Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-47722 July 27, 1943
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-
appellants.
Antonio Z. Oanis in his own behalf.
Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibaez and Assistant Attorney Torres for
appellee.
MORAN, J.:
Charged with the crime of murder of one Serapio Tecson, the
accused Antonio Z. Oanis and Alberto Galanta, chief of police of
Cabanatuan and corporal of the Philippine Constabulary,
respectively, were, after due trial, found guilty by the lower court
of homicide through reckless imprudence and were sentenced
each to an indeterminate penalty of from one year and six months
to two years and two months of prison correccional and to
indemnify jointly and severally the heirs of the deceased in the
amount of P1,000. Defendants appealed separately from this
judgment.
In the afternoon of December 24, 1938. Captain Godofredo
Monsod, Constabulary Provincial Inspector at Cabanatuan, Nueva
Ecija, received from Major Guido a telegram of the following
tenor: "Information received escaped convict Anselmo Balagtas
with bailarina and Irene in Cabanatuan get him dead or alive."
Captain Monsod accordingly called for his first sergeant and asked
that he be given four men. Defendant corporal Alberto Galanta,
and privates Nicomedes Oralo, Venancio Serna and D. Fernandez,
upon order of their sergeant, reported at the office of the
Provincial Inspector where they were shown a copy of the above-
quoted telegram and a newspaper clipping containing a picture of
Balagtas. They were instructed to arrest Balagtas and, if
overpowered, to follow the instruction contained in the telegram.
The same instruction was given to the chief of police Oanis who
was likewise called by the Provincial Inspector. When the chief of
police was asked whether he knew one Irene, a bailarina, he
answered that he knew one of loose morals of the same name.
Upon request of the Provincial Inspector, the chief of police tried
to locate some of his men to guide the constabulary soldiers in
ascertaining Balagtas' whereabouts, and failing to see anyone of
them he volunteered to go with the party. The Provincial Inspector
divided the party into two groups with defendants Oanis and
Galanta, and private Fernandez taking the route to Rizal street
leading to the house where Irene was supposedly living. When this
group arrived at Irene's house, Oanis approached one Brigida
Mallare, who was then stripping banana stalks, and asked her
where Irene's room was. Brigida indicated the place and upon
further inquiry also said that Irene was sleeping with her
paramour. Brigida trembling, immediately returned to her own
room which was very near that occupied by Irene and her
paramour. Defendants Oanis and Galanta then went to the room
of Irene, and an seeing a man sleeping with his back towards the
door where they were, simultaneously or successively fired at him
with their .32 and .45 caliber revolvers. Awakened by the
gunshots, Irene saw her paramour already wounded, and looking
at the door where the shots came, she saw the defendants still
firing at him. Shocked by the entire scene. Irene fainted; it turned
out later that the person shot and killed was not the notorious
criminal Anselmo Balagtas but a peaceful and innocent citizen
named Serapio Tecson, Irene's paramour. The Provincial
Inspector, informed of the killing, repaired to the scene and when
he asked as to who killed the deceased. Galanta, referring to
himself and to Oanis, answered: "We two, sir." The corpse was
thereafter brought to the provincial hospital and upon autopsy by
Dr. Ricardo de Castro, multiple gunshot wounds inflicted by a .32
and a .45 caliber revolvers were found on Tecson's body which
caused his death.
These are the facts as found by the trial court and fully supported
by the evidence, particularly by the testimony of Irene Requinea.
Appellants gave, however, a different version of the tragedy.
According to Appellant Galanta, when he and chief of police Oanis
arrived at the house, the latter asked Brigida where Irene's room
was. Brigida indicated the place, and upon further inquiry as to the
whereabouts of Anselmo Balagtas, she said that he too was
sleeping in the same room. Oanis went to the room thus indicated
and upon opening the curtain covering the door, he said: "If you
are Balagtas, stand up." Tecson, the supposed Balagtas, and Irene
woke up and as the former was about to sit up in bed. Oanis fired
at him. Wounded, Tecson leaned towards the door, and Oanis
receded and shouted: "That is Balagtas." Galanta then fired at
Tecson.
On the other hand, Oanis testified that after he had opened the
curtain covering the door and after having said, "if you are
Balagtas stand up." Galanta at once fired at Tecson, the supposed
Balagtas, while the latter was still lying on bed, and continued
firing until he had exhausted his bullets: that it was only thereafter
that he, Oanis, entered the door and upon seeing the supposed
Balagtas, who was then apparently watching and picking up
something from the floor, he fired at him.
The trial court refused to believe the appellants. Their testimonies
are certainly incredible not only because they are vitiated by a
natural urge to exculpate themselves of the crime, but also
because they are materially contradictory. Oasis averred that be
fired at Tecson when the latter was apparently watching
somebody in an attitudes of picking up something from the floor;
on the other hand, Galanta testified that Oasis shot Tecson while
the latter was about to sit up in bed immediately after he was
awakened by a noise. Galanta testified that he fired at Tecson, the
supposed Balagtas, when the latter was rushing at him. But Oanis
assured that when Galanta shot Tecson, the latter was still lying
on bed. It is apparent from these contradictions that when each of
the appellants tries to exculpate himself of the crime charged, he
is at once belied by the other; but their mutual incriminating
averments dovetail with and corroborate substantially, the
testimony of Irene Requinea. It should be recalled that, according
to Requinea, Tecson was still sleeping in bed when he was shot to
death by appellants. And this, to a certain extent, is confirmed by
both appellants themselves in their mutual recriminations.
According, to Galanta, Oanis shot Tecson when the latter was still
in bed about to sit up just after he was awakened by a noise. And
Oanis assured that when Galanta shot Tecson, the latter was still
lying in bed. Thus corroborated, and considering that the trial
court had the opportunity to observe her demeanor on the stand,
we believe and so hold that no error was committed in accepting
her testimony and in rejecting the exculpatory pretensions of the
two appellants. Furthermore, a careful examination of Irene's
testimony will show not only that her version of the tragedy is not
concocted but that it contains all indicia of veracity. In her cross-
examination, even misleading questions had been put which were
unsuccessful, the witness having stuck to the truth in every detail
of the occurrence. Under these circumstances, we do not feel
ourselves justified in disturbing the findings of fact made by the
trial court.
The true fact, therefore, of the case is that, while Tecson was
sleeping in his room with his back towards the door, Oanis and
Galanta, on sight, fired at him simultaneously or successively,
believing him to be Anselmo Balagtas but without having made
previously any reasonable inquiry as to his identity. And the
question is whether or not they may, upon such fact, be held
responsible for the death thus caused to Tecson. It is contended
that, as appellants acted in innocent mistake of fact in the honest
performance of their official duties, both of them believing that
Tecson was Balagtas, they incur no criminal liability. Sustaining
this theory in part, the lower court held and so declared them
guilty of the crime of homicide through reckless imprudence. We
are of the opinion, however, that, under the circumstances of the
case, the crime committed by appellants is murder through
specially mitigated by circumstances to be mentioned below.
In support of the theory of non-liability by reasons of honest
mistake of fact, appellants rely on the case of U.S. v. Ah Chong, 15
Phil., 488. The maxim is ignorantia facti excusat, but this applies
only when the mistake is committed without fault or carelessness.
In the Ah Chong case, defendant therein after having gone to bed
was awakened by someone trying to open the door. He called out
twice, "who is there," but received no answer. Fearing that the
intruder was a robber, he leaped from his bed and called out
again., "If you enter the room I will kill you." But at that precise
moment, he was struck by a chair which had been placed against
the door and believing that he was then being attacked, he seized
a kitchen knife and struck and fatally wounded the intruder who
turned out to be his room-mate. A common illustration of
innocent mistake of fact is the case of a man who was marked as
a footpad at night and in a lonely road held up a friend in a spirit
of mischief, and with leveled, pistol demanded his money or life.
He was killed by his friend under the mistaken belief that the
attack was real, that the pistol leveled at his head was loaded and
that his life and property were in imminent danger at the hands of
the aggressor. In these instances, there is an innocent mistake of
fact committed without any fault or carelessness because the
accused, having no time or opportunity to make a further inquiry,
and being pressed by circumstances to act immediately, had no
alternative but to take the facts as they then appeared to him, and
such facts justified his act of killing. In the instant case, appellants,
unlike the accused in the instances cited, found no circumstances
whatsoever which would press them to immediate action. The
person in the room being then asleep, appellants had ample time
and opportunity to ascertain his identity without hazard to
themselves, and could even effect a bloodless arrest if any
reasonable effort to that end had been made, as the victim was
unarmed, according to Irene Requinea. This, indeed, is the only
legitimate course of action for appellants to follow even if the
victim was really Balagtas, as they were instructed not to kill
Balagtas at sight but to arrest him, and to get him dead or alive
only if resistance or aggression is offered by him.
Although an officer in making a lawful arrest is justified in using
such force as is reasonably necessary to secure and detain the
offender, overcome his resistance, prevent his escape, recapture
him if he escapes, and protect himself from bodily harm
(People vs. Delima, 46 Phil, 738), yet he is never justified in using
unnecessary force or in treating him with wanton violence, or in
resorting to dangerous means when the arrest could be effected
otherwise (6 C.J.S., par. 13, p. 612). The doctrine is restated in the
new Rules of Court thus: "No unnecessary or unreasonable force
shall be used in making an arrest, and the person arrested shall
not be subject to any greater restraint than is necessary for his
detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot
claim exemption from criminal liability if he uses unnecessary
force or violence in making an arrest (5 C.J., p. 753;
U.S. vs. Mendoza, 2 Phil., 109). It may be true that Anselmo
Balagtas was a notorious criminal, a life-termer, a fugitive from
justice and a menace to the peace of the community, but these
facts alone constitute no justification for killing him when in
effecting his arrest, he offers no resistance or in fact no resistance
can be offered, as when he is asleep. This, in effect, is the principle
laid down, although upon different facts, in U.S. vs. Donoso (3
Phil., 234, 242).
It is, however, suggested that a notorious criminal "must be taken
by storm" without regard to his right to life which he has by such
notoriety already forfeited. We may approve of this standard of
official conduct where the criminal offers resistance or does
something which places his captors in danger of imminent attack.
Otherwise we cannot see how, as in the present case, the mere
fact of notoriety can make the life of a criminal a mere trifle in the
hands of the officers of the law. Notoriety rightly supplies a basis
for redoubled official alertness and vigilance; it never can justify
precipitate action at the cost of human life. Where, as here, the
precipitate action of the appellants has cost an innocent life and
there exist no circumstances whatsoever to warrant action of such
character in the mind of a reasonably prudent man, condemnation
not condonation should be the rule; otherwise we should
offer a premium to crime in the shelter of official actuation.
The crime committed by appellants is not merely criminal
negligence, the killing being intentional and not accidental. In
criminal negligence, the injury caused to another should be
unintentional, it being simply the incident of another act
performed without malice. (People vs. Sara, 55 Phil., 939). In the
words of Viada, "para que se celifique un hecho de imprudencia
es preciso que no haya mediado en el malicia ni intencion alguna
de daar; existiendo esa intencion, debera calificarse el hecho del
delito que ha producido, por mas que no haya sido la intencion del
agente el causar un mal de tanta gravedad como el que se
produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag.
7). And, as once held by this Court, a deliberate intent to do an
unlawful act is essentially inconsistent with the idea of reckless
imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor,
56 Phil., 16), and where such unlawful act is wilfully done, a
mistake in the identity of the intended victim cannot be
considered as reckless imprudence (People vs. Gona, 54 Phil., 605)
to support a plea of mitigated liability.
As the deceased was killed while asleep, the crime committed is
murder with the qualifying circumstance of alevosia. There is,
however, a mitigating circumstance of weight consisting in the
incomplete justifying circumstance defined in article 11, No. 5, of
the Revised Penal Code. According to such legal provision, a
person incurs no criminal liability when he acts in the fulfillment
of a duty or in the lawful exercise of a right or office. There are two
requisites in order that the circumstance may be taken as a
justifying one: (a) that the offender acted in the performance of a
duty or in the lawful exercise of a right; and (b) that the injury or
offense committed be the necessary consequence of the due
performance of such duty or the lawful exercise of such right or
office. In the instance case, only the first requisite is present
appellants have acted in the performance of a duty. The second
requisite is wanting for the crime by them committed is not the
necessary consequence of a due performance of their duty. Their
duty was to arrest Balagtas or to get him dead or alive if resistance
is offered by him and they are overpowered. But through
impatience or over-anxiety or in their desire to take no chances,
they have exceeded in the fulfillment of such duty by killing the
person whom they believed to be Balagtas without any resistance
from him and without making any previous inquiry as to his
identity. According to article 69 of the Revised Penal Code, the
penalty lower by one or two degrees than that prescribed by law
shall, in such case, be imposed.
For all the foregoing, the judgment is modified and appellants are
hereby declared guilty of murder with the mitigating circumstance
above mentioned, and accordingly sentenced to an indeterminate
penalty of from five (5) years of prision correctional to fifteen (15)
years of reclusion temporal, with the accessories of the law, and
to pay the heirs of the deceased Serapio Tecson jointly and
severally an indemnity of P2,000, with costs.
Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.
Separate Opinions
PARAS, J., dissenting:
Anselmo Balagtas, a life termer and notorious criminal, managed
to escape and flee form Manila to the provinces. Receiving
information to the effect that he was staying with one Irene in
Cabanatuan, Nueva Ecija, the office of the Constabulary in Manila
ordered the Provincial Inspector in Cabanatuan by telegram
dispatched on December 25, 1938, to get Balagtas "dead or alive".
Among those assigned to the task of carrying out the said order,
were Antonio Z. Oanis, chief of police of Cabanatuan, and Alberto
Galanta, a Constabulary corporal, to whom the telegram received
by the Provincial Inspector and a newspaper picture of Balagtas
were shown. Oanis, Galanta and a Constabulary private, after
being told by the Provincial Inspector to gather information about
Balagtas, "to arrest him and, if overpowered, to follow the
instructions contained in the telegram," proceeded to the place
where the house of Irene was located. Upon arriving thereat,
Oanis approached Brigida Mallari, who was then gathering banana
stalks in the yard, and inquired for the room of Irene. After Mallari
had pointed out the room, she was asked by Oanis to tell where
Irene's paramour, Balagtas, was, whereupon Mallari answered
that he was sleeping with Irene. Upon reaching the room
indicated, Oanis and Galanta, after the former had shouted "Stand
up, if you are Balagtas," started shooting the man who was found
by them lying down beside a woman. The man was thereby killed,
but Balagtas was still alive, for it turned out that the person shot
by Oanis and Galanta was one Serapio Tecson.
Consequently, Oanis and Galanta were charged with having
committed murder. The Court of First Instance of Nueva Ecija,
however, convicted them only of homicide through reckless
imprudence and sentenced them each to suffer the indeterminate
penalty of from 1 year and 6 months to 2 years and 2 months
of prision correctional, to jointly and severally indemnify the heirs
of Serapio Tecson in the amount of P1,000, and to pay the costs.
Oanis and Galanta have appealed.
In accomplishing the acts with which the appellants were charged,
they undoubtedly followed the order issued by the Constabulary
authorities in Manila requiring the Provincial Inspector in
Cabanatuan to get Balagtas dead or alive, in the honest belief that
Serapio Tecson was Anselmo Balagtas. As the latter became a
fugitive criminal, with revolvers in his possession and a record that
made him extremely dangerous and a public terror, the
Constabulary authorities were justified in ordering his arrest,
whether dead or alive. In view of said order and the danger faced
by the appellants in carrying it out, they cannot be said to have
acted feloniously in shooting the person honestly believed by
them to be the wanted man. Conscious of the fact that Balagtas
would rather kill than be captured, the appellants did not want to
take chances and should not be penalized for such prudence. On
the contrary, they should be commended for their bravery and
courage bordering on recklessness because, without knowing or
ascertaining whether the wanted man was in fact asleep in his
room, they proceeded thereto without hesitation and thereby
exposed their lives to danger.
The Solicitor-General, however, contends that the appellants
were authorized to use their revolvers only after being
overpowered by Balagtas. In the first place, the alleged instruction
by the Provincial Inspector to that effect, was in violation of the
express order given by the Constabulary authorities in Manila and
which was shown to the appellants. In the second place, it would
indeed be suicidal for the appellants or, for that matter, any agent
of the authority to have waited until they have been overpowered
before trying to put our such a character as Balagtas. In the third
place, it is immaterial whether or not the instruction given by the
Provincial Inspector was legitimate and proper, because the facts
exist that the appellants acted in conformity with the express
order of superior Constabulary authorities, the legality or
propriety of which is not herein questioned.
The theory of the prosecution has acquired some plausibility,
though quite psychological or sentimental, in view only of the fact
that it was not Balagtas who was actually killed, but an "innocent
man . . . while he was deeply asleep." Anybody's heart will be
profoundly grieved by the trade, but in time will be consoled by
the realization that the life of Serapio Tecson was not vainly
sacrificed, for the incident will always serve as a loud warning to
any one desiring to follow in the footsteps of Anselmo Balagtas
that in due time the duly constituted authorities will, upon proper
order, enforce the summary forfeiture of his life.
In my opinion, therefore, the appellants are not criminally liable if
the person killed by them was in fact Anselmo Balagtas for the
reason that they did so in the fulfillment of their duty and in
obedience to an order issued by a superior for some lawful
purpose (Revised Penal Code, art. 11, pars. 5 and 6). They also
cannot be held criminally liable even if the person killed by them
was not Anselmo Balagtas, but Serapio Tecson, because they did
so under an honest mistake of fact not due to negligence or bad
faith. (U.S. vs. Ah Chong, 15 Phil., 488).
It is true that, under article 4 of the Revised Penal Code, criminal
liability is incurred by any person committing a felony although the
wrongful act done be different from that which he intended; but
said article is clearly inapplicable since the killing of the person
who was believed to be Balagtas was, as already stated, not
wrongful or felonious.
The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-
General, is not in point, inasmuch as the defendant therein, who
intended to injure Hilario Lauigan with whom he had a quarrel, but
killed another by mistake, would not be exempted from criminal
liability if he actually injured or killed Hilario Lauigan, there being
a malicious design on his part. The other case involved by the
prosecution is U.S. vs. Donoso (3 Phil., 234). This is also not in
point, as it appears that the defendants therein killed one Pedro
Almasan after he had already surrendered and allowed himself to
be bound and that the said defendants did not have lawful
instructions from superior authorities to capture Almasan dead or
alive.
The appealed judgment should therefore be reversed and the
appellants, Antonio Z. Oanis and Alberto Galanta, acquitted, with
costs de oficio.
HONTIVEROS, J., dissenting:
According to the opinion of the majority, it is proper to follow the
rule that a notorious criminal "must be taken by storm without
regard to his life which he has, by his conduct, already forfeited,"
whenever said criminal offers resistance or does something which
places his captors in danger of imminent attack. Precisely, the
situation which confronted the accused-appellants Antonio Z.
Oanis and Alberto Galanta in the afternoon of December 24, 1938,
was very similar to this. It must be remembered that both officers
received instructions to get Balagtas "dead or alive" and according
to the attitude of not only the said appellants but also of Capt.
Monsod, constabulary provincial inspector of Nueva Ecija, it may
be assumed that said instructions gave more emphasis to the first
part; namely, to take him dead. It appears in the record that after
the shooting, and having been informed of the case, Capt. Monsod
stated that Oanis and Galanta might be decorated for what they
had done. That was when all parties concerned honestly believed
that the dead person was Balagtas himself, a dangerous criminal
who had escaped from his guards and was supposedly armed with
a .45 caliber pistol Brigida Mallari, the person whom the
appellants met upon arriving at the house of Irene Requinea,
supposed mistress of Balagtas, informed them that said Balagtas
was upstairs. Appellants found there asleep a man closely
resembling the wanted criminal. Oanis said: If you are Balagtas
stand up," But the supposed criminal showed his intention to
attack the appellants, a conduct easily explained by the fact that
he should have felt offended by the intrusion of persons in the
room where he was peacefully lying down with his mistress. In
such predicament, it was nothing but human on the part of the
appellants to employ force and to make use of their weapons in
order to repel the imminent attack by a person who, according to
their belief, was Balagtas It was unfortunate, however that an
innocent man was actually killed. But taking into consideration the
facts of the case, it is, according to my humble opinion, proper to
apply herein the doctrine laid down in the case of U.S. vs. Ah
Chong (15 Phil., 488). In the instant case we have, as in the case
supra, an innocent mistake of fact committed without any fault or
carelessness on the part of the accused, who having no time to
make a further inquiry, had no alternative but to take the facts as
they appeared to them and act immediately.
The decision of the majority, in recognition of the special
circumstances of this case which favored the accused-appellants,
arrives at the conclusion that an incomplete justifying
circumstance may be invoked, and therefore, according to Article
69 of the Revised Penal Code, the imposable penalty should be
one which is lower by one or two degrees than that prescribed by
law. This incomplete justifying circumstance is that defined in
Article 11, No. 5 of the Revised Penal Code, in favor of "a person
who acts in the fulfillment of a duty or in the lawful exercise of a
right or office." I believe that the application of this circumstance
is not proper. Article 69 of the Revised Penal Code provides as
follows:
Art. 69. Penalty to be imposed when the crime committed is not
wholly excusable. A penalty lower by one or two degrees than
that prescribed by law shall be imposed if the deed is not wholly
excusable by reason of the lack of some of the conditions required
to justify the same or to exempt from criminal liability in the
several cases mentioned in articles 11 and 12, provided that the
majority of such conditions be present. The courts shall impose
the penalty in the period which may be deemed proper, in view of
the number and nature of the conditions of exemption present or
lacking.
This provision has been copied almost verbatim from Article 84 of
the old Penal Code of the Philippines, and which was also taken
from Article 87 of the Spanish Penal Code of 1870.
Judge Guillermo Guevara, one of the members of the Committee
created by Administrative Order No. 94 of the Department of
Justice for the drafting of the Revised Penal Code, in commenting
on Article 69, said that the justifying circumstances and
circumstances exempting from liability which are the subject
matter of this article are the following: self-defense, defense of
relatives, defense of strangers, state of necessity and injury
caused by mere accident. Accordingly, justifying circumstance No.
5 of Article 11 dealing with the fulfillment of a duty or the lawful
exercise of a right, calling or office, cannot be placed within its
scope.
The eminent treatiser of criminal law Mr. Groizard, in his
commentary of Article 87 of the Spanish Penal Code of 1870 which
is the source of Article 69 of our Code says:
Ni tratandose de la imbecilidad, ni de la locura, ni de la menor
edad, ni del que obra violentado por una fuerza inrresistible o
impulsado por miedo insuperable de un mal igual o mayor, o en
cumplimiento de un deber, o en el ejercito legitimo de un derecho,
oficio o cargo, o en virtud de obediencia debida, ni del que incurre
en alguna omision hallandose impedido por causa legitima o
insuperable, puede tener aplicacion al articulo que comentamos.
Y la razon es obvia. En ninguna de estas execiones hay pluralidad the second found at the place of the shooting, had not been
de requisitos. La irrespondabilidad depende de una sola condicion. fired from revolver Exhibit L nor from any other revolver of the
Hay o no perturbacion de la razon; el autor del hecho es o no constabulary station in Cabanatuan. It was impossible for the
menor de nueve aos; existe o no violencia material o moral accused Galanta to have substituted his revolver because when
irresistible, etc., etc.; tal es lo que respectivamente hay que Exhibit L was taken from him nobody in the barracks doubted that
examinar y resolver para declarar la culpabilidad o inculpabilidad. the deceased was none other than Balagtas. Moreover, Exhibit L
Es, por lo tanto, imposible que acontezca lo que el texto que va al was not out of order and therefore there was no reason why
frente de estas lineas rquiere, para que se imponga al autor del Galanta should carry along another gun, according to the natural
hecho la penalidad excepcional que establece; esto es, que course of things. On the other hand, aside from wound No. 3 as
falten algunos requisitos de los que la ley exige para eximir de above stated, no other wound may be said to have been caused
responsabilidad, y que concurran el mayor numero de ellos, toda by a .45 caliber revolver bullet. Doctor Castro's record gives the
vez que, en los casos referidos, la ley no exige multiples conclusion that wound No. 2 must have been caused by a .45
condiciones. caliber revolver bullet. Doctor Castro's record gives the conclusion
It must be taken into account the fact according to Article 69 a that wound No. 2 must have been caused by a .45 caliber bullet,
penalty lower by one or two degrees than that prescribed by law but inasmuch as the diameter of the wound's entrance was only 8
shall be imposed if the deed is not wholly excusable by reason of mm., the caliber should be .32 and not .45, because according to
the lack of some of the conditions required by the law to justify the medico-legal expert who testified in this case, a bullet of a .45
the same or exempt from criminal liability. The word "conditions" caliber will produce a wound entrance with either 11 mm. or 12
should not be confused with the word "requisites". In dealing with mm. diameter. All other wounds found by the surgeon who
justifying circumstance No. 5 Judge Guevara states: "There are performed the autopsy appeared to have been caused by bullets
two requisites in order that this circumstance may be taken into of a lesser caliber. In consequence, it can be stated that no bullet
account: (a) That the offender acted in the performance of his fired by Galanta did ever hit or kill Serapio Tecson and therefore
duty or in the lawful exercise of a right; and (b) That the injury or there is no reason why he should be declared criminally
offense committed be the necessary consequence of the responsible for said death.
performance of a duty or the lawful exercise of a right or office."
It is evident that these two requisites concur in the present case if
we consider the intimate connection between the order given to
the appellant by Capt. Monsod, the showing to them of the
telegram from Manila to get Balagtas who was with a bailarina
named Irene, the conduct of said appellants in questioning Brigida
Mallari and giving a warning to the supposed criminal when both
found him with Irene, and the statement made by Capt. Monsod
after the shooting.
If appellant Oanis is entitled to a reversal of the decision of the
court below, there are more reasons in favor of the acquittal of
appellant Galanta. According to the evidence no bullet from the
gun fired by this accused ever hit Serapio Tecson. Galanta was
armed in the afternoon of December 24, 1938, with a .45 caliber
revolver (Exhibit L). He so testified and was corroborated by the
unchallenged testimony of his superior officer Sgt. Valeriano
Serafica. According to this witness, since Galanta was made a
corporal of the Constabulary he was given, as part of his
equipment, revolver Exhibit L with a serial No. 37121. This gun had
been constantly used by Galanta, and, according to Sgt. Pedro
Marasigan, who accompanied said accused when he took it from
his trunk in the barracks on the night of December 24, 1938, upon
order of Captain Monsod, it was the same revolver which was
given to the witness with five .45 caliber bullets and one empty
shell. Fourteen unused bullets were also taken from Galanta by
Sergeant Serafica, thus completing his regular equipment of
twenty bullets which he had on the morning of December 24,
1938, when Sergeant Serafica made the usual inspection of the
firearms in the possession of the non-commissioned officers and
privates of the constabulary post at Cabanatuan. Galanta stated
that he had fired only one shot and missed. This testimony is
corroborated by that of a ballistic expert who testified that bullets
exhibits F and O, the first being extracted from the head of the
deceased, causing wound No. 3 of autopsy report Exhibit C and
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 103119 October 21, 1992
SULPICIO INTOD, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
CAMPOS, JR., J.:
Petitioner, Sulpicio Intod, filed this petition for review of the
decision of the Court of Appeals 1 affirming in toto the judgment
of the Regional Trial Court, Branch XIV, Oroquieta City, finding him
guilty of the crime of attempted murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge
Pangasian, Santos Tubio and Avelino Daligdig went to Salvador
Mandaya's house in Katugasan, Lopez Jaena, Misamis Occidental
and asked him to go with them to the house of Bernardina
Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio
and Daligdig had a meeting with Aniceto Dumalagan. He told
Mandaya that he wanted Palangpangan to be killed because of a
land dispute between them and that Mandaya should accompany
the four (4) men, otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same day, Petitioner,
Mandaya, Pangasian, Tubio and Daligdig, all armed with firearms,
arrived at Palangpangan's house in Katugasan, Lopez Jaena,
Misamis Occidental. At the instance of his companions, Mandaya
pointed the location of Palangpangan's bedroom. Thereafter,
Petitioner, Pangasian, Tubio and Daligdig fired at said room. It
turned out, however, that Palangpangan was in another City and
her home was then occupied by her son-in-law and his family. No
one was in the room when the accused fired the shots. No one was
hit by the gun fire.
Petitioner and his companions were positively identified by
witnesses. One witness testified that before the five men left the
premises, they shouted: "We will kill you (the witness) and
especially Bernardina Palangpangan and we will come back if (sic)
you were not injured". 2
After trial, the Regional Trial Court convicted Intod of attempted
murder. The court (RTC), as affirmed by the Court of Appeals,
holding that Petitioner was guilty of attempted murder. Petitioner
seeks from this Court a modification of the judgment by holding
him liable only for an impossible crime, citing Article 4(2) of the
Revised Penal Code which provides:
Art. 4(2). CRIMINAL RESPONSIBILITY. Criminal Responsibility
shall be incurred:
xxx xxx xxx
2. By any person performing an act which would be an offense
against persons or property, were it not for the inherent
impossibility of its accomplishment or on account of the
employment of inadequate or ineffectual means.
Petitioner contends that, Palangpangan's absence from her room
on the night he and his companions riddled it with bullets made
the crime inherently impossible.
On the other hand, Respondent People of the Philippines argues
that the crime was not impossible. Instead, the facts were
sufficient to constitute an attempt and to convict Intod for
attempted murder. Respondent alleged that there was intent.
Further, in its Comment to the Petition, respondent pointed out
that:
. . . The crime of murder was not consummated, not because of
the inherent impossibility of its accomplishment (Art. 4(2), Revised
Penal Code), but due to a cause or accident other than petitioner's
and his accused's own spontaneous desistance (Art. 3., Ibid.)
Palangpangan did not sleep at her house at that time. Had it not
been for this fact, the crime is possible, not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code.
This seeks to remedy the void in the Old Penal Code where:
. . . it was necessary that the execution of the act has been
commenced, that the person conceiving the idea should have set
about doing the deed, employing appropriate means in order that
his intent might become a reality, and finally, that the result or end
contemplated shall have been physically possible. So long as these
conditions were not present, the law and the courts did not hold
him criminally liable. 5
This legal doctrine left social interests entirely unprotected. 6 The
Revised Penal Code, inspired by the Positivist School, recognizes
in the offender his formidability, 7 and now penalizes an act which
were it not aimed at something quite impossible or carried out
with means which prove inadequate, would constitute a felony
against person or against property. 8 The rationale of Article 4(2)
is to punish such criminal tendencies. 9
Under this article, the act performed by the offender cannot
produce an offense against person or property because: (1) the
commission of the offense is inherently impossible of
accomplishment: or (2) the means employed is either (a)
inadequate or (b) ineffectual. 10
That the offense cannot be produced because the commission of
the offense is inherently impossible of accomplishment is the
focus of this petition. To be impossible under this clause, the act
intended by the offender must be by its nature one impossible of
accomplishment. 11 There must be either impossibility of
accomplishing the intended act 12 in order to qualify the act an
impossible crime.
Legal impossibility occurs where the intended acts, even if
completed, would not amount to a crime. 13 Thus:
Legal impossibility would apply to those circumstances where (1)
the motive, desire and expectation is to perform an act in violation
of the law; (2) there is intention to perform the physical act; (3)
there is a performance of the intended physical act; and (4) the
consequence resulting from the intended act does not amount to
a crime. 14
The impossibility of killing a person already dead 15 falls in this
category.
On the other hand, factual impossibility occurs when extraneous
circumstances unknown to the actor or beyond his control prevent
the consummation of the intended crime. 16 One example is the
man who puts his hand in the coat pocket of another with the
intention to steal the latter's wallet and finds the pocket empty. 17
The case at bar belongs to this category. Petitioner shoots the
place where he thought his victim would be, although in reality,
the victim was not present in said place and thus, the petitioner
failed to accomplish his end.
One American case had facts almost exactly the same as this one.
In People vs. Lee Kong, 18 the accused, with intent to kill, aimed
and fired at the spot where he thought the police officer would
be. It turned out, however, that the latter was in a different place.
The accused failed to hit him and to achieve his intent. The Court
convicted the accused of an attempt to kill. It held that:
The fact that the officer was not at the spot where the attacking
party imagined where he was, and where the bullet pierced the
roof, renders it no less an attempt to kill. It is well settled principle
of criminal law in this country that where the criminal result of an
attempt is not accomplished simply because of an obstruction in
the way of the thing to be operated upon, and these facts are
unknown to the aggressor at the time, the criminal attempt is
committed.
In the case of Strokes vs. State, 19 where the accused failed to
accomplish his intent to kill the victim because the latter did not
pass by the place where he was lying-in wait, the court held him
liable for attempted murder. The court explained that:
It was no fault of Strokes that the crime was not committed. . . . It
only became impossible by reason of the extraneous circumstance
that Lane did not go that way; and further, that he was arrested
and prevented from committing the murder. This rule of the law
has application only where it is inherently impossible to commit
the crime. It has no application to a case where it becomes
impossible for the crime to be committed, either by outside
interference or because of miscalculation as to a supposed
opportunity to commit the crime which fails to materialize; in
short it has no application to the case when the impossibility
grows out of extraneous acts not within the control of the party.
In the case of Clark vs. State, 20 the court held defendant liable for
attempted robbery even if there was nothing to rob. In disposing
of the case, the court quoted Mr. Justice Bishop, to wit:
It being an accepted truth that defendant deserves punishment by
reason of his criminal intent, no one can seriously doubt that the
protection of the public requires the punishment to be
administered, equally whether in the unseen depths of the pocket,
etc., what was supposed to exist was really present or not. The
community suffers from the mere alarm of crime. Again: Where
the thing intended (attempted) as a crime and what is done is a
sort to create alarm, in other words, excite apprehension that the
evil; intention will be carried out, the incipient act which the law
of attempt takes cognizance of is in reason committed.
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the
window of victim's room thinking that the latter was inside.
However, at that moment, the victim was in another part of the
house. The court convicted the accused of attempted murder.
The aforecited cases are the same cases which have been relied
upon by Respondent to make this Court sustain the judgment of
attempted murder against Petitioner. However, we cannot rely
upon these decisions to resolve the issue at hand. There is a
difference between the Philippine and the American laws
regarding the concept and appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2), expressly
provided for impossible crimes and made the punishable.
Whereas, in the United States, the Code of Crimes and Criminal
Procedure is silent regarding this matter. What it provided for
were attempts of the crimes enumerated in the said Code.
Furthermore, in said jurisdiction, the impossibility of committing
the offense is merely a defense to an attempt charge. In this
regard, commentators and the cases generally divide the
impossibility defense into two categories: legal versus factual
impossibility. 22 In U.S. vs. Wilson 23 the Court held that:
. . . factual impossibility of the commission of the crime is not a
defense. If the crime could have been committed had the
circumstances been as the defendant believed them to be, it is no
defense that in reality the crime was impossible of commission.
Legal impossibility, on the other hand, is a defense which can be
invoked to avoid criminal liability for an attempt. In U.S.
vs. Berrigan, 24 the accused was indicated for attempting to
smuggle letters into and out of prison. The law governing the
matter made the act criminal if done without knowledge and
consent of the warden. In this case, the offender intended to send
a letter without the latter's knowledge and consent and the act
was performed. However, unknown to him, the transmittal was
achieved with the warden's knowledge and consent. The lower
court held the accused liable for attempt but the appellate court
reversed. It held unacceptable the contention of the state that
"elimination of impossibility as a defense to a charge of criminal
attempt, as suggested by the Model Penal Code and the proposed
federal legislation, is consistent with the overwhelming modern
view". In disposing of this contention, the Court held that the
federal statutes did not contain such provision, and thus, following
the principle of legality, no person could be criminally liable for an
act which was not made criminal by law. Further, it said:
Congress has not yet enacted a law that provides that intent plus
act plus conduct constitutes the offense of attempt irrespective of
legal impossibility until such time as such legislative changes in the
law take place, this court will not fashion a new non-statutory law
of criminal attempt.
To restate, in the United States, where the offense sought to be
committed is factually impossible or accomplishment, the
offender cannot escape criminal liability. He can be convicted of
an attempt to commit the substantive crime where the elements
of attempt are satisfied. It appears, therefore, that the act is
penalized, not as an impossible crime, but as an attempt to
commit a crime. On the other hand, where the offense is legally
impossible of accomplishment, the actor cannot be held liable for
any crime neither for an attempt not for an impossible crime.
The only reason for this is that in American law, there is no such
thing as an impossible crime. Instead, it only recognizes
impossibility as a defense to a crime charge that is, attempt.
This is not true in the Philippines. In our jurisdiction, impossible
crimes are recognized. The impossibility of accomplishing the
criminal intent is not merely a defense, but an act penalized by
itself. Furthermore, the phrase "inherent impossibility" that is
found in Article 4(2) of the Revised Penal Code makes no
distinction between factual or physical impossibility and legal
impossibility. Ubi lex non distinguit nec nos distinguere debemos.
The factual situation in the case at bar present a physical
impossibility which rendered the intended crime impossible of
accomplishment. And under Article 4, paragraph 2 of the Revised
Penal Code, such is sufficient to make the act an impossible crime.
To uphold the contention of respondent that the offense was
Attempted Murder because the absence of Palangpangan was a
supervening cause independent of the actor's will, will render
useless the provision in Article 4, which makes a person criminally
liable for an act "which would be an offense against persons or
property, were it not for the inherent impossibility of its
accomplishment . . ." In that case all circumstances which
prevented the consummation of the offense will be treated as an
accident independent of the actor's will which is an element of
attempted and frustrated felonies.
WHEREFORE, PREMISES CONSIDERED. the petition is hereby
GRANTED, the decision of respondent Court of Appeals holding
Petitioner guilty of Attempted Murder is hereby MODIFIED. We
hereby hold Petitioner guilty of an impossible crime as defined and
penalized in Articles 4, paragraph 2, and 59 of the Revised Penal
Code, respectively. Having in mind the social danger and degree
of criminality shown by Petitioner, this Court sentences him to
suffer the penalty of six (6) months of arresto mayor, together
with the accessory penalties provided by the law, and to pay the
costs.
SO ORDERED.
Feliciano, Regalado and Nocon, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 188551 February 27, 2013
EDMUNDO ESCAMILLA y JUGO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
SERENO, J.:
This is a Petition for Review on Certiorari 1 dated 20 August 2009.
It seeks a review of the 10 June 2009 Resolution 2 of the Court of
Appeals (CA) in CA-G.R. CR. No. 30456, which denied the Motion
for Reconsideration3of the 10 November 2008 CA
Decision4 affirming the conviction of Edmundo Escamilla
(petitioner) for frustrated homicide.
BACKGROUND
The facts of this case, culled from the records, are as follows:
Petitioner has a house with a sari-sari store along Arellano Street,
Manila.5 The victim, Virgilio Mendol (Mendol), is a tricycle driver
whose route traverses the road where petitioner's store is
located.6
Around 2:00 a.m. of 01 August 1999, a brawl ensued at the comer
of Estrada and Arellano Streets, Manila. 7 Mendol was about to
ride his tricycle at this intersection while facing Arellano
Street.8 Petitioner, who was standing in front of his store, 30
meters away from Mendol,9 shot the latter four times, hitting him
once in the upper right portion of his chest. 10 The victim was
brought to Ospital ng Makati for treatment11 and survived
because of timely medical attention.12
The Assistant City Prosecutor of Manila filed an
Information13 dated 01 December 1999 charging petitioner with
frustrated homicide. The Information reads:
That on or about August 1, 1999, in the City of Manila, Philippines,
the said accused, with intent to kill, did then and there wilfully,
unlawfully and feloniously attack, assault and use personal
violence upon the person of one Virgilio Mendol, by then and
there shooting the latter with a .9mm Tekarev pistol with Serial
No. 40283 hitting him on the upper right portion of his chest,
thereby inflicting upon him gunshot wound which is necessarily
fatal and mortal, thus performing all the acts of execution which
should have produced the crime of Homicide as a consequence,
but nevertheless did not produce it by reason of causes,
independent of his will, that is, by the timely and able medical
assistance rendered to said Virgilio Mendol which prevented his
death.
CONTRARY TO LAW.
Upon arraignment, petitioner pleaded not guilty.14 During trial,
the prosecution presented the testimonies of Mendol, Joseph
Velasco (Velasco) and Iluminado Garcelazo (Garcelazo), who all
positively identified him as the shooter of Mendol. 15 The doctor
who attended to the victim also testified.16 The documentary
evidence presented included a sketch of the crime scene, the
Medical Certificate issued by the physician, and receipts of the
medical expenses of Mendol when the latter was treated for the
gunshot wound.17 In the course of the presentation of the
prosecution witnesses, the defense requested an ocular
inspection of the crime scene, a request that was granted by the
court.18 On the other hand, the defense witnesses are petitioner
himself, his wife, Velasco and Barangay Tanod George Asumbrado
(Asumbrado).19 The defense offered the results of the paraffin test
of petitioner and the transcript of stenographic notes taken during
the courts ocular inspection of the crime scene.20
The Regional Trial Court (RTC) held that the positive testimonies
of eyewitnesses deserve far more weight and credence than the
defense of alibi.21 Thus, it found petitioner guilty of frustrated
homicide.22 The dispositive portion reads:
WHEREFORE, the Court finds the accused Edmund Escamilla Y
Jugo GUILTY beyond reasonable doubt of the crime of Frustrated
Homicide under Articles 249 and 50 [sic] of the Revised Penal
Code, and hereby sentences the accused to suffer an
indeterminate sentence of six (6) months and one (1) day
of prision correccional as minimum, to eight (8) years and one (1)
day of prision mayor as maximum. Accused is hereby ordered to
indemnify complainant Virgilio Mendol the sum of 34,305.16 for
actual damages, 30,000.00 for moral damages.
SO ORDERED.23
Petitioner filed a Notice of Appeal dated 14 July 2006.24 In the brief
that the CA required him to file,25 he questioned the credibility of
the prosecution witnesses over that of the defense.26 On the other
hand, the Appellees Brief27posited that the prosecution witnesses
were credible, because there were no serious discrepancies in
their testimonies.28 Petitioner, in his Reply brief,29 said that the
prosecution witnesses did not actually see him fire the
gun.30 Furthermore, his paraffin test yielded a negative result. 31
The CA, ruling against petitioner, held that the issue of the
credibility of witnesses is within the domain of the trial court,
which is in a better position to observe their demeanor. 32 Thus,
the CA upheld the RTCs appreciation of the credibility of the
prosecution witnesses in the present case. 33 Also, the CA ruled
that the victims positive and unequivocal identification of
petitioner totally destroyed his defense of alibi. Hence, it found no
reason to disbelieve Mendols testimony.34 In addition, it said that
a paraffin test is not a conclusive proof that a person has not fired
a gun and is inconsequential when there is a positive identification
of petitioner.35
A Motion for Reconsideration36 dated 08 December 2008 was filed
by petitioner, who asserted that the defense was able to discredit
the testimony of the victim.37
In its 10 June 2009 Resolution,38 the CA denied petitioners Motion
for Reconsideration for being without merit, because the matters
discussed therein had already been resolved in its 10 November
2008 Decision.39
Hence, this Petition40 assailing the application to this case of the
rule that the positive identification of the accused has more
weight than the defense of alibi.41 This Court resolved to require
the prosecution to comment on the Petition.42 In his
Comment43 dated 15 December 2009, the victim said that his
positive identification of petitioner was a direct evidence that the
latter was the author of the crime.44 Furthermore, what petitioner
raised was allegedly a question of fact, which is proscribed by a
Rule 45 petition.45 Thus, the victim alleged, there being no new or
substantial matter or question of law raised, the Petition should
be denied.46
We then obliged petitioner to file a reply.47 In his Reply dated 01
March 2010,48 he assigned as an error the application by the CA of
the rule that the positive identification of the accused has more
weight than the defense of alibi.49 He posits that the lower court
manifestly overlooked relevant facts not disputed by the parties,
but if properly considered would justify a different
conclusion.50 This Court, he said, should then admit an exception
to the general rule that the findings of fact of the CA are binding
upon the Supreme Court.51
ISSUES
The questions before us are as follows:
I. Whether the prosecution established petitioners guilt beyond
reasonable doubt.52
II. Whether a defense of alibi, when corroborated by a
disinterested party, overcomes the positive identification by three
witnesses.53
COURTS RULING
We deny the Petition.
I. The prosecution proved petitioners guilt beyond reasonable
doubt.
A. Petitioner was positively identified by three witnesses.
Petitioner argues that there was reasonable doubt as to the
identity of the shooter.54 He is wrong. As correctly held by the RTC
and affirmed by the CA, the identity of the assailant was proved
with moral certainty by the prosecution, which presented three
witnesses the victim Mendol, Velasco, and Garcelazo who all
positively identified him as the shooter.55 We have held that a
categorical and consistently positive identification of the accused,
without any showing of ill motive on the part of the eyewitnesses,
prevails over denial.56 All the three witnesses were unswerving in
their testimonies pointing to him as the shooter. None of them
had any ulterior motive to testify against him.
Mendol said that he was about to ride his tricycle at the corner of
Arellano and Estrada Streets, when petitioner, who was in front of
the formers store, shot him.57 The first shot hit its target, but
petitioner continued to fire at the victim three more times, and
the latter then started to run away.58
Velasco, who was also at the corner of Estrada and Arellano
Streets, heard the first shot, looked around, then saw petitioner
firing at Mendol three more times.59
Lastly, Garcelazo testified that while he was buying bread from a
bakery at that same street corner, he heard three shots before he
turned his head and saw petitioner pointing a gun at the direction
of the victim, who was bloodied in the right chest.60 Garcelazo was
just an arms length away from him.61
The three witnesses had a front view of the face of petitioner,
because they were all facing Arellano Street from its intersection
with Estrada Street, which was the locus criminis.62 Although the
crime happened in the wee hours of the morning, there was a
street lamp five meters from where petitioner was standing when
he shot the victim, thus allowing a clear view of the assailants
face.63 They all knew petitioner, because they either bought from
or passed by his store.64
B. The intent to kill was shown by the continuous firing at the
victim even after he was hit.
Petitioner claims that the prosecution was unable to prove his
intent to kill.65 He is mistaken. The intent to kill, as an essential
element of homicide at whatever stage, may be before or
simultaneous with the infliction of injuries.66 The evidence to
prove intent to kill may consist of, inter alia, the means used; the
nature, location and number of wounds sustained by the victim;
and the conduct of the malefactors before, at the time of, or
immediately after the killing of the victim.67
Petitioners intent to kill was simultaneous with the infliction of
injuries. Using a gun,68 he shot the victim in the chest. 69 Despite a
bloodied right upper torso, the latter still managed to run towards
his house to ask for help. 70Nonetheless, petitioner continued to
shoot at him three more times,71 albeit unsuccessfully.72 While
running, the victim saw his nephew in front of the house and asked
for help.73 The victim was immediately brought to the hospital on
board an owner-type jeep.74 The attending physician, finding that
the bullet had no point of exit, did not attempt to extract it; its
extraction would just have caused further damage. 75 The doctor
further said that the victim would have died if the latter were not
brought immediately to the hospital.76 All these facts belie the
absence of petitioners intent to kill the victim.
II. Denial and alibi were not proven.
In order for alibi to prosper, petitioner must establish by clear and
convincing evidence that, first, he was in another place at the time
of the offense; and, second, it was physically impossible for him to
be at the scene of the crime. 77The appreciation of the defense of
alibi is pegged against this standard and nothing else. Petitioner,
as found by both the RTC and CA, failed to prove the presence of
these two requisite conditions. Hence, he was wrong in asserting
that alibi, when corroborated by other witnesses, succeeds as a
defense over positive identification.78
A. Petitioner was unable to establish that he was at home at the
time of the offense.
The alibi of petitioner was that he was at home asleep with his
wife when Mendol was shot.79 To support his claim, petitioner
presented the testimonies of his wife and Asumbrado.80
1. The wife of petitioner did not know if he was at home when the
shooting happened.
The wife of petitioner testified that both of them went to sleep at
9:00 p.m. and were awakened at 3:00 a.m. by the banging on their
door.81 However, she also said that she did not know if petitioner
stayed inside their house, or if he went somewhere else during the
entire time she was asleep.82 Her testimony does not show that he
was indeed at home when the crime happened. At the most, it
only establishes that he was at home before and after the
shooting. Her lack of knowledge regarding his whereabouts
between 1:00 a.m. and 3:00 a.m. belies the credibility of his alibi.
Even so, the testimonies of relatives deserve scant consideration,
especially when there is positive identification 83by three
witnesses.
2. Asumbrano did not see the entire face of the shooter.
Petitioner is questioning why neither the RTC nor the CA took into
account the testimony of Asumbrado, the Barangay Tanod on
duty that night.84 Both courts were correct in not giving weight to
his testimony.
Asumbrado said that he was there when the victim was shot, not
by appellant, but by a big man who was in his twenties. 85 This
assertion was based only on a back view of the man who fired the
gun 12 meters away from Asumbrado.86 The latter never saw the
shooters entire face.87 Neither did the witness see the victim
when the latter was hit.88 Asumbrado also affirmed that he was
hiding when the riot took place. 89 These declarations question his
competence to unequivocally state that indeed it was not
petitioner who fired at Mendol.
B. Petitioner's home was just in front of the street where the
shooting occurred.
Physical impossibility refers to the distance between the place
where the accused was when the crime transpired and the place
where it was committed, as well as the facility of access between
the two places. 90 Petitioner failed to prove the physical
impossibility of his being at the scene of the crime at the time in
question.
Both the prosecution and the defense witnesses referred to the
front of appellant's house or store whenever they testified on the
location of the shooter. Petitioner was in front of his house when
he shot the victim, according to Velasco's testimony.91 Meanwhile
the statement of Asumbrado that the gate of the store of the
petitioner was closed when the shooting happened 92 can only
mean that the latter's house and store were both located in front
of the scene of the crime.1wphi1
Petitioner proffers the alibi that he was at home, instead of
showing the impossibility of his authorship of the crime. His alibi
actually bolsters the prosecution's claim that he was the shooter,
because it placed him just a few steps away from the scene of the
crime. The charge is further bolstered by the testimony of his wife,
who could not say with certainty that he was at home at 2:00a.m.-
the approximate time when the victim was shot.
Based on the foregoing, it cannot be said that the lower courts
overlooked any fact that could have justified a different
conclusion. Hence, the CA was correct in affirming the R TC 's
Decision that petitioner, beyond reasonable doubt, was the
assailant.
WHEREFORE, in view of the foregoing, the Petition is DENIED. The
10 June 2009 Resolution93 and 10 November 2008 Decision94 of
the Court of Appeals in CA-G.R. CR. No. 30456 are hereby
AFFIRMED in toto.
SO ORDERED
G.R. No. 129433 March 30, 2000
PEOPLE OF THE PHILIPPINES, plaintiff,
vs.
PRIMO CAMPUHAN Y BELLO accused.
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita 1 finally did away with
frustrated rape 2 and allowed only attempted rape and
consummated rape to remain in our statute books. The instant
case lurks at the threshold of another emasculation of the stages
of execution of rape by considering almost every attempt at sexual
violation of a woman as consummated rape, that is, if the contrary
view were to be adopted. The danger there is that that concept
may send the wrong signal to every roaming lothario, whenever
the opportunity bares itself, to better intrude with climactic gusto,
sans any restraint, since after all any attempted fornication would
be considered consummated rape and punished as such. A mere
strafing of the citadel of passion would then be considered a
deadly fait accompli, which is absurd.
In Orita we held that rape was consummated from the moment
the offender had carnal knowledge of the victim since by it he
attained his objective. All the elements of the offense were
already present and nothing more was left for the offender to do,
having performed all the acts necessary to produce the crime and
accomplish it. We ruled then that perfect penetration was not
essential; any penetration of the female organ by the male organ,
however slight, was sufficient. The Court further held that entry of
the labia or lips of the female organ, even without rupture of the
hymen or laceration of the vagina, was sufficient to warrant
conviction for consummated rape. We distinguished
consummated rape from attempted rape where there was no
penetration of the female organ because not all acts of execution
were performed as the offender merely commenced the
commission of a felony directly by overt acts. 3The inference that
may be derived therefrom is that complete or full penetration of
the vagina is not required for rape to be consummated. Any
penetration, in whatever degree, is enough to raise the crime to
its consummated stage.
But the Court in Orita clarified the concept of penetration in rape
by requiring entry into the labia or lips of the female organ, even
if there be no rupture of the hymen or laceration of the vagina, to
warrant a conviction for consummated rape. While the entry of
the penis into the lips of the female organ was considered
synonymous with mere touching of the external genitalia, e.g.,
labia majora, labia minora, etc.,4 the crucial doctrinal bottom line
is that touching must be inextricably viewed in light of, in relation
to, or as an essential part of, the process of penile penetration,
and not just mere touching in the ordinary sense. In other words,
the touching must be tacked to the penetration itself. The
importance of the requirement of penetration, however slight,
cannot be gainsaid because where entry into the labia or the lips
of the female genitalia has not been established, the crime
committed amounts merely to attempted rape.
Verily, this should be the indicium of the Court in determining
whether rape has been committed either in its attempted or in its
consummated stage; otherwise, no substantial distinction would
exist between the two, despite the fact that penalty-wise, this
distinction, threadbare as it may seem, irrevocably spells the
difference between life and death for the accused a reclusive
life that is not even perpetua but only temporal on one hand, and
the ultimate extermination of life on the other. And, arguing on
another level, if the case at bar cannot be deemed attempted but
consummated rape, what then would constitute attempted rape?
Must our field of choice be thus limited only to consummated rape
and acts of lasciviousness since attempted rape would no longer
be possible in light of the view of those who disagree with
this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of
statutory rape and sentenced by the court a quo to the extreme
penalty of death, 5 hence this case before us on automatic review
under Art. 335 of the Revised Penal Code as amended by RA
7659. 6
As may be culled from the evidence on record, on 25 April 1996,
at around 4 o'clock in the afternoon, Ma. Corazon P. Pamintuan,
mother of four (4)-year old Crysthel Pamintuan, went down from
the second floor of their house to prepare Milo chocolate drinks
for her two (2) children. At the ground floor she met Primo
Campuhan who was then busy filling small plastic bags with water
to be frozen into ice in the freezer located at the second floor.
Primo was a helper of Conrado Plata Jr., brother of Corazon. As
Corazon was busy preparing the drinks, she heard one of her
daughters cry, "Ayo'ko, ayo'ko!" 7 prompting Corazon to rush
upstairs. Thereupon, she saw Primo Campuhan inside her
children's room kneeling before Crysthel whose pajamas or
"jogging pants" and panty were already removed, while his short
pants were down to his knees.
According to Corazon, Primo was forcing his penis into Crysthel's
vagina. Horrified, she cursed the accused, "P - t - ng ina mo, anak
ko iyan!" and boxed him several times. He evaded her blows and
pulled up his pants. He pushed Corazon aside when she tried to
block his path. Corazon then ran out and shouted for help thus
prompting her brother, a cousin and an uncle who were living
within their compound, to chase the accused. 8 Seconds later,
Primo was apprehended by those who answered Corazon's call for
help. They held the accused at the back of their compound until
they were advised by their neighbors to call the barangay officials
instead of detaining him for his misdeed. Physical examination of
the victim yielded negative results. No evident sign of extra-genital
physical injury was noted by the medico-legal officer on Crysthel's
body as her hymen was intact and its orifice was only 0.5 cm. in
diameter.
Primo Campuhan had only himself for a witness in his defense. He
maintained his innocence and assailed the charge as a mere
scheme of Crysthel's mother who allegedly harbored ill will against
him for his refusal to run an errand for her. 9 He asserted that in
truth Crysthel was in a playing mood and wanted to ride on his
back when she suddenly pulled him down causing both of them to
fall down on the floor. It was in this fallen position that Corazon
chanced upon them and became hysterical. Corazon slapped him
and accused him of raping her child. He got mad but restrained
himself from hitting back when he realized she was a woman.
Corazon called for help from her brothers to stop him as he ran
down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help
and accosted Primo. Vicente punched him and threatened to kill
him. Upon hearing the threat, Primo immediately ran towards the
house of Conrado Plata but Vicente followed him there. Primo
pleaded for a chance to explain as he reasoned out that the
accusation was not true. But Vicente kicked him instead. When
Primo saw Vicente holding a piece of lead pipe, Primo raised his
hands and turned his back to avoid the blow. At this moment, the
relatives and neighbors of Vicente prevailed upon him to take
Primo to the barangay hall instead, and not to maul or possibly kill
him.
Although Primo Campuhan insisted on his innocence, the trial
court on 27 May 1997 found him guilty of statutory rape,
sentenced him to the extreme penalty of death, and ordered him
to pay his victim P50,000.00 for moral damages, P25,000.00 for
exemplary damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of
Ma. Corazon Pamintuan. He argues that her narration should not
be given any weight or credence since it was punctured with
implausible statements and improbabilities so inconsistent with
human nature and experience. He claims that it was truly
inconceivable for him to commit the rape considering that
Crysthel's younger sister was also in the room playing while
Corazon was just downstairs preparing Milo drinks for her
daughters. Their presence alone as possible eyewitnesses and the
fact that the episode happened within the family compound
where a call for assistance could easily be heard and responded
to, would have been enough to deter him from committing the
crime. Besides, the door of the room was wide open for anybody
to see what could be taking place inside. Primo insists that it was
almost inconceivable that Corazon could give such a vivid
description of the alleged sexual contact when from where she
stood she could not have possibly seen the alleged touching of the
sexual organs of the accused and his victim. He asserts that the
absence of any external signs of physical injuries or of penetration
of Crysthel's private parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on the
testimony of Corazon that she saw Primo with his short pants
down to his knees kneeling before Crysthel whose pajamas and
panty were supposedly "already removed" and that Primo was
"forcing his penis into Crysthel's vagina." The gravamen of the
offense of statutory rape is carnal knowledge of a woman below
twelve (12), as provided in Art. 335, par. (3), of the Revised Penal
Code. Crysthel was only four (4) years old when sexually molested,
thus raising the penalty, from reclusion perpetuato death, to the
single indivisible penalty of death under RA 7659, Sec. 11, the
offended party being below seven (7) years old. We have said
often enough that in concluding that carnal knowledge took place,
full penetration of the vaginal orifice is not an essential ingredient,
nor is the rupture of the hymen necessary; the mere touching of
the external genitalia by the penis capable of consummating the
sexual act is sufficient to constitute carnal knowledge. 10 But the
act of touching should be understood here as inherently part of
the entry of the penis into the labias of the female organ and not
mere touching alone of the mons pubis or the pudendum.
In People v. De la Pea 11 we clarified that the decisions finding a
case for rape even if the attacker's penis merely touched the
external portions of the female genitalia were made in the context
of the presence or existence of an erect penis capable of full
penetration. Where the accused failed to achieve an erection, had
a limp or flaccid penis, or an oversized penis which could not fit
into the victim's vagina, the Court nonetheless held that rape was
consummated on the basis of the victim's testimony that the
accused repeatedly tried, but in vain, to insert his penis into her
vagina and in all likelihood reached the labia of her pudendum as
the victim felt his organ on the lips of her vulva, 12 or that the penis
of the accused touched the middle part of her vagina. 13 Thus,
touching when applied to rape cases does not simply mean mere
epidermal contact, stroking or grazing of organs, a slight brush or
a scrape of the penis on the external layer of the victim's vagina,
or the mons pubis, as in this case. There must be sufficient and
convincing proof that the penis indeed touched the labias or slid
into the female organ, and not merely stroked the external surface
thereof, for an accused to be convicted of consummated
rape. 14 As the labias, which are required to be "touched" by the
penis, are by their natural situs or location beneath the mons
pubis or the vaginal surface, to touch them with the penis is to
attain some degree of penetration beneath the surface, hence,
the conclusion that touching the labia majora or the labia minora
of the pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female
genital organs that are visible in the perineal area, e.g., mons
pubis, labia majora, labia minora, the hymen, the clitoris, the
vaginal orifice, etc. The mons pubis is the rounded eminence that
becomes hairy after puberty, and is instantly visible within the
surface. The next layer is the labia majora or the outer lips of the
female organ composed of the outer convex surface and the inner
surface. The skin of the outer convex surface is covered with hair
follicles and is pigmented, while the inner surface is a thin skin
which does not have any hair but has many sebaceous glands.
Directly beneath the labia majora is the labia
minora. 15 Jurisprudence dictates that the labia majora must be
entered for rape to be consummated, 16 and not merely for the
penis to stroke the surface of the female organ. Thus, a grazing of
the surface of the female organ or touching the mons pubis of the
pudendum is not sufficient to constitute consummated rape.
Absent any showing of the slightest penetration of the female
organ, i.e., touching of either labia of the pudendum by the penis,
there can be no consummated rape; at most, it can only be
attempted rape, if not acts of lasciviousness.
Judicial depiction of consummated rape has not been confined to
the oft-quoted "touching of the female organ," 17but has also
progressed into being described as "the introduction of the male
organ into the labia of the pudendum," 18 or "the bombardment of
the drawbridge." 19 But, to our mild, the case at bar merely
constitutes a "shelling of the castle of orgasmic potency," or as
earlier stated, a "strafing of the citadel of passion.
A review of the records clearly discloses that the prosecution
utterly failed to discharge its onus of proving that Primo's penis
was able to penetrate Crysthel's vagina however slight. Even if we
grant arguendo that Corazon witnessed Primo in the act of
sexually molesting her daughter, we seriously doubt the veracity
of her claim that she saw the inter-genital contact between Primo
and Crysthel. When asked what she saw upon entering her
children's room Corazon plunged into saying that she saw Primo
poking his penis on the vagina of Crysthel without explaining her
relative position to them as to enable her to see clearly and
sufficiently, in automotive lingo, the contact point. It should be
recalled that when Corazon chanced upon Primo and Crysthel, the
former was allegedly in a kneeling position, which Corazon
described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the chest of
the accused is pinning down the victim, while his right hand is
holding his penis and his left hand is spreading the legs of the
victim).
It can reasonably be drawn from the foregoing narration that
Primo's kneeling position rendered an unbridled observation
impossible. Not even a vantage point from the side of the accused
and the victim would have provided Corazon an unobstructed
view of Primo's penis supposedly reaching Crysthel's external
genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc.,
since the legs and arms of Primo would have hidden his
movements from Corazon's sight, not to discount the fact that
Primo's right hand was allegedly holding his penis thereby blocking
it from Corazon's view. It is the burden of the prosecution to
establish how Corazon could have seen the sexual contact and to
shove her account into the permissive sphere of credibility. It is
not enough that she claims that she saw what was done to her
daughter. It is required that her claim be properly demonstrated
to inspire belief. The prosecution failed in this respect, thus we
cannot conclude without any taint of serious doubt that inter-
genital contact was at all achieved. To hold otherwise would be to
resolve the doubt in favor of the prosecution but to run roughshod
over the constitutional right of the accused to be presumed
innocent.
Corazon insists that Primo did not restrain himself from pursuing
his wicked intention despite her timely appearance, thus giving
her the opportunity to fully witness his beastly act.
We are not persuaded. It is inconsistent with man's instinct of self-
preservation to remain where he is and persist in satisfying his lust
even when he knows fully well that his dastardly acts have already
been discovered or witnessed by no less than the mother of his
victim. For, the normal behavior or reaction of Primo upon
learning of Corazon's presence would have been to pull his pants
up to avoid being caught literally with his pants down. The interval,
although relatively short, provided more than enough opportunity
for Primo not only to desist from but even to conceal his evil
design.
What appears to be the basis of the conviction of the accused was
Crysthel's answer to the question of the court
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ,
she readily said, "No." Thus
Q: But did his penis penetrate your organ?
A: No, sir. 20
This testimony alone should dissipate the mist of confusion that
enshrouds the question of whether rape in this case was
consummated. It has foreclosed the possibility of Primo's penis
penetrating her vagina, however slight. Crysthel made a
categorical statement denying penetration, 27 obviously induced
by a question propounded to her who could not have been aware
of the finer distinctions between touching and penetration.
Consequently, it is improper and unfair to attach to this reply of a
four (4)-year old child, whose vocabulary is yet as underdeveloped
as her sex and whose language is bereft of worldly sophistication,
an adult interpretation that because the penis of the accused
touched her organ there was sexual entry. Nor can it be deduced
that in trying to penetrate the victim's organ the penis of the
accused touched the middle portion of her vagina and entered the
labia of her pudendum as the prosecution failed to establish
sufficiently that Primo made efforts to penetrate
Crysthel. 22 Corazon did not say, nay, not even hint that Primo's
penis was erect or that he responded with an erection. 23 On the
contrary, Corazon even narrated that Primo had to hold his penis
with his right hand, thus showing that he had yet to attain an
erection to be able to penetrate his victim.
Antithetically, the possibility of Primo's penis having breached
Crysthel's vagina is belied by the child's own assertion that she
resisted Primo's advances by putting her legs close
together; 24 consequently, she did not feel any intense pain but
just felt "not happy" about what Primo did to her. 25 Thus, she only
shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where
penetration was not fully established, the Court had anchored its
conclusion that rape nevertheless was consummated on the
victim's testimony that she felt pain, or the medico-legal finding of
discoloration in the inner lips of the vagina, or the labia minora
was already gaping with redness, or the hymenal tags were no
longer visible. 26 None was shown in this case. Although a child's
testimony must be received with due consideration on account of
her tender age, the Court endeavors at the same time to harness
only what in her story appears to be true, acutely aware of the
equally guaranteed rights of the accused. Thus, we have to
conclude that even on the basis of the testimony of Crysthel alone
the accused cannot be held liable for consummated rape; worse,
be sentenced to death.1wphi1
Lastly, it is pertinent to mention the medico legal officer's finding
in this case that there were no external signs of physical injuries
on complaining witness' body to conclude from a medical
perspective that penetration had taken place. As Dr. Aurea P.
Villena explained, although the absence of complete penetration
of the hymen does not negate the possibility of contact, she
clarified that there was no medical basis to hold that there was
sexual contact between the accused and the victim. 27
In cases of rape where there is a positive testimony and a medical
certificate, both should in all respects complement each other;
otherwise, to rely on the testimonial evidence alone, in utter
disregard of the manifest variance in the medical certificate,
would be productive of unwarranted or even mischievous results.
It is necessary to carefully ascertain whether the penis of the
accused in reality entered the labial threshold of the female organ
to accurately conclude that rape was consummated. Failing in this,
the thin line that separates attempted rape from consummated
rape will significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal Code,
rape is attempted when the offender commences the commission
of rape directly by overt acts, and does not perform all the acts of
execution which should produce the crime of rape by reason of
some cause or accident other than his own spontaneous
desistance. All the elements of attempted rape and only of
attempted rape are present in the instant case, hence, the
accused should be punished only for it.
