Republic of the Philippines

COURT OF APPEALS – MINDANAO STATION

Cagayan de Oro City

PEOPLE OF THE PHILIPPINES ,

Plaintiff-Appellee ,

- versus - CA-G.R. CR-HC No. 1234

FOR:
DOMINADOR ALIBIO, JR. ,
Accused/Appellant , HOMICIDE
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APPELLANT’S BRIEF

Accused-appellant, by counsel and to this Honorable Court

respectfully files his brief for the appellant.

ASSIGNMENT OF ERRORS

With all due respect to this Honorable Court, the appellant

humbly submit that it ERRED:

1. The prosecution’s evidence is insufficient to prove the

guilt of the accused-appellant beyond reasonable doubt;

2. The Trial court erred on imposing the additional penalty

of civil indemnity, moral and temperate damages that is
not supported by law and the facts alleged by appellee.

STATEMENT OF THE CASE

Dominador Alibio, Jr. (hereinafter referred to as “appellant”)

was charged before the Regional Trial Court (RTC) Branch 9,
Malaybalay City, with the crime of Homicide in an Information
which reads:

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 “That on or about the 10th day of June, 2006 at about
6:00 o’clock in the evening, particularly at Concepcion, Valencia
City, Bukidnon, Philippines, and within the jurisdiction of this
Honorable Court the above-named accused, with intent to kill with
the use of a bolo, did then and there willfully, unlawfully and
criminally strike Donato Bregondo, fatally hitting and wounding his
forehead, which caused his instantaneous death to the damage and
prejudice of the legal heirs of Donato Bregondo in such amount as
may be allowed by law.

Contrary to and in violation of Article 249 of the Revised

Penal Code.”

(RTC Decision, 5 December, 2014 page 1)

When arraigned, the appellant pleaded “NOT GUILTY”.

On December 5, 2014, after trial on the merits, the trial court

convicted appellant of the crime of Homicide in a decision, to wit;

ALL THE FOREGOING CONSIDERED, the Court finds accused

DOMINADOR ALIBIO, JR. guilty of the crime as charged beyond
reasonable doubt as defined and penalized under Article 249 of the
Revised Penal Code. In the absence of any aggravating
circumstance, the Court hereby imposes upon accused the penalty
of imprisonment from Twelve (12) years and One (1) day to Fourteen
(14) years and Eight (8) months.

Accused Dominador Alibio, Jr. is likewise directed to pay the

heirs of the victim civil indemnity in the amount of P75,000.00;
moral damages of P50,000.00 and P25,000.00 as temperate
damages in lieu of the actual damages considering there were no
actual expenses presented.

SO ORDERED.”

STATEMENT OF THE FACTS

On June 10, 2006 at about 6 o’clock in the evening, there was

a fight between the accused and the deceased which happens near
the plaza. According to the accused it is Donato who initiated the
fight by attacking Dominador with a piece of wood together with his
nephew Erdie Opsiar who is holding a knife when he said to them
that he will no longer let Opsiar to tap his coconut wine since the
latter did not give to him his proper share of tuba. As a matter of
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self-defense the accused turn to his house to get his bolo which hits
the victim in the forehead.

On December 19, 2007, the Prosecution presented its lone

witness Cristita Opsiar, the sister of the victim and the mother of
Erdie Opsiar. She testified that she was their when the crime was
happened on June 10, 2006 at 6:00 o’clock in the evening. She said
that Donato and his son was seated on the ground when suddenly,
Dominador was coming with a pipe and a bolo in his hand and
hacked the victim with a bolo in the right portion of his forehead
which causes the instantaneous death of his brother. Upon seeing
his brother Donato hacked by Dominador, she got a bamboo split
and hit the latter, however, the brother of Dominador, Virgilio
pointed a shotgun at her.

On January 21, 2010, the defense presented Jose Villamero, a

member of the civilian volunteer organizations who was one of the
persons who responded to the call for a rescue. He said that they
saw the body of the victim 60 meters away from the house of
Alexander Bregondo which is near the purok plaza.

Defense presented its second witness Dominador Alibio Jr.,

the accused on May 29, 2013. He testified that on June 10, 2006 at
about 6:00 o’clock in the evening, at Sitio Dagol-os, Concepcion,
Valencia City while he was walking towards the place where his
carabao was ditched and upon reaching the plaza, he saw Donato
Bregondo and his nephew Erdie Opsiar waiting beside the road. He
greeted them and he informed the victim that he will stop Erdie
Opsiar from tapping his coconut tree considering that the latter did
not faithfully give his share of tuba. Donato got mad and demanded
from Erdie to hand to him a piece of wood and he struck
Dominador. He has hit on his arm and back. Erdie Opsiar got a
knife from his body and stabbed him. He was hit on his chin and
right lower elbow. He then ran towards his house and they were
chasing him. Upon reaching his house, he asked helped from his
wife but his wife was so afraid and did not go near him.

