Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-1896

February 16, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RAFAEL BALMORES Y CAYA, defendant-appellant.
Felixberto B. Viray for appellant.
Assistant Solicitor General Ruperto Kapunan, Jr. and Solicitor Adolfo Brillantes for appellee.
OZAETA, J.:
Appellant, waiving the right to be assisted by counsel, pleaded guilty to the following information filed against him in the Court of First Instance of Manila:
The undersigned accuses Rafael Balmores y Caya of attempted estafa through falsification of a security, committed as follows:
That on or about the 22nd day of September, 1947, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and feloniously
commence the commission of the crime of estafa through falsification of a security directly by overt acts, to wit; by then and there tearing off at the bottom in a
cross-wise direction a portion of a genuine 1/8 unit Philippine Charity Sweepstakes ticket thereby removing the true and real unidentified number of same and
substituting and writing in ink at the bottom on the left side of said ticket the figure or number 074000 thus making the said ticket bear the said number 074000,
which is a prize-winning number in the Philippine Charity Sweepstakes draw last June 29, 1947, and presenting the said ticket so falsified on said date, September
22, 1947, in the Philippine Charity Sweepstakes Office for the purpose of exchanging the same for the corresponding cash that said number has won, fraudulently
pretending in said office that the said 1/8 unit of a Philippine Charity Sweepstakes ticket is genuine and that he is entitled to the corresponding amount of P359.55
so won by said ticket in the Philippine Charity Sweepstakes draw on said date, June 29, 1947, but the said accused failed to perform all the acts of execution which
would have produce the crime of estafa through falsification of a security as a consequence by reason of some causes other than this spontaneous desistance, to
wit: one Bayani Miller, an employee to whom the said accused presented said ticket in the Philippine Charity Sweepstakes Office discovered that the said ticket as
presented by the said accused was falsified and immediately thereafter he called for a policeman who apprehended and arrested the said accused right then and
there.
Contrary to law.

(Sgd.) LORENZO RELOVA

Assistant City Fiscal

and was sentenced by Judge Emilio Pena to suffer not less than 10 years and 1 day of prision mayor and not more than 12 years and 1 day of reclusion temporal, and to pay a fine
of P100 and the costs.
From that sentence he appealed to this court, contending (1) that the facts and (2) that the trial court lacked jurisdiction to convict him on a plea of guilty because, being
illiterate, he was not assisted by counsel.
In support of the first contention, counsel for the appellant argues that there could be so could be no genuine 1/8 unit Philippine Charity Sweepstakes ticket for the June 29,
1947, draw; that this court has judicial notice that the Philippine Charity Sweepstakes Office issued only four 1/4 units for each ticket for the said draw of June 29, 1947; that
the information does not show that the true and real unidentified number of the ticket alleged to have been torn was not and could not be 074000; that the substitution and
writing in ink of the said number 074000 was not falsification where the true and real number of the ticket so torn was 074000.
This contention is based on assumption not borne out by the record. The ticket alleged to have been falsified is before us and it appears to be a 1/8 unit. We cannot take
judicial notice of what is not of common knowledge. If relevant, should have been proved. But if it is true that the Philippine Charity Sweepstakes Office did not issue 1/8 but
only 1/4 units of tickets for the June 29, 1947, draw, that would only strengthen the theory of the prosecution that the 1/8 unit of a ticket which appellant presented to the
Philippine Charity Sweepstakes Office was spurious. The assumption that the true and real unidentified number of the ticket alleged to have been torn was the winning
number 074000, is likewise not supported by the record. The information to which appellant pleaded guilty alleged that the appellant removed the true and real unidentified
number of the ticket and substituted and wrote in ink at the bottom on the left side of said ticket the figure or number 074000. It is obvious that there would have been no need
of removal and substitution if the original number on the ticket was the same as that which appellant wrote in ink in lieu thereof.
The second contention appears to be based on a correct premises but wrong conclusion. The fact that appellant was illiterate did not deprive the trial court of jurisdiction
assisted by counsel. The decision expressly states that appellant waived the right to be assisted by counsel, and we know of no law against such waiver.
It may be that appellant was either reckless or foolish in believing that a falsification as patent as that which he admitted to have perpetrated would succeed; but the
recklessness and clumsiness of the falsification did not make the crime impossible within the purview of paragraph 2, article 4, in relation to article 59, of the Revised Penal
Code. Examples of an impossible crime, which formerly was not punishable but is now under article 59 of the Revised Penal Code, are the following: (1) When one tries to kill
another by putting in his soup a substance which he believes to be arsenic when in fact it is common salt; and (2) when one tries to murder a corpse. (Guevara, Commentaries
on the Revised Penal Code, 4th ed., page 15; decision, Supreme Court of Spain, November 26, 1879; 12 Jur. Crim., 343.) Judging from the appearance of the falsified ticket in
question, we are not prepared to say that it would have been impossible for the appellant to consummate the crime of estafa thru falsification of said ticket if the clerk to
whom it was presented for the payment had not exercised due care.

The penalty imposed by article 166 for the forging or falsification of "treasury or bank notes or certificates or other obligations and securities" is reclusion temporal in its minimum
period and a fine not to exceed P10,000, if the document which has been falsified, counterfeited, or altered is an obligation or security of the United States or of the Philippine
Islands. This being a complex crime of attempted estafa through falsification of an obligation or security of the Philippines, the penalty should be imposed in its maximum
period in accordance with article 48. Taking into consideration the mitigating circumstance of lack of instruction, and applying the Indeterminate Sentence Law, the minimum
cannot be lower than prision mayor in its maximum period, which is 10 years and 1 day to 12 years. It results, therefore, that the penalty imposed by the trial court is correct.
The alteration, or even destruction, of a losing sweepstakes ticket could cause no harm to anyone and would not constitute a crime were it not for the attempt to cash the
ticket so altered as a prize-winning number. So in the ultimate analysis appellant's real offense was the attempt to commit estafa (punishable with eleven days of arresto
menor); but technically and legally he has to suffer for the serious crime of falsification of a government obligation. We realize that the penalty is too severe, considering all the
circumstances of the case, but we have no discretion to impose a lower penalty than authorized by law. The exercise of clemency and not in this court.
We are constrained to affirm the sentence appealed from, with costs against the appellant.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 152589 & 152758

January 31, 2005

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO MENDOZA Y BUTONES, accused-appellant.
RESOLUTION
PER CURIAM:
Before Us is the Motion for Reconsideration filed by herein accused-appellant of our Decision dated 24 October 2003 in G.R. No. 152589 and No. 152758.1 In said decision, we
modified the ruling of the Regional Trial Court (RTC), Branch 61, Gumaca, Quezon, in Crim. Case No. 6636-G finding accused-appellant guilty of rape under Articles 266-A
and 266-B of the Revised Penal Code and instead, we adjudged him guilty only of attempted rape. We, however, upheld the ruling of the court a quo with regard to Crim.
Case No. 6637-G finding accused-appellant guilty of incestuous rape of a minor under Art. 266-B of the Revised Penal Code as amended by Republic Act No. 8353 and for
this, we sentenced accused-appellant to suffer the ultimate penalty of death.
Anent Crim. Case No. 6636-G, accused-appellant submits that our pronouncement that Under these circumstances, while incestuous rape can be rationally ruled out since there is no evidence of the introduction of the penis of appellant into the aperture or within
the pudendum of the vagina of private complainant, accused-appellant is positive for having an intent to lie with his victim. He is guilty of attempted rape.
...
Appellant's unclothed being which he rubbed against the torso of his daughter whom he had also stripped of clothing, his acts of kissing and touching the victim's breasts
while the latter was flat on the bed and rendered purposely unconscious by appellant, evidently demonstrate the intent of appellant to have carnal knowledge of her against
her will.2
fails to support our conclusion that he is guilty of attempted rape.1awphi1.nt He argues that at most, he should only be convicted of acts of lasciviousness, defined and
punished under Art. 336 of the Revised Penal Code, as the above-quoted portion of our decision does not establish his intent to have carnal knowledge with private
complainant.
In its Comment dated 15 September 2004, the Office of the Solicitor General (OSG), on behalf of the government, points to the following portion of private complainant's
testimony as the basis for establishing accused-appellant's intent to lie with the former, thus:
PROSECUTOR MATA:
Q And how were you raped by your father?
A He removed my clothes, Ma'am.<
Q When he removed your clothes, where was your sister?
A She was outside, Ma'am.
Q And after he removed your clothes, what else did he do?

A He placed himself on top of me, Ma'am.

Q When he placed himself on top of you, was he fully clothed or without clothes?
A None, Ma'am.
Q And after he placed himself on top of you, were both of you naked?
A Yes, Ma'am.
Q And what did he do when he was on top of you?
A He kissed me, Ma'am.
Q Aside from kissing you, what else did he do?
A He touched me, Ma'am.
Q Where were you touched?
A On my breast, Ma'am.
Q Where else? What else did he do aside from touching your breast?
A He threatened me, Ma'am.
Q How were you threatened?
A He told me that if I will tell somebody, he will kill us, Ma'am.
Q After he threatened you and he was on top of you, he touched your breast, what did he do next? You said you were raped. Both of you were naked. He was on
top of you. What happened next?
A He boxed me on my stomach, Ma'am.
Q After boxing you on your stomach, what else did he do?
A I do not know already, Ma'am.
Q Why did you not know?
A Because I lost consciousness, Ma'am.
Q You lost consciousness and when you regained consciousness, what did you notice about your body?
A I saw blood, Ma'am.
Q Where did you see blood?
A On my thigh, Ma'am.
Q And where was the blood coming?
A From my vagina, Ma'am.
Q And what did you feel in your vagina?
A It was painful, Ma'am.
Q Was that your first sexual experience?

A Yes, Ma'am.
Q And who caused your vagina to bleed?
A My father, Ma'am.
Q And when you regained consciousness, where was your sister?
A She was at my side, Ma'am.
Q What did she do, if any, when she saw your condition?
A None, Ma'am.
Q How about you? What did you do? I withdraw that question, Your Honor.
Q When you regained consciousness, were you still naked?
A Yes, Ma'am.3
After a thorough review and evaluation of the records of this case, we find no sufficient basis to modify our earlier decision convicting accused-appellant of attempted rape in
Crim. Case No. 6636-G.
There is an attempt to commit rape when the offender commences its commission directly by overt acts but does not perform all the acts of execution which should produce
the felony by reason of some cause or accident other than his own spontaneous desistance. 4 The elements, therefore, of an attempted felony are the following: (1) the offender
commences the commission of the felony directly by overt acts; (2) he does not perform all the acts of execution which should produce the felony; (3) the offender's act be not
stopped by his own spontaneous desistance; and (4) the non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance. 5
Upon the other hand, Article 366 of the Revised Penal Code states: "(a)ny person who shall commit any act of lasciviousness upon the other person of either sex, under any of
the circumstances mentioned in the preceding article, shall be punished by prision correccional." The elements of this crime are: (1) that the offender commits any act of
lasciviousness or lewdness; (2) that it is done (a) by using force and intimidation, or (b) when the offended party is deprived of reason or otherwise unconscious, or (c) when
the offended party is under 12 years of age; and (3) that the offended party is another person of either sex. 6 As explained by an eminent author of criminal law, rape and acts
of lasciviousness have the same nature. There is, however, a fundamental difference between the two. In rape, there is the intent to lie with a woman whereas this element is
absent in acts of lasciviousness.7
In this case, the series of appalling events which took place on the night of 18 March 1998 inside the humble home of private complainant and of accused-appellant, establish
beyond doubt that the latter intended to ravish his very own flesh and blood. As vividly narrated by private complainant before the trial court, accused-appellant, taking
advantage of the cover of darkness and of the absence of his wife, removed her (private complainant's) clothing and thereafter placed himself on top of her. Accusedappellant, who was similarly naked as private complainant, then proceeded to kiss the latter and he likewise touched her breasts until finally, he rendered private
complainant unconscious by boxing her in the stomach. 8 These dastardly acts of accused-appellant constitute "the first or some subsequent step in a direct movement towards
the commission of the offense after the preparations are made." 9 Far from being mere obscenity or lewdness, they are indisputably overt acts executed in order to consummate
the crime of rape against the person of private complainant.
Indeed, had private complaint given a categorical statement that the penis of accused-appellant had in fact penetrated her vagina or that it had at least touched her labia, we
would have definitely affirmed the accused-appellant's conviction for consummated rape in Crim. Case No. 6636-G. Unfortunately, the records are bereft of any indication to
this effect thus, we are constrained to find accused-appellant guilty only of attempted rape as far as Crim. Case No. 6636-G is concerned lest we obliterate the fine distinction
between an attempted and consummated rape.
Worthy of note also is the fact that when confronted with the above-mentioned circumstances during his turn at the witness stand, accused-appellant miserably failed to
proffer a credible defense on his behalf. All that accused-appellant managed to do during that time was to deny the accusations hurled against him in the following manner:
Q Mr. Witness, your daughter Maricar, complained that in the night time of March 18, 1998, while her mother was not in the house, and you were sleeping there,
you raped her, what can you say about that?
A That is not true.
Q And if it is not true, what is the truth about it[?]
A I was sending my children to school and she always come home late.
Q In what school was she enrolled prior to March 18, 1998?
A At Barangay Malusak, Atimonan, Quezon, sir.
Q Do you know of any reason why your daughter Maricar should file a complaint against you if it is not true that you raped her on March 18, 1998 at night time?

A According to the person who informed me, my daughter was just using me.
Q And who was that person who informed you that your daughter just accused you?
A Erlinda Rivera, sir.
Q From what place is this Erlinda Rivera?
A From Malusak, Atimonan, Quezon.
Q And what did this Erlinda Rivera tell you about that?
A I was informed by Erlinda Rivera that my daughter was always going with several men.
Q In what place did this Erlinda Rivera tell you that your daughter always go with several men?
A In her house when I went there.
Q When was that if you can still remember?
A I could not exactly recall.
Q Was it when you were already incarcerated or was it before you were incarcerated when Erlinda Rivera told you about that fact that your daughter was always
going with other men?
A She told me that when I was already incarcerated.
Q In what place, was it in the Provincial Jail or where?
A Here in court.10
It is well-settled that denial is essentially the weakest form of defense and it can never overcome an affirmative testimony particularly when it comes from the mouth of a
credible witness.11 Accused-appellant's bare assertion that private complainant was just "using" him to allow her to freely frolic with other men, particularly with a certain
Renato Planas, begs the credulity of this Court. This is especially true in the light of our consistent pronouncement that "no decent and sensible woman will publicly admit
being a rape victim and thus run the risk of public contempt - the dire consequence of a rape charge - unless she is, in fact, a rape victim."12 More in point is our
pronouncement in People v. Canoy,13 to wit:
It is unthinkable for a daughter to accuse her own father, to submit herself for examination of her most intimate parts, put her life to public scrutiny and expose
herself, along with her family, to shame, pity or even ridicule not just for a simple offense but for a crime so serious that could mean the death sentence to the very
person to whom she owes her life, had she really not have been aggrieved. Nor do we believe that the victim would fabricate a story of rape simply because she
wanted to exact revenge against her father, appellant herein, for allegedly scolding and maltreating her.14
With regard to Crim. Case No. 6637-G, accused-appellant posits the argument that due to the inconsistencies in the testimony of private complainant, the prosecution failed to
establish his guilt beyond reasonable doubt.
The argument fails to persuade.
This Court will not disturb the findings of facts of trial courts unless there is a showing that it failed to consider facts and circumstances, which if taken into account, would
materially affect the resolution of a case. 15 In the case at bar, the alleged inconsistencies in private complainant's testimonies pertain to the number of times when she was
raped by accused-appellant and the date when her mother, Leonida Mendoza, actually came back from San Narciso, Quezon, to their house at Barangay Lakip, Atimonan,
Quezon. In her testimony on 29 March 2001, private complainant claimed that her mother returned to their house on 19 March 1998 - the day after the first incident of rape.
On the other hand, Leonida testified that she stayed in San Narciso for one week. 16
Needless to state, these supposed inconsistencies deal with minor matters and should not affect the genuineness of private complainant's version of how her harrowing
experience came to be. They do not deal with the basic aspects of the who, the how, and the when, of the crime committed. 17 As we have declared before, "inconsistencies on
matters of minor details do not detract from the actual fact of rape." 18 Verily, private complainant's consistent retelling of the relevant details regarding the violation of her
person by her own father far outweighs the latter's persistent assault on her credibility and candor.
In any case, it is a doctrine in criminal law that minor inconsistencies in testimonies strengthen rather than weaken the witness' credibility for they eliminate the impression of
a rehearsed testimony. Particularly in rape cases, this court does not expect a rape victim to recall every minute detail that occurred during her horrible ordeal. As we declared
in People v. Abiera,19 "a rape victim cannot push out of her mind the violent attack upon her chastity but she is nevertheless not expected to remember all the sordid details of
that traumatic experience."20
WHEREFORE, the instant motion for reconsideration is DENIED for lack of merit and our decision dated 24 October 2003 is hereby AFFIRMED.

Costs de oficio.
SO ORDERED.
EN BANC

[G. R. No. 149028-30. April 2, 2003]

THE PEOPLE OF THE PHILIPPINES, appellee, vs. ARMANDO CABALLERO, RICARDO CABALLERO, MARCIANO CABALLERO, JR., and ROBITO
CABALLERO, accused.
ARMANDO CABALLERO, RICARDO CABALLERO, and MARCIANO CABALLERO, JR., appellants.
DECISION
CALLEJO, SR., J.:
Before the Court on automatic review is the Decision [1] of the Regional Trial Court of San Carlos City, Negros Occidental, Branch 57, convicting appellants Armando
Caballero, Ricardo Caballero and Marciano Caballero, Jr. of murder in Criminal Cases Nos. RTC-1217 and RTC-1218 and meting on each of them the supreme penalty of
death and ordering them to pay damages; and of frustrated murder in Criminal Case No. RTC-1219 and imposing on them the penalty of reclusion perpetua.

The Antecedents

Teresito (Dodong) Mondragon and his family lived in a compound surrounded by a barbed-wire fence at New Sumakwel, Broce Street, San Carlos City, Negros
Occidental. Living in the same compound were Ricardo Caballero and his family; and Myrna Bawin, the sister of Eugene Tayactac, and her family. Beside the compound was
the house of Leonilo Broce, a nephew of Wilma Broce.
In the afternoon of August 3, 1994, Armando (Baby), Robito (Bebot) and Marciano, Jr. (Jun), all surnamed Caballero, were having a drinking spree in the house of their
brother Ricardo in the Mondragon Compound. At about 7:00 p.m. of said date, Eugene Tayactac and Arnold Barcuma arrived in the sari-sari store of Wilma Broce which was
across the Mondragon Compound. Eugene had dinner in the store while Arnold proceeded to the house of Susana Broce, Eugenes girlfriend, for a chat. Susanas house was
about 15 meters away from the store of Wilma. Momentarily, Armando arrived in the store and asked Eugene in an angry tone: Gene mopalit ka? (Gene, will you
buy?). Eugene replied: What is this all about? We dont have any quarrel between us. Armando left the store but stood by the gate of the barbed-wired fence of the
Mondragon Compound. His brothers Ricardo, Robito and Marciano, Jr. joined him. Ricardo and Robito were armed with knives. When Wilma told Eugene that she was
closing the store already, he stood up and left the store on his way to Susanas house. At that time, Myrna Bawin, who was standing by the window of their house saw her
brother Eugene going out of the store and proceeding to the house of Susana. She called out to him and advised him to go home. Myrna then left the window to pacify her
crying baby.
As Eugene walked by the gate of the Mondragon Compound, Armando suddenly grabbed Eugene towards the compound. Eugene resisted. Spontaneously, Ricardo,
Marciano, Jr. and Robito joined Armando and assaulted Eugene. Armando took the wooden pole supporting the clothesline and hit Eugene with it. The latter tried to parry
the blows of the Caballero brothers, to no avail. In the process, Eugene was stabbed three times. As Eugene was being assaulted, Myrna returned to the window of her house
and saw the Caballero brothers assaulting Eugene. She shouted for help for her hapless brother. Wilma, who witnessed the whole incident, was shocked to immobility at the
sudden turn of events.
From the nearby house of Susana, Arnold saw the commotion and rushed to the scene to pacify the protagonists. Arnold told the Caballero brothers: Bay, what is the
trouble between you and Eugene? However, Ricardo accosted Arnold and stabbed the latter on the left side of his body. Forthwith, Robito, Marciano, Jr. and Armando
ganged up on Arnold. Two of them stabbed Arnold on his forearm. Arnold fled for his life and hid under the house of a neighbor.
For his part, Leonilo rushed from his house to where the commotion was. He was, however, met by Robito who stabbed him on the chest. Wounded, Leonilo retreated
and pleaded to his uncle Lucio Broce for help: Tio, help me because I am hit. The commotion stopped only upon the arrival of Teresito Mondragon who was able to pacify
the Caballero brothers. They all returned to the compound.
In the meantime, Lucio Broce, the uncle of Leonilo brought the injured Eugene, Leonilo and Arnold to the Planters Hospital for medical treatment. Eugene and Leonilo
eventually died from the stab wounds they sustained.
Dr. Filped A. Maisog performed an autopsy on the cadaver of Eugene. He signed a postmortem report containing the following findings:
POST-MORTEM EXAMINATION
Name: Eugenio Tayactac, 22 years old, male, single
Address: New Sumakwel, San Carlos City, Neg. Occ.
Place of Incident: New Sumakwel, San Carlos City, Neg. Occ.
Place of Examination: San Carlos City Hospital

Date & Time of Incident: August 3, 1994 @ 8:30 P.M.

Date & Time Examined: August 3, 1994 @ 10:40 P.M.
Post-Mortem Findings:
= Stab wound (L) anterior chest 2 cm. 5th ICS MCL directed postero laterally, lacerating (L) auricle of the heart, and the (L) pulmonary artery and the left
middle lobe of the lungs;
=
=

Stab wound (R) anterior chest 2 cm. long 5th ICS parasternal line directed posteriorly;
Stab wound (R) posterior chest level 7th ICS 2 cm. long directed anteriorly.

CAUSE OF DEATH: Severe Hemorrhage secondary to Multiple Stab wounds with Massive Hemothorax (L) and Hemopneumothorax (R). [2]
He testified that the stab wounds could have been caused by a sharp-edged single-bladed or double-bladed instrument, or by three instruments. [3]
Dr. Jose Carlos L. Villarante performed an autopsy on the cadaver of Leonilo. He signed a postmortem report containing the following findings:
POST-MORTEM EXAMINATION
Name: Leonilo Broce, 22 years old, male, married
Address: New Sumakwel, San Carlos City, Neg. Occ.
Place of Incident: New Sumakwel, San Carlos City, Neg. Occ.
Place of Examination: San Carlos City Hospital
Date & Time of Incident: Aug. 3, 1994 @ 8:30 P.M.
Date & Time Examined: Aug. 3, 1994 @ 8:45 P.M.
Post-mortem findings:
=

Stab wound, (R) post chest, about the level of the 6th and 7th RICS, post. axillary line.

CAUSE OF DEATH: Hypovolemic shock secondary to multiple organ injury. [4]

Dr. Edgardo B. Quisumbing attended to and operated on Arnold Barcuma. He signed a medical certificate stating that Arnold sustained the following injuries:
=

Lacerated wound 2 cm. (R) forearm middle 3rd

Incised wound 2 inches (L) forearm middle 3rd

=

Stabbed wound, 2 inches in length (L) chest, anterior axillary line at the level of the 7 th intercostal space, penetrating thoracic cavity and abdominal cavity.
... [5]

On the witness stand, Dr. Quisumbing testified that the wounds sustained by Arnold could have been caused by three different sharp-pointed instruments.[6] He
further testified that Arnold would have died because of the stab wound on his chest, were it not for the timely medical intervention.
On August 5, 1994, Armando, Ricardo, Marciano, Jr. and Robito, were charged with Murder for the death of Leonilo Broce. The Information, docketed as Criminal
Case No. RTC 1217 reads:
That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring together and helping one another, armed with pieces of wood and hunting knives, and with intent to kill, with treachery and evident
premeditation, did, then and there, wilfully, unlawfully and feloniously, with the use of said weapons, attack, assault and use personal violence upon the person of one
LEONILO BROCE, by striking the latter with the use of pieces of wood and stabbing him, thereby inflicting upon said Leonilo Broce physical injury described as follows:
=

Stabbed wound (R) chest penetrating thoracic cavity.

and which injury caused massive hemorrhage which resulted to the death of Leonilo Broce.

That an aggravating circumstance of abuse of superior strength is attendant in the commission of the offense.
CONTRARY TO LAW.[7]
They were also charged with the same crime for the death of Eugene Tayactac in an Information docketed as Criminal Case No. RTC-1218, which reads:
That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring together and helping one another, armed with pieces of wood and hunting knives, and with intent to kill, with treachery and evident
premeditation, did, then and there, wilfully, unlawfully and feloniously, with the use of said weapons, attack, assault and use personal violence upon the person of one
EUGENE TAYACTAC, by striking the latter with use of pieces of wood and stabbing him thereby inflicting upon said Eugene Tayactac physical injuries which resulted to the
death of the latter.
That an aggravating circumstances of abuse of superior strength is attendant in the commission of the offense.
CONTRARY TO LAW.[8]
Another Information was filed against the Caballero brothers for frustrated murder for the injuries of Arnold Barcuma. Docketed as Criminal Case No. RTC-1219, it
reads:
That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring together and helping one another, armed with pieces of wood and hunting knives, with intent to kill, with treachery and evident
premeditation, did, then and there, wilfully, unlawfully and feloniously attack, assault and use personal violence upon the person of one ARNOLD BARCUMA, by striking
him with the use of pieces of wood and stabbing him, thereby inflicting upon the latter physical injuries which would have resulted to the death of said Arnold Barcuma, thus
performing all the acts of execution, which would have produced the crime of Murder, as a consequence, but nevertheless did not produce it, by reason of causes
independent of the will of the accused that is, the timely medical assistance rendered to said Arnold Barcuma.
That an aggravating circumstance of abuse of superior strength is attendant in the commission of the offense. [9]
Ricardo, Armando and Marciano, Jr., assisted by counsel, were arraigned on September 15, 1994. They pleaded not guilty to all the charges. Robito Caballero
remained at-large.
Ricardo, Armando and Marciano, Jr. invoked the defenses of denial and alibi. They adduced evidence that Ricardo was employed as electrician in the Office of the
City Engineer of San Carlos City. Armando was a motor cab driver. Robito resided in H.C. Rigor Street, San Carlos City while Marciano, Jr. was a resident of Don Juan
Subdivision, San Carlos City and was employed with the Victorias Milling Corporation.
On August 3, 1994, at 8:00 a.m., Robito left San Carlos City and went to Bacolod City. Armando went to the house of his brother Ricardo to help in the construction of
the latters house and to take care of Ricardos fighting cocks while he was in his office. Ricardo arrived home at 8:00 p.m. and had dinner with his family and
Armando. Momentarily, their sister Mila and their younger brother Marciano, Jr. arrived in the house of Ricardo. Marciano, Jr. allegedly was mauled by a group of men and
sustained an abrasion, a contusion and swelling of the left side of his face. Ricardo and Armando brought their brother Marciano, Jr. to the hospital for treatment. On August
4, 1994, Marciano, Jr. was treated for:
=

Linear abrasion (L) scapula region;

Contusion (R) lower lip lateral side;

Swelling left face.

