Professional Documents
Culture Documents
L-5272
heavy growth of vines along the front of the porch, the room was
very dark, and the defendant, fearing that the intruder was a
robber or a thief, leaped to his feet and called out. "If you enter the
room, I will kill you." At that moment he was struck just above the
knee by the edge of the chair which had been placed against the
door. In the darkness and confusion the defendant thought that the
blow had been inflicted by the person who had forced the door
open, whom he supposed to be a burglar, though in the light of
after events, it is probable that the chair was merely thrown back
into the room by the sudden opening of the door against which it
rested. Seizing a common kitchen knife which he kept under his
pillow, the defendant struck out wildly at the intruder who, it
afterwards turned out, was his roommate, Pascual. Pascual ran out
upon the porch and fell down on the steps in a desperately
wounded condition, followed by the defendant, who immediately
recognized him in the moonlight. Seeing that Pascual was
wounded, he called to his employers who slept in the next house,
No. 28, and ran back to his room to secure bandages to bind up
Pascual's wounds.
There had been several robberies in Fort McKinley not long prior to
the date of the incident just described, one of which took place in a
house in which the defendant was employed as cook; and as
defendant alleges, it was because of these repeated robberies he
kept a knife under his pillow for his personal protection.
The deceased and the accused, who roomed together and who
appear to have on friendly and amicable terms prior to the fatal
incident, had an understanding that when either returned at night,
he should knock at the door and acquiant his companion with his
identity. Pascual had left the house early in the evening and gone
for a walk with his friends, Celestino Quiambao and Mariano Ibaez,
servants employed at officers' quarters No. 28, the nearest house
to the mess hall. The three returned from their walk at about 10
o'clock, and Celestino and Mariano stopped at their room at No. 28,
Pascual going on to his room at No. 27. A few moments after the
party separated, Celestino and Mariano heard cries for assistance
and upon returning to No. 27 found Pascual sitting on the back
steps fatally wounded in the stomach, whereupon one of them ran
back to No. 28 and called Liuetenants Jacobs and Healy, who
immediately went to the aid of the wounded man.
The defendant then and there admitted that he had stabbed his
roommate, but said that he did it under the impression that Pascual
was "a ladron" because he forced open the door of their sleeping
room, despite defendant's warnings.
No reasonable explanation of the remarkable conduct on the part of
Pascuals suggests itself, unless it be that the boy in a spirit of
mischief was playing a trick on his Chinese roommate, and sought
to frightened him by forcing his way into the room, refusing to give
his name or say who he was, in order to make Ah Chong believe
that he was being attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual was
conveyed to the military hospital, where he died from the effects of
the wound on the following day.
The defendant was charged with the crime of assassination, tried,
and found guilty by the trial court of simple homicide, with
extenuating circumstances, and sentenced to six years and one
day presidio mayor, the minimum penalty prescribed by law.
At the trial in the court below the defendant admitted that he killed
his roommate, Pascual Gualberto, but insisted that he struck the
fatal blow without any intent to do a wrongful act, in the exercise of
his lawful right of self-defense.
Article 8 of the Penal Code provides that
The following are not delinquent and are therefore exempt
from criminal liability:
xxx
xxx
xxx
with which he is charged and his bail bond exonerated, with the
costs of both instance de oficio. So ordered.
RELOVA
and was sentenced by Judge Emilio Pena to suffer not less than 10
years and 1 day of prision mayor and not more than 12 years and 1
day of reclusion temporal, and to pay a fine of P100 and the costs.
Separate Opinions
Philippines,
the
said
accused
conspiring and confederating with
ABUNDIO
LAGUNDAY Alias "JR,"
JEOFREY and HENRY LAGARTO y
PETILLA who have already been
charged in the Regional Trial Court of
Manila of the same offense under
Criminal Case No. 94-138071, and
helping one another, with treachery,
taking advantage of their superior
strength and nocturnity and ignominy,
and with the use of force and violence,
that is, by taking ANGEL ALQUIZA y
LAGMAN into a pedicab, and once
helpless, forcibly bringing her to a
nearby
warehouse,
covering
her
mouth, slashing her vagina, hitting her
head with a thick piece of wood and
stabbing her neck, did then and there
wilfully, unlawfully and feloniously
have carnal knowledge of the person
of said ANGEL ALQUIZA y LAGMAN, a
minor, seven (7) years of age, against
the latter's will and consent and on
said occasion the said accused
together with their confederates
ABUNDIO LAGARTO y PETILLA caused
her fatal injuries which were the direct
cause of her death immediately
thereafter.
CONTRARY TO LAW.
The two criminal cases were consolidated to Branch
47 of the Regional Trial Court of Manila, presided over
by respondent Judge.
Duly arraigned, all the accused, except Abundio
Lagunday who was already dead, (allegedly shot by
police escorts after attempting to fire a gun he was
able to grab from SPO1 D. Vidad on August 12,
1994), pleaded "Not Guilty." Abundio Lagunday was
dropped from the Information.
the mandatory penalty of death under Republic Act No. 7659, after
finding the accused guilty of the crime of Rape with Homicide.
We find for petitioner.
Obedience to the rule of law forms the bedrock of our system of
justice. If judges, under the guise of religious or political beliefs
were allowed to roam unrestricted beyond boundaries within which
they are required by law to exercise the duties of their office, then
law becomes meaningless. A government of laws, not of men
excludes the exercise of broad discretionary powers by those acting
under its authority. Under this system, judges are guided by the
Rule of Law, and ought "to protect and enforce it without fear or
favor," 4 resist encroachments by governments, political parties, 5 or
even the interference of their own personal beliefs.
In the case at bench, respondent judge, after weighing the
evidence of the prosecution and the defendant at trial found the
accused guilty beyond reasonable doubt of the crime of Rape with
Homicide. Since the law in force at the time of the commission of
the crime for which respondent judge found the accused guilty was
Republic Act No. 7659, he was bound by its provisions.
Section 11 of R.A. No. 7659 provides:
Sec. 11. Article 335 of the same Code is hereby
amended to read as follows:
Art. 335. When and how rape is committed. Rape
is committed by having carnal knowledge of a
woman under any of the following circumstances:
1. By using force or intimidation.
2. When the woman is deprived of reason or
otherwise unconscious; and
3. When the woman is under twelve years of age or
is demented.
The crime of rape shall be punished by reclusion
perpetua.
February 2, 1917
The appellants also insist that Baby Jane was already married to
one Eddie Tabi when they took her as their maid. This explains why,
according to them, Baby Jane was no longer a virgin. 26
From the outset it should be noted that while the appellants assail
the credibility of the complainants testimony, they actually do not
point to specific inconsistencies or contradictions in her testimony.
True, the trial court relied solely on the testimony of the
complainant regarding the rape incidents, but the determinative
A close look at the cited cases reveals a common thread that not
only links them but also explains why the offenses were committed
in the fashion they were. This consists of the close relationship
between the parties and the attendant conducive environment. The
victim and the felons were familiar with each other and there was a
COURT:
Q What year?
Go ahead.
PROSECUTOR GUAYCO:
Q Now, this incident that happened to you, what is this?
A That was when Fe de la Torre told her husband to use me
but I resisted. But she removed our clothes.
COURT:
PROSECUTOR GUAYCO:
Go ahead.
PROSECUTOR GUAYCO:
A At Tumarbong, Sir.
A Yes, Sir.
Q Where in Tumarbong?
COURT:
A How could I fight her when she was holding that scythe,
Your Honor.
Q Is that a weapon?
A Yes, Sir.
COURT:
Q Butchoy de la Torre?
COURT:
PROSECUTOR GUAYCO:
Q Only a lamp?
A Also the scythe.
Q Was his penis inside your vagina when he was doing that
push and pull motion?
A Yes, Your Honor.
Q Did you enjoy it?
COURT:
Q What time of the night was this?
PROSECUTOR GUAYCO:
Q After your clothes were taken off, what happened next,
Madam Witness?
A Butchoy de la Torre placed himself on top of me.
PROSECUTOR GUAYCO:
COURT:
Q How many minutes?
A I cannot tell, Your Honor.
PROSECUTOR GUAYCO:
Q Did Butchoy de la Torre kiss you?
Q The husband did not complain to the wife why she was
doing it?
A No, Sir.
COURT:
PROSECUTOR GUAYCO:
xxx
A Yes, Sir.
Q What was the exact words uttered by Fe de la Torre?
A "Magpaluyo kaw sa kilid." (You move to the other side.)
PROSECUTOR GUAYCO;
Q Do you like what Fe de la Torre and Butchoy de la Torre did
to you?
A No, Sir.
COURT:
Q But the Court thought she was holding a lamp and a
scythe, so she was not lying anymore?
A She was seated between us, Your Honor.
COURT:
Q Did you not feel, while Butchoy de la Torres penis was
inside you and doing the push and pull if he finished his act?
A I did not feel, Your Honor.
Q He only suddenly stopped?
A Yes, Your Honor.33
Baby Jane never wavered in her testimony even under intense
cross-examination by the defense. She forthrightly answered the
questions and re-affirmed her attestations during the direct. The
cross-examination only served to clarify certain details in the
commission of the offense and reinforced the truth of her narration.
ATTY. PADON:
A I saw him naked but I did not focus my eyes to his penis.
A Yes, Sir.
Q And you were already awaken (sic), you saw her holding a
lamp and a scythe?
A Yes, Sir.
Q And you said, Madam Witness, that Fe de la Torre told her
husband to rape you?
Jane had lived with said Eddie Tabi for more than a year before
working for the appellants as a maid. But the witness testified to no
such thing, saying only that allegedly Eddie Tabi had proposed
marriage to Baby Jane but she refused him. 36 The testimony could
not even be given much credit for being hearsay.
Baby Janes behavior during and after the rape incidents reinforce
the trial courts findings of rape. She objected to Fes acts of
removing her clothes, but her resistance was restricted by her fear
of the appellants. The scythe that Fe held in her hands and threats
of bodily harm should she refuse effectively intimidated her into
submitting to Butchoys onslaught. Afterwards, she could tell no
one of the ordeal she had gone through as she was constantly
under Fes watchful eye. In addition, she did not know any of their
neighbors nor their neighborhood well enough to report the
incident. When the opportunity to escape presented itself, she took
it. She reported the matter to the authorities and this led to the
filing of the Amended Complaints against the appellants. Her
actions testify to the truth of her allegations of rape for a young girl
would not make up a story of sexual exploitation and undergo the
humiliation of a medical examination of her private parts and a
court trial that would dissect each and every aspect of the sexual
abuse committed against her if it were not true.37
But then, on the basis of the evidence adduced by the prosecution,
the appellants may be convicted only of the rape committed in the
first week of September 1992. The evidence for the prosecution
proves only the first charge of rape. Baby Janes testimony on the
commission of the eight other charges does not satisfy the
standard of proof beyond reasonable doubt to justify the
appellants conviction. We quote the transcript of the trial:
COURT:
Q You have just described your first sexual intercourse which
happened on September 1992, was it done to you again the
next week?
A It happened once every week, Your Honor.
PROSECUTOR GUAYCO:
Q How about on the second week of September 1992, did
this happen to you again?
Q When?
A Yes, Sir.
Q 1992 also?
A Yes, Sir.
Q It happened the same way as the first with the wife
holding a lamp and a scythe?
A Yes, Sir.
PROSECUTOR GUAYCO:
A Yes, Sir.
COURT:
Q The same thing happened where Fe de la Torre was
holding a scythe and a lamp?
A Yes, Your Honor.
COURT:
xxx
xxx
COURT:
POSECUTOR GUAYCO:
Q During the first intercourse and the second, did you feel
pain?
xxx
PROSECUTOR GUAYCO:
A Yes, Sir.
PROSECUTOR GUAYCO:
Q Now, in these nine incidents, did you really like what was
done to you by the accused?
San Dionisio, placed under his custody the accused Alconga with a
view to turning him over to the proper authorities (t.s.n., pp. 102105).
The deceased and the accused Alconga did not meet thereafter
until the morning of May 29, 1943, when the latter was in the
guardhouse located in the barrio of Santol, performing his duties as
"home guard" (t.s.n., pp. 98-100). While the said accused was
seated on a bench in the guardhouse, the deceased came along
and, addressing the former, said, "Coroy, this is your breakfast,"
followed forthwith by a swing of his "pingahan" (t.s.n., p. 100). The
accused avoided the blow by falling to the ground under the bench
with the intention to crawl out of the guardhouse (t.s.n., pp. 100101). A second blow was given but failed to hit the accused, hitting
the bench instead (t.s.n., p. 101). The accused manage to go out of
the guardhouse by crawling on his abdomen (t.s.n., p. 101). While
the deceased was in the act of delivering the third blow, the
accused, while still in a crawling position (t.s.n., p. 119), fired at
him with his revolver, causing him to stagger and to fall to the
ground (t.s.n., p. 101). Rising to his feet, the deceased drew forth
his dagger and directed a blow at the accused who, however, was
able to parry the same with his bolo (t.s.n., pp. 101-102). A handto-hand fight ensued (t.s.n., p. 102). Having sustained several
wounds, the deceased ran away but was followed by the accused
(t.s.n., p. 6). After running a distance of about 200 meters (t.s.n.,
pp. 21, 108), the deceased was overtaken, and another fight took
place, during which the mortal bolo blow the one which slashed
the cranium was delivered, causing the deceased to fall to the
ground, face downward, besides many other blows deliver right and
left (t.s.n., pp. 6, 28). At this instant, the other accused, Adolfo
Bracamonte, arrived and, being the leader of the "home guards" of
It will be observed that there were two stages in the fight between
appellant and the deceased. The initial stage commenced when the
deceased assaulted appellant without sufficient provocation on the
part of the latter. Resisting the aggression, appellant managed to
have the upper hand in the fight, inflicting several wounds upon the
deceased, on account of which the latter fled in retreat. From that
moment there was no longer any danger to the life of appellant
who, being virtually unscathed, could have chosen to remain where
he was. Resolving all doubts in his flavor, and considering that in
the first stage the deceased was the unlawful aggressor and
defendant had not given sufficient provocation, and considering
further that when the deceased was about to deliver the third blow,
appellant was still in a crawling position and, on that account, could
not have effectively wielded his bolo and therefore had to use his
"paltik" revolver his only remaining weapon ; we hold that said
appellant was then acting in self-defense.
But when he pursued the deceased, he was no longer acting in selfdefense, there being then no more aggression to defend against,
the same having ceased from the moment the deceased took to his
heels. During the second stage of the fight appellant inflicted many
additional wounds upon the deceased. That the deceased was not
fatally wounded in the first encounter is amply shown by the fact
that he was still able to run a distance of some 200 meters before
being overtaken by appellant. Under such circumstances,
appellant's plea of self-defense in the second stage of the fight
cannot be sustained. There can be no defense where there is no
aggression.
Although the defendant was not the aggressor, he is not
exempt from criminal liability for the reason that it is shown
that he struck several blows, among them the fatal one,
after the necessity for defending himself had ceased, his
assailant being then in retreat. Therefore one of the
essential ingredients of self-defense specified in No. 4,
article 8 of the Penal Code is wanting (now article 11, case
No. 1, Revised Penal Code). (United States vs. Dimitillo, 7
Phil., 475, 476; words in parenthesis supplied.)
. . . Even if it be conceded for the moment that the
defendants were assaulted by the four (offended parties),
the right to kill in self-defense ceased when the aggression
ceased; and when Toledo and his brothers turned and ran,
without having inflicted so much as a scratch upon a single
one of the defendants,the right of the defendants to inflict
xxx
xxx
injure" said deceased for the reason that "a fleeing man is not
dangerous to the one from whom he flees." If the law, as
interpreted and applied by this Court in the Vitug case, enjoins the
victorious contender from pursuing his opponent on the score of
self-defense, it is because this Court considered that the requisites
of self-defense had ceased to exist, principal and indispensable
among these being the unlawful aggression of the opponent (Rev.
Penal Code, article 11, No. 1; 1 Viada, 5th ed., 173).
Can we find under the evidence of record that after the cessation of
said aggression the provocation thus involved therein still
persisted, and to a degree sufficient to extenuate appellant's
criminal responsibility for his acts during the second stage of the
fight? Appellant did not testify nor offer other evidence to show that
when he pursued the deceased he was still acting under the
impulse of the effects of what provocation, be it anger, obfuscation
or the like. The Revised Penal Code provides:
ART. 13. Mitigating circumstances:
xxx
xxx
xxx
After the flight of the deceased there was clearly neither an assault
nor a threatened assault of the remotest kind. It has been
suggested that when pursuing his fleeing opponent, appellant
might have thought or believed that said opponent was going to his
house to fetch some other weapon. But whether we consider this as
a part or continuation of the self-defense alleged by appellant, or as
a separate circumstance, the burden of proof to establish such a
defense was, of course, upon appellant, and he has not so much as
attempted to introduce evidence for this purpose. If he really
thought so, or believed so, he should have positively proven it, as
any other defense. We can not now gratuitously assume it in his
behalf.
It is true that in the case of United States vs. Rivera (41 Phil., 472,
474), this Court held that one defending himself or his property
from a felony violently or by surprise threatened by another is not
obliged to retreat but may pursue his adversary until he has
secured himself from danger. But that is not this case. Here from
the very start appellant was the holder of the stronger and more
deadly weapons a revolver and a bolo, as against a piece of
bamboo called "pingahan" and a dagger in the possession of the
deceased. In actual performance appellant, from the very
beginning, demonstrated his superior fighting ability; and he
confirmed it when after the deceased was first felled down by the
revolver shot in right breast, and after both combatants had gotten
up and engaged in a hand-to-hand fight, the deceased using his
dagger and appellant his bolo, the former received several bolo
wounds while the latter got through completely unscathed. And
when the deceased thereupon turned and fled, the circumstances
were such that it would be unduly stretching the imagination to
consider that appellant was still in danger from his defeated and
fleeing opponent. Appellant preserved his revolver and his bolo,
and if he could theretofore so easily overpower the deceased, when
the latter had not yet received any injury, it would need, indeed, an
unusually strong positive showing which is completely absent
from the record to persuade us that he had not yet "secured
himself from danger" after shooting his weakly armed adversary in
the right breast and giving him several bolo slashes in different
other parts of his body. To so hold would, we believe, be
unjustifiably extending the doctrine of the Rivera case to an
extreme not therein contemplated.