The penalty for attempted rape is two (2) degrees lower than the
imposable penalty of death for the offense charged, which is
statutory rape of a minor below seven (7) years. Two (2) degrees
lower is reclusion temporal, the range of which is twelve (12) years
and one (1) day to twenty (20) years. Applying the Indeterminate
Sentence Law, and in the absence of any mitigating or aggravating
circumstance, the maximum of the penalty to be imposed upon
the accused shall be taken from the medium period of reclusion
temporal, the range of which is fourteen (14) years, eight (8)
months and (1) day to seventeen (17) years and four (4) months,
while the minimum shall be taken from the penalty next lower in
degree, which is prision mayor, the range of which is from six (6)
years and one (1) day to twelve (12) years, in any of its periods.
WHEREFORE, the Decision of the court a quo finding accused
PRIMO "SONNY" CAMPUHAN Y BELLO guilty of statutory rape and
sentencing him to death and to pay damages is MODIFIED. He is
instead found guilty of ATTEMPTED RAPE and sentenced to an
indeterminate prison term of eight (8) years four (4) months and
ten (10) days of prision mayor medium as minimum, to fourteen
(14) years ten (10) months and twenty (20) days of reclusion
temporal medium as maximum. Costs de oficio.
SO ORDERED.1wphi1.nt
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-21860 February 28, 1974
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
VIOLETO VILLACORTE, alias BONGING, et al., defendants.
CRISANTO INOFERIO Y ALINDAO alias SANTE, and MARCIANO
YUSAY alias MANCING (appeal withdrawn res. of
7/10/67), defendants-appellants.
Office of the Solicitor General Felix Q. Antonio, Acting Assistant
Solicitor General Bernardo P. Pardo and Solicitor Jesus V. Diaz, for
plaintiff-appellee.
Peralta Law Offices for defendants-appellants.
FERNANDEZ, J.:p
The charge in this case was for robbery with homicide and the
penalty imposed upon the appellant Crisanto Inoferio and his co-
accused Violeto Villacorte and Marciano Yusay was reclusion
perpetua and the payment of indemnity to the heirs of the
deceased Benito Ching in the sum of P6,000.00. This case is now
before this Court only on the appeal of Inoferio, because although
the lower court convicted him and his co-accused Villacorte and
Yusay (Alfredo Handig, a fourth accused was acquitted), Villacorte
did not appeal, while the appeal of Yusay was withdrawn upon his
motion which was granted by this Court on July 10, 1967.
In the evening of August 27, 1959, Benito Ching, a Chinese
merchant, left his sari-sari store in the public market of
Caloocan1 to go home, bringing with him the proceeds of his sales
of the day which were placed in a paper bag. He was accompanied
by his two employees, Pedro Libantino and Modesto Galvez, who
acted as his bodyguards. On the way towards his home located at
133 F. Roxas, Grace Park, Caloocan, Benito Ching and his two
companions were accosted by four persons near the corner of an
alley at F. Roxas street. At that time, Libantino was some three or
four meters in front of Ching, while Galvez was walking directly
behind the Chinese merchant.
One of the holduppers pointed a .45 cal. pistol at Ching. Another
placed his left arm around the neck of Galvez, while the third held
both his arms. The first who pointed a pistol at Ching snatched
from him the paper bag containing the money. The fourth got that
paper bag from the snatcher.
Ching shouted for help, crying aloud "Pedie, Pedie"; his
companion Libantino turned around to respond to his employer's
call; but upon seeing the bag snatcher pointing a pistol at Ching,
Libantino fled. When Ching shouted: "Pedie, Pedie," the pistol-
holder fired at him. Galvez, Ching's other companion, was able to
free himself from two of the holduppers holding him, and he too
ran away. Ching fell down sprawled on the street and the four
holduppers ran away. Benito Ching, notwithstanding his wound,
was able to walk, staggering towards his home. His common-law
wife immediately called for a taxicab, brought Ching to the North
General Hospital in Manila where he died the following day.
Later that evening when Galvez was interrogated by police officers
of Caloocan who were investigating the incident, the interrogation
proved fruitless for Galvez was able to furnish the investigators
any information on the identities of the holduppers. But when
investigated by the CIS, Philippine Constabulary, at Camp Crame
on September 11, 1959, Galvez declared that Ching was accosted
by three persons, one of them pointing his pistol at the right ribs
of his employer. He identified the gunman as Violeto Villacorte
alias Bonging and even described the shirt and pants the gunman
was then wearing. He could not identify the two other
companions of Villacorte.
Libantino, when examined by the investigators of the Caloocan
police department on the same night of August 27, 1959, declared
that the holdup and shooting incident took place in a dark
"kalyehon" and that he could not identify the gunman nor the
latter's companions. But, in his written statement taken by the CIS
at Camp Crame, Quezon City on September 11, 1959, he declared
positively that he saw Violeto Villacorte alias Bonging as the
person who grabbed the paper bag containing money from Ching
and fired a pistol at Ching. He further said that aside from
Villacorte he saw three other persons, two of them were holding
the hands of his companion, Galvez. He admitted however, that
he could not recognize the two persons who were holding Galvez.
Villacorte who, in the meantime, had been positively identified by
Galvez and Libantino as the bag snatcher and as the gunman who
shot down Ching, when interrogated by the investigators of the
Criminal Investigation Service at Camp Crame on September 12,
1959 admitted that he was the one who snatched the paper bag
from Benito Ching and shot him. He identified his companions as
"Roque", "Sante" and "Fred".
In the information for robbery with homicide filed in the Court of
First Instance of Rizal on September 12, 1959, Violeto Villacorte
was so named therein; "Roque" and "Fred" were already identified
as Roque Guerrero and Alfredo Handig, respectively while "Sante"
was not yet identified and was named "John Doe alias Sante". On
September 24 of the same year, the information was amended by
changing the name of the accused John Doe alias Sante to Crisanto
Inoferio y Alindao; and another person, Marciano Yusay, was
included among the accused. Before the trial, upon motion, the
trial court discharged Roque Guerrero to be used as a State
witness.
As already above stated, the trial court, in its decision of May 15,
1963, acquitted Handig, convicted Villacorte who did not appeal,
and Yusay who appealed but who withdrew his appeal, and
Inoferio who pursued his appeal.
Upon a careful review of the evidence, We hold that the accused-
appellant Crisanto Inoferio should be acquitted upon the ground
that although his defense, in the nature of an alibi, is inherently a
weak defense, it should be considered sufficient as in this case, to
tilt the scale of justice in favor of the accused because the
evidence for the prosecution is itself weak and unconvincing and,
therefore, by and large, insufficient to prove the guilt of the
accused beyond reasonable doubt.
Only Modesto Galvez and the State witness, Roque Guerrero,
identified the appellant Inoferio as one of the holduppers. So, let
us now review and analyze their testimonies, especially insofar as
they refer to Inoferio, on the one hand, and the evidence of
Inoferio, on the other.
At the time he testified in Court, Modesto Galvez was 21 years old,
married and unemployed. In synthesis, he declared that: In
August, 1957, he was working as a helper in the store of Benito
Ching inside the market in Grace Park. Between 7 and 8 o'clock in
the evening of August 27 that year, he and another store helper,
Pedro Libantino accompanied Ching in going home. While they
were at F. Roxas Street, they were waylaid by four men.2
He was able to recognize two of them, namely Villacorte and the
herein appellant Crisanto Inoferio who were pointed to by him in
open court. Villacorte snatched the bag from Benito Ching and
fired at him once. The bag contained money. Two persons held
him. Inoferio was one of them. He did not know the other one.
Inoferio held him, Inoferio was behind and to the right of Galvez,
placing his left hand over the nape of the latter. He was able to
recognize Inoferio because he looked at his left, removed his hand
around the front part of his neck, and he saw tattoo on his
forearm. It was the figure of a woman with a bird. The place where
they were waylaid was bright. 3
On cross examination, Galvez admitted that he saw accused-
appellant Inoferio for the first time only on that night of August
27, 1959. The place was lighted from two electric posts; one in the
alley and the other east of the alley, corner of the alley and F.
Roxas street. He was scared at the time he was held up. When he
was held by two persons, one at his back (by appellant Inoferio)
and another at his front, he was scared. He did not move nor run
away until they released him. Inoferio was holding him with his
left arm, held him tight around the neck; it was difficult to unloose
his hold; the left forearm was so close to his neck that he could
hardly breathe; and immediately after being released, he ran
away.4
On further cross examination, the witness testified: The morning
following August 27, 1959, he went to the police station in
Caloocan. Three officers interrogated him. He was still scared and
was not able to tell them anything.5
On September 11, 1957, he was brought by some PC officers to
the CIS office, Camp Crame. He was interrogated by agents
Rodolfo Estevez and Florencio Suela. They asked him to relate the
details of the incident as best as he could. His statement was taken
down in writing. He signed that statement under oath before
Assistant Fiscal Castillo. The last question asked of him was: "Do
you have anything more to say?" And his answer was: "No more".
In that investigation, he said that he saw only three holduppers. In
that sworn statement, although he did not mention the name of
Inoferio, he stated that he saw a tattoo on the arm of the person
who held his neck that night. His sworn statement consisting of
two pages has been marked as Exh. "1-Inoferio".
Reading the sworn statement of Modesto Galvez (Exh. "1-
Inoferio"), it appears that it was taken on September 11, 1959 but
subscribed and sworn to before Assistant Fiscal Jose Castillo on
September 12, 1959. It is a fact that in this statement, he
mentioned that they were held up only by three persons. But,
contrary to his statement in Court, he did not mention in this
sworn statement (Exh. "1-Inoferio") that the one who held him by
the neck had a tattoo on his arm.
Let us now go to the testimony of Roque Guerrero. On direct
examination, he declared: He knows the accused Violeto
Villacorte. He had known him for a long time already. He knows
the accused Alfredo Handig. He also knows the accused Crisanto
Inoferio alias "Sante". He came to know him because they used to
play cara y cruz in 1959. As far as he knows, Crisanto Inoferio is a
Visayan. He also knows the accused Marciano Yusay.
In July, 1959, while he was driving a tricycle, Violeto Villacorte
called him and asked if he wanted to make some money by
waylaying somebody. He did not agree and he continued driving
the tricycle. After two weeks, they saw each other again when he
was driving a tricycle. Villacorte again asked him if he wanted to
make some money. He did not agree. Then, in the afternoon of
August 29, 1959, Villacorte met him again. His companions then
were Alfredo Handig, Marciano Yusay and "Sante". Villacorte
asked him if he was not really going with them. His answer was
how could he go when "Sante" did not want to tell him the person
to be waylaid. Handig told him to go. "Sante" also told him that he
go with them. Yusay even pulled out his .45 caliber gun and
threatened him, telling him: "Don't be afraid, this is what we are
going to use." Guerrero told them that he could not go with them
because "he is my kuya," referring to Benito Ching. When
Villacorte told him that they were going to rob Ching, he left them
but Alfredo Handig and "Sante" followed him. They told him that
they would kill him if he would approach anybody. He continued
driving his tricycle but they followed him. They left already
however at about 7 o'clock that evening. 6
On cross examination, Guerrero declared: At the time he met
"Sante", he was dressed in long sleeve he was always wearing
long sleeve shirt in the same manner that he was dressed while
Inoferio was in Court at the time this witness was cross examined.7
On the night of August 8, 1959, he was arrested in connection with
an attempt to rob the store of Benito Ching. He was prosecuted
for vagrancy and he pleaded guilty. He was sentenced to ten days
imprisonment. Subsequently, he was charged with attempted
robbery. When investigated by the CIS agents, he did not reveal to
them anything. He gave a written statement at Camp Crame on
September 21, 1959. In that statement, he told "the entire truth
of what you (Guerrero) knew about the entire case."8 In this
statement, Guerrero mentioned only "Sante" as among those who
talked to him, but did not mention his name Crisanto Inoferio.
The appellant Crisanto Inoferio, testifying in his defense, stated
that he was 39 years old, single, house painter, and a resident of
1691 Alvarez St., Sta. Cruz, Manila.9 He came to know the accused
Violeto Villacorte for the first time only in Camp Crame on
September 12, 1959. He came to know the accused Alfredo Handig
for the first time also on September 12, 1959 but in the Caloocan
Police Department. He came to know the accused who became a
State witness, Roque Guerrero, for the first time sometime before
August, 1959 at Caloocan. He used to ride in his tricycle and they
often played cara y cruz together. 10
He had been to the CIS office at Camp Crame two times. The first
was on September 12, 1959. In the morning of that date, he was
invited by the policemen of Caloocan to go to their headquarters.
He was made to wait there because some CIS agents would come.
They came at about 1 to 2 o'clock in the afternoon. The Caloocan
police officers and the CIS agents talked to each other. After a
while, the CIS said that they would bring him to their
headquarters. The Caloocan police officers answered that they
themselves would take him to Camp Crame which they did. They
were Pat. Cadoy, Cpl. Mauricio and another police lieutenant
whom he did not know. He was brought to the CIS headquarters
at Camp Crame at about 3 o'clock already that afternoon. 11
When he, Inoferio, was brought upstairs, the accused Villacorte
was going down. He did not mind him because he did not know
him then. Upon reaching the office of Capt. Calderon, he was
made to sit down. Later on, Villacorte and his companion came in.
His companion asked Villacorte if he knew him (Inoferio) and
Villacorte answered in the negative. He was also asked if he knew
Villacorte and his answer was in the negative. Then the accused
Handig was brought and in the confrontation, both of them stated
that they did not know each other. 12
Then he was brought to another room by the CIS agent who said:
"You are lucky you don't know those people. "After that, he told
them that he was not "Sante" because his nickname was
"Santing." 13
Towards the afternoon, he was given food to eat. While he was
eating, the Caloocan policemen told him not to finish eating
anymore as they were going home. And they left Camp Crame at
about past 6 o'clock in the afternoon of September 12, 1959.
When they reached Grace Park, Caloocan, the Policemen told him
to go home because he had no case. 14
The second time he was at Camp Crame was on September 21,
1959. At about 2 o'clock in the afternoon, some CIS agents went
to his house and upon their invitation, he went with them to Camp
Crame. They arrived there at about 5 o'clock in the afternoon.
While they were walking at the corridor, they saw Capt. Calderon
talking with Roque Guerrero. The CIS agent asked him if he knew
Guerrero and he said yes. Guerrero was asked if he knew him and
he answered in the affirmative. Then he was brought to a cell at
the groundfloor. At about 6 o'clock in the afternoon, CIS agent
Morales came and brought him upstairs. He was asked if he was
drinking wine and when he answered in the affirmative, wine was
brought. Morales opened the bottle and he was asked to drink.
While he was drinking, Morales told him: "I want to help you but
you also help me." His answer was: "What help can I do?" And the
reply was: "I'll make you a witness for the government." He asked
Morales what he would testify and the answer was: "At the trial,
point to Violeto Villacorte, Alfredo Handig and Roque Guerrero as
the persons who robbed the Chinese and that they were inviting
you to join them." His answer was: "That is bad Mr. Morales. I do
not know anything about the case you are talking about. I even do
not know Alfredo Handig and Violeto Villacorte." Morales stood
up, took him downstairs and told him to think about the matter.
He was again brought to his cell. 15
The following morning, after Inoferio had just taken his breakfast,
Morales came and told him: "What about the matter we talked
about last night, have you come to think about it?" He said: "I am
sorry, I cannot do what you are asking me." Then Morales replied:
"You might regret, I can also secure another witness," and he left.
At about 11 o'clock that morning, Morales returned with
somebody named Galvez whom he did not know. Morales then
told him to take off his clothes. After he had taken off his shirt,
Morales saw the tattoo on his arms (anterior portion of his left
forearm). Morales then told him to show his arm with the tattoo
to Galvez. After a few minutes, Morales and Galvez left. At about
5 o'clock in the afternoon, Morales came, brought him out of his
cell and conducted him upstairs. While they were inside a room,
Morales asked him questions which he, the latter, typed.
Whenever he would not be able to answer Morales, Morales
would slap him. Morales even tied his belt around his neck and
whenever he could not answer the questions, Morales would just
pull the belt. After the questioning by Morales in that afternoon
of September 22, 1959, he was made to sign his statement. At that
time, Capt. Calderon was passing by the corridor. Then he was
placed in his cell. 16
The next day, he was brought out his cell, was brought to the
stockade and then afterwards, to the provincial jail in Pasig. 17
Inoferio categorically denied the testimony of Roque Guerrero
that he was with Handig, Yusay, and Villacorte on August 27, 1959,
and that before that date, he and his companions were inviting
him (Guerrero) to join them to holdup somebody. And the reason
why Roque Guerrero testified against him was that Guerrero
thought that he was arrested because Inoferio pointed to him
when they met at Camp Crame. But Inoferio said that he pointed
to Guerrero only when he was asked by the CIS where Guerrero
was. 18
Inoferio denied the testimony of Galvez that he (Inoferio) was one
of those that embraced him (Galvez) during the holdup. 19 He
categorically stated that he had not known Galvez nor have met
him prior to August 27, 1959. He came to know Villacorte for the
first time on September 12, 1959 when they met at the stairway
of a building Camp Crame where he was interrogated. It was while
he was coming up said stairway when he met Violeto Villacorte for
the first time. Villacorte was then coming down the stairs. He
admitted that before August, 1959, he already knew Roque
Guerrero. 20
Violeto Villacorte, the person identified as the bag snatcher and
the one who shot Benito Ching, declared: He came to know
Crisanto Inoferio for the first time when he met at Camp Crame on
September 12, 1959. Before August 27, 1959, he had not yet met
Inoferio. 21
Another co-accused, Alfredo Handig, testified that he came to
know Crisanto Inoferio for the first time on September 12, 1959 in
the municipal building of Caloocan. He categorically declared that
prior to this date, he did not know said Crisanto Inoferio. 22
By way of background to our findings of facts which justify the
acquittal of appellant Inoferio, we now recapitulate the evidence
against the accused Violeto Villacorte, Marciano Yusay, and
Alfredo Handig.
Violeto Villacorte was positively identified by prosecution
witnesses Libantino and Galvez. And in an extrajudicial statement
secured from him by CIS investigators and which he signed and
swore to before the Assistant Fiscal of Rizal in Pasig, Villacorte
admitted his role as mastermind of the plan to waylay Benito
Ching and his having grabbed the paper bag containing the
proceeds of the sales of the sari-sari store of the Chinaman. He
likewise admitted responsibility for firing the pistol that snuffed
the life of Benito Ching.
Marciano Yusay was equally identified positively by Pedro
Libantino and Modesto Galvez as one of those present when
Villacorte was planning the holdup and at the time of the holdup.
And in the ante mortem statement of Benito Ching made to his
wife Candida Pasion, he said that Marciano Yusay was one of those
who held him up.
Alfredo Handig, on the other hand, although mentioned by
accused Villacorte as one of his companions in the planning and in
the execution of the robbery, prosecution witnesses Libantino and
Galvez never identified him positively because of which he was
acquitted by the trial court.
With respect to the herein appellant Crisanto Inoferio, the
evidence of the prosecution to the effect that he was one of the
holduppers is weak and unconvincing.
In the investigations conducted by the Caloocan Police
Department, both Modesto Galvez and Pedro Libantino never
mentioned appellant Inoferio as one of those who either planned
or executed the robbery and killing although the name of
Villacorte was mentioned by Libantino. In the examination
conducted by the CIS investigators at Camp Crame, again
Inoferio's name was never mentioned by both prosecution
witnesses although Villacorte's and Yusay's names were now
mentioned and linked to the crime.
When the accused Villacorte was subjected to a thorough
investigation by the CIS agents, he admitted his part in the
planning and in the commission of the crime and named Marciano
Yusay, Alfredo Handig and a certain "Sante". Again, Inoferio at this
stage of the investigation had as yet to be linked to this person
called "Sante" and to the crime.
In court, Libantino never identified Inoferio. More than that, he
contradicted Galvez, for while the latter testified that the man
who had his arm around his neck was Inoferio, Libantino who was
the one face to face with the man who had his arm around Galvez,
said that it was the accused Marciano Yusay. 23 And Libantino
declared that the place where the holdup and the shooting
incident took place was in a dark "kalyehon," that was why he
could not identify the gunman nor the latter's companions. This
contradicts the testimony of Galvez that the place where the
holdup and the shooting took place, was lighted from electric
posts. Libantino said that these two electric posts were quite far
from the scene of the crime; they were 10 meters away.
And as we consider the testimony of Modesto Galvez, even by
itself, we conclude that he was not able to see the face of the man
who held him around his neck and therefore could not possibly
identify him. He was scared at the time. The one holding him by
the neck was at his back. And immediately after he was released,
he ran away.
Let us now go to the telltale tattoo, the figure of a woman with a
bird, on the left forearm of Inoferio. Yes, Inoferio has that tattoo.
And according to Galvez, the one who held him around his neck
was Inoferio because he saw the tattoo of Inoferio when he looked
at his left and tried to remove the arm of the man holding him by
his neck. But any other person could have that kind of a tattoo,
the figure of a woman with a bird. But it may be asked: How did
Galvez come to know that Inoferio had that tattoo? The answer is
furnished by the testimony of Inoferio. We have taken pains to
give the synthesis of his entire testimony, and we are satisfied that
he told the truth, particularly on the point that when he was
brought to Camp Crame for the second time on September 21,
1959, he was told to remove his clothes and show his arm with the
tattoo to Galvez.
On top of all of these, there is the testimony in open court by
Galvez that as early as September 11, 1959, when he was
investigated at the CIS office in Camp Crame, he already stated
and specifically in his sworn statement given on that date but
subscribed and sworn to before Assistant Fiscal Castillo the
following day, that the one who held him by the neck had a tattoo
on his arm. We have gone over this written sworn statement and
we do not see any mention therein by Galvez of a tattoo on the
arm of person that held him.
And how could Galvez have seen the tattoo on the arm of the man
who held him by the neck when according to Guerrero, "Sante"
was dressed in long sleeve in the afternoon of the holdup (the
prosecution would want to prove that "Sante" is the accused
Crisanto Inoferio).
Therefore, the authorities cited by the prosecution that written
statements of witnesses to police authorities are usually sketchy
and incomplete; that as a matter of fact, it is natural for even
material matters to be left out when a person gives a sworn
statement during a criminal investigation, do not here apply. The
fact is that Galvez told a lie when he said that in his written
statement he declared that the man who held him had a tattoo.
How about the testimony of Roque Guerrero, the second and the
only other witness linking the appellant Inoferio to the robbery
holdup in question? He was not there at the scene of the crime.
All that he said was that he was asked three times before the
robbery holdup took place to go with the holduppers. But
Villacorte, Yusay and Handig denied this testimony of Guerrero.
And of course, Inoferio also denied it.
But what is most significant is the fact that all along, he was
referring to "Sante" as the one who was with the group when he
was asked to join them in the robbery holdup. As early as in his
written statement given at Camp Crame on September 21, 1959,
he referred to one of the holduppers as "Sante"; he never
mentioned therein the name of Crisanto Inoferio; and yet it is a
fact, admitted by both Guerrero and Inoferio, that they had known
each other long before the robbery holdup took place on August
27, 1959. Therefore, if Inoferio was the "Sante" with the group of
the holduppers, Guerrero should have referred to him as Inoferio
in his written statement of September 21, 1959.
And Crisanto Inoferio is not "Sante". He is the best witness to
testify on his nickname and he said that his nickname is "Santing".
Furthermore, this witness Guerrero has very poor credentials as
far as his credibility is concerned. He was, at the time he testified,
18 years old, single and unemployed. And on cross examination,
he admitted that on August 1959, he was arrested in an attempt
to rob the store of Benito Ching; he was prosecuted for vagrancy;
pleaded guilty and sentenced to ten days imprisonment.
Subsequently, he was charged with attempted robbery.
And assuming that appellant Inoferio was the "Sante" who took
part in the planning of the robbery holdup in question, which is
not the fact in this case, that in itself would not make him incur
any criminal liability if later on there is not that sufficient evidence
to prove that he actually took part in the robbery holdup. For after
taking part in the planning, he could have desisted from taking
part in the actual commission of the crime by listening to the call
of his conscience. This exempts him from criminal liability
whatsoever.
Against the weak and unconvincing evidence of the prosecution
regarding appellant Inoferio are his testimony and those of the
witnesses who corroborated him.
At the time he testified, Inoferio was 39 years old, single, and a
house painter. The flow of events as related by him in his
testimony, a synopsis of which we have already given earlier, is so
natural and convincing as to set at ease the mind and the
conscience of the Court that he was telling the truth. He denied
any participation in the robbery holdup in question. Moreover,
that he did not know co-accused Villacorte and Handig at the time
the crime was committed on August 27, 1959. He came to know
them only when these two were already arrested, a fact
corroborated by Villacorte and Handig. Even at the confrontation
before police officers and CIS agents, Inoferio, on one hand, and
his two co-accused, on the other, already denied having known
each other earlier.
The motive of Guerrero in testifying against Inoferio was explained
by the latter, and that is, that Guerrero thought, when Inoferio
pointed to him at Camp Crame that Inoferio was implicating
Guerrero in the robbery holdup. And Galvez, who never implicated
Inoferio when investigated by the Caloocan police officers in the
evening of August 27, 1959 and when investigated by the CIS
Camp Crame on September 11, 1959, must have based his
testimony in court, where he identified Inoferio, on the erroneous
information supplied to him that "Sante" (one of the holduppers)
was Inoferio.
This is good a time as any to emphasize the fact that courts should
not at once look with disfavor at the defense of alibi. Although
inherently weak and easily fabricated, the evidence presented by
an accused in support of that defense must be scrutinized with the
same care that evidence supporting other defenses deserves.
When an accused puts up the defense of alibi, the court should
not at once have a mental prejudice against him. For, taken in the
light of all the evidence on record, it may be sufficient to acquit
him, as in the case of appellant Inoferio.
WHEREFORE, the decision appealed from convicting the accused-
appellant Crisanto Inoferio is hereby reversed and he is hereby
acquitted with costs de oficio. It appearing that he is at present
detained at the New Bilibid Prisons at Muntinlupa, his immediate
release is hereby ordered. So ordered.
Zaldivar (Chairman), Fernando, Barredo and Aquino, JJ., concur.
Antonio, J., took no part.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19069 October 29, 1968
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AMADEO PERALTA, ET AL., defendants,
ANDRES FACTORA, LEONARDO DOSAL, ANGEL PARUMOG,
AMADEO PERALTA, FLORENCIO LUNA and GERVASIO
LARITA, defendants-review.
Assistant Solicitors General Vicente A. Torres and Antonio Ibarra
for plaintiff-appellee.
J. R. Nuguid for defendants-review.
PER CURIAM:
In the decision in criminal case 7705 of the Court of First Instance
of Rizal,subject of the present automatic review, Amadeo Peralta,
Andres Factora, Leonardo Dosal, Angel Parumog, Gervasio
Larita and Florencio Luna (six among the twenty-two
defendants1 charged therein with multiple murder) were
pronounced guilty, and all sentenced to death, to indemnify jointly
and severally the heirs of each of the victims, namely, Jose
Carriego, Eugenio Barbosaand Santos Cruz, in the sum of P6,000,
and each to pay his corresponding share of the costs.
The information recites:
That on or about the 16th day of February, 1958, in the
municipality of Muntinglupa, province of Rizal, Philippines, and
within the jurisdiction of this Honorable Court, the abovenamed
accused, who are convicts confined in the New Bilibid Prisons by
virtue of final judgments, conspiring, confederating and mutually
helping and aiding one another, with evident premeditation and
treachery, all armed with deadly weapons, did, then and there,
willfully, unlawfully and feloniously kill Jose Carriego, Eugenio
Barbosa and Santos Cruz, also convicts confined in the same
institution, by hitting, stabbing and striking them with ice picks,
clubs and other improvised weapons, pointed and/or sharpened,
thereby inflicting upon the victims multiple serious injuries which
directly caused their deaths.
That the aggravating circumstance of quasi-recidivism is present
in the commission of the crime in that the crime was committed
after the accused have been convicted by final judgments and
while they are serving the said judgments in the New Bilibid
Prisons.
Contrary to law with the following aggravating circumstances:
1. That the crime was committed with insult to public authorities;
2. That the crime was committed by a band;
3. That the crime was committed by armed men or persons who
insure or afford impunity;
4. That use of superior strength or means was employed to
weaken the defense;
5. That as a means to the commission of the crime doors and
windows have been broken;
6. That means was employed which add ignominy to the natural
effects of the act;
7. That the crime was committed where public authorities were
engaged in the discharge of their duties.
Upon motion of the provincial fiscal before trial, the lower court
dismissed the charge against one of the accused 2for lack of
evidence. After the prosecution had rested its case, the charges
against six of the accused3 were dismissed for failure of the
prosecution to establish a prima facie case against them. One of
the defendants died4during the pendency of the case. After trial,
the court a quo acquitted eight5 of the remaining defendants.
As early as in 1956, a great number of inmates confined in the
national penitentiary at Muntinglupa arrayed themselves into two
warring gangs, the "Sigue-Sigue" and the "OXO", the former
composed predominantly of Tagalog inmates, the latter
comprised mainly of prisoners from the Visayas and Mindanao.
Since then the prison compound has been rocked time and time
again by bloody riots resulting in the death of many of their
members and suspected sympathizers. In an effort to avert violent
clashes between the contending groups, prison officials
segrerated known members of the "Sigue-Sigue" from those of the
"OXO". Building 1 housed "Sigue-Sigue" members, while a
majority of the prisoners confined in Bldg. 4 belonged to the
"OXO". Even in Bldg. 4, which is composed of four brigades,
namely, 4-A and 4-B (upper floor) and 4-C and 4-D (first floor),
inmates from Visayas and Mindanao, from whom the "OXO" drew
most of its members, were confined in 4-A.
It was at about 7:00 a.m. on February 16, 1958, while the inmates
of the penitentiary were preparing to attend Sunday mass, that a
fight between two rival members of the "Sigue-Sigue" and "OXO"
gangs occurred in the plaza where the prisoners were assembled,
causing a big commotion. The fight was, however, quelled, and
those involved were led away for investigation, while the rest of
the prisoners were ordered to return to their respective quarters.
Hardly had conditions returned to normal when a riot broke out in
Bldg. 1, a known lair of the "Sigue-Sigue". The inmates thereof
tried to invade Bldg. 4, where many members and sympathizers of
the "OXO" gang were confined. The timely arrival of the guards
forced the invading inmates to retreat and return to Bldg. 1.
Moments later, another riot erupted in Bldg. 4, as the inmates of
brigade 4-A destroyed the lock of their door and then rampaged
from one brigade to another. The invading prisoners from 4-A,
mostly "OXO" members and sympathizers, clubbed and stabbed
to death Jose Carriego, an inmate of 4-B. Afterwards, they forcibly
opened the door of 4-C and killed two more inmates, namely,
Eugenio Barbosa and Santos Cruz.
The three victims sustained injuries which swiftly resulted in their
death before they could be brought to the hospital.
Jose Carriego: (a) lacerated wound on the lower lip, 5 cm. in length
and 3 cm.in depth; (b) contusion and hematoma of the back of the
neck, about 2 inches in diameter; and (c) five punctured wounds
in the chest, penetrating the lungs. Cause of death: internal
hemorrhage from multiple fatal wounds in the chest.
Eugenio Barbosa: (a) lacerated wound in the occipital region, 3
inches in length and 1 cm. in depth; (b) two penetrating wounds
in the abdomen, puncturing the intestines; (c) lacerated wounds
on the right oxilla, 3 cm. in length and 2 cm. in depth; and (d)
several bruises at the right and left lower extremities. Cause of
death: shock, secondary to internal hermorrhage in the abdomen.
Santos Cruz: (a) lacerated wound on the head, 2 inches in length;
(b) fractured skull; (c) wound on the upper lip cutting the lip in
two; (d) seven punctured wounds in the chest, two of which were
penetrating; (e) hematoma on the right hand; and (f) three
punctured wounds on the left hand. Cause of death: fractured
skull.
Romeo Pineda, an inmate and first quarter-in-charge of brigade 4-
B, testified that while he was taking his breakfast with Jose
Carriego, who was at the time the representative of the prisoners
confined in 4-B to the inmate carcel, he "suddenly heard
commotion" near the door of their brigade; that his fellow
prisoners started shouting "pinapasok na tayo," as the invading
inmates from brigade 4-A stampeded into 4-B; that he and
Carriego took hold of their clubs and stood at the end of the
passageway; that he saw Carriego surrender his club to Andres
Factora, an "OXO" member from 4-A; that as Carriego started to
walk away, Factora clubbed Carriego on the nape causing the
latter to fall; that Factora turned up the face of his fallen victim
and struck him again in the face; that while Carriego was in this
prostrate position, Amadeo Peralta and Leonardo Dosal,
companions of Factora, repeatedly stabbed him.
The testimony of Pineda was corroborated in all its material points
by Juanito Marayoc and Avelino Sauza, both inmates of 4-B. These
two prosecution witnesses identified Factora, Peralta and Dosal as
the assailants of Carriego.
From 4-B, the invading inmates of 4-A went down and forcibly
entered 4-C. According to Oscar Fontillas, an inmate of 4-C, he saw
the prisoners from 4-A rushing toward their brigade; that among
the invading inmates who forced open the door of 4-C, with help
from the inside provided by Visayan prisoners confined in 4-C,
were Factora, Dosal, Angel Parumog, Gervacio Larita, Ernesto
Fernandez and Jose Tariman; that he saw Factora, Larita and
Fernandez kill Barbosa, while the rest of their companies
instructed the Visayans to leave their cell and ordered the "Manila
boys" (Tagalogs) to remain. Antonio Pabarlan, another inmate of
4-C, declared that he saw Peralta stab Barbosa, as Dosal, Larita,
Florencio Luna, Parumog and Factora clubbed the hapless victim.
Another inmate of 4-C, Jose Halili, not only corroborated the
testimony of Fontillas and Pabarlan but as well added grim details.
He declared that while Barbosa was trying to hide under a cot, he
was beaten and stabbed to death by Dosal, Parumog, Factora and
Fernandez, with Luna, Larita, Pedro Cogol and Eilel Tugaya
standing guard, armed with clubs and sharp instruments, in
readiness to repel any intervention from the Tagalog inmates.
Carlos Espino, also confined in 4-C, declared that he saw Parumog,
Peralta Factora and Larita assault and kill Barbosa.
The same witnesses for the prosecution testifies that after killing
Barbosa, the invading "OXO" members and sympathizers
proceeded to hunt for Santos Cruz, another Tagalog like Carriego
and Barbosa. Halili testified, that he saw Peralta, Larita, Cogol and
Tugaya take Santos Cruz to 4-A from 4-C; that Santos Cruz knelt
down and pleaded for his life, saying, "Maawa kayo sa akin.
Marami akong anak;" that Luna and Peralta were unmoved as they
stabbed Santos Cruz to death. Pabarlan declared that after the
death of Barbosa, Santos Cruz was brought to 4-A by the invading
inmates but Cruz was able to slip back to his cell only to be
recaptured by Factora, Dosal and Luna and brought to near the
fire escape where he was clubbed and stabbed to death by
Parumog, Dosal, Factora and Peralta. Fontillas and Espino
corroborated the declarations of Halili and Pabarlan with respect
to the killing of Santos Cruz, and both mentioned Larita as one of
the assailants of Cruz.
The trial judge summarized the evidence for the prosecution, thus:
"... it clearly appears that the three killings in question were an
offshoot of the rivalry between the two organizations. All those
who were killed, namely, Barbosa, Carriego and Santos Cruz, were
Tagalogs and well known as members if not sympathizers of the
Sigue Sigue, while the accused so charged with their killing were
mostly members if not sympathizers of the Oxo organization.
These three killings were sparked by the commotion that
happened in the plaza between 8:00 and 9:00 in the morning,
while the prisoners were preparing to go the mass ... It was
evident that the clash that occurred in the plaza produced a chain
reaction among the members and followers of the two
organizations. The inmates of Building No. 1, known lair of the
Sigue Sigues bolted the door of their cells and tried to invade
Building No. 4 where a big number of the Oxo members and their
sympathizers were confined, but, however, were forced to retreat
by the timely arrival of the guards who sent them back to their
building. When the members of the Oxo in Building No. 4 learned
about this, they went on a rampage looking for members of the
Sigue Sigue or their sympathizers who were confined with them in
the same building. As the evidence of the prosecution shows, the
accused who were confined in Brigade 4-A of Building No. 4 led
the attack. They destroyed the lock of their dormitories and with
the help of their companions succeeded in bolting the door of the
different brigades, and once they succeeded in bolting the doors
of the different brigades, they went inside and tried to segregate
the Tagalogs from their group; that as soon as they discovered
their enemies they clubbed and stabbed them to death ...
Admitting that he was one among several who killed Jose Carriego,
Peralta nevertheless claims self-defense. He testified that on the
morning of the riot he was attacked by Carriego and Juan Estrella
near the door of 4-A while he was returning to his brigade from
the chapel with some companions; that Carriego clubbed him on
the head; that he was able to parry the second blow of Carriego
and then succeeded in squeezing Carriego's head with his hands;
that forthwith he whipped out an improvised ice pick and stabbed
Carriego several times; that when he (Peralta) was already dizzy
due to the head wound he sustained from the clubbing, Carriego
managed to slip away; that he then became unconscious, and
when he regained consciousness he found himself on
a tarima with his head bandaged.
Peralta's declarations do not inspire belief. The impressive array
of prosecution witnesses who saw him actively participate in the
killing of the three victims pointed to him as the aggressor, not the
aggrieved. Pineda, Marayoc and Sauza positively identified him as
one of the assailants of Carriego. Contrary to the pretensions of
Peralta, Carriego an alleged "Sigue-Sigue" member, would not
have attacked him, knowing fully well that Building No. 4 was an
"OXO" lair where the "Sigue-Sigue" members were outnumbered.
Anent the killing of Barbosa and Santos Cruz, Peralta failed to offer
any explicit defense to rebut the inculpatory declarations of
prosecution witnesses Pabarlan and Espino who saw him
participate in the killing of Barbosa and those of Halili, Fontillas
and Espino who identified him as one of the murderers of Santos
Cruz.
For his part, Leonardo Dosal stated that he killed Santos Cruz, but
also claims self-defense in exculpation. He declared that Santos
Cruz, Jose Carriego, Juanita Espino, Carlos Espino and Oscar
Fontillas invaded 4-A where he was confined; that a free-for-all
forthwith ensued; that he then heard Santos Cruz call Carlos
Espino, and advise the latter to go away as "I will be the one to kill
that person (Dosal);" that with a sharp instrument, Cruz hit him on
the head and then on the nose; that as Cruz was about to hit him
again, he got hold of his ice pick and stabbed Cruz repeatedly until
the latter fell.
Dosal's avowal is clearly belied by the positive testimonies of
Pabarlan, Halili and Espino who saw him participate in the killing
of Santos Cruz. If it is true that Dosal killed Santos Cruz in self-
defense when the latter together with his companions supposedly
invaded Dosal's brigade (4-A), why is it that the body of Santos
Cruz was found at the fire escape near the pasillo between 4-C and
4-D of the first floor of Bldg. 1 instead of in 4-A which is located in
the upper floor? Moreover, Dosal failed to explain why he was
seen in 4-C, which he does not deny, since he was an inmate of 4-
A where he was allegedly attacked. With respect to the murder of
Carriego and Barbosa with which Dosal was also charged, he did
not offer any evidence in his behalf. Hence, the testimonies of
Pineda, Marayoc and Sauza identifying him as one of the killers of
Carriego and those of Pabarlan, Halili and Espino implicating him
in the death of Santos Cruz, stand unrebutted.
Andres Factora declared that he clubbed Carriego and Santos Cruz
under compulsion of his co-accused who threatened to kill him if
he disobeyed their order; that he did not hit Barbosa anymore
because the latter was already dead; that it was his co-accused
who actually killed the three victims. Again, the declarations of the
prosecution witnesses, which were accorded full credence by the
trial court, expose the guilt of Factora beyond reasonable doubt.
In fact, according to Pineda, whose testimony was corroborated
by Marayoc, it was Factora who started the mass assault by
clubbing Carriego treacherously. Fontillas, Halili, Pabarlan and
Espino pointed to Factora as one of the killers of Barbosa, while at
least three prosecution witnesses, namely, Pabarlan, Fontillas and
Espino, saw Factora participate in the slaying of Santos Cruz. The
active participation of Factora in the killing, which is clear index of
voluntariness, thus negates his claim of compulsion and fear
allegedly engendered by his co-accused.
Angel Parumog, Gervasio Larita and Florencio Luna take refuge in
the exculpatory device of alibi. Parumog testified that he did not
participate in the killing of the three inmates because he stayed
during that entire hapless day in the office of the trustees for
investigation after the fight in the plaza; that he was implicated in
the killing by the prosecution witnesses because of his refusal to
accede to their request to testify against his co-accused; that he is
not a Visayan but a Tagalog from Nueva Ecija. Larita claims that he
did not know about the killing until he was informed that three
inmates had died; that on the day in question he was brought to
the police trustee brigade for investigation after the incident in
the plaza; that he was escorted back to his brigade only in the
afternoon. Luna likewise disclaims any knowledge of the killing
and asserts that for the entire duration of the riot he remained in
his cell (brigade 4-A).
The alibis of Parumog, Larita and Luna merit no credence when set
against the positive testimonies of prosecution witness identifying
them as participants in the killing of Barbosa and Santos Cruz.
Pabarlan, Espino and Fontillas declared that Larita was one of the
killers of Barbosa; Espino and Fontillas declared that they saw
Larita kill Santos Cruz; Pabarlan, Halili and Espino testified that
they saw Parumog participate in the murder of Barbosa; Espino,
Fontillas and Pabarlan stated that Parumog took part in the killing
of Santos Cruz. Pabarlan and Halili declared that Luna participated
in the fatal assault on Barbosa and Santos Cruz.
The alibis of the accused are thus sufficiently overcome by strong
evidence to the contrary. The defense of alibi is generally weak
since it is easy to concoct. For this reason, courts view it with no
small amount of caution, and accept it only when proved by
positive, clear and satisfactory evidence.6 In the case at bar, if
Parumog and Larita were really confined in the police trustee
brigade for investigation on the day of the incident, there should
have been a record of the alleged investigation. But none was
presented. The testimony of Luna that throughout the riot he
stayed in his cell is quite unnatural. He claims that he did not even
help his cellmates barricade their brigade with tarimas in order to
delay if not prevent the entry of the invading inmates. According
to him, he "just waited in one corner."
The rule is settled that the defense of alibi is worthless in the face
of positive identification by prosecution witnesses pointing to the
accused as particeps criminis.7 Moreover, the defense of alibi is an
issue of fact the resolution of which depends almost entirely on
the credibility of witnesses who seek to establish it. In this respect
the relative weight which the trial judge accords to the testimony
of the witnesses must, unless patently inconsistent without
evidence on record, be accepted.8 In the case at bar, the trial
court, in dismissing the alibis of Parumog, Larita and Luna, said
that "their mere denial cannot prevail over the positive testimony
of the witnesses who saw them participate directly in the
execution of the conspiracyto kill Barbosa, Carriego and Santos
Cruz."
The killing of Carriego constitutes the offense of murder because
of the presence of treachery as a qualifying circumstance: Carriego
was clubbed by Factora from behind, and as he lay prostrate and
defenseless, Peralta and Dosal stabbed him repeatedly on the
chest. The blow on the nape and the penetrating chest wounds
were all fatal, according to Dr. Bartolome Miraflor. Abuse of
superior strength qualified the killing of Barbosa and Santos Cruz
to the category of murder. The victims, who were attacked
individually were completely overwhelmed by their assailants'
superiority in number and weapons and had absolutely no chance
at all to repel or elude the attack. All the attackers were armed
with clubs or sharp instruments while the victims were unarmed,
as so found by the trial court. In fact, Halili testified that Barbosa
was clubbed and stabbed to death while he was trying to hide
under a cot, and Santos Cruz was killed while he was on his knees
pleading for his life.
The essential issue that next confronts us is whether conspiracy
attended the commission of the murders. The resolution of this
issue is of marked importance because upon it depends the
quantity and quality of the penalties that must be imposed upon
each of the appellants.
For this purpose, it is not amiss to briefly restate the doctrine on
conspiracy, with particular emphasis on the facets relating to its
nature, the quantum of proof required, the scope and extent of
the criminal liability of the conspirators, and the penalties
imposable by mandate of applicable law.
Doctrine. A conspiracy exists when two or more persons come to
an agreement concerning the commission of a felony and decide
to commit it.9 Generally, conspiracy is not a crime except when the
law specifically provides a penalty therefor as in
treason,10 rebellion11 and sedition.12 The crime of conspiracy
known to the common law is not an indictable offense in the
Philippines.13 An agreement to commit a crime is a reprehensible
act from the view-point of morality, but as long as the conspirators
do not perform overt acts in furtherance of their malevolent
design, the sovereignty of the State is not outraged and the
tranquility of the public remains undisturbed. However, when in
resolute execution of a common scheme, a felony is committed by
two or more malefactors, the existence of a conspiracy assumes
pivotal importance in the determination of the liability of the
perpetrators. In stressing the significance of conspiracy in criminal
law, this Court in U.S. vs. Infante and Barreto14 opined that
While it is true that the penalties cannot be imposed for the mere
act of conspiring to commit a crime unless the statute specifically
prescribes a penalty therefor, nevertheless the existence of a
conspiracy to commit a crime is in many cases a fact of vital
importance, when considered together with the other evidence of
record, in establishing the existence, of the consummated crime
and its commission by the conspirators.
Once an express or implied conspiracy is proved, all of the
conspirators are liable as co-principals regardless of the extent
and character of their respective active participation in the
commission of the crime or crimes perpetrated in furtherance of
the conspiracy because in contemplation of law the act of one is
the act of all.15 The foregoing rule is anchored on the sound
principle that "when two or more persons unite to accomplish a
criminal object, whether through the physical volition of one, or
all, proceeding severally or collectively, each individual whose evil
will actively contributes to the wrong-doing is in law responsible
for the whole, the same as though performed by himself
alone."16 Although it is axiomatic that no one is liable for acts other
than his own, "when two or more persons agree or conspire to
commit a crime, each is responsible for all the acts of the others,
done in furtherance of the agreement or conspiracy."17 The
imposition of collective liability upon the conspirators is clearly
explained in one case18 where this Court held that
... it is impossible to graduate the separate liability of each
(conspirator) without taking into consideration the close and
inseparable relation of each of them with the criminal act, for the
commission of which they all acted by common agreement ... The
crime must therefore in view of the solidarity of the act and intent
which existed between the ... accused, be regarded as the act of
the band or party created by them, and they are all equally
responsible ...
Verily, the moment it is established that the malefactors conspired
and confederated in the commission of the felony proved,
collective liability of the accused conspirators attaches by reason
of the conspiracy, and the court shall not speculate nor even
investigate as to the actual degree of participation of each of the
perpetrators present at the scene of the crime. Of course, as to
any conspirator who was remote from the situs of aggression, he
could be drawn within the enveloping ambit of the conspiracy if it
be proved that through his moral ascendancy over the rest of the
conspirators the latter were moved or impelled to carry out the
conspiracy.
In fine, the convergence of the wills of the conspirators in the
scheming and execution of the crime amply justifies the
imputation to all of them the act of any one of them. It is in this
light that conspiracy is generally viewed not as a separate
indictable offense, but a rule for collectivizing criminal liability.
The ensnaring nature of conspiracy is projected in bold relief in the
cases of malversation and rape committed in furtherance of a
common design.
The crime of malversation is generally committed by an
accountable public officer who misappropriates public funds or
public property under his trust.19 However, in the classic case
of People vs. Ponte20 this Court unequivocally held that a janitor
and five municipal policemen, all of whom were not accountable
public officers, who conspired and aided a municipal treasurer in
the malversation of public funds under the latter's custody, were
principally liable with the said municipal treasurer for the crime of
malversation. By reason of conspiracy, the felonious act of the
accountable public officer was imputable to his co-conspirators,
although the latter were not similarly situated with the former in
relation to the object of the crime committed. Furthermore, in the
words of Groizard, "the private party does not act independently
from the public officer; rather, he knows that the funds of which
he wishes to get possession are in the latter's charge, and instead
of trying to abstract them by circumventing the other's vigilance
he resorts to corruption, and in the officer's unfaithfulness seeks
and finds the most reprehensible means of accomplishing a deed
which by having a public officer as its moral instrument assumes
the character of a social crime."21 In an earlier case22 a non-
accountable officer of the Philippine Constabulary who conspired
with his superior, a military supply officer, in the malversation of
public funds was adjudged guilty as co-principal in the crime of
malversation, although it was not alleged, and in fact it clearly
appeared, that the funds misappropriated were not in his custody
but were under the trust of his superior, an accountable public
officer.
In rape, a conspirator is guilty not only of the sexual assault he
personally commits but also of the separate and distinct crimes of
rape perpetrated by his co-conspirators. He may have had carnal
knowledge of the offended woman only once but his liability
includes that pertaining to all the rapes committed in furtherance
of the conspiracy. Thus, in People vs. Villa,23 this Court held that
... from the acts performed by the defendants front the time they
arrived at Consolacion's house to the consummation of the
offense of rape on her person by each and everyone of them, it
clearly appears that they conspired together to rape their victim,
and therefore each one is responsible not only for the rape
committed personally by him, but also that committed by the
others, because each sexual intercourse had, through force, by
each one of the defendants with the offended was consummated
separately and independently from that had by the others, for
which each and every one is also responsible because of the
conspiracy.
The rule enunciated in People vs. Villa was reiterated in People vs.
Quitain24 where the appellant Teofilo Anchita was convicted of
forcible abduction with double rape for having conspired and
cooperated in the sexual assault of the aggrieved woman,
although he himself did not actually rape the victim. This Court
observed:
We have no doubt all in all that Teofilo Anchita took part in the
sexual assault ... the accused inserted his fingers in the woman's
organ, and widened it. Whether he acted out of lewdness or to
help his brother-in-law consummate the act, is immaterial; it was
both maybe. Yet, surely, by his conduct, this prisoner conspired
and cooperated, and is guilty.
With respect to robbery in band, the law presumes the attendance
of conspiracy so much so that "any member of a band who is
present at the commission of a robbery by the band, shall be
punished as principal of any of the assaults committed by the
band, unless it be shown that he attempted to prevent the
same."25 In this instance, conspiracy need not be proved, as long
as the existence of a band is clearly established. Nevertheless, the
liability of a member of the band for the assaults committed by his
group is likewise anchored on the rule that the act of one is the
act of all.
Proof of conspiracy. While conspiracy to commit a crime must be
established by positive evidence,26 direct proof is not essential to
show conspiracy.27 Since by it nature, conspiracy is planned in
utmost secrecy, it can seldom be proved by direct
evidence.28 Consequently, competent and convincing
circumstantial evidence will suffice to establish conspiracy.
According to People vs. Cabrera,29 conspiracies are generally
proved by a number of indefinite acts, conditions, and
circumstances which vary according to the purposes to be
accomplished. If it be proved that the defendants pursued by their
acts the same object, one performing one part and another
another part of the same, so as to complete it, with a view to the
attainment of the same object, one will be justified in the
conclusion that they were engaged in a conspiracy to effect the
object." Or as elucidated in People vs. Carbonel30the presence of
the concurrence of minds which is involved in conspiracy may be
inferred from "proofs of facts and circumstances which, taken
together, apparently indicate that they are merely parts of some
complete whole. If it is proved that two or more persons aimed by
their acts towards 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
a closeness of personal association and a concurrence of
sentiment, a conspiracy may be inferred though no actual meeting
among to concert means is proved ..." In two recent cases, 31 this
Court ruled that where the acts of the accused, collectively and
individually, clearly demonstrate the existence of a common
design toward the accomplishment of the same unlawful purpose,
conspiracy is evident.
Conspiracy presupposes the existence of a preconceived plan or
agreement; however, to establish conspiracy, "it is not essential
that there be proof as to previous agreement to commit a crime,
it being sufficient that the malefactors committed shall have acted
in concert pursuant to the same objective."32 Hence, conspiracy is
proved if there is convincing evidence to sustain a finding that the
malefactors committed an offense in furtherance of a common
objective pursued in concert.
Liability of conspirators. A time-honored rule in the corpus of our
jurisprudence is that once conspiracy is proved, all of the
conspirators who acted in furtherance of the common design are
liable as co-principals.33 This rule of collective criminal liability
emanates from the ensnaring nature of conspiracy. The concerted
action of the conspirators in consummating their common
purpose is a patent display of their evil partnership, and for the
consequences of such criminal enterprise they must be held
solidarity liable.
However, in order to hold an accused guilty as co-principal by
reason of conspiracy, it must be established that he performed an
overt act in furtherance of the conspiracy, either by actively
participating in the actual commission of the crime, or by lending
moral assistance to his co-conspirators by being present at the
scene of the crime, or by exerting moral ascendancy over the rest
of the conspirators as to move them to executing the conspiracy.
The difference between an accused who is a principal under any
of the three categories enumerated in Art. 17 of the Revised Penal
Code and a co-conspirator who is also a principal is that while the
former's criminal liability is limited to his own acts, as a general
rule, the latter's responsibility includes the acts of his fellow
conspirators.
In People vs. Izon, et al.,34 this Court acquitted appellant Francisco
Robles, Jr., who was convicted by the trial court of robbery with
homicide as a conspirator, on the ground that although he may
have been present when the conspiracy to rob was proposed and
made, "Robles uttered not a word either of approval or
disapproval. There are authorities to the effect that mere
presence at the discussion of a conspiracy, even approval of it,
without any active participation in the same, is not enough for
purposes of conviction." In a more recent case, 35this Court, in
exonerating one of the appellants, said:
There is ample and positive evidence on record that appellant Jose
Guico was absent not only from the second meeting but likewise
from the robbery itself. To be sure, not even the decision under
appeal determined otherwise. Consequently, even if Guico's
participation in the first meeting sufficiently involved him with the
conspiracy (as he was the one who explained the location of the
house to be robbed in relation to the surrounding streets and the
points thereof through which entrance and exit should be
effected), such participation and involvement, however, would be
inadequate to render him criminally liable as a conspirator.
Conspiracy alone, without the execution of its purpose, is not a
crime punishable by law, except in special instances (Article 8,
Revised Penal Code) which, however, do not include robbery.
Imposition of multiple penalties where conspirators commit more
than one offense. Since in conspiracy, the act of one is the act of
all, then, perforce, each of the conspirators is liable for all of the
crimes committed in furtherance of the conspiracy. Consequently,
if the conspirators commit three separate and distinct crimes of
murder in effecting their common design and purpose, each of
them is guilty of three murders and shall suffer the corresponding
penalty for each offense. Thus in People vs. Masin,36 this Court
held:
... it being alleged in the information that three crimes were
committed not simultaneously indeed but successively, inasmuch
as there was, at least, solution of continuity between each
other, the accused (seven in all) should be held responsible for said
crimes. This court holds that the crimes are murder ... In view of
all these circumstances and of the frequently reiterated doctrine
that once conspiracy is proven each and every one of the
conspirators must answer for the acts of the others, provided said
acts are the result of the common plan or purpose ... it would seem
evident that the penalty that should be imposed upon each of the
appellants for each of their crimes should be the same, and this is
the death penalty ... (emphasis supplied).
In the aforesaid case, however, the projected imposition of three
death penalties upon each of the conspirators for the three
murders committed was not carried out due to the lack of the then
requisite unanimity in the imposition of the capital penalty.
In another case,37 this Court, after finding that conspiracy
attended the commission of eleven murders, said through Mr.
Justice Tuason:
Some members of this Court opine that the proper penalty is
death, under the circumstances of the case, but they fall short of
the required number for the imposition of this punishment. The
sentence consequently is reclusion perpetua; but each appellant is
guilty of as many crimes of murder as there were deaths (eleven)
and should be sentenced to life imprisonment for each crime,
although this may be a useless formality for in no case can
imprisonment exceed forty years. (Emphasis supplied.)
In People vs. Masani,38 the decision of the trial court imposing only
one life imprisonment for each of the accused was modified by
this Court on appeal on the ground that "inasmuch as their (the
conspirators') combined attack resulted in the killing of three
persons, they should be sentenced to suffer said penalty (reclusion
perpetua) for each of the three victims (crimes)." (Emphasis
supplied.)
It is significant to note that in the abovementioned cases, this
Court consistently stressed that once conspiracy is ascertained,
the culpability of the conspirators is not only solidary (all co-
principals) but also multiple in relation to the number of felonies
committed in furtherance of the conspiracy. It can also be said that
had there been a unanimous Court in
the Masin and Macaso cases, multiple death penalties would
have been imposed upon all the conspirators.
Legality and practicality of imposing multiple death penalties upon
conspirators. An accused who was charged with three distinct
crimes of murder in a single information was sentenced to two
death penalties for two murders,39 and another accused to
thirteen (13) separate death penalties for the 13 killings he
perpetrated.40 Therefore there appears to be no legal reason why
conspirators may not be sentenced to multiple death penalties
corresponding to the nature and number of crimes they commit
in furtherance of a conspiracy. Since it is the settled rule that once
conspiracy is established, the act of one conspirator is attributable
to all, then each conspirator must be held liable for each of the
felonious acts committed as a result of the conspiracy, regardless
of the nature and severity of the appropriate penalties prescribed
by law.
The rule on the imposition of multiple penalties where the
accused is found guilty of two or more separate and distinct crimes
charged in one information, the accused not having interposed
any objection to the multiplicity of the charges, was enunciated in
the leading case of U.S. vs. Balaba,41 thus: Upon conviction of two
or more offenses charged in the complaint or information, the
prescribed penalties for each and all of such offenses may be
imposed, to be executed in conformity with the provisions of
article 87 of the Penal Code [now article 70 of the Revised Penal
Code]. In other words, all the penalties corresponding to the
several violations of law should be imposed. Conviction for
multiple felonies demands the imposition of multiple penalties.
The two conceptual exceptions to the foregoing rule, are the
complex crime under article 48 of the Revised Penal Code and the
special complex crime (like robbery with homicide). Anent an
ordinary complex crime falling under article 48, regardless of the
multiplicity of offenses committed, there is only one imposable
penalty the penalty for the most serious offense applied in its
maximum period. Similarly, in special complex crimes, there is but
a single penalty prescribed by law notwithstanding the number of
separate felonies committed. For instance, in the special complex
crime of robbery with hommicide the imposible penalty
is reclusion perpetua to death42 irrespective of the number of
homicides perpetrated by reason or on occasion of the robbery.
In Balaba, the information charged the accused with triple
murder. The accused went to trial without objection to the said
information which charged him with more than one offense. The
trial court found the accused guilty of two murders and one
homicide but it imposed only one death penalty. In its review en
consulta, this Court modified the judgment by imposing separate
penalties for each of the three offenses committed. The Court,
thru Mr. Justice Carson (with Mr. Justice Malcolm dissenting with
respect to the imposition of two death penalties), held:
The trial judge was erroneously of the opinion that the prescribed
penalties for the offenses of which the accused was convicted
should be imposed in accord with the provisions of article 89 of
the Penal Code. That article is only applicable to cases wherein a
single act constitutes two or more crimes, or when one offense is
a necessary means for committing the other. (U.S. vs. Ferrer, 1
Phil. Rep., 56)
It becomes our duty, therefore, to determine what penalty or
penalties should have been imposed upon the accused upon
conviction of the accused of three separate felonies charged in the
information.
There can be no reasonable doubt as to the guilt of the convict of
two separate crimes of asesinato (murder) marked with the
generic aggravating circumstances mentioned in the decision of
the trial judge ... It follows that the death penalty must and should
be imposed for each of these offenses ...
Unless the accused should be acquitted hereafter on appeal of one
or both the asesinatos with which he is charged in the
information, it would seem to be a useless formality to impose
separate penalties for each of the offenses of which he was
convicted, in view of the nature of the principal penalty; but
having in mind the possibility that the Chief Executive may deem
it proper to grant a pardon for one or more of the offenses without
taking action on the others; and having in mind also the express
provisions of the above cited article 87 of the Penal Code, we
deem it proper to modify the judgment entered in the court below
by substituting for the penalty imposed by the trial judge under
the provisions of article 89 of the Code, the death penalty
prescribed by law for each of the two separate asesinatos of which
he stands convicted, and the penalty of 14 years, 8 months and 1
day of reclusion temporal (for the separate crime of homicide) ...
these separate penalties to be executed in accord with the
provisions of article 87 of the Penal Code. (Emphasis supplied.)
The doctrine in Balaba was reiterated in U.S. vs. Jamad43 where a
unanimous Court, speaking again thru Mr. Justice Carson (with Mr.
Justice Malcolm concurring in the result in view of
the Balaba ruling), opined:
For all the offenses of which the accused were convicted in the
court below, the trial judge imposed the death penalty, that is to
say the penalty prescribed for the most serious crime committed,
in its maximum degree, and for this purpose made use of the
provisions of article 89 of the Penal Code [now article 48 of the
Revised Penal Code]. But as indicated in the case of the United
States vs. Balaba, recently decided wherein the controlling facts
were substantially similar to those in the case at bar, "all of the
penalties corresponding to the several violations of law" should
have been imposed under the express provisions of article 87
[now engrafted in article 70 of the Revised Penal Code] and under
the ruling in that case, the trial court erred in applying the
provision of article 89 of the code.
We conclude that the judgment entered in the court below should
be reversed, ... and that the following separate penalties should
be imposed upon him [the accused Jamad], to be executed in
accordance with article 87 of the Penal Code: (1) The penalty of
death for the parricide of his wife Aring; (2) the penalty of life
imprisonment for the murder of Labonete; (3) the penalty of life
imprisonment for the murder of Torres; (4) the penalty of 12 years
and one day of cadena temporal for the frustrated murder of
Taclind ...
The doctrine in Balaba was reechoed in People vs.
Guzman,44 which applied the pertinent provisions of the Revised
Penal Code, where this Court, after finding the accused liable as
co-principals because they acted in conspiracy, proceeded to
stress that where an "information charges the defendants with the
commission of several crimes of murder and frustrated murder, as
they failed to object to the multiplicity of the charges made in the
information, they can be found guilty thereof and sentenced
accordingly for as many crimes the information charges them,
provided that they are duly established and proved by the
evidence on record." (Emphasis supplied.)
The legal and statutory justification advanced by the majority
in Balaba for imposing all the penalties (two deaths and one life
imprisonment) corresponding to the offense charged and proved
was article 87 of the old Penal Code which provided:
When a person is found guilty of two or more felonies or
misdemeanors, all the penalties corresponding to the several
violations of law shall be imposed, the same to be simultaneously
served, if possible, according to the nature and effects of such
penalties.
in relation to article 88 of the old Code which read:
When all or any of the penalties corresponding to the several
violations of the law can not be simultaneously executed, the
following rules shall be observed with regard thereto:
1. In the imposition of the penalties, the order of their respective
severity shall be followed so that they may be executed
successively or as nearly as may be possible, should a pardon have
been granted as to the penalty or penalties first imposed, or
should they have been served out.
The essence and language, with some alterations in form and in
the words used by reason of style, of the above-cited provisions
have been preserved in article 70 of the Revised Penal Code which
is the product of the merger of articles 87 and 88 of the old Penal
Code. Article 70 provides:
When the culprit has to serve two or more penalties, he shall serve
them simultaneously if the nature of the penalties will so permit;
otherwise, the following rules shall be observed:
In the imposition of the penalties, the order of their respective
severity shall be followed so that they may be executed
successively or as nearly as may be possible, should a pardon have
been granted as to the penalty or penalties first imposed, or
should they have been served out.
Although article 70 does not specifically command, as the former
article 87 clearly did, that "all the penalties corresponding to the
several violations of law shall be imposed," it is unmistakable,
however, that article 70 presupposes that courts have the power
to impose multiple penalties, which multiple penal sanctions
should be served either simultaneously or successively. This
presumption of the existence of judicial power to impose all the
penalties corresponding to the number and nature of the offenses
charged and proved is manifest in the opening sentence of article
70: "When the culprit has to serve two or more penalties, he shall
serve them simultaneously if the nature of the penalties will so
permit ..." (Emphasis supplied.) Obviously, the two or more
penalties which the culprit has to serve are those legally imposed
by the proper court. Another reference to the said judicial
prerogative is found in the second paragraph of article 70 which
provides that "in the imposition of the penalties, the order of their
respective severity shall be followed ..." Even without the
authority provided by article 70, courts can still impose as many
penalties as there are separate and distinct offenses committed,
since for every individual crime committed, a corresponding
penalty is prescribed by law. Each single crime is an outrage
against the State for which the latter, thru the courts ofjustice, has
the power to impose the appropriate penal sanctions.
With respect to the imposition of multiple death penalties, there
is no statutory prohibition or jurisprudential injunction against it.
On the contrary, article 70 of the Revised Penal Code presumes
that courts have the power to mete out multiple penalties without
distinction as to the nature and severity of the penalties.
Moreover, our jurisprudence supports the imposition of multiple
death penalties as initially advocated in Balaba and thunderously
reechoed in Salazar where the accused was sentenced on appeal
to thirteen (13) death penalties. Significantly, the Court
in Balaba imposed upon the single accused mixed multiple
penalties of two deaths and one life imprisonment.
The imposition of multiple death penalties is decried by some as a
useless formality, an exercise in futility. It is contended,
undeniably enough, that a death convict like all mortals, has only
one life to forfeit. And because of this physiological and biological
attribute of man, it is reasoned that the imposition of multiple
death penalties is impractical and futile because after the service
of one capital penalty, the execution of the rest of the death
penalties will naturally be rendered impossible. The foregoing
opposition to the multiple imposition of death penalties suffers
from four basic flaws: (1) it fails to consider the legality of imposing
multiple capital penalties; (2) it fails to distinguish between
imposition of penalty and service of sentence; (3) it ignores the
fact that multiple death sentences could be served
simultaneously; and (4) it overlooks the practical merits of
imposing multiple death penalties.
The imposition of a penalty and the service of sentence are two
distinct, though related, concepts. The imposition of the proper
penalty or penalties is determined by the nature, gravity and
number of offenses charged and, proved, whereas service of
sentence is determined by the severity and character of the
penalty or penalties imposed. In the imposition of the proper
penalty or penalties, the court does not concern itself with the
possibility or practicality of the service of the sentence, since
actual service is a contingency subject to varied factors like
successful escape of the convict, grant of executive clemency or
natural death of the prisoner. All that go into the imposition of the
proper penalty or penalties, to reiterate, are the nature, gravity
and number of the offenses charged and proved and the
corresponding penalties prescribed by law.
Multiple death penalties are not impossible to serve because they
will have to be executed simultaneously. A cursory reading of
article 70 will show that there are only two modes of serving two
or more (multiple) penalties: simultaneously or successively. The
first rule is that two or more penalties shall be served
simultaneously if the nature of the penalties will so permit. In the
case of multiple capital penalties, the nature of said penal
sanctions does not only permit but actually necessitates
simultaneous service.
The imposition of multiple death penalties, far from being a
useless formality, has practical importance. The sentencing of an
accused to several capital penalties is an indelible badge of his
extreme criminal perversity, which may not be accurately
projected by the imposition of only one death sentence
irrespective of the number of capital felonies for which he is liable.
