BATTERED WOMAN SYNDROME

G.R. No. 135981 January 15, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
MARIVIC GENOSA, appellant.

DECISION

PANGANIBAN, J.:

Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the
"battered woman syndrome" (BWS), which allegedly constitutes self-defense. Under the proven facts,
however, she is not entitled to complete exoneration because there was no unlawful aggression -- no
immediate and unexpected attack on her by her batterer-husband at the time she shot him.

Absent unlawful aggression, there can be no self-defense, complete or incomplete.

But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of
cumulative provocation that broke down her psychological resistance and self-control. This
"psychological paralysis" she suffered diminished her will power, thereby entitling her to the mitigating
factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.

In addition, appellant should also be credited with the extenuating circumstance of having acted upon
an impulse so powerful as to have naturally produced passion and obfuscation. The acute battering
she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she was eight
months pregnant with their child, overwhelmed her and put her in the aforesaid emotional and mental
state, which overcame her reason and impelled her to vindicate her life and her unborn child's.

Considering the presence of these two mitigating circumstances arising from BWS, as well as the
benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody on
parole, because she has already served the minimum period of her penalty while under detention
during the pendency of this case.

The Case

For automatic review before this Court is the September 25, 1998 Decision 1 of the Regional Trial
Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty
beyond reasonable doubt of parricide. The decretal portion of the Decision reads:

"WHEREFORE, after all the foregoing being duly considered, the Court finds the accused,
Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as
provided under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659,
and after finding treachery as a generic aggravating circumstance and none of mitigating
circumstance, hereby sentences the accused with the penalty of DEATH.

"The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty
thousand pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty
thousand pesos (P50,000.00), Philippine currency as moral damages."2

The Information3 charged appellant with parricide as follows:

"That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel,
Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, with intent to kill, with treachery and evident premeditation, did then and there
wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA, her
legitimate husband, with the use of a hard deadly weapon, which the accused had provided
herself for the purpose, [causing] the following wounds, to wit:

'Cadaveric spasm.

'Body on the 2nd stage of decomposition.

'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from its
sockets and tongue slightly protrudes out of the mouth.
 'Fracture, open, depressed, circular located at the occipital bone of the head, resulting
[in] laceration of the brain, spontaneous rupture of the blood vessels on the posterior
surface of the brain, laceration of the dura and meningeal vessels producing severe
intracranial hemorrhage.

'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the
epidermis.

'Abdomen distended w/ gas. Trunk bloated.'

which caused his death."4

With the assistance of her counsel,5 appellant pleaded not guilty during her arraignment on March 3,
1997.6 In due course, she was tried for and convicted of parricide.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecution's version of the facts in this
wise:

"Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City.
Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For a time, Ben's
younger brother, Alex, and his wife lived with them too. Sometime in 1995, however, appellant
and Ben rented from Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they
lived with their two children, namely: John Marben and Earl Pierre.

"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their
salary. They each had two (2) bottles of beer before heading home. Arturo would pass Ben's
house before reaching his. When they arrived at the house of Ben, he found out that appellant
had gone to Isabel, Leyte to look for him. Ben went inside his house, while Arturo went to a
store across it, waiting until 9:00 in the evening for the masiao runner to place a bet. Arturo did
not see appellant arrive but on his way home passing the side of the Genosas' rented house,
he heard her say 'I won't hesitate to kill you' to which Ben replied 'Why kill me when I am
innocent?' That was the last time Arturo saw Ben alive. Arturo also noticed that since then, the
Genosas' rented house appeared uninhabited and was always closed.

"On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living
about fifty (50) meters from her house, to look after her pig because she was going to Cebu for
a pregnancy check-up. Appellant likewise asked Erlinda to sell her motorcycle to their neighbor
Ronnie Dayandayan who unfortunately had no money to buy it.

"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to
Ormoc when he saw appellant going out of their house with her two kids in tow, each one
carrying a bag, locking the gate and taking her children to the waiting area where he was.
Joseph lived about fifty (50) meters behind the Genosas' rented house. Joseph, appellant and
her children rode the same bus to Ormoc. They had no conversation as Joseph noticed that
appellant did not want to talk to him.

"On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor
emanating from his house being rented by Ben and appellant. Steban went there to find out
the cause of the stench but the house was locked from the inside. Since he did not have a
duplicate key with him, Steban destroyed the gate padlock with a borrowed steel saw. He was
able to get inside through the kitchen door but only after destroying a window to reach a hook
that locked it. Alone, Steban went inside the unlocked bedroom where the offensive smell was
coming from. There, he saw the lifeless body of Ben lying on his side on the bed covered with
a blanket. He was only in his briefs with injuries at the back of his head. Seeing this, Steban
went out of the house and sent word to the mother of Ben about his son's misfortune. Later
that day, Iluminada Genosa, the mother of Ben, identified the dead body as that of [her] son.

"Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police
station at Isabel, Leyte, received a report regarding the foul smell at the Genosas' rented
house. Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin
proceeded to the house and went inside the bedroom where they found the dead body of Ben
lying on his side wrapped with a bedsheet. There was blood at the nape of Ben who only had
his briefs on. SPO3 Acodesin found in one corner at the side of an aparador a metal pipe
 about two (2) meters from where Ben was, leaning against a wall. The metal pipe measured
three (3) feet and six (6) inches long with a diameter of one and half (1 1/2) inches. It had an
open end without a stop valve with a red stain at one end. The bedroom was not in disarray.

"About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken
outside at the back of the house before the postmortem examination was conducted by Dr.
Cerillo in the presence of the police. A municipal health officer at Isabel, Leyte responsible for
medico-legal cases, Dr. Cerillo found that Ben had been dead for two to three days and his
body was already decomposing. The postmortem examination of Dr. Cerillo yielded the
findings quoted in the Information for parricide later filed against appellant. She concluded that
the cause of Ben's death was 'cardiopulmonary arrest secondary to severe intracranial
hemorrhage due to a depressed fracture of the occipital [bone].'

"Appellant admitted killing Ben. She testified that going home after work on November 15,
1995, she got worried that her husband who was not home yet might have gone gambling
since it was a payday. With her cousin Ecel Araño, appellant went to look for Ben at the
marketplace and taverns at Isabel, Leyte but did not find him there. They found Ben drunk
upon their return at the Genosas' house. Ecel went home despite appellant's request for her to
sleep in their house.

"Then, Ben purportedly nagged appellant for following him, even challenging her to a fight. She
allegedly ignored him and instead attended to their children who were doing their homework.
Apparently disappointed with her reaction, Ben switched off the light and, with the use of a
chopping knife, cut the television antenna or wire to keep her from watching television.
According to appellant, Ben was about to attack her so she ran to the bedroom, but he got hold
of her hands and whirled her around. She fell on the side of the bed and screamed for help.
Ben left. At this point, appellant packed his clothes because she wanted him to leave. Seeing
his packed clothes upon his return home, Ben allegedly flew into a rage, dragged appellant
outside of the bedroom towards a drawer holding her by the neck, and told her 'You might as
well be killed so nobody would nag me.' Appellant testified that she was aware that there was a
gun inside the drawer but since Ben did not have the key to it, he got a three-inch long blade
cutter from his wallet. She however, 'smashed' the arm of Ben with a pipe, causing him to drop
the blade and his wallet. Appellant then 'smashed' Ben at his nape with the pipe as he was
about to pick up the blade and his wallet. She thereafter ran inside the bedroom.

"Appellant, however, insisted that she ended the life of her husband by shooting him. She
supposedly 'distorted' the drawer where the gun was and shot Ben. He did not die on the spot,
though, but in the bedroom."7 (Citations omitted)

Version of the Defense

Appellant relates her version of the facts in this manner:

"1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her
marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor
of Science in Business Administration, and was working, at the time of her husband's death, as
a Secretary to the Port Managers in Ormoc City. The couple had three (3) children: John
Marben, Earl Pierre and Marie Bianca.

"2. Marivic and Ben had known each other since elementary school; they were neighbors in
Bilwang; they were classmates; and they were third degree cousins. Both sets of parents were
against their relationship, but Ben was persistent and tried to stop other suitors from courting
her. Their closeness developed as he was her constant partner at fiestas.

"3. After their marriage, they lived first in the home of Ben's parents, together with Ben's
brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben 'lived happily'. But
apparently, soon thereafter, the couple would quarrel often and their fights would become
violent.

"4. Ben's brother, Alex, testified for the prosecution that he could not remember when Ben and
Marivic married. He said that when Ben and Marivic quarreled, generally when Ben would
come home drunk, Marivic would inflict injuries on him. He said that in one incident in 1993 he
saw Marivic holding a kitchen knife after Ben had shouted for help as his left hand was
covered with blood. Marivic left the house but after a week, she returned apparently having
asked for Ben's forgiveness. In another incident in May 22, 1994, early morning, Alex and his
father apparently rushed to Ben's aid again and saw blood from Ben's forehead and Marivic
holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently again asked
for Ben's forgiveness.

"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that Ben and Marivic
married in '1986 or 1985 more or less here in Fatima, Ormoc City.' She said as the marriage
went along, Marivic became 'already very demanding. Mrs. Iluminada Genosa said that after
the birth of Marivic's two sons, there were 'three (3) misunderstandings.' The first was when
Marivic stabbed Ben with a table knife through his left arm; the second incident was on
November 15, 1994, when Marivic struck Ben on the forehead 'using a sharp instrument until
the eye was also affected. It was wounded and also the ear' and her husband went to Ben to
help; and the third incident was in 1995 when the couple had already transferred to the house
in Bilwang and she saw that Ben's hand was plastered as 'the bone cracked.'

"Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.

"5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 'After we
collected our salary, we went to the cock-fighting place of ISCO.' They stayed there for three
(3) hours, after which they went to 'Uniloks' and drank beer – allegedly only two (2) bottles
each. After drinking they bought barbeque and went to the Genosa residence. Marivic was not
there. He stayed a while talking with Ben, after which he went across the road to wait 'for the
runner and the usher of the masiao game because during that time, the hearing on masiao
numbers was rampant. I was waiting for the ushers and runners so that I can place my bet.' On
his way home at about 9:00 in the evening, he heard the Genosas arguing. They were
quarreling loudly. Outside their house was one 'Fredo' who is used by Ben to feed his fighting
cocks. Basobas' testimony on the root of the quarrel, conveniently overheard by him was
Marivic saying 'I will never hesitate to kill you', whilst Ben replied 'Why kill me when I am
innocent.' Basobas thought they were joking.

"He did not hear them quarreling while he was across the road from the Genosa residence.
Basobas admitted that he and Ben were always at the cockpits every Saturday and Sunday.
He claims that he once told Ben 'before when he was stricken with a bottle by Marivic Genosa'
that he should leave her and that Ben would always take her back after she would leave him
'so many times'.

"Basobas could not remember when Marivic had hit Ben, but it was a long time that they had
been quarreling. He said Ben 'even had a wound' on the right forehead. He had known the
couple for only one (1) year.

"6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a
habitual drinker. She said he provoked her, he would slap her, sometimes he would pin her
down on the bed, and sometimes beat her.

"These incidents happened several times and she would often run home to her parents, but
Ben would follow her and seek her out, promising to change and would ask for her
forgiveness. She said after she would be beaten, she would seek medical help from Dr. Dino
Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the injuries inflicted upon her by
Ben into their reports. Marivic said Ben would beat her or quarrel with her every time he was
drunk, at least three times a week.

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

'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on
November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting
for help and through the open jalousies, he saw the spouses 'grappling with each other'. Ben
had Marivic in a choke hold. He did not do anything, but had come voluntarily to testify.
(Please note this was the same night as that testified to by Arturo Busabos.8 )

'7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified
that he heard his neighbor Marivic shouting on the night of November 15, 1995. He peeped
through the window of his hut which is located beside the Genosa house and saw 'the spouses
grappling with each other then Ben Genosa was holding with his both hands the neck of the
accused, Marivic Genosa'. He said after a while, Marivic was able to extricate he[r]self and
enter the room of the children. After that, he went back to work as he was to go fishing that
evening. He returned at 8:00 the next morning. (Again, please note that this was the same
night as that testified to by Arturo Basobas).
'7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in
Isabel, Leyte. His house was located about fifty (50) meters from theirs. Marivic is his niece
and he knew them to be living together for 13 or 14 years. He said the couple was always
quarreling. Marivic confided in him that Ben would pawn items and then would use the money
to gamble. One time, he went to their house and they were quarreling. Ben was so angry, but
would be pacified 'if somebody would come.' He testified that while Ben was alive 'he used to
gamble and when he became drunk, he would go to our house and he will say, 'Teody'
because that was what he used to call me, 'mokimas ta,' which means 'let's go and look for a
whore.' Mr. Sarabia further testified that Ben 'would box his wife and I would see bruises and
one time she ran to me, I noticed a wound (the witness pointed to his right breast) as
according to her a knife was stricken to her.' Mr. Sarabia also said that once he saw Ben had
been injured too. He said he voluntarily testified only that morning.

'7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the
afternoon of November 15, 1995, Marivic went to her house and asked her help to look for
Ben. They searched in the market place, several taverns and some other places, but could not
find him. She accompanied Marivic home. Marivic wanted her to sleep with her in the Genosa
house 'because she might be battered by her husband.' When they got to the Genosa house at
about 7:00 in the evening, Miss Arano said that 'her husband was already there and was
drunk.' Miss Arano knew he was drunk 'because of his staggering walking and I can also
detect his face.' Marivic entered the house and she heard them quarrel noisily. (Again, please
note that this is the same night as that testified to by Arturo Basobas) Miss Arano testified that
this was not the first time Marivic had asked her to sleep in the house as Marivic would be
afraid every time her husband would come home drunk. At one time when she did sleep over,
she was awakened at 10:00 in the evening when Ben arrived because the couple 'were very
noisy in the sala and I had heard something was broken like a vase.' She said Marivic ran into
her room and they locked the door. When Ben couldn't get in he got a chair and a knife and
'showed us the knife through the window grill and he scared us.' She said that Marivic shouted
for help, but no one came. On cross-examination, she said that when she left Marivic's house
on November 15, 1995, the couple were still quarreling.

'7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at
PHILPHOS, Isabel, Leyte. Marivic was his patient 'many times' and had also received
treatment from other doctors. Dr. Caing testified that from July 6, 1989 until November 9, 1995,
there were six (6) episodes of physical injuries inflicted upon Marivic. These injuries were
reported in his Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted the
qualifications of Dr. Caing and considered him an expert witness.'

xxx xxx xxx

'Dr. Caing's clinical history of the tension headache and hypertention of Marivic on twenty-
three (23) separate occasions was marked at Exhibits '2' and '2-B.' The OPD Chart of Marivic
at the Philphos Clinic which reflected all the consultations made by Marivic and the six (6)
incidents of physical injuries reported was marked as Exhibit '3.'

"On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether
the injuries were directly related to the crime committed. He said it is only a psychiatrist who is
qualified to examine the psychological make-up of the patient, 'whether she is capable of
committing a crime or not.'

'7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified
that about two (2) months before Ben died, Marivic went to his office past 8:00 in the evening.
She sought his help to settle or confront the Genosa couple who were experiencing 'family
troubles'. He told Marivic to return in the morning, but he did not hear from her again and
assumed 'that they might have settled with each other or they might have forgiven with each
other.'

xxx xxx xxx

"Marivic said she did not provoke her husband when she got home that night it was her
husband who began the provocation. Marivic said she was frightened that her husband would
hurt her and she wanted to make sure she would deliver her baby safely. In fact, Marivic had to
be admitted later at the Rizal Medical Centre as she was suffering from eclampsia and
hypertension, and the baby was born prematurely on December 1, 1995.

"Marivic testified that during her marriage she had tried to leave her husband at least five (5)
times, but that Ben would always follow her and they would reconcile. Marivic said that the
reason why Ben was violent and abusive towards her that night was because 'he was crazy
about his recent girlfriend, Lulu x x x Rubillos.'

"On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the
bedroom; that their quarrels could be heard by anyone passing their house; that Basobas lied
in his testimony; that she left for Manila the next day, November 16, 1995; that she did not
bother anyone in Manila, rented herself a room, and got herself a job as a field researcher
under the alias 'Marvelous Isidro'; she did not tell anyone that she was leaving Leyte, she just
wanted to have a safe delivery of her baby; and that she was arrested in San Pablo, Laguna.

'Answering questions from the Court, Marivic said that she threw the gun away; that she did
not know what happened to the pipe she used to 'smash him once'; that she was wounded by
Ben on her wrist with the bolo; and that two (2) hours after she was 'whirled' by Ben, he kicked
her 'ass' and dragged her towards the drawer when he saw that she had packed his things.'

"9. The body of Ben Genosa was found on November 18, 1995 after an investigation was
made of the foul odor emitting from the Genosa residence. This fact was testified to by all the
prosecution witnesses and some defense witnesses during the trial.

"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at
the time of the incident, and among her responsibilities as such was to take charge of all
medico-legal cases, such as the examination of cadavers and the autopsy of cadavers. Dra.
Cerillo is not a forensic pathologist. She merely took the medical board exams and passed in
1986. She was called by the police to go to the Genosa residence and when she got there, she
saw 'some police officer and neighbor around.' She saw Ben Genosa, covered by a blanket,
lying in a semi-prone position with his back to the door. He was wearing only a brief.

xxxxxxxxx

"Dra. Cerillo said that 'there is only one injury and that is the injury involving the skeletal area
of the head' which she described as a 'fracture'. And that based on her examination, Ben had
been dead 2 or 3 days. Dra. Cerillo did not testify as to what caused his death.

"Dra. Cerillo was not cross-examined by defense counsel.

"11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her with
the crime of PARRICIDE committed 'with intent to kill, with treachery and evidence
premeditation, x x x wilfully, unlawfully and feloniously attack, assault, hit and wound x x x her
legitimate husband, with the use of a hard deadly weapon x x x which caused his death.'

"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23
September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6
August 1998.

"13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon.
Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a JUDGMENT
finding Marivic guilty 'beyond reasonable doubt' of the crime of parricide, and further found
treachery as an aggravating circumstance, thus sentencing her to the ultimate penalty of
DEATH.

"14. The case was elevated to this Honorable Court upon automatic review and, under date of
24 January 2000, Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to
Withdraw as counsel, attaching thereto, as a precautionary measure, two (2) drafts of
Appellant's Briefs he had prepared for Marivic which, for reasons of her own, were not
conformed to by her.

"The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of
appearance of undersigned counsel.

"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000,
to the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy Clerk of
Court of Chief Judicial Records Office, wherein she submitted her 'Brief without counsels' to
the Court.

"This letter was stamp-received by the Honorable Court on 4 February 2000.

"16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable
Court on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION
praying that the Honorable Court allow the exhumation of Ben Genosa and the re-examination
of the cause of his death; allow the examination of Marivic Genosa by qualified psychologists
and psychiatrists to determine her state of mind at the time she killed her husband; and finally,
to allow a partial re-opening of the case a quo to take the testimony of said psychologists and
psychiatrists.

"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only
qualified forensic pathologist in the country, who opined that the description of the death
wound (as culled from the post-mortem findings, Exhibit 'A') is more akin to a gunshot wound
than a beating with a lead pipe.

"17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted
Marivic's URGENT OMNIBUS MOTION and remanded the case 'to the trial court for the
reception of expert psychological and/or psychiatric opinion on the 'battered woman syndrome'
plea, within ninety (90) days from notice, and, thereafter to forthwith report to this Court the
proceedings taken, together with the copies of the TSN and relevant documentary evidence, if
any, submitted.'

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

"Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed
Marivic Genosa. Dra. Dayan informed the Court that interviews were done at the Penal
Institution in 1999, but that the clinical interviews and psychological assessment were done at
her clinic.

"Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her
own private clinic and connected presently to the De La Salle University as a professor. Before
this, she was the Head of the Psychology Department of the Assumption College; a member of
the faculty of Psychology at the Ateneo de Manila University and St. Joseph's College; and
was the counseling psychologist of the National Defense College. She has an AB in
Psychology from the University of the Philippines, a Master of Arts in Clinical [Counseling],
Psychology from the Ateneo, and a PhD from the U.P. She was the past president of the
Psychological Association of the Philippines and is a member of the American Psychological
Association. She is the secretary of the International Council of Psychologists from about 68
countries; a member of the Forensic Psychology Association; and a member of the ASEAN
[Counseling] Association. She is actively involved with the Philippine Judicial Academy,
recently lecturing on the socio-demographic and psychological profile of families involved in
domestic violence and nullity cases. She was with the Davide Commission doing research
about Military Psychology. She has written a book entitled 'Energy Global Psychology'
(together with Drs. Allan Tan and Allan Bernardo). The Genosa case is the first time she has
testified as an expert on battered women as this is the first case of that nature.

"Dra. Dayan testified that for the research she conducted, on the socio-demographic and
psychological profile of families involved in domestic violence, and nullity cases, she looked at
about 500 cases over a period of ten (10) years and discovered that 'there are lots of variables
that cause all of this marital conflicts, from domestic violence to infidelity, to psychiatric
disorder.'

"Dra. Dayan described domestic violence to comprise of 'a lot of incidents of psychological
abuse, verbal abuse, and emotional abuse to physical abuse and also sexual abuse.'

xxx xxx xxx

"Dra. Dayan testified that in her studies, 'the battered woman usually has a very low opinion of
herself. She has a self-defeating and self-sacrificing characteristics. x x x they usually think
very lowly of themselves and so when the violence would happen, they usually think that they
provoke it, that they were the one who precipitated the violence, they provoke their spouse to
be physically, verbally and even sexually abusive to them.' Dra. Dayan said that usually a
battered x x x comes from a dysfunctional family or from 'broken homes.'

"Dra. Dayan said that the batterer, just like the battered woman, 'also has a very low opinion of
himself. But then emerges to have superiority complex and it comes out as being very
arrogant, very hostile, very aggressive and very angry. They also had (sic) a very low tolerance
for frustrations. A lot of times they are involved in vices like gambling, drinking and drugs. And
they become violent.' The batterer also usually comes from a dysfunctional family which over-
pampers them and makes them feel entitled to do anything. Also, they see often how their
parents abused each other so 'there is a lot of modeling of aggression in the family.'

"Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave her
husband: poverty, self-blame and guilt that she provoked the violence, the cycle itself which
makes her hope her husband will change, the belief in her obligations to keep the family intact
at all costs for the sake of the children.

xxx xxx xxx

"Dra. Dayan said that abused wives react differently to the violence: some leave the house, or
lock themselves in another room, or sometimes try to fight back triggering 'physical violence on
both of them.' She said that in a 'normal marital relationship,' abuses also happen, but these
are 'not consistent, not chronic, are not happening day in [and] day out.' In an 'abnormal
marital relationship,' the abuse occurs day in and day out, is long lasting and 'even would
cause hospitalization on the victim and even death on the victim.'

xxx xxx xxx

"Dra. Dayan said that as a result of the battery of psychological tests she administered, it was
her opinion that Marivic fits the profile of a battered woman because 'inspite of her feeling of
self-confidence which we can see at times there are really feeling (sic) of loss, such feelings of
humiliation which she sees herself as damaged and as a broken person. And at the same time
she still has the imprint of all the abuses that she had experienced in the past.'

xxx xxx xxx

"Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing for
nullity or legal separation inspite of the abuses. It was at the time of the tragedy that Marivic
then thought of herself as a victim.

xxx xxx xxx

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

"Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine
Board of Psychiatry and a Fellow of the Philippine Psychiatry Association. He was in the
practice of psychiatry for thirty-eight (38) years. Prior to being in private practice, he was
connected with the Veterans Memorial Medical Centre where he gained his training on
psychiatry and neurology. After that, he was called to active duty in the Armed Forces of the
Philippines, assigned to the V. Luna Medical Center for twenty six (26) years. Prior to his
retirement from government service, he obtained the rank of Brigadier General. He obtained
his medical degree from the University of Santo Tomas. He was also a member of the World
Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical
Society; and the Philippine Association of Military Surgeons.

"He authored 'The Comparative Analysis of Nervous Breakdown in the Philippine Military
Academy from the Period 1954 – 1978' which was presented twice in international congresses.
He also authored 'The Mental Health of the Armed Forces of the Philippines 2000', which was
likewise published internationally and locally. He had a medical textbook published on the use
of Prasepam on a Parke-Davis grant; was the first to use Enanthate (siquiline), on an E.R.
Squibb grant; and he published the use of the drug Zopiclom in 1985-86.

"Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and
neurology deals with the ailment of the brain and spinal cord enlarged. Psychology, on the
other hand, is a bachelor degree and a doctorate degree; while one has to finish medicine to
become a specialist in psychiatry.

"Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already
encountered a suit involving violent family relations, and testified in a case in 1964. In the
Armed Forces of the Philippines, violent family disputes abound, and he has seen probably ten
to twenty thousand cases. In those days, the primordial intention of therapy was reconciliation.
As a result of his experience with domestic violence cases, he became a consultant of the
Battered Woman Office in Quezon City under Atty. Nenita Deproza.
"As such consultant, he had seen around forty (40) cases of severe domestic violence, where
there is physical abuse: such as slapping, pushing, verbal abuse, battering and boxing a
woman even to an unconscious state such that the woman is sometimes confined. The
affliction of Post-Traumatic Stress Disorder 'depends on the vulnerability of the victim.' Dr.
Pajarillo said that if the victim is not very healthy, perhaps one episode of violence may induce
the disorder; if the psychological stamina and physiologic constitutional stamina of the victim is
stronger, 'it will take more repetitive trauma to precipitate the post-traumatic stress disorder
and this x x x is very dangerous.'

