G.R. No. 199579 December 10, 2012 indicating that the hood of his jeepney was being opened.
ing that the hood of his jeepney was being opened. He then went to to the factual findings made by the trial court, as affirmed by the CA when
RAMON JOSUE y GONZALES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondents.
RESOLUTION
REYES, J.:
Before the Court is a Petition for Review on Certiorari filed by petitioner
Ramon Josue y Gonzales (Josue) to assail the Decision 1 dated June 30, 2011
and Resolution2 dated December 1, 2011 of the Court of Appeals (CA) in CA-
G.R. CR No. 33180.
The petitioner was charged with the crime of frustrated homicide before the
Regional Trial Court (RTC) of Manila, via an information that reads:
That on or about May 1, 2004, in the City of Manila, Philippines, the said
accused, with intent to kill, did then and there willfully, unlawfully and
feloniously, attack, assault and use personal violence upon the person of
ARMANDO MACARIO y PINEDA a.k.a. BOYET ORA, by then and there shooting
the said Armando Macario y Pineda a.k.a. Boyet Ora several times with a cal.
45 pistol hitting him on the different parts of his body, thus performing all
the acts of execution which should have produced the crime of Homicide, as
a consequence, but nevertheless did not produce it by reason of causes
independent of his will, that is, by the timely and able medical attendance
rendered to the said ARMANDO MACARIO y PINEDA a.k.a. BOYET ORA which
prevented his death thereafter.
Contrary to law.3
The case was docketed as Crim. Case No. 05-236299 and raffled to Branch 40
of the RTC. Upon arraignment, the petitioner entered a plea of "not guilty".
After pre-trial, trial on the merits ensued.
The witnesses for the prosecution were: (1) victim Armando
Macario y Pineda (Macario); (2) Dr. Casimiro Tiongson, Jr. (Dr. Tiongson),
Chief Surgical Resident of Chinese General Hospital; (3) Dr. Edith Calalang (Dr.
Calalang), a radiologist; (4) Ariel Villanueva, an eyewitness to the crime; and
(5) Josielyn Macario, wife of the victim. The prosecution presented the
following account:
On May 1, 2004, at around 11:15 in the evening, Macario, a barangay tanod,
was buying medicine from a store near the petitioner’s residence in Barrio
Obrero, Tondo, Manila when he saw the petitioner going towards him, while
shouting to ask him why he had painted the petitioner’s vehicle. Macario
denied the petitioner’s accusation, but petitioner still pointed and shot his
gun at Macario. The gunshots fired by the petitioner hit Macario’s elbow and
fingers. As the unarmed Macario tried to flee from his assailant, the
petitioner still fired his gun at him, causing him to sustain a gunshot wound
at his back. Macario was then rushed to the Chinese General Hospital for
medical treatment.
Dr. Tiongson confirmed that Macario sustained three (3) gunshot wounds:
(1) one on his right hand, (2) one on his left elbow, and (3) one indicating a
bullet’s entry point at the posterior of the chest, exiting at the anterior line.
Dr. Calalang took note of the tiny metallic foreign bodies found in Macario’s
x-ray results, which confirmed that the wounds were caused by gunshots.
Further, she said that the victim’s injuries were fatal, if not medically
attended to. Macario incurred medical expenses for his treatments.
For his defense, the petitioner declared to have merely acted in self-defense.
He claimed that on the evening of May 1, 2004, he, together with his son
Rafael, was watching a television program when they heard a sound
the place where his jeepney was parked, armed with a .45 caliber pistol
tucked to his waist. There he saw Macario, together with Eduardo Matias and
Richard Akong, in the act of removing the locks of his vehicle’s battery. When
the petitioner sought the attention of Macario’s group, Macario pointed his
.38 caliber gun at the petitioner and pulled its trigger, but the gun jammed
and failed to fire. The petitioner then got his gun and used it to fire at
Macario, who was hit in the upper arm. Macario again tried to use his gun,
but it still jammed then fell on the ground. As Macario reached down for the
gun, the petitioner fired at him once more, hitting him at the back. When
Macario still tried to fire his gun, the petitioner fired at him for the third time,
hitting his hand and causing Macario to drop his gun. The petitioner got
Macario’s gun and kept it in his residence.
The petitioner’s son, Rafael Josue, testified in court to corroborate his
father’s testimony.
SPO4 Axelito Palmero (SPO4 Palmero) also testified for the defense,
declaring that on May 26, 2004, he received from Josue a .38 caliber revolver
that allegedly belonged to Macario.
On October 22, 2009, the RTC rendered its Decision4 finding the petitioner
guilty beyond reasonable doubt of the crime of frustrated homicide. It gave
full credit to the testimony of the prosecution witnesses, further noting that
the defense had failed to prove that the .38 caliber revolver that was turned
over to SPO4 Palmero actually belonged to Macario. The dispositive portion
of the RTC Decision reads:
WHEREFORE, accused RAMON JOSUE y GONZALES is found guilty beyond
reasonable doubt of Frustrated Homicide without any aggravating or
mitigating circumstances to vary the penalty imposable. Applying the
Indeterminate Sentence Law, he is hereby sentenced to suffer an
indeterminate penalty of six (6) months and one (1) day of prision
correccional as minimum, to eight (8) years and one (1) day of prision
mayor as maximum.
Accused Ramon Josue y Gonzales is hereby ordered to indemnify the victim,
Armando Macario y Pineda, the sum of [P]32,214.25 for hospitalization and
medicine expenses as actual damages.
The accused’s bail is deemed cancelled. Bondsman is ordered to surrender
the accused to this Court for execution of the final judgment.
SO ORDERED.5
Unsatisfied, the petitioner appealed from the RTC’s decision to the CA, which
affirmed the rulings of the RTC and thus, dismissed the appeal.
Hence, the present petition. The petitioner assails the CA’s dismissal of the
appeal, arguing that the prosecution had failed to overthrow the
constitutional presumption of innocence in his favor.
We deny the petition.
At the outset, we emphasize that since the petitioner seeks this Court’s
review of his case through a petition for review under Rule 45 of the Rules of
Court, only questions of law shall be addressed by the Court, barring any
question that pertains to factual issues on the crime’s commission. The
general rule is that questions of fact are not reviewable in petitions for
review under Rule 45, subject only to certain exceptions as when the trial
court’s judgment is not supported by sufficient evidence or is premised on a
misapprehension of facts.6
Upon review, the Court has determined that the present case does not fall
under any of the exceptions. In resolving the present petition, we then defer
the case was brought before it on appeal. The Court has, after all,
consistently ruled that the task of assigning values to the testimonies of
witnesses and weighing their credibility is best left to the trial court which
forms first-hand impressions as witnesses testify before it. Factual findings
of the trial court as regards its assessment of the witnesses’ credibility are
entitled to great weight and respect by this Court, particularly when affirmed
by the CA, and will not be disturbed absent any showing that the trial court
overlooked certain facts and circumstances which could substantially affect
the outcome of the case.7
As against the foregoing parameters, the Court finds, and so holds, that both
the trial and appellate courts have correctly ruled on the petitioner’s
culpability for the crime of frustrated homicide, which has the following for
its elements:
(1) the accused intended to kill his victim, as manifested by his use
of a deadly weapon in his assault;
(2) the victim sustained fatal or mortal wound/s but did not die
because of timely medical assistance; and
(3) none of the qualifying circumstance for murder under Article
248 of the Revised Penal Code is present.
These elements were duly established during the trial.
The trial court’s factual findings, when taken collectively, clearly prove the
existence of the crime’s first and second elements, pertaining to the
petitioner’s intent to kill and his infliction of fatal wound upon the victim.
Evidence to prove intent to kill in crimes against persons may consist, among
other things, of the means used by the malefactors; the conduct of the
malefactors before, at the time of, or immediately after the killing of the
victim; and the nature, location and number of wounds sustained by the
victim.8 Significantly, among the witnesses presented by the prosecution was
Villanueva, who, while being a friend of the petitioner, had testified against
the petitioner as an eyewitness and specifically identified the petitioner as
the assailant that caused the wounds sustained by the victim Macario. Even
the petitioner cites in the petition he filed with this Court the prosecution’s
claim that at the time he fired the first gunshot, he was shouting, "Papatayin
kita! (I will kill you!)"9 The doctors who attended to the victim’s injuries also
affirmed before the trial court that Macario had sustained gunshot wounds,
and that the injuries caused thereby were fatal if not given medical attention.
The trial court then held:
Weighing the evidence thus proffered, this Court believes the prosecution’s
version.
xxxx
The Court gives credence to the testimonies of the witnesses presented by
the prosecution as it did not find any fact or circumstance in the shooting
incident to show that said witnesses had falsely testified or that they were
actuated by ill-motive.
xxxx
x x x (A)s a result of being shot three (3) times with a .45 caliber gun,
complainant sustained mortal wounds which without medical assistance,
complainant could have died therefrom. Dr. Casimiro Tiongson, Jr., the chief
surgical resident who attended the complainant and prescribed his
medicines, testified that the victim, Armando Macario, sustained three (3)
gunshot wounds located in the left elbow, right hand and another bullet
entering his posterior chest exiting in front of complainant’s chest.
These findings were also contained in the x-ray consultation reports testified
to by Dr. Edith Calalang as corroborating witness.10 (Citations omitted)
What is also noteworthy is that the petitioner invoked self-defense, after he
had admitted that he caused the victim’s wounds when he shot the latter
several times using a deadly weapon, i.e., the .45 caliber pistol that he carried
with him to the situs of the crime. In People v. Mondigo,11 we explained:
By invoking self-defense, appellant admitted committing the felonies for
which he was charged albeit under circumstances which, if proven, would
justify his commission of the crimes. Thus, the burden of proof is shifted to
appellant who must show, beyond reasonable doubt, that the killing of
Damaso and wounding of Anthony were attended by the following
circumstances: (1) unlawful aggression on the part of the victims; (2)
reasonable necessity of the means employed to prevent or repel it; and (3)
lack of sufficient provocation on the part of the person defending
himself.12 (Citations omitted and emphasis ours)
In order to be exonerated from the charge, the petitioner then assumed the
burden of proving, beyond reasonable doubt, that he merely acted in self-
defense. Upon review, we agree with the RTC and the CA that the petitioner
failed in this regard.
While the three elements quoted above must concur, self-defense relies,
first and foremost, on proof of unlawful aggression on the part of the victim.
If no unlawful aggression is proved, then no self-defense may be successfully
pleaded.13 "Unlawful aggression" here presupposes an actual, sudden, and
unexpected attack, or imminent danger of the attack, from the victim.14
In the present case, particularly significant to this element of "unlawful
aggression" is the trial court’s finding that Macario was unarmed at the time
of the shooting, while the petitioner then carried with him a .45 caliber pistol.
According to prosecution witness Villanueva, it was even the petitioner who
confronted the victim, who was then only buying medicine from a sari-
sari store. Granting that the victim tried to steal the petitioner’s car battery,
such did not equate to a danger in his life or personal safety. At one point
during the fight, Macario even tried to run away from his assailant, yet the
petitioner continued to chase the victim and, using his .45 caliber pistol, fired
at him and caused the mortal wound on his chest. Contrary to the
petitioner’s defense, there then appeared to be no "real danger to his life or
personal safety,"15 for no unlawful aggression, which would have otherwise
justified him in inflicting the gunshot wounds for his defense, emanated from
Macario’s end.*
The weapon used and the number of gunshots fired by the petitioner, in
relation to the nature and location of the victim’s wounds, further negate the
claim of self-defense. For a claim of self-defense to prosper, the means
employed by the person claiming the defense must be commensurate to the
nature and extent of the attack sought to be averted, and must be rationally
necessary to prevent or repel an unlawful aggression.16 Considering the
petitioner’s use of a deadly weapon when his victim was unarmed, and his
clear intention to cause a fatal wound by still firing his gun at the victim who
had attempted to flee after already sustaining two gunshot wounds, it is
evident that the petitioner did not act merely in self-defense, but was an
aggressor who actually intended to kill his victim.
Given the foregoing, and in the absence of any circumstance that would have
qualified the crime to murder, we hold that the trial court committed no
error in declaring the petitioner guilty beyond reasonable doubt of the crime
of frustrated homicide. Applying the rules provided by the Indeterminate
Sentence Law, the trial court correctly imposed for such offense an minutes, he returned. He pointed a knife at Cristina's neck. The latter begged
indeterminate penalty of six ( 6) months and one (1) day of prision Gerry not to hurt her and to pity their children if something happens to her.
correccional as minimum, to eight (8) years and one (1) day of prision Gerry continued pointing the knife and told Cristina to stop talking or
mayor as maximum. The award of actual damages is also sustained. otherwise, he will put a hole in her neck. Then, Gerry slapped Cristina's face
However, we hold that in line with prevailing jurisprudence, 17 the victim is twice. While Gerry was still holding the knife, Cristina pushed him and he fell
entitled to an award of moral damages in the amount of P10,000.00. on the ground. She took the knife which Gerry was holding and begged him
WHEREFORE, the petition is DENIED. The Decision dated June 30, 2011 and not to come near her. She was holding the knife near her chest pointed at
Resolution dated December 1, 2011 ofthe Court of Appeals in CA-G.R. CR No. Gerry when he suddenly grabbed her and that was the time that the knife
33180 are AFFIRMED with MODIFICATION in that the petitioner Ramon went in contact with his chest. When she saw her husband bloodied, she
Josue y Gonzales is also ordered to pay the offended party the amount shouted for help and her father (Rodolfo Samson) and brother (Allan
of P10,000.00 as moral damages. Samson) came and brought Gerry to the hospital. Her relatives told her that
SO ORDERED. Gerry died in the hospital. (TSN, September 6, 2006, pp. 14-27)
.R. No. 214883, September 02, 2015
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CRISTINAOn June 27, 2002, ALLAN SAMSON (Allan) was at home watching television
SAMSON, Accused-Appellants. with his father. He heard yelling and shouting from the house of his sister
DECISION Cristina and brother-in-law Gerry. Since it was just ordinary for him to hear
MENDOZA, J.: his sister and brother-in-law fight, he and his father just ignored it. After
For review in this appeal is the May 6, 2014 Decision1 of the Court of Appealsfifteen (15) minutes of listening to their quarrel, they heard Cristina cry for
(CA) in CA-G.R. CR HC No. 05832, which affirmed the September 27, 2012 help. Upon hearing this, he immediately went to the house of his sister and
Decision2 of the Regional Trial Court, Branch 65, Tarlac City (RTC) in Criminal
saw her holding Gerry and she requested him and his father to bring Gerry
Case No. 12285, convicting accused-appellant Cristina Samson (Cristina) for to the hospital. They called a tricycle and he, together with his father,
parricide committed against her husband, Gerry Delmar (Gerry), and brought Gerry to Talon General Hospital. The doctor, however, declared that
sentencing her to suffer the penalty of reclusion perpetua. Gerry was already dead. Then, the tanod arrives and Allan instructed the
tanod to call the siblings and relatives of Gerry. When the relatives arrived,
The Antecedents they went home. (TSN, November 18, 2006, pp. 4-6)5
Version of the Prosecution
On August 14, 2002, Cristina was charged with the crime of Parricide, defined
and penalized under Article 246 of the Revised Penal Code (RPC). The In its Brief for the Appellee,6 the Office of the Solicitor General (OSG)
Information articulates the following criminal charges, viz: provided the following as its Counter-Statement of Facts:
That on or about the 27th day of June, 2002 in Tarlac City, Philippines and On January 25, 1994, appellant Cristina Samson and victim Jerry Delmar were
within the jurisdiction of this Honorable Court, said accused, willfully, married. They were blessed with two (2) daughters namely Christine and
unlawfully and feloniously and with intent to kill her husband Gerry Delmar, Cherrie Lou. The couple lived in their own house which is just adjacent to the
with whom she was united in lawful wedlock, armed herself with a deadly house of appellant's family. The union of the two was never a peaceful one.
weapon, a knife, and stabbed said Gerry Delmar on his chest, which resulted Constant quarrels filled their household and occurred in front of their
to his death. children and other relatives.
CONTRARY TO LAW.3 On June 27, 2002, appellant and the victim had one of their usual fights. As
When arraigned almost four (4) years later, Cristina entered a plea of not testified by appellant herself, she and her two children were watching
guilty. Thereafter, trial on the merits ensued with the parties agreeing to a television in their home when the victim arrived drunk. Victim asked for his
reverse trial on account of her invocation of the justifying circumstance of dinner but appellant was not able to cook food which led to the fight.
self-defense. Christine, the youngest daughter of the appellant and the victim, narrated
that she witnessed the fight between her parents, that as the fight escalated,
Version of the Defense appellant was able to get hold of the knife which was placed on the roof and
stabbed the victim. The victim fell on the ground and crawled until he
The version of Cristina appears in the Brief for the Accused-Appellant4 as reached the door. Cristine remembered that people arrived in their home,
follows: helped the victim board a tricycle and brought him to the hospital. Appellant,
On June 27, 2002, CRISTINA SAMSON (Cristina) was in their house watching on the other hand, ran out and went to her father and asked for money and
television together with her children when her husband, Gerry Delmar left. That was the last night that Christine and Cherry Lou saw their mother.7
(Gerry), who was drunk at that time, arrived. Gerry asked Cristina if she had The Ruling of the RTC
cooked food already but the latter answered in the negative because she had
no money to buy food. Gerry scolded and uttered words against her, and In its September 27, 2012 Decision, the RTC found the proffered self-defense
then slapped her. They had an altercation for about ten (10) minutes when of Cristina to be untenable. In its view, there was no longer any threat to her
Cristina's father arrived and pacified them. Gerry left but after thirty (30) life before she stabbed her husband Gerry. Though there was an existent
danger as there was an altercation before the stabbing incident, the her. She was holding the knife near her chest and pointed towards him when Cristina failed to discharge the burden of proving that unlawful aggression
imminence of such danger ceased when, as admitted by her, Gerry already he suddenly grabbed her and that was the time that the knife went in contact was present when she killed her husband.
put down the knife. The RTC even concluded that it was she who provoked with her husband's chest.
him when she suddenly pushed him to the ground. She then took the knife Contrary to the conclusion of the CA that Gerry's aggression had already
and told him not to come near her. When he grabbed her, she stabbed him. Christine, however, perceived it differently. According to her, she witnessed ceased when he was disarmed, it is the Court's view that the aggression still
After she took hold of the knife, there was no longer any unlawful aggression the fight between her parents. She narrated that as the fight escalated, her continued. Her perceived peril to her life continued and persisted until she
to speak of that would necessitate the need to kill Gerry.8 Thus, the decretal mother was able to get hold of a knife, which was inserted in the roof, and put an end to it.
portion of the RTC decision reads in this wise: used it in stabbing her father.
WHEREFORE, finding accused CRISTINA SAMSON guilty beyond reasonable It must be noted that after she was able to take hold of the knife from her
doubt of the felony of Parricide defined and penalized under Article 246 of Both the RTC and the CA believed the version of Cristina, but both were of husband, he did not stand down but, instead, continued to move towards
the Revised Penal Code, accused CRISTINA SAMSON is hereby sentenced to the view that before she stabbed her husband, there was no more imminent her despite her plea that he should not come nearer. He grabbed her by the
suffer a penalty of "Reclusion Perpetua" pursuant to R.A. 9346 (An Act danger to her life. For said reason, her fatal stabbing of her husband was not arm which could have precipitated her well-grounded belief that her life was
Prohibiting the Imposition of Death Penalty in the Philippines). justified. still in danger if he would be able to wrest the weapon from her. It was not
The Court's Ruling farfetched to presume that, being stronger, he could have easily
Accused is also ordered to indemnify the heirs of the victim, Christine S. overpowered her and eventually killed her.
Delmar and Cherrie Lo S. Delmar the amount of P75,000.00 as civil indemnity, Self-defense, when invoked as a justifying circumstance, implies the
P75,000.00 as moral damages, P30,000.00 as exemplary damages and costs admission by the accused that he committed the criminal act. Generally, the A similar situation was presented in the case of People v.
of suit. burden lies upon the prosecution to prove the guilt of the accused beyond Rabandaban18 (Rabandaban), wherein the Court ruled that despite the fact
reasonable doubt rather than upon the accused that he was in fact innocent. that the accused succeeded in wresting the bolo from his wife, he was still
SO ORDERED.9 When the accused, however, admits killing the victim, it is incumbent upon justified in using the weapon against her because his life was still in danger.
The Ruling of the CA him to prove any claimed justifying circumstance by clear and convincing The Court explained:
evidence.13 Well-settled is the rule that in criminal cases, self-defense shifts xxx When appellant got possession of the bolo he already must have been
The CA affirmed the ruling of the RTC. It stated that although there could the burden of proof from the prosecution to the defense. 14 in a precarious condition because of his wounds, one of which was described
have been an unlawful aggression at the start when Gerry repeatedly slapped by the sanitary inspector as "fatal" since the large intestine came out of
Cristina and held a knife at her throat, it already disappeared when he put To invoke self-defense, in order to escape criminal liability, it is incumbent it. And appellant, we think, was justified in believing that his wife wanted
down the knife. According to the CA, it was this precise act that gave Cristina upon the accused to prove by clear and convincing evidence the concurrence to finish him off because, according to the evidence, she struggled to regain
the opportunity to push her husband and gain control of the knife. Moreover, of the following requisites under the second paragraph of Article 11 of the possession of the bolo after he had succeeded in wresting it from her. With
the fact that she fled and evaded arrest for four (4) years contradicted her RPC, viz: (1) unlawful aggression; (2) reasonable necessity of the means the aggressor still unsubdued and showing determination to fight to the
claim of innocence.10 The CA disposed as follows: employed to prevent or repel it; and (3) lack of sufficient provocation on the finish, it would have been folly on the part of appellant, who must already
WHEREFORE, the Decision dated September 27, 2012 of the RTC, Branch 65, part of the person defending himself.15 have been losing strength due to loss of blood, to throw away the bolo and
Tarlac City in Criminal Case No. 12285, finding accused-appellant guilty thus give his adversary a chance to pick it up and again use it against
beyond reasonable doubt of the crime of parricide and sentencing her Presence of Unlawful Aggression even if Aggressor was Disarmed him. Having the right to protect his life, appellant was not in duty bound to
to reclusion perpetua and to pay damages and the cost of suit, is AFFIRMED. expose himself to such a contingency.19
Among the requisites of self-defense, the most important that needs to be [Emphases Supplied]
SO ORDERED.11 proved by the accused, for it to prosper, is the element of unlawful In Rabandaban, the victim, instead of running away from the accused
Hence, this appeal. aggression. It must be proven first in order for self-defense to be successfully husband after the bolo was wrested from her, continued to struggle with him
ISSUE pleaded. There can be no self-defense, whether complete or incomplete, to regain possession of the bolo. This fact, together with her husband's
unless the victim had committed unlawful aggression against the person who compromised condition, being already badly wounded, justified him in finally
The sole issue to be resolved in this appeal is whether or not the CA erred in resorted to self-defense.16 When the Court speaks of unlawful aggression, it neutralizing his wife who was then determined in putting an end to his life.
not appreciating the justifying circumstance of self-defense in favor of is an actual physical assault, or at least a threat to inflict real imminent injury, In the case at bench, the unlawful aggression would have ceased if he just
Cristina. upon a person. There is an unlawful aggression on the part of the victim when walked away from the scene considering that Cristina had gained the upper
he puts the life, limb, or right of the person invoking self-defense in actual or hand, being the one in possession of the knife. Instead, Gerry chose to ignore
Let it be underscored that appeal in criminal cases throws the whole case imminent danger. There must be actual physical force or actual use of a her plea not to come near her and continued moving towards her without
open for review and it is the duty of the appellate court to correct, cite and weapon. It is present only when the one attacked faces real and immediate regard to his safety despite the fact that the knife was pointed towards his
appreciate errors in the appealed judgment whether they are assigned or threat to his life. It must be continuous, otherwise, it does not constitute direction.
unassigned.12 Considering that what is at stake here is no less than the liberty aggression warranting self-defense.17
of the accused, this Court has meticulously and thoroughly reviewed and In both Rabandaban and the present case, the victims, despite having been
examined the records of the case and finds that there is merit in her appeal. The question now is: was there unlawful aggression when Cristina killed her disarmed, still posed a threat to the lives of the accused. The danger to their
husband? lives persisted leaving them with no other choice but to defend themselves
There appears to be a conflict between the testimony of Cristina and her lest they be the ones to be victimized.
daughter, Christine Delmar (Christine). Cristina claimed that she got the knife The Court answers in the affirmative.
from her husband who fell down after she pushed him. After taking In that situation, Cristina had reasons to believe that her life was still in
possession of the deadly weapon, she told her husband not to come near The Court hesitates to share the observation of the RTC and the CA that danger. It is to be noted that before she was able to take hold of the weapon,
her husband held the same knife and pointed it at her throat. So when he, consideration of which will enter as principal factors the emergency, the Institution for Women, Mandaluyong City. The Superintendent
who was taller and stronger, approached her and grabbed her by the arm, it imminent danger to which the accused is exposed, and the instinct more is DIRECTED to cause the immediate release of appellant, unless she is being
was instinctive for her to take the extreme precautionary measure by than reason, that moves or impels his defense; and the proportionateness lawfully held for another cause and to report the action she has taken within
stabbing him before he could get back the knife and make good his earlier thereof does not depend upon the harm done, but upon the imminent five (5) days from receipt of this Decision.
threat of putting a hole in her throat. danger of such injury.27
SO ORDERED.
