2/3 (51) x P30,000

X = 34 x P30,000
 That on or about the 11th day of May 2000, in the City of Legazpi
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, did then and there wilfully, unlawfully and feloniously
commit on the person of JAYSON DELA CRUZ, a twelve year-old,

Grade VI pupil of MABA Institute, Legazpi City, acts of physical abuse

and/or maltreatment by striking said JAYSON DELA CRUZ with his palm
hitting the latter at his back and by slapping said minor hitting his left
Republic of the Philippines cheek and uttering derogatory remarks to the latter’s family to wit: "Mga
SUPREME COURT hayop kamo, para dayo kamo digdi, Iharap mo dito ama mo" (You all
Manila animals, you are all strangers here. Bring your father here), which acts of
the accused are prejudicial to the child’s development and which demean
FIRST DIVISION the intrinsic worth and dignity of the said child as a human being.

G.R. No. 169533 March 20, 2013 CONTRARY TO LAW.3

GEORGE BONGALON, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
Not every instance of the laying of hands on a child constitutes the crime
of child abuse under Section 10 (a) of Republic Act No. 7610.1 Only when
the laying of hands is shown beyond reasonable doubt to be intended by
the accused to debase, degrade or demean the intrinsic worth and dignity
of the child as a human being should it be punished as child abuse.
Otherwise, it is punished under the Revised Penal Code.
The Case
On June 22, 2005,2 the Court of Appeals (CA) affirmed the conviction of
the petitioner for the crime of child abuse under Section 10 (a) of
Republic Act No. 7610.
Antecedents
On June 26, 2000, the Prosecutor’s Office of Legazpi City charged the
petitioner in the Regional Trial Court (RTC) in Legazpi City with child
abuse, an act in violation of Section 10(a) of Republic Act No. 7610,
alleging as follows:
The Prosecution showed that on May 11, 2002, Jayson Dela Cruz
(Jayson) and Roldan, his older brother, both minors, joined the evening
procession for the Santo Niño at Oro Site in Legazpi City; that when the
procession passed in front of the petitioner’s house, the latter’s daughter
Mary Ann Rose, also a minor, threw stones at Jayson and called him
"sissy"; that the petitioner confronted Jayson and Roldan and called them
names like "strangers" and "animals"; that the petitioner struck Jayson at
the back with his hand, and slapped Jayson on the face;4 that the
petitioner then went to the brothers’ house and challenged Rolando dela
Cruz, their father, to a fight, but Rolando did not come out of the house to
take on the petitioner; that Rolando later brought Jayson to the Legazpi
City Police Station and reported the incident; that Jayson also underwent
medical treatment at the Bicol Regional Training and Teaching
Hospital;5 that the doctors who examined Jayson issued two medical
certificates attesting that Jayson suffered the following contusions, to wit:
(1) contusion .5 x 2.5 scapular area, left; and (2) +1x1 cm. contusion left
zygomatic area and contusion .5 x 2.33 cm. scapular area, left.6
On his part, the petitioner denied having physically abused or maltreated
Jayson. He explained that he only talked with Jayson and Roldan after
Mary Ann Rose and Cherrylyn, his minor daughters, had told him about
Jayson and Roldan’s throwing stones at them and about Jayson’s
burning Cherrylyn’s hair. He denied shouting invectives at and
challenging Rolando to a fight, insisting that he only told Rolando to
restrain his sons from harming his daughters.7
To corroborate the petitioner’s testimony, Mary Ann Rose testified that her
father did not hit or slap but only confronted Jayson, asking why Jayson
had called her daughters "Kimi" and why he had burned Cherrlyn’s hair.
Mary Ann Rose denied throwing stones at Jayson and calling him a
"sissy." She insisted that it was instead Jayson who had pelted her with
stones during the procession. She described the petitioner as a loving
and protective father.8
Ruling of the RTC
After trial, the RTC found and declared the petitioner guilty of child abuse
as charged, to wit:9
WHEREFORE, in view of the foregoing considerations, judgment is
hereby rendered finding the accused GEORGE BONGALON @ "GI"
GUILTY beyond reasonable doubt of Violation of Republic Act No. 7610,
and is hereby ordered to undergo imprisonment of six (6) years and one
(1) day to eight (8) years of prision mayor in its minimum period.
SO ORDERED.
Ruling of the CA
On appeal, the petitioner assailed the credibility of the Prosecution
witnesses by citing their inconsistencies. He contended that the RTC
overlooked or disregarded material facts and circumstances in the
records that would have led to a favorable judgment for him. He attacked
the lack of credibility of the witnesses presented against him, citing the
failure of the complaining brothers to react to the incident, which was
unnatural and contrary to human experience.