Under article 249, in relation with article 64, No. 2, of the Revised
Penal Code, the crime committed by appellant is punishable
by reclusion temporal in its minimum period, which would be from
penalty ranging from seven years, four months and one day of
prision mayor to thirteen years, nine months and eleven days of
reclusion temporal, with the accessory penalties provided by law,
to indemnify the heirs of the deceased, Amando Capina, in the sum
of P2,000, and to pay one-half of the costs. She was also credited
with one-half of the period of preventive imprisonment suffered by
her.
From said judgment of conviction, defendant Avelina Jaurigue
appealed to the Court of Appeals for Southern Luzon, and in her
brief filed therein on June 10, 1944, claimed (1) That the lower court erred in not holding that said
appellant had acted in the legitimate defense of her honor
and that she should be completely absolved of all criminal
responsibility;
(2) That the lower court erred in not finding in her favor the
additional mitigating circumstances that (a) she did not
have the intention to commit so grave a wrong as that
actually committed, and that (b) she voluntarily surrendered
to the agents of the authorities; and
(3) That the trial court erred in holding that the commission
of the alleged offense was attended by the aggravating
circumstance of having been committed in a sacred place.
The evidence adduced by the parties, at the trial in the court
below, has sufficiently established the following facts:
DE JOYA, J.:
That both the defendant and appellant Avelina Jaurigue and the
deceased Amado Capina lived in the barrio of Sta. Isabel, City of
San Pablo, Province of Laguna; that for sometime prior to the
stabbing of the deceased by defendant and appellant, in the
evening of September 20, 1942, the former had been courting the
latter in vain, and that on one occasion, about one month before
that fatal night, Amado Capina snatched a handkerchief belonging
to her, bearing her nickname "Aveling," while it was being washed
by her cousin, Josefa Tapay.
On September 13, 1942, while Avelina was feeding a dog under her
house, Amado approached her and spoke to her of his love, which
she flatly refused, and he thereupon suddenly embraced and kissed
her and touched her breasts, on account of which Avelina, resolute
and quick-tempered girl, slapped Amado, gave him fist blows and
kicked him. She kept the matter to herself, until the following
morning when she informed her mother about it. Since then, she
armed herself with a long fan knife, whenever she went out,
evidently for self-protection.
On September 15, 1942, about midnight, Amado climbed up the
house of defendant and appellant, and surreptitiously entered the
room where she was sleeping. He felt her forehead, evidently with
the intention of abusing her. She immediately screamed for help,
which awakened her parents and brought them to her side. Amado
came out from where he had hidden under a bed in Avelina's room
and kissed the hand of Nicolas Jaurigue, her father, asking for
forgiveness; and when Avelina's mother made an attempt to beat
Amado, her husband prevented her from doing so, stating that
Amado probably did not realize what he was doing. Nicolas Jaurigue
sent for the barrio lieutenant, Casimiro Lozada, and for Amado's
parents, the following morning. Amado's parents came to the house
of Nicolas Jaurigue and apologized for the misconduct of their son;
and as Nicolas Jaurigue was then angry, he told them to end the
conversation, as he might not be able to control himself.
In the morning of September 20, 1942, Avelina received
information that Amado had been falsely boasting in the
neighborhood of having taken liberties with her person and that she
had even asked him to elope with her and that if he should not
marry her, she would take poison; and that Avelina again received
information of Amado's bragging at about 5 o'clock in the afternoon
of that same day.
At about 8 o'clock in the evening of the same day, September 20,
1942, Nicolas Jaurigue went to the chapel of the Seventh Day
Adventists of which he was the treasurer, in their barrio, just across
the provincial road from his house, to attend religious services, and
sat on the front bench facing the altar with the other officials of the
organization and the barrio lieutenant, Casimiro Lozada. Inside the
chapel it was quite bright as there were electric lights.
Defendant and appellant Avelina Jaurigue entered the chapel
shortly after the arrival of her father, also for the purpose of
attending religious services, and sat on the bench next to the last
one nearest the door. Amado Capina was seated on the other side
of the chapel. Upon observing the presence of Avelina Jaurigue,
Amado Capina went to the bench on which Avelina was sitting and
sat by her right side, and, without saying a word, Amado, with the
available
within
their
reach,
under
the
circumstances.
Criminologists and courts of justice have entertained and upheld
this view.
On the other hand, it is the duty of every man to protect and show
loyalty to womanhood, as in the days of chivalry. There is a country
where women freely go out unescorted and, like the beautiful roses
in their public gardens, they always receive the protection of all.
That country is Switzerland.
In the language of Viada, aside from the right to life on which rests
the legitimate defense of our own person, we have the right to
property acquired by us, and the right to honor which is not the
least prized of our patrimony (1 Viada, Codigo Penal, 5th ed., pp.
172, 173).
The attempt to rape a woman constitutes an unlawful aggression
sufficient to put her in a state of legitimate defense, inasmuch as a
woman's honor cannot but be esteemed as a right as precious, if
not more, than her very existence; and it is evident that a woman
who, thus imperiled, wounds, nay kills the offender, should be
afforded exemption from criminal liability, since such killing cannot
be considered a crime from the moment it became the only means
left for her to protect her honor from so great an outrage (1 Viada,
Codigo Penal, 5th ed., p. 301; People vs. Luague and Alcansare, 62
Phil., 504). .
As long as there is actual danger of being raped, a woman is
justified in killing her aggressor, in the defense of her honor. Thus,
where the deceased grabbed the defendant in a dark night at about
9 o'clock, in an isolated barrio trail, holding her firmly from behind,
without warning and without revealing his identity, and, in the
struggle that followed, touched her private parts, and that she was
unable to free herself by means of her strength alone, she was
considered justified in making use of a pocket knife in repelling
what she believed to be an attack upon her honor, and which
ended in his death, since she had no other means of defending
herself, and consequently exempt from all criminal liability (People
vs. De la Cruz, 16 Phil., 344).
And a woman, in defense of her honor, was perfectly justified in
inflicting wounds on her assailant with a bolo which she happened
to be carrying at the time, even though her cry for assistance might
have been heard by people nearby, when the deceased tried to
assault her in a dark and isolated place, while she was going from
DECISION
In the mind of the court, there is not the least doubt that, in
stabbing to death the deceased Amado Capina, in the manner and
form and under the circumstances above indicated, the defendant
and appellant committed the crime of homicide, with no
aggravating circumstance whatsoever, but with at least three
mitigating circumstances of a qualified character to be considered
in her favor; and, in accordance with the provisions of article 69 of
the Revised Penal Code, she is entitled to a reduction by one or two
degrees in the penalty to be imposed upon her. And considering the
circumstances of the instant case, the defendant and appellant
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.
PANGANIBAN, J.:
'Face, black, blownup & swollen w/ evident postmortem 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.
The Case
For automatic review before this Court is the September 25, 1998
Decision1 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
summarizes
the
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
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.
"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
xxx
xxx
"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.'
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
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:
The capital penalty having been imposed, the case was elevated to
this Court for automatic review.
"3. The trial court gravely erred finding the cause of death to
be by beating with a pipe.
Supervening Circumstances
"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.
A Of course my husband.
A Yes, sir.
xxx
xxx
xxx
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 Yes, sir.
xxx
xxx
A Yes, sir.
Q Who inflicted these injuries?
A Yes, sir.
xxx
xxx
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 Where?
A At PHILPHOS Hospital.
xxx
A Probably.
A One day.
xxx
xxx
34
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?
"ATTY. TABUCANON:
but she resisted because she had fears that the same thing
will happen again last year.
Q You said that when you arrived, he was drunk and yelling
at you? What else did he do if any?
A Yes, 8 months.
A Yes, sir.
A He cut the antenna wire to keep me from watching T.V.
Q What time?
Q What else happened after he cut the wire?
A When I arrived home, he was there already in his usual
behavior.
Q Will you tell this Court what was his disposition?
COURT INTERPRETER:
ATTY. TABUCANON:
A Yes, sir.
Q Is it a flexible blade?
COURT INTERPRETER:
xxx
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.
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.
A Sir, I could not remember but I was told that she was
battered in that room.
Q Several times in that room?
xxx
xxx
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?
all cost for the sake of their children, and that she is the only hope
for her spouse to change.49
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 tensionbuilding 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.
BWS as Self-Defense
In any event, the existence of the syndrome in a relationship does
not in itself establish the legal right of the woman to kill her
abusive partner. Evidence must still be considered in the context of
self-defense.59
From the expert opinions discussed earlier, the Court reckons
further that crucial to the BWS defense is the state of mind of the
battered woman at the time of the offense 60 -- she must have
actually feared imminent harm from her batterer and honestly
believed in the need to kill him in order to save her life.
Settled in our jurisprudence, however, is the rule that the one who
resorts to self-defense must face a real threaton 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;
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
xxx
xxx
Treachery
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.
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
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.
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 inch wide.
Q It is a flexible blade?
A It's a cutter.
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:
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
BELLOSILLO, J.:
GUILLERMO FLORENDO alias Imong was found guilty of parricide
with the aggravating circumstance of cruelty and sentenced to
death. He was ordered to indemnify the heirs of his wife, Erlinda
Ragudo Florendo, the amount of P500,000.00 in moral and
exemplary damages and to pay the costs of suit. His conviction is
the subject of this automatic review.1
The records show that on 28 August 1996 at around 2:30 in the
afternoon appellant and his wife Erlinda were inside their house
engaged in an animated conversation. Living with them in the
same house in Barangay Bulbulala, La Paz, Abra, was appellants
father Agustin Florendo. After Erlinda was heard to have told Imong
to go to sleep, the latter all of a sudden and without any
provocation hacked Erlinda with a bolo in the head and other parts
of her body. The victim could only exclaim, "Patayennak met ni
Imong ngen (Imong is going to kill me)!"2
Agustin, who was resting at that time, witnessed the incident.
Instead of stopping appellant, Agustin left the house for fear that
his son would also attack him. Agustin sought help from his
immediate neighbor, Ernesto Anical, and told him, "Kasano Erning,
patayen yen met ni Imong ni baketnan (How is this Erning, Imong is
killing his wife)!"3Ernesto too became frightened and did not go out
of his house; instead, he told Agustin to go to the barangay captain
for assistance.
Agustin went to the house of Barangay Captain Godofredo Apuya to
report the incident but the latter was not there. Thus, the wife of
the barangay captain, upon being apprised of what happened,
hurriedly went out to look for any available barangay tanod for
assistance and was able to contact Barangay Tanod Felipe Adora.
Agustin, on the other hand, restrained by fear and shock, stayed at
the barangay captains house and when he finally returned at about
4:00 oclock in the afternoon Erlinda was already dead.
G.R. No. 136845
October 8, 2003
the latter did not answer. Appellant was later taken to the La Paz
District Hospital for treatment of his wound and the police
authorities of La Paz thereafter took him into custody pending
investigation of the incident.
Dr. Corazon Lalin Brioso, Municipal Health Officer of La Paz,
autopsied the cadaver of the victim and found that she sustained
sixteen (16) wounds on various parts of her body, four (4) of which
were considered fatal and resulted in her instantaneous death due
to
hypovalemic
shock
caused
by
massive
hemorrhage.41a\^/phi1.net
On 2 September 1996 appellant was committed at the Abra
Provincial Jail. During his confinement, he was observed to be
having difficulty in sleeping. He could not eat during meal times.
Most of the time he would stand in his cell without talking to
anyone. Thus on 9 September 1996 he was treated as an
outpatient at the Abra Provincial Hospital (APH). The Provincial
Warden then requested a psychiatric examination of appellant to
determine whether he was fit to be arraigned. 5
On 17 October 1996 appellant was supposed to be arraigned but he
appeared without counsel and remained unresponsive to the
questions propounded to him. On the same date, the trial court
referred appellant to the Baguio General Hospital and Medical
Center (BGHMC) for psychiatric evaluation since there was no
psychiatrist at the APH. On 20 November 1996 he went to the
BGHMC for consultation and was admitted and managed as a case
of schizophrenic psychosis, paranoid type (schizophreniform
disorder).6 He was detained at the hospital and given medication
for his illness. On 7 June 1997, after confinement for six (6) months
and eighteen (18) days, he was discharged and recommitted to the
provincial jail as he was found fit to face the charges against
him.7 When finally arraigned on 12 August 1997 appellant pleaded
not guilty.
At the pre-trial conference, appellant admitted killing his wife but
put up the defense of insanity to claim exemption from criminal
liability. At the initial hearing, the prosecution presented Agustin
Florendo, Godofredo Apuya, Ernesto Anical, Felipe Adora and Dr.
Corazon Lalin Brioso as witnesses.
Agustin Florendo attested that his son was not in his proper senses
on the day of the incident and repeated on cross-examination that
appellant was crazy and had been behaving strangely for one (1)
year before the incident.8
Barangay Captain Godofredo Apuya, on the other hand, stated that
he already knew that appellant was mentally ill because in two (2)
instances, three. (3) months prior to the incident, he saw him
singing, dancing and clapping his hands in their yard. 9 Witness
Ernesto Anical stated further that on the day of the incident
appellant was not in his right senses as he saw him sharpening his
bolo with his eyes red and looking very sharp. Yet, he likewise
testified that appellant would join the people in their barangay in
their drinking sprees and when already drunk he would beat his
wife.10
Barangay Tanod Felipe Adora also testified that appellant had been
behaving oddly and was somewhat crazy as he saw him ten (10)
days before the incident singing and talking to himself. 11 Both
Godofredo Apuya and Felipe Adora stated that appellant suspected
that his wife was having an affair with Godofredo for he once went
to the house of Godofredo looking for her. But before the trial could
prosper, the presiding judge received a letter from the provincial
warden asking for the recommitment of appellant to the BGHMC
because of his unstable mental condition. On 8 June 1998 the trial
court directed the examination and treatment of appellant but not
his admission in the hospital. Nonetheless, appellant was
readmitted at the BGHMC on 11 June 1998 and discharged on 7
August 1998.
On 10 August 1998, upon the assurance of Dr. Elsie I. Caducoy that
appellant was fit to stand trial, appellant was called to testify. He
stated that he did not remember anything that happened on 28
August 1996 but recalled seeing his children days before the
incident; that he was brought to the provincial jail by the police
authorities; that he thumbmarked a form given him in jail; that he
came to know about the death of his wife only when his father told
him about it while he was in jail; and, that he did not know
Barangay Captain Apuya when asked about his alleged affair with
his wife.12
In the assailed Decision dated 19 August 1998 the trial court held
that the crime committed was parricide. While no marriage
certificate was presented to prove the relationship between
appellant and the victim, such fact was evident from the
testimonies of the witnesses and appellant himself who averred
that the victim was his legitimate wife; that the aggravating
SO ORDERED.
Appellant
was
properly
convicted
of
the
crime
of
parricide.24 Parricide not being a capital crime per se, as it is not
punishable by the mandatory death penalty but by the flexible
penalty of reclusion perpetua to death which are two (2) indivisible
penalties, the application of the lesser or the greater penalty
depends on the presence of mitigating and aggravating
circumstances. There being no aggravating or mitigating
circumstance appreciated for appellant, the lesser penalty of
reclusion perpetua is imposed.25 Nonetheless, clinical findings at
the time of evaluation of the psychological and psychiatric
condition of appellant show that despite maintenance of antipsychotic medication he remains to be symptomatic. It is
imperative that there should be continuous maintenance of his
anti-psychotic medications and regular psychiatric follow-up to
achieve and sustain remission of psychotic symptoms.
As the trial court failed to award indemnity in favor of the heirs of
the victim, the amount of P50,000.00 should be adjudged as civil
testified that at the time of the accident he and the deceased were
located on the left-hand side of the highway going from Iloilo at
Jaro; that he was standing a few feet from the deceased who was
also on the same side of the highway; that the deceased was
standing up painting the side of the telephone pole toward Jaro;
that the telephone pole was, therefore, between the deceased and
Iloilo, the direction from which the automobile was coming; that the
road on that day was very dusty and the automobile, as he saw it
coming from Iloilo toward him and the deceased, was raising a
cloud of dust which he was drifting to the side of the road upon
which he and the deceased were located. This witness further
asserted that he saw the automobile when it was within about
1,200 feet of the place where he stood; that it was coming at a rate
of speed variously termed by him "very fast" and "at full speed;"
that, on observing the machine as it approached, he saw that the
driver, the accused, was turning the steering wheel first in one
direction and then the other, as if uncertain what course he was
going to pursue; that the machine, as a consequence, was darting
first to one side of the road and then to the other, thus zigzagging
back and forth across the traveled portion of the highway; that just
before reaching the place where deceased was painting the
telephone pole it crossed to the side of the road opposite to him
and then suddenly started back across the road opposite to him
and then suddenly started back across the road, striking the
deceased as he stood painting; that by the impact the deceased
was thrown upon the ground somewhat toward the front of the
machine, which was going so fast that, although the accused was
not within the reach of its wheels, nevertheless, the "suction," as
the witness called it, created by the swift passage of the machine
drew the deceased under its wheels where he was run over and
crushed.
From the testimony of the witness it does not appear that the
deceased moved or stirred in any way until he was hit by the
automobile.