No. of days of healing: 5-7 days barring complication.[10]

Ricardo, Armando and Marciano, Jr. denied killing Eugene and assaulting Arnold. They also denied having any altercation with the victims. They also denied
stabbing Leonilo. They had no idea why Wilma, Arnold and Myrna would implicate them for the deaths of Leonilo and Eugene and for the injuries of Arnold.
After due proceedings, the trial court rendered judgment on May 7, 2001 finding all the three accused, now appellants guilty beyond reasonable doubt as principals of
the crimes charged, the decretal portion of which reads:
WHEREFORE, accused Armando Caballero, alias Baby, Ricardo Caballero, alias Ricky and Marciano Caballero, Jr., alias Jun, having been found GUILTY beyond
reasonable doubt of the offenses charged them as principals, are hereby sentenced to suffer:
1. In Criminal Case No. RTC-1217 for the murder of Leonilo Broce, there being no mitigating circumstance present, with the attendant aggravating circumstances of treachery
and abuse of superior strength, the maximum penalty of death and to pay the heirs of Leonilo Broce the sum of P75,000.00 as indemnity;
2. In Criminal Case No. RTC-1218, for the murder of Eugene or Eugenio Tayactac, there being no mitigating circumstance present, with the attendant aggravating
circumstances of treachery and abuse of superior strength, the maximum penalty of death; and to pay the heirs of Eugene Tayactac the sum of P75,000.00 as indemnity; and
3. In Criminal Case No. RTC-1219, for Frustrated Murder, for having seriously inflicted injuries upon the person of Arnold Barcuma which nearly resulted to his death, there
being no mitigating circumstance present, an imprisonment of twelve (12) years, as minimum, to seventeen (17) years, four (4) months and one (1) day, with no award as to
damages, no evidence having been introduced to establish, the same; and

4. To pay the costs in all three (3) cases.

SO ORDERED.[11]
In convicting the accused, the trial court found that all of them conspired to kill Eugene and Leonilo and cause injuries to Arnold. While the trial court stated that it
was only appellant Armando who stabbed Eugene, and only the accused Robito who stabbed Leonilo, however, it concluded that all of them were equally liable for the
deaths of Leonilo and Eugene and for the injuries of Arnold.
In their Brief, the accused, now appellants assail the decision of the trial court contending that:
I
THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANTS IN CRIMINAL CASES NOS. 1217-1219 DESPITE THE FACT THAT THEIR GUILT WAS
NOT PROVEN BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCES OF TREACHERY AND ABUSE OF SUPERIOR STRENGTH ON
THE ASSUMPTION THAT INDEED ACCUSED-APPELLANTS KILLED THE VICTIMS.
III
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY UPON ACCUSED-APPELLANTS ON THE ASSUMPTION THAT INDEED THEY KILLED
THE VICTIMS.[12]
The Court will delve into and resolve the first two assignments of errors.
The appellants aver that the prosecution failed to prove beyond reasonable doubt their respective guilt for the deaths of Eugene and Leonilo and for the injuries
sustained by Arnold. They assert that the trial court committed reversible error in rejecting their defenses of denial and alibi. They claim that at the time of the incident they
were in the San Carlos Hospital for the treatment of the injuries of appellant Marciano, Jr.
The appellants are partly correct.
The trial court correctly found that all the appellants conspired to kill Eugene and assault Arnold; hence, they are criminally liable for the death of Eugene and for the
injuries sustained by Arnold. Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons agree to commit a felony and decide to commit
it. Conspiracy is always predominantly mental in composition because it consists primarily of a meeting of minds and intent. [13] Conspiracy must be proved with the same
quantum of evidence as the crime itself, that is, by proof beyond reasonable doubt. [14] However, direct proof is not required. Conspiracy may be proved by circumstantial
evidence. Conspiracy may be proved through the collective acts of the accused, before, during and after the commission of a felony, all the accused aiming at the same object,
one performing one part and another performing another for the attainment of the same objective, their acts though apparently independent were in fact concerted and
cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments. [15] The overt act or acts of the accused may consist of active
participation in the actual commission of the crime itself or may consist of moral assistance to his co-conspirators by moving them to execute or implement the criminal
plan.[16] Direct proof of a person in agreement to commit a crime is not necessary. It is enough that at the time of the commission of a crime, all the malefactors had the same
purpose and were united in their execution. [17] Once established, all the conspirators are criminally liable as co-principals regardless of the degree of participation of each of
them for in contemplation of the law, the act of one is the act of all. [18]
Criminal conspiracy must always be founded on facts, not on mere inferences, conjectures and presumptions. [19] Mere knowledge, acquiescence to or approval of the
act without cooperation or agreement to cooperate, is not enough to constitute one party to a conspiracy absent the intentional participation in the act with a view to the
furtherance of the common objective and purpose. [20] Moreover, one is not criminally liable for his act done outside the contemplation of the conspirators. Co-conspirators are
criminally liable only for acts done pursuant to the conspiring on how and what are the necessary and logic consequence of the intended crime. [21]
In this case, when appellant Armando asked Eugene at the store of Wilma whether the latter was going to buy something from the store, Eugene was peeved and
remonstrated that he and Armando had no quarrel between them. Appellant Armando was likewise irked at the reaction of Eugene because from the store, appellant
Armando stationed himself by the gate of the Mondragon Compound near the sari-sari store of Wilma. Appellants Ricardo, Marciano, Jr. and Robito joined their brother,
appellant Armando at the gate. Appellant Ricardo and accused Robito were armed with knives. When Eugene passed by the gate to the compound, appellant Armando
pulled Eugene to the gate but when the latter resisted, all the appellants ganged up on Eugene. Appellant Armando took the wooden support of the clothesline and hit
Eugene with it. Eugene was stabbed three times on his chest even as he tried to parry the thrusts. When Arnold rushed to the situs criminis to pacify the appellants and
accused Robito, appellant Ricardo stabbed him on the left side of his body. The other appellants and accused Robito joined appellant Ricardo and ganged up on Arnold. They
stabbed Arnold anew twice on his forearm. Teresito Mondragon, the father-in-law of appellant Ricardo intervened and forthwith, all the appellants, including accused Robito
returned to the Mondragon Compound. Patently, all the appellants by their simultaneous collective acts before and after the commission of the crimes were united in one
common objective, to kill Eugene, and cause injuries to Arnold for trying to intervene and prevent bloodshed. Hence, all the appellants are criminally liable for the death of
Eugene and for the injuries of Arnold. It does not matter who among the appellants stabbed Eugene or inflicted injuries on Arnold. The act of one is the act of the others.
However, for the death of Leonilo, the Court believes that the appellants are not criminally liable. The prosecution failed to adduce evidence that the appellants and
the accused Robito conspired to kill Leonilo. The appellants did not actually see Leonilo rushing out from his house to the situs criminis. They had no foreknowledge that the
accused Robito would stab Leonilo. There was no evidence presented by the prosecution to prove that all the appellants assisted the accused Robito in killing Leonilo. It must
be recalled that Leonilo rushed out of his house when he saw the commotion, with the intention of aiding the victim or pacifying the protagonists. He was, however, stopped
by accused Robito who suddenly stabbed him on the chest. Leonilo retreated and asked for help. Wilma Broce testified that only the accused Robito stabbed Leonilo:
Q

After that, what happened next?

Leonilo Broce came out of his house.

Where is the house of Leonilo Broce?

Still located at Sumakwel.

In that case, the very house where Eugene Tayaktak leaned on when he was ganged up by the four?

Yes.

What happened after that?

When he came out from the house and saw that it was Eugene Tayaktak, he proceeded to approach them but he was not able to approach them because he
was met by Robit Bebot Caballero and stabbed by Robito Caballero.

Was LeoniloBroce (sic) hit when he was stabbed by Robito Caballero?

Yes. He immediately ran back and said: Tio, help me because I am hit.

INTERPRETERS (observation)
Witness demonstrating by holding her left armpit.
Q

Was Eugene Tayaktak able to escape from the attach (sic) of the Caballero brothers?

Not (sic).

Now what happened to Eugene Tayaktak?

He appeared very weak and he was staggering.

Do you know where Eugene Tayaktak now?

Already dead.

What happened to Leonilo Broce, where is he now?

The two of them were (sic) already dead.

Now, when did the trouble stop if it stopped?

It stopped when Dodong Mondragon arrived.

What did the accused do after the trouble was stopped?

They went inside the compound of his (sic) father.

What happened next?

Nothing happened. Both of them were brought to the hospital.[22]

In sum, the trial court committed reversible error in convicting the appellants of murder for the death of Leonilo. As this Court held in People v. Flora:[23]
However, we cannot find Edwin Flora similarly responsible for the death of Emerita Roma and the injury of Flor Espinas. The evidence only shows conspiracy to kill Ireneo
Gallarte and no one else. For acts done outside the contemplation of the conspirators only the actual perpetrators are liable. In People v. De la Cerna, 21 SCRA 569, 570 (1967),
we held:
... And the rule has always been that co-conspirators are liable only for acts done pursuant to the conspiracy. For other acts done outside the contemplation of the coconspirators or which are not the necessary and logical consequence of the intended crime, only the actual perpetrators are liable. Here, only Serapio killed (sic) Casiano
Cabizares. The latter was not even going to the aid of his father Rafael but was fleeing away when shot.
To conclude, appellant Edwin Flora is guilty beyond reasonable doubt only of the murder of Ireneo Gallarte. He has no liability for the death of Emerita Roma nor the injuries
of Flor Espinas caused by his co-accused Hermogenes Flora.

Crimes Committed by Appellants

In Criminal Case No. RTC-1218, the appellants are guilty as co-principals by direct participation of murder, qualified by treachery. In order that treachery may be
considered as a qualifying circumstance, the prosecution is burdened to prove that:
.... (1) the employment of means of execution that give the person attacked no opportunity to defend himself or to retaliate; and (2) the means of execution was deliberately
or consciously adopted.[24]
Even a frontal attack is treacherous if it is sudden and the victim is unarmed. The essence of treachery is a swift and unexpected attack on the unarmed victim. [25]
In this case, Eugene was unarmed. He had no inkling that he would be waylaid as he sauntered on his way to his girlfriend Susanas house. On the other hand,
appellant Armando was armed with a wooden pole while appellant Ricardo and accused Robito were armed with knives. The attack on the hapless Eugene was swift and
unannounced. Undeniably, the appellants killed Eugene with treachery.
In Criminal Case No. RTC-1219, the appellants are guilty of frustrated murder under Article 248 in relation to Article 6, first paragraph of the Revised Penal Code
which reads:

A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.
The essential elements of a frustrated felony are as follows:
Elements:
1.

The offender performs all the acts of execution;

2.

All the acts performed would produce the felony as a consequence;

3.

But the felony is not produced;

4.

By reason of causes independent of the will of the perpetrator.[26]

In the leading case of United States v. Eduave,[27] Justice Moreland, speaking for the Court, distinguished an attempted from frustrated felony. He said that to be an
attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has
performed all the acts which should produce the crime as a consequence, which act it is his intention to perform.
The subjective phase in the commission of a crime is that portion of the acts constituting the crime included between the act which begins the commission of the crime
and the last act performed by the offender which, with prior acts, should result in the consummated crime. Thereafter, the phase is objective.
In case of an attempted crime, the offender never passes the subjective phase in the commission of the crime. The offender does not arrive at the point of performing
all of the acts of execution which should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance.
On the other hand, a crime is frustrated when the offender has performed all the acts of execution which should result in the consummation of the crime. The offender
has passed the subjective phase in the commission of the crime. Subjectively, the crime is complete. Nothing interrupted the offender while passing through the subjective
phase. He did all that is necessary to consummate the crime. However, the crime is not consummated by reason of the intervention of causes independent of the will of the
offender. In homicide cases, the offender is said to have performed all the acts of execution if the wound inflicted on the victim is mortal and could cause the death of the
victim barring medical intervention or attendance. [28]
If one inflicts physical injuries on another but the latter survives, the crime committed is either consummated physical injuries, if the offender had no intention to kill
the victim or frustrated or attempted homicide or frustrated murder or attempted murder if the offender intends to kill the victim. Intent to kill may be proved by evidence
of: (a) motive; (b) the nature or number of weapons used in the commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the manner the
crime was committed; and (e) words uttered by the offender at the time the injuries are inflicted by him on the victim.
In this case, appellant Armando was armed with a wooden pole. Appellant Ricardo and accused Robito used knives. Dr. Quisumbing, who attended to and operated
on Arnold, testified that the stab wound sustained by Arnold on the left side of his body was mortal and could have caused his death were it not for the timely and effective
medical intervention:
Q

And how about the size and the depth of the wounds and how big is each wound and how deep.

The first wound is 2 cm. and the 2nd is about 2 inches and the 3rd is 2 inches in the left, penetrating the chest near the thorax along the lateral line.

So, aside from the 3rd wound there are wounds which are not really very serious?

As I said before, the most serious is the 3rd wound.

So even without the other wounds the 3rd wound - - it could be the cause of the death of the victim?

Yes, Sir.[29]

It cannot be denied that the appellants had the intention to kill Arnold. The appellants performed all the acts of execution but the crime was not consummated because
of the timely medical intervention.
Treachery attended the stabbing of Arnold because he was unarmed and the attack on him was swift and sudden. He had no means and there was no time for him to
defend himself. In sum, the appellants are guilty of frustrated murder.
The appellants denial of the crimes charged in Criminal Case Nos. RTC-1218 and RTC-1219 cannot prevail over Wilmas and Arnolds positive and straightforward
testimonies that the appellants killed Eugene and stabbed Arnold. Moreover, Wilma and Arnold had no motive to falsely implicate the appellants for the said crimes; hence,
their testimony must be accorded full probative weight. [30]
Equally barren of merit is appellants defense of alibi. Alibi as a defense is inherently weak for it is easy to fabricate and difficult to disprove. To merit approbation, the
appellants were burdened to prove with clear and convincing evidence that at the time the crimes were committed, they were in a place other than the situs of the crimes such
that it was physically impossible for them to have committed said crimes. [31] The appellants dismally failed in this respect. They testified that they were at the house of
appellant Ricardo, which was conveniently near the place where Eugene was killed and Arnold was assaulted. Moreover, the records show that Marciano, Jr. was treated for
his superficial injuries on August 4, 1996, a day after the incident. This belies the claim of appellants Ricardo and Armando that they were allegedly in the hospital at the time
of the incident.

Penalties Imposable on Appellants

The trial court imposed the death penalty on appellants in Criminal Case No. RTC-1218 on its finding that treachery and abuse of superior strength were attendant in
the killing of Eugene. The Solicitor General does not agree with the trial court and contends that abuse of superior strength was absorbed by treachery; hence, should not be
considered as a separate aggravating circumstance in the imposition of the penalty on the appellants. The Court agrees with the Solicitor General. Abuse of superior
strength, concurring with treachery is absorbed by treachery. [32]

The penalty for murder under Article 248 of the Revised Penal Code, as amended by Republic Act 7659, is reclusion perpetua to death. Since aside from the qualified
circumstance of treachery, no other modifying circumstance was attendant in the commission of the crime, the proper penalty for the crime is reclusion perpetua conformably
with Article 63 of the Revised Penal Code.
In Criminal Case No. RTC-1219, for frustrated murder, the Solicitor General contends that the indeterminate penalty of from 12 years of reclusion temporal as minimum,
to 17 years, 4 months and 1 day of reclusion temporal as maximum, imposed on the appellants is not correct. The Court agrees with the Solicitor General. The penalty for
frustrated murder is one degree lower thanreclusion perpetua to death, which is reclusion temporal.[33] The latter penalty has a range of 12 years and 1 day to 20 years. The
maximum of the indeterminate penalty should be taken fromreclusion temporal, the penalty for the crime taking into account any modifying circumstances in the commission
of the crime. The minimum of the indeterminate penalty shall be taken from the full range of prision mayor which is one degree lower than reclusion temporal. Since there is no
modifying circumstance in the commission of frustrated murder, the appellants should be meted an indeterminate penalty of from nine (9) years and four (4) months
of prision mayor in its medium period as minimum to seventeen (17) years and four (4) months of reclusion temporal in its medium period, as maximum.

Civil Liabilities of Appellants

The trial court ordered the appellants in Criminal Case No. RTC-1218 to pay in solidum the heirs of the victim Eugene Tayactac, the amount of P75,000 by way of
indemnity. The trial court did not award moral damages to said heirs. This is erroneous. Since the penalty imposed on the appellants is reclusion perpetua, the civil indemnity
should be only P50,000. The heirs of the victim should also be awarded the amount of P50,000 as moral damages.[34]
In Criminal Case No. RTC-1219, the trial court did not award moral damages to the victim Arnold Barcuma on its finding that the prosecution failed to adduce any
evidence to prove said damages. The Court disagrees with the trial court. The victim Arnold Barcuma himself testified on his injuries. [35] He is entitled to moral damages in
the amount of P25,000.[36] Having suffered injuries and undergone medical treatment he is, as well entitled to actual damages, which in the absence of evidence would,
nevertheless, entitle him to an award of temperate or moderate damages, herein fixed at P10,000.

The Verdict of the Court

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of San Carlos City (Negros Occidental), Branch 57, in Criminal Cases Nos. RTC-1217
up to RTC-1219 is AFFIRMED with the following MODIFICATIONS:
1. In Criminal Case No. RTC-1217, the Court, finding the appellants not guilty of the crime charged for failure of the prosecution to prove their guilt beyond
reasonable doubt, REVERSES the judgment of the trial court and ACQUITS them of the said charge.
2. In Criminal Case No. RTC-1218, the appellants are found guilty beyond reasonable doubt of murder under Article 248 of the Revised Penal Code, qualified by
treachery, and are sentenced to suffer the penalty of reclusion perpetua and ordered to pay in solidum the heirs of the victim Eugene Tayactac, the amounts
of P50,000 as civil indemnity and P50,000 as moral damages.
3. In Criminal Case No. RTC-1219, the appellants are found guilty beyond reasonable doubt of frustrated murder under Article 248 in relation to Article 6, first
paragraph of the Revised Penal Code and are hereby sentenced to suffer an indeterminate penalty of from nine (9) years and four (4) months of prision
mayor in its medium period, as minimum, to seventeen (17) years and four (4) months of reclusion temporal in its medium period, as maximum. The
appellants are hereby ordered to pay in solidum to the victim Arnold Barcuma the amount of P25,000 as moral damages and P10,000 as temperate or
moderate damages.
Costs de oficio.
SO ORDERED.
FIRST DIVISION

[G.R. No. 99838. October 23, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERNESTO ENRIQUEZ y ROSALES and WILFREDO ROSALES y YUCOT, accused-appellants.
DECISION
VITUG, J.:
Ernesto Enriquez y Rosales and Wilfredo Rosales y Yucot were charged with having violated Section 4, Article II, of Republic Act ("R.A.") No. 6425 (Dangerous Drugs
Act of 1972), as amended, in an information that read:
That on or about June 5, 1990, in the City of Manila, Philippines, the said accused, conspiring and confederating together and mutually helping each other, not being
authorized by law to sell, deliver, give away to another or distribute any prohibited drug, did then and there wilfully and unlawfully sell or offer for sale six (6) kgrms of
dried flowering tops of marijuana stuffed in a plastic sack, which is a prohibited drug.
"Contrary to law.[1]

The antecedent facts leading to the filing of the information, according to the prosecution, are hereunder narrated.
At around eleven oclock in the morning of 05 June 1990, Sgt. Pedro I. Cerrillo, Jr., the Officer-in-Charge of the Intelligence and Drug Law Enforcement Unit of Police
Station No. 2 (located in Tondo, Manila) of the Western Police District, was in the vicinity of North Harbor routinely scouting for information from his civilian
informants. Near the gate fronting Pier 10, Danny, a porter and member of the Anti-Drug Abuse Movement ("ADAM"), approached and informed Sgt. Cerrillo that a freelance porter at the North Harbor, a.k.a. Bulag, was looking for prospective buyers of marijuana. Sgt. Cerrillo instructed Danny to say that he had come across a couple who
would be interested in buying the prohibited drug. Sgt. Cerrillo had then in mind a possible buy-bust operation.
The buy-bust plan was broached to Patrolwoman Shirley Maramot who was manning Police Station No. 2. Fellow police officers were at the time on duty at the U.S.
Embassy where a "rally" by certain activists was in progress. Using his own owner-type jeep, Sgt. Cerrillo repaired to his house at 727 Moriones St., Tondo, Manila, to procure
ten (10) pieces of one hundred peso bills [2]to be used in the projected buy-bust operation.[3] He thereupon had, at a store near the police station, xerox copies made of the bills
that can readily show the serial numbers which he had also noted down in his personal notebook. [4]
Back at the police station, Sgt. Cerrillo handed the buy-bust money to Pat. Maramot. Since there were no other "operatives" at the station available for the operation,
Sgt. Cerrillo sought the assistance of ADAM members Joseph Mendoza, Amado Betita and Alex Trinidad. The team, including "Danny," were briefed by Sgt. Cerrillo. The
plan called for Pat. Maramot and Mendoza to pose as the couple interested in buying marijuana and for Trinidad, Betita and Sgt. Cerrillo to act as the "back-up" men. Pat.
Maramot was to nod her head as soon as the sale was consummated. [5]
At about 11:35 a.m., the group, using two vehicles, proceeded to the vicinity of Pier 10 at the North Harbor. At the corner of Moriones Street and Radial Road 10, Pat.
Maramot and Mendoza sat on a bench by a store to wait for the return of Danny, who had meanwhile left to fetch Bulag, while Sgt. Cerrillo, Trinidad and Betita
strategically positioned themselves at a billiard hall, mingling with spectators and pretending to be bystanders. The billiard hall was only about ten meters away from Pat.
Maramots group, and it afforded a good view of the place. [6]
Moments later, Danny arrived with accused Wilfredo Rosales, a.k.a. Bulag. Rosales talked with the poseur-buyers. After about five minutes, the poseur-buyers,
Rosales and the informant entered an alley, walking along shanties, until they reached a house numbered 1349.
A half-naked man in green shorts emerged from one of the doors of the house. The man, later identified to be accused Ernesto Enriquez, a.k.a. Nene, asked Pat.
Maramot in Visayan accent, Dala mo ba ang pera? Pat. Maramot took out from her pocket the bundle of the marked money and showed it to Enriquez. The latter allowed
Maramots group to enter the house.[7]Minutes later, as so pre-arranged, Sgt. Cerrillo followed and proceeded to house No. 1349. Finding the door closed, he went around the
house. Sgt. Cerrillo saw Pat. Maramot, Mendoza and the informant exit through the back door. Rosales, carrying a plastic bag, was with them. Again, Sgt. Cerrillos group
followed Pat. Maramot and Rosales until the latter reached a nearby waiting shed for jeepney passengers. At this point, Pat. Maramot announced that she was a
policewoman. Sgt. Cerrillo held Rosales and took his bag. Sgt. Cerrillo opened the sack, and inside it was another sack containing marijuana wrapped in plastic.
The group hurriedly returned to house No. 1349 only to find that Enriquez had by then left the premises. The team boarded the police service jeep and moved on to
Kagitingan Street at the Lakandula detachment. Sgt. Cerrillo interviewed Rosales. Upon being informed that Enriquez would usually visit the Pier 10 area, Sgt. Cerrillo
proceeded to the place. After scouring the area, a security guard supervisor at the pier, who accompanied the group, spotted Enriquez walking near the pier. Sgt.
Cerrillo picked up Enriquez and brought him to the Lakandula detachment for investigation. Later, Minda, the wife of Enriquez, arrived. Someone, at the request of
Enriquez, had fetched her to "bring the money." Enriquez told her to return the amount to Sgt. Cerrillo. She took out from her wallet its contents three of which were the 100peso marked bills.[8] Minda became hysterical. She embraced Sgt. Cerrillo and begged him to forgive her husband. Sgt. Cerrillo told her to instead see the station
commander.[9]
Sgt. Cerrillo apprised Enriquez and Rosales of their constitutional rights. Sgt. Cerrillo advised Enriquez, in front of the latters wife, that he should look for a lawyer so
that his statement could be taken. Sgt. Cerrillo prepared the request for the examination of the evidence taken from the accused and the affidavit [10] of the latter's arrest.[11]
On the evening of 05 June 1990, Minda and other relatives of Enriquez approached Sgt. Cerrillo for the possibility of "settling" the case. During the trial, another
relative, a senior supervising agent of the Napolcom, also approached and requested Sgt. Cerrillo to help out.[12]
Patrolwoman Shirley Maramot, 37 years old, assigned at Police Station No. 2, corroborated Sgt. Cerrillo. She testified that she was requested by Sgt. Cerrillo to be the
poseur-buyer in the buy-bust operation conducted in the morning of 05 June 1990 along Alinian Street, Tondo, Manila. After Sgt. Cerrillo had conducte d a briefing and
provided her with the buy-bust money, Pat. Maramot went with Mendoza, who portrayed the role of her husband, and the informer to Radial 10 at Pier 14. When Wilfredo
Rosales turned up, he asked if she had cash with her. After being shown the money, Rosales led her to a house numbered 1349. The poseur-buyers were made to wait
momentarily while Rosales talked to Ernesto Enriquez. Rosales later signaled Pat. Maramot, who was around four (4) meters away, to again show her money. Forthwith, Pat.
Maramot was led to the house of Enriquez. Once inside a small room, Enriquez locked the door. Enriquez asked Pat. Maramot how much money she had. She replied that
she only had P1,000.00 since she was not sure that she could get as much as the one-half sack of the contraband shown to her. Pat. Maramot was told she could get the lot
for P4,500.00. She said she was willing to get the lot if she could be trusted with the balance of the price. Enriquez agreed. Pat. Maramot handed over the P1,000.00 to
Enriquez. The latter was about to hand over the marijuana when he decided to, instead, have Rosales personally deliver the marijuana.
Pat. Maramot followed Rosales until Maramot finally introduced herself as a policewoman. Rosales posthaste attempted to board a passing passenger jeep but Pat.
Maramot and Sgt. Cerrillo, who had rushed in, were able to timely get hold of Rosales. [13]
NBI Forensic Chemist George J. de Lara issued, on 06 June 1990, a certification to the effect that the specimen submitted to him was positive for marijuana. [14] Sgt.
Cerrillo prepared a case report[15] and the respective booking sheet and arrest report.[16] The official report of the NBI forensic chemist, dated 07 June 1990, disclosed the
following findings:
Weight of specimen = 6.00 kilograms (before examination)
5.999 kilograms (after examination)
Microscopic, chemical and chromatographic examinations made on the above-mentioned specimen gave POSITIVE RESULTS for MARIHUANA. [17]
On the same day, Station Commander Benjamin de Jesus endorsed the case against Enriquez and Rosales to the City Prosecutor for further proceedings. The inquest fiscal
recommended[18]that the two accused be charged with violation of Section 4, Article II, Republic Act No. 6425, as amended.
The defense gave a different version of the incident.
Accused Rosales testified that he had come from Bohol to Manila in April of 1990 and stayed with accused Enriquez, his cousin, while working as an extra porter of
William Lines. At around 11:30 in the morning of 05 June 1990, he was on his way home from work when a male person whom he recognized only by face sought his
assistance in carrying a sack to a place where jeepney commuters would take their ride. The sack was colored white and emitted the smell of dried fish. He was promised P20
in exchange for his help. At a junction, a security guard whom he later identified to be Homer Ciesta, blocked and pushed him inside a vehicle where he was promptly

handcuffed. During the commotion, the owner of the sack disappeared. [19] Rosales was brought to a house near the slum area in Parola where P20,000 was quoted for his
release by Sgt. Cerrillo.[20] When Rosales did not heed the demand, he was brought first to the Lakandula detachment and then to Station No. 2 of the Western Police District.
On his part, Enriquez, a resident of 1349-C Alinian Street, Tondo, Manila, claimed that he was in the business of purchase and sale of oil at the North Harbor, under the
business name of Nie-Men R. Enriquez Enterprises,[21] being the grantee of a permit to operate an oil sludge collection service. [22] He was under contract by the Lorenzo
Shipping Corporation from January 1983 to April 1984. He was also the Vice-President of the Kapisanan ng Maralitang Naninirahan ng Tondo, Inc. a civic organization and a
recipient of a certification of merit from the National Steel Corporation.[23]
Recounting his whereabouts in the morning of 05 June 1990, Enriquez said he left his house at around 11:45 a.m. for Pier 10 of the North Harbor, barely a thirty-minute
walk away from his residence, to meet his brother, Victor Enriquez, at the pier. He had with him P2,000 in P100 denominations stacked in his wallet. Robinson Lumbis, a
neighbor who was road testing his cab along North Harbor, saw and greeted Enriquez.[24] Betty Quimbo, another neighbor, later saw Enriquez with his brother. [25] Appellant
took his lunch at home and thereafter hurriedly returned to the pier. He was not able to spend the night in his house. The following day, 06 June 1990, at around two oclock
in the afternoon, Enriquez went to the maintenance section of the Lorenzo Shipping Lines to pay for the oil he had obtained from its vessels. Homer Ciesta, the officer-incharge of the security guards of the shipping line, invited Enriquez, and the latter agreed, to join him (Ciesta) earn some "extra money." The two left for the squatters area in
Parola and, once there, Ciesta told Enriquez to approach a certain person, later identified to be Sgt. Cerrillo, who instantly handcuffed him. Sgt. Cerrillo demanded P20,000 in
exchange for his freedom. When he refused to give in to the demand, Enriquez was brought to the Lakandula detachment where the P2,000 he had in his wallet was taken
and presented in evidence as the amount used in the buy-bust operation. He was brought to Station No. 2 of the WPD for investigation.[26] Homer Ciesta went to tell
Arminda, the wife of Enriquez, to bring some money to the Lakandula police detachment. Arriving at the detachment, someone approached Arminda and asked her whether
she had the money. She replied in the affirmative. The person then grabbed her wallet, took its contents and later returned the empty wallet. [27]
On 24 January 1991, the trial court, giving credence to the evidence submitted by the prosecution, found both accused guilty beyond reasonable doubt of the crime
charged and sentenced each of them to life imprisonment and to pay a fine of P30,000.
In their appeal to this Court, Rosales and Enriquez have filed separate briefs.
Appellant Enriquez insists on his innocence and faults the trial court for giving too much credence to the testimony of Sgt. Cerrillo and Pat. Maramot who, Enriquez
asserts, have merely framed them up for selfish motives. He theorizes that it would seem incredible for either Pat. Maramot or Sgt. Cerrillo to have left and abandoned
Station No. 2 considering that the Station Commander and his men have all been posted in the then on-going rally at the U.S. Embassy. He downgrades the prosecutions
asseveration that Pat. Maramot, being unarmed, could not effect his immediate arrest, and that Sgt. Cerrillo has so used his personal funds as marked money. Enriquez also
questions the six-day delay in the filing of the information.
The Court is scarcely impressed.
Simply said, appellant Enriquez would assail the credibility of the two prosecution witnesses. Almost always, the evaluation made by the trial court on the credibility
of witnesses is viewed with respect. The trial judge, who has the distinct advantage of being able to observe closely the demeanor and deportment of witnesses on the stand
as well as the manner in which they testify, undoubtedly can better determine than anyone else if such witnesses are telling or are not telling the truth. He is in an ideal
position to weigh conflicting testimonies and unless, as so repeatedly said, he has obviously discarded or missed certain facts of substance and significance that, otherwise,
would have altered his judgment, an assessment on credibility made by him should indeed deserve approbation by an appellate court.[28]
The Court, in the case at bench, has scrutinized the records, and it finds no justification for holding differently from the findings made by the trial court.
In drug related cases, particularly in a buy-bust operation, the contention that the accused has merely been framed up by law enforcement personnel for selfish motives
is quite often raised by the defense. For this claim to prosper, the evidence adduced must be clear and convincing [29] in order to overcome the presumption that government
officials have performed their duties in a regular and proper manner. [30] Appellant, regrettably, has miserably failed to substantiate his allegations in this respect.
Enriquez questions the six-day delay in the filing of the information against him which he attributes to an extortion attempt made on him. Like an alleged frame-up, a
supposed extortion by police officers has, too, been a standard defense in drug cases. Appellants failure to offer evidence, independently of his bare claim of extortion,
suggests that this defense could either be a fabrication or an afterthought. If, truly, the arresting police officers have tried to extort money from him, it should have behooved
Enriquez to come forward with the proper charges against the erring police officers. [31] No criminal or administrative charges appear to have been filed by him. It is equally
strange that the supposed extortions neither appeared in appellant's counter-affidavit[32] nor in his affidavit[33] both prepared by his counsel of choice. In any event, the Court
does not see any real undue delay on the part of the police. The station commander filed the case with the prosecutor on 07 June 1990, the same day that the NBI forensic
chemists official report was released. The transmittal letter,[34] of the station commander, bears the recommendation, likewise dated 07 June 1990, of the inquest fiscal finding
a violation of Section 4, Article II, of R.A. No. 6425.
Appellant Enriquez surmised that it was strange for Sgt. Cerrillo and Pat. Maramot to have left the police station unmanned just to conduct a buy-bust operation. Sgt.
Cerrillo explained that, being the Intelligence Officer in Station No. 2, he would spend most of his duty hours in the field. [35] He chose Pat. Maramot to be the poseur-buyer
because she was not well known in the place of operation. While she had a desk job she could also be assigned elsewhere when the situation would demand. Furthermore,
the buy-bust operation was conducted in an area not far from the police station (testified to be at an approximate distance of between the Manila City Hall and the Luneta
Park[36]).
On cross-examination, Pat. Maramot explained why she could not arrest Enriquez when he received the money. She testified:
ATTY. ESMERO:
"During the time that you were in that room together with Enriquez and you said that Enriquez took up a half sack of marijuana under the table,
did it not occur to your mind to arrest him immediately during that time and introduced yourself as a policewoman together with your husband?
"WITNESS:
"If you will place yourself in my situation, I am so small to arrest a person and I am not so big so I have to wait for my companions, sir.
"INTERPRETER:
"Witness pointed to the Accused.
"ATTY. ESMERO:
"How about your supposed husband?
"WITNESS:
"Besides we did not bring anything even a gun because they are outside, sir.