Contrary to the trial court's assessment, she did not show aggression towards Lack of Sufficient Provocation G.R. No. 152715 July 29, 2005
her husband when she pushed him after he pointed the knife away from her. ROGELIO SOPLENTE, Petitioner,
She was, in fact, manifesting a passive attitude towards him when she just The last requisite to be considered is lack of sufficient provocation on the vs.
stood her ground, with the knife in hand, asking him not to come near her.20 part of the person defending himself. The Court cannot sustain the trial PEOPLE OF THE PHILIPPINES, Respondent.
court's observation that it was Cristina who provoked her husband when she DECISION
It would have been a different story if Gerry, after dropping the knife, walked suddenly pushed him. Her shoving him cannot be considered a sufficient Tinga, J.:
away and Cristina still went after him. If that were the case, she could not provocation proportionate to the act of aggression.28 She merely capitalized Self-preservation is the first law of nature.
assert self-defense. She was no longer acting in self-defense but in retaliation on a window of opportunity, when her husband removed the knife away - Samuel Butler
for the earlier aggression. Retaliation is inconsistent with self-defense and in from her throat, to save herself from what she had perceived to be a danger A person acting in self-defense is apt to unleash with lightning speed the
fact belies it. In retaliation, the aggression that was begun by the injured to her life. Anybody, in her situation would have acted in the same terrible swift sword. It is perhaps the speed with which the relevant actions
party already ceased when the accused attacked him; while in self-defense reasonable way. transpire that poses some difficulty in the adjudication of many self-defense
the aggression still existed when the aggressor was injured by the accused.21 claims. The events in this case involve several actors and a series of assaults,
Flight as an Indication of Guilt or Non-guilt all occurring within the span of several blinks of the eye. The totality of the
Now that unlawful aggression has already been established, it is well to picture convinces us that the accused was enmeshed in a web of danger
consider the other two requisites in order to determine whether the self- The CA took the fact of Cristina's flight and evasion of arrest for four (4) years which convulsed him into a reasonable fear for his life. It is under that dark
defense is complete or incomplete. against her. To the appellate court, it belied her claim of innocence. cloud that the accused, as he readily admits, ended the life of Joel Notarte.
The loss of life is cause for grief, but the facts dictate that the killing was
Reasonable Necessity of the Means Employed Under the attendant circumstances, the Court cannot subscribe to that view. justified under the circumstances.
Rogelio Soplente (Rogelio) seeks the reversal of the Decision1 and
The requisite of reasonable necessity of the means employed is met if the Generally, flight, in the absence of a credible explanation, would be a the Resolution2 denying his motion for reconsideration thereof, rendered by
person invoking self-defense used a weapon or a manner equivalent to the circumstance from which an inference of guilt might be established, for a the Court of Appeals (CA) in CA-G.R. No. 20446. The CA affirmed
means of attack used by the aggressor. The reasonable necessity of the self- truly innocent person would normally grasp the first available opportunity to the Decision3 of the Regional Trial Court (RTC) of General Santos City, Branch
defense utilized by an accused is to defend himself "depends upon the nature defend himself and assert his innocence.29 It has been held, however, that 22 acquitting Rogelio of the crime of frustrated homicide in Criminal Case No.
or quality of the weapon, the physical condition, the character, the size and non-flight may not be construed as an indication of innocence either. There 5093 but convicting him of homicide in Criminal Case No. 5094.
other circumstances of the aggressor; as well as those of the person who is no law or dictum holding that staying put is proof of innocence, for the The antecedent operative facts follow.
invokes self-defense; and also the place and the occasion of the Court is not blind to the cunning ways of a wolf which, after a kill, may feign Originally, Rogelio and his first cousin Nicanor Soplente (Nicanor) were jointly
assault."22 Moreover, the nature and location of wounds are considered innocence and choose not to flee.30 In Cristina's case, she explained that she charged with frustrated homicide for the wounding of Eduardo Leyson VI
important indicators whether or not to disprove a plea of self-defense.23 took flight for fear of her safety because of possible retaliation from her (Leyson) and with homicide for the killing of Joel Notarte (Notarte) under
husband's siblings.31 The Court finds such reason for her choice to flee informations with the following accusatory portions:
In the case at bench, the lone stab wound located on the victim's chest acceptable. She did not hide from the law but from those who would possibly I. Criminal Case No. 5093
supports the argument that Cristina feared for her life and this fear impelled do her harm. That on or about 12:30 o’clock in the early morning of May 4, 1988 at Purok
her to defend it by stabbing him. It was a reasonable means chosen by her in Santa Cruz, San Pedro Street, Lagao, General Santos City, Philippines and
view of the attending circumstances, to wit: that her stronger husband, who The RTC and the CA might have some hesitation in accepting her explanation within the jurisdiction of this Honorable Court, the above-named accused,
had earlier pointed the said knife to her throat, approached her and grabbed for her choice of action. Nevertheless, under the circumstances, a cloud of conspiring, confederating and mutually helping one another, with intent to
her arm, despite her plea that he refrain from coming near her; and that she uncertainty lingers. In such a case, it is the duty of the Court to resolve the kill and with the use of a knife, did then and there willfully, unlawfully, and
had no other available means or any less deadly weapon to repel the threat doubt in favor of the accused. feloniously stab one Eduardo Leyson VI hitting him on his left arm (through
other than the knife in her hand. She did not have the time or sufficient and through), which wound ordinarily would cause the death of said Eduardo
tranquillity of mind to think, calculate and choose the weapon to be used. In Considering that Cristina was justified in killing her husband under Article 11, Leyson VI, thus performing all the acts of execution which should have
predicaments like this, human nature does not act upon the processes of paragraph 1 of the RPC, she should be exonerated of the crime charged. For produced the crime of homicide as a consequence, but nevertheless did not
formal reason but in obedience to the instinct of self-preservation.24 When it the same reason, the Court finds no act or omission from which a civil liability produce it by reason of causes independent of his will and the timely and
is apparent that a person has reasonably acted upon this instinct, it is the may arise. able medical assistance rendered to said Eduardo Leyson VI which prevented
duty of the courts to sanction that act or to mitigate his liability. 25cralawred his death.4
WHEREFORE, the appeal is GRANTED. The May 6, 2014 Decision of the Court II. Criminal Case No. 5094
Moreover, the fact that Gerry was no longer armed does not negate the of Appeals, in CA-G.R. CR HC No. 05832, is REVERSED and SET ASIDE. The That on or about 12:30 o’clock in the early morning of May 4, 1988 at Purok
reasonableness of the means employed by Cristina. Perfect equality between accused-appellant, Cristina Samson, is ACQUITTED of the crime charged. Santa Cruz, San Pedro St., Lagao, General Santos City, Philippines and within
the weapon used by the one defending himself and that of the aggressor is the jurisdiction of this Honorable Court, the above-named accused,
not required.26 What the law requires is a rational equivalence, in the Let a copy of this Decision be furnished the Superintendent, Correctional conspiring, confederating and mutually helping one another, with intent to
kill and armed with a deadly weapon, did then and there willfully, unlawfully
and feloniously stab Joel Notarte, thereby inflicting upon the latter stab
wound which caused his instantaneous death.5
The prosecution’s evidence, culled mainly from the oral testimonies of
Gracidio Gulle (Gulle), Renato Besinga (Besinga) and Leyson, revealed the
following:
A group consisting of Leyson, Notarte, Besinga, Gulle, Ewing Bayani, Ralowe
Velayo, Ebol Bayani, Reynaldo Jamerlan and Bond de Vera were drinking and
conversing in the early evening of 3 May 1988 which was the occasion of the
fiesta at Purok Sta. Cruz, San Pedro St., Lagao, General Santos City. They were
at the store of a certain Diola which was situated near the stage where the
amateur singing contest was to be held.6
During the singing contest, which started at around ten o’clock in the evening
(10:00 p.m.), Bebong Cambarijan (Cambarijan) approached Gulle to tell him
that Rogelio and Nicanor Soplente (the two accused) had asked him and
Estoy Provido (Provido), who was tough among the group. Without telling
anybody except Leyson and Notarte about the incident, Gulle went to the
house of policeman Rudy Penequito (Penequito) to get help. Penequito
instructed Gulle to refrain from accosting the Soplente cousins to avoid
disturbing the singing contest. Penequito also approached Rogelio and
Nicanor and admonished them not to make trouble, but despite the
intervention, Gulle, Notarte and Leyson watched the Soplente cousins still.
Gulle, along with Bebing Go, then accosted the Soplente cousins and inquired
where they came from. Nicanor politely answered that they were staying
with Susing Cafi (Susing). Since Gulle and the others knew that Susing was a
local resident, they were satisfied with the answer and they left the Soplente
cousins alone. Gulle however noticed that Nicanor smelled of liquor.7
The group of Leyson and the Soplente cousins continued to watch the singing
contest being held nearby. Some of Leyson’s companions were barangay
tanods and volunteers, thus, they were equipped with canes while Leyson
was armed with a handgun.8
While awaiting the announcement of winners at about twelve thirty in the
early morning (12:30 a.m.) of 4 May 1988, the group of Leyson repaired to a
place away from the stage to relieve themselves. Some of the spectators
began dispersing at this point. Notarte and Besinga were along one side of
San Pedro St. while the others, including Gulle, were on the left side.
Suddenly, a commotion ensued as the Soplente cousins passed by. Gulle,
Besinga and Leyson offered the following accounts of what had transpired
then.
Gulle testified that he saw Notarte fall to the ground, which was followed by
a gun burst which he presumed came from Leyson’s handgun. He saw
Leyson, by then clearly wounded, chasing Rogelio. However, Gulle did not
see the actual stabbing of either Notarte or Leyson.9
Besinga testified that he saw the commotion at a distance of about thirty (30)
meters while he was walking towards the group of Leyson at the right side of
San Pedro St. When he was barely three (3) meters away from them, he saw
Rogelio and Leyson approaching each other saying something unintelligible.
Notarte was beside Leyson at this juncture. Rogelio then stabbed Leyson,
who drew a gun and fired in the air. Besinga did not notice the others but his
companions were nearby mingled with the people going home.10
Leyson, who survived the attack and sustained a wound on his left arm,
claimed to have been taken by surprise when the Soplente cousins suddenly
attacked Notarte and himself. The assault was so sudden and fast that while
he was standing with arms akimbo, he was stabbed by Rogelio. Leyson
reacted by drawing his gun and firing a shot in the air to prevent further
attack. Notarte who was a little to the rear but very near his right side was
attacked by Nicanor at the same instant that Rogelio had attacked his
companion, Leyson. The assaults were done simultaneously with lightning
speed, with Rogelio concentrating on Leyson and Nicanor on Notarte.
Rogelio fled after the firing of the gun. (But Leyson did not testify whether
Nicanor had also taken flight.) Leyson tried to go after Rogelio used but since
he was bleeding profusely, a policeman assisted him in going to the Canda
clinic for medical treatment. He learned the next day that Notarte died as a
result of the stabbing.11
On the other hand, Rogelio admitted having stabbed both Leyson and
Notarte, but claimed that he did so in self-defense.12 The testimony of
Rogelio and Nicanor themselves were presented as well as that of their
cousin Elena Cafi (Bukay) and store owner, Joy Malig-on (Malig-on). Based on
the findings of the lower court, the defense’s version of the incident is
condensed as follows:
The cousins, Rogelio and Nicanor, watched the amateur singing contest being
held near the Sta. Cruz Chapel at San Pedro St. which started at about nine
thirty in the evening (9:30 p.m.). They were standing only a few meters away
from the group of people who were drinking in the store of Diola. While
engrossed with the singing contest, they were approached by two (2)
persons from the group of Leyson who then tapped Nicanor’s shoulder. They
insisted on bringing Nicanor along with them so Nicanor called for Rogelio’s
help. The latter immediately intervened to stop the two from harassing
Nicanor.13
A few minutes after the incident, Nicanor went to the adjacent store of
Malig-on and "ordered orange."14 When Malig-on asked him what
happened, Nicanor explained that the strangers were provoking him by
deliberately stepping on his feet. He claimed however that the incident was
nothing to him.15
At about past eleven o’clock in the evening (11:00 p.m.), before the
conclusion of the amateur singing contest, Rogelio and Nicanor decided to
go home. They related how Nicanor was harassed near the stage of the
amateur show to their cousin, Susing and his wife, Bukay.16
At past midnight, Bukay asked Rogelio and Nicanor to accompany her in
looking for her children who had watched the singing contest. They obliged
but before they had gone about three hundred (300) meters, Nicanor
separated from them to buy cigarettes from a nearby store. Rogelio and
Bukay went onwards but at a distance of about fifty (50) meters from the
stage, Rogelio stopped and Bukay proceeded alone to look for her children.
A few minutes later, Bukay appeared with the children and they all headed
home.17
While on the way home, Rogelio suddenly found himself surrounded by
around ten (10) persons led by Leyson. He shouted at Nicanor to run and the
latter immediately scampered away. Leyson drew his gun and fired at Rogelio
but the latter was able to parry it by tapping the base of Leyson’s hand
holding the gun. Forthwith, Rogelio stabbed Leyson once. As Notarte had
started mauling Rogelio after Leyson had fired his gun, Rogelio also stabbed
Notarte. He stabbed both Leyson and Notarte to protect himself from being
killed by the group who were armed with canes and a lead pipe aside from
Leyson’s gun. Rogelio managed to escape after that and he sought refuge in
the house of Susing.18
Before dawn, a policeman arrived at Susing’s house and Rogelio voluntarily
gave himself up. The knife he used was also turned over to the police. He was
brought to the police substation at Lagao. A few hours later, Nicanor was also
picked up by the police.19
In its assailed ruling, the RTC held that Nicanor had no participation in the
fatal incident which occurred in the early morning of 4 May 1988.20 It also
found that there was no evidence of conspiracy.21 Accordingly, it absolved
Nicanor of the crimes charged in both Criminal Case Nos. 5093 and
5094.22 On the other hand, Rogelio’s claim of self-defense was deemed
legally justified with respect to Leyson’s injury but not with respect to
Notarte’s death. Thus, while Rogelio was acquitted in Criminal Case No. 5093,
he was found guilty of the crime of homicide in Criminal Case No. 5094.23
Notwithstanding the above findings, the lower court ordered both Nicanor
and Rogelio to jointly and severally indemnify the family of Notarte for the
latter’s death and to pay the hospitalization expenses of Leyson in its decision
dated 7 May 1996. The dispositive portion of the decision reads:
ACCORDINGLY, in the absence of proof of conspiracy, Nicanor Soplente is
acquitted in both criminal cases nos. 5093 and 5094. Considering the
admission and the evidence adduced, Rogelio Soplente is acquitted on
reasonable doubt in Criminal Case No. 5093 for frustrated homicide but he is
found guilty beyond reasonable doubt in Criminal Case No. 5094 for
homicide with the attendance of the mitigating circumstances of provocation
or threat and voluntary surrender and he is hereby sentenced to 6 years of
PRISION CORRECCIONAL to 8 years and 1 day of PRISION MAYOR MEDIUM,
to jointly and severally indemnify with accused Nicanor Soplente the heirs of
the deceased Joel Notarte the sum of P50,000.00, actual expenses of
P12,500.00; they are also required to pay IN SOLIDUM the hospitalization
expenses of Eduardo Leyson VI plus costs.
SO ORDERED.24
Initially, both Nicanor and Rogelio filed their respective notices of appeal
from the above decision. Later however, Nicanor withdrew his notice of
appeal and opted to merely move for a reconsideration of the portion of the
decision making him solidarily liable for monetary awards in favor of the
victims.
In an Order25 dated 26 June 1996, the lower court granted Nicanor’s motion
thereby totally absolving him from both criminal and civil liability. Thus, only
Rogelio’s appeal to the CA remained. Concluding that there was no unlawful
aggression on the part of Notarte which would justify Rogelio’s claim of self-
defense, the CA affirmed the ruling of the RTC. Hence, Rogelio’s recourse to
this Court.
In his petition, Rogelio claims that the CA erred when it held that on the basis
of unlawful aggression alone, Rogelio’s evidence fell short of being clear and
convincing.26 Rogelio vehemently argues that a holistic appreciation of the
evidence as presented by both the prosecution and the defense will show
that self-defense lies in his favor.27
Doctrinally, findings of fact of trial courts are accorded the highest respect
and weight. It is the peculiar province of the trial court to determine the
credibility of witnesses and related questions of fact because of its superior
advantage in observing the conduct and demeanor of witnesses while
testifying. Thus, it has become a well-settled rule that where the issue
touches on the credibility of witnesses or factual findings, the appellate court
will generally not disturb the findings of the trial court, unless some facts or
circumstances that may affect the result of the case have been overlooked. 28
In this case, a careful perusal of the records shows that the lower court
overlooked material facts that would result in Rogelio’s exculpation from
liability. The lower courts failed to appreciate the fact that Rogelio’s
testimony relative to his claim of self-defense stands uncontradicted. His
testimony coupled with the circumstances surrounding this case sufficiently
proves the claim of self-defense.
The three main witnesses for the prosecution, Gulle, Besinga and Leyson
categorically stated that it was Nicanor, not Rogelio who stabbed Notarte.
Gulle testified thus:
Q Mr. Gulle, do you still remember where were you on May 4, 1988 at about
12:30 o’clock early in the morning?
A I was at San Pedro St., Lagao, General Santos City.
Q What were you doing there at that particular time and place?
A I was standing beside my friends, Joel Notarte and Eduardo Leyson VI.
Q Aside from your friends, Joel Notarte and Eduardo Leyson VI, were there
other persons present?
A Yes, sir.
Q What were you doing at that particular time?
A We were conversing.
Q While you were conversing with your friends which includes Eduardo
Leyson VI and Joel Notarte, do you remember of any extraordinary incident
that happened in that early morning and at that particular place and time?
A Yes, sir.
Q Tell this Honorable Court what happened?
A Suddenly, Eduardo Leyson VI and Joel Notarte were stabbed.
Q Did you see the person who suddenly stabbed Eduardo Leyson VI?
A Yes, sir.
Q Is this person present in Court now?
A Yes, sir.
Q Will you please point him out to the court?
A He is there (witness is pointing to a person sitting on the accused bench
who, when asked his name, answered Rogelio Soplente.)
Q Did you see the person who stabbed Joel Notarte?
A Yes, sir.
Q Do you know that person?
A Yes, sir.
Q Is he present in Court now?
A Yes, sir.
Q Will you please point him out to the Court?
A That person, sir. (Witness points to a person seated on the accused bench,
who, when asked his name, answered Nicanor Soplente.)29
Besinga testified as follows:
Q Were you standing somewhere in that street at that particular time at
12:30 o’clock in the early morning of May 4, 1988?
A We were standing in front of the residence of Ventura.
Q While you were there standing along that street in front of the residence
of Ventura as you stated, do you remember if any extraordinary incident
happened?
A Yes, sir.
Q Will you please tell this Court what happened?
A I saw that Gingging and Joel were stabbed.
Q When you said Gingging, whom are you referring to?
A I am referring to Eduardo Leyson VI.
Q Do you know who stabbed Eduardo Leyson VI?
A Yes, sir.
Q Will you please tell this Honorable Court who stabbed Eduardo Leyson VI?
A Rogelio Soplente.
Q Is this Rogelio Soplente present in court now?
A Yes, sir.
Q Will you please point him out to the Court?
A That person, sir. (Witness is pointing to a person, who, when asked his
name, answered Rogelio Soplente.)
Q You said a certain Joel was also stabbed, what is the family name of Joel?
A Notarte.
Q And have you seen who stabbed Joel Notarte?
Atty. Vencer:
Leading, Your Honor.
Q Who stabbed Joel Notarte?
A Nicanor Soplente.
Q Is this Nicanor Soplente present in Court now?
A Yes, sir.
Q Will you please point him out?
A That person seated on the accused bench. (Witness is pointing to a person
who, when asked his name, answered Nicanor Soplente.)30
Leyson, on the other hand testified thus:
Q Will you please tell us what unusual incident was that?
A There was trouble at the place where the amateur singing contest was
held.
Q Then, what happened next?
A I was stabbed, sir. One of my companions was also stabbed.
Q Where were you specifically when you were stabbed?
A I was at the road, waiting for my younger brother.
Q Were you able to identify the person who stabbed you?
A Yes, sir.
Atty. Vencer:
Leading, Your Honor.
Q The question is, were you able to identify the person.
Court:
Already answered.
Q This person, you said, stabbed you, is he in court now?
A Yes, sir.
Q Will you point him out?
A Those two persons sitting over there. (Witness is pointing to the two
persons sitting on the accused bench, who, when asked their names,
answered Rogelio Soplente and Nicanor Soplente.
Q Of the two, Rogelio Soplente and Nicanor Soplente, who stabbed you?
A Rogelio, sir.
....
Q By the way, you said that two of them attacked you and you pointed to
one of them as the Rogelio Soplente who personally stabbed you. How about
the other one, what did he do?
A He was the one who stabbed Joel Notarte.31
Based on the foregoing, it is glaringly apparent that none of the main
prosecution witnesses ever identified Rogelio as the one who stabbed
Notarte and caused his death. Rather, they pointed at Nicanor as the
perpetrator of the crime against Notarte. The declarations made by the
witnesses were categorical and they never even made an attempt to correct
themselves. Yet, their categorical declarations were belied by the admission
of Rogelio himself who candidly admitted his own acts. Said declarations
were also belied by the findings of the trial court which held thus:
. . . The version given by Leyson that it was Rogelio who stabbed him and
Nicanor who stabbed Notarte who was standing less than a meter from him
a little bit to his back on the right side would not be supported by the actual
happening because it would appear that the stabbing which he said
happened simultaneously is against reality because if it were true that
Rogelio and Nicanor were on the left side of Leyson and that Leyson was a
little bit forward with Notarte on his right it would have been unlikely if not
impossible for the two to simultaneously stab because he (Leyson) would be
blocking the way of Nicanor. What is more logical and believable is that after
stabbing Leyson Rogelio immediately stabbed Notarte hitting him on the left
side of his body below the armpit.32
It has been ruled that the very act of giving false testimony impeaches that
witness’ own testimony and the court is compelled to exclude it from all
consideration.33 The findings of the trial court coupled with the admission of
Rogelio himself as to who actually stabbed Notarte discredits the testimony
of the prosecution witnesses. The veracity of their testimonies had been
effectively destroyed.
Thus, left uncontradicted is the testimony of Rogelio admitting the act of
stabbing Notarte. With the core of said testimony being the exculpatory
claim of self-defense, however, it is burdened by its own weight.
In order for self-defense to prosper, the following requisites must be present:
(1) unlawful aggression; (2) reasonable necessity of the means employed to
prevent or repel it; and (3) lack of sufficient provocation on the part of the
person defending himself.34
The appellate court held that on the element of unlawful aggression alone,
appellant’s (Rogelio’s) evidence relative thereto fell far short of being "clear
and convincing."35
We do not agree.