The accused testified, and produced several witnesses to support
his testimony, that at the time of the accident he was driving the
machine, which was loaded to its fullest capacity with passengers
and baggage, at about 10 to 15 miles an hour; that he was driving
in or near the center of the road and pas to either side; that the
machine was under full control and was going steadily and
smoothly without deviating to the right or to the left; that on
approaching the place where the witness Pablo Tayson stood he
saw him turn his back toward the road and place his cap over his
face in such a way as to cover his nose, mouth and eyes, evidently
to protect them from the cloud of dust which was rolling from
behind the machine over toward the side of the road on which he
was; that the deceased, as the machine approached, probably
seeing the cloud of dust which it was raising and which would
inevitably drift in his direction, and observing his companion, Pablo
Tayson, under the necessity of protecting himself from the dust in
the manner described, just before the machine reached a point
opposite him, started to cross the road to the other side, evidently
to escape the dust; that he misjudged the distance and started too
late; that in attempting to cross he placed himself squarely in front
of the machine; that his movement was so sudden and unexpected
and, when he reached the road, he was so close to the machine
that it was impossible to stop it in time to avert the catastrophe;
that he did everything that was possible to be done to avoid the
accident; that he put on both brakes as hard as possible and turned
the machine as much as could be done under the circumstances;
that in proof thereof he shows that only the front wheel of the
machine passed over the body of the deceased, it having been
turned by him sufficiently so that the mind wheel missed him, and
that the machine was stopped a very few feet beyond the point
where the accident occurred. The accused testified, and his
evidence in this regard is uncontradicted, that he was thoroughly
qualified as a driver, having served his apprenticeship on this very
road and this very machine before being employed.
The accused denies absolutely that portion of the story told by
Pablo Tayson in which he alleges that the accused was driving at a
high rate of speed; that he was zigzagging from one side of the
road to the other; and that he struck the deceased while he stood
painting the telephone pole.
We are satisfied that the evidence is not sufficient to convict. On
the contrary, we believe that, under all of the facts and
circumstances of the case, the fair preponderance of the evidence
indicates that the deceased met his death in substantially the
manner described by the accused. In the first place, the testimony
of Pablo Tayson is affected by an attack made upon his credibility
during the progress of the trial. It was shown that, on the
preliminary investigation had by the justice of the peace, this
witness testified, precisely as the accused asserted in his evidence,
that just as the machine was arriving at a point in the highway
opposite him, he, desiring to avoid the unpleasantness of the dust,
turned his back toward the road and covered his face with his cap,
thereby excluding the dust from his mouth, eyes, and nostrils. That
hands of the thieves by whom they had been captured. The witness
Casas, the municipal president of Meycauayan, testified that he
held office as such in place of the former president, Don Tomas
Testa, who was kidnapped in the month of October, 1902.
The said documents, the first of which was dated July 4 and the
second July 17, 1902, were written in Tagalog, and contain an oath
taken in the name of God, and a covenant on the part of the
subscribers to carry out the superior orders of the Katipunan, and
never disobey them until their death in the defense of the mother
country. The two accused, under oath, testified to having signed
the said documents and alleged that they did so under compulsion
and force while they were held as captives by the thieves; that the
defendant Tanchinco was captured in the fields one day when he
was going to work on his farm by three armed men, unknown to
him, who asked him if he was an agent or friend of President Testa,
and upon his replying in the negative they compelled him in view of
his denial to sign a document, now on page 3 of the record.
The defendant Tanchinco cited Lazaro Yusay to testify to the fact
that he was captured at a place called Kaibiga in the township of
Novaliches, and that on the day following his release, having been
unable to pay the $300 which was demanded of him, he reported to
the president, Tomas Testa. The defendant Liberato Exaltacion
under oath testified that he was captured near Meycauayan by five
persons, unknown, dressed as policemen and armed with guns or
revolvers; that these men bound him and took him into the forest
and there compelled him by threats of death to sign the documents
now on page 2 of the record; that thereupon they allowed him to go
upon promise to return. This defendant testified that Antero Villano
and Tomas Rivera saw him while on the road in the hands of the
thieves. Both the accused testified that as soon as they were
released they presented themselves to the president, Don Tomas
Testa, in the presence of witnesses, and subsequently went to
Bonifacio Morales, a lieutenant of volunteers, and reported to him
the fact that they had been captured.
The witnesses Morales, Lazaro Yusay, Antero Villano, Dalmacio
Ferrer, and Hipolito de Leon - of whom the last two were present
when Tanchinco appeared before Senor Testa, the president of
Meycauayan, and reported to him what had happened to him - all
Death penalty having been imposed by the trial court, the case
is now before us on automatic review.Accused-appellant prays for
his acquittal mainly on the basis of his claim that the killing of the
victim was in the course of the performance of his official duty as a
police officer, and in self-defense.
Preliminarily, having admitted the killing of Wapili, accusedappellant assumed the burden of proving legal justification
therefor. He must establish clearly and convincingly how he acted
in fulfillment of his official duty and/or in complete self-defense, as
claimed by him; otherwise, he must suffer all the consequences of
his malefaction. He has to rely on the quantitative and qualitative
strength of his own evidence, not on the weakness of the
prosecution; for even if it were weak it could not be disbelieved
after he had admitted the killing.[10]
Before the justifying circumstance of fulfillment of a duty under
Art. 11, par. 5, of The Revised Penal Code may be successfully
invoked, the accused must prove the presence of two (2) requisites,
namely, that he acted in the performance of a duty or in the lawful
exercise of a right or an office, and that the injury caused or the
offense committed be the necessary consequence of the due
performance of duty or the lawful exercise of such right or
office. The second requisite is lacking in the instant case.
stage of the incident - when he fatally shot the victim in the head,
perhaps in his desire to take no chances, even after the latter
slumped to the ground due to multiple gunshot wounds sustained
while charging at the police officers. Sound discretion and restraint
dictated that accused-appellant, a veteran policeman,[11] should
have ceased firing at the victim the moment he saw the latter fall
to the ground. The victim at that point no longer posed a threat and
was already incapable of mounting an aggression against the police
officers. Shooting him in the head was obviously unnecessary. As
succinctly observed by the trial court Once he saw the victim he fired a warning shot then shot the victim
hitting him on the different parts of the body causing him to fall to
the ground and in that position the accused shot the victim again
hitting the back portion of the victim's head causing the brain to
scatter on the ground x x x x the victim, Buenaventura Wapili, was
already on the ground. Therefore, there was no necessity for the
accused to pump another shot on the back portion of the victim's
head.
It cannot therefore be said that the fatal wound in the head of
the victim was a necessary consequence of accused-appellant's
due performance of a duty or the lawful exercise of a right or office.
Likewise, the evidence at hand does not favor his claim of selfdefense. The elements in order for self-defense to be appreciated
are: (a) unlawful aggression on the part of the person injured or
killed by the accused; (b) reasonable necessity of the means
employed to prevent or repel it; and, (c) lack of sufficient
provocation on the part of the person defending himself. [12]
This Court disagrees with the conclusion of the court a quo that
the killing of Wapili by accused-appellant was attended by
treachery, thus qualifying the offense to murder. We discern
nothing from the evidence that the assault was so sudden and
unexpected and that accused-appellant deliberately adopted a
Evidence for the prosecution show that on November 23, 1994, one
Willy Baluyot celebrated his birthday at his residence in Barangay
19, San Nicolas, Ilocos Norte. Among those invited were Danilo
Mendoza, petitioner, Alfonso Nisperos, Gervacio Pascua, William
Kiskis, Manuel dela Cruz, Jr., Erwin Vergara, and Nelson Romana.
During the party, Erwin Vergara got inebriated and had to be
brought to a nearby hut by Alfonso Nisperos and Willy Baluyot to
shake off the effects of his intoxication.
SANDOVAL-GUTIERREZ, J.:
For our resolution is the petition for review on certiorari seeking the
modification of the Decision1 of the Court of Appeals, dated June
29, 1999, in CA-G.R. CR No. 21536, which affirmed the judgment of
the Regional Trial Court (RTC), Branch 12, Laoag City, in Criminal
Case No. 7190. In this case the trial court convicted accused Danilo
Mendoza, petitioner herein, for homicide wherein the victim was
Alfonso Nisperos. Petitioner does not seek an acquittal but merely
prays that the privileged mitigating circumstance of incomplete
self-defense be considered in his favor.
The Information charging petitioner with homicide is quoted as
follows:
"That on 23 November, 1994, in the evening at Brgy. 19, San
Nicolas, Ilocos Norte, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with intent to kill, did
then and there willfully, unlawfully and feloniously stab ALFONSO
NISPEROS on the different parts of his body which caused his death
few moments thereafter.
CONTRARY TO LAW."
Loreta rushed to her son. She found him lying, face down, with
petitioner on top of him, stabbing him with a knife.
Petitioner contends that the trial court erred in holding that the
witnesses for the prosecution who are close relatives of the victim
are credible.
Q: You said that you saw Danilo stabbing your son, what
instrument did he use in stabbing your son?
Q: And when the accused followed your son, what did the
accused do?
A: Knife (immuko).
it.53 Floriana identified this man during the trial as accusedappellant Roland (Ronald) Garcia.54
The PACC operatives tried to follow the blue car but were prevented
by traffic.55 They were however able to catch up and arrest Garcia
who was in possession of the ransom money in the amount of
P71,000.00.56 They brought him inside their police car and there
apprised him of his custodial rights. 57 Garcia informed the PACC
operatives that Atty. Tioleco was being detained inside the De Vega
compound in Fairview.58 With this information, P/Chief Insp. Cruz
ordered P/Chief Insps. Tucay and Quidato who had been posted
near the compound to rescue the victim.59
The two (2) PACC officers, together with their respective teams,
entered the compound and surged into the bungalow house where
they saw two (2) men inside the living room. 60 As one of the PACC
teams was about to arrest the two (2) men, the latter ran towards a
room in the house where they were about to grab a .38 cal.
revolver without serial number loaded with six (6) rounds of
ammunitions and a .357 cal. revolver with six (6) live
ammunitions.61 The other PACC team searched the house for Atty.
Tioleco and found him in the other room. 62The two (2) men were
arrested and informed of their custodial rights. They were identified
in due time as accused-appellants Rodante Rogel and Rotchel
Lariba.63
P/Chief Insp. Cruz arrived at the De Vega compound 64 and
coordinated with the proper barangay authorities.65While the PACC
operatives were completing their rescue and arrest operations, the
house phone rang.66Accused-appellant Rogel answered the call
upon the instruction of P/Chief Insp. Cruz. 67 Rogel identified the
caller to be accused-appellant Valler who was then driving towards
the De Vega compound.68 In the same phone call, Valler also talked
with accused-appellant Garcia to inquire about the ransom money. 69
Then a blue Toyota Corona arrived at the De Vega
compound.70 Valler alighted from the car and shouted at the
occupants of the house to open the gate. 71 Suspicious this time,
however, he went back to his car to flee. 72 But the PACC operatives
pursued his car, eventually subduing and arresting him.73 The
operations at the De Vega Compound ended at 8:30 in the evening
and the PACC operatives, together with Atty. Tioleco and the
accused-appellants, left the De Vega compound and returned to
their headquarters in Camp Crame, Quezon City. 74 The ransom
money was returned intact to Atty. Tioleco.75
Yes, sir.
Q:
A:
x
Q:
By the way, what car did you use when you were
roaming around Quezon City on October 6 in the evening?
A:
Jimmy's
color. Reddish.
car,
which
was
somewhat red
in
Q:
And what car did you use the following day when you
took the bag? The same car?
A:
The same car, the
somewhat reddish in color.
Toyota
car
which
was
Q:
And if he's present in the courtroom will you be able
to point to him?
A:
Yes, sir.
Yes, sir.
Q:
At this juncture your honor we would like to request
with the court's permission the witness be allowed to step
down from the witness stand and approach the person just
described and tap him on his shoulder.
Q:
A:
When he went inside the house and the kitchen, they
started interviews, that is where I learned his name, Gerry
Valler x x x x104
Q:
But I thought that when you were pushed inside the
car, you were pushed head first, how can you easily
describe this person driving the vehicle and the person
whom you now identified as Roland Garcia?
A:
Even if they pushed my head, there was an
opportunity for me to see the face of the accused. 105
As we held in People v. Candelario, 106 it is the most natural reaction
for victims of crimes to strive to remember the faces of their
assailants and the manner in which the craven acts are committed.
There is no reason to disbelieve Atty. Tioeleco's claim that he saw
the faces of his abductors considering that they brazenly
perpetrated the crime in broad daylight without donning masks to
hide their faces. Besides, there was ample opportunity for him to
discern their features from the time two (2) of his kidnappers
approached and forced him into their car and once inside saw the
other two (2), including Gerry Valler, long enough to recall them
until he was blindfolded.
A:
That is not correct, sir. They said that, but I know that
is one of the suspects because he was the person who was
driving the vehicle at the time I got kidnapped. So I know
him.
Q:
So you saw him at the time you were kidnapped that
is why you were able to identify him when he was ushered
in?
Q:
Now, in Question No. 5 and I quote x x x Why did you
not identify here the name of the driver as one Gerry Valler?
A:
When he was brought into the kitchen I saw him.
When I saw him, I knew he was one of the suspects.
A:
Because they never asked me the name. They just
asked me to narrate what happened. Had they asked me the
name, I could have mentioned the name.108
Q:
A:
In light of the positive identification by the victim of accusedappellant Valler, the latter's denial must fall absolutely. Clearly,
positive identification of the accused where categorical and
consistent and without any showing of ill motive on the part of the
Q:
They were seated at the sala when you entered the
place?
A:
Yes, sir.
Q:
A:
We announced that we were police officers of the
Presidential Anti-Crime Commission.
Q:
Do you know what happened with these two men
during that time?
A:
They were caught by surprise and they were about to
run to the first room.
Q:
What happened when these two men who were at the
living room or at the sala, when they ran to the first room?
A:
Q:
What about the team of Major Quidato, where did
they proceed?
A:
Major Quidato's team proceeded to the second room
where Atty. Tioleco was being kept.
Q:
According to you, you gave chase to these two men
who were earlier in the sala and they ran upon your
announcement that you were police officers?
A:
When we cornered them in that room, they were
about to grab the two revolvers loaded with six (6) rounds of
ammunitions.
Q:
A:
They were placed on top of a cabinet, which, when
you enter in the room, is placed on the right side of the
room.
Q:
A:
Q:
And can you please describe these revolvers to this
Honorable Court?
A:
Yes, sir x x x x The revolvers confiscated on that raid
are one (1) .38 caliber revolver without serial number loaded
with 6 rounds of ammunition, live ammo, one .357 also
loaded with 6 rounds of live ammunitions. 116
Correlating the above testimony with the other evidence, it is clear
that at the time Lariba and Rogel were caught, Atty. Tioleco had
already been rendered immobile with his eyes blindfolded and his
hands handcuffed. No evidence exists that he could have gone
elsewhere or escaped. At the precise moment of their
apprehension, accused-appellants Lariba and Rogel were unarmed
although guns inside one of the rooms of the house were available
for their use and possession.
Assessing these established circumstances in the manner most
favorable to Lariba and Rogel, we conclude that they were merely
guarding the house for the purpose of either helping the other
accused-appellants in facilitating the successful denouement to the
crime or repelling any attempt to rescue the victim, as shown by
the availability of arms and ammunition to them. They thus
cooperated in the execution of the offense by previous or
simultaneous acts by means of which they aided or facilitated the
execution of the crime but without any indispensable act for its
accomplishment. Under Art. 18 of The Revised Penal Code, they are
mere accomplices.
In People v. De Vera117 we distinguished a conspirator from an
accomplice in this manner Conspirators and accomplices have one thing in common:
they know and agree with the criminal design. Conspirators,
however, know the criminal intention because they
themselves have decided upon such course of action.
Accomplices come to know about it after the principals have
reached the decision, and only then do they agree to
cooperate in its execution. Conspirators decide that a crime
should be committed; accomplices merely concur in it.
Accomplices do not decide whether the crime should be
committed; they merely assent to the plan and cooperate in
its accomplishment. Conspirators are the authors of a crime;
Sec. 1.
Unlawful Manufacture, Sale, Acquisition,
Disposition or Possession of Firearms or Ammunition
Instruments Used or Intended to be Used in the
Manufacture of Firearms or Ammunition.- The penalty
of prision correccional in its maximum period and a
fine of not less than Fifteen thousand pesos
(P15,000) shall be imposed upon any person who
shall unlawfully manufacture, deal in, acquire,
dispose, or possess any low powered firearm, such as
rimfire handgun, .380 or .32 and other firearm of
similar firepower, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be
used in the manufacture of any firearm or
ammunition: Provided, That no other crime was
committed.
The penalty of prision mayor in its minimum period
and a fine of Thirty thousand pesos (P30,000) shall
be imposed if the firearm is classified as high
powered firearm which includes those with bores
bigger in diameter than .30 caliber and 9 millimeter
such as caliber .40, .41, .44, .45 and also lesser
calibered firearms but considered powerful such as
caliber .357 and caliber .22 centerfire magnum and
other firearms with firing capability of full automatic
and by burst of two or three: Provided, however, That
no other crime was committed by the person
arrested.
If homicide or murder is committed with the use of
an unlicensed firearm, such use of an unlicensed
firearm shall be considered as an aggravating
circumstance.
If the violation of this Section is in furtherance of or
incident to, or in connection with the crime of
rebellion or insurrection, sedition, or attempted coup
mentally torturing him and his family to raise the ransom money.
The fact that they suffered the trauma of mental, physical and
psychological ordeal which constitute the bases for moral damages
under the Civil Code129 is too obvious to require still the recital
thereof at the trial through the superfluity of a testimonial charade.
Following our finding that only Gerry Valler and Ronald "Roland"
Garcia are principals by direct participation and conspirators while
Rotchel Lariba and Rodante Rogel are accomplices, we apportion
their respective responsibilities for the amount adjudged as moral
damages to be paid by them solidarily within their respective class
and subsidiarily for the others.130 Thus, the principals, accusedappellants Ronald "Roland" Garcia and Gerry Valler, shall pay their
victim Atty. Romualdo Tioleco P150,000.00 for moral damages and
the accomplices P50,000.00 for moral damages.
WHEREFORE, the Decision of the court a quo is MODIFIED. In Crim.
