G.R. No.

124706           February 22, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CARLITO EREÑO Y AYSON, accused-appellant.

GONZAGA-REYES, J.:

Accused Carlito A. Ereño appeals from the decision1 dated October 27, 1995 of the Regional Trial
Court, National capital Region, Branch 72, Malabon, Metro Manila in Criminal Case No. 15944-MN
finding him guilty of the crime of murder and sentencing him to suffer the penalty of reclusion
perpetua for the death of ROSANNA HONRUBIA and ordering him to pay the heirs of the victim the
total amount of P124,000.00.

The information2 filed by Assistant Provincial Prosecutor Leandro C. Catalo against accused-

appellant reads:

That on or about the 21st day of June 1995, in Navotas, Metro Manila, and within the
jurisdiction of this Honorable Court, the above-named accused, armed with a bladed
weapon, with intent to kill, treachery and evident premeditation, did then and there wilfully,
unlawfully and feloniously attack, assault and stab with the said weapon, one ROSANNA
HONRUBIA, hitting the victim on different parts of her body, thereby inflicting upon the victim
stab wounds which caused his (sic) immediate death.

CONTRARY TO LAW.

When arraigned, accused-appellant entered a plea of not guilty. Pre-trial was waived by the
accused;3 and trial on the merits ensued.

The trial court summed up the evidence as follows:

The prosecution presented evidence substantially showing that on June 21, 1995, at 9:30
o'clock in the evening, Rosanna Honrubia was at N. Domingo Street in Tangos, Navotas,
Metro Manila, sort of supervising and helping in the work being done on the busted electric
line from which residents of that place were drawing electricity. Wilfredo Quibado and
Arminggol Teofe were the once (sic) actually working thereon with Quibado the one in-
charge of the work. Rosanna was from time to time giving a helping hand but most of the
time she was the one holding the flashlight being used in the work that was being
undertaken.

While Rosanna was holding the flashlight, accused Carlito Ereño approached and took from
her the flashlight and brought the same with him to the interior of the place. Rosanna
followed Ereño and when she returned she already had with her the flashlight which Ereño
took with him. Ereño, however, followed Rosanna to the place where the work on the busted
electric line was going on and confronted her about her taking back the flashlight. Rosanna
explained that it was being used in the work that must be finished and when finished would
be to the benefit of all the residents of the place. A heated argument followed which made
Rosanna to move away to a place known thereat as "Bato" which place consists of a low
hollow block fence.

1
Teofe followed her to the "Bato" and with another person sat beside Rosanna. Ereño also
followed Rosanna and the argument between the two of them continued. Ereño himself sat
at the Bato with Teofe and one other person separating him from Rosanna. Ereño all of a
sudden stood up and drew a bladed weapon and with it stabbed Rosanna at the back. This
made Rosanna to run towards a tricycle which happened to be in said place but Ereño
followed her again and gave chase to Rosanna resulting in a situation whereby the two of
them would be running around the tricycle.

Rodolfo Dematera also happened to be in that place. He tried to pacify Ereño but was
instead hit by the latter on his left arm. Teofe himself was shouting to Ereño to stop what he
was doing but the latter ignored him.

Rosanna was able to run away from the tricycle but in the process stumbled and Ereño was
able to catch up with her. Ereño then held Rosanna frontally by the hair and thereafter
stabbed her at the chest twice. Rosanna slumped to the ground clutching her chest. At this
point, Teofe approached Rosanna while Dematera called for Rosanna's parents.

Ereño again approached Rosanna but without actually reaching her, he ran away from the
place.

Teofe tried to talk to Rosanna but Rosanna could not answer him anymore as blood was
coming out of her mouth. Thereafter, Teofe boarded Rosanna on a tricycle with which her
relatives brought her somewhere else.

In Court, Teofe identified Ereño as the assailant of Rosanna. He also identified the dagger
which was recovered in another place as the one used by Ereño in stabbing Rosanna. Teofe
maintained that he had seen said dagger before in the possession of Ereño.

Rosanna died by reason of the stab wounds she sustained at the back and at the chest
(Exhs. C, C-1, D and F). Her mother Lita spent P24,000.00 in connection with her death and
burial. She is also claiming P187,200.00 by way of lost income which Rosanna could have
earned had she not been untimely killed. There was also a claim for moral damages brought
about by the pain and sorrow caused by Rosanna's untimely demise.

SPO1 Benjamin Bacunata of the Navotas Police effected the arrest of Ereño shortly after he
fled from the scene of Rosanna's stabbing. An alert/alarm was issued for Ereño who was
spotted at the corner of Estrella and Naval Streets in Navotas and identified by one Hector
Domingo. When frisked, Ereño was found to be in possession of a small improvised bladed
weapon (Exh. G). Bacunata presented the dagger (Exh. H) that was recovered in another
place and which Teofe identified as the fatal weapon.

Accused Carlito Ereño denied killing Rosanna whom he acknowledged he learned was
stabbed to death by another person.

Ereño also denied the testimony of Teofe claiming that while he really returned the flashlight
to Rosanna he never followed her back to the place where the work on the busted electric
line was being done. Hence, there could have been no confrontation between the two of
them.

Ereño also maintained that when Rosanna must have been stabbed he was already on
board a passenger jeep bound for Monumento. He acknowledged that there was a check

2
 point in Navotas whereat the jeep he was riding on was stopped followed by somebody
pointing to him. Policeman Bacunata then boarded Ereño on a mobile car and was brought
to the police headquarters and detained.

Positive and clear are the appropriate words that can describe the testimony given by Teofe.
He narrated in terms simple and distinctive the incident from the time work was started on
the busted electric line to the taking of the flashlight from Rosanna by Ereño, to the return of
the two to the place and the argument between them that followed. In the same vein, he
described the stabbing of Rosanna by Ereño first at the back and then twice at the chest
while Ereño was holding Rosanna by her hair. And Teofe was not shown to have been
motivated in giving his testimony by any evil purpose or consideration.