"In psychiatry, the post-traumatic stress disorder is incorporated under the 'anxiety neurosis or
neurologic anxcietism.' It is produced by 'overwhelming brutality, trauma.'

xxx xxx xxx

"Dr. Pajarillo explained that with 'neurotic anxiety', the victim relives the beating or trauma as if
it were real, although she is not actually being beaten at that time. She thinks 'of nothing but
the suffering.'

xxx xxx xxx

"A woman who suffers battery has a tendency to become neurotic, her emotional tone is
unstable, and she is irritable and restless. She tends to become hard-headed and persistent.
She has higher sensitivity and her 'self-world' is damaged.

"Dr. Pajarillo said that an abnormal family background relates to an individual's illness, such as
the deprivation of the continuous care and love of the parents. As to the batterer, he normally
'internalizes what is around him within the environment.' And it becomes his own personality.
He is very competitive; he is aiming high all the time; he is so macho; he shows his strong
façade 'but in it there are doubts in himself and prone to act without thinking.'

xxx xxx xxx

"Dr. Pajarillo emphasized that 'even though without the presence of the precipator (sic) or the
one who administered the battering, that re-experiencing of the trauma occurred (sic) because
the individual cannot control it. It will just come up in her mind or in his mind.'

xxx xxx xxx

"Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend
themselves, and 'primarily with knives. Usually pointed weapons or any weapon that is
available in the immediate surrounding or in a hospital x x x because that abound in the
household.' He said a victim resorts to weapons when she has 'reached the lowest rock bottom
of her life and there is no other recourse left on her but to act decisively.'

xxx xxx xxx

"Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted for
two (2) hours and seventeen (17) minutes. He used the psychological evaluation and social
case studies as a help in forming his diagnosis. He came out with a Psychiatric Report, dated
22 January 2001.

xxx xxx xxx

"On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed
her husband Marivic'c mental condition was that she was 're-experiencing the trauma.' He said
'that we are trying to explain scientifically that the re-experiencing of the trauma is not
controlled by Marivic. It will just come in flashes and probably at that point in time that things
happened when the re-experiencing of the trauma flashed in her mind.' At the time he
interviewed Marivic 'she was more subdued, she was not super alert anymore x x x she is
mentally stress (sic) because of the predicament she is involved.'

xxx xxx xxx

"20. No rebuttal evidence or testimony was presented by either the private or the public
prosecutor. Thus, in accord with the Resolution of this Honorable Court, the records of the
partially re-opened trial a quo were elevated."9
 Ruling of the Trial Court

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

The capital penalty having been imposed, the case was elevated to this Court for automatic review.

Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the
exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the examination of
appellant by qualified psychologists and psychiatrists to determine her state of mind at the time she
had killed her spouse; and (3) the inclusion of the said experts' reports in the records of the case for
purposes of the automatic review or, in the alternative, a partial reopening of the case for the lower
court to admit the experts' testimonies.

On September 29, 2000, this Court issued a Resolution granting in part appellant's Motion,
remanding the case to the trial court for the reception of expert psychological and/or psychiatric
opinion on the "battered woman syndrome" plea; and requiring the lower court to report thereafter to
this Court the proceedings taken as well as to submit copies of the TSN and additional evidence, if
any.

Acting on the Court's Resolution, the trial judge authorized the examination of Marivic by two clinical
psychologists, Drs. Natividad Dayan10 and Alfredo Pajarillo,11 supposedly experts on domestic
violence. Their testimonies, along with their documentary evidence, were then presented to and
admitted by the lower court before finally being submitted to this Court to form part of the records of
the case.12

The Issues

Appellant assigns the following alleged errors of the trial court for this Court's consideration:

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

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

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

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

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

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

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

"8. The trial court gravely erred in refusing to re-evaluate the traditional elements in
determining the existence of self-defense and defense of foetus in this case, thereby
erroneously convicting Marivic Genosa of the crime of parricide and condemning her to the
ultimate penalty of death."13

In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense
and in defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa.

The Court's Ruling

The appeal is partly meritorious.

 Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution
of the principal issues. As consistently held by this Court, the findings of the trial court on the
credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be
disturbed on appeal in the absence of any showing that the trial judge gravely abused his discretion
or overlooked, misunderstood or misapplied material facts or circumstances of weight and substance
that could affect the outcome of the case. 14

In appellant's first six assigned items, we find no grave abuse of discretion, reversible error or
misappreciation of material facts that would reverse or modify the trial court's disposition of the case.
In any event, we will now briefly dispose of these alleged errors of the trial court.

First, we do not agree that the lower court promulgated "an obviously hasty decision without reflecting
on the evidence adduced as to self-defense." We note that in his 17-page Decision, Judge Fortunito
L. Madrona summarized the testimonies of both the prosecution and the defense witnesses and -- on
the basis of those and of the documentary evidence on record -- made his evaluation, findings and
conclusions. He wrote a 3-page discourse assessing the testimony and the self-defense theory of the
accused. While she, or even this Court, may not agree with the trial judge's conclusions, we cannot
peremptorily conclude, absent substantial evidence, that he failed to reflect on the evidence
presented.

Neither do we find the appealed Decision to have been made in an "obviously hasty" manner. The
Information had been filed with the lower court on November 14, 1996. Thereafter, trial began and at
least 13 hearings were held for over a year. It took the trial judge about two months from the
conclusion of trial to promulgate his judgment. That he conducted the trial and resolved the case with
dispatch should not be taken against him, much less used to condemn him for being unduly hasty. If
at all, the dispatch with which he handled the case should be lauded. In any case, we find his actions
in substantial compliance with his constitutional obligation. 15

Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been
legally married, despite the non-presentation of their marriage contract. In People v. Malabago,16 this
Court held:

"The key element in parricide is the relationship of the offender with the victim. In the case of
parricide of a spouse, the best proof of the relationship between the accused and the
deceased is the marriage certificate. In the absence of a marriage certificate, however, oral
evidence of the fact of marriage may be considered by the trial court if such proof is not
objected to."

Two of the prosecution witnesses -- namely, the mother and the brother of appellant's deceased
spouse -- attested in court that Ben had been married to Marivic. 17 The defense raised no objection to
these testimonies. Moreover, during her direct examination, appellant herself made a judicial
admission of her marriage to Ben.18 Axiomatic is the rule that a judicial admission is conclusive upon
the party making it, except only when there is a showing that (1) the admission was made through a
palpable mistake, or (2) no admission was in fact made. 19 Other than merely attacking the non-
presentation of the marriage contract, the defense offered no proof that the admission made by
appellant in court as to the fact of her marriage to the deceased was made through a palpable
mistake.

Third, under the circumstances of this case, the specific or direct cause of Ben's death -- whether by
a gunshot or by beating with a pipe -- has no legal consequence. As the Court elucidated in its
September 29, 2000 Resolution, "[c]onsidering that the appellant has admitted the fact of killing her
husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his
head, the Court believes that exhumation is unnecessary, if not immaterial, to determine which of said
acts actually caused the victim's death." Determining which of these admitted acts caused the death
is not dispositive of the guilt or defense of appellant.

Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk,
gambler, womanizer and wife-beater. Until this case came to us for automatic review, appellant had
not raised the novel defense of "battered woman syndrome," for which such evidence may have been
relevant. Her theory of self-defense was then the crucial issue before the trial court. As will be
discussed shortly, the legal requisites of self-defense under prevailing jurisprudence ostensibly
appear inconsistent with the surrounding facts that led to the death of the victim. Hence, his personal
character, especially his past behavior, did not constitute vital evidence at the time.
Fifth, the trial court surely committed no error in not requiring testimony from appellant's children. As
correctly elucidated by the solicitor general, all criminal actions are prosecuted under the direction
and control of the public prosecutor, in whom lies the discretion to determine which witnesses and
evidence are necessary to present.20 As the former further points out, neither the trial court nor the
prosecution prevented appellant from presenting her children as witnesses. Thus, she cannot now
fault the lower court for not requiring them to testify.

Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and
her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life
of her unborn child. Any reversible error as to the trial court's appreciation of these circumstances has
little bearing on the final resolution of the case.

First Legal Issue:

Self-Defense and Defense of a Fetus

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

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While
new in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of
self-defense or, at the least, incomplete self-defense.23 By appreciating evidence that a victim or
defendant is afflicted with the syndrome, foreign courts convey their "understanding of the justifiably
fearful state of mind of a person who has been cyclically abused and controlled over a period of
time."24

A battered woman has been defined as a woman "who is repeatedly subjected to any forceful
physical or psychological behavior by a man in order to coerce her to do something he wants her to
do without concern for her rights. Battered women include wives or women in any form of intimate
relationship with men. Furthermore, in order to be classified as a battered woman, the couple must go
through the battering cycle at least twice. Any woman may find herself in an abusive relationship with
a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered
woman."25

Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about
the home, the family and the female sex role; emotional dependence upon the dominant male; the
tendency to accept responsibility for the batterer's actions; and false hopes that the relationship will
improve.26

More graphically, the battered woman syndrome is characterized by the so-called "cycle of
violence,"27 which has three phases: (1) the tension-building phase; (2) the acute battering incident;
and (3) the tranquil, loving (or, at least, nonviolent) phase. 28

During the tension-building phase, minor battering occurs -- it could be verbal or slight physical
abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through a
show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is that
she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to
prevent the escalation of the violence exhibited by the batterer. This wish, however, proves to be
double-edged, because her "placatory" and passive behavior legitimizes his belief that he has the
right to abuse her in the first place.

However, the techniques adopted by the woman in her effort to placate him are not usually
successful, and the verbal and/or physical abuse worsens. Each partner senses the imminent loss of
control and the growing tension and despair. Exhausted from the persistent stress, the battered
woman soon withdraws emotionally. But the more she becomes emotionally unavailable, the more
the batterer becomes angry, oppressive and abusive. Often, at some unpredictable point, the
violence "spirals out of control" and leads to an acute battering incident. 29

The acute battering incident is said to be characterized by brutality, destructiveness and,

sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable.
During this phase, she has no control; only the batterer may put an end to the violence. Its nature can
be as unpredictable as the time of its explosion, and so are his reasons for ending it. The battered
woman usually realizes that she cannot reason with him, and that resistance would only exacerbate
her condition.

At this stage, she has a sense of detachment from the attack and the terrible pain, although she may
later clearly remember every detail. Her apparent passivity in the face of acute violence may be
rationalized thus: the batterer is almost always much stronger physically, and she knows from her
past painful experience that it is futile to fight back. Acute battering incidents are often very savage
and out of control, such that innocent bystanders or intervenors are likely to get hurt.30

The final phase of the cycle of violence begins when the acute battering incident ends. During
this tranquil period, the couple experience profound relief. On the one hand, the batterer may show
a tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and
tries to make up for it, begging for her forgiveness and promising never to beat her again. On the
other hand, the battered woman also tries to convince herself that the battery will never happen
again; that her partner will change for the better; and that this "good, gentle and caring man" is the
real person whom she loves.

A battered woman usually believes that she is the sole anchor of the emotional stability of the
batterer. Sensing his isolation and despair, she feels responsible for his well-being. The truth, though,
is that the chances of his reforming, or seeking or receiving professional help, are very slim,
especially if she remains with him. Generally, only after she leaves him does he seek professional
help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation that she is most
thoroughly tormented psychologically.

The illusion of absolute interdependency is well-entrenched in a battered woman's psyche. In this

phase, she and her batterer are indeed emotionally dependent on each other -- she for his nurturant
behavior, he for her forgiveness. Underneath this miserable cycle of "tension, violence and
forgiveness," each partner may believe that it is better to die than to be separated. Neither one may
really feel independent, capable of functioning without the other. 31

History of Abuse
in the Present Case

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

"ATTY. TABUCANON

Q How did you describe your marriage with Ben Genosa?

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

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

A He always provoke me in everything, he always slap me and sometimes he pinned me down

on the bed and sometimes beat me.

Q How many times did this happen?

A Several times already.

Q What did you do when these things happen to you?

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

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

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

Q What will happen when he follow you?

A He said he changed, he asked for forgiveness and I was convinced and after that I go to him
and he said 'sorry'.
 Q During those times that you were the recipient of such cruelty and abusive behavior by your
husband, were you able to see a doctor?

A Yes, sir.

Q Who are these doctors?

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

xxx xxx xxx

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

A Yes, sir.

Q Who inflicted these injuries?

A Of course my husband.

Q You mean Ben Genosa?

A Yes, sir.

xxx xxx xxx

[Court] /to the witness

Q How frequent was the alleged cruelty that you said?

A Everytime he got drunk.

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

A Everytime he got drunk.

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

A Three times a week.

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

32
A Not necessarily that he would beat me but sometimes he will just quarrel me."

Referring to his "Out-Patient Chart"33 on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing
bolstered her foregoing testimony on chronic battery in this manner:

"Q So, do you have a summary of those six (6) incidents which are found in the chart of your
clinic?

A Yes, sir.

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

A I did.

Q Will you please read the physical findings together with the dates for the record.

A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and redness
of eye. Attending physician: Dr. Lucero;

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

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

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

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

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

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

A Yes, sir.

Q Did you actually physical examine the accused?

A Yes, sir.

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

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

Q What is meant by furuncle axilla?

A It is secondary of the light infection over the abrasion.

Q What is meant by pain mastitis secondary to trauma?

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

Q So, these are objective physical injuries. Doctor?

xxx xxx xxx

Q Were you able to talk with the patient?

A Yes, sir.

Q What did she tell you?

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

Q You mean, Ben Genosa?

A Yes, sir.

xxx xxx xxx

ATTY. TABUCANON:

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

A As per record, yes.

Q What was the date?

A It was on November 6, 1995.

Q So, did you actually see the accused physically?

A Yes, sir.
Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?

A Yes, sir.

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

A Eight (8) months pregnant.

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

A Yes, sir.

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

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

Q When you said admitted, meaning she was confined?

A Yes, sir.

Q For how many days?

A One day.

Q Where?

A At PHILPHOS Hospital.

xxx xxx xxx

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

What is this all about?

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

Q For what?

A Tension headache.

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

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

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

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

Q You mean problem in her household?

A Probably.

Q Can family trouble cause elevation of blood pressure, Doctor?

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

Q In November 6, 1995, the date of the incident, did you take the blood pressure of the
accused?
 A On November 6, 1995 consultation, the blood pressure was 180/120.

Q Is this considered hypertension?

A Yes, sir, severe.

Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood
pressure?
34
A It was dangerous to the child or to the fetus."

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte,
testified that he had seen the couple quarreling several times; and that on some occasions Marivic
would run to him with bruises, confiding that the injuries were inflicted upon her by Ben.35

Ecel Arano also testified36 that for a number of times she had been asked by Marivic to sleep at the
Genosa house, because the latter feared that Ben would come home drunk and hurt her. On one
occasion that Ecel did sleep over, she was awakened about ten o'clock at night, because the couple
"were very noisy … and I heard something was broken like a vase." Then Marivic came running into
Ecel's room and locked the door. Ben showed up by the window grill atop a chair, scaring them with a
knife.

On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but
they were unable to. They returned to the Genosa home, where they found him already drunk. Again
afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of
drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave.

On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or
heard the couple quarreling.37 Marivic relates in detail the following backdrop of the fateful night when
life was snuffed out of him, showing in the process a vivid picture of his cruelty towards her:

"ATTY. TABUCANON:

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

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

Q This is evening of November 15, 1995?

A Yes, sir.

Q What time did Ben Genosa arrive?

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

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

A Yes, sir.

Q Did you come back to your house?

A Yes, sir.

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

A Bilwang.

Q Is this your house or you are renting?

A Renting.

Q What time were you able to come back in your residence at Bilwang?
A I went back around almost 8:00 o'clock.

Q What happened when you arrived in your residence?

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

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

A Ecel Araño, the one who testified.

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

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

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

A Yes, 8 months.

Q How advance was your pregnancy?

A Eight (8) months.

Q Was the baby subsequently born?

A Yes, sir.

Q What's the name of the baby you were carrying at that time?

A Marie Bianca.

Q What time were you able to meet personally your husband?

A Yes, sir.

Q What time?

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

Q Will you tell this Court what was his disposition?

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

Q What was he yelling all about?

A His usual attitude when he got drunk.

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

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

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

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

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

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

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

Q What else happened after he cut the wire?

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

Q How do you described this bolo?

A 1 1/2 feet.

Q What was the bolo used for usually?

A For chopping meat.

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

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

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

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

Q So when he whirled you, what happened to you?

A I screamed for help and then he left.

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

A Yes, sir.

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

A Outside perhaps to drink more.

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

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.

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

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

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

COURT INTERPRETER:

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

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

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

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER:

(At this juncture the witness started crying).

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

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

COURT INTERPRETER:

(The witness at this juncture is crying intensely).

xxx xxx xxx

ATTY. TABUCANON:

Q Talking of drawer, is this drawer outside your room?

A Outside.

Q In what part of the house?

A Dining.

Q Where were the children during that time?

A My children were already asleep.

Q You mean they were inside the room?

A Yes, sir.

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

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

Q Is it a flexible blade?

A It's a cutter.

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

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

 Q With the same blade?
38
A Yes, sir, that was the object used when he intimidate me."

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in
understanding the psyche of a battered person. She had met with Marivic Genosa for five sessions
totaling about seventeen hours. Based on their talks, the former briefly related the latter's ordeal to
the court a quo as follows:

"Q: What can you say, that you found Marivic as a battered wife? Could you in layman's term
describe to this Court what her life was like as said to you?

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

In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly
put forward, additional supporting evidence as shown below:

"Q In your first encounter with the appellant in this case in 1999, where you talked to her about
three hours, what was the most relevant information did you gather?

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

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

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

xxx xxx xxx

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

A I also heard that from her?

Q You heard that from her?

A Yes, sir.

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

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

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

A She told me about that.

Q Did she inform you in what hotel in Ormoc?

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

Q Several times in that room?

A Yes, sir. What I remember was that there is no problem about being battered, it really
happened.
 Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think that
is the first time that we have this in the Philippines, what is your opinion?

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

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

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

Parenthetically, the credibility of appellant was demonstrated as follows:

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

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

Q What do you mean by that?

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

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

A She was a person who passed the honesty test. Meaning she is a person that I can trust.
That the data that I'm gathering from her are the truth."41

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric
Report,42 which was based on his interview and examination of Marivic Genosa. The Report said that
during the first three years of her marriage to Ben, everything looked good -- the atmosphere was
fine, normal and happy -- until "Ben started to be attracted to other girls and was also enticed in[to]
gambling[,] especially cockfighting. x x x. At the same time Ben was often joining his barkada in
drinking sprees."

The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to
his wife. The Report continued: "At first, it was verbal and emotional abuses but as time passed, he
became physically abusive. Marivic claimed that the viciousness of her husband was progressive
every time he got drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected
that her husband went for a drinking [spree]. They had been married for twelve years[;] and practically
more than eight years, she was battered and maltreated relentlessly and mercilessly by her husband
whenever he was drunk."

Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the
Report, "[s]he also sought the advice and help of close relatives and well-meaning friends in spite of
her feeling ashamed of what was happening to her. But incessant battering became more and more
frequent and more severe. x x x."43

From the totality of evidence presented, there is indeed no doubt in the Court's mind that Appellant
Marivic Genosa was a severely abused person.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman, her state of mind
metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an
ordinary, reasonable person who is evaluating the events immediately surrounding the incident. A
Canadian court has aptly pointed out that expert evidence on the psychological effect of battering on
wives and common law partners are both relevant and necessary. "How can the mental state of the
appellant be appreciated without it? The average member of the public may ask: Why would a
woman put up with this kind of treatment? Why should she continue to live with such a man? How
could she love a partner who beat her to the point of requiring hospitalization? We would expect the
woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a
new life for herself? Such is the reaction of the average person confronted with the so-called 'battered
wife syndrome.'"44

To understand the syndrome properly, however, one's viewpoint should not be drawn from that of an
ordinary, reasonable person. What goes on in the mind of a person who has been subjected to
repeated, severe beatings may not be consistent with -- nay, comprehensible to -- those who have
not been through a similar experience. Expert opinion is essential to clarify and refute common myths
and misconceptions about battered women.45

The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has
had a significant impact in the United States and the United Kingdom on the treatment and
prosecution of cases, in which a battered woman is charged with the killing of her violent partner. The
psychologist explains that the cyclical nature of the violence inflicted upon the battered woman
immobilizes the latter's "ability to act decisively in her own interests, making her feel trapped in the
relationship with no means of escape."46 In her years of research, Dr. Walker found that "the abuse
often escalates at the point of separation and battered women are in greater danger of dying then." 47

Corroborating these research findings, Dra. Dayan said that "the battered woman usually has a very
low opinion of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen
the violence would happen, they usually think that they provoke[d] it, that they were the one[s] who
precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally and even
sexually abusive to them."48

According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an
abusive partner -- poverty, self-blame and guilt arising from the latter's belief that she provoked the
violence, that she has an obligation to keep the family intact at all cost for the sake of their children,
and that she is the only hope for her spouse to change. 49

The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in
suits involving violent family relations, having evaluated "probably ten to twenty thousand" violent
family disputes within the Armed Forces of the Philippines, wherein such cases abounded. As a result
of his experience with domestic violence cases, he became a consultant of the Battered Woman
Office in Quezon City. As such, he got involved in about forty (40) cases of severe domestic violence,
in which the physical abuse on the woman would sometimes even lead to her loss of
consciousness.50

Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in posttraumatic stress
disorder, a form of "anxiety neurosis or neurologic anxietism."51 After being repeatedly and severely
abused, battered persons "may believe that they are essentially helpless, lacking power to change
their situation. x x x [A]cute battering incidents can have the effect of stimulating the development of
coping responses to the trauma at the expense of the victim's ability to muster an active response to
try to escape further trauma. Furthermore, x x x the victim ceases to believe that anything she can do
will have a predictable positive effect."52

A study53 conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that
"even if a person has control over a situation, but believes that she does not, she will be more likely to
respond to that situation with coping responses rather than trying to escape." He said that it was the
cognitive aspect -- the individual's thoughts -- that proved all-important. He referred to this
phenomenon as "learned helplessness." "[T]he truth or facts of a situation turn out to be less
important than the individual's set of beliefs or perceptions concerning the situation. Battered women
don't attempt to leave the battering situation, even when it may seem to outsiders that escape is
possible, because they cannot predict their own safety; they believe that nothing they or anyone else
does will alter their terrible circumstances."54

Thus, just as the battered woman believes that she is somehow responsible for the violent behavior
of her partner, she also believes that he is capable of killing her, and that there is no
escape.55 Battered women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the
relationship.56 Unless a shelter is available, she stays with her husband, not only because she
typically lacks a means of self-support, but also because she fears that if she leaves she would be
found and hurt even more.57

In the instant case, we meticulously scoured the records for specific evidence establishing that
appellant, due to the repeated abuse she had suffered from her spouse over a long period of time,
became afflicted with the battered woman syndrome. We, however, failed to find sufficient evidence
that would support such a conclusion. More specifically, we failed to find ample evidence that would
confirm the presence of the essential characteristics of BWS.
The defense fell short of proving all three phases of the "cycle of violence" supposedly characterizing
the relationship of Ben and Marivic Genosa. No doubt there were acute battering incidents. In relating
to the court a quo how the fatal incident that led to the death of Ben started, Marivic perfectly
described the tension-building phase of the cycle. She was able to explain in adequate detail the
typical characteristics of this stage. However, that single incident does not prove the existence of the
syndrome. In other words, she failed to prove that in at least another battering episode in the past,
she had gone through a similar pattern.

How did the tension between the partners usually arise or build up prior to acute battering? How did
Marivic normally respond to Ben's relatively minor abuses? What means did she employ to try to
prevent the situation from developing into the next (more violent) stage?

Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply
mentioned that she would usually run away to her mother's or father's house;58 that Ben would seek
her out, ask for her forgiveness and promise to change; and that believing his words, she would
return to their common abode.

Did she ever feel that she provoked the violent incidents between her and her spouse? Did she
believe that she was the only hope for Ben to reform? And that she was the sole support of his
emotional stability and well-being? Conversely, how dependent was she on him? Did she feel
helpless and trapped in their relationship? Did both of them regard death as preferable to separation?

In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that
would clearly and fully demonstrate the essential characteristics of the syndrome.

The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they
were able to explain fully, albeit merely theoretically and scientifically, how the personality of the
battered woman usually evolved or deteriorated as a result of repeated and severe beatings inflicted
upon her by her partner or spouse. They corroborated each other's testimonies, which were culled
from their numerous studies of hundreds of actual cases. However, they failed to present in court the
factual experiences and thoughts that appellant had related to them -- if at all -- based on which they
concluded that she had BWS.

We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven in
order to be appreciated. To repeat, the records lack supporting evidence that would establish all the
essentials of the battered woman syndrome as manifested specifically in the case of the Genosas.

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship does not in itself establish the legal right
of the woman to kill her abusive partner. Evidence must still be considered in the context of self-
defense.59

From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS defense
is the state of mind of the battered woman at the time of the offense60 -- she must have actually
feared imminent harm from her batterer and honestly believed in the need to kill him in order to save
her life.

Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face
a real threat on one's life; and the peril sought to be avoided must be imminent and actual, not merely
imaginary.61 Thus, the Revised Penal Code provides the following requisites and effect of self-
defense:62

"Art. 11. Justifying circumstances. -- The following do not incur any criminal liability:

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

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself."

Unlawful aggression is the most essential element of self-defense.63 It presupposes actual, sudden
and unexpected attack -- or an imminent danger thereof -- on the life or safety of a person.64 In the
present case, however, according to the testimony of Marivic herself, there was a sufficient time
interval between the unlawful aggression of Ben and her fatal attack upon him. She had already been
able to withdraw from his violent behavior and escape to their children's bedroom. During that time,
he apparently ceased his attack and went to bed. The reality or even the imminence of the danger he
posed had ended altogether. He was no longer in a position that presented an actual threat on her life
or safety.