Showing thus the reprehensible character of the convict in its real
dimensions, the possibility of a grant of executive clemency is
justifiably reduced in no small measure. Hence, the imposition of
multiple death penalties could effectively serve as a deterrent to
an improvident grant of pardon or commutation. Faced with the
utter delinquency of such a convict, the proper penitentiary
authorities would exercise judicious restraint in recommending
clemency or leniency in his behalf.
Granting, however, that the Chief Executive, in the exercise of his
constitutional power to pardon (one of the presidential
prerogatives which is almost absolute) deems it proper to
commute the multiple death penalties to multiple life
imprisonments, then the practical effect is that the convict has to
serve the maximum of forty (40) years of multiple life sentences.
If only one death penalty is imposed, and then is commuted to life
imprisonment, the convict will have to serve a maximum of only
thirty years corresponding to a single life sentence.
Reverting now to the case at bar, it is our considered view that the
trial court correctly ruled that conspiracy attended the
commission of the murders. We quote with approval the following
incisive observations of the court a quo in this respect:
Although, there is no direct evidence of conspiracy, the Court can
safely say that there are several circumstances to show that the
crime committed by the accused was planned. The following
circumstances show beyond any doubt the acts of
conspiracy: First, all those who were killed, Barbosa, Santos Cruz
and Carriego, were Tagalogs. Although there were many Tagalogs
like them confined in Building 4, these three were singled out and
killed thereby showing that their killing has been planned. Second,
the accused were all armed with improvised weapons showing
that they really prepared for the occasion. Third, the accused
accomplished the killing with team work precision going from one
brigade to another and attacking the same men whom they have
previously marked for liquidation and lastly, almost the same
people took part in the killing of Carriego, Barbosa and Santos
Cruz.
It is also important to note that all the accused were inmates of
brigade 4-A; that all were from either the Visayas or Mindanao
except Peralta who is from Masbate and Parumog who hails from
Nueva Ecija; that all were either "OXO" members or sympathizers;
and that all the victims were members of the "Sigue-Sigue" gang.
The evidence on record proves beyond peradventure that the
accused acted in concert from the moment they bolted their
common brigade, up until the time they killed their last victim,
Santos Cruz. While it is true that Parumog, Larita and Luna did not
participate in the actual killing of Carriego, nonetheless, as co-
conspirators they are equally guilty and collectively liable for in
conspiracy the act of one is the act of all. It is not indispensable
that a co-conspirator should take a direct part in every act and
should know the part which the others have to perform.
Conspiracy is the common design to commit a felony; it is not
participation in all the details of the execution of the crime. All
those who in one way or another help and cooperate in the
consummation of a felony previously planned are co-
principals.45 Hence, all of the six accused are guilty of the slaughter
of Carriego, Barbosa and Santos Cruz each is guilty of three
separate and distinct crimes of murder.
We cannot agree, however, with the trial court that evident
premeditation was also present. The facts on record and the
established jurisprudence on the matter do not support the
conclusion of the court a quo that evident premeditation "is
always present and inherent in every conspiracy." Evident
premeditation is not inherent in conspiracy as the absence of the
former does not necessarily negate the existence of the
latter.46 Unlike in evident premeditation where a sufficient period
of time must elapse to afford full opportunity for meditation and
reflection for the perpetrator to deliberate on the consequences
of his intended deed, conspiracy arises at the very instant the
plotters agree, expressly or impliedly, to commit the felony and
forthwith decide to commit it.47 This view finds added support
in People vs. Custodia,48 wherein this Court stated:
Under normal conditions, where the act of conspiracy is directly
established, with proof of the attendant deliberation and selection
of the method, time and means of executing the crime, the
existence of evident premeditation can be taken for granted. In
the case before us, however, no such evidence exists; the
conspiracy is merely inferred from the acts of the accused in the
perpetration of the crime. There is no proof how and when the
plan to kill Melanio Balancio was hatched, or what time elapsed
before it was carried out; we are, therefore, unable to determine
if the appellants enjoyed "sufficient time between its inception
and its fulfillment dispassionately to consider and accept the
consequences." (cf. People vs. Bangug, 52 Phil. 91.) In other
words, there is no showing of the opportunity of reflection and the
persistence in the criminal intent that characterize the aggravating
circumstance of evident premeditation (People vs. Mendoza, 91
Phil. 58; People vs. Iturriaga, 47 Off. Gaz., [Supp to No. 12] 166;
People vs. Lesada 70 Phil., 525.)
Not a single extenuating circumstance could be appreciated in
favor of any of the six accused, as they did neither allege nor prove
any.
In view of the attendance of the special aggravating circumstance
of quasi-recidivism, as all of the six accused at the time of the
commission of the offenses were serving sentences49 in the New
Bilibid Prison at Muntinlupa by virtue of convictions by final
judgments the penalty for each offense must be imposed in its
maximum period, which is the mandate of the first paragraph of
article 160 of the Revised Penal Code. Viada observes, in
apposition, that the severe penalty imposed on a quasi-
recidivist is justified because of his perversity and incorrigibility.50
ACCORDINGLY, the judgment a quo is hereby modified as follows:
Amadeo Peralta, Andres Factora, Leonardo Dosal, Angel Parumog,
Gervasio Larita and Florencio Luna are each pronounced guilty of
three separate and distinct crimes of murder, and are each
sentenced to three death penalties; all of them shall, jointly and
severally, indemnify the heirs of each of the three deceased
victims in the sum of P12,000;51 each will pay one-sixth of the
costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Sanchez, Castro,
Angeles, Fernando and Capistrano, JJ.,concur.
Zaldivar, J., is on leave.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 128966 August 18, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EDWIN DE VERA y GARCIA, RODERICK GARCIA y GALAMGAM,
KENNETH FLORENDO and ELMER CASTRO, accused,
EDWIN DE VERA y GARCIA, appellant.
PANGANIBAN, J.:
When is a lookout deemed an accomplice and when a
conspirator? What is the distinction between the two?
Statement of the Case
These are the main questions passed upon by the Court in
resolving the present appeal, which assails the March 12, 1997
Decision1 of the Regional Trial Court of Quezon City (Branch 57) in
Criminal Case No. Q-92-31323, finding Appellant Edwin De Vera
and Accused Roderick Garcia guilty beyond reasonable doubt of
murder and sentencing them to reclusion perpetua.
In an Information dated June 11, 1992, Assistant City Prosecutor
Tirso M. Gavero charged with murder Appellant Edwin De Vera,
together with Roderick Garcia and two other persons who were
subsequently identified during the trial as Kenneth Florendo and
Elmer Castro. The crime was allegedly committed as follows:
That on or about the 8th day of June, 1992, in Quezon City,
Philippines, the said accused, conspiring [and] confederating
[with] and helping . . . two (2) other persons, did then and there
wilfully, unlawfully and feloniously with intent to kill, with evident
premeditation, treachery and use of superior strength, attack,
assault and employ personal violence upon the person of one
FREDERICK CAPULONG y DIZON, by then and there shooting him
with the use of a .22 cal. with trade mark "Paspar Armas" bearing
SN-29069 with five (5) pieces of caliber 22 ammo inside, hitting
him between his eyes and striking him with the use of a baseball
bat in the mouth, thereby inflicting upon him serious and mortal
wounds which were the direct and immediate cause of his
untimely death, to the damage and prejudice of the heirs of the
said Frederick Capulong y Dizon.2
On July 9, 1992, Assistant City Prosecutor Enrico P. Bringas filed a
Motion to Amend the Information to include the use of a .32
caliber firearm in the killing of Frederick Capulong. The trial court
granted the Motion, and the Amended Information now reads as
follows:
That on or about the 8th day of June, 1992, in Quezon City,
Philippines, the said accused, conspiring [and] confederating
[with] and helping . . . two (2) other persons, did then and there
wilfully, unlawfully and feloniously with intent to kill, with evident
premeditation, treachery and use of superior strength, attack,
assault and employ personal violence upon the person of one
FREDERICK CAPULONG y DIZON, by then and there shooting him
with the use of a .22 cal. with trade mark "Paspar Armas" bearing
SN-29069 with five (5) pieces of caliber 22 ammo inside and a .32
cal. firearm of still undetermined make, hitting him between his
eyes and striking him with the use of a baseball bat in the mouth,
thereby inflicting upon him serious and mortal wounds which
were the direct and immediate cause of his untimely death, to the
damage and prejudice of the heirs of the said Frederick Capulong
y Dizon.3
On their arraignment, Appellant Edwin De Vera4 and Roderick
Garcia5 pleaded not guilty. The other two accused were at large.
Trial in due course proceeded only against De Vera and Garcia.
Thereafter, the trial court rendered the assailed Decision, the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered finding the accused
EDWIN DE VERA y GARCIA and RODERICK GARCIA y GALAMGAM
guilty beyond reasonable doubt of the crime of MURDER and they
are hereby accordingly sentenced to suffer reclusion perpetua,
including all its accessory penalties; to indemnify the heirs of
Frederick Capulong y Dizon, as follows:
a) P50,000.00, as death indemnity;
b) P211,670.00, as compensatory damages;
c) P600,000.00, as indemnification for loss of earning capacity;
d) P500,000.00, as moral damages;
e) Interest at the legal rate on a) and b), hereof from the filing of
the information until full payment; and,
f) Costs of suit.16
Only Edwin De Vera filed a Notice of Appeal. 7
The Facts
Version of the Prosecution
In its Brief,8 the Office of the Solicitor General presented the
following narration of facts:9
As earlier stated, the prosecution presented an eyewitness in the
person of Bernardino Cacao, a resident of Denver Loop Street,
Filinvest II, Quezon City before he moved to No. 58 Elisa Street,
Caloocan City. He was residing at Filinvest II, together with his wife
and children, at the time of the incident on June 28, 1992 in the
house owned by David Lim. He was then employed at a Kodak
branch in Caloocan City, while his wife served as secretary of the
homeowners association.1wphi1.nt
About 1:30 in the afternoon of June 8, 1992, while bringing out the
garbage, the witness saw a car passing by, driven by victim
Frederick Capulong together with four (4) other passengers. He
knew the victim by name who was a resident of the subdivision.
He recognized and identified two of the passengers as Kenneth
Florendo and Roderick Garcia, both familiar in the subdivision.
Cacao did not at first notice anything unusual inside the car while
it passed by him, but then he heard unintelligible voices coming
from the car as it was cruising around Denver Loop Street, a
circular road whose entrance and exit were through the same
point (ibid, p. 12). His curiosity taking [the] better part of him,
Cacao walked to the opposite side of the road from where he saw
the car already parked. Moments later, he saw the victim dragged
out of the car by Florendo and brought to a grassy place. Florendo
was holding a gun (ibid, p. 13). Upon reaching the grassy spot,
Florendo aimed and fired the gun at the victim, hitting him
between the eyes, After the shooting, Florendo and his
companions fled in different directions.
When he submitted a sworn statement to the investigating
prosecutor, Cacao attached a sketch of the crime scene prepared
by police officers, indicating therein his relative position at the
time of the incident. While testifying in court, Cacao identified
Garcia and pointed to appellant as among the companions of
Florendo.
Ten minutes later, or about 2:40 in the afternoon, the desk officer
of the Investigation Division, Station 5, Central Police District,
Quezon City received a report about the shooting incident from a
security guard of the subdivision. The officer immediately
dispatched a team to Filinvest II, composed of PO2 Armando
Garcia, PO3 Armando Junio, and PO3 Jovencio Villacorte, to
investigate and gather evidence (TSN, p. 5, September 13, 1993).
A security guard guided the team to the corner of Denver and
Doa Justina Streets, site of the shooting, where they discovered
blood stains and damaged grass (ibid, p. 6). The guard informed
them that the victim was rushed to the East Avenue Medical
Center by other security guards. The policemen then found a color
red sports car with plate no. NBZ 869, with engine still running and
its doors opened. They recovered inside the car several class cards
and a license belonging to one Ric Capulong, who was later
identified as Frederick Capulong.
The policemen went around the subdivision to look for possible
suspects. They came upon a person wearing
muddled maong pants and white t-shirt "standing and walking
around" near the clubhouse of the subdivision. When asked his
name, the person identified himself as Edwin de Vera, herein
appellant. Explaining the mud stains on his pants, appellant
declared that he was a victim of a hold-up. Suspicious [of] his
conduct, the policemen brought appellant to Station 5 and turned
him over to the desk officer for investigation.
Another prosecution witness, SPO3 Mario Guspid, a police
investigator since 1989, was assigned to investigate the shooting
of Frederick Capulong. He was assisted by SPO4 Pablito Selvido,
SPO2 Armando Rivera, SPO3 Jovencio Villacorte, SPO3 Rolando
Gacute, SPO3 Danilo Castro and other police officers.
Upon receiving his assignment, SPO3 Guspid immediately went to
the East Avenue Medical Center where he saw the victim lying
inside the intensive care unit receiving medical treatment. The
victim was unconscious. After conferring with the victim's parents
and relatives, SPO3 Guspid returned to Station 5. On his arrival,
the desk officer referred appellant to him for questioning. He was
told that appellant was picked up near the crime scene acting
suspiciously. When appellant was asked about his participation in
the shooting, he was reluctant at first to talk, but later relented
after SPO3 Guspid told him that his conscience would bother him
less if he would tell the truth.
Without any hesitation, appellant admitted being [with the] group
which perpetrated the crime, and implicated Roderick Garcia. He
was then persuaded to accompany a group of policemen to the
residence of Garcia, which turned out to be at Doa Justina Street,
Filinvest II Subdivision. Finding Garcia at home, SPO3 Guspid
informed him that he was implicated by appellant [in] the crime.
He was then invited to the station to shed light [on] the incident.
Garcia consented.
At Station 5, SPO3 Guspid interviewed appellant and Garcia. In the
course of the interview, Garcia revealed the place where he hid a
.22 caliber gun, black t-shirt and black cap. According to Garcia,
Florendo asked them to wear black t-shirts. With the revelation,
SPO3 Guspid, SPO2 Rivera, SPO3 Gacute and SPO3 Castro,
together with the suspects, went back to the subdivision and
proceeded to a grassy portion near the boundary of Filinvest II and
San Mateo, Rizal. The place was near a creek and about 50 meters
away from the residence of Garcia (TSN, pp. 9-14, September 30,
1993). Truly, the policemen recovered a .22 caliber revolver, black
t-shirt and black cap (TSN, pp. 12-13, August 24, 1993).While
there, SPO3 Guspid and SPO2 Rivera prepared a sketch of the
crime scene to reflect the explanations and answers given by
appellant and Garcia in response to their questions. As identifying
marks, SPO3 Gacute placed his initials "OG" (acronym for his first
name and family name) between the handle and cylinder of the
gun, and on the neck of the t-shirt, as well as in the inner lining of
the black cap.
From the crime site, the policemen and the suspects returned to
Station 5 where SPO3 Guspid asked them if they were willing to
give their written statements, to which they assented.
Consequently, they were brought to the Integrated Bar of the
Philippines, Quezon City Chapter, at Malakas Street, Diliman,
Quezon City. They were then introduced to Atty. Confesor
Sansano, the [c]hairman of the Free Legal Aid of the IBP. Also,
present at that time were appellant's relatives, including his
mother and sisters, and other lawyers of the IBP.
SPO3 Guspid inquired from them if they would agree to be
assisted by Atty. Sansano, "a competent lawyer." They replied in
the affirmative. Thereafter, the two conferred with Atty. Sansano.
Atty. Sansano, a rebuttal witness of the prosecution, testified that
upon arrival of the suspects [i]n his office, he requested the
policemen, as a matter of policy, to step outside the building in
order to assure that no pressure would be exerted on the suspects
even by their mere presence (TSN, p. 6, November 6, 1996). After
they left, Atty. Sansano interviewed the suspects for about twenty
minutes, informing them of their rights under the constitution and
inquiring from them if they indeed wanted to give voluntary
statements. To the query, the suspects answered positively. They
also affirmed their earlier declaration that they were willing to be
assisted by the IBP (ibid, pp. 8-9). He further advised them of their
right during the investigation to answer or not to answer the
questions which they thought would incriminate them, but they
retorted that they fully understood their right.
Satisfied that they were not coerced or threatened to give their
statements, Atty. Sansano requested the suspects to show their
upper bodies to enable him to determine any telltale signs of
torture or bodily harm. Finding no such signs, he then summoned
the policemen to re-enter the building. The investigators readied
two typewriters and each suspect was assigned to an investigator.
He served as the lawyer of the suspects, cautioning them against
answering questions that they did not understand, and to seek . .
. a clarification, if needed.
According to Atty. Sansano, the interrogation took place in his
office, a single separate room from where his five staff members
were visible. He sat between the two tables used by the
investigators for typing the questions and answers, involving
himself from beginning to end of the investigation until the signing
of the statements. He never left the office to attend to anything
else, consistent with [the] standing policy of the IBP to properly
safeguard the rights of suspects during investigation.
He recalled that the investigators first typed the headings of the
statements, then informed the suspects before starting the
investigation about their rights under the constitution,
specifically, the right of the suspects to have a lawyer of their own
choice; if not, the police would provide them with one who would
assist them; that they could answer or refuse to answer the
questions. The investigators also asked him if he was willing to
serve as counsel of the suspects. They also asked the suspects if
they were willing to accept him as their counsel. They agreed
expressly by saying: "Oho."
SPO3 Guspid investigated Garcia while SPO4 Selvido investigated
appellant. They conducted the question and answer investigation
in Pilipino. The statement of appellant was marked as Exhibit O
and that of Garcia was marked as Exhibit N. The statements were
signed by the suspects and Atty. Sansano.
For his part, SPO4 Selvido declared that SPO3 Guspid requested
his help in taking the statements of the suspects (TSN, p. 4, June
29, 1993). He took the statement of appellant in the presence of
Atty. Sansano. Before proceeding, he reminded appellant of the
constitutional warnings, consisting of four (4) questions under the
heading "Paunawa," to which the latter gave positive answers. The
statement was signed by appellant and Atty. Sansano. After taking
down the statement, he turned over appellant to SPO3 Guspid.
Following the investigation, the policemen brought the suspects
to the Philippine National Police Crime Laboratory for paraffin
testing. The result: "both hands of Edwin de Vera y Garcia @
Boy/Bong gave positive results [in] the test for gunpowder nitrates
while both hands of Roderick Garcia y Galamgam @ Deo gave
negative result [in] the test for gunpowder nitrates."
After coming from the crime laboratory, SPO3 Guspid contacted
the mother of the victim to get her own statement. Next, he
obtained a death certificate and prepared a referral to the Quezon
City Prosecution Office which was signed by Senior Inspector
Ernesto Collado, Chief of the Station Investigation Division. During
the inquest, the prosecutor asked the suspects some clarificatory
questions.
Surveillance and follow-up operations were conducted against
Florendo and his other companion, Elmer Castro. However, the
two were never arrested and brought to trial.
Version of the Defense
Appellant claims that he had no part in the killing, and that it was
Kenneth Florendo who had shot the victim. He avers that he
merely accompanied to Filinvest the other accused and Florendo,
who was his friend, upon the latter's request. A few hours after
the shooting incident, appellant was picked up by the police, who
subsequently tortured and coerced him into signing his Statement
regarding the incident. The trial court summarized appellant's
evidence in this wise:10
Edwin de Vera admitted that, as of June 8, 1992, he and Kenneth
Florendo were already close friends for about a year, sometimes
sleeping in the latter's house at No. 106 Kamias Road, Quezon City.
His own residence at the time was at No. 7 Bignay Street, Project
2, Quezon City. That was also the address of Elmer Castro, his and
Kenneth's friend.
Edwin had slept in Kenneth's house on Kamias Road from June 6
to June 8, 1992 and went home at 7:00 am of June 8th Later at
around 10:30 am, Kenneth passed by Edwin's house to invite him
back to [the former's] house that morning and to bring Elmer
along. Kenneth mentioned that he, his girlfriend, and Deo, who
were then with him, would be going somewhere first. Deo, or
Roderick Garcia, was another friend of Kenneth's.
Edwin and Elmer later went to and arrived at Kenneth's house at
11:00 am. Kenneth, his girlfriend, and Deo were already taking
lunch, and invited the two to lunch. After lunch, Kenneth asked
Edwin to go with him to Filinvest without telling why. It was Deo
who mentioned to Edwin that Kenneth was going to see a friend.
Edwin was not aware if Kenneth had also asked the others to go
with him to Filinvest, but the four of them Kenneth, Edwin,
Elmer, and Deo later proceeded to Filinvest [i]n Kenneth's car.
Edwin sat at the back seat. The time was past 12:00 noon.
Kenneth drove his car. Upon reaching Filinvest, Kenneth stopped
at a house and the four of them alighted in front of the house.
Edwin did not know whose house it was. Kenneth and Elmer told
Edwin and Deo to wait near the car because they were going to
see a friend. At that point in time, Edwin knew the person[,] whom
Kenneth and Elmer went to see[,] by name, never having met him
personally before then. From his conversation with Deo, Edwin
found out that the house was where Deo stayed.
Then, Edwin heard the voices of Kenneth and his friend and they
appeared to be arguing (". . . . parang nagtatalo sila") The voices
came from some twenty-two (22) meters away. Not before long,
Edwin also heard a gunshot which came from where Kenneth and
Elmer had gone to. He was shocked because he was not used to
hearing gunfire. Frightened, he panicked and ran away from the
place. His singular thought while running was to get out of
Filinvest. Deo also ran away.
Edwin denied that either he or Deo carried any firearm on that
occasion.
Edwin was arrested by the police at past 2:00 p.m. when he was
already outside of Filinvest subdivision in front of Batasan. He was
brought to Station 5 where four (4) persons in civilian attire
tortured him by forcing him to lie down on a bench, tying his feet
together and binding his hands from his back with handcuffs, and
then covering his face with a piece of dirty cloth into which water
was poured little by little into his face and mouth, while one of
them sat on his thighs. This maltreatment lasted for about 20 or
25 minutes, because they wanted him to admit "something" and
to name "my companions" but he refused to admit or to name
anyone. They next took him outside to a mango tree where they
repeated his ordeal for 30 minutes. At one point during the
torture, a policeman untied his feet and hands and poked a gun to
his temple, telling him to run as it was his chance to escape, but
he did not escape because he could see that they were merely
frightening him.
None of the policemen told him that he could . . . get a lawyer[;]
instead, one of them, whose name he [did] not know, told him
that "I should listen only to them and not to anyone else." He
claimed that he saw one [of] his tormentors in court, and he
identified him as police officer Rivera. Guspid did not participate
in his torture, because he merely took down his statement. His
tormentors were not drunk or under the influence of drugs, but
Guspid seemed to be under the influence of drugs when he took
his statement because of his troubled appearance.
Edwin was not advised to inform or call any of his relatives. Before
his torture, his request to contact his relatives or lawyer was
turned down. His intimidation continued (". . . . puro pananakot
and ginawa nila sa akin"). After his torture at the mango tree, he
was returned inside and thrown into a cell, where he remained
until the following day (June 9th). During the night, an inmate
named Cesar boxed him once in the upper body upon instruction
of a policeman. He was not given any dinner.
At around noontime of the next day (June 9th), Edwin was taken
out of the cell and brought to the IBP office by police officers
Guspid and Selvido. Also with them were Deo Garcia and two
other police officers. At the IBP office, the officers talked with one
of the lawyers there, whom Edwin came to know to be Atty.
Sansano only after the lawyer was introduced ("present") to him
and Deo. That was the first he met and saw Atty. Sansano.
Atty. Sansano informed both Edwin and Deo that they had the
choice whether to talk or not. Edwin could not make any comment
because "wala po ako sa sarili ko". Then, Atty. Sansano warned
Edwin substantially that: "Alam n'yo ba na ang salaysay na ito ay
maaring hindi ninyo sumpaan," referring to the statement taken
from Edwin by officers Guspid at around past 8 p.m. until 9 p.m.
on the day before (June 8, 1992) at the police station. He was not
assisted by counsel, and had no relatives present. Guspid
appeared to be "like drunk or tipsy," when he took down Edwin's
statement that night."
At the IBP office, Edwin's and Deo's statement were taken
separately by Guspid and Selvido, respectively. At the time, Edwin
and Deo were about six (6) meters from each other, but he could
hear what was being asked of Deo. Guspid asked the questions
and typed both the questions and his answers, which were given
in Tagalog. All the while, Atty. Sansano was inside his office, which
was about seven (7) meters away from where he and Guspid were
situated. The office of Atty. Sansano was separated by a divider,
so that he could not see what Atty. Sansano was doing at the time.
After the questioning, he signed a paper which he was not able to
read. He did not see Atty. Sansano sign the paper.
xxx xxx xxx
On July 14, 1992, Edwin executed a so-called salaysay ng
pagbabawi ng sinumpaang salaysay, which he swore to before
Prosecutor Tobia of Quezon City, for the purpose of recanting his
statements given at the precinct in the evening of June 8, 1992
and at the IBP office on June 9, 1992 on the ground that they were
given under coercion, intimidation, and in violation of his
constitutional rights.
Ruling of the Trial Court
Based on the testimony of Eyewitness Bernardino Cacao, the trial
court ruled that it was indeed Kenneth Florendo who had actually
shot the victim, Roderick Capulong. It convicted appellant as a
principal, however, because "the scientific and forensic findings
on the criminal incident directly and substantially confirmed the
existence of conspiracy among the four [accused], namely,
Kenneth Florendo, Elmer Castro, Edwin de Vera, and Roderick
Garcia.11
The Issues
Appellant submits for the consideration of this Court the following
alleged errors:
I testimony does not establish appellant's culpability.
THE TRIAL JUDGE ERRED IN NOT FINDING THAT PROSECUTION
EYE-WITNESS BERNARDO CACAO HAD TESTIFIED TO NO CRIMINAL
ACT OF APPELLANT;
II
THE TRIAL JUDGE ERRED IN FINDING AND CONCLUDING THAT
THERE WAS A CONSPIRACY TO KILL THE VICTIM AND THAT
APPELLANT WAS A CO-CONSPIRATOR;
III
THE TRIAL JUDGE ERRED IN ADMITTING EXHIBIT "O", ALLEGED
STATEMENT OF APPELLANT; AND IN NOT DECLARING THE SAME
AS AN INADMISSIBLE EVIDENCE CONSIDERING THE BARBARIC
MANNER UNDER WHICH IT WAS EXTRACTED/OBTAINED FROM
THE APPELLANT WHICH VIOLATED THE LATTER'S
CONSTITUTIONAL RIGHTS;
IV
THE TRIAL COURT ERRED IN NOT FINDING AND DECLARING THAT
THE PROSECUTION HAS NOT PROVED THE APPELLANT'S GUILT
BEYOND REASONABLE DOUBT AND IN NOT ACQUITTING THE
APPELLANT.12
In the main, the Court will resolve three questions: (1) the
sufficiency of the prosecution evidence, (2) the admissibility of
appellant's extrajudicial statement, and (3) the nature of his
liability.
The Court's Ruling
The appeal is partly meritorious. Appellant should be convicted
only as an accomplice, not as a principal.
First and Third Issues:
Sufficiency of Prosecution Evidence and Appellant's Liability
Because the first and the third questions mentioned above are
interrelated, they shall be discussed jointly.
Eyewitness Account
In ruling that there was conspiracy between Florendo, Castro,
Garcia and Appellant De Vera, the trial court relied mainly on the
testimony of Eyewitness Cacao. Specifically, it based its
conclusions on the following facts: appellant was seen with the
other accused inside the victim's car; the victim was clearly struck
with a blunt object while inside the car, and it was unlikely for
Florendo to have done it all by himself; moreover, it was
impossible for De Vera and Garcia to have been unaware of
Florendo's dark design on Roderick.
We disagree. It is axiomatic that the prosecution must establish
conspiracy beyond reasonable doubt.13 In the present case, the
bare testimony of Cacao fails to do so.
Cacao testified that he saw Appellant De Vera in the car, where an
altercation later occurred. Thereafter, he saw Florendo drag out
of the vehicle an apparently disabled Capulong and shoot the
victim in the head moments later.
Cacao's testimony contains nothing that could inculpate
appellant. Aside from the fact that he was inside the car, no other
act was imputed to him. Mere presence does not amount to
conspiracy.14 Indeed, the trial court based its finding of conspiracy
on mere presumptions, and not on solid facts indubitably
indicating a common design to commit murder. Such suppositions
do not constitute proof beyond reasonable doubt. As the Court
has repeatedly stated, criminal conspiracy must be founded on
facts, not on mere surmises or conjectures. Clearly, Cacao's
Appellant's Extrajudicial
Statement
Aside from the testimony of Cacao, the prosecution also
presented Appellant De Vera's extrajudicial statement, which
established three points.
First, appellant knew of Kenneth Florendo's malevolent intention.
T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam
mo ba ito at pumayag kang maging kasapakat nito?
S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong
araw na iyon ay nagkahiyaan na lamang at napilitan akong
sumama.15
Second, appellant's companions were armed that day, a fact which
revealed the unmistakable plan of the group.
T: Ikaw ba ay mayroong dalang armas noong hapon na iyo[n]?
S: Wala po akong dalang armas. Pero itong si Kenneth ay
mayroong dalang dalawang baril[,] sina Deo at Elmer ay wala. Pero
noong naroroon na kami sa lugar ay ibinigay ni Kenneth ang isang
baril niya kay Deo at itong si Elmer ay mayroong nang dalang
baseball bat.
Third, he cooperated with the other accused in the commission of
the crime by placing himself at a certain distance from Kenneth
and the victim in order to act as a lookout. This is clear from the
following portion of his statement:
S: Kabarkada ko po si Kenneth at dalawang araw po akong
nakitulog sa kanila at noong araw ng June 08, 1992 ay sinabihan
ako ni Kenneth Gumabao na huwag raw akong uuwi, dahil
[mayroon] daw po kaming lakad. Pagkaraan ng ilang oras ay
dumating naman itong si Roderick Garcia @ Deo at may sinabi sa
kanya itong si Kenneth at sinabi naman ito sa akin ni Deo na kaysa
raw maunahan siya ni Frederick Sumulong [sic] ay uunahan na raw
po niya ito. Umalis po itong si Kenneth na kasama ang kanyang
nobya at itong si Deo, para ihatid ang kanyang [sic] sa hospital at
bago sila umalis ay sinabihan ako ni Kenneth na sunduin ko raw
itong si Elmer Castro at magbhihai [magbihis] na rin daw ako at
pagdating nila ay . . . lalakad na raw po kami. Mga ilang oras pa ay
sinundo ko na itong si Elmer Castro at pagdating namin sa bahay
nila Kenneth ay naroroon na itong si Kenneth at Deo. Matapos
magpalit ng damit itong si Kenneth ay sumakay na kami sa
kanilang kotse at nagtuloy sa kanilang katabing bahay at doon ay
kumain kami. Pagkatapos noon ay umalis na kami at nagtuloy sa
F[i]l-Invest. P[a]gdating namin sa isang lugar doon sa medyo
malayo-layo sa bahay nila Deo ay bumaba na itong si Deo at Elmer
at sila ay nagpunta doon sa lugar ng pinagbarilan para kunin ang
bayad sa utang ni Fred[er]ick Capulong sa tiyuhin ni
Deo P[a]gkaraan ng ilang minuto ay sumunod po kami ni
Kenn[e]th sa lugar at ako ay naiwan nang medyo malayo-layo sa
lugar upang tingnan kung mayroong darating na tao.
Samantalang si Kenneth ay lumapit kina Deo at Frederick at
kasunod noon ay nagkaroon ng sagutan itong si Kenneth at
Frederick at nakita kong inaawat ni Deo itong si Kenneth. Hindi
nakapagpigil itong si Kenneth at nasipa niya s[i] Frederick at
kasunod noon ay binunot niya ang kanyang baril na kalibre .38 at
pinaputukan niya ng isang beses itong si Frederick na noong
tamaan ay natumba sa lupa. Lumapit si Elmer kina Kenneth
habang binabatak ni Kenneth itong si Frederick at kasunod po
noon ay lumapit sa akin si Deo at sinabihan ako na tumakbo na
kami. Tumakbo na po kami, pero ako po ay nahuli ng mga security
guard ng Subdivision at itong si Deo ay nahuli naman sa kanilang
bahay. Itong sina Kenneth at Elmer ay hindi pa nahuhuli. 16
Appellant an Accomplice,
Not a Conspirator
In other words, appellant's presence was not innocuous. Knowing
that Florendo intended to kill the victim and that the three co-
accused were carrying weapons, he had acted as a lookout to
watch for passersby. He was not an innocent spectator; he was at
the locus criminis in order to aid and abet the commission of the
crime. These facts, however, did not make him a conspirator; at
most, he was only an accomplice.
The Revised penal Code provides that a conspiracy exists when
"two or more persons come to an agreement concerning the
commission of a felony and decide to commit it." 17 To prove
conspiracy, the prosecution must establish the following three
requisites: "(1) that two or more persons came to an agreement,
(2) that the agreement concerned the commission of a crime, and
(3) that the execution of the felony [was] decided upon."18 Except
in the case of the mastermind of a crime, it must also be shown
that the accused performed an overt act in furtherance of the
conspiracy.19 The Court has held that in most instances, direct
proof of a previous agreement need not be established, for
conspiracy may be deduced from the acts of the accused pointing
to a joint purpose, concerted action and community of interest.20
On the other hand, the Revised Penal Code defines accomplices as
"those persons who, not being included in Article 17, 21 cooperate
in the execution of the offense by previous or simultaneous
acts."22 The Court has held that an accomplice is "one who knows
the criminal design of the principal and cooperates knowingly or
intentionally therewith by an act which, even if not rendered, the
crime would be committed just the same."23 To hold a person
liable as an accomplice, two elements must be present: (1) the
"community" of criminal design; that is, knowing the criminal
design of the principal by direct participation, he concurs with the
latter in his purpose;" and (2) the performance of previous or
simultaneous acts that are not indispensable to the commission of
the crime.24
The distinction between the two concepts needs to be
underscored, in view of its effect on appellant's penalty. Once
conspiracy is proven, the liability is collective and not individual.
The act of one of them is deemed the act of all.25 In the case of an
accomplice, the liability is one degree lower than that of a
principal.
Conspirators and accomplices have one thing in common: they
know and agree with the criminal design. Conspirators, however,
know the criminal intention because they themselves have
decided upon such course of action. Accomplices come to know
about it after the principals have reached the decision, and only
then do they agree to cooperate in its execution. Conspirators
decide that a crime should be committed; accomplices merely
concur in it. Accomplices do not decide whether the crime should
be committed; they merely assent to the plan and cooperate in its
accomplishment. Conspirators are the authors of a crime;
accomplices are merely their instruments who perform acts not
essential to the perpetration of the offense.
Thus, in People v. Castro,26 the Court convicted Rufino Cinco,
together with two others, as a principal, although he had acted
merely as a lookout. The Court held that "their concerted action in
going armed and together to their victim's house, and there, while
one stayed as a lookout, the other two entered and shot the
mayor and his wife, leaving again together afterwards, admits no
other rational explanation but conspiracy." It may be noted
further that Cinco executed a Sworn Statement that the three of
them, together with some others, had planned to kill the victim on
the promise of a P5,000 reward.
In People v. Tawat et al.,27 the lookout, Nestor Rojo, was convicted
as a principal for conspiring with two others. The Court ruled that
the conspiracy was shown by their conduct before, during and
after the commission of the crime. The Court also noted that, upon
their arrest, they disclosed that they had intended to rob the
victim's store and that they did so in accordance with their plan.
In that case, it was clear that all three of them, including the
lookout, were the authors of the crime.
In People v. Loreno,28 the Supreme Court convicted all the accused
as principals because they had acted in band. In acting as a
lookout, Jimmy Marantal was armed at the time like the other
conspirators, and he gave his companions effective means and
encouragement to commit the crime of robbery and rape.
Upon the other hand in People v. Corbes,29 the Court noted that
Manuel Vergel knew of the criminal design to commit a robbery,
and that he cooperated with the robbers by driving the vehicle to
and from the crime scene. In convicting him as an accomplice and
not as a conspirator, the Court observed that he was merely
approached by one of the robbers who was tasked to look for a
getaway vehicle. He was not with the robbers when they resolved
to commit a robbery. When his services were requested the
decision to commit the crime had already been made.
In People v. Tatlonghari,30 the Court was asked to resolve the
responsibility of some appellants who "knowingly aid[ed] the
actual killers by casting stones at the victim, and distracting his
attention." The Court ruled that they were accomplices and not
co-conspirators, "[i]n the absence of clear proof that the killing
was in fact envisaged by them."
In People v. Suarez et al.,31 Wilfredo Lara merely introduced the
gang of Reyes to Suarez who intended to perpetrate the crime
with the help of the said group. In ruling that he was merely an
accomplice, the Court noted that there was no evidence showing
that he "took part in the planning or execution of the crime, or any
proof indicating that he profited from the fruits of the crime, or of
acts indicative of confederacy on his part."
In People v. Balili,32 the Court convicted appellant as an
accomplice, holding that "in going with them, knowing their
criminal intention, and in staying outside of the house with them
while the others went inside the store to rob and kill, [he]
effectively supplied the criminals with material and moral aid,
making him guilty as an accompliance." The Court noted that there
was no evidence that he "had conspired with the malefactors, nor
that he actually participated in the commission of the crime."
In People v. Doble,33 the Court held that Cresencio Doble did not
become a conspirator when he looked for a banca that was
eventually used by the robbers. Ruled the Court: "Neither would
it appear that Joe Intsik wanted to draft Crescencio into his band
of malefactors that would commit the robbery more than Just
asking his help to look for a banca. Joe Intsik had enough men, all
with arms and weapons to perpetrate the crime, the commission
of which needed planning and men to execute the plan with full
mutual confidence of each other, which [was] not shown with
respect to appellants by the way they were asked to look and
provide for a banca just a few hours before the actual robbery."
In the present case, Appellant De Vera knew that Kenneth
Florendo had intended to kill Capulong at the time, and he
cooperated with the latter. But he himself did not participate in
the decision to kill Capulong; that decision was made by Florendo
and the others. He joined them that afternoon after the decision
to kill had already been agreed upon; he was there because
"nagkahiyaan na." This is clear from his statement, which we
quote again for the sake of clarity:
T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam
mo ba ito at pumayag kang maging kasapakat nito?
S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong
araw na iyon ay nagkahiyaan na lamang at napilitan akong
sumama.34
Significantly, the plan to kill could have been accomplished
without him. It should be noted further that he alone was
unarmed that afternoon. Florendo and Garcia had guns, and
Castro had a baseball bat.
In any event, the prosecution evidence has not established that
appellant was part of the conspiracy to kill the victim. His
participation, as culled from his own Statement, was made. after
the decision to kill was already a fait accompli. Thus, in several
cases, the Court has held:
[L]ack of complete evidence of conspiracy, that creates the doubt
whether they had acted as principals or accomplices in the
perpetration of the offense, impels this Court to resolve in their
favor the question, by holding . . . that they were guilty of the
"milder form of responsibility," i.e., guilty as mere accomplices.35
Second Issue:
Admissibility of Extrajudicial Statement
Extrajudicial confessions must conform to constitutional
requirements. Section 12, Article III of the Constitution, provides:
(1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain
silent and to have competent and independent counsel preferably
of his own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.
xxx xxx xxx
(3) Any confession or admission obtained in violation of this or
section 17 hereof shall be inadmissible in evidence against him.
If the confession meets these requirements, "it is subsequently
tested for voluntariness, i.e., if it was given freely without
coercion, intimidation, inducement, or false promises; and
credibility, i.e., if it was consistent with the normal experience of
mankind."36
Appellant claims that his extrajudicial statement was inadmissible,
because it was not made in the presence of counsel. Although
Atty. Confesor Sansano of the Quezon City IBP Legal Aid
Committee purportedly assisted him and his co-accused in the
execution of their extrajudicial Statements, appellant asserts that
the lawyer was in his office, not with them, at the time. Appellant
adds that he was tortured.
Appellant's claims must be rejected. Atty. Sansano testified that
he did not leave them at any time.
Q: You were involved in the interrogation from the very start?
A: Yes, from the beginning to the end of the interview until the
boys signed their statements.
Q: Did you recall having at any time left your office to attend to
some official matters?
A: I never left the office to attend to anything.
Q: Is that the usual manner by which you assist persons referred
to you by the police insofar as custodial investigation is
concerned?
A: It is our policy that when we assist [in] that capacity, we [want]
to see to it that the rights of the accused or suspects are properly
[protected] during the course of the entire interrogation. 37
In fact, Atty. Sansano even checked to see if there were torture
marks on Appellant De Vera, and Garcia and interviewed the two
to make sure that they understood what they were doing.
Q: What was your purpose in asking the police officers to leave the
room?
A: My purpose in asking the police officers to step out of the
building was to assure myself that no pressure could be exerted
on the two boys by the presence of the police officers during my
personal interview. Before we allow any police officers to take the
statements of people brought before us[,] we see to it [that] we
interview the persons personally out of hearing and sight of any
police officer.
Q: After the police officers left the room, completely left the
room[,] you were able to interview the two accused namely Mr.
de Vera and Mr. Garcia?
A: Yes, I spent about 15 to 20 minutes interviewing the boys.
Q: What was the nature of your initial interview with these two
accused?
A: I asked the boys Roderick and Edwin if it [was] true that they
[were] going to give their own statements to the police?
Q: And what did they say?
A: They said yes, sir.
Q: What was your reaction to that?
A: Routinely[,] I informed them about their rights under the
constitution.
xxx xxx xxx
Q: Having obtained their answers, what next transpired?
A: After telling them the statements they may give to the police
could be used against them for a [sic] in any court of the Phil., I
was satisfied that nobody coerced them, that they were never
threatened by anybody much less by the police officers to give
these statements. Casually I asked the two boys to raise their
upper clothes.
xxx xxx xxx
Q: What was your purpose in requiring these persons to show you
or remove their upper clothing?
A: I wanted to assure myself that there were no telltale signs of
torture or bodily harm committed on the[m] prior to their [being
brought] to the office. In spite of their [personal] assurances . . . ,
verbal assurance that they were never hurt.38
The right to counsel is enshrined in the Constitution in order to
address, among others, the use of duress and undue influence in
the execution of extrajudicial confessions. 39 In the present case,
the Court is satisfied that Atty. Sansano sufficiently fulfilled the
objective of this constitutional mandate. Moreover, appellant's
allegations of torture must be disregarded for being
unsubstantiated. To hold otherwise is to statements at the mere
facilitate the retraction of solemnly made statements of the mere
allegation of torture, without any proof whatsoever.
When an extrajudicial statement satisfies the requirements of the
Constitution, it constitutes evidence of a high order, because of
the strong presumption that no person of normal mind would
deliberately and knowingly confess to a crime unless prompted by
truth and conscience.40 The defense has the burden of proving
that it was extracted by means of force, duress or promise of
reward.41 Appellant failed to overcome the overwhelming
prosecution evidence to the contrary.
Sec. 3, Rule 133 of the Rules of Court, provides that "[a]n
extrajudicial confession made by an accused shall not be sufficient
ground for conviction, unless corroborated by evidence of corpus
delicti." In the present case, the prosecution presented other
evidence to prove the two elements of corpus delicti: (a) a certain
result has been proven for example, a man has died; and (b)
some person is criminally responsible. 42 It is indubitable that a
crime has been committed, and that the other pieces of
prosecution evidence clearly show that appellant had conspired
with the other accused to commit the crime. He himself does not
deny that he was at the crime scene. In fact, he was seen by the
prosecution eyewitness in the company of the gunman.
Furthermore, Atty. Sansano and the police officers testified to the
voluntariness of his confession. It must be stressed that the
aforementioned rule merely requires that there should be some
other evidence "tending to show the commission of the crime
apart from the confession."43
Criminal and Civil Liability
In ruling that the crime committed was murder, the trial court
found that the killing was attended by treachery, evident
premeditation and abuse of superior strength. One of these was
enough to qualify the crime as murder; the two others constituted
generic aggravating circumstances. The lower court explained that
the evidence established evident premeditation, for Florendo's
group acted with deliberate forethought and tenacious
persistence in the accomplishment of the criminal design.
Treachery was also proven, because the attack was planned and
performed in such a way as to guarantee the execution of the
criminal design without risk to the group. There was also abuse of
superior strength, because the attackers took advantage of their
superiority in numbers and weapons.
We disagree with the court a quo in appreciating two generic
aggravating circumstances, because treachery absorbs abuse of
superior strength.44 Hence, there is only one generic aggravating
circumstance, not two. Notwithstanding the presence of a generic
aggravating circumstance, we cannot impose the death penalty,
because the crime was committed before the effectivity of the
Death Penalty Law.
In the present case, the penalty of appellant as an accomplice is
one degree lower than that of a principal, which in murder cases
is reclusion temporal in its maximum period to death. He is also
entitled to the benefits of the Indeterminate Sentence Law.
We sustain the trial court's grant of P50,000 as indemnity ex
delicto, which may be awarded without need of proof other than
the commission of the crime. The award of P211,670 as
compensatory damages was duly supported by evidence. Based
on the evidence presented, moral damages is also warranted, but
only in the amount of P50,000, not P500,000 as fixed by the trial
court. Furthermore, we affirm the payment of
45
interest. However, the grant of P600,000 for loss of earning
capacity lacks factual basis. Such indemnification partakes of the
nature of actual damages, which must be duly proven. 46 In this
case, the trial court merely presumed the amount of Capulong's
earnings. Since the prosecution did not present evidence of the
current income of the deceased, the indemnity for lost earnings
must be rejected.
WHEREFORE, the appeal is hereby partially GRANTED. Appellant
De Vera is CONVICTED as an accomplice, not as a principal, in the
crime of murder. He is sentenced to an indeterminate prison term
of 8 years and 1 day ofprision mayor as minimum, to 14 years 8
months and 1 day of reclusion temporal as maximum. We AFFIRM
the awards of: (a) P50,000 indemnity ex delicto, (b) P211,670 as
compensatory damages and (c) interest of six percentper
annum on these two amounts. The award of moral damages is
however REDUCED to P50,000 and the award for the loss of
earning capacity is DELETED. No pronouncement as to costs.
SO ORDERED.
Melo, Purisima and Gonzaga-Reyes, JJ., concur.
Vitug, J., please see separate opinion.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 202867 July 15, 2013
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
REGIE LABIAGA, Appellant.
DECISION
CARPIO, J.:
The Case
Before the Court is an appeal assailing the Decision 1 dated 18
October 2011 of the Court of Appeals-Cebu (CA-Cebu) in CA-G.R.
CEB CR-HC No. 01000. The CA-Cebu affirmed with modification the
Joint Decision2 dated 10 March 2008 of the Regional Trial Court of
Barotac Viejo, Iloilo, Branch 66 (RTC), in Criminal Case No. 2001-
155) convicting Regie Labiaga alias "Banok" (appellant) of murder
and Criminal Case No. 2002-1777 convicting appellant of
frustrated murder.
The Facts
In Criminal Case No. 2001-1555, appellant, together with a certain
Alias Balatong Barcenas and Cristy Demapanag (Demapanag), was
charged with Murder with the Use of Unlicensed Firearm under an
Information3 which reads:
That on or about December 23, 2000 in the Municipality of Ajuy,
Province of Iloilo, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring,
confederating and helping one another, armed with unlicensed
firearm, with deliberate intent and decided purpose to kill, by
means of treachery and with evident premeditation, did then and
there willfully, unlawfully and feloniously attack, assault and shoot
JUDY CONDE alias JOJO with said unlicensed firearm, hitting her
and inflicting gunshot wounds on the different parts of her breast
which caused her death thereafter.
CONTRARY TO LAW.
The same individuals were charged with Frustrated Murder with
the Use of Unlicensed Firearm in Criminal Case No. 2002-1777,
under an Information4 which states:
That on or about December 23, 2000 in the Municipality of Ajuy,
Province of Iloilo, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring,
confederating and helping one another, armed with unlicensed
firearm, with deliberate intent and decided purpose to kill, by
means of treachery and with evident premeditation, did then and
there willfully, unlawfully and feloniously attack, assault and shoot
Gregorio Conde with said unlicensed firearm, hitting him on the
posterior aspect, middle third right forearm 1 cm. In diameter;
thereby performing all the acts of execution which would produce
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 by the timely and able medical assistance
rendered to said Gregorio Conde which prevented his death.
CONTRARY TO LAW.
Alias Balatong Barcenas remained at large. Both appellant and
Demapanag pled not guilty in both cases and joint trial ensued
thereafter. The prosecution presented four witnesses: Gregorio
Conde, the victim in Criminal Case No. 2002-1777; Glenelyn
Conde, his daughter; and Dr. Jeremiah Obaana and Dr. Edwin
Jose Figura, the physicians at the Sara District Hospital where the
victims were admitted. The defense, on the other hand, presented
appellant, Demapanag, and the latters brother, Frederick.
Version of the prosecution
The prosecutions version of the facts is as follows: At around 7:00
p.m. on 23 December 2000, Gregorio Conde, and his two
daughters, Judy and Glenelyn Conde, were in their home at
Barangay Malayu-an, Ajuy, Iloilo. Thereafter, Gregorio stepped
outside. Glenelyn was in their store, which was part of their house.
Shortly thereafter, appellant, who was approximately five meters
away from Gregorio, shot the latter. Gregorio called Judy for help.
When Judy and Glenelyn rushed to Gregorios aid, appellant shot
Judy in the abdomen. The two other accused were standing
behind the appellant. Appellant said, "she is already dead," and
the three fled the crime scene.
Gregorio and Judy were rushed to the Sara District Hospital. Judy
was pronounced dead on arrival while Gregorio made a full
recovery after treatment of his gunshot wound.
Dr. Jeremiah Obaana conducted the autopsy of Judy. His report
stated that her death was caused by "cardiopulmonary arrest
secondary to Cardiac Tamponade due to gunshot wound." 5
Dr. Jose Edwin Figura, on the other hand, examined Gregorio after
the incident. He found that Gregorio sustained a gunshot wound
measuring one centimeter in diameter in his right forearm and
"abrasion wounds hematoma formation" in his right shoulder. 6
Version of the defense
Appellant admitted that he was present during the shooting
incident on 23 December 2000. He claimed, however, that he
acted in self-defense. Gregorio, armed with a shotgun, challenged
him to a fight. He attempted to shoot appellant, but the shotgun
jammed. Appellant tried to wrest the shotgun from Gregorio, and
during the struggle, the shotgun fired. He claimed that he did not
know if anyone was hit by that gunshot.
Demapanag claimed that at the time of the shooting, he was in
D&D Ricemill, which is approximately 14 kilometers away from the
crime scene. This was corroborated by Frederick, Demapanags
brother.
The Ruling of the RTC
In its Joint Decision, the RTC acquitted Demapanag due to
insufficiency of evidence. Appellant, however, was convicted of
murder and frustrated murder. The dispositive portion of the Joint
Decision reads:
WHEREFORE, in light of the foregoing, the court hereby finds the
accused Regie Labiaga @ "Banok" GUILTY beyond reasonable
doubt of the Crime of Murder in Crim. Case No. 2001-1555 and
hereby sentences the said accused to reclusion perpetua together
with accessory penalty provided by law, to pay the heirs of Judy
Conde 50,000.00 as civil indemnity, without subsidiary
imprisonment in case of insolvency and to pay the costs.
In Crim. Case No. 2002-1777, the court finds accused Regie
Labiaga @ "Banok" GUILTY beyond reasonable doubt of the crime
of Frustrated Murder and hereby sentences the said accused to a
prison term ranging from six (6) years and one (1) day of prision
mayor as minimum to ten (10) years and one (1) day of reclusion
temporal as maximum, together with the necessary penalty
provided by law and without subsidiary imprisonment in case of
insolvency and to pay the costs.
Accuseds entire period of detention shall be deducted from the
penalty herein imposed when the accused serves his sentence.
For lack of sufficient evidence, accused Cristy Demapanag is
acquitted of the crimes charged in both cases. The Provincial
Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is hereby
directed to release accused Cristy Demapanag from custody
unless he is being held for some other valid or lawful cause.
SO ORDERED.7
The Ruling of the CA-Cebu
Appellant impugned the RTCs Joint Decision, claiming that "the
RTC gravely erred in convicting the appellant of the crime charged
despite failure of the prosecution to prove his guilt beyond
reasonable doubt."8 The CA-Cebu, however, upheld the conviction
for murder and frustrated murder.
The CA-Cebu also modified the Joint Decision by imposing the
payment of moral and exemplary damages in both criminal cases.
The CA-Cebu made a distinction between the civil indemnity
awarded by the RTC in Criminal Case No. 2001-1555 and the moral
damages. The CA-Cebu pointed out that:
The trial court granted the amount of 50,000.00 as civil
indemnity in Criminal Case No. 2001-1555. It did not award moral
damages. Nonetheless, the trial court should have awarded both,
considering that they are two different kinds of damages. For
death indemnity, the amount of 50,000.00 is fixed "pursuant to
the current judicial policy on the matter, without need of any
evidence or proof of damages. Likewise, the mental anguish of the
surviving family should be assuaged by the award of appropriate
and reasonable moral damages."9
The dispositive portion of the Decision of the CA-Cebu reads:
WHEREFORE, premises considered, the appeal is DENIED. The
Joint Decision dated March 10, 2008 of the Regional Trial Court,
Branch 66, in Barotac Viejo, Iloilo is AFFIRMED with
MODIFICATIONS. The dispositive portion of the said Joint Decision
should now read as follows:
WHEREFORE, in light of the foregoing, the court hereby finds the
accused Regie Labiaga @ "Banok" GUILTY beyond reasonable
doubt of the crime of Murder in Crim. Case No. 2001-1555 and
hereby sentences the said accused to reclusion perpetua together
with the accessory penalty provided by law, to pay the heirs of
Judy Conde 50,000.00 as civil indemnity, 50,000.00 as moral
damages and 25,000.00 as exemplary damages, without
subsidiary imprisonment in case of insolvency and to pay the
costs.
In Crim. Case No. 2002-1777 the court finds accused Regie Labiaga
@ "Banok" GUILTY beyond reasonable doubt of the crime of
Frustrated Murder and hereby sentences the said accused to
suffer the indeterminate penalty of eight (8) years and one (1) day
of prision mayor, as minimum, to fourteen (14) years and eight (8)
months of reclusion temporal, as maximum, together with the
accessory penalty provided by law, to pay Gregorio Conde
25,000.00 as moral damages and 25,000.00 as exemplary
damages, without subsidiary imprisonment in case of insolvency
and to pay the costs Accused(s) entire period of detention shall
be deducted from the penalty herein imposed when the accused
serves his sentence.
For lack of sufficient evidence, accused Cristy Demapanag is
acquitted of the crime(s) charged in both cases. The Provincial
Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is hereby
directed to release accused Cristy Demapanag from custody
unless he is being held for some other valid or lawful cause.
SO ORDERED.
SO ORDERED.10
Hence, this appeal.
The Ruling of the Court
Our review of the records of Criminal Case No. 2002-1777
convinces us that appellant is guilty of attempted murder and not
frustrated murder. We uphold appellants conviction in Criminal
Case No. 2001-1555 for murder, but modify the civil indemnity
awarded in Criminal Case No. 2001-1555, as well as the award of
moral and exemplary damages in both cases.
Justifying circumstance of self-defense
Appellants feeble attempt to invoke self-defense in both cases
was correctly rejected by the RTC and the CA-Cebu. This Court, in
People v. Damitan,11 explained that:
When the accused admits killing a person but pleads self-defense,
the burden of evidence shifts to him to prove by clear and
convincing evidence the elements of his defense. However,
appellants version of the incident was uncorroborated. His bare
and self-serving assertions cannot prevail over the positive
identification of the two (2) principal witnesses of the
prosecution.12
Appellants failure to present any other eyewitness to corroborate
his testimony and his unconvincing demonstration of the struggle
between him and Gregorio before the RTC lead us to reject his
claim of self-defense. Also, as correctly pointed out by the CA-
Cebu, appellants theory of self-defense is belied by the fact that:
x x x The appellant did not even bother to report to the police
Gregorios alleged unlawful aggression and that it was Gregorio
who owned the gun, as appellant claimed. And, when appellant
was arrested the following morning, he did not also inform the
police that what happened to Gregorio was merely accidental. 13
Appellants claim that he did not know whether Gregorio was hit
when the shotgun accidentally fired is also implausible.
In contrast, we find that the Condes account of the incident is
persuasive. Both the CA-Cebu and the RTC found that the
testimonies of the Condes were credible and presented in a clear
and convincing manner. This Court has consistently put much
weight on the trial courts assessment of the credibility of
witnesses, especially when affirmed by the appellate court. 14 In
People v. Mangune,15 we stated that:
It is well settled that the evaluation of the credibility of witnesses
and their testimonies is a matter best undertaken by the trial court
because of its unique opportunity to observe the witnesses first
hand and to note their demeanor, conduct, and attitude under
grilling examination. These are important in determining the
truthfulness of witnesses and in unearthing the truth, especially in
the face of conflicting testimonies. For, indeed, the emphasis,
gesture, and inflection of the voice are potent aids in ascertaining
the witness credibility, and the trial court has the opportunity to
take advantage of these aids.16
Since the conclusions made by the RTC regarding the credibility of
the witnesses were not tainted with arbitrariness or oversight or
misapprehension of relevant facts, the same must be sustained by
this Court.
Attempted and Frustrated Murder
Treachery was correctly appreciated by the RTC and CA-Cebu. A
treacherous attack is one in which the victim was not afforded any
opportunity to defend himself or resist the attack. 17 The existence
of treachery is not solely determined by the type of weapon used.
If it appears that the weapon was deliberately chosen to insure
the execution of the crime, and to render the victim defenseless,
then treachery may be properly appreciated against the
accused.18
In the instant case, the Condes were unarmed when they were
shot by appellant. The use of a 12-gauge shotgun against two
unarmed victims is undoubtedly treacherous, as it denies the
victims the chance to fend off the offender.
We note, however, that appellant should be convicted of
attempted murder, and not frustrated murder in Criminal Case
No. 2002-1777.
Article 6 of the Revised Penal Code defines the stages in the
commission of felonies:
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.
In Serrano v. People,19 we distinguished a frustrated felony from
an attempted felony in this manner:
1.) In a frustrated felony, the offender has performed all the acts
of execution which should produce the felony as a consequence;
whereas in an attempted felony, the offender merely commences
the commission of a felony directly by overt acts and does not
perform all the acts of execution.
2.) In a frustrated felony, the reason for the non-accomplishment
of the crime is some cause independent of the will of the
perpetrator; on the other hand, in an attempted felony, the
reason for the non-fulfillment of the crime is a cause or accident
other than the offenders own spontaneous desistance. 20
In frustrated murder, there must be evidence showing that the
wound would have been fatal were it not for timely medical
intervention.21 If the evidence fails to convince the court that the
wound sustained would have caused the victims death without
timely medical attention, the accused should be convicted of
attempted murder and not frustrated murder.
In the instant case, it does not appear that the wound sustained
by Gregorio Conde was mortal. This was admitted by Dr. Edwin
Figura, who examined Gregorio after the shooting incident:
Prosecutor Con-El:
Q: When you examined the person of Gregorio Conde, can you tell
the court what was the situation of the patient when you
examined him?
A: He has a gunshot wound, but the patient was actually
ambulatory and not in distress.
xxxx
Court (to the witness)
Q: The nature of these injuries, not serious?
A: Yes, Your Honor, not serious. He has also abrasion wounds
hematoma formation at the anterior aspect right shoulder.22
Since Gregorios gunshot wound was not mortal, we hold that
appellant should be convicted of attempted murder and not
frustrated murder. Under Article 51 of the Revised Penal Code, the
corresponding penalty for attempted murder shall be two degrees
lower than that prescribed for consummated murder under
Article 248, that is, prision correccional in its maximum period to
prision mayor in its medium period. Section 1 of the Indeterminate
Sentence Law provides:
x x x the court shall sentence the accused to an indeterminate
sentence the maximum term of which shall be that which, in view
of the attending circumstances, could be properly imposed under
the rules of the Revised Penal Code, and the minimum which shall
be within the range of the penalty next lower to that prescribed
by the Code for the offense.1wphi1
Thus, appellant should serve an indeterminate sentence ranging
from two (2) years, four (4) months and one (1) day of prision
correccional in its medium period to eight (8) years and one (1)
day of prision mayor in its medium period.
Award of damages
In light of recent jurisprudence, we deem it proper to increase the
amount of damages imposed by the lower court in both cases. In
Criminal Case No. 2001-1555, this Court hereby awards
75,000.00 as civil indemnity23 and 30,000.00 as exemplary
damages.24 The award of 50,000.00 as moral damages in the
foregoing case is sustained. Appellant is also liable to pay
40,000.00 as moral damages and 30,000.00 as exemplary
damages, in relation to Criminal Case No. 2002-1777.
WHEREFORE, we AFFIRM the 18 October 2011 Decision of the
Court of Appeals-Cebu in CA-G.R. CEB CR-HC No. 01000 with
MODIFICATIONS. In Criminal Case No. 2002-1777, we find that
appellant Regie Labiaga is GUILTY of Attempted Murder and shall
suffer an indeterminate sentence ranging from two (2) years, four
(4) months and one (1) day of prision correccional as minimum, to
eight (8) years and one (1) day of prision mayor as maximum, and
pay 40,000.00 as moral damages and 30,000.00 as exemplary
damages. In Criminal Case No. 2001-1555, appellant shall pay
75,000.00 as civil indemnity, 50,000.00 as moral damages, and
30,000.00 as exemplary damages.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. L-33466-67 April 20, 1983
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MAMERTO NARVAEZ, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.
MAKASIAR, J.:
This is an appeal from the decision of the Court of First Instance of
South Cotabato, Branch I, in Criminal Cases Nos. 1815 and 1816
for murder which, after a joint trial, resulted in the conviction of
the accused in a decision rendered on September 8, 1970, with the
following pronouncement:
Thus, we have a crime of MURDER qualified by treachery with the
aggravating circumstance of evident premeditation offset by the
mitigating circumstance of voluntary surrender. The proper
penalty imposable, therefore, is RECLUSION PERPETUA (Arts. 248
and 64, Revised Penal Code).
Accordingly, finding Mamerto Narvaez guilty beyond reasonable
doubt of the crime of murder,
(a) In Criminal Case No. 1815, he is hereby sentenced to
RECLUSION PERPETUA, to indemnify the heirs of the deceased
Davis Q. Fleischer in the sum of P 12,000.00 as compensatory
damages, P 10,000.00 as moral damages, P 2,000.00 as attorney's
fees, the offended party having been represented by a private
prosecutor, and to pay the costs;
(b) In Criminal Case No. 1816, he is hereby sentenced to
RECLUSION PERPETUA, to indemnify the heirs of the deceased
Flaviano Rubia in the sum of P12,000.00 as compensatory
damages, P10,000.00 as moral damages, P2,000.00 as attorney's
fees, the offended party having been represent by a private
prosecutor, and to pay the costs (p. 48, rec.).
The facts are summarized in the People's brief, as follows:
At about 2:30 in the afternoon of August 22, 1968, Graciano Juan,
Jesus Verano and Cesar Ibanez together with the two deceased
Davis Fleischer and Flaviano Rubia, were fencing the land of
George Fleischer, father of deceased Davis Fleischer. The place
was in the boundary of the highway and the hacienda owned by
George Fleischer. This is located in the municipality of Maitum,
South Cotabato. At the place of the fencing is the house and rice
drier of appellant Mamerto Narvaez (pp. 179-182, t.s.n., Pieza II).
At that time, appellant was taking his rest, but when he heard that
the walls of his house were being chiselled, he arose and there he
saw the fencing going on. If the fencing would go on, appellant
would be prevented from getting into his house and the bodega
of his ricemill. So he addressed the group, saying 'Pare, if possible
you stop destroying my house and if possible we will talk it over
what is good,' addressing the deceased Rubia, who is appellant's
compadre. The deceased Fleischer, however, answered: 'No,
gademit, proceed, go ahead.' Appellant apparently lost his
equilibrium and he got his gun and shot Fleischer, hitting him. As
Fleischer fell down, Rubia ran towards the jeep, and knowing there
is a gun on the jeep, appellant fired at Rubia, likewise hitting him
(pp. 127-133, t.s.n., Defense transcript). Both Fleischer and Rubia
died as a result of the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9,
Appellant's Brief, p.161, rec.).
It appears, however, that this incident is intertwined with the long
drawn out legal battle between the Fleischer and Co., Inc. of which
deceased Fleischer was the secretary-treasurer and deceased
Rubia the assistant manager, on the one hand, and the land
settlers of Cotabato, among whom was appellant.
From the available records of the related cases which had been
brought to the Court of Appeals (CA-G.R. Nos. 28858-R and 50583-
R) and to this Court on certiorari (G.R. No. L-26757 and L-45504),
WE take judicial notice of the following antecedent facts:
Appellant was among those persons from northern and central
Luzon who went to Mindanao in 1937 and settled in Maitum, a
former sitio of Kiamba and now a separate municipality of South
Cotabato. He established his residence therein, built his house,
cultivated the area, and was among those who petitioned then
President Manuel L. Quezon to order the subdivision of the
defunct Celebes Plantation and nearby Kalaong Plantation
totalling about 2,000 hectares, for distribution among the settlers.
Shortly thereafter, Fleischer and Company, headed by George W.
Fleischer, an American landowner in Negros Oriental, filed sales
application No. 21983 on June 3, 1937 over the same area
formerly leased and later abandoned by Celebes Plantation
Company, covering 1,017.2234 hectares.
Meanwhile, the subdivision was ordered and a public land
surveyor did the actual survey in 1941 but the survey report was
not submitted until 1946 because of the outbreak of the second
world war. According to the survey, only 300 hectares Identified
as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba, were set aside for Sales
Application No. 21983, while the rest were subdivided into sublots
of 5 to 6 hectares each to be distributed among the settlers (pp.
32-33, G.R. No. L-45504).
The 300 hectares set aside for the sales application of Fleischer
and Company was declared open for disposition, appraised and
advertised for public auction. At the public auction held in Manila
on August 14, 1948, Fleischer and Company was the only bidder
for P6,000.00. But because of protests from the settlers the
corresponding award in its favor was held in abeyance, while an
investigator was sent by the Director of Lands to Kiamba in the
person of Atty. Jose T. Gozon Atty. Gozon came back after ten days
with an amicable settlement signed by the representative of the
settlers. This amicable settlement was later repudiated by the
settlers, but the Director of Lands, acting upon the report of Atty.
Gozon, approved the same and ordered the formal award of the
land in question to Fleischer and Company. The settlers appealed
to the Secretary of Agriculture and Natural Resources, who,
however, affirmed the decision in favor of the company.
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court
of First Instance of Cotabato which then consisted only of one sala,
for the purpose of annulling the order of the Secretary of
Agriculture and Natural Resources which affirmed the order of the
Director of Lands awarding the contested land to the company.
The settlers as plaintiffs, lost that case in view of the amicable
settlement which they had repudiated as resulting from threats
and intimidation, deceit, misrepresentation and fraudulent
machination on the part of the company. They appealed to the
Court of Appeals (CA-G.R. No. 28858-R) which likewise affirmed on
August 16, 1965 the decision of the Court of First Instance in favor
of the company.