On the other hand, we have Ereño's version consisting mainly of a denial and a claim that he
was already, somewhere else when Rosanna must have been stabbed to death. Ereno's
version also included admissions concerning his having taken the flashlight from Rosanna
and his having been arrested in a checkpoint after he was pointed to by Domingo which
checkpoint according to the arresting officer was brought about by an alert or alarm for the
reported killer of Rosanna.

xxx     xxx     xxx

In fine, the Court is convinced that Ereño is guilty as charged in this case. The offense
committed by him was murder, for no other word could describe a killing initiated by a
treacherous stab at the back followed by frontal stabbings while the victim was being frontally
held by the assailant by the hair. More so, when the victim is a woman.4

The dispositive portion of the trial court's decision dated October 27, 1995, reads:

WHEREFORE, premises considered, judgment is hereby rendered finding accused Carlito

Ereño y Ayson guilty beyond reasonable doubt of the crime of murder and said accused is
hereby sentenced to the prison term of reclusion perpetua.

Accused Ereño is also ordered to pay the following sums to the heirs of Rosanna Honrubia
who died single:

1. P24,000.00 for the expenses incurred in connection with the death and burial of
the victim;

2. P50,000.00 for the loss of the victim's life;

3. P50,000.00 by way of moral damages for the pain and sorrow suffered by the
victim's family in connection with her untimely death.

The claim for lost income, not having been substantiated by any document that will show that
Rosanna at the time of her death was earning P600.00 a day, six day (sic) a weak (sic)
cannot be sustained. Costs against accused Ereño.

SO ORDERED.

Accused-appellant appeals his conviction citing as lone error that:

3
 THE TRIAL COURT A QUO ERRED IN CONVICTING THE ACCUSED
CONSIDERING THAT HIS CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN
HE WAS ARRESTED WITHOUT A WARRANT UNDER CIRCUMSTANCES WHICH
DO NOT WARRANT THE APPLICATION OF RULE 113, SECTION 5 OF THE 1985
RULES OF CRIMINAL PROCEDURE ALLOWING WARRANT-LESS ARRESTS
UNDER EXCEPTIONAL CIRCUMSTANCES.

Accused-appellant avers that late in the night of June 21, 1995 while riding in a tricycle, SPO1
Benjamin Bacunata, along with elements of the Navotas Police Station, arrested and detained him at
the Navotas Police Station; that he was arrested without a warrant and was apprehended merely on
the basis of a report of a certain Hector Domingo who did not have any personal knowledge of the
identity of the accused and also of the circumstances described in the information charging him of
the crime of murder; that both SPO1 Benjamin Bacunata and Hector Domingo were not present at
the scene of the alleged crime and that Hector Domingo was not even presented as a witness by the
prosecution; that at the time of the arrest, the accused was not doing any act which would give the
arresting officers any reasonable suspicion to cause his arrest and/or to detain him; and that since
his arrest is illegal, the bladed weapon which was presented by the prosecution as the murder
weapon, must have been seized as a result of an illegal arrest and illegal search and therefore can
not be presented as evidence against the accused. In short, the court a quo allegedly never acquired
jurisdiction over the person of the accused-appellant.

On the other hand, the Office of the Solicitor General in its appellee's brief, contends that the
warrantless arrest of accused-appellant by SPO1 Benjamin Bacunata at about 9:45 p.m. of June 21,
1995 shortly after the stabbing incident of Rosanna Honrubia was justified under Section 5 (b), Rule
113 of the 1985 Rules of Criminal Procedure. Based on the report made to the Navotas Police
Station by eyewitness Hector Domingo, which was shown to arresting officer SPO1 Benjamin
Bacunata, the latter, in effect, was vested with personal knowledge of the facts surrounding the
stabbing of Rosanna Honrubia a few hours before the arrest on June 21, 1995 of accused-appellant.
Hence, SPO I Benjamin Bacunata and the other arresting officers with him, were validly compelled,
in the performance of their official duties, to arrest accused-appellant without a warrant. Besides,
even if the warrantless arrest was unlawful and the evidence obtained (i.e., an improvised bladed
weapon) inadmissible, the conviction of accused-appellant would still be in accordance with law and
the evidence because eyewitness Arminggol Teofe positively identified him as the assailant of
Rosanna Honrubia, and also identified the bladed weapon recovered in another place as the one
used by accused-appellant in stabbing Rosanna.

We find no merit in the appeal.

Accused-appellant assails his conviction as improper and illegal asserting that the court a quo never
acquired jurisdiction over his person because he was arrested without a warrant and that his
warrantless arrest was not done under any of the circumstances enumerated in Section 5, Rule 113
of the 1985 Rules of Criminal Procedure.

Even granting that indeed there had been an irregularity attendant to the arrest of accused-
appellant, it should, not having been raised at the opportune time, be deemed cured by his
voluntarily submitting himself to the jurisdiction of the trial court. Not only did accused-appellant enter
his plea during arraignment but also waived pre-trial and actively participated at the trial which
constituted a waiver of any supposed irregularity in his arrest.5

The Court has consistently ruled that any objection involving a warrant of arrest or the procedure in
the acquisition by the court of jurisdiction over the person of the accused must be made before he
enters his plea, otherwise, the objection is deemed waived. 6 We have also ruled that an accused

4
may be estopped from assailing the illegality of his arrest if he fails to move for the quashing of the
information against him before his arraignment. 7 And since the legality of an arrest affects only the
jurisdiction of the court over the person of the accused, any defect in the arrest of the accused may
be deemed cured when he voluntarily submitted to the jurisdiction of the trial court8 as was done by
the accused-appellant in the instant case.

However, after a review of the entire records, we find that the trial court erred in finding accused
Carlito Ereño y Ayson guilty of murder as charged. The crime committed is homicide.