Had Ben still been awaiting Marivic when she came out of their children's bedroom -- and based on
past violent incidents, there was a great probability that he would still have pursued her and inflicted
graver harm -- then, the imminence of the real threat upon her life would not have ceased yet. Where
the brutalized person is already suffering from BWS, further evidence of actual physical assault at the
time of the killing is not required. Incidents of domestic battery usually have a predictable pattern. To
require the battered person to await an obvious, deadly attack before she can defend her life "would
amount to sentencing her to 'murder by installment.'"65 Still, impending danger (based on the conduct
of the victim in previous battering episodes) prior to the defendant's use of deadly force must be
shown. Threatening behavior or communication can satisfy the required imminence of
danger.66 Considering such circumstances and the existence of BWS, self-defense may be
appreciated.

We reiterate the principle that aggression, if not continuous, does not warrant self-defense.67 In the
absence of such aggression, there can be no self-defense -- complete or incomplete -- on the part of
the victim.68 Thus, Marivic's killing of Ben was not completely justified under the circumstances.

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other modifying circumstances
that would alter her penalty, we deem it proper to evaluate and appreciate in her favor circumstances
that mitigate her criminal liability. It is a hornbook doctrine that an appeal in a criminal case opens it
wholly for review on any issue, including that which has not been raised by the parties. 69

From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological
Evaluation Report dated November 29, 2000, opined as follows:

"This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic
experienced with her husband constitutes a form of [cumulative] provocation which broke down
her psychological resistance and natural self-control. It is very clear that she developed
heightened sensitivity to sight of impending danger her husband posed continuously. Marivic
truly experienced at the hands of her abuser husband a state of psychological paralysis which
can only be ended by an act of violence on her part." 70

Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of "repetitious pain
taking, repetitious battering, [and] repetitious maltreatment" as well as the severity and the prolonged
administration of the battering is posttraumatic stress disorder.71 Expounding thereon, he said:

"Q What causes the trauma, Mr. Witness?

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

xxx xxx xxx

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

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

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

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

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

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

Q And in chronic cases, Mr. Witness?

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

Answering the questions propounded by the trial judge, the expert witness clarified further:

"Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x his
or her mental capacity?

A Yes, your Honor.

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

A Of course obfuscated."73

In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in
"cumulative provocation which broke down her psychological resistance and natural self-control,"
"psychological paralysis," and "difficulty in concentrating or impairment of memory."

Based on the explanations of the expert witnesses, such manifestations were analogous to an illness
that diminished the exercise by appellant of her will power without, however, depriving her of
consciousness of her acts. There was, thus, a resulting diminution of her freedom of action,
intelligence or intent. Pursuant to paragraphs 9 74 and 1075 of Article 13 of the Revised Penal Code,
this circumstance should be taken in her favor and considered as a mitigating factor. 76

In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an
impulse so powerful as to have naturally produced passion and obfuscation. It has been held that this
state of mind is present when a crime is committed as a result of an uncontrollable burst of passion
provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to overcome
reason.77 To appreciate this circumstance, the following requisites should concur: (1) there is an act,
both unlawful and sufficient to produce such a condition of mind; and (2) this act is not far removed
from the commission of the crime by a considerable length of time, during which the accused might
recover her normal equanimity.78

Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his
being killed by Marivic. He had further threatened to kill her while dragging her by the neck towards a
cabinet in which he had kept a gun. It should also be recalled that she was eight months pregnant at
the time. The attempt on her life was likewise on that of her fetus. 79 His abusive and violent acts, an
aggression which was directed at the lives of both Marivic and her unborn child, naturally produced
passion and obfuscation overcoming her reason. Even though she was able to retreat to a separate
room, her emotional and mental state continued. According to her, she felt her blood pressure rise;
she was filled with feelings of self-pity and of fear that she and her baby were about to die. In a fit of
indignation, she pried open the cabinet drawer where Ben kept a gun, then she took the weapon and
used it to shoot him.

The confluence of these events brings us to the conclusion that there was no considerable period of
time within which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillo's
testimony80 that with "neurotic anxiety" -- a psychological effect on a victim of "overwhelming brutality
[or] trauma" -- the victim relives the beating or trauma as if it were real, although she is not actually
being beaten at the time. She cannot control "re-experiencing the whole thing, the most vicious and
the trauma that she suffered." She thinks "of nothing but the suffering." Such reliving which is beyond
the control of a person under similar circumstances, must have been what Marivic experienced during
the brief time interval and prevented her from recovering her normal equanimity. Accordingly, she
should further be credited with the mitigating circumstance of passion and obfuscation.
It should be clarified that these two circumstances -- psychological paralysis as well as passion and
obfuscation -- did not arise from the same set of facts.

On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery
inflicted by the batterer-spouse upon appellant. That is, the repeated beatings over a period of time
resulted in her psychological paralysis, which was analogous to an illness diminishing the exercise of
her will power without depriving her of consciousness of her acts.

The second circumstance, on the other hand, resulted from the violent aggression he had inflicted on
her prior to the killing. That the incident occurred when she was eight months pregnant with their child
was deemed by her as an attempt not only on her life, but likewise on that of their unborn child. Such
perception naturally produced passion and obfuscation on her part.

Second Legal Issue:

Treachery

There is treachery when one commits any of the crimes against persons by employing means,
methods or forms in the execution thereof without risk to oneself arising from the defense that the
offended party might make.81 In order to qualify an act as treacherous, the circumstances invoked
must be proven as indubitably as the killing itself; they cannot be deduced from mere inferences, or
conjectures, which have no place in the appreciation of evidence. 82 Because of the gravity of the
resulting offense, treachery must be proved as conclusively as the killing itself. 83

Ruling that treachery was present in the instant case, the trial court imposed the penalty of death
upon appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of
Ben had been found lying in bed with an "open, depressed, circular" fracture located at the back of
his head. As to exactly how and when he had been fatally attacked, however, the prosecution failed
to establish indubitably. Only the following testimony of appellant leads us to the events surrounding
his death:

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

COURT:

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

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

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

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER

(At this juncture the witness started crying)

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

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

COURT INTERPRETER

(The witness at this juncture is crying intensely).

xxx xxx xxx

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

A Three (3) inches long and ½ inch wide.

Q It is a flexible blade?

A It's a cutter.

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

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

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

xxx xxx xxx

ATTY. TABUCANON:

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

A Yes, because I smashed him.

Q What happened?

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

Q What else happened?

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

COURT INTERPRETER:

(Upon the answer of the witness getting the pipe and smashed him, the witness at the
same time pointed at the back of her neck or the nape).

ATTY. TABUCANON:

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

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

/to Atty. Tabucanon

Q You shot him?

A Yes, I distorted the drawer."84

The above testimony is insufficient to establish the presence of treachery. There is no showing of the
victim's position relative to appellant's at the time of the shooting. Besides, equally axiomatic is the
rule that when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as
a qualifying circumstance, because the deceased may be said to have been forewarned and to have
anticipated aggression from the assailant.85

Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must have
been consciously and deliberately chosen for the specific purpose of accomplishing the unlawful act
without risk from any defense that might be put up by the party attacked. 86 There is no showing,
though, that the present appellant intentionally chose a specific means of successfully attacking her
husband without any risk to herself from any retaliatory act that he might make. To the contrary, it
appears that the thought of using the gun occurred to her only at about the same moment when she
decided to kill her batterer-spouse. In the absence of any convincing proof that she consciously and
deliberately employed the method by which she committed the crime in order to ensure its execution,
this Court resolves the doubt in her favor.87

Proper Penalty

The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to
death. Since two mitigating circumstances and no aggravating circumstance have been found to have
attended the commission of the offense, the penalty shall be lowered by one (1) degree, pursuant to
Article 64 of paragraph 588 of the same Code.89 The penalty of reclusion temporal in its medium period
is imposable, considering that two mitigating circumstances are to be taken into account in reducing
the penalty by one degree, and no other modifying circumstances were shown to have attended the
commission of the offense.90 Under the Indeterminate Sentence Law, the minimum of the penalty
shall be within the range of that which is next lower in degree -- prision mayor -- and the maximum
shall be within the range of the medium period of reclusion temporal.

Considering all the circumstances of the instant case, we deem it just and proper to impose the
penalty of prision mayor in its minimum period, or six (6) years and one (1) day in prison as minimum;
to reclusion temporal in its medium period, or 14 years 8 months and 1 day as maximum. Noting that
appellant has already served the minimum period, she may now apply for and be released from
detention on parole.91

Epilogue

Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor
simple to analyze and recognize vis-à-vis the given set of facts in the present case. The Court
agonized on how to apply the theory as a modern-day reality. It took great effort beyond the normal
manner in which decisions are made -- on the basis of existing law and jurisprudence applicable to
the proven facts. To give a just and proper resolution of the case, it endeavored to take a good look at
studies conducted here and abroad in order to understand the intricacies of the syndrome and the
distinct personality of the chronically abused person. Certainly, the Court has learned much. And
definitely, the solicitor general and appellant's counsel, Atty. Katrina Legarda, have helped it in such
learning process.

While our hearts empathize with recurrently battered persons, we can only work within the limits of
law, jurisprudence and given facts. We cannot make or invent them. Neither can we amend the
Revised Penal Code. Only Congress, in its wisdom, may do so.

The Court, however, is not discounting the possibility of self-defense arising from the battered woman
syndrome. We now sum up our main points. First, each of the phases of the cycle of violence must be
proven to have characterized at least two battering episodes between the appellant and her intimate
partner. Second, the final acute battering episode preceding the killing of the batterer must have
produced in the battered person's mind an actual fear of an imminent harm from her batterer and an
honest belief that she needed to use force in order to save her life. Third, at the time of the killing, the
batterer must have posed probable -- not necessarily immediate and actual -- grave harm to the
accused, based on the history of violence perpetrated by the former against the latter. Taken
altogether, these circumstances could satisfy the requisites of self-defense. Under the existing facts
of the present case, however, not all of these elements were duly established.

WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED.
However, there being two (2) mitigating circumstances and no aggravating circumstance attending
her commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision
mayor as minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum.

Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon
her, the director of the Bureau of Corrections may immediately RELEASE her from custody upon due
determination that she is eligible for parole, unless she is being held for some other lawful cause.
Costs de oficio.

SO ORDERED.
DEFENSE OF RELATIVES

G.R. No. 177751 December 14, 2011

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
FLORENCIO AGACER, EDDIE AGACER, ELYNOR AGACER, FRANKLIN AGACER and
ERIC* AGACER, Appellants.

DECISION

DEL CASTILLO, J.:

This case involves a man who was killed by his own relatives. Convicted for the crime of murder by
the lower courts, the indicted relatives are now before us assailing their guilty verdict.

Factual Antecedents

This is an appeal from the November 17, 2006 Decision 1 of the Court of Appeals (CA) in CA-G.R.
CR-H.C. No. 01543, affirming with modification the August 7, 2001 Decision 2 of the Regional Trial
Court, Branch 8, Aparri, Cagayan which found appellants Florencio Agacer (Florencio), Franklin
Agacer (Franklin), Elynor Agacer (Elynor), Eric Agacer (Eric) and Eddie Agacer (Eddie), guilty beyond
reasonable doubt of the crime of murder for the killing of Cesario Agacer (Cesario).

As mentioned, all the appellants were related to Cesario. Florencio was Cesario’s nephew and is the
father of Franklin while the brothers Elynor, Eric and Eddie are his nephews.

On March 2, 1999, an Information3 for Murder was filed against the five appellants, the accusatory
portion of which reads as follows:

That on or about April 2, 1998, in the municipality of Sta. Ana, Province of Cagayan, and within the
jurisdiction [of] this Honorable Court, the above-named accused, armed with a long firearm, a bow
and arrow, a bolo and stones, with intent to kill, with evident premeditation and with treachery,
conspiring together and helping one another, did then and there wilfully, unlawfully and feloniously
assault, attack, stone and shoot one Cesario Agacer, inflicting upon the latter [bruises] and multiple
gunshot wounds in his body which caused his death.

That the killing was aggravated by the use of an unlicensed firearm.

CONTRARY TO LAW.4

On October 14, 1999, Florencio, Elynor, Franklin and Eric entered separate pleas of "not guilty"
during their arraignment.5 On January 11, 2000, Eddie likewise pleaded "not guilty".6 Thereafter, trial
ensued.

Version of the Prosecution

The prosecution’s version of the events is as follows:

Cesario was a 55-year old farmer and owner of a ricefield situated in Dungeg, Santa Ana, Cagayan.
On April 2, 1998, at around 9:00 a.m., he was clearing a section of his farm and preparing the
beddings for the rice seedlings intended for the coming planting season. Farm laborers Genesis
Delantar (Genesis), his brother Andy, Rafael Morgado and brothers Roden (Roden) and Ric (Ric)
Vallejo were nearby in a separate section of the same ricefield harvesting Cesario’s palay.

According to prosecution witnesses Genesis and Roden, it was at that moment while Cesario was
tending to his farm when appellants suddenly emerged from a nearby banana plantation and
surrounded Cesario. Visibly intimidated, Cesario moved backwards and retreated to where the other
farm laborers were working. However, Franklin set afire the rice straws that covered Cesario’s rice
seedlings. This prompted Cesario to return to put out the fire and save his rice seedlings. At this
point, Franklin and Eric started throwing stones at Cesario which forced the latter to retreat again.
Thereafter, Florencio, while standing side by side with Eric, signaled Cesario to come closer. Cesario
obliged but when he was just around five meters away from the group, Eddie suddenly pulled out a
gun concealed inside a sack and, without warning, shot Cesario hitting him in the left portion of his
chest. Almost simultaneously, Elynor took aim at Cesario with his bow and arrow but missed his
mark. As Cesario fell, appellants fled towards the irrigation canal, where another gunshot rang.
Thereafter, a short firearm was thrown from where the appellants ran towards the direction of
Cesario’s fallen body. Appellants then immediately left the scene of the crime onboard a hand tractor
and a tricycle.

After these events unfolded, Genesis and the other farm laborers scampered away in different
directions. Genesis then reached Barangay Capanikian and informed Cesario’s son, Neldison Agacer
(Neldison), of the death of his father. At around 3:00 p.m., Cesario’s friends in said barangay went to
the scene of the crime and retrieved his corpse. During the autopsy, a total of eight entrance wounds
were found, mostly on the chest of Cesario’s cadaver. According to the Medico-Legal Officer, the fatal
gunshot wounds were inflicted by the use of a firearm capable of discharging several slugs
simultaneously.

Version of the Defense

The appellants denied the accusations against them and claimed that Florencio only acted in self-
defense and in defense of relatives. As proof, appellants presented Florencio who testified that on
April 2, 1998, he proceeded to Dungeg, Sta. Ana, Cagayan, from his residence in Merde, also in Sta.
Ana, Cagayan, to prepare seed beddings in the ricefield over which he and his uncle Cesario had an
existing dispute. At around 8:00 a.m., he claimed that Cesario attempted to prevent him from
preparing the seed beds. When Florencio persisted and argued that he inherited the land from his
father, Cesario departed through a cogonal area. Moments later, Cesario returned and shouted at
him not to continue working on the land. At that time, Florencio noticed that Cesario was holding an
object. Suspecting that Cesario may be armed, he shouted to Eric, Franklin, Eddie and Elynor, who
had just arrived, to run away. The four heeded his warning and scampered in different directions.
Cesario then chased Florencio who ran and jumped into the irrigation canal to hide in the tall cogon
grasses. However, Cesario was not deterred and continued to search for him. When Florencio saw
that Cesario was already close, he suddenly grabbed Cesario’s buckshot gun and successfully
disarmed him. Thereupon, Cesario drew another firearm and shot Florencio several times. As
Cesario was shooting him, Florencio also fired the gun he earlier grabbed from Cesario and hit the
latter. Finding out that he too was hit in the arm, he shouted to his nephews for help. They responded
by taking him to a hospital for treatment. On April 16, 1998, he went to the police to surrender.

Elynor and Eddie corroborated this version in their respective testimonies. 7

Ruling of the Trial Court

The trial court found the prosecution’s evidence sufficient to prove

appellants’ guilt beyond reasonable doubt. It held that appellants acted in conspiracy in inflicting upon
Cesario, in a treacherous manner, multiple gunshot wounds. However, the trial court did not
appreciate evident premeditation as a qualifying aggravating circumstance for failure to establish its
elements as clearly as the criminal act itself. It also did not consider as aggravating circumstance the
use of an unlicensed firearm since the firearm used in the killing was not presented in evidence.

The dispositive portion of the trial court’s Decision8 of August 7, 2001, reads:

WHEREFORE, the Court finds all the accused FLORENCIO AGACER, EDDIE AGACER, ELYNOR
AGACER, FRANKLIN AGACER and ERIC AGACER GUILTY beyond reasonable doubt of the crime
of MURDER qualified [by] treachery and hereby sentence[s] them to:

1. suffer the penalty of reclusion perpetua with all the accessory penalties;

2. indemnify the heirs of the victim, the amount of ₱75,000.00 as death indemnity; the amount
of ₱40,000.00 as actual damages and the amount of ₱30,000.00 as and by way of Attorney’s
fees.

3. pay the costs of litigation.

SO ORDERED.9

Appellants filed a Notice of Appeal,10 which was approved by the trial court in its Order11 of August
17, 2001. Pursuant thereto, the records of the case were elevated to this Court. However, in view of
the Court’s ruling in People v. Mateo12 allowing an intermediate review by the CA where the penalty
involved is death, reclusion perpetua as in this case, or life imprisonment, the case was transferred to
said court for appropriate action and disposition.13

Ruling of the Court of Appeals

The CA affirmed the ruling of the trial court in all respects. It also awarded moral damages pursuant
to the rule laid down in People v. Dela Cruz14 and People v. Panela.15 The dispositive portion of the
November 17, 2006 Decision16 of the CA reads as follows:

WHEREFORE, premises considered, judgment is hereby rendered DENYING the instant appeal, and
accordingly AFFIRMING in toto the herein impugned August 7, 2001 Decision of the RTC, Branch 08,
of Aparri, Cagayan. Additionally, the amount of P50,000.00 is hereby awarded in favor of Cesario
Agacer’s surviving heirs as and by way of moral damages pursuant to the doctrine in the cases of
Dela Cruz and Panela, as heretofore stated.

SO ORDERED.17

Hence, the present appeal.

Assignment of Errors

In their Brief,18 appellants assigned the following errors:

THE LOWER COURT ERRED IN FINDING THAT CONSPIRACY EXISTED [AMONG] THE HEREIN
ACCUSED-APPELLANTS IN THE KILLING OF CESARIO AGACER.

II

THE LOWER COURT LIKEWISE ERRED IN FINDING THAT

TREACHERY AS A QUALIFYING CIRCUMSTANCE ATTENDED THE COMMISSION OF THE

CRIME.

III

THE LOWER COURT FINALLY ERRED IN FINDING THAT THE ACCUSED-APPELLANTS’ GUILT
HAS BEEN PROVED BEYOND REASONABLE DOUBT.19

Appellants contend that both lower courts erred in finding that they conspired to kill Cesario. They
argue that there was no evidence sufficient to establish their intentional participation in the crime to
achieve a common purpose. Thus, they claim that the criminal culpability arising from their acts, even
if the same were all directed solely against one victim, is individual and not collective. Put differently,
each of them is liable only for his own acts.

Appellants also contend that treachery did not attend the commission of the crime. They assert that
treachery cannot be appreciated when an altercation precedes the killing. Here, Cesario already had
a previous heated altercation with Florencio. Appellants aver that Cesario had only himself to blame
for obliging when Florencio summoned him to come near considering that they just had a heated
argument. According to them, Cesario literally courted danger by approaching Florencio instead of
running away from him.

Lastly, appellants posit that they cannot be held guilty of murder since the qualifying circumstance of
treachery was not alleged with clarity nor specified in the Information as required by Sections 8 and 9,
Rule 110 of the Rules of Court.

In its Brief,20 the People of the Philippines, through the Office of the Solicitor General (OSG)
maintains that there was conspiracy among the appellants as shown by their collective acts before,
during, and after the perpetration of the crime. Their specific acts are in fact indicative of a common
design and intent to ensure the commission of the crime. 21 The OSG also belies the assertion of the
appellants that treachery does not exist in this case. It insists that their attack on Cesario was sudden
and unexpected, thereby depriving him of a chance to defend himself and ensuring its commission
without risk to the appellants and without the slightest provocation on the part of the victim. 22

Our Ruling

The appeal is unmeritorious.

Conspiracy was sufficiently established

"Conspiracy exists when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it."23 In conspiracy, it is not necessary to adduce direct evidence of a
previous agreement to commit a crime.24 It "may be shown through circumstantial evidence, deduced
from the mode and manner in which the offense was perpetrated, or inferred from the acts of the
accused themselves when such lead to a joint purpose and design, concerted action, and community
of interest."25 Proof of a previous agreement and decision to commit the crime is not essential but the
fact that the malefactors acted in unison pursuant to the same objective suffices. 26

Here, while there is no proof of any previous agreement among appellants to commit the crime and
while it was established during trial that Eddie alone shot Cesario, the acts of all appellants before,
during and after the incident establish the existence of conspiracy to kill Cesario beyond reasonable
doubt. First, all of them emerged at the same time from a banana plantation beside the ricefield.
Second, they surprised Cesario by immediately surrounding him. Third, all of them were armed at the
time of the incident. Eddie had a shotgun concealed in a sack, Florencio was armed with a bolo,
Elynor had a bow and arrow, while Eric and Franklin had stones in their hands. Fourth, Eric and
Franklin struck Cesario with stones moments before the shooting. Fifth, Eddie immediately shot
Cesario at close range while the latter was approaching the group of appellants upon being
summoned by Florencio. Sixth, Florencio, Franklin, Eric and Elynor stood just a meter away from
Eddie when he shot Cesario, but did not do anything to stop or dissuade Eddie from the assault.
Seventh, after Cesario was shot, all appellants departed from the scene of the crime together.

Undoubtedly, the acts of the assailants constitute proof of their unanimity in design, intent and
execution.27 They "performed specific acts with closeness and coordination as to unmistakably
indicate a common purpose and design"28 to ensure the death of Cesario. We thus uphold the lower
courts’ finding that appellants conspired to commit the crime of murder against Cesario.

Having established conspiracy, appellants’ assertion that each of them can only be made liable for his
own acts deserves no merit. Evidence as to who among the appellants delivered the fatal blow is
therefore no longer indispensable since in conspiracy, a person may be convicted for the criminal act
of another.29 In a conspiracy, the act of one is deemed the act of all. 30

Essence of Treachery; Elements

We are also unimpressed with appellants’ contention that both the trial and appellate courts erred in
ruling that treachery qualified the killing of Cesario to murder. They maintain that since the attack on
Cesario was frontal, there was therefore no element of surprise on the victim or suddenness of the
assault that characterizes treachery.

"There is treachery when the offender commits any of the crimes against the person, employing
means, methods or forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from any defense which the offended party might
make."31 Two conditions must concur for treachery to be appreciated. First, is the employment of
means of execution that gives the person attacked no opportunity to defend himself or to retaliate.
Second, the means of execution was deliberate or consciously adopted. 32 "The essence of treachery
is the sudden attack by an aggressor without the slightest provocation on the part of the victim,
depriving the latter of any real chance to defend himself, thereby ensuring the commission of the
crime without risk to the aggressor." 33

In this case, treachery is evident from the same circumstances we have already discussed above.
From the facts, Cesario could not have been aware that he would be surrounded, attacked and killed
by the appellants who were all related to him. He could not have also been aware that Eddie had a
shotgun concealed in a sack because if he was, he would not have casually approached Florencio
when the latter summoned him. Unfortunately, while Cesario was advancing towards Florencio, Eddie
shot him at close range without any warning whatsoever. Evidently, the crime was committed in a
manner that there was no opportunity for Cesario to defend himself. Also, the mode of attack did not
spring from the unexpected turn of events but was clearly thought of by the appellants. Hence, it no
longer matters that the assault was frontal since its swiftness and unexpectedness deprived Cesario
of a chance to repel it or offer any resistance in defense of his person. 34

Appellants’ contention that treachery was not alleged with certainty in the Information is also devoid of
merit. In People v. Villacorta35 the Court appreciated treachery as an aggravating circumstance, it
having been alleged in the Information and proved during trial that the "x x x accused, armed with a
sharpened bamboo stick, with intent to kill, treachery and evident premeditation, did then and there
willfully and feloniously attack, assault and stab with the said weapon one DANILO SALVADOR
CRUZ x x x."

Similarly, we hold that treachery was sufficiently alleged in the Information when it reads, viz:
x x x the above-name[d] accused, armed with a long firearm, a bow and arrow, a bolo and stones,
with intent to kill, with evident premeditation and with treachery, conspiring together and helping one
another, did then and there willfully, unlawfully and feloniously assault, attack, stone and shoot one
Cesario Agacer, inflicting upon the latter [bruises] and multiple gunshot wounds in his body which
caused his death.36 (Emphasis supplied.)

"Well-settled is the rule that when x x x treachery x x x is present and alleged in the Information, it
qualifies the killing and raises it to the category of murder."37

Appellants failed to discharge their burden to prove Florencio’s claim that he acted in self-defense
and in defense of relatives.

Florencio admits that he shot Cesario but invokes defense of himself and of his relatives to escape
criminal liability.

The Court is not convinced.