Rogelio’s testimony showed that there was indeed unlawful aggression on
the part of Notarte. The pertinent parts of the transcript of stenographic
notes provide thus:
Q While you were walking, what happened?
A Suddenly, people were running.
Q Running towards what direction?
A Towards me and they suddenly surrounded me.
Q How many persons surrounded you?
A More than ten (10) persons.
Q And when these ten (10) persons surrounded you, what was the first thing
that happened?
A One of them pointed at me and said, "Do you want to fight?"
Q And when he uttered those words, what did you tell him?
A I told him, "We don’t want a fight, we are here to watch the amateur
singing contest."
Q And after telling him that, what did this person who pointed to you and
challenged you to a fight do?
A That person pulled his revolver and said "Do you want this?"
Q Simultaneously saying, "Do you want this," what happened?
A When he pulled a gun from his waist, he immediately pointed his gun at
me, and I simultaneously parried the gun and it burst.
Q And what did you do?
A After the gun burst, simultaneously I stopped (stabbed) him.
Q Where was he hit?
A On his left upper arm.
Q That gun that burst, where was it directed at that time it was pulled?
Prosecutor Oco:
Already answered, Your Honor.
Court:
Yes, It was pointed at him.
Q How far from your head was that gun when it burst?
Prosecutor Oco:
No, Your Honor, please. We object. It is misleading.
Court:
Sustained.
Q Where was the gun, what part of your body was the gun pointed?
A At my face.
Q And when he was hit, what happened to him?
A I did not know anymore, sir because simultaneous to that, I received kicks.
Q From where, left or right?
A From my right side.
Q And that person who kicked you, after kicking you, what did he do?
A He continued attacking me.
Q So, what did you do?
A I stabbed him.
Q Was he hit?
A Yes, sir.36
Based on the uncontradicted testimony of Rogelio, he was kicked by Notarte
immediately after he stabbed Leyson. Viewed in an isolated context, the act
of kicking Rogelio by Notarte might seem insufficient as an act of unlawful
aggression, considering that Notarte just witnessed his friend, Leyson, being
stabbed. Perhaps, this was the context in which the lower courts appreciated
Rogelio’s claim of self-defense. After all, the immediate vindication even of a
stranger is recognized as a justifying circumstance.
However, there is a wider context which should be appreciated. As
concluded by the trial court, the Soplente cousins were surrounded by
Leyson and his companions, some of whom were armed.37 Animosity
between these two sets had been fostered just a few hours earlier. Leyson
had drawn first and fired first. At this juncture, Rogelio had every reason to
believe that it was not only Leyson who meant him harm, but that Leyson’s
companions were of the same mindset. The fact that Leyson’s aggression had
already been repelled did not eliminate the threat to Rogelio’s well-being in
the hands of Leyson’s companions. The kicks employed by Notarte did
nothing but remind Rogelio that the threats to his life or limb had not ceased,
even if those from Leyson’s had.
The Court of Appeals implied that it has not been indubitably ascertained
that Notarte had kicked Rogelio, or that Notarte was armed or otherwise
attacked Rogelio. But the same time, it cannot be disputed that Notarte was
no neutral bystander with no interest in the confrontation at hand. Notarte
was one of Leyson’s confederates, present at the crucial moment for the
same malevolent intentions towards Rogelio as that of his cohorts’.
At the commencement of the attack, Rogelio could not have been obliged to
view Notarte, or any other member of the posse for that matter, as a less
menacing threat than Leyson. We have to understand that these events
occurred spontaneously in a matter of seconds or even simultaneously.
Rogelio bore no superhuman power to slow down time or to prevent the
events from unfolding at virtual warp speed, to be able to assess with
measured certainty the appropriate commensurate response due to each of
his aggressors. Even those schooled in the legal doctrines of self-defense
would, under those dire circumstances, be barely able to discern the legally
defensible response and immediately employ the same. Our laws on self-
defense are supposed to approximate the natural human responses to
danger, and not serve as our inconvenient rulebook based on which we
should acclimatize our impulses in the face of peril.
It would be wrong to compel Rogelio to have discerned the appropriate
calibrated response to Notarte’s kicking when he himself was staring at the
evil eye of danger. That would be a gargantuan demand even for the coolest
under pressure. The Court has been reasonable enough to recognize some
unreason as justifiable in the law of self-defense. As stated in the case
of People v. Boholst-Caballero.38
The law on self-defense embodied in any penal system in the civilized world
finds justification in man’s natural instinct to protect, repel and save his
person or rights from impending danger or peril; it is based on that impulse
of self-preservation born to man and part of his nature as a human being.39
The second element which is reasonable necessity of the means employed
to prevent or repel the unlawful aggression was likewise present in the case
at bar. The knife Rogelio habitually carried was the only weapon he had in
his person.40 It was but logical that the knife would be the only thing he could
use against his attackers since the latter were collectively armed with canes
and a handgun.
Anent the third element of self-defense, there was no evidence to show that
Rogelio had provoked Notarte into a fight. The lower court’s finding on this
point is backed by the evidence on record. As the lower court held, it is a fact
that Rogelio had not done anything to provoke the victim prior to or at the
time of the fatal encounter.41
All the elements of self-defense having been established through the
uncontradicted testimony of Rogelio, the reversal of the lower courts’
decision is in order. Under the law, a person does not incur any criminal
liability if the act committed is in defense of his person; thus, Rogelio is
entitled to an acquittal in this case.
WHEREFORE, the decision appealed from is REVERSED and appellant Rogelio
Soplente is ACQUITTED of the crime charged. His immediate release is hereby
ORDERED unless he is detained for some other lawful cause. No costs.
SO ORDERED.
G.R. No. 144933 July 3, 2002
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JERRY ANTONIO Y DIOLATA, accused-appellant.
YNARES-SANTIAGO, J.:
This is an appeal from the decision1 of the Regional Trial Court of Mandaue
City, Branch 28, in Criminal Case No. DU-6619 convicting accused-appellant
of the crime of murder; sentencing him to suffer the penalty of reclusion
perpetua; and ordering him to pay the heirs of the deceased the amounts of
P50,000.00 as civil indemnity and P20,000.00 as moral damages, plus the
costs of suit.
The information against accused-appellant reads:
That on or about the 11th day of October, 1998, in the City of
Mandaue, Philippines, and within the jurisdiction of this
Honorable Court, the aforenamed accused, with deliberate intent
to kill and with evident premeditation and treachery, did then and
there wilfully, unlawfully and feloniously attack, assault and stab
one Jomar Cardosa Ephan with a sharp bladed weapon, thereby
inflicting upon the latter mortal wound at his vital portion namely:
"Stab wound (L) Lumbar Level of L1 & L2 with grade IV
Spleenic injury & grade II Renal (L) injury."
Which caused his death soon thereafter.
CONTRARY TO LAW.2
Upon arraignment on November 16, 1998, accused-appellant pleaded not
guilty.3 Trial thereafter ensued.
The facts as presented by the prosecution show that at 1:00 in the early
morning of October 11, 1998, the victim, Jomar Ephan, was engaged in a
drinking session with Reynaldo Ephan and Roselito Dacillo in front of a store
in Barangay Pakna-an, Mandaue City. Accused-appellant arrived and bought
cigarettes. Then, he ordered Jomar, Reynaldo and Roselito to count the
cigarettes he bought, but the three told accused-appellant to let the
storekeeper do the counting. Rebuked, accused-appellant left the store. He
returned minutes later and suddenly stabbed the victim at the back, after
which he immediately fled. The victim was rushed by his companions to the
hospital but died the following day.4
Meanwhile, Eduardo Juban, a Barangay Tanod, was awakened by one of his
neighbors and was told that there was trouble at a nearby store. When
Eduardo went out, he saw accused-appellant being chased by a crowd who
were shouting, "thief." The group mauled accused-appellant when they
caught up with him. Eduardo, however, pacified the mob and brought
accused-appellant to the barangay hall. Eduardo later learned from the
group that accused-appellant had stabbed somebody.5
The examination conducted by Dr. Reynaldo Baclig revealed that the victim
sustained a stab wound near the spinal column, three inches above the waist
line, and died from spleen and renal injury and massive blood loss.6
On the other hand, the defense tried to prove that: at around 1:00 a.m. of
October 11, 1998, accused-appellant was in the house of his friend, Fernando
Gelig, at Pakna-an, Mandaue City. While they were drinking liquor, accused-
appellant went out and bought cigarettes from a store across the street. As
a token of friendship, accused-appellant offered the cigarettes to the people
in front of the store, but nobody accepted his offer. Accused-appellant went
back to the house of his friend. After a short while, he went back to the same
store to buy "pulutan." For no reason at all, somebody struck him with a stool
hitting him on the left eyebrow. Accused-appellant fell on the ground but the
group of the deceased, who were then in front of the store, ganged up on
him. The deceased attempted to hit accused-appellant but because the
former was very drunk, he missed and fell on his belly. It was at this point
when accused-appellant got hold of a knife he saw under the table and
stabbed the deceased at the back. Thereafter, accused-appellant
immediately fled but the crowd chased and mauled him. Fortunately, a
Barangay Tanod came and stopped the mob.7
On July 12, 2000, the trial court promulgated the assailed judgment of
conviction. The dispositive portion thereof reads:
WHEREFORE, in view of all the foregoing premises, the Court
hereby finds the accused Jerry Antonio y Diolata GUILTY beyond
 reasonable doubt of the crime of MURDER as defined and
penalized under Article 248 of the Revised Penal Code, as
amended, and hereby imposes upon him the penalty of Reclusion
Perpetua with all the accessory penalties provided for by law. Let
him be given full credit for the preventive imprisonment he has
served. Likewise, the accused is ordered to indemnify the heirs of
Jomar Ephan the sum of P50,000.00 as civil indemnity ex
delicto and the sum of P20,000.00 as moral damages. The Court
hereby orders too that the accused should pay the cost of this
suit.
IT IS SO ORDERED.8
Hence, this appeal based on the following grounds:
I.
FOR FAILURE OF THE PROSECUTION TO ADDUCE EVIDENCE THAT
THE ACCUSED WAS THE UNLAWFUL AGGRESSOR, HE SHOULD BE
CONVICTED FOR A LESSER OFFENSE AS CHARGED (sic).
II.
THE TRIAL COURT FAILED TO APPRECIATE THE PRESENCE OF A
MITIGATING CIRCUMSTANCE OF ILLNESS OF THE OFFENDER AS
WOULD DIMINISH THE EXERCISE OF THE WILL-POWER OF THE
OFFENDER WITHOUT HOWEVER DEPRIVING HIM OF
CONSCIOUSNESS OF HIS ACTS.9
Faced with the conflicting versions of the prosecution and the defense, the
trial court’s choice of which version to believe is generally viewed as correct
and entitled to the highest respect because it is more competent to conclude
so, having had the opportunity to observe the witnesses' demeanor and
deportment on the witness stand, and the manner in which they gave their
testimonies, and therefore could better discern if such witnesses were telling
the truth. The trial court is thus in the best position to weigh conflicting
testimonies. Therefore, unless the trial judge plainly overlooked certain facts
of substance and value which, if considered, might affect the result of the
case, his assessment on credibility must be respected.10
A thorough review of the records of the case at bar shows that the trial court
did not miss any such material circumstance nor did it commit any palpable
error in upholding the facts as established by the prosecution. The positive
and direct narration of the prosecution witnesses that accused-appellant
suddenly stabbed the victim at the back, and that no altercation preceded
the attack, deserves full faith and credence. These witnesses were not shown
to have been impelled by ill-motive to falsely testify against accused-
appellant.11 Moreover, being friends and relatives of the deceased, they
would naturally be interested in having the real culprit punished.12
The trial court did not likewise err in rejecting accused-appellant’s self-
defense theory. Where an accused invokes self-defense, he thereby admits
authorship of the crime. The burden of proof is thus shifted on him to prove
all the elements of self-defense, to wit: (1) unlawful aggression on the part
of the victim; (2) reasonable necessity of the means employed to repel the
aggression; and (3) lack of sufficient provocation on the part of the accused.13
In the case at bar, even if we sustain the version of accused-appellant that
the initial act of aggression came from the group of the deceased, still we
cannot uphold his plea of self-defense. As testified by accused-appellant
himself, the deceased who was at that time very drunk tried to hit him but
missed and fell on the ground. At that point, unlawful aggression ceased and
it was no longer necessary for him to stab the deceased. It was accused-
appellant, therefore, who became the aggressor when he, despite the
condition of the deceased, proceeded to stab the latter at the back. His act
can no longer be interpreted as an act of self-preservation but a perverse
desire to kill.14 Hence, he cannot successfully claim the benefit of self-
defense. Furthermore, if it were true that the companions of the deceased
ganged up on him, his attack should have been directed against them and
not against the deceased who was already defenseless and lying on the
ground. Pertinent portion of accused-appellant’s testimony reads:
xxx xxx xxx
Q: What happened when you bought "pulutan" in the same
store where you bought the cigarettes?
A: I was struck by a person on the head. (Witness indicating
left eyebrow.)
Q: Were you bloodied when you were hit?
A: Yes. I fell down.
Q: When you fell down, what happened next?
A: I stood up.
Q: Could you recognize the person who hit you with a chair
on your left eyebrow?
A: No.
Q: When you stood up after you were hit, what happened
next?
A: I saw a kitchen knife under the table upon standing up and
they were ganging up on me by striking me. So, I happened to
have stab (sic) him.
Q: What was the position of the person that you stabbed?
A: He was very drank (sic) and he fell down.
Q: Could you show to the Honorable Court the position?
Could you demonstrate the position of the alleged victim that was
hit by the knife?
A: When he struck me, I was able to evade the blow and by
his force and momentum, he fell towards the ground on all
force (sic) and so, I stabbed him this way (witness demonstrating
by delivering a blow downwards) and I happen to hit him maybe
at the back.
Q: After hitting him with the knife what happened?
A: I ran.15
The qualifying circumstance of treachery was properly appreciated by the
trial court. Accused-appellant’s attack on the deceased from behind
completely caught the latter by surprise. Accused-appellant therefore
effectively executed the assault without any risk to himself arising from the
defense which the deceased might make.16
The injury sustained by accused-appellant after he was allegedly struck by a
stool on the head will not entitle him to a mitigating circumstance. The
alleged injury hardly qualifies as mitigating circumstance analogous to illness
or defect that would diminish the exercise of will-power. More importantly,
accused-appellant failed to prove that he was assaulted by the deceased and
the latter’s companions.
The penalty for murder under Article 248 of the Revised Penal Code as
amended by R.A. No. 7659, is reclusion perpetua to death. Since no
modifying circumstance was established by the prosecution, the trial court
correctly imposed the lesser penalty of reclusion perpetua on accused-
appellant.
As to accused-appellant’s civil liability, the amount of P50,000.00, as
indemnity ex delicto is affirmed. The moral damages awarded by the trial
court in the amount of P20,000.00 should, however, be increased to
P50,000.00 in line with current jurisprudence.17
WHEREFORE, in view of all the foregoing, the decision of the Regional Trial
Court of Mandaue City, Branch 28, in Criminal Case No. DU-6619, finding
accused-appellant Jerry Antonio y Diolata guilty beyond reasonable doubt of
the crime of murder and sentencing him to suffer the penalty of reclusion
perpetua and ordering him to pay the heirs of the deceased Jomar C. Ephan
the amount of P50,000.00 as civil indemnity, is AFFIRMED with
the MODIFICATION that the moral damages to be paid by accused-appellant
is increased to P50,000.00.
SO ORDERED.
.R. No. 103613 February 23, 2001
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS and ELADIO C. TANGAN, respondents.
x------------------x
G.R. No. 105830 February 23, 2001
ELADIO C. TANGAN, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents.
YNARES-SANTIAGO, J.:
At around 11:30 p.m. of December 1, 1984, Navy Captain Eladio C. Tangan
was driving alone on Roxas Boulevard heading south. He had just come from
Buendia Avenue on an intelligence operation. At the same time, Generoso
Miranda, a 29-year old optometrist, was driving his car in the same direction
along Roxas Boulevard with his uncle, Manuel Miranda, after coming from
the Ramada Hotel. Generoso was moving ahead of Tangan. Suddenly,
firecrackers were thrown in Generoso's way, causing him to swerve to the
right and cut Tangan's path. Tangan blew his horn several times. Generoso,
slowed down to let Tangan pass. Tangan accelerated and overtook
Generoso, but when he got in front, Tangan reduced speed. Generoso tried
four or five times to overtake on the right lane but Tangan kept blocking his
lane. As he approached Airport Road, Tangan slowed down to make a U-tum.
Generoso passed him, pulled over and got out of the car with his uncle.
Tangan also stopped his car and got out. As the Mirandas got near Tangan's
car, Generoso loudly retorted, " Putang ina mo, bakit mo ginigitgit ang
sasakyan ko?" Generoso and Tangan then exchanged expletives. Tangari
pointed his hand to Generoso and the latter slapped it, saying, "Huwag mo
akong dinuduro! Sino ka ba, ano ba ang pinagmamalaki mo?" Tangan
countered, "Ikaw, ano ang gusto mo?" With this, Tangan went to his car and
got his .38 caliber handgun on the front seat. The subsequent events per
account of the parties' respective witnesses were conflicting:
According to the prosecution witnesses, particularly, Mary Ann
Borromeo, Rosalia Cruz and Manuel Miranda, the accused
pointed his gun at Generoso Miranda and when Manuel Miranda
tried to intervene, the accused pointed his gun at Manuel
Miranda, and after that the accused pointed again the gun to
Generoso Miranda, the accused shot Generoso Miranda at a
distance of about a meter but because the arm of the accused
was extended, the muzzle of the gun reached to about more or
less one foot away from the body of Generoso Miranda. The shot
 hit the stomach of Generoso Miranda causing the latter to fall and
while still conscious, Generoso Miranda told Manuel Miranda, his
uncle, to get the gun. Manuel Miranda grappled for the
possession of the gun and during their grappling, Rosalia Cruz
intervened and took hold of the gun and after Rosalia Cruz has
taken hold of the gun, a man wearing a red T-shirt took the gun
from her. The man in T-shirt was chased by Manuel Miranda who
was able to get the gun where the man in red T-shirt placed it.
On the other hand, the defense, particularly the accused and his
witness by the name of Nelson Pante claimed that after the gun
was taken by the accused from inside his car, the Mirandas
started to grapple for possession of the gun and during the
grappling, and while the two Mirandas were trying to wrest away
the gun from the accused, they fell down at the back of the car of
the accused. According to the accused, he lost the possession of
the gun after falling at the back of his car and as soon as they hit
the ground, the gun fell, and it exploded hitting Generoso
Miranda.1
After the gun went off, Tangan ran away. Meanwhile, Generoso lay on the
ground bloodied. His uncle, Manuel, looked for the gun and ran after Tangan,
joining the mob that had already pursued him. Tangan found a policeman
who allowed him to enter his patrol car. Manuel arrived and told the
policeman that Tangan had just shot his nephew. Then he went back to
where Generoso lay and there found two ladies, later identified as Mary Ann
Borromeo and Rosalina Cruz, helping his nephew board a taxi. Manuel
suggested that Generoso be brought to the hospital in his car. He was rushed
to the Philippine General Hospital but he expired on the way.1âwphi1.nêt
Tangan was charged with the crime of murder with the use of an unlicensed
firearm.2 After a reinvestigation, however, the information was amended to
homicide with the use of a licensed firearm,3 and he was separately charged
with illegal possession of unlicensed firearm.4 On arraignment, Tangan
entered a plea of not guilty in the homicide case, but moved to quash the
information for illegal possession of unlicensed firearm on various grounds.
The motion to quash was denied, whereupon he filed a petition for certiorari
with this Court.5 On November 5, 1987, said petition was dismissed and the
joint trial of the two cases was ordered.6
During the trial, the prosecution and the defense stipulated on the following:
that the amount of P126,000.00 was incurred for the funeral and burial
expenses of the victim;7 that P74,625.00 was incurred for attorneys fees; and
that the heirs of Generoso suffered moral damages, the amount of which is
left for the courts to determine. After trial, the lower court acquitted Tangan
of illegal possession of firearm, but convicted him of homicide. The privileged
mitigating circumstance of incomplete self-defense and the ordinary
mitigating circumstances of sufficient provocation on the part of the
offended party and of passion and obfuscation were appreciated in his favor;
consequently, the trial court ordered him to suffer an indeterminate penalty
of two (2) months of arresto mayor, as minimum, to two (2) years and four
(4) months of prision correccional, as maximum, and to indemnify the heirs
of the victim.8 Tangan was released from detention after the promulgation
of judgment and was allowed bail in the homicide case.
Private complainants, the heirs of Generoso Miranda, filed a petition for
review with this Court, docketed as G.R. No. 102677, challenging the civil
aspect of the court a quo's decision, but the same was dismissed for being
premature. On the other hand, Tangan appealed to the Court of Appeals,
which affirmed the judgment of the trial court but increased the award of
civil indemnity to P50,000.00.10 His subsequent motion for reconsideration
and a motion to cite the Solicitor General in contempt were denied by the
Court of Appeals.11
The office of the Solicitor General, on behalf of the prosecution, alleging
grave abuse of discretion, filed a petition for certiorari under Rule 65,
docketed as G.R. No.103613, naming as respondents the Court of Appeals
and Tangan, where it prayed that the appellate court's judgment be modified
by convicting accused-appellant of homicide without appreciating in his
favor any mitigating circumstance.12 Subsequently, the Office of the Solicitor
General, this time acting for public respondent Court of Appeals, filed a
motion for extension to file comment to its own petition for
certiorari.13 Discovering its glaring error, the Office of the Solicitor General
later withdrew its motion for extension of time.14 Tangan filed a Reply asking
that the case be submitted for decision.15
Meanwhile, Tangan filed a separate petition for review under Rule 45,
docketed as G.R. No. 105830.16 Since the petition for certiorari filed by the
Solicitor General remained unresolved, the two cases were
consolidated.17 The Office of the Solicitor General filed a manifestation in
G.R. No. 105830, asking that it be ex6used from filing a comment to Tangan's
petition for review, in order to avoid taking contradictory positions.18
In the recent case of People v. Velasco and Galvez,19 we held that the
prosecution cannot avail of the remedies of special civil action on certiorari,
petition for review on certiorari, or appeal in criminal cases. Previous to that,
we categorically ruled that the writ of certiorari cannot be used by the State
in a criminal case to correct a lower court's factual findings or evaluation of
the evidence.20
Rule 117, Section 7, of the Revised Rules of Criminal Procedure, is clear:
Former conviction or acquittal; double jeopardy. - When an
accused has been convicted or acquitted, or the case against him
dismissed or otherwise terminated without his express consent
by a court of competent jurisdiction, upon a valid complaint or
information or other fom1al charge sufficient in form and
substance to sustain a conviction and after the accused had
pleaded to the charge, the conviction or acquittal of the accused
or the dismissal of the case shall be a bar to another prosecution
for the offense charged, or for any attempt to commit the same
or frustration thereof, or for any offense which necessarily
includes or is necessarily included in the offense charged in the
former complaint or information.
However, the conviction of the accused shall not be a bar to
another prosecution for an offense which, necessarily includes
the offense charged in the former complaint or information under
any of the following instances:
(a) the graver offense developed due to supervening facts arising
from the same act or omission constituting the former charge;
(b) the facts constituting the graver charge became known or
were discovered only after a pleas was entered in the former
complaint or information; or
(c) the plea of guilty to the lesser offense was made without the
consent of the fiscal and of the offended party, except as provided
in section 1(f) of Rule 116.
In any of the foregoing cases, where the accused satisfies or
serves in whole or in part the judgment, he shall be credited with
the same in the event of conviction for the graver offense.
Based on the foregoing, the Solicitor General's petition for certiorari under
Rule 65, praying that no mitigating circumstance be appreciated in favor of
accused-appellant and that the penalty imposed on him be correspondingly
increased, constitutes a violation of Tangan's right against double jeopardy
and should be dismissed.
We now come to the petition for review filed by Tangan. It is noteworthy
that during the trial, petitioner Tangan did not invoke self-defense but
claimed that Generoso was accidentally shot. As such, the burden of proving
self-defense,21 which normally would have belonged to Tangan, did not come
into play. Although Tangan must prove his defense of accidental firing by
clear and convincing evidence,22 the burden of proving the commission of the
crime remained in the prosecution.