The information filed against accused Carlito A. Ereño charged him with having wilfully, unlawfully
and feloniously attacked, assaulted and stabbed with a bladed weapon one ROSANNA HONRUBIA
thereby inflicting upon the victim stab wounds which caused her immediate death on June 21, 1995
and that the fatal stabbing of the victim was committed with the attendant circumstances of treachery
and evident premeditation.9

In convicting the accused, the trial court relied solely on the testimony of witness Arminggol Teofe
who narrated the successive incidents that transpired in the evening of June 21, 1995 which led to
the fatal stabbing of Rosanna Honrubia. He testified that he was present and witnessed the entire
incident from the time work was started on the busted electric line in N. Domingo Street in Tangos,
Navotas; he saw the accused-appellant Ereño take the flashlight from Rosanna, brought the same to
the interior of the place followed by Rosanna who retook the flashlight; the return of the two to the
place of work and the argument between them that ensued. He described the stabbing of Rosanna
by Ereño, first at the back and then twice at the chest while Ereño was holding Rosanna by her hair.

The qualifying circumstance of treachery was not established by convincing evidence.10 There was
no showing that the means, method or manner of attack was deliberately and consciously adopted
by the accused and actually carried out so swiftly and unexpectedly so as to ensure his safety while
rendering his victim helpless and unable to defend herself. 11 There is no treachery when the killing
results from a verbal altercation between the victim and the assailant such that the victim must have
been forewarned of the impending danger as was found in the case at bar.12 It bears stress that
treachery is not presumed. It has to be proved as convincingly as the killing itself. 13 In fact, the well-
settled rule is that any circumstance which would qualify a killing to murder must be proved as
indubitably as the killing itself.14 Thus, "evident premeditation" cannot also be appreciated to qualify
the killing of Rosanna by the accused to murder. No evidence had been adduced indicating that
accused-appellant earlier planned and resolved to kill victim Rosanna Honrubia and that he clung to
his plan and determination for a considerable length of time before he executed the same.15 For
evident premeditation to be appreciated as a qualifying circumstance, direct evidence must be
adduced by the prosecution of the following: (a) the planning and preparation made and the time the
offender determined to kill his victim; (b) an act of the offender manifestly indicating that he clung to
his determination to kill his victim; and (c) sufficient lapse of time between the determination and the
execution of the killing to allow his conscience to overcome the resolution of his will had he desired
to hearken to its warnings.16

In view of the absence of evidence establishing the alleged qualifying circumstances of treachery
and evident premeditation, the crime of fatally stabbing Rosanna Honrubia committed by the
accused is not murder but only homicide.17

Accordingly, the appropriate penalty to be imposed is not reclusion perpetua but reclusion

temporal.18 Since there are neither aggravating nor mitigating circumstances found by the trial court,
the penalty in this case shall be fixed in its medium period of reclusion temporal19 which ranges from
a minimum of fourteen (14) years, eight (8) months and one (1) day to a maximum of seventeen (17)
years and four (4) months. Further, applying the Indeterminate Sentence Law,20 the imposable

5
penalty shall be within the range of the penalty next lower in degree, i.e. prision
mayor as minimum to reclusion temporal in its medium period as the maximum.21

On the civil aspect of the case, the court a quo overlooked certain evidentiary facts in its award of
damages. For instance, in seeking recovery for actual damages, it is necessary that the claimant
produce competent proof or the best evidence obtainable such as receipts to justify an award
therefor. Actual or compensatory damages cannot be presumed but must be proved and proved with
reasonable degree of certainty.22 Only substantiated and proven expenses or those which appear to
have been genuinely incurred in connection with the death, wake or burial of the victim will be
recognized by the courts.23 The list of expenses incurred for the wake, funeral and burial of the victim
amounting to P24,700.00 (Exh. "F-2") submitted by the victim's mother Lita Honrubia is self-serving
and not substantiated. We cannot therefore affirm the trial court's award of P24,000.00 for actual
expenses.

In line with current jurisprudence, we sustain the award of P50,000.00 as civil indemnity (ex delicto)
which requires no proof other than the fact of death of the victim and assailant's responsibility
therefor.24

We also sustain the award of P50,000.00 by way of moral damages for the pain and sorrow suffered
by the victim's family in connection with Rosanna's untimely death. We find the award to be
adequate, reasonable and with sufficient basis taking into consideration the pain and mental anguish
suffered by the victim's family.25

The court a quo correctly denied for lack of factual basis the claim of the victim's mother for an
award for loss of income or earning capacity of the deceased estimated by her at P600.00 per day,
(Sunday excluded) or P15,600.00 a month or P187,200.00 a year.26 This hand-written estimate of
the deceased's daily income as a self-employed fish vendor during the past eight (8) years prior to
her death on June 21, 1995, submitted by the victim's mother in the course of her testimony in court
is not supported by competent evidence like income tax returns or receipts. It bears stress that
compensation for lost income is in the nature of damages 27 and as such requires due proof of the
damages suffered;28 there must be unbiased proof of the deceased's average income.29 In the instant
case, the victim's mother, Lita Honrubia, gave only a self-serving hence unreliable statement of her
deceased daughter's income. Moreover, the award for lost income refers to the net income of the
deceased, that is, her total income less her average expenses. 30 No proof of the victim's average
expenses was presented. Hence, there can be no reliable estimate of the deceased's lost income.

WHEREFORE, the decision appealed from is hereby MODIFIED. Appellant CARLITO EREÑO Y
AYSON is found GUILTY of HOMICIDE and sentenced to suffer a prison term of eight (8) years and
one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal as maximum. Appellant is also ORDERED to pay the heirs of Rosanna
Honrubia P50,000.00 as civil indemnity plus P50,000.00 as moral damages. The trial court's award
of P24,000.00 for alleged expenses incurred in connection with the death and burial of the victim is
DELETED for lack of basis. No pronouncement as to costs. 1âwphi1.nêt

SO ORDERED.