While it is the burden of the prosecution to establish the guilt of the accused beyond reasonable
doubt, this burden shifts when the accused admits the killing and pleads self-defense by way of
justification. It therefore becomes vital for the accused to show clear and convincing evidence that he
acted in self-defense. In so doing, he must rely on the strength of his own evidence and not on the
weakness of the prosecution’s evidence.38

The accused must also prove the following elements of self-defense: (1) there was unlawful
aggression on the part of the victim; (2) there was reasonable necessity of the means employed to
prevent or repel the attack; and (3) the lack of sufficient provocation on the part of the person
defending himself.39 In the justifying circumstance of self-defense, unlawful aggression is a condition
sine qua non.40 Self-defense, complete or incomplete, cannot be considered a justification, unless the
victim commits an unlawful aggression against the person defending himself. 41

Here, Florencio failed to prove that he defended himself against the unlawful aggression of Cesario.
He failed to present any evidence to substantiate his claim that there was an actual or imminent peril
to his life or limb. Aside from his unreliable and self-serving claim, there is no proof that Cesario
assaulted and shot him with a firearm during their struggle or, if at all, that there was indeed a
struggle between them. On the other hand, the separate testimonies of prosecution witnesses
Genesis and Roden negate Florencio’s claim of unlawful aggression. The testimonies of these
witnesses established that it was the appellants who emerged from a nearby banana plantation; that
they surrounded Cesario and set to fire the rice straws covering his rice seedlings; that appellants
were armed with different kinds of weapons, while Cesario was not; that Franklin and Elynor cast
stones upon Cesario; and, that the one who pulled a gun from a sack and shot Cesario was Eddie,
not Florencio. We thus hold that if there was unlawful aggression here, it came from appellants’ end
and not from Cesario. Hence, there being no unlawful aggression on the part of Cesario, Florencio’s
claim of self-defense must fail.

Another basis for appellants’ conviction is the finding of the medico-legal expert that the cause of
Cesario’s death was multiple gunshot wounds found mostly at the "infero-lateral portion of the anterior
chest, right side." This corroborates the testimonies of Genesis and Roden that Cesario was shot in
his chest. These dovetailing findings of the medico-legal expert and the eyewitness accounts of
Genesis and Roden also deserve more credence than the unsubstantiated claim of self-defense of
Florencio, who, interestingly, gave contradictory testimony. Florencio claimed that he could not see
the gun used by Cesario in shooting him as tall cogonal grass obstructed his view, yet he could
clearly recall that he saw the bullet-riddled Cesario fall.42 These contradictory statements of Florencio
all the more convince us to believe the testimonies of prosecution witnesses that no exchange of
gunfire actually transpired between Cesario and Florencio. Rather, it was only Eddie who wielded a
gun and shot Cesario.1avvphi1

Florencio also invokes the justifying circumstance of defense of relatives, which has three elements,
to wit, (1) there was unlawful aggression on the part of the victim; (2) there was reasonable necessity
of the means employed to prevent or repel it; and (3) in case of provocation given by the person
being attacked, the person making defense had no part therein. 43 Like in the case of self-defense,
unlawful aggression is also an indispensable element in defense of relative. As discussed, there is no
unlawful aggression on the part of Cesario. Hence, Florencio’s reliance on this justifying circumstance
is likewise unavailing.

Similarly, Florencio’s subsequent presentation of himself at the police station cannot be considered
as a "voluntary surrender" which would mitigate the penalty imposed. "A surrender to be voluntary
must be spontaneous, showing the intent of the accused to submit himself unconditionally to the
authorities either because (a) he acknowledges his guilt or (b) he wishes to save them the trouble and
expense necessarily incurred in his search and capture." 44 Here, Florencio cannot be considered to
have surrendered voluntarily since his act did not emanate from a natural impulse to admit the killing
of Cesario or to save the police officers the effort and expense that would be incurred in his search
and incarceration. Although he submitted a medico-legal certificate purportedly to show that his
injuries prevented him from immediately surrendering to the authorities, same, however, does not
certify as to the period of his incapacity or the period during which he required medical attendance.
Thus, there can be no explanation why he surrendered only on April 16, 1998 or 14 days after the
commission of the crime. To us, Florencio’s surrender was a mere afterthought undeserving of any
consideration. Indeed, the failure of Florencio to immediately surrender militates against his claim that
he killed Cesario in self-defense and in defense of relatives since an innocent person will not hesitate
to take the prompt and necessary action to exonerate himself of the crime imputed to him.

All told, we find no reason to disturb the conclusion of the trial court, as affirmed by the CA. The
testimonies of the eyewitnesses presented by the prosecution were given in a clear, natural and
spontaneous manner. Their positive identification of the appellants as the persons responsible for the
death of Cesario has been clearly, categorically and consistently established on record. Moreover, we
note that no evidence was presented to establish that these eyewitnesses harbored any ill-will against
the appellants or that they have reasons to fabricate their testimonies. 45 These kinds of testimonies
are accepted as true for being consistent with the natural order of events, human nature and the
presumption of good faith.46

The Proper Penalty

Under Article 248 of the Revised Penal Code, the penalty for the crime of murder is reclusion
perpetua to death. As correctly imposed by the trial court and as affirmed by the CA, appellants must
suffer the prison term of reclusion perpetua, the lower of the said two indivisible penalties, due to the
absence of an aggravating circumstance attending the commission of the crime.

The Civil Liability

For the victim’s death resulting from the crime, the heirs are entitled to the following awards: (1) civil
indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral
damages; (4) exemplary damages; and (5) temperate damages. 47

Civil indemnity in the amount of ₱75,000.00 is mandatory and is granted without need of evidence
other than the commission of the crime.48 Moral damages in the sum of ₱50,000.00 shall be awarded
despite the absence of proof of mental and emotional suffering of the victim’s heirs. 49 "As borne out
by human nature and experience, a violent death invariably and necessarily brings about emotional
pain and anguish on the part of the victim’s family."50 Also under Article 2230 of the Civil Code,
exemplary damages may be imposed when the crime was committed with one or more aggravating
circumstances, like treachery,51 as in this case. Thus, the award of ₱30,000.00 for exemplary
damages is in order.52

As regards actual damages, the son of Cesario, Neldison, testified that the sum of ₱40,000.00 was
spent for the coffin of his father but was unable to present receipts to substantiate such claim. Where
the amount of actual damages for funeral expenses cannot be ascertained due to the absence of
receipts to prove them, temperate damages in the sum of ₱25,000.00 may be granted, as it is hereby
granted, in lieu thereof.53 "Under Article 2224 of the Civil Code, temperate damages may be
recovered as it cannot be denied that the heirs of the victim suffered pecuniary loss although the
exact amount was not proved."54

The heirs of Cesario are also entitled to an interest on all the amounts of damages we have awarded
at the legal rate of 6% from the date of finality of this Decision until fully paid. 55

WHEREFORE, the Court AFFIRMS the November 17, 2006 Decision of the Court of Appeals in CA-
G.R. CR-H.C. No. 01543 which affirmed the August 7, 2001 Decision of the Regional Trial Court,
Branch 8, Aparri, Cagayan, finding appellants Florencio, Franklin, Elynor, Eddie and Eric, all
surnamed Agacer, guilty beyond reasonable doubt of the crime of murder, with the following
modifications:

(1) actual damages is DELETED;

(2) the appellants are ORDERED to pay the heirs of Cesario Agacer ₱25,000.00 as temperate
damages; and
 (3) the appellants are ORDERED to pay the heirs of Cesario Agacer interest at the legal rate of
six percent (6%) per annum on all the amounts of damages awarded, commencing from the
date of finality of this Decision until fully paid.

Costs against the appellants.

SO ORDERED.
DEFENSE OF STRANGERS

G.R. No. 129875 September 30, 2005

JOVITO CABUSLAY, Petitioners,

vs.
PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN (Third Division), Respondent.

DECISION

Tinga, J.:

Assailed in this petition for review1 under Rule 45 of the 1997 Rules of Civil Procedure is
the Decision2 dated 25 June 1997 of the Sandiganbayan in Criminal Case No. 19586 finding Jovito
Cabuslay, petitioner herein, guilty beyond reasonable doubt of the crime of homicide and sentencing
him as follows:

WHEREFORE, accused Celso G. Regencia, Rosello Canoy, Nilo Montebon and Gerry Cane are
ACQUITTED on reasonable doubt. Accused Jovito Cabuslay is found GUILTY beyond reasonable
doubt of the crime of homicide and is sentenced to an indeterminate penalty of imprisonment of Ten
(10) years and One (1) Day of prision mayor as minimum, to Fourteen (14) Years, Eight (8) Months
and One (1) Day of Reclusion Temporal, as maximum, with all the accessory penalties provided for
by law, and to indemnify the heirs of Pacquito Umas-as in the amount of Fifty Thousand Pesos
(₱50,000.00) for actual damages and Fifty Thousand Pesos (₱50,000.00) for moral damages, and to
pay the costs.

SO ORDERED.3

In an Information4 dated 10 August 1993, petitioner SPO2 Jovito Luna Cabuslay, Senior Inspector
Celso Gomera Regencia, SPO4 Rosello Rodriguez Canoy, C2C Nilo Rico Montebon and C2C Gerry
Orillaneda Cane were charged with murder, committed as follows:

That on or about August 5, 1992, in Kauswagan, Lanao del Norte, Philippines, within the jurisdiction
of this Honorable Court, the said accused, SENIOR INSPECTOR CELSO G. REGENCIA, SPO4
ROSELLO CANOY, SPO2 JOVITO CABUSLAY, C2C NILO MONTEBON AND C2C GERRY CANE,
all public officers, being then members of the Philippine National Police assigned at the PNP
Provincial Headquarters of Lanao del Norte, acting in the capacities aforesaid and conspiring,
confederating and helping one another, while manning a

mobile checkpoint at Libertad, Kauswagan, Lanao del Norte, thus committing the offense in relation to
office, and with intent to kill, did then and there wilfully, unlawfully, feloniously and treacherously shoot
PAQUITO UMAS-AS, with their firearms, thereby inflicting mortal wounds upon the latter which
caused his instantaneous death.5

On arraignment, petitioner and his co-accused all pleaded not guilty. Forthwith, trial ensued with the
prosecution presenting as witnesses Dr. Tammy Uy, Bernabe Purificacion Arenga, Leoncio Tagapulot
Zaragosa and Generoso Caayao Umas-as.

The prosecution presented evidence proving the following as facts:

Paquito Umas-as, 34, was one of the four children of Generoso Umas-as of Bulua, Cagayan de Oro
City. Still single, Paquito earned a living as a collector of payments for assorted articles such as
jackets, mats, thermos and plates that he sold on credit. Paquito collected as much as ₱70,000.00 for
a period of four months and the net profit of such collections was divided equally between him and his
employer. 6

In collecting payments, Paquito used a motorcycle he bought on credit from his employer. 7 His
collection brought him to such places as Manticao, Iligan and Kolambogan.8 He rented a house in
Iligan City but every fifteenth (15 th) day of the month, Paquito would go home to his family to give
them a sack of rice.9

At around 8:30 in the morning of 5 August 1992, Leoncio Tagapulot Zaragosa, a refrigeration
technician helper and resident of Roosevelt Street, Iligan City, was conversing with Felix
Lauriana10 near the school building in Lapayan, Libertad, Kauswagan, Lanao del Norte when a
Hammer (Hummer) truck parked in front of them.11 Four policemen alighted, followed by a driver. The
police thereafter halted the collector who was riding a motorcycle from Lapayan. The collector was
wearing a blue denim jacket with folded sleeves and blue denim pants. 12
The police asked the collector to show his identification card (ID). The collector took the ID out of his
left pocket and when it reached the "front man," one of the policemen, who Zaragosa later verified as
the petitioner, opened fire at the collector whose right hand was then raised. The four other policemen
meanwhile had their firearms pointed at the collector. 13

Petitioner, who was four meters away from the collector, consumed the entire magazine of his M-16
armalite in firing at him. The collector fell to the ground and was still moving when the police placed
him on board a vehicle and brought him to Kolambugan. 14 One of the policemen rode on the
collector’s motorcycle and likewise headed for Kolambugan.15

Upon the request of Pedro P. Legaspi, barangay captain of Bulua, Cagayan de Oro City,16 NBI
forensic chemist Bernabe P. Arenga examined the victim’s body, later identified as Paquito Umas-as,
on 10 August 1992 to determine the presence of gunpowder nitrates on his hands. Arenga’s report
revealed that the victim was negative for gunpowder nitrates. 17 Arenga opined that on the average,
nitrates would be lost within a seventy-two (72)-hour period; that there had been instances when the
substance would remain on a living person up to nine days; that nitrates could not penetrate rubber
gloves; that no amount of washing can remove the nitrates; and that even the application of formalin
does not affect the presence of nitrates in the hands of a person. 18

On 11 August 1992, Dr. Tammy Uy, a medico-legal officer of the NBI in Cagayan de Oro City,
conducted a post-mortem examination on the body of Paquito Umas-as. At the time of examination,
the victim’s body had already been cleaned and embalmed. Dr. Uy’s examination disclosed that the
cause of death was severe hemorrhage secondary to multiple gunshot wounds. There were eight (8)
gunshot wounds and each wound was considered fatal. 19

To prove damages, Generoso Umas-as testified that he lost consciousness upon learning of the
death of his son Paquito. Paquito’s family spent ₱8,000.00 for the wake and ₱10,000.00 for his burial.
Paquito had left his father ₱12,000.00 to pay for some appliances the former had bought; but the
latter, to underwrite funeral expenses, still had to sell his land for ₱100,000.00 only ₱25,000.00 of
which had been paid in advance by the buyer. However, Generoso could not remember where he
placed the receipts for the wake and burial expenses.20

The defense presented a different version of the commission of the crime. Petitioner presented as
witnesses Julmunier Akbar Jubail, Celso Gomera Regencia and Jovito Luna Cabuslay.

Police Superintendent Julmunier A. Jubail, Provincial Director of the Philippine National Police (PNP),
Lanao del Norte Command stated that he had received a reliable intelligence report of a plot to
assassinate the Mayor and Vice-Mayor of Kauswagan, Lanao del Norte and Governor Abalos and his
family. In response to the intelligence report, he dispatched a team of PNP personnel to conduct
mobile checkpoints along the national highways in several municipalities and to check on people who
would possibly carry out the plot. Jubail claims that the intelligence report was proven accurate after a
few months because the Vice-Mayor of Kauswagan was killed in Samborong, Linamon and in
December of the same year, Governor Abalos was assassinated in Iligan City.21

The team headed by Senior Inspector Celso G. Regencia included SPO4 Rosello Canoy, SPO2
Jovito Cabuslay, C2C Nilo Montebon and C2C Gerry Cane. Their area of responsibility consisted of
the twenty-two (22) municipalities of Lanao del Norte. In full military outfit, save for Canoy as he was
assigned to the Intelligence Operatives Command, the men established a mobile checkpoint on 5
August 1992 at the national highway, Barangay Libertad, Kauswagan, Lanao del Norte for the
purpose of intercepting armed men who intend to carry out the assassination plot. 22

At about 8:30 in the morning, a man riding on a red Honda motorcycle 23 going to the direction of
Pagadian City approached the mobile checkpoint. The motorcycle rider was allegedly wearing a black
bonnet, sunglasses, sweatshirt and gloves that covered the half portion of his fingers. 24

Regencia testified that he signaled the motorcycle rider to stop at the right side of the road. He asked
for the identification card of the motorcycle rider who pretended to reach for his wallet, but instead
pulled out a gun. He heard a shot and his thigh went numb. As he rolled to the ground, he heard a
volley of gunshots after which petitioner approached him. Regencia then approached the motorcyclist
and removed his bonnet to be able to identify him. Regencia later found out that the motorcyle rider
was shot by petitioner. 25

Regencia ordered his men to load the motorcycle rider to the truck. The victim later identified as
Paquito Umas-as was still alive when he was loaded on the hummer vehicle to be brought to a
hospital, but was pronounced dead on arrival by Dr. Caga, the attending physician. Regencia then
asked that he be given first-aid treatment for the wounds he sustained. He thereafter turned over the
rider’s motorcycle, sunglasses and revolver to the police station at Kauswagan. And after bringing the
victim’s body to a funeral home in Kolambugan, he proceeded to Baroy General Hospital where his
wounds were treated by a certain Dr. Fabin.26

To prove that he was wounded during the incident, Regencia showed to the court a quo the scars
caused by the gunshot wounds. There were three scars, one of which was the entry of the bullet and
the other two were splinter wounds. He said that the bullet used was the kind that splinters upon
hitting an object. He presented a medical certificate under the signature of Dr. Demterio U. Opamen,
Jr.27

For his defense, petitioner confirmed Regencia’s testimony that the latter had directed an
approaching motorcyclist to stop at the right side of the highway. He heard Regencia ask the
motorcycle rider in Visayan dialect to show his identification card. Cabuslay then saw Paquito Umas-
as shoot Celso Regencia. This and his belief that he was the next target prompted him to shoot the
motorcycle rider with his M-16.28

Police Superintendent Jubail was immediately informed of the incident and on the basis of Regencia’s
account, he sent out a "Spot Report"29 to inform Recon 9 and 13. The report is couched as follows:

"SPOT REPORT x x x CMM SPO2 JOVITO CABUSLAY CMM INSP REGENCIA’S BACK-UP OPEN
FIRE (sic) HITTING AND FATTALY (sic) WOUNDING SAID UNIDENT(IFIED) PERSON WWITH (sic)
MULTIPLE GUNSHOT WOUNDS IN HIS BODY AND DIED ON THE SPOT PD RESPONDING PNP
ELEMETS RECOVERED FROM THE VICTIM’S BODY ALFA CAL. 38 REVOLVER SMITH AND
WESSON (HM) SN 236701 WITH ONE (1) EMPTY SHELL AND 5 UNSPENT AMMO x x x "

The incident found its way to the police blotter of the police station of Kauswagan, Lanao del
Norte.30 It is embodied in a Certification31 signed by Inspector Fulgencio dela Pena Raguine, Chief of
Police, issued at the request of Atty. Arthur Abundiente for trial purposes and formulated in this wise:

Police Blotter Page Nr. 496-Entry Nr. 9187 & 9188=

050810H Aug 1992 – SPO3 Nestor S Ortiz, Intel NOR this station, left stn with elements from Lanao
del Norte PNPC under INSPECTOR CELSO G REGENCIA PNP and proceeded to Libertad,
Kauswagan, LN to follow-up suspects allegedly hired for killing Mpl Mayor Myron B. Rico of Kaus, LN.

050835H Aug 1992 – SPO3 Nestor Ortiz PNP returned station informed that suspects were
intercepted at Libertad, Kaus, LN but when confronted by the PNP team, fired and shot INSPECTOR
CELSO G REGENCIA PNP using cal. 38 revolber (sic) (Homemade) hitting on his right thigh
prompting SPO3 Cabustay (sic), fired back to the suspect hitting at the chest causing the
instantaneous death of the suspect. One cal. 38 revolber (sic) (Homemade) with 5 live ammos and
one empty shell at the chamber, one rayban (sunglass) and one motorcycle (Honda-Camel backtype)
color red with out plate Nr.

Police Blotter Page Nr. 497- Entry Nr.9191=

081240H Aug 1992 – Romeo Umas-as, 42 years old x x x.

Police Blotter Page Nr. 501-Entry Nr.9228=

251315H Aug 1992 – Impounded Honda Motorcycle x x x.

Police Blotter Page Nr. 508-Entry Nr. 9100=

021130H Oct 1992 – COP Bartolini RD got the one deposited rev. cal. 38 SW S#236701 w/ (4) four
live ammo and one empty shell past 30th day of Sep 92 for NBI examination at Cagayan de Oro City.

Petitioner justified the shooting of Paquito Umas-as because he believed that he would be the next
person to be shot at by the victim; and having acted in defense of his person and that of his superior
officer, he asserted before the court a quo that he has no criminal liability because of the attendance
of the following circumstances: (a) unlawful aggression on the part of the victim; (b) reasonable
necessity of the means employed to prevent or repel the unlawful aggression of the victim; (c) lack of
sufficient provocation on his part, and in the case of defense of his superior officer, he was not
induced by revenge, resentment, or other evil motives. All of these requisites being present, petitioner
claimed there was legal justification for shooting Paquito Umas-as.32

The Sandiganbayan however grave credence to the version of the prosecution and rejected the
version of petitioner. So, it found him guilty beyond reasonable doubt of the crime of homicide. It
accorded full faith and credence to the testimony of Zaragosa as it was "categorical, straightforward,
spontaneous and consistent." Moreover, it observed that no proof was adduced to show that
Zaragosa was moved by some evil motive to falsely testify against the accused Cabuslay. 33

The Sandiganbayan likewise noted grave deficiencies in the evidence of the defense as follows: (1)
The physical existence of the handgun allegedly used by the victim Paquito was not established as
the same was not presented before the court during the trial; 34 (2) The affidavit executed by
Gualberto Dayot Pasco-presented by the defense to impeach the credibility of Zaragosa-was taken
under intimidating and dubious circumstances, which fact creates doubt as to the affidavit’s
voluntariness and credibility;35 (3) The medical certificate purportedly evidencing that Regencia had
been shot has no probative value as the doctor who executed the same did not testify during trial.
Notably, the medical certificate was executed by a doctor different from the one who treated
Regencia’s wound;36 (4) The number of gunshot wounds inflicted upon the victim betrays petitioner’s
claim of reasonable necessity of the means used to repel the unlawful aggression allegedly displayed
by the victim.37

Hence, petitioner filed the instant petition before the Court, insisting that the Sandiganbayan erred in
not crediting him the justifying circumstance of self-defense or defense of a stranger or the lawful
exercise of a right or office.38

Pursuant to the Court’s Resolution39 dated 3 September 1997, the Office of the Solicitor General
(OSG) submitted before the Court a Manifestation and Motion In Lieu Of Comment 40 to aid the
resolution of the instant petition. In said manifestation, the OSG stated that it is the Office of the
Ombudsman which should represent the People in cases elevated to the Court from the
Sandiganbayan except in cases filed under Executive Orders Nos. 1, 2, 14, and 14-A issued in 1986.
Nevertheless, it opined that the conviction of petitioner should be reversed because the evidence of
the prosecution when pitted against that of the defense "may not stand close scrutiny." It also
asserted that the ponente of the appealed decision was not yet a member of the Third Division when
the witnesses testified and when the parties presented their evidence; hence, the applicability of the
Court’s ruling in People v. Gutual,41 that no respect can be accorded to the trial court’s findings of fact
where the judge who penned the questioned decision heard only one of the witnesses and only at the
sur-rebuttal stage.42

In its Comment,43 the Office of the Ombudsman through the Office of the Special Prosecutor seeks
the denial of the instant petition on the ground that the defense failed to impeach the credibility of
Zaragosa. It agrees with respondent court that petitioner’s story was contrary to human experience
and hence, it correctly debunked self-defense and defense of a stranger as grounds for petitioner’s
acquittal.44

The petition is without merit.

While the rule that the factual findings of the court a quo are generally not disturbed on appeal
because the trial judge had the best opportunity to observe them and the manner by which they
testify is concededly not applicable to the instant case considering that the ponente of the
assailed Decision was not the one who heard all the witnesses, nevertheless, after a careful review of
the records of the case, the Court finds no reason to disturb the conclusions reached by respondent
court. As held in Hugo v. Court of Appeals,45 "the efficacy of a decision is not necessarily impaired by
the fact that the ponente only took over from a colleague who had earlier presided over the trial. For it
does not follow that a judge who was not present during the trial cannot render a valid and just
decision."

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. 46

Simply put, the ponente of the assailed Decision is not the Third Division of the Sandiganbayan. He
alone does not speak for and on behalf of his Division. Each Division of the Sandiganbayan is a
three-man body whose members each have one vote to cast in every deliberation concerning a case
or any incident therein that is within its jurisdiction.

We have minutely scrutinized the assailed Decision and find it amply supported by the evidence on
record.

Petitioner claims that he acted in self-defense and in defense of Regencia.

One who invokes self-defense admits responsibility for the killing. Accordingly, the burden of proof
shifts to the accused who must then prove the justifying circumstance. He must show by clear and
convincing evidence that he indeed acted in self-defense, or in defense of a relative or a stranger.
With clear and convincing evidence, all the following elements of self-defense must be established:
(1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to
prevent or repel it; and (3) lack of sufficient provocation on the part of the person claiming self-
defense.47

Self-defense, like alibi, is a defense which can easily be concocted. It is well-settled in this jurisdiction
that once an accused has admitted that he inflicted the fatal injuries on the deceased, it is incumbent
upon him in order to avoid criminal liability, to prove the justifying circumstance claimed by him with
clear, satisfactory and convincing evidence. He cannot rely on the weakness of the prosecution but
on the strength of his own evidence, "for even if the evidence of the prosecution were weak it could
not be disbelieved after the accused himself had admitted the killing."48 Thus, petitioner must
establish with clear and convincing evidence that the killing was justified, and that he incurred no
criminal liability therefor.

In order that defense of a stranger may be appreciated, the following requisites must concur: (1)
unlawful aggression by the victim; (2) reasonable necessity of the means to prevent or repel it; and
(3) the person defending be not induced by revenge, resentment or other evil motive.49

Unlawful aggression is the first and primordial element of self-defense. Of the three requisites, it is the
most important. Without it, the justifying circumstance cannot be invoked. If there is no unlawful
aggression, there is nothing to prevent or repel. 50

Unlawful aggression refers to an attack or a threat to attack, positively showing the intent of the
aggressor to cause injury. It presupposes not merely a threatening or an intimidating attitude, but an
actual, sudden and unexpected attack or an imminent danger thereof, which imperils one’s life or
limb. Thus, when there is no peril, there is no unlawful aggression. 51

It is crucial to ask whether the victim Paquito was an unlawful aggressor. We answer this question in
the negative. Aggression to be unlawful, must be actual and imminent, such that there is a real threat
of bodily harm to the person resorting to self-defense or to others whom that person is seeking to
defend.