"ATTY. ESMERO:
"You could have immediately went (sic) out of the door and after that contacted Cerrillo. You could have told him immediately because he was
about seven (7) meters from that room?
"WITNESS:
"The door was locked, sir.
"ATTY. ESMERO:
"You could have knocked at the door if you want to call him?
"WITNESS:
"It could not be heard because in that alley there were adjacent rooms, sir, `kuwarto-kuwarto.'
"ATTY. ESMERO:
"Now, you said that you went out through the back door. Who was together with you when you went out at the back door?
"WITNESS:
"Joseph, the one who pretended to be my husband, sir.
"ATTY. ESMERO:
"How about Rosales?
"WITNESS:
"He passed through the front door together with the informant, sir.
"ATTY. ESMERO:
"And the front door was where Pat. Cerrillo was positioned?
"WITNESS:
"No, sir. Cerillo was positioned at the side. He could not meet them immediately because when you go out at that door, it is already a street.[37]
The use of Sgt. Cerrillos own money in the buy-bust operation could be expected. Police Station No. 2 was not logistically funded.[38] In the buy-bust operation, only
three 100-peso bills of the marked money were recovered which, unfortunately, were lost to thieves when Sgt. Cerrillo had momentarily parked his jeep within the vicinity of
the police station on 11 July 1990.[39] He reported this loss along with the loss of an ammunition belt pack with six (6) live cal. .38 bullets and his Parker ballpen. [40] At any rate,
the non-presentation of the buy-bust money could not adversely affect the case against appellants.[41]
Alibi is definitely a weak defense although it may occasionally prove to be a good plea. In order to be effective, however, this defense requires proof that it would be
physically impossible for the accused to be at the locus criminis at the time of the commission of the crime. Where there is even the least chance for the accused to be present at
the crime scene, the alibi seldom will hold water.[42] Most significantly, the defense of alibi crumbles in the face of a positive identification of the malefactor. [43]
In his case, appellant Rosales argues that to sustain a conviction for the crime of selling marijuana, the sale must be clearly established which, he asserts, the
prosecution has failed to do.
The Court cannot sustain the argument.
Under Section 4, Article II, of R.A. No. 6425, [44] as amended, the law penalizes not only the sale but also the delivery of prohibited drugs.
Section 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty of life imprisonment to death and a fine ranging from twenty
thousand to thirty thousand pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in
transit or transport any prohibited drug, or shall act as a broker in any of such transactions. If the victim of the offense is a minor, or should a prohibited drug involved in any offense
under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed. (Italics supplied.)
Selling is only one of the acts covered by the statutory provision. The law defines the word deliver as a persons act of knowingly passing a dangerous drug to
another personally or otherwise, and by any manner with or without consideration. Delivery, although not incidental to a sale, is a punishable act by itself; while sale
may involve money or any other material consideration, [45] delivery may be with or without consideration.
Appellant Rosales contends that while criminal intent need not generally be proved in crimes that are mala prohibita, knowledge that the sack in his possession
contained a prohibited drug must nevertheless be established. Indeed, Section 2(f) of the Dangerous Drugs Law requires that a person who delivers a prohibited drug must
knowingly pass such contraband to another person. Thus, in one case, the Court has said:
x x x. While it is true that the non-revelation of the identity of an informer is a standard practice in drug cases, such is inapplicable in the case at bar as the circumstances are
different. The would-be buyers testimony was absolutely necessary because it could have helped the trial court in determining whether or not the accused-appellant
had knowledge that the bag contained marijuana, such knowledge being an essential ingredient of the offense for which he was convicted. The testimony of the poseur-buyer
(not as an informer but as a `buyer) as to the alleged agreement to sell therefore became indispensable to arrive at a just and proper disposition of this case.[46]
In this case, the trouble appears to be that appellant Rosales incorrectly assumes to be, or gives an impression of being, unaware of the prohibited drug involved in the
questioned transaction with appellant Enriquez; in point of fact, however, it is sufficiently shown that Rosales has known all along that the deal between Enriquez and the
poseur-buyers had only to do with marijuana.

Appellant Rosales believes that his act of carrying the sack of marijuana is a mere attempt to deliver the prohibited drug. In other words, the sack being still within his
control, he could, he states, have easily refused to deliver the item to the poseur-buyer. Here, he seeks to capitalize on his being supposedly still in the subjective phase of the
crime. Appellant Rosales thus submits that, if found guilty, he should only be held accountable for attempted delivery of a prohibited drug.
Article 6 of the Revised Penal Code provides:
"ART. 6. Consummated, frustrated, and attempted felonies. - Consummated felonies, as well as those which are frustrated and attempted, are punishable.
"A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.
"There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his own spontaneous desistance."
The subjective phase in the commission of a felony is that portion of its execution starting from the point where the offender begins by overt acts to pursue the crime until he
is prevented, against his will, by some outside cause from performing all of the acts which would produce the offense. If the subjective phase has not yet passed, then the
crime is only attempted. If that phase has been done but the felony is not produced, the crime is frustrated. [47] The crime is consummated if, following the subjective phase, the
last of the elements of the felony meets to concur. These rules are inapplicable to offenses governed by special laws.[48]
Unfortunately for appellant, the crime with which he is being charged is penalized by a special law. The incomplete delivery claimed by appellant Rosales, granting
that it is true, is thus inconsequential. The act of conveying prohibited drugs to an unknown destination has been held to be punishable, [49] and it is immaterial whether or not
the place of destination of the prohibited drug is reached. [50]
In sum, the facts proven beyond reasonable doubt in this case were that: (a) Two police officers, one of them a woman, conceived of and executed a buy-bust operation;
(b) the operation led to the red-handed apprehension of appellant Rosales just as he delivered the illegal drug; and (c) appellant Enriquez who had peddled the same to the
poseur-buyer was himself later arrested shortly thereafter. The sale and delivery of marijuana constituted punishable acts under Section 4, Article II, of R.A. No. 6425, as
amended. Appellants Enriquez and Rosales should bear the consequences of their trifling with the law. The two evidently confederated towards the common purpose of
selling and delivering marijuana. Conspiracy could be inferred from the acts of the accused, whose conduct before, during and after the commission of the crime would show
its existence.[51] It was appellant Rosales who brought the poseur-buyer to appellant Enriquez for the purchase of marijuana. It was upon the instruction of appellant
Enriquez, apparently to retain control of the unpaid portion of the six-kilogram contraband, that appellant Rosales was to carry the sack to the supposed residence of the
poseur-buyers. In conspiracy, the act of one conspirator could be held to be the act of the other.[52]
R.A. No. 7659, amending the Dangerous Drugs Law, now provides that if the quantity of drugs involved in any of the punishable acts is more than any of the amounts
specified in the law, the penalty of reclusion perpetua to death[53] must be imposed. Considering that the marijuana involved here weighed more than 750 grams, the maximum
specified amount for marijuana, appellants, ordinarily, are to be meted that penalty. An amendatory law, however, may only be applied retroactively if it proves to be
beneficial to the appellants. In this case, it would not be that favorable to them; hence, like in People vs. Ballagan,[54] the Court could only impose the penalty of life
imprisonment upon appellants. The penalty of reclusion perpetua would mean that the accused would also have to suffer the accessories carried by that penalty, as well as
the higher fine, provided for by R.A. No. 7659. [55] Appellants must, accordingly, still bear the penalty imposed on them by the trial court.
WHEREFORE, the questioned Decision of 21 January 1991 of the Regional Trial Court of Manila, finding appellants Ernesto Enriquez and Wilfredo Rosales guilty
beyond reasonable doubt of the crime punished by Section 4, Article II, of R.A. No. 6425, as amended, and imposing on them the penalty of life imprisonment and the
payment of the fine of P30,000 is AFFIRMED. Costs against appellants.
SO ORDERED.
EN BANC

[G.R. No. 125017. March 12, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GERARDO BACUNGAY Y CAINDOY, ERIC RICAFRANCO Y MALABANA, CRIS IGLESIA Y OGNALA and
RENATO MENDEZ Y DE LEON, accused-appellants.
DECISION
PER CURIAM:
We view with grave concern the proliferation across the country of criminal syndicates and even loose aggroupments fueling an alarming and unprecedented wave of
kidnappings in recent years. Preying mostly on affluent members of the Filipino-Chinese community, and even on foreign tourists, they rake in millions of pesos in ransom,
virtually transforming kidnapping into a lucrative industry in this part of the world. Despite the determined and intensified efforts of various law enforcement agencies to
dismantle and neutralize these outlaws, their illegal activities continue unabated. By any conceivable legal measure, kidnapping for ransom must be contained and its
perpetrators dealt with with the full force of the law, not only because by its nature it is despicable, but more importantly, for reasons of maintaining public order, safety and
security, so crucial to the social and economic progress of the country. Yet, the enormous burden of repressing this plague is not exclusive to the police and military arms of
the State. It requires likewise a coordinated participation of the courts and an uncompromising cooperation of the elements of civil society.
The Decision of the Regional Trial Court of Makati City in Crim. Cases Nos. 95-786, 95-787 and 95-788 finding accused-appellants GERARDO BACUNGAY, ERIC
RICAFRANCO, CRIS IGLESIA and RENATO MENDEZ guilty of three (3) counts of kidnapping for ransom and imposing upon them the penalty of death for each count[1] is
before us on automatic review.
The inculpatory evidence against the four (4) accused-appellants shows that at around 8:00 oclock in the evening of 12 March 1995 Ivonne Keh [2] was driving her car
along Galaxy Street, Bel-Air Subdivision, Makati City, with her mother Chinya Hwang who was seated beside her and uncle Alberto Drit Chua who was at the back seat. All

of a sudden a red car overtook them and blocked their path, forcing Ivonne Keh to stop. Three (3) armed men two (2) of whom were later identified as accused-appellants
Gerardo Bacungay and Eric Ricafranco, while the third remained unknown -alighted from the red car and started banging the windows of the car of Ivonne Keh, ordering her
to unlock the doors. Ivonne Keh who was now gripped with fear yielded. One of the men dragged her out of the car and shoved her to the back seat. Eric Ricafranco and his
unidentified companion then squeezed themselves at the back seat together with the victims while Gerardo Bacungay took the drivers seat and drove the car out of Bel-Air
Subdivision, followed by the red car.
The victims were ordered to close their eyes as they were divested of their money, jewelry and other personal belongings. But Ivonne Keh would occasionally peek to
find out where they were being taken and noticed that they were somewhere in Pasay City, later on, in Bicutan, Taguig. Before long, the cars stopped at a vacant lot in an
unknown location. This time all three (3) victims were blindfolded and Alberto Drit Chua was taken out of the car and commanded to make a phone call to his family to
produce P5,000,000.00 for their release.[3] It was already daybreak when accused-appellants and the victims left the place. Later, they momentarily stopped at an
undetermined gasoline station where Ivonne Keh was separated from her mother and uncle, and then proceeded on their way.
After a long drive, Ivonne Keh sensed that they entered an apartelle where she was reunited with her mother and uncle in one of the rooms.[4] The victims later found
out that they were somewhere in Tagaytay. Thereafter, their abductors conferred and deliberated on who should go to Manila to get the money and who should stay.
Apparently, it was agreed upon that accused-appellant Eric Ricafranco would stay and guard Ivonne Keh, while the rest of accused-appellants would go to Manila with
Ivonne Kehs mother and uncle to withdraw money from a bank. [5]
As soon as the group left, Ivonne Keh pleaded to Eric Ricafranco to allow her to use the telephone. Eric initially refused but, after repeated entreaties, finally acceded
and accompanied Ivonne Keh to the telephone outside the room. [6] The victim then immediately called a friend, conversed with her in Chinese, and informed her of the
situation and her whereabouts.
Meanwhile, the abduction was reported to the Philippine National Police. At about 7:00 oclock in the morning of 13 March 1995 Police Inspector Rolando Bijasa of
Camp Gen. Ricardo Papa, Bicutan, Taguig, Metro Manila, received orders from then Police Chief Superintendent Jewel Canson to conduct a search and rescue operation.
Two (2) teams were organized and deployed to Tagaytay City, the last known whereabout of victim Ivonne Keh. The police operatives scoured the vicinity and
eventually tracked down the victim inside the apartelle. They stormed the room where the victim was detained and rescued her from one of her abductors, Eric Ricafranco,
who was then apprehended while watching television. When subjected to a tactical interrogation, he disclosed to the police th at his co-accused Gerardo Bacungay would be
back at the apartelle as soon as he secured the ransom. [7]
Consequently, the police rescue teams set up a dragnet for the returning kidnappers. At about 6:30 in the evening police spotters positioned outside the building
radioed the rescue teams inside about two (2) men on board a white car, later identified as accused-appellants Cris Iglesia and Renato Mendez, entering the apartelle
compound. The two (2) men went to the front desk of the hotel and, after inquiring from the attendant, proceeded to the room of Ivonne Keh and Eric Ricafranco. The waiting
policemen immediately nabbed the two (2) as soon as they entered the room. Cris Iglesia and Renato Mendez vehemently denied any knowledge of the kidnapping, claiming
that they were simply hired by Bacungay to pick-up an eloping couple in Tagaytay City who turned out to be kidnap victim Ivonne Keh and Eric Ricafranco who was
guarding her.
Gerardo Bacungay was apprehended when another police team headed by a certain Capt. Agbayalde arrived at his place in Better Living, Paraaque, Me tro Manila,
and effected his arrest.[8] The third member of the kidnap group eluded arrest and remained at large to date. No evidence exists on record as to how the other victims, Chinya
Hwang and Alberto Drit Chua, were rescued or whether ransom had in fact been paid, since after the incident these two (2) victims hurriedly left the country and decided to
settle in Canada, and thus failed to testify during the trial.
Accused-appellants were charged with kidnapping for the purpose of extorting ransom under three (3) separate Informations. They pleaded innocent to the charges.
Gerardo Bacungay and Eric Ricafranco proffered a general denial; while Cris Iglesia and Renato Mendez banked heavily on the lack of positive identification by complaining
witness Ivonne Keh. As earlier stated, the trial court convicted accused-appellants as charged, and sentenced all of them to death. In rejecting their defenses, the trial court
held in the main The Court rejects the defense of accused Renato Mendez and Cris Iglesia as ridiculous and without factual basis. In the first place, there was no couple that eloped. Ivonne
Keh did not elope with Eric Ricafranco. The latter was arrested in a room of an apartelle in Tagaytay City guarding Ivonne Keh. Besides, common sense will tell us that
relatives of an eloping couple will not hire any person to fetch them specially when they were not known to the couple. On the other hand, the evidence clearly shows that
kidnap victims Ivonne Keh, Alberto Chua and Chinya Hwang pointed to the accused during the police investigation and by Ivonne Keh during the hearing as one among
those who kidnapped them.[9]
Accused Eric Ricafranco was also positively identified by kidnap victims Ivonne Keh during the trial and by Alberto Chua and Chinya Hwang during the police identification
line-up as among those who kidnapped them x x x x Finally, accused Gerardo Bacungay was also positively identified by the victims Ivonne Keh, Chinya Hwang and Alberto
Chua during the police identification line-up at the police station and by Ivonne Keh during the trial as one of those who kidnapped them x x x x From the recitation of
findings of facts of the Court, there is sufficient evidence on record to prove that the purpose of kidnapping was for extorting ransom from the victims. [10]
In the present recourse, accused-appellants insist on the reversal of the judgment of conviction and impute the following errors to the court below: (a) The trial court
erred in convicting accused-appellants Gerardo Bacungay and Eric Ricafranco on the basis of the doubtful identification by complainant Ivonne Keh, who was blindfolded at
the time of the purported kidnapping, and given the poor lighting condition of the area where she was allegedly abducted; and, (b) The trial court erred in convicting Cris
Iglesia and Renato Mendez in the absence of a real and direct evidence linking them to the kidnapping.
After a careful review of the records and the arguments of the prosecution and defense, we are satisfied with the finding of the court a quo that all four (4) accusedappellants are indeed guilty of the crimes charged for which they must be punished accordingly.
We deal first with the merits of the appeal of Gerardo Bacungay and Eric Ricafranco.
Complaining witness Ivonne Keh positively identified accused-appellants Gerardo Bacungay and Eric Ricafranco as two (2) of those who abducted them on 12 March
1995. In the police line-up conducted during the criminal investigation of the case, and more significantly during the trial, she pointed to accused-appellants Bacungay and
Ricafranco as part of the group of men who kidnapped them, thus ATTY. FERNANDEZ: Now you stated that three (3) persons approached you from the car that blocked yours, could you remember the faces of those three (3) persons
who drove the car?
WITNESS: Yes, two of them are here, sir.
COURT:

(To the witness) And?

WITNESS: The third one is not here.

COURT:

You said that two (2) of them are here?

WITNESS: Yes and the other one is not here, your Honor.
COURT:

Yes, is not here because he was able to escape. Can you point out who are those two, who among the three (3) blocked your way?

WITNESS: Yes your Honor, there.

COURT:

(To the accused) What is your name?

WITNESS: Eric Ricafranco, your Honor.

COURT:

And the other one?

ATTY. FERNANDEZ: (Butted in to the witness) You said two, how about the other one? x x x x[11]
COURT:
(To the witness) The whole duration, that is what you mean. The whole duration that you were brought and held in that apartelle, can you identify the
people who were there?
WITNESS: Yes, sir.
COURT:

Who are they?

WITNESS: Him and him and the other one is not here, your Honor.
COURT:

(To both accused) Your name?

ACCUSED: Eric Ricafranco, sir.

COURT:

How about you?

ACCUSED: Gerardo Bacungay, sir x x x x[12]

In the face of the positive identification by the complaining witness, accused-appellants denial vanishes into thin air. Indeed, denial, like alibi, is an insipid and weak
defense, being easy to fabricate and difficult to disprove. A positive identification of the accused, when categorical, consistent and straightforward, and without any showing
of ill motive on the part of the eyewitness testifying on the matter, prevails over this defense. When there is no evidence to show any dubious reason or improper motive why
a prosecution witness would testify falsely against an accused or falsely implicate him in a heinous crime, the testimony is worthy of full faith and credit.[13]
Accused-appellants made much of the following testimony on cross-examination of complaining witness Ivonne Keh:
ATTY. ELEVASO: Ms. Witness will you tell this Honorable Court again at what time were you blocked by the kidnappers?
WITNESS: At 8:00 oclock, sir.
Q:

In the evening?

A:

Yes, in the evening, sir x x x x

Q:

And how would you say was the lighting at the place?

A:

It was dark, sir.

Q:

And these three (3) persons who came banging at the window of your car and then you said later that one of them sat at the drivers seat and two (2) of them sat
beside you and your uncle?

A:

Two of them sat at the back with us, sir.

Q:

Yes, one of them was beside your uncle and one was beside you, could you tell this Honorable Court who was driving the car?

A:

He, sir.

COURT:

Witness pointing to accused Gerry Bacungay.

Q:

And who was seated beside your uncle?

A:

There, sir.

COURT:

Witness pointing to accused Eric Ricafranco. [14]

Q:

This skin mask, how was it placed over the head of the driver?

A:

I was shocked, sir. I did not notice that anymore, I did not mind it, sir.

Q:

So you did not notice what was he wearing?

A:

No, sir.

Q:

How about the other one seated beside you, what was he wearing at that time?

A:

They were normal, what color, I do not remember.

Q:

How about the other person?

A:

I do not remember, sir. It was really dark inside the car.

Q:

And when you arrived at the... You said you were taken to a village area and at that place, were you able to see the person inside the car?

A:

No, sir it was dark and I couldnt see their faces.

Q:

When you were at that dark area you said you were blindfolded?

A:

Yes, correct x x x x

Q:

You stated repeatedly that the place was dark and that you were blindfolded, could you tell this court why were you able to identify the four (4) accused here?

A:

Because my blindfold was really lose, I saw Eric.

Q:

How about the others?

A:

I also saw them when I went to the apartelle, Gerardo Bacungay.

COURT:
A:

Are you referring to him?

Yes, sir. I was still blindfolded at that time (underscoring supplied).[15]

Accused-appellants postulated that the darkness of the place where the victims were intercepted and kidnapped, coupled by the fact that the victims were blindfolded,
rendered their identification of accused-appellants open to serious doubt.
We are not persuaded. It must be stressed that those conditions did not perdure throughout the duration of the victims captivity as to effectively render impossible the
positive identification of accused-appellants. The records bear out that: (a) The victims were transported by accused-appellants from one place to another, and in such
instance the lighting condition on the road inevitably improved as to permit the victims to see the faces of their kidnappers; (b) The victims, moreover, were not blindfolded at
the time they were spirited out of Bel-Air Village, Makati City, as they were merely instructed to close their eyes. [16] In fact, Ivonne Keh was even able to determine, by
occasionally opening her eyes, the directions they were heading to - Pasay City and Bicutan. It was only when they finally stopped at an undetermined vacant lot that
accused-appellants placed the blindfolds on them; [17] and, (c) Ivonne Keh was locked for several hours in one of the rooms of an apartelle in Tagaytay City with Eric
Ricafranco, during which time she undoubtedly had a clear picture of accused-appellants face.
Certainly, the identification of accused-appellants by Ivonne Keh, who had ample opportunity to see and imprint their faces in her memory, more than satisfies the
judicial mind and conscience. In People v. Candelario[18] we ruled that it is the most natural reaction for victims of crimes to strive to remember the faces of their assailants and
the manner in which they committed the crime. Hence, there is no reason for us to disbelieve her testimony or to suspect her motives.
As in all criminal prosecutions where conviction or acquittal depends almost entirely on the victims positive identification of the culprits, the arguments presented by
accused-appellants in their individual appeal briefs go into the credibility of the complaining witness.[19] As we have held in a legion of cases, the assessment by the trial court
of the witness credibility is accorded the highest degree of respect from the appellate courts which do not deal with live witnesses but rely solely on the cold pages of a
written record.[20] We do not have the least doubt that the court a quo in the instant case prudently fulfilled its obligation as a factual assessor and legal adjudicator.
Article 267 of The Revised Penal Code, as amended by RA 7659, defines the crime of kidnapping thus Art. 267. Kidnapping and serious illegal detention. - Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the
penalty of reclusion perpetua to death;
1.

If the kidnapping or detention shall have lasted more than three days.

2.

If it shall have been committed simulating public authority.

3.

If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made.

4.

If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the
circumstances abovementioned were present in the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed (Sec. 8,
RA 7659).
The essence of the crime is the actual deprivation of the victims liberty coupled with an indubitable proof of intent of the accused to effect the same. In the instant case,
there is no mistaking the clear, overwhelming evidence that accused-appellants Gerardo Bacungay and Eric Ricafranco abducted Ivonne Keh and the other victims at
gunpoint and deprived them of their freedom. They were blindfolded to prevent them from knowing the place where they were transported and, in order to prevent Ivonne
Keh from escaping, she was assigned an armed guard inside the room of the apartelle where she was detained. All these facts more than satisfy the elements necessary to
constitute kidnapping.
We likewise find abundant evidence that the kidnapping was committed for the purpose of extorting ransom from the victims, as to warrant the mandatory
imposition of the death penalty. Complaining witness Ivonne Keh testified WITNESS: I stayed in the car, he took my uncle in and I and my Mom were left in the car. They ordered my uncle to call and send money.
ASST. PROSECUTOR DE JOYA: Why were they asking money?
WITNESS: They were asking for 5 Million, sir.
ASST. PROSECUTOR DE JOYA: For what?
WITNESS: That is for our release, sir x x x x[21]
ATTY. ELEVASO: When you said they were asking for ransom, how did you know that they were asking for ransom?

WITNESS: They were asking only money to (sic) us, sir.

ATTY. ELEVASO: From whom?
WITNESS: From my mom, sir.[22]
Prosecution witness P/Supt. Arthur Castillo, one of the arresting officers, confirmed that accused-appellants demanded ransom from the victims ATTY. FERNANDEZ: And you also asked Eric Ricafranco about his companion?
WITNESS: Well, he confirmed what Ivonne told us. That Gerry (Bacungay) brought them there and the instruction was just to wait because they were coming back as
soon as they got the ransom money (underscoring supplied).[23]
It is immaterial that no direct evidence exists on record on the actual payment of the ransom money. After all, actual payment of ransom is not necessary for the crime
to be committed, it being enough that there be at least an overt act of demanding ransom from the victim or any other person as in this case.[24] Our pronouncement in People v.
Salimbago[25] is relevant Neither actual demand for nor actual payment of ransom is necessary for the crime to be committed. It is enough if the crime was committed for the purpose of extorting
ransom. Considering therefore that the kidnapping was committed for such purpose, it is not necessary that one or any of the four circumstances be present x x x x
As regards the appeal of accused-appellants Cris Iglesia and Renato Mendez, the Solicitor General suggests that they be acquitted on the ground that there is no clearcut evidence on how they became part of the criminal conspiracy. Evidently, the Solicitor General believed accused-appellants story that they had no knowledge of the
kidnapping of the victims, and they merely went to Tagaytay City on an errand, for a fee, from Gerardo Bacungay purportedly to pick up a couple who eloped, and bring
them back to Bicutan In this case, appellants Cris Iglesia and Gerardo Bacungay, due to sheer promise of money in the amount of P1,000.00 once they fetch two (2) lovers in Tagaytay City, proved
themselves to be at the wrong place and at the wrong time x x x x it would appear nonetheless that it is appellant Cris Iglesia and Renato De Leons (sic) incidental
acquaintance to appellant Gerardo Bacungay that plunged them deeper into the assumed conspiracy. What initially appeared to them as an errand for a fee was intertwined
to a conspiracy which they immediately denied any knowledge of. An assumed intimacy, or in this case, acquaintance, however, has no legal bearing to the charge of
conspiracy as conspiracy transcends companionship.
In this case, however, there is a gnawing dearth of evidence that should satisfactorily show that appellants Cris Iglesia and Renato De Leon (Mendez?) agreed to the
kidnapping scheme. Without evidence as to how appellants Cris Iglesia and Renato Mendez participated in its perpetration, conspiracy cannot be, appreciated against them.
Evidence of intentional participation is indispensable, as appellants mere presence at the scene of the crime cannot be considered as proof of conspiracy.[26]
We disagree with the conclusions of the Solicitor General. Indeed, it is difficult to accept accused-appellants feeble and anemic excuse that they had nothing to do with
the kidnapping of Ivonne Keh, her mother Chinya Hwang and uncle Alberto Drit Chua. As observed by the trial court to which we agree, common sense will tell us that
relatives of an eloping couple will not hire any person to fetch them especially when they were not known to the couple.[27] Moreover, it is inconceivable that members of a
kidnapping syndicate would entrust the performance of an essential and sensitive phase of their well-planned criminal scheme to people not in cahoots with them, and who
had no knowledge whatsoever of the details of their nefarious plan. Obviously, Cris Iglesia and Renato Mendez mission in going to Tagaytay City was not as innocent as
they claimed it to be; instead, it was part and parcel of the elaborate plot to kidnap the victims and extort ransom from them. In fact, they virtually admitted their participation
in the crime, i.e., to fetch Ivonne from her place of detention in Tagaytay City and transfer her to another place in Bicutan, although they were dissociating themselves
therefrom by proclaiming lack of knowledge of the criminal design. It would therefore be putting too much strain on the imagination that they were not privy to the plot of
Gerardo Bacungay and Eric Ricafranco and that they did not participate in carrying out the criminal conspiracy.
Undoubtedly, conspiracy exists among accused-appellants in perpetrating the kidnapping for ransom. Their individual participation, viewed in its totality, points to a
joint purpose and criminal design. Thus, Gerardo Bacungay and Eric Ricafranco snatched the victims from Bel-Air Village, Makati, Metro Manila, and transported and
detained them in an apartelle in Tagaytay City; Eric Ricafranco guarded Ivonne Keh to prevent her from escaping, while Gerardo Bacungay and his unidentified companion
were busy securing the ransom money in Manila; and, Cris Iglesia and Renato Mendez were designated to pick up Ivonne Keh in Tagaytay City and transfer her to Bicutan to
avoid early detection until the payment of ransom money and her eventual release. These acts were complementary to one another and geared toward the attainment of a
common ultimate objective: to extort a ransom of P5 million in exchange for the victims freedom.
There is conspiracy when two (2) or more persons come to an agreement concerning the commission of a felony and decide to commit it. Proof of agreement to commit
a felony, in view of the secrecy by which it is usually hatched, need not rest on direct evidence as the agreement itself may be inferred from the conduct of the accused,
disclosing a common understanding among them with respect to the commission of the offense. Thus, if it is proved that two (2) or more persons aimed their acts toward the
accomplishment of the same unlawful object, each doing a part so that their acts, though apparently independent, were in fact connected and cooperative, indicating closeness
of personal association and a concurrence of sentiment, then conspiracy may be inferred though no actual meeting among them to concert means is proved. [28] Consequently,
in the instant case, accused-appellants Cris Iglesia and Renato Mendez are equally liable for the crime and they should not be allowed to escape the full force of the rule that
in a conspiracy the act of one is the act of all.
Finally, in what perhaps is his final bid at exoneration, accused-appellant Renato Mendez enumerated in his brief his alleged numerous religious activities and
accomplishments, suggesting thereby that he was not capable of committing the crime imputed to him. However, the fact that accused-appellant is endowed with sterling
qualities hardly justifies the conclusion that he is innocent of the charges against him or that he is incapable of committing them. Manifestations of devotion or piety
supposedly equated with religious fervor are not always emblems of good conduct and do not guarantee that an accused cannot commit a crime. An accused is not entitled to
an acquittal simply because of his previous, or even present, good moral character and exemplary conduct. The affirmance or reversal of his conviction must be resolved on
the basic issue of whether his guilt has been proved beyond any peradventure of doubt.
WHEREFORE, the Decision of the court a quo finding accused-appellants GERARDO BACUNGAY Y CAINDOY, ERIC RICAFRANCO Y MALABANA, CRIS IGLESIA
Y OGNALA and RENATO MENDEZ Y DE LEON guilty beyond reasonable doubt of kidnapping for ransom defined and penalized under Art. 267 of The Revised Penal
Code, as amended by RA 7659, and imposing upon each of them the supreme penalty of death, is AFFIRMED.
Three (3) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling
of the majority that the law is constitutional and the death penalty can lawfully be imposed in the instant case.
Upon finality of this Decision and pursuant to Art. 83 of The Revised Penal Code as amended by Sec. 25 of RA 7659, let the records of this case be forthwith forwarded to
Her Excellency, the President of the Philippines, for the possible exercise of her pardoning power.
SO ORDERED.