The CA affirmed the conviction, but modified the penalty,10 viz:
WHEREFORE, premises considered, the decision dated October 20,
2003 of the Regional Trial Court, Branch 9 of Legazpi City is hereby
AFFIRMED with MODIFICATION in that accused-appellant George
Bongalon is sentenced to suffer the indeterminate penalty of (4) years,
two (2) months and one (1) day of prision correccional, as minimum term,
to six (6) years, eight (8) months and 1 day of prision mayor as the
maximum term.
Further, accused-appellant is ordered to pay the victim, Jayson de la
Cruz the additional amount of ₱5,000 as moral damages.
SO ORDERED.
Issues
The petitioner has come to the Court via a petition for certiorari under
Rule 65 of the Rules of Court.11
The petitioner asserts that he was not guilty of the crime charged; and
that even assuming that he was guilty, his liability should be mitigated
because he had merely acted to protect her two minor daughters.
Ruling of the Court
At the outset, we should observe that the petitioner has adopted the
wrong remedy in assailing the CA’s affirmance of his conviction. His
proper recourse from the affirmance of his conviction was an appeal
taken in due course. Hence, he should have filed a petition for review on
certiorari. Instead, he wrongly brought a petition for certiorari. We
explained why in People v. Court of Appeals:12
The special civil action for certiorari is intended for the correction of errors
of jurisdiction only or grave abuse of discretion amounting to lack or
excess of jurisdiction. Its principal office is only to keep the inferior court
within the parameters of its jurisdiction or to prevent it from committing
such a grave abuse of discretion amounting to lack or excess of
jurisdiction. As observed in Land Bank of the Philippines v. Court of
Appeals, et al. "the special civil action for certiorari is a remedy designed
for the correction of errors of jurisdiction and not errors of judgment. The
raison d’etre for the rule is when a court exercises its jurisdiction, an error
committed while so engaged does not deprived it of the jurisdiction being
exercised when the error is committed. If it did, every error committed by
a court would deprive it of its jurisdiction and every erroneous judgment
would be a void judgment. In such a scenario, the administration of
justice would not survive. Hence, where the issue or question involved
affects the wisdom or legal soundness of the decision–not the jurisdiction
of the court to render said decision–the same is beyond the province of a
special civil action for certiorari. The proper recourse of the aggrieved
party from a decision of the Court of Appeals is a petition for review on
certiorari under Rule 45 of the Revised Rules of Court.
It is of no consequence that the petitioner alleges grave abuse of
discretion on the part of the CA in his petition. The allegation of grave
abuse of discretion no more warrants the granting of due course to the
petition as one for certiorari if appeal was available as a proper and
adequate remedy. At any rate, a reading of his presentation of the issues
in his petition indicates that he thereby imputes to the CA errors of
judgment, not errors of jurisdiction. He mentions instances attendant
during the commission of the crime that he claims were really constitutive
of justifying and mitigating circumstances; and specifies reasons why he
believes Republic Act No. 7610 favors his innocence rather than his guilt
for the crime charged.13 The errors he thereby underscores in the petition
concerned only the CA’s appreciation and assessment of the evidence on
record, which really are errors of judgment, not of jurisdiction.
Even if we were to treat the petition as one brought under Rule 45 of the
Rules of Court, it would still be defective due to its being filed beyond the
period provided by law. Section 2 of Rule 45 requires the filing of the
petition within 15 days from the notice of judgment to be appealed.
However, the petitioner received a copy of the CA’s decision on July 15,
2005,14 but filed the petition only on September 12, 2005,15 or well beyond
the period prescribed by the Rules of Court.
The procedural transgressions of the petitioner notwithstanding, we opt to
forego quickly dismissing the petition, and instead set ourselves upon the
task of resolving the issues posed by the petition on their merits. We
cannot fairly and justly ignore his plea about the sentence imposed on
him not being commensurate to the wrong he committed. His plea is
worthy of another long and hard look. If, on the other hand, we were to
outrightly dismiss his plea because of the procedural lapses he has
committed, the Court may be seen as an unfeeling tribunal of last resort
willing to sacrifice justice in order to give premium to the rigidity of its
rules of procedure. But the Rules of Court has not been intended to be
rigidly enforced at all times. Rather, it has been instituted first and
foremost to ensure justice to every litigant. Indeed, its announced
objective has been to secure a "just, speedy and inexpensive disposition
of every action and proceeding."16 This objective will be beyond
realization here unless the Rules of Court be given liberal construction
and application as the noble ends of justice demand. Thereby, we give
primacy to substance over form, which, to a temple of justice and equity
like the Court, now becomes the ideal ingredient in the dispensation of
justice in the case now awaiting our consideration.