Petitioner asserts that he was the victim’s next target, thus the need to shoot the victim in self-
defense. His claim should be disbelieved. As he himself had explicitly testified before respondent
court, the hummer jeep was behind him and was parked about three to four meters from the national
highway.52 He also stated that Paquito could not have seen the hummer jeep because it was
obscured by Muslim houses.53 It only follows that if from Paquito’s perspective, he cannot see the
hummer jeep which is a fairly large vehicle, then he could not have seen petitioner as well. If Paquito
cannot see petitioner from where he was positioned, then Paquito could not have possibly aimed to
shoot at petitioner. Petitioner’s contention therefore that there was an imminent threat of bodily harm
coming from Paquito upon his person is at best illusory. There was no peril, ergo, there was no
unlawful aggression.

It should also be recalled that at the time, Cane was on top of the hummer jeep manning the machine
gun.54 If Regencia had indeed been shot as the defense insists, then Cane was better situated to
defend Regencia. It is implausible how an officer like him, in such a strategic position and trained in
the operation of the said weapon could have omitted firing a shot in Regencia’s defense. More to the
point, it is beyond credulity that the outbursts of gunfire hardly elicited any reaction from the other
police officers who were only a few meters away from the crime scene and who continued conducting
their search on the bus which was then about to pass the checkpoint. 55

Likewise noteworthy is the fact that after the second burst of fire on Paquito, knowing that Paquito
was still alive56 and in all probability was still holding a handgun, 57 petitioner chose to assist Regencia
instead of making sure that Paquito had been immobilized and disarmed, basic to a policeman’s
training.

In addition, the claim of the defense that Paquito shot Regencia on his right thigh is untenable.
Petitioner would have the Court believe that Paquito dared challenge five policemen, four of them in
full battlegear, at a checkpoint and armed with only a handgun. This is contrary to ordinary human
experience, as well as the human instinct which is to flee for dear life and seek safety. If indeed
Paquito was armed and had criminal designs in his mind, the natural tendency upon seeing a
checkpoint ahead would be to abort one’s plans and leave the premises immediately. Petitioner’s
story not only was contrary to the ordinary course of nature and the ordinary habits of life, in all
appearances it was also contrived.58 Respondent court was correct in rejecting it.

We also confirm that the medical certificate presented by Regencia to prove that he had been shot by
the victim has no probative value. The physician who signed the same was never presented as
witness for the defense. We also note that the physician who signed said medical certificate, a certain
Dr. Demterio U. Opamen, Jr., is different from the doctor who according to Regencia had treated his
wounds.59

It is also worthy of note that the defense never presented in evidence the gun Paquito allegedly use
to shoot Regencia. The gun was also not clearly identified. Unlawful aggression on the part of the
victim must be positively proved and said gun would have been a vital evidence to establish this
requisite.

Petitioner, however, insists that he would have presented the gun had not respondent court
pressured him to rest his case and submit it for decision. Such contention hardly inspires belief.
Records reveal that petitioner never made it known to respondent court that the defense would be
presenting the gun allegedly used by Paquito. What the defense did manifest was their intention to
present one Major Bartolino to testify that he had received the gun allegedly used by Paquito and that
he had brought it to the NBI on 30 September 1992 for examination. It should be underscored that the
defense was not even sure that there was an NBI report on said examination. The counsel for the
defense manifested before respondent court, as follows:

ATTY. ABUNDIENTE:

xxx

I intended, Your Honor, Please, to present two more witnesses, Major Bartolini who received the gun
and he will testify on this particular testimony that he was the Station Commander of the municipality
of Kauswagan, Lanao del Norte at the time of the incident and then he received this gun from the
team of Capt. Regencia on August 5, 19 (sic) and that he took the gun for NBI Examination sometime
in the month of October, 1992, no, on the 30th day of September, 1992.

CHAIRMAN:

This was covered by police blotter?

ATTY. ABUNDIENTE:

Yes, Your Honor.

CHAIRMAN:

You don’t need the testimony of Bartolini, but do you have the report of the NBI?

ATTY. ABUNDIENTE:

That is why, Your Honor, because we have not received any communication from Bartolini . . .

CHAIRMAN:

How did you come to know that Bartolini sent this firearm to the NBI for examination? . . .

ATTY. ABUNDIENTE:

Because it is stated in the blotter, Your Honor, . . . dated September 1992 for NBI examination in
Cagayan de Oro City, Entry No. 91000, page 108 . . .

CHAIRMAN:

Does it matter – whether you can prove the examination report of the NBI or not?

ATTY. ABUNDIENTE:

I don’t know if there was a report of the NBI examination . . .

CHAIRMAN:

Precisely . . ."60

The defense was well aware of the relevance of the NBI report to prove their allegations that the
victim was carrying a gun and used the same on Regencia, especially since the victim was reported
to be negative of nitrates on his hands. No cogent reason could be thought of for the failure to secure
a copy of the report or even know of its existence. It should be noted that the examination was made
as early as September 1992. A party’s failure to produce evidence, which if favorable would naturally
have been produced, is open to the inference that the facts were unfavorable to his case. 61 This Court
can only conclude that said gun never existed, and this explains the failure of the defense to present
it before respondent court. Thus, it is immaterial to delve on the issue raised by the petitioner on the
discrepancy of the make of the gun as noted by respondent court in its Decision.

Parenthetically, petitioner stresses that the victim had tested negative for gunpowder nitrates as the
latter had been wearing gloves at the time of the incident. This claim runs counter to his62 and
Regencia’s63 testimony that the only things recovered from Paquito and which were turned over to the
Provincial Police Command were the victim’s motorcycle, sunglasses and the alleged gun. The police
blotter reporting the incident confirms their testimonies. Interestingly, said police blotter also makes
no mention that gloves were recovered from the victim. 64

Anent the credibility of Zaragoza, the sole prosecution eyewitness on whose testimony the version of
the prosecution is anchored, we find that petitioner failed to impeach his credibility. No evidence was
shown that Zaragoza was actuated by an improper motive. As such, there is no cogent reason why
the Court should deny Zaragoza’s testimony the full faith and credit it deserves.

On the alleged inconsistencies in Zaragoza’s testimony, it is relevant to state that a witness is not
expected to remember an occurrence with perfect recollection of the minute details. Thus, even the
most

truthful of witnesses may err and often give confusing statements. What is important is that Zaragosa
unwaveringly, forthrightly and unequivocally declared that petitioner shot at the victim. Neither did he
falter in identifying the gunman.65

All in all, petitioner has failed to prove unlawful aggression on the part of the victim. Without this
essential element, petitioner cannot successfully invoke self-defense. Even assuming that he tried to
defend a stranger, his defense would not prosper. In defense of a stranger, unlawful aggression on
the part of the victim is also indispensable. In both self-defense and defense of a stranger, unlawful
aggression is a primordial element.

Granting arguendo that there was unlawful aggression, we find that petitioner’s contention that he
employed reasonable means to repel the aggression must fail. It is settled that reasonable necessity
of the means employed does not imply material commensurability between the means of attack and
defense. What the law requires is rational equivalence.66

Also, the nature and number of wounds suffered by Paquito negate any claim of self-defense or
defense of a stranger. The Court notes that the victim sustained eight gunshot wounds which were all
fatal as they affected vital organs.67 Petitioner testified that he pulled the trigger of his armalite
twice.68 He aimed at "the front of his body, at the chest, up to the stomach." 69 Had petitioner merely
defended himself from the victim’s unlawful aggression, one shot to immobilize him would have been
enough. There was no reason for petitioner to shoot him seven more times, even aiming at his vital
organs. It bears repeating that the nature and number of wounds inflicted by the accused are
constantly and unremittingly considered as important indicia which disprove a plea for self-defense or
defense of stranger because they demonstrate a determined effort to kill the victim and not just
defend oneself.70 In the instant case, Paquito’s wounds serve to tell us that petitioner was induced by
revenge, resentment or other evil motive and that he was set on killing the victim.

Petitioner’s avowal that his first shot was single but went automatic on the second shot is likewise
unbelievable.71 Petitioner’s armalite has a selector that switches it from single shot to automatic.
Since it was petitioner who was in possession of the firearm and he admitted that he fired the shots,
we reasonably conclude that it was he who switched the firearm to automatic firing.

All told, petitioner failed to satisfy the requirements of self-defense and defense of a stranger to justify
the shooting of Paquito.

Next, petitioner contends that the killing of Paquito resulted from the lawful performance of his duty as
police officer. However, such justifying circumstance may be invoked only after the defense
successfully proves that the accused acted in the performance of a duty, and the injury or offense
committed is the necessary consequence of the due performance or lawful exercise of such
duty.72 These two requisites are wanting in this case. The victim was not committing any offense at
the time. Petitioner has not sufficiently proven that the victim had indeed fired at Regencia. Killing the
victim under the circumstances of this case cannot in any wise be considered a valid performance of
a lawful duty by a man who had sworn to maintain peace and order and to protect the lives of the
people. As aptly held in People v. de la Cruz,73 "Performance of duties does not include murder….
Murder is never justified, regardless of the victim."

A final word on the civil liability. An appeal in a criminal proceeding throws the whole case open for
review and it becomes the duty of the Court to correct any error in the appealed judgment, whether it
is made the subject of an assignment of error or not. Therefore, we delete the award of ₱50,000.00
as actual damages. To seek recovery of actual damages, it is necessary to prove the actual amount
of loss with reasonable degree of certainty premised upon competent proof and on the best evidence
obtainable. Since the prosecution did not present receipts to prove the actual losses suffered, such
actual damages cannot be awarded.74

On the other hand, consistent with prevailing jurisprudence, we award ₱50,000.00 by way of
indemnity ex delicto to the heirs of Paquito. When death occurs as a result of a crime, the heirs of the
deceased are entitled to such amount as indemnity for death without need of any evidence or proof of
damages.75

We also affirm the award of moral damages in view of the finding that Generoso Umas-as lost
consciousness and suffered anguish and sorrow because of the incident.

WHEREFORE, the assailed Decision dated 25 June 1997 of the Sandiganbayan in Criminal Case
No. 19586 finding petitioner GUILTY of homicide is partially AFFIRMED with the following
MODIFICATIONS: (a) the award of Fifty Thousand Pesos (₱50,000.00) as actual damages is
deleted; and (b) petitioner is ordered to pay fifty thousand pesos (₱50,000.00) as indemnity ex
delicto. No costs.

SO ORDERED.
STATE OF NECESSITY

G.R. No. L-4160 July 29, 1952

ANITA TAN, plaintiff-appellant,

vs.
STANDARD VACUUM OIL CO., JULITO STO DOMINGO, IGMIDIO RICO, and RURAL TRANSIT
CO., defendants-appellees.

Alberto R. de Joya for appellant.

Ross, Selph, Carrascoso and Janda for appellees Standard Vacuum Oil Company, Sto. Domingo and
Rico.
Arnaldo J. Guzman for appellee Rural Transit Co.

BAUTISTA ANGELO, J.:

Anita Tan is the owner of the house of strong materials based in the City of Manila, Philippines. On
May 3, 1949, the Standard Vacuum Oil Company ordered the delivery to the Rural Transit Company
at its garage at Rizal Avenue Extension, City of Manila, of 1,925 gallons of gasoline using a gasoline
tank-truck trailer. The truck was driven by Julito Sto. Domingo, who was helped Igmidio Rico. While
the gasoline was being discharged to the underground tank, it caught fire, whereupon Julito Sto.
Domingo drove the truck across the Rizal Avenue Extension and upon reaching the middle of the
street he abondoned the truck with continued moving to the opposite side of the first street causing
the buildings on that side to be burned and detroyed. The house of Anita Tan was among those
destroyed and for its repair she spent P12,000.

As an aftermath of the fire, Julito Sto. Domingo and Imigidio Rico were charged with arson through
reckless imprudence in the Court of First Instance of Manila where, after trial, both were acquitted,
the court holding that their negligence was not proven and the fire was due to an unfortunate
accident.

Anita Tan then brought the action against the Standard Vacuum Oil Company and the Rural Transit
Company;, including the two employees, seeking to recover the damages she has suffered for the
destruction of her house.

Defendants filed separate motions to dismiss alleging in substance that (a) plaintiff's action is barred
by prior judgment and (b) plaintiff's complaint states no cause of action; and this motion having been
sustained, plaintiff elevated the case to this Court imputing eight errors to the court a quo.

The record discloses that the lower court dismissed this case in view of the acquittal of the two
employees of defendant Standard Vacuum Oil Company who were charged with arson through
reckless imprudence in the Court of First Instance of Manila. In concluding that accused were not
guilty of the acts charged because of the fire was accidental, the court made the following findings:
"the accused Imigidio Rico cannot in any manner be held responsible for the fire to the three houses
and goods therein above mentioned. He was not the cause of it, and he took all the necessary
precautions against such contingency as he was confronted with. The evidence throws no light on the
cause of fire. The witnesses for the prosecution and for the defense testified that they did not know
what caused the fire. It was unfortunate accident for which the accused Iigmidio Rico cannot be held
responsible." And a similar finding was made with respect to the other accused that the information
filed against the accused by the Fiscal contains an itemized statement of the damages suffered by
the victims, including the one suffered by Anita Tan, thereby indicating the intention of the prosecution
to demand indemnity from the accused in the same action, but that notwithstanding this statement
with respect to damages, Anita Tan did not make any reservation of her right to file a separate civil
action against the accused as required by the Rules of Court Rule 107, section 1-(a). As Anita Tan
failed to make reservation, and the accused were acquitted, the lower court ruled that she is now
barred from filing this action against the defendants.

This ruling is so far as defendants Julio Sto. Domingo and Imigidio Rico are concerned is correct. The
rule is that "extinction of the penal action does not carry with it extinction of the civil, unless the
extinction proceeds from the declaration in a final judgment that the fact from which the civil might
arise did not exist" (Rule 107, section 1-d, Rules of Court). This provision means that the acquittal of
the accused from the criminal charge will not necessarily extinguish the civil liability unless the court
declares in the judgment that the fact from which the civil liability might arise and did not exist. Here it
is true that Julito Sto. Domingo and Igmidio Rico were acquitted, the court holding that they were not
responsible for the fire that destroyed the house of the plaintiff,—which as a rule will not necessarily
extinguish their civil liability,—but the court went further by stating that the evidence throws no light on
the cause of fire and that it was an unfortunate accident for which the accused cannot be held
responsible. In our opinion, this declaration fits well into the exception of the rule which exempts the
two accused from civil liability. When the court acquitted the accused because the fire was due to an
unfortunate accident it actually said that the fire was due to a fortuitous event for which the accused
are not to blame. It actually exonerated them from civil liability.

But the case takes a different aspect with respect to the other defendants. For one thing, the principle
of res judicata cannot apply to them for the simple reason that they were not included as co-accused
in the criminal case. Not having been included in the criminal case they cannot enjoy the benefit
resulting from the acquittal of the accused. This benefit can only be claimed by the accused if a
subsequent action is later taken against them under the Revised Penal Code. And this action can
only be maintained if proper reservation is made and there is no express declaration that the basis of
the civil action has not existed. It is, therefore, an error for the lower court to dismiss the case against
these two defendants more so when their civil liability is predicated or facts other than those attributed
to the two employees in the criminal case.

Take, for instance, of the Standard Vacuum Oil Company. this company is sued not precisely
because of supposed negligent acts of its two employees Julito Sto. Domingo and Igmidio Rico but
because of acts of its own which might have contributed to the fire that destroyed the house of the
plaintiff. The complaint contains definite allegations of negligent acts properly attributable to the
company which proven and not refuted may serve as basis of its civil liability. Thus, in paragraph 5 of
the first cause of action, it is expressly alleged that this company, through its employees, failed to
take the necessary precautions or measures to insure safety and avoid harm to person and damage
to property as well as to observe that degree of care, precaution and vigilance which the
circumstances justly demanded, thereby causing the gasoline they were unloading to catch fire. the
precautions or measures which this company has allegedly failed to take to prevent fire are not
clearly stated, but they are matters of evidence which need not now be determined. Suffice it to say
that such allegation furnishes enough basis for a cause of action against this company. There is no
need for the plaintiff to make a reservation of her right to file a separate civil action, for as this court
already held in a number of cases, such reservation is not necessary when the civil action
contemplated is not derived from the criminal liability but one based on culpa aquiliana under the Old
Civil Code (articles 1902 to 1910). These two acts are separate and distinct and should not be
confused one with the other. Plaintiff can choose either (Asuncion Parker vs. Hon. A.J Panlilio supra,
p. 1.)

The case of the Rural Transit Co. is even more different as it is predicated on a special provisions of
the Revised Penal Code. Thus, article 101, Rule 2, of said Code provides:

Art. 101. Rules regarding civil liability in certain cases. — The exemption from criminal liability
established in subdivisions 1, 2, 3, 5 and 6 of article 12 and in subdivision 4 of article 11 of this
Code does not include exemption from civil liability, which shall be enforced to the following
rules:

xxx xxx xxx

Second. In cases falling within subdivision 4 of article 11, the persons for whose benefit the
harm has been prevented shall be civilly liable in proportion to the benefit which they have
received.

And on this point, the complaint contains the following averments:

3. That after the corresponding trial the said defendants were acquitted and defendant Julio
Sto. Domingo was acquitted, on the ground that he so acted causing damage to another in
order to avoid a greater evil or injury, under article 11, paragraph 4 of the Revised Penal Code,
as shown by the pertinent portion of the decision of this Honorable Court in said case, dated
October 28, 1949, which reads as follows:

Under the foregoing facts, there can be no doubt that had the accused Julito Sto. Domingo not
taken the gasoline tank-truck trailer out in the street, a bigger conflagration would have
occurred in Rizal Avenue Extension, and, perhaps, there might have been several deaths and
bearing in mind the provisions of Article 11, paragraph 4 of the Revised Penal Code the
accused Julito Sto. Domingo incurred no criminal liability.

4. That it was consequently the defendant Rural Transit Co., from whose premises the burning
gasoline tank-truck trailer was driven out by defendant Julito Sto. Domingo in order to avoid a
greater evil or injury, for whose benefit the harm has been prevented under article 101, second
subsection of the Revised Penal Code.
Considering the above quoted law and facts, the cause of action against the Rural Transit Company
can hardly be disputed, it appearing that the damage caused to the plaintiff was brought about mainly
because of the desire of driver Julito Sto. Domingo to avoid greater evil or harm, which would have
been the case had he not brought the tank-truck trailer to the middle of the street, for then the fire
would have caused the explosion of the gasoline deposit of the company which would have resulted
in a conflagration of much greater proportion and consequences to the houses nearby or surrounding
it. It cannot be denied that this company is one of those for whose benefit a greater harm has been
prevented, and as such it comes within the purview of said penal provision. The acquittal of the
accused cannot, therefore, be deemed a bar to a civil action against this company because its civil
liability is completely divorced from the criminal liability of the accused. The rule regarding reservation
of the right to file a separate civil action does not apply to it.

Wherefore, the order appealed from is hereby modified as follows: it is affirmed with regard to
defendants Julito Sto. Domingo and Igmidio Rico; but it is reserved with regard to defendants
Standard Vacuum Oil Company and Rural Transit Company, with costs.
FULLFILLMENT OF DUTY/LAWFUL EXERCISE OF RIGHT OR OFFICE

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

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 Cañas, 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 Cañas, Lubido and the appellant rushed out of the
house of Gavino Tirayosa, Cañas 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 Cañas 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 Cañas who dashed towards the place but Pimentel ran away. Appellant Valcorza
regained his composure and immediately chased the deceased, firing a shot into the air 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.
OBEDIENCE TO A LAWFUL ORDER

G.R. Nos. 103501-03 February 17, 1997

LUIS A. TABUENA, petitioner,

vs.
HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES, respondents.

G.R. No. 103507 February 17, 1997

ADOLFO M. PERALTA, petitioner,

vs.
HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES, represented
by the OFFICE OF THE SPECIAL PROSECUTOR, respondents.

FRANCISCO, J.:

Through their separate petitions for review,1 Luis A. Tabuena and Adolfo M. Peralta (Tabuena and
Peralta, for short) appeal the Sandiganbayan decision dated October 12, 1990, 2 as well as the
Resolution dated December 20. 19913 denying reconsideration, convicting them of malversation
under Article 217 of the Revised Penal Code. Tabuena and Peralta were found guilty beyond
reasonable doubt Of having malversed the total amount of P55 Million of the Manila International
Airport Authority (MIAA) funds during their incumbency as General Manager and Acting Finance
Services Manager, respectively, of MIAA, and were thus meted the following sentence:

(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the
penalty of imprisonment of seventeen (17) years and one (1) day of reclusion
temporal as minimum to twenty (20) years of reclusion temporal as maximum, and to
pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount
malversed. He shall also reimburse the Manila International Airport Authority the sum of
TWENTY-FIVE MILLION PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public
office,

(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the
penalty of imprisonment of seventeen (17) years and one (1) day of reclusion
temporal as minimum, and twenty (20) years of reclusion temporal as maximum, and to
pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount
malversed. He shall also reimburse the Manila International Airport Authority the sum of
TWENTY-FIVE MILLION PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public
office.

(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are
each sentenced to suffer the penalty of imprisonment of seventeen (17) years and one
(1) day of reclusion temporal as minimum and twenty (20) years of reclusion
temporal as maximum and for each of them to pay separately a fine of FIVE MILLION
PESOS (P5,000,000.00) the amount malversed. They shall also reimburse jointly and
severally the Manila International Airport Authority the sum of FIVE MILLION PESOS
(P5,000,000.00).

In addition, they shall both suffer the penalty of perpetual special disqualification from
public office.

A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General
Manager of MIAA, has remained at large.

There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount of
P55 Million was taken on three (3) separate dates of January, 1986. Tabuena appears as the
principal accused — he being charged in all three (3) cases. The amended informations in criminal
case nos. 11758, 11759 and 11760 respectively read:
That on or about the 16th day of January, 1986, and for sometime subsequent thereto,
in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court,
accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the
General Manager and Assistant General Manager, respectively, of the Manila
International Airport Authority (MIAA), and accountable for public funds belonging to the
MIAA, they being the only ones authorized to make withdrawals against the cash
accounts of MIAA pursuant to its board resolutions, conspiring, confederating and
confabulating with each other, did then and there wilfully, unlawfully, feloniously, and
with intent to defraud the government, take and misappropriate the amount of TWENTY
FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance
of a manager's check for said amount in the name of accused Luis A. Tabuena
chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB Extension
Office at the Manila International Airport in Pasay City, purportedly as partial payment to
the Philippine National Construction Corporation (PNCC), the mechanics of which said
accused Tabuena would personally take care of, when both accused well knew that
there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of
the above-mentioned manager's check, accused Luis A. Tabuena encashed the same
and thereafter both accused misappropriated and converted the proceeds thereof to
their personal use and benefit, to the damage and prejudice of the government in the
aforesaid amount.

CONTRARY TO LAW.

xxx xxx xxx

That on or about the 16th day of January, 1986, and for sometime subsequent thereto,
in the City of Pasay. Philippines and within the jurisdiction of this Honorable Court,
accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the
General Manager and Assistant General Manager, respectively, of the Manila
International Airport Authority (MIAA), and accountable for public funds belonging to the
MIAA, they being the only ones authorized to make withdrawals against the cash
accounts of MIAA pursuant to its board resolutions, conspiring, confederating and
confabulating with each other, did then and there wilfully, unlawfully, feloniously, and
with intent to defraud the government, take and misappropriate the amount of TWENTY
FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance
of a manager.s check for said amount in the name of accused Luis A. Tabuena
chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB Extension
Office at the Manila International Airport in Pasay City, purportedly as partial payment to
the Philippine National Construction Corporation (PNCC), the mechanics of which said
accused Tabuena would personally take care of, when both accused well knew that
there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of
the above-mentioned manager's check, accused Luis A. Tabuena encashed the same
and thereafter both accused misappropriated and converted the proceeds thereof to
their personal use and benefit, to the damage and prejudice of the government in the
aforesaid amount.

CONTRARY TO LAW.

xxx xxx xxx

That on or about the 29th day of January, 1986, and for sometime subsequent thereto,
in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court,
accused Luis A. Tabuena and Adolfo M. Peralta, both public officers, being then the
General Manager and Acting Manager, Financial Services Department, respectively, of
the Manila International Airport Authority (MIAA), and accountable for public funds
belonging to the MIAA, they being the only ones authorized to make withdrawals
against the cash accounts of MIAA pursuant to its board resolutions, conspiring,
confederating and confabulating with each other, did then and there wilfully, unlawfully,
feloniously, and with intent to defraud the government, take and misappropriate the
amount of FIVE MILLION PESOS (P5,000,000.00) from MIAA funds by applying for the
issuance of a manager's check for said amount in the name of accused Luis A.
Tabuena chargeable against MIAA's Savings Account No. 274-500- 354-3 in the PNB
Extension Office at the Manila International Airport in Pasay City, purportedly as partial
payment to the Philippine National Construction Corporation (PNCC), the mechanics of
which said accused Tabuena would personally take care of, when both accused well
knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the
issuance of the above-mentioned manager's check, accused Luis A. Tabuena encashed
 the same and thereafter both accused misappropriated and converted the proceeds
thereof to their personal use and benefit, to the damage and prejudice of the
government in the aforesaid amount.

CONTRARY TO LAW.