This resulted in the ouster of the settlers by an order of the Court
of First Instance dated September 24, 1966, from the land which
they had been occupying for about 30 years. Among those ejected
was the appellant who, to avoid trouble, voluntarily dismantled
his house, built in 1947 at a cost of around P20,000.00, and
transferred to his other house which he built in 1962 or 1963 near
the highway. The second house is not far from the site of the
dismantled house. Its ground floor has a store operated by Mrs.
June Talens who was renting a portion thereof. He also transferred
his store from his former residence to the house near the highway.
Aside from the store, he also had a rice mill located about 15
meters east of the house and a concrete pavement between the
rice mill and the house, which is used for drying grains and copra.
On November 14, 1966, appellant was among the settlers on
whose behalf Jose V. Gamboa and other leaders filed Civil Case No.
755 in the Court of First Instance of Cotabato, Branch I. to obtain
an injunction or annulment of the order of award with prayer for
preliminary injunction. During the pendency of this case, appellant
on February 21, 1967 entered into a contract of lease with the
company whereby he agreed to lease an area of approximately
100 to 140 square meters of Lot No. 38 from the company (Exh. 9,
p. 1, Folder of Exhibits for Defense) for a consideration of P16.00
monthly. According to him, he signed the contract although the
ownership of the land was still uncertain, in order to avoid trouble,
until the question of ownership could be decided. He never paid
the agreed rental, although he alleges that the milling job they did
for Rubia was considered payment. On June 25, 1968, deceased
Fleischer wrote him a letter with the following tenor:
You have not paid six months rental to Fleischers & Co., Inc. for
that portion of land in which your house and ricemill are located
as per agreement executed on February 21, 1967. You have not
paid as as even after repeated attempts of collection made by Mr.
Flaviano Rubia and myself.
In view of the obvious fact that you do not comply with the
agreement, I have no alternative but to terminate our agreement
on this date.
I am giving you six months to remove your house, ricemill, bodega,
and water pitcher pumps from the land of Fleischers & Co., Inc.
This six- month period shall expire on December 31, 1966.
In the event the above constructions have not been removed
within the six- month period, the company shall cause their
immediate demolition (Exhibit 10, p. 2, supra).
On August 21, 1968, both deceased, together with their laborers,
commenced fencing Lot 38 by putting bamboo posts along the
property line parallel to the highway. Some posts were planted
right on the concrete drier of appellant, thereby cutting diagonally
across its center (pp. 227-228, t.s.n., Vol. 2), with the last post just
adjacent to appellant's house (p. 231, t.s.n., supra). The fence,
when finished, would have the effect of shutting off the
accessibility to appellant's house and rice mill from the highway,
since the door of the same opens to the Fleischers' side. The
fencing continued on that fateful day of August 22, 1968, with the
installation of four strands of barbed wire to the posts.
At about 2:30 p.m. on the said day, appellant who was taking a
nap after working on his farm all morning, was awakened by some
noise as if the wall of his house was being chiselled. Getting up and
looking out of the window, he found that one of the laborers of
Fleischer was indeed chiselling the wall of his house with a
crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia was nailing
the barbed wire and deceased Fleischer was commanding his
laborers. The jeep used by the deceased was parked on the
highway. The rest of the incident is narrated in the People's Brief
as above-quoted. Appellant surrendered to the police thereafter,
bringing with him shotgun No. 1119576 and claiming he shot two
persons (Exh. Pp. 31, Defense Exhibits).
Appellant now questions the propriety of his conviction, assigning
the following errors:
First Assignment of Error: That the lower court erred in convicting
defendant-appellant despite the fact that he acted in defense of
his person; and
Second Assignment of Error: That the court a quo also erred in
convicting defendant-appellant although he acted in defense of
his rights (p. 20 of Appellant's Brief, p. 145, rec.).
The act of killing of the two deceased by appellant is not disputed.
Appellant admitted having shot them from the window of his
house with the shotgun which he surrendered to the police
authorities. He claims, however, that he did so in defense of his
person and of his rights, and therefore he should be exempt from
criminal liability.
Defense of one's person or rights is treated as a justifying
circumstance under Art. 11, par. 1 of the Revised Penal Code, but
in order for it to be appreciated, the following requisites must
occur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent
or repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself (Art. 11, par. 1, Revised Penal Code, as
amended).
The aggression referred to by appellant is the angry utterance by
deceased Fleischer of the following words: "Hindi, sigue, gademit,
avante", in answer to his request addressed to his compadre, the
deceased Rubia, when he said, "Pare, hinto mona ninyo at pag-
usapan natin kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6).
This was in reaction to his having been awakened to see the wall
of his house being chiselled. The verbal exchange took place while
the two deceased were on the ground doing the fencing and the
appellant was up in his house looking out of his window (pp. 225-
227, supra). According to appellant, Fleischer's remarks caused
this reaction in him: "As if, I lost my senses and unknowingly I took
the gun on the bed and unknowingly also I shot Mr. Fleischer,
without realizing it, I shot Mr. Fleischer" (p. 132, supra). As for the
shooting of Rubia, appellant testified:
When I shot Davis Fleischer, Flaviano Rubia was nailing and upon
hearing the shot, Mr. Rubia looked at Mr. Fleischer and when Mr.
Fleischer fell down, Mr. Rubia ran towards the jeep and knowing
that there was a firearm in the jeep and thinking that if he will take
that firearm he will kill me, I shot at him (p. 132, supra, Emphasis
supplied).
The foregoing statements of appellant were never controverted
by the prosecution. They claim, however, that the deceased were
in lawful exercise of their rights of ownership over the land in
question, when they did the fencing that sealed off appellant's
access to the highway.
A review of the circumstances prior to the shooting as borne by
the evidence reveals that five persons, consisting of the deceased
and their three laborers, were doing the fencing and chiselling of
the walls of appellant's house. The fence they were putting up was
made of bamboo posts to which were being nailed strands of
barbed wire in several layers. Obviously, they were using tools
which could be lethal weapons, such as nail and hammer, bolo or
bamboo cutter, pliers, crowbar, and other necessary gadgets.
Besides, it was not disputed that the jeep which they used in going
to the place was parked just a few steps away, and in it there was
a gun leaning near the steering wheel. When the appellant woke
up to the sound of the chiselling on his walls, his first reaction was
to look out of the window. Then he saw the damage being done
to his house, compounded by the fact that his house and rice mill
will be shut off from the highway by the fence once it is finished.
He therefore appealed to his compadre, the deceased Rubia, to
stop what they were doing and to talk things over with him. But
deceased Fleischer answered angrily with 'gademit' and directed
his men to proceed with what they were doing.
The actuation of deceased Fleischer in angrily ordering the
continuance of the fencing would have resulted in the further
chiselling of the walls of appellant's house as well as the closure of
the access to and from his house and rice mill-which were not only
imminent but were actually in progress. There is no question,
therefore, that there was aggression on the part of the victims:
Fleischer was ordering, and Rubia was actually participating in the
fencing. This was indeed aggression, not on the person of
appellant, but on his property rights.
The question is, was the aggression unlawful or lawful? Did the
victims have a right to fence off the contested property, to destroy
appellant's house and to shut off his ingress and egress to his
residence and the highway?
Article 30 of the Civil Code recognizes the right of every owner to
enclose or fence his land or tenements.
However, at the time of the incident on August 22, 1968, Civil Case
no. 755 for annulment of the order of award to Fleischer and
Company was still pending in the Court of First Instance of
Cotabato. The parties could not have known that the case would
be dismissed over a year after the incident on August 22, 1968, as
it was dismissed on January 23, 1970 on ground of res judicata, in
view of the dismissal in 1965 (by the Court of Appeals) of Civil Case
No. 240 filed in 1950 for the annulment of the award to the
company, between the same parties, which the company won by
virtue of the compromise agreement in spite of the subsequent
repudiation by the settlers of said compromise agreement; and
that such 1970 dismissal also carried the dismissal of the
supplemental petition filed by the Republic of the Philippines on
November 28, 1968 to annul the sales patent and to cancel the
corresponding certificate of title issued to the company, on the
ground that the Director of Lands had no authority to conduct the
sale due to his failure to comply with the mandatory requirements
for publication. The dismissal of the government's supplemental
petition was premised on the ground that after its filing on
November 28, 1968, nothing more was done by the petitioner
Republic of the Philippines except to adopt all the evidence and
arguments of plaintiffs with whom it joined as parties-plaintiffs.
Hence, it is reasonable to believe that appellant was indeed
hoping for a favorable judgment in Civil Case No. 755 filed on
November 14, 1966 and his execution of the contract of lease on
February 21, 1967 was just to avoid trouble. This was explained by
him during cross-examination on January 21, 1970, thus:
It happened this way: we talked it over with my Mrs. that we
better rent the place because even though we do not know who
really owns this portion to avoid trouble. To avoid trouble we
better pay while waiting for the case because at that time, it was
not known who is the right owner of the place. So we decided until
things will clear up and determine who is really the owner, we
decided to pay rentals (p. 169, t.s.n., Vol.6).
In any case, Fleischer had given him up to December 31, 1968
(Exh.10, p. 2, Defense Exhibits) within which to vacate the land. He
should have allowed appellant the peaceful enjoyment of his
properties up to that time, instead of chiselling the walls of his
house and closing appellant's entrance and exit to the highway.
The following provisions of the Civil Code of the Philippines are in
point:
Art. 536. In no case may possession be acquired through force or
intimidation as long as there is a possessor who objects thereto.
He who believes that he has an action or a right to deprive another
of the holding of a thing must invoke the aid of the competent
court, if the holder should refuse to deliver the thing.
Art. 539. Every possessor has a right to be respected in his
possession; and should he be disturbed therein he shall be
protected in or restored to said possession by the means
established by the laws and the Rules of Court (Articles 536 and
539, Civil Code of the Philippines).
Conformably to the foregoing provisions, the deceased had no
right to destroy or cause damage to appellant's house, nor to close
his accessibility to the highway while he was pleading with them
to stop and talk things over with him. The assault on appellant's
property, therefore, amounts to unlawful aggression as
contemplated by law.
Illegal aggression is equivalent to assault or at least threatened
assault of immediate and imminent kind (People vs. Encomiendas,
46 SCRA 522).
In the case at bar, there was an actual physical invasion of
appellant's property which he had the right to resist, pursuant to
Art. 429 of the Civil Code of the Philippines which provides:
Art. 429. The owner or lawful possessor of a thing has the right to
exclude any person from the enjoyment and disposal thereof. For
this purpose, he may use such force as may be reasonably
necessary to repel or prevent an actual or threatened unlawful
physical invasion or usurpation of his property (Emphasis
supplied).
The reasonableness of the resistance is also a requirement of the
justifying circumstance of self-defense or defense of one's rights
under paragraph 1 of Article 11, Revised Penal Code. When the
appellant fired his shotgun from his window, killing his two
victims, his resistance was disproportionate to the attack.
WE find, however, that the third element of defense of property
is present, i.e., lack of sufficient provocation on the part of
appellant who was defending his property. As a matter of fact,
there was no provocation at all on his part, since he was asleep at
first and was only awakened by the noise produced by the victims
and their laborers. His plea for the deceased and their men to stop
and talk things over with him was no provocation at all.
Be that as it may, appellant's act in killing the deceased was not
justifiable, since not all the elements for justification are present.
He should therefore be held responsible for the death of his
victims, but he could be credited with the special mitigating
circumstance of incomplete defense, pursuant to paragraph 6,
Article 13 of the Revised Penal Code.
The crime committed is homicide on two counts. The qualifying
circumstance of treachery cannot be appreciated in this case
because of the presence of provocation on the part of the
deceased. As WE held earlier in People vs. Manlapaz (55 SCRA
598), the element of a sudden unprovoked attack is therefore
lacking.
Moreover, in order to appreciate alevosia, "it must clearly appear
that the method of assault adopted by the aggressor was
deliberately chosen with a special view to the accomplishment of
the act without risk to the assailant from any defense that the
party assailed might have made. This cannot be said of a situation
where the slayer acted instantaneously ..." (People vs. Caete, 44
Phil. 481).
WE likewise find the aggravating (qualifying) circumstance of
evident premeditation not sufficiently established. The only
evidence presented to prove this circumstance was the testimony
of Crisanto Ibaez, 37 years old, married, resident of Maitum,
South Cotabato, and a laborer of Fleischer and Company, which
may be summarized as follows:
On August 20, 1968 (two days before the incident) at about 7:00
A.M., he was drying corn near the house of Mr. and Mrs. Mamerto
Narvaez at the crossing, Maitum, South Cotabato, when the
accused and his wife talked to him. Mrs. Narvaez asked him to help
them, as he was working in the hacienda. She further told him that
if they fenced their house, there is a head that will be broken.
Mamerto Narvaez added 'Noy, it is better that you will tell Mr.
Fleischer because there will be nobody who will break his head but
I will be the one.' He relayed this to Mr. Flaviano Rubia, but the
latter told him not to believe as they were only Idle threats
designed to get him out of the hacienda (pp. 297-303, t.s.n., Vol.
2).
This single evidence is not sufficient to warrant appreciation of the
aggravating circumstance of evident premeditation. As WE have
consistently held, there must be "direct evidence of the planning
or preparation to kill the victim, .... it is not enough that
premeditation be suspected or surmised, but the criminal intent
must be evidenced by notorious outward acts evincing the
determination to commit the crime" (People vs. Ordioles, 42 SCRA
238). Besides, there must be a "showing" that the accused
premeditated the killing; that the culprit clung to their (his)
premeditated act; and that there was sufficient interval between
the premeditation and the execution of the crime to allow them
(him) to reflect upon the consequences of the act" (People vs.
Gida, 102 SCRA 70).
Moreover, the obvious bias of witness Crisanto Ibaez, as a
laborer of the deceased Davis Fleischer, neutralizes his credibility.
Since in the case at bar, there was no direct evidence of the
planning or preparation to kill the victims nor that the accused
premeditated the killing, and clung to his premeditated act, the
trial court's conclusion as to the presence of such circumstance
may not be endorsed.
Evident premeditation is further negated by appellant pleading
with the victims to stop the fencing and destroying his house and
to talk things over just before the shooting.
But the trial court has properly appreciated the presence of the
mitigating circumstance of voluntary surrender, it appearing that
appellant surrendered to the authorities soon after the shooting.
Likewise, We find that passion and obfuscation attended the
commission of the crime. The appellant awoke to find his house
being damaged and its accessibility to the highway as well as of his
rice mill bodega being closed. Not only was his house being
unlawfully violated; his business was also in danger of closing
down for lack of access to the highway. These circumstances,
coming so near to the time when his first house was dismantled,
thus forcing him to transfer to his only remaining house, must
have so aggravated his obfuscation that he lost momentarily all
reason causing him to reach for his shotgun and fire at the victims
in defense of his rights. Considering the antecedent facts of this
case, where appellant had thirty years earlier migrated to this so-
called "land of promise" with dreams and hopes of relative
prosperity and tranquility, only to find his castle crumbling at the
hands of the deceased, his dispassionate plea going unheeded-all
these could be too much for any man-he should be credited with
this mitigating circumstance.
Consequently, appellant is guilty of two crimes of homicide only,
the killing not being attended by any qualifying nor aggravating
circumstance, but extenuated by the privileged mitigating
circumstance of incomplete defense-in view of the presence of
unlawful aggression on the part of the victims and lack of sufficient
provocation on the part of the appellant-and by two generic
mitigating circumstance of voluntary surrender and passion and
obfuscation.
Article 249 of the Revised Penal Code prescribes the penalty for
homicide as reclusion temporal. Pursuant to Article 69, supra, the
penalty lower by one or two degrees shall be imposed if the deed
is not wholly excusable by reason of the lack of some of the
conditions required to justify the same. Considering that the
majority of the requirements for defense of property are present,
the penalty may be lowered by two degrees, i.e., to prision
correccional And under paragraph 5 of Article 64, the same may
further be reduced by one degree, i.e., arresto mayor, because of
the presence of two mitigating circumstances and no aggravating
circumstance.
The civil liability of the appellant should be modified. In the case
of Zulueta vs. Pan American World Airways (43 SCRA 397), the
award for moral damages was reduced because the plaintiff
contributed to the gravity of defendant's reaction. In the case at
bar, the victims not only contributed but they actually provoked
the attack by damaging appellant's properties and business.
Considering appellant's standing in the community, being married
to a municipal councilor, the victims' actuations were apparently
designed to humiliate him and destroy his reputation. The records
disclose that his wife, councilor Feliza Narvaez, was also charged
in these two cases and detained without bail despite the absence
of evidence linking her to the killings. She was dropped as a
defendant only upon motion of the prosecution dated October 31,
1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon on
November 4, 1968 (p. 58, CFI rec. of Criminal Case No. 1815).
Moreover, these cases arose out of an inordinate desire on the
part of Fleischer and Company, despite its extensive landholdings
in a Central Visayan province, to extend its accumulation of public
lands to the resettlement areas of Cotabato. Since it had the
capability-financial and otherwise-to carry out its land
accumulation scheme, the lowly settlers, who uprooted their
families from their native soil in Luzon to take advantage of the
government's resettlement program, but had no sufficient means
to fight the big landowners, were the ones prejudiced. Thus, the
moral and material suffering of appellant and his family deserves
leniency as to his civil liability.
Furthermore, Article 39 of the Revised Penal Code requires a
person convicted of prision correccional or arrests mayor and fine
who has no property with which to meet his civil liabilities to serve
a subsidiary imprisonment at the rate of one (1) day for each P
2.50. However, the amendment introduced by Republic Act No.
5465 on April 21, 1969 made the provisions of Art. 39 applicable
to fines only and not to reparation of the damage caused,
indemnification of consequential damages and costs of
proceedings. Considering that Republic Act 5465 is favorable to
the accused who is not a habitual delinquent, it may be given
retroactive effect pursuant to Article 22 of the Revised Penal Code.
WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE
DOUBT OF ONLY TWO (2) HOMICIDES, MITIGATED BY THE
PRIVILEGED EXTENUATING CIRCUMSTANCE OF INCOMPLETE
SELF-DEFENSE AS WELL AS BY TWO (2) GENERIC MITIGATING
CIRCUMSTANCES OF VOLUNTARY SURRENDER AND
OBFUSCATION, WITHOUT ANY AGGRAVATING CIRCUMSTANCE,
APPELLANT IS HEREBY SENTENCED TO SUFFER AN
IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO
INDEMNIFY EACH GROUP OF HEIRS OF DAVIS FLEISCHER AND OF
FLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P 4,000.00)
PESOS, WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT
ANY AWARD FOR MORAL DAMAGES AND ATTORNEY'S FEES.
CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION
FOR ALMOST FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY
SURRENDER ON AUGUST 22,1968, HIS IMMEDIATE RELEASE IS
HEREBY ORDERED. NO COSTS.
SO ORDERED.
Fernando, C.J., Teehankee, Concepcion Jr., Guerrero, De Castro,
Melencio-Herrera, Escolin Vasquez and Relova, JJ., concur.
Aquino, J., is on leave.
Plana, J., in the result.
Separate Opinions
ABAD SANTOS, J., dissenting:
I dissent. The self-defense of the Revised Penal Code refers to
unlawful aggression on persons, not property Plana, J., in the
result.
GUTIERREZ, JR., J., dissenting:
While I agree with the order to release the appellant, I am
constrained to dissent in part. It is true that Art. 429, Civil Code of
the Philippines, provides that the owner or legal possessor of a
thing may use such force as may be reasonably necessary to repel
or prevent an actual or threatened unlawful physical invasion or
usurpation of his property. It seems to me, however, that an attack
on the person defending his property is an indispensable element
where an accused pleads self-defense but what is basically
defended is only property.
Defense of property is not of such importance as the right to life
and defense of property can only be invoked when it is coupled
with some form of attack on the person of one entrusted with said
property. The defense of property, whether complete or
incomplete, to be available in prosecutions for murder or
homicide must be coupled with an attack by the one getting the
property on the person defending it.
In the case now before Us, there is absolutely no evidence that an
attack was attempted, much less made upon the person of
appellant. The mere utterance "No, gademit proceed, go ahead"
is not the unlawful aggression which entitles appellant to the pela
of self-defense. I agree with the majority opinion that the crime is
homicide but without any privileged mitigating circumstance.
Therefore, since the appellant is guilty beyond reasonable doubt
of two (2) homicides, mitigated by the two generic mitigating
circumstances of voluntary surrender and obfuscation, without
any aggravating circumstance, maximum the sentence the
appellant should have served was prision mayor plus the
indemnification to each group of heirs of Davis Fleischer and of
Flamiano Rubia of the sum of Four Thousand (P4,000.00) Pesos,
without subsidiary imprisonment, but without any award for
moral damages and attorney's fees.
Considering that appellant has been under detention for almost
fourteen (14) years now since August 22, 1968, he has served the
penalty and should be released.
Separate Opinions
ABAD SANTOS, J., dissenting:
I dissent. The self-defense of the Revised Penal Code refers to
unlawful aggression on persons, not property Plana, J., in the
result.
GUTIERREZ, JR., J., dissenting:
While I agree with the order to release the appellant, I am
constrained to dissent in part. It is true that Art. 429, Civil Code of
the Philippines, provides that the owner or legal possessor of a
thing may use such force as may be reasonably necessary to repel
or prevent an actual or threatened unlawful physical invasion or
usurpation of his property. It seems to me, however, that an attack
on the person defending his property is an indispensable element
where an accused pleads self-defense but what is basically
defended is only property.
Defense of property is not of such importance as the right to life
and defense of property can only be invoked when it is coupled
with some form of attack on the person of one entrusted with said
property. The defense of property, whether complete or
incomplete, to be available in prosecutions for murder or
homicide must be coupled with an attack by the one getting the
property on the person defending it.
In the case now before Us, there is absolutely no evidence that an
attack was attempted, much less made upon the person of
appellant. The mere utterance "No, gademit proceed, go ahead"
is not the unlawful aggression which entitles appellant to the pela
of self-defense. I agree with the majority opinion that the crime is
homicide but without any privileged mitigating circumstance.
Therefore, since the appellant is guilty beyond reasonable doubt
of two (2) homicides, mitigated by the two generic mitigating
circumstances of voluntary surrender and obfuscation, without
any aggravating circumstance, maximum the sentence the
appellant should have served was prision mayor plus the
indemnification to each group of heirs of Davis Fleischer and of
Flamiano Rubia of the sum of Four Thousand (P4,000.00) Pesos,
without subsidiary imprisonment, but without any award for
moral damages and attorney's fees.
Considering that appellant has been under detention for almost
fourteen (14) years now since August 22, 1968, he has served the
penalty and should be released.
Republic of the Philippines Duran testified that Jesus stood up from his seat and met Flores
SUPREME COURT who was heading towards the terrace. After glancing at the two,
Manila who began talking to each other near the terrace, Duran focused
his attention back to the table. Suddenly, he heard several
THIRD DIVISION gunshots prompting him to duck under the table. Right after the
shooting, he looked around and saw the bloodied body of Jesus
G.R. No. 181354 February 27, 2013 lying on the ground. By then, Flores was no longer in sight. 5
Duran immediately helped board Jesus in an owner-type jeep to
be brought to a hospital. Thereafter, Duran, Ronnie de Mesa and
SIMON A. FLORES, Petitioner,
Noli de Mesa went home. Jesus was brought to the hospital by his
vs.
wife and children. Duran did not, at any time during the occasion,
PEOPLE OF THE PHILIPPINES, Respondent.
notice the victim carrying a gun with him.6
DECISION
Gerry narrated that he was going in and out of their house before
MENDOZA, J.:
the shooting incident took place, anxiously waiting for the arrival
This is a petition for review on certiorari under Rule 45 of the Rules
of his parents from Sta. Rosa, Laguna. His parents were then
of Court, seeking to annul and set aside the August 2 7, 2004
attending to his problem regarding a vehicular accident. When
Decision1 of the Sandiganbayan, First Division (Sandiganbayan), in
they arrived, Gerry had a short conversation with his father, who
Criminal Case No. 16946, finding petitioner Simon A.
later joined their visitors at the terrace. 7
Flores (Flores) guilty beyond reasonable doubt of the crime of
Gerry was outside their house when he saw Flores across the
Homicide, and its November 29, 2007 Resolution2 denying his
street in the company of some members of the CAFGU. He was on
motion for reconsideration.
his way back to the house when he saw Flores and his father
Flores was charged with the crime of Homicide in
talking to each other from a distance of about six (6) meters.
an Information, dated July 9, 1991, filed before the
Suddenly, Flores shot his father, hitting him on the right shoulder.
Sandiganbayan which reads:
Flores continued shooting even as Jesus was already lying flat on
That on or about the 15th day of August, 1989, at nighttime, in the
the ground. Gerry testified that he felt hurt to have lost his father.8
Municipality of Alaminos, Province of Laguna, Philippines, and
Elisa related that she was on her way from the kitchen to serve
within the jurisdiction of this Honorable Court, the abovenamed
"pulutan" to their visitors when she saw Flores, from their
accused, a public officer, being then the Barangay Chairman of San
window, approaching the terrace. By the time she reached the
Roque, Alaminos, Laguna, while in the performance of his official
terrace, her husband was already lying on the ground and still
functions and committing the offense in relation to his office, did
being shot by Flores. After the latter had left, she and her children
then and there willfully, unlawfully, feloniously and with intent to
rushed him to the hospital where he was pronounced dead on
kill, shoot one JESUS AVENIDO with an M-16 Armalite Rifle,
arrival.9
thereby inflicting upon him several gunshot wounds in different
As a consequence of her husbands untimely demise, she suffered
parts of his body, which caused his instantaneous death, to the
emotionally. She testified that Jesus had an average monthly
damage and prejudice of the heirs of said JESUS AVENIDO.
income of Twenty Thousand Pesos (20,000.00) before he died at
CONTRARY TO LAW.3
the age of forty-one (41). He left four (4) children. Although she
During his arraignment, on August 26, 1991, Flores pleaded "Not
had no receipt, Elisa asked for actual damages consisting of
Guilty" and waived the pre-trial. Thereafter, the prosecution
lawyers fees in the amount of Fifteen Thousand Pesos
presented four (4) witnesses, namely: Paulito Duran, one of the
(15,000.00) plus Five Hundred Pesos (500.00) for every hearing,
visitors (Duran); Gerry Avenido (Gerry), son of the victim; Elisa
and Six Thousand Five Hundred Pesos (6,500.00) for the funeral
Avenido (Elisa), wife of the victim; and Dr. Ruben Escueta, the
expenses.10
physician who performed the autopsy on the cadaver of the
Dr. Ruben Escueta (Dr. Escueta) testified that on August 17, 1989,
victim, Jesus Avenido (Jesus).
he conducted an autopsy on the cadaver of Jesus, whom he
For its part, the defense presented as witnesses, the accused
assessed to have died at least six (6) hours before his body was
Flores himself; his companion-members of the Civilian Action
brought to him.11
Force Group Unit (CAFGU), Romulo Alquizar and Maximo H.
Based on the Autopsy Report,12 it appeared that the victim
Manalo; and Dr. Rene Bagamasbad, resident physician of San
suffered four gunshot wounds in the different parts of his body,
Pablo City District Hospital.
specifically: on the medial portion of the left shoulder, between
The Version of the Prosecution
the clavicle and the first rib; on the left hypogastric region through
On August 15, 1989, on the eve of the barangay fiesta in San
the upper right quadrant of the abdomen; on the tip of the left
Roque, Alaminos, Laguna, certain visitors, Ronnie de Mesa, Noli de
buttocks to the tip of the sacral bone or hip bone; and on the right
Mesa, Marvin Avenido, and Duran, were drinking at the terrace of
flank towards the umbilicus. The victim died of massive intra-
the house of Jesus. They started drinking at 8:30 oclock in the
abdominal hemorrhage due to laceration of the liver.
evening. Jesus, however, joined his visitors only at around 11:00
The Version of the Defense
oclock after he and his wife arrived from Sta. Rosa, Laguna, where
To avoid criminal liability, Flores interposed self-defense.
they tried to settle a problem regarding a vehicular accident
Flores claimed that in the evening of August 15, 1989, he, together
involving one of their children. The drinking at the terrace was
with four members of the CAFGU and Civil Service Unit (CSU),
ongoing when Flores arrived with an M-16 armalite rifle.4
Maximo Manalo, Maximo Latayan (Latayan), Ronilo Haballa, and
Romulo Alquizar, upon the instructions of Mayor Samuel Bueser
of Alaminos, Laguna, conducted a ronda in Barangay San Roque
which was celebrating the eve of its fiesta.13
At around midnight, the group was about 15 meters from the
house of Jesus, who had earlier invited them for some "bisperas"
snacks, when they heard gunshots seemingly emanating from his
house. Flores asked the group to stay behind as he would try to
talk to Jesus, his cousin, to spare the shooting practice for the
fiesta celebration the following day. As he started walking towards
the house, he was stopped by Latayan and handed him a baby
armalite. He initially refused but was prevailed upon by Latayan
who placed the weapon over his right shoulder, with its barrel or
nozzle pointed to the ground. Latayan convinced Flores that such
posture would gain respect from the people in the house of
Jesus.14
Flores then proceeded to the terrace of the house of Jesus, who
was having a drinking spree with four others. In a calm and
courteous manner, Flores asked Jesus and his guests to cease
firing their guns as it was already late at night and to save their
shots for the following days fiesta procession. Flores claimed that
despite his polite, unprovocative request and the fact that he was
a relative of Jesus and the barangay chairman, a person in
authority performing a regular routine duty, he was met with
hostility by Jesus and his guests. Jesus, who appeared drunk,
immediately stood up and approached
him as he was standing near the entrance of the terrace. Jesus
abruptly drew his magnum pistol and poked it directly at his chest
and then fired it. By a twist of fate, he was able to partially parry
Jesus right hand, which was holding the pistol, and was hit on his
upper right shoulder.15
With fierce determination, however, Jesus again aimed his gun at
Flores, but the latter was able to instinctively take hold of Jesus
right hand, which was holding the gun. As they wrestled, Jesus
again fired his gun, hitting Flores left hand.16
Twice hit by bullets from Jesus magnum pistol and profusely
bleeding from his two wounds, Flores, with his life and limb at
great peril, instinctively swung with his right hand the baby
armalite dangling on his right shoulder towards Jesus and
squeezed its trigger. When he noticed Jesus already lying
prostrate on the floor, he immediately withdrew from the house.
As he ran towards the coconut groves, bleeding and utterly
bewildered over the unfortunate incident that just transpired
between him and his cousin Jesus, he heard more gunshots. Thus,
he continued running for fear of more untoward incidents that
could follow. He proceeded to the Mayors house in Barangay San
Gregorio, Alaminos, Laguna, to report what had happened. There,
he found his ronda groupmates.17
The incident was also reported the following day to the CAFGU
Superior, Sgt. Alfredo Sta. Ana.
Decision of the Sandiganbayan
On August 27, 2004, after due proceedings, the Sandiganbayan
issued the assailed decision18 finding Flores guilty of the offense
charged. The Sandiganbayan rejected Flores claim that the
shooting was justified for failure to prove self-defense. It gave
credence to the consistent testimonies of the prosecution
witnesses that Flores shot Jesus with an armalite rifle (M16) which
resulted in his death. According to the Sandiganbayan, there was
no reason to doubt the testimonies of the said witnesses who
appeared to have no ill motive to falsely testify against Flores. The
dispositive portion of the said decision reads:
WHEREFORE, judgment is hereby rendered in Criminal Case No.
16946 finding the accused Simon A. Flores GUILTY beyond
reasonable doubt of the crime of homicide and to suffer the
penalty of 10 years and 1 day of prision mayor maximum, as
minimum, to 17 years, and 4 months of reclusion
temporal medium, as maximum. The accused is hereby ordered to
pay the heirs of the victim Fifty Thousand Pesos (50,000.00) as
civil indemnity for the death of Jesus Avenido, another Fifty
Thousand Pesos (50,000.00) as moral damages, and Six
Thousand Five Hundred Pesos (6,500.00) as actual or
compensatory damages.
SO ORDERED.19
Flores filed a motion for the reconsideration. As the motion did
not contain any notice of hearing, the Prosecution filed its Motion
to Expunge from the Records Accuseds Motion for
Reconsideration."20
In its Resolution, dated November 29, 2007, the Sandiganbayan
denied the motion for being a mere scrap of paper as it did not
contain a notice of hearing and disposed as follows:
WHEREFORE, in view of the foregoing, the Motion for
Reconsideration of accused Flores is considered pro forma which
did not toll the running of the period to appeal, and thus, the
assailed judgment of this Court has
become FINAL and EXECUTORY.
SO ORDERED.21
Hence, Flores filed the present petition before this Court on the
ground that the Sandiganbayan committed reversible errors
involving questions of substantive and procedural laws and
jurisprudence. Specifically, Flores raises the following
ISSUES
(I)
WHETHER THE SANDIGANBAYAN, FIRST DIVISION, GRAVELY
ERRED IN NOT GIVING DUE CREDIT TO PETITIONERS CLAIM OF
SELF-DEFENSE
(II)
WHETHER THE SANDIGANBAYAN, FIRST DIVISION, COMMITTED
SERIOUS BUT REVERSIBLE ERRORS IN ARRIVING AT ITS FINDINGS
AND CONCLUSIONS
(III)
WHETHER THE SANDIGANBAYAN, FIRST DIVISION, COMMITTED
A GRAVE ERROR IN NOT ACQUITTING PETITIONER OF THE CRIME
CHARGED22
The Court will first resolve the procedural issue raised by Flores in
this petition.
Flores claims that the outright denial of his motion for
reconsideration by the Sandiganbayan on a mere technicality
amounts to a violation of his right to due process. The dismissal
rendered final and executory the assailed decision which was
replete with baseless conjectures and conclusions that were
contrary to the evidence on record. He points out that a relaxation
of procedural rules is justified by the merits of this case as the
facts, viewed from the proper and objective perspective,
indubitably demonstrate selfdefense on his part.
Flores argues that he fully complied with the requirements of
Section 2 of Rule 37 and Section 4 of Rule 121 of the Rules of Court
when the motion itself was served upon the prosecution and the
latter, in fact, admitted receiving a copy. For Flores, such judicial
admission amounts to giving due notice of the motion which is the
intent behind the said rules. He further argues that a hearing on a
motion for reconsideration is not necessary as no further
proceeding, such as a hearing, is required under Section 3 of Rule
121.
Flores argument fails to persuade this Court.
Section 5, Rule 15 of the Rules of Court reads:
SECTION 5. Notice of hearing. The notice of hearing shall be
addressed to all parties concerned, and shall specify the time and
date of the hearing which must not be later than ten (10) days
after the filing of the motion.
Section 2, Rule 37 provides:
SEC. 2. Contents of motion for new trial or reconsideration and
notice thereof. The motion shall be made in writing stating the
ground or grounds therefore, a written notice of which shall be
served by the movant on the adverse party.
xxxx
A pro forma motion for new trial or reconsideration shall not toll
the reglementary period of appeal.
Section 4, Rule 121 states:
SEC. 4. Form of motion and notice to the prosecutor. The motion
for a new trial or reconsideration shall be in writing and shall state
the grounds on which it is based. X x x. Notice of the motion for
new trial or reconsideration shall be given to the prosecutor.
As correctly stated by the Office of the Special Prosecutor (OSP),
Sec. 2 of Rule 37 and Sec. 4 of Rule 121 should be read in
conjunction with Sec. 5 of Rule 15 of the Rules of Court. Basic is
the rule that every motion must be set for hearing by the movant
except for those motions which the court may act upon without
prejudice to the rights of the adverse party. 23 The notice of
hearing must be addressed to all parties and must specify the time
and date of the hearing, with proof of service.
This Court has indeed held, time and again, that under Sections 4
and 5 of Rule 15 of the Rules of Court, the requirement is
mandatory. Failure to comply with the requirement renders the
motion defective. "As a rule, a motion without a notice of hearing
is considered pro forma and does not affect the reglementary
period for the appeal or the filing of the requisite pleading." 24
In this case, as Flores committed a procedural lapse in failing to
include a notice of hearing, his motion was a worthless piece of
paper with no legal effect whatsoever. Thus, his motion was
properly dismissed by the Sandiganbayan.
Flores invokes the exercise by the Court of its discretionary power
to review the factual findings of the Sandiganbayan. He avers that
the ponente as well as the other members of the First Division who
rendered the assailed decision, were not able to observe the
witnesses or their manner of testifying as they were not present
during the trial.25 He, thus, argues that there was palpable
misapprehension of the facts that led to wrong conclusions of law
resulting in his unfounded conviction.
His contention is likewise devoid of merit.
"It is often held that the validity of a decision is not necessarily
impaired by the fact that the ponente only took over from a
colleague who had earlier presided at the trial, unless there is a
showing of grave abuse of discretion in the factual findings
reached by him."26
"Moreover, it should be stressed that the Sandiganbayan, which
functions in divisions of three Justices each, is a collegial body
which arrives at its decisions only after deliberation, the exchange
of view and ideas, and the concurrence of the required majority
vote."27
In the present case, Flores has not convinced the Court that there
was misapprehension or misinterpretation of the material facts
nor was the defense able to adduce evidence to establish that the
factual findings were arrived at with grave abuse of discretion.
Thus, the Court sustains the Sandiganbayans conclusion that
Flores shot Jesus and continued riddling his body with bullets even
after he was already lying helpless on the ground.
Flores insists that the evidence of this case clearly established all
the elements of self-defense. According to him, there was an
unlawful aggression on the part of Jesus. He was just at the
entrance of Jesus terrace merely advising him and his guests to
reserve their shooting for the fiesta when Jesus approached him,
drew a magnum pistol and fired at him. The attack by Jesus was
sudden, unexpected and instantaneous. The intent to kill was
present because Jesus kept pointing the gun directly at him. As he
tried to parry Jesus hand, which was holding the gun, the latter
kept firing. Left with no choice, he was compelled to use the baby
armalite he was carrying to repel the attack. He asserts that there
was lack of sufficient provocation on his part as he merely
requested Jesus and his drinking buddies to reserve their shooting
for the following day as it was already late at night and the
neighbors were already asleep.
In effect, Flores faults the Sandiganbayan in not giving weight to
the justifying circumstance of self-defense interposed by him and
in relying on the testimonies of the prosecution witnesses instead.
His argument deserves scant consideration.
The issue of whether Flores indeed acted in self-defense is
basically a question of fact. In appeals to this Court, only questions
of law may be raised and not issues of fact. The factual findings of
the Sandiganbayan are, thus, binding upon this Court. 28 This
Court, nevertheless, finds no reason to disturb the finding of the
Sandiganbayan that Flores utterly failed to prove the existence of
self-defense.
Generally, "the burden lies upon the prosecution to prove the guilt
of the accused beyond reasonable doubt rather than upon the
accused that he was in fact innocent." If the accused, however,
admits killing the victim, but pleads self-defense, the burden of
evidence is shifted to him to prove such defense by clear,
satisfactory and convincing evidence that excludes any vestige of
criminal aggression on his part. To escape liability, it now becomes
incumbent upon the accused to prove by clear and convincing
evidence all the elements of that justifying circumstance.29
In this case, Flores does not dispute that he perpetrated the killing
of Jesus by shooting him with an M16 armalite rifle. To justify his
shooting of Jesus, he invoked self-defense. By interposing self-
defense, Flores, in effect, admits the authorship of the crime.
Thus, it was incumbent upon him to prove that the killing was
legally justified under the circumstances.
To successfully claim self-defense, the accused must satisfactorily
prove the concurrence of the elements of self-defense. Under
Article 11 of the Revised Penal Code, any person who acts in
defense of his person or rights does not incur any criminal liability
provided that the following circumstances concur: (1) unlawful
aggression; (2) reasonable necessity of the means employed to
prevent or repel it; and (3) lack of sufficient provocation on the
part of the person defending himself.
The most important among all the elements is unlawful
aggression. "There can be no self-defense, whether complete or
incomplete, unless the victim had committed unlawful aggression
against the person who resorted to self-defense."30 "Unlawful
aggression is defined as an actual physical assault, or at least a
threat to inflict real imminent injury, upon a person. In case of
threat, it must be offensive and strong, positively showing the
wrongful intent to cause injury. It presupposes actual, sudden,
unexpected or imminent dangernot merely threatening and
intimidating action. It is present only when the one attacked faces
real and immediate threat to ones life."31"Aggression, if not
continuous, does not constitute aggression warranting self-
defense."32
In this case, Flores failed to discharge his burden.
The Court agrees with the Sandiganbayans assessment of the
credibility of witnesses and the probative value of evidence on
record. As correctly noted by the Sandiganbayan, the defense
evidence, both testimonial and documentary, were crowded with
flaws which raised serious doubt as to its credibility, to wit:
First, the accused claims that Jesus Avenido shot him on his right
shoulder with a magnum handgun from a distance of about one
(1) meter. With such a powerful weapon, at such close range, and
without hitting any hard portion of his body, it is quite incredible
that the bullet did not exit through the accuseds shoulder. On the
contrary, if he were hit on the part where the ball and socket were
located, as he tried to make it appear later in the trial, it would be
very impossible for the bullet not to have hit any of the bones
located in that area of his shoulder.
Second, Simon Flores executed an affidavit on September 2, 1989.
Significantly, he did not mention anything about a bullet
remaining on his shoulder. If indeed a bullet remained lodged in
his shoulder at the time he executed his affidavit, it defies logic
why he kept mum during the preliminary investigation when it was
crucial to divulge such fact if only to avoid the trouble of going
through litigation. To wait for trial before finally divulging such a
very material information, as he claimed, simply stretches
credulity.
Third, in his feverish effort of gathering evidence to establish
medical treatment on his right shoulder, the accused surprisingly
did not bother to secure the x-ray plate or any medical records
from the hospital. Such valuable pieces of evidence would have
most likely supported his case of self-defense, even during the
preliminary investigation, if they actually existed and had he
properly presented them. The utter lack of interest of the accused
in retrieving the alleged x-ray plate or any medical record from the
hospital militate against the veracity of his version of the incident.
Fourth, the T-shirt presented by the accused in court had a hole,
apparently from a hard object, such as a bullet, that pierced
through the same. However, the blood stain is visibly
concentrated only on the area around the hole forming a circular
shape. Within five (5) hours and a half from 12:00 oclock midnight
when he was allegedly shot, to 5:35 a.m. in the early morning of
August 16, 1989, when his wounds were treated, the blood would
naturally have dripped down to the hem. The blood on the shirt
was not even definitively shown to be human blood.
Fifth, Jesus Avenido arrived at his house and joined his visitors who
were drinking only at 11:00 oclock in the evening. Both parties
claim that the shooting incident happened more or less 12:00
midnight. Hence, it is very possible that Jesus Avenido was not yet
drunk when the incident in question occurred. Defense witnesses
themselves noted that the victim Jesus Avenido was bigger in built
and taller than the accused. Moreover, the victim was familiar and
very much experienced with guns, having previously worked as a
policeman.1wphi1 In addition, the latter was relatively young, at
the age of 41, when the incident happened. The Court therefore
finds it difficult to accept how the victim could miss when he
allegedly shot the accused at such close range if, indeed, he really
had a gun and intended to harm the accused. We find it much less
acceptable to believe how the accused allegedly overpowered the
victim so easily and wrestled the gun from the latter, despite
allegedly having been hit earlier on his right shoulder.
Finally, it hardly inspires belief for the accused to have allegedly
unlocked, with such ease, the armalite rifle (M16) he held with one
hand, over which he claims to have no experience handling, while
his right shoulder was wounded and he was grappling with the
victim.33 (Underscoring supplied citations omitted)
The foregoing circumstances indeed tainted Flores credibility and
reliability, his story being contrary to ordinary human experience.
"Settled is the rule that testimonial evidence to be believed must
not only proceed from the mouth of a credible witness but must
foremost be credible in itself. Hence, the test to determine the
value or credibility of the testimony of a witness is whether the
same is in conformity with common knowledge and is consistent
with the experience of mankind."34
The Court also sustains the finding that the testimony of Dr.
Bagamasbad, adduced to prove that Flores was shot by Jesus, has
no probative weight for being hearsay. As correctly found by the
Sandiganbayan:
The testimony of defense witness Dr. Bagamasbad, cannot be of
any help either since the same is in the nature of hearsay
evidence. Dr. Bagamasbads testimony was a mere re-statement
of what appeared as entries in the hospital logbook (EXH. "8-a"),
over which he admitted to possess no personal knowledge. The
photocopy of the logbook itself does not possess any evidentiary
value since it was not established by the defense that such
evidence falls under any of the exceptions enumerated in Section
3, Rule 130, which pertain to the rules on the admissibility of
evidence.35 x x x
Granting for the sake of argument that unlawful aggression was
initially staged by Jesus, the same ceased to exist when Jesus was
first shot on the shoulder and fell to the ground. At that point, the
perceived threat to Flores life was no longer attendant. The latter
had no reason to pump more bullets on Jesus abdomen and
buttocks.
Indeed, the nature and number of the gunshot wounds inflicted
upon Jesus further negate the claim of self-defense by the
accused. Records show that Jesus suffered four (4) gunshot
wounds in the different parts of his body, specifically: on the
medial portion of the left shoulder, between the clavicle and the
first rib; on the left hypogastric region through the upper right
quadrant of the abdomen; on the tip of the left buttocks to the tip
of the sacral bone or hip bone; and on the right flank towards the
umbilicus. According to Dr. Ruben Escueta, who performed the
autopsy on the victim, the latter died of massive intra-abdominal
hemorrhage due to laceration of the liver. 36 If there was any truth
to Flores claim that he merely acted in self-defense, his first shot
on Jesus shoulder, which already caused the latter to fall on the
ground, would have been sufficient to repel the attack allegedly
initiated by the latter. But Flores continued shooting Jesus.
Considering the number of gunshot wounds sustained by the
victim, the Court finds it difficult to believe that Flores acted to
defend himself to preserve his own life. "It has been held in this
regard that the location and presence of several wounds on the
body of the victim provide physical evidence that eloquently
refutes allegations of self-defense."37
"When unlawful aggression ceases, the defender no longer has
any justification to kill or wound the original aggressor. The
assailant is no longer acting in self-defense but in retaliation
against the original aggressor."38Retaliation is not the same as self-
defense. In retaliation, the aggression that was begun by the
injured party already ceased when the accused attacked him,
while in self-defense the aggression still existed when the
aggressor was injured by the accused.39
The Court quotes with approval the following findings of the
Sandiganbayan, thus:
x x x. The difference in the location of the entry and exit points of
this bullet wound was about two to three inches. From the entry
point of the bullet, the shooting could not have taken place when
accused and his victim were standing and facing each other.
Another bullet entered through the medial portion of the victim's
buttocks and exited through his abdominal cavity. A third bullet
entered through the left hypogastric region and exited at the
upper right quadrant of the victim's abdomen. The respective
trajectory of these wounds are consistent with the testimony of
prosecution witnesses Elisa B. Avenido and Arvin B. Aveniclo that
the accused shot Jesus Avenido while the latter was already lying
on the ground. Moreover, according to Arvin Avenido, the first
shot hit his father on the right shoulder making him fall to the
ground. Hence, even on the assumption that unlawful aggression
initially existed, the same had effectively ceased after the victim
was first shot and fell to the ground. There was no more reason
for the accused to pull the trigger, at least three times more, and
continue shooting at the victim.40 (Emphasis in the original)
The means employed by a person claiming self-defense must be
commensurate to the nature and the extent of the attack sought
to be averted, and must be rationally necessary to prevent or repel
an unlawful aggression.41 In this case, the continuous shooting by
Flores which caused the fatal gunshot wounds were not necessary
and reasonable to prevent the claimed unlawful aggression from
Jesus as the latter was already lying flat on the ground after he was
first shot on the shoulder.
In fine, the Sandiganbayan committed no reversible error in
finding accused Flores guilty beyond reasonable doubt of the
crime of homicide.
WHEREFORE, the petition is DENIED.
SO ORDERED.
FIRST DIVISION
[G.R. No. 109614-15. March 29, 1996]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ADRONICO
GREGORIO and RICARDO GREGORIO, defendants-
appellants.
DECISION
KAPUNAN, J.:
The instant appeal seeks the reversal of the joint decision of
the Regional Trial Court of Bacolod City, Branch 43, rendered
on April 20, 1992, in Criminal Cases Nos. 428 and 6307 finding both
appellants guilty beyond reasonable doubt of the crime of murder.
The facts of the case as established by the evidence for the
prosecution are faithfully summarized in the Peoples brief, to wit:
Around 8:00 oclock in the evening of May 7, 1986, Carlos Catorse
together with his fifteen year old son Romeo Catorse arrived at
the house (the house is composed of two storeys) of appellant
Adronico Gregorio at Sitio Bug-as, Barangay Sta. Cruz, Murcia,
Negros Occidental, to attend the wake of the latters grandson
(TSN March 24, 1987, pp. 3-4).
When Carlos and his son arrived, there were already people
attending the wake. Jovito Nicavera, Marcelo Lo and Adronico
were conversing downstairs while upstairs, some were playing
pusoy (russian poker), among them were Jerry Nicavera, Renato
Calabas, Tunggak, (son of Adronico) and Ricardo Gregorio (brother
and co-appellant of Adronico). Kibitzing and at times betting in the
game were John Villarosa, Remolito Calabas, Carmelo Alubaga and
Crispin Calalas (I.D., pp. 5; TSN, May 30, 1989, pp. 12-13).
Persons attending the wake were requested by appellant
Adronico to deposit with him any weapon in their possession for
safekeeping so as to avoid trouble. Complying therewith, Carlos
Catorse handed over his samurai, John Villarosa and Remolito
Calalas, their respective knives, to Adronico (TSN, May 30, 1989,
pp. 16-19; TSN, November 14, 1989, pp. 22-23).
Around 1:00 oclock in the morning of May 8, 1986, while the game
of pusoy was still in progress, appellant Ricardo, in a very loud
voice, reprimanded Tunggak from (sic) peeping at the cards of
other players. In response, Tunggak stood up and also in a very
loud voice ordered the game stopped (TSN, May 30, 1989, pp. 25-
27; TSN, November 14, 1987, pp. 45-50).
Overhearing the incident, Adronico ordered Tunggak downstairs
and right there and then Adronico scolded and boxed him
(Tunggak) several times (TSN, May 30, 1989, pp. 27-30; TSN,
November 14, 1989, pp. 51-55).
While Adronico was severely beating Tunggak, Carlos Catorse
approached and begged Adronico from further hurting his son so
as not to put him to shame before the crowd. Carlos was in this
act of pacifying the matter between the father and son when
suddenly appellant Ricardo stealthily stabbed Carlos from behind
with a samurai (the same samurai deposited by Carlos to
Adronico) and thereafter hacked and stabbed him several times
more in different parts of his body: Right after Carlos fell to the
ground, Adronico, for his part, repeatedly hacked the victim with
a bolo. (TSN, May 30, 1989, pp. 30-31; November 14, 1989, pp. 57-
65).
Terrified, Romeo Catorse, son of Carlos Catorse, ran out of the
house. Jovito Nicavera also tried to get out of the house but
Adronico hacked him instead with a bolo hitting his left
shoulder. Marcelo Lo tried to help his uncle Jovito but Ricardo,
with the same samurai used against Carlos hacked him on his
forearm. Adronico immediately followed and using a bolo hacked
Marcelo on the nape. Although wounded, Marcelo was able to run
out of the house but Adronico ran after and overtook him.
Adronico then hacked him again. When Ricardo followed the two,
the visitors attending the wake scampered out of the house (TSN,
May 30, 1989, pp. 44-56; TSN, November 14, 1989, pp. 66-77).
Later, Romeo Catorse together with his sister and younger brother
returned to the house of Adronico where they found their father
lying prostrate and dead. Nobody was around. Later on, the family
of Jovito Nicavera arrived and brought the latter to a hospital
in Bacolod (TSN, March 24, 1987, pp. 8-10).
Around 9:00 oclock of the same morning of May 8, 1987, police
authorities arrived at Adronicos place to investigate the killing
incident. The bodies of Carlos Catorse and Marcelo Lo were found
inside the house and at the yard of Adronico, respectively (TSN,
November 14, 1989, pp. 76-78). The investigation revealed that
appellants Adronico and Ricardo fled to Sitio Anangge, Barangay
Buenavista, Murcia, Negros Occidental, about 4 kilometers away
from the situs of the crime. The authorities pursued and
succeeded in apprehending the appellants. Appellants were
thereafter brought and investigated at Murcia Police
Headquarters (TSN, April 5, 1991, pp. 9-10).
The post-mortem examination on the cadaver of the victims
reveals that Carlos Catorse sustained twelve hack and four stab
wounds while Marcelo Lo sustained six hack wounds. Both victims
died of cardio respiratory arrest due to multiple wounds (Exhibits
A, B, C & D).[1]
Accordingly, an information for the murder of Carlos Catorse was
filed against Adronico Gregorio and Ricardo Gregorio before the
Regional Trial Court of Negros Occidental, Branch
LXII, Bago City. The indictment, docketed as Criminal Case No.
428, reads:
That on or about the 8th day of May 1986, in the Municipality of
Murcia, Province of Negros Occidental, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
armed with a samurai and a bolo, conspiring, confederating and
mutually helping each other, with evident premeditation and
treachery, and with intent to kill, did then and there, willfully,
unlawfully and feloniously attack, assault, stab and hack one,
CARLOS CATORSE y APELYEDO, thereby inflicting multiple stab and
hack wounds upon the body of the latter, which caused the death
of said victim.
CONTRARY TO LAW.[2]
Upon arraignment, both accused entered separate pleas of
not guilty.[3]
Another information for the murder of Marcelo Lo was
instituted against Adronico Gregorio, this time, before the
Regional Trial Court of Negros Occidental, Branch
43, Bacolod City. Docketed as Criminal Case No. 6307, the
accusatory portion of the information reads:
That on or about the 8th day of May, 1986, in the Municipality of
Murcia, Province of Negros Occidental, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
armed with a bladed weapon, with intent to kill, with evident
premeditation and treachery, did then and there, willfully,
unlawfully and feloniously attack, assault and hack one MARCELO
LO Y NICA VERA, thereby inflicting multiple injuries upon the body
of the latter which caused the death of the said victim.
CONTRARY TO LAW.[4]
On arraignment, Adronico Gregorio entered a plea of not
guilty to the offense charged.[5]
Later, the two cases were consolidated and tried jointly by
the Regional Trial Court of Negros Occidental, Bacolod City,
Branch 43.
On April 20, 1992 as aforestated, the trial court rendered a
joint decision, the dispositive portion of which reads:
WHEREFORE, premises considered, the Court finds and so holds
the two (2) accused Adronico Gregorio and Ricardo Gregorio
GUILTY beyond reasonable doubt as principals of having
committed the crime of Murder in Crim. Case No. 428 and hereby
sentences each to life imprisonment and to solidarily indemnify
the heirs of Carlos Catorse the sum of THIRTY THOUSAND
(P30,000.00) PESOS with no subsidiary imprisonment in case of
insolvency.
In Crim. Case No. 6307 (2292) (sic) the Court finds the same
Adronico Gregorio GUILTY beyond reasonable doubt of having
committed Murder and hereby sentences him to another life
imprisonment and to indemnify the heirs of Marcelo Lo the sum
of THIRTY THOUSAND (P30,000.00) PESOS with no subsidiary
imprisonment in case of insolvency.
Further, the two (2) accused shall be credited with the full term of
their preventive confinement.
No cost.
SO ORDERED.[6]
Hence, this appeal.
In their brief, appellants raised the following errors, to wit:
I backward with chip fractured (sic) of the skull.
THE TRIAL COURT GRAVELY ERRED IN GIVING WEIGHT AND
CREDENCE TO THE THEORY OF THE PROSECUTION AND IN
DISREGARDING THAT OF THE DEFENSE.
II
THE TRIAL COURT GRAVELY ERRED IN REJECTING APPELLANTS
DEFENSE OF SELF-DEFENSE.
III
THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THERE EXIST
CONSPIRACY AND TREACHERY IN THE CASE AT BAR.
IV
THE TRIAL COURT GRAVELY ERRED IN FINDING BOTH THE
ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF
MURDER.[7]
However, before the Office of the Solicitor General could file
its Appellees Brief, appellant Ricardo Gregorio died on December
12, 1993. Consequently, his criminal liability as well as his civil
liability based solely thereon is extinguished.[8] Evidently, this
appeal will proceed only with respect to appellant Adronico
Gregorio.
After a careful perusal and evaluation of the case, this court
is not inclined to disturb the findings and conclusion of the court
below, there being no cogent reason therefor. For, aside from the
well-settled rule that the factual findings of the trial judge who had
the opportunity to observe the demeanor of the witnesses and
assess their credibility is entitled to the highest degree of
respect,[9] there appears to be no strong reason to depart from the
said doctrine since the decision is fully supported by the evidence
on record.
Appellant Adronico Gregorio interposed self-defense to
exculpate himself from criminal liability. However, the trial court,
skeptic of the said plea, rejected the same, reasoning that
appellant failed to establish self-defense by clear and convincing
evidence. We agree. In numerous cases decided by this Court, the
guiding jurisprudential principle has always been that when an
accused invokes the justifying circumstance of self-defense, the
burden of proof is shifted to him to prove the elements of that
claim; otherwise, having admitted the killing, conviction is
inescapable.[10] Concomitantly, he must rely on the strength of his
own evidence and not on the weakness of the
prosecution.[11] Having admitted the killing, appellant has to justify
his taking of a life by the exacting standards of the law.
It is axiomatic 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.[12]
In the case at bench, appellants claim of self-defense must
fail. For one, the physical evidence tells us a different story. Dr.
Emmanuel Boado, the medico-legal officer who conducted the
autopsy on the cadavers of Carlos Catorse and Marcelo Lo,
submitted the following post-mortem reports and attested to the
veracity and authenticity of the same, thus:
Cadaver of Carlos Catorse:
EXTERNAL FINDINGS:
1. Hack wound 5 inches bong, left temporal going
2. Hack wound 8 inches long, from the base of the left
Nose, going backward below the left ear.
3. Hack wound 7 inches long, neck left side going
backward with complete chip fractured (sic) of the
fourth vertebrae cutting blood vessels.
4. Stab wound 2 inches wide, 4 inches deep anterior
abdomen, below the 10th rib, left side.
5. Stab wound 1 1/2 inches wide, 4 inches deep at the
side of the navel left.
6. Hack wound, base of the palm, 3 inches bong
posterior side, cutting bones.
7. Hack wound, cutting left small finger.
8. Hack wound, 3 inches bong upper 3rd right forearm
running anteroposteriorly, chip fracture of bones.
9. Hack wound left shoulder back 4 inches bong going
downward with chip fracture of the shoulder joint.
10. Hack wound 5 inches long posteriorly left joint with
chip fracture of the bones.
11. Hack wound 3 inches long posteriorly forearm
below the elbow joint chip fracture of the bones.
12. Hack wound 3 inches long middle 3rd forearm,
posterior surface, with chip fracture of the bones.
13. Stab wound 4 inches wide left back level of the 11th
embracio rib, back side through and through of the
level of 12th rib right.
14. Hack wound 2 1/2 inches bong with chip fracture of
the 11th lobar vertebrae.
 15. Hack wound middle right arm posterior side 4
inches long with chip fracture of bone.
16. Stab wound 1 inch wide hitting the vertebral bones,
5th thoracic vertebrae.
INTERNAL FINDINGS:
1. Stab wound, liver, large intestine, small intestine
2. Massive abdominal bleeding.
CAUSE OF DEATH:
Cardio Respiratory Arrest due to Multiple hack and Stab
wounds.[13]
Cadaver of Marcelo Lo:
EXTERNAL FINDINGS:
1. Hack wound 6 inches long left temporal area going
occiput, chip fracture skull.
2. Hack wound, left face going back ward base of the
skull, brain tissue coming out, with chip fracture of
the skull.
3. Hack wound, right 4 inches long right back cutting the
scapular bones.
4. Hack wound 6 inches long, with chip fracture of the
Vertebrae bones.
5. Hack wound 4 inches long cutting the 1st thoracic rib;
scapular bones.
6. Hack wound 4 inches long, below the left scapular
bones, cutting ribs.
INTERNAL FINDINGS:
1. Cerebral Hemorrhage, Massive
2. Thoracic Hemorrhage, Massive
CAUSE OF DEATH:
Cardio Respiratory Arrest due to multiple hack wounds.[14]
If Adronico Gregorio and Ricardo Gregorio stabbed Carlos Catorse
and Marcelo Lo merely to defend themselves, it certainly defies
reason why they had to inflict sixteen stab wounds on Carlos and
six on Marcelo. The location, number and gravity of the wounds
inflicted on the victims belie the appellants contention that they
acted in self-defense.[15] The rube is settled that the nature and
extent of the wounds inflicted on a victim negate an accuseds
claim of self-defense.[16]
The futility of invoking self-defense is likewise revealed in the
testimonies of accused Ricardo Gregorio and appellant Adronico
Gregorio. Ricardo Gregorio testified that at around 9:00 oclock in
the evening of May 7, 1986, Carlos Catorse suddenly kicked, from
the outside, the front door of the house of Adronico, then ran
towards Eduardo (nephew of Ricardo) and boxed the latter; that
he intervened to pacify Carlos but the latter drew his samurai and
attempted to attack him and Eduardo; that he grappled for
possession of the samurai and was able to turn its point back to
Carlos who was hit in the stomach and then fell on the ground;
and thereafter he left the victim, then went home.[17]
On his part, appellant Adronico Gregorio declared that at the
same time his son, Eduardo, and brother, Ricardo, were being
attacked by Carlos, he was in the kitchen preparing food for the
people attending the wake of his grandson; that suddenly Marcelo
Lo and Jovito Nicavera destroyed the bamboo walls of his kitchen,
entered threat and assaulted him; that Marcelo attacked him with
a bob but he was able to parry the latters hand and the bolo
instead landed and struck the wooden rail of the kitchen sink; that
Jovito in turn pointed a gun at him but without wasting time, he
dislodged the bolo from the wooden rail of the sink and slashed
Jovitos hand; that because of the injury sustained, Jovito dropped
the gun and ran out of the house; that he turned to Marcelo and
struck him with a bolo until the latter fell outside of the kitchen;
and that he never knew what happened next to Marcelo until the
following morning when he learned that the latter died. [18]
Not only are the foregoing declarations incredible and
incredulous but are innately false and fatuous.
By making said allegations, appellant and deceased accused
would want to impress upon this Court that both were able to
inflict only a single stab wound on deceased Carlos Catorse and
Marcelo Lo. Curiously, however, none of their empty claims could
explain the physical evidence and findings of the autopsy reports
that Carlos Catorse sustained a total of 16 hack and stab wounds
while Marcelo Lo, 6 mortal hack wounds.[19] Moreover, the
prosecution witnesses were unanimous in their declaration that it
was the appellant and his brother Ricardo who started the
skirmish. There was no unlawful aggression on the part of Carlos
Catorse who only wanted to help pacify Adronico nor on Marcelo
Los part, who was only trying to flee from the melee when he was
attacked and hacked to death. Likewise extant from the records is
the absence of any act on the part of the victims giving sufficient
provocation for the attack.
Likewise telling is the fact that appellant and his brother fled
from their homes soon after the incident instead of reporting the
matter to the police. Their flight negates self-defense and
indicates guilt.[20] As we have repeatedly held, flight evidences
guilt and a guilty conscience; the same strongly indicates a guilty
mind and betrays the existence of a guilty conscience.[21]
Appellant also challenges the court a quos finding that there
was conspiracy between him and his brother Ricardo. Conspiracy
exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit
it.[22] However, direct proof is not essential to prove
conspiracy,[23] as it may be deduced from the mode and manner in
which the offense was perpetrated, or inferred from the acts of
the accused.[24] Where the acts of the accused collectively and
individually demonstrate the existence of a common design
towards the accomplishment of the same unlawful purpose,
conspiracy is evident, and regardless of the fact, the perpetrators
will be liable as principals.[25]
In the case at bench, although there is no proof as to a
previous agreement by the assailants to commit the crime
charged, conspiracy is evident from the manner of its
perpetration.[26] After Ricardo lunged at Carlos with a samurai
from behind several times, Adronico attacked him in turn with a
bolo. Likewise, appellants successively hacked Marcelo using the
weapons they used against Carlos. The incident happened in split
seconds, so to speak. Under the circumstances, it is evident that
Adronico and Ricardo acted in unison and cooperated with each
other towards the accomplishment of a common felonious
objective. In People v. Regalario[27] cited in People v. Lopez,[28] we
held:
An indicium of conspiracy is when the acts of the accused are
aimed at the same object, one performing one part and another
performing another part so as to complete it with a view to the
attainment of the same object, and their acts though apparently
independent were in fact concerted and cooperative, indicating
closeness of personal association, concerted action and
concurrence of sentiments. The evidence need not establish the
actual agreement which shows the pre-conceived plan, motive,
interest, or purpose in the commission of the crime; conspiracy is
shown by the coordinated acts of the assailants.[29]
Certainly, there was conspiracy between the brothers Adronico
and Ricardo, and it was not necessary to prove a previous
agreement to commit the crime since from their overt acts, it was
clear that they acted in concert in the pursuit of their unlawful
design or common goal which was to kill the victims.[30]
We agree with the trial court that the aggravating
circumstance of treachery (alevosia) may be appreciated against
the appellants.Treachery exists when an offender commits any of
the crimes against persons, employing means, methods or forms
in the execution thereof which tend to directly and specially insure
its execution, without risk to himself arising from the defense
which the offended party might make.[31] In this case, it was clearly
established that Ricardo stealthily stabbed Carlos from behind,
and repeatedly hacked him in different parts of his body, with a
samurai. As Carlos fell to the ground, Adronico followed suit,
repeatedly hacking the victim with a bolo. Though the assault
upon Marcelo was preceded by appellants assault upon Carlos and
Jovito, the incident happened in a span of seconds only.Terrified
by what he witnessed, Jovito Nicavera tried to run out of the house
but Adronico hacked him instead. Instinctively, Marcelo Lo came
to help his uncle Jovito but Ricardo followed by Adronico hacked
him using the same samurai and bob they used against
Carlos.Defenseless and severely wounded Marcelo tried to run but
Adronico finished him off by more mortal hacks. From all
indications, the mode of attack adopted by the appellant and his
brother qualifies the killing to murder as the same rendered the
victims who were unarmed at that time defenseless and helpless,
without any opportunity to defend themselves from their
assailants unreasonable and unexpected assault.The attack was
sudden and was specially employed by the assailants to insure the
execution of the said crime without risk to themselves arising from
the defense which the victims might make.
Indeed, the use against Carlos Catorse and Marcelo Lo of the
samurai and bolo, both deadly weapons, the traitorous manner in
which they were assaulted, and the number of wounds inflicted
on them, all demonstrate a deliberate, determined assault with
intent to kill.Appellant is guilty of murder.