Both the trial court and the Court of Appeals appreciated in favor of Tangan
the privileged mitigating circumstance of incomplete self-defense under
Article 13 (1), in relation to Article 11 (1), of the Revised Penal Code, to wit:
ARTICLE 11. Justifying circumstances. - The following do not incur
any criminal liability:
1. Anyone who acts in defense of his person or rights, provided
that the following circumstances concur:
First. Unlawful aggression.
Second. Reasonable necessity of the means employed
to prevent or repel it.
Third. Lack of sufficient provocation on the part of the
person defending himself.
xxx xxx xxx
ARTICLE 13. Mitigating Circumstances. - The following are
mitigating circumstances:
1. Those mentioned in the preceding Chapter, when all the
requisites necessary to justify the act or to exempt from criminal
liability in the respective cases are not attendant.
Incomplete self-defense is not considered as a justifying act, but merely a
mitigating circumstance; hence, the burden of proving the crime charged in
the information is not shifted to the accused.23 In order that it may be
successfully appreciated, however, it is necessary that a majority of the
requirements of self-defense be present, particularly the requisite of
unlawful aggression on the part of the victim.24 Unlawful aggression by itself
or in combination with either of the other two requisite suffices to establish
incomplete self-defense. Absent the unlawful aggression, there can never be
self-defense, complete or incomplete,25 because if there is nothing to
prevent or repel, the other two requisites of defense will have no basis.26
There is no question that the bullet which hit the victim was fired from the
caliber. 38, which was issued to Tangan by the Philippine Navy. The cause of
death was severe hemorrhage secondary to gunshot wound of the abdomen,
caused by the bullet fired from a gun of the said caliber. The prosecution
claimed that Tangan shot the victim point-blank in the stomach at a distance
of about one foot. On the other hand, Tangan alleged that when he grappled
with Generoso and Manuel Miranda for possession of the gun, it fell to the
ground and accidentally fired, hitting the victim.
When the testimonies of witnesses in open court are conflicting in
substantial points, the calibration of the records on appeal becomes difficult.
It is the word of one party against the word of the other. The reviewing
tribunal relies on the cold and mute pages of the records, unlike the trial
court which had the unique opportunity of observing first-hand that elusive
and incommunicable evidence of the witness' deportment on the stand while
testifying.27 The trial court's assessments of the credibility of witnesses is
accorded great weight and respect on appeal and is binding on this
Court,28 particularly when it has not been adequately demonstrated that
significant facts and circumstances were shown to have been overlooked or
disregarded by the court below which, if considered, might affect the
outcome hereof.29 The rationale for this has been adequately explained in
that,
The trial court has the advantage of observing the witnesses
through the different indicators of truthfulness or falsehood, such
as the angry flush of an insisted assertion or the sudden pallor of
a discovered lie or the tremulous mutter of a reluctant answer or
the forthright tone of a ready reply; or the furtive glance, the
blush of conscious shame, the hesitation, the sincere or the
flippant or sneering tone, the heat, the calmness, the yawn, the
sigh, the candor or lack of it, the scant or full realization of the
solemnity of an oath, and carriage and mien.30
Equally, when a person fabricates a story, he usually adopts a simple account
because a complex one might lead to entanglement from which he may find
it hard to extricate himself. Along the same line, the experience of the courts
and the general observations of humanity teach us that the natural
limitations of our inventive faculties are such that if a witness delivers in
court a false narrative containing numerous details, he is almost certain to
fall into fatal inconsistencies to make statements which can be readily
refuted, or to expose in his demeanor the falsity of his message.31 Aside from
this, it is not also unusual that the witness may have been coached before he
is called to the stand to testify.
Somewhere along the painstaking review of the evidence on record, one
version rings the semblance of truth, not necessarily because it is the
absolute truth, but simply because it is the best approximation of the truth
based on the declarations of witnesses as corroborated by material evidence.
Perforce, the other version must be rejected. Truth and falsehood, it has
been well said, are not always opposed to each other like black and white,
but oftentimes, and by design, are made to resemble each other so as to be
hardly distinguishable.32 Thus, after analyzing the conflicting testimonies of
the witnesses, the trial court found that:
When the accused took the gun from his car and when he tried to
get out of the car and the two Mirandas saw the accused already
holding the gun, they started to grapple for the possession of the
gun that it went off hitting Generoso Miranda at the stomach. The
court believes that contrary to the testimony of the accused, he
never lost possession of the gun for if he did and when the gun
fell to the ground, it will not first explode or if it did, somebody is
not holding the same, the trajectory of the bullet would not be
perpendicular or horizontal.33
The Court of Appeals agreed -
The finding of the lower court that Generoso Miranda III was shot
while the accused and the Mirandas were grappling for the
possession of the gun immediately after the accused had taken
his gun from inside his car and before the three allegedly fell to
the ground behind the car of the accused is borne out by the
record. The court also agrees with the court below that it was the
accused-appellant who shot and killed Generoso Miranda III. If
the accused-appellant did not shoot Generoso III during the
scuffle, he would have claimed accidental killing by alleging that
his gun exploded during the scuffle instead of falsely testifying
that he and the Mirandas fell to the ground behind his car and the
gun exploded in the possession of Manuel Miranda. The theory of
the prosecution that the shooting took place while the three were
grappling for the possession of the gun beside the car of appellant
is completely in harmony with the findings and testimony of Dr.
Ibarrola regarding the relative position of the three and the
precarious nearness of the victim when accused-appellant pulled
the trigger of his gun. Dr. Ibarrola explained that the gun was
about two (2) inches from the entrance wound and that its
position was almost perpendicular when it was fired. It was in fact
the closeness of the Mirandas vis-à-vis appellant during the
scuffle for the gun that the accused-appellant was compelled to
pull the trigger in answer to the instinct of self-preservation.34
No convincing reason appears for the Court to depart from these factual
findings, the same being ably supported by the evidence on record. In violent
deaths caused by gunshot wounds, the medical report or the autopsy on the
cadaver of the victim must as much as possible narrate the observations on
the wounds examined. It is material in determining the truthfulness of the
events narrated by the witnesses presented. It is not enough that the witness
looks credible and assumes that he indeed witnessed the criminal act. His
narration must be substantiated by the physical evidence available to the
court.
The medical examiner testified that the distance between the muzzle of the
gun and the target was about 2 inches but definitely not more than 3 inches.
Based on the point of exit and the trajectory transit of the wound, the victim
and the alleged assailant were facing each other when the shot was made
and the position of the gun was almost perpendicular when fired.35 These
findings disprove Tangan's claim of accidental shooting. A revolver is not
prone to accidental firing because of the nature of its mechanism, unless it
was already first cocked and pressure was exerted on the trigger. If it were
uncocked, then considerable pressure had to be applied on the trigger to fire
the revolver.36
Having established that the shooting was not accidental, the next issue to be
resolved is whether Tangan acted in incomplete self-defense. The element
of unlawful aggression in self-defense must not come from the person
defending himself but from the victim.
A mere threatening or intimidating attitude is not sufficient.37 Likewise, the
exchange of insulting words and invectives between Tangan and Generoso
Miranda, no matter how objectionable, could not be considered as unlawful
aggression, except when coupled with physical assault.38 There being no
lawful aggression on the part of either antagonists, the claim of incomplete
self-defense falls. Tangan undoubtedly had possession of the gun, but the
Mirandas tried to wrestle the gun from him. It may be said that the former
had no intention of killing the victim but simply to retain possession of his
gun. However, the fact that the victim subsequently died as a result of the
gunshot wound, though the shooter may not have the intention to kill, does
not absolve him from culpability. Having caused the fatal wound, Tangan is
responsible for all the consequences of his felonious act. He brought out the
gun, wrestled with the Mirandas but anticipating that the gun may be taken
from him, he fired and fled.
The third requisite of lack of sufficient provocation on the part of the person
defending himself is not supported by evidence. By repeatedly blocking the
path of the Mirandas for almost five times, Tangan was in effect the one who
provoked the former. The repeated blowing of horns, assuming it was done
by Generoso, may be irritating to an impatient driver but it certainly could
not be considered as creating so powerful an inducement as to incite
provocation for the other party to act violently.
The appreciation of the ordinary mitigating circumstances of sufficient
provocation and passion and obfuscation under Article 13, paragraphs 4 and
6,39 have no factual basis. Sufficient provocation as a requisite of incomplete
self-defense is different from sufficient provocation as a mitigating
circumstance. As an element of self-defense, it pertains to its absence on the
part of the person defending himself; while as a mitigating circumstance, it
pertains to its presence on the part of the offended party. Besides, only one
mitigating circumstance can arise out of one and the same act.40 Assuming
for the sake of argument that the blowing of horns, cutting of lanes or
overtaking can be considered as acts of provocation, the same were not
sufficient. The word "sufficient" means adequate to excite a person to
commit a wrong and must accordingly be proportionate to its
gravity.41 Moreover, Generoso's act of asking for an explanation from Tangan
was not sufficient provocation for him to claim that he was provoked to kill
or injure Generoso.42
For the mitigating circumstance of passion and obfuscation to be
appreciated, it is required that (1) there be an act,
both unlawful and sufficient to produce such a condition of mind; and (2)
said act which produced the obfuscation was not far removed from the
commission of the crime by a considerable length of time, during which the
perpetrator might recover his normal equanimity.43
In the case at bar, Tangan could not have possibly acted upon an impulse for
there was no sudden and unexpected occurrence which wuld have created
such condition in his mind to shoot the victim. Assuming that his path was
suddenly blocked by Generoso Miranda due to the firecrackers, it can no
longer be treated as a startling occurrence, precisely because he had already
passed them and was already the one blocking their path. Tangan's acts were
done in the spirit of revenge and lawlessness, for which no mitigating
circumstance of passion or obfuscation can arise.
With respect to the penalty, under the laws then existing, homicide was
penalized with reclusion temporal,44 but if the homicide was committed with
the use of an unlicensed firearm, the penalty shall be death.45 The death
penalty, however, cannot be imposed on Tangan because in the meantime,
the 1987 Constitution proscribed the imposition of death penalty; and
although it was later restored in 1994, the retroactive application of the
death penalty is unfavorable to him. Previously the accused may be
prosecuted for two crimes: (1) homicide or murder under the Revised Penal
Code and (2) illegal possession of firearm in its aggravated form under P.D.
1866.46
P.D. 1866 was amended by R.A. No. 8294,47 which provides that if an
unlicensed firearm is used in murder or homicide, such use of unlicensed
firearm shall be appreciated as an aggravating circumstance and no longer
considered as a separate offense,48 which means that only one offense shall
be punished - murder or homicide. However, this law cannot apply
retroactively because it will result in the imposition on Tangan of the
maximum period of the penalty. Moreover, under Rule 110, Section 8 of the
Revised Rules of Criminal Procedure,49 the aggravating circumstance must be
alleged in the information. Being favorable, this new rule can be given
retroactive effect as they are applicable to pending cases.50 In any case,
Tangan was acquitted of the illegal possession case.
Consequently, Tangan should be sentenced to suffer the penalty of reclusion
temporal. Pursuant to Article 64 of the Revised Penal Code, if the prescribed
penalty is composed of three periods, and there is neither mitigating nor
aggravating circumstance, the medium period shall be applied. Applying the
Indeterminate Sentence law, the maximum of the indeterminate penalty
shall be that which, in view of the attendant circumstances, may be properly
imposed, which in this case is reclusion temporal medium with an
imprisonment range of from fourteen (14) years, eight (8) months and one
(1) day to seventeen (17) years and four (4) months. The minimum of the
indeterminate sentence shall be the next lower degree which is prision
mayor with a range of from six (6) years and one (1) day to twelve (12)
years.51 Hence, petitioner Tangan is sentenced to an indeterminate penalty
of six (6) 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.
The death indemnity of P30,000.00 was correctly increased by the appellate The facts are summarized in the People's brief, as follows:
court to P50,000.00 in line with jurisprudence.52 Moral damages are awarded
in criminal cases involving injuries if supported by evidence on record,53 but
the stipulation of the parties in this case substitutes for the necessity of
evidence in support thereof. Though not awarded below, the victim's heirs
are entitled to moral damages in the amount of P50,000.00 which is
considered reasonable considering the pain and anguish brought by his
death.54
WHEREFORE, the petition in G.R. No. 103613 is DISMISSED. The appealed
decision subject of G.R. No. 105830 is AFFIRMED with the
following MODIFICATIONS:
(1) Tangan is sentenced to suffer an indeterminate penalty of six
(6) 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, with all the accessory penalties.
(2) Tangan is ordered to pay the victim's heirs P50,000.00 as civil
indemnity, P42,000.00 as funeral and burial expenses, P5,000.00
as attorney's fees, and P50,000.00 as moral damages.
SO ORDERED.
G.R. Nos. L-33466-67 April 20, 1983
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MAMERTO NARVAEZ, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.
MAKASIAR, J.:
This is an appeal from the decision of the Court of First Instance of South
Cotabato, Branch I, in Criminal Cases Nos. 1815 and 1816 for murder which,
after a joint trial, resulted in the conviction of the accused in a decision It appears, however, that this incident is intertwined with the long drawn out
rendered on September 8, 1970, with the following pronouncement:
Thus, we have a crime of MURDER qualified by
treachery with the aggravating circumstance of
evident premeditation offset by the mitigating
circumstance of voluntary surrender. The proper
penalty imposable, therefore, is RECLUSION
PERPETUA (Arts. 248 and 64, Revised Penal Code).
Accordingly, finding Mamerto Narvaez guilty beyond
reasonable doubt of the crime of murder,
(a) In Criminal Case No. 1815, he is hereby sentenced
to RECLUSION PERPETUA, to indemnify the heirs of the
deceased Davis Q. Fleischer in the sum of P 12,000.00
as compensatory damages, P 10,000.00 as moral
damages, P 2,000.00 as attorney's fees, the offended
party having been represented by a private
prosecutor, and to pay the costs;
(b) In Criminal Case No. 1816, he is hereby sentenced
to RECLUSION PERPETUA, to indemnify the heirs of the
deceased Flaviano Rubia in the sum of P12,000.00 as
compensatory damages, P10,000.00 as moral
damages, P2,000.00 as attorney's fees, the offended
party having been represent by a private prosecutor,
and to pay the costs (p. 48, rec.).
At about 2:30 in the afternoon of August 22, 1968,
Graciano Juan, Jesus Verano and Cesar Ibanez
together with the two deceased Davis Fleischer and
Flaviano Rubia, were fencing the land of George
Fleischer, father of deceased Davis Fleischer. The place
was in the boundary of the highway and the hacienda
owned by George Fleischer. This is located in the
municipality of Maitum, South Cotabato. At the place
of the fencing is the house and rice drier of appellant
Mamerto Narvaez (pp. 179-182, t.s.n., Pieza II). At that
time, appellant was taking his rest, but when he heard
that the walls of his house were being chiselled, he
arose and there he saw the fencing going on. If the
fencing would go on, appellant would be prevented
from getting into his house and the bodega of his
ricemill. So he addressed the group, saying 'Pare, if
possible you stop destroying my house and if possible
we will talk it over what is good,' addressing the
deceased Rubia, who is appellant's compadre. The
deceased Fleischer, however, answered: 'No, gademit,
proceed, go ahead.' Appellant apparently lost his
equilibrium and he got his gun and shot Fleischer,
hitting him. As Fleischer fell down, Rubia ran towards
the jeep, and knowing there is a gun on the jeep,
appellant fired at Rubia, likewise hitting him (pp. 127-
133, t.s.n., Defense transcript). Both Fleischer and
Rubia died as a result of the shotting' (pp. 9-14, t.s.n.,
Pieza I, pp. 8-9, Appellant's Brief, p.161, rec.).
legal battle between the Fleischer and Co., Inc. of which deceased Fleischer
was the secretary-treasurer and deceased Rubia the assistant manager, on
the one hand, and the land settlers of Cotabato, among whom was appellant.
From the available records of the related cases which had been brought to
the Court of Appeals (CA-G.R. Nos. 28858-R and 50583-R) and to this Court
on certiorari (G.R. No. L-26757 and L-45504), WE take judicial notice of the
following antecedent facts:
Appellant was among those persons from northern and central Luzon who
went to Mindanao in 1937 and settled in Maitum, a former sitio of Kiamba
and now a separate municipality of South Cotabato. He established his
residence therein, built his house, cultivated the area, and was among those
who petitioned then President Manuel L. Quezon to order the subdivision of
the defunct Celebes Plantation and nearby Kalaong Plantation totalling about
2,000 hectares, for distribution among the settlers.
Shortly thereafter, Fleischer and Company, headed by George W. Fleischer,
an American landowner in Negros Oriental, filed sales application No. 21983
on June 3, 1937 over the same area formerly leased and later abandoned by
Celebes Plantation Company, covering 1,017.2234 hectares.
Meanwhile, the subdivision was ordered and a public land surveyor did the
actual survey in 1941 but the survey report was not submitted until 1946
because of the outbreak of the second world war. According to the survey,
only 300 hectares Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba, were
set aside for Sales Application No. 21983, while the rest were subdivided into
sublots of 5 to 6 hectares each to be distributed among the settlers (pp. 32-
33, G.R. No. L-45504).
The 300 hectares set aside for the sales application of Fleischer and Company
was declared open for disposition, appraised and advertised for public
auction. At the public auction held in Manila on August 14, 1948, Fleischer
and Company was the only bidder for P6,000.00. But because of protests
from the settlers the corresponding award in its favor was held in abeyance,
while an investigator was sent by the Director of Lands to Kiamba in the
person of Atty. Jose T. Gozon Atty. Gozon came back after ten days with an
amicable settlement signed by the representative of the settlers. This
amicable settlement was later repudiated by the settlers, but the Director of
Lands, acting upon the report of Atty. Gozon, approved the same and
ordered the formal award of the land in question to Fleischer and Company.
The settlers appealed to the Secretary of Agriculture and Natural Resources,
who, however, affirmed the decision in favor of the company.
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First
Instance of Cotabato which then consisted only of one sala, for the purpose
of annulling the order of the Secretary of Agriculture and Natural Resources
which affirmed the order of the Director of Lands awarding the contested
land to the company. The settlers as plaintiffs, lost that case in view of the
amicable settlement which they had repudiated as resulting from threats and
intimidation, deceit, misrepresentation and fraudulent machination on the
part of the company. They appealed to the Court of Appeals (CA-G.R. No.
28858-R) which likewise affirmed on August 16, 1965 the decision of the
Court of First Instance in favor of the company.
This resulted in the ouster of the settlers by an order of the Court of First
Instance dated September 24, 1966, from the land which they had been
occupying for about 30 years. Among those ejected was the appellant who,
to avoid trouble, voluntarily dismantled his house, built in 1947 at a cost of
around P20,000.00, and transferred to his other house which he built in 1962
or 1963 near the highway. The second house is not far from the site of the
dismantled house. Its ground floor has a store operated by Mrs. June Talens
who was renting a portion thereof. He also transferred his store from his
former residence to the house near the highway. Aside from the store, he
also had a rice mill located about 15 meters east of the house and a concrete
pavement between the rice mill and the house, which is used for drying
grains and copra.
On November 14, 1966, appellant was among the settlers on whose behalf
Jose V. Gamboa and other leaders filed Civil Case No. 755 in the Court of First
Instance of Cotabato, Branch I. to obtain an injunction or annulment of the
order of award with prayer for preliminary injunction. During the pendency
of this case, appellant on February 21, 1967 entered into a contract of lease
with the company whereby he agreed to lease an area of approximately 100
to 140 square meters of Lot No. 38 from the company (Exh. 9, p. 1, Folder of
Exhibits for Defense) for a consideration of P16.00 monthly. According to
him, he signed the contract although the ownership of the land was still
uncertain, in order to avoid trouble, until the question of ownership could be
decided. He never paid the agreed rental, although he alleges that the milling
job they did for Rubia was considered payment. On June 25, 1968, deceased
Fleischer wrote him a letter with the following tenor:
You have not paid six months rental to Fleischers &
Co., Inc. for that portion of land in which your house
and ricemill are located as per agreement executed on
February 21, 1967. You have not paid as as even after
repeated attempts of collection made by Mr. Flaviano
Rubia and myself.
In view of the obvious fact that you do not comply with
the agreement, I have no alternative but to terminate
our agreement on this date.
I am giving you six months to remove your house,
ricemill, bodega, and water pitcher pumps from the
land of Fleischers & Co., Inc. This six- month period
shall expire on December 31, 1966.
In the event the above constructions have not been
removed within the six- month period, the company
shall cause their immediate demolition (Exhibit 10, p.
2, supra).
On August 21, 1968, both deceased, together with their laborers,
commenced fencing Lot 38 by putting bamboo posts along the property line
parallel to the highway. Some posts were planted right on the concrete drier
of appellant, thereby cutting diagonally across its center (pp. 227-228, t.s.n.,
Vol. 2), with the last post just adjacent to appellant's house (p. 231,
t.s.n., supra). The fence, when finished, would have the effect of shutting off
the accessibility to appellant's house and rice mill from the highway, since
the door of the same opens to the Fleischers' side. The fencing continued on
that fateful day of August 22, 1968, with the installation of four strands of
barbed wire to the posts.
At about 2:30 p.m. on the said day, appellant who was taking a nap after
working on his farm all morning, was awakened by some noise as if the wall
of his house was being chiselled. Getting up and looking out of the window,
he found that one of the laborers of Fleischer was indeed chiselling the wall
of his house with a crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia was
nailing the barbed wire and deceased Fleischer was commanding his
laborers. The jeep used by the deceased was parked on the highway. The rest
of the incident is narrated in the People's Brief as above-quoted. Appellant
surrendered to the police thereafter, bringing with him shotgun No. 1119576
and claiming he shot two persons (Exh. Pp. 31, Defense Exhibits).
Appellant now questions the propriety of his conviction, assigning the
following errors:
First Assignment of Error: That the lower court erred
in convicting defendant-appellant despite the fact that
he acted in defense of his person; and
Second Assignment of Error: That the court a quo also
erred in convicting defendant-appellant although he
acted in defense of his rights (p. 20 of Appellant's Brief,
p. 145, rec.).
The act of killing of the two deceased by appellant is not disputed. Appellant
admitted having shot them from the window of his house with the shotgun
which he surrendered to the police authorities. He claims, however, that he
did so in defense of his person and of his rights, and therefore he should be
exempt from criminal liability.
Defense of one's person or rights is treated as a justifying circumstance under
Art. 11, par. 1 of the Revised Penal Code, but in order for it to be appreciated,
the following requisites must occur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed
to prevent or repel it;
Third. Lack of sufficient provocation on the part of the
person defending himself (Art. 11, par. 1, Revised
Penal Code, as amended).
The aggression referred to by appellant is the angry utterance by deceased
Fleischer of the following words: "Hindi, sigue, gademit, avante", in answer
to his request addressed to his compadre, the deceased Rubia, when he said,
"Pare, hinto mona ninyo at pag-usapan natin kung ano ang mabuti" (pp. 227-
229, t.s.n., Vol. 6). This was in reaction to his having been awakened to see
the wall of his house being chiselled. The verbal exchange took place while
the two deceased were on the ground doing the fencing and the appellant
was up in his house looking out of his window (pp. 225-227, supra).
According to appellant, Fleischer's remarks caused this reaction in him: "As
if, I lost my senses and unknowingly I took the gun on the bed and
unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr.
Fleischer" (p. 132, supra). As for the shooting of Rubia, appellant testified:
When I shot Davis Fleischer, Flaviano Rubia was nailing
and upon hearing the shot, Mr. Rubia looked at Mr.
Fleischer and when Mr. Fleischer fell down, Mr. Rubia
ran towards the jeep and knowing that there was a
firearm in the jeep and thinking that if he will take that
firearm he will kill me, I shot at him (p. 132, supra,
Emphasis supplied).
The foregoing statements of appellant were never controverted by the
prosecution. They claim, however, that the deceased were in lawful exercise
of their rights of ownership over the land in question, when they did the
fencing that sealed off appellant's access to the highway.