To defend himself, he got a bolo from the bench of the porch of

his house and brandished it facing Donato and Erdie so that they
could not come near him. Donato Bregondo was hit and they ran
away. He then went inside his house. Thereafter, sensing that the
atmosphere was calm he went to the house of the Barangay
Chairman, the latter was not around so he waited for 20 minutes
until the Barangay Chairman arrived. He narrated to him the
incident. Thereafter he was brought to the Kalasag Center in
Valencia City.

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 He avers that the witness of the prosecution was not around
during the incident. He also learned that Donato died the following
day when his neighbor informed him. He admitted that he was the
one responsible of killing Donato within his front yard.

ARGUMENTS

1. The prosecution’s evidence is

insufficient to prove the guilt of
the accused-appellant beyond
reasonable doubt;

The evidence presented by the prosecution however in this

case, is insufficient and has been clearly rebutted by countervailing
proof by appellant. The following facts are presented by appellant to
this honorable court which the lower court has failed to take
credence.

a. No proof of the extent of injury sustained by the victim

It is settled that "where there is nothing in the evidence

to show that the wound would be fatal if not medically
attended to, the character of the wound is doubtful," and
such doubt should be resolved in favor of the accused
(Epifanio v. People, 552 Phil. 620, 631).

We find that the prosecution failed to present evidence to

prove that the victim would have died from his wound without
timely medical assistance, as his Medical
Certificate alone, absent the testimony of the physician
who diagnosed and treated him, or any physician for that
matter, is insufficient proof of the nature and extent of his
injury.

b. Intent to kill

In Rivera v. People (G.R. NO. 166326 - January 25,

2006), the Court ruled that "[i]ntent to kill is a specific intent
which the prosecution must prove by direct or circumstantial
evidence", which may consist of:

(a) the means used by the malefactors;

(b) the nature, location and number of
wounds sustained by the victim;

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 (c) the conduct of the malefactors before, at the time,
or immediately after the killing of the victim;
(d) the circumstances under which the crime was
committed; and,
(e) the motives of the accused.

Moreover, the Court held in Rivera that intent to kill is

only presumed if the victim dies as a result of a deliberate act
of the malefactors.

Although it was sufficiently shown that petitioner

brandish a bolo at the victim and that the latter was hit, there
was simply no other evidence on record that tended to prove
that petitioner had animus interficendi or intent to kill the
victim. The prosecution presented a lone witness which cannot
suffice to prove the intent of the accused to kill the victim.

c. Attempt to ask for help

The absence of any action on the part of the victim to call

for help or shout for assistance taking into consideration that
he was with Erdie Opsiar and if the incident happened in the
house of Alexander Bregondo arise doubt on the credibility of
the lone witness of the prosecution who is the sister of the
victim.

2. The Trial court erred on imposing

the additional penalty of civil
indemnity, moral and temperate
damages that is not supported by law
and the facts alleged by appellee.

The trial court failed to consider the following articles:

a. Article 2234 of the Civil Code provides “that the

plaintiff must show that he is entitled to more xxx
damages xxx before the court may consider xxx.”

b. Article 66 of the Revised Penal Code provides: “In

imposing fines the courts may fix any amount within
the limits established by law xxx, but more
particularly to the wealth or means of the culprit.”

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 The trial court awarded moral and temperate damages on
the heirs of Donato Bregondo. This award was rendered
without being alleged, proved and prayed by the appellee.
Damages are never presumed but must be proven by
competent evidence, which the prosecution has failed to do.
Also the trial court imposed a civil indemnity, failing to
consider the fact that the accused whose main source of
income is selling a coconut wine. Thus the awards are both
contrary to law and from the basic norms of fair play and
equity.

PRAYER

WHEREFORE, the accused-appellant respectfully prays that

Decisions of the RTC Branch 9 in Malaybalay City be reversed and
set aside, and the appellant may be absolved from any criminal
liability for his guilt has not been proven beyond reasonable doubt.

Accused-appellant further prays for such other relief as may

be just and equitable in the premises.

October 16, 2019.

MABEL S. CAMARILLAS
Counsel for Accused-Appellant
IBP Lifetime NO. 11111
Roll No. 11111
MCLE II Compliance No. 0001111
Camarillas Law Office
Door 5 SAIT Bldg., M. Roxas St.,
Poblacion, Valencia City
Bukidnon

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