Some last notes. The fallo of the assailed decision sentences
the appellant to suffer the penalty of life imprisonment and to
indemnify the heirs of Carlos Catorse and Marcelo Lo the sum of
P30.000.00 each. The correct penalty, however, should
be reclusion perpetua in accordance with Article 248 of the
Revised Penal Code. As we have held time and again, life
imprisonment and reclusion perpetua are different and distinct
from each other. In People v. Ruelan,[32] we outlined the
distinction thusly:
As noted from the dispositive portion of the assailed
decision, the trial court imposed the penalty of life imprisonment
for the crime of murder. Evidently, the said court failed to
appreciate the substantial difference between Reclusion
Perpetua under the Revised Penal Code and Life Imprisonment
when imposed as a penalty by special law. These two penalties are
different and distinct from each other. Hence, we would like to
reiterate our admonition in the case of People v. Penillos, likewise
quoted under Administrative Circular No. 6-A-92 amending
Administrative Circular No. 6-92 dated October 12, 1992 re: the
correct application of the penalties of reclusion perpetua and life
imprisonment, thus:
As noted from the dispositive portion of the challenged
decision, the trial court imposed the penalty of reclusion
perpetua or life imprisonment. Evidently, it considered the batter
as the English translation of the former, which is not the case. Both
are different and distinct penalties. In the recent case of People v.
Baguio, this Court held:
The Code does not prescribe the penalty of life imprisonment for
any of the felonies therein defined, that penalty being invariably
imposed for serious offenses penalized not by the Revised Penal
Code but by special laws. Reclusion perpetua entails
imprisonment for at least thirty (30) years after which the convict
becomes eligible for pardon, it also carries with it accessory
penalties, namely: perpetual special disqualification, etc. It is not
the same as life imprisonment which, for one thing, does not carry
with it any accessory penalty, and for another, does not appear to
have any definite extent or duration.
As early as 1948, in People vs. Mobe, reiterated in People vs.
Pilones, and in the concurring opinion of Justice Ramon Aquino
in People vs. Sumadic, this Court already made it clear
that reclusion perpetua, is not the same as imprisonment for life
or life imprisonment. Every judge should take note of the
distinction and this Court expects that, henceforth, no trial judge
should mistake one for the other.[33]
Finally, conformably with the stated policy of this Court and
pursuant to People v. Sison,[34] the civil indemnity for the death of
a victim is increased to P50,000.00. Consequently, the heirs of
Carlos Catorse and Marcelo Lo are entitled to P50,000.00 each.
WHEREFORE, except for the modification that appellant
Adronico Gregorio is to suffer the penalty of reclusion
perpetua and to indemnify the heirs of Carlos Catorse and Marcelo
Lo the sum of P50,000.00 each, the judgment appealed from is
hereby AFFIRMED in all respects. As aforestated, the death of
Ricardo Gregorio extinguished both his criminal and civil liability
arising from said crime.
SO ORDERED.
Padilla (Chairman), Bellosillo, Vitug, and Hermosisima, Jr.,
JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-56358 October 26, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LUIS B. TORING DIOSDADO BERDON and CARMELO B.
BERDIN, accused-appellants.
The Solicitor General for plaintiff-appellee.
Fil C. Veloso counsel de oficio for Luis B. Toring.
Joel P. Alino for Berdon and Berdin.
FERNAN, C.J.:
The appellants herein seek the reversal of the October 28, 1980
decision of the Circuit Criminal Court in Cebu City in Criminal Case
No. CCC-XIV-2170, the dispositive portion of which reads:
WHEREFORE, the Court finds the accused Luis B. Toring guilty
beyond reasonable doubt of the crime of MURDER by direct
participation as principal; Diosdado Berdon as accomplice thereto;
and Carmelo Berdin as accessory after the fact.
Appreciating in favor of the accused Luis B. Toring the mitigating
circumstance of voluntary surrender, the said circumstance having
been offset by the aggravating circumstance of nighttime, the
accused Luis Toring should be, as he is, hereby sentenced to the
penalty of RECLUSION PERPETUA, with the accessory penalties of
law.
There being neither mitigating nor aggravating circumstances on
the part of the accused Diosdado Berdon, the said accused should
as he is hereby sentenced to the indeterminate penalty of from
SIX (6) YEARS of Prision Correccional, as minimum, to TWELVE (12)
and ONE (1) DAY of ReclusionTemporal, as maximum, with the
accessory penalties of the law.
Appreciating in favor of the accused Carmelo Berdin, the
privileged mitigating circumstance of minority, the said accused
being only 17 years of age, the accused Carmelo Berdin should be,
as he is, sentenced to the penalty of SIX (6) MONTHS and ONE (1)
DAY of Prision Correccional, with the accessory penalties of the
law.
The defendants shall jointly and solidarily indemnify the heirs of
the deceased Samuel Augusto for actual and compensatory
damages in the sum of P15,000.00 and for moral damages in the
sum of P50,000.00, without subsidiary imprisonment in case of
insolvency.
The instrument of the crime, the knife, Exhibit "B", is confiscated
in favor of the government.
Proportionate costs.
SO ORDERED. 1
According to the prosecution, the antecedent facts are as follows:
In the evening of May 25, 1980, a benefit dance was held at sitio
Naga, Babag II, Lapu-lapu City for the last canvassing of votes for
the candidates for princesses who would reign at the sitio fiesta.
As one of the candidates was the daughter of Samuel Augusto, he
and the members of his family attended the affair.
Also present were members of the kwaknit gang, a group which
was noted for their bird-like way of dancing and their propensity
for drunkenness and provoking trouble. Its president, called the
"alas" king, was Luis Toring. The group was then outside the
dancing area which was ringed by benches.
At around 10:45 p.m., Samuel's daughter was proclaimed the
winner in the contest. Beer and softdrinks having been served the
parents of the candidates by the officers of the Naga Chapel
Association which took charge of the affair, Samuel was tipsy
when, after his daughter's proclamation, he stepped out of the
dancing area to answer the call of nature.
At that moment, barangay tanod Felix Berdin saw Luis Toring,
Carmelo Berdin and Diosdado Berdon proceed to a dark area while
whispering to each other. Diosdado Berdon handed a knife to Luis
Toring, 2 who then approached Samuel from behind, held
Samuel's left hand with his left hand, and with his right hand,
stabbed with the knife the right side of Samuel's abdomen. 3 Upon
seeing Felix running towards them, Luis Toring pulled out the knife
and, together with Carmelo Berdin and Diosdado Berdon, ran
towards the dark. Felix tried to chase the three but he was not able
to catch them. He returned to where Samuel had slumped and
helped others in taking Samuel to the hospital.
According to Maria Catalina Sorono, who was six (6) meters away
from Samuel and Luis when the assault occurred, Diosdado
Berdon and Carmelo Berdin were poised to deliver fist blows on
Samuel just before Luis Toring stabbed him. Diosdado gave the
knife to Luis Toring. 4
As soon as she saw the stabbing of Samuel, Maria Catalina shouted
for help. The three assailants ran towards the direction of the
fields. Jacinto Lobas and Mario Andog responded to her shouts
and brought Samuel to the Opon Emergency Hospital where he
died on arrival. According to the necropsy report, 5 Samuel, who
was thirty years old, died due to massive hemorrhage secondary
to the stab wound on the abdomen. Said wound is described in
the report as follows:
Stab wound, with herniation of omental issues; elliptical, 3.5 cms.
long, running vertically downward, edges clean-cut, superior
extremity rounded, inferior extremity sharp, located at the
abdominal region, right anterior aspect, 7.5 cms. to the right of
anterior median line and 107.0 cms. above right heel, directed
backward, upward and medially, involving skin and the underlying
soft tissues, penetrating right peritoneal cavity, incising inferior
vena cava, attaining an approximate depth of 15.0 cms.
The death weapon, a kitchen knife made of stainless steel and with
a red-colored handle, was recovered from the house of Luis
Toring. According to Patrolman Pantaleon P. Amodia, the police
found out during the investigation that Luis Toring had left the
weapon with "Camilo" Berdin. When the police confronted
Berdin, the latter led them to the house of Toring which Berdin
entered. When he emerged from the house, Berdin handed the
weapon to the police. 6
An information for murder was filed against Toring. Subsequently,
however, the information was amended to include Diosdado
Berdon and Carmelo Berdin as defendants. The three were
charged therein with conspiracy in killing Samuel Augusto in a
treacherous manner. Berdon, it was alleged, "conveniently
supplied the death weapon" which Toring used in stabbing Samuel
while Berdin allegedly concealed the weapon to prevent its
discovery by the police. 7 The crime was purportedly committed
with the attendance of the generic aggravating circumstances of
evident premeditation and nighttime.
All three accused pleaded not guilty to the offense charged. At the
trial, Luis Toring, alias "Lowe," testified that he was not the
president of the kwaknit gang. He went to the benefit dance in the
company of Venir Ybaez, Joel Escobia, Ely Amion, Abel Pongase,
Abe Berdon, Genio Berdin and Alex Augusta. Toring and his group
were standing outside the dancing area when, at around eleven
o'clock in the evening, Samuel, a known tough guy ("maldito"),
approached them and held Venir Ybanez by his collar. Then
Samuel thrust the butt of his shotgun on the chin of Joel
Escobia, 8 proceeded to another group who were also gangmates
of Toring, and again, with the barrel of his shotgun, hit Eli Amion's
chest several times. 9
Reacting to what he saw, Toring got his kitchen knife which was
tucked in his waist, approached Samuel from the latter's right side
and stabbed him once as he did not intend to kill Samuel. Toring
then ran towards the dark portion of the area and went home.
There, he left the knife and proceeded to the hut by the fishpond
of one Roman. 10
Toring was sleeping in the hut with his older brother, Arsenio,
when, at around 4:00 o'clock in the morning of May 26, 1980,
Edgar Augusto, the younger brother of Samuel, shot them. Arsenio
was hit on the left leg and he stayed two months in the hospital
for the treatment of his wound. 11
At 2:00 o'clock in the afternoon of May 26, 1980, Toring
surrendered to two Philippine Constabulary soldiers.12 They
brought him to the police of Lapu-lapu City on May 28,
1980.13 When the police asked him about the knife he used in
stabbing Samuel, Toring told them to go to Carmelo Berdin
because he was the only person who knew where Toring hid
it. 14 Asserting that he was the one who returned the knife to his
own house, Toring testified that Carmelo Berdin used to see him
hide his weapons upstairs because Berdin was a frequent visitor
of his. 15
For his part, Carmelo, a 5 feet tall, asthmatic 17-year-old whom
the court described as "lilliputian," admitted that he witnessed the
stabbing incident but he ran away with his group immediately
after because he was afraid he might be shot by Samuel. He was
with Toring when the latter hid the still bloodied knife under a
trunk in Toring's house. He was familiar with the hiding place of
the knife because Toring showed it to him and there were times
when he would get the knife there upon Toring's request. Carmelo
corroborated Toring's testimony that on that fateful night, Toring
carried the knife tucked at the back of his waistline. 16
In court, Toring testified that he never saw Diosdado at the
dance. 17 However, in his sworn statement dated May 28, 1980
and marked as Exhibit D, Toring stated that he took the knife from
Diosdado to stab Samuel. Confronted with said statement,
Diosdado said that when he asked Toring why he implicated him,
Toring allegedly replied that he "included" Diosdado because of
the case the barangay brigade had filed against Toring. 18
According to Diosdado, he did not attend the May 25 dance
because of the trouble which erupted during the dance the night
before. He did not have anything to do with the stabbing of
Samuel. He admitted, however, that a week after the incident, his
family went to barrio Andaliw Ronda, Cebu, for their yearly visit to
his father-in-law. He stayed there for fifteen days and would have
stayed longer had not his mother informed him of the subpoena
addressed to him. 19
On October 28, 1980, a day after the last day of hearing, the lower
court 20 rendered a decision discrediting Toring's claim that the
killing of Samuel was justified because it was done in defense of a
stranger pursuant to Article 11 (3) of the Revised Penal Code. The
lower court found that Toring was the "aggressor acting in
retaliation or revenge by reason of a running feud or long-standing
grudge" between the kwaknit gang and the group of Samuel, who,
being the son of the barangay captain, was a "power to be
reckoned with." It mentioned the fact that a year before the
incident in question, Toring was shot by Edgar Augusto (Samuel's
brother) and hence, in his desire to avenge himself, Toring,
"needed but a little excuse to do away with the object of his
hatred. 21
The lower court could not believe that Samuel brought along his
shotgun to the dance because he was "not reputed to be a public
official or functionary entitled to possess a firearm." Otherwise,
the police and the barangay tanod would have arrested him. The
court surmised that if Samuel really carried a shotgun, he certainly
must have had a permit or license to possess the same.
It noted that while Toring testified that Samuel was aiming his
shotgun at the chest of Ely Amyon (Amion), prosecution witness
Joel Escobia claimed that he was at the receiving end of Samuel's
thrusts with the butt of his shotgun. To the court, such discrepancy
is fatal to the defense because in appreciating the justifying
circumstance of defense of a stranger, the court must know "with
definiteness the identity of the stranger defended by the
accused." 22
The lower court, however, ruled out the existence of conspiracy
among the three accused on the ground that there was no proof
on what they were whispering about when Felix saw them.
Accordingly, it held that the accused have individual or separate
liabilities for the killing of Samuel: Toring, as a principal, Diosdado
Berdon as an accomplice by his act of giving Toring the knife, and
Carmelo Berdin as an accessory for concealing the weapon. It
considered treachery as the qualifying circumstance to the killing,
found no proof as to allegation of evident premeditation but
appreciated nighttime as an aggravating circumstance. It meted
the accused the penalties mentioned above.
All three accused appealed.
Toring seeks his exoneration by contending that his assault on
Samuel was justified because he acted in defense of his first
cousin, Joel Escobia. Article 11 (3) of the Revised Penal Code
provides that no criminal liability is incurred by anyone "who acts
in defense of ... his relatives ... by consanguinity within the fourth
civil degree, provided that the first and second requisites
prescribed in the next preceding circumstance are present, and
the further requisite, in case the provocation was given by the
person attacked, that the one making defense had no part
therein." The first and second requisites referred to are
enumerated in paragraph (b) in the same article on selfdefense as:
(a) unlawful aggression, and (b) lack of sufficient provocation on
the part of the person defending himself.
Joel Escobia, whose chin was hit with the butt of Samuel's
shotgun, is the first cousin of Toring their fathers being
brothers, 23 although no explanation appears on record why they
have different surnames. At any rate, this allegation on
relationship was not rebutted by the prosecution.
The appreciation of the justifying circumstance of defense of a
relative, however, hinges in this case on the presence of unlawful
aggression on the part of the victim. Corollarily, the claim of Toring
that Samuel was, at the time of the assault, carrying a shotgun to
intimidate Toring's group must be proven.
Understandably, no prosecution witness attested that they saw
Samuel with a firearm. The prosecution even recalled to the
witness stand Samuel's widow who asserted that her husband did
not own any firearm. 24 Going along with the prosecution's
evidence, the lower court arrived at the rather gratuitous
conjecture that Samuel could not have had a shotgun with him
because no one without a permit would carry a firearm without
risking arrest by the police or the barangay tanod. At the same
time, however, the lower court described Samuel as the son of the
barangay captain who "had the run of the place and had his
compelling presence felt by all and " sundry." 25
While matters dealing with the credibility of witnesses and
appreciation of evidence are primarily the lower court's province,
this Court has the power to determine whether in the
performance of its functions, the lower court overlooked certain
matters which may have a substantial effect in the resolution of a
case. 26 Defense witness Joel Escobia was, besides Toring, the only
witness whose sworn statement was taken by the police on May
26, 1980, the day after the fatal assault on Samuel.
In his sworn statement, 27 Escobia attested that as he was about
to dance with a girl, Samuel stopped him, pointed his shotgun at
him, took a bullet from his jacket pocket, showed it to Escobia and
asked him, "Do you like this, Dong?" to which Escobia replied, "No,
Noy I do not like that." Samuel then placed the bullet in the
shotgun and was thus pointing it at Escobia when Toring came
from behind Samuel and stabbed the latter. Even on cross-
examination at the trial, Escobia did not depart from his
statement. In fact he added that Samuel pointed the shotgun at
his chin and told him to eat the bullet. 28
There is no reason to doubt Joel Escobia's assertion of Samuel's
unlawful aggression inasmuch as his sworn statement 29 and
testimony in court had not been successfully discredited by the
prosecution which also failed to prove that Joel had reason to
prevaricate to favor Toring.
The presence of unlawful aggression on the part of the victim and
the lack of proof of provocation on the part of Toring
notwithstanding, full credence cannot be given, to Toring's claim
of defense of a relative. Toring himself admitted in court 30 as well
as in his sworn statement 31 that in 1979, he was shot with a .22
caliber revolver by Edgar Augusto, Samuel's brother. It cannot be
said, therefore, that in attacking Samuel, Toring was impelled by
pure compassion or beneficence or the lawful desire to avenge the
immediate wrong inflicted on his cousin. Rather, he was
motivated by revenge, resentment or evil motive 32 because of a
"running feud" between the Augusto and the Toring brothers. As
the defense itself claims, after the incident subject of the instant
case occurred, Toring's brother, Arsenio, was shot on the leg by
Edgar Augusto. Indeed, vendetta appears to have driven both
camps to commit unlawful acts against each other. Hence, under
the circumstances, to justify Toring's act of assaulting Samuel
Augusto would give free rein to lawlessness.
The lower court correctly considered the killing as murder in view
of the presence of the qualifying circumstance of treachery. The
suddenness of the assault rendered Samuel helpless even to use
his shotgun. We also agree with the lower court that conspiracy
and evident premeditation were not proven beyond reasonable
doubt. Moreover, nighttime cannot be considered as an
aggravating circumstance. There is no proof that it was purposely
sought to insure the commission of the crime or prevent its
discovery. 33 However, Toring should be credited with the
privileged mitigating circumstance of incomplete defense of
relative and the generic mitigating circumstance of voluntary
surrender.
The penalty for murder under Article 248 of the Revised Penal
Code being reclusion temporal maximum to death, the imposable
penalty is prision mayor maximum to reclusion temporal medium
in view of the presence of the mitigating circumstances of
incomplete defense of relative and voluntary surrender (Art. 64
[5]). Applying the Indeterminate Sentence Law, the proper penalty
to be meted on Toring is prision correctional maximum as
minimum to prision mayor maximum as maximum penalty.
On the culpability of Diosdado Berdon, the Court holds that his
defense of alibi cannot be sustained in the absence of proof that
it was physically impossible for him to be at the scene of the crime
when it was committed. 34 His house was only a kilometer away
from the place where he supplied the knife to Toring. 35 That
distance does not preclude the possibility that Diosdado aided
Toring in the perpetration of the crime as it could be negotiated in
just a few minutes by merely walking. 36 Moreover, his alibi was
uncorroborated as it was founded only on his own testimony and
what appears as a self-exonerating affidavit. 37
But what pins culpability on Diosdado were the testimonies of at
least two prosecution witnesses who positively identified him as
the one who gave Toring the knife. Motive, therefore, has become
immaterial in the face of such positive identification 38 and hence,
even if it were true that he was not a member of the kwaknit gang,
his participation in the killing has been proven beyond reasonable
doubt. Added to this is the fact that Toring himself in his sworn
statement before the police pointed to him as the source of the
knife. 39 Verily, Toting could not have implicated him because of
the incomprehensible reason that a case had been filed against
Toring before the barangay brigade.
Pursuant to Article 52 of the Revised Penal Code, as an accomplice
by his previous act of supplying Toring the death weapon,
Diosdado Berdon should be meted the penalty of prision
mayor maximum to reclusion temporalmedium which is the
penalty next lower in degree to reclusion temporal maximum to
death, the penalty prescribed for murder by Article 248 (Article 6
[3]). There being no mitigating or aggravating circumstances, the
penalty should be in its medium period or reclusion
temporal minimum (Article 64 [1]). Applying the Indeterminate
Sentence Law, the minimum penalty should be taken from prision
mayor minimum while the maximum penalty should be within the
period of reclusion temporal minimum.
With regards to Carmelo Berdin, his culpability as an accessory to
the murder has not been proven beyond reasonable doubt. The
fact that he knew where Toring hid the knife does not imply that
he concealed it to prevent its discovery (Article 19 [2]). There
simply is no proof to that effect. On the contrary, Luis Toring in his
sworn statement and testimony during the trial testified that after
stabbing the victim, he ran away and went to his house to hide the
murder weapon. Being a close friend of Toring and a frequent
visitor to the latter's house, it is not impossible for Carmelo Berdin
to know where Toring hid his knives. Significantly, Carmelo readily
acceded to the request of police officers to lead them to the place
where Toring kept the knife. He willingly retrieved it and
surrendered it to the police, a behavior we find inconsistent with
guilt.
WHEREFORE, the decision of the lower court is hereby affirmed
insofar as it convicts Luis Toring as principal in the murder of
Samuel Augusto and Diosdado Berdon as an accomplice thereto.
The lower court's decision is modified as follows:
(a) Luis Toring shall be imposed the indeterminate penalty of six
(6) years of prision correccional maximum as minimum to twelve
(12) years of prision mayor maximum as maximum;
(b) Diosdado Berdon shall suffer the indeterminate penalty of six
(6) years and one (1) day of prision mayorminimum as minimum
to twelve (12) years and one (1) day of reclusion
temporal minimum as maximum;
(c) Carmelo Berdin is acquitted as an accessory to the murder of
Samuel Augusto, and
(d) Luis Toring and Diosdado Berdon shall jointly and severally pay
the heirs of Samuel Augusto an indemnity of thirty thousand pesos
(P30,000.00). Costs against appellants Toring and Berdon.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-60159 November 6, 1989
P/CPL. FAUSTO ANDAL, petitioner,
vs.
SANDIGANBAYAN AND PEOPLE OF THE
PHILIPPINES, respondents.
Eugenio E. Mendoza and Wenceslao G. Laureta for petitioner.
PADILLA, J.:
The petitioner, Fausto Andal, a member of the Batangas
Integrated National Police, has appealed to this Court the decision
* of the Sandiganbayan in Criminal Case No. 2521 which found him
guilty of the crime of Homicide and sentenced him to suffer the
penalty of one (1) year of prision correccional; to indemnify the
heirs of the victim in the amounts of P12,000.00 and P20,000.00,
as moral damages; and to pay the costs.
In his petition for review, the petitioner alleges that the
Sandiganbayan erred in rejecting his plea of self-defense, on the
ground that the initial unlawful aggression on the part of the
victim ceased after the petitioner had disarmed him.
We find no merit in the petition for it raises only factual issues.
The record of this case shows that the herein petitioner, Fausto
Andal, then a corporal in the Batangas Integrated National Police,
whose duty shift was from 4:00 o'clock in the afternoon to 12:00
o'clock midnight, was on patrol aboard a tricycle driven by Police
Pfc. Casiano Quinio in the evening of 25 September 1980. At about
7:00 o'clock that night, he went to the pier located at Sta. Clara,
Batangas City, to check on one of his men, Pfc. Maximo Macaraig,
who was stationed there, because the said Macaraig had failed to
report to police headquarters for briefing.
Upon reaching the police checkpoint at the pier, and upon seeing
Macaraig, petitioner asked Macaraig why he did not pass by police
headquarters for briefing before proceeding to his post. Macaraig
replied that he did not have to report to police headquarters since
he already had his orders. Sensing trouble, Quinio drove away his
tricycle. Macaraig, however, followed them and told the
petitioner: "You report, supsup, ka." Petitioner kept his cool and
did not say anything. But, Quinio went to Macaraig to pacify him.
Thereafter, petitioner and Quinio went back to the poblacion of
Batangas City.
At about 11:00 o'clock that night, petitioner and Quinio parked
their vehicle in front of the Philbanking Building at P. Burgos
Street, Batangas City. Quinio alighted from the tricycle and joined
Pat. Andres Perez and Pat. Pedro Banaag who were seated on a
bench. The petitioner also alighted from the tricycle and stood at
the sidewalk near the bench. After a few minutes, Macaraig
arrived and went straight to the petitioner. He was furious this
time and demanded why the petitioner had embarrassed him in
front of so many people. The petitioner denied the charge and
called Quinio to clear up matters with Macaraig. Quinio told
Macaraig that the petitioner did not utter defamatory words
against him and asked him to forget the incident. ("Pasensiyahan
na kayo, hindi kayo magkakaiba.") Macaraig did not say anything.
But, he returned to the petitioner and challenged him. Quinio
again tried to pacify Macaraig and brought him across the street.
Still, Macaraig refused to be pacified and went to the petitioner
with a drawn gun in his hand.
Pointing the gun menacingly at the petitioner, Macaraig said:
"Bumunot ka bumunot ka." Petitioner, however, refused to fight,
saying: "I cannot fight you because we are both policemen"
Macaraig, nevertheless, fired his gun pointblank at the petitioner,
hitting the latter in the middle aspect, lower right knee. Petitioner
then lunged at Macaraig and they grappled for possession of the
gun. Petitioner was able to wrest the gun from Macaraig.
Thereafter, two (2) successive shots were fired and Macaraig fell
to the ground. He was brought to the hospital but he was dead on
arrival.
The factual issue hinges on what transpired after the petitioner
had wrested the gun from the deceased until the two (2) shots
were fired, which caused the death of Macaraig. The findings of
respondent court on this factual issue are to this effect:
The pivotal question is: Was there an appreciable time lapse
between the first aggression, i.e. when deceased shot accused on
his knee and the time accused resorted to force by way of firing
the two shots at the deceased? The facts unfolded indicate that
there was. This is what happened after accused had grabbed the
gun: (1) He asked deceased, "Why did you fire at me?" (2) He even
turned bis head towards his son and instructed him just to stay in
the jeep. (3) His son, Domingo Andal, challenged deceased to a
fight "Sportsman like." (4) Deceased moved backward 2 meters
away from accused. (5) Pfc. Quinio even thought the trouble was
over as he started to get his tricycle. 1
The petitioner contends that after he had taken possession of' the
gun from Macaraig, the latter tried to grab the gun back and, in
the scuffle, the gun went off twice, hitting the deceased. But, this
claim was not given credence by the respondent court which said:
The theory of the defense that the two shots were fired while
accused and deceased were grappling for the possession of the
gun, is fictitious. When Pat. Perez heard the two shots, deceased
was "more or less" two meters from the accused (p 38, TSN
sess. i.d.) This jibes with the testimony of Pat. Quinio that after
accused had wrested the gun from deceased, the latter
"somewhat backout" (p. 76, TSN sess. i.d.) More important,
immediately after the two shots, accused was holding the gun
with his right hand and as demonstrated in Court, said "right hand
stretched downward" (. p. 77, TSN sess. i.d.). This demonstration
is given credence by corroborative physical evidence. According to
Dr. Luis Aclan who examined the body of deceased, the trajectory
of the bullet was downward (see Exh. "B-l") with the right armpit
(No. 3) as the point of entrance and the back of the body the point
of exit (No. 5). The other slug had its point of entrance at No. 2 in
Exhibit "B-l." 2
In its resolution, denying the petitioner's motion for
reconsideration of the decision, the respondent court also said:
It cannot be correctly held, to quote the words of accused in his
motion, that 'it was precisely when the two protagonists were
grappling for the possession of the gun that the two shots were
suddenly fired resulting to the fatal wounding of the deceased'.
This would be contrary to the testimony of Pat. Perez, a witness
whose credibility the defense does not impugn. According to Pat.
Perez, deceased was 'more or less' two meters from the accused
when he heard two gun shots. Immediately after they were fired,
this witness looked at the direction where they came from. He saw
accused holding a gun with his right hand stretched downward. xxx xxx xxx
Under such scenario with a distance of two meters apart and the It is evident that accused was acting in the performance of his duty
hand of accused holding the gun stretched downward it is clear as supervisor of deceased and policemen when the events that led
that deceased and accused were not grappling for the possession to the shooting occurred. His attempt to discipline his men was
of the gun at the time the two shots were fired . 3 resented by deceased who was one of them. Such attitude did not
In a petition for review under Rule 45 of the Rules of Court and diminish with the passage of hours; instead, deceased's rage
Section 7 of P.D. 1610 creating the Sandiganbayan, the factual heightened to violence. He not merely uttered verbal insults to his
findings of the Sandiganbayan are entitled to great respect and superior but actually drew his gun and shot him. Fortunately, the
only questions of law may be raised in the Supreme Court. 4 latter overpowered deceased. Unfortunately, accused did not
Moreover, well settled is the rule that when the resolution of a stop at that point. He used unnecessary violence against the
factual issue hinges on the credibility of witnesses, the findings of defenseless person of the deceased. Thus, he exceeded the limits
fact of the trial court will not be disturbed, unless it has plainly of his authority. 9
overlooked certain facts of substance and value which, if Article 69 of the Revised Penal Code vests discretion to [sic] the
considered, mights affect the result of the case. Herein petitioner court in lowering the penalty either by one or two degrees
failed to demonstrate that his case falls under the exception which whenever incomplete justifying circumstance exists in a given case
would justify this Court to overturn the findings of fact of the trial like the case at bar. The laudable patience of accused in not
court, as heretofore cited and summarized thus retaliating despite repeated insults by a subordinate, his length of
Stated briefly, the initial illegal aggression staged by deceased had service in the government (since 1957), and most important, his
ceased after he was disarmed by accused. By then, accused a taller obsession to inculcate discipline in his men, to OUR mind, entitle
and bigger man than deceased had the upperhand. He was in accused to a two-degree reduction of the penalty prescribed by
possession of the gun of deceased while the latter was unarmed. law. Our attitude is a signal to the men in uniform that while WE
In fact, it was probably because of this circumstance that deceased condemn felonious violence WE support efforts to maintain
moved backward. Aside from accused, his son who dared to fight discipline in the service. 10
deceased was there, not to say Pat. Perez and Quinio all under his WHEREFORE, the petition is hereby DENIED and the decision of
supervision. Patently, there was no further threat to the life and the respondent Sandiganbayan is AFFIRMED. With costs.
limb of accused. SO ORDERED.
Absent the element of unlawful aggression, there is no self-
defense complete (Art. II, par. 1) or incomplete (Art. 13, par. 1,
RPC). 5
We agree with the Sandiganbayan that the petitioner failed to
prove the defense he had raised. The primordial requisite of self-
defense is unlawful aggression. And for unlawful aggression to be
present, there must be a real danger to life or personal safety. In
the instant case, there was no imminent and real danger to the life
or limb of the petitioner when he shot the deceased, since the
latter had already been disarmed. As former Chief Justice Aquino
states in his book on Criminal Law:
In order to justify self-defense, it is essential that the attack upon
defendant be simultaneous with the killing, or preceded the latter
without an appreciable interval of time. (Ferrer, 1 Phil. 56),
xxx xxx xxx
The harm caused by one person to another who offended or
caused him injury, sometime after he suffered such offense or
such injury, does not constitute an act of self-defense, but an act
of revenge. (Banzuela 31 Phil. 564).6
In imposing on the appellant the penalty of just one (11) year
of prision correccional, the respondent Court held (which we here
affirm):
In People vs. Oanis and Galanta (74 Phil. 257), the court set forth
two requisites in order that fulfillment of duty and exercise of a
right 7 may be considered as justifying circumstance, namely: (a)
that the offender acting [sic] in the performance of a duty or in the
lawful exercise of a right; and (b) that the injury or offense
committed be the necessary consequence of the due performance
of such duty or in the lawful exercise of such right or office. If one
is absent, accused is entitled to the privileged mitigating
circumstance of incomplete fulfillment of duty or lawful exercise
of right or office. 8
G.R. No. 125059 March 17, 2000
FRANCISCO T. SYCIP, JR., petitioner, vs. COURT OF APPEALS and
PEOPLE OF THE PHILIPPINES, respondents.
QUISUMBING, J.:
For review on certiorari is the decision of the Court of Appeals,
dated February 29, 1996, in CA-G.R. CR No. 15993, which affirmed
the judgment of the Regional Trial Court of Quezon City, Branch
95, in Criminal Cases Nos. Q-91-25910 to 15, finding petitioner
guilty beyond reasonable doubt of violating B.P. Blg. 22, the
Bouncing Checks Law.
The facts in this case, as culled from the records, are as follows:
On August 24, 1989, Francisco T. Sycip agreed to buy, on
installment, from Francel Realty Corporation (FRC), a townhouse
unit in the latter's project at Bacoor, Cavite.
Upon execution of the contract to sell, Sycip, as required, issued
to FRC, forty-eight (48) postdated checks, each in the amount of
P9,304.00, covering 48 monthly installments.
After moving in his unit, Sycip complained to FRC regarding
defects in the unit and incomplete features of the townhouse
project. FRC ignored the complaint. Dissatisfied, Sycip served on
FRC two (2) notarial notices to the effect that he was suspending
his installment payments on the unit pending compliance with the
project plans and specifications, as approved by the Housing and
Land Use Regulatory Board (HLURB). Sycip and 12 out of 14 unit
buyers then filed a complaint with the HLURB. The complaint was
dismissed as to the defects, but FRC was ordered by the HLURB to
finish all incomplete features of its townhouse project. Sycip
appealed the dismissal of the complaint as to the alleged defects.
Notwithstanding the notarial notices, FRC continued to present
for encashment Sycip's postdated checks in its possession. Sycip
sent "stop payment orders" to the bank. When FRC continued to
present the other postdated checks to the bank as the due date
fell, the bank advised Sycip to close his checking account to avoid
paying bank charges every time he made a "stop payment" order
on the forthcoming checks. Due to the closure of petitioner's
checking account, the drawee bank dishonored six postdated
checks. FRC filed a complaint against petitioner for violations of
B.P. Blg. 22 involving said dishonored checks.
On November 8, 1991, the Quezon City Prosecutor's Office filed
with the RTC of Quezon City six Informations docketed as Criminal
Cases No. Q-91-25910 to Q-91-25915, charging petitioner for
violation of B.P. Blg. 22.
The accusative portion of the Information in Criminal Case No. Q-
91-25910 reads:
That on or about the 30th day of October 1990 in Quezon City,
Philippines and within the jurisdiction of this Honorable Court, the
said accused, did then and there, willfully, unlawfully and
feloniously make, draw and issue in favor of Francel Realty
Corporation a check 813514 drawn against Citibank, a duly
established domestic banking institution in the amount of
P9,304.00 Philippine Currency dated/postdated October 30, 1990
in payment of an obligation, knowing fully well at the time of issue
that she/he did not have any funds in the drawee bank of (sic) the
payment of such check; that upon presentation of said check to
said bank for payment, the same was dishonored for the reason
that the drawer thereof, accused Francisco T. Sycip, Jr. did not
have any funds therein, and despite notice of dishonor thereof,
accused failed and refused and still fails and refused (sic) to
redeem or make good said check, to the damage and prejudice of
the said Francel Realty Corporation in the amount
aforementioned and in such other amount as may be awarded
under the provisions of the Civil Code.
CONTRARY TO LAW.1
Criminal Cases No. Q-91-25911 to Q-91-25915, with Informations
similarly worded as in Criminal Case No. Q-91-25910, except for
the dates, and check numbers2 were consolidated and jointly
tried.
When arraigned, petitioner pleaded "Not Guilty" to each of the
charges. Trial then proceeded.
The prosecution's case, as summarized by the trial court and
adopted by the appellate court, is as follows:
The prosecution evidence established that on or about August 24,
1989, at the office of the private complainant Francel Realty
Corporation (a private domestic corporation engaged in the real
estate business) at 822 Quezon Avenue, QC, accused Francisco
Sycip, Jr. drew, issued, and delivered to private complainant
Francel Realty Corporation (FRC hereinafter) six checks (among a
number of other checks), each for P9,304.00 and drawn pay to the
order of FRC and against Francisco's account no. 845515 with
Citibank, to wit: Check No. 813514 dated October 30, 1990 (Exh.
C), Check No. 813515 dated November 30, 1990 (Exh. D), Check
No. 813518 dated February 28, 1991 (Exh. E), Check No. 813516
dated December 30, 1990 (Exh. F), Check No. 813517 dated
January 30, 1991 (Exh. G) and Check No. 813519 dated March 30,
1991 (Exh. H), as and in partial payment of the unpaid balance of
the purchase price of the house and lot subject of the written
contract executed and entered into by and between FRC as seller
and Francisco as buyer on said date of August 24, 1989 (Exh. B,
also Exh. 1). The total stipulated purchase price for the house and
lot was P451,700.00, of which Francisco paid FRC in the sum of
P135,000.00 as down payment, with Francisco agreeing and
committing himself to pay the balance of P316,000.00 in 48 equal
monthly installments of P9,304.00 (which sum already includes
interest on successive monthly balance) effective September 30,
1989 and on the 30th day of each month thereafter until the
stipulated purchase price is paid in full. The said six Citibank
checks, Exhs. C thru H, as earlier indicated were drawn, issued, and
delivered by Francisco in favor of FRC as and in partial payment of
the said 48 equal monthly installments under their said contract
(Exh. B, also Exh. 1). Sometime in September 1989, the Building
Official's certificate of occupancy for the subject house a
residential townhouse was issued (Exh. N) and Francisco took
possession and started in the use and occupancy of the subject
house and lot.1wphi1.nt
When the subject six checks, Exhs. C thru H, were presented to the
Citibank for payment on their respective due dates, they were all
returned to FRC dishonored and unpaid for the reason: account
closed as indicated in the drawee bank's stamped notations on the
face and back of each check; in fact, as indicated in the
corresponding record of Francisco's account no. 815515 with
Citibank, said account already had a zero balance as early as
September 14, 1990 (Exh. 1-5). Notwithstanding the fact that FRC,
first thru its executive vice president and project manager and
thereafter thru its counsel, had notified Francisco, orally and in
writing, of the checks' dishonor and demanded from him the
payment of the amount thereof, still Francisco did not pay or make
good any of the checks (Exhs. I thru K). . .3
The case for the defense, as summarized also by the trial court and
adopted by the Court of Appeals, is as follows:
The defense evidence in sum is to the effect that after taking
possession and starting in the use and occupancy of the subject
townhouse unit, Francisco became aware of its various
construction defects; that he called the attention of FRC, thru its
project manager, requesting that appropriate measures be
forthwith instituted, but despite his several requests, FRC did not
acknowledge, much less attend to them; that Francisco thus
mailed to FRC a verified letter dated June 6, 1990 (Exh. 2) in sum
giving notice that effective June 1990, he will cease and desist
"from paying my monthly amortization of NINE THOUSAND THREE
HUNDRED FOUR (P9,304.00) PESOS towards the settlement of my
obligation concerning my purchase of Unit No. 14 of FRC
Townhomes referred to above, unless and until your Office
satisfactorily complete(s) the construction, renovation and/or
repair of my townhouses (sic) unit referred to above" and that
should FRC "persist in ignoring my aforesaid requests, I shall, after
five (5) days from your receipt of this Verified Notice, forthwith
petition the [HLURB] for Declaratory Relief and Consignation to
grant me provisional relief from my obligation to pay my monthly
amortization to your good Office and allow me to deposit said
amortizations with [HLURB] pending your completion of FRC
Townhomes Unit in question"; that Francisco thru counsel wrote
FRC, its president, and its counsel notices/letters in sum to the
effect that Francisco and all other complainants in the [HLURB]
case against FRC shall cease and desist from paying their monthly
amortizations unless and until FRC satisfactorily completes the
construction of their units in accordance with the plans and
specifications thereof as approved by the [HLURB] and as
warranted by the FRC in their contracts and that the dishonor of
the subject checks was a natural consequence of such suspension
of payments, and also advising FRC not to encash or deposit all
other postdated checks issued by Francisco and the other
complainants and still in FRC's possession (Exhs. 3 thru 5); that
Francisco and the other complainants filed the [HLURB] case
against FRC and later on a decision was handed down therein and
the same is pending appeal with the Board (Exhs. 6, 7, & 12 thru
17, also Exh. 8); that as of the time of presentation of the subject
checks for payment by the drawee bank, Francisco had at least
P150,000.00 cash or credit with Citibank (Exhs. 10 & 11) and, that
Francisco closed his account no. 845515 with Citibank
conformably with the bank's customer service officer's advice to
close his said account instead of making a stop-payment order for
each of his more than 30 post-dated checks still in FRC's
possession at the time, so as to avoid the P600.00-penalty
imposed by the bank for every check subject of a stop-payment
order.4
On March 11, 1994, the trial court found petitioner guilty of
violating Section 1 of B.P. Blg. 22 in each of the six cases, disposing
as follows:
WHEREFORE, in each of Crim. Cases Nos. Q-91-25910, Q-91-
25911, Q-91-25912, Q-91-25913, Q-91-25914 and Q-91-25915,
the Court finds accused Francisco T. Sycip, Jr. guilty beyond
reasonable doubt of a violation of Sec. 1 of Batas Pambansa Blg.
22 and, accordingly, he is hereby sentenced in and for each case
to suffer imprisonment of thirty (30) days and pay the costs.
Further, the accused is hereby ordered to pay the offended party,
Francel Realty Corporation, as and for actual damages, the total
sum of fifty-five thousand eight hundred twenty four pesos
(P55,824.00) with interest thereon at the legal rate from date of
commencement of these actions, that is, November 8, 1991, until
full payment thereof.
SO ORDERED.
Dissatisfied, Sycip appealed the decision to the Court of Appeals.
His appeal was docketed as CA-G.R. CR No. 15993. But on February
29, 1996, the appellate court ruled:
On the basis of the submission of the People, We find and so hold
that appellant has no basis to rely on the provision of PD 957 to
justify the non-payment of his obligation, the closure of his
checking account and the notices sent by him to private
complainant that he will stop paying his monthly amortizations.6
Petitioner filed a motion for reconsideration on March 18, 1996,
but it was denied per Resolution dated April 22, 1996.
Hence, the instant petition anchored on the following assignment
of errors:
I
THE APPELLATE COURT ERRED IN AFFIRMING THE DECISION OF
THE LOWER COURT FINDING THAT THE ACCUSED-APPELLANT DID
NOT HAVE ANY JUSTIFIABLE CAUSE TO STOP OR OTHERWISE
PREVENT THE PAYMENT OF THE SUBJECT CHECKS BY THE DRAWEE
BANK.
II
THE LOWER COURT ERRED IN FINDING THAT THE ACCUSED-
APPELLANT MUST BE DEEMED TO HAVE WAIVED HIS RIGHT TO
COMPLAIN AGAINST THE DEVELOPMENT OF THE TOWNHOUSE
UNIT AND THE TOWNHOUSE PROJECT.
III
THE APPELLATE COURT ERRED IN AFFIRMING THE DECISION OF
THE LOWER COURT THAT THE ACCUSED-APPELLANT DID NOT
HAVE SUFFICIENT FUNDS WITH THE DRAWEE BANK TO COVER THE
SUBJECT CHECKS UPON PRESENTMENT FOR PAYMENT THEREOF.
IV
THE APPELLATE COURT ERRED IN AFFIRMING THE DECISION OF
THE LOWER COURT CONVICTING THE ACCUSED-APPELLANT AND
AWARDING DAMAGES IN FAVOR OF PRIVATE COMPLAINANT.7
The principal issue before us is whether or not the Court of
Appeals erred in affirming the conviction of petitioner for violation
of the Bouncing Checks Law.
Petitioner argues that the court a quo erred when it affirmed his
conviction for violation of B.P. Blg. 22, considering that he had
cause to stop payment of the checks issued to respondent.
Petitioner insists that under P.D. No. 957, the buyer of a
townhouse unit has the right to suspend his amortization
payments, should the subdivision or condominium developer fail
to develop or complete the project in accordance with duly-
approved plans and specifications. Given the findings of the
HLURB that certain aspects of private complainant's townhouse
project were incomplete and undeveloped, the exercise of his
right to suspend payments should not render him liable under B.P.
Blg. 22.
The Solicitor General argues that since what petitioner was
charged with were violations of B.P. Blg. 22, the intent and
circumstances surrounding the issuance of a worthless check are
immaterial.8 The gravamen of the offense charged is the act itself
of making and issuing a worthless check or one that is dishonored
upon its presentment for payment. Mere issuing of a bad check
is malum prohibitum, pernicious and inimical to public welfare. In
his view, P.D. No. 957 does not provide petitioner a sufficient
defense against the charges against him.
Under the provisions of the Bouncing Checks Law (B.P. No. 22),9 an
offense is committed when the following elements are present:
(1) the making, drawing and issuance of any check to apply for
account or for value;
(2) the knowledge of the maker, drawer, or issuer that at the time
of issue he does not have sufficient funds in or credit with the
drawee bank for the payment of such check in full upon its
presentment; and
(3) the subsequent dishonor of the check by the drawee bank for
insufficiency of funds or credit or dishonor for the same reason
had not the drawer, without any valid cause, ordered the bank to
stop payment. 10
In this case, we find that although the first element of the offense
exists, the other elements have not been established beyond
reasonable doubt.
To begin with, the second element involves knowledge on the part
of the issuer at the time of the check's issuance that he did not
have enough funds or credit in the bank for payment thereof upon
its presentment. B.P. No. 22 creates a presumption juris
tantum that the second element prima facie exists when the first
and third elements of the offense are present. 11 But such
evidence may be rebutted. If not rebutted or contradicted, it will
suffice to sustain a judgment in favor of the issue, which it
supports. 12 As pointed out by the Solicitor General, such
knowledge of the insufficiency of petitioner's funds "is legally
presumed from the dishonor of his checks for insufficiency of
funds." 13But such presumption cannot hold if there is evidence to
the contrary. In this case, we find that the other party has
presented evidence to contradict said presumption. Hence, the
prosecution is duty bound to prove every element of the offense
charged, and not merely rely on a rebuttable presumption.
Admittedly, what are involved here are postdated checks.
Postdating simply means that on the date indicated on its face, the
check would be properly funded, not that the checks should be
deemed as issued only then. 14 The checks in this case were issued
at the time of the signing of the Contract to Sell in August 1989.
But we find from the records no showing that the time said checks
were issued, petitioner had knowledge that his deposit or credit
in the bank would be insufficient to cover them when presented
for encashment. 15 On the contrary, there is testimony by
petitioner that at the time of presentation of the checks, he had
P150,000,00 cash or credit with Citibank.
As the evidence for the defense showed, the closure of
petitioner's Account No. 845515 with Citibank was not for
insufficiency of funds. It was made upon the advice of the drawee
bank, to avoid payment of hefty bank charges each time petitioner
issued a "stop payment" order to prevent encashment of
postdated checks in private respondent's possession. 16 Said
evidence contradicts the prima facie presumption of knowledge
of insufficiency of funds. But it establishes petitioner's state of
mind at the time said checks were issued on August 24, 1989.
Petitioner definitely had no knowledge that his funds or credit
would be insufficient when the checks would be presented for
encashment. He could not have foreseen that he would be advised
by his own bank in the future, to close his account to avoid paying
the hefty banks charges that came with each "stop payment"
order issued to prevent private respondent from encashing the 30
or so checks in its possession. What the prosecution has
established is the closure of petitioner's checking account. But this
does not suffice to prove the second element of the offense under
B.P. Blg. 22, which explicitly requires "evidence of knowledge of
insufficient funds" by the accused at the time the check or checks
are presented for encashment.
To rely on the presumption created by B.P. No. 22 as the
prosecution did in this case, would be to misconstrue the import
of requirements for conviction under the law. It must be stressed
that every element of the offense must be proved beyond
reasonable doubt, never presumed. Furthermore, penal statutes
are strictly construed against the State and liberally in favor of the
accused. Under the Bouncing Checks Law, the punishable act must
come clearly within both the spirit and letter of the statute. 17
While B.P. Blg. 22 was enacted to safeguard the interest of the
banking system, 18 it is difficult to see how conviction of the
accused in this case will protect the sanctity of the financial
system. Moreover, protection must also be afforded the interest
of townhouse buyers under P.D. No. 957. 19 A statute must be
construed in relation to other laws so as to carry out the legitimate
ends and purposes intended by the legislature. 20 Courts will not
strictly follow the letter of one statute when it leads away from
the true intent of legislature and when ends are inconsistent with
the general purpose of the act. 21 More so, when it will mean the
contravention of another valid statute. Both laws have to be
reconciled and given due effect.
Note that we have upheld a buyer's reliance on Section 23 of P.D.
957 to suspend payments until such time as the owner or
developer had fulfilled its obligations to the buyer. 22 This exercise
of a statutory right to suspend installment payments, is to our
mind, a valid defense against the purported violations of B.P. Blg.
22 that petitioner is charged with.
Given the findings of the HLURB as to incomplete features in the
construction of petitioner's and other units of the subject
condominium bought on installment from FRC, we are of the view
that petitioner had a valid cause to order his bank to stop
payment. To say the least, the third element of "subsequent
dishonor of the check. . . without valid cause" appears to us not
established by the prosecution. As already stated, the prosecution
tried to establish the crime on a prima facie presumption in B.P.
Blg. 22. Here that presumption is unavailing, in the presence of a
valid cause to stop payment, thereby negating the third element
of the crime.1wphi1
Offenses punished by a special law, like the Bouncing Checks Law,
are not subject to the Revised Penal Code, but the Code is
supplementary to such a law. 23 We find nothing in the text of B.P.
Blg. 22, which would prevent the Revised Penal Code from
supplementing it. Following Article 11 (5) 24 of the Revised Penal
Code, petitioner's exercise of a right of the buyer under Article 23
of P.D. No. 957 is a valid defense to the charges against him.
WHEREFORE, the instant petition is GRANTED. Petitioner
Francisco T. Sycip, Jr., is ACQUITTED of the charges against him
under Batas Pambansa Blg. 22, for lack of sufficient evidence to
prove the offenses charged beyond reasonable doubt. No
pronouncement as to costs. SO ORDERED.
THIRD DIVISION
[G.R. No. 105002. July 17, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DIARANGAN
DANSAL accused-appellant.
DECISION
PANGANIBAN, J.:
Appellant claims that he acted under the compulsion of an
irresistible force. Because he admits in effect the commission of a
punishable act, he must prove the exempting circumstance by
clear and convincing evidence.
Statement of the Case
This appeal seeks the reversal of the December 4, 1990
Decision[1] of the Regional Trial Court of Iligan City, Branch 2[2] in
Criminal Case No. 3141 convicting Appellant Diarangan Dansal of
the crime of murder.
A complaint against appellant was filed on March 28, 1990
by INP[3] Station Commander Cabsaran C. Azis of Matungao, Lanao
del Norte. After preliminary investigation, Provincial Prosecutor IV
Felix Fajardo charged appellant with murder on September 7,
1990 in an Information which reads:[4]
That on or about the 2nd day of March, 1990, at Matungao, Lanao
del Norte, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating and
mutually helping one another with 4 John Does, who are still at
large and whose case is still pending in the lower court, with
treachery, evident premeditation, taking advantage of superior
strength, and with intent to kill, did then & there willfully,
unlawfully and feloniously attack, assault and shoot one Abubacar
Pagalamatan with a Garand rifle thereby inflicting upon the latter
multiple gunshot wounds which were the direct and immediate
cause of his death thereafter.
Upon arraignment, appellant with the assistance of
counsel de oficio pleaded not guilty. In due course, the trial court
rendered its assailed Decision, the dispositive portion of which
reads:[5]
WHEREFORE, finding accused DIARANGAN DANSAL guilty beyond
reasonable doubt of the crime of Murder, he is hereby sentenced
to suffer the penalty of RECLUSION PERPETUA and he is hereby
ordered to indemnify the heirs of Abubakar Alamat, also known as
Abubakar Pagalamatan the amount of P30,000.00, without
subsidiary imprisonment in case of insolvency, and to pay costs.
Accused is entitled in full for the period of his detention.
Hence, this appeal.
The Facts
Version of the Prosecution
The prosecution sought to establish that on March 2, 1990 in
Pasayanon, Matungao, Lanao del Norte, appellant, armed with a
Garand rifle like his four (4) other companions, fired the fatal shots
which caused the death of Abubakar Alamat, also known as
Abubakar Pangalamatan.
The prosecution presented the following witnesses: Cosain
Dowa, Dr. Marilyn Rico, Amina Oticol, Panda Antalo and Timal
Mosa. Their testimonies may be synthesized as follows:
Panda Antalo testified that at three oclock in the afternoon
of March 2, 1990 in Matungao, Lanao del Norte, he and Timal
Mosa were walking through a barrio road on their way to see
Mayor Asis.[6] They saw Abubakar Alamat, the victim, conversing
with five (5) persons, one of whom was appellant. However,
Antalo did not recognize appellants companions. When he and
Mosa were five (5) meters away from the group, he heard
gunshots. He turned his head and noticed that smoke was coming
out of appellants rifle and empty shells were falling
therefrom. The Garand rifles of appellant and his companions
were pointed at the victim who was lying on the ground face
upwards. Seven (7) shots were fired. At that time Antalo was
immobile as he was frightened. Thus, he was unable to run and
take cover. After appellant and his companions ran towards the
coffee plantation, Antalo approached the victim and discovered
that the latter had sustained seven (7) wounds.[7]
Timal Mosa corroborated Antalos account. He testified that
at 3:00 p.m. of March 2, 1990, he and Antalo were on their way to
Mayor Asis house in Pasaupnon, Matungao. He saw the victim, the
appellant and four (4) other persons talking to one another. Then
he heard a gunshot from behind. When he turned to look, he
noticed that smoke was coming out of appellants gun and that
empty shells were dropping from it as appellant continued to fire
at the victim. Appellants rifle was pointed at the victim who had
fallen on the ground. He heard seven (7) gunshots. Appellants
companions also carried Garand rifles, but Mosa concluded that
these were not fired because he did not notice any smoke from
their barrels. He was not frightened. Neither did he take cover, as
he knew both the victim and the appellant. After firing at the
victim, appellant together with his four companions fled towards
Mayor Asis coffee plantation. He and Antalo approached the
victim, whom they found already dead. Thereafter, they reported
the shooting to the victims wife.[8]
Cosain Dowa, a Rural Sanitarium Inspector of the Health
Office of Matungao, Lanao del Norte, testified that on March 5,
1990 he prepared the victims Certificate of Death (Exh.
A). Although his main duty was to inspect food establishments,
construct barangay toilets, and assist in watershed constructions
in the municipality, he also helped the health officer in the
preparation of death certificates.[9] When the body of the victim
was brought in, he observed gunshot wounds on his right foot,
right thigh and right breast. The right knee was distorted. There
was a bullet hole at the victims back which he believed was the
entry point leading to the gaping wound on the breast.[10]
Dr. Marilyn Rico testified that she was the Rural Health
Officer of Matungao, Lanao del Norte. She signed Abubakar
Alamats Certificate of Death (Exh. A-2)[11] which was prepared by
Dowa.
Amina Oticol, the widow of the victim, testified that, around
3:00 p.m. of March 2, 1990, she was at their house in Panta-on,
Matungao, Lanao del Norte. Antalo and Mosa came and informed
her that appellant killed her husband. She had her husbands
corpse brought to their house. Her husband was buried in Panta-
on, Matungao, Lanao del Norte. She incurred expenses for the
burial in the amount of P15,000.00, but she asked for P100,000.00
as compensation therefor.[12]
Version of the Defense
Appellant was the lone witness for the defense. He testified
that on March 1, 1990, he went to Tagolo-an, Lanao del Norte to
visit his elder sister Saramina Dansal. At his sisters house,
Mimbalawang Dorado, together with his sons Macod, Talente and
Talentes son Usop, all surnamed Dorado, seized appellant and
brought him to their house at Tongkol, Tagolo-an, Lanao del Norte
for reasons undisclosed to him.[13]
The next day, March 2, 1990 at 7:00 a.m., they all left Tagolo-
an for Matungao and arrived there at 11:00 a.m. He was given a
Garand rifle that was not serviceable. They proceeded to the
victims house at Panta-on, Matungao, Lanao del Norte. They
asked the victim to come out and then they fired their guns at him
as soon as he appeared. Appellant said that the Dorados killed the
victim to avenge the killing of one of Mimbalawags sons named Ali
by a certain Salonga, the victims paternal cousin.
After shooting the victim, the Dorados allegedly aimed their
guns at appellant and told him to run away. As he was also related
to the victim, the latters mother being his paternal aunt, appellant
wanted to shoot the Dorados. Finding that his rifle was not
operational, he fled with the Dorados. Thereafter, they rode a
truck to Karomatan. They left their guns at the house of
Mimbalawags sister in Bangko, near Matungao.[14] He went home
and afterwards told the mayor of Tagolo-an that the Dorados
killed his cousin. He was subsequently summoned and detained by
the mayor of Panta-on.[15]
Ruling of the Trial Court
As stated earlier, the court a quo convicted appellant of
murder. It gave credence to the testimonies of the prosecution
witnesses. It disbelieved appellant in view of the absence of any
improper motive on the witnesses part to testify wrongly against
him.
The trial court noted that appellant and the four (4) Dorados
were all armed with Garand rifles; that they immediately fired
their guns at the victim as he came out of his house; and that the
victim was not in a position to defend himself. From these facts, it
concluded that the offenders consciously and deliberately
adopted the particular means, method or form of attack employed
by them to ensure the accomplishment of their purpose with
impunity. Thus, treachery, abuse of superior strength and evident
premeditation were appreciated in the conviction of the
appellant.
Hence, this appeal.
Assignment of Errors
Appellant through the Public Attorneys Office ascribes the
following errors to the trial court:
I q Were they in front of you or at the back of you when you
The lower court erred in not finding that accused-appellants
presence in the crime scene was under a compulsion of an
irresistable (sic) force.
II
The lower court erred in considering the qualifying circumstances
of treachery and abuse of superior strength.[16]
In a nutshell, appellant invokes the exempting circumstance
of compulsion under an irresistible force under paragraph 5,
Article 12 of the Revised Penal Code. Further, he argues that, if at
all, he should be convicted only of homicide because the
prosecution failed to prove beyond reasonable doubt the
qualifying circumstances of treachery and/or abuse of superior
strength.
The Courts Ruling
The appeal is bereft of merit.
Preliminary Issue: Credibility of the Prosecution Witnesses
Without specifically raising it as an error, appellant nonetheless
laced his brief with attacks on the credibility of the prosecution
witnesses. Hence, we shall dispose of this matter.
Well-settled is the rule that appellate courts will generally not
disturb the findings of the trial court on the credibility of
witnesses.[17] Such findings are conclusive upon the Supreme
Court in the absence of any showing that the trial court has
overlooked, misunderstood or misapplied some fact or
circumstance of weight and substance that would have affected
the result of the case.[18] We have carefully scrutinized the records
of this case and the arguments of appellant, and we have found
no reason to reverse the findings of the trial court.
The two prosecution eyewitnesses positively and clearly identified
appellant as the assailant who alone fired his rifle at the
victim. Their testimonies corroborated each other. Antalo
testified thus:[19]
PROSECUTOR BADELLES:
q Now, in the afternoon of March 2, 1990, around 3:00
oclock more or less, did (sic) you remember where were you?
a I can remember, sir.
q Where were you?
a I was on my way to see Mayor Asis that day, sir.
q While on your way to Mayor Asis, were you walking, riding
or what?
a I am walking with Timal, sir.
xxx xxx xxx
q While on your way to the house of Mayor Asis in that
afternoon of March 2, 1990, with Timal, did you notice
anything along the road?
a Yes, there was.
PROSECUTOR BADELLES:
q What was that you noticed?
a While we are on our way to the Mayors house, we saw
Abubacar Alamat that he had 5 companions and I recognized
one of them. (Witness pointing to the accused Abubacar
Pagalamatan [sic])
q Now what were they doing when you saw them?
a They were having conversation, sir.
q Now, you said you saw them, now how far were you [from]
the groups?
a About 5 meters far, sir.
saw them first?
a At my back, sir.
q And then after that was there any unusual [event] that
happened?
a There was, sir.
q What was that unusual thing that happened?
a I heard a shound (sic) of gun burst sir.
q What did you do when you heard that gun burst?
a I glanced at them and I noticed that the gun of Diarangan
Dansal the tip of his gun has smoke and I also noticed empty
shells falling down.
q Now how far were you when you saw Diarangan Dansal
with the tip of his gun having smoke and the empty shells
falling down from his gun?
a About 5 meters, sir.
q Now, how many burst all in all that you heard?
a Seven burst, sir.
q Now you said that you saw empty shells falling down from
the gun of Diarangan Dansal, how many empty shells that
you saw that fell down from the gund (sic) of Diarangan
Dansal?
a I have not seen the others sir.
q By the way what was gun of Diarangan Dansal hold that
time? (sic)
a Garand, sir.
q When you saw Dirangan (sic) Dansal holding a Garand and
when you saw that tip of his gun smoking, to was direct (sic)
that his gun pointing?
a Pointing to Abubacar Pagalamatan, sir.
q Now how about Abubacar Pagalamatan at the time when
you saw him holding a gun which was pointed to Abubacar
Pagalamatan with smoke coming out from the tip of the gun
and the empty shells falling down, what was the relative
position of Abubacar Pangalamatan to Diarangan Dansal?
a Abubacar Pangalamat was lying down, his face upward, sir.
q Now, after you heard those 7 burst of a gun, what did you
do next?
a I was immovilized (sic) sir.
q How about Diarangan Dansal and his companions, what did
he do after the 7 burst you heard?
a They were running toward the coffee trees, sir.
Mosa corroborated Antalos account in this wise:[20]
PROS. BADELLES:
Q On or about March 2, 1990 at 3:00 in the afternoon, can
you remember where were you?
xxx xxx xxx
A We were then going to the house of Asis at Pasayano,
Matungao.
Q You used the word ()we() who was your companion at that
time?
A Panda Andalo.
Q While on your way to the house of Asis at Pasayano
Matungao, along the way did you see any person?
xxx xxx xxx
A I saw Diarangan Dansal and Abubakar Pangalamatan.
Q They have compnaion (sic) if any at that time?
A Yes, sir, I did not recognize him.
Q How many of them?
A Four (4).
xxx xxx xxx
Q Now waht (sic) was the position of these persons in
relation to your position at the time you saw them?
A I was ten (10) meters from them and they are talking to
each other.
Q Were they in front of you or back of you?
A They are at my back.
Q Now, when you were about ten (10) meters from them,
this ten (10) meter at your back were there anything
happened unusual (sic)?
xxx xxx xxx
A I heard gun shot and then I looked back.
Q Towards what direction after hearing the shot?
A I looked back at them.
Q Who was ()them() that you are referring to?
A Abubakar Pangalamatan and Diarangan Dansal.
Q And when you look back at them what did you see?
A I saw firearm of iarangan (sic) Dansal and the firearm was
smoking and the empty shells were coming out from the rifle.
Q Towards what direction was the fireamr (sic) of Diarangan
Dansal pointed to when see him at that time?
A The firearm was pointed to at Abubakar Pangalamatan.
Q When you look back at them and saw Diarangan Dansal
pointed his firearm to Abubakar Pangalamatan what was
then the position of Abubakar Pangalamatan?
A when the firearm exploded, Abubakar Pangalamatan fell
down.
xxx xxx xxx
Q By the way how many shots that you hear (sic)?
A Seven shots.
Q The first shots that you hear was immediately, was prior to
the looking back where Abubakar Pangalamatan and
Diarangan Dansal were located (sic)?
A Yes, sir.
Q How about the second shots, when did you hear it?
A As I look back.
Q Did you see who fire (sic) the shot?
A Diarangan Dansal.
Q How did you know that it was Diarangan Dansal who
firedthe (sic) second shot?
A Because there was a smoke coming from his gun and the
empty shells coming from his rifle.
Q In the second shot, was shotting (sic) by Diarangan Dansal
to what direction was the firearm of Diarangan Dansal point
to? (sic)
A It was he who was still pointing his gun to Pangalamatan.
Q How about the third shot, when did you hear it?
A Well, I suspect that it was still at the gun of Diarangan
Dansal and I heard that the same gunshot coming from the
guaran (sic) of Diarangan Dansal.
Q How did you know that the same shot was coming from
the same barrel of Diarangan Dansal?
A Because smoke was coming out from the barrel of his gun.
Q And the 4th the 5th, the 6th and the seven (7) shots you
hear it when?
A Still from the firearm of Diarangan Dansal.
Q How do you know that it was coming from the firearm of
Diarangan Dansal?
A Because the smoke was still coming out from his gun and
the empty shell coming from his gun.
Q How about the companion of Diarangan Dansal was they
arm (sic) at that time?
A Yes, sir.
Q What firearm?
A Garand.
Q All the while when you hear the gunshots and all these six
(6) successive gun shots and saw Diarangan Dansal shot what
did the companion of Diarangan Dansal do?
A They were around Diarangan Daniel holding their gun.
Q Did you notice if they fired their gun?
A No, sir.
Q How did you know that they did not shot their firearm?
A Because there was no smoke coming from their firearm.
Q After the 7th shot, do you know what the group of
Drainage Daniel (sic) did?
A They Fled (sic).
Q Towards what direction?
A Towards the coffee plantation.
Both testimonies are straightforward, clear and consistent and
they point categorically to appellant as the perpetrator of the
crime.
Furthermore, appellant has not alleged, much less proven, ill
motive on the part of said witnesses to accuse appellant of such a
grave offense. In his brief, appellant admits that he cannot discern
any reason for Antalo and Mosa to testify falsely against him.[21] In
this light, we cannot fault the court a quo for holding that:[22]
The court is constrained to believe that the testimonies of
witnesses Panda Antalo and Timal Mosa are credible for failure by
the defense to show that said witnesses were prejudiced against
the accused or that said witnesses had an existing improper
motive in imputing to the accused the crime for which he is
charged. When there is no evidence showing that the witnesses
are prejudiced against the accused, the witnesses would not have
imputed to the accused the commission of such a grave offense as
that of murder if it was not true that he was really guilty
thereof (People vs. Ali, 29 SCRA 756). The absence of evidence as
to an improper motive actuating the principal witnesses for the
prosecution strongly tends to sustain the conclusion that such
improper motive did not exist, and that their testimonies are
worthy of full faith and credit (People vs. Saroah, 5 SCRA 385;
People vs. Valera, 5 SCRA 910).
The defense assails the testimonies of Prosecution Witnesses
Antalo and Mosa because their conduct during the commission of
the crime was allegedly contrary to common
experience. Appellant finds it unlikely for said eyewitnesses to
keep on standing despite the burst of gunfire as if x x x watching a
movie in the making and to remain unmoved by the violent
shooting incident. Ordinarily, a man in a similar situation would
either take cover or run for safety. Because the eyewitnesses did
not so conduct themselves, appellant concludes that their
testimonies were preposterous and untrue.
We disagree. Antalo said that he was so scared of what was
happening that he could not move, while Mosa admitted that he
was afraid but he did not take cover, as he knew both the
appellant and the victim. Their reactions, although the exact
opposite of each other, are valid and probable. Taking cover or
running away is not the only natural reaction possible under the
circumstances. There is no standard form of human behavioral
response to a strange, startling and frightful event, and there is no
standard rule by which witnesses to a crime must react.[23]
First Issue: Exempting Circumstance Insufficiently Proved
Appellant claims exemption from criminal liability under
Article 12, paragraph 5 of the Revised Penal Code, because he
allegedly acted under the compulsion of an irresistible force. He
allegedly joined the armed Dorados against his will because of fear
for his own safety. He claims in his brief that the Dorados were
guarding him so closely that escape was risky and protection by
lawfully constituted authorities was, at the moment, out of
reach.[24]
We cannot sustain such defense. A person who invokes the
exempting circumstance of compulsion due to irresistible force
must prove his defense by clear and convincing evidence. [25] He
must show that the irresistible force reduced him to a mere
instrument that acted not only without will but also against his
will.[26] The compulsion must be of such character as to leave the
accused no opportunity to defend himself or to escape.