Case No. Q-96-68049 (G.R. No. 133489) accused-appellants
RONALD "ROLAND" GARCIA y FLORES and GERRY B. VALLER are
declared guilty as PRINCIPALS of kidnapping for ransom and serious
illegal detention and are sentenced each to death, while accusedappellants RODANTE ROGEL y ROSALES and ROTCHEL LARIBA y
DEMICILLO are convicted as ACCOMPLICES and are ordered to serve
the penalty of reclusion perpetua with the accessories provided by
law for the same crime of kidnapping for ransom and serious illegal
detention. Accused-appellants are further ordered to pay moral
damages in the amount of P200,000.00, with the principals being
solidarily liable for P150,000.00 of this amount and subsidiarily for
the civil liability of the accomplices, and the accomplices being
solidarily liable for P50,000.00 for moral damages and subsidiarily
for the civil liability of the principals.1wphi1.nt
Finally, in Crim. Case No. Q-96-68050 (G.R. No. 143970) the
Decision of the court a quo convicting RODANTE ROGEL y ROSALES
and ROTCHEL LARIBA y DEMICILLO of illegal possession of firearms
and ammunition isREVERSED and SET ASIDE in light of the
enactment of RA 8294 and our rulings in People v.
Ladjaalam131 andEvangelista v. Siztoza.132
Four (4) Justices of the Court maintain their position that RA 7659 is
unconstitutional insofar as it prescribes the death penalty;
nevertheless, they submit to the ruling of the majority that the law
is constitutional and the death penalty can be lawfully imposed in
the case at bar.
About 9:15 p.m., while SPO1 Danilo Vidad ("SPO1 Vidad") was at
the WPD Homicide Division, his station received a call from the UST
Hospital informing them of the death of Quejong. SPO1 Vidad and
PO3 Ed Co went to the UST Hospital morgue and investigated the
incident. They learned that Almojuela, assisted by Abarquez,
stabbed Quejong. Upon the execution of sworn statements by Paz
and Masula, SPO1 Vidad booked Almojuela and Abarquez for
homicide and frustrated homicide and prepared the referral letter
to the inquest prosecutor.
Abarquez voluntarily appeared at the police station. Almojuela
voluntarily surrendered to one SPO4 Soriano at Police Station No.
10 and was turned over to the WPD Homicide Division.
Dr. Antonio Rebosa9 ("Dr. Rebosa"), a medico-legal consultant at
UST Hospital, conducted the post-mortem examination and autopsy
on Quejong. Dr. Rebosa reported that Quejong sustained two stab
wounds and suffered from massive hemorrhage due to penetrating
stab wounds to the heart and left lung. According to Dr. Rebosa, a
sharp instrument probably caused the wound. Dr. Rebosa also
reported that Quejong sustained abrasions and contusions on the
right upper body, the wrist and on the lower extremities.
The Version of the Defense
Abarquez countered that on 21 November 1993, he was in his
residence at 3363 San Jose St., Sta. Mesa, Manila. About 7:30 p.m.,
Almojuelas wife informed him that the group of Paz was
challenging Almojuela to a fistfight. Abarquez, being a barangay
kagawad, proceeded to Almojuelas house. Almojuelas house was
about twenty meters away from Abarquezs house. When he
arrived at Almojuelas house, Abarquez saw Almojuela on the
ground being strangled by Quejong. Paz was holding Almojuelas
waist and boxing him at the stomach. Masula was near Almojuelas
head holding a piece of stone as if waiting for a chance to hit him.
Abarquez shouted at the group to stop. The group did not heed
Abarquez, forcing him to fire a warning shot into the air. Still, the
group did not heed Abarquez who then fired a second warning shot.
Paz, Quejong, and Masula scampered away.
Almojuela told Abarquez that he was merely trying to stop the
group of Paz from smoking marijuana. Almojuela then went inside
his house while Abarquez went home. On his way home, Abarquez
met the Chief Tanod of the barangay and two kagawads. Kagawad
Rudy Lego ("Lego") advised him to report the incident to the police.
The rule is that the trial court is in the best position to determine
the value and weight of the testimony of a witness. The exception
is if the trial court failed to consider certain facts of substance and
value, which if considered, might affect the result of the case. 16 This
case is an exception to the rule.
Concurrence in Criminal Design
13
PROSECUTOR F. G. SUPNET:
xxx xxx xxx
I would like to make it of record demonstrated being held by the
accused holding both shoulders, your Honor.
q. Now, when this Dale Abarquez held both on your shoulders, what
happened next, if any?
q. Now, you said Bitoy and Ricky were moving, what happened in
the course of grappling, if any?
[q.] And it was during that time when you were held in both
shoulders by the accused [C]overdale Abarquez?
You testified that Ricky and Bitoy were grappling each other, what
happened in the course of grappling? (sic)
a. Yes, sir.
q. and that Coverdale Abarquez was infront of you, is it not?
ATTY. GASCON:
Make I make it of record your Honor that the interpreter act as the
witness while the witness act as the accused demonstrating holding
both hands of interpreter preventing the witness and saying Joey
tumigil ka na, joey tumigil ka na.
COURT:
The accused told you Joey tumigil ka na, Joey tumigil ka na because
you were trying to attack Bitoy, is it not?
a. How can I be charged, he was the one holding the knife, sir. (sic)
In People v. Fabros,
q. So what was the reason why the accused restrained you and told
you Joey tumigal ka na, Joey tumigil ka na. What would be the
reason?
25
xxx. The mere fact that the (accused) had prior knowledge of the
(principals) criminal design did not automatically make him an
accomplice. This circumstance, by itself, did not show his
concurrence in the principals criminal intent.
Paz stated that Abarquez did not do anything to stop Almojuela.
However, Paz testified that Abarquezs son Bardie, who was one of
Pazs companions, was the one trying to pacify Almojuela. The trial
court in its factual findings confirmed this when it stated that while
Abarquez was holding Paz, his son Bardie was pacifying Almojuela. 26
The prosecution argues that Abarquez was remiss in his duties as a
barangay kagawad in not extending assistance to the then
wounded Quejong. This, however, does not necessarily show
concurrence in Almojuelas criminal act. When Paz ran away,
Abarquez shouted at him that he left his wounded companion.
Apparently, Abarquez was not aware of the extent of Quejongs
injury and he expected Paz to look after his own companion.
When there is doubt on the guilt of an accused, the doubt should
be resolved in his favor. Thus:
Every person accused has the right to be presumed innocent until
the contrary is proven beyond reasonable doubt. The presumption
of innocence stands as a fundamental principle of both
constitutional and criminal law. Thus, the prosecution has the
Eight (8) Informations were filed within the period from 21 August
2000 to 23 February 2001 by the Assistant Provincial Prosecutor of
At the same time, we agree with the Court of Appeals that the two
counts of rape in Criminal Case Nos. 6906-G and 6908-G were not
proven beyond reasonable doubt, but only the two separate
incidents of attempted rape.
in the lower court proceedings. Not only did the prosecution allege
in the Informations the ages of the victims when they were raped
but the prosecution also presented the birth certificates of BBB and
AAA in court as documentary evidence to prove that they were
both minors when appellant raped them. Appellant, in open court,
also admitted that that he was the uncle of both victims being the
brother of the victims' father, and thus, a relative of the victims
within the third degree of consanguinity.
xxxx
Q How many times did he try to insert his penis into your
vagina?
A Many times, Mam.48 [sic]
AAA also testified in the same vein in Criminal Case No. 6908-G.
Q I am now through with Criminal Case No. 6906-G. In
Criminal Case No. 6908-G, also for Rape. When was the last
time that this sexual abuse was committed by your Uncle?
A June 11, Mam. [sic]
Q What year?
A June 11, 2000, Mam. [sic]
xxxx
Q What did your Uncle do to you on June 11, 2000?
A He also removed my clothes, Mam. [sic]
Q And after removing your clothes, what did he do to you?
A He was trying to insert his penis into my vagina, Mam.
[sic]
xxxx
Q And what did you feel when he was trying to insert his
penis in your vagina?
A Painful, Mam. [sic]
Q And what did you do when you feel painful?
A I cried, Mam. [sic]
Q When you cried, what did your Uncle do, if any?
A He did not pursue what he was doing, Mam. [sic]
xxxx
Q And your Uncle was not able to penetrate his penis to
your vagina?
and
consequently
The Court thus affirms the conclusions of the Court of Appeals that
it has been established beyond reasonable doubt that appellant is
guilty of six (6) counts of rape and two (2) counts of attempted
rape. However, in light of Rep. Act No. 9346, the appropriate
penalties for both crimes should be amended.
II.
We shall not dwell at length on the proper penalty imposable on
appellant for the six (6) counts of rape. The sentence of death
imposed by the RTC and affirmed by the Court of Appeals can no
longer be affirmed in view of Rep. Act No. 9346, titled "An Act
Prohibiting the Imposition of Death Penalty in the Philippines."
Section 2 of the law mandates that in lieu of the death penalty, the
penalty of reclusion perpetua shall be imposed. Correspondingly,
the Court can no longer uphold the death sentences imposed by
lower courts, but must, if the
guilt of the accused is affirmed, impose instead the penalty
of reclusion perpetua, or life imprisonment when appropriate. Since
the passage of Rep. Act No. 9346, the Court has had occasion to
effectuate such reduction in recent cases such as People v.
Tubongbanua52 and People v. Cabalquinto.53
III.
The question of what should be the appropriate penalty for the two
(2) counts of attempted rape proves to be the more challenging but
interesting question facing the Court.
The Court of Appeals had sentenced appellant, for the attempted
rape of AAA, to "an indeterminate penalty of ten (10) years
of prision mayor, as minimum, to seventeen (17) years and four (4)
months of reclusion temporal as maximum," for each count of
attempted rape. There is no doubt as to the validity of this
sentence at the time it was meted prior to the enactment of Rep.
Act No. 9346. Article 51 of the Revised Penal Code establishes the
penalty to be imposed upon the principals of an attempted felony:
ART. 51. xxx A penalty lower by two degrees than that
prescribed by law for the consummated felony shall be
and
that
the
this
xxxx
Article 71 of the Revised Penal Code (Article 71) warrants special
attention, crucial as it is to our disposition of this question. The
provision reads:
7. Destierro
8. Arresto menor
IV.
9. Public censure
2. Reclusion perpetua
3. Reclusion temporal
4. Prision mayor
5. Prision correctional
6. Arresto mayor
10. Fine57
xxxx
Following the scale prescribed in Article 71, the penalty two
degrees lower than death is reclusion temporal, which was the
maximum penalty imposed by the Court of Appeals on appellant for
attempted rape. Reclusion temporal is a penalty comprised of three
divisible periods, a minimum, a medium and a maximum.
At the same time, the Indeterminate Sentence Law prescribes that
"the court shall sentence the accused to an indeterminate
Prior to the enactment of Rep. Act No. 9346, the death penalty was
imposable under two different frames of reference. This was
especially made clear with the 1993 amendments to the Revised
Penal Code through Rep. Act No. 7659, or the Death Penalty Law.
Under the Revised Penal Code, as amended, the death penalty was
provided for in two ways, namely: as the maximum penalty for
"reclusion perpetua to death," and death itself as an automatic and
exclusive penalty. Death as the automatic penalty was mandated
for the crimes of qualified bribery "if it is the public officer who asks
There is no need for now to discuss the effects of Rep. Act No. 9346
on the penalties for frustrated and attempted felonies which were
punishable by "reclusion perpetua to death" if consummated, or on
accomplices and accessories to such felonies. Such situations do
not relate to the case of appellant, who was convicted of two (2)
counts of attempted rape, which, if consummated, of course would
have carried prior to the enactment of Rep. Act 9346 the penalty of
death, and not "reclusion perpetua to death."
The Court also recognizes that the graduation of penalties reckoned
from "reclusion perpetua to death" differs from that based on the
exclusive penalty of death. For example, it has been held that the
penalty two degrees lower than "reclusion perpetua to death"
is prision mayor.66 In contrast, the Court has likewise held that for
qualified rape in the attempted stage, "the penalty x x x two (2)
degrees lower than the imposable penalty of death for the offense
charged x x x is reclusion temporal." 67 In People v. Tolentino, 68 we
ruled that the accused, who had been sentenced to die for the rape
of his nine (9)-year old stepdaughter, was guilty only of attempted
rape. In explaining that "reclusion temporal" was the proper
penalty, the Court, through then Chief Justice Davide, explained:
Under Article 51 of the Revised Penal Code, the penalty for
an attempted felony is the "penalty lower by two degrees
than that prescribed by law for the consummated felony." In
this case, the penalty for the rape if it had been
consummated would have been death, pursuant to Article
335 of the Revised Penal Code, as amended by R.A. No.
7659, since [RT69] was eight years old and TOLENTINO was
mother.
The
last
[RT's]
It is also for this reason that the controversy we are now addressing
did not similarly arise after the enactment of the 1987 Constitution,
which prohibits the imposition of the death penalty subject to its
subsequent readoption at the choice of Congress. Generally, the
highest penalty imposed under the Revised Penal Code was
"reclusion perpetua to death," a penalty composed of two
indivisible penalties. As a result, the Court had no occasion, after
the passage of the 1987 Constitution, to consider the effect of the
charter on penalties downgraded from a single indivisible penalty. It
was under Rep. Act No. 7659, passed in 1993, that some commonly
occurring crimes, such as qualified rape and kidnapping for ransom,
were penalized with the single indivisible penalty of death.
The discussion for purposes of this decision will only center on
crimes, such as qualified rape as defined in the Revised Penal Code,
as amended, for which the imposable penalty was death alone.
Thus, our ruling will bear no direct effect on the sentencing of
accomplices and accessories or persons guilty of the attempted or
frustrated stage of felonies for which the imposable penalty was
"reclusion perpetua to death."
Hence, it should be understood that any reference forthwith
to the penalty of death does not refer to the penalty of
"reclusion perpetua to death."
V.
If there was a clear intent in Rep. Act No. 9346 to downgrade the
penalties for convicts whose sentences had been graduated
beginning from death pursuant to Article 71, the Court would not
hesitate to enforce such downgrading based on clear statutory
intent. However, nothing in Rep. Act No. 9346 expressly refers to
those penalties imposed on frustrated or attempted felonies, or on
accessories and accomplices.
Section 1 of Rep. Act No. 9346 bears examination:
Section 1. The imposition of the penalty of death is hereby
prohibited. Accordingly, Republic Act No. Eight Thousand
One Hundred Seventy-Seven (R.A. No. 8177), otherwise
known as the Act Designating Death by Lethal Injection, is
hereby repealed. Republic Act No. Seven Thousand Six
Hundred Fifty-Nine (R.A. No. 7659), otherwise known as the
Death Penalty Law, and all other laws, executive orders and
The impression left by Muoz was that the use of the word
"imposition" in the Constitution evinced the framer's intent to
retain the operation of penalties under the Revised Penal Code. In
the same vein, one might try to construe the use of "imposition" in
Rep. Act No. 9346 as a means employed by Congress to ensure that
the "death penalty", as applied in Article 71, remain extant. If the
use of "imposition" was implemented as a means of retaining
"death" under Article 71, it would have been a most curious,
roundabout means indeed. The Court can tolerate to a certain
degree the deliberate vagueness sometimes employed in
legislation, yet constitutional due process demands a higher degree
of clarity when infringements on life or liberty are intended. We
have ruled, on due process grounds, as arbitrary and oppressive a
tax assessed on a standard characterized as "nothing but blather in
search of meaning."84 In the matter of statutes that deprive a
person of physical liberty, the demand for a clear standard in
sentencing is even more exacting.
Yet in truth, there is no material difference between "imposition"
and "application," for both terms embody the operation in law of
the death penalty. Since Article 71 denominates "death" as an
element in the graduated scale of penalties, there is no question
that the operation of Article 71 involves the actual application of
the death penalty as a means of determining the extent which a
person's liberty is to be deprived. Since Rep. Act No. 9346
unequivocally bars the application of the death penalty, as well as
expressly repeals all such statutory provisions requiring the
application of the death penalty, such effect necessarily extends to
its relevance to the graduated scale of penalties under Article 71.
We cannot find basis to conclude that Rep. Act No. 9346 intended
to retain the operative effects of the death penalty in the
graduation of the other penalties in our penal laws. Munoz cannot
enjoin us to adopt such conclusion. Rep. Act No. 9346 is not
swaddled in the same restraints appreciated by Muoz on Section
19(1), Article III. The very Congress empowered by the Constitution
to reinstate the imposition of the death penalty once thought it
best to do so, through Rep. Act No. 7650. Within the same realm of
constitutional discretion, Congress has reversed itself. It must be
asserted that today, the legal status of the suppression of the
death penalty in the Philippines has never been more secure than
at any time in our political history as a nation.
Following Muoz, the sovereign people, through the 1987
Constitution, might not have willed the abolition of the death
does not serve as basis for the reduction of civil indemnity and
other damages that adhere to heinous crimes.
IX.
Rep. Act No. 7659, in the course of reintroducing the death penalty
in the Philippines, also effectively classified the crimes listed
therein as "heinous," within constitutional contemplation. Such
reclassification under Rep. Act No. 7659 was accompanied by
certain legal effects other than the imposition of the death penalty,
such as the increase in imposable fines attached to certain heinous
crimes.86 The categorization of certain crimes as "heinous",
constituting as it does official recognition that some crimes are
more odious than others, has also influenced this Court in
adjudging the proper pecuniary indemnities awarded to the victims
of these crimes. Hence, a general inclination persists in levying a
greater amount of damages on accused found guilty of heinous
crimes.
X.
Having pronounced the statutory disallowance of the death penalty
through Rep. Act No. 9346 and the corresponding modification of
penalties other than death through that statute, we now proceed to
discuss the effects of these rulings.
the convict is serving the same." Given that we have ruled that
Rep. Act No. 9346 downgraded the penalties for such crimes, the
benefit of Article 22 has to apply, except as to those persons
defined as "habitual criminal[s]." Indeed, Rep. Act No. 9346
expressly recognized that its enactment would have retroactive
beneficial effects, referring as it did to "persons x x x whose
sentences were reduced to reclusion perpetua by reason of this
Act."88
It cannot be discounted that by operation of Rep. Act No. 9346 and
Article 22 of the Revised Penal Code, there may be convicts
presently serving their original sentences whose actual served
terms exceed their reduced sentences. It should be understood
that this decision does not make operative the release of
such convicts, especially as there may be other reasons
that exist for their continued detention. There are remedies
under law that could be employed to obtain the release of such
prisoners, if warranted. Offices such as the Public Attorney's Office
and non-governmental organizations that frequently assist
detainees possess the capacity and acumen to help implement the
release of such prisoners who are so entitled by reason of this
ruling.