THIRD DIVISION

[G.R. Nos. 147814-15. September 16, 2003]

RAUL ZAPATOS Y LEGASPI, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION
SANDOVAL-GUTIERREZ, J.:
Since the olden times, no impulse has been proven so powerful than that of self-preservation. Thus, the law, out of tenderness for humanity, permits the taking of life
of another in defense of ones person in times of necessity. In the words of the Romans of ancient history: Quod quisque ob tutelam corporis sui fecerit, jure suo fecisse
existimetur.[1]
Assailed in this petition for review on certiorari is the Decision[2] dated March 27, 2001 of the Sandiganbayan in Criminal Cases Nos. 17015 and 17016 finding Raul
Zapatos, petitioner herein, guilty beyond reasonable doubt of the crimes of murder and frustrated murder and sentencing him as follows:
WHEREFORE, under Criminal Case No. 17015, the accused RAUL ZAPATOS, is hereby found GUILTY beyond reasonable doubt of the crime of MURDER, defined and
penalized under Article 248, Revised Penal Code and, considering the presence of one (1) mitigating circumstance with no generic aggravating circumstance, he is hereby
sentenced to suffer the penalty of imprisonment of RECLUSION PERPETUA and to indemnify the heirs of the late Mayor Leonardo Cortez in the amount of P50,000.00;
Under Criminal Case No. 17016, the same accused, RAUL ZAPATOS, is hereby found GUILTY beyond reasonable doubt of the crime of FRUSTRATED MURDER, defined
and penalized under Article 248 in relation to Article 6 of the Revised Penal Code, and, considering the presence of one (1) ordinary mitigating circumstance of voluntary
surrender which is not offset by any generic aggravating circumstance, applying the Indeterminate Sentence Law he is hereby sentenced to suffer the penalty of from Six (6)
Years and One (1) day of prision mayor, as minimum to Twelve (12) Years and One (1) day to Fourteen (14) years and Eight (8) Months of reclusion temporal, as maximum,
and to indemnify SOCRATES PLATERO in the amount of P25,000.00 by way of civil indemnity.
The accused shall pay the costs.
SO ORDERED. (Emphases supplied)
In two separate Informations, Special Prosecution Officer Gualberto J. Dela Llana charged both petitioner and Victoriano Vidal[3] with murder and frustrated murder,
committed as follows:
Criminal Case No. 17015 (Murder)
That on or about January 14, 1990, at Bayugan, Agusan del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, both public
officers, being then an employee and Community Environment Natural Resources Officer, respectively of the Department of Environment and Natural Resources, assigned at
Bayugan, Agusan del Sur, and committing the crime herein charged in relation to their office,with treachery and evident premeditation and with intent to kill and with the
use of firearm, did then and there willfully, unlawfully and feloniously attack and shoot Leonardo Cortez, Municipal Mayor of Bayugan, Agusan del Sur, hitting him at the
vital parts of his body and inflicting upon said Leonardo Cortez mortal wounds which caused his instantaneous death, to the damage and prejudice of the victims heirs.
CONTRARY TO LAW.[4]
Criminal Case No. 17016 (Frustrated Murder)
That on or about January 14, 1990, at Bayugan, Agusan del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, both public
officers, being then an employee and Community Environment Natural Resources Officer, respectively of the Department of Environment and Natural Resources, assigned at
Bayugan, Agusan del Sur and committing the crime herein charged in relation to their office, with intent to kill and with the use of firearm, did then and there willfully,
unlawfully and feloniously attack and shoot one Socrates Platero, hitting him at his left leg and inflicting upon said Socrates Platero mortal wound which could have caused
his death had it not been for the timely medical assistance given him to the damage and prejudice of said victim.
CONTRARY TO LAW.
On arraignment, petitioner pleaded not guilty.[5] Forthwith, trial ensued.[6]
The case for the prosecution is woven basically on the testimony of Socrates Platero as follows: On January 14, 1990, at 8:00 oclock in the evening, witness Platero and
Mayor Leonardo Cortez of Bayugan, Agusan Del Sur were on their way home from Butuan City. [7] En route, the patrol car they were riding ran out of gasoline, prompting
them to stop at the Bureau of Internal Revenue (BIR) Monitoring Station, Barangay Maygatasan, Bayugan. With no gasoline to spare, Station Guard Pfc. Michael Gatillo
accompanied them to the nearby Department of Environment and Natural Resources (DENR) checkpoint. [8] There, they found Pacheco Tan. Pfc. Gatillo approached Tan and
requested for extra gasoline. Suddenly, Tan ran towards the guardhouse. [9]After a few seconds, Platero heard a gunshot originating therefrom. The bullet hit Mayor
Cortez, causing him to collapse to the ground. [10] Thereupon, Platero saw petitioner Raul Zapatos, holding an armalite in a firing position. Platero immediately retaliated and
an exchange of gunfire ensued. During this time, Platero tried to pull Mayor Cortez away from the crossfire. Plateros foot was hit.[11] He did not see who shot him.[12] He
then took cover on the other side of the highway.

Pfc. Gatillo testified that he was the policeman assigned at the BIR Monitoring Station on January 14,1990. [13] At about 8:00 oclock in the evening, he accompanied
Platero and Mayor Cortez to the DENR checkpoint to ask for some gasoline. [14] Upon seeing Tan, he asked him about petitioners whereabouts. Tan replied that petitioner
was sleeping inside the guardhouse.[15] Mayor Cortez also inquired from Tan where petitioner was. Tan merely reiterated his answer.[16] Then Tan walked towards the
guardhouse and in a matter of seconds, he (witness Gatillo) saw petitioner firing his gun at Mayor Cortez. [17] Mayor Cortez fell to the ground with blood oozing from his
mouth.[18] Platero attempted to pull Mayor Cortez but another shot was fired and this time, the Mayor was hit on the leg. While running across the highway to take cover,
Platero was also hit on the leg.[19] When the shooting stopped, he (Gatillo) brought Platero and Mayor Cortez to Bayugan Community Hospital. [20]
Dr. Romeo Cedeo, Chief of the Bayugan Community Hospital, declared that when he attended to Mayor Cortez on January 14, 1990, [21] the latter was already
dead. He did not conduct an autopsy or examine the wounds. He merely conducted a superficial examination which showed that four (4) wounds had been inflicted upon
Mayor Cortez one in the vicinity of the left nipple, one on the right axillary region, one on the right knee, and another on the left iliac region.[22]
Building his case on the justifying circumstance of self-defense, petitioner presented a different version. He testified that he was the Team Leader of the DENR Sentro
Striking Force whose primary duty is to seize illegally-cut forest products.[23] He held office at the DENR checkpoint, Barangay Maygatasan, Bayugan, Agusan del Sur. On
January 14, 1990, at about 7:00 oclock in the evening, he instructed Pacheco Tan, his co-worker, to man the checkpoint as he was sleepy. He also directed Tan to wake him
up should there be any problem.[24] While sleeping, a burst of gunshots awakened him. He saw that the guardhouse was being riddled with bullets, [25] piercing the walls and
hitting some objects inside. Immediately he dropped to the floor and took the armalite rifle from the locker located under his bed. [26] Hiding behind a barricade, he fired at his
attackers. Thereafter, fearing for his life, he broke the flooring of the guardhouse and crawled through the hollow portion underneath to reach its back door.[27] He walked
away until he reached Nilo Libres' house where he stayed overnight. [28] The next day, he heard the news that Mayor Cortez was killed. [29] He immediately surrendered
himself and his armalite rifle to Sgt. Benjamin Amorio of the Philippine Army Brigade, Prosperidad, Agusan del Sur. [30]
Pacheco Tan corroborated petitioners testimony. On the same date and time, petitioner, who was about to sleep, instructed Tan to take the first shift. While petitioner
was sleeping, Pfc. Gatillo, Mayor Cortez and Platero arrived. [31] Pfc. Gatillo approached Tan and inquired where petitioner was. He replied that petitioner was sleeping
inside the guardhouse.[32] Pfc. Gatillo returned to the parked patrol car where Mayor Cortez and Platero were waiting. Tan noticed that there were other policemen within
the vicinity.[33] Then, Mayor Cortez and Platero, each carrying an M-16 rifle, alighted from the vehicle and approached the guardhouse. Again, Mayor Cortez asked Tan
where petitioner was. Again Tan gave him the same answer.[34]Mayor Cortez reacted in disbelief, saying ah. Suddenly, Tan heard a burst of gunshots directed at the
guardhouse. He immediately ducked on the ground and then ran towards the pasilloleading to the back of the guardhouse. [35] Seized by fear, he was not able to wake
petitioner.[36] He ran away and, upon reaching a banana plantation, stayed there until morning. [37] The next day, he went to the Chief of Police of Sibagat, Agusan del
Sur.[38] He was brought to the Bayugan Police Station so that he could give a statement regarding the incident. But he refused to sign the typewritten statement prepared by
the Bayugan Police because it pinpoints to petitioner as the killer of Mayor Cortez. He was against such statement because he did not see petitioner shot Mayor Cortez. [39]
NBI Agent Virgilio Decasa testified that upon inspecting the DENR checkpoint at Maygatasan, Bayugan, he observed that it was riddled with bullets.[40] The locations
of the bullet holes showed that those responsible surrounded the building. [41] From his investigation, it was Mayor Cortez, together with Platero and Pfc. Gatillo, who
approached the DENR checkpoint. They were followed by several policemen who were instructed by Mayor Cortez to prepare for any eventuality.[42] He was not able to
collect the guns and have them tested by the NBIs ballistic technician because the policemen refused to submit themselves to an investigation.[43] He recommended that the
cases filed against petitioner be reviewed and/or investigated to prevent injustice. [44]
Lazarito Estorque recounted that on January 14, 1990, at about 5:30 oclock in the afternoon, he and Mayor Cortez were having a drinking session at the house of
his compadre Bong Kadao. Mayor Cortez, together with his three (3) policemen, left Kadaos house at 7:00 o clock in the evening. [45]
Consequently, two Informations for frustrated murder and murder, docketed as Criminal Cases Nos. 414 and 415, were filed with the Regional Trial Court (RTC),
Branch VII, Bayugan Agusan del Sur. Pursuant to this Courts Resolution dated August 2, 1990, the venue was transferred to the RTC, Branch V, Butuan City where the
cases were docketed as Criminal Cases Nos. 4194 and 4195. Before petitioner could be arraigned, the private prosecutor filed with the RTC a motion to refer the cases to the
Sandiganbayan but it was denied in an Order dated March 11, 1991.[46] Petitioner was then arraigned and pleaded not guilty to both charges.[47]
The private prosecutor filed with this Court a petition for certiorari questioning the order of the RTC, but the same was dis missed.[48] This time, the public prosecutor
filed with the RTC an Omnibus Motion to Dismiss [49] on the ground of lack of jurisdiction. On August 9, 1991, the RTC issued an Omnibus Order [50] granting the motion and
dismissing Criminal Cases Nos. 4194 and 4195. This prompted Special Prosecution Officer Dela Llana to file with the Sandiganbayan the two Informations quoted above.
In this petition, petitioner ascribes to the Sandiganbayan the following errors:
A. THE HONORABLE SANDIGANBAYAN GRAVELY ERRED IN NOT FINDING THAT DOUBLE JEOPARDY HAS ALREADY ATTACHED AND
THAT IT HAD NO JURISDICTION OVER THE CASES;
B. THE HONORABLE SANDIGANBAYAN ERRED IN FINDING THAT PETITIONER IS GUILTY OF THE CRIMES CHARGED DESPITE
OVERWHELMING ABSENCE OF PHYSICAL EVIDENCE TO ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT;
C. THE HONORABLE SANDIGANBAYAN GRAVELY ERRED IN NOT GIVING DUE CREDENCE TO THE FINDINGS OF THE NATIONAL BUREAU
OF INVESTIGATION AS WELL AS THE TESTIMONY OF NBI INVESTIGATING AGENT VIRGILIO M. DECASA;
D. THE HONORABLE SANDIGANBAYAN ERRED IN GIVING FULL FAITH AND CREDENCE TO THE CONTRADICTING TESTIMONIES OF
PROSECUTION WITNESSES SOCRATES PLATERO AND MICHAEL GATILLO;
E. THE HONORABLE SANDIGANBAYAN GRAVELY ERRED IN FINDING THAT THERE EXISTS PROOF BEYOND REASONABLE DOUBT THAT
PETITIONER IS GUILTY OF THE CRIMES CHARGED;
F. GRANTING WITHOUT ADMITTING LIABILITY FOR THE CRIMES CHARGED, THE HONORABLE SANDIGANBAYAN GRAVELY ERRED IN
NOT FINDING THAT PETITIONER ACTED IN SELF-DEFENSE; AND
G. GRANTING WITHOUT ADMITTING GUILT FOR THE CRIMES CHARGED, THE HONORABLE SANDIGANBAYAN GRAVELY ERRED IN
FINDING THE EXISTENCE OF TREACHERY.
The People counters that since petitioner was on a 24-hour duty as Team Leader of the DENR Sentro Striking Force when the crimes took place, it follows that his acts
were committed in relation to his office. Necessarily, the previous dismissal of his cases by the RTC could not result in double jeopardy. [51] The presentation of petitioners
weapon or the autopsy report is immaterial considering that both Pfc. Gatillo and Platero positively identified petitioner as the culprit.[52] Moreover, the inconsistencies in the
testimonies of the prosecution witnesses do not in any manner affect their credibility for they merely involve immaterial matters.[53] Lastly, petitioners plea of self-defense
cannot be sustained because of the absence of all its requisites. [54]

The petition is impressed with merit.

First, we shall resolve the issues of jurisdiction and double jeopardy. Petitioner assails the jurisdiction of the Sandiganbayan over his cases on the ground that the
crimes imputed to him were not committed in relation to his office.
Well-settled is the principle that the jurisdiction of a court to try a criminal case is determined by the law in force at the time of the institution of the action.[55] Here, the
applicable law is Presidential Decree (P.D.) No. 1606, [56] as amended by P.D. No. 1861.[57] Section 4, paragraph (a) thereof provides:
SECTION 4. Jurisdiction. The Sandiganbayan shall exercise:
a)

Exclusive original jurisdiction in all cases involving:

(1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title
VII of the Revised Penal Code;
(2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled
corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a
fine of P6,000.00 x x x. (Emphasis supplied)
In a catena of cases decided under the aegis of P.D. No. 1606, such as Aguinaldo vs. Domagas,[58] Sanchez vs. Demetriou,[59] Natividad vs. Felix,[60] and Republic vs.
Asuncion,[61] we ruled that two requirements must concur under Sec. 4 (a) (2) for an offense to fall under the Sandiganbayan's jurisdiction, namely: (1) the offense committed
by the public officer must be in relation to his office; and (2) the penalty prescribed must be higher than prision correccional or imprisonment for six (6) years, or a fine
of P6,000.00. Obviously, the first requirement is the present cause of discord between petitioner and the People.
An offense is deemed to be committed in relation to the accuseds office when such office is an element of the crime charged or when the offense charged is
intimately connected with the discharge of the official function of the accused. [62] In Cunanan vs. Arceo,[63] we held:
In Sanchez vs. Demetriou [227 SCRA 627 (1993)], the Court elaborated on the scope and reach of the term offense committed in relation to [an accused's] office by referring to
the principle laid down in Montilla vs. Hilario [90 Phil 49 (1951)], and to an exception to that principle which was recognized in People vs. Montejo [108 Phil 613 (1960)]. The
principle set out in Montilla vs. Hilario is that an offense may be considered as committed in relation to the accused's office if the offense cannot exist without the
office such that the office [is] a constituent element of the crime x x x. In People vs. Montejo, the Court, through Chief Justice Concepcion, said that although public
office is not an element of the crime of murder in [the] abstract, the facts in a particular case may show that x x x the offense therein charged is intimately connected with
[the accused's] respective offices and was perpetrated while they were in the performance, though improper or irregular, of their official functions. Indeed, [the accused]
had no personal motive to commit the crime and they would not have committed it had they not held their aforesaid offices. . . .
The Informations filed with the Sandiganbayan allege that petitioner, then a public officer, committed the crimes of murder and frustrated murder in relation to his
office, i.e., as Community Environment and Natural Resources Officer of the DENR. [64] It is apparent from this allegation that the offenses charged are intimately
connected with petitioners office and were perpetrated while he was in the performance of his official functions. In its Resolution[65] dated August 25, 1992, the
Sandiganbayan held that petitioner was on duty during the incident; that the DENR Checkpoint was put up in order to prevent incursions into the forest and wooded
area; and that petitioner, as a guard, was precisely furnished with a firearm in order to resist entry by force or intimidation. Indeed, if petitioner was not on duty at the
DENR checkpoint on January 14, 1990, he would not have had the bloody encounter with Mayor Cortez and his men. [66] Thus, based on the allegations in the Informations,
the Sandiganbayan correctly assumed jurisdiction over the cases.
Significantly, while petitioner had already pleaded not guilty before the RTC, jeopardy did not attach as it did not acquire jurisdiction. There can be no double
jeopardy where the accused entered a plea in court that had no jurisdiction.[67]
We now go to the substantial merits of the case.
After considering the records very closely, we are constrained to reject the evidence for the prosecution. Jurisprudence is settled that whatever is repugnant to the
standards of human knowledge, observation and experience becomes incredible and lies outside judicial cognizance. Consistently, we ruled that evidence, to be believed,
must proceed not only from the mouth of a credible witness but must be credible in itself as to hurdle the test of conformity with the knowledge and common experience of
mankind.[68] Here, the prosecution witnesses, Platero and Pfc. Gatillo, are not credible. Indeed, their testimonies bear the earmarks of falsehood.
First, Plateros tale that Pacheco Tan, who was then on first shift at the DENR checkpoint that day, suddenly ran towards the DENR Checkpoint when Pfc. Gatillo
asked him for some gasoline simply does not make sense. Why would a person run away with fear for such a simple request? Even former Sandiganbayan Justice Regino
Hermosisima, Jr.[69] was mystified by such a reaction, constraining him to delve deeper into the matter, thus:
Q And you want the Court to understand that immediately after Gatillo asked for gasoline, Pacheco Tan ran towards inside the BFD monitoring center?
A

Yes, he ran away, ran inside.

JUSTICE HERMOSISIMA:
Look, a person would not run away in fear without any reason why he did. Tell me now why did Pacheco Tan run away?
A

I do not know.
xxx

xxx

Will you tell me whether Cael or you pointed your guns at Pacheco Tan?

No.

You did not. You cannot tell me why Pacheco Tan ran inside, why was he scared?

I do not know.[70]

xxx

Surely, we cannot accept a story that defies reason and leaves much to the imagination. Plateros failure to lend a touch of realism to his tale leads us to the conclusion
that he was either withholding an incriminating information or was not telling the truth. As it turned out, Tan rushed towards the back of the guardhouse because of the
sudden burst of gunfire directed at that place. In short, he fled for his life.
Second, it is highly doubtful that obtaining some gasoline was the real object of Mayor Cortez, Platero and Pfc. Gatillo in going to the DENR checkpoint. Strangely,
their conduct, upon arriving at that place, showed their concern more on the whereabouts of petitioner than whether there was gasoline to spare. Pfc. Gatillo, testifying
for the prosecution, admitted during cross-examination that he did not hear Mayor Cortez and Platero ask for gasoline. All that he heard was Mayor Cortez inquiry
regarding petitioners whereabouts, thus:
Q You said that Pacheco Tan went inside to get Raul Zapatos, is it not a fact that when Mayor Cortez arrived at the DENR monitoring station, he asked
Pacheco Tan where Raul Zapatos was?
A

Yes, sir.

And precisely Pacheco Tan told Mayor Cortez that Raul Zapatos is inside the room sleeping?

Yes sir.
xxx

xxx

xxx

But you did not hear at any time the conversation between Pacheco Tan and the late Mayor Cortez, with Mayor Cortez asking Pacheco Tan for gasoline,
is that right?

No, more Sir.

And at any time before the shooting incident you did not hear Socrates Platero asking Pacheco Tan for gasoline, is that right?

No, sir.
xxx

xxx

xxx

As a matter of fact, the only thing you heard in reference to the accused Raul Zapatos was that Mayor Cortez was looking for Zapatos because he
wanted to talk with Zapatos, is that right?

Yes, sir.[71]

The above testimony strongly confirms Tans narration that Pfc. Gatillo and Mayor Cortez only asked him where petitioner was. [72] Nothing was ever mentioned
about the gasoline. Notably, Platero, in his Affidavit executed the day after the incident, stated that he and the Mayor went to the DENR checkpoint because Mayor Cortez
wanted to see Raul Zapatos because he is the team leader of the DENR Monitoring Station. Again, the gasoline was not alluded to.
Corollarily, this brings us into a quandary what could have been the reason why Mayor Cortez, Platero and Pfc. Gatillo were looking for petitioner on the night of
January 14, 1990? The records bear out that the relationship between Mayor Cortez and petitioner was not friendly. There were several occasions when their interests clashed
Mayor Cortez, as the owner of a sawmill, and petitioner, as a forest law enforcer. In his Sworn Statement[73] dated March 17, 1990, petitioner declared, among others, that
previously, he apprehended the Mayors men several times for illegally cutting and transporting flitches belonging to the Mayor and his family, thus:
Q

20: After realizing that Mayor CORTEZ was the one who led the attack of the DENR CENTRO Strike Force Headquarters, what could be the reason
why the Mayor and his men attacked your headquarters?

20: I believe that Mayor CORTEZ became angry with me because of the previous apprehensions of illegally cut and transported flitches which
belonged to them, I mean, to that of Mayor CORTEZ family.

21:

21: In one instance, we apprehended a truckload of illegally transported flitches and the document presented showed that they were consigned to the
CORTEZ sawmill in Bayugan, Agusan del Sur.

22:

22: Sometime in September, 1989, when we apprehended a truck load of illegally cut and transported flitches, Mayor CORTEZ requested that the
truck carrying the flitches be turned over to his custody which truck was the regular carrier of flitches consigned to their sawmill. The request was
granted by CENRO VIDAL and the proper documents for the turn over of custody were properly made. After that, during the month of October,
1989, we again apprehended the same truck previously turned over to the custody of Mayor again carrying illegally cut and transported flitches
which I believe angered the Mayor.

Why, did the then Mayor also engaged (sic) in logging?

Are there instances also that the mayor intervened in any way in the apprehensions of these illegally cut and transported logs?

Also, three (3) days before the incident at the CENRO Strike Force Headquarters in Maygatasan, I also had a confrontation with an Army soldier acting as
Security of Mayor CORTEZ, one named DANNY GESTA.
Q

23:

Will you narrate what that confrontation was all about?

23: On January 11, 1990, while I was outside of the DENR CENRO Strike Force Headquarters repairing my motorcycle, a truck loaded with illegally cut
flitches just passed our Headquarters without stopping at our headquarters for inspection so when the truck came back, I stopped the same truck and
called the driver and asked him who is the owner of the flitches. The driver told me that the flitches belonged to DANNY GESTA and when I asked
him where he took the flitches, he told me that he took the flitches to the sawmill of the CORTEZ. When I asked him who escorted it, the driver told
me that it was one named NONO so I told the driver to tell NONO to come to our Headquarters so we could talk. On the following day, when I went
to a shop owned by MAWE RABUYA for consultation of my motorcycle, DANNY GESTA was there. I requested MAWE RABUYA to take a look of my
motorcycle for any defect and it was at this instance that DANNY GESTA approached me and told me and to quote: UNSA MANG KA NGA IMO
MANG KONG IPAREPORT-REPORT SA IMO. WALA MANG GANI MAKAPA-REPORT ANG CORONEL SA AKO. I then told and explained to DANNY
GESTA that it was not him whom I wanted to talk and report to me but NONO. DANNY GESTA suddenly stood up and told me and to
quote: PUTANG INA KA! BUK-ON NAKO NANG ULO NIMO. To avoid further argument, I told MAWE that I better go and I left.

24:

24: Because of what DANNY GESTA told me, I stayed at the Headquarters at Maygatasan, Bayugan until the incident on January 14, 1990 when our
Headquarters was attacked.

What did you do after that confrontation with DANNY GESTA?

Even NBI Agents Atty. Decasa and Ali C. Vargas found that Mayor Cortez had an ulterior motive of revenge against petitioner, thus:
x x x The investigating agents are inclined to believe that the late Mayor Cortez must have some ulterior motive of revenge in going to the headquarters at that late
hour of the night, armed with high-powered guns, together with policemen and bodyguards, and under the influence of liquor, especially so that it is of public
knowledge that he had been harboring hatred towards ZAPATOS who had exhibited antagonism to his illegal activities.[74]
Third, the account of Pfc. Gatillo and Platero that petitioner suddenly came out of the guardhouse and shot Mayor Cortez a matter of seconds after Tan ran towards the
place is incredible.[75]For one, both the prosecution and the defense witnesses testified that petitioner was sleeping inside the guardhouse. For another, Tan did not have
the chance to wake petitioner prior to the shoot-out. The prosecution witnesses admitted this fact.
Even before Tan could enter the guardhouse, he already heard the burst of gunfire coming from outside of the checkpoint, prompting him to immediately run
towards the backside of the guardhouse. Now, to say that petitioner suddenly sprang from his slumber and shot Mayor Cortez without any reason is certainly at odds
with common experience.
Contrary to the findings of the Sandiganbayan, the totality of the contradictions, inconsistencies and flaws in the declarations of Platero and Pfc. Gatillo does not
simply refer to minor or inconsequential details which may be justifiably overlooked, nor are they honest lapses which do not affect or impair the intrinsic value of their
testimony. They relate instead to points material and essential to establish petitioners culpability. The obliquity that pervades the prosecutions account of the incident
creates the impression that it was rehearsed and concocted.
In contrast, the consistent testimonies of the defense witnesses, as well as the existing physical evidence, lend strong support to petitioners plea of self-defense.
It is basic that for self-defense to prosper, the following requisites must concur: (1) there must be unlawful aggression by the victim; (2) that the means employed to
prevent or repel such aggression were reasonable; and (3) that there was lack of sufficient provocation on the part of the person defending himself. [76]
All the aforestated requisites are present in this case. That there was unlawful aggression is clearly shown by the bullet-riddled guardhouse. It speaks eloquently than
a hundred witnesses.[77]We are convinced that Mayor Cortez, Platero and Pfc. Gatillo insisted to know petitioners whereabouts and that upon learning that he was sleeping,
executed the tyrannical attack. That they went to the DENR checkpoint with ready police back-up for any eventuality was proven not only by Pacheco Tan, but also by
Lazarito Estorque and NBI Agent Decasa. Clearly, they proceeded to the checkpoint not on a mission of peace.
Taking into consideration the number of the aggressors, the nature and quality of their weapons, and the manner of the assault and the fact that petitioner was alone,
we believe that petitioners use of an armalite rifle to defend himself is reasonable.
Finally, that there was lack of sufficient provocation on petitioners part is evidenced by the testimonies of the defense witnesses that he was sleeping inside the
guardhouse prior to the initial shooting. Significantly, no evidence whatsoever was presented showing that he assaulted or provoked his aggressors into attacking him.
Petitioners act of surrendering himself and his weapon to the authorities immediately the day after the incident dissipates any conjecture that he had a criminal mind
when he fired his gun upon the victims. His courage to face his accuser, in spite of the opportunity to flee, indicates his innocence.
Thus, while it is true that the "factual findings of the trial court are entitled to great weight and are even conclusive and binding to this Court, this principle does not
apply here. The findings of facts of the Sandiganbayan are not sufficiently established by evidence, leaving serious doubts in our minds regarding the culpability of
petitioner.
In sum, we find that the prosecution failed to prove by evidence beyond reasonable doubt the guilt of herein petitioner for murder and frustrated murder. What is
apparent is that Mayor Cortez and his men were the aggressors. Petitioner, who was just awakened by the gunfire, was justified in firing back at them. His act is in
accordance with mans natural instinct to save his life from impending danger. We cannot expect him to simply retreat or wait for the bullet to hit and kill him.
WHEREFORE, the Decision dated March 27, 2001 of the Sandiganbayan is REVERSED and petitioner is ACQUITTED of the crimes of murder and frustrated murder.
The Director of Prisons is hereby directed to cause the release of petitioner unless the latter is being lawfully held for another crime and to inform this Court
accordingly within ten (10) days from notice.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23734

April 27, 1967

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
TEODORO SABIO, defendant-appellant.
Antonio T. de Jesus for defendant and appellant.
Office of the Solicitor General for plaintiff and appellee.
BENGZON, J.P. J.:
At about six p.m. of April 12, 1963, Teodoro Sabio was squatting with a friend, Irving Jurilla, in the plaza of Central Manapla, Manapla, Negros Occidental. Romeo Bacobo
and two others Ruben Miosa and Leonardo Garcia approached them. All of them were close and old friends.