The petitioner’s right to liberty is in jeopardy. He may be entirely deprived
of such birthright without due process of law unless we shunt aside the
rigidity of the rules of procedure and review his case. Hence, we treat this
recourse as an appeal timely brought to the Court. Consonant with the
basic rule in criminal procedure that an appeal opens the whole case for
review, we should deem it our duty to correct errors in the appealed
judgment, whether assigned or not.17
The law under which the petitioner was charged, tried and found guilty of
violating is Section 10 (a), Article VI of Republic Act No. 7610, which
relevantly states:
Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and
other Conditions Prejudicial to the Child’s Development. –
(a) Any person who shall commit any other acts of child abuse, cruelty or
exploitation or be responsible for other conditions prejudicial to the child’s
development including those covered by Article 59 of Presidential Decree
No. 603, as amended, but not covered by the Revised Penal Code, as
amended, shall suffer the penalty of prision mayor in its minimum period.
xxxx
Child abuse, the crime charged, is defined by Section 3 (b) of Republic
Act No. 7610, as follows:
Section 3. Definition of terms. –
xxxx
(b) "Child Abuse" refers to the maltreatment, whether habitual or not, of
the child which includes any of the following:
(1) Psychological and physical abuse, neglect, cruelty, sexual
abuse and emotional maltreatment;
(2) Any act by deeds or words which debases, degrades or
demeans the intrinsic worth and dignity of a child as a human
being;
(3) Unreasonable deprivation of his basic needs for survival, such
as food and shelter; or
(4) Failure to immediately give medical treatment to an injured
child resulting in serious impairment of his growth and
development or in his permanent incapacity or death.
 xxxx
Although we affirm the factual findings of fact by the RTC and the CA to
the effect that the petitioner struck Jayson at the back with his hand and
slapped Jayson on the face, we disagree with their holding that his acts
constituted child abuse within the purview of the above-quoted
provisions. The records did not establish beyond reasonable doubt that
his laying of hands on Jayson had been intended to debase the "intrinsic
worth and dignity" of Jayson as a human being, or that he had thereby
intended to humiliate or embarrass Jayson. The records showed the
laying of hands on Jayson to have been done at the spur of the moment
and in anger, indicative of his being then overwhelmed by his fatherly
concern for the personal safety of his own minor daughters who had just
suffered harm at the hands of Jayson and Roldan. With the loss of his
self-control, he lacked that specific intent to debase, degrade or demean
the intrinsic worth and dignity of a child as a human being that was so
essential in the crime of child abuse.
It is not trite to remind that under the well-recognized doctrine of pro reo
every doubt is resolved in favor of the petitioner as the accused. Thus,
the Court should consider all possible circumstances in his favor. 18
What crime, then, did the petitioner commit?
Considering that Jayson’s physical injury required five to seven days of
medical attention,19 the petitioner was liable for slight physical injuries
under Article 266 (1) of the Revised Penal Code, to wit:
Article 266. Slight physical injuries and maltreatment. — The crime of
slight physical injuries shall be punished:
1. By arresto menor when the offender has inflicted physical injuries
which shall incapacitate the offended party for labor from one to nine
days, or shall require medical attendance during the same period.
xxxx
The penalty for slight physical injuries is arresto menor, which ranges
from one day to 30 days of imprisonment.20 In imposing the correct
penalty, however, we have to consider the mitigating circumstance of
passion or obfuscation under Article 13 (6) of the Revised Penal
Code,21 because the petitioner lost his reason and self-control, thereby
diminishing the exercise of his will power.22 Passion or obfuscation may
lawfully arise from causes existing only in the honest belief of the
accused.23 It is relevant to mention, too, that in passion or obfuscation,
the offender suffers a diminution of intelligence and intent. With his
having acted under the belief that Jayson and Roldan had thrown stones
at his two minor daughters, and that Jayson had burned Cherrlyn’s hair,
the petitioner was entitled to the mitigating circumstance of passion.
Arresto menor is prescribed in its minimum period (i.e., one day to 10
days) in the absence of any aggravating circumstance that offset the
mitigating circumstance of passion. Accordingly, with the Indeterminate
Sentence Law being inapplicable due to the penalty imposed not
exceeding one year,24 the petitioner shall suffer a straight penalty of 10
days of arresto menor.
The award of moral damages to Jayson is appropriate. Such damages
are granted in criminal cases resulting in physical injuries.25 The amount
of ₱5,000.00 fixed by the lower courts as moral damages is consistent
with the current jurisprudence.26
WHEREFORE, we SET ASIDE the decision of the Court of Appeals; and
ENTER a new judgment: (a) finding petitioner George Bongalon GUlLTY
beyond reasonable doubt of the crime of SLIGHT PHYSICAL INJURIES
under paragraph 1, Article 266, of the Revised Penal Code; (b)
sentencing him to suffer the penalty of 10 days of arresto menor; and (c)
ordering him to pay Jayson Dela Cruz the amount of ₱5,000.00 as moral
damages, plus the costs of suit.
SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 107383 December 7, 1994
FELIX NIZURTADO, petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.
Melquiades P. De Leon for petitioner.
When arraigned by the Sandiganbayan, Nizurtado pleaded "not guilty" to
the charge. During the pre-trial, held on 17 July 1989, the prosecution
Eugene C. Paras collaborating counsel for the petitioner.
and the defense stipulated thusly:
VITUG, J.:
An information, accusing Felix Nizurtado of having committed the
complex crime of malversation of public funds through falsification of
public document, reads:
That on or about August 25, 1983, and for sometime prior
or subsequent thereto, in the City of Caloocan,
Philippines and within the jurisdiction of this Honorable
Court, the abovenamed accused, a public officer, being
then the Barangay Captain of Panghulo, Malabon, Metro
Manila, did then and there, willfully, unlawfully and
feloniously falsify and attest Resolution No. 17 Series of
1983 by making it appear that on August 25, 1983 the
Barangay council of Panghulo met and identified T-shirt
manufacturing as its livelihood project, when in truth and
in fact, as the accused fully well knew, no such meeting
was held, where T-shirt manufacturing was identified and
approved by the Barangay Council as its livelihood
project, and thereafter, accused submitted the falsified
resolution to the MHS-MMC-KKK Secretariat which
endorsed the same to the Land Bank of the Philippines,
which on the basis of said endorsement and the falsified
resolution, encashed LBP check No. 184792 in the
amount of TEN THOUSAND PESOS (P10,000.00), which
check was earlier received by him as Barangay Captain
of Panghulo in trust for the Barangay for its livelihood
project and for which fund accused became accountable,
and upon receipt thereof herein accused, with deliberate
intent and grave abuse of confidence did then and there
willfully, unlawfully and feloniously misappropriate,
misapply and convert to his own personal use and benefit
the amount of TEN THOUSAND PESOS (P10,000.00) out
of the funds for which he was accountable, to the damage
and prejudice of the government in the said amount.
CONTRARY TO LAW. 1
1. That sometime in 1983 and 1984, accused Felix
Nizurtado was the Barangay Captain of Barangay
Panghulo of Malabon, Metro Manila and discharged his
functions as such;
2. That sometime in 1983, the Ministry of Human
Settlements, the Metro Manila Commission and Kilusang
Kabuhayan at Kaunlaran (KKK) undertook a Livelihood
Program for Barangays in Metro Manila consisting of
loans in the amount of P10, 000.00 per barangay.
3. That as Barangay Captain of Barangay Panghulo,
accused received a check in the amount of P10,000.00
for said barangay's livelihood program;
 4. That the check, to be encashed, had to be supported
by a project proposal to be approved by the KKK;
5. That the accused encashed the check received by him
in the amount of P10,000.00 with the Land Bank of the
Philippines; and
6. That the accused distributed the amount of P10,000.00
in the form of loans of P1,000.00 each to members of the
barangay council. 2
After evaluating the evidence adduced, the Sandiganbayan came out
with its factual findings and conclusions, hereunder detailed:
It appears from the evidence, testimonial and
documentary, as well as from the stipulations of the
parties that accused Felix V. Nizurtado was the Barangay
Captain of Barangay Panghulo, Malabon, Metro Manila
from 1983 to 1988.
In April or May 1983, Nizurtado and Manuel P. Romero,
Barangay Treasurer of Panghulo, attended a seminar at
the University of Life, Pasig, Metro Manila. The seminar
was about the Barangay Livelihood Program of the
Ministry of Human Settlements (MHS), the Metro Manila
Commission (MMC), and the Kilusang Kabuhayan at
Kaunlaran (KKK). Under the program, the barangays in
Metro Manila could avail of loans of P10,000.00 per
barangay to finance viable livelihood projects which the
Barangay Councils would identify from the modules
developed by the KKK Secretariat or which, in the
absence of such modules, the Councils would choose
subject to the evaluation/validation of the Secretariat.
After the seminar, Nizurtado received a check for
P10,000.00 intended for Barangay Panghulo and issued
in his name. The check, however, could be encashed only
upon submission to the Secretariat of a resolution
approved by the Barangay Council identifying the
livelihood project in which the loan would be invested. He
entrusted the check to Romero for safekeeping.
In one of its regular sessions, which was on the second
Saturday of each month, the Barangay Council of
Panghulo discussed the project in which to invest the
P10,000.00. Among the proposals was that of Romero
that a barangay service center be established. But the
meeting ended without the Councilmen agreeing on any
livelihood project.