6
[G.R. No. L-55194. February 26, 1981.]

RADIO COMMUNICATIONS OF THE PHILIPPINES, INC. (RCPI), Petitioner, v. COURT OF APPEALS

and YABUT FREIGHT EXPRESS INC., MANUEL DAVID and DAVID OLAIVAR, Respondents.

Trenas and Carreon for Petitioner.

Felipe C. Magat for Respondent.

DECISION

MELENCIO-HERRERA, J.:

In Civil Case No. C-2247 of the Court of First Instance of Caloocan City, Branch XXXII, entitled "Yabut
Freight Express, Inc., et als. v. Radio Communications of the Philippines, Inc. (RCPI)", the freight company
claimed that due to "utter, patent, and wanton carelessness, gross negligence and unpardonable fault"
of the personnel of RCPI, the latter transmitted erroneously a telegram which should have read "No
truck available" but instead read "Truck available." As a consequence, the freight company suffered
damages, and prayed for an award of P100,000.00 as actual damages, P30,000.00 as moral damages,
exemplary or corrective damages in the discretion of the Court, and P15,000.00 as attorney’s fees.

The trial Court, upheld by the Court of Appeals, awarded damages as follows:chanrob1es virtual 1aw
library

WHEREFORE, defendant Radio Communications of the Philippines, Inc. is ordered to pay plaintiff Yabut
Freight Express, Inc. the sum of P10,000.00 as compensatory, plus P500.00 as actual, and P5,000.00 as
corrective damages plus P2,000.00 as attorney’s fees and litigation expenses with the costs of this
suit."cralaw virtua1aw library

Petitioner, Radio Communications of the Philippines, Inc. (RCPI), elevated the case to us for review on
October 3, 1980 on the following grounds:cralawnad

"First: The respondent court erred in finding that the suit was predicated on quasi-delict.

7
"Second: The respondent court erred in virtually ruling that the petitioner’s acts were proximate cause
of the alleged damage.

"Third: The respondent court erred in awarding compensatory in addition to actual damages.

"Fourth: The respondent court erred in condemning the petitioner to pay corrective damages and
attorney’s fees plus costs and litigation expenses.

"Fifth: The respondent court erred in not finding that private respondent had committed negligence
which was the proximate cause of the alleged damage or at least, amounted to contributory negligence
warranting reduction of the award."cralaw virtua1aw library

We gave due course to the Petition of January 28, 1981, only in so far as the aspect of damages is
concerned, having found that respondent Court correctly concluded that the error in the transmission of
the telegram was due to the gross negligence of RCPI employees and not to atmospheric disturbances as
it claimed, and that there was no contributory negligence on the part of the freight company.chanrobles
virtualawlibrary chanrobles.com:chanrobles.com.ph

In respect of compensatory and actual damages, it is not entirely erroneous to grant both items of
damages. They were so awarded in MD Transit v. Court of Appeals, Et Al., 22 SCRA 559 (1968). True,
compensatory and actual damages are dealt with in the Civil Code under the same Chapter 2 thereof
and that the two terms are used therein as equivalent to one another. However, as provided for in
Article 2200 of the Civil Code, which is part of the aforementioned Chapter 2, indemnification for
damages shall comprehend not only the value of the loss suffered, or actual damages ("damnum
emergens"), but also that of the profits which the obligee failed to obtain, or compensatory damages
("lucrum cessans"). 1 In other words, there are two components to actual or compensatory damages.

In this particular case, the value of the actual loss suffered by Yabut has been proven to be P132.12 (not
P500.00 as held by respondent Court). 2 This is compensable. Compensatory damages were also
awarded for injury to Yabut’s "business reputation or business standing", "loss of goodwill and loss of
customers or shippers who shifted their patronage to competitors." The grant thereof is proper under
the provision of Article 2205 of the Civil Code, which provides that damages may be recovered "for
injury to the plaintiff’s business standing or commercial credit." And even if not recoverable as
compensatory damages, they may still be awarded in the concept of temperate or moderate damages.

8
"There are cases where from the nature of the case, definite proof of pecuniary loss cannot be offered,
although the court is convinced that there has been such loss. For instance, injury to one’s commercial
credit or to the goodwill of a business firm is often hard to show with certainty in terms of money.
Should damages be denied for that reason? The judge should be empowered to calculate moderate
damages in such cases, rather than that the plaintiff should suffer, without redress from the defendant’s
wrongful act." 3

Exemplary damages were likewise properly imposed. In contracts and quasi-contracts, exemplary
damages may be awarded if the defendant acted in a wanton, fraudulent, reckless, oppressive or
malevolent manner. 4 There was gross negligence on the part of RCPI personnel in transmitting the
wrong telegram, for which RCPI must be held liable. Gross carelessness or negligence constitutes
wanton misconduct. 5

". . . punitive damages may be recovered for wilful or wantonly negligent acts in respect of messages,
even though those acts are neither authorized nor ratified (Arkansas & L.R. Co. v. Stroude, 91 SW 18;
West v. Western U. Tel. Co., 17 P 807; Peterson v. Western U. Tel. Co., 77 NW 985; Brown v. Western U.
Tel. Co., 67 SE 146). Thus punitive damages have been recovered for mistakes in the transmission of
telegrams (Pittman v. Western Union Tel. Co., 66 So 977; Painter v. Western Union Tel. Co., 84 SE 293)"
6 (Emphasis supplied)

The award of attorney’s fees and expenses of litigation is likewise deemed just and equitable. 7

But while the assessment of damages, except liquidated ones, is generally left to the discretion of the
Court according to the circumstances of each case, 8 we find that the damages and attorney’s fees
awarded are excessive and should be reduced.

WHEREFORE, the judgment of respondent Court is hereby modified and the damages awarded reduced
to P3,000.00 as actual and compensatory damages; P2,000.00 as exemplary or corrective damages; and
P1,000.00 as attorney’s fees and litigation expenses.