XI.
We close by returning to the matter of appellant Alfredo Bon. By
reason of Rep. Act No. 9346, he is spared the death sentence, and
entitled to the corresponding reduction of his penalty as a
consequence of the downgrading of his offense from two (2) counts
consummated rape to two (2) counts of attempted rape. For the six
(6) counts of rape, we downgrade the penalty of death to reclusion
perpetua with no eligibility for parole, pursuant to Rep. Act No.
9346. For each of the two (2) counts of attempted rape, we
downgrade by one degree lower the penalty imposed by the Court
of Appeals. We hold that there being no mitigating or aggravating
circumstances, the penalty of prision mayor should be imposed in it
medium period. Consequently, we impose the new penalty of two
(2) years, four (4) months and one (1) day of prision correccional as
minimum, to eight (8) years and one (1) day of prision mayor as
maximum.
Lastly, as to damages, the Court awards AAA P30,000.00 as civil
indemnity, P25,000.00 as moral damages andP10,000.00 as
exemplary damages for each count of attempted rape, it being the
to find out what they were talking about and he learned that his
aunt, Francisca Talaro, was transacting with the other three
accused-appellants for the killing of Atty. Melvin Alipio. He was
merely a meter away from the group so he heard the group's
conversation. He learned that Francisca Talaro would give the three
accused-appellants an advance payment of P30,000.00 and then
another P30,000.00 after Atty. Melvin Alipio is killed, with said last
payment to be delivered in Barangay (Brgy.) Bactad. The three
accused-appellants then nodded their heads in agreement. After
learning of the group's plan, Zamora got scared and stayed away
from the group, but three days after that meeting in front of his
house, he was asked by Francisca Talaro to drive her and her
husband Gregorio to Brgy. Bactad. The Talaro spouses alighted at a
place in Brgy. Bactad, while Zamora stayed in his tricycle and
merely waited for them. He assumed that the couple delivered the
payment of P30,000.00 to someone in Brgy. Bactad.3
Accused-appellant Lolito Aquino, when questioned during
preliminary investigation, admitted that he and co-accused Renato
Ramos conducted a surveillance on Atty. Alipio in the afternoon of
April 25, 1994.4
Around 6 o'clock in the morning of April 26, 1994, tricycle driver
Rodolfo Duzon was at the parking area in thepoblacion of Urdaneta
waiting for passengers, when accused-appellant Renato Ramos
approached him. Accused-appellant Ramos offered to pay Rodolfo
Duzon P200.00 for the latter to drive Ramos' motorcycle to Laoac,
Pangasinan to take some onions and turnips there. Duzon agreed,
so after bringing his own tricycle home to his house in Bactad,
Urdaneta, he then drove Ramos' motorcycle to the poblacion of
Urdaneta. At the poblacion, Ramos bought a basket where he
placed the onions and turnips. Ramos then told Duzon to drive the
motorcycle to Laoac, but they first passed by Garcia Street in
Urdaneta. At a house along Garcia Street, Ramos alighted and
talked to someone whom Rodolfo Duzon later came to know as
accused-appellant Lolito Aquino. Ramos then told Duzon that after
coming from Laoac, Duzon should leave the motorcycle at that
house on Garcia Street with Lolito Aquino. Ramos and Duzon then
proceeded to Laoac, stopping at a gas station where they fueled
up. Ramos alighted from the motorcycle at the gas station and,
taking along the basket of onions and turnips, walked towards
Guardian Angel Hospital (the clinic owned by the Alipios). Five
minutes after Ramos alighted, Duzon heard three gunshots coming
from the west, and moments later, he saw Ramos, who was coming
toward him, being chased by another man. When Ramos got to the
Atty. Alipio was still having his breakfast. After a few minutes, a
man arrived looking for Dr. Alipio, and also sat at the bench.
Thereafter, Atty. Alipio came out to the garage and talked to the
two women. When Atty. Alipio finished talking to them, the man
sitting with them on the bench suddenly stood up and shot Atty.
Alipio three times. Atty. Alipio was merely one meter away from the
assailant when the latter shot him. After the shooting, the assailant
walked away. Hidalgo then saw the helper at the clinic, Reny
Balanga, run after the assailant, but the latter had whistled to his
companion who was waiting on his motorcycle and the two were
able to speed away aboard said vehicle. Hidalgo identified the
assailant from a picture7 shown to him.8 The picture was that of
Renato Ramos.9
A few weeks after Atty. Melvin Alipio had been killed, Zamora was in
the parking lot in Sta. Maria Norte in Binalonan, when accusedappellant Aquino approached him and told him to remind Francisca
Talaro that she still has to pay him (Aquino) P10,000.00. Zamora
then immediately told his uncle Gregorio Talaro about Aquino's
message and the very next day, Gregorio went to Zamora's house
with the P10,000.00. Gregorio could no longer wait for Aquino so he
just left the money with Zamora, instructing him to hand it over to
Aquino when the latter arrives. Later that day, Zamora saw Aquino
so he told him (Aquino) to just get the money from his house. About
three weeks later, Aquino again went to Zamora's house, this time
saying he needs another P5,000.00 just in case he needs to escape.
Zamora then contacted Francisca Talaro and conveyed Aquino's
message to her. The following day, Gregorio again went to
Zamora's house and left the P3,000.00 for Aquino. That afternoon,
Zamora again told Aquino to just pick up the money from his house.
Zamora observed that Aquino seemed happy enough with
the P3,000.00 he received.10
Zamora said that he thinks the Talaros had Atty. Alipio killed
because the latter was not able to comply with his contractual
obligations to the Talaros to complete the construction of a
building. Dr. Lina Alipio, the wife of the victim Atty. Melvin Alipio,
confirmed that indeed, the victim entered into an agreement with
Rodolfo Talaro, the Talaro spouses' son, for the construction of a
building, but the construction was not finished within the agreed
one-year period because of the sudden rise of prices for materials.
Atty. Alipio asked Rodolfo for additional payment so he could finish
construction, but the latter refused to pay more. Dr. Alipio stated
that eventually, Atty. Alipio and Rodolfo agreed that Atty. Alipio
would return all the money he received from Rodolfo and the whole
July 3, 2007
In 1996, AAAs younger sister, BBB, went through the same ordeal
in respondents hands. On April 2, 1996, BBB was washing the
dishes at home when respondent arrived drunk and ordered her to
undress. Thereafter, he took off his clothes and dragged her inside
a room. She cried and pleaded with her father to stop but he
warned her not to refuse him otherwise he would kill her, her
mother and her siblings. Respondent then positioned himself on top
of her, sucked her breasts, inserted his fingers, then his penis, into
her. After the dastardly act, he told her to take a bath and go to
sleep.
On October 7, 1996, respondent sent BBBs brother on an errand.
After the boy left, he undressed her and forced her to lie down. She
begged respondent not to repeat what he had done to her in the
past but the latter took no heed. Instead, he again threatened to
kill her if she refused. She kicked respondent in the groin which
forced him to stand up in pain.
On the same day, BBB reported the incident to barangay officials.
Respondent was arrested and brought to the Las Pias police
station where he was detained. Subsequently, the following
Informations were filed against him:
impossible for him to commit the crimes since his wife was always
at home. In Crim. Case No. 96-0461, he claimed that, on October 7,
1996, he was in his neighbors house fixing a karaoke appliance. He
later on "joined a drinking spree" there. According to respondent,
his daughters filed the cases only because they were angry at him
for not sending them to school.
AAAs and BBBs mother, youngest sister and aunt also testified in
respondents defense. According to them, the whole family
attended AAAs graduation on April 2, 1996 and, on October 7,
1996, BBB was not home but studying in Cabanatuan City.
After trial, the court a quo found respondent guilty of the charges.
The dispositive portion of its decision read:
WHEREFORE, in view of the foregoing, judgment is hereby rendered
finding the [respondent] AGUSTIN ABELLERA Y CAMANA GUILTY
beyond reasonable doubt in the Informations as follows:
a. of Rape in Criminal Case No. 96-0460 committed against
his daughter [BBB] in 1996 for which he is sentenced to
suffer the penalty of Death under Article 335 of the Revised
Penal Code as amended by Republic Act No. 7659;
b. of Statutory Rape in Criminal Case No. 97-0007
committed against his daughter [AAA] in 1986 for which he
is sentenced to suffer the penalty of [Reclusion Perpetua];
c. of Rape in Criminal Case No. 97-0007-A committed
against his daughter [AAA in 1992] for which he is
sentenced to suffer the penalty [Reclusion Perpetua]; and;
d. of Attempted Rape in Criminal Case No. 96-0461
committed against his daughter [BBB] in 1996 for which he
is sentenced to a prision term of fifteen (15) years of
Reclusion Temporal; and to pay [AAA] and [BBB] the amount
of P50,000.00 as moral damages; P75,000.00 as civil
indemnity; and P20,000.00 as exemplary damages; and
costs.9
q: What did you do when your father grabbed you while fixing your
clothes?
a: I resisted, sir.
q: What did your father do when you resisted?
a) for the statutory rape against [AAA] in Crim. Case No. 970007, the
sum
of P75,000.00
as
civil
indemnity
and P50,000.00 as moral damages;
b) for the simple rape against [AAA] in Crim. Case No. 970007-A, the sum of P50,000.00 as civil indemnity and
P50,000.00 as moral damages; and
a: Yes, sir.
q: What happened after your father was able to remove your dress
and panty?
a: He forcibly entered his penis, sir. 15
In Crim. Case No. 97-0007-A (simple rape), AAA stated:
q: Madam Witness, on the night of August 4, 1992, do you
remember where were you then?
a: Yes, sir.
xxx
q: What were you doing on that particular date and time?
a: I just arrived from selling balut, sir.
q: Madam Witness, while you were inside your house during that
particular date and time, do you remember what happened next, if
any?
a: Yes, sir.
xxx
xxx
a: He told me, "I will kill you if you will not obey me."
q: What did you do when your father said [he will kill you]?
xxx
xxx
xxx
q: What did you do when your father pulled you or drag you?
a: Yes, sir.
q: What did you do when your father inserted his penis to your
vagina?
xxx
a: I tried to resist and prevent him at the same [time,] I was crying
and begging him not to do [it].
q: What else happened after you resisted?
xxx
q: What happened next when your father inserted his finger into
your organ?
q: How about you[,] what were you doing when your father was
undressing himself?
a: I was begging to him not to repeat what he did to me in the past,
sir.
xxx
q: What did you do when your father [told you] those words?
if anything unusualhappened?
xxx
a: Yes, sir.
q: What did he do when you kicked him?
xxx
AAAs and BBBs testimonies in the trial court were telling. There is
no question respondent indeed committed the crimes charged. His
contention that the lower courts erred in giving full credence to his
daughters testimonies deserves no merit.
Testimonies of victims of tender age are credible, more so if they
are without any motive to falsely testify against their
offender.19 Their revelations that they were raped, coupled with
their willingness to undergo public trial where they could be
compelled to describe the details of the assault on their dignity by
their own father, cannot be easily dismissed as concoctions. 20 It
would be the height of moral and psychological depravity if they
Adding to this the additional penalty of two years, four months and
one day, the penalty would be seventeen years and two days.
If the additional penalty is not imposed and the aggravating
circumstance of recidivism is taken into account, the latter would
compensate the mitigating circumstance and the penalty should
have to be imposed in its medium period, or seventeen years, four
months and one day, which would be four months more severe.
Let us suppose that instead of one mitigating circumstance, two
were present in this example. Considering the aggravating
circumstance of recidivism, it would have to be compensated by
one mitigating circumstance, leaving another, and the penalty to
be imposed would be the minimum period, or fourteen years, eight
months and one day of reclusion temporal. If the aggravating
circumstance of recidivism were not taken into consideration for
imposing the additional penalty, the two mitigating circumstances
would have to be taken into consideration and the penalty next
lower in degree imposed in any of its periods, which mat be the
minimum, according to the circumstances of the case, or eight
years and one day. Adding to this the additional penalty of two
years, four months and two days, or two years, three months and
twenty-nine days less.1awphil.net
Applying these examples to other cases of habitual delinquency,
the result would, more or less, be the same.
According to this, if the theory counter to that adopted by this court
in People vs. Melendrez, supra, were to be followed, the imposition
of the additional penalty would make the penalty lighter, instead of
more severe, contrary to the purpose of the law.
Wherefore, it being understood that the principal penalty imposed
upon the appellant is one year, eight months and twenty-one days,
the appealed judgment is affirmed in all other respects, with other
costs.
So Ordered.
crime of theft for the third time before the expiration of ten years
from the commission of his former crime.
REGALADO, J.:
We are not unaware of cases in the past wherein it was held that, in
imposing the penalty for offenses under special laws, the rules on
mitigating or aggravating circumstances under the Revised Penal
Code cannot and should not be applied. A review of such doctrines
as applied in said cases, however, reveals that the reason therefor
was because the special laws involved provided their own specific
penalties for the offenses punished thereunder, and which penalties
were not taken from or with reference to those in the Revised Penal
Code. Since the penalties then provided by the special laws
concerned did not provide for the minimum, medium or maximum
periods, it would consequently be impossible to consider the
aforestated modifying circumstances whose main function is to
determine the period of the penalty in accordance with the rules in
Article 64 of the Code.
This is also the rationale for the holding in previous cases that the
provisions of the Code on the graduation of penalties by degrees
could not be given supplementary application to special laws, since
the penalties in the latter were not components of or contemplated
in the scale of penalties provided by Article 71 of the former. The
suppletory effect of the Revised Penal Code to special laws, as
provided in Article 10 of the former, cannot be invoked where there
is a legal or physical impossibility of, or a prohibition in the special
law against, such supplementary application.
The situation, however, is different where although the offense is
defined in and ostensibly punished under a special law, the penalty
therefor is actually taken from the Revised Penal Code in its
technical nomenclature and, necessarily, with its duration,
correlation and legal effects under the system of penalties native to
said Code. When, as in this case, the law involved speaks of prision
correccional, in its technical sense under the Code, it would
consequently be both illogical and absurd to posit otherwise. More
on this later.
For the nonce, we hold that in the instant case the imposable
penalty under Republic Act No. 6425, as amended by Republic Act
No. 7659, is prision correccional, to be taken from the medium
period thereof pursuant to Article 64 of the Revised Penal Code,
there being no attendant mitigating or aggravating circumstance.
5. At this juncture, a clarificatory discussion of the developmental
changes in the penalties imposed for offenses under special laws
would be necessary.
Article 64, paragraph 5, of the Revised Penal Code should not apply
to said special law. We said therein that
We do not agree with the Solicitor General that P.D.
533 is a special law entirely distinct from and
unrelated to the Revised Penal Code. From the nature
of the penalty imposed which is in terms of the
classification and duration of penalties as prescribed
in the Revised Penal Code, which is not for penalties
as are ordinarily imposed in special laws, the intent
seems clear that P.D. 533 shall be deemed as an
amendment of the Revised Penal Code, with respect
to the offense of theft of large cattle (Art. 310) or
otherwise to be subject to applicable provisions
thereof such as Article 104 of the Revised Penal Code
. . . . Article 64 of the same Code should, likewise, be
applicable, . . . . (Emphasis supplied.)
More particularly with regard to the suppletory effect of the rules on
penalties in the Revised Penal Code to Republic Act No. 6425, in
this case involving Article 63(2) of the Code, we have this more
recent pronouncement:
. . . Pointing out that as provided in Article 10 the
provisions of the Revised Penal Code shall be
"supplementary" to special laws, this Court held that
where the special law expressly grants to the court
discretion in applying the penalty prescribed for the
offense, there is no room for the application of the
provisions of the Code . . . .
The Dangerous Drugs Act of 1972, as amended by
P.D. No. 1623, contains no explicit grant of discretion
to the Court in the application of the penalty
prescribed by the law. In such case, the court must
be guided by the rules prescribed by the Revised
Penal
Code
concerning
the
application
of
penalties which distill the "deep legal thought and
centuries of experience in the administration of
criminal laws." (Emphasis ours.) 66
Under the aforestated considerations, in the case of the Dangerous
Drugs Act as now amended by Republic Act No. 7659 by the
incorporation and prescription therein of the technical penalties
defined in and constituting integral parts of the three scales of
since only the penalties of fine and public censure remain in the
scale.
The Court rules, therefore, that while modifying circumstances may
be appreciated to determine the periods of the corresponding
penalties, or even reduce the penalty by degrees, in no case should
such graduation of penalties reduce the imposable penalty beyond
or lower than prision correccional. It is for this reason that the three
component penalties in the second paragraph of Section 20 shall
each be considered as an independent principal penalty, and that
the lowest penalty should in any event be prision correccional in
order
not
to
depreciate
the
seriousness
of
drug
offenses. Interpretatio fienda est ut res magis valeat quam pereat.
Such interpretation is to be adopted so that the law may continue
to have efficacy rather than fail. A perfect judicial solution cannot
be forged from an imperfect law, which impasse should now be the
concern of and is accordingly addressed to Congress.
6. The final query is whether or not the Indeterminate Sentence
Law is applicable to the case now before us. Apparently it does,
since drug offenses are not included in nor has appellant
committed any act which would put him within the exceptions to
said law and the penalty to be imposed does not involve reclusion
perpetua or death, provided, of course, that the penalty as
ultimately resolved will exceed one year of imprisonment. 68 The
more important aspect, however, is how the indeterminate
sentence shall be ascertained.
It is true that Section 1 of said law, after providing for
indeterminate sentence for an offense under the Revised Penal
Code, states that "if the offense is punished by any other law, the
court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by
said law and the minimum shall not be less than the minimum term
prescribed by the same." We hold that this quoted portion of the
section indubitably refers to an offense under a special law wherein
the penalty imposed was not taken from and is without reference to
the Revised Penal Code, as discussed in the preceding illustrations,
such that it may be said that the "offense is punished" under that
law.