A review of the circumstances prior to the shooting as borne by the evidence
reveals that five persons, consisting of the deceased and their three laborers,
were doing the fencing and chiselling of the walls of appellant's house. The
fence they were putting up was made of bamboo posts to which were being
nailed strands of barbed wire in several layers. Obviously, they were using
tools which could be lethal weapons, such as nail and hammer, bolo or
bamboo cutter, pliers, crowbar, and other necessary gadgets. Besides, it was
not disputed that the jeep which they used in going to the place was parked
just a few steps away, and in it there was a gun leaning near the steering
wheel. When the appellant woke up to the sound of the chiselling on his
walls, his first reaction was to look out of the window. Then he saw the
damage being done to his house, compounded by the fact that his house and
rice mill will be shut off from the highway by the fence once it is finished. He
therefore appealed to his compadre, the deceased Rubia, to stop what they
were doing and to talk things over with him. But deceased Fleischer
answered angrily with 'gademit' and directed his men to proceed with what
they were doing.
The actuation of deceased Fleischer in angrily ordering the continuance of
the fencing would have resulted in the further chiselling of the walls of
appellant's house as well as the closure of the access to and from his house
and rice mill-which were not only imminent but were actually in progress.
There is no question, therefore, that there was aggression on the part of the
victims: Fleischer was ordering, and Rubia was actually participating in the
fencing. This was indeed aggression, not on the person of appellant, but on
his property rights.
The question is, was the aggression unlawful or lawful? Did the victims have
a right to fence off the contested property, to destroy appellant's house and
to shut off his ingress and egress to his residence and the highway?
Article 30 of the Civil Code recognizes the right of every owner to enclose or
fence his land or tenements.
However, at the time of the incident on August 22, 1968, Civil Case no. 755
for annulment of the order of award to Fleischer and Company was still
pending in the Court of First Instance of Cotabato. The parties could not have
known that the case would be dismissed over a year after the incident on
August 22, 1968, as it was dismissed on January 23, 1970 on ground of res
judicata, in view of the dismissal in 1965 (by the Court of Appeals) of Civil
Case No. 240 filed in 1950 for the annulment of the award to the company,
between the same parties, which the company won by virtue of the
compromise agreement in spite of the subsequent repudiation by the
settlers of said compromise agreement; and that such 1970 dismissal also
carried the dismissal of the supplemental petition filed by the Republic of the
Philippines on November 28, 1968 to annul the sales patent and to cancel
the corresponding certificate of title issued to the company, on the ground
that the Director of Lands had no authority to conduct the sale due to his
failure to comply with the mandatory requirements for publication. The
dismissal of the government's supplemental petition was premised on the
ground that after its filing on November 28, 1968, nothing more was done by
the petitioner Republic of the Philippines except to adopt all the evidence
and arguments of plaintiffs with whom it joined as parties-plaintiffs.
Hence, it is reasonable to believe that appellant was indeed hoping for a
favorable judgment in Civil Case No. 755 filed on November 14, 1966 and his
execution of the contract of lease on February 21, 1967 was just to avoid
trouble. This was explained by him during cross-examination on January 21,
1970, thus:
It happened this way: we talked it over with my Mrs.
that we better rent the place because even though we
do not know who really owns this portion to avoid
 trouble. To avoid trouble we better pay while waiting
for the case because at that time, it was not known
who is the right owner of the place. So we decided
until things will clear up and determine who is really
the owner, we decided to pay rentals (p. 169, t.s.n.,
Vol.6).
In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2,
Defense Exhibits) within which to vacate the land. He should have allowed
appellant the peaceful enjoyment of his properties up to that time, instead
of chiselling the walls of his house and closing appellant's entrance and exit
to the highway.
The following provisions of the Civil Code of the Philippines are in point:
Art. 536. In no case may possession be acquired
through force or intimidation as long as there is a
possessor who objects thereto. He who believes that
he has an action or a right to deprive another of the
holding of a thing must invoke the aid of the
competent court, if the holder should refuse to deliver
the thing.
Art. 539. Every possessor has a right to be respected in
his possession; and should he be disturbed therein he
shall be protected in or restored to said possession by
the means established by the laws and the Rules of
Court (Articles 536 and 539, Civil Code of the
Philippines).
Conformably to the foregoing provisions, the deceased had no right to
destroy or cause damage to appellant's house, nor to close his accessibility
to the highway while he was pleading with them to stop and talk things over
with him. The assault on appellant's property, therefore, amounts to
unlawful aggression as contemplated by law.
Illegal aggression is equivalent to assault or at least
threatened assault of immediate and imminent kind
(People vs. Encomiendas, 46 SCRA 522).
In the case at bar, there was an actual physical invasion of appellant's
property which he had the right to resist, pursuant to Art. 429 of the Civil
Code of the Philippines which provides:
Art. 429. The owner or lawful possessor of a thing has
the right to exclude any person from the enjoyment
and disposal thereof. For this purpose, he may use
such force as may be reasonably necessary to repel or
prevent an actual or threatened unlawful physical
invasion or usurpation of his property (Emphasis
supplied).
The reasonableness of the resistance is also a requirement of the justifying
circumstance of self-defense or defense of one's rights under paragraph 1 of
Article 11, Revised Penal Code. When the appellant fired his shotgun from
his window, killing his two victims, his resistance was disproportionate to the
attack.
WE find, however, that the third element of defense of property is present,
i.e., lack of sufficient provocation on the part of appellant who was defending
his property. As a matter of fact, there was no provocation at all on his part,
since he was asleep at first and was only awakened by the noise produced by
the victims and their laborers. His plea for the deceased and their men to
stop and talk things over with him was no provocation at all.
Be that as it may, appellant's act in killing the deceased was not justifiable,
since not all the elements for justification are present. He should therefore
be held responsible for the death of his victims, but he could be credited with
the special mitigating circumstance of incomplete defense, pursuant to
paragraph 6, Article 13 of the Revised Penal Code.
The crime committed is homicide on two counts. The qualifying circumstance
of treachery cannot be appreciated in this case because of the presence of
provocation on the part of the deceased. As WE held earlier in People vs.
Manlapaz (55 SCRA 598), the element of a sudden unprovoked attack is
therefore lacking.
Moreover, in order to appreciate alevosia, "it must clearly appear that the
method of assault adopted by the aggressor was deliberately chosen with a
special view to the accomplishment of the act without risk to the assailant
from any defense that the party assailed might have made. This cannot be
said of a situation where the slayer acted instantaneously ..." (People vs.
Cañete, 44 Phil. 481).
WE likewise find the aggravating (qualifying) circumstance of evident
premeditation not sufficiently established. The only evidence presented to
prove this circumstance was the testimony of Crisanto Ibañez, 37 years old,
married, resident of Maitum, South Cotabato, and a laborer of Fleischer and
Company, which may be summarized as follows:
On August 20, 1968 (two days before the incident) at
about 7:00 A.M., he was drying corn near the house of
Mr. and Mrs. Mamerto Narvaez at the crossing,
Maitum, South Cotabato, when the accused and his
wife talked to him. Mrs. Narvaez asked him to help
them, as he was working in the hacienda. She further
told him that if they fenced their house, there is a head
that will be broken. Mamerto Narvaez added 'Noy, it
is better that you will tell Mr. Fleischer because there
will be nobody who will break his head but I will be the
one.' He relayed this to Mr. Flaviano Rubia, but the
latter told him not to believe as they were only Idle
threats designed to get him out of the hacienda (pp.
297-303, t.s.n., Vol. 2).
This single evidence is not sufficient to warrant appreciation of the
aggravating circumstance of evident premeditation. As WE have consistently
held, there must be "direct evidence of the planning or preparation to kill the
victim, .... it is not enough that premeditation be suspected or surmised, but
the criminal intent must be evidenced by notorious outward acts evincing
the determination to commit the crime" (People vs. Ordioles, 42 SCRA 238).
Besides, there must be a "showing" that the accused premeditated the
killing; that the culprit clung to their (his) premeditated act; and that there
was sufficient interval between the premeditation and the execution of the
crime to allow them (him) to reflect upon the consequences of the act"
(People vs. Gida, 102 SCRA 70).
Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the
deceased Davis Fleischer, neutralizes his credibility.
Since in the case at bar, there was no direct evidence of the planning or
preparation to kill the victims nor that the accused premeditated the killing,
and clung to his premeditated act, the trial court's conclusion as to the
presence of such circumstance may not be endorsed.
Evident premeditation is further negated by appellant pleading with the
victims to stop the fencing and destroying his house and to talk things over
just before the shooting.
But the trial court has properly appreciated the presence of the mitigating
circumstance of voluntary surrender, it appearing that appellant surrendered
to the authorities soon after the shooting.
Likewise, We find that passion and obfuscation attended the commission of
the crime. The appellant awoke to find his house being damaged and its
accessibility to the highway as well as of his rice mill bodega being closed.
Not only was his house being unlawfully violated; his business was also in
danger of closing down for lack of access to the highway. These
circumstances, coming so near to the time when his first house was
dismantled, thus forcing him to transfer to his only remaining house, must
have so aggravated his obfuscation that he lost momentarily all reason
causing him to reach for his shotgun and fire at the victims in defense of his
rights. Considering the antecedent facts of this case, where appellant had
thirty years earlier migrated to this so-called "land of promise" with dreams
and hopes of relative prosperity and tranquility, only to find his castle
crumbling at the hands of the deceased, his dispassionate plea going
unheeded-all these could be too much for any man-he should be credited
with this mitigating circumstance.
Consequently, appellant is guilty of two crimes of homicide only, the killing
not being attended by any qualifying nor aggravating circumstance, but
extenuated by the privileged mitigating circumstance of incomplete defense-
in view of the presence of unlawful aggression on the part of the victims and
lack of sufficient provocation on the part of the appellant-and by two generic
mitigating circumstance of voluntary surrender and passion and obfuscation.
Article 249 of the Revised Penal Code prescribes the penalty for homicide
as reclusion temporal. Pursuant to Article 69, supra, the penalty lower by one
or two degrees shall be imposed if the deed is not wholly excusable by reason
of the lack of some of the conditions required to justify the same. Considering
that the majority of the requirements for defense of property are present,
the penalty may be lowered by two degrees, i.e., to prision correccional And
under paragraph 5 of Article 64, the same may further be reduced by one
degree, i.e., arresto mayor, because of the presence of two mitigating
circumstances and no aggravating circumstance.
The civil liability of the appellant should be modified. In the case of Zulueta
vs. Pan American World Airways (43 SCRA 397), the award for moral damages
was reduced because the plaintiff contributed to the gravity of defendant's
reaction. In the case at bar, the victims not only contributed but they actually
provoked the attack by damaging appellant's properties and business.
Considering appellant's standing in the community, being married to a
municipal councilor, the victims' actuations were apparently designed to
humiliate him and destroy his reputation. The records disclose that his wife,
councilor Feliza Narvaez, was also charged in these two cases and detained
without bail despite the absence of evidence linking her to the killings. She
was dropped as a defendant only upon motion of the prosecution dated
October 31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon on
November 4, 1968 (p. 58, CFI rec. of Criminal Case No. 1815).
Moreover, these cases arose out of an inordinate desire on the part of
Fleischer and Company, despite its extensive landholdings in a Central
Visayan province, to extend its accumulation of public lands to the
resettlement areas of Cotabato. Since it had the capability-financial and
otherwise-to carry out its land accumulation scheme, the lowly settlers, who
uprooted their families from their native soil in Luzon to take advantage of
the government's resettlement program, but had no sufficient means to fight
the big landowners, were the ones prejudiced. Thus, the moral and material
suffering of appellant and his family deserves leniency as to his civil liability.
Furthermore, Article 39 of the Revised Penal Code requires a person
convicted of prision correccional or arrests mayor and fine who has no
property with which to meet his civil liabilities to serve a subsidiary
imprisonment at the rate of one (1) day for each P 2.50. However, the
amendment introduced by Republic Act No. 5465 on April 21, 1969 made the
provisions of Art. 39 applicable to fines only and not to reparation of the
damage caused, indemnification of consequential damages and costs of
proceedings. Considering that Republic Act 5465 is favorable to the accused
who is not a habitual delinquent, it may be given retroactive effect pursuant
to Article 22 of the Revised Penal Code.
WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
ONLY TWO (2) HOMICIDES, MITIGATED BY THE PRIVILEGED EXTENUATING
CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL AS BY TWO (2)
GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND
OBFUSCATION, WITHOUT ANY AGGRAVATING CIRCUMSTANCE, APPELLANT
IS HEREBY SENTENCED TO SUFFER AN IMPRISONMENT OF FOUR (4) MONTHS
OF ARRESTO MAYOR, TO INDEMNIFY EACH GROUP OF HEIRS OF DAVIS
FLEISCHER AND OF FLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P
4,000.00) PESOS, WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT
ANY AWARD FOR MORAL DAMAGES AND ATTORNEY'S FEES.
CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST
FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER ON AUGUST
22,1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS.
SO ORDERED.
G.R. No. L-23249 November 25, 1974
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CUNIGUNDA BOHOLST-CABALLERO, accused-appellant.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General
Florencio Villamor and Attorney Concepcion F. Torrijos for plaintiff-appellee.
Accused-appellant in her own behalf.
MUÑOZ PALMA, J.:p
Convicted for having killed her husband, Cunigunda Boholst-Caballero seeks
a reversal of the judgment of the Court of First Instance of Ormoc City finding
her guilty of PARRICIDE and sentencing her "to suffer an indeterminate
imprisonment of from EIGHT (8) YEARS and ONE (1) DAY of prision mayor in
its medium period, as the minimum, to FOURTEEN (14) YEARS, EIGHT (8)
MONTHS and ONE (1) DAY of reclusion temporal in its medium period as the
maximum; to indemnify the heirs of Francisco Caballero in the sum of SIX
THOUSAND PESOS (P6,000.00) without subsidiary imprisonment in case of
insolvency, and to pay the costs", and prays for an acquittal based on her
plea of self-defense.1
The Solicitor General however asks for the affirmance of the appealed
decision predicated on the following testimonial and documentary evidence
presented by the prosecution before the trial court:
Cunigunda Boholst and Francisco Caballero, both at the age of twenty, were
married on June 7, 1956, at a ceremony solemnized by the parish priest of
the Roman Catholic Church in Ormoc City.2 The marriage was not a happy
one and before the end of the year 1957 the couple separated. Late in the
evening of January 2, 1958, Francisco Caballero and two companions,
namely, Ignacio Barabad and Kakong Sacay, drank "tuba" in a certain house
in barrio Ipil, Ormoc City. At about midnight, Francisco Caballero and his
companions proceeded home. On the way, they saw Francisco's wife,
Cunigunda, standing at the corner of the yard of Igmedio Barabad Cunigunda
called Francisco and when the latter approached her, Cunigunda suddenly
stabbed Francisco with a knife marked by the prosecution as its Exhibit C.
Francisco called for help to his two companions who upon seeing that
Francisco was wounded, brought him to the St. Jude Hospital.3 Dr. Cesar
Samson, owner of the hospital, personally attended to the victim and found
a "punctured wound on the left lumbar region measuring 1 inch externally"
(Exhibit B). First aid was given, but because there was a need for blood
transfusion and the facilities of the hospital were inadequate to provide the
necessary treatment, Dr. Samson suggested that the patient be transported
to Cebu City.4 In the meantime, Cunigunda Caballero had gone to the Police
Department of Ormoc City, surrendered to desk sergeant Restituto Mariveles
and informed the latter that she stabbed her husband.5 While Francisco
Caballero was confined at the hospital, he was interrogated by Patrolman
Francisco Covero concerning the identity of his assailant and he pointed to
his wife Cunigunda. The questions propounded by Pat. Covero and the
answers given by the victim were written down in a piece of paper on which
the victim affixed his thumbmark (Exhibit D) in the presence of his brother,
Cresencio Caballero, and another policeman, Francisco Tomada.6 On January
4, 1958, Francisco Caballero was brought to Cebu City on board the "MV
Ormoc" but the trip proved futile because the victim died at noontime of the
same day from the stab wound sustained by him.7
Appellant, on the other hand, pleads that We discard the proof adduced by
the prosecution and believe instead what she declared before the trial judge
briefly summarized as follows:
After her marriage to Francisco Caballero on June 7, 1956, appellant lived
with her husband in the house of her parents in barrio Ipil, Ormoc City, and
their marriage, although not a harmonious one, was blessed with a daughter;
her married life was marked by frequent quarrels caused by her husband's
"gambling, drinking, and serenading", and there were times when he
maltreated and beat her; after more than a year she and her husband
transferred to a house of their own, but a month had hardly passed when
Francisco left her and her child, and she had to go back to live with her
parents who bore the burden of supporting her and her child; in the month
of November, 1957, her daughter became sick and she went to her husband
and asked for some help for her sick child but he drove her away and said "I
don't care if you all would die"; in the evening of January 2, 1958, she went
out carolling with her friend, Crispina Barabad, and several men who played
the musical instruments; at about 12:00 o'clock midnight they divided the
proceeds of the carolling in the house of Crispina Barabad after which she
went home, but before she could leave the vicinity of the house of Crispina,
she met her husband Francisco, who upon seeing her, held her by the collar
of her dress and asked her: "Where have you been prostituting? You are a
son of a bitch."; she replied: "What is your business. Anyway you have
already left us. You have nothing to do with us"; upon hearing these words
Francisco retorted: "What do you mean by saying I have nothing to do with
you. I will kill you all, I will kill you all"; Francisco then held her by the hair,
slapped her face until her nose bled, and pushed her towards the ground, to
keep herself from falling she held on to his waist and as she did so her right
hand grasped the knife tucked inside the belt line on the left side of his body;
because her husband continued to push her down she fell on her back to the
ground; her husband then knelt over her, held her neck, and choked her
saying. "Now is the time I can do whatever I want. I will kill you"; because she
had "no other recourse" as she was being choked she pulled out the knife of
her husband and thrust it at him hitting the left side of his body near the "belt
line" just above his left thigh; when she finally released herself from the hold
of her husband she ran home and on the way she threw the knife; in the
morning of January 3, she went to town, surrendered to the police, and
presented the torn and blood-stained dress worn by her on the night of the
incident (see Exhibit I); Pat. Cabral then accompanied her to look for the
weapon but because they could not find it the policeman advised her to get
any knife, and she did, and she gave a knife to the desk sergeant which is the
knife now marked as Exhibit C for the prosecution.8
The sole question thus presented in this appeal is: did appellant stab her
husband in the legitimate defense of her person?
The law on self-defense embodied in any penal system in the civilized world
finds justification in man's natural instinct to protect, repel, and save his
person or rights from impending danger or peril; it is based on that impulse
of self-preservation born to man and part of his nature as a human being.
Thus, in the words of the Romans of ancient history: Quod quisque ob
tutelam sui fecerit, jure suo ficisse existimetur.9 To the Classicists in penal law,
lawful defense is grounded on the impossibility on the part of the State to
avoid a present unjust aggression and protect a person unlawfully attacked,
and therefore it is inconceivable for the State to require that the innocent
succumb to an unlawful aggression without resistance; while to the
Positivists, lawful defense is an exercise of a right, an act of social justice done
to repel the attack of an aggressor.10
Our law on self-defense is found in Art. 11 of the Revised Penal Code which
provides:
ART. 11. Justifying circumstances. — The following do
not incur any criminal liability:
1. Anyone who acts in defense of his person or rights,
provided that the following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed
to prevent or repel it;
Third. Lack of sufficient provocation on the part of the
person defending himself.
xxx xxx xxx
As part of this law is the settled jurisprudence that he who seeks justification
for his act must prove by clear and convincing evidence the presence of the
aforecited circumstances, the rationale being that having admitted the
wounding or killing of his adversary which is a felony, he is to be held
criminally liable for the crime unless he establishes to the satisfaction of the
court the fact of legitimate self-defense. 11
In this case of Cunigunda Caballero, the trial court did not find her evidence
clear and convincing, and gave these reasons for its conclusion: a) appellant's
testimony is inherently improbable as brought out by her demonstration of
the incident in question during the trial of the case; b) there was no wound
or injury on appellant's body treated by any physician: c) appellant's
insistence that the weapon used by her was Moro hunting knife and not Exh.
C is incredible; d) she gave contradictory statements concerning the report
made by her to the police authorities that she was choked by her husband;
and e) her husband's abandonment of her and her child afforded the motive
behind appellant's
attack. 12
We are constrained, however, to disagree with the court a quo and depart
from the rule that appellate court will generally not disturb the findings of
the trial court on facts testified to by the witnesses.
An examination of the record discloses that the trial judge overlooked and
did not give due importance to one piece of evidence which more than the
testimony of any witness eloquently confirms the narration of appellant on
how she happened to stab her husband on that unfortunate night. We refer
to the location of the wound inflicted on the victim.
Appellant's account of that fatal occurrence as given in her direct testimony
follows:
Q At that precise time when you
were going home to the place of
your parents, did any unusual
incident occur?
A Yes, sir.
Q What was it?
A At the time when I went down
from the house of Crispina
Barabad, when I reached near
the banana hill, my husband
held me.
Q What happened when your
husband, Francisco Caballero,
held you?
A He asked me from where did I
prostitute myself.
Q What did you answer?
A I answered that I did not go
(on) prostituting. I told him that
I was only forced to accompany
with the carolling in order to
earn money for our child.
Q What part of your body did
your husband, Francisco
Caballero, hold you?
A He held me at the collar of my
dress. (Witness holding the
right portion of the collar of her
dress.)
Q After you answered
Francisco, what did he do?
A He said "Where have you
been prostituting? You are a
son of a bitch." Then I told him
"What is your business. Anyway
you have already left us. You
have nothing to do with us."
Q When Francisco heard these
words, what did he do?
A Francisco said "What do you
mean by saying l have nothing
to do with you. I will kill you all.
I will kill you all."
Q And then, what happened?
A He held my hair and slapped
my face twice. Then I staggered
and my nose was bleeding.
Q Do you mean to say that
blood flowed out of your nose?
A Yes, sir.
Q After you were slapped twice
and your nose begun to bleed,
what happened next?
A He held the front part of my
dress just below the collar and
pushed me towards the ground.
. Q What was this weapon which
Q While your husband was
holding your dress below the
neck and tried to push you
down, what did you do?
A I held a part of his body in
order that I would not fall to the
ground.
Q And then what happened?
A Because I struggled hard in
order that I would not fall to the
ground I held his belt and that
was the time I got hold of a
weapon along his belt line.
Q After that what happened?
A He shoved my hands upward
and pushed me to the ground
and that was the time my hands
were released. He was choking
me.
Q When you said your hands
were released, was that before
or after you were choked by
Francisco Caballero?
A At that time when I was about
to fall to the ground that was
the time I released my hands.
Q When you were almost fallen
to the ground, where were the
hands of Francisco Caballero?
A On my hair.
Q You mean to say the two
hands of Francisco Caballero?
A One of his hands was holding
my hair. The other hand pushed
me.
COURT:
Q What hand was holding your
hair?
A His right hand was holding my
hair while his left hand pushed
me.
ATTORNEY GARCIA:
Q When you were fallen to the
ground what happened?
A While I lay prostrate on the
ground and believing that I have
no other recourse, while his left
hand was holding my neck, I
was able to take hold of the
weapon from his belt line and I
thrust it to him.
you were able to get from his
belt line?
A It was a hunting knife." (tsn.
pp. 53-55, witness Cunigunda
Caballero)
On cross-examination, appellant was asked by the private prosecutor to
show her position when she stabbed her husband and she did, and although
the stenographic notes on that demonstration are very sketchy which We
quote:
Q Please demonstrate to this
Court when you made the
thrust to your husband?
A When I took hold of the
hunting knife I made the thrust
in this manner. (Witness held
the ruler with her right hand
kneeled on the floor)" (tsn. p.
67, ibid)
still We can get a clear picture of what appellant must have done, from the
questions and answers immediately following the above-quoted portion of
the transcript, viz:
Q You want to make us
understand that when you
thrust the weapon to the body
of your husband you were lying
down flat to the ground?
A I was lying flat on the ground
face upward. I was a little bit
inclined because tried to
struggle trying to get away from
the hold of my husband.
 Q You want to make us
understand that your back was
touching the ground when you
made the thrust to your
husband?