The duress, force, fear or intimidation must be present,
imminent and impending; and it must be of such a nature as to
induce a well-grounded apprehension of death or serious bodily
harm if the act is not done. A threat of future injury is not
enough.[27] A speculative, fanciful or remote fear,[28] even fear of
future injury,[29] is insufficient.
In this case, appellant failed to show such compulsion. In his
testimony, he did not mention that the Dorados physically or
morally threatened to kill or hurt him. He did not even make any
attempt to resist. He simply took for granted that they would kill
or hurt him if he did not follow them. No evidence was presented
to establish how, if at all, he was compelled to join the Dorados in
killing the victim. In other words, appellant failed to prove that the
Dorados made a real and imminent threat on his life or limb
sufficient to overcome his free will.
Indeed, the Court finds no acceptable basis for appellants
assertion that he was compelled and intimidated by the
Dorados. Even without him, the Dorados could have easily carried
out the crime, if such was their intention. If we believe appellants
story, there was no need for the Dorados to mortally threaten
appellant to join them. Besides, forcing appellant, a relative of the
victim, to join them complicated rather than facilitated their
criminal endeavor. With the appellant present among them, they
would have had to guard themselves from possible resistance and
double cross in case he did not consent to their plan. Furthermore,
it would have been highly illogical for the Dorados to force
appellant to take part in their crime, only to give him an
unserviceable rifle.[30]
Moreover, his story does not inspire belief for reasons other
than the obvious one that it is uncorroborated. According to
appellant, he was taken against his will from his sisters house in
Tagolo-an the day before the commission of the crime. It is
strange why his sister was not presented as witness to corroborate
his account. Even the mayor of Tagolo-an, to whom he reported
that he had been forced to participate in a killing, could have
testified in his favor. But said official, who could have injected
credence to his defense, was not presented to corroborate his
testimony. The non-presentation of these witnesses tends to
show that they would not have corroborated appellants
allegations had they testified.
Second Issue: Qualifying Circumstances
The trial court appreciated the aggravating circumstances of
treachery, evident premeditation and superior strength.
The evidence of the prosecution, however, adequately
established only treachery. Treachery is appreciated when a
frontal attack is directed at an unarmed victim who is totally
unaware of and unprepared for said assault.[31] There is treachery
where the attack on an unarmed victim, who has not given the
slightest provocation, is sudden, unexpected and without
warning.[32] According to Prosecution Witness Mosa, the victim,
the appellant and his companions were talking to one another
prior to the shooting. It would have been impossible to hide
Garand rifles from someone who was so close. Thus, it is safe to
assume that the victim knew that appellant and his companions
were carrying them. If the victim suspected that they would use
those rifles to commit the crime, then he would have avoided
them. But instead, the victim stayed and spoke with them. The
victim, therefore, had no idea that he was going to be shot by
appellant who, after all, was his relative. Even if he eventually did
come to know that appellant intended to shoot him, he -- being
alone and unarmed -- could not have defended himself against all
five of them.
Abuse of superior strength, on the other hand, was not
established, as there was no testimony to the effect that appellant
and his companions took advantage of their collective strength in
order to kill the victim.[33] Witness Mosa even said that only
appellant fired at the victim. Mere superiority in number after all
is not necessarily indicative of this aggravating circumstance.
The prosecution also failed to establish evident
premeditation. For this qualifying circumstance to be appreciated,
there must be a lapse of sufficient time to afford full opportunity
for meditation and reflection that would allow the conscience of
the actor to attempt to overcome the resolution of his will.[34] But
the prosecution was unable to establish this time element as its
evidence dealt merely with the circumstances of the actual
shooting itself.
WHEREFORE, premises considered, the assailed Decision is
hereby AFFIRMED with modification as regards the civil indemnity
which is hereby INCREASED to fifty thousand pesos (P50,000.00)
in line with current jurisprudence.[35]
SO ORDERED.
Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Francisco,
JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 89684 September 18, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GERARDO SAZON, alias "INSIK," accused-appellant.
The Solicitor General for plaintiff-appellee.
Benjamin P. Sorongon for accused-appellant.
REGALADO, J.:
For the death of Wilfredo Longno, alias, "Inday," on September 17,
1983 at Barangay Progreso, Lapuz, La Paz, Iloilo City, herein
accused-appellant Gerardo Sazon, alias "Insik," and Cornelio
Altejos, alias "Toto," were charged with murder before the
Regional Trial Court of Iloilo, 1 in an amended information dated
October 18, 1983.2 However, only herein accused was arraigned,
and pleaded not guilty, since Cornelio Altejos was not
apprehended and has since remained at large.
After trial, appellant was found guilty and sentenced to serve the
penalty of reclusion perpetua. He was further ordered to pay the
heirs of the deceased the amount of P16,628.40 representing
hospital bills, expenses for the coffin, tomb, wake and attorney's
fees, and P30,000.00 as indemnity for the death of the victim.
The antecedental facts which led to the filing of the criminal action
below are herein under set forth as synthesized by the court a
quo from the testimonies of the witnesses, 3 and as clarified and
amplified by us from the transcripts of the notes of the hearings.
On September 15, 1983, in the barangay aforementioned, a
certain Ernesto Romualdez was accosted by appellant near the
barangay hall for allegedly circulating the rumor that appellant
and his companions were engaged in stealing. Upon
confrontation, appellant boxed Romualdez which caused the
latter to fall. Wilfredo Longo, who was then present at the scene,
approached and helped the fallen Romualdez and pushed
appellant away. This apparently angered appellant who, in his
native dialect said "Andam ka lang Inday kay patyon ta guid,"
("Watch out Inday for I will kill you") to which Longno retorted,
"Just do it."
Two days later, or on September 17, 1983, at about 8:00 o'clock
P.M., appellant and his cousin, Cornelio Altejos, were drinking
softdrinks at the shire of Gloria Aposaga when Longno passed by.
Thereupon, appellant and Altejos left their softdrinks half-
assumed and followed Longno.
Longno eventually reached the bench near the public faucet
where the group of Massulini Dullete, Samuel Canoso and
Nathaniel Ramos were sitting. He joined the group in their
conversation by saying, "Upon ako dira." ("I'll go with what you
say."). Shortly thereafter, appellant and Altejos arrived and
appellant accosted and pointed a gun at Longno, saying, "Maano
ka?" ("What are you going to do?"). Longno then faced appellant
and said, "Brod, tiruha lang." ("Brod, just shoot.")
Apparently irked by the response, appellant fired the gun, hitting
Longno in the left forearm. Dullete, Canoso and Ramos then
scampered for safety as appellant and the wounded Longno
grappled for the gun. It was while the two were thus struggling
that Altejos stabbed Longno in the chest, after which both
appellant and Altejos ran away.
Longno then came out of the footwalk shouting, "Tay tiniro ako ni
Insik, binuno ako ni Toto." ("Father, I was shot by Insik and stabbed
by Toto."). He was able to run about thirty (30) meters before he
fell. His father, Julio Longno, ran to his son who was then lying
sprawled on the ground. Rushed to the St. Paul's Hospital,
Wilfredo Longno died. Later, it was established that the cause of
death was hemorrhage, secondary to stab wound.
Appellant's version of the incident, however, differs. He admits
having shot Longno but pleads self-defense. He claims that on
September 17, 1983, he left the house of his father-in-law at about
8:00 o'clock P.M. with his cousin, Altejos. The latter had asked for
help to have a .22 caliber revolver repaired and appellant was
taking the revolver to a policeman friend of his. On their way,
appellant saw Longno from a distance. Upon his approach, Longno
allegedly said, "Insik, I heard that you are not afraid of me. Maybe
you want to be taught a lesson." 4
Appellant claims that the deceased had a revolver tucked in his
waist and was about to draw the same. He, therefore, parried the
gun but it fired hitting one of appellant's left fingers which was
later amputated. It was then that appellant pulled out his gun and
shot Longno in the forearm. Appellant and Longno afterwards
grappled for the gun. Altejos allegedly tried to separate appellant
and Longno but he was brushed aside by the latter. In the course
of their struggle, Altejos then shouted to appellant, "I stabbed
Inday, run," and so he and Altejos ran away. 5
Appellant, in his brief, makes the following assignment of errors:
1. The trial court erred in not acquitting the accused-appellant for
having acted in complete self-defense.
2. The trial court erred in convicting the accused-appellant of the
crime of murder and in imposing the penalty of reclusion
perpetua when the prosecution has not established by competent
evidence the existence of conspiracy and the presence of the
aggravating circumstances of evident premeditation and abuse of
superior strength. 6
Appellant's version does not inspire credence. Well-entrenched is
the rule that where the accused invokes self-defense, it is
incumbent upon him to prove by clear and convincing evidence
that he indeed acted in defense of himself. He must rely on the
strength of his own evidence and not on the weakness of the
prosecution. For, even if the prosecution evidence is weak, it could
not be disbelieved after the accused himself had admitted the
killing. 7
It is a statutory and doctrinal requirement that for the justifying
circumstance of self-defense, the presence of unlawful aggression
is a condition sine qua non. There can be no self-defense,
complete or incomplete, unless the victim has committed an
unlawful aggression against the person defending himself. 8
In the present case, the burden of evidence having been shifted,
we hold that the defense failed to establish the primary element
of unlawful aggression on the part of the victim and, therefore,
the plea of self-defense must fail. The narrations of the sequence
of events by the accused, and by the lone alleged eyewitness for
the defense, Jose Randera, are unconvincing primarily on account
of their inherent inconsistency and conflict with each other.
Appellant on cross-examination testified as follows:
Q How far were you from Inday Longno when he allegedly fired a Q When Cornelio Artejos (sic) stabbed Wilfredo Longno alias
shot at you? Inday, what was Gerardo Sazon and Wilfredo Longno doing if they
A One (1) meter. were doing anything.?
Q At one (1) meter distance did (sic) you not able to recognize A They were graffling of (sic) the weapon.
what kind of a gun was that allegedly used by Inday Longno? Q You are referring to whose weapon they were graffling (sic) at
A No, sir, at first I only saw the handle of the gun and I did not see that time?
the body of the gun. A Inday's weapon.10
Q But you can recognize between a pistol and a revolver? The testimonies aforequoted reveal an inconsistency on the
A Yes, sir. matter of the gun for which appellant and the victim supposedly
Q What was that allegedly used by Inday Longno, was that a pistol grappled. While appellant claimed that the victim's weapon fell to
or a revolver? the ground, witness Randera stated that appellant and the victim
A Because immediately after he said those words 'Maybe you still grappled for the latter's gun. The latter statement is itself
want to learn a lesson he immediately drew his gun and I was able difficult to imagine since appellant at that precise moment was
to parry. also allegedly holding with his right hand the gun which he used in
xxx xxx xxx shooting Longno.
Q When you fired at Inday Longno hitting him on his left arm near It is necessary to stress that such inconsistency cannot be
the elbow, was he still holding that gun he used in shooting you considered a minor detail since the homogeneity of the answers
hitting you at the left palm? to the inquiry could very well have established the existence of not
A No, sir, because of too much force the gun fell. only a single gun. Had this prevarication not been exposed, said
Q Did you not pick up the gun? testimonies could have bolstered the defense theory that the
A No, sir.9 victim himself carried a gun which he used to assault the appellant
On the other hand, defense eyewitness Jose Randera stated in his and thus establish the element of unlawful aggression contrived
testimony: by the defense.
ATTY. SORONGON: (To the witness) Furthermore, the credibility of witness Randera is shattered by
Q While Wilfredo Longno alias Inday was pointing a gun at Gerardo this finding of the trial court which is sustained by the evidence:
Sazon alias Insik, what was Gerardo Sazon doing? The testimony of security guard Jose Randera deserves scant
WITNESS JOSE RANDERA: consideration not only because he admitted that he was one of
A When Inday said something, Insik Sazon brushed aside the gun those threatened by the deceased Wilfredo Longno but also
and the gun fired. because he wilfully falsified the truth when he testified that the
xxx xxx xxx deceased was shot and hit by the accused on the body and that he
Q You said, that Wilfredo Longno alias Inday pointed a gun at saw blood come out just below the right breast of the deceased.
Gerardo Sazon alias Insik, with what hand was he holding that gun The physical evidence in this case showed that there was no
when he was pointing that gun to Gerardo Sazon? wound on the right breast of the deceased nor on any part of his
WITNESS JOSE RANDERA: body. The gunshot wound sustained by the deceased was only on
A His right hand. his left forearm. Considering that he testified that there were no
ATTY. SORONGON (To the witness) other persons there during the incident except the accused, the
Q You said that Gerardo Sazon brushed aside the gun which was deceased and Cornelio Altejos when the overwhelming weight of
being pointed to him, what hand did Gerardo Sazon used (sic) in evidence is that there were a lot of other people during the
brushing that gun? incident (this) showed that this witness had small regard for the
A His left hand. truth. 11
Q When Gerardo Sazon brushed aside the gun pointed to him, Coming back to appellant's representations in court, his vacillation
what else if any did he do? as to what he allegedly did after Altejos stabbed the victim is
A Insik also drew a gun and shot Inday, another instance which renders his version highly suspect. While
COURT: (To the witness) stating on direct examination that he ran to the main road, 12 he
Q What hand? claimed on cross-examination that he only walked a short distance
A Right hand. He drew a gun with his right hand and shot Inday. and then went to the hospital upon seeing that his hand was
xxx xxx xxx wounded. 13 The latter statement is itself inconsistent with his
ATTY. SORONGON (To the witness) earlier declaration during the same proceeding that he was
Q You said that there was a brushing, who was brushing aside and brought by a policeman to the hospital. 14 This irresolution on the
who was brushed aside? part of the appellant was obviously to avoid any imputation of
WITNESS JOSE RANDERA: guilt against him arising from his flight. 15
Q Inday parried Cornelio Artejos (sic). At any rate, unlawful aggression on the part of the victim is further
COURT: (To the witness) negated by the physical evidence in the case. Again, we quote the
Q And, what happened next? trial court with approval:
Cornelio Artejos (sic) pulled out a knife and stabbed Inday. The testimony of the accused Gerardo Sazon that the deceased
Q This happened when Inday was already hit by Sazon? was armed with a gun and fired at him is not borne out by the
A Yes, sir. physical evidence in this case. The paraffin test conducted on the
ATTY. SORONGON (To the witness) cadaver of the deceased showed that the hands of the deceased
were negative for gunpowder residues indicating that he did not
fire a gun during the incident. The other parts of his body like his
forearm and his abdomen bore strong traces of gunpowder
residues because of the burst of the gun of the accused. The court
is convinced beyond reasonable doubt that there was only one
gun during the incident and that the gun belonged to and/or was
used by the accused Gerardo Sazon. That a part of one of his
fingers was blown off at very close range, according to Dr. Ely
Canja strongly indicated that the accused accidentally hit his finger
when he and the deceased grappled for the possession of the
gun. 16
In contrast, appellant was found positive for the presence of
gunpowder residues (nitrates). While the presence or absence of
nitrates cannot indeed be considered conclusive proof that one
has or has not fired a gun, the following testimony on direct
examination by prosecution witness Zenaida Sinfuego a forensic
chemist whose expertise on the matter was sufficiently
established, yields this verification:
Atty. E. Original:
Q Now, have you conducted also a paraffin examination on the
person of Wilfredo Longno?
COURT:
Q On the cadaver?
Atty. E. Original:
Q On the cadaver?
A Yes, Sir.
Q Have you brought with you the result of that examination?
A Yes, Sir.
Q Now I have here a carbon original of Chemistry Report No. C-
200-83, result of the paraffin test on the cadaver of Wilfredo
Longno, please compare this carbon original to the original copy
in your possession whether it is the same?
A The same.
xxx xxx xxx
Q This report says specimen submitted, one pair of paraffin casts
taken from the left and right hands of the cadaver of one Wilfredo
Longno, one piece of paraffin cast taken from left forearm of same
subject and one piece paraffin last taken from the left side of the
abdomen. Purpose of laboratory examination: to determine the
presence of gunpowder residues (nitrates) on the above-
mentioned specimens. Findings, cast from hands-negative for the
presence of gunpowder residues (nitrates). Cast from forearm-
positive for the presence of gunpowder residues (nitrates) in the
1 1/2 in, 2 1/2 in, 3 in, and 4 in radius. Cast from the left side of
the abdomen-positive for the presence of gunpowder residues
(nitrates) in the center and in the 1 and 2 in radius. In the layman's
language Mrs. Sinfuego, will you please explain to the Honorable
Court these findings 1, 2 and 3?
A Casts from the hands, negative for the presence of gunpowder
residues that means that, no blue specks were found in the hands
of the cadaver.
COURT:
Q Before we go on, what is the implication when the finding is
negative?
A Probably, the subject never fired a gun.
Q Within what time-span?
A The gunpowder will stay only within three days.
Q When was this examination conducted?
A Last September 18,1983.
Q Now before we go on, on that Chemistry Report which has been
marked as Exhibit 'D' regarding the paraffin test conducted on the
right hand of the accused Gerardo Sazon, your finding there
states, positive for gunpowder residues, what is the implication?
A The implication states positive, that Sazon have (sic) fired a gun.
Q Within what time-span?
A Within three days.
Q Within three days?
A Within three days.
Q From the examination?
A Three days from the subject firing of a gun.
Q And when was the examination conducted?
A Last September 19,1983, Your Honor.
Q September?
A Nineteen.
Q So he could have fired a gun on September 17,1983?
A I think that depends, Your Honor on the requesting party.
Q I am asking you if it was possible that he fired a gun which left
the powder burns, was it possible that he fired a gun on
September 17?
A Yes, Your Honor. 17
On cross-examination, Sinfuego further testified as follows:
Q Is it possible for a person who has not fired a firearm and could
be (sic) positive for nitrates?
A Yes, Sir.
Q In what instance?
A For example, if he is near to the person firing a gun it is possible
that it was carried by the wind.
Q So that is the only case wherein you find nitrates on the person
who has not fired a gun?
A Also from the fertilizer.
Q You mean, a person handling fertilizers could also be positive for
nitrates?
A Yes, Sir but we have to consider also the time of reaction, from
contaminance (sic) for the nitrates will take effect between two to
three minutes.
COURT:
Q Can you determine on your examination whether the nitrates
found was (sic) the nitrates left by gunpowder residues or by
fertilizer can you distinguish that?
A Yes, Sir.
Q And this (sic) nitrates found on the hands of the accused, could
you determine where did it (sic) come from?
A Gunpowder residues. 18
Parenthetically, it is true that the bad moral character of the
offended party may be proven in evidence to establish in any
reasonable degree the probability of the offense charged, 19 e.g.,
the quarrelsome nature of the victim may tend to establish that
he started the unlawful aggression. Nonetheless, such evidence,
seeking to establish as it does only a probability, cannot prevail
over facts sufficiently proven by the prosecution during the trial
belying such aggression. These observations find application in the
instant case where the defense presented and now argue on
character evidence consisting of criminal charges involving minor
offenses which had been filed against the deceased, but not one
of which resulted in conviction and were in fact dismissed except
for one case which was sent to the archives. 20
Obviously, whether or not appellant acted in self-defense is
essentially a question of fact. Being so and in the absence of any
showing that the Court a quo failed to appreciate facts or
circumstances of weight and substance that would have altered
its conclusion, the court below, having seen and heard the
witnesses during the trial, is in a better position to evaluate their
testimonies. No compelling reason, therefore, lies for this Court to
disturb the trial court's finding that appellant did not act in self-
defense. 21
The Court, however, holds that appellant, albeit guilty, can only be
convicted of homicide and not murder. The trial court correctly
held that the killing was not accompanied by treachery. It,
however, ruled that there was evident premeditation on the part
of appellant. We find the records sorely wanting in evidence to
support the latter conclusion.
The fact that appellant told the deceased that he would kill him
and that two days later, after the deceased passed by the store
where appellant and Altejos were drinking softdrinks the latter
followed the former and inflicted the fatal blows, cannot
adequately sustain a conclusion of premeditated killing.
To justify its attendance, the prosecution must prove (1) the time
when the offender determined to commit the crime, (2) an act
manifestly indicating that the culprit has clung to his
determination, and (3) a sufficient lapse of time between the
determination and the execution to allow him to reflect upon the
consequences of his act. 22
In the case at bar, the first and second elements are lacking. The
angry outburst of appellant in that incident of September 15,
1983, warning the victim that the former would kill him, does not
convince us that, under the circumstances therein, appellant as of
that time had already decided to kill the victim. A homicidal
premeditation is studiedly conceived and not impulsively adopted
just like that and, worse, publicly announced. It was more of a
spontaneous expression of resentment or bravado on the part of
appellant.
Again, the circumstance that appellant and Altejos were by chance
at the store when the victim passed by cannot be taken as
manifestly indicating that appellant had clung to his determination
to kill the victim. No evidence was presented to show that
appellant purposely waited there for the deceased. Nor was there
any showing that the deceased frequently passed by the same
route as to warrant and explain appellant's waiting for the former
at that place. Indeed, that the meeting may have been purely
accidental is not a remote possibility. We are more inclined to
believe that it was the belligerent and defiant demeanor of the
victim when confronted by appellant near the public faucet that
precipitated assault.
Under such considerations and there being no other evidence to
prove that the death of the victim was the result of meditation,
calculation or reflection, evident premeditation cannot be
appreciated to qualify the killing to murder. 23The circumstances
qualifying or aggravating the act must be proved in an evident and
incontestable manner. They must be proved as conclusively as the
acts constituting the offense.24 Thus, for the same reason, the
aggravating circumstance of abuse of superior strength cannot be
appreciated in this case. Superior strength may aggravate or
qualify a crime, only if it is clearly shown that there was deliberate
intent to take advantage of it.25 In the absence of any evidence to
show that the accused purposely sought to use their superior
strength to their advantage in the present case, a finding to that
effect by the trial court cannot be sustained.
Finally, the fact that appellant did not inflict the mortal wound
upon the deceased is of no moment, since the existence of
conspiracy was satisfactorily shown by the evidence. The
coordinated acts of appellant and Altejos of immediately following
the victim and jointly confronting him thereafter reveal a
concordance and unity of thought which resulted in the
encounter. The circumstances that after the accused shot the
victim in the forearm and, while he and the victim were grappling
for appellant's gun, Altejos stabbed the victim to death, indicate
closeness and coordination of their action geared towards a
common purpose, that is, to kill the victim. 26 Proof of a previous
agreement to commit the crime is not absolutely essential to
establish a conspiracy. It is sufficient that the accused be shown to
have acted in concert pursuant to the same objective, 27 as such
circumstance is invariably indicative of a conspiratorial
agreement.
It bears mention, at this point, that while we have ruled out
evident premeditation in the case, this does not negate the
existence of a conspiracy. True, conspiracy generally involves
evident premeditation, but this circumstance requires for
its raison d' etre a sufficient time in a juridical sense for the
accused to meditate and reflect on the consequences of his
intended action. Such time element is not an indispensable
requirement for a conspiracy to exist. 28 Consequently, we find
that there was a conspiracy between appellant and Altejos
although, for lack of conclusive showing, we cannot consider
evident premeditation against appellant.
The rule is that where a conspiracy is proven, a showing as to who
inflicted the fatal wound is not required to sustain a
conviction. 29 The act of one in killing the victim becomes the act
of all the accused. Insofar as Cornelio Altejos is concerned,
however, the trial court never acquired jurisdiction over him and
he can neither be convicted nor exculpated herein. References in
this judgment to him are, therefore, obiter and with no binding
effect on him. 30
WHEREFORE, the judgment of the trial court is MODIFIED.
Accused-appellant Gerardo Sazon is declared GUILTY beyond
reasonable doubt of the crime of homicide and is hereby
sentenced to suffer the indeterminate penalty of eight (8) years
and one (1) day of prision mayor to fourteen (14) years, eight (8)
months and one (1) day of reclusion temporal.
The award by the lower court of the items of civil liability to be
paid by accused-appellant to the heirs of the deceased is hereby
MODIFIED by disallowing the grant of attorney's fees for lack of
basis, and increasing the death indemnity to P50,000.00 in
accordance with the policy adopted by the Court en banc on
August 30,1990.
SO ORDERED.
Melencio-Herrera (Chairman), Padilla and Sarmiento, JJ., concur.
Paras, J., is on leave.
EN BANC
[G.R. No. L-162. April 30, 1947.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v.
DIOSCORO ALCONGA and ADOLFO BRACAMONTE, Defendants.
DIOSCORO ALCONGA, Appellant.
Jose Avancelia for Appellant.
Assistant Solicitor General Kapunan, jr. and Solicitor Barcelona
for Appellee.
SYLLABUS
1. CRIMINAL LAW; HOMICIDE; SELF-DEFENSE; FLIGHT OF
ADVERSARY. An accused was no longer acting in self-defense
when he pursued and killed a fleeing adversary, though originally
the unlawful aggressor, there being then no more aggression to
defend against, the same having deceased from the moment
deceased took to his heels.
2. ID.; ID.; ID.; ID.; PROVOCATION, AS MITIGATING
CIRCUMSTANCE. Provocation given by an adversary at the
commencement an during the first stage of a fight, cannot be
considered as mitigating circumstance, where the appellant
pursued an killed the former while fleeing and the deceased, as in
the case at bar, from the moment he fled after the first stage of
the fight to the moment he died, did not give any provocation for
appellant to pursue, much less further to attack him.
3. ID.; ID.; ID.; ID.; ID. Provocation in order to be a mitigating
circumstance must be sufficient and immediately preceding tact.
"It should be proportionate to the act committed a d adequate to
stir one to its commission."cralaw virtua1aw library
4. ID.; ID.; ID.; ID.; ID.; NEED OF PROOF. Sufficient provocation,
being a matter of defense, should, like any other, be affirmatively
proven by the accused.
5. ID.; ID.; ID.; ID.; ID.; ILLEGAL AGGRESSION, DEFINED. "Illegal
aggression" is equivalent to assault or at least threatened assault
of an immediate and imminent kind.
DECISION
HILADO, J.:
On the night of May 27, 1943, in the house of one Mauricio Jepes to the headquarters (t. s. n., pp. 81, 104). In the afternoon of the
in the municipality of San Dionisio, Province of several persons same day, Collado delivered Alconga to Gregorio Barredo, a
were playing prohibited games . n., pp. 95, 125). The deceased municipal policeman of San Dionisio, together with the weapons
Silverio Barion was the banker in the game of black jack, and Maria used in the fight: a revolver, a bolo, and a dagger (t. s. n., pp. 81,
de Raposo, a witness for the prosecution, was one of those playing 104).
the game (t. s. n., p. 96). Upon invitation of the said Maria de
Raposo, the accused Dioscoro Alconga joined her as a partner,
each of them contributing the sum of P5 to a common fund (t. s.
n., pp. 95, 125). Maria de Raposo played the game while the said
accused posted himself behind the deceased, acting as a spotter
of the cards of the latter and communicating by signs to his
partner (t. s. n., 95-96, 126). The deceased appears to have
suffered losses in the game because of the team work between
Maria de Raposo and the accused Alconga (t. s. n., pp. 96, 126).
Upon discovering what the said accused had been doing, the
deceased became indignant and expressed his anger; the former
(t. s. n., pp. 96, 126). An exchange of words followed, and the two
would have come to blows but for the intervention of the
maintainer of the games t. s. n., p. 96). In a fit of anger, the
deceased left the house but not before telling the accused
Alconga, "tomorrow morning I will give you a breakfast" (t. s. n.,
p. 96), which expression would seem to signify an intent to inflict
bodily arm when uttered under such circumstances.
The deceased and the accused Alconga did not meet hereafter
until the morning of May 29, 1943, when the latter was in the
guardhouse located in the barrio of Santol, performing his duties
as "home guard" (t. s. n., pp. 98-100). While the said accused was
seated on a bench in the guardhouse, the deceased came along
and, addressing the former, said, "Coroy, this is your breakfast,"
followed forthwith by a swing of his "pingahan" (t. s. n., p. 100).
The accused avoided the blow by falling to the ground under the
bench with the intention to crawl out of the guardhouse (t. s. n.,
pp. 100-101). A second blow was given but failed to hit the
accused, hitting the bench instead (t. s. n., p. 101). The accused
managed to go out of the guardhouse by crawling on his abdomen
(t. s. n., p. 101). While the deceased was in the act delivering the
third blow, the accused, while still in a crawling position (t. s. n., p.
119), fired at him with his revolver, causing him to stagger and to
fall to the ground (t. s. n., p. 101). Rising to his feet, the deceased
drew forth his dagger and directed a blow at the accused who,
however, was able to parry the same with his bolo (t. s. n., pp, 101-
102). A hand-to-hand fight ensued (t. s. n., p. 102). Having
sustained several wounds, the deceased ran away but was
followed by the accused (t. s. n., p. 6). After running a distance of
about 200 meters (t. s. n., pp. 21, 108), the deceased was
overtaken, and another fight took place, during which the mortal
bolo blow the one which slashed the cranium was delivered,
causing the deceased to fall to the ground, face downward,
besides many other blows delivered right and left (t. s. n., pp. 6,
28). At this instant, the other accused, Adolfo Bracamonte, arrived
and, being the leader of the "home guards" of San Dionisio, placed
under his custody the accused Alconga with a view to turning him
over to the proper authorities (t. s. n., pp. 102-105).
On their way to San Dionisio, the two accused were stopped by
Juan Collado, a guerrilla soldier (t. s. n., pp. 80, 104). Adolfo
Bracamonte turned over Alconga to Collado who in turn took him
The injuries sustained by the deceased were described by police
sergeant Gil G. Estaniel as follows:jgc:chanrobles.com.ph
"P. Y que hicieron ustedes cuando ustedes vieron Barion?
R. Examine sus heridas.
"P. Donde ha encontrado usted las heridas, en que parte del self-defense, there being then no more aggression to defend
cuerpo? against, the same having ceased from the moment the deceased
took to his heels. During the second stage of the fight appellant
R. En la cabeza, en sus brazos, en sus manos, en la mandbula inflicted many additional wounds upon the deceased. That the
inferior, en la parte frente de su cuello, en su pecho derecho, y deceased was not fatally wounded in the first encounter is amply
tambien en el pecho izquierdo, y su dedo menique habia volado, shown by the fact that he was still able to run a distance of some
se habia cortado, y otras pequeas heridas mas. 200 meters before being overtaken by appellant. Under such
circumstances, appellants plea of self-defense in the second stage
"P. En la cabeza, vio usted heridas? of the fight cannot be sustained. There can be no defense where
there is no aggression.
R. Si, seor.
"Although the defendant was not the aggressor, he is not exempt
"P. Cuantas heridas? from criminal liability for the reason that it is shown that he struck
several blows, among them the fatal one, after the necessity for
R. Una herida en la region parietal derecha y una contusion en la defending himself had ceased, his assailant being then in retreat.
corona de la cabeza. Therefore one of the essential ingredients of self-defense
specified in No. 4, article 8 of the Penal Code is wanting" (now
"P. Ivio usted el craneo?. article 11, case No. 1, Revised Penal Code). (United States v.
Dimitillo, 7 Phil., 475, 476; words in parenthesis supplied.)
R. En el craneo llevaba una herida, en el craneo se ha roto.
". . . Even if it be conceded for the moment that the defendants
"P. En el pecho, que herida ha encontrado usted? were assaulted by the four (offended parties), the right to kill in
self-defense ceased when the aggression ceased; and when
R. Debajo de la tetilla derecha, una herida causada por una bala. Toledo and his brothers turned and ran, without having inflicted
so much as a scratch upon a single one of the defendants, the right
"P. Y otras heridas en el pecho, puede usted decir que clase de of the defendants to inflict injury upon them ceased absolutely.
heridas? They had no right to pursue, no right to kill or injure. A fleeing man
is not dangerous to the one from whom he flees. When danger
R. Heridas causadas por bolo. ceases, the right to injure ceases. When the aggressor turns and
flees, the one assaulted must stay his hand." (United States v.
P. Como de grande aquellas heridas en el pecho? Vitug, 17 Phil., 1, 19; Emphasis supplied.)

R. No recuerdo la dimension de las heridas en el pecho. Upon the foregoing facts, we hold that appellants guilt of the
crime of homicide has been established beyond reasonable doubt.
P. Pero en la cabeza? The learned trial court appreciated in his favor two mitigating
circumstances: voluntary surrender and provocation on the part
R. La cabeza se rajo por aquella herida causada por el bolo." (T. s. of the deceased. The first was properly appreciated; the second
n., p. 25.) was not, since it is very clear that from the moment he fled after
the first stage of the fight to the moment he died, the deceased
It will be observed that there were two stages in the fight between did not give any provocation for appellant to pursue much less
appellant and the deceased. The initial stage commenced when further to attack him.
the deceased assaulted appellant without sufficient provocation
on the part of the latter. Resisting the aggression, appellant The only provocation given by him was imbibed in, and
managed to have the upper hand in the fight, inflicting several inseparable from, the aggression with which he started the first
wounds upon the deceased, on account of which the latter fled in stage of the fight. The evidence, as weighed and appreciated by
retreat. From that moment there was no longer any danger to the the learned trial judge, who had heard, seen and observed the
life of appellant who, being virtually unscathed, could have chosen witnesses testify, clearly shows that said e ended with the flight of
to remain where he was. Resolving all doubts in his favor, the deceased after receiving a bullet wound in his right breast,
considering that in the first stage the deceased was the unlawful which caused him to stagger and fall to the ground, and several
aggressor and defendant had not given sufficient provocation, and bolo wounds inflicted by appellant during their hand-to-hand fight
considering further that when the deceased was about to deliver after had gotten up. The learned trial judge
the third blow, appellant was still in a crawling position and, on said:jgc:chanrobles.com.ph
that account, could not have effectively wielded his bolo and
therefore had to use his "paltik" revolver his only remaining "The evidence adduced by the prosecution and the defense in
weapon ; we hold that said appellant was then acting in self- support of their respective theories of the case vary materially on
defense. certain points. Some of these facts have to be admitted and some
have to be rejected with the end in view of arriving at the truth.
But when he pursued the deceased, he was no longer acting in To the mind of the Court, what really happened in the case at bar,
as can be disclosed by the records, which lead to the killing of the interpreted and applied by this Court in the Vitug case, enjoins the
leased on that fatal morning of May 29, 1945 (should be 1943), is victorious contender from pursuing his opponent on the score of
us follows:chanrob1es virtual 1aw library self-defense, it is besause this Court considered that the requisites
of self-defense had ceased to exist, principal and indispensable
x x x among these being the unlawful aggression of the opponent (Rev.
Penal Code, article 11, No. 1; 1 Viada, 5th ed., 173).

In the morning of May 29, 1943, while Dioscoro Alconga was alone Can we find under the evidence of record that after the cessation
in the guardhouse performing his duties as guard or ronda in of said aggression the provocation thus involved therein still
Barrio Santol, the deceased Silverio Barion passed by with a persisted, and to a degree sufficient to extenuate appellants
pingahan. That was the first time the deceased and the accused criminal responsibility for his acts during the second stage of the
Alconga had met since that eventful night of May 27th in the fight? Appellant did not testify nor offer other evidence to show
gambling house of Gepes. Upon seeing the accused Alconga, who that when he pursued the deceased he was still acting under the
was then seated in the guardhouse, the deceased cried: Coroy, impulse of the effects of that provocation, be it anger, obfuscation
this is now the breakfast! These words of warning were or the like. The Revised Penal Code
immediately followed by two formidable swings of the pingahan provides:jgc:chanrobles.com.ph
directed at the accused :Alconga which failed to hit him. Alconga
was able to avoid the blows by falling to the ground and crawling "ART. 1.3. Mitigating circumstances:chanrob1es virtual 1aw
on his abdomen until he was outside the guardhouse. The library
deceased followed him and while in the act of delivering the third
blow, Dioscoro Alconga fired at him with his revolver thereby xx x x
stopping the blow in mid-air. The deceased fell to the ground
momentarily and upon rising to his feet, he drew forth a dagger. "4. That sufficient provocation or threat on the part of the
The accused Alconga resorted to his bolo and both persons being offended party immediately preceded the act."cralaw virtua1aw
armed, a hand-to-hand fight followed. The deceased having library
sustained several wounds from the hands of Alconga, ran away
with the latter close to his heels."cralaw virtua1aw library It is therefore apparent that the Code requires for provocation to
be such a mitigating circumstance that it not only immediately
The foregoing statement of the pertinent facts by the learned trial precede the act but that it also be sufficient. In the Spanish Penal
judge is in substantial agreement with those found by us and Code, the adjective modifying said noun is "adecuada" and the
narrated in the first paragraphs of this decision. Upon those facts Supreme Court of Spain in its judgment of June 27, 1883,
the question arises whether when the deceased started to run and interpreted the equivalent provision of the Penal Code of that
flee, or thereafter until he died, there was any provocation given country, which was the source of our own existing Revised Penal
by him for appellant to pursue and further to attack him. It will be Code, that "adecuada" means proportionate to the damage
recalled, to begin with, that the first stage of the fight was caused by the act. Viada (Vol. 11, 5th ed., p. 51) gives the ruling of
provoked when the deceased said to appellant "Coroy, this is now that Supreme Court as follows:chanrob1es virtual 1aw library
the breakfast," or "This is your breakfast," followed; forthwith by
a swing or two of his "pingahan." These words without the El Tribunal Supremo ha declarado que la provocacion o amenaza
immediately following attack with the "pingahan" would not have que de parte del ofendido ha de preceder para la disminucion de
been uttered, we can safely assume, since such an utterance alone la responsabilidad criminal debe ser proporcionada al dao que se
would have been entirely meaningless. It was the attack, cause, lo cual no concurre a favor del reo si resulta que la unica
therefore, that effectively constituted the provocation, the cuestion que hubo fue si en un monton de yeso habia mas o menos
utterance being, at best, merely a prelude to the attack. At any cantidad y como perdiera la apuesta y bromeando dijera el que la
rate, the quoted words by themselves, without the deceaseds act gano que beberia vino de balde, esa pequea cuestion de amor
immediately following them, would certainly not have been propio no justificaba en modo alguno la ira que le impelio a herir
considered a sufficient provocation to mitigate appellants liability y matar a su contrario. (S. de 27 de junio de 1883, Gaceta de 27
in killing or injuring the deceased. For provocation in order to be a de septiembre.)
mitigating circumstance must be sufficient and immediately
preceding the act. (Revised Penal Code, article 13, No. 4.) Justice Albert, in his commentaries on the Revised Penal Code,
1946 edition, page 94, says: "The provocation or threat must be
Under the doctrine in United States v. Vitug, supra, when the sufficient, which means that it should be proportionate to the act
deceased ran and fled without having inflicted so much as a committed and adequate to stir one its commission" (Emphasis
scratch upon appellant, but after, upon the other hand, having supplied).
been wounded with one revolver shot and several bolo slashes, as
aforesaid, the right of appellant to inflict injury upon him ceased Sufficient provocation, being a matter of defense, should, like any
absolutely appellant "had no right to pursue, no right to kill or other, be affirmatively proven by the accused.
injure" said deceased for the reason that "a fleeing man is not
dangerous to the one from whom he flees. If the law, as This the instant appellant has utterly failed to do. Any way, it
would seem self-evident that appellant could never have gotten up and engaged in a hand-to-hand fight, the deceased
succeeded in showing that whatever remained of the effects of using his danger and appellant his bolo, the former received
the deceaseds aggression, by way of provocation after the latter several bolo wounds while the latter got through completely
was already in flight, was proportionate to his killing his already unscathed. And when the deceased thereupon turned and fled,
defeated adversary. the circumstances were such that it would be unduly stretching e
imagination to consider that appellant was still in anger from his
That provocation gave rise to a fight between the two men, and defeated and fleeing opponent. Appellant reserved his revolver
may be said, not without reason, to have spent itself after and his bolo, and if he could therefore so easily overpower the
appellant had shot the deceased in his right breast and caused the deceased, when the latter ad not yet received any injury, it would
latter to fall to the ground; or making a concession in need, indeed, an unusually strong positive showing which is
appellants favor after the latter had inflicted several bolo completely sent from the record to persuade us that he had not
wounds upon the deceased, without the deceased so much as t "secured himself from danger" after shooting his weakly armed
having scratched his body in their hand-to-hand fight when both adversary in the right breast and giving him several bolo slashes in
were on their feet again. But if we are to grant appellant a further different other parts of his body. To so hold would, we believe, be
concession, under the view most favorable to him, that aggression unjustifiably extending the doctrine of the Rivera case to an
must be deemed to have ceased upon the flight of the deceased extreme not therein contemplated.
upon the end of the first stage of the fight. In so affirming, we
had to strain the concept in no small degree. But to further strain Under article 249, in relation with article 64, No. 2, of the Revised
it so as to find that said aggression or provocation persisted even Penal Code, the crime committed by appellant is punishable by
when the deceased was already in flight, clearly accepting defeat reclusion temporal in its minimum period, which would be from
and no less clearly running for his life rather than evincing an 12 years and 1 day to 14 years and 8 months. However, in
intention of returning to the fight, is more than we can sanction. imposing the penalty, we take into consideration the provisions of
It should always be remembered that "illegal aggression" is section 1 of the Indeterminate Sentence Law (Act No. 4103), as
equivalent to assault or at least threatened assault of an amended by Act No. 4225. Accordingly, we find appellant guilty of
immediate and imminent kind.the aforesaid crime of homicide and sentence him to an
indeterminate penalty of from 6 years and 1 day of prison mayor
"Agression ilegitimate. Agresion vale tanto como to 14 years and 8 months of reclusion temporal, to indemnify the
acometimiento. Para que exista el derecho de defensa es preciso heirs of the deceased in the sum of P2,000, and to pay the costs.
que se nos acometa, que se nos ataque, o cuando menos, que se
nos amenace de atacanos de un modo inmediato e inminente; v. As thus modified, the judgment appealed from is hereby affirmed.
gr., desenvainando el pual para herirnos con el o apuntando la So ordered.
pistola para dispararla contra nosotros." (Viada, 5. edicion, 173.)
Moran, C.J., Pablo, Bengzon, Briones, Hontiveros, Padilla and
After the flight of the deceased there was clearly neither an Tuason, JJ., concur.
assault nor a threatened assault of the remotest kind It has been
suggested that when pursuing his fleeing, opponent, appellant Moran, C.J., I certify that Mr. Justice Feria concurs in this decision.
might have thought or believed that said opponent was going to
his house to fetch some other weapon. But whether we consider Separate Opinions
this as a part or continuation of the self-defense alleged by
appellant, or as a separate circumstance, the burden of proof to
establish such a defense was, of course, upon appellant, and he PARAS, J., dissenting:chanrob1es virtual 1aw library
has not so much as attempted to introduce evidence for this
purpose. If he really thought so, or believed so, he should have I agree to the statement of facts in so far as it concerns what is
positively proven it, as any other defense. We cannot now called by the majority the first stage of the fight. The following
gratuitously assume it in his behalf. narration dealing with the second stage is not, however, in
accordance with the record: "Having sustained several wounds,
It is true that in the case of United States v. Rivera (41 Phil., 472, the deceased ran away but was followed by the accused (t. s. n.,
474), this Court held that one defending himself or his property p. 6). After running a distance of about 200 meters (t. s. n., pp. 21,
from a felony violently or by surprise threatened by another is not 108), the deceased was overtaken, and another fight took place,
obliged to retreat but may pursue his adversary until he has during which the mortal bolo blow the one which slashed the
secured himself from danger. But that is not this case. Here from cranium was delivered, causing the deceased to fall to the
the very start appellant was the holder of the stronger and more ground, face downward besides many other blows delivered right
deadly weapons a revolver and a bolo, as against a piece f and left (t. s. n., pp. 6, 28)."cralaw virtua1aw library
bamboo called pingahan" and a dagger in the possession of the
deceased. In actual performance appellant, from the very It should be noted that the testimony of witness Luis Ballaran for
beginning, demonstrated his superior fighting ability; and he the prosecution has been completely discarded by the lower court
confirmed it when after the deceased as first felled down by the and we can do no better in this appeal. Had said testimony been
revolver shot in his right breast, and after both combatants had given credit, the accused-appellant would appear to have been
the aggressor from. the beginning, and the facts constitutive of the not intervene in the incident nor shouted for help. He did not tell
first stage of the fight, as testified to by said accused, should not anybody of the incident, neither the chief of police, the fiscal, nor
have been accepted by the lower court. Now, continuing his the justice of the peace.
testimony, the accused stated: "Cuando yo paraba las pualadas
se avalanzaba hacia mi y yo daba pasos atras hasta llegar al terlenoGil G. Estaniel, Police Sergeant of San Dionisio. He went in the
palayero (t. s. n., p. 102). Y mientras el seguia avalanzandome company of the justice of the peace to the place of the incident.
dandome punaladas y yo seguia dando pasos atras, y al final, He saw the body of the deceased Barion and examined his
cuando el ya quiso darme na pualada certera con fuerza el se wounds. The deceased had wounds in the head, arms, hands,
cayo al suelo por su inercia (t. s. n., p. 102). Si, seor, yo daba pasos
lower jaw, neck, chest. The small finger of his right hand was
atras y tratando de parar la pualada (t. s. n., p. 108)."cralaw severed. There were other wounds. The cranium was broken. At
virtua1aw library
the right side of the chest there was a gunshot wound. After the
inspection, the body of the deceased was delivered to the widow.
It is thus shown that the accused never pursued the deceased. On The accused were arrested, but refused to testify.
the contrary, the deceased tried to continue his assault started
during the first stage of the fight, and the accused had been Ruperto L. Libres, acting clerk of court since May 16, 43. He
avoiding the blows by stepping backward. received one paltik with blank cartridge, one bolo, one cane of
bahi and one dagger, which weapons he d not produce save the
There may be error as to the exact distance between the paltik. The other effects were missing due to transfers caused by
guardhouse and the place where the deceased fell. What is very frequent enemy penetration in Dingle. The bolo was a rusty
clear is that it was during the first stage of the fight that the working bolo The dagger was 6 inches long, made of iron. The bolo
deceased received a wound just below the right chest, caused by was 11/2 feet long. The bahi was a cane of average legth, about 2
a bullet that penetrated and remained in said part of the body. inches wide and 3/4 of an inch thick.
According to the witness for the prosecution, that wound was also
fatal. Maria de Raposo. On May 29, 1943, the witness was walking
following Silverio Barion. When the latter passed from of the
Since the lower court by its decision has considered the testimony home guard shed, Bracamonte pursued him d hit him with the
of the witnesses for the prosecution to be unworthy of credit, and, bahi. Barion fell down; Alconga proached him and stabbed him
as we also believe that said witnesses were really not present at with his bolo, after which shot him with his paltik. When Barion
the place and time of the occurrence, this Court is bound by the saw that the accused were looking at Luis Ballaran he rose up and
testimony of the witnesses for the defense as to what in fact ran awards a rice-field where he fell down. The accused pursued
happened, under and by which the appellant is shown to have him and stabbed him right and left. When Barion died, the accused
acted in self-defense. went away. Bracamonte shouted that he as ready to face the
relatives of the deceased who might feel aggrieved. The witness
Wherefore, he should be acquitted. was about twenty meters from the place of the incident. The
deceased was her cousin. The witness also passed in front of the
PERFECTO, J., dissenting:chanrob1es virtual 1aw library shed, but does not know whether Luis Ballaran who was in the
shed was able to see her. She passed at about three meters from
Four witnesses testified for the prosecution. In syn thesis their Luis Ballaran. Before Bracamonte delivered the first low to Barion,
testimonies are as follows:chanrob1es virtual 1aw library the witness did not hear any exchange f words. When Barion fell,
the witness remained standing at the canal of the road at about
Luis Ballaran. On May 29, 1943, at about 9 oclock a. m., while twenty meters from Ballaran. On Thursday night, May 27, there
the two accused Dioscoro Alconga and Rodolfo Bracamonte were was gambling going on in the house of Mauricio Gepes. The
in search for home guards, Siverio Barion passed by. Alconga witness played black jack with Dioscoro Alconga against Silverio
invited him for breakfast. But Barion ran and Alconga followed Barion.
him. When Barion looked back, Bracamonte hit him with a stick at
the left temple. The stick was of bahi. Barion fell down. Alconga The two accused and three witnesses testified for the defense,
stabbed him with his bolo. Then he fired with his paltik. After and their testimonies are synthesized as follows:chanrob1es
having been fired at with the paltik, Barion rose up and ran virtual 1aw library
towards his house. The two accused pursued him. Alconga
stabbed him right and left and Bracamonte hit him with his bahi. Juan Collado. This witness is a soldier who took part n the arrest
When Barion breathed no more, the two accused went to the of Dioscoro Alconga, whom he delivered to Barredo with a
municipal building of San Dionisio. The witness went home revolver, a bolo, and a dagger.
without approaching Barion. During the whole fight, the witness
remained standing in the home guard shed. At the time there Felix Dichosa. In the morning of May 29, 1943, the witness was
were no other people in the place. The witness is an uncle of the in the home guard shed. When Bioy (Silveno Barion) was about to
deceased Barion. The shed was about half a kilometer from the arrive at the place, the witness asked him if he had fish. He
farm in which the witness was working. The place where Barion answered no and then went a his way. The witness went to the
fell was about the middle between the two places. The witness did road and he heard Bioy saying: "So you are here, lightning ! Your
hour has come." The witness saw Bioy striking Dioscoro Alcon with
the lever he used for carrying fish. Alconga was not hit. Bioy tried
to strike him again, but Alconga sought cover under the bench of
the shed. The bench was hit. When Bioy pursued him and gave him
a blow with a bolo, the witness heard a gunshot and he saw Bioy
falling down. Upon falling in a sitting position, Bioy took a dagger
with the purpose of stabbing Alconga. Upon seeing this, Alconga
stabbed Barion right and left, while Barion was coming against
Alconga. When Barion fell into the canal, the witness shouted for
help. Rodolfo Bracamonte and Dalmacio Mendoza came. When
the witness came out from the shed and was at a distance of ten
brazas, he saw Ballaran, and requested him to intervene in the
fight, because the witness felt that Bioy was about to kill Alconga.
Ballaran went to their shed and the witness went to his house. At
noon, Ballaran went to the house of the witness to ask him to
testify and gave him instructions to testify differently from what
actually had happened. The witness told him that it would be
better if Ballaran himself should testify and Ballaran answered: "I
cannot be cause I was not present. You can testify better because
you were present. I will go down to look for another
witness."cralaw virtua1aw library
Dalmacio Mendoza. On the morning of May 29, 1943, he went
to the house of Rodolfo Bracamonte to borrow a small saw and
one auger. While the witness was conversing with Bracamonte, a
gunshot was fired. Bracamonte announced that he was going to
the home guard shed and stated: "That Goroy is a fool, because
he fired a revolver which has but one bullet." The witness
followed. Upon reaching the shed they saw Felix Dichosa, who said
that Bracamonte and the witness should hurry because Coroy to
be killed by Bioy. The witness saw Bioy falling. In front of him was
Alconga who took a dagger from the ground. The dagger was in
Barions hand before he fell. Bracamonte asked Alconga: "Coroy,
what did you do to Silverio?" Alconga answered: "I killed Bioy,
because if I did not he would have killed me. My shirt was pierced
by the dagger, and if I did not evade I would have been hit.
"Bracamonte said. "Go to town, to the authority, I will accompany
you." After leaving the place, Alconga, Bracamonte and the
witness met Luis Ballaran who asked: Rodolfo. what happened to
the boys?" Rodolfo answered: Go and help Bioy because I am
going to bring Coroy to the town officer." Ballaran went to the
place where Barion as lying, while Alconga and Bracamonte went
to town.
Adolfo Bracamonte. His true name is Adolfo and not Rodolfo as
stated in the information, which was amended accordingly. He
belies the testimonies of Luis Ballaran and Maria de Raposo. At
about 7 oclock a. m. on May 29, 1943, he went to the home guard
shed, he being the leader. "When he found it without guards, he
called Alconga to mount guard and delivered to him the paltik
Exhibit A. . The witness returned home to take breakfast. Dalmacio
Mendoza came to borrow a small saw and auger, because the
witness is also a carpenter. He heard a gunshot, and he went to
the shed, followed by Dalmacio. When they were approaching the
shed, Felix Dichosa shouted: "Come in a hurry, because Bioy is
going to kill Dioscoro Alconga." The witness asked: "Where are
they?" Dichosa showed e place. The witness went towards the
place and he saw o persons fighting. One fell down. Upon seeing
Barion falling, the witness shouted to Alconga: "What happened
to you?" Alconga answered: "Manoy, I stabbed Bioy, because if I
did not he was to kill me," showing his shirt. When Barion fell
down the witness saw him with dagger. Upon meeting him coming
from the opposite direction, Ballaran addressed Bracamonte:
"Rodolfo what happened?" Baracamonte answered: "Bioy is in the
rice land. Help him because I am going to bring Dioscoro to the
town and I will return immediately." Ballaran went to the place
where Barion fell. On the way, Alconga was taken by soldier Juan
Collado who later brought him to the town of San Dionisio. The
witness did not carry at the time of the incident any cane of bahi
nor did he carry one on other occasions. The occupation of the
deceased was selling fish and he used to take much tuba. He was
of aggressive character and sturdier than Alconga. Once, Barion
gave a fist blow to the witness and on another occasion stabbed
him with a bolo, wounding him in the head. For such stabbing,
Barion was held in prison for one month.
Dioscoro Alconga. On May 27, Thursday, at night, he went to
gamble in the house of Mauricio Gepes. Mahjong, poker, monte
and black jack were being played in the house. Maria de Raposo
invited Alconga to be her partner in black jack against Barion who
was then the banker. Each put a share of P5. When Alconga placed
himself behind Barion, the latter saw Maria winking to Alconga.
Barion looked back at Alconga saying: "Coroy it seems that you are
cheating. Son of a whore." Alconga answered "Bioy you are also
son of a whore. I am not like you who lives on cheating." Barion
stood up to give a fist blow to Alconga who pinned him to his sit
and attempted to give him a fist blow. The owner of the house
separated them. Barion struck Maria de Raposo, because he was
losing in the game, threw away the cards, took the money from
the table, and rose to leave the place. While he was walking he
addressed Alconga: "Coroy you are son of a whore. Tomorrow I
will give you a breakfast. You failed to take lesson by the fact that
I boloed the head of your brother," referring to Bracamonte.
When Alconga saw Maria leaving the place, he pursued her asking
for his share of the winnings. Maria answered: "What winnings are
you asking for?" Alconga said: "You are like your cousin. Both of
you are cheaters." Maria went away insulting the accused. On the
morning of the 29th, Alconga went to one of his houses carrying
an old working bolo to do some repairing. He left his long combat
bolo in one of his houses. On the way he met Bracamonte who
instructed him to mount guard in the home guard shed, because
no one was there. Bracamonte gave him a paltik After staying
about two hours in the shed, Bioy came and upon seeing him,
threw away his baskets and with his carrying lever gave a blow to
Alconga, saying "This is your breakfast." Alconga was not hit
because he dodged the blow, by allowing himself to fall down. He
sought cover under a bench with the purpose of going away.
Barion gave him another blow, but his lever hit the bench instead.
When Alconga was able to come out from under the bench, Barion
went to the other side of the shed with the intention of striking
him. Alconga took the paltik and fired. Barion fell down losing hold
of the lever. Both stood up at the same time; Barion took his
dagger and stabbed Alconga with it saying: "You are son of a
whore, Coroy, I will kill you." Alconga took his bolo to stop the
dagger thrust. Barion continued attacking Alconga with dagger
thrusts, while Alconga kept stepping back in the direction of the
rice lands. In one of his dagger thrusts, Barion fell down by his own
weight. Alconga took the dagger from his hand, and at the same
time Alconga heard his brother Bracamonte asking: "Coroy Coroy,
what is that?" Alconga answered: "Manoy, I killed Bioy, because if
I did not he would have killed me." Bracamonte took the paltik,
the bolo and the dagger and pushing Alconga said: "Go to town."
Alconga added: "Look, Bioy gave me dagger thrusts, if I did not
escape he would had killed me," showing his torn shirt.
Bracamonte said: "Go to town, I will bring you to the town officer."
On the way, they met Luis Ballaran who asked: "Rodolfo, what
happened to the boys?" Bracamonte answered: "Uncle Luis, go to
help Silverio at the rice land because am going to bring my brother
to town and I will return soon.
carrying lever.
(c) That Alconga, to defend himself, at first fired the only bullet
available in the paltik given to him by Bracamonte
(d) That although Barion had fallen and lost hold of his carrying
lever, he was able to stand up immediately and with a dagger
continued attacking Alconga.
(e) That Alconga took his old rusty bolo to defend him-self against
the dagger thrusts of Barion, while at the same time stepping
backwards until both reached the rice land, where Barion fell
dead.

For all the foregoing we are convinced:chanrob1es virtual 1aw (f) That the wounds received by Barion, who was sturdier and of
library aggressive character, were inflicted on him by Alconga while
defending himself against the illegal aggression of Barion.
1. That the testimonies of Luis Ballaran and Maria Raposo are
unworthy of credit. Both have been contradicted by the witnesses (g) That in view of the number of wounds received by Barion, it is
for the defense, and the fact that the lower court acquitted Adolfo most probable that Alconga continued being blows with his bolo
Bracamonte, show that it believed the theory of the defense to even after Barion was already unable to fight back.
the effect that it is not true, as testified to by Luis Ballaran and
Maria de Raposo, that Bracamonte took active part in the fight and (h) The theory of dividing the fight which took place in two stages,
it was he who gave the first blow to the deceased with his bahi in the first one, Barion being the aggressor, and in the second one,
cane, causing him to fall. Ballarans declaration to the effect that as the victim, finds no support in the evidence. It seems clear to us
aside from the two accused, the deceased and himself, no other that the fight, from the beginning to the end, was a continuous
people were in the place, is directly contradicted by Maria de and uninterrupted occurrence. There is no evidence upon which
Raposo who said that she even passed in front of Ballaran, within to base the proposition that there were two stages or periods in
a few meters from him. There being no way of reconciling the the incident, in such a way that we might be allowed to conclude
contradicting testimonies of Ballaran and Maria and of that in fact there were two fights.
determining who among the two, declared the truth, we cannot
but reject both testimonies as unreliable. Felix Dichosa testified The fact that Barion died with many wounds might be taken
the Ballaran went to his house to request him to testify with against appellant and may weaken the theory that he acted only
instructions to give facts different from those which actually in legitimate self-defense. To judge, however, the conduct of
happened. Upon Dichosas suggestion that Ballara himself testify, appellant during the whole incident, it is necessary to consider the
Ballaran had to confess that he did not s what happened and he psychology of a person engaged in a life or death struggle, acting
was going to look for another witness. The prosecution did not under the irresistible impulses of self-preservation and blinded by
dare to recall Ballaran belie Dichosa. anger and indignation for the illegal aggression of which he was
the victim. A person placed in such a crucial situation must have
2. That Adolfo Bracamonte did not take part in t fight which to summon all his physiological resources and physical forces to
resulted in Barions death. When Bracamonte arrived at the place rally to the one and indivisible aim of survival and, to that end,
of the struggle, he found Barion al ready a cadaver. placed his energies on the level of highest pitch. In that moment
of physical and spiritual hypertension, to ask that a man should
3. That after rejecting the incredible version of Luis . Ballaran and measure his acts as an architect would make measurements to
Maria de Raposo, the only version available of what happened is achieve proportion and symmetry in a proposed building or a
the one given in the testimony o Alconga, well-supported and scientist would make a calibration, so that his acts of self-defense
corroborated by all the other witnesses for the defense. should stop precisely at the undeterminable border line when the
aggressor ceases to be dangerous, is to ask the impossible.
4. That according to the testimony of Alconga, there not be any Appellants conduct must be judged not by the standards which
question on the following:chanrob1es virtual 1aw library may be exacted from the supermen of the future, if progressive
evolution may happen to develop them. Appellants conduct can
(a) That Barion had a grudge against Alconga in view of the only be tested by the average standards of human nature as we
gambling incident on the night of May 27, in which he promised to found it, which has many limitations and defects. If in trying to
give Alconga a breakfast, which, upon what subsequently eliminate an actual danger menacing his own existence, appellant
happened, was in fact a menace to kill him. was not able to moderate his efforts to destroy that menace to
the extent of actually killing his aggressor, he is certainly not
(b) That while Alconga was alone in the home guard shed, Barion, accountable. He is not an angel. We must judge him as a man, with
upon seeing him, suddenly attacked him with blows with his its average baggage of faults and imperfections. After all, the
aggressor ought to know that he acted at his risk, and that by
trying to kill a human being he defied fate, he gambled his own
life. Fate is always stronger than all its challengers. He who
gambles with life, like all gamblers, in the end becomes the loser.

Peace cannot remain undisturbed and justice cannot remain

unchallenged unless all aggression is stopped. individual or
collective. A great number of human miseries are the, natural
fruits of aggression. One of the means of curving it is to give a
conclusive notice to all aggressors, not only are they to pay very
dearly for their acts, but that the victims of their aggression are
entitled, in self-defense, to avail themselves of even the most
devastating weapons. Those who allow themselves to run amuck
in an aggression spree cannot complain because the means of
defense of the victims happen to be destructive. re may be some
narrow-minded persons who would hold illegal the use by the
Americans of the atomic bomb to compel Japan to surrender. They
must be followers of philosophy of the sheep. We prefer to follow
the principle of dynamic self-defense for the innocent. Those who
are bent on destroying human beings, must, before they able to
achieve their diabolical objective, be first destroyed. Those who
were killed at Hiroshima and Nagasaki may appeal to our pity, but
the millions whose lives were spared by the prompt and
spectacular ending of the war with the help of the atomic energy,
are entitled to justice, a justice which would have been denied
them if Americans, swayed by unreasonable feminine
compunctions, should have abstained from using the weapon
upon which were pinned the hopes and salvation of those millions
of innocent human beings. While those who cannot offend and
the defenseless may merit all our sympathy and kindness, those
who constitute an actual menace to human life are liable to be
relentlessly crushed, until the last residuum of menace has been
wiped out.

We vote to acquit appellant.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-28129 October 31, 1969
ELIAS VALCORZA, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
Nemesio G. Beltran for petitioner.
Office of the Solicitor General Antonio P. Barredo, Assistant
Solicitor General Isidro C. Borromeo and Solicitor Dominador L.
Quiroz for respondent.
DIZON, J.:
Elias Valcorza was charged with homicide in the Court of First
Instance of Bukidnon where, after trial, he was found guilty
thereof, with the mitigating circumstances of lack of intention to
commit so grave a wrong as the one committed and voluntary
surrender, and sentenced to suffer an indeterminate sentence of
not less than two years, four months and one day of prision
correccional, nor more than eight years and one day of prision
mayor, to indemnify the heirs of Roberto Pimentel in the amount
of 6,000, but without subsidiary imprisonment in case of
insolvency, and to pay the costs. He appealed to the Court of
Appeals where, on August 16, 1967, judgment was rendered
modifying the decision of the trial court, as follows:
WHEREFORE, the judgment is modified as to the prison term and
appellant Elias Valcorza is declared guilty of homicide with the
mitigating circumstances of voluntary surrender and passion and
obfuscation and, accordingly, he is sentenced to serve an
indeterminate penalty of four (4) months and one (1) day
of arresto mayor, as minimum, to two (2) years, four (4) months
and one (1) day of prision correccional, as maximum, with the
accessories of the law; to pay the heirs of the deceased, Roberto
Pimentel, in the sum of six thousand pesos (P6,000.00), together
with the costs.
In all other respects, the appealed judgment is affirmed.
From the above decision the present appeal by certiorari was
taken, it being petitioner's claim that the Court of Appeals
committed the following errors:
ASSIGNMENT OF ERRORS
I and immediately chased the deceased, firing a shot into the air
THAT THE HONORABLE COURT OF APPEALS (MAJORITY DECISION)
ERRED IN HOLDING THAT PETITIONER ALTHOUGH IN THE
PERFORMANCE OF HIS DUTY AS PEACE OFFICER WAS NOT
JUSTIFIED IN SHOOTING THE DECEASED BECAUSE THERE WAS NO
DANGER TO HIS LIFE OR LIMB, A RULING WHICH IS BEYOND THE
CONTEXT OF ARTICLE 11, PARAGRAPH 5 OF THE REVISED PENAL
CODE AND CONTRARY TO THE RULING LAID BY THIS HONORABLE
SUPREME COURT IN PEOPLE VERSUS DELIMA, 46 PHIL. 738;
II
THAT THE HONORABLE COURT OF APPEALS (MAJORITY DECISION)
ERRED IN LIKING PETITIONER TO A TRIGGER-HAPPY POLICEMAN
AND IN HOLDING THAT THE DECEASED HAS NOT SHOWN TO BE A
DANGEROUS PERSON, A RULING WHICH IS CONTRARY TO ITS
FINDING OF FACTS;
III
THAT THE HONORABLE COURT OF APPEALS (MAJORITY DECISION)
ERRED IN NOT ACQUITTING THE PETITIONER BASED ON THE FACTS
IN RELATION TO ARTICLE 11, PARAGRAPH 5 OF THE REVISED
PENAL CODE.
The facts found by the Court of Appeals which must be deemed
conclusive for the purpose of this appeal are as follows:
The deceased, Roberto Pimentel, was confined an June 4, 1960 in
the municipal jail of Maramag, Bukidnon, as a detention prisoner
to answer a charge of stealing a chicken. At about 1:00 p.m. when
appellant was the police guard on duty, Roberto Pimentel
escaped. The following day a police patrol team composed of
Police Sgt. Federico Daiton and Patrolmen Melquiades Caas,
Pablo Lubido and the appellant himself went to a place called
Poultry Area in barrio Cuya, Maramag, Bukidnon, where the
accused had been reported to be hiding, for the purpose of
bringing him back to jail. Their efforts to locate and apprehend
Roberto Pimentel having been fruitless, they decided to pass the
night in the house of one Gavino Tirayosa intending to return to
town the following morning.
At about five o'clock in the morning of the next day, June 6, 1960,
Sgt. Daiton went down from the house of Gavino Tirayosa to
answer a call of nature. He went to a nearby bridge and squatted
thereon to defecate. While he was in that position, he saw a
person approaching slowly and he ordered him to halt. The latter
instead of doing so, jumped down into the creek spanned by the
bridge. He yelled for his companions, saying that the person who
jumped into the creek could be their quarry. Patrolmen Caas,
Lubido and the appellant rushed out of the house of Gavino
Tirayosa, Caas and appellant going to the place at the creek
where the person had jumped down.