There can be no sensible debate that the aforequoted rule on
indeterminate sentence for offenses under special laws was
necessary because of the nature of the former type of penalties
under said laws which were not included or contemplated in the
The first witness for the prosecution was the offended party,
EVELYN ELEMIA, 15 years old and a resident of Adante, Pian,
Zamboanga del Norte. On direct examination, she testified that in
the morning of December 21, 1994, at around 8:00 o'clock, she and
her uncle Clemente Dayna were left alone in their house as her
aunt Esperanza went out to buy fish. Clemente Dayna forced her to
go upstairs, while he pointed a knife at her back. Upon reaching the
second floor, he made her lie down on the floor. Then he removed
his shorts and her panty. He then proceeded to have sexual
intercourse with her, by inserting his penis inside her vagina for
about half an hour. On cross-examination, however, Evelyn stated
that her private part was hit by his uncle with an umbrella and that
she was told by her aunt and the DSWD personnel to testify that
she had been raped.3
DR. MEIMEI R. YU, the next witness, testified that she was employed
as rural health physician of the Pian Community Hospital and that
she examined the complainant on December 27, 1994. Her findings
revealed that the hymen of Evelyn was still intact and that she
suffered no lacerations in that area. Neither did she suffer any
bruise or injury on any part of her body. However, Dr. Yu stated that
the labia majora was coapted with reddish discoloration which
could had been caused by sexual intercourse. On cross, the doctor
stated that this discoloration or irritation could have been caused
by other hard objects such as the handle of an umbrella being
pushed through this particular portion of the organ. 4
SPO3 RONALD SALATANDRE testified that he was the one who
investigated the complaint for rape filed by the wife of Clemente
allegedly committed against their niece Evelyn. 5
The defense, in turn, presented appellant CLEMENTE DAYNA, who
denied the accusations against him. He alleged that he only hit
Evelyn with the handle of an umbrella because of anger. He said he
lost P50 from his pocket, and he suspected that Evelyn took the
money. The handle hit Evelyn on her private part twice. He also
alleged that his wife and her family were mad at him for having a
paramour.6
On May 13, 1998, the trial court promulgated its assailed decision
disposing as follows:
The Office of the Solicitor General (OSG), for the State, argues that
an intact hymen is not necessarily inconsistent with a finding of
rape and that hymenal laceration is not an essential prerequisite to
prove rape. The OSG also notes that Evelyn clarified that two
incidents happened on December 21, 1994, one was the umbrella
bashing and the other was the rape. There is likewise no reason to
believe that complainant and her aunt were moved by ill motive in
filing the complaint. Had the rape been a mere fabrication, this
would have been evident in the testimony of complainant. On the
contrary, complainant, despite her young age and the gruelling
nature of the cross-examination, remained steadfast and
consistent, tell tale signs that she was telling the truth in court. The
OSG concedes that the trial court erred in appreciating the
relationship of appellant and complainant as a ground in imposing
the death penalty. However, the OSG insists that the penalty of
death is still justified since the rape was attended by the
aggravating circumstance of use of a deadly weapon. Finally, the
OSG adds that the award of P20,000.00 as actual damages should
be increased to P75,000.00.9
In sum, the issues in this case are whether the guilt of appellant
had been established beyond reasonable doubt and whether the
penalty imposed is proper.
In resolving cases of rape, this Court is guided by the following
principles: (a) an accusation for rape can be made with facility; it is
difficult to prove but even more difficult for the accused, though
innocent, to disprove; (b) in view of the intrinsic nature of the crime
where only two persons are usually involved, the testimony of the
complainant must be scrutinized with extreme caution; and (c) the
evidence for the prosecution must stand or fall on its own merit,
and cannot be allowed to draw strength from the weakness of the
evidence for the defense.10 In general, the evaluation of the trial
court judges regarding the credibility of witnesses deserves utmost
respect on the ground that they are in the best position to observe
the demeanor, act, conduct, and attitude of the witnesses in court
while testifying.11
Guided by these principles and after a careful review of the records
of this case, we find no reason to overturn the finding of guilt
reached by the trial court.
The testimony of Evelyn was given in a candid and straightforward
manner leaving no room for doubt that she is telling the truth.
Aside from this, her tender age further lends to her credibility. We
noted in People vs. Del Mundo, Sr., G.R. No. 132065, April 3, 2001,
it is apparent that in rape cases where the offended parties are
young and immature girls from the ages of twelve to sixteen, the
rule is that:
[C]onsiderable receptivity on the part of this Tribunal to lend
credence to their version of what transpired, considering not
only their relative vulnerability but also the shame and
embarrassment to which such a grueling experience as a
court trial, where they are called upon to lay bare what
perhaps should be shrouded in secrecy, did expose them to.
This is not to say that an uncritical acceptance should be the
rule. It is only to emphasize that skepticism should be kept
under control.12
Appellant tries to discredit Evelyn by pointing out that her
testimony was not corroborated by the physical evidence. Appellant
insists that the fact that her hymen was still intact signifies that she
had not been raped. This argument is not convincing. The fact that
complainant's private parts did not suffer any laceration or that her
hymen is still intact is not relevant in a prosecution for rape. In rape
cases, what is material is that there is penetration of the female
organ no matter how slight. In a long line of decisions, we have
ruled that the only essential point is to prove the entrance or at
least the introduction of the male organ into the light of the
pudendum. Hence, the moment appellant's penis knocks at the
door of the pudenda it suffices to constitute the crime of rape. 13
On the alleged statements made by complainant during her crossexamination, exonerating appellant, a close look at complainant's
testimony would in fact reveal that said testimony bolsters her
claim that she had been raped. The fact that she admitted that she
was hit by an umbrella does not preclude that she was also
sexually abused, thus:
COURT:
From the Court. There are two incidents which you
seem to tell the Court. One is that you were raped by
your uncle Clemente and the other one that your
uncle got angry and struck your private part with the
handle of the umbrella, which happened first?
A:
COURT:
Did it happen on the same day or another day?
A:
COURT:
You mean both incidents happened in the same day.
A:
Even the admission of complainant that she was told by her aunt
and the DSWD personnel to tell the court that she was raped would
not serve appellant's cause. By prodding her to tell the court that
she was raped, they were merely encouraging her to tell what truly
happened. There is no reason for them to make Evelyn lie.
Neither are we convinced by appellant's assertion that the rape
charge could have been motivated by the ill feeling which his wife
and her relatives have against him. No person in her right mind
would stoop so low as to subject her own niece to the hardships
and shame concomitant to a rape prosecution, especially if the one
accused is the girl's own uncle, just to assuage her own hurt
feelings. It is unnatural for a relative to use her own kin as an
engine of malice and sacrifice her to public ridicule if she, in fact,
has not been motivated by an honest desire to have the culprit
punished. The insistence of appellant that his wife fabricated the
rape charges because he had a lover is not supported by the
evidence.
All told, we are morally convinced that appellant is guilty of raping
Evelyn. However, we are unable to agree with the imposition of the
death penalty. As stated in appellant's brief, the trial court erred in
appreciating the relationship between appellant and complainant
as a basis for the imposition of the death penalty. Said relationship
was not alleged in the information. In order to warrant the death
penalty, the information must allege the qualifying and modifying
circumstance that would justify its imposition. Not only must the
information allege the minority of the victim but it must also state
the relationship of the offender to the offended party. 15 Otherwise,
there would be a gross violation of the appellant's constitutional
right to due process, because he was not properly informed of the
accusation against him.
xxx
xxx
xxx
xxx
close range opened fire, as did also Perez who was following not far
behind. After seeing Soriano drop as a result of the fusillade and
with the rest of the group scampering for safety, Roque and Perez
left the place and passed the remainder of the night in a cemetery.
Early the next morning they went to Batangas and there stayed in
the house of Perez's brother until they returned to Manila on the
26th of the same month, the day they were arrested by the police.
At the trial appellant declared that he was not at the scene of the
crime for he was then in Marulas, Polo, Bulacan. But the alibi is so
weak that it is no longer insisted on this appeal. What is now
claimed is that appellant did not fire at the deceased and it was not
in connivance with his co-accused, who was the only one who did
so.
As against the contention that appellant did not fire at the
deceased, we have Roque's confession to the contrary. Villafranca it
is true, testified that appellant fired upward (disparo hacia arriba).
But the witness did not say that all of the four shots which
appellant admits in confession to have fired were not aimed at
anybody, while on the other hand it is evident that he did not see
appellant fire all the four shots because, according to him, the very
first bullet hit him in the left arm and he immediately jumped off
the bridge. It is likewise true that, according to the findings of the
ballistic expert, the two bullets recovered from the body of the
deceased were fired from the pistol supposedly used by Roque. But
there is no proof that all of the five wounds of the deceased and the
two wounds sustained by Villafranca were all produced by bullets
fired from the same gun, while the five shots which Roque fired
according to appellant's confession are not sufficient to account for
all of the seven wounds.
In any event, regardless of whether or not the deceased was hit
any appellant's bullets, there is enough proof of conspiracy
between him and his co-accused to make him jointly liable for the
killing of the deceased. Asked why he went with Roque in order to
kill the deceased, appellant says in his confession that it was
because the deceased and his brother "Pacing" wanted to kill him
also. It thus appears that appellant and his co-accused had a
common motive for eliminating the deceased. And it also appears
that they were acting in concert, for according to their confession
out from the side of their house and when he confronted his wife
about the man, she did not answer. On the following morning, he
told her that they should live separately. As appellant got his things
and was on his way out of the door, Lilybeth stabbed him. But he
succeeded in wresting the knife from Lilybeth. And he stabbed her.
He added that he was not aware of the number of times he stabbed
his wife because he was then dizzy and lots of blood was coming
out of his wound.7
The trial court found appellant guilty in a decision dated 14 April
2005.8 The case was automatically appealed to the Court of
Appeals pursuant to Rule 122 Section 3(d) of the Rules of Criminal
Procedure.9 The appellate court denied appellants appeal in a
decision dated 30 May 2007. 10 Appellant filed a notice of appeal
dated 14 June 2007 before the Court of Appeals.11
The Court is not convinced by appellants assertion that the trial
court erred in not appreciating the justifying circumstance of selfdefense in his favor.
Self-defense, being essentially a factual matter, is best addressed
by the trial court. 12 In the absence of any showing that the trial
court failed to appreciate facts or circumstances of weight and
substance that would have altered its conclusion, the court below,
having seen and heard the witnesses during the trial, is in a better
position to evaluate their testimonies. No compelling reason,
therefore, exists for this Court to disturb the trial courts finding
that appellant did not act in self-defense.
When Miss De la Riva, who was being pulled by Pineda, was very
near the Pontiac car, the three men inside started to assist their
friend: one of them held her by the neck, while the two others held
her arms and legs. All three were now pulling Miss De la Riva inside
the car. Before she was completely in, appellant Pineda jumped
unto the driver's seat and sped away in the direction of Broadway
Street. The maid was left behind.
The complainant was made to sit between Jaime Jose and Edgardo
Aquino at the back seat; Basilio Pineda, Jr. was at the wheel, while
Rogelio Caal was seated beside him. Miss De la Riva entreated the
appellants to release her; but all she got in response were jeers,
abusive and impolite language that the appellants and threats that
the appellants would finish her with their Thompson and throw acid
at her face if she did not keep quiet. In the meantime, the two men
seated on each side of Miss De la Riva started to get busy with her
body: Jose put one arm around the complainant and forced his lips
upon hers, while Aquino placed his arms on her thighs and lifted
her skirt. The girl tried to resist them. She continuously implored
her captors to release her, telling them that she was the only
breadwinner in the family and that her mother was alone at home
and needed her company because her father was already dead.
Upon learning of the demise of Miss De la Riva's father, Aquino
remarked that the situation was much better than he thought since
no one could take revenge against them. By now Miss De la Riva
was beginning to realize the futility of her pleas. She made the sign
of the cross and started to pray. The appellants became angry and
cursed her. Every now and then Aquino would stand up and talk in
whispers with Pineda, after which the two would exchange knowing
glances with Caal and Jose.
The car reached a dead-end street. Pineda turned the car around
and headed towards Victoria Street. Then the car proceeded to
Araneta Avenue, Sta. Mesa Street, Shaw Boulevard, thence to
Epifanio de los Santos Avenue. When the car reached Makati,
Aquino took a handkerchief from his pocket and, with the help of
Jose, blindfolded Miss De la Riva. The latter was told not to shout or
else she would be stabbed or shot with a Thompson. Not long after,
the car came to a stop at the Swanky Hotel in Pasay City The
blindfolded lady was led out of the car to one of the rooms on the
second floor of the hotel.
Inside the room Miss De la Riva was made to sit on a bed. Her
blindfold was removed. She saw Pineda and Aquino standing in
front of her, and Jose and Caal sitting beside her, all of them
broke down and cried. She kept asking the driver if a car was
following them; and each time the driver answered her in the
negative.
one of the four men he abducted and raped her. She executed
another statement (Exh. "B-1") wherein she made a formal
identification of Jose and related the role played by him.
After the apprehension of Jose, the other three soon fell into the
hands of the authorities: Pineda and Caal on July 1, 1967, in Lipa
City, and Aquino on July 5, 1967, in the province of Batangas. On
the evening of July 1, 1967. Miss De la Riva pointed to Pineda and
Caal as among the four persons who abducted and raped her. She
picked them out from among several person in the Office of the
Chief of Police of Quezon City. Later in the same evening, Miss De la
Riva executed a sworn statement (Exh. B-2)wherein she made the
same identification of the two appellants from among a group of
persons in the Office of the Chief of the Detective Bureau, adding
that appellant Caal had tattoo marks on his right hip. After the
identification, one of the policemen took appellant Caal
downstairs and undressed him, and he saw, imprinted on the said
appellant's right hip, the words "Bahala na Gang."
of discretion on the part of the trial court to grant his request. (Cf.
People vs. Arconado, L-16175, February 28, 1962.) The case of U.S.
vs. Agcaoili (31 Phil., 91), cited by Pineda, is not in point, for there
this Court ordered a new trial because it found for a fact that the
accused, who had pleaded guilty, "did not intend to admit that he
committed the offense with the aggravating circumstances"
mentioned in the information. We are not in a position to make a
similar finding here. The transcript of the proceedings during the
arraignment shows that Pineda's counsel, Atty. Lota prefaced his
client's plea of guilty with the statement that .
I have advised him (Pineda) about the technicalities
in plain simple language of the contents of
aggravating circumstances and apprised him of the
penalty he would get, and we have given said
accused time to think. After a while I consulted him
for three times and his decision was still the
same.
Three days after the arraignment, the same counsel stated in court
that he had always been averse to Pineda's idea of pleading guilty,
because "I know the circumstances called for the imposition of the
maximum penaltyconsidering the aggravating circumstances," but
that he acceded to his client's wish only after the fiscal had stated
that he would recommend to the court the imposition of life
imprisonment on his client. To be sure, any such recommendation
does not bind the Court. The situation here, therefore, is far
different from that obtaining in U.S. vs. Agcaoili, supra.
6. Two of the appellants Jose and Caal bewail the enormous
publicity that attended the case from the start of investigation to
the trial. In spite of the said publicity, however, it appears that the
court a quo was able to give the appellants a fair hearing. For one
thing, three of the seven (7) original accused were acquitted. For
another thing, Jose himself admits in his brief that the Trial Judge
"had not been influenced by adverse and unfair comments of the
press, unmindful of the rights of the accused to a presumption of
innocence and to fair trial."
We are convinced that the herein four appellants have conspired
together to commit the crimes imputed to them in the amended
information quoted at the beginning of this decision. There is no
doubt at all that the forcible abduction of the complainant from in
front of her house in Quezon City, was a necessary if not
indispensable means which enabled them to commit the various
and the successive acts of rape upon her person. It bears noting,
however, that even while the first act of rape was being performed,
the crime of forcible abduction had already been consummated, so
that each of the three succeeding (crimes of the same nature can
not legally be considered as still connected with the abduction in
other words, they should be detached from, and considered
independently of, that of forcible abduction and, therefore, the
former can no longer be complexed with the latter.
What kind of rape was committed? Undoubtedly, it is that which is
punishable by the penalty of reclusion perpetuato death, under
paragraph 3, Article 335, as amended by Republic Act No. 4111
which took effect on June 20, 1964, and which provides as follows:
ART. 335. When and how rape committed.Rape is
committed by having carnal knowledge of a woman
under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or
otherwise unconscious; and
3. When the woman is under twelve years of age,
even though neither of the circumstances mentioned
in the two next preceding paragraphs shall be
present.
The crime of rape shall be punished by reclusion
perpetua.
Whenever the crime of rape is committed with the
use of a deadly weapon or by two or more persons,
the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, the
victim has become insane, the penalty shall be
death.
When the rape is attempted or frustrated and a
homicide is committed by reason or on the occasion
thereof, the penalty shall be likewise death.
man has only one life to pay for a wrong, the ends of justice would
be served, and society and the victim would be vindicated just as
well, if only one death penalty were imposed on each of the
appellants.
We cannot agree with the trial court. Article 70 of the Revised Penal
Code can only be taken into account in connection with the service
of the sentence imposed, not in the imposition of the penalty
(People vs. Escares, 55 Off. Gaz., 623). In holding that only one
death penalty should be imposed because man has only one life,
the trial court ignored the principle enunciated in the very case it
cited, namely, U.S. vs. Balaba, 37 Phil., 260, where this Court, in
affirming the judgment of the trial court, found the accused guilty
of two murders and one homicide and imposed upon him two death
sentences for the murders and a prison term for the homicide. In
not applying the said principle, the court a quo said that the case of
Balaba is different from the present case, for while in the former
case the accused was found to have committed three distinct
offenses, here only one offense is charged, even if complex. As We
have explained earlier herein, four crimes were committed, charged
and proved. There is, therefore, no substantial difference between
the two cases insofar as the basic philosophy involved is
concerned, for the fact remains that in the case of Balaba this Court
did not hesitate to affirm the two death sentences imposed on the
accused by the trial court. In People vs. Peralta, et al., L-19060,
October 29, 1968, in which this Court imposed on each of the six
accused three death penalties for three distinct and separate
crimes of murder, We said that "since it is the settled rule that once
conspiracy is established, the act of one conspirator is attributable
to all, then each conspirator must be held liable for each of the
felonious acts committed as a result of the conspiracy, regardless
of the nature and severity of the appropriate penalties prescribed
by law." In the said case (which was promulgated after the decision
of the court a quo had been handed down) We had occasion to
discuss at length the legality and practicality of imposing multiple
death penalties, thus:
The imposition of multiple death penalties is decried
by some as a useless formality, an exercise in futility.