A Yes, sir.
COURT:
Q Where were you kneeled by
your, husband?
A On my right thigh. (ibid;
emphasis supplied)
Thus, with her husband kneeling over her as she lay on her back on the
ground and his hand choking her neck, appellant, as she said, had no other
recourse but to pull out the knife inserted at the left side of her husband's
belt and plunge it at his body hitting the left back portion just below the
waist, described by the attending physician, Dr. Cesar Samson, as the left
lumbar region. The fact that the blow landed in the vicinity from where the
knife was drawn is a strong indication of the truth of appellant's testimony,
for as she lay on the ground with her husband bent over her it was quite
natural for her right hand to get hold of the knife tucked in the left side of
the man's belt and thrust it at that section of the body nearest to her hand
at the moment.
We do not agree with the trial judge's observation that as demonstrated by
the accused it was physically impossible for her to get hold of the weapon
because the two knees of her husband were on her right thigh "which would
have forced her to put her right elbow towards the ground"(see p. 9 of
Decision), for even if it were true that the two knees of Francisco were on his
wife's right thigh, however, there is nothing in the record to show that the
right arm of the accused was held, pinned down or rendered immobile, or
that she pressed her elbow to the ground, as conjectured by the trial judge,
in such a manner that she could not reach for the knife. On the contrary, as
indicated earlier, accused testified and so demonstrated that she was lying
flat on her back, her husband kneeling over her and her right arm free to pull
out the knife and strike with it.
The trial judge also referred the a demonstration made by appellant of that
portion of her testimony when she was held by the hair and pushed down to
the ground, and His Honor commented that "(S)he could not be falling to the
ground, as shown to the Court by her, considering the fact that the pushing
was to and fro as shown in her demonstration." (p. 8, Decision) The trial
judge, however, failed to consider that it is humanly impossible to have an
exact and accurate reproduction or reenactment of an occurrence especially
if it involves the participation of persons other than the very protagonists of
the incident being re-enacted. In this particular instance appellant was asked
by the private prosecutor to show how she was pushed down by her
husband, and her demonstration is described in the stenographic transcript
as follows:
Q Please demonstrate to this
Court the position of your
husband and you while your
husband held your hair.
A He did this way. (Witness held
the hair of the Court Interpreter
with his left hand and his right
hand held the right shoulder of
the Interpreter and pulled the
Interpreter to and fro. The
Interpreter represented as the
accused and the accused as the
deceased.)
Q Where were your two hands?
A My two hands held his waist
line. (tsn. 66, witness
Cunigunda Caballero; emphasis
supplied)
In that demonstration, accused represented the victim while she in turn was
impersonated by the court interpreter, and so it was difficult if not
impossible for the two to give an accurate reenactment considering that the
accused assumed a role not hers during the actual incident and the court
interpreter played a part which was not truly his. At any rate, the accused
showed how one hand of her husband held her hair while the other pushed
her down by the shoulder, and to portray how she in turn struggled and tried
to push back her husband to keep herself from falling, she "pulled the
interpreter (representing the accused) to and fro." The fact is that Francisco
succeeded in forcing appellant down to the ground as portrayed by the latter
when, following the foregoing demonstration, she was asked by the private
prosecutor to show how she stabbed her husband — a matter which is
discussed in pages 8 and 9 of this Decision.
It is this particular location of the wound sustained by the victim which
strongly militates against the credibility of the lone prosecution witness,
Ignacio Barabad. This witness declared that on that night when husband and
wife met on the road, Cunigunda called Francisco and when the latter was
near, she immediately stabbed him. If that were true, that is, husband and
wife were standing face to face at a distance of one-half meter when the
stabbing occurred (tsn. p. 11, witness Ignacio Barabad), it would have been
more natural and probable for the weapon to have been directed towards
the front part of the body of the victim such as his abdomen or chest, rather
than at his back, left side, just above the left thigh.
In cases such as the one now before Us where there are directly conflicting
versions of the incident object of the accusation, the Court in its search for
the truth perforce has to look for some facts or circumstances which can be
used as valuable aids in evaluating the probability or improbability of a
testimony, for after all the element of probability is always involved in
weighing testimonial evidence13, so much so that when a court as a judicial
fact-finder pronounces judgment that a set of facts constitute the true
happening it does so not of its own personal knowledge but as the result of
an evaluating process of the probability or improbability of a fact sought to
be proved.
Thus, in People vs. Aquino, L-32390, December 28, 1973, a decision of the
First Division of this Court penned by Chief Justice Querube C. Makalintal, the
plea of self-defense of the accused-appellant was sustained on the basis of
certain "physical and objective circumstances" which proved to be of
"decisive importance" in ascertaining the veracity of the plea of self-defense,
to wit: the location of the wound on the right side of the throat and right arm
of the deceased, the direction of the trajectories of the bullets fired by the
accused, the discovery of bloodstains at the driver's seat, the finding of the
dagger and scabbard of the deceased, and so on. 14
In the case of appellant Cunigunda Caballero, We find the location of the fatal
wound as a valuable circumstance which confirms the plea of self-defense.
Another, is the lack of motive of appellant in attacking and killing her husband
on that particular night of January 2. Although it is the general rule that the
presence of motive in the killing of a person is not indispensable to a
conviction especially where the identity of the assailant is duly established
by other competent evidence or is not disputed, as in this case, nonetheless,
the absence of such motive is important in ascertaining the truth as between
two antagonistic theories or versions of the killings. 15
We disagree with the statement of the court a quo that appellant's motive
for killing her husband was his abandonment of her and his failure to support
her and her child. While appellant admitted in the course of her testimony
that her marriage was not a happy one, that she and her husband separated
in the month of October, 1957, and since then she and her child lived with
her parents who supported them, nevertheless she declared that
notwithstanding their separation she still loved her husband (tsn. p. 59,
cross-examination of appellant). As a matter of fact, appellant had been
living with her parents for several months prior to the incident in question
and appeared resigned to her fate. Furthermore, there is no record of any
event which occurred immediately prior to January 2 which could have
aroused her feelings to such a degree as to drive her to plan and carry out
the killing of her husband.
On the other hand, it was Francisco Caballero who had a reason for attacking
his wife, Cunigunda. Meeting his wife unexpectedly at past midnight on the
road, Francisco reacted angrily, and suspecting that she was out for some
bad purpose he held her by the collar of her dress and said: "Where have you
been prostituting? You are a son of a bitch." This was followed by a slapping
on the face until Cunigunda's nose bled, pulling of her hair, pushing her down
to the ground, and strangling her — all of which constituted the unlawful
aggression against which appellant had to defend herself.
Next to appellant's lack of motive for killing her husband, is her conduct
shortly after the occurrence. As soon as the sun was up that morning of
January 3 (the stabbing occurred past midnight of January 2), Cunigunda
went to the city and presented herself at the police headquarters where she
reported that she stabbed her husband and surrendered the blood-stained
dress she wore that night. On this point, the trial judge stated that appellant
made contradictory statements in her testimony concerning the report made
by her to the police authorities, for while at the start she declared that she
did not report the "choking by her husband", she later changed her
testimony and stated that she did relate that fact. (p. 10, Decision)
We have gone over the stenographic transcript of the testimony of appellant
on direct examination and nowhere is there a positive and direct statement
of hers that she did not report that she was choked by her husband. What
the trial judge asked of appellant was whether or not she told the police
about the fist mark on her face and her answer was "No, sir, I forgot." (tsn.
p. 55, supra) And on appellant's cross-examination, there was no question
propounded and therefore there was no answer given on the subject-matter
of appellant's report to the police concerning the incident except for the
following:
COURT:
Q Did you show that dress to
the police authorities the
following day?
 A I was not able to wear that,
Your Honor, because it was torn
out.
Q You did not bring that to the
police authorities?
A I showed it to the police
authorities, and they told me to
keep it, not to touch it. (Tsn. p.
65, ibid)
We do not see, therefore, the alleged contradiction in appellant's testimony
which was singled out by His Honor as one of his reasons for discrediting her
plea of self-defense.
That appellant made it clear to the police that she stabbed her husband
because he attacked her is confirmed by no less than the prosecution
witness, Patrolman Restituto Mariveles, who was on duty at the desk when
appellant arrived at the police headquarters. This witness on cross-
examination declared:
Q And she also told you that on
that night previous to the
incident her husband Francisco
Caballero beat her up, is that
right?
A She told me that she was met
on the way by her husband
immediately after carolling and
she was manhandled by her
husband and when she was
struggling to get loose from her
husband she happened to take
hold of a knife that was placed
under the belt of her husband
and because she was already
half conscious she did not know
that she was able to thrust said
knife to the stomach of her
husband. (tsn. p. 23, witness R.
Mariveles)
It is indeed regrettable that the statements made by appellant to the police
upon her surrender were not taken down in writing to serve as a faithful and
reliable account of her report, nevertheless, We are satisfied by the fact,
which is not disputed, that of her own accord appellant went to the police
authorities early in the morning of January 3, informed Policeman Mariveles
that she stabbed her husband because he manhandled her which rendered
her "half-conscious", and brought and showed the dress she wore during the
incident which was torn by the collar and with blood stains due to the
bleeding of her nose. Another policeman, Joventino de Leon, who at the time
was property custodian of the Ormoc City police, corroborated appellant's
testimony concerning the dress marked Exhibit 1 for the defense. (tsn. p. 70
witness J. de Leon) If there was no clear and positive statement in appellant's
testimony either on direct or cross examination that she informed the police
that she was choked by her husband, it was because, as We noted, no
question was propounded to her on that point.
While We are on this subject of appellant's surrender, mention is to be made
of the knife marked as Exhibit C for the prosecution. In her testimony,
appellant stated that Exhibit C was not the knife actually used by her in
stabbing her husband because the true weapon was her husband's Moro
hunting knife with a blade of around six inches which she threw away
immediately after the incident; that when she was asked by Pat. Mariveles
to look for the weapon and she could not find it, she was advised by
policeman Cabral who helped her in the search to get any knife and
surrender it to the desk officer and so she took the knife Exhibit C and
presented it to Pat. Mariveles. (tsn. appellant pp. 56-57, 60) This testimony
of appellant was taken against her by the court a quo which held that her
declaration could not have been true. We find however no strong reason for
disbelieving the accused on this point. Appellant does not deny that she
turned over Exhibit C to Pat. Mariveles as the knife with which she stabbed
her husband but she claims that she did so upon advise of another
policeman, Pat. Cabral, and it is quite significant that the latter was not called
upon by the prosecution to refute such declaration. There is sincerity in
appellant's attempt to rectify a misstatement made by her to Pat. Mariveles
and We are inclined to believe and in fact We do believe that the fatal
weapon must have had indeed a blade of around six inches as stated by
appellant for it to penetrate through the left lumbar region to the victim's
large intestine and cause the discharge of fecal matter (tsn. Dr. C. Samson, p.
6)
All the elements of self-defense are indeed present in the instant case.
The element of unlawful aggression has been clearly established as pointed
out above.
The second element, that is, reasonable necessity for the means employed is
likewise present. Here we have a woman who being strangled and choked by
a furious aggressor and rendered almost unconscious by the strong pressure
on her throat had no other recourse but to get hold of any weapon within
her reach to save herself from impending death. Early jurisprudence of this
Court has followed the principle that the reasonable necessity of the means
employed in self-defense does not depend upon the harm done but rests upon
the imminent danger of such injury. (U.S. vs. Paras, 1907, 9 Phil. 367, citing
Decision of Dec. 22, 1887) And so the fact that there was no visible injury
caused on the body of the appellant which necessitated medical attention, a
circumstance noted by the trial court, is no ground for discrediting self-
defense; what is vital is that there was imminent peril to appellant's life
caused by the unlawful aggression of her husband. The knife tucked in her
husband's belt afforded appellant the only reasonable means with which she
could free and save herself from being strangled and choked to death. What
this Court expressed in the case of People vs. Lara, 1925, 48 Phil. 153, 160, is
very true and applicable to the situation now before Us, and We quote:
It should be borne in mind that in emergencies of this
kind human nature does not act upon processes of
formal reason but in obedience to the instinct of self-
preservation; and when it is apparent, as in this case,
that a person has reasonably acted upon this instinct,
it is the duty of the courts to sanction the act and to
hold the actor irresponsible in law for the
consequences. 16
Equally relevant is the time-honored principle: Necessitas Non habet legem.
Necessity knows no law.
The third element of self-defense is lack of sufficient provocation on the part
of the person defending himself. Provocation is sufficient when it is
proportionate to the aggression, that is, adequate enough to impel one to
attack the person claiming self-
defense. 17 Undoubtedly appellant herein did not give sufficient provocation
to warrant the aggression or attack on her person by her husband, Francisco.
While it was understandable for Francisco to be angry at his wife for finding
her on the road in the middle of the night, however, he was not justified in
inflicting bodily punishment with an intent to kill by choking his wife's throat.
All that appellant did was to provoke an imaginary commission of a wrong in
the mind of her husband, which is not a sufficient provocation under the law
of self-defense. Upon being confronted by her husband for being out late at
night, accused gave a valid excuse that she went carolling with some friends
to earn some money for their child. January 2 was indeed within the
Christmas season during which by tradition people carol from house to house
and receive monetary gifts in a Christian spirit of goodwill. The deceased
therefore should have given some consideration to his wife's excuse before
jumping to conclusions and taking the extreme measure of attempting to kill
his wife.
IN VIEW OF THE ABOVE CONSIDERATIONS, We find that accused-appellant
acted in the legitimate defense of her person, and We accordingly set aside
the judgment of conviction and ACQUIT her with costs de oficio.
So Ordered.
Makalintal, C.J, Teehankee, Makasiar and Esguerra, JJ., concur.
Castro, J, is on leave.
G.R. No. L-6038 March 19, 1955
FEDERICO M. CHUA HIONG, petitioner,
vs.
THE DEPORTATION BOARD, respondent.
Leon Ma. Guerrero for petitioner.
Office of the Solicitor General Juan R. Liwag and Solicitor Felix V. Makasiar
for respondent.
LABRADOR, J.:
On the February 26, 1952 proceedings were instituted before the
Deportation Board against the petitioner, Federico M. Chua Hiong, who is
alleged to have secured the cancellation of his alien certificate of registration
with the Bureau of Immigration on October 31, 1945, through fraud and
misrepresentation (in claiming to be an illegitimate child of a Filipino mother
named Tita Umandap when as a matter of fact he is the legitimate child of a
Chinese woman by the name of Sy Mua) and to have maliciously and illegally
exercised privileges and rights belonging to citizens of the Philippines, such
as the right of suffrage, the acquisition of real estate and lumber concessions,
knowing that he is a Chinese national. Upon the institution of the
proceedings, a warrant for his arrest was issued on February 27, 1952. He
filed a bond for his release and thereafter petition said Deportation Board
for the dismissal of the proceedings against him on the following grounds:
(1) the jurisdiction to deport aliens exists only with regard to aliens, those
who are admittedly so; (2) respondent is a citizen of the Philippines and his
claim is supported by evidence that, if believed, is sufficient to entitle him to
a declaration of his citizenship; and (3) his Filipino citizenship has already
been declared by the Secretary of labor, in presentation of the President of
the Philippines, and the same is binding on the other executive branches of
the government, the Deportation Board including. The motion to quash was
denied by the Deportation Board on July 7, 1952, on the ground that the
mere plea of citizenship does not divest the Deportation Board of its power
over the deportation proceedings; that the Deportation Board has the
judicial power to pass upon the sufficiency of the evidence that the
respondent may submit to support his claim of citizenship; that the passport
and other documents submitted by the respondent to prove his claim of
citizenship are inconclusive; that the Deportation Board is not barred from
determining the claim of respondent's citizenship notwithstanding previous
findings of executive officials of the Government; that an analysis of the
evidence of the respondent made by the Department of Justice shows ample
reasons for justifying the Chief Executive in redetermining respondent's
citizenship; and that only may the Board be prohibited from continuing the
proceedings if it is convinced that the evidence submitted by the respondent
shows that he is a Filipino citizen.
These proceedings were instituted in this Court on September 3, 1952, and
it is sought herein that a writ of habeas corpus issue in favor of the petitioner
against the Deportation Board on the ground that his arrest was made
without jurisdiction, as the claim submitted by him of his Filipino citizenship
is supported by evidence; that the Board he prohibited from continuing the
deportation proceedings against him; and that a writ of preliminary
injunction issue to restrain the Deportation Board from hearing the case until
after his petition is heard by this Court. On September 15, 1952, the Solicitor
General, on behalf of the Deportation Board, filed a return, claiming, among
other things, that the Deportation Board has in the first instance jurisdiction
to pass on the question of petitioner's claim of Filipino citizenship; that the
papers submitted to the Board by petitioner to support his claim of Filipino
citizenship are inconclusive; and that it may review a previous determination
by the Secretary of Labor on petitioner's Filipino citizenship. The return
alleges the same reasons that the Board had set forth in denying petitioner's
motion to quash the proceedings. On October 15, 1952, petitioner filed a
reply to the return, attaching other documents relative to the petition.
The legal foundation of the petitioners claim is contained in three
propositions, namely, (a) that only an alien is subject to deportation or
repatriation, and that when a resident denies that he is an alien and claims
to be a citizen of the Philippines, he challenges or puts in issue a jurisdictional
fact, alienage; (b) that the evidence which he has submitted to the
Deportation Board as to his Filipino citizenship is substantial, for as a matter
of fact various officials of the executive department have recognized such
citizenship and had made a finding that he is not subject to the provisions of
the Alien Registration Act; and (c) that as his liberty as a citizen is involved,
the constitutional guarantee of due process of law demands that his alleged
citizenship should first be determined in judicial proceedings. The first
proposition above set forth is admitted in the return. It is well settled that
proceedings for deportation or repatriation can be instituted only against
aliens. (2 Am. Jur. 524.)
The second proposition appears to be justified by the documents attached
to the record, especially the letter of the Vice-Minister of Foreign Affairs
under the Japanese Military Occupation, dated August 17, 1944 (Annex I),
the letter of the Secretary of Labor dated October 31, 1945, finding the
petitioner a natural son of a Filipino woman and, therefore, a Filipino citizen,
and therefore exempt from the provisions of the Alien Registration Act
(Annexes K, J and L), and the decision of the Court of First Instance of Manila
in Case No. 565, entitled Federico M. Chua Hiong, petitioner, to the effect
that petitioner is the illegitimate son of a Filipino woman by the name of Tita
Umandap and is, therefore, a Filipino citizen (Annex 2), although this decision
was afterwards set aside in view of the dismissal of the appeal in the
Supreme Court. But the above documents are contradicted by the finding of
a member of the Board of special Investigation of the Bureau of Immigration
(Annex 4, respondent), who, after an analysis of the evidence, concludes that
the testimony of Tita Umandap, alleged mother of petitioner, has certain
discrepancies which render it of doubtful veracity. The Secretary of Justice,
in his communication of May 17, 1952, addressed to the Commissioner of
Immigration, has also found that petitioner's claim to citizenship is not
satisfactorily proved, so he ordered that he be required to register in
accordance with the provisions of the Alien Registration Act. We might add
that the petitioner herein had obtained original entry into the Philippines as
the son of a Chinese father and a Chinese mother, which fact entirely
contradicts his claim of Filipino parentage on his mother's side, although this
fact may perhaps be explained by the desire of his father to hide the
illegitimate filiation of his son, a natural tendency of man. We have therefore
a case where the evidence is neither decisively conclusive in favor of the
petitioner's Filipino citizenship, nor decisively conclusive against said claim.
The third proposition contained in petitioner's claim and as set forth above,
seems to have been already passed upon by the Supreme Court of the United
States in the case of Ng Fung Mo. vs. White, 66 L. ed. 938, wherein it was
stated:
. . . To deport one who so claims to be a citizen obviously deprives
him of liberty as was pointed out in Chin Yow vs. United States,
208 U. S. 8, 13, 52 L. ed. 369, 370, 28 Sup. Ct. Rep. 201. It may
result also in loss of both property and life; or of all that makes
life worth living. Against the danger of such deprivation without
the sanction afforded by judicial proceedings, the 5th
Amendment affords protection in its guaranty of due process of
law. The difference in security of judicial over administrative
action has been adverted to by this court. . . .
It follows that Gin Gang Get and San Mo are entitled to a judicial
determination of their claims that they are citizens of the United
States; . . .
The Solicitor General, however, contests said ruling, citing the case of U. S.
vs. Sing Tuck, 194 U. S. 161, 168-189, 48 L. ed, 917, 920-921, which holds that
the regular order of deportation proceedings may not be interrupted
summarily as a matter of right.
In order to act at all the executive officer must decide upon the
question of citizenship. If this jurisdiction is subject to being
upset, still it is necessary that he should proceed if he decides that
it exists. . . .
We perfectly appreciate, while we neither countenance or
discountenance that argument drawn from the alleged want of
jurisdiction. But while the consequence of that argument, if
sound, is that both executive officers and Secretary of Commerce
and Labor are acting without authority, it is one of the necessities
of the administration of justice that even fundamental questions
should be determined in the ordinary way. If the allegations of the
petition for habeas corpus setting up want of jurisdiction,
whether of an executive officer or of an ordinary court, are true,
the petitioner theoretically is entitled to his liberty at once. Yet a
summary interruption of the regular order of proceedings, by
means of the writ, is not always a matter of right.
And he adds that only in case it is convinced that a respondent is a Filipino
citizen will it refrain from further proceedings in any case.
There is no question that as the power to deport is limited to aliens only, the
alienage of the respondent in deportation proceedings is a basic and
fundamental fact upon which the jurisdiction of the Deportation Board
depends. If the alienage of the respondent is not denied, the Board's
jurisdiction and its proceedings are unassailable; if the respondent is
admittedly a citizen, or conclusively shown to be such, the Board lacks
jurisdiction and its proceedings are null and void ab initio and may be
summarily enjoined in the courts. Naturally the Board must have the power,
in the first instance, to determine the respondent's nationality. And the
respondent must present evidence of his claim of citizenship before the
Board and may not reserve it before the courts alone in a subsequent action
of habeas corpus. (Carmona vs. Aldanese, 54 Phil., 896.) It must quash the
proceedings if it is satisfied that respondent is a citizen, and continue it if it
finds that he is not, even if the respondent claims citizenship and denies
alienage. Its jurisdiction is not divested by the mere claim of citizenship.
(Miranda, et al., vs. Deportation Board, 94, Phil., 531.)
There is also no question that a respondent who claims to be a citizen and
not therefore subject to deportation has the right to have his citizenship
reviewed by the courts, after the deportation proceedings. When the
evidence submitted by a respondent is conclusive of his citizenship, the right
to immediate review should also be recognized and the courts should
promptly enjoin the deportation proceedings. A citizen is entitled to live in
peace, without molestation from any official or authority, and if he is
disturbed by a deportation proceedings, he has the unquestionable right to
resort to the courts for his protection, either by a writ of habeas corpus or of
prohibition, on the legal ground that the Board lacks jurisdiction. If he is a
citizen and evidence thereof is satisfactory, there is no sense nor justice in
allowing the deportation proceedings to continue, granting him the remedy
only after the Board has finished its investigation of his undesirability. The
legal basis of the prohibition is the absence of the jurisdictional fact, alienage.
The difficulty arises when the evidence is not conclusive on either side, as in
the case at bar. Should the deportation proceedings be allowed to continue
till the end, or should the question of alienage or citizenship of respondent
be allowed to be decided first in a judicial proceeding, suspending the
administrative proceedings in the meantime that the alienage or citizenship
is being finally determined in the courts? The highest judicial authority in the
United States has answered the second question in the affirmative. (Ng Fung
Ho vs. White, supra.) The case of U.S. vs. Sing Tuck, supra, must be
considered as having been modified by the case of Ng Fung Ho vs. White,
which is of a later date. It is also more applicable to the case at bar where the
petitioner is not seeking admission, but is already in the Philippines and is
being expelled. If the citizen's right to his peace is to be protected, it must be
protected preferably through the medium of the courts, because these are
independent of the other branches of the government and only in their
proceedings can we find guarantees of impartiality and correctness, within
human limitations, in the ascertainment of the jurisdictional fact in issue, the
respondent's claim of citizenship. And if the right is precious and valuable at
all, it must be also protected on time, to prevent undue harassment at the
hands of ill-meaning or misinformed administrative officials. Of what use is
this much boasted right to peace and liberty if it can be availed of only after
the Deportation Board has unjustly trampled upon it, besmirching the
citizen's name before the bar of public opinion? However, it is neither
expedient nor wise that the right to a judicial determination should be
allowed in all cases; it should be granted only in cases when the courts
themselves believe that there is substantial evidence supporting the claim of
citizenship, so substantial that there are reasonable grounds for the belief
that the claim is correct. In other words, the remedy should be allowed only
in the sound discretion of a competent court in a proper proceeding.