Costs against petitioner.

SO ORDERED.

9
G.R. No. 119380 August 19, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FEDERICO LOPEZ @ AMBOY LOPEZ, accused-appellant.

MENDOZA, J.:

This is an appeal from the decision1 of the Regional Trial Court of Pangasinan (Branch 52), finding
accused-appellant guilty of two counts of murder and one count of frustrated murder and ordering him
to pay a total of P204,300.00 in damages.1âwphi1.nêt

The Information2 against accused-appellant charged:

That on or about the 15th day of November, 1991, in the evening, at Brgy. Nancalabasaan, municipality
of Umingan, province of Pangasinan, New Republic of the Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused together with one John Doe, whose identity has not yet
been established, armed with a short firearm, with intent to kill, with treachery and evident
premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot
ROGELIO SELDERA and RODOLFO PADAPAT which caused their immediate death and on the same
occasion and with treachery and evident premeditation wound MARIO SELDERA on his breast to the
damage and prejudice of the heirs of Rogelio Seldera and Rodolfo Padapat and also to the damage and
prejudice of said Mario Seldera.

The prosecution presented evidence showing the following: At around 6:00 in the evening of November
15, 1991, Mario Seldera, 11, his father Rogelio Seldera, and his cousin Rodolfo Padapat worked in the
riceland of a certain Lagula in Barangay Nancalabasaan, Umingan, Pangasinan. It was harvest time and
the three were hired to bundle the palays stalks which had been cut. As it was a moonlit night, the three
worked in the field until around 9:00 when they started for home taking a trail alongside the Banila river.
The trail is about two feet wide only, and so the three walked along the trail single file with Rogelio,
being the oldest, leading the way, followed by his son Mario and by Rodolfo who was last. As they
reached a sloping portion in the trail, accused-appellant Federico Lopez appeared armed with a shotgun.
Accused-appellant had a companion, a dark man. He was unarmed.3 Without uttering a word, accused-
appellant fired at the three, who slumped forward, face down. Accused-appellant's companion went
near the bodies of the victims and rolled them over with his foot. Satisfied that the victims were dead,
accused-appellant and his companion left.4

10
However, Mario, the youngest in the group, was not killed, although he had been wounded in the back.
As soon as accused-appellant and his companion had left, Mario stood up and, crying, he walked to the
house of his uncle, Alfredo Padapat, the father of Rodolfo, and reported the matter. He decided not to
go home as accused-appellant and his companion went in the direction of their house. Mario's mother
was fetched from their house and told what had happened to Rogelio and Rodolfo. The three then
reported the incident to the barangay captain who lost no time in accompanying them to the police in
Umingan, Pangasinan.5

Mario was investigated by CPL Jose Almerol. Afterwards, he was taken to the Umingan Medicare
Hospital where he was treated by Dr. Suller-Santos. The boy suffered three gunshot wounds on the
back, right side, each wound measuring about .5 x 1 cm. The wounds were located vertically, the first
about three centimeters from the second and the latter about two centimeters from the third.6 Dr.
Santos issued a medical certification (Exh. E) and referred Mario to the Eastern Pangasinan District
Hospital for x-ray examination.

Mario positively identified accused-appellant as the assailant. He testified that accused-appellant wore a
white, long-sleeved shirt, blue jeans and white slippers, while his companion had a black t-shirt, black
jeans and brown slippers on.7 He was able to recognize accused-appellant and notice the type and color
of the latter's clothes and those of the latter's companions because the moon was brightly shining. He
knew accused-appellant very well, because the latter used to frequent their house in Nancalabasaan to
play cards with his father. In addition, Mario used to buy cigarettes from accused-appellant's store. As to
the gun used, he stated that it was similar to those used by security guards. When asked whether his
father and accused-appellant had a quarrel on November 15, 1991, Mario said he did not know.8

Dr. Thelma C. Busto, the rural health physician of Umingan, Pangasinan, examined the bodies of Rogelio
Seldera and Rodolfo Padapat on November 16, 1991.

Dr. Busto described Rogelio's wounds as follows:9

1. Gunshot wound frontal area of head as point of entrance with exit at the occipital area, . . . thru and
thru.

2. Multiple gunshot wounds in the chest and neck (9).

Her post-mortem report on Rodolfo Padapat stated:10

11
Gunshot wound in the head right parieted area of head as entrance, no exit.

According to Dr. Busto's reports, the cause of death of the victims was cerebral hemorrhage and
cardiorespiratory arrest secondary to gunshot wounds. Testifying, she said that the gunshot wounds
were alike in size and nature. Although she could not tell the type of firearm used nor determine the
trajectory of the wounds, she said the wounds could have been caused by a shotgun.11

Leonida Seldera, widow of the deceased Rogelio, and Alfredo Padapat, father of Rodolfo, testified on the
civil aspect of the case. The prosecution was precluded from inquiring from these witnesses about
events which transpired in the evening of November 15, 1991 because they were present during the
testimony in-chief of Mario Seldera. The defense counsel moved for their exclusion but the prosecution
manifested that they would only testify with regard to the civil aspect of the case.