A few days after the meeting, Nizurtado got back the
check from Romero, saying that he would return it
because, as admitted by Nizurtado during the trial, the
Councilmen could not agree on any livelihood project.
Nizurtado signed a receipt dated August 4, 1983, for the
check "to be returned to the Metro Manila Commission."
After a few more days, Nizurtado asked Romero to sign
an unaccomplished resolution in mimeograph form. All the
blank spaces in the form were unfilled-up, except those at
the bottom which were intended for the names of the
Barangay Councilmen, Secretary, and Captain, which
were already filled-up and signed by Councilmen Marcelo
Sandel, Jose Bautista, Alfredo Aguilar, Alfredo Dalmacio,
F.A. Manalang (the alleged Barangay Secretary), and
Nizurtado. In asking Romero to sign, Nizurtado said that
the MMC was hurrying up the matter and that the
livelihood project to be stated in the resolution was that
proposed by Romero — barangay service center. Trusting
Nizurtado, Romero affixed his signature above his
typewritten name. When he did so, the blank resolution
did not yet bear the signatures of Councilmen Santos
Gomez and Ceferino Roldan.
The blank resolution having already been signed by
Romero, Nizurtado asked him to talk with Gomez and
secure the latter's signature. Romero obliged and upon
his pleading that his proposed barangay service center
would be the one written in the blank resolution, Gomez
signed. But before he returned the resolution, he had it
machine copied. The machine copy is now marked
Exhibit J.
Unknown to Romero and Gomez, the blank but signed
resolution was later on accomplished by writing in the
blank space below the paragraph reading:
 WHEREAS, the Barangay Council now in
this session had already identified one
livelihood project with the following title
and description:
the following:
Title : T-shirt
Manufacturing
Description : Manufacture
of round neck T-shirts of
various sizes and colors.
The other blank spaces in the resolution were also filled-
up. Thus "Panghulo," "Brgy. Hall," and "August 25, 1983"
were typewritten in the spaces for the name of the
Barangay, the place where and the date when the council
meeting took place, respectively. In the blank spaces for
the names of the members of the Council who attended
the meeting were typewritten the names of
Felix Nizurtado Barangay Captain
Marcelo Sandel Barangay Councilman
Alfredo Aguilar Barangay Councilman
Santos Gomez Barangay Councilman
Jose Bautista Barangay Councilman
Alfredo Dalmacio Barangay Councilman
Ceferino Roldan Barangay Councilman
The word "none" was inserted in the space intended for
the names of the Councilmen who did not attend. The
resolution was given the number "17" series of "1983."
Finally, the last line before the names and signatures of
the Councilmen was completed by typewriting the date so
that it now reads:
UNANIMOUSLY APPROVED
this 25th day of August, 1983.
The resolution as fully accomplished is now marked
Exhibit D.
Other supporting documents for the encashment of the
check of P10,000.00 were also prepared, signed, and
filed by Nizurtado. They were: Project Identification
(Exhibit B), Project Application in which the borrower was
stated to be Samahang Kabuhayan ng Panghulo (Exhibit
C and C-1), Project Location Map (Exhibit E), and
Promissory Note
(Exhibit F).
The application for loan having been approved, the
Promissory Note (Exhibit F) was re-dated from August to
October 18, 1983, placed in the name of the Samahang
Kabuhayan ng Panghulo represented by Nizurtado, and
made payable in two equal yearly amortizations of
P5,000.00 each from its date. The purpose of the loan
was stated to be
T-Shirt Manufacturing of round neck shirts of various
sizes and colors.
Nizurtado encashed the check on the same day, October
18, 1983, and re-lent the cash proceeds to himself,
Sandel, Aguilar, Bautista, Dalmacio, and Roldan at
P1,000.00, and to Manalang and Oro Soledad, Barangay
Court Secretary and Barangay Secretary, respectively, at
P500.00 each.
On April 25, 1984, Nizurtado who was then on leave
wrote Sandel, then acting Barangay Captain, informing
him that per record, he, Romero, and Gomez had not
made any remittance for the account of their P1,000.00
loans from the barangay livelihood fund of P10,000.00
and advising him to collect, through the Secretary or
Treasurer.
Since Romero and Gomez had not borrowed any amount
from the said fund, they told Sandel to ask Nizurtado if he
had any proof of their alleged loans. So Sandel wrote
Nizurtado on May 2, 1984, but the latter did not answer.
This attempt to collect from Romero and Gomez
prompted them to make inquiries. They learned that the
check for P10,000.00 was indeed encashed by Nizurtado
and that the blank resolution which they had signed was
 filled-up to make it appear that in a Council meeting
where all councilmen were present on August 25, 1983,
T-shirt manufacturing was adopted as the livelihood
project of Panghulo. But no such meeting occurred on
that day or on any other day. Neither was Nizurtado
authorized by the Council to submit T-shirt Manufacturing
as the livelihood project of Panghulo.