Gathered from the documentary and testimonial evidence are the following essential antecedents:

Then President Marcos instructed Tabuena over the phone to pay directly to the president's office
and in cash what the MIAA owes the Philippine National Construction Corporation (PNCC), to which
Tabuena replied, "Yes, sir, I will do it." About a week later, Tabuena received from Mrs. Fe Roa-
Gimenez, then private secretary of Marcos, a Presidential Memorandum dated January 8, 1986
(hereinafter referred to as MARCOS Memorandum) reiterating in black and white such verbal
instruction, to wit:

Office of the President

of the Philippines
Malacanang

J
a
n
u
a
r
y
8
,
1
9
8
6

MEMO TO: The General Manager

Manila International Airport Authority

You are hereby directed to pay immediately the Philippine National Construction
Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00)
PESOS in cash as partial payment of MIAA's account with said Company mentioned in
a Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985 and
duly approved by this Office on February 4, 1985.

Your immediate compliance is appreciated.

(Sgd.) FERDINAND MARCOS.4

The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin
referred to in the MARCOS Memorandum, reads in full:

MEMORANDUM

For: The President

From: Minister Roberto V. Ongpin

Date: 7 January 1985

Subject: Approval of Supplemental Contracts and Request

for Partial Deferment of Repayment of PNCC's Advances for
MIA Development Project

May I request your approval of the attached recommendations of Minister Jesus S.

Hipolito for eight (8) supplemental contracts pertaining to the MIA Development Project
(MIADP) between the Bureau of Air Transport (BAT) and Philippine National
Construction Corporation (PNCC), formerly CDCP, as follows:
 1. Supplemental Contract No. 12
Package Contract No. 2 P11,106,600.95

2. Supplemental Contract No. 13

5,758,961.52

3. Supplemental Contract No. 14

Package Contract No. 2 4,586,610.80

4. Supplemental Contract No. 15

1,699,862.69

5. Supplemental Contract No. 16

Package Contract No. 2 233,561.22

6. Supplemental Contract No. 17

Package Contract No. 2 8,821,731.08

7. Supplemental Contract No. 18

Package Contract No. 2 6,110,115.75

8. Supplemental Contract No. 3

Package Contract No. II 16,617,655.49

(xerox copies only; original memo was submitted to the Office of the
President on May 28, 1984)

In this connection, please be informed that Philippine National Construction Corporation

(PNCC), formerly CDCP, has accomplishment billings on the MIA Development Project
aggregating P98.4 million, inclusive of accomplishments for the aforecited contracts. In
accordance with contract provisions, outstanding advances totalling P93.9 million are to
be deducted from said billings which will leave a net amount due to PNCC of only P4.5
million.

At the same time, PNCC has potential escalation claims amounting to P99 million in the
following stages of approval/evaluation:

— Approved by Price Escalation Committee

(PEC) but pended for lack of funds P1.9 million

— Endorsed by project consultants and

currently being evaluated by PEC 30.7 million

— Submitted by PNCC directly to PEC

and currently under evaluation 66.5 million
——————
Total P99.1 million

There has been no funding allocation for any of the above escalation claims due to
budgetary constraints.

The MIA Project has been completed and operational as far back as 1982 and yet
residual amounts due to PNCC have not been paid, resulting in undue burden to PNCC
due to additional cost of money to service its obligations for this contract.

To allow PNCC to collect partially its billings, and in consideration of its pending
escalation billings, may we request for His Excellency's approval for a deferment of the
repayment of PNCC's advances to the extent of P30 million corresponding to about
30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has been
officially recognized by MIADP consultants but could not be paid due to lack of funding.

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing
MIA Project funds. This amount represents the excess of the gross billings of PNCC of
P98.4 million over the undeferred portion of the repayment of advances of P63.9 million.
 (Sgd.) ROBERTO
V. ONGPIN
Minister5

In obedience to President Marcos' verbal instruction and memorandum, Tabuena, with the help of
Dabao and Peralta, caused the release of P55 Million of MIAA funds by means of three (3)
withdrawals.

The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date
signed by Tabuena and Dabao requesting the PNB extension office at the MIAA — the depository
branch of MIAA funds, to issue a manager's check for said amount payable to Tabuena. The check
was encashed, however, at the PNB Villamor Branch. Dabao and the cashier of the PNB Villamor
branch counted the money after which, Tabuena took delivery thereof. The P25 Million in cash were
then placed in peerless boxes and duffle bags, loaded on a PNB armored car and delivered on the
same day to the office of Mrs. Gimenez located at Aguado Street fronting Malacanang. Mrs. Gimenez
did not issue any receipt for the money received

Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25
Million, made on January 16, 1986.

The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuena's
co-signatory to the letter- request for a manager's check for this amount. Peralta accompanied
Tabuena to the PNB Villamor branch as Tabuena requested him to do the counting of the P5 Million.
After the counting, the money was placed in two (2) peerless boxes which were loaded in the trunk of
Tabuena's car. Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez' office at
Aguado Street. It was only upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for all
the amounts she received from Tabuena. The receipt, dated January 30, 1986, reads:

Malacanang
Manila

J
a
n
u
a
r
y
3
0
,
1
9
8
6

RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION
PESOS (P55,000,000.00) as of the following dates:

Jan. 10 — P 25,000,000.00
Jan. 16 — 25,000,000.00
Jan. 30 — 5,000,000.00

(Sgd.)
Fe
Roa-
Gimen
ez

The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, "out of
the ordinary" and "not based on the normal procedure". Not only were there no vouchers prepared to
support the disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt for the P55
Million was presented. Defense witness Francis Monera, then Senior Assistant Vice President and
Corporate Comptroller of PNCC, even affirmed in court that there were no payments made to PNCC
by MIAA for the months of January to June of 1986.
The position of the prosecution was that there were no outstanding obligations in favor of PNCC at
the time of the disbursement of the P55 Million. On the other hand, the defense of Tabuena and
Peralta, in short, was that they acted in good faith. Tabuena claimed that he was merely complying
with the MARCOS Memorandum which ordered him to forward immediately to the Office of the
President P55 Million in cash as partial payment of MIAA's obligations to PNCC, and that he
(Tabuena) was of the belief that MIAA indeed had liabilities to PNCC. Peralta for his part shared the
same belief and so he heeded the request of Tabuena, his superior, for him (Peralta) to help in the
release of P5 Million.

With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their
conviction, Tabuena and Peralta now set forth a total of ten (10) errors 6 committed by the
Sandiganbayan for this Court's consideration. It appears, however, that at the core of their plea that
we acquit them are the following:

1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and

2) they acted in good faith.

Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional
malversation, as the amended informations commonly allege that:

. . . accused . . . conspiring, confederating and other, then and there wilfully, unlawfully,
feloniously, and with intent to defraud the government, take and misappropriated the
amount of . . . .

But it would appear that they were convicted of malversation by negligence. In this connection,
the Court's attention is directed to p. 17 of the December 20, 1991 Resolution (denying
Tabuena's and Peralta's motion for reconsideration) wherein the Sandiganbayan said:

xxx xxx xxx

On the contrary, what the evidence shows is that accused Tabuena delivered the P55
Million to people who were not entitled thereto, either as representatives of MIAA or of
the PNCC.

It proves that Tabuena had deliberately consented or permitted through negligence or

abandonment, some other person to take such public funds. Having done so, Tabuena,
by his own narration, has categorically demonstrated that he is guilty of the
misappropriation or malversation of P55 Million of public funds. (Emphasis supplied.)

To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue that:

1) While malversation may be committed intentionally or by negligence, both modes cannot be

committed at the same time.

2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where
the amended informations charged them with intentional malversation.7

3) Their conviction of a crime different from that charged violated their constitutional right to be
informed of the accusation.8

We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is "Cabello v.
Sandiganbayan" 9 where the Court passed upon similar protestations raised by therein accused-
petitioner Cabello whose conviction for the same crime of malversation was affirmed, in this wise:

. . . even on the putative assumption that the evidence against petitioner yielded a case
of malversation by negligence but the information was for intentional malversation,
under the circumstances of this case his conviction under the first mode of
misappropriation would still be in order. Malversation is committed either intentionally or
by negligence. The dolo or the culpa present in the offense is only a modality in the
perpetration of the felony. Even if the mode charged differs from the mode proved, the
same offense of malversation is involved and conviction thereof is proper. . . .

In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or
intentional falsification can validly be convicted of falsification through negligence, thus:
 While a criminal negligent act is not a simple modality of a willful crime, as we held
in Quizon vs. Justice of the Peace of Bacolor. G.R. No. L-6641, July 28, 1995, but a
distinct crime in our Penal Code, designated as a quasi offense in our Penal Code, it
may however be said that a conviction for the former can be had under an information
exclusively charging the commission of a willful offense, upon the theory that the greater
includes the lesser offense. This is the situation that obtains in the present case.
Appellant was charged with willful falsification but from the evidence submitted by the
parties, the Court of Appeals found that in effecting the falsification which made possible
the cashing of the checks in question, appellant did not act with criminal intent but
merely failed to take proper and adequate means to assure himself of the identity of the
real claimants as an ordinary prudent man would do. In other words, the information
alleges acts which charge willful falsification but which turned out to be not willful but
negligent. This is a case covered by the rule when there is a variance between the
allegation and proof, and is similar to some of the cases decided by this Tribunal.

xxx xxx xxx

Moreover; Section 5, Rule 116, of the Rules of Court does not require that all the
essential elements of the offense charged in the information be proved, it being
sufficient that some of said essential elements or ingredients thereof be established to
constitute the crime proved. . . .

The fact that the information does not allege that the falsification was committed with
imprudence is of no moment for here this deficiency appears supplied by the evidence
submitted by appellant himself and the result has proven beneficial to him. Certainly,
having alleged that the falsification has been willful, it would be incongruous to allege at
the same time that it was committed with imprudence for a charge of criminal intent is
incompatible with the concept of negligence.

Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale
and arguments also apply to the felony of malversation, that is, that an accused charged
with willful malversation, in an information containing allegations similar to those
involved in the present case, can be validly convicted of the same offense of
malversation through negligence where the evidence sustains the latter mode of
perpetrating the offense.

Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution for
malversation for it would negate criminal intent on the part of the accused. Thus, in the two (2)
vintage, but significantmalversation cases of "US v. Catolico" 10 and "US v. Elvina," 11 the Court
stressed that:

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
consequences as, in law, is equivalent to criminal intent. The maxim is actus non facit
reum, nisi mens sit rea — a crime is not committed if the mind of the person performing
the act complained of is innocent.
12
The rule was reiterated in "People v. Pacana," although this case involved falsification of
public documents and estafa:

Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non
facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting.

American jurisprudence echoes the same principle. It adheres to the view that criminal intent in
embezzlement is not based on technical mistakes as to the legal effect of a transaction
honestly entered into, and there can be no embezzlement if the mind of the person doing the
act is innocent or if there is no wrongful purpose. 13 The accused may thus always introduce
evidence to show he acted in good faith and that he had no intention to convert.14 And this, to
our mind, Tabuena and Peralta had meritoriously shown.

In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS
Memorandum we are swayed to give credit to his claim of having caused the disbursement of the P55
Million solely by reason of such memorandum. From this premise flows the following reasons and/or
considerations that would buttress his innocence of the crime of malversation.

First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS
Memorandum required him to do. He could not be faulted if he had to obey and strictly comply with
the presidential directive, and to argue otherwise is something easier said than done. Marcos was
undeniably Tabuena's superior — the former being then the President of the Republic who
unquestionably exercised control over government agencies such as the MIAA and PNCC. 15 In other
words, Marcos had a say in matters involving inter-government agency affairs and transactions, such
as for instance, directing payment of liability of one entity to another and the manner in which it
should be carried out. And as a recipient of such kind of a directive coming from the highest official of
the land no less, good faith should be read on Tabuena's compliance, without hesitation nor any
question, with the MARCOS Memorandum. Tabuena therefore is entitled to the justifying
circumstance of "Any person who acts in obedience to an order issued by a superior for some lawful
purpose."16 The subordinate-superior relationship between Tabuena and Marcos is clear. And so too,
is the lawfulness of the order contained in the MARCOS Memorandum, as it has for its purpose
partial payment of the liability of one government agency (MIAA) to another (PNCC). However, the
unlawfulness of the MARCOS Memorandum was being argued, on the observation, for instance, that
the Ongpin Memo referred to in the presidential directive reveals a liability of only about P34.5 Million.
The Sandiganbayan in this connection said:

Exhibits "2" and "2-a" (pages 1 and 2 of the memorandum of Min. Ongpin to the
President dated January 7, 1985) were mainly:

a.) for the approval of eight Supplemental Contracts; and

b.) a request for partial deferment of payment by PNCC for advances made for the
MIAA Development Project, while at the same time recognizing some of the PNCC's
escalation billings which would result in making payable to PNCC the amount of P34.5
million out of existing MIAA Project funds.

Thus:

"xxx xxx xxx

To allow PNCC to collect partially its billings, and in consideration of ifs

pending escalation billings, may we request for His Excellency's approval
for a deferment of repayment of PNCC's advances to the extent of P30
million corresponding to about 30% of P99.1 million in escalation claims of
PNCC, of which P32.6 million has been officially recognized by MIADP
consultants but could not be paid due to lack of funding.

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out
of existing MIA Project funds. This amount represents the excess of the
gross billings of PNCC of P98.4 million over the undeferred portion of the
repayment of advances of P63.9 million."

While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC
to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion thereof was still
in the stages of evaluation and approval, with only P32.6 million having been officially
recognized by the MIADP consultants.

If any payments were, therefore, due under this memo for Min. Ongpin (upon which
President Marcos' Memo was based) they would only be for a sum of up to P34.5
million. 17

xxx xxx xxx

V. Pres. Marcos' order to Tabuena dated January 8, 1986 baseless.

Not only was Pres. Marcos' Memo (Exhibit "1") for Tabuena to pay P55
million irrelevant, but it was actually baseless.

This is easy to see.

Exhibit "1" purports to refer itself to the Ongpin Memorandum (Exhibit "2",
"2-a"); Exhibit "1", however, speaks of P55 million to be paid to the PNCC
while Exhibit "2" authorized only P34.5 million. The order to withdraw the
amount of P55 million exceeded the approved payment of P34.5 million by
P20.5 million. Min. Ongpin's Memo of January 7, 1985 could not therefore
serve as a basis for the President's order to withdraw P55 million. 18
 Granting this to be true, it will not nevertheless affect Tabuena's goad faith so as to make him
criminally liable. What is more significant to consider is that the MARCOS Memorandum is
patently legal (for on its face it directs payment of an outstanding liability) and that Tabuena
acted under the honest belief that the P55 million was a due and demandable debt and that it
was just a portion of a bigger liability to PNCC. This belief is supported by defense witness
Francis Monera who, on direct examination, testified that:

ATTY ANDRES

Q Can you please show us in this Exhibit "7" and "7-a" where it is
indicated the receivables from MIA as of December 31, 1985?

A As of December 31, 1985, the receivables from MIA is shown on page

2, marked as Exhibit "7-a", sir, P102,475.392.35

xxx xxx xxx 19

ATTY. ANDRES

Q Can you tell us, Mr. Witness, what these obligations represent?

WITNESS

A These obligations represent receivables on the basis of our billings to

MIA as contract-owner of the project that the Philippine National
Construction Corporation constructed. These are billings for escalation
mostly, sir.

Q What do you mean by escalation?

A Escalation is the component of our revenue billings to the contract-

owner that are supposed to take care of price increases, sir.

xxx xxx xxx 20

ATTY ANDRES

Q When you said these are accounts receivable, do I understand from you
that these are due and demandable?

A Yes, sir. 21

Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its
illegality, the subordinate is not liable, for then there would only be a mistake of fact committed
in good faith.22 Such is the ruling in "Nassif v. People"23 the facts of which, in brief, are as
follows:

Accused was charged with falsification of commercial document. A mere employee of

R.J. Campos, he inserted in the commercial document alleged to have been falsified the
word "sold" by order of his principal. Had he known or suspected that his principal was
committing an improper act of falsification, he would be liable either as a co-principal or
as an accomplice. However, there being no malice on his part, he was exempted from
criminal liability as he was a mere employee following the orders of his principal. 24

Second. There is no denying that the disbursement, which Tabuena admitted as "out of the ordinary",
did not comply with certain auditing rules and regulations such as those pointed out by the
Sandiganbayan, to wit:

a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00
should be made by check (Basic Guidelines for Internal Control dated January 31, 1977 issued by
COA)

b) payment of all claims against the government had to be supported with complete documentation
(Sec. 4, P.D. 1445, "State Auditing Code of the Philippines). In this connection, the Sandiganbayan
observed that:
 There were no vouchers to authorize the disbursements in question. There were no bills
to support the disbursement. There were no certifications as to the availability of funds
for an unquestionably staggering sum of P55 Million. 25

c) failure to protest (Sec. 106, P.D. 1445)

But this deviation was inevitable under the circumstances Tabuena was in. He did not have the
luxury of time to observe all auditing procedures of disbursement considering the fact that the
MARCOS Memorandum enjoined his "immediate compliance" with the directive that he
forward to the President's Office the P55 Million in cash. Be that as it may, Tabuena surely
cannot escape responsibility for such omission. But since he was acting in good faith, his
liability should only be administrative or civil in nature, and not criminal. This follows the
decision in "Villacorta v. People"26 where the Court, in acquitting therein accused municipal
treasurer of Pandan, Catanduanes of malversation after finding that he incurred a shortage in
his cash accountability by reason of his payment in good faith to certain government personnel
of their legitimate wages leave allowances, etc., held that:

Nor can negligence approximating malice or fraud be attributed to petitioner. If he made

wrong payments, they were in Good faith mainly to government personnel, some of
them working at the provincial auditor's and the provincial treasurer's offices And if
those payments ran counter to auditing rules and regulations, they did not amount to a
criminal offense and he should only be held administratively or civilly liable.

Likewise controlling is "US v. Elvina" 27 where it was held that payments in good faith do not
amount to criminal appropriation, although they were made with insufficient vouchers or
improper evidence. In fact, the Dissenting Opinion's reference to certain provisions in the
revised Manual on Certificate of Settlement and Balances — apparently made to underscore
Tabuena's personal accountability, as agency head, for MIAA funds — would all the more
support the view that Tabuena is vulnerable to civil sanctions only Sections 29.2 and 295
expressly and solely speak of "civilly liable," describe the kind of sanction imposable on a
superior officer who performs his duties with "bad faith, malice or gross negligence"' and on a
subordinate officer or employee who commits "willful or negligent acts . . . which are contrary
to law, morals, public policy and good customs even if he acted under order or instructions of
his superiors."

Third. The Sandiganbayan made the finding that Tabuena had already converted and
misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to the PNCC,
proceeding from the following definitions/concepts of "conversion":

"Conversion", as necessary element of offense of embezzlement, being the fraudulent

"appropriation to one's own use' of another's property which does not necessarily mean
to one's personal advantage but every attempt by one person to dispose of the goods of
another without right as if they were his own is conversion to his own use." (Terry v.
Water Improvement Dist. No. 5 of Tulsa County, 64 p, 2d 904, 906, 179 Okl. 106)

— At p. 207, Words and Phrases,

Permanent Edition 9A.

Conversion is any interference subversive of the right of the owner of personal property
to enjoy and control it. The gist of conversion is the usurpation of the owner 's right of
property, and not the actual damages inflicted. Honesty of purpose is not a defense.
(Ferrera v. Parks, 23 p. 883, 885 19 Or. 141)

— At page 168, id.

xxx xxx xxx

The words "convert" and "misappropriate" connote an act of using or disposing of

another's property as if it were one's own. They presuppose that the thing has been
devoted to a purpose or use different from that agreed upon. To appropriate to one's
own use includes not only conversion to one's personal advantage but every attempt to
dispose of the property of another without right.

— People vs. Webber, 57 O.G.

p. 2933, 2937
 By placing them at the disposal of private persons without due authorization or legal
justification, he became as guilty of malversation as if he had personally taken them and
converted them to his own use.

— People vs. Luntao, 50 O.G.

p. 1182, 1183 28

We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena "to
pay immediately the Philippine National Construction Corporation, thru this office the sum of
FIFTY FIVE MILLION. . .", and that was what Tabuena precisely did when he delivered the
money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the
President inasmuch as Mrs. Gimenez was Marcos' secretary then. Furthermore, Tabuena had
reasonable ground to believe that the President was entitled to receive the P55 Million since
he was certainly aware that Marcos, as Chief Executive, exercised supervision and control
over government agencies. And the good faith of Tabuena in having delivered the money to
the President's office (thru Mrs. Gimenez), in strict compliance with the MARCOS
Memorandum, was not at all affected even if it later turned out that PNCC never received the
money. Thus, it has been said that:

Good faith in the payment of public funds relieves a public officer from the crime of
malversation.

xxx xxx xxx

Not every unauthorized payment of public funds is malversation. There is malversation

only if the public officer who has custody of public funds should appropriate the same,
or shall take or misappropriate or shall consent, or through abandonment or negligence
shall permit any other person to take such public funds. Where the payment of public
funds has been made in good faith, and there is reasonable ground to believe that the
public officer to whom the fund had been paid was entitled thereto, he is deemed to
have acted in good faith, there is no criminal intent, and the payment, if it turns out that
it is unauthorized, renders him only civilly but not criminally liable. 29

Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to
siphon-out public money for the personal benefit of those then in power, still, no criminal liability can
be imputed to Tabuena. There is no showing that Tabuena had anything to do whatsoever with the
execution of the MARCOS Memorandum. Nor is there proof that he profited from the felonious
scheme. In short, no conspiracy was established between Tabuena and the real embezzler/s of the
P5 Million. In the cases of "US v. Acebedo" 30 and "Ang v. Sandiganbayan",31 both also involving the
crime of malversation, the accused therein were acquitted after the Court arrived at a similar finding
of non-proof of conspiracy. In "Acebedo", therein accused, as municipal president of Palo, Leyte, was
prosecuted for and found guilty by the lower court of malversation after being unable to turn over
certain amounts to the then justice of the peace. It appeared, however, that said amounts were
actually collected by his secretary Crisanto Urbina. The Court reversed Acebedo's conviction after
finding that the sums were converted by his secretary Urbina without the knowledge and participation
of Acebedo. The Court said, which we herein adopt:

No conspiracy between the appellant and his secretary has been shown in this case,
nor did such conspiracy appear in the case against Urbina. No guilty knowledge of the
theft committed by the secretary was shown on the part of the appellant in this case, nor
does it appear that he in any way participated in the fruits of the crime. If the secretary
stole the money in question without the knowledge or consent of the appellant and
without negligence on his part, then certainly the latter can not be convicted of
embezzling the same money or any part thereof. 32

In "Ang", accused-petitioner, as MWSS bill collector, allowed part of his collection to be

converted into checks drawn in the name of one Marshall Lu, a non-customer of MWSS, but
the checks were subsequently dishonored. Ang was acquitted by this Court after giving
credence to his assertion that the conversion of his collections into checks were thru the
machinations of one Lazaro Guinto, another MWSS collector more senior to him. And we also
adopt the Court's observation therein, that:

The petitioner's alleged negligence in allowing the senior collector to convert cash
collections into checks may be proof of poor judgment or too trusting a nature insofar as
a superior officer is concerned but there must be stronger evidence to show fraud,
malice, or other indicia of deliberateness in the conspiracy cooked up with Marshall Lu.
The prosecution failed to show that the petitioner was privy to the conspirational
 scheme. Much less is there any proof that he profited from the questioned acts. Any
suspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS, must
be converted into evidence before conviction beyond reasonable doubt may be
imposed. 33

The principles underlying all that has been said above in exculpation of Tabuena equally apply
to Peralta in relation to the P5 Million for which he is being held accountable, i.e., he acted in
good faith when he, upon the directive of Tabuena, helped facilitate the withdrawal of P5
Million of the P55 Million of the MIAA funds.

This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly
executed order. Indeed, compliance to a patently lawful order is rectitude far better than
contumacious disobedience. In the case at bench, the order emanated from the Office of the
President and bears the signature of the President himself, the highest official of the land. It carries
with it the presumption that it was regularly issued. And on its face, the memorandum is patently
lawful for no law makes the payment of an obligation illegal. This fact, coupled with the urgent tenor
for its execution constrains one to act swiftly without question. Obedientia est legis essentia. Besides,
the case could not be detached from the realities then prevailing As aptly observed by Mr Justice
Cruz in his dissenting opinion:

We reject history in arbitrarily assuming that the people were free during the era and
that the Judiciary was independent and fearless. We know it was not: even the
Supreme Court at that time was not free. This is an undeniable fact that we can not just
blink away. Insisting on the contrary would only make our sincerity suspect and even
provoke scorn for what can only be described as our incredible credulity. 34

But what appears to be a more compelling reason for their acquittal is the violation of the accused's
basic constitutional right to due process. "Respect for the Constitution", to borrow once again Mr.
Justice Cruz's words, "is more important than securing a conviction based on a violation of the rights
of the accused."35 While going over the records, we were struck by the way the Sandiganbayan
actively took part in the questioning of a defense witness and of the accused themselves. Tabuena
and Peralta may not have raised this as an error, there is nevertheless no impediment for us to
consider such matter as additional basis for a reversal since the settled doctrine is that an appeal
throws the whole case open to review, and it becomes the duty of the appellate court to correct such
errors as may be found in the judgment appealed from whether they are made the subject of
assignments of error or not. 36

Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the testimony
of Francis Monera. then Senior Assistant Vice President and Corporate Comptroller of PNCC, Atty.
Andres asked sixteen (16) questions on direct examination. Prosecutor Viernes only asked six (6)
questions on cross-examination in the course of which the court interjected a total of twenty-seven
(27) questions (more than four times Prosecutor Viernes' questions and even more than the
combined total of direct and cross-examination questions asked by the counsels) After the defense
opted not to conduct any re-direct examination, the court further asked a total of ten (10)
questions.37 The trend intensified during Tabuena's turn on the witness stand. Questions from the
court after Tabuena's cross-examination totalled sixty-seven (67). 38 This is more than five times
Prosecutor Viernes' questions on cross-examination (14), and more than double the total of direct
examination and cross-examination questions which is thirty-one (31) [17 direct examination
questions by Atty. Andres plus 14 cross-examination questions by Prosecutor Viernes]. In Peralta's
case, the Justices, after his cross-examination, propounded a total of forty-one (41) questions. 39

But more importantly, we note that the questions of the court were in the nature of cross examinations
characteristic of confrontation, probing and insinuation. 40 (The insinuating type was best exemplified
in one question addressed to Peralta, which will be underscored.) Thus we beg to quote in length
from the transcripts pertaining to witness Monera, Tabuena and Peralta. (Questions from the Court
are marked with asterisks and italicized for emphasis.)