Romeo Bacobo then asked Sabio where he spent the holy week. At the same time, he gave Sabio a "footkick greeting", touching Sabio's foot with his own left foot. Sabio
thereupon stood up and dealt Romeo Bacobo a fist blow, inflicting upon him a lacerated wound, inch long, at the upper lid of the left eye. It took from 11 to 12 days to heal
and prevented Romeo Bacobo from working during said period as employee of Victorias Milling Co., Inc.
Sabio was thereafter prosecuted for less serious physical injuries. In the municipal court he was found guilty and sentenced to imprisonment of 5 months and 10 days plus
costs. In the Court of First Instance, however, to which he appealed, he was found guilty but with the mitigating circumstance of provocation, so that the penalty imposed was
one (1) month and five (5) days of arresto mayor plus indemnity of P100 and costs.1wph1.t
Defendant appealed from this judgment to Us to raise as a pure question of law the sole issue of whether, under the facts is determined below, a fist blow delivered in
retaliation to a "foot-kick greeting" is an act of self-defense and/or justifying circumstance entitling the accused to acquittal and relief from all liabilities, civil and criminal.
A primordial requisite for self-defense is unlawful aggression (Art. 11, Rev. Penal Code). And for unlawful, aggression to be present, there must be real danger to life or
personal safety (People vs. Beatriz Yuman, 61 Phil. 786). For this reason, a mere push or a shove, not followed by other acts, has been held insufficient to constitute unlawful
aggression (People vs. Yuman, supra). A playful kick the lower court rejected defendant's claim that it was a "vicious kick" at the foot my way of greeting between friends
may be a practical joke, and may even hurt; but it is not a serious or real attack on a person's safety. Appellant's submission that it amounts to unlawful aggression cannot
therefore be sustained. As rightly found by the Court of First Instance, such kick was only a mere slight provocation.
Reference is made to a decision of the Supreme Court of Spain (prom. Jan. 20, 1904, 72 Jur. Crim. 123-125), considering a slap on the face an unlawful aggression. No parity lies
between said case and the present. Since the face represents a person and his dignity, slapping, it is a serious personal attack. It is a physical assault coupled with a willful
disregard, nay, a defiance, of in individual's personality. It may therefore be frequently regarded as placing in real danger a person's dignity, rights and safety. A friendly kick
delivered on a person's foot obviously falls short of such personal aggression.
Wherefore, the judgment appealed from is hereby affirmed in toto. Costs against appellant. So ordered.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-65913 July 28, 1986
RENATO B. TORRES, petitioner,
vs.
THE HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.

FERIA, J.:
This is a petition for review on certiorari of the decision of the Sandiganbayan dated December 12, 1983, convicting petitioner Renato B. Torres of homicide, the dispositive
portion of which reads as follows:
WHEREFORE, accused Patrolman Renato B. Torres y Barcena is hereby found guilty beyond reasonable doubt as principal of the crime of Homicide,
defined and penalized under Article 249 of the Revised Penal Code. Appreciating the mitigating circumstances of voluntary surrender and the victim's
sufficient provocation or threat immediately preceeding the act sued upon and without any aggravating circumstance to offset the same, the penalty
of reclusion temporal prescribed by law is reduced by one degree to prision mayor, pursuant to paragraph 5 of Article 64 of the Revised Penal Code.
Applying the Indeterminate Sentence Law, the said accused is hereby sentenced to suffer an indeterminate penalty, ranging from FOUR (4) YEARS
and TWO (2) MONTHS of prision correccionalas minimum, to EIGHT (8) YEARS and ONE (1) DAY of prision mayor, as maximum; to pay the legal heirs
of the deceased, Danilo Rivera y Pumicpic, the amount of P2,920.00 as actual damages; P24,000.00 for the unrealized net income or lost earning
capacity of said deceased for a period of ten (10) years; and P15,000.00 as indemnity for the death of the latter.
The statement of facts summarized by the Solicitor General in his Comment, which was later considered as his Memorandum, is not disputed by petitioner.
Petitioner Renato Torres became a member of the Metropolitan Police Force, Southern Police District on March 16, 1980. In the afternoon of April 5, 1982, he and another
policeman, Corporal Ruben Onelia, were assigned to direct traffic at the corner of C. Jose Street and Epifanio de los Santos Avenue (EDSA) in Pasay City.
At about 5:30 p.m., petitioner saw the victim Danilo Rivera his motorcycle in a zigzag manner along C. Jose Street and then along EDSA. Shortly after the victim came out of
C. Jose Street, petitioner called his attention and commanded him to pull over to the side. The victim questioned his apprehension. Petitioner approached him and pointed out
that he was driving in a zigzag fashion. He observed that the victim was either drunk or high on drugs because of his red eyes. The victim replied that he was not violating
any traffic regulation. At this juncture, the discussion between the two became more heated. Petitioner required the victim to produce his driver's license. The victim refused
to hand it over. Petitioner threatened to take him to the police station. He went closer to the victim who then dismounted from his motorcycle. Petitioner insisted that the
victim go with him to the police station but the victim refused to budge. When petitioner reiterated his command, the victim retorted that he was delaying him in his work.
Nevertheless, petitioner disregarded his remark and continued trying to force the victim to go with him to the police station.
At this point, the victim defied the petitioner by pulling out from his pants pocket a bladed knife commonly known as "tusok", which is six inches in length, including the
two-inch handle. The victim lunged at petitioner who was two meters away. Petitioner moved back, drew his gun and warned the victim that he will shoot if he (the victim)
attacked again. Petitioner noticed that the victim was not standing steady. When he attempted a second thrust, the victim lost his balance. At that instant, petitioner shot him

at the back. When the victim fell, petitioner immediately hailed a taxi and took the victim to the Pasay City General Hospital. He then left for the police headquarters to
surrender. He placed himself under the custody of Colonel Alfredo Angeles, chief of the Investigation Division. He turned over to him his service revolver and the knife
carried by the victim. In the meantime, the victim died and was duly autopsied by Dr. Renato C. Bautista. He noted the cause of death in his report (Exh. A): Hemorrhage,
profuse, secondary to gunshot wound; Back, left side. After due investigation, petitioner was charged with homicide two days later, or on April 7, 1982 (tsn, pp. 4-7, July 28,
1982; pp. 4-20, 24-29, 31-32; May 9, 1983; pp. 9-10, July 19, 1983; Rec. p. 1).
On April 7, 1982, petitioner was charged with homicide to which he pleaded not guilty. On December 12, 1983, respondent Sandiganbayan convicted petitioner. It ruled that
the shooting and killing of the deceased was not attended by any justifying circumstance; that the true happenings preceding the shooting belie and militate against selfdefense or fulfillment of duty; that at most, petitioner was entitled to the mitigating circumstance of sufficient provocation or threat, apart from voluntary surrender, but not
to total absolution of liability.
Petitioner did not file any motion for reconsideration with respondent Sandiganbayan. Instead, he filed with this Court a petition for review on certiorari on January 30, 1984
alleging that the Sandiganbayan erred (a) when it failed to consider in favor of petitioner the elements of unlawful aggression and reasonable necessity of the means used to
repel it; (b) when it dismissed outright petitioner's theory of self-defense just because he did not suffer any scratch; and (c) when it convicted petitioner despite the fact that
there was doubt as to his guilt, hence no civil damages should be awarded.
The Solicitor General submits that the facts prove the existence of unlawful aggression on the part of the deceased, since it is undisputed that the deceased attacked petitioner
twice with a four-inch bladed knife; that unlawful aggression is clearly manifest since the physical assaults against petitioner placed his life in actual peril (People vs.
Sumicad, 56 Phil. 647); that in determining the existence of unlawful aggression, it does not matter if the attacks have no predictable success; that, moreover, it is not necessary
for petitioner to be wounded first to prove the existence of unlawful aggression, it being sufficient that the aggression be attempted so as to give rise to the right to prevent it
(People vs. Batungbacal, 37 Phil. 382; People vs. Hitosis, 55 Phil. 298).
We agree with petitioner and the Solicitor General that the first requisite of the justifying circumstance of self-defense unlawful aggression - is present in the case at bar
(Article 11 [l] of the Revised Penal Code). There is no question that the third requisite - lack of sufficient provocation on the part of the person defending himself - is also
present. Petitioner was merely acting in the performance of his duty as a traffic policeman when he tried to arrest the deceased for violating a traffic regulation. In fact,
respondent Sandiganbayan appreciated the victim's sufficient provocation or threat immediately preceding the act sued upon as a mitigating circumstance together with
petitioner's voluntary surrender.
The principal issue is whether or not the second requisite reasonable necessity of the means employed to prevent or repel the unlawful aggression - is present. On this point
the Solicitor General agrees with respondent Sandiganbayan that petitioner did not use reasonable means to repel the attack of the deceased. When the deceased lunged at
petitioner the second time, he stumbled and even went past petitioner. At that instant, petitioner could have just struck at the deceased with his gun, or at worse, aimed his
gun at a non-vital part of his body to overcome his resistance to arrest. However, petitioner chose to fire at the back of the deceased, thus killing him almost instantly. The
Solicitor General invokes the ruling in People vs. Oanis (74 Phil. 257, 262), to the effect that a peace officer is never justified in using unnecessary force in effecting arrests or in
treating with wanton violence the arrested person or in resorting to dangerous means when the arrest could be effected otherwise. This doctrine was restated in the Rules of
Court thus: "No unnecessary or unreasonable force shall be used in making an arrest, and the person arrested shall not be subject to any greater restraint than is necessary for
his detention. " (Sec. 2 of Rule 109, subsequently Rule 113). It is worthwhile noting that the rule was made stricter in Sec. 2, Rule 113 of the 1985 Rules on Criminal Procedure
thus: "No violence or unnecessary force shall be used in making an arrest . . . "
We agree with the Solicitor General. In the case of People vs. De Jesus, this Court ruled that:
With the deceased shown to be the aggressor as against Yalong, the reasonableness of the means used by Yalong to repel the aggression may however,
not be assessed in his favor. The deceased was in a state of drunkenness, so he was not as dangerous as he would if he had been sober. His aim proved
faulty and easily evaded as shown by the fact that Yalong was not hit by the stab attempts blows directed against him. At best, We can grant
incomplete self-defense in his favor, the necessity of the means he used to repel the aggression not appearing to Us clearly reasonable.11 (People vs. De
Jesus, November 19, 1982, 118 SCRA 616, 627)
In the case at bar, petitioner testified as follows:
Q What happened after he stabbed you?
A I moved back and then I drew my gun. I shouted at him, 'don't continue doing that., I will shoot you.'
Q Then what did he do?
A But he did not heed my warning and he continued lunging at me. And maybe because he was somewhat drunk or somewhat
high in drugs, he was not steady and he was - outbalanced and so, when he made that thrust, he lost his balance in which time I
simultaneously shot him." (TSN, pp. 13-14, May 9, 1983)
Under such circumstances, there was no need for petitioner to fire his gun at the deceased.
The penalty prescribed by law for homicide is reclusion temporal Considering the fact that two out of the three requisites for the justifying circumstance of self-defense are
present, Article 69 of the Revised Penal Code is applicable and a penalty lower by two degrees may be imposed. The mitigating circumstance of sufficient provocation on the
part of the deceased may no longer be considered because it is deemed absorbed by his unlawful aggression. But the mitigating circumstance of voluntary surrender may still
be considered. Two degrees lower than reclusion temporal is prison correccional
Applying the Indeterminate Sentence Law and in accordance with the recommendation of the Solicitor General, petitioner is sentenced to suffer imprisonment for a minimum
period of six months of arresto mayor and a maximum period of two years of prision correccional.
WHEREFORE, with the modification of the penalty as above provided, the decision appealed from is affirmed,

SO ORDERED.
EN BANC

[G.R. No. 135981. January 15, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant.

DECISION
PANGANIBAN, J.:
Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the battered woman syndrome (BWS), which allegedly constitutes
self-defense. Under the proven facts, however, she is not entitled to complete exoneration because there was no unlawful aggression -- no immediate and unexpected attack
on her by her batterer-husband at the time she shot him.
Absent unlawful aggression, there can be no self-defense, complete or incomplete.
But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of cumulative provocation that broke down her psychological resistance and
self-control. This psychological paralysis she suffered diminished her will power, thereby entitling her to the mitigating factor under paragraphs 9 and 10 of Article 13 of
the Revised Penal Code.
In addition, appellant should also be credited with the extenuating circumstance of having acted upon an impulse so powerful as to have naturally produced passion
and obfuscation. The acute battering she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she was eight months pregnant with their child,
overwhelmed her and put her in the aforesaid emotional and mental state, which overcame her reason and impelled her to vindicate her life and her unborn childs.
Considering the presence of these two mitigating circumstances arising from BWS, as well as the benefits of the Indeterminate Sentence Law, she may now apply for
and be released from custody on parole, because she has already served the minimum period of her penalty while under detention during the pendency of this case.

The Case

For automatic review before this Court is the September 25, 1998 Decision [1] of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0,
finding Marivic Genosa guilty beyond reasonable doubt of parricide. The decretal portion of the Decision reads:
WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of
Parricide as provided under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a generic aggravating circumstance and
none of mitigating circumstance, hereby sentences the accused with the penalty of DEATH.
The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand pesos (P50,000.00), Philippine currency as indemnity and another sum of
fifty thousand pesos (P50,000.00), Philippine currency as moral damages.[2]
The Information[3] charged appellant with parricide as follows:
That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault, hit and
wound one BEN GENOSA, her legitimate husband, with the use of a hard deadly weapon, which the accused had provided herself for the purpose, [causing] the following
wounds, to wit:
Cadaveric spasm.
Body on the 2nd stage of decomposition.
Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from its sockets and tongue slightly protrudes out of the mouth.
Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in] laceration of the brain, spontaneous rupture of the blood vessels on
the posterior surface of the brain, laceration of the dura and meningeal vessels producing severe intracranial hemorrhage.
Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the epidermis.
Abdomen distended w/ gas. Trunk bloated.

which caused his death.[4]

With the assistance of her counsel,[5] appellant pleaded not guilty during her arraignment on March 3, 1997. [6] In due course, she was tried for and convicted of
parricide.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecutions version of the facts in this wise:
Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City. Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For a
time, Bens younger brother, Alex, and his wife lived with them too. Sometime in 1995, however, appellant and Ben rented from Steban Matiga a house at Barangay Bilwang,
Isabel, Leyte where they lived with their two children, namely: John Marben and Earl Pierre.
On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their salary. They each had two (2) bottles of beer before heading home. Arturo would
pass Bens house before reaching his. When they arrived at the house of Ben, he found out that appellant had gone to Isabel, Leyte to look for him. Ben went inside his house,
while Arturo went to a store across it, waiting until 9:00 in the evening for the masiaorunner to place a bet. Arturo did not see appellant arrive but on his way home passing
the side of the Genosas rented house, he heard her say I wont hesitate to kill you to which Ben replied Why kill me when I am innocent? That was the last time Arturo
saw Ben alive. Arturo also noticed that since then, the Genosas rented house appeared uninhabited and was always closed.
On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living about fifty (50) meters from her house, to look after her pig because she was
going to Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie Dayandayan who unfortunately had no money to
buy it.
That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to Ormoc when he saw appellant going out of their house with her two kids in tow,
each one carrying a bag, locking the gate and taking her children to the waiting area where he was. Joseph lived about fifty (50) meters behind the Genosas rented
house. Joseph, appellant and her children rode the same bus to Ormoc. They had no conversation as Joseph noticed that appellant did not want to talk to him.
On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor emanating from his house being rented by Ben and appellant. Steban went there to find
out the cause of the stench but the house was locked from the inside. Since he did not have a duplicate key with him, Steban destroyed the gate padlock with a borrowed
steel saw. He was able to get inside through the kitchen door but only after destroying a window to reach a hook that locked it. Alone, Steban went inside the unlocked
bedroom where the offensive smell was coming from. There, he saw the lifeless body of Ben lying on his side on the bed covered with a blanket. He was only in his briefs
with injuries at the back of his head. Seeing this, Steban went out of the house and sent word to the mother of Ben about his sons misfortune. Later that day, Iluminada
Genosa, the mother of Ben, identified the dead body as that of [her] son.
Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police station at Isabel, Leyte, received a report regarding the foul smell at the
Genosas rented house. Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house and went inside the bedroom where they
found the dead body of Ben lying on his side wrapped with a bedsheet. There was blood at the nape of Ben who only had his briefs on. SPO3 Acodesin found in one corner
at the side of an aparador a metal pipe about two (2) meters from where Ben was, leaning against a wall. The metal pipe measured three (3) feet and six (6) inches long with a
diameter of one and half (1 1/2) inches. It had an open end without a stop valve with a red stain at one end. The bedroom was not in disarray.
About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken outside at the back of the house before the postmortem examination was conducted
by Dr. Cerillo in the presence of the police. A municipal health officer at Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo found that Ben had been dead for two to
three days and his body was already decomposing. The postmortem examination of Dr. Cerillo yielded the findings quoted in the Information for parricide later filed against
appellant. She concluded that the cause of Bens death was cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a depressed fracture of the occipital
[bone].
Appellant admitted killing Ben. She testified that going home after work on November 15, 1995, she got worried that her husband who was not home yet might have gone
gambling since it was a payday. With her cousin Ecel Arao, appellant went to look for Ben at the marketplace and taverns at Isabel, Leyte but did not find him there. They
found Ben drunk upon their return at the Genosas house. Ecel went home despite appellants request for her to sleep in their house.
Then, Ben purportedly nagged appellant for following him, even challenging her to a fight. She allegedly ignored him and instead attended to their children who were
doing their homework. Apparently disappointed with her reaction, Ben switched off the light and, with the use of a chopping knife, cut the television antenna or wire to keep
her from watching television. According to appellant, Ben was about to attack her so she ran to the bedroom, but he got hold of her hands and whirled her around. She fell
on the side of the bed and screamed for help. Ben left. At this point, appellant packed his clothes because she wanted him to leave. Seeing his packed clothes upon his return
home, Ben allegedly flew into a rage, dragged appellant outside of the bedroom towards a drawer holding her by the neck, and told her You might as well be killed so
nobody would nag me. Appellant testified that she was aware that there was a gun inside the drawer but since Ben did not have the key to it, he got a three-inch long blade
cutter from his wallet. She however, smashed the arm of Ben with a pipe, causing him to drop the blade and his wallet. Appellant then smashed Ben at his nape with the
pipe as he was about to pick up the blade and his wallet. She thereafter ran inside the bedroom.
Appellant, however, insisted that she ended the life of her husband by shooting him. She supposedly distorted the drawer where the gun was and shot Ben. He did not die
on the spot, though, but in the bedroom.[7](Citations omitted)

Version of the Defense

Appellant relates her version of the facts in this manner:

1.
Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a
degree of Bachelor of Science in Business Administration, and was working, at the time of her husbands death, as a Secretary to the Port Managers in Ormoc City. The
couple had three (3) children: John Marben, Earl Pierre and Marie Bianca.
2.
Marivic and Ben had known each other since elementary school; they were neighbors in Bilwang; they were classmates; and they were third degree cousins. Both
sets of parents were against their relationship, but Ben was persistent and tried to stop other suitors from courting her. Their closeness developed as he was her constant
partner at fiestas.
3.
After their marriage, they lived first in the home of Bens parents, together with Bens brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben
lived happily. But apparently, soon thereafter, the couple would quarrel often and their fights would become violent.
4.
Bens brother, Alex, testified for the prosecution that he could not remember when Ben and Marivic married. He said that when Ben and Marivic
quarreled, generally when Ben would come home drunk, Marivic would inflict injuries on him. He said that in one incident in 1993 he saw Marivic holding a kitchen knife
after Ben had shouted for help as his left hand was covered with blood. Marivic left the house but after a week, she returned apparently having asked for Bens
forgiveness. In another incident in May 22, 1994, early morning, Alex and his father apparently rushed to Bens aid again and saw blood from Bens forehead and Marivic
holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently again asked for Bens forgiveness.
Mrs. Iluminada Genosa, Marivics mother-in-law, testified too, saying that Ben and Marivic married in 1986 or 1985 more or less here in Fatima, Ormoc City. She said as the
marriage went along, Marivic became already very demanding. Mrs. Iluminada Genosa said that after the birth of Marivics two sons, there were three (3)
misunderstandings. The first was when Marivic stabbed Ben with a table knife through his left arm; the second incident was on November 15, 1994, when Marivic struck
Ben on the forehead using a sharp instrument until the eye was also affected. It was wounded and also the ear and her husband went to Ben to help; and the third incident
was in 1995 when the couple had already transferred to the house in Bilwang and she saw that Bens hand was plastered as the bone cracked.
Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.
5.
Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 After we collected our salary, we went to the cock-fighting place of ISCO. They stayed
there for three (3) hours, after which they went to Uniloks and drank beer allegedly only two (2) bottles each. After drinking they bought barbeque and went to the Genosa
residence. Marivic was not there. He stayed a while talking with Ben, after which he went across the road to wait for the runner and the usher of the masiao game because
during that time, the hearing on masiao numbers was rampant. I was waiting for the ushers and runners so that I can place my bet. On his way home at about 9:00 in the
evening, he heard the Genosas arguing. They were quarreling loudly. Outside their house was one Fredo who is used by Ben to feed his fighting cocks. Basobas testimony
on the root of the quarrel, conveniently overheard by him was Marivic saying I will never hesitate to kill you, whilst Ben replied Why kill me when I am innocent. Basobas
thought they were joking.
He did not hear them quarreling while he was across the road from the Genosa residence. Basobas admitted that he and Ben were always at the cockpits every Saturday and
Sunday. He claims that he once told Ben before when he was stricken with a bottle by Marivic Genosa that he should leave her and that Ben would always take her back
after she would leave him so many times.
Basobas could not remember when Marivic had hit Ben, but it was a long time that they had been quarreling. He said Ben even had a wound on the right forehead. He had
known the couple for only one (1) year.
6.
Marivic testified that after the first year of marriage, Ben became cruel to her and was a habitual drinker. She said he provoked her, he would slap her, sometimes
he would pin her down on the bed, and sometimes beat her.
These incidents happened several times and she would often run home to her parents, but Ben would follow her and seek her out, promising to change and would ask for
her forgiveness. She said after she would be beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the injuries
inflicted upon her by Ben into their reports. Marivic said Ben would beat her or quarrel with her every time he was drunk, at least three times a week.
7.

In her defense, witnesses who were not so closely related to Marivic, testified as to the abuse and violence she received at the hands of Ben.

7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic
was shouting for help and through the open jalousies, he saw the spouses grappling with each other. Ben had Marivic in a choke hold. He did not do anything, but had
come voluntarily to testify. (Please note this was the same night as that testified to by Arturo Busabos.[8])
7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified that he heard his neighbor Marivic shouting on the night of November 15,
1995. He peeped through the window of his hut which is located beside the Genosa house and saw the spouses grappling with each other then Ben Genosa was holding with
his both hands the neck of the accused, Marivic Genosa. He said after a while, Marivic was able to extricate he[r]self and enter the room of the children. After that, he went
back to work as he was to go fishing that evening. He returned at 8:00 the next morning. (Again, please note that this was the same night as that testified to by Arturo Basobas).
7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in Isabel, Leyte. His house was located about fifty (50) meters from theirs. Marivic is
his niece and he knew them to be living together for 13 or 14 years. He said the couple was always quarreling. Marivic confided in him that Ben would pawn items and then
would use the money to gamble. One time, he went to their house and they were quarreling. Ben was so angry, but would be pacified if somebody would come. He
testified that while Ben was alive he used to gamble and when he became drunk, he would go to our house and he will say, Teody because that was what he used to call me,
mokimas ta, which means lets go and look for a whore. Mr. Sarabia further testified that Ben would box his wife and I would see bruises and one time she ran to me, I

noticed a wound (the witness pointed to his right breast) as according to her a knife was stricken to her. Mr. Sarabia also said that once he saw Ben had been injured too. He
said he voluntarily testified only that morning.
7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the afternoon of November 15, 1995, Marivic went to her house and asked her help
to look for Ben. They searched in the market place, several taverns and some other places, but could not find him. She accompanied Marivic home. Marivic wanted her to
sleep with her in the Genosa house because she might be battered by her husband. When they got to the Genosa house at about 7:00 in the evening, Miss Arano said that
her husband was already there and was drunk. Miss Arano knew he was drunk because of his staggering walking and I can also detect his face. Marivic entered the house
and she heard them quarrel noisily. (Again, please note that this is the same night as that testified to by Arturo Basobas) Miss Arano testified that this was not the first time
Marivic had asked her to sleep in the house as Marivic would be afraid every time her husband would come home drunk. At one time when she did sleep over, she was
awakened at 10:00 in the evening when Ben arrived because the couple were very noisy in the sala and I had heard something was broken like a vase. She said Marivic ran
into her room and they locked the door. When Ben couldnt get in he got a chair and a knife and showed us the knife through the window grill and he scared us. She said
that Marivic shouted for help, but no one came. On cross-examination, she said that when she left Marivics house on November 15, 1995, the couple were still quarreling.
7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at PHILPHOS, Isabel, Leyte. Marivic was his patient many times and had also received
treatment from other doctors. Dr. Caing testified that from July 6, 1989 until November 9, 1995, there were six (6) episodes of physical injuries inflicted upon Marivic. These
injuries were reported in his Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted the qualifications of Dr. Caing and considered him an expert witness.
xxx

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Dr. Caings clinical history of the tension headache and hypertention of Marivic on twenty-three (23) separate occasions was marked at Exhibits 2 and 2-B. The OPD Chart
of Marivic at the Philphos Clinic which reflected all the consultations made by Marivic and the six (6) incidents of physical injuries reported was marked as Exhibit 3.
On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether the injuries were directly related to the crime committed. He said it is only a
psychiatrist who is qualified to examine the psychological make-up of the patient, whether she is capable of committing a crime or not.
7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified that about two (2) months before Ben died, Marivic went to his office past 8:00 in
the evening. She sought his help to settle or confront the Genosa couple who were experiencing family troubles. He told Marivic to return in the morning, but he did not
hear from her again and assumed that they might have settled with each other or they might have forgiven with each other.
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Marivic said she did not provoke her husband when she got home that night it was her husband who began the provocation. Marivic said she was frightened that her
husband would hurt her and she wanted to make sure she would deliver her baby safely. In fact, Marivic had to be admitted later at the Rizal Medical Centre as she was
suffering from eclampsia and hypertension, and the baby was born prematurely on December 1, 1995.
Marivic testified that during her marriage she had tried to leave her husband at least five (5) times, but that Ben would always follow her and they would reconcile. Marivic
said that the reason why Ben was violent and abusive towards her that night was because he was crazy about his recent girlfriend, Lulu x x x Rubillos.
On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the bedroom; that their quarrels could be heard by anyone passing their house; that
Basobas lied in his testimony; that she left for Manila the next day, November 16, 1995; that she did not bother anyone in Manila, rented herself a room, and got herself a job
as a field researcher under the alias Marvelous Isidro; she did not tell anyone that she was leaving Leyte, she just wanted to have a safe delivery of her baby; and that she
was arrested in San Pablo, Laguna.
Answering questions from the Court, Marivic said that she threw the gun away; that she did not know what happened to the pipe she used to smash him once; that she was
wounded by Ben on her wrist with the bolo; and that two (2) hours after she was whirled by Ben, he kicked her ass and dragged her towards the drawer when he saw that
she had packed his things.
9.
The body of Ben Genosa was found on November 18, 1995 after an investigation was made of the foul odor emitting from the Genosa residence. This fact was
testified to by all the prosecution witnesses and some defense witnesses during the trial.
10.
Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at the time of the incident, and among her responsibilities as such was to take
charge of all medico-legal cases, such as the examination of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic pathologist. She merely took the medical
board exams and passed in 1986. She was called by the police to go to the Genosa residence and when she got there, she saw some police officer and neighbor around. She
saw Ben Genosa, covered by a blanket, lying in a semi-prone position with his back to the door. He was wearing only a brief.
xxx

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Dra. Cerillo said that there is only one injury and that is the injury involving the skeletal area of the head which she described as a fracture. And that based on her
examination, Ben had been dead 2 or 3 days. Dra. Cerillo did not testify as to what caused his death.
Dra. Cerillo was not cross-examined by defense counsel.
11.
The Information, dated November 14, 1996, filed against Marivic Genosa charged her with the crime of PARRICIDE committed with intent to kill, with treachery
and evidence premeditation, x x x wilfully, unlawfully and feloniously attack, assault, hit and wound x x x her legitimate husband, with the use of a hard deadly weapon x x x
which caused his death.
12.
Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5
and 6 August 1998.

13.
On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City,
rendered a JUDGMENT finding Marivic guilty beyond reasonable doubt of the crime of parricide, and further found treachery as an aggravating circumstance, thus
sentencing her to the ultimate penalty of DEATH.
14.
The case was elevated to this Honorable Court upon automatic review and, under date of 24 January 2000, Marivics trial lawyer, Atty. Gil Marvel P. Tabucanon,
filed a Motion to Withdraw as counsel, attaching thereto, as a precautionary measure, two (2) drafts of Appellants Briefs he had prepare d for Marivic which, for reasons of
her own, were not conformed to by her.
The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of appearance of undersigned counsel.
15.
Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip,
Deputy Clerk of Court of Chief Judicial Records Office, wherein she submitted her Brief without counsels to the Court.
This letter was stamp-received by the Honorable Court on 4 February 2000.
16.
In the meantime, under date of 17 February 2000, and stamp-received by the Honorable Court on 19 February 2000, undersigned counsel filed an URGENT
OMNIBUS MOTION praying that the Honorable Court allow the exhumation of Ben Genosa and the re-examination of the cause of his death; allow the examination of
Marivic Genosa by qualified psychologists and psychiatrists to determine her state of mind at the time she killed her husband; and finally, to allow a partial re-opening of the
case a quo to take the testimony of said psychologists and psychiatrists.
Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only qualified forensic pathologist in the country, who opined that the description
of the death wound (as culled from the post-mortem findings, Exhibit A) is more akin to a gunshot wound than a beating with a lead pipe.
17.
In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivics URGENT OMNIBUS MOTION and remanded the case to the trial
court for the reception of expert psychological and/or psychiatric opinion on the battered woman syndrome plea, within ninety (90) days from notice, and, thereafter to
forthwith report to this Court the proceedings taken, together with the copies of the TSN and relevant documentary evidence, if any, submitted.
18.

On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City.

Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed Marivic Genosa. Dra. Dayan informed the Court that interviews were done at the
Penal Institution in 1999, but that the clinical interviews and psychological assessment were done at her clinic.
Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her own private clinic and connected presently to the De La Salle University as a
professor. Before this, she was the Head of the Psychology Department of the Assumption College; a member of the faculty of Psychology at the Ateneo de Manila University
and St. Josephs College; and was the counseling psychologist of the National Defense College. She has an AB in Psychology from the University of the Philippines, a Master
of Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD from the U.P. She was the past president of the Psychological Association of the Philippines and is a
member of the American Psychological Association. She is the secretary of the International Council of Psychologists from about 68 countries; a member of the Forensic
Psychology Association; and a member of the ASEAN [Counseling] Association. She is actively involved with the Philippine Judicial Academy, recently lecturing on the
socio-demographic and psychological profile of families involved in domestic violence and nullity cases. She was with the Davide Commission doing research about Military
Psychology. She has written a book entitled Energy Global Psychology (together with Drs. Allan Tan and Allan Bernardo). The Genosa case is the first time she has testified
as an expert on battered women as this is the first case of that nature.
Dra. Dayan testified that for the research she conducted, on the socio-demographic and psychological profile of families involved in domestic violence, and nullity cases, she
looked at about 500 cases over a period of ten (10) years and discovered that there are lots of variables that cause all of this marital conflicts, from domestic violence to
infidelity, to psychiatric disorder.
Dra. Dayan described domestic violence to comprise of a lot of incidents of psychological abuse, verbal abuse, and emotional abuse to physical abuse and also sexual abuse.
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Dra. Dayan testified that in her studies, the battered woman usually has a very low opinion of herself. She has a self-defeating and self-sacrificing characteristics. x x x they
usually think very lowly of themselves and so when the violence would happen, they usually think that they provoke it, that they were the one who precipitated the violence,
they provoke their spouse to be physically, verbally and even sexually abusive to them. Dra. Dayan said that usually a battered x x x comes from a dysfunctional family or
from broken homes.
Dra. Dayan said that the batterer, just like the battered woman, also has a very low opinion of himself. But then emerges to have superiority complex and it comes out as
being very arrogant, very hostile, very aggressive and very angry. They also had (sic) a very low tolerance for frustrations. A lot of times they are involved in vices like
gambling, drinking and drugs. And they become violent. The batterer also usually comes from a dysfunctional family which over-pampers them and makes them feel
entitled to do anything. Also, they see often how their parents abused each other so there is a lot of modeling of aggression in the family.
Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave her husband: poverty, self-blame and guilt that she provoked the violence, the cycle
itself which makes her hope her husband will change, the belief in her obligations to keep the family intact at all costs for the sake of the children.
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Dra. Dayan said that abused wives react differently to the violence: some leave the house, or lock themselves in another room, or sometimes try to fight back triggering
physical violence on both of them. She said that in a normal marital relationship, abuses also happen, but these are not consistent, not chronic, are not happening day in

[and] day out. In an abnormal marital relationship, the abuse occurs day in and day out, is long lasting and even would cause hospitalization on the victim and even death
on the victim.
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Dra. Dayan said that as a result of the battery of psychological tests she administered, it was her opinion that Marivic fits the profile of a battered woman because inspite of
her feeling of self-confidence which we can see at times there are really feeling (sic) of loss, such feelings of humiliation which she sees hers elf as damaged and as a broken
person. And at the same time she still has the imprint of all the abuses that she had experienced in the past.
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Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing for nullity or legal separation inspite of the abuses. It was at the time of the
tragedy that Marivic then thought of herself as a victim.
xxx
19.

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On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared and testified before RTC-Branch 35, Ormoc City.

Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry Association. He
was in the practice of psychiatry for thirty-eight (38) years. Prior to being in private practice, he was connected with the Veterans Memorial Medical Centre where he gained
his training on psychiatry and neurology. After that, he was called to active duty in the Armed Forces of the Philippines, assigned to the V. Luna Medical Center for twenty
six (26) years. Prior to his retirement from government service, he obtained the rank of Brigadier General. He obtained his medical degree from the University of Santo
Tomas. He was also a member of the World Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical Society; and the Philippine Association
of Military Surgeons.
He authored The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy from the Period 1954 1978 which was presented twice in international
congresses. He also authored The Mental Health of the Armed Forces of the Philippines 2000, which was likewise published internationally and locally. He had a medical
textbook published on the use of Prasepam on a Parke-Davis grant; was the first to use Enanthate (siquiline), on an E.R. Squibb grant; and he published the use of the drug
Zopiclom in 1985-86.
Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and neurology deals with the ailment of the brain and spinal cord
enlarged. Psychology, on the other hand, is a bachelor degree and a doctorate degree; while one has to finish medicine to become a specialist in psychiatry.
Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already encountered a suit involving violent family relations, and testified in a case in
1964. In the Armed Forces of the Philippines, violent family disputes abound, and he has seen probably ten to twenty thousand cases. In those days, the primordial intention
of therapy was reconciliation. As a result of his experience with domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City under Atty.
Nenita Deproza.
As such consultant, he had seen around forty (40) cases of severe domestic violence, where there is physical abuse: such as slapping, pushing, verbal abuse, battering and
boxing a woman even to an unconscious state such that the woman is sometimes confined. The affliction of Post-Traumatic Stress Disorder depends on the vulnerability of
the victim. Dr. Pajarillo said that if the victim is not very healthy, perhaps one episode of violence may induce the disorder; if the psychological stamina and physiologic
constitutional stamina of the victim is stronger, it will take more repetitive trauma to precipitate the post-traumatic stress disorder and this x x x is very dangerous.
In psychiatry, the post-traumatic stress disorder is incorporated under the anxiety neurosis or neurologic anxcietism. It is produced by overwhelming brutality, trauma.
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Dr. Pajarillo explained that with neurotic anxiety, the victim relives the beating or trauma as if it were real, although she is not actually being beaten at that time. She thinks
of nothing but the suffering.
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A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable, and she is irritable and restless. She tends to become hard-headed and
persistent. She has higher sensitivity and her self-world is damaged.
Dr. Pajarillo said that an abnormal family background relates to an individuals illness, such as the deprivation of the continuous care and love of the parents. As to the
batterer, he normally internalizes what is around him within the environment. And it becomes his own personality. He is very competitive; he is aiming high all the time;
he is so macho; he shows his strong faade but in it there are doubts in himself and prone to act without thinking.
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Dr. Pajarillo emphasized that even though without the presence of the precipator (sic) or the one who administered the battering, that re-experiencing of the trauma
occurred (sic) because the individual cannot control it. It will just come up in her mind or in his mind.
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Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend themselves, and primarily with knives. Usually pointed weapons or any weapon that
is available in the immediate surrounding or in a hospital x x x because that abound in the household. He said a victim resorts to weapons when she has reached the lowest
rock bottom of her life and there is no other recourse left on her but to act decisively.
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Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted for two (2) hours and seventeen (17) minutes. He used the psychological
evaluation and social case studies as a help in forming his diagnosis. He came out with a Psychiatric Report, dated 22 January 2001.
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On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed her husband Marivicc mental condition was that she was re-experiencing the
trauma. He said that we are trying to explain scientifically that the re-experiencing of the trauma is not controlled by Marivic. It will just come in flashes and probably at
that point in time that things happened when the re-experiencing of the trauma flashed in her mind. At the time he interviewed Marivic she was more subdued, she was not
super alert anymore x x x she is mentally stress (sic) because of the predicament she is involved.
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20.
No rebuttal evidence or testimony was presented by either the private or the public prosecutor. Thus, in accord with the Resolution of this Honorable Court, the
records of the partially re-opened trial a quowere elevated.[9]

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution evidence that appellant had killed the deceased while he was in bed
sleeping. Further, the trial court appreciated the generic aggravating circumstance of treachery, because Ben Genosa was supposedly defenseless when he was killed -- lying
in bed asleep when Marivic smashed him with a pipe at the back of his head.
The capital penalty having been imposed, the case was elevated to this Court for automatic review.

Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the exhumation of Ben Genosa and the reexamination of the cause of
his death; (2) the examination of appellant by qualified psychologists and psychiatrists to determine her state of mind at the time she had killed her spouse; and (3) the
inclusion of the said experts reports in the records of the case for purposes of the automatic review or, in the alternative, a partial reopening of the case for the lower court to
admit the experts testimonies.
On September 29, 2000, this Court issued a Resolution granting in part appellants Motion, remanding the case to the trial court for the reception of expert
psychological and/or psychiatric opinion on the battered woman syndrome plea; and requiring the lower court to report thereafter to this Court the proceedings taken as
well as to submit copies of the TSN and additional evidence, if any.
Acting on the Courts Resolution, the trial judge authorized the examination of Marivic by two clinical psychologists, Drs. Natividad Dayan[10] and Alfredo
Pajarillo,[11] supposedly experts on domestic violence. Their testimonies, along with their documentary evidence, were then presented to and admitted by the lower court
before finally being submitted to this Court to form part of the records of the case. [12]

The Issues

Appellant assigns the following alleged errors of the trial court for this Courts consideration:
1.

The trial court gravely erred in promulgating an obviously hasty decision without reflecting on the evidence adduced as to self-defense.

2.

The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally married and that she was therefore liable for parricide.

3.

The trial court gravely erred finding the cause of death to be by beating with a pipe.

4.
The trial court gravely erred in ignoring and disregarding evidence adduced from impartial and unbiased witnesses that Ben Genosa was a drunk, a gambler, a
womanizer and wife-beater; and further gravely erred in concluding that Ben Genosa was a battered husband.
5.

The trial court gravely erred in not requiring testimony from the children of Marivic Genosa.

6.
The trial court gravely erred in concluding that Marivics flight to Manila and her subsequent apologies were indicia of guilt, instead of a clear attempt to save the
life of her unborn child.

7.

The trial court gravely erred in concluding that there was an aggravating circumstance of treachery.

8.
The trial court gravely erred in refusing to re-evaluate the traditional elements in determining the existence of self-defense and defense of foetus in this case,
thereby erroneously convicting Marivic Genosa of the crime of parricide and condemning her to the ultimate penalty of death. [13]
In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense and in defense of her fetus; and (2) whether treachery attended the
killing of Ben Genosa.

The Courts Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution of the principal issues. As consistently held by this Court, the
findings of the trial court on the credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be disturbed on appeal in the absence of any
showing that the trial judge gravely abused his discretion or overlooked, misunderstood or misapplied material facts or circumstances of weight and substance that could
affect the outcome of the case.[14]
In appellants first six assigned items, we find no grave abuse of discretion, reversible error or misappreciation of material facts that would reverse or modify the trial
courts disposition of the case. In any event, we will now briefly dispose of these alleged errors of the trial court.
First, we do not agree that the lower court promulgated an obviously hasty decision without reflecting on the evidence adduced as to self-defense. We note that in
his 17-page Decision, Judge Fortunito L. Madrona summarized the testimonies of both the prosecution and the defense witnesses and -- on the basis of those and of the
documentary evidence on record -- made his evaluation, findings and conclusions. He wrote a 3-page discourse assessing the testimony and the self-defense theory of the
accused. While she, or even this Court, may not agree with the trial judges conclusions, we cannot peremptorily conclude, absent substantial evidence, that he failed to
reflect on the evidence presented.
Neither do we find the appealed Decision to have been made in an obviously hasty manner. The Information had been filed with the lower court on November 14,
1996. Thereafter, trial began and at least 13 hearings were held for over a year. It took the trial judge about two months from the conclusion of trial to promulgate his
judgment. That he conducted the trial and resolved the case with dispatch should not be taken against him, much less used to condemn him for being unduly hasty. If at all,
the dispatch with which he handled the case should be lauded. In any case, we find his actions in substantial compliance with his constitutional obligation. [15]
Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been legally married, despite the non-presentation of their marriage
contract. In People v. Malabago,[16] this Court held:
The key element in parricide is the relationship of the offender with the victim. In the case of parricide of a spouse, the best proof of the relationship between the accused
and the deceased is the marriage certificate. In the absence of a marriage certificate, however, oral evidence of the fact of marriage may be considered by the trial court if such
proof is not objected to.
Two of the prosecution witnesses -- namely, the mother and the brother of appellants deceased spouse -- attested in court that Ben had been married to Marivic. [17] The
defense raised no objection to these testimonies. Moreover, during her direct examination, appellant herself made a judicial admission of her marriage to Ben.[18] Axiomatic is
the rule that a judicial admission is conclusive upon the party making it, except only when there is a showing that (1) the admission was made through a palpable mistake, or
(2) no admission was in fact made.[19] Other than merely attacking the non-presentation of the marriage contract, the defense offered no proof that the admission made by
appellant in court as to the fact of her marriage to the deceased was made through a palpable mistake.
Third, under the circumstances of this case, the specific or direct cause of Bens death -- whether by a gunshot or by beating with a pipe -- has no legal consequence. As
the Court elucidated in its September 29, 2000 Resolution, [c]onsidering that the appellant has admitted the fact of killing her husband and the acts of hitting his nape with a
metal pipe and of shooting him at the back of his head, the Court believes that exhumation is unnecessary, if not immaterial, to determine which of said acts actually caused the
victims death. Determining which of these admitted acts caused the death is not dispositive of the guilt or defense of appellant.
Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk, gambler, womanizer and wife-beater. Until this case came to us for automatic
review, appellant had not raised the novel defense of battered woman syndrome, for which such evidence may have been relevant. Her theory of self-defense was then the crucial
issue before the trial court. As will be discussed shortly, the legal requisites of self-defense under prevailing jurisprudence ostensibly appear inconsistent with the surrounding facts that
led to the death of the victim. Hence, his personal character, especially his past behavior, did not constitute vital evidence at the time.
Fifth, the trial court surely committed no error in not requiring testimony from appellants children. As correctly elucidated by the solicitor general, all criminal actions
are prosecuted under the direction and control of the public prosecutor, in whom lies the discretion to determine which witnesses and evidence are necessary to present. [20] As
the former further points out, neither the trial court nor the prosecution prevented appellant from presenting her children as witnesses. Thus, she cannot now fault the lower
court for not requiring them to testify.
Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and her subsequent apologies to her brother-in-law are indicia of her
guilt or are attempts to save the life of her unborn child. Any reversible error as to the trial courts appreciation of these circumstances has little bearing on the final resolution
of the case.
First Legal Issue:
Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or defense of her unborn child. When the accused admits killing the
victim, it is incumbent upon her to prove any claimed justifying circumstance by clear and convincing evidence.[21] Well-settled is the rule that in criminal cases, self-defense
(and similarly, defense of a stranger or third person) shifts the burden of proof from the prosecution to the defense. [22]

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While new in Philippine jurisprudence, the concept has been recognized
in foreign jurisdictions as a form of self-defense or, at the least, incomplete self-defense.[23] By appreciating evidence that a victim or defendant is afflicted with the syndrome,
foreign courts convey their understanding of the justifiably fearful state of mind of a person who has been cyclically abused and controlled over a period of time.[24]
A battered woman has been defined as a woman who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do
something he wants her to do without concern for her rights. Battered women include wives or women in any form of intimate relationship with men. Furthermore, in order
to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man
once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman. [25]
Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about the home, the family and the female sex role; emotional
dependence upon the dominant male; the tendency to accept responsibility for the batterers actions; and false hopes that the relationship will improve. [26]
More graphically, the battered woman syndrome is characterized by the so-called cycle of violence,[27] which has three phases: (1) the tension-building phase; (2) the
acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent) phase. [28]
During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse or another form of hostile behavior. The woman usually tries
to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is that she allows herself to be abused in ways
that, to her, are comparatively minor. All she wants is to prevent the escalation of the violence exhibited by the batterer. This wish, however, proves to be double-edged,
because her placatory and passive behavior legitimizes his belief that he has the right to abuse her in the first place.
However, the techniques adopted by the woman in her effort to placate him are not usually successful, and the verbal and/or physical abuse worsens. Each partner
senses the imminent loss of control and the growing tension and despair. Exhausted from the persistent stress, the battered woman soon withdraws emotionally. But the
more she becomes emotionally unavailable, the more the batterer becomes angry, oppressive and abusive. Often, at some unpredictable point, the violence spirals out of
control and leads to an acute battering incident. [29]
The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. The battered woman deems this incident as unpredictable,
yet also inevitable. During this phase, she has no control; only the batterer may put an end to the violence. Its nature can be as unpredictable as the time of its explosion, and
so are his reasons for ending it. The battered woman usually realizes that she cannot reason with him, and that resistance would only exacerbate her condition.
At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later clearly remember every detail. Her apparent passivity in the
face of acute violence may be rationalized thus: the batterer is almost always much stronger physically, and she knows from her past painful experience that it is futile to
fight back. Acute battering incidents are often very savage and out of control, such that innocent bystanders or intervenors are likely to get hurt.[30]
The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period, the couple experience profound relief. On the one
hand, the batterer may show a tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and tries to make up for it, begging for her
forgiveness and promising never to beat her again. On the other hand, the battered woman also tries to convince herself that the battery will never happen again; that her
partner will change for the better; and that this good, gentle and caring man is the real person whom she loves.
A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer. Sensing his isolation and despair, she feels responsible for his
well-being. The truth, though, is that the chances of his reforming, or seeking or receiving professional help, are very slim, especially if she remains with him. Generally, only
after she leaves him does he seek professional help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation that she is most thoroughly tormented
psychologically.
The illusion of absolute interdependency is well-entrenched in a battered womans psyche. In this phase, she and her batterer are indeed emotionally dependent on
each other -- she for his nurturant behavior, he for her forgiveness. Underneath this miserable cycle of tension, violence and forgiveness, each partner may believe that it is
better to die than to be separated. Neither one may really feel independent, capable of functioning without the other. [31]
History of Abuse
in the Present Case

To show the history of violence inflicted upon appellant, the defense presented several witnesses. She herself described her heart-rending experience as follows:
ATTY. TABUCANON
Q

How did you describe your marriage with Ben Genosa?

In the first year, I lived with him happily but in the subsequent year he was cruel to me and a behavior of habitual drinker.

You said that in the subsequent year of your marriage, your husband was abusive to you and cruel. In what way was this abusive and cruelty manifested to
you?

He always provoke me in everything, he always slap me and sometimes he pinned me down on the bed and sometimes beat me.

How many times did this happen?

Several times already.

What did you do when these things happen to you?

I went away to my mother and I ran to my father and we separate each other.

What was the action of Ben Genosa towards you leaving home?

He is following me, after that he sought after me.

What will happen when he follow you?

He said he changed, he asked for forgiveness and I was convinced and after that I go to him and he said sorry.

During those times that you were the recipient of such cruelty and abusive behavior by your husband, were you able to see a doctor?

Yes, sir.

Who are these doctors?

The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.

You said that you saw a doctor in relation to your injuries?

Yes, sir.

Who inflicted these injuries?

Of course my husband.

You mean Ben Genosa?

Yes, sir.

xxx

xxx

xxx

xxx

xxx

xxx

[Court] /to the witness

Q

How frequent was the alleged cruelty that you said?

Everytime he got drunk.

No, from the time that you said the cruelty or the infliction of injury inflicted on your occurred, after your marriage, from that time on, how frequent was
the occurrence?

Everytime he got drunk.

Is it daily, weekly, monthly or how many times in a month or in a week?

Three times a week.

Do you mean three times a week he would beat you?

Not necessarily that he would beat me but sometimes he will just quarrel me. [32]

Referring to his Out-Patient Chart[33] on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing bolstered her foregoing testimony on chronic battery in this
manner:
Q So, do you have a summary of those six (6) incidents which are found in the chart of your clinic?
A

Yes, sir.

Who prepared the list of six (6) incidents, Doctor?

I did.

Will you please read the physical findings together with the

1.

dates for the record.

May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and redness of eye. Attending physician: Dr. Lucero;
2.

March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion (R) breast. Attending physician: Dr. Canora;

3.

March 26, 1993 - Abrasion, Furuncle (L) Axilla;

4.

August 1, 1994 - Pain, mastitis (L) breast, 2 to trauma. Attending physician: Dr. Caing;

5.

April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr. Canora; and

6.

June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending physician: Dr. Canora.

Among the findings, there were two (2) incidents wherein you were the attending physician, is that correct?

Yes, sir.

Did you actually physical examine the accused?

Yes, sir.

Now, going to your finding no. 3 where you were the one who attended the patient. What do you mean by abrasion furuncle left axilla?

Abrasion is a skin wound usually when it comes in contact with something rough substance if force is applied.

What is meant by furuncle axilla?

It is secondary of the light infection over the abrasion.

What is meant by pain mastitis secondary to trauma?

So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain] meaning there is tenderness. When your breast is traumatized,
there is tenderness pain.

So, these are objective physical injuries. Doctor?

xxx

xxx

xxx

Were you able to talk with the patient?

Yes, sir.

What did she tell you?

As a doctor-patient relationship, we need to know the cause of these injuries. And she told me that it was done to her by her husband.

You mean, Ben Genosa?

Yes, sir.
xxx

xxx

xxx

ATTY. TABUCANON:
Q

By the way Doctor, were you able to physical examine the accused sometime in the month of November, 1995 when this incident happened?

As per record, yes.

What was the date?

It was on November 6, 1995.

So, did you actually see the accused physically?

Yes, sir.

On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?

Yes, sir.

Being a doctor, can you more engage at what stage of pregnancy was she?

Eight (8) months pregnant.

So in other words, it was an advance stage of pregnancy?

Yes, sir.

What was your November 6, 1995 examination, was it an examination about her pregnancy or for some other findings?

No, she was admitted for hypertension headache which complicates her pregnancy.

When you said admitted, meaning she was confined?

Yes, sir.

For how many days?

One day.

Where?

At PHILPHOS Hospital.
xxx

xxx

xxx

Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine her personally on November 6, 1995 and she was 8 months
pregnant.

What is this all about?

Because she has this problem of tension headache secondary to hypertension and I think I have a record here, also the same period from 1989 to 1995, she
had a consultation for twenty-three (23) times.

For what?

Tension headache.

Can we say that specially during the latter consultation, that the patient had hypertension?

The patient definitely had hypertension. It was refractory to our treatment. She does not response when the medication was given to her, because tension
headache is more or less stress related and emotional in nature.

What did you deduce of tension headache when you said is emotional in nature?

From what I deduced as part of our physical examination of the patient is the family history in line of giving the root cause of what is causing this
disease. So, from the moment you ask to the patient all comes from the domestic problem.

You mean problem in her household?

Probably.

Can family trouble cause elevation of blood pressure, Doctor?

Yes, if it is emotionally related and stressful it can cause increases in hypertension which is unfortunately does not response to the medication.

In November 6, 1995, the date of the incident, did you take the blood pressure of the accused?

On November 6, 1995 consultation, the blood pressure was 180/120.

Is this considered hypertension?

Yes, sir, severe.

Considering that she was 8 months pregnant, you mean this is dangerous level of blood pressure?

It was dangerous to the child or to the fetus. [34]

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte, testified that he had seen the couple quarreling several times; and that on
some occasions Marivic would run to him with bruises, confiding that the injuries were inflicted upon her by Ben. [35]
Ecel Arano also testified[36] that for a number of times she had been asked by Marivic to sleep at the Genosa house, because the latter feared that Ben would come home
drunk and hurt her. On one occasion that Ecel did sleep over, she was awakened about ten oclock at night, because the couple were very noisy and I heard something
was broken like a vase. Then Marivic came running into Ecels room and locked the door. Ben showed up by the window grill atop a chair, scaring them with a knife.
On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but they were unable to. They returned to the Genosa home, where
they found him already drunk. Again afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of drunkenness, Ecel hesitated; and when she
heard the couple start arguing, she decided to leave.
On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or heard the couple quarreling. [37] Marivic relates in detail the
following backdrop of the fateful night when life was snuffed out of him, showing in the process a vivid picture of his cruelty towards her:
ATTY. TABUCANON:
Q

Please tell this Court, can you recall the incident in November 15, 1995 in the evening?

Whole morning and in the afternoon, I was in the office working then after office hours, I boarded the service bus and went to Bilwang. When I reached
Bilwang, I immediately asked my son, where was his father, then my second child said, he was not home yet. I was worried because that was payday, I
was anticipating that he was gambling. So while waiting for him, my eldest son arrived from school, I prepared dinner for my children.

This is evening of November 15, 1995?

Yes, sir.

What time did Ben Genosa arrive?

When he arrived, I was not there, I was in Isabel looking for him.

So when he arrived you were in Isabel looking for him?

Yes, sir.

Did you come back to your house?

Yes, sir.

By the way, where was your conjugal residence situated this time?

Bilwang.

Is this your house or you are renting?

Renting.

What time were you able to come back in your residence at Bilwang?

I went back around almost 8:00 oclock.

What happened when you arrived in your residence?

When I arrived home with my cousin Ecel whom I requested to sleep with me at that time because I had fears that he was again drunk and I was worried
that he would again beat me so I requested my cousin to sleep with me, but she resisted because she had fears that the same thing will happen again last
year.

Who was this cousin of yours who you requested to sleep with you?

Ecel Arao, the one who testified.

Did Ecel sleep with you in your house on that evening?

No, because she expressed fears, she said her father would not allow her because of Ben.

During this period November 15, 1995, were you pregnant?

Yes, 8 months.

How advance was your pregnancy?

Eight (8) months.

Was the baby subsequently born?

Yes, sir.

Whats the name of the baby you were carrying at that time?

Marie Bianca.

What time were you able to meet personally your husband?

Yes, sir.

What time?

When I arrived home, he was there already in his usual behavior.

Will you tell this Court what was his disposition?

He was drunk again, he was yelling in his usual unruly behavior.

What was he yelling all about?

His usual attitude when he got drunk.

You said that when you arrived, he was drunk and yelling at you? What else did he do if any?

He is nagging at me for following him and he dared me to quarrel him.

What was the cause of his nagging or quarreling at you if you know?

He was angry at me because I was following x x x him, looking for him. I was just worried he might be overly drunk and he would beat me again.

You said that he was yelling at you, what else, did he do to you if any?

He was nagging at me at that time and I just ignore him because I want to avoid trouble for fear that he will beat me again. Perhaps he was disappointed
because I just ignore him of his provocation and he switch off the light and I said to him, why did you switch off the light when the children were
there. At that time I was also attending to my children who were doing their assignments. He was angry with me for not answering his challenge, so he
went to the kitchen and [got] a bolo and cut the antenna wire to stop me from watching television.

What did he do with the bolo?

He cut the antenna wire to keep me from watching T.V.

What else happened after he cut the wire?

He switch off the light and the children were shouting because they were scared and he was already holding the bolo.

How do you described this bolo?

1 1/2 feet.

What was the bolo used for usually?

For chopping meat.

You said the children were scared, what else happened as Ben was carrying that bolo?

He was about to attack me so I run to the room.

What do you mean that he was about to attack you?

When I attempt to run he held my hands and he whirled me and I fell to the bedside.

So when he whirled you, what happened to you?

I screamed for help and then he left.

You said earlier that he whirled you and you fell on the bedside?

Yes, sir.

You screamed for help and he left, do you know where he was going?

Outside perhaps to drink more.

When he left what did you do in that particular time?

I packed all his clothes.

What was your reason in packing his clothes?

I wanted him to leave us.

During this time, where were your children, what were their reactions?

After a couple of hours, he went back again and he got angry with me for packing his clothes, then he dragged me again of the bedroom holding my neck.

You said that when Ben came back to your house, he dragged you? How did he drag you?

COURT INTERPRETER:
The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)
A

And he dragged me towards the door backward.

ATTY. TABUCANON:
Q

Where did he bring you?

Outside the bedroom and he wanted to get something and then he kept on shouting at me that you might as well be killed so there will be nobody to nag
me.

So you said that he dragged you towards the drawer?

Yes, sir.

What is there in the drawer?

I was aware that it was a gun.

COURT INTERPRETER:
(At this juncture the witness started crying).
ATTY. TABUCANON:
Q

Were you actually brought to the drawer?

Yes, sir.

What happened when you were brought to that drawer?

He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key then he pulled his
wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade
fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him
then I ran to the other room, and on that very moment everything on my mind was to pity on myself, then the feeling I had on that very moment was the
same when I was admitted in PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER:
(The witness at this juncture is crying intensely).
xxx
ATTY. TABUCANON:
Q

Talking of drawer, is this drawer outside your room?

Outside.

In what part of the house?

Dining.

Where were the children during that time?

My children were already asleep.

xxx

xxx

You mean they were inside the room?

Yes, sir.

You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like?

Three (3) inches long and 1/2 inch wide.

Is it a flexible blade?

Its a cutter.

How do you describe the blade, is it sharp both edges?

Yes, because he once used it to me.

How did he do it?

He wanted to cut my throat.

With the same blade?

Yes, sir, that was the object used when he intimidate me. [38]

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in understanding the psyche of a battered person. She had met with
Marivic Genosa for five sessions totaling about seventeen hours. Based on their talks, the former briefly related the latters ordeal to the court a quo as follows:
Q: What can you say, that you found Marivic as a battered wife? Could you in laymans term describe to this Court what her life was like as said to you?
A:

What I remember happened then was it was more than ten years, that she was suffering emotional anguish. There were a lot of instances of abuses, to
emotional abuse, to verbal abuse and to physical abuse. The husband had a very meager income, she was the one who was practically the bread earner of
the family. The husband was involved in a lot of vices, going out with barkadas, drinking, even womanizing being involved in cockfight and going
home very angry and which will trigger a lot of physical abuse. She also had the experience a lot of taunting from the husband for the reason that the
husband even accused her of infidelity, the husband was saying that the child she was carrying was not his own. So she was very angry, she was at the
same time very depressed because she was also aware, almost like living in purgatory or even hell when it was happening day in and day out. [39]

In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly put forward, additional supporting evidence as shown below:
Q In your first encounter with the appellant in this case in 1999, where you talked to her about three hours, what was the most relevant information did you
gather?
A

The most relevant information was the tragedy that happened. The most important information were escalating abuses that she had experienced during
her marital life.

Before you met her in 1999 for three hours, we presume that you already knew of the facts of the case or at least you have substantial knowledge of the facts
of the case?

I believe I had an idea of the case, but I do not know whether I can consider them as substantial.
xxx

xxx

xxx

Did you gather an information from Marivic that on the side of her husband they were fond of battering their wives?