In the case at bar, we find that the evidence of which petitioner and the State
may avail is of such substantial nature as to afford belief that only an
impartial judicial investigation can evaluate it with fairness to the petitioner
and with justice to all concerned. Besides, the Executive department has
seen it proper that the issue of petitioner's citizenship be determined in a
judicial proceeding, a criminal action for violation of the Alien Registration
Act having been filed against the petitioner in the Court of First Instance of
Manila, No. 21740, People of the Philippines vs. Federico M. Chua Hiong. (See
Annex to Manifestation of counsel for petitioner of March 6, 1953.)
Wherefore, let the preliminary injunction issued in this case continue subject
to the results of the aforesaid criminal action against the petitioner. Without
costs.
269 Phil. 41
FERNAN, C.J.:
The appellants herein seek the reversal of the October 28, 1980 decision of
the Circuit Criminal Court in Cebu City in Criminal Case No. CCC-XIV-2170
the dispositive portion of which reads:
"WHEREFORE, the Court finds the accused Luis B. Toring guilty beyond
reasonable doubt of the crime of MURDER by direct participation as
principal; Diosdado Berdon as accomplice thereto; and Carmelo Berdin as
accessory after the fact.
Appreciating in favor of the accused Luis B. Toring the mitigating
circumstance of voluntary surrender, the said circumstance having been
offset by the aggravating circumstance of nighttime, the accused
Luis Toring should be, as he is, hereby sentenced to the penalty of
RECLUSION PERPETUA, with the accessory penalties of law.
There being neither mitigating nor aggravating circumstances on the part of
the accused Diosdado Berdon, the said accused should be as he is hereby
sentenced to the indeterminate penalty of from SIX (6) YEARS
of Prision Correcional, as minimum, to TWELVE (12) YEARS and ONE (1) DAY
of Reclusion Temporal, as maximum, with the accessory penalties of the law.
Appreciating in favor of the accused Carmelo Berdin, the privileged
mitigating circumstance of minority, the said accused being only 17 years of
age, the accused Carmelo Berdin should be, as he is, sentenced to the
penalty of SIX (6) MONTHS and ONE (1) DAY of Prision Correcional, with the
accessory penalties of the law.
The defendants shall jointly and solidarily indemnify the heirs of the
deceased Samuel Augusto for actual and compensatory damages in the sum
of P15,000.00 and for moral damages in the sum of P50,000.00, without
subsidiary imprisonment in case of insolvency.
The instrument of the crime, the knife, Exhibit "B", is confiscated in favor of
the government.
Proportionate costs."
SO ORDERED."[1]
According to the prosecution, the antecedent facts are as follows:
In the evening of May 25, 1980, a benefit dance was held
at sitio Naga, Babag II, Lapu-lapu City for the last canvassing of votes for the
candidates for princesses who would reign at the sitio fiesta. As one of the
candidates was the daughter of Samuel Augusto, he and the members of his
family attended the affair.
Also present were members of the Kwaknit gang, a group which was noted
for their bird-like way of dancing and their propensity for drunkenness and
provoking trouble. Its president, called the "alas" king, was Luis Toring. The
group was then outside the dancing area which was ringed by benches.
At around 10:45 p.m., Samuel's daughter was proclaimed the winner in the
contest. Beer and softdrinks having been served the parents of the
candidates by the officers of the Naga Chapel Association which took charge
of the affair, Samuel was tipsy when, after his daughter's proclamation, he
stepped out of the dancing area to answer the call of nature.
At that moment, barangay tanod Felix Berdin saw
Luis Toring, Carmelo Berdin and Diosdado Berdon proceed to a dark area
while whispering to each other. Diosdado Berdon handed a knife to
Luis Toring,[2] who then approached Samuel from behind, held Samuel's left
hand with his left hand, and with his right hand, stabbed with the knife the
right side of Samuel's abdomen.[3] Upon seeing Felix running towards them,
Luis Toring pulled out the knife and, together
with Carmelo Berdin and Diosdado Berdon, ran towards the dark. Felix tried
to chase the three but he was not able to catch them. He returned to where
Samuel had slumped and helped others in taking Samuel to the hospital.
According to Maria Catalina Sorono, who was six (6) meters away from
Samuel and Luis when the assault
occurred, Diosdado Berdon and Carmelo Berdin were poised to deliver fist
blows on Samuel just before Luis Toring stabbed him. Diosdado gave the
knife to Luis Toring.[4]
As soon as she saw the stabbing of Samuel, Maria Catalina shouted for
help. The three assailants ran towards the direction of the
fields. Jacinto Lobas and Mario Andog responded to her shouts and brought
Samuel to the Opon Emergency Hospital where he died on arrival. According
to the necropsy report,[5] Samuel, who was thirty years old, died due to
massive hemorrhage secondary to the stab wound on the abdomen. Said
wound is described in the report as follows:
"Stab wound, with herniation of omental tissues; elliptical, 3.5 cms. long,
running vertically downward, edges clean-cut, superior extremity rounded,
inferior extremity sharp, located at the abdominal region, right anterior
aspect, 7.5 cms. to the right of anterior median line and
107.0 cms. above right heel, directed backward, upward and medially,
involving skin and the underlying soft tissues, penetrating right peritoneal
cavity, incising inferior vena cava, attaining an approximate depth of
15.0 cms."
The death weapon, a kitchen knife made of stainless steel and with a red-
colored handle, was recovered from the house of Luis Toring. According to
Patrolman Pantaleon P. Amodia, the police found out during the
investigation that Luis Toring had left the weapon with
"Camilo" Berdin. When the police confronted Berdin, the latter led them to
the house of Toring which Berdin entered. When he emerged from the
house, Berdin handed the weapon to the police.[6]
An information for murder was filed against Toring. Subsequently, however,
the information was amended to
include Diosdado Berdon and Carmelo Berdin as defendants. The three
were charged therein with conspiracy in killing Samuel Augusto in a
treacherous manner. Berdon, it was alleged, "conveniently supplied the
death weapon" which Toring used in stabbing Samuel while Berdin allegedly
concealed the weapon to prevent its discovery by the police.[7] The crime was
purportedly committed with the attendance of the generic aggravating
circumstances of evident premeditation and nighttime.
All three accused pleaded not guilty to the offense charged. At the trial,
Luis Toring, alias "Lowe," testified that he was not the president of
the Kwaknit gang. He went to the benefit dance in the company
of Venir Ybanez, Joel Escobia, Ely Amion, Abel Pongase,
Abe Berdon, Genio Berdin and Alex Augusto. Toring and his group were
standing outside the dancing area when, at around eleven o'clock in the
evening, Samuel, a known tough guy ("maldito"), approached them and
held Venir Ybanez by his collar. Then Samuel thrust the butt of his shotgun
on the chin of Joel Escobia,[8] proceeded to another group who were
also gangmates of Toring, and again, with the barrel of his shotgun, hit
Eli Amion's chest several times.[9]
Reacting to what he saw, Toring got his kitchen knife which was tucked in
his waist, approached Samuel from the latter's right side and stabbed him
once as he did not intend to kill Samuel. Toring then ran towards the dark
portion of the area and went home. There, he left the knife and proceeded
to the hut by the fishpond of one Roman.[10]
Toring was sleeping in the hut with his older brother, Arsenio, when, at
around 4:00 o'clock in the morning of May 26, 1980, Edgar Augusto, the
younger brother of Samuel, shot them. Arsenio was hit on the left leg and
he stayed two months in the hospital for the treatment of his wound.[11]
At 2:00 o'clock in the afternoon of May 26, 1980, Toring surrendered to two
Philippine Constabulary soldiers.[12] They brought him to the police of Lapu-
lapu City on May 28, 1980.[13] When the police asked him about the knife he
used in stabbing Samuel, Toring told them to go to Carmelo Berdin because
he was the only person who knew where Toring hid it.[14] Asserting that he
was the one who returned the knife to his own house, Toring testified
that Carmelo Berdin used to see him hide his weapons upstairs
because Berdin was a frequent visitor of his.[15]
For his part, Carmelo, a 5-feet tall, asthmatic 17-year-old whom the court
described as "lilliputian," admitted that he witnessed the stabbing incident
but he ran away with his group immediately after because he was afraid he
might be shot by Samuel. He was with Toring when the latter hid the still
bloodied knife under a trunk in Toring's house. He was familiar with the
hiding place of the knife because Toring showed it to him and there were
times when he would get the knife there
upon Toring's request. Carmelo corroborated Toring's testimony that on
that fateful night, Toring carried the knife tucked at the back of his
waistline.[16]
In court, Toring testified that he never saw Diosdado at the
dance.[17] However, in his sworn statement dated May 28, 1980 and marked
as Exhibit D, Toring stated that he took the knife from Diosdado to stab
Samuel. Confronted with said statement, Diosdado said that when he
asked Toring why he implicated him, Toring allegedly replied that he
"included" Diosdado because of the case the barangay brigade had filed
against Toring.[18]
According to Diosdado, he did not attend the May 25 dance because of the
trouble which erupted during the dance the night before. He did not have
anything to do with the stabbing of Samuel. He admitted, however, that a
week after the incident, his family went to barrio Andaliw, Ronda, Cebu, for
their yearly visit to his father-in-law. He stayed there for fifteen days and
would have stayed longer had not his mother informed him of the subpoena
addressed to him.[19]
On October 28, 1980, a day after the last date of hearing, the lower
court[20] rendered a decision descrediting Toring's claim that the killing of
Samuel was justified because it was done in defense of a stranger pursuant
to Article 11 (3) of the Revised Penal Code. The lower court found
that Toring was the "aggressor acting in retaliation or revenge by reason of a
running feud or long-standing grudge" between the Kwaknit gang and the
group of Samuel, who, being the son of the barangay captain, was a "power
to be reckoned with." It mentioned the fact that a year before the incident
in question, Toring was shot by Edgar Augusto (Samuel's brother) and hence,
in his desire to avenge himself, Toring "needed but a little excuse to do away
with the object of his hatred."[21]
The lower court could not believe that Samuel brought along his shotgun to
the dance because he was "not reputed to be a public official or functionary
entitled to possess a firearm." Otherwise, the police and
the barangay tanod would have arrested him. The court surmised that if
Samuel really carried a shotgun, he certainly must have had a permit or
license to possess the same.
It noted that while Toring testified that Samuel was aiming his shotgun at the
chest of Ely Amyon (Amion), prosecution witness Joel Escobia claimed that
he was at the receiving end of Samuel's thrusts with the butt of his
shotgun. To the court, such discrepancy is fatal to the defense because in
appreciating the justifying circumstance of defense of a stranger, the court
must know "with definiteness the identity of the stranger defended by the
accused."[22]
The lower court, however, ruled out the existence of conspiracy among the
three accused on the ground that there was no proof on what they were
whispering about when Felix saw them. Accordingly, it held that the accused
have individual or separate liabilities for the killing of Samuel: Toring, as a
principal, Diosdado Berdon as an accomplice by his act of giving Toring the
knife, and Carmelo Berdin as an accessory for concealing the weapon. It
considered treachery as the qualifying circumstance to the killing, found no
proof as to the allegation of evident premeditation but appreciated
nighttime as an aggravating circumstance. It meted the accused the
penalties mentioned above.
All three accused appealed.
Toring seeks his exoneration by contending that his assault on Samuel was
justified because he acted in defense of his first cousin, Joel Escobia. Article
11 (3) of the Revised Penal Code provides that no criminal liability is
incurred by anyone "who acts in defense of x x x his relatives x x x by
consanguinity within the fourth civil degree, provided that the first and
second requisites prescribed in the next preceding circumstance are present,
and the further requisite, in case the provocation was given by the person
attacked, that the one making defense had no part therein." The first and
second requisites referred to are enumerated in paragraph (1) in the same
article on self-defense as: (a) unlawful aggression, and (b) lack of sufficient
provocation on the part of the person defending himself.
Joel Escobia, whose chin was hit with the butt of Samuel's shotgun, is the
first cousin of Toring their fathers being brothers[23] although no explanation
appears on record why they have different surnames. At any rate, this
allegation on relationship was not rebutted by the prosecution.
The appreciation of the justifying circumstance of defense of a relative,
however, hinges in this case on the presence of unlawful aggression on the
part of the victim. Corrollarily, the claim of Toring that Samuel was, at the
time of the assault, carrying a shotgun to intimidate Toring's group must be
proven.
Understandably, no prosecution witness attested that they saw Samuel with
a firearm. The prosecution even recalled to the witness stand Samuel's
widow who asserted that her husband did not own any firearm.[24] Going
along with the prosecution's evidence, the lower court arrived at the rather
gratuitous conjecture that Samuel could not have had a shotgun with him
because no one without a permit would carry a firearm without risking arrest
by the police or the barangay tanod. At the same time, however, the lower
court described Samuel as the son of the barangay captain who "had the run
of the place and had his compelling presence felt by all and sundry."[25]
While matters dealing with the credibility of witnesses and appreciation of
evidence are primarily the lower court's province, this Court has the power
to determine whether in the performance of its functions, the lower court
overlooked certain matters which may have a substantial effect in the
resolution of a case.[26] Defense witness Joel Escobia was, besides Toring, the
only witness whose sworn statement was taken by the police on May 26,
1980, the day after the fatal assault on Samuel.
In his sworn statement,[27] Escobia attested that as he was about to dance
with a girl, Samuel stopped him, pointed his shotgun at him, took a bullet
from his jacket pocket, showed it to Escobia and asked him, "Do you like this,
Dong?" to which Escobia replied, "No, Noy, I do not like that." Samuel then
placed the bullet in the shotgun and was thus pointing it
at Escobia when Toring came from behind Samuel and stabbed the
latter. Even on cross-examination at the trial, Escobia did not depart from
his statement. In fact he added that Samuel pointed the shotgun at his chin
and told him to eat the bullet.[28]
There is no reason to doubt Joel Escobia's assertion of Samuel's unlawful
aggression inasmuch as his sworn statement[29] and testimony in court had
not been successfully discredited by the prosecution which also failed to
prove that Joel had reason to prevaricate to favor Toring.
The presence of unlawful aggression on the part of the victim and the lack of
proof of provocation on the part of Toring notwithstanding, full credence
cannot be given to Toring's claim of defense of a relative. Toring himself
admitted in court[30] as well as in his sworn statement[31] that in 1979, he was
shot with a .22 caliber revolver by Edgar Augusto, Samuel's brother. It
cannot be said, therefore, that in attacking Samuel, Toring was impelled by
pure compassion or beneficence or the lawful desire to avenge the
immediate wrong inflicted on his cousin. Rather, he was motivated by
revenge, resentment or evil motive[32] because of a "running feud" between
the Augusto and the Toring brothers. As the defense itself claims, after the
incident subject of the instance case occurred, Toring's brother, Arsenio,
was shot on the leg by Edgar Augusto. Indeed, vendetta appears to have
driven both camps to commit unlawful acts against each other. Hence,
under the circumstances, to justify Toring's act of assaulting
Samuel Augusto would give free rein to lawlessness.
The lower court correctly considered the killing as murder in view of the
presence of the qualifying circumstance of treachery. The suddenness of the
assault rendered Samuel helpless even to use his shotgun. We also agree
with the lower court that conspiracy and evident premeditation were not
proven beyond reasonable doubt. Moreover, nighttime cannot be
considered as an aggravating circumstance. There is no proof that it was
purposely sought to insure the commission of the crime or
prevent its discovery.[33] However, Toring should be credited with
the priviIeged mitigating circumstance of incomplete defense of relative and
the generic mitigating circumstance of voluntary surrender.
The penalty for murder under Article 248 of the Revised Penal Code
being reclusion temporal maximum to death, the imposable penalty
is prision mayor maximum to reclusion temporal medium in view of the
presence of the mitigating circumstances of incomplete defense of relative
and voluntary surrender (Art. 64 [5]). Applying the Indeterminate Sentence
Law, the proper penalty to be meted
on Toring is prision correccional maximum as minimum
to prision mayor maximum as maximum penalty.
On the culpability of Diosdado Berdon, the Court holds that his defense of
alibi cannot be sustained in the absence of proof that it was physically
impossible for him to be at the scene of the crime when it was
committed.[34] His house was only a kilometer away from the place where he
supplied the knife to Toring.[35] That distance does not preclude the
possibility that Diosdado aided Toring in the perpetration of the crime as it
could be negotiated in just a few minutes by merely walking.[36] Moreover,
his alibi was uncorroborated as it was founded only on his own testimony
and what appears as a self-exonerating affidavit.[37]
But what pins culpability on Diosdado were the testimonies of at least two
prosecution witnesses who positively identified him as the one who
gave Toring the knife. Motive, therefore, has become immaterial in the face
of such positive identification[38] and hence, even if it were true that he was
not a member of the Kwaknit gang, his participation in the killing has been
proven beyond reasonable doubt. Add to this is the fact that Toring himself
in his sworn statement before the police pointed to him as the source of the
knife.[39] Verily, Toring could not have implicated him because of the
incomprehensible reason that a case had been filed
against Toring before the barangay brigade.
Pursuant to Article 52 of the Revised Penal Code, as an accomplice by his
previous act of supplying Toring the death weapon, Diosdado Berdon should
be meted the penalty of prision mayor maximum
to reclusion temporal medium which is the penalty next lower in degree
to reclusion temporal maximum to death, the penalty prescribed for murder
by Article 248 (Article 6 [3]). There being no mitigating or aggravating
circumstances, the penalty should be in its medium period
or reclusion temporal minimum (Article 64 [1]). Applying the Indeterminate
Sentence Law, the minimum penalty should be taken
from prision mayor minimum while the maximum penalty should be within
the period of reclusion temporal minimum.
With regards to Carmelo Berdin, his culpability as an accessory to the murder
has not been proven beyond reasonable doubt. The fact that he knew
where Toring hid the knife does not imply that he concealed it to prevent its
discovery (Article 19 [2]). There simply is no proof to that effect. On the
contrary, Luis Toring in his sworn statement and testimony during the trial
testified that after stabbing the victim, he ran away and went to his house to
hide the murder weapon. Being a close friend of Toring and a frequent
visitor to the latter's house, it is not impossible for Carmelo Berdin to know
where Toring hid his knives. Significantly, Carmelo readily acceded to the
request of police officers to lead them to the place where Toring kept the
knife. He willingly retrieved it and surrendered it to the police, a behavior
we find inconsistent with guilt.
WHEREFORE, the decision of the lower court is hereby affirmed insofar as it
convicts Luis Toring as principal in the murder of
Samuel Augusto and Diosdado Berdon as an accomplice thereto.
The lower court's decision is modified as follows:
(a) Luis Toring shall be imposed the indeterminate penalty of six (6) years
of prision correccional maximum as minimum to twelve (12) years
of prision mayor maximum as maximum;
(b) Diosdado Berdon shall suffer the indeterminate penalty of six (6) years
and one (1) day of prision mayor minimum as minimum to twelve (12) years
and one (1) day of reclusion temporal minimum as maximum;
(c) Carmelo Berdin is acquitted as an accessory to the murder of
Samuel Augusto, and
(d) Luis Toring and Diosdado Berdon shall jointly and severally pay the heirs
of Samuel Augusto an indemnity of thirty thousand pesos
(P30,000.00). Costs against appellants Toring and Berdon.
SO ORDERED.
[G.R. NO. 149275 : September 27, 2004]
VICKY C. TY, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
TINGA, J.:
Petitioner Vicky C. Ty ("Ty") filed the instant Petition for Review under Rule
45, seeking to set aside the Decision1 of the Court of Appeals Eighth Division
in CA-G.R. CR No. 20995, promulgated on 31 July 2001. The Decision affirmed
with modification the judgment of the Regional Trial Court (RTC) of Manila,
Branch 19, dated 21 April 1997, finding her guilty of seven (7) counts of
violation of Batas Pambansa Blg. 222 (B.P. 22), otherwise known as the
Bouncing Checks Law.
This case stemmed from the filing of seven (7) Informations for violation of
B.P. 22 against Ty before the RTC of Manila. The Informations were docketed
as Criminal Cases No. 93-130459 to No. 93-130465. The accusatory portion
of the Information in Criminal Case No. 93-130465 reads as follows:
That on or about May 30, 1993, in the City of Manila, Philippines, the said
accused did then and there willfully, unlawfully and feloniously make or draw
and issue to Manila Doctors' Hospital to apply on account or for value to
Editha L. Vecino Check No. Metrobank 487712 dated May 30, 1993 payable
to Manila Doctors Hospital in the amount of P30,000.00, said accused well
knowing that at the time of issue she did not have sufficient funds in or credit
with the drawee bank for payment of such check in full upon its presentment,
which check when presented for payment within ninety (90) days from the
date hereof, was subsequently dishonored by the drawee bank for "Account
Closed" and despite receipt of notice of such dishonor, said accused failed to
pay said Manila Doctors Hospital the amount of the check or to make
arrangement for full payment of the same within five (5) banking days after suicide if she would not be discharged from the hospital. Fearing the worst
receiving said notice. for her mother, and to comply with the demands of the hospital, Ty was
Contrary to law.3 compelled to sign a promissory note, open an account with Metrobank and
The other Informations are similarly worded except for the number of the issue the checks to effect her mother's immediate discharge.11
checks and dates of issue. The data are hereunder itemized as follows: 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
Criminal Case No. Check No. Postdated Amount
the hospital bills of her mother and rejected the theory of the
defense.12 Thus, on 21 April 1997, the trial court rendered a Decision finding
93-130459 487710 30 March 1993 P30,000.00
Ty guilty of seven (7) counts of violation of B.P. 22 and sentencing her to a
93-130460 487711 30 April 1993 P30,000.00 prison term. The dispositive part of the Decision reads:
CONSEQUENTLY, the accused Vicky C. Ty, for her acts of issuing seven (7)
93-130461 487709 01 March 1993 P30,000.00 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
93-130462 487707 30 December 1992 P30,000.00 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.