On August 9, 1984, Romero and Gomez lodged their
complaint against Nizurtado with the Office of the
Tanodbayan. After due preliminary investigation, this case
was filed.
As of September 7, 1984, the members of the Council
who had received P1,000.00 each, as well as Bacani
(also referred to as Manalang) and Soledad who had
received P500.00 each had paid their respective loans to
Nizurtado who, in turn, remitted the payments to the MMC
on these dates:
April 16, 1984 P1,450.00
August 14, 1984 3,550.00
September 7, 1984
3,000.00
————
Total P8,000.00
In June 1987, after demands for payment, Dalmacio
remitted the balance of P2,000.00 from his pocket
because, as acting Barangay Captain, he did not want to
leave the Barangay with an indebtedness. 3
On the basis of its above findings, the Sandiganbayan convicted the
accused of the offense charged. The dispositive portions of its decision,
promulgated on 18 September 1992, read:
WHEREFORE, the Court finds Felix Nizurtado y Victa
guilty beyond reasonable doubt of the complex crime of
malversation of public funds committed through
falsification of public document and, appreciating in his
favor . . . two mitigating circumstances and applying the
Indeterminate Sentence Law, imposes upon him the
penalties of imprisonment ranging from FOUR (4)
YEARS, NINE (9) MONTHS, and ELEVEN (11) DAYS
of prision correccional as minimum to EIGHT (8) YEARS,
EIGHT (8) MONTHS, and ONE (1) DAY of prision
mayor as maximum; perpetual special disqualification;
and a fine of P10,000.00.
No pronouncement is made as to civil liability, there
having been complete restitution of the amount
malversed.
With costs.
SO ORDERED. 4
His motion for reconsideration having been denied, Nizurtado has filed
the instant petition for review on certiorari. Petitioner faults the
Sandiganbayan in that —
1. It has committed grave abuse of discretion in finding
that Resolution No. 17, dated August 25, 1983, of the
Barangay Council of Panghulo, Malabon, Metro Manila
(Exh. "D") is a falsified document and that the petitioner is
the forger thereof; and
2. It has committed serious error of law and gravely
abused its discretion in finding petitioner guilty of
malversation of the amount of P10,000.00 which he had
received as a loan from the then Metro Manila
Commission in his capacity as representative of the
Samahang Kabuhayan ng Barangay Panghulo, Malabon,
Metro Manila. 5
The Solicitor General Agrees in all respects with the Sandiganbayan in its
findings and judgment except insofar as it has found petitioner to have
likewise committed the crime of falsification of a public document.
Article 217 of the Revised Penal Code provides:
Art. 217. Malversation of public funds or property. —
Presumption of malversation. — Any public officer who,
by reason of the duties of his office, is accountable for
public funds or property, shall appropriate the same, or
 shall take or misappropriate or shall consent, or through
abandonment or negligence, shall permit any other
person to take such public funds or property, wholly or
partially, or shall otherwise be guilty the misappropriation
or malversation of such funds or property, shall suffer:
1. The penalty of prision correccional in its medium and
maximum periods, if the amount involved in the
misappropriation or malversation does not exceed two
hundreds pesos.
2. The penalty of prision mayor in its minimum and
medium periods, if the amount involved is more than two
hundred pesos but does not exceed six thousand pesos.
3. The penalty of prision mayor in its maximum period
to reclusion temporal in its minimum period, if the amount
involved is more than six thousand pesos but is less than
twelve thousand pesos.
4. The penalty of reclusion temporal in its medium and
maximum periods, if the amount involved is more than
twelve thousand pesos but is less than twenty-two
thousand pesos. If the amount exceeds the latter, the
penalty shall be reclusion temporal in its maximum period
to reclusion perpetua.
In all cases, persons guilty of malversation shall also
suffer the penalty of perpetual special disqualification and
a fine equal to the amount of the funds malversed or
equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any
public funds or property with which he is chargeable,
upon demand by any duly authorized officer, shall
be prima facie evidence that he has put such missing
funds or property to personal use.
The elements of malversation, essential for the conviction of an accused,
under the above penal provisions are that —
(a) the offender is a public officer;
(b) he has the custody or control of funds or property by
reason of the duties of his office;
(c) the funds or property involved are public funds or
property for which he is accountable; and
(d) he has appropriated, taken or misappropriated, or has
consented to, or through abandonment or negligence
permitted, the taking by another person of, such funds or
property.