(MONERA)

(As a background, what was elicited from his direct examination is that the PNCC had receivables
from MIAA totalling P102,475,392.35, and although such receivables were largely billings for
escalation, they were nonetheless all due and demandable. What follows are the cross-examination
of Prosecutor Viernes and the court questions).

CROSS-EXAMINATION BY PROS. VIERNES

Q You admit that as shown by these Exhibits "7" and "7- a", the items here
represent mostly escalation billings. Were those escalation billings
properly transmitted to MIA authorities?

A I don't have the documents right now to show that they were
transmitted, but I have a letter by our President, Mr. Olaguer, dated July 6,
1988, following up for payment of the balance of our receivables from MIA,
sir.

*AJ AMORES

*Q This matter of escalation costs, is it not a matter for a conference

between the MIA and the PNCC for the determination as to the correct
amount?

A I agree, your Honor. As far as we are concerned, our billings are what
we deemed are valid receivables And, in fact, we have been following up
for payment.

*Q This determination of the escalation costs was it accepted as the

correct figure by MIA ?

A I don't have any document as to the acceptance by MIA your Honor, but
our company was able to get a document or a letter by Minister Ongpin to
President Marcos, dated January 7, 1985, with a marginal note or
approval by former President Marcos.

*PJ GARCHITORENA

*Q Basically, the letter of Mr. Ongpin is to what effect?

A The subject matter is approval of the supplementary contract and

request for partial deferment of payment for MIA Development Project,
your Honor.

*Q It has nothing to do with the implementation of the escalation costs?

A The details show that most of the accounts refer to our escalations, your
Honor.

*Q Does that indicate the computation for escalations were already billed
or you do not have any proof of that

A Our subsidiary ledger was based on billings to MIA and this letter of
Minister Ongpin appears to have confirmed our billings to MIA, your
Honor.

*AJ AMORES

*Q Were there partial payments made by MIA an these escalation billings?

A Based on records available as of today, the P102 million was reduced to

about P56.7 million, if my recollection is correct, your Honor.

*PJ GARCHITORENA

*Q Were the payments made before or after February 1986, since Mr.
Olaguer is a new entrant to your company?

WITNESS

A The payments were made after December 31, 1985 but I think the
payments were made before the entry of our President, your Honor.
Actually, the payment was in the form of: assignments to State Investment
of about P23 million; and then there was P17.8 million application against
advances made or formerly given; and there were payments to PNCC of
about P2.6 million and there was a payment for application on withholding
and contractual stock of about P1 million; that summed up to P44.4 million
all in all. And you deduct that from the P102 million, the remaining balance
would be about P57 million.

*PJ GARCHITORENA

*Q What you are saying is that, for all the payments made on this P102
million, only P2 million had been payments in cash ?

A Yes, your Honor.

*Q The rest had been adjustments of accounts, assignments of accounts,

or offsetting of accounts?

A Yes, your Honor.

*Q This is as of December 31, 1985?

A The P102 million was as of December 31, 1985, your Honor, but the
balances is as of August 1987.

*Q We are talking now about the P44 million, more or less, by which the
basic account has been reduced. These reductions, whether by
adjustment or assignment or actual delivery of cash, were made after
December 31, 1985?

WITNESS

A Yes, your Honor.

*Q And your records indicate when these adjustments and payments were
made?

A Yes, your Honor.

*AJ AMORES

*Q You said there were partial payments before of these escalation

billings. Do we get it from you that there was an admission of these
escalation costs as computed by you by MIA, since there was already
partial payments?

A Yes, your Honor.

*Q How were these payments made before February 1986, in case or

check, if there were payments made?

A The P44 million payments was in the form of assignments, your Honor.

*PJ GARCHITORENA

*Q The question of the Court is, before December 31, 1985, were there
any liquidations made by MIA against these escalation billings?

A I have not reviewed the details of the record, your Honor. But the ledger
card indicates that there were collections on page 2 of the Exhibit earlier
presented. It will indicate that there were collections shown by credits
indicated on the credit side of the ledger.

*AJ AMORES

*Q Your ledger does not indicate the manner of giving credit to the MIA
with respect to the escalation billings. Was the payment in cash or just
credit of some sort before December 31, 1985?

A Before December 31, 1985, the reference of the ledger are official
receipts and I suppose these were payments in cash, your Honor.
 *Q Do you know how the manner of this payment in cash was made by
MIA?

A I do not know, your Honor.

*PJ GARCHITORENA

*Q But your records will indicate that?

A The records will indicate that, your Honor.

*Q Except that you were not asked to bring them?

A Yes, your Honor.

*Q At all events, we are talking of settlement or partial liquidation prior to

December 31, 1985?

A Yes, your Honor.

*PJ GARCHITORENA

*Q Subsequent thereto, we are talking merely of about P44 million?

A Yes, your Honor, as subsequent settlements.

*Q After December 31, 1985?

A Yes, your Honor.

*Q And they have liquidated that, as you described it, by way of

assignments, adjustments, by offsets and by P2 million of cash payment?

A Yes, your Honor.

*AJ AMORES

*Q Your standard operating procedure before December 31, 1985 in

connection with or in case of cash payment, was the payment in cash or
check?

A I would venture to say it was by check, your Honor.

*Q Which is the safest way to do it?

A Yes, your Honor.

"PJ GARCHITORENA

*Q And the business way?

A Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q You mentioned earlier about the letter of former Minister Ongpin to the
former President Marcos, did you say that letter concurs with the
escalation billings reflected in Exhibits "7" and "7-a"?

WITNESS
A The Company or the management is of the opinion that this letter, a
copy of which we were able to get, is a confirmation of the acceptance of
our billings, sir.

Q This letter of Minister Ongpin is dated January 7, 1985, whereas the

entries of escalation billings as appearing in Exhibit "7" are dated June 30,
1985, would you still insist that the letter of January 1985 confirms the
escalation billings as of June 1985?

A The entries started June 30 in the ledger card. And as of December 31,
1985, it stood at P102 million after payments were made as shown on the
credit side of the ledger. I suppose hat the earlier amount, before the
payment was made, was bigger and therefore I would venture to say that
the letter of January 7, 1985 contains an amount that is part of the original
contract account. What are indicated in the ledger are escalation billings.

*PJ GARCHITORENA

*Q We are talking about the letter of Minister Ongpin?

A The letter of Minister Ongpin refers to escalation billings, sir.

*Q As of what date?

A The letter is dated January 7, 1985, your Honor.

PJ GARCHITORENA

Continue.

PROS. VIERNES

Q In accordance with this letter marked Exhibit "7" and "7-a", there were
credits made in favor of MIA in July and November until December 1985.
These were properly credited to the account of MIA?

WITNESS

A Yes, sir.

Q In 1986. from your records as appearing in Exhibit "7-a", there were no

payments made to PNCC by MIA for the months of January to June 1986?

A Yes, sir.

Q And neither was the amount of P22 million remitted to PNCC by MIA?

A Yes, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY ANDRES

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ AMORES
*Q From your records, for the month of January 1986, there was no
payment of this escalation account by MIA?

WITNESS

A Yes, your Honor. But on page 2 of Exhibit "7" there appears an

assignment of P23 million, that was on September 25, 1986.

*Q But that is already under the present administration?

A After February 1986, your Honor.

*Q But before February, in January 1986, there was no payment

whatsoever by MIA to PNCC?

A Per record there is none appearing, your Honor.

*PJ GARCHITORENA

*Q The earliest payment, whether by delivery of cash equivalent or of

adjustment of account, or by assignment, or by offsets, when did these
payments begin?

A Per ledger card, there were payments in 1985, prior to December 31,
1985, your Honor.

*Q After December 31, 1985?

A There appears also P23 million as credit, that is a form of settlement,

your Honor.

*Q This is as of September 25?

A Yes, your Honor. There were subsequent settlements P23 million is just
part of the P44 million.

*Q And what you are saying is that, PNCC passed the account to State
Investment. In other words, State Investment bought the credit of MIA?

A Yes, your Honor.

*Q And the amount of credit or receivables sold by PNCC to State

Investment is P23 million?

A Yes, your Honor.

*Q Is there a payback agreement?

A I have a copy of the assignment to State Investment but I have not yet
reviewed the same, your Honor.

*AJ AMORES

*Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?

A There is still a balance of receivables from MIA as evidenced by a

collection letter by our President dated July 6, 1988, your Honor. The
amount indicated in the letter is P55 million.

PJ GARCHITORENA

Any clarifications you would like to make Mr. Estebal?

ATTY ESTEBAL

None, your Honor.

 PJ GARCHITORENA

Mr. Viernes?

PROS VIERNES

No more, your Honor.

PJ GARCHITORENA

The witness is excused. Thank you very much Mr. Monera. . . . 41

(TABUENA)

(In his direct examination, he testified that he caused the preparation of the checks totalling P55
Million pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in cash
on the three (3) dates as alleged in the information to Marcos' private secretary Mrs. Jimenez at her
office at Aguado Street, who thereafter issued a receipt. Tabuena also denied having used the money
for his own personal use.)

CROSS-EXAMINATION BY PROS. VIERNES

Q The amount of P55 million as covered by the three (3) checks Mr.
Tabuena, were delivered on how many occasions?

A Three times, sir.

Q And so, on the first two deliveries, you did not ask for a receipt from
Mrs. Gimenez?

A Yes, sir.

Q It was only on January 30, 1986 that this receipt Exhibit "3" was issued
by Mrs. Gimenez?

A Yes, sir.

*PJ GARCHITORENA

*Q So January 30 is the date of the last delivery?

A I remember it was on the 31st of January, your Honor What happened is

that, I did not notice the date placed by Mrs. Gimenez.

Q Are you telling us that this Exhibit "3" was incorrectly dated

A Yes, your Honor.

*Q Because the third delivery was on January 31st and yet the receipt was
dated January 30?

A Yes, your Honor.

*Q When was Exhibit "3" delivered actually by Mrs. Gimenez?

A January 31st, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q You did not go to Malacañang on January 30, 1986?

A Yes, sir, I did not.

Q Do you know at whose instance this Exhibit "3" was prepared?

A I asked for it, sir.

Q You asked for it on January 31, 1986 when you made the last delivery?

A Yes, sir.

Q Did you see this Exhibit "3" prepared in the Office of Mrs. Gimenez?

A Yes, sir.

Q This receipt was typewritten in Malacañang stationery. Did you see who
typed this receipt?

A No, sir. What happened is that, she went to her room and when she
came out she gave me that receipt.

*PJ GARCHITORENA

Q What you are saying is, you do not know who typed that receipt?

WITNESS

A Yes, your Honor.

*Q Are you making an assumption that she typed that receipt?

A Yes, your Honor, because she knows how to type.

*Q Your assumption is that she typed it herself?

A Yes, your Honor.

PJ GARCHITORENA

Proceed.

PROS. VIERNES

Q This receipt was prepared on January 31, although it is dated January

30?

A Yes, sir, because I was there on January 31st.

Q In what particular place did Mrs. Gimenez sign this Exhibit "3"?

A In her office at Aguado, sir.

Q Did you actually see Mrs. Gimenez signing this receipt Exhibit "3"?

A No, sir, I did not. She was inside her room.

Q So, she was in her room and when she came out of the room, she
handed this receipt to you already typed and signed?

A Yes, sir.

*AJ HERMOSISIMA

*Q So, how did you know this was the signature of Mrs. Gimenez?

WITNESS

A Because I know her signature, your Honor. I have been receiving letters
from her also and when she requests for something from me. Her writing
is familiar to me.
So, when the Presiding Justice asked you as to how you knew that this
was the signature of Mrs. Gimenez and you answered that you saw Mrs.
Gimenez signed it, you were not exactly truthful?

A What I mean is, I did not see her sign because she went to her room
and when she came out, she gave me that receipt, your Honor.

PJ GARCHITORENA

That is why you have to wait for the question to be finished and listen to it
carefully. Because when I asked you, you said you saw her signed it. Be
careful Mr. Tabuena.

WITNESS

Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Was there another person inside the office of Mrs. Gimenez when she
gave you this receipt Exhibit "3"?

A Nobody, sir.

Q I noticed in this receipt that the last delivery of the sum of P55 million
was made on January 30. Do we understand from you that this date
January 30 is erroneous?

A Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This

should be January 31st, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY. ANDRES

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ HERMOSISIMA

*Q Why did you not ask for a receipt on the first and second deliveries?

A Because I know that the delivery was not complete yet, your Honor.

*PJ GARCHITORENA

*Q So you know that the total amount to be delivered was P55 million')

A Yes, your Honor.

PJ GARCHITORENA

Response by Mr. Peralta to the testimony of Mr. Tabuena.

ATTY. ESTEBAL

We are adopting the testimony of Mr. Tabuena and we will also present
the accused, your Honor.

*AJ DEL ROSARIO

"Q From whom did you receive the President's memorandum marked
Exhibit "1"? Or more precisely, who handed you this memorandum?

A Mrs. Fe Roa Gimenez, your Honor.

Q Did you ask Mrs, Fe Gimenez for what purpose the money was being
asked?

A The money was in payment for the debt of the MIA Authority to PNCC,
your Honor.

*Q If it was for the payment of such obligation why was there no voucher
prepared to cover such payment? In other words, why was the delivery of
the money not covered by any voucher?

A The instruction to me was to give it to the Office of the President, your

Honor.

*PJ GARCHITORENA

*Q Be that as it may, why was there no voucher to cover this particular

disbursement?

A I was just told to bring it to the Office of the President, your Honor.

*AJ DEL ROSARIO

*Q Was that normal procedure for you to pay in cash to the Office of the
President for obligations of the MIAA in payment of its obligation to
another entity?

WITNESS

A No, your Honor, I was just following the Order to me of the President.

*PJ GARCHITORENA

*Q So the Order was out of the ordinary?

A Yes, your Honor.

*AJ DEL ROSARIO

Did you file any written protest with the manner with which such payment
was being ordered?

A No, your Honor.

*Q Why not?

A Because with that instruction of the President to me, I followed, your

Honor.

*Q Before receiving this memorandum Exhibit "1", did the former President
Marcos discuss this maitter with you?

A Yes, your Honor.

*Q When was that?

A He called me up earlier, a week before that, that he wants to me pay
what I owe the PNCC directly to his office in cash, your Honor.

*PJ GARCHITORENA

*Q By "I OWE ", you mean the MIAA?

WITNESS

A Yes, your Honor.

*AJ DEL ROSARIO

*Q And what did you say in this discussion you had with him?

A I just said, "Yes, sir, I will do it/"

*Q Were you the one who asked for a memorandum to be signed by him?

A No, your Honor.

*Q After receiving that verbal instruction for you to pay MIAA's obligation
with PNCC, did you not on your own accord already prepare the
necessary papers and documents for the payment of that obligation?

A He told me verbally in the telephone that the Order for the payment of
that obligation is forthcoming, your Honor. I will receive it.

*Q Is this the first time you received such a memorandum from the
President?

A Yes, your Honor.

*Q And was that the last time also that you received such a
memorandum?

A Yes, your Honor.

*Q Did you not inquire, if not from the President, at least from Mrs.
Gimenez why this procedure has to be followed instead of the regular
procedure?

A No, sir.

*AJ DEL ROSARIO

*Q Why did you not ask?

A I was just ordered to do this thing, your Honor.

*AJ HERMOSISIMA

*Q You said there was an "I OWE YOU"?

A Yes, your Honor.

*Q Where is that "I OWE YOU" now?

A All I know is that we owe PNCC the amount of P99.1 million, your
Honor. MIAA owes PNCC that amount.

*Q Was this payment covered by receipt from the PNCC?

A It was not covered, your Honor.

*Q So the obligation of MIAA to PNCC was not, for the record, cancelled
by virtue of that payment?
A Based on the order to me by the former President Marcos ordering me
to pay that amount to his office and then the mechanics will come after,
your Honor.

*Q Is the PNCC a private corporation or government entity?

A I think it is partly government, your Honor.

*PJ GARCHITORENA

*Q That is the former CDCP?

A Yes, your Honor.

*AJ HERMOSISIMA

*Q Why were you not made to pay directly, to the PNCC considering that
you are the Manager of MIA at that time and the PNCC is a separate
corporation, not an adjunct of Malacañang?

WITNESS

A I was just basing it from the Order of Malacanang to pay PNCC through
the Office of the President, your Honor.

*Q Do you know the President or Chairman of the Board of PNCC?

A Yes, your Honor.

"Q How was the obligation of MIAA to PNCC incurred. Was it through the
President or Chairman of the Board?

A PNCC was the one that constructed the MIA, your Honor.

*Q Was the obligation incurred through the President or Chairman of the

Board or President of the PNCC? In other words, who signed the contract
between PNCC and MIAA?

A Actually, we inherited this obligation, your Honor. The one who signed
for this was the former Director of BAT which is General Singzon. Then
when the MIA Authority was formed, all the obligations of BAT were
transferred to MIAA. So the accountabilities of BAT were transferred to
MIAA and we are the ones that are going to pay, your Honor.

*Q Why did you agree to pay to Malacañang when your obligation was
with the PNCC?

A I was ordered by the President to do that, your Honor.

*Q You agreed to the order of the President notwithstanding the fact that
this was not the regular course or Malacañang was not the creditor?

A I saw nothing wrong with that because that is coming, from the
President, your Honor.

*Q The amount was not a joke, amounting to P55 million, and you agreed
to deliver money in this amount through a mere receipt from the private
secretary?

A I was ordered by the President, your Honor.

*PJ GARCHITORENA

*Q There is no question and it can be a matter of judicial knowledge that

you have been with the MIA for sometime?

A Yes, your Honor.

*Q Prior to 1986?

A Yes, your Honor.

*Q Can you tell us when you became the Manager of MIA?

A I became Manager of MIA way back, late 1968, your Honor.

*Q Long before the MIA was constituted as an independent authority?

A Yes, your Honor.

*PJ GARCHITORENA

*Q And by 1986, you have been running the MIA for 18 years?

WITNESS

A Yes, your Honor.

*Q And prior to your Joining the MIA, did you ever work for the
government?

A No, your Honor.

*Q So, is it correct for us to say that your joining the MIA in 1968 as its
Manager was your first employment ,with the government?

A Yes, your Honor.

*Q While you were Manager of MIA, did you have other subsequent
concurrent positions in the government also?

A I was also the Chairman of the Games and Amusement Board, your
Honor.

*Q But you were not the executive or operating officer of the Games and
Amusement Board?

A I was, your Honor.

*Q As Chairman you were running the Games and Amusement Board?

A Yes, your Honor.

*Q What else, what other government positions did you occupy that time?

A I was also Commissioner of the Game Fowl Commission, your Honor.

*PJ GARCHITORENA

*Q That is the cockfighting?

WITNESS

A Yes, your Honor.

*Q Here, you were just a member of the Board?

A Yes, your Honor.

*Q So you were not running the commission?

A Yes, your Honor.

*Q Any other entity?

A No more, your Honor.

*Q As far as you can recall, besides being the Manager of the MIA and
later the MIAA for approximately 18 years, you also ran the Games and
Amusement Board as its executive officer?

A Yes, your Honor.

*Q And you were a commissioner only of the Came Fowl Commission?

A Yes, your Honor.

*Q Who was running the commission at that time?

A I forgot his name, but he retired already, your Honor.

*Q All of us who joined the government, sooner or later, meet with our
Resident COA representative?

A Yes, your Honor.

*PJ GARCHITORENA

*Q And one of our unfortunate experience (sic) is when the COA

Representative comes to us and says: "Chairman or Manager, this cannot
be". And we learn later on that COA has reasons for its procedure and we
learn to adopt to them?

WITNESS

A Yes, your Honor.

*Q As a matter of fact, sometimes we consider it inefficient, sometimes we

consider it foolish, but we know there is reason in this apparent madness
of the COA and so we comply?

A Yes, your Honor.

*Q And more than anything else the COA is ever anxious for proper
documentation and proper supporting papers?

A Yes, your Honor.

*Q Sometimes, regardless of the amount?

A Yes, your Honor.

*Q Now, you have P55 million which you were ordered to deliver in cash,
not to the creditor of the particular credit, and to be delivered in armored
cars to be acknowledged only by a receipt of a personal secretary. After
almost 18 years in the government service and having had that much time
in dealing with COA people, did it not occur to you to call a COA
representative and say, "What will I do here?"

A I did not, your Honor.

*PJ GARCHITORENA

*Q Did you not think that at least out of prudence, you should have asked
the COA for some guidance on this matter so that you will do it properly?

WITNESS

A What I was going to do is, after those things I was going to tell that
delivery ordered by the President to the COA, your Honor.
*Q That is true, but what happened here is that you and Mr. Dabao or you
and Mr. Peralta signed requests for issuance of Manager's checks and
you were accommodated by the PNB Office at Nichols without any internal
documentation to justify your request for Manager's checks?

A Yes, your Honor.

*Q Of course we had no intimation at that time that Mr. Marcos will win the
elections but even then, the Daily Express, which was considered to be a
newspaper friendly to the Marcoses at that time, would occasionally come
with so-called expose, is that not so?

A Yes, your Honor.

*Q And worst, you had the so-called mosquito press that would always
come out with the real or imagined scandal in the government and place it
in the headline, do you recall that?

A Yes, your Honor.

*PJ GARCHITORENA

Under these circumstances, did you not entertain some apprehension that
some disloyal employees might leak you out and banner headline it in
some mosquito publications like the Malaya at that time?

WITNESS

A No, your Honor.

*PJ GARCHITORENA

I bring this up because we are trying to find out different areas of fear. We
are in the government and we in the government fear the COA and we
also fear the press. We might get dragged into press releases on the most
innocent thing. You believe that?

A Yes, your Honor.

*Q And usually our best defense is that these activities are properly
documented?

A Yes, your Honor.

*Q In this particular instance, your witnesses have told us about three (3)
different trips from Nichols to Aguado usually late in the day almost in
movie style fashion. I mean, the money being loaded in the trunk of your
official car and then you had a back-up truck following your car?

A Yes, your Honor.

*Q Is that not quite a fearful experience to you ?

A I did not think of that at that time, your Honor.

*PJ GARCHITORENA

"Q You did not think it fearful to be driving along Roxas Boulevard with
P25 million in the trunk of your car?

WITNESS

A We have security at that time your Honor.

ATTY. ANDRES
 Your Honor, the P25 million was in the armored car; only P5 million was in
the trunk of his car.

*PJ GARCHITORENA

Thank you for the correction. Even P1 million only. How much more with
P5 million inside the trunk of your car, was that not a nervous experience?

A As I have said, your Honor, I never thought of that.

PJ GARCHITORENA
42
Thank you very much, Mr. Tabuena. You are excused. . . .

(PERALTA)

(He testified on direct examination that he co-signed with Tabuena a memorandum request for the
issuance of the Manager's Check for P5 Million upon order of Tabuena and that he [Peralta] was
aware that MIAA had an existing obligation with PNCC in the amount of around P27 Million. He
affirmed having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but
denied having misappropriated for his own benefit said amount or any portion thereof.)

CROSS-EXAMINATION BY PROS VIERNES

Q Will you please tell the Honorable Court why was it necessary for you to
co-sign with Mr. Tabuena the request for issuance of Manager's check in
the amount of P5 million?

A At that time I was the Acting Financial Services Manager of MIAA, sir,
and all withdrawals of funds should have my signature because I was one
of the signatories at that time.

Q As Acting Financial Services Manager of MIAA, you always co-sign with

Mr. Tabuena in similar requests for the issuance of Manager's checks by
the PNB?

A That is the only occasion I signed, sir.

Q Did you say you were ordered by Mr. Tabuena to sign the request?

A Yes, sir, and I think the order is part of the exhibits and based on that
order, I co-signed in the request for the issuance of Manager's check in
favor of Mr. Luis Tabuena.

PROS VIERNES

Q Was there a separate written order for you to co-sign with Mr. Tabuena?

WITNESS

A Yes, sir, an order was given to me by Mr. Tabuena.

*PJ GARCHITORENA

Was that marked in evidence?

WITNESS

Yes, your Honor.

*PJ GARCHITORENA

What exhibit?

WITNESS
I have here a copy, your Honor. This was the order and it was marked as
exhibit "N".

PROS VIERNES

It was marked as Exhibit "M", your Honor.

Q How did you know there was an existing liability of MIAA in favor of
PNCC at that time?

A Because prior to this memorandum of Mr. Tabuena, we prepared the

financial statement of MIAA as of December 31, 1985 and it came to my
attention that there was an existing liability of around P27,999,000.00,
your Honor.

Q When was that Financial Statement prepared?

A I prepared it around January 22 or 24, something like that, of 1986, sir.

Q Is it your usual practice to prepare the Financial Statement after the end
of the year within three (3) weeks after the end of the year?

A Yes, sir, it was a normal procedure for the MIAA to prepare the Financial
Statement on or before the 4th Friday of the month because there will be a
Board of Directors Meeting and the Financial Statement of the prior month
will be presented and discussed during the meeting.

*PJ GARCHITORENA

*Q This matter of preparing Financial Statement was not an annual activity

but a monthly activity?

A Yes, your Honor.