Sgt. Daiton stationed himself near the bridge and Patrolman
Lubido went to the other side of the creek. Appellant and Caas
followed the course of the creek and after covering a distance of
100 meters they came across footprints which they examined
separately. While they were doing so, Roberto Pimentel emerged
suddenly from the bushes and lunged at the appellant, hitting him
with a stone at the right cheek and causing him to fall to the
ground. When appellant Valcorza was on the ground, Roberto
Pimentel again struck him with a stone on the right arm. Fearing
that Pimentel might grab his service revolver, appellant Valcorza
summoned Patrolman Caas who dashed towards the place but
Pimentel ran away. Appellant Valcorza regained his composure
and ordering him to stop. As the deceased did not heed his order,
appellant fired four times into the air, at the same time pursuing
the prisoner for a distance of about 100 meters. At that point,
fearing that the patrol team might fail in apprehending the
deceased, appellant Valcorza fired a fifth shot at Pimentel as the
latter was in an act of again jumping down into another part of the
creek and when the distance between the two was only three
meters. Patrolman Ca__as could not be of much help in the chase
because his revolver got entangled with some vines and he
dropped it. After recovering his revolver he joined Valcorza but
Pimentel had already jumped down into the water of the creek.
The members of the patrol team went down into the water to
locate Pimentel and they saw him floating, with a wound on his
back. As Pimentel was still alive, he was placed in the police jeep
and taken to the poblacion of Maramag for treatment, but he died
a few minutes after arrival in the municipal building.
The physician who examined the cadaver of the victim gave the
opinion that the missile from the gun fired against the victim
entered at the right side of the back but the slug was lodged inside
the body. The gray discoloration at the edge or rim of the wound
of entry showed the presence of powder burns which, in the
opinion of the physician, indicates that the gun was fired at close
range.
Elias Valcorza surrendered himself and his firearm to the Chief of
Police upon arrival in the municipal building of Maramag.
Appellant seeks to justify his firing the shot against the deceased
by stating that he tried to hit him only at the leg, after he had
disregarded his several warning shots and orders to stop running
away. He claims that he did so at the spur of the moment probably
because he feared that his patrol team might not succeed in
apprehending the deceased and bringing him back to jail.
Furthermore, he also claims that he only fired at the deceased
when the latter was in the act of jumping down into the creek
which had water of 8 feet deep, and if the deceased succeeded in
crossing the creek the patrol team might not be able to apprehend
him. In brief the appellant conveys idea that he had to fire at the
deceased in order that he may not continue escaping.
The above version of the appellant was given in open court when
he testified on October 4, 1962 (t.s.n. pp. 9, 76). However, he
claims that he aimed only at the leg of the deceased is not
consistent with what he said in his sworn statement, Exhibit A.
'Question and Answer No. 7' (p. 1, Criminal Case Record), given to
the Constabulary soldiers on the afternoon of the day of the
incident, or at 3:15 p.m. of June 6, 1960. In narrating how the
deceased was shot, appellant Valcorza stated in part as follows:
"But said Roberto Pimentel tried his very best to make another
escape then he ran away cause I was fell down on the ground
during the time I wrestled him, Roberto Pimentel. Then I still
follow him and fire my revolver four (4) times up in the sky to stop
him but still he continue running, so what I did I fired him one
direct hit shot on his back then he tried dive escape into the water,
and because he could not do anything cause he was already
suffering from a gunshot wound we pick him up and bring him to
our headquarters in the Office of the Chief of Police of Maramag,
Bukidnon, for the necessary treatment of the gunshot wound on
his right side back ... ."
What the appellant said on June 6, 1960 in his statement, Exhibit
A, which he subscribed and sworn to before the Justice of the
Peace of Maramag, Bukidnon, on June 7, 1960, is an unadulterated
narration of what happened on the day of the incident more than
two years before he took the witness stand. This first narration is
more reliable because it was made when there was yet no time
for reflection so as to make his story fit into the facts of the
incident. After the lapse of two years during which he could
deliberate and analyze the occurrence and prepare his defense,
his testimony in court no longer jibed with what he said shortly
after the event. This inconsistency affects his credibility and
wrecks his theory that he had no intention to kill the deceased but
only meant to disable him from further escaping. It also seriously
impairs his defense as it shows that there was no reasonable
necessity for appellant to shoot the deceased at the time he was
running away with no weapon in his hands which he could use for
aggression against the appellant in case he desired to turn back
and face the latter. (pp. 3-7, Annex "A", Petitioner's brief.)
There is no question, therefore, that: on June 4, 1960, the
deceased Roberto Pimentel was a detention prisoner confined in
the municipal jail of Maramag, Bukidnon, from which he escaped
at about one o'clock p.m. that day when petitioner was on guard
duty; the following day four members of the police force of the
municipality, petitioner included, went after him to a place called
Poultry Area in barrio Cuya, their first efforts to locate him there
being unsuccessful; early the following morning, while Sgt. Daiton,
who led the patrol, was squatting on a bridge to answer a call of
nature, he saw a man approaching slowly and he ordered him to
stop; the latter, who happened to be the escaped detainee,
instead of doing so, jumped into the creek spanned by the bridge,
whereupon Sgt. Daiton summoned his three companions who all
rushed out of the house where they had spent the night, and went
after the escaping prisoner; petitioner and policeman Ca__as,
while following the course of the creek and examining certain
footprints they had found, saw their quarry suddenly emerging
from nearby bushes; the latter lunged at petitioner hitting him
with a stone on the right cheek, as a consequence of which he fell
down, and while in that position on the ground he was struck again
with a stone by the escaping detainee; thereafter the latter ran
away pursued by petitioner and his companion; in the course of
the pursuit the former fired a warning shot into the air, and as the
escaping detainee paid no heed to this, petitioner fired into the air
four times more and kept on pursuing him; as the latter was
apparently widening the distance between them, and fearing that
he might finally be able to elude arrest, petitioner fired directly at
him while he was in the act of jumping again into another part of
the creek, the shot having hit him on the back; as a result of the
wound thus inflicted upon him, Pimentel died a few minutes after
arrival at the municipal building to which he was taken.
While We have not lost sight of the fact that the deceased
Pimentel was charged with a relatively minor offense, namely,
stealing a chicken; and while We do not in any way wish to
encourage law enforcing officers to be trigger-happy nor to
employ force and violence upon persons under their custody, We
cannot, in the consideration of this case, disregard the following
facts: the said deceased, in violation of the law, had escaped from
detention; when ordered to stop by Sgt. Daiton whom he must
have recognized as a peace officer in his pursuit he ran away
and then threw himself into a creek to elude his pursuer; after
sometime he suddenly emerged from bushes near which
petitioner and a fellow policeman were and assaulted the former
twice with a stone and then ran away again pursued by petitioner
and his companion; that petitioner does not appear to be a
trigger-happy policeman as shown by the fact that he had fired
five cautionary shots into the air and decided to aim directly at the
escaping detainee only when he had already reasons to fear that
the latter would be able to elude him and his companions. These
facts and circumstances constrain Us to hold that the act thus
performed by petitioner and which unfortunately resulted in
the death of the escaping detainee was committed in the
performance of his official duty and was more or less necessary to
prevent the escaping prisoner from successfully eluding the
officers of the law. To hold him guilty of homicide may have the
effect of demoralizing police officers discharging official functions
identical or similar to those in the performance of which petitioner
was engaged at the time he fired at the deceased Pimentel, with
the result that thereafter We would have half-hearted and
dispirited efforts on their part to comply with such official duty.
This of course, would be to the great detriment of public interest.
CONSEQUENTLY, in the spirit of our decision in People vs. Delima,
46 Phil. 738, the decision appealed from is hereby reversed and,
as a consequence, petitioner is acquitted, with costs de officio.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro,
Fernando, and Teehankee, JJ., concur.
Sanchez and Barredo, JJ., took no part.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-32390 December 28, 1973
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CLEMENTE AQUINO, defendant-appellant.
Office of the Solicitor General Antonio P. Barredo, Assistant
Solicitor Crispin V. Bautista and Solicitor Enrique M. Reyes for
plaintiff-appellee.
Feliberto V. Castillo for defendant-appellant.
MAKALINTAL, C.J.:
In Criminal Case No. 6404-M of the Court of First Instance of
Bulacan, Clemente Aquino was charged with and found guilty of
murder for the death of Pedro Cruz in the afternoon of April 29,
1967 at barrio Sibul, San Miguel, Bulacan. He was sentenced
to reclusion perpetua, to pay an indemnity of P12,000.00 and
P10,000.00 for actual expenses and damages suffered by the heirs
of the victim. The case thereafter elevated to this Court on appeal.
There is no dispute as to the fact of the killing. Aquino did it with
a revolver, caliber .22, which he fired four times in succession. His
plea is self-defense.
Cruz was an employee of the Farmont Mines and Aquino was
working as truck driver for a certain Leoncio de Guzman owner of
a white clay mine adjacent to the Farmont property. It seems that
there was some kind of rivalry between the two mining
establishments, which somehow involved their respective
personnel.
The case for the prosecution consists of the testimony of three
principal witnesses, all employees of the Farmont Mines namely,
Priscila Corpuz, Jorge Cruz and Dominador Cruz. In the morning of
April 29, 1967 they rode together with Pedro Cruz in the latter's
jeep to go to the Farmont Mines site at Akle, San Ildefonso,
Bulacan. On their way they passed Bo. Pinaod where they saw a
truck parked by the roadside and a jeep behind. Clemente Aquino
was at the driver's seat of the truck and Leoncio de Guzman was
inside the jeep. Priscila Corpuz said she afterwards noticed the two
vehicles following her group at a distance of about 100 meters. A
half hour after she and her companions reached the mine site
Clemente Aquino arrived in his truck and "passed thru the fence
of the Farmont Mines. Pedro Cruz was then inside the Farmont
property, repairing his own jeep, and after Aquino rammed the
truck through the fence, Cruz went directly to his jeep and drove
it to intercept the other vehicle. When Cruz caught up he alighted
from the jeep and without any previous exchange of words
between them Aquino immediately shot him.
Jorge Cruz related substantially the same story as that given by
Priscila Corpuz, except that while the latter said she joined her
companions before reaching Bo. Pinaod, where she got off the
jeep for a while to buy some foodstuffs, Jorge Cruz said that it was
in the said barrio that they picked up Priscilla, he himself having
joined Pedro Cruz in the latter's jeep much earlier in the day.
The third witness for the prosecution was Dominador Cruz, who
was also in the group which rode in the jeep of the deceased Pedro
Cruz in going to the mine site. The version of all three is that after
alighting from his jeep, which he used to intercept Clemente
Aquino's truck, catching up with the latter on the dry bed of the
river near the Farmont property, Pedro Cruz walked to where the
truck had stopped. He was standing some two or three meters
from the truck, to the left of the driver's seat, when Clemente
Aquino shot him four times, killing him on the spot.
Aquino's version as to the circumstances which led to the shooting
contradicts that of the prosecution. He did not drive thru or ram
the fence of the Farmont Mines. He was a truck driver for Leoncio
de Guzman, his shift of duty being in the afternoon, while another
driver, Melencio Guevarra, drove the truck in the morning. At
11:30 on April 29, 1967, he took over as driver at the clay stockpile
in Bo. Akle and left for the mine site, together with Guevarra and
Teofilo de Guzman. On the way he gave a lift to several persons,
including an army soldier by the name of Conrado Ferma the
latter's wife and two children. To go to the mine site he did not
have to pass thru the Farmont property because some distance
from it a passageway to the dry river bed had been constructed by
Leoncio de Guzman's laborers. While he was negotiating that
passageway, however, he accidentally rammed three or four
bamboo posts which were stuck into the ground. He proceeded
on the dry river bed, stopped to unload the soldier and his family
near their hut, and then continued on his way. He had covered a
short distance when he saw a jeep speeding in his direction, with
Pedro Cruz at the wheel and a companion, called "Moro," beside
him. Cruz blocked his way with the jeep, got off and walked
towards the left side of the truck. About two meters away Cruz
stopped and asked him, "Why do you insist passing here when I
am stopping you?' Aquino answered, "Why should you stop me
here when I am already on the river?" Cruz did not answer, but
gave a meaningful glance at "Moro," who was still inside the jeep,
and touched something bulging at his waist. When he pulled the
thing out, Aquino saw it was a "balisong" knife. Cruz stepped on
the left running board of the truck, and hauled himself up with his
left hand holding on to the windshield frame. Aquino moved
towards the right side of the driver's seat but was not able to go
to the extreme end because his thigh got wedged under the gear
shift. Cruz thrust forward with his knife at him, but he leaned far
to the right and at the same time parried the knife hand. Cruz
switched his knife to a stabbing position and at that moment
Aquino, who was already leaning almost prone on the driver's
seat, got his gun from the tool box and fired at his antagonist. The
first shot hit Cruz on the right side of the throat, the second on the
right arm. Aquino fired four times in all and then jumped out of
the truck on the right side, leaving Cruz slumped over the driver's
seat. Aquino sought cover near the right front tire of the truck.
"Moro," gun in hand, got off the jeep but ran away when he saw
Aquino's gun trained on him. When Aquino again looked in the
direction of his antagonist, he saw the latter already lying beneath
the truck. There was a small army contingent nearby and he went
to one of the huts of the soldiers and surrendered his gun to one
of them.
The appellant's version was corroborated by Teofilo de Guzman,
former employee of Leoncio de Guzman. He was one of those who
rode with Aquino from Leoncio de Guzman's stockpile of white
clay in Bo. Akle. Besides himself there were other persons who
were given a lift in the same truck, including an army soldier with
his wife and two children. They drove on a public road, and upon
reaching a spot where there was a signboard marked "Farmont
Property," Aquino made a detour toward Akle river. In negotiating
the bend down to the river bed, the truck accidentally rammed
and destroyed four bamboo posts. They stopped briefly to allow
the soldier and his family to get off. Suddenly a jeep, which was
running very fast, overtook them and stopped in front of the truck.
Pedro Cruz, who was at the wheel, got down, leaving his
companion named "Moro" inside. Cruz walked toward the truck
and there was an exchange of words between him and Aquino. He
pulled out a bladed weapon, stepped on the running board of the
truck and lunged at his opponent, who evaded the attack by
leaning down to his right. Both Aquino and Teofilo de Guzman
testified that the blood from the bullet wounds Pedro Cruz
received spilled on the driver's seat of the truck. De Guzman also
testified that during the shooting the other passengers who were
still inside the truck jumped out and that he saw Cruz slide down
slowly from the running board, with his two legs finally going
directly under the truck.
In view of the conflicting versions of the witnesses for the
prosecution on one hand and the witnesses for the defense on the
other, a number of physical and objective circumstances assume
decisive importance.
First is the testimony of patrolman Ernesto Salazar of the San
Miguel police. He was listed in the information as one of the
witnesses of the prosecution but was not called to testify although
he was present in court all the time that the State was adducing
its evidence. Presented instead by the defense, he said that in the
afternoon of April 29, 1967, a policeman from San Ildefonso
reported the death of Pedro Cruz to the Chief of Police of San
Miguel. The Chief then ordered him and patrolman Sta. Maria to
proceed to the scene of the incident. He could not recall how many
persons were there when they arrived, but did remember a
certain Victor Intacto and several army soldiers, headed by Sgt.
Oscariz, standing near the dead body. It was then about 8 o'clock
in the evening. He saw Pedro Cruz lying on his back by the left side
of the truck, and had photographs of the body taken from
different angles; he found blood stains on the driver's seat and had
them also photographed; and then afterwards he found a dagger
on the floor of the truck near the driver's seat, the scabbard of
which he had previously seen tucked at Pedro Cruz' right hip. In
the course of his testimony Salazar identified the eight
photographs which had been taken, his on-the-spot report and
the sketched of the scene which he prepared, the dagger and the
scabbard. In particular the photographs of the body show that
where he lay Pedro Cruz' two legs were directly under the truck.
Another significant piece of evidence is the biology report and
testimony of Mercedes Bautista, Chief of Forensic Chemistry of
the National Bureau of Investigation, to the effect that she
analyzed the blood stains on the driver's seat of the truck in
question upon request by the Chief of Police of San Miguel and
found them to be of human blood.
Similarly significant is the necropsy report of Dr. Aris Tantoco,
Municipal Health Officer of Angat, Bulacan, which shows the
locations of the wounds and trajectories of the bullets in the body
of the deceased, as follows:
1. Located at occipital region of the head, left measuring 0.3 cm.
with a length of 1.1 cm.
2. Entrance located at the base of the neck anterior right, 2
inches from the anterior median line 54 inches from the right heel.
Size 0.4 by 0.3 cm.
Description Ovaloid with inverted edges with an abrasion collar
measuring 0.1 cm at its upper part.
Direction Downward posteriorly and to the right.
Involvement Skin, soft tissues, and muscles of the neck, upper
lung, right, muscle of the lumbar region, right, a lead bullet was
recovered just beneath the skin on the lumbar region.
3. Entrance located at the upper chest left, 3.5 inches from the
anterior median line, 48 inches from the left heel.
Size 0.4 by 0.3 cm.
Description ovaloid with inverted edges, with an abrasion collar
measuring 0.1 cm. at its upper part.
Direction downward posteriorly and to the left.
Involvement Skin soft tissues, muscles of the chest, grazing the
third rib piercing the thoracic wall, the lungs left posterior wall of
the chest. Slug was recovered just beneath the skin of the
posterior chest.
4. Entrance located at the palmar region of the left forearm
anteriorly.
Size 0.4 by 0.3 cm.
Description Ovaloid with inverted edges with an abrasion collar
measuring 0.1 cm. at its lower part.
Direction Upward and posteriorly.
Involvement skin, soft tissue and muscle of the forearm.
Exit located at the proximal 3rd of the forearm medially,
measuring 0.5 by 0.5 cm. with averted edges.
The physical, objective facts enumerated above are not only
consistent with but indeed confirm strongly the plea of self-
defense raised by the appellant. The direction of three of the four
bullets which hit the deceased shows that he must have been in a
forward stooping position at the time, with his left forearm raised
somewhat in front of him, as would be the case if he was holding
the windshield frame with his left hand. Thus the slug which
entered the base of the neck, in front and to the right, plowed
downward through the upper lung and the muscle of the lumbar
region, where it was recovered just beneath the skin. The slug
which entered the body at the left upper chest also followed a
downward direction and was recovered beneath the skin at the
back. And the slug which hit the left forearm near the palm of the
hand took both an upward and posteriorly direction and exited "at
the proximal 3rd of the forearm medially." The bullets could not
have had these trajectories if the deceased had been standing
upright two or three meters to the left of the truck, as the
witnesses for the prosecution testified.
The evidence of the dagger or knife, which was retrieved
patrolman Salazar from the floor of the truck below the driver's
seat, and the evidence of the blood stains on the seat itself, not
only find no explanation in but directly contradicts the version of
the prosecution. It should be noted that although the chemical
examination of the stains was done eleven days after the incident,
they were photographed shortly after happened and the driver's
seat itself was placed in the custody of the chief of Police of San
Miguel.
The trial court took a cavalier attitude toward these evidences,
hinting that they might have been planted. But one who found the
knife and had photographs of the blood stains taken was the
police officer assigned to conduct official investigation. And he did
so in the presence of several persons. The appellant himself
surrendered to an army soldier and was taken away immediately
after the shooting; and the premises where it happened, including
the truck and the body of the deceased, were under guard by army
soldiers before patrolman Salazar arrived to conduct the
investigation. The very position of the body as testified to by the
same patrolman and confirmed by the photographs shows that
after being shot Cruz must have slid down the running board of
the truck when he was said to be standing, thus accounting for the
fact that he was found lying on his back with his two legs under
the truck. Such a position could hardly have been possible if he
had been shot while standing two or three meters away from the
vehicle.
The three elements of self-defense are here present. The was
unlawful aggression on the part of the deceased when he attacked
the appellant with a deadly weapon, especially in the rather
cramped quarters of the driver's compartment of the truck, where
the space was too limited for effective maneuvering. The means
employed to repel that aggression was reasonable. As repeatedly
held by this Court, "(I)n emergencies of this kind, human nature
does not act upon process of formal reason but in obedience to
the instinct of self- preservation; and when it is apparent that a
person has reasonably acted upon his instinct, it is the duty of the
courts to sanction the act and hold the act irresponsible in law for
the consequences."1 And upon a review of the evidence we find
that the appellant did not give any sufficient provocation for the
attack against him.
In ruling that there was such provocation the court a quo relied on
the testimony of Priscila Corpuz to the effect that the appellant
rammed the closed gate of the Farmont compound. However, this
testimony is of doubtful credibility: Corpuz gave conflicting
versions on this point which she failed to explain satisfactorily. In
her affidavit (Exhibit 4) which she executed before a certain Atty.
Ernesto Catimbang, she stated:
6. That we saw the actual shooting incident, when without any
warning the accused driver of the cargo truck upon arriving at the
gate ordered Mr. Pedro Cruz to move his jeep away from the road
in order to pass by and the deceased Pedro Cruz answered that
the truck can pass because he is parked by the side of the road but
instead of passing by the cargo truck driver suddenly and without
warning pulled a gun hidden in the compartment, of the truck and
shot at Pedro Cruz, who because was hit had to climb the truck
but was repulsed by the succeeding shot fired at him and fell to
the ground dead.
In the preliminary investigation conducted by the Acting Provincial
Fiscal of Bulacan, Priscila Corpuz gave another version. On direct
examination, she testified as follows:
Q. What happened when the truck arrived at the site?
A. He went to the post.
Q. What post are you referring to?
A. Post behind our laborers in the mine site.
Q. Now, what happened after that?
A. Then he maneuvered and went down the river where Mr. Pedro
Cruz was standing.
Q. What happened when the truck went down the river where Mr.
Pedro Cruz standing.?
A. He fired without notice.
Q. To whom did he fire?
A. Pedro Cruz.
Q. What happened with Pedro Cruz when he was fired at?
A. He fell down and he was dead.
Q. How many times did you hear the shot rang out?
A. There were plenty, sir. It continued the shots. (Exhibits 24-C and
24-D, pp. 21-23 of Exhibit 24)
Atty. Hill:
Q. You were referring to a post, is that part of the gate which was
smashed by the truck of the respondent?
Atty. Castillo:
Objection. Leading question.
Atty. Hill:
Q. What was that post which was smashed by the truck?
A. It was behind the Farmont Mines' laborers, sir.
Q. What was that post?
A. To serve as fence, sir.
Q. Was that fence destroyed?
A. Yes, sir.
(Exhibit 24, pp. 27-28)
In her two versions quoted above Priscila Corpuz did not say that
the appellant forced his way through the closed gate of the
Farmont Mines or that he went inside its premises in going down
the river bed.
On the other hand, the appellant clearly testified, with the aid of
sketch (Exhibit 1) and with corroboration from Teofilo Guzman,
that before reaching the gate of the Farmont Mines he made a
detour to the river bed by using the passageway which had been
constructed by the men of Leoncio de Guzman and that while
negotiating the descent he accidentally bumped three or four
bamboo posts stuck into the ground. The existence of the
passageway, which according to the defendant was constructed
purposely to avoid passing through the contested road, was not
controverted by the prosecution.
In view of the foregoing considerations We find the plea of
complete self-defense sufficiently established. The judgment of
the Court a quo is reversed and the appellant is acquitted, with
costs de officio.
Castro, Teehankee, Makasiar, Esguerra and Muoz Palma, JJ.,
concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23514 February 17, 1970
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AVELINO MANANSALA, JR., ET AL., defendants, AVELINO
MANANSALA, JR. and JOSE MANANSALA, defendants-
appellants.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor
General Isidro C. Borromeo and Solicitor Dominador L. Quiroz for
plaintiff-appellee.
Quintin C. Paredes and Paredes and Associates for defendants
appellants.
MAKALINTAL, J.:
This is an appeal from the decision of the Court of First Instance of
Albay in its Criminal Case No. 3285 convicting Avelino Manansala,
Jr. and Jose Manansala of murder and sentencing the first to an
indeterminate penalty of from 10 years and 1 day of prision
mayor to 17 years 4 months and 1 day of reclusion temporal, and
the second to reclusion perpetua; both of them to indemnify
jointly and severally the heirs of Rodrigo Aringo in the sum of
P6,000.00; and each to pay /3 of the costs.
The prosecution, relying mainly on the testimony of two
eyewitnesses Celestino Atun and Percival Amador and of the
policemen who went to the scene of the crime upon noticing the
commotion it produced, sought to establish the following:
Between 1:00 and 2:00 o'clock in the afternoon of March 27, 1962,
some persons had a quarrel inside the New Bicol Carinderia, an
eatery located near the Legaspi Port Market, Legaspi City. After a
short while the protagonists came out through the backdoor of
the carinderia. Jose Manansala had Rodrigo in a tight embrace
from behind, with his arms under the latter's armpits. While
Rodrigo was in that position of apparent helplessness, Avelino
stabbed him with a balisong, or Batangas knife. The stabbing
continued while Rodrigo was led, or dragged, by Jose to a bamboo
bed (papag) nearby, and even after Rodrigo had been forced down
on it in a prone position. When the policemen who responded to
the commotion arrived they found Avelino still holding the fatal
weapon, and Rodrigo's limp body, bathed in his own blood,
stretched on the papag. A taxicab was commandeered to take the
wounded man to a hospital, but he expired even before the
vehicle could start. The autopsy later conducted by Dr. Antolin
Lotivio, a resident physician of the Albay Provincial Hospital,
revealed that the victim died from massive hemorrhage and shock
as a result of the multiple wounds (thirteen in all) sustained by him
in the chest, abdomen, back and the extremities.
The accused did not take the witness stand. However, they
presented two witnesses, Domingo Daria and Salvador Petilos,
who said that they saw the whole incident. The substance of their
testimony is as follows: Early in the afternoon of March 27, 1962
Avelino, a small-time peddler of textiles in the Legaspi Port
Market, was eating his lunch inside one of the eateries dotting the
market site, when Rodrigo Aringo alias Diego, a baggage boy in
the same market, approached him and demanded his fee for
having carried Avelino's baggage. Avelino said he was willing to
pay for the services rendered at noon, but not for those rendered
earlier in the morning. He then took some money from his pocket
and proferred it to Rodrigo. Obviously peeved at having been thus
publicly rebuffed, Rodrigo brusquely brushed Avelino's hand aside
and instantly gave him a fist blow in the face. Avelino fell from his
seat; he tried to get up, but was given another blow, and then a
third. As he reeled from the force of the last blow a batangasknife
he was carrying fell from his trousers pocket. Avelino picked up
the knife, and Rodrigo, seeing that he was armed, rushed to
the carinderia's kitchen and returned almost immediately with a
10-inch knife in his hand. With it he swung at his antagonist, but
the latter evaded the blow.
Meanwhile, appellant Jose Manansala, an uncle of Avelino,
noticed the commotion from outside the carinderia, where he was
loading baggage on a parked truck some six meters away. He
shouted at Rodrigo to stop. Rodrigo paid no heed and instead
delivered another thrust at Avelino, who again evaded it. At the
third attempt, Jose embraced Rodrigo from behind, and it was at
that moment that Avelino stabbed Rodrigo and inflicted the
numerous wounds which proved fatal. Jose took the kitchen knife
from Rodrigo and threw it away, and then released his limp body
on the papag nearby. When the policemen arrived Avelino was
still clutching the knife he had used. Both appellants were
apprehended.
In its decision rendered on August 14, 1964 the trial court
sustained the prosecution's version of the incident and found both
accused guilty of murder. However, the court credited Avelino
with the mitigating circumstance of sufficient provocation or
threat on the part of the victim, and imposed upon him a lesser
penalty than that imposed on his uncle.
Appellants' plea is self-defense. This is predicated on the theory
that the deceased was himself armed with a knife with which he
tried to stab Avelino, as declared by the two witnesses for the
defense. Several circumstances, however, belie this claim. First,
Avelino sustained no knife wound at all. Second, although several
policemen arrived at the scene of the incident almost immediately
after it happened, not one of them saw the knife allegedly used by
Rodrigo. Nor was it shown to them, or at least brought to their
attention, by either of the appellants. Indeed, when Avelino
surrendered to the policemen he declined to give any statement,
which in the natural course of things he would have done if he had
acted merely to defend himself. A protestation of innocence or
justification is the logical and spontaneous reaction of a man who
finds himself in such an inculpatory predicament as that in which
the policemen came upon the appellants, with Avelino still
clutching the death weapon and his victim dying before him.
But while it is clear that Avelino did not act in legitimate self-
defense, the trial court correctly held that there was sufficient
provocation on the part of the victim. The evidence given by the
witnesses for the defense as to how and why the fight started, and
as to the fact that the deceased hit Avelino with his fist, is not
controverted by the witnesses for the prosecution, who did not
see the incident from the very beginning. And one fist blow at least
is confirmed by the doctor who treated Avelino for a contusion
around one eye.
On the other hand, the fact that when Avelino stabbed the victim
the latter was practically helpless and unable to put up any
defense being in the tight embrace of Jose Manansala, was 2 months and 1 day of prision correccional to 12 years and 1 day
correctly appreciated by the trial court as treachery, and qualifies of reclusion temporal; the amount of the indemnity is raised from
the offense as murder. P6,000.00 to P12,000.00 to be paid the heirs of the deceased by
Jose Manansala was found guilty as co-principal on the ground Avelino Manansala, Jr. as principal; in case of the insolvency of the
that there was concert of action between him and his nephew. The principal, Jose Manansala, as accomplice, is subsidiarily liable for
evidence does not justify this finding beyond reasonable doubt. the indemnity due from said principal; and in all other respects the
There is no showing that the killing was agreed upon between judgment appealed from is affirmed. No costs in this instance.
them beforehand. No motive for it has been shown other than the Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Sanchez, Castro,
provocation given by the deceased; and such motive was true only Fernando, Teehankee, Barredo and Villamor, JJ., concur.
insofar as Avelino was concerned. The circumstances indicate that
if Jose embraced Rodrigo and rendered him helpless, it was to stop
him from further hitting Avelino with his fists. However, Jose is not
entirely free from liability, for it has been established that even
after the first knife thrust had been delivered he did not try to stop
Avelino, either by word or overt act. Instead Jose continued to
hold Rodrigo, even forced him down on the bamboo bed with
Avelino still pressing the attack. Withal it cannot be said that Jose's
cooperation was such that without it the offense would not have
been accomplished. But although not indispensable, it was a
contributing factor. If Jose's initial intent was free from guilt, it
became tainted after he saw the first knife thrust delivered. The
thirteen wounds must have taken an appreciable interval of time
to inflict, and Jose's cooperation facilitated their infliction. He
must therefore be held liable as an accomplice.
The slaying of the deceased having been qualified by treachery,
Avelino Manansala is liable for murder, the penalty of which
is reclusion temporal maximum to death (Art. 248, Revised Penal
Code). Appreciating in favor of Avelino the mitigating
circumstance of sufficient provocation by the deceased without
any generic aggravating circumstance to offset the same, the
penalty imposable upon him is the minimum period of the penalty
for murder (see par. 3, Art. 63, Revised Penal Code), which
is reclusion temporal maximum (17 years, 4 months and 1 day to
20 years). Since the resulting penalty is neither death nor life
imprisonment, the Indeterminate Sentence Law applies (Sec. 2,
Act No. 4103 as amended). Avelino Manansala is therefore
entitled to an indeterminate sentence, the upper range of which
is reclusion temporal maximum and the lower range which is
one degree lower than the penalty prescribed by the Revised
Penal Code for murder is anywhere within prision
mayor maximum (10 years and 1 day) to reclusion
temporal medium (17 years and 4 months). The penalty meted out
by the trial court on Avelino Manansala, Jr. "from 10 years and
1 day of prision mayor to 17 years 4 mouths and 1 day of reclusion
temporal" is within the range allowed by law and is therefore
correctly imposed.
As regards appellant Jose Manansala, the penalty prescribed by
law, he being an accomplice, is one degree lower than that
prescribed for the principal, or prision mayor maximum
to reclusion temporal medium (10) years and 1 day to 17 years and
4 months). Applying the Indeterminate Sentence Law, and
considering that under paragraph 1, Article 64 of the Revised
Penal Code, "(W)hen there are neither aggravating nor mitigating
circumstances, (the court) shall impose the penalty prescribed by
law in its medium period," the decision appealed from should be,
as it is hereby, modified as follows:
Appellant Jose Manansala, as accomplice to the offense of
murder, is sentenced to an indeterminate penalty of from 4 years,
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-26750 August 18, 1972
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JOSEEN COMIENDA Y NAVARRO, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
Aladin B. Bermudez for defendant-appellant.
MAKASIAR, J.:p
The accused Jose Encomienda y Navarro appealed on September
22, 1966 from the decision dated September 12, 1966 of the Court
of First Instance of Nueva Ecija [Branch IV Guimba] (p. 97, Vol. I,
rec.) sentencing him for murder aggravated by recidivism but
mitigated by voluntary surrender, to life imprisonment
or reclusion perpetua, to indemnify the heirs of the deceased
Severino Cabaral in the sum of P6,000.00, to suffer the accessories
provided for by law, and to pay the costs (pp. 84-96, Vol. 1, rec.).
The record of the case was received on October 25, 1966 by the
Clerk of Court of the Supreme Court (p. 1, Vol. 11, rec.) from the
Clerk of Court of the Court of Appeals, who received the same on
October 20, 1966, without the transcript of stenographic notes,
which transcript was submitted to the Supreme Court on
November 11, 1966 (p. 1, t.s.n., Vol. III), from the deputy clerk of
the trial court (p. 2, Vol. II, rec.).
After the briefs of appellant and appellee were filed respectively
on January 18, 1967 (pp 26-48, Vol. II, rec.) and July 2, 1967 (p. 67,
Vol. II, rec.), the case was submitted for decision on August 14,
1967 (p. 73, Vol. ll rec.).
On January 14, 1970, one AFP T/Sgt Venancio B. Baaga, through
counsel, filed a petition for an order directing the clerk of court of
Branch IV of the Court of First Instance of Nueva Ecija to deliver to
him the .32 caliber revolver with serial No. 154646, Exhibit "E",
alleging that after the appealed decision was rendered by the trial
court, the ownership of said revolver was transferred to him by
reason of which he was issued by the Philippine Constabulary
Special Permit No. 369246 authorizing him to possess the said
revolver while he is in the active service (AFP), attaching the said
special permit as Annex "A" to his petition (pp. 74-75, 76, Vol. II,
rec.), and that his motion to withdraw the said revolver was
denied by the trial court due to the pendency of this case before
the Supreme Court (Annex "A", p. 78, Vol. II, rec.). Said petition
was deemed submitted for resolution on March 18, 1970 after the
Solicitor General failed to comment thereon within the period
allowed him (pp. 79, 80, 82, Vol. II, rec.).
Arraigned on the following information for murder:
That on or about the 30th day of May, 1965, in the munipality of
Cuyapo, province of Nueva Ecija, Republic of Philippines, and
within the jurisdiction of this Honorable Court the above-named
accused conspiring together and mutually aiding one another,
armed with a bolo and blunt instrument, with intent to kill and
with treachery and evident premeditation, did then and there
willfully, unlawfully and feloniously attack and hacked one
Severino Cabaral, inflicting upon him multiple wounds which
caused his instantaneous death.
That the accused Jose Encomienda y Navarro is a recidivist having
been convicted of the crime of Murder on April 30, 1958, in
Criminal Case No. 4382 by the Court of First Instance of Nueva
Ecija. (p. 47, Vol. I, rec.).
accused appellant who waived the presence of his counsel at said
arraignment (p. 53, Vol. I, rec.), pleaded not guilty on June 2, 1966
(p. 54, Vol. I, rec.).
The evidence for the prosecution consists of the testimonies of
Cuyapo health officer Pio Alberto, policeman Esmenino Delo and
police inspector Casimiro Aguinaldo.
Patrolman Esmenino Delo declared that about 4 o'clock in the
afternoon of May 30, 1965, he was with policeman Federico Olog
at police outpost No. 2 in Cuyapo, Nueva Ecija, when one Franklin
Ancheta reported that Severino Cabaral was wounded in the yard
of the accused Jose Encomienda. He proceeded to the defendant's
yard where he saw Severino mortally wounded in a kneeling
position about two or three meters in front of the stairs of the
house of the accused and could not raise his head. Severino was
unconscious but still breathing (pp. 13-14, t.s.n.), On his query, the
wounded Severino told him in the presence of policemen Eufemio
Delo and Mateo Castillo, that the accused Jose Encomienda
stabbed him (pp. 9-10, t.s.n.), which statement he wrote down in
Ilocano on a piece of ruled paper (Exhibit "C", p. 4, Vol. II, rec.), on
which the deceased affixed his right thumbmark and duly signed
by patrolmen Mateo Castillo and Eufemio Delo as witnesses (p. 11,
t.s.n.). Said alleged ante mortem statement of the victim, Exhibit
"C", was translated into English by police inspector Casimiro
Aguinaldo (Exh "C-1", pp. 14 & 19, t.s.n.).
Exhibit "C-1" shows that the same was taken down at 4:45 P.M. of
May 30, 1965 and contains the following conversation between
partrolman Esmenino Delo and the victim:
Q Who boloed you?
A Jose Encomienda.
Q Is this true?
A Yes.
Q You thumbmark.
A Yes. (p. 5, Vol. I, rec.).
Assisted by policemen Mateo Castillo, Eufemio Delo and Federico
Olog, patrolman Esmenino Delo brought the victim to the private
clinic of Dr. Potenciano Garcia, after which he looked for the
accused in the premises of the scene of the incident. Failing to
locate the accused thereat, patrolman Esmenino Delo, together
with lieutenant Gamboa, proceeded to the municipal building to
report the incident after which they conducted an investigation in
the premises of the incident, where they found blood stains in the
yard and in front of the stairway of the house of the accused (pp.
11-12, t.s.n.). About 5:30 in the afternoon of that same day, May
30, 1965, they returned to the municipal building where they saw
police inspector Casimiro Aguinaldo interrogating the accused.
According to police inspector Aguinaldo (p 13, t.s.n.), the accused
went to the municipal building alone at about 4:55 p.m. of May
30, 1965, surrendering a bolo and a .32 caliber revolver (Exhs. "D"
& "E") together wit two live bullets (Exhs. "E-I" & "E-2") and four
empty shells contained in an envelope. The bolo (Exh. "D") is about
13 inches long with a wooden handle about 18 centimeters long.
He placed the bolo and the revolver in seperate wrappers (Exhs.
"D-1" & "E-3", pp. 15-17, 19 t.s.n.). After entrusting the accused to
the guard, he and policeman Esmenino Delo went to the scene of
the incident, saw blood stains on the stairs of the house of the
accused and a box of water mixed with blood. Thereafter, they
repaired to the clinic of Dr. Garcia where they saw the victim about
6:30 that evening and stayed there for about five minutes, after
which they returned to the municipal building (pp. 16-17, t.s.n.).
When he asked the accused whether he was willing to give any
statement, the accused replied in the negative and stressed that
he would wait for his lawyer (pp. 17, 19, t.s.n.). He translated into
English the alleged dying declaration, Exhibit "C", of the victim
(Exh. "C-1", p. 15, Vol. I, rec.; p. 19, t.s.n.). When he asked the
accused why he boloed the victim, the accused replied that he
would not talk and he would await for his lawyer. He did not
examine the hands of the accused for powder burns as he did not
know the procedure therefor. Neither did he request the
Philippine Constabulary to conduct such examination of the victim
for powder burns. He did not know who fired the revolver. The
victim bore no gunshot wounds. The accused did not tell him that
the victim fired at him. But, the victim's son told him that the
revolver was licensed in the name of the victim (pp 19-20, t.s.n.).
Dr. Pio Alberto, the Cuyapo health officer, recounted that about 6:
00 P.M. of May 30, 1965, he examined the victim in the clinic of
Dr. Potenciano Garcia, executed the medical certificate Exhibit "A"
(p. 2, Vol. I, rec.), and issued the death certificate showing that the
victim was born in 1898 and was 67 years old when he died on
May 30, 1965 (Exh. "B", p. 3, Vol. I, rec.).
The medical certificate, which states that the victim died about 10
o'clock in the evening of May 30, 1965 from shock and
hemorrhage, describes the injuries sustained by the victim
Severino Cabaral, thus:
1. A clean cut horizontal wound about 1 inch above both
eyebrows extending from the outer tip of the left to the outer tip
of the right eyebrow; cutting the frontal bone and exposing the
brain tissue. Fragments of the frontal bone were extracted during
the operation.
2. A clean cut almost horizontal wound about 2 inches long
from inwards downwards and outwards at the latero-posterior
aspect of the left wrist exposing the ligaments which were found
to be intact.
3. An oblique clean cut wound about 1 , inch long on the
postero-medial aspect of right forearm about 3 inches above the
wrist joint from outwards downwards and inwards.
4. Swelling and ecchymosis about 2- inches by 3- inches on
lower angle of right scapula.
5. Swelling and ecchymosis about 2- inches by 3- inches just
above the brim of the right hip bone at the back. (Exh. "A", p. 2,
Vol. I, rec.).
Dr. Alberto opined that wound no. 1 on the forehead was mortal
and was caused by a sharp instrument like a bolo, with the
assailant on the side of and higher than the victim or the victim
was stooping at the time said wound was inflicted (pp. 3, 4, 7,
t.s.n.); that wound no. 2, about 2 inches long on the left wrist of
the victim, was also caused by a sharp instrument like a bolo, was
not fatal and could have been inflicted when the victim raised his
hands in self defense with the right hand a little higher than the
left, adding that the victim could still move his hands (pp. 3, & 8,
t.s.n.); that wound no. 3 on the right forearm and about 3 or 4
inches above the wrist could have been inflicted with a sharp
instrument like a bolo when the victim raised his hands in self-
defense (pp. 3, 4, & 8, t.s.n.); that wound no. 4, the swelling and
ecchymosis about 2 inches by 3 inches on the lower angle of
the right scapula and about 8 inches below the right armpit, could
have been caused by a rod or a bat or a fall or a bolo's handle, but
not by the narrow back of a bolo (p. 5, t.s.n.); that wound no. 5 the
swelling and ecchymosis about 2 inches by 3 inches on the
right pelvic bone just above the waistline could have been caused
by a rod with the assailant on the side of the victim (pp. 5-6, t.s.n.);
that the victim was in a state of shock at the time he examined
him; that he left the victim at about 8:30 that evening of May 30,
1965 sleeping in Dr. Garcia's clinic; and that the next day, he saw
the victim already dead due to shock and hemorrhage (pp. 6-7,
t.s.n.).
Appellant narrated that since 1947 he was a tenant of hacienda
Doa Nena in Cuyapo, Nueva Ecija; that the victim Severino
Cabaral was the hacienda overseer (pp. 22, 27, t.s.n.); that the land
he was working was recorded in the name of his late father, who
died in 1963 (p. 28, t.s.n.); that about one week before May 30,
1965, the victim went to his house and invited him to go to his
(victim's) house telling him that he could no longer work on the
land for the land is not in his name; that he did not go with the
victim to the latter's house then; that he was not mad when the
victim told him for the first time that he can no longer work on the
land; that the second time the victim went to his house was on a
Friday or Saturday, but only his little child was home then as he
was out and his wife was in the market; that the third time the
victim went to his house was about 4:30 in the afternoon of May
30, 1965 telling him that he was sent by the hacienda owner to tell
him that he cannot work in the hacienda and that he will be
removed as tenant; that he was then cutting wood beside the
stairway with a bolo (Exh. "D"), while the victim was standing also
beside the stairs; that when he asked why he was being removed
as tenant when it was his means of livelihood, the victim replied
that he had no right to work on the land because it was not in his
name, to which he countered that the victim had no right to
remove him for he (the victim) was only a messenger and also a
tenant like him in the hacienda, which alone has the right to
remove him (pp. 23, 30, t.s.n.); that the victim became angry and
with his right hand drew his revolver tucked in his left side when
they were about one meter apart (p. 23, t.s.n.); that with his left
hand he immediately grabbed the victim's right hand holding the
revolver, forcing the victim to lean on the stairway, pinned the
victim's right hand also on the stairs; that during their struggle, the
revolver fired four times continuously that with the bolo in his
right hand he struck the victim's right forearm; that when the
victim wanted to get the gun with his left hand, he boloed the
victim's left arm about one inch from the left wrist; that he shook
the victim's right arm downward causing the gun to fall to the
ground; that when the victim tried to pick up the gun, he stepped
backward and hacked the victim's forehead causing the victim to
fall backward on the stairway, as he (appellant) retrieved the gun
to prevent the victim from picking it up again and then stepped
about two meters backward for the victim might grab him (pp. 24,
25, 31, 32, 34, t.s.n.); that thereafter the victim slowly got up and
washed his forehead with the water from the box nearby while
sitting in front of said box, after which he went to the municipal
building with the bolo and the gun which he surrendered to police
inspector Casimiro Aguinaldo; that the ecchymosis on the lower
and right scapula of the victim might be due to his having violently
pushed the victim against the bamboo stairway with two wooden
lower steps (pp. 26, 27, t.s.n.); that he was alone in the house that
afternoon of May 30, 1965 when the incident happened as his wife
was then out selling meat and his children were with his father-in-
law (p. 20, t.s.n.); that the victim was taller and slightly bigger than
he is; that the victim's son, Guillermo, is taller than his deceased
father (p. 32, t.s.n.); and that he is right-handed (p. 33, t.s.n.).
By actual measurement, Guillermo Cabaral is 5'6" tall; while the
accused has a height of 5'3" (p. 33, t.s.n.).
The prosecution did not offer any rebuttal evidence and relied
mainly on the alleged ante mortem statement Exhibits "C" & "C-
1" of the deceased and on the medical testimony of Dr. Pio
Alberto, the town health officer. There is therefore no testimonial
evidence for the state as to how and why the incident occurred for
no eyewitness was presented.
It is most unfortunate that the police authorities did no cause the
immediate examination of the trigger of the revolver for finger
prints and of the stairs, the hands and clothing of both the accused
and the victim for powder burns, to determine whose fingers were
actually on trigger of the revolver.
If the four slugs had been recovered, the same would have been
helpful in ascertaining the trajectory and direction of the bullets
and whether they could have been fired from the stairs or not.
The unrebutted fact that the incident happened inside the yard
and just beside the stairway of the house of the accused and that
the victim was armed with a revolver licensed in his name,
confirms appellant's story that the deceased, as the hacienda
overseer, went to the residence who the accused, informed the
latter that the hacienda owner had removed him as tenant, and
directed him to vacate the land tilled by him as it was not recorded
in his name. When the accused questioned the victim's authority
to remove him, the victim became furious and drew his gun.
While it is true that the victim was taller and slightly bigger than
the accused, the latter could match the strength of the right hand
of the victim with his left hand since he was then a 37-year old
farmer and the victim was 67 year of age or 30 years his senior. In
his excitement and apprehension of the peril to his life, appellant
was not expected nor had the time, to determine whether he
could save himself by just kicking the gun away from the victim or
stepping on it or pushing the victim away from the latter when the
victim tried to pick up the gun after he was already wounded on
both forearms; or whether the victim, if able to pick up the gun,
could have fired the remaining two bullets at appellant who was
just about a meter away.
The alleged dying declaration of the deceased which consists only
of three brief, mostly monosyllabic, answers to equally brief
questions of partrolman Esmenino Delo, to wit:
Q Who boloed you?
A Jose Encomienda.
Q Is this true?
A Yes.
Q You thumbmark.
A Yes. (Exhs. "C" & "C-1", pp. 4-5, Vol. 1, rec.).
uncorroborated as it is bereft of essential details as to the motive
and circumstances surrounding the incident, does not generate
the moral certainty as to the culpability of appellant. The evidence
of the prosecution lacks the requisite sufficiency to persuade the
human mind to agree with the conclusion of the trial court, whose
decision cannot as a consequence be sustained.
It is also doubtful whether the victim could hear or understand the
three questions propounded to him or could clearly mumble his
three answers thereto or could nod his head; because policeman
Esmenino Delo himself admitted that the victim was unconcious
although still breathing, and could not raise his head when they
found him in the yard of the defendant (pp. 13-14, t.s.n., Vol. III).
On the other hand, the plausibility and credibility of the
unrebutted narration of the appellant as to the motive and
circumstances surrounding and leading to the incident, is
enhanced by its detail and by the fact that appellant immediately
surrendered that same afternoon to the police authorities with his
bolo and the revolver of the deceased,1 despite the fact that he
was already laboring under a handicap by virtue of his previous
conviction as an accomplice to the crime of murder, which
ordinarily would impair his trustworthiness.
Under the circumstances, the version of the appellant appears to
meet the required clear and convincing evidence to establish self-
defense,2 or weakens all the more and therefore neutralizes the
effect of the proof of the prosecution. The story of the appellant
is partly corroborated by Aurelio Encomienda, his second cousin
(p. 41, t.s.n., Vol. II) and nearest neighbor just about four meters
away (p. 37, t.s.n. Vol. III), who testified to his having heard several
shots while he was lying down that afternoon and thereafter his
having seen through a hole in his kitchen the victim sitting under
the shed of the stairs of appellant house, who was also sitting in
front of the victim and holding a bolo and a revolver, which Aurelio
Encomienda related the next morning to the barrio captain, who
called for him. (pp. 37-40, t.s.n., Vol. III).
Three essential elements must concur for legitimate self-defense
to exist, namely; (1) unlawful aggression on part of the victim; (2)
reasonable necessity of the means, employed to prevent or repel
the attack; and (3) lack ofsufficient provocation on the part of the
person defending himself.3
Illegal aggression is equivalent to assault or at least threatened
assault of immediate and imminent kind.4 Here when the
deceased drew his gun with his right hand, appellant grabbed with
his free left hand the victim's right hand holding the revolver,
forced the victim to lean on the stairs and pinned the victim's right
hand also on the stair. During the struggle, the revolver fired four
times continously and he hacked the victim's right forearm. When
the victim tried to get the gun with his left hand, appellant boloed
the victim's left arm and then shook the victim right arm
downward causing the gun to fall to the ground and the victim
tried to pick up the gun, appellant stepped backward and hacked
the victim's forehead, after which he himself picked up the gun so
as to prevent the victim, from retrieving the same.
If the deceased had no intention to use his gun on the appellant,
he would not have drawn it or resisted appellant's attempt to
prevent him from using it. There was therefore real danger to the
life or personal safety of the appellant.5
The instant case is quite analogous to the case of People vs.
Pangan, et al wherein the accused, also an agricultural share
tenant, killed with a penknife the superintendent of the hacienda.
When the accused therein denied the charge of the
superintendent that he was letting his carabaos run loose to
destroy the tender sugar cane shoots, the deceased while berating
him, struck him twice with a whip hitting him (the accused) on the
left temporal and occipital regions causing his ear to bleed, against
which the accused offered no resistance but only tried to evade
the blows. After they were separated by a third party, the accused
sat down on an acacia trunk, but the deceased approached him
again and insultingly asked him whether he wanted to fight, to
which accused replied he would not fight. Thereafter, the accused
retired to his home. Between four and five o'clock in the afternoon
of the same day, accused went to the house of the deceased to
ask him to return his two cows that had been caught but the
deceased kicked him and struck him with a cane, causing a welt on
this left shoulder. As the accused stepped back to avoid the second
blow aimed at him, the deceased placed his right hand upon the
handle of the revolver he carried by his waist. When the accused
saw this intention of the deceased, he drew his knife and opened
it with his teeth. The deceased then drew his revolver; but before
he could fire it, the accused wrestled with him and caught the
hand holding the gun. During the ensuing struggle, both fell to the
ground, the deceased upon his back, while the accused upon him,
with one hand griping the deceased's hand holding the revolver
and with the other stabbing the deceased on the abdomen and
other parts of the body including the right arm compelling the
deceased to drop the revolver. Then the accused took hold of the
revolver and threw it to one side. Thereafter, he ran to the
municipal building and surrendered to the
authorities.7 The defense of the accused in said case was sustained
by the Court.
In U.S. vs. Domens,8 the theory of self-defense was likewise
upheld. There the deceased and the accused quarreled about a
carabao which had gotten into the corn patch of the deceased,
who, by reason thereof, struck the accused four orfive times with
a piece of wood about one yard long and about the size of one's
wrist. The accused did not retreat but struck back wounding the
deceased on the forehead.
In U.S. vs. Mojica,9 the deceased, a constabulary soldier resisted
arrest, struck the arresting policeman with a fist, drew a mess kit
knife and brandished it at the accused, another policeman, who
retreated a step or two, drew his revolver and fired, killing the
soldier. WE ruled that the policeman acted in self-defense.
That there is reasonable necessity of the means employed by
herein appellant to prevent or repel the unlawful aggression
cannot seriously be disputed. "Reasonable necessity of the means
employed does not imply material commensurability between the
means of attack and defense. When the law requires is rational
equivalence, in the consideration of which will enter as principal
factors the emergency, the imminent danger to which the person
attacked is exposed and the instinct, more than the reason, that
moves or impels the defense, and the proportionateness thereof
does not depend upon the harm done, but rests upon the
imminent danger of such injury ... ." 10 As WE stated in the case
of People vs. Lara, in emergencies of this kind, human nature does
not act upon processes of formal reason but in obedience to the
instinct of self-preservation; and when it is apparent that a person
has reasonably acted upon this instinct, it is the duty of the courts
to sanction the act and hold the act irresponsible in law for the
consequences."
In the case at bar, appellant did not immediately hack the
deceased to completely disable him, much less to kill him. When
the deceased drew his gun with his right hand, the appellant
merely grabbed the right hand of the deceased holding the gun,
pinning said right hand on the stairs without striking the deceased
with the bolo in his right hand. After the gun fired four times
continuously as they struggled, it was only then that appellant
struck the right forearm of the victim with his bolo. Appellant
could have continued hacking the deceased right then and there.
But he did not. He boloed the victim's left forearm because the
victim tried to get the gun from his right hand. And then he just
shook the right arm of the victim downward, forcing the latter to
release the gun which fell to the ground. It was only when the
deceased tried to pick up the gun that the appellant boloed him
on the forehead. As heretofore stated, appellant had no time to
coolly deliberate on whether he could save himself by just kicking
the gun away or by just pushing or boxing the victim or stepping
on the hands of the deceased to prevent him from getting the gun
and firing the same at him. The immediate danger to his life
precluded such serene rationalization on his part.
It should be stressed that the victim did not sustain any gunshot
wounds. After taking possession of the victim's revolver, appellant
did-not use it against the victim to finish him off, nor did he
continue hacking the deceased with his bolo. He was free to do
either as the victim was completely rendered hors de combat.
Instead the appellant allowed the disabled and defenseless victim
to wash his wounds with water in appellant's own wooden box.
In U . S. vs. Molina, 11 the accused was unarmed while the
deceased attacked him with a bolo. After overpowering the
deceased and wresting the bolo from him, the accused struck the
deceased several times with the bolo thereby killing him almost
instantaneously as the deceased tried to seize a hatchet. Under
the circumstances, WE held that the accused employed
reasonable means to repel the assault against his life.
In People vs. Rabandaban, 12 one night appellant found his wife
lying in bed with another man, who escaped through the window.
He scolded his wife and ordered her to leave the house. Calling
him names, the wife gathered her clothes and picked up a bolo in
the kitchen. When the accused husband followed her there, she
attacked him with the bolo, wounding him twice on the abdomen.
Wresting the bolo from his wife, appellant stabbed her with it in
the breast, causing her death that same night. WE ruled that the
appellant acted in self-defense and that there was reasonable
necessity of the means employed by him to repel the attack. WE
overruled the opinion of the trial court wherein it stated that
appellant could have saved himself by throwing away the bolo
after wresting it from his wife and that there was no need for him
to stab her once she was disarmed; because she struggled to
regain possession of the bolo, justifying appellant's belief that his
wife wanted to finish him off. Considering that he must have been
losing strength due to loss of blood, with his wife armed to fight
to the finish, it would have been sheer folly or stupidity on his part
to throw away the bolo so that his wife may again use it against
him.
In People vs. Sumikat, 13 a bolo was considered a reasonable
means of repelling an attack by a bully of known violent
disposition, who was larger and stronger than the accused and
who was trying to wrest the bolo from him.
In People vs. Lara, supra, the use of a pistol in shooting to death
the deceased who was much stronger than the appellant and who
in the darkness and from behind suddenly threw his arms around
appellant and attempted to wrest the pistol from him, was
considered reasonably necessary; because by reason of the
darkness as well as the superior strength of the deceased, there
was probability that the deceased would seize control of the pistol
and use it against appellant.
There certainly was lack of sufficient provocation on the part of
appellant. On the contrary, he was the one provoked by the
deceased. He was in his own yard cutting wood when the
deceased arrived ordering him to vacate the land he was then
tilling, which was his livelihood. Ejecting him from the land he was
farming and which his father farmed before him, was, to this
simple farmer, like depriving him of his life. Yet, with all that
provocation, appellant merely told the deceased that the latter
had no right to eject him from the land because he was also a
tenant like him in the hacienda. Certainly, this retort was no
justification for the victim to draw his gun.
In view of the uncontradicted testimony of the appellant that the
victim drew his revolver to assault the appellant, which is not a
lawful purpose, the victim lost thereby the privilege to possess the
same.
WHEREFORE, the appealed judgment is hereby reversed, the
accused-appellant is hereby acquitted, and his immediate release
from confinement is hereby ordered.
The .32 caliber revolver with serial No. 15446 (Exh. "E") is hereby
ordered forfeited to the government and the Clerk of Court is
hereby directed to deliver the same for record purposes to the
official headquarters of the Philippine Constabulary at Camp
Crame, Quezon City. The bolo (Exhibit "D") is ordered returned to
appellant.
With costs de officio.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro,
Fernando, Teehankee, Antonio and Esguerra JJ., concur.
Barredo, J., took no part.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
C.A. No. 384 February 21, 1946
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.
AVELINA JAURIGUE, appellant.
Jose Ma. Recto for appellant.
Assistant Solicitor General Enriquez and Solicitor Palma for
appellee..
DE JOYA, J.:
Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the
Court of First Instance of Tayabas, for the crime of murder, of
which Nicolas Jaurigue was acquitted, but defendant Avelina
Jaurigue was found guilty of homicide and sentenced to an
indeterminate penalty ranging from seven years, four months and
one day of prision mayor to thirteen years, nine months and
eleven days of reclusion temporal, with the accessory penalties
provided by law, to indemnify the heirs of the deceased, Amando
Capina, in the sum of P2,000, and to pay one-half of the costs. She
was also credited with one-half of the period of preventive
imprisonment suffered by her.
From said judgment of conviction, defendant Avelina Jaurigue
appealed to the Court of Appeals for Southern Luzon, and in her
brief filed therein on June 10, 1944, claimed
(1) That the lower court erred in not holding that said appellant
had acted in the legitimate defense of her honor and that she
should be completely absolved of all criminal responsibility;
(2) That the lower court erred in not finding in her favor the
additional mitigating circumstances that (a) she did not have the
intention to commit so grave a wrong as that actually committed,
and that (b) she voluntarily surrendered to the agents of the
authorities; and
(3) That the trial court erred in holding that the commission of the
alleged offense was attended by the aggravating circumstance of
having been committed in a sacred place.
The evidence adduced by the parties, at the trial in the court
below, has sufficiently established the following facts:
That both the defendant and appellant Avelina Jaurigue and the
deceased Amado Capina lived in the barrio of Sta. Isabel, City of
San Pablo, Province of Laguna; that for sometime prior to the
stabbing of the deceased by defendant and appellant, in the
evening of September 20, 1942, the former had been courting the
latter in vain, and that on one occasion, about one month before
that fatal night, Amado Capina snatched a handkerchief belonging
to her, bearing her nickname "Aveling," while it was being washed
by her cousin, Josefa Tapay.
On September 13, 1942, while Avelina was feeding a dog under
her house, Amado approached her and spoke to her of his love,
which she flatly refused, and he thereupon suddenly embraced
and kissed her and touched her breasts, on account of which
Avelina, resolute and quick-tempered girl, slapped Amado, gave
him fist blows and kicked him. She kept the matter to herself, until
the following morning when she informed her mother about it.
Since then, she armed herself with a long fan knife, whenever she
went out, evidently for self-protection.
On September 15, 1942, about midnight, Amado climbed up the
house of defendant and appellant, and surreptitiously entered the
room where she was sleeping. He felt her forehead, evidently with
the intention of abusing her. She immediately screamed for help,
which awakened her parents and brought them to her side.
Amado came out from where he had hidden under a bed in
Avelina's room and kissed the hand of Nicolas Jaurigue, her father,
asking for forgiveness; and when Avelina's mother made an
attempt to beat Amado, her husband prevented her from doing
so, stating that Amado probably did not realize what he was doing.
Nicolas Jaurigue sent for the barrio lieutenant, Casimiro Lozada,
and for Amado's parents, the following morning. Amado's parents
came to the house of Nicolas Jaurigue and apologized for the
misconduct of their son; and as Nicolas Jaurigue was then angry,
he told them to end the conversation, as he might not be able to
control himself.
In the morning of September 20, 1942, Avelina received
information that Amado had been falsely boasting in the
neighborhood of having taken liberties with her person and that
she had even asked him to elope with her and that if he should not
marry her, she would take poison; and that Avelina again received
information of Amado's bragging at about 5 o'clock in the
afternoon of that same day.
At about 8 o'clock in the evening of the same day, September 20,
1942, Nicolas Jaurigue went to the chapel of the Seventh Day
Adventists of which he was the treasurer, in their barrio, just
across the provincial road from his house, to attend religious
services, and sat on the front bench facing the altar with the other
officials of the organization and the barrio lieutenant, Casimiro
Lozada. Inside the chapel it was quite bright as there were electric
lights.
Defendant and appellant Avelina Jaurigue entered the chapel
shortly after the arrival of her father, also for the purpose of
attending religious services, and sat on the bench next to the last
one nearest the door. Amado Capina was seated on the other side
of the chapel. Upon observing the presence of Avelina Jaurigue,
Amado Capina went to the bench on which Avelina was sitting and
sat by her right side, and, without saying a word, Amado, with the
greatest of impudence, placed his hand on the upper part of her
right thigh. On observing this highly improper and offensive
conduct of Amado Capina, Avelina Jaurigue, conscious of her
personal dignity and honor, pulled out with her right hand the fan
knife marked Exhibit B, which she had in a pocket of her dress,
with the intention of punishing Amado's offending hand. Amado
seized Avelina's right hand, but she quickly grabbed the knife with
her left hand and stabbed Amado once at the base of the left side
of the neck, inflicting upon him a wound about 4 1/2 inches deep,
which was necessarily mortal. Nicolas Jaurigue, who was seated
on one of the front benches, saw Amado bleeding and staggering
towards the altar, and upon seeing his daughter still holding the
bloody knife, he approached her and asked: "Why did you do
that," and answering him Avelina said: "Father, I could not endure
anymore." Amado Capina died from the wound a few minutes
later. Barrio lieutenant Casimiro Lozada, who was also in the same
chapel, approached Avelina and asked her why she did that, and
Avelina surrendered herself, saying: "Kayo na po ang bahala sa
aquin," meaning: "I hope you will take care of me," or more
correctly, "I place myself at your disposal." Fearing that Amado's
relatives might retaliate, barrio lieutenant Lozada advised Nicolas
Jaurigue and herein defendant and appellant to go home
immediately, to close their doors and windows and not to admit
anybody into the house, unless accompanied by him. That father
and daughter went home and locked themselves up, following
instructions of the barrio lieutenant, and waited for the arrival of
the municipal authorities; and when three policemen arrived in
their house, at about 10 o'clock that night, and questioned them
about the incident, defendant and appellant immediately
surrendered the knife marked as Exhibit B, and informed said
policemen briefly of what had actually happened in the chapel and
of the previous acts and conduct of the deceased, as already
stated above, and went with said policemen to the police
headquarters, where her written statements were taken, and
which were presented as a part of the evidence for the
prosecution.
The high conception of womanhood that our people possess,
however humble they may be, is universal. It has been entertained
and has existed in all civilized communities.
A beautiful woman is said to be a jewel; a good woman, a treasure;
and that a virtuous woman represents the only true nobility. And
they are the future wives and mothers of the land. Such are the
reasons why, in the defense of their honor, when brutally
attacked, women are permitted to make use of all reasonable
means available within their reach, under the circumstances.
Criminologists and courts of justice have entertained and upheld
this view.
On the other hand, it is the duty of every man to protect and show
loyalty to womanhood, as in the days of chivalry. There is a
country where women freely go out unescorted and, like the
beautiful roses in their public gardens, they always receive the
protection of all. That country is Switzerland.
In the language of Viada, aside from the right to life on which rests
the legitimate defense of our own person, we have the right to
property acquired by us, and the right to honor which is not the
least prized of our patrimony (1 Viada, Codigo Penal, 5th ed., pp.
172, 173).
The attempt to rape a woman constitutes an unlawful aggression
sufficient to put her in a state of legitimate defense, inasmuch as
a woman's honor cannot but be esteemed as a right as precious,
if not more, than her very existence; and it is evident that a woman
who, thus imperiled, wounds, nay kills the offender, should be
afforded exemption from criminal liability, since such killing
cannot be considered a crime from the moment it became the
only means left for her to protect her honor from so great an
outrage (1 Viada, Codigo Penal, 5th ed., p. 301; People vs. Luague
and Alcansare, 62 Phil., 504). .
As long as there is actual danger of being raped, a woman is
justified in killing her aggressor, in the defense of her honor. Thus,
where the deceased grabbed the defendant in a dark night at
about 9 o'clock, in an isolated barrio trail, holding her firmly from
behind, without warning and without revealing his identity, and,
in the struggle that followed, touched her private parts, and that
she was unable to free herself by means of her strength alone, she
was considered justified in making use of a pocket knife in
repelling what she believed to be an attack upon her honor, and
which ended in his death, since she had no other means of
defending herself, and consequently exempt from all criminal
liability (People vs. De la Cruz, 16 Phil., 344).
And a woman, in defense of her honor, was perfectly justified in
inflicting wounds on her assailant with a bolo which she happened
to be carrying at the time, even though her cry for assistance might
have been heard by people nearby, when the deceased tried to
assault her in a dark and isolated place, while she was going from
her house to a certain tienda, for the purpose of making purchases
(United States vs. Santa Ana and Ramos, 22 Phil., 249).
In the case, however, in which a sleeping woman was awakened
at night by someone touching her arm, and, believing that some
person was attempting to abuse her, she asked who the intruder
was and receiving no reply, attacked and killed the said person
with a pocket knife, it was held that, notwithstanding the woman's
belief in the supposed attempt, it was not sufficient provocation
or aggression to justify her completely in using deadly weapon.
Although she actually believed it to be the beginning of an attempt
against her, she was not completely warranted in making such a
deadly assault, as the injured person, who turned out to be her
own brother-in-law returning home with his wife, did not do any
other act which could be considered as an attempt against her
honor (United States vs. Apego, 23 Phil., 391)..
In the instant case, if defendant and appellant had killed Amado
Capina, when the latter climbed up her house late at night on
September 15, 1942, and surreptitiously entered her bedroom,
undoubtedly for the purpose of raping her, as indicated by his
previous acts and conduct, instead of merely shouting for help,
she could have been perfectly justified in killing him, as shown by
the authorities cited above..