Accused-appellant's defense was alibi. He claimed that at around 5:00 in the afternoon of November 15,
1991, he was in the house of his uncle, Asterio Sonaco, in Caurdanetaan, another barangay of Umingan
in Pangasinan, about three kilometers from Nancalabasaan. He had a round of drinks with four friends12
over a dish of dog meat. At 11:00 that night, the party broke up and accused-appellant went home. He
claimed that it was dark that night and that during the party, they used a lamp for illumination.13

Accused-appellant stated that he has no previous quarrel with the two deceased nor with Mario
Seldera. Nor had he been to the house of Rogelio Seldera. As to the clothes he wore on the night of
November 15, 1991, he claimed he had a pair of maong pants and a t-shirt on, though he could not
remember the color of the latter.14

On cross-examination, accused-appellant admitted that he was known as "Amboy" Lopez and that
although a barriomate, Rodrigo Lopez, was also called "Amboy," the latter was known more as
"Thunder" Lopez. He also said that he had a farm in Nancalabasaan but he allegedly had not gone to the
barangay proper as he only pass by the eastern part thereof.15

In his counter-affidavit,16 accused-appellant did not mention anything about cooking dog meat during
the party in Asterio Sonaco's house on November 15, 1991 and that he went home at 8:00 in the
evening. Accused-appellant gave no explanation why in his testimony in court he said he went home at
11:00 in the evening and that they killed a dog and made its meat into a dish.17

The defense presented Daniel Fortunato and Mario Sonaco to corroborate accused-appellant's
testimony on the events which transpired in the evening of November 15, 1991. Daniel Fortunato
testified that he is a barangay councilman of Caurdanetaan, Umingan, Pangasinan. He claimed that from

12
4:00 in the afternoon to 11:00 in the evening of November 15, 1991, he was with accused-appellant in a
party where there were about thirteen18 other people, drinking gin and eating cooked dog meat.
Fortunato said he and Mario Sonaco helped accused-appellant home as the latter was too drunk.
Accused-appellant was allegedly received by his wife.19

On cross-examination Fortunato admitted that he was not always watching accused-appellant during
the party and that it was possible that the latter may have slipped out. With regard to the distance of
Caurdanetaan to the Banila river, where the incident happened, Fortunato estimated it to be about 1
1/2 kilometers, which can be covered in 20 minutes by walking and in about 11 minutes by running.
Fortunato testified that accused-appellant had the same height and body build as Rodrigo "Thunder"
Lopez although the latter was darker.20

Mario Sonaco, for his part, claimed that there were less than ten12 people present in the house of his
brother, Asterio Sonaco, in the evening of November 15, 1991. However, he corroborated Fortunato's
testimony that he and Fortunato took accused-appellant home at 11:00 o'clock that night because the
latter was drunk.22

On cross-examination, Sonaco admitted that accused-appellant is his nephew.23 He estimated that

accused-appellant's house was less than two kilometers from the Banila river. He reiterated that by
taking the barangay road, the distance could be covered in 30 minutes on foot but if one runs or uses
the shorter route through the ricefields, the travel time would be less.24

The defense also presented Juanito Costales, barangay captain of Caurdanetaan, who testified that
around 12:00 midnight of November 15, 1991, three policemen went to his house to inform him that
accused-appellant was a suspect in a killing in the neighboring barangay of Nancalabasaan. He said he
accompanied the authorities to accused-appellant's house and that when the latter came out, he
smelled of liquor. When asked by the policemen where he had been, accused-appellant allegedly
answered he had been to a drinking party held that afternoon. Apparently finding nothing unusual,
Costales and the policemen left.25

Costales corroborated Mario Sonaco's testimony that accused-appellant's house is less than two
kilometers from the scene of the crime. When asked about the condition of the night on November 15,
1991, he stated that it was so dark that the policemen had to use flashlights.26

Corroborating accused-appellant's claim that it was pitch dark on the evening of November 15, 1991,
Lorna Gonzales, a resident of Barangay Nancalabasaan, whose house is about 100 meters from the
Seldera household, testified that at around 9:00 in the evening of that day, she heard some wailing and
weeping in the house of the Selderas, and that she and her husband learned that Rogelio Seldera had

13
died. However, they did not go out of their house because it was allegedly very dark, and she was afraid
that her husband might be implicated in the killing. On cross-examination, Gonzales disclosed that her
house is surrounded by big camachile trees. When asked whether these could obstruct the light from
the moon, she only said: "It [was] dark, sir."27

On January 20, 1995, the trial court rendered judgment, the dispositive portion of which reads:28

WHEREFORE, in virtue of the foregoing disquisitions accused Federico Lopez @ Amboy Lopez is hereby
declared GUILTY of the crime of Double Murder With Frustrated Murder beyond reasonable doubt and
is hereby sentenced to a penalty of Reclusion Perpetua relative to the treacherous killing of Rogelio
Seldera, and to pay the heirs of the late Seldera the sum of Fifty Thousand Pesos (P50,000.00) as
compensatory damages, Thirty Thousand (P30,000.00) as moral damages, likewise sentences the same
accused Amboy Lopez of the penalty of Reclusion Perpetua for the treacherous killing of Rodolfo
Padapat, and to pay the heirs of the late Padapat the sum of Fifty Thousand Pesos (P50,000.00) as
compensatory damages, and the sum of Thirty Thousand Pesos (P30,000.00) as moral damages, and to
pay civil liability or actual expenses incurred during the wake and burial and other expenses incurred
relative to the interment of both deceased in the amount of Fourteen Thousand Pesos (P14,000.00)
payable to the heirs of both victims, and finally sentences accused Amboy Lopez for the crime of
Frustrated Homicide for the injuries sustained by victim Mario Seldera, with a penalty of Prision Mayor
from six (6) years and one (1) day to twelve (12) years, and to pay the widow of the late Rogelio Seldera
the sum of Twenty Thousand Pesos (P20,000.00) as moral damages, Ten Thousand Pesos (P10,000.00)
exemplary damages, and P300.00 as actual damages in the form of medical expenses. With cost de
officio. Bailbond cancelled.

SO ORDERED.