I also heard that from her?

You heard that from her?

Yes, sir.

Did you ask for a complete example who are the relatives of her husband that were fond of battering their wives?

What I remember that there were brothers of her husband who are also battering their wives.

Did she not inform you that there was an instance that she stayed in a hotel in Ormoc where her husband followed her and battered [her] several times in
that room?

She told me about that.

Did she inform you in what hotel in Ormoc?

Sir, I could not remember but I was told that she was battered in that room.

Several times in that room?

Yes, sir. What I remember was that there is no problem about being battered, it really happened.

Being an expert witness, our jurisprudence is not complete on saying this matter. I think that is the first time that we have this in the Philippines, what is
your opinion?

Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a self-defense. I also believe that there had been provocation and I
also believe that she became a disordered person. She had to suffer anxiety reaction because of all the battering that happened and so she became an
abnormal person who had lost shes not during the time and that is why it happened because of all the physical battering, emotional battering, all the
psychological abuses that she had experienced from her husband.

I do believe that she is a battered wife. Was she extremely battered?

Sir, it is an extreme form of battering. Yes.[40]

Parenthetically, the credibility of appellant was demonstrated as follows:

Q And you also said that you administered [the] objective personality test, what x x x [is this] all about?
A

The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that test is to find out about the lying prone[ne]ss of the person.

What do you mean by that?

Meaning, am I dealing with a client who is telling me the truth, or is she someone who can exaggerate or x x x [will] tell a lie[?]

And what did you discover on the basis of this objective personality test?

She was a person who passed the honesty test. Meaning she is a person that I can trust. That the data that Im gathering from her are the truth.[41]

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric Report, [42] which was based on his interview and examination of
Marivic Genosa. The Report said that during the first three years of her marriage to Ben, everything looked good -- the atmosphere was fine, normal and happy -- until Ben
started to be attracted to other girls and was also enticed in[to] gambling[,] especially cockfighting. x x x. At the same time Ben was often joining his barkada in drinking
sprees.
The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to his wife. The Report continued: At first, it was verbal and
emotional abuses but as time passed, he became physically abusive. Marivic claimed that the viciousness of her husband was progressive every time he got drunk. It was a
painful ordeal Marivic had to anticipate whenever she suspected that her husband went for a drinking [spree]. They had been married for twelve years[;] and practically
more than eight years, she was battered and maltreated relentlessly and mercilessly by her husband whenever he was drunk.
Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the Report, [s]he also sought the advice and help of close relatives
and well-meaning friends in spite of her feeling ashamed of what was happening to her. But incessant battering became more and more frequent and more severe. x x x.[43]
From the totality of evidence presented, there is indeed no doubt in the Courts mind that Appellant Marivic Genosa was a severely abused person.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman, her state of mind metamorphoses. In determining her state of mind, we cannot rely
merely on the judgment of an ordinary, reasonable person who is evaluating the events immediately surrounding the incident. A Canadian court has aptly pointed out that
expert evidence on the psychological effect of battering on wives and common law partners are both relevant and necessary. How can the mental state of the appellant be
appreciated without it? The average member of the public may ask: Why would a woman put up with this kind of treatment? Why should she continue to live with such a
man? How could she love a partner who beat her to the point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is her selfrespect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so-called battered wife syndrome.[44]
To understand the syndrome properly, however, ones viewpoint should not be drawn from that of an ordinary, reasonable person. What goes on in the mind of a
person who has been subjected to repeated, severe beatings may not be consistent with -- nay, comprehensible to -- those who have not been through a similar
experience. Expert opinion is essential to clarify and refute common myths and misconceptions about battered women. [45]
The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has had a significant impact in the United States and the United
Kingdom on the treatment and prosecution of cases, in which a battered woman is charged with the killing of her violent partner. The psychologist explains that the cyclical
nature of the violence inflicted upon the battered woman immobilizes the latters ability to act decisively in her own interests, making her feel trapped in the relationship
with no means of escape.[46] In her years of research, Dr. Walker found that the abuse often escalates at the point of separation and battered women are in greater danger of
dying then.[47]
Corroborating these research findings, Dra. Dayan said that the battered woman usually has a very low opinion of herself. She has x x x self-defeating and selfsacrificing characteristics. x x x [W]hen the violence would happen, they usually think that they provoke[d] it, that they were the one[s] who precipitated the violence[; that]
they provoke[d] their spouse to be physically, verbally and even sexually abusive to them. [48]
According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an abusive partner -- poverty, self-blame and guilt arising from the
latters belief that she provoked the violence, that she has an obligation to keep the family intact at all cost for the sake of their children, and that she is the only hope for her
spouse to change.[49]
The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in suits involving violent family relations, having evaluated
probably ten to twenty thousand violent family disputes within the Armed Forces of the Philippines, wherein such cases abounded. As a result of his experience with
domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City. As such, he got involved in about forty (40) cases of severe domestic violence,
in which the physical abuse on the woman would sometimes even lead to her loss of consciousness. [50]
Dr. Pajarillo explained that overwhelming brutality, trauma could result in posttraumatic stress disorder, a form of anxiety neurosis or neurologic
anxietism.[51] After being repeatedly and severely abused, battered persons may believe that they are essentially helpless, lacking power to change their situation. x x
x [A]cute battering incidents can have the effect of stimulating the development of coping responses to the trauma at the expense of the victims ability to muster an active
response to try to escape further trauma. Furthermore, x x x the victim ceases to believe that anything she can do will have a predictable positive effect.[52]
A study[53] conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that even if a person has control over a situation, but believes that
she does not, she will be more likely to respond to that situation with coping responses rather than trying to escape. He said that it was the cognitive aspect -- the
individuals thoughts -- that proved all-important. He referred to this phenomenon as learned helplessness. [T]he truth or facts of a situation turn out to be less important
than the individuals set of beliefs or perceptions concerning the situation. Battered women dont attempt to leave the battering situation, even when it may seem to outsiders
that escape is possible, because they cannot predict their own safety; they believe that nothing they or anyone else does will alter their terrible circumstances. [54]

Thus, just as the battered woman believes that she is somehow responsible for the violent behavior of her partner, she also believes that he is capable of killing her, and
that there is no escape.[55] Battered women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the relationship.[56] Unless a shelter is available, she stays with
her husband, not only because she typically lacks a means of self-support, but also because she fears that if she leaves she would be found and hurt even more. [57]
In the instant case, we meticulously scoured the records for specific evidence establishing that appellant, due to the repeated abuse she had suffered from her spouse
over a long period of time, became afflicted with the battered woman syndrome. We, however, failed to find sufficient evidence that would support such a conclusion. More
specifically, we failed to find ample evidence that would confirm the presence of the essential characteristics of BWS.
The defense fell short of proving all three phases of the cycle of violence supposedly characterizing the relationship of Ben and Marivic Genosa. No doubt there
were acute battering incidents. In relating to the court a quo how the fatal incident that led to the death of Ben started, Marivic perfectly described the tension-building phase
of the cycle. She was able to explain in adequate detail the typical characteristics of this stage. However, that single incident does not prove the existence of the syndrome. In
other words, she failed to prove that in at least another battering episode in the past, she had gone through a similar pattern.
How did the tension between the partners usually arise or build up prior to acute battering? How did Marivic normally respond to Bens relatively minor
abuses? What means did she employ to try to prevent the situation from developing into the next (more violent) stage?
Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply mentioned that she would usually run away to her mothers or
fathers house;[58] that Ben would seek her out, ask for her forgiveness and promise to change; and that believing his words, she would return to their common abode.
Did she ever feel that she provoked the violent incidents between her and her spouse? Did she believe that she was the only hope for Ben to reform? And that she was
the sole support of his emotional stability and well-being? Conversely, how dependent was she on him? Did she feel helpless and trapped in their relationship? Did both of
them regard death as preferable to separation?
In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that would clearly and fully demonstrate the essential characteristics of the syndrome.
The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they were able to explain fully, albeit merely theoretically and
scientifically, how the personality of the battered woman usually evolved or deteriorated as a result of repeated and severe beatings inflicted upon her by her partner or
spouse. They corroborated each others testimonies, which were culled from their numerous studies of hundreds of actual cases. However, they failed to present in court the
factual experiences and thoughts that appellant had related to them -- if at all -- based on which they concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven in order to be appreciated. To repeat, the records lack supporting
evidence that would establish all the essentials of the battered woman syndrome as manifested specifically in the case of the Genosas.

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship does not in itself establish the legal right of the woman to kill her abusive partner. Evidence must still be
considered in the context of self-defense.[59]
From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS defense is the state of mind of the battered woman at the time of the
offense[60] -- she must have actually feared imminent harm from her batterer and honestly believed in the need to kill him in order to save her life.
Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face a real threat on ones life; and the peril sought to be avoided must
be imminent and actual, not merely imaginary.[61] Thus, the Revised Penal Code provides the following requisites and effect of self-defense:[62]
Art. 11. Justifying circumstances. -- The following do not incur any criminal liability:
1.

Anyone who acts in defense of his person or rights, provided that the following circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.
Unlawful aggression is the most essential element of self-defense.[63] It presupposes actual, sudden and unexpected attack -- or an imminent danger thereof -- on the life
or safety of a person.[64] In the present case, however, according to the testimony of Marivic herself, there was a sufficient time interval between the unlawful aggression of
Ben and her fatal attack upon him. She had already been able to withdraw from his violent behavior and escape to their childrens bedroom. During that time, he apparently
ceased his attack and went to bed. The reality or even the imminence of the danger he posed had ended altogether. He was no longer in a position that presented an actual
threat on her life or safety.
Had Ben still been awaiting Marivic when she came out of their childrens bedroom -- and based on past violent incidents, there was a great probability that he would
still have pursued her and inflicted graver harm -- then, the imminence of the real threat upon her life would not have ceased yet. Where the brutalized person is already
suffering from BWS, further evidence of actual physical assault at the time of the killing is not required. Incidents of domestic battery usually have a predictable pattern. To
require the battered person to await an obvious, deadly attack before she can defend her life would amount to sentencing her to murder by installment. [65] Still, impending
danger (based on the conduct of the victim in previous battering episodes) prior to the defendants use of deadly force must be shown. Threatening behavior or
communication can satisfy the required imminence of danger. [66] Considering such circumstances and the existence of BWS, self-defense may be appreciated.
We reiterate the principle that aggression, if not continuous, does not warrant self-defense.[67] In the absence of such aggression, there can be no self-defense -- complete
or incomplete -- on the part of the victim.[68] Thus, Marivics killing of Ben was not completely justified under the circumstances.

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other modifying circumstances that would alter her penalty, we deem it proper to evaluate and
appreciate in her favor circumstances that mitigate her criminal liability. It is a hornbook doctrine that an appeal in a criminal case opens it wholly for review on any issue,
including that which has not been raised by the parties. [69]
From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological Evaluation Report dated November 29, 2000, opined as follows:
This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic experienced with her husband constitutes a form of [cumulative] provocation which
broke down her psychological resistance and natural self-control. It is very clear that she developed heightened sensitivity to sight of impending danger her husband posed
continuously. Marivic truly experienced at the hands of her abuser husband a state of psychological paralysis which can only be ended by an act of violence on her part. [70]
Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of repetitious pain taking, repetitious battering, [and] repetitious maltreatment as
well as the severity and the prolonged administration of the battering is posttraumatic stress disorder. [71] Expounding thereon, he said:
Q What causes the trauma, Mr. Witness?
A

What causes the trauma is probably the repetitious battering. Second, the severity of the battering. Third, the prolonged administration of battering or the
prolonged commission of the battering and the psychological and constitutional stamina of the victim and another one is the public and social support
available to the victim. If nobody is interceding, the more she will go to that disorder....
xxx

xxx

xxx

You referred a while ago to severity. What are the qualifications in terms of severity of the postraumatic stress disorder, Dr. Pajarillo?

The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder is injury to the head, banging of the head like that. It is usually
the very very severe stimulus that precipitate this post[t]raumatic stress disorder. Others are suffocating the victim like holding a pillow on the face,
strangulating the individual, suffocating the individual, and boxing the individual. In this situation therefore, the victim is heightened to painful
stimulus, like for example she is pregnant, she is very susceptible because the woman will not only protect herself, she is also to protect the fetus. So the
anxiety is heightened to the end [sic] degree.

But in terms of the gravity of the disorder, Mr. Witness, how do you classify?

We classify the disorder as [acute], or chronic or delayed or [a]typical.

Can you please describe this pre[-]classification you called delayed or [atypical]?

The acute is the one that usually require only one battering and the individual will manifest now a severe emotional instability, higher irritability remorse,
restlessness, and fear and probably in most [acute] cases the first thing will be happened to the individual will be thinking of suicide.

And in chronic cases, Mr. Witness?

The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it is longer than six (6) months. The [acute] is only the first day to
six (6) months. After this six (6) months you become chronic. It is stated in the book specifically that after six (6) months is chronic. The [a]typical one is
the repetitious battering but the individual who is abnormal and then become normal. This is how you get neurosis from neurotic personality of these
cases of post[t]raumatic stress disorder. [72]

Answering the questions propounded by the trial judge, the expert witness clarified further:
Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x his or her mental capacity?
A

Yes, your Honor.

As you were saying[,] it x x x obfuscated her rationality?

Of course obfuscated.[73]

In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in cumulative provocation which broke down her psychological
resistance and natural self-control, psychological paralysis, and difficulty in concentrating or impairment of memory.
Based on the explanations of the expert witnesses, such manifestations were analogous to an illness that diminished the exercise by appellant of her will power without, however,
depriving her of consciousness of her acts. There was, thus, a resulting diminution of her freedom of action, intelligence or intent. Pursuant to paragraphs 9[74] and 10[75] of Article
13 of the Revised Penal Code, this circumstance should be taken in her favor and considered as a mitigating factor. [76]
In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an impulse so powerful as to have naturally produced passion and
obfuscation. It has been held that this state of mind is present when a crime is committed as a result of an uncontrollable burst of passion provoked by prior unjust or
improper acts or by a legitimate stimulus so powerful as to overcome reason. [77] To appreciate this circumstance, the following requisites should concur: (1) there is an act,
both unlawful and sufficient to produce such a condition of mind; and (2) this act is not far removed from the commission of the crime by a considerable length of time,
during which the accused might recover her normal equanimity.[78]
Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his being killed by Marivic. He had further threatened to kill her while
dragging her by the neck towards a cabinet in which he had kept a gun. It should also be recalled that she was eight months pregnant at the time. The attempt on her life was
likewise on that of her fetus.[79] His abusive and violent acts, an aggression which was directed at the lives of both Marivic and her unborn child, naturally produced passion
and obfuscation overcoming her reason. Even though she was able to retreat to a separate room, her emotional and mental state continued. According to her, she felt her
blood pressure rise; she was filled with feelings of self-pity and of fear that she and her baby were about to die. In a fit of indignation, she pried open the cabinet drawer
where Ben kept a gun, then she took the weapon and used it to shoot him.
The confluence of these events brings us to the conclusion that there was no considerable period of time within which Marivic could have recovered her normal
equanimity. Helpful is Dr. Pajarillos testimony[80] that with neurotic anxiety -- a psychological effect on a victim of overwhelming brutality [or] trauma -- the victim
relives the beating or trauma as if it were real, although she is not actually being beaten at the time. She cannot control re-experiencing the whole thing, the most vicious and
the trauma that she suffered. She thinks of nothing but the suffering. Such reliving which is beyond the control of a person under similar circumstances, must have been

what Marivic experienced during the brief time interval and prevented her from recovering her normal equanimity. Accordingly, she should further be credited with the
mitigating circumstance of passion and obfuscation.
It should be clarified that these two circumstances -- psychological paralysis as well as passion and obfuscation -- did not arise from the same set of facts.
On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery inflicted by the batterer-spouse upon appellant. That is, the
repeated beatings over a period of time resulted in her psychological paralysis, which was analogous to an illness diminishing the exercise of her will power without
depriving her of consciousness of her acts.
The second circumstance, on the other hand, resulted from the violent aggression he had inflicted on her prior to the killing. That the incident occurred when she was
eight months pregnant with their child was deemed by her as an attempt not only on her life, but likewise on that of their unborn child. Such perception naturally produced
passion and obfuscation on her part.
Second Legal Issue:
Treachery

There is treachery when one commits any of the crimes against persons by employing means, methods or forms in the execution thereof without risk to oneself arising
from the defense that the offended party might make. [81] In order to qualify an act as treacherous, the circumstances invoked must be proven as indubitably as the killing
itself; they cannot be deduced from mere inferences, or conjectures, which have no place in the appreciation of evidence. [82] Because of the gravity of the resulting offense,
treachery must be proved as conclusively as the killing itself. [83]
Ruling that treachery was present in the instant case, the trial court imposed the penalty of death upon appellant. It inferred this qualifying circumstances merely from
the fact that the lifeless body of Ben had been found lying in bed with an open, depressed, circular fracture located at the back of his head. As to exactly how and when he
had been fatally attacked, however, the prosecution failed to establish indubitably. Only the following testimony of appellant leads us to the events surrounding his death:
Q You said that when Ben came back to your house, he dragged you? How did he drag you?
COURT:
The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)
A

And he dragged me towards the door backward.

ATTY. TABUCANON:
Q

Where did he bring you?

Outside the bedroom and he wanted to get something and then he kept on shouting at me that you might as well be killed so there will be nobody to nag
me

So you said that he dragged you towards the drawer?

Yes, sir.

What is there in the drawer?

I was aware that it was a gun.

COURT INTERPRETER
(At this juncture the witness started crying)
ATTY. TABUCANON:
Q

Were you actually brought to the drawer?

Yes, sir.

What happened when you were brought to that drawer?

He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key then he pulled his
wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade
fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him
then I ran to the other room, and on that very moment everything on my mind was to pity on myself, then the feeling I had on that very moment was the
same when I was admitted in PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER
(The witness at this juncture is crying intensely).
xxx

xxx

xxx

You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like?

Three (3) inches long and inch wide.

It is a flexible blade?

Its a cutter.

How do you describe the blade, is it sharp both edges?

Yes, because he once used it to me.

How did he do it?

He wanted to cut my throat.

With the same blade?

Yes, sir, that was the object used when he intimidate me.
xxx

xxx

xxx

ATTY. TABUCANON:
Q

You said that this blade fell from his grip, is it correct?

Yes, because I smashed him.

What happened?

Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran to the other room.

What else happened?

When I was in the other room, I felt the same thing like what happened before when I was admitted in PHILPHOS Clinic, I was about to vomit. I know my
blood pressure was raised. I was frightened I was about to die because of my blood pressure.

COURT INTERPRETER:
(Upon the answer of the witness getting the pipe and smashed him, the witness at the same time pointed at the back of her neck or the nape).
ATTY. TABUCANON:
Q

You said you went to the room, what else happened?

Considering all the physical sufferings that Ive been through with him, I took pity on myself and I felt I was about to die also because of my blood pressure
and the baby, so I got that gun and I shot him.

COURT
/to Atty. Tabucanon
Q

You shot him?

Yes, I distorted the drawer.[84]

The above testimony is insufficient to establish the presence of treachery. There is no showing of the victims position relative to appellants at the time of the
shooting. Besides, equally axiomatic is the rule that when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as a qualifying circumstance,
because the deceased may be said to have been forewarned and to have anticipated aggression from the assailant. [85]
Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must have been consciously and deliberately chosen for the specific purpose
of accomplishing the unlawful act without risk from any defense that might be put up by the party attacked.[86] There is no showing, though, that the present appellant
intentionally chose a specific means of successfully attacking her husband without any risk to herself from any retaliatory act that he might make. To the contrary, it appears
that the thought of using the gun occurred to her only at about the same moment when she decided to kill her batterer-spouse. In the absence of any convincing proof that
she consciously and deliberately employed the method by which she committed the crime in order to ensure its execution, this Court resolves the doubt in her favor. [87]

Proper Penalty

The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to death. Since two mitigating circumstances and no aggravating
circumstance have been found to have attended the commission of the offense, the penalty shall be lowered by one (1) degree, pursuant to Article 64 of paragraph 5 [88] of the
same Code.[89] The penalty of reclusion temporal in its medium period is imposable, considering that two mitigating circumstances are to be taken into account in reducing the
penalty by one degree, and no other modifying circumstances were shown to have attended the commission of the offense. [90] Under the Indeterminate Sentence Law, the
minimum of the penalty shall be within the range of that which is next lower in degree -- prision mayor -- and the maximum shall be within the range of the medium period
of reclusion temporal.
Considering all the circumstances of the instant case, we deem it just and proper to impose the penalty of prision mayor in its minimum period, or six (6) years and one
(1) day in prison as minimum; to reclusion temporal in its medium period, or 14 years 8 months and 1 day as maximum. Noting that appellant has already served the
minimum period, she may now apply for and be released from detention on parole. [91]

Epilogue

Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor simple to analyze and recognize vis--vis the given set of facts in the
present case. The Court agonized on how to apply the theory as a modern-day reality. It took great effort beyond the normal manner in which decisions are made -- on the
basis of existing law and jurisprudence applicable to the proven facts. To give a just and proper resolution of the case, it endeavored to take a good look at studies conducted

here and abroad in order to understand the intricacies of the syndrome and the distinct personality of the chronically abused person. Certainly, the Court has learned
much. And definitely, the solicitor general and appellants counsel, Atty. Katrina Legarda, have helped it in such learning process.
While our hearts empathize with recurrently battered persons, we can only work within the limits of law, jurisprudence and given facts. We cannot make or invent
them. Neither can we amend the Revised Penal Code. Only Congress, in its wisdom, may do so.
The Court, however, is not discounting the possibility of self-defense arising from the battered woman syndrome. We now sum up our main points. First, each of the
phases of the cycle of violence must be proven to have characterized at least two battering episodes between the appellant and her intimate partner. Second, the final acute
battering episode preceding the killing of the batterer must have produced in the battered persons mind an actual fear of an imminent harm from her batterer and an honest
belief that she needed to use force in order to save her life. Third, at the time of the killing, the batterer must have posed probable -- not necessarily immediate and actual -grave harm to the accused, based on the history of violence perpetrated by the former against the latter. Taken altogether, these circumstances could satisfy the requisites of
self-defense. Under the existing facts of the present case, however, not all of these elements were duly established.
WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However, there being two (2) mitigating circumstances and no
aggravating circumstance attending her commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision mayor as minimum; to 14 years, 8
months and 1 day of reclusion temporal as maximum.
Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon her, the director of the Bureau of Corrections may immediately RELEASE her from
custody upon due determination that she is eligible for parole, unless she is being held for some other lawful cause. Costs de oficio.
SO ORDERED.
EN BANC
G.R. No. L-8924

November 18, 1913

THE UNITED STATES, Plaintiff-Appellee, vs. DOMINGO RIVERA, ANTONIO RIVERA, and CANUTO BATOON, Defendants-Appellants.
Julio Borbon Villamor, for appellants.
Office of the Solicitor-General Harvey, for appellee.
CARSON, J.:
This is an appeal from a judgment of the Court of First Instance of the Province of Ilocos Sur, convicting the three defendants and appellants of the crime of homicide and
sentencing them to fourteen years eight months and one day of reclusion temporal, together with the accessory penalties prescribed by
law.chanroblesvirtualawlibrary chanrobles virtual law library
The information charging the commission of the crime is as follows: "That the said Domingo Rivera, Antonio Rivera, and Canuto Botoon, the defendants above named, on
December 27, 1912, in the municipality of Vigan Province of Ilocos Sur, P. I., did willfully, criminally, and unlawfully, and with abuse of superior strength, wound and beat
Cayetano Peralta, inflicting upon him various injuries as the result of which the said Cayetano Peralta died on December 31 of the same year; a deed committed in violation of
the law." chanrobles virtual law library
The evidence of record discloses that on the morning of December 27, 1912, a dispute arose between the wife of the deceased and the wife of the defendants Domingo Rivera,
over some question as to the loan of a pair of scissors and the failure to return them. Heated and insulting language passed between the women from the windows of their
houses, which were located quite close together. The deceased appears to have been drawn into the wordy dispute, and as result of an offensive remark made by him to
Rivera and his wife, Rivera went down from his house into the street, and standing in front of the house of the deceased with two stones in his hands, challenged him to come
down and prove which was the better man. The deceased when he heard his challenge from the street became greatly enraged, picked up a large bolo, rushed out of his house
and advanced on Rivera, who being a much smaller man and seeing his adversary approaching him with wih a large bolo in his hand, took to flight. The deceased pursued
him and inflicted upon him two wounds, one in the back and one in the side. Rivera ran into the lot of one of the neighbors and finding himself stopped by a fence, turned
and endeavored to defend himself from the onslaught of the deceased with a small knife or bolo. At that moment the father of Rivera (his coaccused Antonio Rivera) and
Canuto Botoon (the other coaccused) rushed to his assistance. The father with a blow of a heavy piece of cane succeeded in disarming the deceased and at the same moment
Botoon leaped upon him from behind and caught him around the waist. In the melee, which only lasted a second or two, the accused Domingo Rivera inflicted three wounds
upon the deceased, two in the arms and one in the abdomen. The parties were separated almost immediately and the wounded man was carried to the municipal building,
where he died four days thereafter. Domingo Rivera, who inflicted the fatal wounds gave himself up to the local authorities, claiming that what he had done had been done in
self-defense. The deceased, in his ante-mortem statement, charged Domingo Rivera with having inflicted the fatal blow, and Antonio Rivera and Botoon with having joined in
the assault by disarming and holding him while the fight was in progress.chanroblesvirtualawlibrary chanrobles virtual law library
There is considerable conflict in the testimony of the witnesses called at the trial. The story told by the widow of the deceased, who claimed to have seen all that occured from
the window of her house, was substantially as above related, except that she asserted that when her husband went down-stairs with a bolo in his hand Domingo Rivera met
him in the street and with his bolo inflicted two wounds in his arms; that her husband then took to flight and ran away from Rivera until he was stopped by the fence in the
neighbor's yard, where the fatal blow was struck, all three of the accused there joining in the attack.chanroblesvirtualawlibrary chanrobles virtual law library
For an examination of all the evidence of record as well as from a consideration of the inherent improbability of this story, we are well satisfied that the window of the
deceased deliberately inverted the facts with the intention of increasing the criminal liability of the accused.chanroblesvirtualawlibrary chanrobles virtual law library
It is fully and conclusively established that when Domingo Rivera stood in the street challenging her husband to come down and prove which was the better man, he had two
stones in his hands, and it may fairly be inferred from this fact that at that moment he was not armed with a bolo. The bolo with which the fatal wound was inflicted was
produced at the trial in the court below and was shown to be, by comparison with the bolo used by the deceased, a relatively small weapon, referred to indifferently by the
witnesses as a knife or a bolo ( cuchillo o bolo). It does not appear clearly from the record just where or when Domingo Rivera secured this bolo, but it seems clear that it must
either have been handed to him by some person after the accused had rushed upon him and put him to flight, or that he drew it from its sheath while he was endeavoring to
make his escape. The deceased was shown to be a much larger and more powerful man than his adversary, and it would seem to be contrary to the inherent probabilities of
the situation to hold that the smaller man, unarmed or at most armed with a very short small bolo, would succeed in putting to flight his adversary, who by the window's
own statement rushed down from the house to the attack with a large and dangerous bolo in his hand. Moreover the wounds in the back of Domingo Rivera almost

conclusively corroborate his story and the story of various witnesses who testified that they saw him endeavoring to make his escape from the
deceased.chanroblesvirtualawlibrary chanrobles virtual law library
The accused themselves undertook at the trial to relieve themselves of all criminal responsibility: Domingo Rivera insisting that he struck the fatal blow in self-defense at the
moment when the deceased had left himself open to attack by a slip as he approached the fenced place where he (Rivera) turned to await him; and the other two accused
insisting that they did not come up to the party until a few moments after the fight took place, and that they intervened only to help to carry away the wounded man. Their
account of the fight at the fence is in our opinion completely disaproven by the testimony of the witnesses called for both the prosecution and the defense, and we are satisfied
that in declining to tell the truth as to all that occured, Rivera and Batoon were actuated by the fear that if they had taken an active part in the fight they might be punished on
the charge of unlawfully killing the deceased.chanroblesvirtualawlibrary chanrobles virtual law library
The trial judge accepted the story as told by the window and, erroneously as we are convinced, convicted all three defendants of the crime of homicide. As to the accused
Antonio Rivera (the father of Domingo, who inflicted the fatal wound) and Canuto Batoon, we think that they were clearly entitled to acquittal on the ground that their
intervention if the affray was actuated solely by a desire to save their kinsman and friend from imminent danger of death at the hands of his much stronger and better-armed
adversary. It seems quite clear that in striking the bolo from the hands of the deceased and grasping him around the waist, they did no more than the manifest necessities of
the occasion demanded, and that under all the circumstances they cannot be held criminally liable for their intervention on his behalf. It is not contended that they took any
part in the original dispute which resulted in the fatal affray, nor that they were actuated by revenge, resentment or any other evil motive. Article 8 of the Penal Code
provides that:
The following are exempt from criminal liability:
xxx

xxx

xxx

4. Anyone who acts in defense of his person or rights, provided that the following circumstances concur:
(1) Unlawful aggression.chanroblesvirtualawlibrary chanrobles virtual law library
(2) Reasonable necessity for the means employed to prevent or repel it.chanroblesvirtualawlibrary chanrobles virtual law library
(3) Lack of sufficient provocation on the part of the person defending himself.
5. Anyone who acts in defense of the person or rights of his spouse, ascendants, or legitimate, natural, or adopted brothers or sisters, or of his relatives by affinity in the same
degrees, and those by consanguinity within the fourth civil degree, provided that the first and second circumstances prescribed in the next preceding paragraph are present,
and the further circumstance, in case the provocation was given by the person attacked, that the one making defense had no part
therein.chanroblesvirtualawlibrary chanrobles virtual law library
6. Anyone who acts in defense of the person or rights of a stranger, provided that the first and second circumstances mentioned in paragraph four are present, and the further
circumstance that the person defending be not actuated by revenge, resentment, or other evil motive.
As to the accused Domingo Rivera, we are of the opinion that in view of the provocation given by him to the deceased he cannot be said to have established his claim of
absolute exemption from criminal liability on the ground that the killing of the deceased was done in lawful self-defense. The evidence of record leaves no room for doubt
that he provoked the quarrel which resulted in the death of his adversary.chanroblesvirtualawlibrary chanrobles virtual law library
Article 86 of the Penal Code provides as follows: "A penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed were not wholly excusable
by reason of the lack of some of the conditions required for exemption from criminal liability in the several cases mentioned in article 8, provided that the majority thereof be
present. The courts shall impose the penalty in the degree which may be deemed proper, in view of the number and weight of the conditions of exemption present or
lacking." chanrobles virtual law library
Under all the circumstances of this case we are of the opinion that the appellant Domingo Rivera, although guilty of the crime of homicide, should be given the benefit of the
provisions of this article, it appearing that but for the fact that he himself provoked the fatal quarrel, he would be exempt from all criminal liability, on the ground that he
struck the fatal blow in self-defense. The penalty which should have been imposed upon him is, therefore, the penalty lower by one degree than that prescribed for the crime
of homicide.chanroblesvirtualawlibrarychanrobles virtual law library
The judgment of conviction and the sentence imposed by the trial court upon all the defendants and appellants should be and is reversed. The appellants Antonio Rivera and
Canuto Batoon should be and are acquitted of the crime with which they are charged, with their proportionate share of the costs in both instances de oficio, and they will be set
at liberty forthwith. But the defendant Domingo Rivera is hereby declared to be guilty of the crime of homicide with which he was charged, modified nevertheless by the fact
that the fatal blow would have been struck in lawful self-defense but for the fact that he himself provoked the assault of his adversary. He should therefore be, and he is
hereby, sentenced to six years and one day of prision correccional, together with the accessory penalties prescribed by law, and to the payment of his proportionate share of the
cost in both instances.chanroblesvirtualawlibrary chanrobles virtual law library
Arellano, C.J., Torres, Moreland and Trent, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-65762 June 23, 1984

JOSE FRIAS, JR. and GERVACIO TACAS, petitioners-appellants,

vs.
PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN, respondents-appellees.
Marcelino P. Arias for petitioners-appellants.
The Solicitor General for respondents-appellees.