According to the facts established by the evidence and found by
the learned trial court in this case, when the deceased sat by the
side of defendant and appellant on the same bench, near the door
of the barrio chapel and placed his hand on the upper portion of
her right thigh, without her consent, the said chapel was lighted
with electric lights, and there were already several people, about
ten of them, inside the chapel, including her own father and the
barrio lieutenant and other dignitaries of the organization; and
under the circumstances, there was and there could be no
possibility of her being raped. And when she gave Amado Capina
a thrust at the base of the left side of his neck, inflicting upon him
a mortal wound 4 1/2 inches deep, causing his death a few
moments later, the means employed by her in the defense of her
honor was evidently excessive; and under the facts and
circumstances of the case, she cannot be legally declared
completely exempt from criminal liability..
But the fact that defendant and appellant immediately and
voluntarily and unconditionally surrendered to the barrio
lieutenant in said chapel, admitting having stabbed the deceased,
immediately after the incident, and agreed to go to her house
shortly thereafter and to remain there subject to the order of the
said barrio lieutenant, an agent of the authorities (United States
vs. Fortaleza, 12 Phil., 472); and the further fact that she had acted
in the immediate vindication of a grave offense committed against
her a few moments before, and upon such provocation as to
produce passion and obfuscation, or temporary loss of reason and
self-control, should be considered as mitigating circumstances in
her favor (People vs. Parana, 64 Phil., 331; People vs. Sakam, 61
Phil., 27; United States vs. Arribas, 1 Phil., 86).
Defendant and appellant further claims that she had not intended
to kill the deceased but merely wanted to punish his offending
hand with her knife, as shown by the fact that she inflicted upon Separate Opinions
him only one single wound. And this is another mitigating HILADO, J., concurring:
circumstance which should be considered in her favor (United In past dissenting and concurring opinions my view regarding the
States vs. Brobst, 14 Phil., 310; United States vs. Diaz, 15 Phil., validity or nullity of judicial proceedings in the Japanese-
123). sponsored courts which functioned in the Philippines during the
The claim of the prosecution, sustained by the learned trial court, Japanese occupation has been consistent. I am not abandoning it.
that the offense was committed by the defendant and appellant, But in deference to the majority who sustain the opposite view,
with the aggravating circumstance that the killing was done in a and because no party litigant herein has raised the question, I have
place dedicated to religious worship, cannot be legally sustained; taken part in the consideration of this case on the merits. And,
as there is no evidence to show that the defendant and appellant voting on the merits, I concur in the foregoing decision penned by
had murder in her heart when she entered the chapel that fatal Justice De Joya.
night. Avelina is not a criminal by nature. She happened to kill
under the greatest provocation. She is a God-fearing young The Lawphil Project - Arellano Law Foundation
woman, typical of our country girls, who still possess the
consolation of religious hope in a world where so many others
have hopelessly lost the faith of their elders and now drifting away
they know not where.
The questions raised in the second and third assignments of error
appear, therefore, to be well taken; and so is the first assignment
of error to a certain degree.
In the mind of the court, there is not the least doubt that, in
stabbing to death the deceased Amado Capina, in the manner and
form and under the circumstances above indicated, the defendant
and appellant committed the crime of homicide, with no
aggravating circumstance whatsoever, but with at least three
mitigating circumstances of a qualified character to be considered
in her favor; and, in accordance with the provisions of article 69 of
the Revised Penal Code, she is entitled to a reduction by one or
two degrees in the penalty to be imposed upon her. And
considering the circumstances of the instant case, the defendant
and appellant should be accorded the most liberal consideration
possible under the law (United States vs. Apego, 23 Phil., 391;
United States vs. Rivera, 41 Phil., 472; People vs. Mercado, 43 Phil.,
950)..
The law prescribes the penalty of reclusion temporal for the crime
of homicide; and if it should be reduced by two degrees, the
penalty to be imposed in the instant case is that of prision
correccional; and pursuant to the provisions of section 1 of Act No.
4103 of the Philippine Legislature, known as the Indeterminate
Sentence Law, herein defendant and appellant should be
sentenced to an indeterminate penalty ranging from arresto
mayor in its medium degree, to prision correccional in its medium
degree. Consequently, with the modification of judgment
appealed from, defendant and appellant Avelina Jaurigue is
hereby sentenced to an indeterminate penalty ranging from two
months and one day of arresto mayor, as minimum, to two years,
four months, and one day of prision correccional, as maximum,
with the accessory penalties prescribed by law, to indemnify the
heirs of the deceased Amado Capina, in the sum of P2,000, and to
suffer the corresponding subsidiary imprisonment, not to exceed
1/3 of the principal penalty, in case of insolvency, and to pay the
costs. Defendant and appellant should also be given the benefit of
1/2 of her preventive imprisonment, and the knife marked Exhibit
B ordered confiscated. So ordered..
Ozaeta, Perfecto, and Bengzon, JJ., concur.
FIRST DIVISION
G. R. No. 120646 - February 14, 2000
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. APOLINAR
DANDO, Accused-Appellant.
KAPUNAN, J.:
This is an appeal from a decision of the Regional Trial Court,
Branch 33, Siniloan, Laguna finding PO3 Apolinar E. Dando
("accused-appellant") guilty beyond reasonable doubt of murder.
The Information filed against accused-appellant reads:
That on or about 6:19 o'clock in the evening of November 20, 1991
at Barangay M. Pandeo, Municipality of Siniloan, Province of
Laguna and within the jurisdiction of this Honorable Court, the
above-named accused while conveniently armed with a deadly
weapon (cal. 45) with intent to kill, with treachery and evident
premeditation, did then and there willfully, unlawfully and
feloniously attack, assault and shoot several times one CESAR
CASTRO y VALMONTE with the said weapon, thereby inflicting
upon him gunshot wounds on the vital parts of his body which
directly caused his death, to the damage and prejudice of the
surviving heirs of the victim.
That the qualifying and aggravating circumstances of treachery,
evident premeditation and abuse of superior strength attended
the commission of the crime.
CONTRARY TO LAW.1
On the same date, accused-appellant filed a motion for inhibition
and for a change of venue of the case because several staff
members of Branch 33, RTC of Laguna were related to the victim.
On February 12, 1992, Judge Venancio M. Tarriela, the Presiding
Judge of said branch, granted the motion.2 On May 14, 1992, this
Court approved the change of venue and designated Judge Jose C.
Mendoza of Branch 26, RTC of Sta. Cruz, Laguna, to try and decide
the case.3
Accused-appellant filed a petition for bail4 which was denied after
hearing on the ground that the evidence against accused-
appellant is strong.5 Accused-appellant then went to the Court of
Appeals via petition for certiorari questioning the denial of his
petition for bail.
Subsequently, on account of another motion for inhibition, 6 filed
by accused-appellant alleging that a prosecution witness in the
hearing for the petition for bail was related to a staff member of
Branch 26, the case was re-raffled and transferred to Branch 28,
RTC of Sta. Cruz, Laguna, presided by Judge Fernando Paclibon, Jr.
On June 18, 1993, the Court of Appeals rendered its decision
dismissing accused-appellant's petition questioning the denial of
his motion for bail, for lack of merit.7
During trial and after the prosecution witness had already rested
its case, the Presiding Judge of Branch 28, RTC of Sta. Cruz, Laguna,
likewise, inhibited himself from further hearing the case when
accused-appellant questioned his impartiality because of his
refusal to grant accused-appellant's motion to recall prosecution
witness Susana Masacupan to the witness stand as a hostile
witness.8 The case was transferred back to Branch 26, RTC of
Laguna, then presided by Judge Pablo Francisco.
On May 2, 1995, the trial court rendered its decision the
dispositive portion of which reads:
WHEREFORE, this Court finds the accused Apolinar Dando guilty
beyond reasonable doubt of the crime of murder as charged in the
information, qualified by treachery and committed with the
aggravating circumstances of use of craft or disguise and evident
premeditation and hereby sentences him to suffer the penalty
of reclusion perpetua and to pay the heirs of Cesar Castro as
follows:
a.) the sum of P50,000.00 as death indemnity;
b.) the sum of P1,628,000.00 for loss of earning capacity; and
c.) the sum of P35,974.00 as reimbursement for expenses incurred
in the wake and burial of the victim; and to pay the costs.
SO ORDERED.9
The prosecution's account of the case as narrated in the brief of
the Solicitor General is as follows:
Prosecution witness Aldwin Gemanel testified that on November
20, 1991, he went to the house located at Pandio Street, Siniloan,
Laguna of his uncle, Angelito Millares, Jr. (Junior Millares) to look
for his (Gemanel's) father. Junior Millares' house was about 100 to
150 meters away from that of the victim, Cesar Castro. Upon
arrival at his uncle's place, a party was on-going as it was the
birthday of the former (p. 3, tsn, June 17, 1992). At the said party,
gunshots were fired by appellant and Junior Millares to celebrate
the occasion (p. 4, tsn, October 20, 1992 and pp. 14-15, tsn, August
26, 1993). After a few hours at the birthday party, Gemanel
decided to go to his grandmother's house, a mere three (3) houses
away from his uncle's house (p. 5, tsn, June 17, 1992). On the way
to his grandmother's house, he saw appellant Apolinar Dando, sat
on the side-car of a tricycle parked along Pandio Street in front
of Junior Millares' house and placed a white handkerchief over his
face (p. 5-6, tsn, Ibid). Though puzzled by the action of appellant,
Gemanel proceeded to his grandmother's house and stayed there
for almost an hour (pp. 20-21, tsn, September 22, 1993). When
Gemanel went out of the house, he saw appellant get off the
tricycle with the handkerchief covering his face and walk towards
the direction of the town plaza (pp. 30-31, tsn, Ibid.). At that time,
Gemanel followed appellant and then he (Gemanel) entered a
bakery to buy bread (pp. 28-29, tsn, Ibid). While inside the bakery,
Gemanel heard a shot, so he ran outside to look where the shot
came from (p. 36, tsn, Ibid). Thereupon, he saw appellant with the
same white handkerchief covering his face, firing three (3) more
shots at Cesar Castro, who was standing on the street in front of
his (Castro's) house. After the fourth shot appellant ran towards
the "paraanan" or alley, to the direction of the town plaza (pp. 37-
43, tsn, Ibid).
Gemanel rushed home and told his mother what he had just
witnessed (p. 53, tsn, September 22, 1993). His mother then went
to the crime scene while he was left to tend their store (p. 54,
tsn, Ibid.) When his mother came back after about ten (10)
minutes, he confided to her that he saw appellant shoot Cesar
Castro (p. 54, tsn, Ibid). His mother then advised him not to tell
anyone. Then he went to the crime scene for a closer look of the
victim (p. 55, tsn, Ibid).
The following day on November 21, 1991, Gemanel was fetched
by police officers from his school and was brought to the municipal
building for questioning. The day after, on November 22, 1991, he
executed a statement (Exhibit "A"; pp. 8-9, tsn, July 14, 1992).
Gemanel further testified that he was present when a slug was
recovered from the front yard of his uncle's (Millares') house (p.
11, tsn, July 14, 1992). He personally saw the slug which was
subsequently handed to Celso Castro, son of Cesar Castro. He
learned that the slug found was one of those fired from the service
pistol of appellant when the latter fired his gun during the birthday
party of his uncle (pp. 11-12, tsn, Ibid).
Susan Masakupan, 29 years of age, married and a resident of
Pandio Street, Siniloan, Laguna, corroborated the testimony of
Gemanel. She testified that on or about 6:00 o'clock in the evening
of November 20, 1991, while she was getting dry clothes hanging
at their clothesline located at their front yard, a man wearing a
white polo shirt with designs and a pair of khaki pants and had a
handkerchief covering his face passed by. Surprised with the
man's covered face, her gaze followed the man until the latter
stopped by victim Cesar Castro. Thereupon the man shot Cezar
Castro and when the latter fell down, the man continued on
shooting at Cesar Castro two (2) or more shots. After the
additional shots, the man ran towards an alley (pp. 2-5, tsn, July
21, 1992).
SPO4 Efren Palma, Deputy Station Commander of the PNP,
Siniloan, Laguna, testified that three (3) slugs and three (3) empty
shells were recovered from the crime scene on the night of
November 20, 1991 (p. 6, tsn, October 5, 1992).
Josue Flores, property custodian of the PNP, Siniloan, Laguna,
testified that he issued to appellant, who is a member of PNP,
Siniloan, Laguna, (one 1) service firearm, which was a caliber .45
pistol, Remington, with serial number 1945012 (pp. 3, 5 and 7, tsn,
August 11, 1992).
Florentino Raada, a member of the Central Intelligence Service
of Siniloan, Laguna, testified that he received from the Siniloan,
Laguna police station the following specimens:
- one (1) slug .45 caliber ammunition;
- three (3) pieces slug for .45 caliber ammunition;
- three (3) pieces empty shells for a .45 caliber ammunition;
- one (1) piece caliber Remington pistol with serial number
1945012.
and issued a receipt for them (Exhibits "E" and "E-1"; pp. 17-20,
tsn, August 11, 1992).
Raada further testified that one (1) slug of a .45 caliber pistol
recovered from the body of the victim, which was turned over to
him by Arvee Castro, brother of the victim (pp. 27-28, tsn, Ibid) has
[sic] sent together with the above specimens to the PNP crime
laboratory for ballistic examination (p. 30, tsn, Ibid).
Susan R. Jalla, PNP officer and criminologist, testified that she
conducted a ballistic examination on the specimens submitted
(Exhibits "H", "I", "J" and "K"; pp. 11-13, tsn Ibid).
She issued a certification (Exhibit "N") stating: ". . . microscopic
examination, MS-1, MRS-1, MRS-15 revealed the same individual
characteristics as the test bullets and test cartridges, respectively
fired from the above-mentioned firearm" (p. 17, tsn, Ibid).
Dr. Priscilla Realeza, Rural Health Physician of Pakil, Laguna,
testified that she conducted a postmortem examination on the
cadaver of Cesar Castro. She issued an Autopsy Report (Exhibits
"R" and "R-1") finding that the victim sustained eleven (11)
gunshot wounds (pp. 6-7, tsn Ibid) and that one (1) bullet slug was
extracted from his body (p. 12, tsn, Ibid).10
Accused-appellant, on the other hand, gave the following version
of the incident: On November 20, 1991, he was a member of the
Philippine National Police (PNP) with the rank of PO3 and detailed
as security to the mayor of Siniloan, Laguna. At around one o'clock
in the afternoon of that day, he arrived at the house of Junior
Millares who was then celebrating his birthday. He participated in
a drinking spree up to three o'clock in the afternoon. On that
occasion, there was no firing of a gun. He did not bring his gun to
the birthday party because he was not in a habit of bringing his
gun when he attended such occasions. 11 When he left the party,
he went straight home and slept. He woke up at around midnight
because of an upset stomach and vomitted. He went back to sleep
and woke up the second time in the morning of November 21,
1991, changed his clothes, ate his breakfast and went to work at
around eight o'clock in the morning.12It was only on November 22,
1991 that he learned from his wife that the Chief of Police and the
Mayor were looking for him and that he was a suspect in the killing
of Castro. After eating his supper, he went to the municipal
building where the Chief of Police informed him that he was a
suspect in the killing of Castro and was placed under technical
arrest. He surrendered his firearm for ballistic examination to
show that he had nothing to do with the killing. Thereafter, he did
not know what happened to firearm. 13
The testimony of accused-appellant as to his whereabouts during
the time the crime was committed was supported by his wife
Herninia Dando who testified before the trial court that on
November 20, 1991 she went home at 4 o'clock in the afternoon
to cook their supper. Less than an hour later, her husband arrived,
went to the sala and slept until the next morning. They had
breakfast together and after that, they went to their respective
places of work.14
Accused-appellant assign the following errors committed by the
trial court, to wit:
I
THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDIT TO
THE TESTIMONY OF PROSECUTION WITNESS ALDWIN OF
GEMANEL THAT ACCUSED APPELLANT APOLINAR DANDO WAS
THE ASSAILANT WHO SHOT THE VICTIM CESAR CASTRO.
II
THE TRIAL COURT ERRED IN FINDING THAT THE EMPTY SHELLS
AND SLUGS SUBMITTED FOR BALLISTIC EXAMINATION WERE
THOSE RECOVERED FROM THE SCENE OF THE CRIME AND ONE
SLUG FROM THE BODY OF THE VICTIM AND CAME FROM THE
SERVICE FIREARM OF THE ACCUSED APPELLANT.
III
THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE PHYSICAL
EVIDENCE CONSISTING OF EMPTY SHELLS AND SLUGS PRESENTED
BY THE PROSECUTION AS TAINTED OR POLLUTED, AND HIGHLY
UNRELIABLE.
IV
THE TRIAL COURT ERRED IN CONCLUDING THAT THE TESTIMONY
OF ALDWIN GEMANEL AND THE BALLISTIC EXAMINATION OF THE
SERVICE FIREARM OF ACCUSED APPELLANT CONSTITUTED PROOF
BEYOND REASONABLE DOUBT OF THE GUILT OF THE ACCUSED
FOR THE CRIME OF MURDER.
V
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER
AND IN SENTENCING HIM TO SUFFER THE PENALTY OF RECLUSION
PERPETUAAND TO PAY THE HEIRS THE SUM OF P1,620,000.00 FOR
LOSS OF EARNING CAPACITY OF THE VICTIM, AND OTHER
DAMAGES.15
The first and third issues shall be dealt with together as they are
interrelated.
Accused-appellant assails the testimony of Aldwin Gemanel Q: - And what are you doing then?
alleging that it was marred by inconsistencies and was incredible, A: - None, sir, I was then going to my grandmother's house.
therefore, unworthy of belief. Among these inconsistencies, Q: - And were you able to proceed to the house of your
according to accused-appellant, are: grandmother?
1. Gemanel testified that there was a birthday party attended by A: - Yes, sir.
accused-appellant in the house of his (Gemanel's) uncle, Junior Q: - But prior to proceeding to the house of your "lola" did you go
Millares, and there he saw accused-appellant pull out his gun and to any other place?
fire a shot downward on the floor. However, Millares himself A: - Yes, sir.
testified that accused-appellant merely gave to him the gun and it Q: - Where?
was he (Millares) who fired two shots. Then he handed the gun to A: - To my uncle Junior's house, sir, where there was a drinking
another guest, Agustin Salinas, who likewise fired said gun twice spree.
and then it was returned to accused-appellant.16 Q: - Do you know why them was a drinking spree at the time?
2. Gemanel testified that moments before the shooting of Castro, A: - Yes, sir, it was my uncle Junior's birthday.
he saw accused-appellant in front of the house of Millares putting Q: - What was your purpose in going to the place of your uncle's
a handkerchief to cover his face and then going inside the tricycle birthday?
to rest. However, during the summary examination by the A: - I was going to look for my father, sir.
Municipal Judge who conducted the preliminary investigation, he Q: - Did you. . .while you were there, by the way, where is the
testified that he saw accused-appellant on board the tricycle house of your uncle located?
sleeping.17 A: - On Pandeo Street, sir.
3. Gemanel testified that he was barely one house away from the Q: - How far from your house, how many houses apart?
place of the shooting when he heard a shot. When he looked at A: - About 15 houses, sir.
the place where the shot came from, he saw a man already Q: - What is the full name of your uncle Junior?
sprawled on the ground and the man, whose face was covered by A: - Junior Millares, sir.
a handkerchief, fired two (2) more shots at the victim and left Q: - While you were there at the birthday celebration of your uncle
passing through a pathway. In other words, there were three (3) Junior, what did you notice thereat?
shots fired. Later, he changed his testimony stating that there WITNESS
were four (4) shots fired.18 A: - There was a firing of gun, sir.
4. Gemanel testified that after the shooting, he approached the Q: - Do you know the person who fired his gun at the time?
victim then he went to his mother telling her that Castro was shot A: - Yes, sir, Polly Dando.
without naming the assailant. He later testified that after the Q: - Do you know Polly Dando personally?
shooting, he went home to his mother and revealed to her the A: - Yes, sir.
identity of the assailant as Apolinar Dando. Then he went back to Q: - Do you know the real name of Polly Dando?
the scene of the crime and saw that policemen were already A: - Yes, sir, Apolinario Dando.
investigating the incident. When asked by the police investigator, Q: - Where did you see Apolinario Dando fired his gun?
he told him right then and there that it was accused-appellant who A: - Under the table pointing downwards, sir.
shot the victim.19 Q: - Do you know the caliber used by Dando?
The foregoing inconsistencies are but minor details and they do ATTY. RAGAZA
not discredit the positive identification of accused-appellant as Incompetent, your Honor.
the perpetrator of the crime. The testimony of Gemanel on the COURT
events that transpired on November 20, 1991 was clear, Objection noted, if he knows.
straightforward and consistent. Thus: WITNESS
DIRECT-EXAMINATION BY FISCAL: A: - Yes, sir.
Q: - On November 20, 1991, where were you? FISCAL
WITNESS Q: - Will you tell this Honorable Court the caliber?
A: - I was on Pandeo Street Siniloan, Laguna, sir. A: - A .45 caliber, "yung lapad", sir.
Q: - In what particular place in Brgy. Pandeo? Q: - Have you already seen a gun of that caliber?
A: - About the middle of that area, sir. A: - Yes, sir.
Q: - You were at the middle part of that area. Will you kindly tell Q: - Where?
to this Honorable Court your point of reference as to the place A: - On TV and on posters, sir.
where you were at the time? xxx-xxx-xxx
A: - What I am saying is that I am at the middle of Pandeo Street, Q: - After that, where did you go?
sir. A: - I went to my grandmother, sir.
FISCAL Q: - Where is the house of your grandmother located?
Q: - And when you said you were at the middle portion of Pandeo A: - Also an Pandeo Street, sir.
Street, will you tell this Honorable Court the nearest house where Q: - How far from the house of your uncle Junior?
you were at the time? A: - Three houses away, sir.
WITNESS Q: - What did you do in the house of your lola?
A: - Cesar Castro's house, sir. A: - I entered the house, sir.
Q: - After that, what else happened? A: - I heard a shot, sir.
A: - I went out, sir. Q: - What did you do. . . .
Q: - Where did you go? ATTY. RAGAZA
A: - On the street, sir. I moved to strike out the answer for not being responsive.
Q: - Were you alone at the time? COURT
A: - Yes, sir. Sustained
Q: - While you were on the street, did you notice of any unusual FISCAL
incident? Q: - While you were at the bakery, what else happened?
A: - Yes, sir. WITNESS
Q: - What was that incident? A: - I heard a shot, sir.
A: - I saw Polly boarded a tricycle, sir. Q: - What shot did you hear?
Q: - When you said Polly Dando boarded a tricycle, you mean to A: - A gunshot, sir.
say Dando went somewhere else? Q: - When you heard that gunshot, what did you do?
WITNESS A: - I went beside the street, sir.
A: - No, he merely sat on board a tricycle which was parked there, Q: - What did you find out?
sir. A: - I saw Cesar Castro already sprawled on the ground, sir.
Q: - This tricycle has a driver? Q: - Was Cesar Castro alone at the time?
A: - None, sir. A: - Yes, sir.
Q: - What else did you notice? Q: - And do you know what was the cause of Cesar's falling to the
A: - I saw Polly Dando placed a handkerchief over his face, sir. ground?
xxx-xxx-xxx ATTY. RAGAZA
FISCAL Incompetent, your Honor, he already saw Cesar already sprawled
Q: - Do you know the color of the handkerchief? on the ground.
A: - Yes, sir, white with small drawings. COURT
Q: - Will you tell this Honorable Court the attire used by the May answer. We will see the answer.
accused Apolinario Dando? WITNESS
A: - He was wearing a white polo shirt, sir, and a khaki pants. A: - No, sir.
Q: - After you saw Apolinar Dando sat on a tricycle and put a FISCAL
handkerchief on his face, what else happened? Q: - At that precise moment when you heard the gunshot and you
WITNESS go (sic) to the street to find our where the shot came from, where
A: - He merely rested for a short while, sir. was Apolinar Dando at the time?
Q: - After that, what happened? ATTY. RAGAZA
A: - I left, sir. There is no testimony that Apolinar Dando was present at the
Q: - You mean to say after you saw Apolinar sat on a tricycle and time.
put a handkerchief on his face and rested for a while, you went to COURT
your lola's house? There was no testimony that Apolinar Dando was them. The fiscal
A: - Yes, sir. was asking where was Apolinar at the time. He was not asking why
Q: - After that, where did you proceed? he was there. He did not assume.
A: - I merely stayed on the street, sir. WITNESS
Q: - And again, while there on the street, did you again notice any A: - I saw him walked a few steps and then fired his gun at Cesar,
unusual incident? on his side, sir.
A: - Yes, sir. xxx-xxx-xxx
Q: - What was that incident? Q: - After you saw Apolinar for the second time at the sprawled
A: - Polly Dando got off the tricycle, sir. body of Cesar, what else happened?
Q: - Where did he go? A: - He ran and went towards an alley, "paraanan", sir.20
A: - Towards the plaza, sir. On cross-examination, Gemanel gave substantially the same
Q: - And what did you do? testimony:
A: - I followed Polly, sir. Q: - In answer to the question of the Court in the last hearing, you
Q: - Up to what point did you follow him? said you saw Dando going to the plaza and you followed him far a
A: - About 2 houses, sir. distance of about 2 houses, during the time you were following,
Q: - While following Dando, what happened next? did you meet any person?
A - I entered a bakery, sir. A: - None, sir.
Q: - What was your purpose in going to that bakery? Q: - And during all the time that you were following Dando, was
A: - I was going to buy bread, sir. he wearing a handkerchief over his face?
Q: - Were you able to buy bread? A: - Yes, sir.
A: - No, sir. Q: - But you did not have much interest, that is why you stop
FISCAL following him and stopped at a bakery?
Q: - Where did you proceed after that? A: - Yes, sir.
ATTY. RAGAZA testimony."23 Moreover, the alleged inconsistencies refer only to
Q: - And then you heard a shot? inconsequential details and not to the crux of the case that
WITNESS Gemanel saw accused-appellant gun down Castro. Gemanel never
A: - Yes, sir. wavered on this point even for a single moment. The consistency
Q: - Exactly, where were you when you heard the first shot? on the part of Gemanel in identifying accused-appellant as the
A: - In the bakery about to buy bread, sir. perpetrator of the crime makes him a credible witness. His
Q: - Where were you facing? testimony cannot be discredited by a mere alibi and denial on the
A: - Towards the bakery, sir. part of accused-appellant.
Q: - Was there anybody attending to you in the bakery? Alibi is one of the weakest defenses in criminal cases and it should
A: - Yes, sir. be rejected when the identity of the accused is sufficient and
Q: - Now, you were merely waiting for bread that you would buy positively established by the prosecution.24 Moreover, in order to
in that bakery? overcome the evidence of the prosecution, the accused must
A: - Yes, sir, when suddenly I heard a shot. establish not only that he was somewhere else when the crime
Q: - How many shots did you hear while you were in the bakery? was committed but also that it was physically impossible for him
A: - First, I heard one shot so I went out of the bakery and I saw Ka to have been at the scene of the crime at the time it was
Cesar being shot, sir. committed.25 In the present case, accused-appellant failed to
Q: - How many shots in all did you hear? show that it was physically impossible for him to be at the scene
A: - Three, sir. of the crime when it was committed. He even admitted that his
Q: - What was the interval between the first and the second shot? house was only about one-and-a-half kilometers away from the
A: - First, I was inside the bakery when I heard a shot so I house of Millares,26 which was very near the place where Castro
immediately went out and saw Dando firing two shots on Ka Cesar was shot to death. Undoubtedly, the distance did not render it
who was already lying on the ground, sir.21 impossible for accused-appellant to be at the scene of the crime
xxx-xxx-xxx at the time it was committed. Accused-appellant's defense of alibi
ATTY. BALCE: must necessarily fail.
Q: - You heard a shot and you went out and stopped at this point As to the alleged inconsistency between the testimonies of
marked by an "x"? Gemanel and that of Millares, we find the testimony of Gemanel
A: - Yes, sir. to be more credible since the inconsistency lies in the affidavit and
Q: - And it was only a gunshot that you heard? testimony of Millares himself. In his affidavit, Millares averted that
A: - On that moment, one. he fired the gun first and then accused-appellant fired the gun
Q: - Just after the shot, did you not hear any person crying out in twice.27 In his testimony in court, however, he (Millares) claimed
panic. that after firing the gun, he gave the gun to Agustin
A: - Nobody, sir. Salinas.28 Confronted with the inconsistent statements of Millares
COURT: and the straightforward and categorical testimony of Gemanel,
Q: - After that first shot, did you hear any other shot? which was corroborated by that of Susana Masacupan, this Court
A: - I heard, Your Honor. believes and gives credence to the latter.
COURT: When he testified in court, Gemanel was then only thirteen (13)
Q: - How many shots did you hear after hearing the first shot? years old and a second year high school student at Siniloan Public
A: - Three to four shots, Your Honor. Highhool. Indeed "the testimony of a child of sound mind is likely
ATTY. BALCE: to be more correct and truthful than that of older persons, so that
I move that the last answer be placed in tagalog. once established that he has fully understood the character and
A: - "Mga tatlo o apat" nature of an oath, his testimony should be given full credence. 29
Q: - What did you say? In the second and third issues raised in his brief, accused-appellant
A: - "Tatlo po o apat". opines that there is no proof showing that the empty shells and
ATTY. BALCE: slugs recovered at the scene of the crime were the same empty
But your first answer that I heard was "tatlo bale apat." shells and slugs submitted for ballistic examination. According to
A: - Yes sir. accused-appellant, the relatives of the victim tampered with these
COURT: pieces of evidence making the same tainted or polluted, therefore,
Q: - Did you know where the shots came from? unreliable.
A: - Yes, Your Honor. Other than these bare allegations, however, accused-appellant
Q: - Where? failed to prove by convincing evidence any irregularity in the
A: - From the house of Ka Cesar. handling by the police officers of these particular pieces of
COURT: evidence. The ballistic examination report is thus clothed with the
Q: - After hearing those shots, what did you observe, if any? presumption of regularity. At any rate, the presentation of
A: - The person with his handkerchief covering his face, was weapons (or the slugs and bullets, as in this case) used and ballistic
running and entered an alley, "paraanan".22 examination are not prerequisites for conviction.30 The corpus
Well-settled is the rule that "inconsistencies on minor and trivial delicti and the positive identification of accused-appellant as the
matters only serve to strengthen rather than weaken the perpetrator of the crime are more than enough to sustain his
credibility of witnesses for they erase the suspicion of rehearsed conviction.
Anent the fifth issue, accused-appellant contends that the trial The life expectancy is equivalent to two thirds (2/3) multiplied by
court erred in convicting him for murder and awarding in favor of the difference of 80 and the age of the deceased. 37 Since Castro
the victim's heirs the sum of P1,620,000.00 for his loss of earning was 47 years old at the time of his death, his life expectancy was
capacity and other damages. 22 more years.38 Celso Castro testified that his father earned
Art. 248 of the Revised Penal Code reads: P3,000.00 monthly or P36,000.00 annually from the sash factory.
Art. 248. Murder. Any person who, not falling within the In addition, the victim's annual income from farming, as found by
provisions of Article 246 shall kill another, shall be guilty of murder the trial court, was P53,000.00. The gross annual income of the
and shall be punished by reclusion temporal in its maximum deceased was P89,000.00. Allowing for necessary living expenses
period to death31 if committed with any of the following of fifty percent (50%) of his gross earnings, his total net earning
circumstances: capacity amounts to P979,000.00.39
1. With treachery, taking advantage of superior strength, with the As to the expenses actually incurred by the family of the victim for
aid of armed men, or employing means to weaken the defense or the wake and burial, Celso Castro was able to prove during trial
of means or persons to insure or afford impunity. that they incurred the sum of P39,974.00. The amount of
xxx-xxx-xxx P35,974.00 awarded by the trial court as reimbursement of
5. With evident premeditation. funeral expenses is, accordingly, increased to P39,974.00.
xxx-xxx-xxx WHEREFORE, premises considered, the decision of the trial court
The essence of treachery is that the attack comes without a is hereby AFFIRMED with MODIFICATION that accused-appellant
warning and in a swift, deliberate and unexpected manner, shall pay the heirs of the victim the following amounts:
affording the hapless, unarmed and unsuspecting victim no 1. death indemnity in the amount of P50,000.00;
chance to resist or escape.32 In this case, accused-appellant, 2. compensation for loss of earning capacity in the amount of
whose face was covered by a handkerchief; approached the P979,000.00; and
victim, who was merely standing by the gate in front of his house, 3. reimbursement of funeral expenses in the amount of
and shot him. The victim was undoubtedly caught unaware and P39,974.00.
had no chance of putting up any defense. Clearly, treachery SO ORDERED.
attended the commission of the crime since the attack, although Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.
frontally, was no less sudden and unexpected, giving the victim no
opportunity to repel it or offer any defense of his person.33
The trial court further established that there was evident
premeditation and that accused-appellant used "craft, fraud or
disguise" in committing his dastardly act:
. . . When DANDO (accused-appellant) boarded the tricycle parked
in front of the residence of Angelito Millares, Jr., he did so not to
rest or sleep there. He was there, with a handkerchief over his
face, lying in wait for Cesar Castro to come out and stand by the
gate of his house as he customarily did while taking a rest. And
DANDO stayed inside the tricycle for a couple of hours, like an
eagle waiting for its prey. From the parked tricycle, DANDO could
clearly see the gate of Cesar Castro's house, 100 to 150 meters
away. DANDO'S stay inside the tricycle lasted for about two (2)
hours, a sufficient time for him to reflect on the consequences of
his plan to kill Cesar Castro. And when Cesar Castro did finally
come out, and stood there unarmed by the gate of his house,
DANDO swiftly swooped down on his prey and triggered the burst
from his service firearm which snuffed the life of his victim. 34
Given the foregoing attendant aggravating circumstances, the trial
court properly sentenced accused-appellant to suffer the penalty
of reclusion perpetua. However, the amount it awarded in favor of
the heirs of the victim should be modified in accordance with
prevailing jurisprudence.
The trial court correctly awarded the amount of P50,000 as
indemnity for the death for Cesar Castro. Said amount is awarded
without need of further proof other than the death of the
victim.35 In addition, the heirs are also entitled to receive a
compensation for the loss of earning capacity of the victim. The
formula for computing the same as established in decided
cases36 is as follows:
Net Earning Capacity = Life Expectancy x Gross Annual Income -
Necessary Living Expenses
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-33304 December 13, 1930
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
CONSTANTE SOTELO, ET AL., defendants.
CONSTANTE SOTELO, appellant.
Alberto Reyes for appellant.
Attorney-General Jaranilla for appellee.
VILLAMOR, J.:
The Sotelo brothers, namely, Constante, Dominador, and Vicente,
were prosecuted in the Court of First Instance of Ilocos Sur for the
crime of homicide under the following information:
That on or about the night of December 24, 1929, in the
municipality of Narvacan, Province of Ilocos Sur, Philippine Islands,
the said accused Constante, Dominador, and Vicente Sotelo,
armed with a penknife, a stick, and an iron bar, respectively, acting
together and helping one another, did willfully, maliciously,
unlawfully, and feloniously with treachery and evident
premeditation attack, beat up, and commit assault upon the
person of Ignacio Cambaliza, inflicting a mortal wound upon him
on the level of the left nipple, which penetrated the left lung and
the left ventricle of the heart, another on the outward surface of
the right arm, a bruise on the nose and another on the upper lip:
as a result of which said Ignacio Cambaliza died after a few
minutes.
Contrary to law; with the aggravating circumstance of abuse of
superior strength.
After the trial, the court below found the defendant Constante
Sotelo guilty of the crime of homicide, and the defendants Vicente
and Dominador Sotelo of slight physical injuries, sentencing the
former to suffer twelve years and one day of reclusion temporal,
to indemnify the heirs of the deceased in the sum P1,000, with the
accessories of law, and to pay one-third of the costs; and ordering
the release of Vicente and Dominador Sotelo in view of the fact
that they had already been imprisoned since December 24, 1929,
with two-thirds of the costs de oficio.
The defendant Constante Sotelo appealed from this judgment,
and his counsel has made the following assignments of error:
I. The trial court erred in accepting the whole theory of the
prosecution:
Despite the obvious incongruity between the information and the
evidence adduced at the trial;lawphi1>net
Despite the proof that the iron bar, Exhibit B of the prosecution
and Exhibit 1 of the defense, belong to the principal witness,
Baltazar Capistrano, and not to any of the defendants;
Despite the fact that it has been proved that the incident took
place in the yard of the defendants' house and not on the public
road;
Despite the fact that Baltazar Capistrano deliberately concealed
the place where the deceased expired, fearing his participation in
the tragedy should come to light; and
Despite the fact that the chief of police acted with evident
partiality towards Cambaliza and Capistrano, in intervening
immediately after the incident had occurred, hiding the whip or
riding crop, which the other local authorities found hanging from
the right arm of the deceased, and for the other reasons.
II. The trial court erred in finding the following facts: that
Dominador Sotelo hit the deceased across the mouth with the
crop Exhibit B, Vicente Sotelo stabbed him on the right shoulder
with the penknife Exhibit D, and Constante Sotelo stabbed him
under the nipple.
III. The trial court erred in refusing to consider the plea of self-
defense alleged and proved by the defendant-appellant,
Constante Sotelo, notwithstanding the fact that said defense is
strongly corroborated by Exhibits O, 5, and 4, which form a part of
the res gestae.
IV. The lower court erred in refusing to consider the motion of
February 1, 1930, declaring afterwards that, as the defendant has
shown graphically, the latter could not have touched the victim's
left breast in stabbing him, or the wound would not have been in
the direction described in Dr. Nolasco's certificate; in spite of the
fact that it had made contrary declarations during the trial, which
estop it from making the subsequent holdings.
V. The trial judge erred in convicting the defendant appellant,
Constante Sotelo.
The record shows that at about 8 o'clock in the evening of the 24th
of December, 1929, Ignacio Cambaliza started for the barrio of
Ravadabia, in the municipality of Narvacan, Ilocos Sur,
accompanied by Baltazar Capistrano. They took the provincial
road leading to said barrio and as they approached the Sotelo
house, they bid the time of day, asking whether they might pass
by, according to the custom of the place. They were barely 20
meters away from the house, when the defendant Constante
Sotelo, who had just finished his supper, descended from the
house towards the road, and, from the entrance of his yard,
turned his flashlight on the passers-by to see who they were.
When Ignacio Cambaliza saw this, he walked back to where
Constante Sotelo stood and inquired why he turned his flashlight
on them, and what it was he wanted, winding up with a vulgar
remark. When Constante's brothers, who were then in the yard on
the side of the road, saw Cambaliza's attitude, they approached
their brother to separate or defend him, whereupon Cambaliza's
commenced beating them with his iron crop, once striking
Constante's arm. The brothers, in turn, fell upon Cambaliza,
Dominador striking him across the face with the stick he carried,
and Vicente wounding him in the right shoulder with a penknife.
At this juncture, Capistrano attempted to intervene, but he was
warned by Vicente and probably by Dominador also, for which
reason he withdrew from the scene, and the fight then continued
between Cambaliza and Constante. In the course of this fight,
Constante thrust a penknife into Cambaliza at about the level of
the left nipple, producing a wound which penetrated the left lung
into the left ventricle of the heart, resulting in his death a few
minute later.
Witness Baltazar Capistrano, who was with the deceased, says
that after Ignacio Cambaliza had fallen lifeless, he went over to the
municipal building to ask for help, and at once the chief of police,
the justice of the peace, and the municipal president repaired to
the place where the incident had occurred, placing the brothers
under arrest that same night: Constante with a penknife, Vicente
with another penknife, and Dominador with a cane.
Doctor Antonio Nolasco examined Ignacio Cambaliza's body, and
found a knife wound at about the level of the left nipple, 2 1/2
centimeters long, and 2 1/2 inches deep; a knife wound on the
outward surface of the right arm, 4 centimeters deep; and bruises
at the base of the nose and on the upper lip, produced by a blunt
instrument. According to the doctor the breast wound which
pierced the left lung and the left ventricle of the heart was the
cause of Ignacio Cambaliza's death.
The appellant admits he inflicted the injury which resulted in
Ignacio Cambaliza's death, but maintains he did so in self-defense.
In support of this allegation it is insisted that the fight took place
in the yard of the defendants' house; that Vicente and Dominador
went to help their brother Constante when they saw Cambaliza
attack him, but ran behind some sugar cane near by in order to
conceal themselves when pursued by Cambaliza; that the latter
fought hand to hand with Constante, choked him and threw
himself upon him, and at that instant Constante thrust a penknife
into his ribs below the left nipple; that Capistrano answered
Cambaliza's call, saying that Constante had stabbed him, and, with
the assistance of Capistrano, Cambaliza succeeded in leaving the
Sotelo yard and after a few steps fell lifeless on the roadside,
where his body was later found.
After examining the evidence of record, we believe the defense is,
in a measure, supported by the testimony of Baltazar Capistrano
given before the justice of the peace of Narvacan. In considering
this proof it is well to remember that the justice of the peace of
Narvacan testified in the case that Baltazar Capistrano made two
statements before him in the investigation prior to the arrest of
the defendants, which is Exhibit 9, and in the course of the
preliminary investigation, embodied in Exhibit 10. Counsel for the
defense attempted to examine Capistrano on these two
statements, but the fiscal objected, and the court sustained the
objection on the ground that the best evidence would be
Capistrano's own statements taken down in writing. Counsel then
required the fiscal to present said documents, and the latter
delivered to him the aforementioned Exhibits 9 and 10, which
were offered in evidence by the defense. The fiscal reiterated his
objection to that evidence on the ground that the documents
were not identified; but the record shows that they had been
delivered by the fiscal himself to counsel for the defense, and he
is therefore precluded from setting up the lack of identification,
whereupon the court doubtless ruled them in, and the fiscal failed
to take exception therefrom.
The record further shows that counsel for the appellant sought to
have the witness Capistrano explain the contradiction between his
statement in Exhibit 10 and his testimony at the hearing, but the
fiscal objected and the court sustained the objection. Capistrano
has thus failed to explain the contradiction noted between Exhibit
10 and his testimony before the trial court.
We believe the trial judge erred in sustaining the fiscal's objection
to having witness Capistrano explain the contradiction between
his statement in Exhibit 10, and his testimony before the trial court
at the hearing. But be that as it may, we are of opinion that said
documents Exhibits 9 and 10 have been duly introduced into the
case as evidence for the defense and must therefore be taken into
consideration in rendering judgment.
In said Exhibit 10, witness Capistrano, among other things, affirms
the following:
As we passed by Constante was flashlighting us and he was
standing by the door of their yard. I did not see any body by him.
We were then about 20 meters away from him when he rushed to
us.
Ignacio was the first one who uttered bad words against
Constante. Ignacio had a whip wrapped with lead.
Other than this time I declared before the justice of the peace.
As Dominador came he struck Ignacio, but Ignacio defended.
Vicente struck and Constante rushed in and then they wrestled
against each other and I tried to separate them.
I was only 5 meters away from them when they first wrestled. It
was dark at that time but I saw what happened by the aid of my
flashlight.
I am very sure that Exhibit A was the bar which Vicente was
holding and Exhibit B was the knife that Constante used in
stabbing Ignacio.
While they were wrestling Constante was under Ignacio during
which time, I saw Constante bring out his knife.
The same witness testified before the trial court as follows:
Q. Do you know whether anything extraordinary took place along
the road? A. Yes sir; for when we came near the house of
Francisco Sotelo, we saw Constante, Dominador, and Vicente
Sotelo in the yard of the house. I and my companion said "we are
passing, sir," but they did not answer, and they focused their
flashlight on us. And when we came to within ten meters, they still
kept the flashlight focused on us, and then my companion said:
"Why do you turn your flashlight on us? Have we not greeted you
in passing?"
Q. What did the Sotelo brothers, Constante, Dominador, and
Vicente do when they heard Ignacio Cambaliza say this? A. After
Ignacio Cambaliza had said that, they switched off the light, and
we continued on.
Q. What else? A. After we had proceeded about 20 meters,
someone came up behind us with a flashlight saying: "Wait! your
mother's . . .! you cannot say bad words when you pass here."
Q. What else? A. When they had said this, Ignacio Cambaliza
stopped and said: "I have used no bad word."
Ignacio Cambaliza interrupted Constante Sotelo saying "I did not
say that." And Dominador, in turn, said, "You didn't say anything,
your mother's . . .!"
Q. And what did Dominador Sotelo do then? A. Immediately
after saying, "you didn't say anything, your mothers . . .! he struck
him across the face with a stick.
xxx xxx xxx
Q. And what else happened? A. After that blow delivered by
Dominador Sotelo, he was stunned. While he was so stunned,
Vicente Sotelo stabbed him with a penknife on the right shoulder;
and Ignacio Cambaliza, still stunned, turning about; and Constante
Sotelo stabbed him in the region of the heart with a penknife.
Comparing the two statements quoted above, it will be seen that
the witness Capistrano affirmed in Exhibit 10 that he saw
Constante standing at the entrance of his yard, alone; that the
deceased was the first to make vulgar remarks to Constante; and
that during the fight Constante was under Cambaliza when he
drew his penknife to stab him. On the other hand, testifying before
the trial court, the said witness Capistrano stated that he and the
deceased saw the three brothers, Constante, Dominador, and
Vicente Sotelo in the yard of the house; that one of these brothers
was the first to make insulting remarks to Cambaliza, and that
while the two brothers were attacking Cambaliza, Constante
stabbed him in the chest with a penknife.
We believe Capistrano's testimony appearing in Exhibit 10 as to
Constante's position when he wounded Cambaliza, must be
accepted, not only because it was given two days after the
incident, but because it has been corroborated by the witnesses
for the defense. (U. S. vs. Capisonda, 1 Phil., 575; and U.
S. vs. Rafael, 23 Phil., 184.)
As to who started the aggression, there is an obvious contradiction
between the testimony of Capistrano and that of the witnesses for
the defense. But in the light of sound judgment, we are inclined to
believe that the deceased started the aggression, provoked by the
offensive language used by Constante and his brothers, imputing
to him the utterance of vulgar language against them. In such a
situation the deceased naturally used his whip against those who
were in front of him, striking Constante's arm. We therefore
believe this is a case of incomplete self-defense, wherein the
appellant was unlawfully attacked by the deceased and compelled
to employ reasonable means to defend himself, but he is
responsible for provoking the attack. (U. S. vs. Ancheta, 1 Phil., 30;
U. S. vs. McCray, 2 Phil., 545.) According to article 86 of the Penal
Code the penalty next below that provided in article 404 of said
Code must be imposed upon the appellant, that is, prision mayor
in its minimum degree, or six years and one day, with the
accessories of law, and to indemnify the family of the deceased in
the amount of P500. And with this modification the judgment
appealed from is affirmed in all other respects, with costs against
the appellant. So ordered.
Johnson, Street, Malcolm, Ostrand, Johns and Villa-Real, JJ., concur

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines Sgt. Esteban Cabanos observed the proceedings for several days
SUPREME COURT upon instructions of Headquarters, 15th Infantry. The trial lasted
Manila 19 days up to April 10, 1945; the jury found Borjal guilty on all
EN BANC accounts and imposed upon him instruction from his superiors.
G.R. No. L-4445 February 28, 1955 Mayor Beronilla forwarded the records of the case to the
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Headquarters of the 15th Infantry for review. Said records were
vs. returned by Lt. Col. Arnold to Beronilla on April 18, 1945 with the
MANUEL BERONILLA, FILIPINO VELASCO, POLICARPIO following instructions:
PACULDO, and JACINTO ADRIATICO, defendants-appellants. HEADQUARTERS 3RD MILITARY DISTRICT
Agripino A. Brillantes, Valera, Eufemio and Bernardez for 15TH INFANTRY, USAFIP
appellants. In the Field
Prospero C. Sanidad and Claro M. Recto for defendant.
16 April 1945
Office of the Solicitor General Juan R. Liwag and Solicitor Jaime R.
de los Angeles and Martiniano P. Vivo for appellee. Msg. No. 337 Subject: Arsenio Borjal, Charges Against
REYES, J.B.L., J.: To: Military Mayor of La Paz, Abra.
This is an appeal by accused Manuel Beronilla, Policarpio Paculdo, 1. Returned herewith are the papers on the case of Arsenio Borjal.
Filipino Velasco, and Jacinto Adriatico from the judgment of the 2. This is a matter best handled by your government and whatever
Court of First Instance of Abra (Criminal Case No. 70) convicting disposition you make of the case is hereby approved.
them of murder for the execution of Arsenio Borjal in the evening Received April 18, 1945, 10:35 a.m.
of April 18, 1945, in the town of La Paz , Province of Abra. (Sgd.) MANUEL BERONILLA
Arsenio Borjal was the elected mayor of La Paz, Abra, at the Military Mayor, La Paz, Abra
outbreak of war, and continued to serve as Mayor during the (Exhibit 8, 8-a)
Japanese occupation, until March 10, 1943, when he moved to and on the night of the same day, April 18, 1945, Beronilla ordered
Bangued because of an attempt upon his life by unknown persons. the
On December 18, 1944, appellant Manuel Beronilla was appointed
(Sgd.) R. H. ARNOLD
Military Mayor of La Paz by Lt. Col. R. H. Arnold, regimental
Lieut.-Colonel, 15th Inf., PA
commander of the 15th Infantry, Philippine Army, operating as a
Commanding
guerrilla unit in the province of Abra. Simultaneously with his
appointment as Military Mayor, Beronilla received copy of a execution of Borjal. Jacinto Adriatico acted as executioner and
memorandum issued by Lt. Col. Arnold to all Military Mayors in Antonio Palope as grave digger. Father Luding of the Roman
Northern Luzon, authorizing them "to appoint a jury of 12 Catholic Church was asked to administer the last confession to the
bolomen to try persons accused of treason, espionage, or the prisoner, while Father Filipino Velasco of the Aglipayan Church
aiding and abetting (of ) the enemy" (Exhibit 9). He also received performed the last rites over Borjal's remains. Immediately after
from the Headquarters of the 15th Infantry a list of all puppet the execution, Beronilla reported the matter to Col. Arnold who in
government officials of the province of Abra (which included reply to Beronilla's report, sent him the following message:
Arsenio Borjal, puppet mayor of La Paz), with a memorandum HEADQUARTERS 3RD MILITARY DISTRICT
instructing all Military Mayors to investigate said persons and 15TH INFANTRY, USAFIP
gather against them complaints from people of the municipality In the Field
for collaboration with the enemy (Exhibit 12-a). 22 April 1945
Sometime in March, 1945, while the operations for the liberation
of the province of Abra were in progress, Arsenio Borjal returned Msg. No. 398
to La Paz with his family in order to escape the bombing of Subject: Report and information Re Borjal case
Bangued. Beronilla, pursuant to his instructions, placed Borjal To: Military Mayor Beronilla
under custody and asked the residents of La Paz to file complaints 1. Received your letter dated 18 April 1945, subject, above.
against him. In no time, charges of espionage, aiding the enemy, 2. My request that you withhold action in this case was only
and abuse of authority were filed against Borjal; a 12-man jury was dictated because of a query from Higher Headquarters regarding
appointed by Beronilla, composed of Jesus Labuguen as chairman, same. Actually, I believe there was no doubt as to the treasonable
and Benjamin Adriatico, acts of the accused Arsenio Borjal and I know that your trial was
(Sgd.) R. H. ARNOLD Andres Afos, Juanito Casal, absolutely impartial and fair. Consequently, I Can only compliment
Lieut.-Colonel, 15th Inf., PA Santiago Casal, Benjamin you for your impartial independent way of handling the whole
Commanding Abella, Servillano Afos, case.
Mariano Ajel, Felimon Received April 26, 1947 7:00 a.m.
Labuguen, Felix Murphy, (Sgd.) MANUEL BERONILLA
Pedro Turqueza, and Delfin Military Mayor, La Paz, Abra
Labuguen as members; while Felix Alverne and Juan Balmaceda (Exhibit 21, 21-a)
were named prosecutors, Policarpio Paculdo as clerk of the jury, Two years thereafter, Manuel Beronilla as military mayor,
and Lino Inovermo as counsel for the accused. Later, Atty. Jovito Policarpio Paculdo as Clerk of the jury, Felix Alverne and Juan
Barreras voluntarily appeared and served as counsel for Borjal. Balmaceda as prosecutors, Jesus Labuguen, Delfin Labuguen,
Filemon Labuguen, Servillano Afos, Andres Afos, Benjamin
Adriatico, Juanito Casel, Santiago Casel, Mariano Ajel, Felix
Murphy, Benjamin Abella, and Pedro Turqueza as members of the
jury, Jacinto Adriatico as executioner, Severo Afos as grave digger,
and Father Filipino Velasco as an alleged conspirator, were
indicted in the Court of First Instance of Abra for murder, for
allegedly conspiring and confederating in the execution of Arsenio
Borjal. Soon thereafter, the late President Manuel A. Roxas issued
Executive Proclamation No. 8, granting amnesty to all persons
who committed acts penalized under the Revised Penal Code in
furtherance of the resistance to the enemy against persons aiding
in the war efforts of the enemy. Defendant Jesus Labuguen, then
a master sergeant in the Philippine Army, applied for and was
granted amnesty by the Amnesty Commission, Armed Forces of
the Philippines (Records, pp. 618-20). The rest of the defendant
filed their application for amnesty with the Second Guerrilla
Amnesty Commission, who denied their application on the ground
that the crime had been inspired by purely personal motives, and
remanded the case to the Court of First Instance of Abra for trial
on the merits.
Upon motion of defense counsel, the case against defendant Jesus
Labuguen, who had been granted amnesty by the Amnesty
Commission of the Armed Forces of the Philippines, was ordered
provisionally dismissed: defendant Juan Balmaceda was
discharged from the information so that he might be utilized as
state witness, although actually he was not called to testify; while
the case against defendants Antonio Palope (the grave digger) and
Demetrio Afos( a boloman) was dismissed for lack of sufficient
evidence.
Trial proceeded against the rest of the defendants; and on July 10,
1950, the Court below rendered judgment, acquitting the
members of the jury and the grave digger Antonio Palope on the
ground that they did not participated in the killing of Arsenio
Borjal; acquitting defendants Jesus Labuguen, Felix Alverne,
Severo Afos, and Lauro Parado upon insufficiency of evidence to
establish their participation in the crime; but convicting
defendants Manuel Beronilla, Policarpio Paculdo, Filipino Velasco,
and Jacinto Adriatico as conspirator and co-principals of the crime
of murder, and sentencing them to suffer imprisonment of from
17 years, 4 months and 1 day of reclusion temporal to reclusion
perpetua, to indemnify the heirs of Arsenio Borjal jointly and
severally in the amount of P4,000 with subsidiary imprisonment in
case of insolvency, and each to pay one fourth of the costs. In
convicting said defendants the Court a quo found that while the
crime committed by them fell within the provisions of the
Amnesty Proclamation, they were not entitled to the benefits
thereof because the crime was committed after the expiration of
the time limit fixed by the amnesty proclamation;: i.e., that the
deceased Arsenio Borjal was executed after the liberation of La
Paz, Abra.
In view of the sentence meted by the Court below, the accused
Beronilla, Paculdo, Velasco and Adriatico appealed to this Court.
The records are ample to sustain the claim of the defense that the
arrest, prosecution and trial of the late Arsenio Borjal were done
pursuant to express orders of the 15th Infantry Headquarters.
(Exhibit 9 and 12-a), instructing all military mayors under its
jurisdiction to gather evidence against puppet officials and to
appoint juries of at least 12 bolomen to try the accused and find
them guilty by two thirds vote. It is to be noted that Arsenio Borjal
was specifically named in the list of civilian officials to be
prosecuted (Exhibit 12-b).
In truth, the prosecution does not seriously dispute that the trial
and sentencing of Borjal was done in accordance with instructions
of superior military authorities, altho it point to irregularities that
were due more to ignorance of legal processes than personal
animosity against Borjal. The state, however, predicates its case
principally on the existence of the radiogram Exhibit H from Col.
Volckmann, overall area commander, to Lt. Col. Arnold,
specifically calling attention to the illegality of Borjal's conviction
and sentence, and which the prosecution claims was known to the
accused Beronilla. Said message is as follows:
"Message:
VOLCKMANN TO ARNOLD CLN UNDERSTAND THAT
MUNICIPALITIES OF ABRA HAVE ORGANIZED JURY SYSTEM PD
BELIEVE THAT THIS BODY IS ILLEGAL AND CANNOT TRY
PUNISHMENTS THEREOF PD SPECIFIC INSTANCE IS BROUGHT TO
YOUR ATTENTION FRO PROPER AND IMMEDIATE ACTION ON ONE
ARSENIO BORJAL OF LA PAZ WHO HAS BEEN TRIED CMA
CONVICTED AND SENTENCED TO BE HANGED PD REPORT ACTION
TAKEN BY YOU ON THIS MATTER PD MSG BEGINS CLN"
(EXH. H)
The crucial question thus becomes whether or not this message,
originally sent to Arnold's quarters in San Esteban, Ilocos Sur, was
relayed by the latter to appellant Beronilla in La Paz, Abra, on the
morning of April 18, 1945, together with the package of records of
Borjal's trial that was admittedly returned to and received by
Beronilla on that date, after review thereof by Arnold (Exhibit 8-8-
a). Obviously, if the Volckmann message was known to Beronilla,
his ordering the execution of Borjal on the night of April 18, 1945
can not be justified.
We have carefully examined the evidence on this important issue,
and find no satisfactory proof that Beronilla did actually receive
the radiogram Exhibit H or any copy thereof. The accused roundly
denied it. The messenger, or "runner", Pedro Molina could not
state what papers were enclosed in the package he delivered to
Beronilla on that morning in question, nor could Francisco
Bayquen (or Bayken), who claimed to have been present at the
delivery of the message, state the contents thereof.
The only witness who asserted that Beronilla received and read
the Volckmann message, Exhibit H, was Rafael Balmaceda, a
relative of Borjal, who claimed to have been, as Beronilla's
bodyguard, present at the receipt of the message and to have read
it over Beronilla's shoulder. This testimony, however, can not be
accorded credence, for the reason that in the affidavit executed
by this witness before Fiscal Antonio of Abra (Exhibit 4),
Balmaceda failed to make any mention of the reading, or even the
receipt, of the message. In the affidavit, he stated:
Q. In your capacity as policeman, do you know of any usual
occurrence that transpired in La Paz, Abra? A. Yes, sir.
Q. Will you state what is the event? A. On April 17, 1945, I was
assigned as guard at the Presidencia where Mayor Arsenio Borjal
is confined. On the 18th of April, 1945, six bolomen came to me
while I was on duty as guard, that Mayor Borjal should be tied, on
orders of Mayor Beronilla, Mayor Borjal wanted to know the
reason why he would be tied, as he had not yet learned of the
decision of the jury against him. Mayor Borjal wrote a note to
Mayor Beronilla, asking the reason for his being ordered to be tied.
I personally delivered the note of Borjal to Mayor Beronilla. Mayor
Beronilla did not answer the note, but instead told me that I
should tie Mayor Borjal, as tomorrow he would die, as he cannot
escape. I returned to the Presidencia, and Mayor Borjal was tied,
as that was the ordered of Mayor Beronilla.
The plain import of the affidavit is that the witness Rafael
Balmaceda was not with Beronilla when the message arrived,
otherwise Beronilla would have given him his orders direct, as he
(Balmaceda) testified later at the trial. Moreover, it is difficult to
believe that having learned of the contents of the Volckmann
message, Balmaceda should not have relayed it to Borjal , or to
some member of the latter's family, considering that they were
relatives. In addition to Balmaceda was contradicted by Bayken,
another prosecution witness, as to the hatching of the alleged
conspiracy to kill Borjal. Balmaceda claimed that the accused-
appellants decided to kill Borjal in the early evening of April 18,
while Bayken testified that the agreement was made about ten
o'clock in the morning, shortly after the accused had denied
Borjal's petition to be allowed to hear mass.
Upon the other hand, Beronilla's conduct belies his receipt of the
Volckmann message. Had he executed Borjal in violation of
superior orders, he would not have dared to report it to Arnold's
headquarters on the very same day, April 18th, 1945, as he did
(Exhibit 20), half an hour after the execution. And what is even
more important, if Borjal was executed contrary to instructions,
how could Lt. Colonel Arnold on April 21, 1945, write in reply
(Exhibit 21, 21-a) "I can only compliment you for your impartial but
independent way of handling the whole case" instead of berating
Beronilla and ordering his court martial for disobedience?
Our conclusion is that Lt. Col. Arnold, for some reason that can not
now be ascertained, failed to transmit the Volckmann message to
Beronilla. And this being so, the charge of criminal conspiracy to
do away with Borjal must be rejected, because the accused had no
need to conspire against a man who was, to their knowledge, duly
sentenced to death.
The state claims that the appellants held grudges against the late
Borjal. Even so, it has been already decided that the concurrence
of personal hatred and collaboration with the enemy as motives
for a liquidation does not operate to exclude the case from the
benefits of the Amnesty claimed by appellants, since then "it may
not be held that the manslaughter stemmed from purely personal
motives" (People vs. Barrioquinto,* G. R. Nos. L-2011 and 2267,
June 30, 1951). Actually, the conduct of the appellants does not
dispose that these appellants were impelled by malice (dolo). The
arrest and trial of Borjal were made upon express orders of the
higher command; the appellants allowed Borjal to be defended by
counsel, one of them (attorney Jovito Barreras) chosen by Borjal's
sister; the trial lasted nineteen (19) days; it was suspended when
doubts arose about its legality, and it was not resumed until
headquarters (then in Langangilang, Abra) authorized its
resumption and sent an observer (Esteban Cabanos, of the S-5) to
the proceedings, and whose suggestions on procedure were
followed; and when the verdict of guilty was rendered and death
sentence imposed, the records were sent to Arnold's
headquarters for review, and Borjal was not punished until the
records were returned eight days later with the statement of
Arnold that "whatever disposition you make of the case is hereby
approved" (Exhibit 8), which on its face was an assent to the
verdict and the sentence. The lower Court, after finding that the
late Arsenio Borjal had really committed treasonable acts,
(causing soldiers and civilians to be tortured, and hidden American
officers to be captured by the Japanese) expressly declared that
"the Court is convinced that it was not for political or personal
reason that the accused decided to kill Arsenio Borjal" (Decision,
p. 9; Record, p. 727).
It appearing that the charge is the heinous crime of murder, and
that the accused-appellants acted upon orders, of a superior
officers that they, as military subordinates, could not question,
and obeyed in good faith, without being aware of their illegality,
without any fault or negligence on their part, we can not say that
criminal intent has been established (U. S. vs. Catolico, 18 Phil.,
507; Peo. vs. Pacana, 47 Phil., 48; Sent. of the Tribunal Supremo of
Spain, 3 July 1886; 7 January 1901; 24 March 1900; 21 Feb. 1921;
25 March 1929). Actus non facit reum nisi mens si rea.
To constitute a crime, the act must, except in certain crimes made
such by statute, be accompanied by a criminal intent, or by such
negligence or indifference to duty or to consequence, as, in law, is
equivalent to criminal intent. The maxim is, actus non facit reum,
nisi mens rea-a crime is not committed if the minds of the person
performing the act complained of be innocent. (U. S. vs. Catolico,
18 Phil., 507).
But even assuming that the accused-appellant did commit crime
with they are charged, the Court below should not have denied
their claim to the benefits of the Guerrilla Amnesty Proclamation
No. 8 (42 Off. Gaz., 2072)on the ground that the slaying of Arsenio
Borjal took place after actual liberation of the area from enemy
control and occupation. The evidence on record regarding the
date of liberation of La Paz, Abra, is contradictory. The Military
Amnesty Commission that decided the case of one of the original
accused Jesus Labuguen, held that La Paz, Abra, was liberated on
July 1, 1945, according to its records; and this finding was accepted
by Judge Letargo when he dismissed the case against said accused
on March 15, 1949. On the other hand, Judge Bocar and Hilario,
who subsequently took cognizance of the case, relied on
Department Order No. 25, of the Department of the Interior,
dated August 12, 1948, setting the liberation of the Province of
Abra on April 4, 1945, fifteen days before Borjal was slain. The two
dates are not strictly contradictory; but given the benefit of the
Presidential directive to the Amnesty Commissions (Adm. Order
No. 11, of October 2, 1946) that "any reasonable doubt as to
whether a given case falls within the (amnesty) proclamation shall
be resolved in favor of the accused" (42 Off. Gaz., 2360), as was
done in People vs. Gajo, Phil., 107 46 Off. Gaz., (No. 12) p. 6093.
For the reasons stated, the judgment appealed from is reversed
and the appellants are acquitted, with costs de oficio.
Paras, C. J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo,
Bautista Angelo and Concepcion, JJ., concur.
Footnotes
*
89 Phil., 414.
PEOPLE v. NORMA HERNANDEZ (1959)
BY MAROON 5 PARTNERS AND ASSOCIATES JUNE 1, 2012
SLANDER
Plaintiff-Appellee: People of the Philippines
Defendant-Appellants: Maria Norma Hernandez, Mariano
Hernandez (father) & Ramona Martinez (mother)
FACTS:
Vivencio Lascano, 19 y/o, started courting appellant,
Maria Norma Hernandez and after months of courtship, appellant
finally accepted Vivencio. On the same date, she asked him to
bring his parents over her home so that they could talk about their
marriage.
When Vivencio and his parents went to her house, they
brought chickens and goats and they agreed to buy a wedding
dress, 2 vestidas, shoes, P20 for the sponsors and to repair the
uncles roof.
While the celebration was going on, appellant was
nowhere to be found. Vivencio and his parents waited but she
never showed up thus causing them great shame and humiliation.
Norma Hernandez averred that Vivencio was really
courting her but that she wasnt really in love with him. Her
parents tried to persuade her to accept the proposal and that she
only accepted it out of obedience to her parents and the uncles
insistence.
Before Vivencios parents came to their home, she
already counselled them not to bring the chickens and that they
should not regret whatever may happen later.
Appellant said she felt torture because she wasnt
honestly in love with Vivencio and so she decided to leave home
as last recourse to prevent the marriage.
Appellants parents also corroborated her testimony.
RTC convicted her of serious slander by deed because she
purposely and deliberately fled to prevent celebration of
marriage. Thus, she appealed.
HELD:
Court reversed the RTC judgment and acquitted the
appellant.
RATIO:
Malice, one of the essential requisites of slander hasnt
been proven. There is no malice in the act of the appellant
changing her mind. She was merely exercising her right not to give
her consent the marriage after mature consideration.
Furthermore, there were no strained relations existing
between the complainant & appellant before the incident. There
always existed good relations between them for they were
neighbours so it cannot be sustained that appellant was motivated
by spite or ill-will in deliberately frustrating the marriage.
Appellant has the privilege to reconsider her previous
commitment to marry and it would be utterly inconsistent to
convict her for slander by deed simply because she desisted in
continuing with the marriage. If she would be liable then that
would be tantamount to compelling her to go into a marriage
without her free consent.
Appellant had the right to avoid to herself the evil of
going through a loveless marriage. (Art. 11 par.4, RPC)
ALP