93-130463 487706 30 November 1992 P30,000.00 SO ORDERED.13
Ty interposed an appeal from the Decision of the trial court. Before the Court
93-130464 487708 30 January 1993 P30,000.00 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
93-130465 487712 30 May 1993 P30,000.004 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
The cases were consolidated and jointly tried. At her arraignment, Ty pleaded
for the issuance of the checks and the payee had knowledge of the
not guilty.5
insufficiency of funds in the account. She protested that the trial court should
The evidence for the prosecution shows that Ty's mother Chua Lao So Un was
not have applied the law mechanically, without due regard to the principles
confined at the Manila Doctors' Hospital (hospital) from 30 October 1990
of justice and equity.14
until 4 June 1992. Being the patient's daughter, Ty signed the
In its Decision dated 31 July 2001, the appellate court affirmed the judgment
"Acknowledgment of Responsibility for Payment" in the Contract of
of the trial court with modification. It set aside the penalty of imprisonment
Admission dated 30 October 1990.6 As of 4 June 1992, the Statement of
and instead sentenced Ty "to pay a fine of sixty thousand pesos (P60,000.00)
Account7 shows the total liability of the mother in the amount
equivalent to double the amount of the check, in each case."15
of P657,182.40. Ty's sister, Judy Chua, was also confined at the hospital from
In its assailed Decision, the Court of Appeals rejected Ty's defenses of
13 May 1991 until 2 May 1992, incurring hospital bills in the amount
involuntariness in the issuance of the checks and the hospital's knowledge of
of P418,410.55.8 The total hospital bills of the two patients amounted
her checking account's lack of funds. It held that B.P. 22 makes the mere act
to P1,075,592.95. On 5 June 1992, Ty executed a promissory note wherein
of issuing a worthless check punishable as a special offense, it being a malum
she assumed payment of the obligation in installments.9 To assure payment
prohibitum. What the law punishes is the issuance of a bouncing check and
of the obligation, she drew several postdated checks against Metrobank
not the purpose for which it was issued nor the terms and conditions relating
payable to the hospital. The seven (7) checks, each covering the amount
to its issuance.16
of P30,000.00, were all deposited on their due dates. But they were all
Neither was the Court of Appeals convinced that there was no valuable
dishonored by the drawee bank and returned unpaid to the hospital due to
consideration for the issuance of the checks as they were issued in payment
insufficiency of funds, with the "Account Closed" advice. Soon thereafter, the
of the hospital bills of Ty's mother.17
complainant hospital sent demand letters to Ty by registered mail. As the
In sentencing Ty to pay a fine instead of a prison term, the appellate court
demand letters were not heeded, complainant filed the seven
applied the case of Vaca v. Court of Appeals18 wherein this Court declared
(7) Informations subject of the instant case.10
that in determining the penalty imposed for violation of B.P. 22, the
For her defense, Ty claimed that she issued the checks because of "an
philosophy underlying the Indeterminate Sentence Law should be
uncontrollable fear of a greater injury." She averred that she was forced to
observed, i.e., redeeming valuable human material and preventing
issue the checks to obtain release for her mother whom the hospital
unnecessary deprivation of personal liberty and economic usefulness, with
inhumanely and harshly treated and would not discharge unless the hospital
due regard to the protection of the social order.19
bills are paid. She alleged that her mother was deprived of room facilities,
Petitioner now comes to this Court basically alleging the same issues raised
such as the air-condition unit, refrigerator and television set, and subject to
before the Court of Appeals. More specifically, she ascribed errors to the
inconveniences such as the cutting off of the telephone line, late delivery of
appellate court based on the following grounds:
her mother's food and refusal to change the latter's gown and bedsheets.
A. THERE IS CLEAR AND CONVINCING EVIDENCE THAT PETITIONER WAS
She also bewailed the hospital's suspending medical treatment of her
FORCED TO OR COMPELLED IN THE OPENING OF THE ACCOUNT AND THE
mother. The "debasing treatment," she pointed out, so affected her mother's
ISSUANCE OF THE SUBJECT CHECKS.
mental, psychological and physical health that the latter contemplated
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.22 Jurisdiction of this Court
over cases elevated from the Court of Appeals is limited to reviewing or
revising errors of law ascribed to the Court of Appeals whose factual findings
are conclusive, and carry even more weight when said court affirms the
findings of the trial court, absent any showing that the findings are totally
devoid of support in the record or that they are so glaringly erroneous as to
constitute serious abuse of discretion.23
In the instant case, the Court discerns no compelling reason to reverse the
factual findings arrived at by the trial court and affirmed by the Court of
Appeals.
Ty does not deny having issued the seven (7) checks subject of this case. She,
however, claims that the issuance of the checks was under the impulse of an
uncontrollable fear of a greater injury or in avoidance of a greater evil or
injury. She would also have the Court believe that there was no valuable
consideration in the issuance of the checks.
However, except for the 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 operandi whereby the supplier was able to sell
or lease the goods while privately financing those in desperate need so they
may be accommodated. The maker of the check thus became an unwilling
victim of a lease agreement under the guise of a lease-purchase agreement.
The maker did not benefit at all from the deposit, since the checks were used
as collateral for an accommodation and not to cover the receipt of an actual
account or credit for value.
In the case at bar, the checks were issued to cover the receipt of an actual
"account or for value." Substantial evidence, as found by the trial court and
Court of Appeals, has established that the checks were issued in payment of
the hospital bills of 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
(P210,000.00) representing the total amount of the dishonored checks. Costs
against the petitioner.
SO ORDERED.
G.R. No. 149652 March 24, 2006
EDUARDO L. BAXINELA, Petitioner-Appellant,
vs.
THE PEOPLE OF THE PHILIPPINES, Respondent-Appellee.
DECISION
AZCUNA, J.:
Petitioner SPO2 Eduardo L. Baxinela assails his conviction for the crime of
homicide by the Regional Trial Court of Kalibo, Aklan1 (RTC) in Criminal Case
No. 4877, as affirmed with modification by the Court of Appeals (CA) in CA-
G.R. CR No. 23348.
On February 19, 1997, an Information charging Baxinela with the crime of
homicide was filed as follows:2
That on or about the 19th day of October , 1996, early in the morning, at
Poblacion, Municipality of Kalibo, Province of Aklan, Republic of the
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, while armed with a handgun, without justifiable cause and
with intent to kill, did then and there wi[l]lfully, unlawfully and feloniously
attack, assault and shoot one RUPERTO F. LAJO, thereby inflicting upon the
latter mortal wounds, to wit:
"A. EXTERNAL FINDINGS:
= .56 cm entrance gunshot wound proximal third
lateral aspect left arm with fracture of the left
humerus.
= 1 cm exit wound proximal third medial aspect left
arm.
= 1 cm entrance gunshot wound anterior axillary line
5th intercostals space left chest.
B. INTERNAL FINDINGS
= One liter of flood left thoracic cavity
= Perforated left diaphragm.
= One – two liters of blood in the abdominal cavity.
= 2 point perforation stomach
= Multiple perforation small, and large intestines and
mesenteries.
= (+) Retroperitonial hematoma
DIAGNOSIS: Gunshot wound left of arm with fracture of the
humerus, penetrating the (L) thoracic cavity perforating the
diaphragm, abdomen, stomach and, intestines and
retroperitoneum with slugs lodging the vertebral colum[n].
CAUSE OF DEATH: Cardiopulmonary arrest
Secondary to severe bleeding
Secondary to gunshot wound."
as per Autopsy Report issued by Dr. Roel A. Escanillas, Medical Officer III, Dr.
Rafael S. Tumbokon Memorial Hospital, Kalibo, Aklan, which wounds directly
caused the death of RUPERTO F. LAJO, as per Certificate of Death, hereto
attached as Annexes "A" and "B" and forming part of this Information.
That as a result of the criminal acts of the accused the heirs of the deceased
suffered actual and compensatory damages in the amount of FIFTY
THOUSAND PESOS (P50,000.00).
CONTRARY TO LAW.
On April 30, 1997, Baxinela was arraigned and pleaded NOT GUILTY.3 During
pre-trial, Baxinela informed the RTC that he would be claiming the justifying
circumstance of self-defense.4 In accordance with the Rules of Criminal
Procedure, the defense was the first to present evidence.5
The first witness for the defense was Insp. Joel Regimen.6 He testified that
on October 19, 1996, at about 12:35 a.m., he and Baxinela were walking
along Toting Reyes Street in Kalibo, Aklan when they were approached by a
civilian named Romy Manuba who informed them of a drunken person
drawing a gun and creating trouble inside the Playboy Disco Pub located on
the second floor of the Kingsmen building.7 They immediately proceeded to
the reported place and, upon arrival, recognized a former colleague, SPO4
Legarda, who was with a companion. Legarda invited them to his table and
the two obliged. Later, while seated at the table, they saw someone with a
handgun visibly tucked at the back of his waist about 4 meters away.
Regimen then instructed Baxinela to take a closer look at this person while
he makes a call to the Kalibo police station but before Regimen could stand
up, the man with a gun started to walk towards the door. As he passed by
their table, Baxinela stood up, introduced himself as a policeman and asked
the man why he had a gun with him. The man did not respond and, instead,
suddenly drew out his gun. Baxinela then drew his sidearm and was able to
fire first, hitting the man on his upper left arm. When the man fell down,
Baxinela took his gun and wallet and handed them over to Regimen. Regimen
then stated that he enlisted the services of the pub’s security guard to bring
the wounded man to the hospital while he and Baxinela proceeded to the
Kalibo Police Station and reported the matter to SPO4 Salvador Advincula.
They also went to Camp Pastor Martelino to report the matter to the Officer-
in-Charge, Col. Bianson.
The second witness for the defense was Romy Manuba,8 who testified that
on October 19, 1996, at around 12:30 a.m., he was on the second floor of the
Kingsmen building drinking liquor. While inside, he saw a drunken man
wearing a white polo shirt accosting several persons with a gun. Fearing the
man with the gun, he left the place to go home. On his way home he saw
Regimen and Baxinela and he reported to them what he had seen earlier.
The third witness for the defense was SPO4 Nepomuceno Legarda
(Ret.).9 He testified that on October 18, 1996, at about 11:00 p.m., he was
inside the Superstar Disco Pub drinking beer with a companion named Toto
Dalida. At about 12:40 a.m., Legarda saw Regimen and Baxinela enter the
pub and he invited them over to his table. Later, as they were seating on the
table, he noticed Regimen whisper something to Baxinela and, at the same
time, pointing to a man with a handgun visibly tucked at the back of his waist.
He then observed the armed person heading for the door. But as he passed
by their table Baxinela stood up, approached the man from behind and said
"Why do you have a gun. I am a policeman." The man did not reply and,
instead, turned around and drew his gun. As the man was turning, Baxinela
also drew his gun and was able to fire first, hitting the man on his left arm.
After the man fell on the floor, Baxinela grabbed the other man’s firearm and
handed it over to Regimen. Regimen then requested one of the security
guards to transport the wounded man to the hospital. Regimen and Baxinela
then proceeded to the Kalibo Police Station while Legarda and Dalida went
home.
Baxinela took the witness stand as the last witness for the defense. 10 He
testified that he and Regimen were walking along Toting Reyes Street,
looking for a tricycle to take them home, when they were met by Manuba.
Manuba reported to them that there was an armed person, drunk inside the
Superstar Disco Pub and creating trouble. They then proceeded to the pub
to verify the report. Once there, they saw Legarda occupying a table near the
entrance with a companion named Toto Dalida. Legarda invited them to sit
at his table. As they were sitting down, Regimen whispered to him that there
was a man with a gun tucked at the back of his waist and told him to watch
that person while he tries to look for a telephone to call the Kalibo Police
Station. As Regimen was about to stand, the armed man started to walk
towards the entrance. When he passed their table, Baxinela stood up,
introduced himself as a policeman and asked why he had a gun. The man did
not respond but turned to face Baxinela, drawing his gun. Baxinela
immediately drew his firearm and beat him to the draw, hitting the man on
his left arm. When the man fell to the floor, Baxinela picked up the man’s gun
and handed it over to Regimen. Baxinela also took his wallet for
identification. Regimen then told one of the security guards to bring the
wounded man to the hospital. Thereafter, Baxinela and Regimen went to the
Kalibo Police Station to report the incident and turned over the wallet. Next,
they proceeded to Camp Pastor Martelino and also reported the incident to
Col. Bianson.
To rebut the claim of self-defense, the prosecution presented as its first
witness, Abelardo Alvarez.11 Alvarez was a security guard assigned to the
Kingsmen building during the incident in question. He testified that he was
already acquainted with Baxinela and that he saw him, together with Legarda
and Regimen, already in the Superstar Disco Pub as early as 11:00 p.m. of
October 18, 1996 drinking. At around 12:00 a.m. to 12:30 a.m. there was a
minor altercation between the deceased Sgt. Lajo and another customer at
the pub but eventually the two were able to patch things up. Lajo was then
on his way out when Baxinela followed Lajo with a gun already drawn out.
Then, from behind, Baxinela held Lajo’s left arm and said "Ano ka hay? Mam-
an may baril ka?"12 He then heard Lajo respond "I am a MIG, Pare" after that
Alvarez heard an explosion coming from Baxinela’s gun. Baxinela then got a
gun from Lajo’s waist and handed it over to Regimen. Afterwards Baxinela
held both of Lajo’s arms, who was still standing, and pushed him against the
wall and repeated his question. Lajo answered "Why did you shoot me? I am
also a military." At this point Lajo got out his wallet and gave it to Baxinela.
Baxinela opened the wallet and looked at an ID. Afterwards Baxinela and
Regimen just left and did nothing to aid Lajo. Alvarez and his fellow security
guard, Rolando Gabriel, then picked up Lajo and boarded him on a tricycle.
Gabriel brought him to the hospital, while Alvarez remained at his post.
The second witness of the prosecution was Rolando Gabriel.13 Gabriel
substantially corroborated the testimony of Alvarez on what occurred on the
night in question. He testified that he noticed the presence of Lajo inside the
pub at around 10:30 p.m. of October 18, 1996 while he first saw Baxinela,
Regimen and Legarda there as early as 11:00 p.m. At around 12:45 a.m., he
witnessed Lajo going towards the entrance of the pub where Baxinela was
already standing and holding a .45 caliber pistol. Baxinela approached Lajo
from behind and held his left shoulder asking "Who are you?" Lajo responded
"I am MIG." Afterwards he was shot by Baxinela. Baxinela then got Lajo’s gun
from his waist and gave it to Regimen. Thereafter, Baxinela, with both hands,
pushed Lajo against the wall and again asked "What are you?" Lajo got his
wallet from his back pocket and handed it over to Baxinela. After opening the
wallet Baxinela and Regimen left the disco pub. Lajo, still standing, took two
steps and then fell down. Gabriel and Alvarez then picked Lajo up and carried
him to a tricycle which took him to the hospital. Gabriel also stated that ten
minutes before the shooting incident there was another incident where Lajo
accosted some customer but afterwards he saw that the two shook hands
and embraced each other.
The third witness for the prosecution was Salvador Advincula, the PNP Desk
Officer who entered in the police blotter the incident that occurred in
Superstar Disco Pub. He also testified on the events that occurred inside the
precinct wherein the gun of Lajo accidentally fell on the table and fired.
The last witness for the prosecution was the wife of Lajo, Janet O. Lajo, who
testified as to damages.14
As a sur-rebuttal witness, the defense presented Ronald Nahil who testified
that he was on the ground floor of Kingsmen building with Alvarez and
Gabriel when they heard a shot ring out from the second floor.15
After receiving all of the evidence, the RTC found the version of the
prosecution, that Baxinela shot Lajo as the latter was turning around and
without having drawn his gun, more convincing, and rendered a decision
convicting Baxinela. The RTC, however, considered in favor of Baxinela the
mitigating circumstances of voluntary surrender and provocation. The
dispositive portion of the decision is as follows:16
WHEREFORE, the court finds the accused SPO2 EDUARDO BAXINELA guilty
beyond reasonable doubt of the crime of Homicide, and considering the
mitigating circumstances of voluntary surrender and provocation, and
applying the Indeterminate Sentence Law, he is hereby sentenced to suffer
the penalty of imprisonment of 4 years of prision correccional medium as
minimum, to 8 years and 1 day of prision mayor medium as maximum.
The accused is further ordered to pay a) the sum of P50,000.00 as civil
indemnity for the death of Sgt. Ruperto F. Lajo; b) then sum of P81,000.00 as
actual and compensatory damages; and c) the sum of P30,000.00 as moral
damages; plus costs of suit.
SO ORDERED.
On appeal, the CA modified Baxinela’s conviction by disallowing the
mitigating circumstance of sufficient provocation. Accordingly, the
dispositive portion of the appellate court’s decision reads as follows:17
IN LIGHT OF ALL THE FOREGOING, the Decision appealed from finding the
Appellant guilty beyond reasonable doubt of the crime charged is AFFIRMED,
with the MODIFICATION, that the Appellant is hereby meted an
indeterminate penalty of from EIGHT (8) YEARS and ONE (1) DAY
OF Prision Mayor, as Minimum, to TWELVE (12) YEARS, TEN (10) MONTHS
and TWENTY ONE (21) DAYS of Reclusion Temporal, as Maximum.
SO ORDERED.
Baxinela filed the present petition for review on certiorari citing the following
grounds:
A. THAT THE COURT OF APPEALS AND THE REGIONAL TRIAL COURT ERRED IN
GIVING CREDENCE TO THE VERSION OF THE PROSECUTION.
B. THAT THE COURT OF APPEALS ERRED IN DENYING THE JUSTIFYING
CIRCUMSTANCES OF SELF DEFENSE OR IN THE ALTERNATIVE THE LAWFUL
PERFORMANCE OF OFFICIAL DUTY UNDER ARTICLE 11 PARAGRAPHS 1 AND
5, RESPECTIVELY, OF THE REVISED PENAL CODE.
C. THAT THE COURT OF APPEALS AND REGIONAL TRIAL COURT ERRED IN
CONVICTING THE ACCUSED.
D. THAT THE COURT OF APPEALS AND REGIONAL TRIAL COURT ERRED IN NOT
CONSIDERING THE QUALIFIED MITIGATING CIRCUMSTANCES IN FAVOR OF
THE ACCUSED.
Resolution of the petition will entail an initial determination of which version
of the incident will be accepted. The defense alleges that Baxinela proceeded
to the Superstar Disco Pub in response to the information given by Manuba
that there was an armed drunken man accosting several people inside the
pub. Once they arrived, they saw Lajo with a handgun visibly tucked behind
his waist. When Baxinela introduced himself as a policeman and asked why
he had a handgun, Lajo suddenly drew on him prompting Baxinela to pull out
his gun and fire upon Lajo, critically wounding him. Thereafter, the defense
claims that Regimen ordered the security guards to bring Lajo to the hospital
while they proceed to the police station to report the incident.
The prosecution, on the other hand, contends that Baxinela was already in
the pub drinking with Regimen and Legarda for more than a couple of hours
prior to the shooting incident. After witnessing an altercation between Lajo
and another customer, Baxinela decided to confront Lajo on why he had a
gun with him. Baxinela approached Lajo from behind and held the latter on
the left shoulder with one hand while holding on to his .45 caliber service
firearm with the other. As Lajo was turning around, to see who was
confronting him, Baxinela shot him. Baxinela then got Lajo’s wallet and fled
the scene with Regimen.
As mentioned, the RTC and CA accepted the prosecution’s version. The Court
finds no reason to disturb such findings. Factual findings of the trial court,
when adopted and confirmed by the CA, are final and conclusive unless
circumstances are present that would show that the lower courts have
overlooked, misunderstood or misconstrued cogent facts that may alter the
outcome of the case.18 It does not appear that the conclusions that led to the
conviction of Baxinela were arbitrarily reached by the lower courts and
Baxinela has failed to point out any relevant circumstance that would
convince the Court that a re-examination of the facts is warranted. On the
contrary, Baxinela’s version is challenged by his own contradicting testimony
and other documentary evidence. Early in his testimony, Baxinela
maintained that Lajo had already pulled his handgun and was aiming at him
when he fired:
Q. What else did you do after identifying yourself as a policeman and ask[ing]
why he has a gun?
A. He did not respond.
Q. What else happened if anything happened?
A. He immediately drew his gun turning towards me and aimed it at me.19
Subsequently, when the trial court propounded clarificatory questions,
Baxinela’s new assertion was that the firearm was still at the back of Lajo:
Q. At the moment that you fired, was he already able to dr[a]w his firearm
or not yet?
A. Yes sir, already pulled out but still at the back.20
Furthermore, the follow-up investigation conducted by the police yielded a
different picture of what happened. This was entered into the police records
as Entry No. 3359 and it reads in part: 21
x x x SPO2 Eduardo Baxinela accosted the victim why he ha[d] in his
possession a firearm and when the victim SGT Ruperto Lajo PA was about to
get his wallet on his back pocket for his ID, SPO2 Eduardo Baxinela
anticipated that the victim was drawing his firearm on his waist prompting
said policeman to shoot the victim. x x x
The Court now proceeds to determine if, following the prosecution’s version
of what happened, Baxinela can claim the justifying circumstances of self-
defense and fulfillment of a duty or lawful exercise of a right or office.
The requisites for self-defense are: 1) unlawful aggression on the part of the
victim; 2) lack of sufficient provocation on the part of the accused; and 3)
employment of reasonable means to prevent and repel and aggression.22 By
invoking self-defense, Baxinela, in effect, admits killing Lajo, thus shifting
upon him the burden of the evidence on these elements.
The first requisite is an indispensable requirement of self-defense. It is a
condition sine qua non, without which there can be no self-defense, whether
complete or incomplete.23 On this requisite alone, Baxinela’s defense fails.
Unlawful aggression contemplates an actual, sudden and unexpected attack mitigating circumstance and lower his penalty by one degree. His
on the life and limb of a person or an imminent danger thereof, and not entitlement to the ordinary mitigating circumstance of voluntary surrender
merely a threatening or intimidating attitude.24 The attack must be real, or is also recognized, thereby further reducing his penalty to its minimum.
at least imminent. Mere belief by a person of an impending attack would not The Court commiserates with our policemen who regularly thrust their lives
be sufficient. As the evidence shows, there was no imminent threat that in zones of danger in order to maintain peace and order and acknowledges
necessitated shooting Lajo at that moment. Just before Baxinela shot Lajo, the apprehensions faced by their families whenever they go on duty. But the
the former was safely behind the victim and holding his arm. It was Lajo who use of unnecessary force or wanton violence is not justified when the
was at a disadvantage. In fact, it was Baxinela who was the aggressor when fulfillment of their duty as law enforcers can be effected otherwise. A "shoot
he grabbed Lajo’s shoulder and started questioning him. And when Lajo was first, think later" attitude can never be countenanced in a civilized society.
shot, it appears that he was just turning around to face Baxinela and, quite WHEREFORE, the decision of the Court of Appeals is MODIFIED. The
possibly, reaching for his wallet. None of these acts could conceivably be conviction of appellant Eduardo Baxinela for the crime of homicide
deemed as unlawful aggression on the part of Lajo. is AFFIRMED but his sentence is reduced to an indeterminate penalty of four
Next, we consider the alternative defense of fulfillment of a duty. In order to (4) years and two (2) months of prision correccional medium, as minimum,
avail of this justifying circumstance it must be shown that: 1) the accused to eight (8) years of prision mayor minimum, as maximum. The awards of
acted in the performance of a duty or in the lawful exercise of a right or damages are affirmed. No costs.
office; and 2) the injury caused or the offense committed is the necessary SO ORDERED.
consequence of the due performance of duty or the lawful exercise of a right
or office.25 While the first condition is present, the second is clearly lacking.
Baxinela’s duty was to investigate the reason why Lajo had a gun tucked
behind his waist in a public place. This was what Baxinela was doing when he
confronted Lajo at the entrance, but perhaps through anxiety, edginess or
the desire to take no chances, Baxinela exceeded his duty by firing upon Lajo
who was not at all resisting. The shooting of Lajo cannot be considered due
performance of a duty if at that time Lajo posed no serious threat or harm to
Baxinela or to the civilians in the pub.
Essentially, Baxinela is trying to convince the Court that he should be
absolved of criminal liability by reason of a mistake of fact, a doctrine first
enunciated in United States v. Ah Chong.26 It was held in that case that a
mistake of fact will exempt a person from criminal liability so long as the
alleged ignorance or mistake of fact was not due to negligence or bad faith.
In examining the circumstances attendant in the present case, the Court finds
that there was negligence on the part of Baxinela. Lajo, when he was shot,
was simply turning around to see who was accosting him. Moreover, he
identified himself saying "I am MIG." These circumstances alone would not
lead a reasonable and prudent person to believe that Baxinela’s life was in
peril. Thus, his act of shooting Lajo, to the mind of this Court, constitutes
clear negligence. But even if the Court assumes that Lajo’s actions were
aggressive enough to appear that he was going for his gun, there were a
number of procedures that could have been followed in order to avoid a
confrontation and take control of the situation. Baxinela, whom the Court
assumes not to be a rookie policeman, could have taken precautionary
measures by simply maintaining his hold on to Lajo’s shoulders, keeping Lajo
facing away from him, forcing Lajo to raise his hands and then take Lajo’s
weapon. There was also Regimen who should have assisted Baxinela in
disabling and disarming Lajo. The events inside the disco pub that
unnecessarily cost the life of Lajo did not have to happen had Baxinela not
been negligent in performing his duty as a police officer.
The Court will, however, attribute to Baxinela the incomplete defense of
fulfillment of a duty as a privileged mitigating circumstance. In Lacanilao v.
Court of Appeals,27 it was held that if the first condition is fulfilled but the
second is wanting, Article 69 of the Revised Penal Code is applicable so that
the penalty lower than one or two degrees than that prescribed by law shall
be imposed.28 Accordingly, the Court grants in favor of Baxinela a privileged