In this appeal, accused-appellant alleges that:29

ASSIGNMENT OF ERRORS

(1) THE HONORABLE COURT ERRED IN GIVING FULL FAITH AND CREDIT TO THE TESTIMONY OF MARIO
[S]ELDERA;

(2) THE HONORABLE [COURT] ERRED IN NOT CONSIDERING THE TESTIMONIES OF DEFENSE WITNESSES
LORNA GONZALES AND BARANGAY CAPTAIN JUANITO COSTALES AS TO THE CONDITION OF THE NIGHT;

14
(3) THAT THE HONORABLE COURT ERRED IN NOT CONSIDERING THE DEFENSE OF ALIBI PUT UP BY THE
ACCUSED;

(4) THE HONORABLE COURT ERRED IN NOT CONSIDERING THE EXISTENCE OF TWO PERSONS SPORTING
THE NAME OF AMBOY LOPEZ.

First. Accused-appellant questions the credibility of Mario Seldera. It is unbelievable, he contends, that
this witness observed even minute details, such as the length and color of the shirts worn by accused-
appellant and his companion, the color of their slippers, and the type of firearm used by accused-
appellant, considering that the shooting took place suddenly and unexpectedly.30

The contention has no merit. As the Solicitor General points out, Mario Seldera went through a
harrowing experience. In fact, he suffered three gunshot wounds and was given up for dead by the
assailant. The memory of the massacre was etched deeply in his memory. As this Court has many times
held, the natural reaction of victims of criminal violence is to strive to notice the appearance of their
assailants and observe the manner the crime was committed.31

Indeed, Mario's statement that accused-appellant used a shotgun in shooting him and his companions
on November 15, 1991 is confirmed by the fact that the wounds suffered by the victims were similar to
those caused by a shotgun fired at close range. Rogelio Seldera, who was less than three meters away
from accused-appellant, had his head practically blown off. On his neck and chest were nine wounds,
probably caused by pellets from the blast. Mario, who was behind his father, sustained three vertical,
relatively small wounds on the right side of his back. The wound on Rodolfo's head, on the other hand,
although without an exit, is similar in size to that suffered by Rogelio Seldera on the head.

It is argued that Mario could not have recognized accused-appellant because it was very dark on the
night of November 15, 1991.32 This is not true. According to the Philippine Atmospheric Geophysical
and Astronomical Services Administration, there was 60% illumination from the moon over Umingan,
Pangasinan at 9:00 in the evening of November 15, 1991. In People v. Pueblas,33 we held that a moon
disc 62% full provides sufficient illumination in sustaining the identification of the accused and
convicting him of murder. In other cases, we held that the illumination from the moon34 and even from
the stars35 is fair and sufficient to identify perpetrators of crimes.

The Solicitor General observes that Mario had been walking under the light of the moon for sometime
before the incident so that his eyes had sufficiently adjusted to the natural illumination, so as to enable
him in identifying the accused-appellant.36 Indeed, if accused-appellant recognized his intended victims,
there is no reason why the survivor from the ambush could not have also recognized him.

15
In the alternative, it is contended that even if there was fair illumination from the moon on the night in
question, nonetheless Mario Seldera could have mistaken accused-appellant for Rodrigo "Thunder"
Lopez.37

Again the contention is without merit. Rodrigo "Thunder" Lopez may also be called "Amboy" Lopez in
the barangay, but it was not by name that Mario made his identification. In fact, Rodrigo "Thunder"
Lopez was not even a suspect in the ambush of Mario and the latter's companions. As already stated,
Mario identified accused-appellant based on this witness' knowledge of accused-appellant. The latter
was a frequent visitor in their house and this witness used to buy from accused-appellant's store.
Moreover, Rodrigo Lopez is darker and shorter than accused-appellant.

Indeed, Mario Seldera was very positive that it was accused-appellant who shot them. He identified
accused-appellant as their assailant upon reaching Alfredo Padapat's house. He again pointed to
accused-appellant as the person who shot them when his mother arrived and again when they reported
the incident to the police that same night. The rule is that identification of the accused, when there is no
improper motive for making it, should be given full faith and credence. In the case at bar, no reason has
been shown why Mario should falsely implicate accused-appellant.

Second. It is claimed that accused-appellant was in his uncle's house in Caurdanetaan at the time of the
incident. The defense of alibi will be sustained where the evidence of the prosecution is weak.38
However, accused-appellant himself said that Caurdanetaan is just three kilometers from
Nancalabasaan. On the other hand, his witnesses39 themselves testified that accused-appellant's house
is less than two kilometers from the scene of the crime and that the distance could be negotiated in 30
minutes by foot and even less if one runs. For alibi to prosper, accused-appellant must show that it was
physically impossible for him to be at the scene of the crime at the time of its commission.40 Thus,
assuming that he was indeed at the party in Asterio Sonaco's house, he could have easily slipped out of
the party, come back to the group, and then be at home in time for the police to find him there.

Moreover, as already stated, accused-appellant was positively identified by Mario as the triggerman. It is
settled that the defense of alibi cannot prevail over positive identification of the accused by an
eyewitness who has no improper motive to falsely testify.41 The Court finds no reason to doubt the
veracity of Mario's testimony who was only 11 when he witnessed the gruesome killing of his father and
cousin and barely 13 when he took the stand. He could possibly have no other motive but to tell the
truth about what he had observed.

Accused-appellant's alibi is not only weak; it is also filled with inconsistencies. He said in his counter-
affidavit that he went home at 8:00 in the evening of November 15, 1991, a full hour before the

16
shooting occurred but, in his testimony in court, he said he went home at 11:00 in the evening. His
witnesses, Daniel Fortunato and Mario Sonaco, said there were at least ten persons in the party at the
house of Asterio Sonaco on November 15, 1991, but accused-appellant stated that there were only five.

The Court is convinced that it was accused-appellant who shot Mario Seldera, Rogelio Seldera, and
Rodolfo Padapat on November 15, 1991. It is immaterial that there is no proof of motive for the attack
because this becomes significant only where the identity of the assailant is in serious doubt.42 But in
this case, the accused has been positively identified.