Nizurtado was a public officer, having been the Barangay Captain of
Panghulo, Malabon, Metro Manila, from 1983 to 1988; in that capacity, he
received and later encashed a check for P10,000.00, specifically
intended by way of a loan to the barangay for its livelihood program; and
the funds had come from the Ministry of Human Settlements, the Metro
Manila Commission and "Kilusang Kabuhayan at Kaunlaran."
The only point of controversy is whether or not Nizurtado has indeed
misappropriated the funds.
Petitioner was able to encash the check on 18 October 1988 on the basis
of a resolution of the Barangay Council, submitted to the KKK
Secretariat, to the effect that a livelihood project, i.e., "T-shirt
manufacturing," had already been identified by the council. The money,
however, instead of its being used for the project, was later lent to, along
with petitioner, the members of the Barangay Council. Undoubtedly, the
act constituted "misappropriation" within the meaning of the law. 6
Accused-appellant sought to justify the questioned act in that it was only
when the members of the Barangay Council had realized that P10,000.00
was not enough to support the T-shirt manufacturing project, that they
decided to distribute the money in the form of loans to themselves. He
submitted, in support thereof, a belated certification issued by Rodolfo
7
B. Banquicio, Chief of District IV of the Support Staff and Malabon Sub-
District Officer of KKK, to the effect that Barangay Captains were given
discretionary authority to invest the money in any viable project not falling
within the list of project modules provided by the MHS-NCR
Management. Lending the unutilized funds to the members of the
Barangay council could have hardly been meant to be the viable project
contemplated under that certification. Furthermore, it would appear that
only Regional Action Officer Ismael Mathay, Jr., and Deputy Regional
Action Officer Lilia S. Ledesma were the officials duly authorized to
approve such projects upon the recommendation of the KKK
Secretariat. We could see no flaw in the ratiocination of the
8
Sandiganbayan, when, in rejecting this defense, it said:
The defense evidence that the Barangay Council
changed the T-shirt Manufacturing to whatever business
ventures each members of the Council would select for
investment of his P1,000.00 has, as already stated, little,
if any, probative value.
But assuming there was such a change, the same is of no
avail. The Resolution marked Exhibit D expressly stated
that the P10,000.00 "shall only be appropriated for the
purpose/s as provided in the issued policies and
guidelines of the program." The guidelines, in turn,
prescribed that the livelihood project shall be identified
from the modules developed by the KKK Secretariat or,
as stipulated in the Resolution itself, in the absence of
such modules, shall be chosen by the Samahang
Kabuhayan "subject to the evaluation/validation of the
KKK Secretariat." There is absolutely no showing that the
alleged substitute projects which each lendee of
P1,000.00 would select were among those of the
developed modules or were submitted to the KKK
Secretariat for evaluation/validation.
9
Accused-appellant criticizes the Sandiganbayan for its having failed to
consider the fact that no valid demand has been made, or could have
been made, for the repayment of the loaned sum. Demand merely raises
a prima facie presumption that missing funds have been put to personal
use. The demand itself, however, is not an element of, and not
indispensable to constitute, malversation. Even without a demand,
malversation can still be committed when enough facts, such as here, are
extant to prove it.
10
Accused-appellant was charged with having committed the crime through
the falsification of a public document punishable under paragraph 2 of
Article 171 of the Revised Penal Code.
The pertinent provisions read:
Art. 171. Falsification by public officer, employee or notary
or ecclesiastic minister. — The penalty ofprision
mayor and a fine not to exceed 5,000 pesos shall be
imposed upon any public officer, employee, or notary
who, taking advantage of his official position, shall falsify
a document by committing any of the following acts:
xxx xxx xxx
2. Causing it to appear that persons have participated in
any act or proceeding when they did not in fact so
participate;
In falsification under the above-quoted paragraph, the document
need not be an authentic official paper since its simulation, in fact,
is the essence of falsification. So, also, the signatures appearing
thereon need not necessarily be forged. 11
In concluding that the Barangay Council resolution, Exhibit "D," was a
12
falsified document for which petitioner should be held responsible, the
Sandiganbayan gave credence to the testimonies of Barangay
Councilman Santos A. Gomez and Barangay Treasurer Manuel P.
Romero. The two testified that no meeting had actually taken place on 25
August 1983, the date when
"T-shirt manufacturing" was allegedly decided to be the barangay
livelihood project. The Sandiganbayan concluded that Nizurtado had
induced Romero and Gomez to sign the blank resolution, Exhibit "J" on 13
the representation that Romero's proposal to build a barangay service
center would so later be indicated in that resolution as the barangay
livelihood project.
The established rule is that unless the findings of fact of the
Sandiganbayan are bereft of substantial evidence to support it, those
findings are binding on this court.