It is contended, undeniably enough, that a death
convict, like all mortals, has only one life to forfeit.
And because of this physiological and biological
attribute of man, it is reasoned that the imposition of
multiple death penalties is impractical and futile
because after the service of one capital penalty, the
SO ORDERED.
Penal
Code
provides
were in this case the overt acts which, besides traitorous intention
supplied a vital ingredient in the crime. (Italics supplied.)
The accused in People vs. Delgado 83 Phil., 9, 46 Off. Gaz., 4213,
had been convicted by the Peoples Court of the crime of treason
complexed with the crime of murder and sentenced to the
extreme penalty. In our decision, penned by Mr. Justice
Montemayor,
we
expressed
ourselves
as
follows:chanroblesvirtuallawlibrary
The Appellant herein was and is a Filipino citizen. His adherence to
the Japanese forces of occupation and giving them aid and comfort
by acting as their spy, undercover man, investigator, and even
killer when necessary to cow and compel the inhabitants to
surrender their firearms and disclose information about the
guerrillas has been fully established. His manner of investigation
and maltreatment of some of his victims like Tereso Sanchez and
Patricio Suico, was so cruel, brutal and inhuman that it is almost
unbelievable that a Filipino can commit and practice such atrocities
especially on his own countrymen. But, evidently, war, confusion
and opportunism can and do produce characters and monster
unknown during peace and normal times.
The Peoples Court found the Appellant guilty of treason
complexed with murder. The Solicitor General, however, maintains
that the offense committed is simple treason, citing the doctrine
laid down by this court in the case of People vs. Prieto, (L-399, 45
Off. Gaz., 3329) but accompanied by the aggravating circumstance
under Article 14, paragraph 21, of the Revised Penal Code, and not
compensated by any mitigating circumstance, and he recommends
the imposition of the penalty of death. We agree with the Solicitor
General that on the basis of the ruling of this court in the case of
People vs. Prieto, supra, the Appellantmay be convicted only a
treason, and that the killing and infliction of physical injuries
committed by him may not be separated from the crime of treason
but should be regarded as acts performed in the commission of
treason, although, as stated in said case, the brutality with which
the killing or physical injuries were carried out may be taken as an
aggravating circumstance. (Italics supplied.)
and reduced the penalty from death to life imprisonment and a fine
of P20,000.
Identical were the pertinent features of the case of People vs.
Adlawan, 83 Phil., 194, 46 Off. Gaz., 4299, in which, through Mr.
Justice Reyes (A), we declared:chanroblesvirtuallawlibrary
cralaw we find merit in the contention that Appellant should have
not been convicted of the so called Complex crime of treason with
the other. In fact, Cuello Calon admits that the difficulty lies in
separating the accidents of rebellion or sedition from the offenses
independent therefrom. Ergo, offenses that are not independent
therefrom, but constituting an integral part thereof committed,
precisely, to carry out the uprising to its successful conclusion
are beyond the purview of Article 244. Indeed, the above quoted
statement of Cuello Calon to the effect that grave felonies
committed in the course of an insurrection are independent
therefrom was based upon a decision of the Supreme Court of
Spain of February 5, 1872, which we find reported in the Codigo
Penal
de
Filipinas,
by
Jose
Perez
Rubio,
as
follows:chanroblesvirtuallawlibrary
El Tribunal Supremo de Justicia en sentencia de 5 de Febrero de
1872, tiene declarado:chanroblesvirtuallawlibraryQue segun los
articulos 184 del Codigo Penal de 1830, y 259 del reformado
(1870), los delitos particulares cometidos en una rebelion o
sedicion o con motivo de ellas se castigan respectivamente segun
las
disposiciones
de
los
mismos
Codigos; chan
roblesvirtualawlibraryy con arreglo al decreto de amnistia de 9 de
Agosto de 1876 estan solo comprendidos en aquella gracia las
personas sentenciadas, procesadas o sujatas a responsabilidad por
delitos politicos de cualquiera especie -cometidos desde el 29 de
Septiembre de 1868; chan roblesvirtualawlibraryQue el asesinato
del Gobernador Civil de Burgos no fue resultado de movimiento
alguno politico, sino de un mero tumulto que imprimio el fanatismo,
y cuya unica aparente tendencia era impedir que aquel funcionario
inventariase ciertos objetos artisticos que se decian existentes en
la Catedral:chanroblesvirtuallawlibrary Que esto lo demuestran las
salvajes voces de muerte proferidas por los asesinos contra la
persona del Gobernador; chan roblesvirtualawlibrarysin que al
ejecutar en el mismo recinto del templo los horrorosos hechos que
aparecen en la causa, alzasen bandera politica alguna ni dieran
otro grito que el, en aquel momento sacrilego e impio, de Viva la
religion:chanroblesvirtuallawlibrary Que la apreciar la Sala
sentenciadora los hechos referentes al Gobernador Civil de delito
de asesinato, penarlo con arreglo al Codigo y declarar inaplicable el
citado Decreto de Amnistia, no ha cometido el error de derecho
sealado en los casos 1. 3. del articulo 4. de la ley sobre
establecimiento de la casacion criminal, ni infringido los articulos
250 y 259 del Codigo Penal de 1870. (Page 239; chan
roblesvirtualawlibraryItalics supplied.) (See, also, El Codigo Penal,
by Hidalgo Garcia, Vol. I, p. 623.)
It is apparent that said case is not in point. There was no issue
therein on whether murder may be complexed with rebellion or
sedition. The question for determination was whether the killers of
are,
likewise,
the
more
illuminating.
He
The question really is whether, upon the facts, it is clear that the
man was acting as one of a number of persons engaged in acts of
violence of a political character with a political object, and as part
of the political movement and rising in which he was taking part.
Judge Hawkins, in commenting upon the character of political
offenses, said:chanroblesvirtuallawlibrary
I cannot help thinking that everybody knows there are many acts
of a political character done without reason, done against all
reason; chan roblesvirtualawlibrarybut at the same time one cannot
look too hardly, and weigh in golden scales the acts of men hot in
their political excitement. We know that in heat, and in heated
blood, men often do things which are against and contrary to
reason; chan roblesvirtualawlibrarybut none the less an act of this
description may be done for the purpose of furthering and in
furtherance of a political rising, even though it is an act which may
be deplored and lamented, as even cruel and against all reason, by
those who can calmly reflect upon it after the battle is over.
Sir James Stephens, whose definition as an author has already
been cited, was one of the judges, and joined in the views taken as
to the political character of the crime charged against Castioni. The
prisoner was discharged. Applying, by analogy, the action of the
English court in that case to the four cases now before me, under
consideration, the conclusion follows that the crimes charged here,
associated as they are with the actual conflict of armed forces, are
of a political character.
The draft of a treaty on International Penal Law, adopted by the
congress of Montevideo in 1888, and recommended by the
International American Conference to the governments of the LatinAmerican nations in 1890, contains the following provisions (Article
23):chanroblesvirtuallawlibrary
Political offenses, offenses subversive of the internal and external
safety of a state or common offenses connected with these, shall
not warrant extradition. The determination of the character of the
offense is incumbent upon the nations upon which the demand for
extradition is made; chan roblesvirtualawlibraryand its decision
shall be made under and according to the provisions of the law
which
shall
prove
to
be
most
favorable
to
the
accused:chanroblesvirtuallawlibrary
I am not aware that any part of this Code has been made the basis
of treaty stipulations between any of the American nations, but the
article cited may be at least accepted as expressing the wisdom of
leading jurists and diplomats. The article is important with respect
to two of its features:chanroblesvirtuallawlibrary (1) provides that a
murder were not complexed with rebellion, and the two crimes
were punished separately (assuming that this could be done), the
following penalties would be imposable upon the movant,
namely:chanroblesvirtuallawlibrary (1) for the crime of rebellion, a
fine not exceeding P20,000 and prision mayor, in the corresponding
period, depending upon the modifying circumstances present, but
never
exceeding
12
years
of
prision
mayor; chan
roblesvirtualawlibraryand (2) for the crime of murder, reclusion
temporal in its maximum period to death, depending upon the
modifying circumstances present. In other words, in the absence of
aggravating circumstances, the extreme penalty could not be
imposed upon him. However, under Article 48, said penalty would
have to be meted out to him, even in the absence of a single
aggravating circumstance. Thus, said provision, if construed in
conformity with the theory of the prosecution, would be
unfavorable to the movant.
Upon the other hand, said Article 48 was enacted for the purpose of
favoring the culprit, not of sentencing him to a penalty more severe
than that which would be proper if the several acts performed by
him were punished separately. In the word of Rodriguez
Navarro:chanroblesvirtuallawlibrary
La unificacion de penas en los casos de concurso de delitos a que
hace referencia este articulo (75 del Codigo de 1932), esta basado
francamente en el principio pro reo. (II Doctrina Penal del Tribunal
Supremo de Espaa, p. 2168.) 3
We are aware of the fact that this observation refers to Article 71
(later 75) of the Spanish Penal Code (the counterpart of our Article
48),
as
amended
in
1908
and
then
in
1932,
reading:chanroblesvirtuallawlibrary
Las disposiciones del articulo anterior no son aplicables en el caso
de que un solo hecho constituya dos o mas delitos, o cuando el uno
de ellos sea medio necesario para cometer el otro.
En estos casos solo se impondra la pena correspondiente al delito
mas grave en su grado maximo, hasta el limite que represente la
suma de las que pudieran imponerse, penando separadamente los
delitos.
Cuando la pena asi computada exceda de este limite, se
sancionaran los delitos por separado. (Rodriguez Navarro, Doctrino
Penal del Tribunal Supremo, Vol. II, p. 2163.)
and that our Article 48 does not contain the qualification inserted in
said amendment, restricting the imposition of the penalty for the
graver offense in its maximum period to the case when it does not
exceed the sum total of the penalties imposable if the acts charged
were dealt with separately. The absence of said limitation in our
Penal Code does not, to our mind, affect substantially the spirit of
said Article 48. Indeed, if one act constitutes two or more offenses,
there can be no reason to inflict a punishment graver than that
prescribed for each one of said offenses put together. In directing
that the penalty for the graver offense be, in such case, imposed in
its maximum period, Article 48 could have had no other purpose
than to prescribe a penalty lower than the aggregate of the
penalties for each offense, if imposed separately. The reason for
this benevolent spirit of Article 48 is readily discernible. When two
or more crimes are the result of a single act, the offender is
deemed less perverse than when he commits said crimes thru
separate and distinct acts. Instead of sentencing him for each
crime independently from the other, he must suffer the maximum
of the penalty for the more serious one, on the assumption that it is
less grave than the sum total of the separate penalties for each
offense.
Did the framers of Article 48 have a different purpose in dealing
therein with an offense which is a means necessary for the
commission of another? To begin with, the culprit cannot, then, be
considered as displaying a greater degree of malice than when the
two offenses are independent of each other. On the contrary, since
one offense is a necessary means for the commission of the other,
the evil intent is one, which, at least, quantitatively, is lesser than
when the two offenses are unrelated to each other, because, in
such event, he is twice guilty of having harbored criminal designs
and of carrying the same into execution. Furthermore, it must be
presumed that the object of Article 48, in its entirety, is only one.
We cannot assume that the purpose of the lawmaker, at the
beginning of the single sentence of which said article consists, was
to favor the accused, and that, before the sentence ended, the
former had a change of heart and turned about face against the
latter. If the second part of Article 48 had been meant to be
unfavorable to the accused and, hence, the exact opposite of the
first part each would have been placed in, separate provisions,
instead of in one single article. If the first part sought to impose,
upon the culprit, a penalty less grave than that which he would
deserve if the two or more offenses resulting from his single act
were punished separately, then this, also, must be the purpose of
the second part, in dealing with an offense which is a necessary
means for the commission of another.
The accuracy of this conclusion is borne out by the fact that, since
1850, when the counterpart of our Article 48 was inserted in the
Penal Code of Spain, or for over a century, it does not appear to
Government has, for the past five or six years, adopted a more
vigorous course of action in the apprehension of violators of said
law and in their prosecution the established policy of the State, as
regards the punishment of the culprits has remained unchanged
since 1932. It is not for us to consider the merits and demerits of
such policy. This falls within the province of the policy-making
branch of the government the Congress of the Philippines.
However, the following quotation from Cuello Calon indicates the
schools of thought on this subject and the reason that may have
influenced
our
lawmakers
in
making
their
choice:chanroblesvirtuallawlibrary
Durante muchos siglos, hasta tiempos relativamente cercanos, se
reputaban los hechos que hoy llamamos delitos politicos como mas
graves y peligrosos que los crimenes comunes. Se consideraba que
mientras estos solo causan un dao individual, aquellos producen
profundas perturbaciones en la vida collectiva llegando a poner en
peligro la misma vida del Estado. En consonancia con estas ideas
fueron reprimidos con extraordinaria severidad y designados con la
denominacion romana de delitos de lesa majestad se catalogaron
en las leyes penales como los crimenes mas temibles.
Pero desde hace poco mas de un siglo se ha realizado en este
punto una transformacion profunda merced a la cual la
delincuencia politica dejo de apreciarse con los severos criterios de
antao quedando sometida a un regimen penal, por regla general
suave y benevolo.
El origen de este cambio se remonta, segun opinion muy
difundida, a la revolucion que tuvo lugar en Francia en el ao 1830.
El gobierno de Luis Felipe establecio una honda separacion entre
los delitos comunes y los politicos, siendo estos sometidos a una
penalidad mas suave y sus autores exceptuados de la extradicion.
Irradiando a otros paises tuvieron estas tan gran difusion que en
casi todos los de regimen liberal-individualista se ha llegado a crear
un tratamiento desprovisto de severidad para la represion de estos
hechos. No solo las penas con que se conminaron perdieron gran
parte de su antigua dureza, sino qua en algunos paises se creo un
regimen penal mas suave para estos delicuentes, en otros se abolio
para ellos la pena de muerte. Tan profundo contraste entre el
antiguo y el actual tratamiento de la criminalidad politica en la
mayoria de los paises solo puede ser explicado por las ideas
nacidas y difundidas bajo los regimenes politicos liberalesacerca de
estos delitos y delincuentes. Por una parte se ha afirmado que la
criminalidad da estos hechos no contiene la misma inmoralidad que
la delincuencia comun, que es tan solo relativa, qua depende del
tiempo, del lugar, da las circumstancias, de las instituciones del
dated January 29, 1953, in the case of Montano vs. Ocampo (G.R. L6352):chanroblesvirtuallawlibrary
cralaw to deny bail it is not enough that the evidence of guilt is
strong; chan roblesvirtualawlibraryit must also appear that in case
of conviction the Defendants criminal liability would probably call
for a capital punishment. No clear or conclusive showing before this
Court has been made.
In fact, in the case at bar, Defendant Amado V. Hernandez was
sentenced by the lower court, not to the extreme penalty, but to
life imprisonment. Furthermore, individual freedom is too basic, too
transcendental and vital in a republican state, like ours, to be
denied upon mere general principles and abstract consideration of
public safety. Indeed, the preservation of liberty is such a major
preoccupation of our political system that, not satisfied with
guaranteeing its enjoyment in the very first paragraph of section
(1) of the Bill of Rights, the framers of our Constitution devoted
paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16),
(17), (18), and (21) of said section (1) to the protection of several
aspects of freedom. Thus, in line with the letter and spirit of the
fundamental law, we said in the aforementioned case of Montano
vs. Ocampo:chanroblesvirtuallawlibrary
Exclusion from bail in capital offenses being an exception to the
otherwise absolute right guaranteed by the constitution, the
natural tendency of the courts has been toward a fair and liberal
appreciation, rather than otherwise, of the evidence in the
determination of the degree of proof and presumption of guilt
necessary to warrant a deprivation of that right.
xxx
xxx
xxx
detained since January 1951, or for more than five (5) years, and it
may still take some time to dispose of the case, for the same has
not been, and is not in a position to be, included, as yet, in our
calendar, inasmuch as the briefs for some Appellants other than
Hernandez as well as the brief for the Government, are pending
submission. It should be noted, also, that the decision appealed
from the opposition to the motion in question do not reveal
satisfactorily and concrete, positive act of the accused showing,
sufficiently, that his provincial release, during the pendency of the
appeal, would jeopardize the security of the State.
Wherefore,
the
aforementioned
motion
for
bail
of Defendant- Appellant Amado V. Hernandez is hereby granted
and, upon the filing of a bond, with sufficient sureties, in the sum of
P30,000, and its approval by the court, let said DefendantAppellant be provisionally released. It is SO ORDERED.
DECISION
GONZAGA-REYES, J.:
Many unfortunate tragedies would not have happened if the
improvident use of a firearm did not exacerbate a simple
altercation over traffic. This is one of them.
On a day intended to pay homage to the dead, a pregnant woman
was shot to death in the course of her husbands altercation with
the accused-appellant and his son along the Garden of
Remembrance within the Loyola Memorial Park in Marikina. The trial
court found the accused guilty of the complex crime of murder and
two counts of frustrated murder and accordingly sentenced him to
death. This case is before us on automatic review.
The details of what actually transpired in the few seconds
immediately preceding the shooting are controverted by both
parties but the events leading to this tragedy are not disputed.