Third. The Information is formally defective as it charged more the one offense in violation of Rule 110,
§13 of the Revised Rules of Court. However, because of his failure to file a motion to quash, accused-
appellant is deemed to have waived objection based on the ground of duplicity.43 The dispositive
portion of the trial court's decision finds accused-appellant guilty of "Double Murder with Frustrated
Murder," but sentences him for two separate counts of murder and one count of frustrated homicide.
We hold that accused-appellant was guilty of two counts of murder and one count of attempted
murder. Under Art. 48 of the Revised Penal Code, a complex crime is committed only "when a single act
constitutes two or more grave or less grave felonies." As the victims in this case were successively shot
by accused-appellant with a shotgun, each shot necessarily constitutes one act. Accused-appellant
should thus be held liable for three separate crimes.

The lower court correctly appreciated treachery as having qualified the killing of Rogelio Seldera and
Rodolfo Padapat. The essence of treachery is the swift and unexpected attack on an unarmed victim
without the slightest provocation on the part of the victim.44 Here, it was clearly established that the
victims, when shot, were unarmed and were peacefully walking along a trail when accused-appellant
suddenly opened fire on them. The swiftness of the shooting left them helpless to put up any form of
defense.

The lower court however erred in convicting accused-appellant of frustrated homicide for the injuries
inflicted on Mario Seldera. Although it correctly appreciated the intent to kill, which can be inferred
from the weapon used, the proximity of the assailants and the location of the injuries, it should have
appreciated treachery in the attack. Treachery attended the shooting not only of Rogelio Seldera and
Rodolfo Padapat but also of Mario Seldera.

But, with respect to Mario Seldera, the crime was not frustrated, but only attempted murder. This is the
gist of our rulings in several cases.45 For the injuries sustained by Mario Seldera were not life
threatening. Dr. Santos, the attending physician, certified that Mario's injuries would heal in seven
days.46 In fact, he was not confined at the hospital. He was referred to the Eastern Pangasinan District
Hospital only for x-ray examination of his injuries. There is no evidence that he was given further
medical attention by this hospital other than what Dr. Santos had requested.

17
Fourth. Certain modification should also be made with respect to the award of damages. The lower
court awarded P50,000.00 for compensatory damages and P30,000.00 for moral damages to each set of
heirs of Rogelio Seldera and Rodolfo Padapat in addition to the P14,000.00 actual damages to be divided
among them. The P50,000.00 should be treated as civil indemnity, which under prevailing
jurisprudence,47 is fixed at P50,000.00, to be awarded without need of further proof other than the
death of the victim. Further, in accordance with our rulings in other cases,48 the amount of moral
damages should be increased to P50,000.00.

With regard to the amount of actual damages, Leonida Seldera and Alfredo Padapat testified that they
could not present any receipt for their funeral expenses because the funeral agency refused to issue one
in view of an unpaid balance. They have likewise allegedly lost the receipts for their joint expenses for
the wake. Under the Civil Code (Art. 2199), a party is entitled to compensation only for such pecuniary
loss suffered by him as he has duly proved. However, under Art. 2224, temperate damages may be
recovered if it is shown that such party suffered some pecuniary loss but the amount thereof cannot,
from the nature of the case, be proved with certainty.49 As the heirs of the two victims clearly incurred
funeral expenses, an award of P5,000.00 for each set of heirs by way of temperate damages should be
awarded, to be divided equally by the heirs of Seldera and Padapat.

For the injuries sustained by Mario Seldera, the court a quo awarded P10,000.00 moral damages,
P20,000.00 exemplary damages and P300.00 actual damages for medical expenses. The first item should
be disallowed for lack of evidence to support it. The second item should likewise be deleted as under
Art. 2230 of the Civil Code, exemplary damages are awarded when the crime is committed with one or
more aggravating circumstances. There was no aggravating circumstance in this case other than the
qualifying circumstance of treachery. As to the actual damages of P300.00, as the prosecution failed to
present any documentary proof for such, its award is improper. However, the amount of P200.00 as
temperate damages may be made in its place.

Actual damages representing unearned income of Rogelio Seldera and Alfredo Padapat should also be
awarded. Leonida Seldera testified that her husband was 43 years old when he was killed and that he
earned P13,000.00 a year as a farmer.50 On the other hand, Alfredo Padapat testified that his son,
Rodolfo, was then 25 years old when he died and that he was earning P5,000.00 a year also as a
farmhand.51 The formula for the computation of unearned income is:52

net earning cpacity = life

expectancy x gross annual income less living expenses (50% of gross annual income)

(x)

18
Life expectancy is determined in accordance with the formula —53

2/3 x [80 - age of the deceased]

Accordingly, Rogelio Seldera's unearned income is:

x = 2[80 - 43]

3 x P13,000 — P6,500

= 24.67 x P6,500

= P160,355

Rodolfo Padapat's unearned income is:

x = 2[80 - 25]

3 x P5,000 — P2,500

= 36.67 x P2,500

= P91,675

WHEREFORE, the decision of the Regional Trial Court of Pangasinan (Branch 52) is AFFIRMED with the
following modifications:

1. For the death of Rogelio Seldera, accused-appellant is found guilty of murder and is sentenced to
reclusion perpetua and to pay the heirs of the deceased Rogelio Seldera the amount of P50,000.00 as
indemnity, P50,000.00 as moral damages, P5,000.00 as temperate damages, and P160,355.00 as
unearned income.

2. For the death of Rodolfo Padapat, accused-appellant is found guilty of murder and is sentenced to
reclusion perpetua and to pay the heirs of the deceased Rodolfo Padapat the amounts of P50,000.00 as
civil indemnity, P50,000.00 as moral damages, P5,000.00 as temperate damages, and P91,675.00 as
unearned income.

3. For the injuries of Mario Seldera, accused-appellant is found guilty of attempted murder and is
sentenced to 4 years and 2 months of prision correccional, as minimum, to 10 years of prision mayor, as
maximum, and to pay Mario Seldera P200.00 as temperate damages.1âwphi1.nêt

SO ORDERED.

19