*Q This Financial Statement you prepared in January of 1986

recapitulated the financial condition as of the end of the year?

A Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q You made mention of a request for Escalation Clause by former

Minister Ongpin. Did you personally see that request?

A When this order coming from Mr. Tabuena was shown to me, I was
shown a copy, sir. I have no file because I just read it.

Q It was Mr. Tabuena who showed you the letter of Minister Ongpin?

A Yes, sir.

*PJ GARCHITORENA

And that will be Exhibit?

ATTY. ANDRES

Exhibit "2" and "2-A", your Honor.

PROS VIERNES

Q You also stated that you were with Mr. Tabuena when you withdrew the
amount of P5 million from the PNB Extension Office at Villamor?
A Yes, sir.

Q Why was it necessary for you to go with him on that occasion?

A Mr. Tabuena requested me to do the counting by million, sir. So what I

did was to bundle count the P5 million and it was placed in two (2)
peerless boxes.

Q Did you actually participate in the counting of the money by bundles?

A Yes, sir.

Q Bundles of how much per bundle?

A If I remember right, the bundles consisted of P100s and P50s, sir.

Q No P20s and P10s?

A Yes, sir, I think it was only P100s and P50s.

*PJ GARCHITORENA

*Q If there were other denominations, you can not recall?

A Yes, your Honor.

PROS VIERNES

Q In how many boxes were those bills placed?

A The P5 million were placed in two (2) peerless boxes,

Q And you also went with Mr. Tabuena to Aguado?

A No, sir, I was left behind at Nichols. After it was placed at the trunk of
the car of Mr. Tabuena, I was left behind and I went back to my office at
MIA.

Q But the fact is that, this P5 million was withdrawn at passed 5:00 o'clock
in the afternoon?

A I started counting it I think at around 4:30, sir. It was after office hours.
But then I was there at around 4:00 o'clock and we started counting at
around 4:30 p.m. because they have to place it in a room, which is the
office of the Manager at that time.

Q And Mr. Tabuena left for Malacañang after 5:00 o'clock in the afternoon
of that date?

A Yes, sir. After we have counted the money, it was placed in the peerless
boxes and Mr. Tabuena left for Malacanang.

PROS VIERNES

Q And you yourself, returned to your office at MIA?

WITNESS

A Yes, sir.

Q Until what time do you hold office at the MIA?

A Usually I over-stayed for one (1) or two (2) hours just to finish the paper
works in the office, sir.

Q So, even if it was already after 5:00 o'clock in the afternoon, you still
went back to your office at MIA?
A Yes, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY. ESTEBAL

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ DEL ROSARIO

*Q Did you not consider it as odd that your obligation with the PNCC had
to be paid in cash?

WITNESS

A Based on the order of President Marcos that we should pay in cash, it

was not based on the normal procedure, your Honor.

*Q And, as Acting Financial Services Manager, you were aware that all
disbursements should be covered by vouchers?

A Yes, your Honor, the payments should be covered by vouchers. But

then, inasmuch as what we did was to prepare a request to the PNB, then
this can be covered by Journal Voucher also.

*Q Was such payment of P5 million covered by a Journal Voucher?

A Yes, your Honor.

*Q Did you present that Journal Voucher here in Court?

A We have a copy, your Honor.

*Q Do you have a copy or an excerpt of that Journal Voucher presented in

Court to show that payment?

A We have a copy of the Journal Voucher, your Honor.

*Q Was this payment of P5 million ever recorded in a cashbook or other

accounting books of MIAA ?

A The payment of P5 million was recorded in a Journal Voucher, your

Honor.

*PJ GARCHITORENA

*Q In other words, the recording was made directly to the Journal?

WITNESS

A Yes, your Honor.

*Q There are no other separate documents as part of the application for

Manager's Check?

A Yes, your Honor, there was none.

*AJ DEL ROSARIO

*Q After the payment was made, did your office receive any receipt from
PNCC?

A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa
Gimenez, your Honor. Inasmuch as the payment should be made through
the Office of the president, I accepted the receipt given by Mrs. Fe
Gimenez to Mr. Tabuena.

*Q After receiving that receipt, did you prepare the necessary supporting
documents, vouchers, and use that receipt as a supporting document to
the voucher?

A Your Honor, a Journal Voucher was prepared for that.

*Q How about a disbursement voucher?

A Inasmuch as this was a request for Manager's check, no disbursement

voucher was prepared, your Honor.

*AJ DEL ROSARIO

*Q Since the payment was made on January 31, I986, and that was very
close to the election held in that year, did you not entertain any doubt that
the amounts were being used for some other purpose?

ATTY. ESTEBAL

With due respect to the Honorable Justice, we are objecting to the

question on the ground that it is improper.

*AJ DEL ROSARIO

I will withdraw the question.

*PJ GARCHITORENA

What is the ground for impropriety?

ATTY. ESTEBAL

This is not covered in the direct examination, and secondly, I don't think
there was any basis, your Honor.

*PJ GARCHITORENA

Considering the withdrawal of the question, just make the objection on

record.

*AJ HERMOSISIMA

*Q As a Certified Public Accountant and Financial Manager of the MIAA,

did you not consider it proper that a check be issued only after it is
covered by a disbursement voucher duly approved by the proper
authorities ?

A Your Honor, what we did was to send a request for a Manager's check
to the PNB based on the request of Mr. Tabuena and the order of Mr.
Tabuena was based on the Order of President Marcos.

*PJ GARCHITORENA

*Q In your capacity as Financial Services Manager of the MIAA, did you

not think it proper to have this transaction covered by a disbursement
voucher?
WITNESS

A Based on my experience, payments out of cash can be made through

cash vouchers, or even though Journal Vouchers, or even through credit
memo, your Honor.

*AJ HERMOSISIMA

*Q This was an obligation of the MIAA to the PNCC. Why did you allow a
disbursement by means of check in favor of Mr. Luis Tabuena, your own
manager?

A We based the payment on the order of Mr. Tabuena because that was
the order of President Marcos to pay PNCC through the Office of the
President and it should be paid in cash, your Honor.

*Q You are supposed to pay only on legal orders. Did you consider that
legal?

ATTY. ESTEBAL

With due respect to the Honorable Justice, the question calls for a
conclusion of the witness.

*PJ GARCHITORENA

Considering that tire witness is an expert, witness may answer.

WITNESS

A The order of president Marcos was legal at that time because the order
was to pay PNCC the amount of P5 million through the Office of the
President and it should be paid in cash, your Honor. And at that time, I
know for a fact also that there was an existing P.D. wherein the President
of the Republic of the Philippines can transfer funds from one office to
another and the PNCC is a quasi government entity at that time.

*AJ HERMOSISIMA

*Q Are you saying that this transaction was made on the basis of that P.D.
which you referred to?

A I am not aware of the motive of the President, but then since he is the
President of the Philippines, his order was to pay the PNCC through the
Office of the President, your Honor.

*Q As Financial Manager, why did you allow a payment in cash when

ordinarily payment of an obligation of MIAA is supposed to be paid in
check?

A I caused the payment through the name of Mr. Tabuena because that
was the order of Mr. Tabuena and also he received an order coming from
the President of the Philippines at that time, your Honor.

*PJ GARCHITORENA

*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to
correct certain statements of accounts earlier made in the same journal?

In other words, really what you are telling us is that, a Journal Voucher is
to explain a transaction was otherwise not recorded.

WITNESS

A Yes, your Honor.

*Q Therefore, when you said that a Journal Voucher here is proper, you
are saying it is proper only because of the exceptional nature of the
transactions?

A Yes, your Honor.

*Q In other words, as an Accountant, you would not normally authorize

such a movement of money unless it is properly documented?

ATTY. ESTEBAL

With due respect to the Honorable Presiding Justice, I think the question is
misleading because what the witness stated is. . .

*PJ GARCHITORENA

Be careful in your objection because the witness understands the

language you are speaking, and therefore, you might be coaching him.

ATTY. ESTEBAL

No, your Honor. I am also an accountant that is why I could say that. . .

*PJ GARCHITORENA

Please be simple in your objection.

ATTY. ESTEBAL

The question is misleading on the ground that what the witness stated
earlier is that the Journal Voucher in this particular case was supported,
your Honor.

*PJ GARCHITORENA

Overruled, may answer.

WITNESS

A The transaction was fully documented since we have the order of the
General Manager at that time and the order of President Marcos, your
Honor.

*Q Are you saying the Order of the General Manager is an adequate basis
for the movement of money?

A Yes, your Honor, because at that time we have also a recorded liability
of P27 million.

*Q we are not talking of whether or not there was a liability. What we are
saying is, is the order of the General Manager by itself adequate with no
other supporting papers, to justify the movement of funds?

A Yes, your Honor. The order of Mr. Luis Tabuena was based on our
existing liability of P27,931,000.00, inasmuch as we have that liability and
I was shown the order of President Marcos to pay P5 million through the
Office of the President, I considered the order of Mr. Luis Tabuena, the
order of President Marcos and also the existing liability of P27 million
sufficient to pay the amount of P5 million. Inasmuch as there is also an
escalation clause of P99.1 million, the payment of P5 million is fully
covered by those existing documents.

*PJ GARCHITORENA

You keep flooding us with details we are not asking for. We are not asking
you whether or not there was valid obligation. We are not asking you
about the escalation clause. We are asking you whether or not this
particular order of Mr. Tabuena is an adequate basis to justify the
movement of funds?

WITNESS

When we pay, your Honor, we always look for the necessary documents
and at that time I know for a fact that there was this existing liability.

*PJ GARCHITORENA

When we ask questions and when we answer them, we must listen to the
question being asked and not to whatever you wanted to say. I know you
are trying to protect yourself. We are aware of your statement that there
are all of these memoranda.

*Q By your disbursement of such amount, you are saying that the order of
Mr. Tabuena by itself is adequate?

WITNESS

A As far as I am concerned, your Honor, inasmuch as we have a liability

and I was shown the Order of President Marcos to pay PNCC through his
office, I feel that the order of the General Manager, the order of President
Marcos, and also the memorandum of Minister Ongpin are sufficient to
cause the payment of P5 million.

*PJ GARCHITORENA

*Q This Presidential Decree which authorizes the President to transfer

funds from one department to another, is this not the one that refers to the
realignment of funds insofar as the Appropriation Act is concerned?

WITNESS

A Because at that time, your Honor, I have knowledge that the President
is authorized through a Presidential Decree to transfer government funds
from one office to another.

*PJ GARCHITORENA

*Q Under the Appropriation Act. Are payments of debts of the MIAA

covered by the Appropriation Act?

A I think the liability was duly recorded and appropriations to pay the
amount is. . . . (interrupted)

*PJ GARCHITORENA

*Q Tell me honestly, is your answer responsive to the question or are you

just throwing words at us in the hope that we will forget what the question
is?

A No, your Honor.

*Q Are you telling us that the debts incurred by MIAA ate covered by the
Appropriations Act so that the payment of this debt would be in the same
level as the realignment of funds authorized the President? Or are you
telling as you did not read the Decree?

A I was aware of that Decree, your Honor.

*PJ GARCHITORENA

Mr. Estebal, will you include in your memorandum what are the Decrees
authorizing this movement of funds?

ATTY. ESTEBAL
Yes, your Honor.

*PJ GARCHITORENA

*Q It is true that President Marcos was the President, but he was not an
officer of the MIAA, was he?

A No, your Honor.

*Q In fact, for purposes of internal control, you have different officers and
different officials in any company either government or private, which are
supposed to check and balance each other, is it not?

A Yes, your Honor.

*Q So that when disbursements of funds are made, they are made by

authority of not only one person alone so that nobody will restrain him?

A Yes, your Honor.

*Q These checks and balances exist in an entity so that no one person

can dispose of funds in any way he likes?

A Yes, your Honor.

*Q And in fact, the purpose for having two (2) signatories to documents
and negotiable documents is for the same purpose?

A Yes, your Honor.

*PJ GARCHITORENA

*Q In other words, the co-signatories counter check each other?

WITNESS

A Yes, your Honor.

*Q In your case, you would be the counter check for Mr. Tabuena?

A Yes, your Honor.

*Q In the other words, even if Mr. Tabuena is the Manager, you as

Financial Services Manager and as counter signatory are in a position to
tell Mr. Tabuena, "I am sorry, you are my superior but this disbursement is
not proper and, therefore, I will not sign it"., if in your opinion the
disbursement is not proper?

A Yes, your Honor.

*Q Therefore, as a co-signatory, you expected to exercise your judgment

as to the propriety of a particular transactions?

A Yes, your Honor.

*Q And this is something you know by the nature of your position and
because you are a Certified Public Accountant?

A Yes, your Honor.

*AJ DEL ROSARIO

*Q You admit that the payment of P5 million and P50 million were unusual
in the manner with which they were disposed?

A Yes, your Honor.

 *Q Did you submit a written protest to the manner in which such amount
was being disposed of?

A A written protest was not made, your Honor, but I called the attention of
Mr. Tabuena that since this payment was upon the order of President
Marcos, then I think as President he can do things which are not ordinary.

*Q If you did not prepare a written protest, did you at least prepare a
memorandum for the record that this was an extra-ordinary transaction?

A I called the attention of Mr. Tabuena that this was an extra-ordinary

transaction and no written note, your Honor.

PJ GARCHITORENA
43
Thank you very much Mr. Peralta, you are excused. . . .

This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying
his mind upon any material point which presents itself during the trial of a case over which he
presides. 44 But not only should his examination be limited to asking "clarificatory" questions, 45 the
right should be sparingly and judiciously used; for the rule is that the court should stay out of it as
much as possible, neither interfering nor intervening in the conduct of the trial. 46 Here, these
limitations were not observed. Hardly in fact can one avoid the impression that the Sandiganbayan
had allied itself with, or to be more precise, had taken the cudgels for the prosecution in proving the
case against Tabuena and Peralta when the Justices cross-examined the witnesses, their cross-
examinations supplementing those made by Prosecutor Viernes and far exceeding the latter's
questions in length. The "cold neutrality of an impartial judge" requirement of due process was
certainly denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual
role of magistrate and advocate. In this connection, the observation made in the Dissenting Opinion
to the effect that the majority of this Court was "unduly disturbed" with the number of court questions
alone, is quite inaccurate. A substantial portion of the TSN was incorporated in the majority opinion
not to focus on "numbers" alone, but more importantly to show that the court questions were in the
interest of the prosecution and which thus depart from that common standard of fairness and
impartiality. In fact, it is very difficult to be, upon review of the records, confronted with "numbers"
without necessarily realizing the partiality of the Court. In "US v. De Sisto" (2 Cir., 1961, 289 F 2d
833), for example, a new trial was required because the trial judge, as in this case, indulged in
extensive questioning of defendant and his witnesses, and the reviewing court also had to amplify on
"numbers" to bolster this. It was pointed out in the "De Sisto" case that the judge asked 3,115
questions of all witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judge's
questions to the defendant De Sisto totalled 306, the prosecutor's 347, and the defense counsel's,
201. After referring to these figures, the court stated:

. . . It is indeed an impressive proportion, but no such mathematical computation is of

itself determinative. However, taking all this in conjunction with the long and vigorous
examination of the defendant himself by the judge, and the repeated belittling by the
judge of defendant's efforts to establish the time that Fine left the pier, we fear that in its
zeal for arriving at the facts the court here conveyed to the jury too strong an impression
of the court's belief in the defendant's probable guilt to permit the jury freely to perform
its own function of independent determination of the facts. . . .

The majority believes that the interference by the Sandiganbayan Justices was just too
excessive that it cannot be justified under the norm applied to a jury trial, or even under the
standard employed in a non-jury trial where the judge is admittedly given more leeway in
propounding questions to clarify points and to elicit additional relevant evidence. At the risk of
being repetitious, we will amplify on this via some specific examples. Based on the evidence
on record, and on the admission of Tabuena himself, the P55 million was delivered to the
President's Office thru Mrs. Gimenez, in obedience to the Presidential directive. One
Sandiganbayan Justice, however, hurled the following questions to Peralta:

AJ DEL ROSARIO

Q: Since the payment was made on January 31, 1986, and that was very
close to the election held in that year, did you not entertain any doubt that
the amounts were being used for some other purposes?

ATTY. ESTEBAL
 With due respect to the Honorable Justice, We are objecting to the
question on the ground that it is improper.

AJ DEL ROSARIO

I will withdraw the question.

PJ GARCHITORENA

What is the ground for impropriety?

ATTY. ESTEBAL

This is not covered in the direct examination, and secondly, I don't think
there was any basis, Your Honor.

PJ GARCHITORENA

Considering the withdrawal of the question, just make the objection on

record.

Nothing from the preceding questions of counsels or of the court would serve as basis for this
question. How then, can this be considered even relevant? What is the connection between
the payment made to the President's office and the then forthcoming presidential "snap
election"? In another instance, consider the following questions of Presiding Justice
Garchitorena:

*PJ GARCHITORENA

*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to
correct certain statements of accounts earlier made in the same journal?

xxx xxx xxx

*Q In other words, really what you are telling us is that, a Journal Voucher
is to explain a transaction was otherwise not recorded.

xxx xxx xxx

*Q Therefore, when you said that a Journal Voucher here is proper, you
are saying it is proper only because of the exceptional nature of the
transactions?

xxx xxx xxx

*Q In other words, as an Accountant, you would not normally authorize

such a movement of money unless it is properly documented?

ATTY. ESTEBAL

With due respect to the Honorable Presiding Justice, I think the question is
misleading because what the witness stated is . . .

*PJ GARCHITORENA

Be careful in your objection because the witness understands the

language you are speaking, and therefore, you might be coaching him.

ATTY. ESTEBAL

No, your Honor. I am also an accountant that is why I could say that . . .

*PJ GARCHITORENA

Please be simple in your objection.

ATTY. ESTEBAL
The question is misleading on the ground that what the witness stated
earlier is that the Journal Voucher in this particular case was supported,
your Honor.

*PJ GARCHITORENA

Overruled may answer.

WITNESS

A The transaction was fully documented since we have the order of the
General Manager at that time and the order of President Marcos, your
Honor.

*Q Are you saying the Order of the General Manager is an adequate basis
for the movement of money?

*Q We are not talking of whether or not there was a liability. What we are
saying is, is the order of the General Manager by itself adequate with no
other supporting papers, to justify the movement of funds?

*PJ GARCHITORENA

You keep flooding us with details we are not asking for. We are not asking
you whether or not there was valid obligation. We are not asking you
about the escalation clause. We are asking you whether or not this
particular order of Mr. Tabuena is an adequate basis to justify the
movement of funds?

*PJ GARCHITORENA

When we ask questions and when we answer them, we must listen to the
question being asked and not to whatever you wanted to say. I know you
are trying to protect yourself. We are aware of your statement that there
are all of these memoranda.

*Q By your disbursement of such amount, you are saying that the order of
Mr. Tabuena by itself is adequate?

*PJ GARCHITORENA

*Q This Presidential Decree which authorizes the President to transfer

funds from one department to another, is this not the one that refers to the
realignment of funds insofar as the Appropriation Act is concerned?

*PJ GARCHITORENA

*Q Under the Appropriation Act. Are payments of debts of the MIAA

covered by the Appropriation Act?

*PJ GARCHITORENA

*Q Tell me honestly, is your answer responsive to the question or are you

just throwing words at us in the hope that we will forget what the question
is?

xxx xxx xxx

*Q Are you telling us that the debts incurred by MIAA are covered by the
Appropriations Act so that the payment of this debt would be in the same
level as the realignment of funds authorized the President? Or are you
telling as you did not read the Decree?

*PJ GARCHITORENA

Mr. Estebal, will you include in your memorandum what are the Decrees
authorizing this movement of funds?
 ATTY. ESTEBAL

Yes, your Honor.

*PJ GARCHITORENA

*Q It is true that President Marcos was the President, but he was not an
officer of the MIAA, was he?

*Q In fact, for purposes of internal control, you have different in officers

and different officials in any company either government or private, which
are supposed to check and balance each other, is it not?

*Q So that when disbursements of funds are made, they are made by

authority of not only one person alone so that nobody will restrain him?

*Q These checks and balances exist in an entity so that no one person

can dispose of funds in any way he likes?

*Q And in fact, the purpose for having two (2) signatories to documents
and negotiable documents is for the same purpose?

*PJ GARCHITORENA

*Q In other words, the co-signatories counter check each other?

*Q In your case, you would be the counter check for Mr. Tabuena?

*Q In other words, even if Mr. Tabuena is the Manager, you as Financial

Services Manager and as counter signatory are in a position to tell Mr.
Tabuena, "I am sorry, you are my superior but this disbursement is not
proper and, therefore, I will not sign it.", if in your opinion the disbursement
is not proper?

*Q Therefore, as co-signatory, you are expected to exercise your

judgment as to the propriety of a particular transaction ?

*Q And this is something you know by the nature of your position and
because you are a Certified Public Accountant? 47

How can these questions be considered clarificatory when they clearly border more on cross-
examination questions? Thus, the Dissenting Opinion's focus on the distinction between the
two kinds of trial to justify the Sandiganbayan's active participation in the examination of
petitioners Tabuena and Peralta and witness Monera, with due respect, appears insignificant
to this case. Let it, therefore, be emphasized anew that:

A trial judge should not participate in the examination of witnesses as to create the
impression that he is allied with the prosecution. 48

We doubt not that the sole motive of the learned judge was to ascertain the truth of the
transaction, but it is never proper for a judge to discharge the duties of a prosecuting
attorney. However anxious a judge may be for the enforcement of the law, he should
always remember that he is as much judge in behalf of the defendant accused of crime,
and whose liberty is in jeopardy, as he is judge in behalf of the state, for the purpose of
safeguarding the interests of society. 49

Ordinarily it is not good practice for the presiding judge himself to examine witnesses at
length. The circumstances may be such in a given case as to justify the court in so
doing. . . . This court, however, has more than once said that the examination of
witnesses is the more appropriate function of counsel, and the instances are rare and
the conditions exceptional which will justify the presiding judge in conducting an
extensive examination. It is always embarrassing for counsel to object to what he may
deem improper questions by the court. Then, in conducting a lengthy examination, it
would be almost impossible for the judge to preserve a judicial attitude. While he is not
a mere figurehead or umpire in a trial, and it is his duty to see that justice is done, he
will usually not find it necessary to conduct such examinations. The extent to which this
shall be done must largely be a matter of discretion, to be determined by the
 circumstances of each particular case, but in so doing he must not forget the function of
the judge and assume that of an advocate. . . 50

While it is true that the manner in which a witness shall be examined is largely in the
discretion of the trial judge, it must be understood that we have not adopted in this
country the practice of making the presiding judge the chief inquisitor. It is better to
observe our time-honored custom of orderly judicial procedure, even at the expense of
occasional delays. . . . The judge is an important figure in the trial of a cause, and while
he has the right, and it is often his duty, to question witnesses to the end that justice
shall prevail, we can conceive of no other reason, for him to take the trial of the cause
out of the hands of counsel. 51

The examination of witnesses is the more appropriate function of counsel, and it is

believed the instances are rare and the conditions exceptional in a high degree which
will justify the presiding judge in entering upon and conducting an extended examination
of a witness, and that the exercise of a sound discretion will seldom deem such action
necessary or advisable. 52

He [the judge] may properly intervene in a trial of a case to promote expedition, and
prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in
mind that his undue interference, impatience, or participation in, the examination of
witnesses, or a severe attitude on his part toward witnesses, especially those who are
excited or terrified by the unusual circumstances of a trial, may tend to prevent the
proper presentation of the cause, or the ascertainment of the truth in respect thereto. 53

The impartiality of the judge — his avoidance of the appearance of becoming the
advocate of either one side or the other of the pending controversy is a fundamental
and essential rule of special importance in criminal cases. . . 54

Our courts, while never unmindful of their primary duty to administer justice, without fear
or favor, and to dispose of these cases speedily and in as inexpensive a manner as is
possible for the court and the parties, should refrain from showing any semblance of
one-sided or more or less partial attitude in order not to create any false impression in
the minds of the litigants. For obvious reasons, it is the bounden duty of all to strive for
the preservation of the people's faith in our courts. 55

Time and again this Court has declared that due process requires no less than the cold
neutrality of an impartial judge. Bolstering this requirement, we have added that the
judge must not only be impartial but must also appear to be impartial, to give added
assurance to the parties that his decision will be just. The parties are entitled to no less
than this, as a minimum guaranty of due process. 56

We are well aware of the fear entertained by some that this decision may set a dangerous precedent
in that those guilty of enriching themselves at the expense of the public would be able to escape
criminal liability by the mere expedient of invoking "good faith". It must never be forgotten, however,
that we render justice on a case to case basis, always in consideration of the evidence that is
presented. Thus, where the evidence warrants an acquittal, as in this case, we are mandated not only
by the dictates of law but likewise of conscience to grant the same. On the other hand, it does not
follow that all those similarly accused will necessarily be acquitted upon reliance on this case as a
precedent. For the decision in this case to be a precedent, the peculiar circumstances and the
evidence that led to the petitioner's acquittal must also be present in subsequent cases.

Furthermore, as between a mere apprehension of a "dangerous precedent" and an actual violation of

constitutionally enshrined rights, it is definitely the latter that merits our immediate attention. For the
most dangerous precedent arises when we allow ourselves to be carried away by such fears so that it
becomes lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to bring to
justice the malefactors of the Marcos regime, we must not succumb to the temptation to commit the
greatest injustice of visiting the sins of the wrongdoers upon an innocent.

WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta are
hereby ACQUITTED of the crime of malversation as defined and penalized under Article 217 of the
Revised Penal Code. The Sandiganbayan Decision of October 12, 1990 and the Resolution dated
December 20, 1991 are REVERSED and SET ASIDE.

SO ORDERED.