RELOVA, J.:
In this petition for review by certiorari, petition appellants seek reversal of the decision of the Sandiganbayan, the dispositive part of which reads:
WHEREFORE, accused P/Cpl. GERVACIO TACAS and JOSE FRIAS, JR. are hereby found guilty beyond reasonable doubt as principals of the crime
of Murder, qualified by taking advantage of superior strength, defined and penalized under Article 248 of the Revised Penal Code. Taking into account
the mitigating circumstance of voluntary surrender without any aggravating circumstance to offset the same and applying the Indeterminate Sentence
Law, both accused are each sentenced to an indeterminate penalty ranging from ELEVEN (11) YEARS and ONE (1) DAY of prision mayor, as minimum
to EIGHTEEN (18) YEARS and SIX (6) MONTHS of reclusion temporal as maximum; to pay to the heirs of the deceased Bartolome Arellano, jointly and
severally, P15,000.00 for the death of said victim; P5,311.45 as actual damages; P15,000.00 as moral damages; compensatory damages of P40,000.00, by
way of unrealized earnings; and to pay the costs.
Subject homemade "bulldog" gin marked Exhibit 1-a is hereby confiscated in favor of the state; but let the armalite marked Exhibit 1-a which was
issued as official service firearm of P/Cpl. Gervacio Tacas be returned to Sta. Teresita, Cagayan police station for proper disposition. (pp. 96-97, Rollo)
Appellant Gervacio Tacas is a member of the police force of Sta. Teresita, Cagayan; has been a policeman for 24 years and was on duty on August 3, 1980. He admitted having
shot Bartolome Arellano on August 3, 1980. However, he claims that he did so in self-defense and/or in the fulfillment of duty or lawful exercise of a right or office. As aptly
stated by respondent court, "[t]o avoid criminal liability therefor, he has to show to the satisfaction of the Court the attendance of justifying circumstance or circumstances and
must rely on the strength of his own evidence. He can not depend on the weakness of the prosecution's evidence for even if weak, it could not be disbelieved after the accused
himself owned the killing." (p. 81, Rollo)
Respondent court based its finding of guilt of herein appellants on the testimony of Edita Arellano, daughter of the deceased, and the testimonies of Francisco Arellano and
Ricardo Bilag who both claimed to have witnessed the killing. Their testimonies, as summarized by the trial court, are as follows:
Testimony of Edita Arellano
"Second witness for the People was Edita Arellano y Pajela, daughter of the deceased Bartolome Arellano. She testified that her father was a farmer by occupation, planting
rice to a 3 hectare land with an average yield of 80 sacks per harvest every semester at P50.00 per sack. According to her, her late father was an early riser. On August 3, 1980,
he was up at 4:00 in the morning and after preparing food, he went out to the field, as he usually did, to see his carabao. He was in short pants and sweater and unarmed.
"Then, at around 5:30 that fateful morning, she heard a single gunfire followed by three 'bang, bang, bang' and a series of gunshots thereafter, after which somebody who was
running told her that her father was dead. So, she rushed to the highway and found her dead father lying face down with hands and feet stretched and right forearm
supporting the forehead. Many people were around the cadaver and even as she went nearer, she saw policemen taking photographs of the deceased. Then, Cpl. Tabarrejo
turned the cadaver face upward and placed over the abdomen a gun and knife afterwhich pictures thereof were again taken; but she did not see where Cpl. Tabarrejo got the
said gun and knife.
"Pointing to accused Gervacio Tacas in Court, this prosecution witness also testified that she did not know what to do and was crying hysterically in front of Tabarrejo when
the aforementioned acts were being done with her dead father. She was the only one left at home because her mother went to Laoag City. Ignorant, helpless, shocked, and
speechless, she just. watched what the policemen were doing to the mortal body of her late 56 year-old father." (pp. 38-39, Rollo)
Testimony of Francisco Arellano
"According to him, on the night of August 2, 1980, he was in the dance hall within the poblacion of Sta. Teresita, Cagayan. He slept there and went home at about 5:00 the
following morning, reaching Simpatuyo by jeep an hour later. He met accused Gervacio Tacas on the bridge. Tacas, in under wears, was holding an armalite and was with
Jose Frias, Jr. who was armed with a carbine. Being still a second cousin of Tacas, he was not afraid. He trailed Tacas just one and a half meter on the same side of the
barangay road while Frias walked eight meters from them on the other side of the road. From such vantage position, he saw Frias aiming a carbine at Bartolome Arellano who
was then facing Tacas and eight meters from Frias. Bartolome Arellano was unarmed and was walking slowly in a stooping manner at the place reflected in the sketch
(Exhibit F). It was Tacas who first shot Arellano before Frias also fired at the latter but he could not ten if Bartolome was hit then. Thereafter, Bartolome Arellano ran and
Tacas moved such that the latter was about to meet the former. However, when Bartolome Arellano noticed the approaching Tacas, Arellano turned around and ran back to
where he was formerly (the spot marked B. Arellano in Exhibit F) even as Frias moved to the 'RIC' which is made of hollow blocks and Tacas returned to the edge of the LB
canteen. He was beside Tacas when Tacas and Frias fired. Both Tacas and Frias fired twice but more reports came from Tacas who touched the automatic lever of his gun.
After the firing was over, Arellano whirled around and fell face down in the place where there is a palm tree, witness recounted.
"Elaborating on how he managed to observe the happening in question, he explained that he was only a meter away from Tacas and five to six meters from Frias when the
assailants shot the victim. Being still a second cousin to Tacas, he even commented to Tacas 'No more, Manong' but this was after the victim fell and was dead already. Upon
seeing his dead cousin, fear seized him because Tacas might also turn against him. Before leaving the scene, however, he tried to go closer to the fallen victim but only to be
told by Tacas 'Get away from there; otherwise, I will pulverize your face.' Apprehensive of what could happen to him in such a perilous situation, he left, witness narrated.

"This prosecution witness also identified Exhibits E and E-1 to be the pictures of the deceased Bartolome Arellano, a first cousin of his. He admitted that he was never
investigated by the police and did not present himself to the PC authorities in Aparri or elsewhere for investigation in connection with the incident under inquiry; and that it
was only before Fiscal Ferrer the day before he testified in court that he executed an affidavit for the first time in relation to this case. He never moved to another place since
the time of the shooting at bar took place but he was not able to present himself as a witness earlier for the reason that some people in their locality made him understand that
he is disqualified to be a witness in the case involving a first cousin of his. He was still at the scene of the crime when police probers arrived but because he was never asked,
he did not volunteer any information. However, he told Edita, daughter of the deceased, that he witnessed the shooting but she said 'Never mind, Tatang.' During the burial,
he also informed other relatives, like his Uncles Mando Arellano and Tolentino Arellano, of what he saw in the same way that he told the bereaved widow of the victim.
During the wake, there were also police investigators but inasmuch as nobody inquired as to who shot the victim, he did not tell anything to the investigators; besides, he was
out for work, witness who insisted that he witnessed the shooting complained of, pointed out.
"Finally, this witness divulged that the victim was not carrying anything at the time the two accused shot him (victim).lwphl@it In fact, the victim was only wearing short
pants and 'bad shirt,' he added." (pp. 40-43, Rollo)
Testimony of Ricardo Bilag
"Ricardo Bilag y Sotelo, security guard by occupation and who stayed in barangay Simpatuyo, Sta. Teresita, Cagayan from July 23, 1980 to January 1981, was the fourth
People's witness in this case. Among other things, he declared that during the aforesaid period, he sojourned with his cousin, Ernesto Lazo, whose house is located in the
place indicated with initial 'EL' (Exhibit F-1) in Exhibit F. On August 3, 1980, he was, therefore, in the house of Ernesto Lazo. Waking up at 5:45 a.m. on Id date, he was by the
window facing the national road to San Vicente when he witnessed the unusual incident wherein Bartolome Arellano was killed. Before Bartolome Arellano was fatally shot,
the latter was walking on the national road and was being followed by accused Gervacio Tacas who was with an armalite. Tacas was wearing brief and sleeveless shirt.
Standing by the road behind Tacas was accused Jose Frias, Jr. who was with a carbine. At the far end of the barangay road walking to and fro around four meters from Tacas
was Francisco Arellano. Bartolome Arellano was without any weapon. He was wearing dark shoes and brown long sleeves shirt.
"According to this witness, when Tacas was following Bartolome Arellano, the latter went to hide behind the 'RIC' concrete marker even as Tacas was aiming the gun at him
(Bartolome Arellano). After Tacas fired twice, Bartolome Arellano ran towards a 'silag' tree about 12 meters from the 'RIC' concrete market but he was again followed by Tacas
who crossed the national road and went near the same 'silag' tree; and when Bartolome Arellano tried to go to the national road and was passing by the store, the latter was
shot by Tacas, at which precise time, Frias was at the roadside, lying with stomach down and aiming also his gun at Bartolome Arellano. Frias maintained such position while
Bartolome Arellano was behind the 'RIC' concrete marker and fired once at the latter. Then, when Bartolome Arellano went to the place of the 'silag' tree, Frias remained
thereat and when Bartolome Arellano was moving to the national road, Frias stood in the middle of the road and fired again but he (witness) could not tell if the victim was
hit. After Bartolome Arellano was shot by Tacas, said victim slowly slumped to the ground and thereafter, Frias went home. It was Tacas who first fired at the victim where
the victim was passing near the store. Frias fired later at the victim who was then slowly slumping to the ground. He subsequently saw Edita, daughter of the deceased,
crying by the side of her fallen father, so this witness recollected.
"He likewise divulged that he executed his affidavit (Exhibit G) on September 14, 1980 before Provincial Fiscal Bello in Aparri, Cagayan. Afraid that the culprits might kin
him, he motored 30 kilometers to Aparri subscribe and swear to such sworn statement of his. He is not related in anyway to the. deceased. He actually saw Francisco Arellano
at the crime scene. He even told Sianing Arellano, a brother. of the deceased, of that fact.
"On cross-examination, this prosecution witness testified further that his permanent place of abode is Dapdap, Amulong, Cagayan, more or less 80 kilometers from
Simpatuyo, Sta. Teresita. However, he used to go to Sta. Teresita for vacation. He only does not know if the people of said place know him well. In the last week of July 1980,
he was staying in the house of his cousin, Ernesto Lazo, four houses from Gervacio Tacas' house. Before July 23, 1980, he did not personally know Bartolome Arellano.
Although he knows Raymundo Arellano, supposed to be one of the richest resident in the place, he was not aware that Raymundo is the father of Bartolome. Reminiscing
how he happened to be a witness in the case, this witness disclosed that upon the request of Sianing Arellano, Ernesto Lazo asked him if he was really present during the
happening of the incident in question and he answered his cousin affirmatively. He admitted, however, that he was never investigated by the police. Not having been asked
by the police officers who were at the crime scene, he did not volunteer any information. Neither did he let Edita, daughter of the deceased, know what he saw. He only
decided to give his written statement on September 14, 1980 in Aparri in which statement he was not able to mention the presence of Francisco Arellano at the crime scene.
Said affidavit of his was made by Atty. Jose Brillantes in Bugey, Cagayan in the presence of another witness and a brother of the deceased. Prior thereto, he was also called
once by Mayor Bernoli Arquero of Sta. Teresita and requested by the Mayor to testify for the prosecution; but the sole reason for him to testify in court is to help the court
gather the truth regarding the shooting incident under inquiry.
"This witness also narrated that it was only after the incident at bar that he learned that Jaime Yerre, Jr. and Manuel Pajela were also shot on August 3, 1980 and he heard that
it was Bartolome Arellano who shot the two during a mahjong game; but he does not know if the buckshot used by Bartolome Arellano in shooting said victims was
recovered by the police authorities. According to him, Bartolome Arellano was not carrying anything when he saw him after hearing the first burst of gunfire." (pp. 43-47,
Rollo) The trial court said:
Obviously, unlawful aggression is the main ingredient of self-defense. Without unlawful aggression, there can be no self-defense, complete or
incomplete. And it is unlawful aggression which imperils one's life, limb or right either actually or imminently, that makes the invocation of selfdefense feasible. In short, before he was shot to death, did the victim create or constitute any menace to the accused? Painstakingly evaluating the
gamut of evidence at hand, We can not divine how an unarmed person could have done unlawful aggression against two heavily armed men. To be
sure, the showing that Bartolome Arellano was without any deadly weapon when he met his violent death is too overwhelming to be overlooked.
Waking up at 4:00 in the morning of August 3, 1980, as was his daily routine, he cooked food for his family after which, with short pants and "bad
shirt" to cover his body, he went down for the nearby ricefield to attend to his working animal. It does not appear that he had any gun or even a bolo.
Indeed, from all appearances, he did not go out to do violence against anybody. In fact, he was seen later by the prosecution witnesses, notably
Francisco Arellano, Jr. and Ricardo Bilag, going from one place to another in a determined effort to save dear life from the advancing Gervacio Tacas
and Jose Frias, Jr. who were combat-ready and armed to the teeth. Said prosecution witnesses succinctly testified that Bartolome Arellano was not
holding anything at that unlucky moment. If he had a bulldog gun and a bolo tucked to the waist, considering that it was already 6:00 in the morning
at the time, bright enough for everybody to observe the happening under inquiry, it would be easy for the prosecution witnesses to detect any weapon
in the possession of the victim but the truth is he had none and could not have been a real to the life and limb of Tacas and Frias who were respectively
armed with an armalite and a carbine. As a matter of fact, the victim was actually running away. Then, too, if there was any cap for him to sender by
the heavily armed Tacas who was assisted by Frias, Bartolome Arellano would have meekly heeded the same, no doubt.
All things considered, We find the victim incapable of unlawful aggression. The situation he was in belies self-defense.

Absent unlawful aggression on the part of the victim it is needless for Us to discuss lengthily the other requirements for valid self-defense. As aptly
held in a recent decision of Ours, when there is no unlawful aggression to speak of, there is nothing to defend against or repel And the requisites that
there be reasonable necessity in the means employed to repel unlawful aggression and lack of sufficient provocation on the part of the person
defending himself have no room for application.
Neither is the justifying circumstance of fulfilment of duty under paragraph 5 of Article 11 of the Revised Penal Code availing, it appearing that the
victim was truly unarmed and it was not necessary to shoot him. Peace officers are never justified in using unnecessary force, wanton violence or
dangerous means. Not even a hardened criminal should be handled in the manner complained of. (pp. 82-84, Rollo)
However, the Solicitor General, in his Comment, said that the findings of the trial court are not supported by the evidence; that an objective analysis of the evidence in fact
discloses overwhelming proof that Bartolome Arellano was armed and shot certain persons, including appellant Tacas. He recommends acquittal of petitioners-appellants.
Manuel Pajela and Jaime Yerre, Jr. testified that while they were playing mahjong at about 5:30 in the morning of August 3, 1980, they were fired at with a shotgun by
Bartolome Arellano. Prosecution witness Ricardo Bilag confirms the version of the defense that Bartolome Arellano shot and wounded Pajela and Yerre with a shotgun.
Hereunder is Bilag's testimony on this point
ATTY. PAZ:
Q And you heard that first shot before you saw Jose Frias, is that right?
WITNESS:
A Yes, sir.
ATTY. PAZ:
Q Now, tell the truth Mr. witness. Did you come to know that on the morning of August 3, 1980, BARTOLOME Arellano shot at
the persons who were playing mahjong at Simpatuyo and wounded two of them?
WITNESS:
A After the incident I came to know there were two persons hit.
ATTY. PAZ:
Q And these persons whom you came to know who were hurt were Jaime Yerre, Jr. and Manuel Pajela?
WITNESS:
A Yes, sir.
ATTY. PAZ:
Q And you even heard after the incident that it was Bartolome Arellano who shot Jaime Yerre and Manuel Pajela which cause
their injury?
WITNESS:
A After that incident I also heard the same thing that he shot Jaime Yerre and Manuel Pajela.
ATTY. PAZ:
Q And you heard also that Bartolome Arellano shot them on August 3, 1980 with a buckshot?
PRESIDING JUSTICE PAMARAN:
You are assuming that he knows what a buckshot is.
ATTY. PAZ:
I will lay the basis.
JUSTICE ESCAREAL:

Q Do you know what a buckshot is known in Cagayan?

WITNESS:
A Yes, sir.
JUSTICE ESCAREAL:
Q What is it?
WITNESS:
A A gun with 13 cage bullets.
JUSTICE ESCAREAL:
Q Meaning a shotgun using 12 bullets that is usually used in some parts of Cagayan even before Martial Law?
WITNESS:
A Yes, sir. (pp. 50-62, tsn., hearing November 19, 1981)
Further, he admitted that when he (Bilag) saw appellant Tacas that early morning, the latter was wearing only a brief and sleeveless shirt. This supports the testimony of
Tacas that he was sleeping when he was suddenly awakened by the sound of gunfire followed by cries of Pajela's wife for help; that looking at the window, he saw Pajela
bleeding and about to be carried inside his house; and that he then grabbed his service armalite and went down in his brief and undershirt. As observed by the Solicitor
General, if Tacas did plan the killing of Arellano, he would have put on a more respectable attire. The fact that he went out in the street in his brief confirms the truth of his
testimony that he merely responded to an urgent call for help.
Dr. Ferdinand Cario of the Ponce Enrile Memorial Hospital testified that on August 3, 1980 he treated Manuel Pajela and Jaime Yerre for gunshot wounds and were
thereafter confined at the hospital.
With respect to the testimony of Francisco Arellano, the Solicitor General claims that the same is "so unbelievable that no one hardly knows where to begin in pointing out the
falsity of his declaration. Thus:
1. The improbability of F. Arellano's testimony is no more manifest than from his claim that he was present when the crane was committed. Could it be
believed that Tacas, a veteran policeman for 24 years would be so rash as to ambush the deceased in the presence of his first degree cousin? (pp. 22-24,
tsn., October 28, 1981).
2. The testimony of F. Arellano that Bartolome Arellano was shot while unarmed and in coldblood is rendered more improbable by the time and place
of the incident. The road is hardly the place to court murder, especially when it is 'already bright.' (pp. 20, 27, tsn., October 29, 1981).
3. F. Arellano testified that before the shooting, there were many people near the bridge who witnessed the shooting. They were "Edring, Dianong, Mr.
Consejal Pagarigan, Macario Soliven, Ernesto Gallardo" and the father of the victim (pp. 32-34, tsn, October 29, 1981). Why would Tacas kill B. Arellano
under the circumstances depicted by the prosecution? Common sense dictates against acceptance of a story that pictures a lawman killing an old and
defenseless man for no apparent reason and in the presence of so many witnesses.
4. F. Arellano could not even be consistent. On direct examination, he declared that he was beside Tacas when the latter shot and killed B. Arellano (p.
8, Decision).lwphl@it On cross-examination,. he was no longer beside Tacas but five to six meters away (p. 9, Decision).
5. F. Arellano declared that Tacas was wearing 'short pants (P. 11, Decision). What the other eyewitness for the prosecution saw was something else.
According to Bilag, Tacas was wearing only a "brief" (p. 11, Decision). If indeed Tacas was wearing a brief, Bilag's testimony complements the
testimony of Tacas that he was sleeping when awakened by the sound of gunfire and hurriedly went down ' to investigate. Either F. Arellano or Bilag
is lying. Both can not be right.
6. F. Arellano's testimony was that Tacas and Frias were walking when they met B. Arellano (p. 8, Decision). What Bilag saw was B. Arellano being
followed by Tacas (p. 11, Decision).
7. F. Arellano declared that Tacas shot B. Arellano upon seeing him (p. 8, Decision appended to Petition). Bilag's testimony is different. Although on
direct examination, Bilag declared that Tacas fired two shots when B. Arellano hid behind the 'RIC' concrete marker, he clarified this on crossexamination, declaring that when Tacas fired his first shot, the gun was aimed upwards (p. 64, tsn., November 19, 1981). Bilag further testified that
when B. Arellano reached the silag tree, Tacas fired another shot aimed "upwards" (p. 69, Id.)
xxx xxx xxx

8. F. Arellano was not listed as one of the prosecution witnesses. He simply appeared out of the blue as a witness for the prosecution on October 28,
1981, one year, two months after the incident and while the trial was in progress. In fact, his affidavit was executed only the day before he testified, or
on October 27, 1981.
His appearance only at the trial is unnatural because, according to him, he had told the widow of the victim and his uncles, Raymundo and Tolentino
Arellano at the wake that he witnessed the incident (p. 33, tsn., October 28, 1981; pp. 12-15, tsn., October 29, 1981). He also claims to have told Edita,
the victim's daughter, after the burial (p. 32, tsn., October 28 , 1981). And yet he was not investigated. Nor did he present himself for investigation to
the police, PC or fiscal. Plainly, he was a conjured witness for the prosecution.
xxx xxx xxx
9. There is paucity of material details in the testimony of F. Arellano. Thus, Bilag who was farther away from Tacas heard more of Tacas' words and
saw more of Tacas' movements and actions than F. Arellano who claims to have been only a few meters distant from Tacas.
10. F. Arellano testified that he saw Ricardo Bilag before and after the shooting near or at the scene of the crime (pp. 30-34, tsn., October 29, 1981).
According to Bilag, he was not investigated by the police; because he "did not get near the scene of the crime" (p. 38, tsn., November 19, 1981).
11. The testimony of F. Arellano starts only from. the time Tacas and Frias were about to shoot B. Arellano. It does not therefore refute the testimony of
the defense witnesses that before Arellano was killed, he shot Manuel Pajela and Jaime Yerre Jr. with a shotgun. (pp. 129-131, 134-135, Rollo)
On the other hand, appellant Gervacio Tacas testified that at about 5:00 in the morning of August 3, 1980, he was awakened from his sleep by the sound of gunfire, that
hearing a woman shouting for help east of his house, he opened the window and saw Pajela slumped on a table, blood oozing from his body, that he grabbed his armalite
rifle, went out and saw Bartolome Arellano with a gun proceeding towards the RIC marker (p. 20-26, tsn., January 11, 1983." (pp. 126-127, Rollo)
Appellant Jose Frias testified that "at about 5:30 in the morning of August 3, 1980, he was awakened when he heard a loud explosion coming from the eastern side of his
house. that he looked out of the window and saw Pajela lying on a table, bleeding, that he went down and saw Tacas, his father-in-law, calling upon Bartolome Arellano to
surrender; and that Bartolome Arellano was in the street proceeding towards the RIC marker, and that Bartolome Arellano was armed with a "bulldog" shotgun (pp. 5-9, tsn.,
March 14, 1983)." (p. 127, Rollo)
The testimonies of petitioners-appellants were corroborated by Teodoro Paguirigan, a nephew of Bartolome Arellano; Modesto Macarubbo, Station Commander of Sta.
Teresita Police Station, and Cpl. Silvino Tabarrejo.
Teodoro Paguirigan declared that when he heard gunfires at about 5:00 in the morning of August 3, 1980, he stood-up, looked out of the window and saw Bartolome Arellano
leaving the house of Pajela with a shotgun on his hand and a bolo on his waist. Later, Paguirigan saw Bartolome Arellano point his gun and shot at Tacas.
Modesto Macarubbo testified that when he arrived at the scene of the incident, he recovered a shotgun and a bolo from under the body of Bartolome Arellano. The gun had
one (1) empty shell in its chamber,
Corporal Silvino Tabarrejo, who arrived at the place with Commander Macarubbo, said Bartolome Arellano's right hand was holding a homemade shot gun while on his
waist was tucked a knife.
The above testimonies find corroboration on the fact that pellets, gauge 12 (Exhibits 1b2 and 1b3 were extracted by the police from one of the posts of Eny Peralta's store
where appellant Tacas sought cover. These pellets match the empty shell, which is also gauge 12, found in the shotgun's chamber (Exhibit 1b As correctly observed by the
Solicitor General, "these items, taken together with the testimonies of both the defense and prosecution witnesses, indubitably prove that Bartolome Arellano was armed and
he shot at appellant Tacas." (p, 128, Rollo)
The law recognizes the non-existence of a crime when it expressly stated in the opening sentence of Article 11 of the Revised Penal Code that the persons therein mentioned
"do 4 not incur any criminal liability." If there is a circumstance justifying the defendant's act, he is exempt from both criminal and civil liability, except in paragraph 4 of this
Article 11, where the civil liability is borne by the persons benefited by the act.
The fifth justifying circumstance which exempts a person from criminal liability is found in this provision: "Any person who acts in the fulfillment of a duty or in the lawful
exercise of a right or office." The requisites of the defense of fulfillment of duty are: (1) that the accused acted in the performance of a duty or in the lawful exercise of a right or
duty; (2) that the injury caused or the offense committed be the necessary consequence of the due performance of duty or the lawful exercise of such right.
The Solicitor General expressed the view, with reason, that Tacas acted in the performance of his duty. Again, We quote from the brief of the Solicitor General:
... The information clearly states so, thus: "That the crime was committed by the accused Gervacio Tacas in relation to his office as a policeman" (p. 2,
Decision). And so do the facts he was awakened from his sleep by the sound of gunfire followed by cries of a neighbor for help; he stood up, look
out of the window, saw Pajela bleeding on top of a table about to be carried to his house; he grabbed his armalite rifle, went out of the house, saw
Bartolome Arellano with a shotgun leaving Pajela's yard, went after him, fired warning shots and asked him to surrender undisputed facts which
clearly show that Tacas acted in the performance of his duty.
Anent the second requisite that the injury caused or the offense committed be the necessary consequence of duty or the lawful exercise of right or
office it is difficult not to give Tacas the benefit of the doubt. It is shown by the evidence that B. Arellano was armed with a shotgun. It is undisputed
that Tacas fired a warning shot, asked B. Arellano to surrender, and then fired another warning shot. So when B. Arellano refused to surrender but
tried to elude arrest and pointed his gun at Tacas, first at the RIC marker and then at the silag tree, Tacas had very little choice but to use his weapon.
In fact, according to Paguirigan, B. Arellano and Tacas fired "simultaneously" (p. 24, Decision).lwphl@it

While there are limits to the lawful exercise of a right or duty, at the same time, it should not be required of a policeman to unnecessarily expose
himself to peril. In this case, B. Arellano was armed, refused to surrender, tried to elude arrest, pointed his shotgun at Tacas and later shot at him. As it
was the duty of Tacas to arrest B. Arellano and to prevent him from escaping, sooner or later, it would come to the point where the lawman and the
suspect had to face each other. In that crucial moment when Tacas and B. Arellano, both armed, faced each other, they had to make a split decision of
putting their guns down or firing. They both elected to fire and B. Arellano was killed while Tacas survived. Under these circumstances, it can hardly
be said that Tacas should not have fired at all. As his life was in peril, his judgment can not be questioned. (pp. 148-149, Rollo)
With respect to the case of appellant Frias, the Solicitor General submits that "apart from the dubious and false testimonies of F. Arellano and Bilag, the prosecution has not
shown any positive and convincing evidence of conspiracy." He divulged that
1. There is total absence of motive for Frias to shoot B. Arellano, a fact plainly overlooked by the trial court. In the absence of motive, it is difficult to
assume that Frias conspired with Tacas in murdering B. Arellano.
2. There is total absence of evidence that Frias and Tacas planned to kill B. Arellano. In fact, the circumstances surrounding the death of B. Arellano
simply point only to one question, that is, whether the killing was justified by the defense of fulfillment of duty.
3. Assuming arguendo that Frias also shot at B. Arellano, his participation in the incident was purely accidental and unforeseen, geared most probably
to the protection of Tacas, his father-in-law, as the trial court itself assumed (p. 58. Decision). That negates conspiracy.
4. The relationship of Frias and Tacas is no proof of conspiracy (People vs. Geronimo, 53 SCRA 246). (p. 156, Rollo)
It is settled rule that conspiracy can not be presumed, but must be proven as convincingly as the crane itself. The crime of murder has not beer proven.
There is therefore hardly any reason to convict Frias as a co-conspirator of Tacas. (p. 157, Rollo)
ACCORDINGLY, as recommended by the Solicitor General on the ground that Gervacio Tacas acted in the fulfillment of a duty and in the legitimate exercise of his authority,
said appellant is hereby ACQUITTED of the crime charged.
For insufficiency of evidence, appellant Jose Frias, Jr. is also ACQUITTED.
SO ORDERED.