The Sandiganbayan has considered the mitigating circumstances of
voluntary surrender and restitution in favor of Nizurtado. Deputy Clerk of
Court Luisabel Alfonso Cortez, on 17 January 1989, has certified to the
voluntary surrender of the accused thusly:
__________________________________________________________
C E RTI F I CATI O N
THIS CERTIFIES that accused FELIX NIZURTADO in criminal Case No:
13304 voluntarily surrendered before this court on JANUARY 17,
1989 and posted his bail bond in said case.
Manila, Philippines, JANUARY 17, 1989
(sgd.)
LUISABEL ALFONSO CORTEZ
Deputy Clerk of Court
Voluntary surrender (Art. 13, par. 7, Revised Penal Code), therefore, may
thus be treated as a modifying circumstance independent and apart from
restitution of the questioned funds by petitioner (Art. 13, par. 10, Revised
Penal Code). We are convinced, furthermore, that petitioner had no
intention to commit so grave a wrong as that committed. (Art. 13, par. 3,
Revised Penal Code), entitling him to three distinct mitigating
circumstances.
Under Article 48 of the Revised Penal Code, when a single act
constitutes two or more grave or less grave felonies, or when an offense
is a necessary means for committing the other, the penalty for the most
serious crime shall be imposed, the same (the penalty) to be applied in
the maximum period. The penalty prescribed for the offense of
malversation of public funds, when the amount involved exceeds six
thousand pesos but does not exceed twelve thousand pesos, is prision
mayor in its maximum period to reclusion temporal in its minimum period;
in addition, the offender shall be sentenced to suffer perpetual special
disqualification and to pay a fine equal to the amount malversed (Art.
217[3], Revised Penal Code). The penalty of prision mayor and a fine of
five thousand pesos is prescribed for the crime of falsification under
Article 171 of the Revised Penal Code. The former (that imposed for the
malversation), being more severe than the latter (that imposed for the
falsification), is then the applicable prescribed penalty to be imposed in
its maximum period. The actual attendance of two separate mitigating
circumstances of voluntary surrender and restitution, also found by the
Sandiganbayan and uncontested by the Solicitor General, entitles the
accused to the penalty next lower in degree. For purposes of determining
that next lower degree, the full range of the penalty prescribed by law for
the offense, not merely the imposable penalty because of its complex
nature, should, a priori, be considered. It is our considered view that the
ruling in People vs. Gonzales, 73 Phil. 549, as opposed to that of People
vs. Fulgencio, 92 Phil. 1069, is the correct rule and it is thus here
reiterated. In fine, the one degree lower than prision mayor maximum
to reclusion temporal minimum is prision mayor minimum to prision
mayor medium (being the next two periods in the scale of penalties [see
Art. 64, par 5, in relation to Art. 61, par 5, Revised Penal Code]) the full
range of which is six years and one day to ten years. This one degree
lower penalty should, conformably with Article 48 of the Code (the
penalty for complex crimes), be imposed in its maximum period or from
eight years, eight months and one day to ten years. The presence of the
third mitigating circumstance of praeter intentionem (lack of intention to
commit so grave a wrong as that committed) would result in imposing a
period the court may deem applicable. Considering, however, that the
15
penalty has to be imposed in the maximum period, the only effect of this
additional mitigating circumstance is to impose only the minimum portion
of that maximum period, that is, from eight years, eight months and one
16
day to nine years, six months and ten days, from which range the
maximum of the indeterminate sentence shall be taken.
Under the Indeterminate Sentence Law (which can apply since the
maximum term of imprisonment would exceed one year), the court is to
impose an indeterminate sentence, the minimum of which shall be
anywhere within the range of the penalty next lower in degree
(i.e., prision correccional in its medium period to prision correccional in its
maximum period or anywhere from two years, four months and one day
to six years) and the maximum of which is that which the law prescribes
after considering the attendant modifying circumstances. In view of the
mitigating circumstances present in this case, the fine of P10,000.00 may
also be reduced (Art. 66, Revised Penal Code) and, since the principal
penalty is higher than prision correccional, subsidiary imprisonment
would not be warranted. (Art. 39, par. 3, Revised Penal Code).
The law and the evidence no doubt sustains Nizurtado's conviction.
Given all the attendant circumstances, it is, nevertheless, the personal
and humble opinion of the assigned writer of this ponencia that appellant
deserves an executive commutation of the statutory minimum sentence
pronounced by this Court.
WHEREFORE, the decision of the Sandiganbayan convicting Nizurtado
for malversation of public funds through falsification of public document is
AFFIRMED but the sentence, given the circumstances here obtaining, is
MODIFIED by imposing on petitioner a reduced indeterminate sentence
of from two years, four months and one day to eight years, eight months
and one day, perpetual special disqualification and a fine of P2,000.00.
SO ORDERED.