In the afternoon of October 31, 1998 at about 2:30 p.m. both the
families of the private complainant Noel Andres and that of the
accused-appellant Inocencio Gonzalez were on their way to the exit
of the Loyola Memorial Park. The appellant was driving a white
Isuzu Esteem with his grandson and three housemaids, while the
private complainant was driving a maroon Toyota FX with his
pregnant wife Feliber Andres, his two year old son, Kenneth, his
nephew Kevin and his sister-in-law, Francar Valdez. At the
intersection near the Garden of Remembrance, while the accusedappellant Gonzalez was turning left towards the exit and the
complainant Noel Andres was headed straight along the road to the
exit their two vehicles almost collided. Noel Andres was able to
timely step on the brakes. The appellant continued driving along
his way while Noel Andres drove behind the appellants vehicle for
some time and cut him off when he found the opportunity to do
so. [1 Noel Andres then got out of his vehicle and knocked on the
appellants car window. [2 This is as far as their versions of the
incident coincide.
the appellant did not try to flee and even told the complainants
sister-in-law to take the wounded to the hospital.
On November 4, 1998 an Information for the complex crime of
Murder, Double Frustrated Murder and Attempted Murder was filed
against herein accused-appellant:
That on or about the 31st day of October 1998, in the city of
Marikina, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there willfully,
unlawfully and feloniously with intent to kill, attack, assault and
employ personal violence by means of treachery and abuse of
superior strength upon the person of Noel Andres y Tomas, by then
and there shooting him with a Glock cal. 9mm pistol but instead
hitting one Feliber Andres y Ordoo, on the left back portion of her
head, thereby inflicting upon her serious and mortal wound which
directly caused her death, as well as hitting John Kenneth Andres y
Ordoo and Kevin Valdez y Ordoo physical injuries which ordinarily
would have caused their death, thus performing all the acts of
execution which would have produced the crime of murder as a
consequence, but nevertheless did not produce it by reason of
some cause or causes, independent of their will, that is, the timely
and able medical assistance rendered to John Kenneth Andres y
Ordoo and Kevin Valdez y Ordoo to their damage and prejudice as
well as to the damage and prejudice of the heirs of Feliber Andres y
Ordoo.
On arraignment the accused-appellant pleaded not guilty to the
crimes charged.
The case records show that Feliber Andres, the wife of Noel Andres
did not die instantaneously. She lived to give birth to a baby
girl [5 by caesarian section and died the following morning on
November 1, 1998. The Autopsy Report[6 states:
FINDINGS: Fairly nourished, fairly developed female cadaver, with
post mortem lividity. Conjunctivae are pale. Lips and nail beds are
cyanotic. Surgical incisions were noted at left tempero-parietal
region. Surgical incisions is also noted at the abdominal region
secondary to a caesarian section.
HEAD: (1) gunshot wound, point of entry, left fronto-temporal
region, measuring 1 by 0.9 cm, 9 cm from the anterior midline, with
a uniform abraided collar measuring 0.2 cm., directed
posteriorwards, slightly downwards, and medialwards, fracturing
the frontal, and left temporal bones, lacerating the left cerebral
hemisphere, with a deformed slug fragment embedded and
recovered at the posterior lobe of the left cerebral hemisphere. (2)
hematoma, left orbital region, measuring 4.5 by 2 cm, 4 cm from
the anterior midline. There are subdural and subarachnoidal
hemorrages. Stomach contains 1 glassful of partially digested food
particles mostly rice and meaty material.
CONCLUSION: Cause of death is gunshot wound on the head.
Kenneth and Kevin were treated for extraction of metallic
fragments on their faces. They were discharged from the hospital
six days later or on November 6, 1998.
On June 25, 1999 the trial court rendered judgement finding that
the shooting was attended by the qualifying circumstance of
treachery and held the appellant guilty of the complex crime of
murder for the death of Feliber Andres and for two counts of
frustrated murder for the injuries sustained by Kenneth Andres and
Kevin Valdez and sentenced the appellant to the maximum of the
imposable penalty which is death. The trial court held:
Beforehand, the Court takes note of the judicial admissions on the
verbal declarations of the accused that the court a quo has
jurisdiction over the case; that he owns the black Gluck 9 mm.
automatic pistol; that the said gun will never fire even if he drops it;
that only one bullet was fired from his gun; and that the victim
Feliber Andres is already dead. With this exegesis and the
declarations in open court of the eyewitness of both the
prosecution and some of the defense, there is no real dispute on
the antecedent facts showing that the accused fired on Noel Andres
but instead hit and caused the fatal injuries to the victims John
Kenneth Andres, Kevin Valdez and Feliber Andres resulting to the
ultimate death of the latter. The court takes further judicial
admissions of the accused made in their memorandum
demonstrating the existence of five (5) sequences of events
leading to the death of Feliber Andres and the wounding of John
Kenneth Andres and Kevin Valdez which are as follows: First is when
Noel Andres overtook the car driven of the accused and cut cross
his path; Second is when Noel Andres alighted from his vehicle and
confronted Inocencio; Third is when Noel had an argument with
Dino Gonzalez, the son of the accused; Forth is when, Inocencio
seeing his son having confrontation with Noel, got his gun to
protect Dino; and Fifth is when Inocencio had a struggle with his
daughter. Trisha Gonzalez, who tried to reach for the gun and as a
the death of the latter, demonstrate that the accused has executed
the two (2) conditions to generate treachery enough to qualify the
crime committed to murder.
red in anger after they, Andres and the appellant, had a heated
argument immediately prior to the shooting. These admitted
circumstances show that the appellant was not in his proper state
of mind at the time of the shooting. First, he was angered by
Andres abusive language and later he got out of his car with a
loaded gun to protect his son from a perceived danger. The
appellant clams that his willingness to help the injured and his
voluntary surrender to the police should likewise be considered as
mitigating circumstances in the imposition of penalties.
The Solicitor-General agrees with the appellant that the crime was
not attended by the qualifying circumstance of treachery and
hence the crime committed by the appellant for the death of
Feliber Andres is homicide, not murder. The appellee takes into
consideration that the shooting was preceded by a heated
argument and that the supposed victim was placed on guard that
attack was imminent. It also appears that the shooting was done
impulsively. There is no evidence that the appellant deliberately
employed the means of attack to insure execution of the crime and
at the same time eliminate the risk of retaliation from the private
complainant. The appellee also agrees with the appellant that the
trial court erred in equating the use of an automatic pistol with
treachery. The trial court made the factual finding that the
appellants automatic pistol would not fire unless aimed and the
trigger is deliberately pulled and hence treachery attended the
shooting. The appellee submits that if we follow the reasoning of
the trial court it would appear that the appellant intended to shoot
at the complainants vehicle only as the shot was fired at the last
window on the left side of the FX away from where Andres was
allegedly seated. The fact that the gun was drawn and fired does
not mean that the mode of attack was consciously and deliberately
employed.
However, with respect to the injuries sustained by Kevin and
Kenneth, the appellee disagrees with the contention that the
appellant is liable only for slight physical injuries. The injuries
sustained by both children are head injuries and could have caused
their death if not for the immediate medical attention given them.
The number of days spent in the hospital is not determinative of
the severity of the wounds. Their nature and location should
instead be considered. The appellant cannot escape liability for
frustrated homicide for the injuries of the two children on the
ground that he fired a single shot at the vehicle of Noel Andres. He
is liable for all the consequences of his unlawful act even if the
crime committed is different from that intended.
Noel Andres. The single bullet fired hit Feliber Andres on the
forehead near the temporal region above the left eye and the two
children with metallic fragments of the bullet on their faces, one at
the cheek and the other below his left eye.
The prosecution did not present evidence as to the exact seating
arrangement of the victims inside the vehicle; suffice it to say, that
an examination of the pictures of the vehicle [24 one of which
shows a mass of blood stains on the left side (towards the drivers
seat) of the white seat cover below the head rest [25, would show
that the deceased Feliber must have been seated at the front
passengers seat and the children at the middle row behind the
drivers seat. [26 Another picture shows a bullet hole on the last
window on the left side of the vehicle [27 and another shows that
the front windshield appears undamaged. [28 A ballistics expert
appeared in court for the prosecution and testified that the bullet
fired at the FX came from the appellants gun, which fact was
admitted by the defense. The prosecution did not inquire from the
ballistics expert regarding the trajectory of the bullet or the
approximate distance of the appellant from the FX when he fired
his gun to establish whether or not the appellant aimed for Noel or
Feliber or simply fired indiscriminately at the latters vehicle. [29
At first blush it would seem that the shooting of Feliber Andres was
attended by treachery as she was inside the FX witnessing her
husbands altercation, first, with the appellant then with the
appellants son, totally defenseless from the shot that came
suddenly from her left side. Public outrage over the death of Feliber
was heightened by the fact that she was then pregnant with her
second child and her death left a new born baby girl and a two year
old boy motherless.
However, a meticulous review of the evidence prevents a
conclusive finding of treachery and any doubt must be resolved,
like the fact of the commission of an offense, in favor of the
accused. The pictures indicate that Gonzalez fired at the FX at an
angle away from Noel Andres and that Gonzalez was not aiming at
anybody in particular. It is not disputed that the appellants car was
directly behind the complainants FX and that Gonzalez who was
then seated at the drivers seat alighted from his car, took a few
steps then fired at the left side of the FX. Whether Noel Andres was
seated at the drivers seat inside his vehicle when Gonzalez fired at
the FX, as the prosecution asserts, or was standing by the door of
the drivers seat outside his vehicle, as the defense submits, it is
clear that the shot was fired away from Noel Andres. The bullet hit
Feliber near her temple above the left eye indicating that she was
facing left towards her husband when the shot was fired. [30 The
direct hit on Felibers head shows that the angle of the shot was
indeed away from Noel Andres. Even the eyewitness for the
prosecution testified that had the appellant intended to kill Noel
Andres he could have shot directly at him, considering that Noel
Andres was just a few steps away from him [31 and that Noel
Andres was visible from the outside because his window was
partially open. [32 The pictures show that the bullet hole was on
the third window on the left side of the Tamaraw FX [33belying any
attempt to shoot Noel Andres. Two prosecution witnesses Ramos
and Castro unequivocally declared that nothing or no one
prevented Gonzalez from shooting directly at Noel Andres and that
Gonzalez could have simply done so if he wanted to. But after
alighting from his car, Gonzalez took a few steps and shot at the
left side window of the FX. [34
The fact that the appellant fired his gun from behind the victim
does not by itself amount to treachery. There is no evidence on
record that the appellant deliberately positioned himself behind the
victim to gain advantage over him when he fired the shot. On the
contrary, the evidence before us reveals that the position of the
appellants car was not of his own doing but it became so when Noel
Andres overtook his car and cut off his path.
We note further, that the appellant did not act belligerently towards
Noel Andres even after the latter cut off the appellants path. Andres
stated in court that the appellant did not alight from his car nor
opened his window until he, Andres, tapped on it. [35 For his part
Gonzalez categorically stated in court that he did not point his gun
nor threatened Andres during their short spat. [36 Gonzalez,
although he had his gun in his car, did not react to Andres cursing
until the latter was having an altercation with the appellants son,
Dino. Gonzalez claimed that he perceived that his son was in
imminent danger. [37 Whether he overreacted or he shot at Andres
vehicle out of rage over Andres aggressive behavior, one thing
appears clear to us, that the shooting was not done in cold blood. It
is undisputed that the windows of the FX are heavily or darkly
tinted so that a person outside would not see if anybody was
inside. [38 The pictures of the FX [39 on record confirm the
testimonies of both prosecution and defense witnesses that the
other passengers of the FX were not visible from the outside.
Gonzalez admitted in court that Noel Andres mentioned that he has
passengers with him while he was shouting and cursing at Gonzalez
but there is no indication that Gonzalez had any opportunity to see
the passengers when he fired the shot. The totality of the evidence
on record fails to support a conclusion that Gonzalez deliberately
employed the mode of attack to gain undue advantage over the
intended nor the actual victim. Without any decisive evidence to
the contrary, treachery cannot be considered; thus the crime
committed is homicide. [40
The trial courts finding that the loading of the gun, the cocking of
the hammer and finally the pulling of the trigger constitute a
deliberate effort on the part of appellant to use the gun as a means
of a treacherous attack is patently erroneous. A single and
continuous attack cannot be divided into stages to make it appear
that treachery was involved. [41 The entire incident happened in a
matter of minutes, as testified to by witnesses, and as noted by the
trial court. [42 It was error to our mind for the trial court to divide
the assault in stages to arrive at the conclusion that the mode of
attack was consciously employed by the appellant. Contrary to the
finding of the trial court that the appellant prepared the gun before
getting out of his car, the appellant testified that he loaded his gun
before he left the house and that it was ready to fire when he
alighted his car. There was no time for him to reflect on the mode
of attack since he just picked up his gun and alighted from his car
and shot at the FX a few seconds after Dino and Noel Andres
started shouting at each other. [43 We note further that the trial
court pointed out that from the fact that the appellant prepared his
gun to shoot, this was an indication of the deliberate employment
of the gun as a means to kill; i.e. that the use of an automatic pistol
shows that the shooting was attended by treachery.
We do not agree that the weapon used, by itself, is determinative of
treachery, unless it is shown, and it is not herein shown, that the
appellant deliberately used the gun to insure the commission of the
crime and to render the unarmed victim defenseless. As discussed
above, the encounter between the appellant and the Andresses
was a chance encounter and the appellants gun was in the glove
compartment of his car even before he left his house. The shooting
was clearly a spur of the moment or impulsive decision made by
the appellant preceded by a heated altercation at the instance of
the private complainant. Jurisprudence teaches us that under the
circumstances, treachery is not obtaining. In the case of People vs.
Valles, [44 the accused, a security guard, fired his Armalite and
mortally wounded the victim when the latter approached the
accused four times insisting on entering the workplace wearing
improper uniform, then cursed and insulted and challenged the
accused to a fight. We held that the shooting was not attended by
victim for one to nine days or required medical attendance for the
same period. For evident lack of criminal intent to kill the
complainant, Noel Andres, as above stated, the information for
attempted homicide must fail.
The mitigating circumstances of voluntary surrender, passion and
obfuscation, incomplete defense of a relative and lack of intent to
commit so grave a wrong, pleaded by the defense, were not
convincingly proved and none can be considered in the imposition
of penalties. The testimony of prosecution witness contradicts the
appellants pretense of voluntary surrender. Witness Ramos testified
that the appellant drove away towards the gate of the memorial
park while he was questioning him after the shooting and had not
Noel Andres and onlookers blocked his path the appellant could
have fled the scene of the crime. [51
The mitigating circumstance of passion and obfuscation is also not
obtaining. For this mitigating circumstance to be considered, it
must be shown that (1) an unlawful act sufficient to produce
passion and obfuscation was committed by the intended victim; (2)
that the crime was committed within a reasonable length of time
from the commission of the unlawful act that produced the
obfuscation in the accuseds mind; and that (3) the passion and
obfuscation arose from lawful sentiments and not from a spirit of
lawlessness or revenge. [52 Noel Andres act of shouting at the
appellants son, who was then a nurse and of legal age, is not
sufficient to produce passion and obfuscation as it is claimed by the
accused. Besides, the appellants son, Dino was shouting back at
Noel Andres. It was not a case wherein the appellants son appeared
helpless and oppressed that the appellant lost his reason and shot
at the FX of Noel Andres. The same holds true for the appellants
claim of provocation on the part of Noel Andres. Provocation must
be sufficient to excite a person to commit the wrong committed and
that the provocation must be commensurate to the crime
committed. The sufficiency of provocation varies according to the
circumstances of the case. [53 The aggressive behavior of Noel
Andres towards the appellant and his son may be demeaning or
humiliating but it is not sufficient provocation to shoot at the
complainants vehicle.
The plea for the appreciation of the mitigating circumstance of
incomplete defense of a relative is also unmeritorious since the act
of Andres in cursing and shouting at the appellant and his son do
not amount to an unlawful aggression against them, Dino Gonzalez.
Finally, the plea for the appreciation of the mitigating circumstance
sustained for the reason that while Feliber Andres was pregnant
and was unemployed at the time of death, it is not disputed that
she was a registered nurse and had earning capacity. Noel Andres
also testified that he and his wife had plans to go back to Saudi
Arabia to work after Feliber had given birth to their second baby.
While there is no evidence as to Felibers actual income at the time
of her death, in view of her temporary separation from work
because of her pregnancy, we do not consider it reversible error for
the trial court to peg her earning capacity to that of the salary of a
government nurse under the salary standardization law, as a fair
estimate or reasonable assessment of her earning capacity at the
time of her death. It would be grossly inequitous to deny her
spouse and her minor children damages for the support that they
would have received, considering clear evidence on record that she
did have earning capacity at the time of her death.
The awards for moral damages for the death of Feliber Andres and
for the injuries sustained by the two children, which under the
circumstances are reasonable, are likewise sustained.
WHEREFORE , the decision of the trial court is hereby MODIFIED.
The appellant is hereby found guilty of homicide for the death of
Feliber Andres and is sentenced to an indeterminate sentence of 8
years and 1 day of prision mayor in its medium period, as
minimum, to 14 years 8 months and 1 day of reclusion temporal in
its medium period, as maximum. For each count of the slight
physical injuries committed against Kenneth Andres and Kevin
Valdez, the appellant is hereby sentenced to 20 days of arresto
menor.
The pecuniary awards granted by the trial court are hereby
sustained.
SO ORDERED.
February 6, 2006
Antecedents
On March 13, 2002, her employer brought AAA to the Makati Police
Station to report the rapes. AAA underwent medico-legal
examination later that day at the PNP Crime Laboratory in Camp
Crame Quezon City. The results of the medico-legal examination
were embodied in Medico-Legal Report No. M-797-02 issued by
medico-legal officer Dr. Mary Ann P. Gajardo, viz:
PHYSICAL INJURIES:
II.
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY OF THE CRIME CHARGED DESPITE FAILURE OF
THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE
DOUBT.
Nonetheless, the CA sustained his conviction and the penalty
of reclusion perpetua, holding that the supposed inconsistencies
referred to trivial matters or innocent lapses that did not affect the
credibility of AAA as a witness but were instead badges of veracity
or manifestations of truthfulness of the material points of her
testimony. The CA thus disposed:
WHEREFORE, premises considered, the appeal is hereby DENIED.
The Decision of the RTC dated October 28, 2003 is AFFIRMED with
MODIFICATION as follows:
1. The award of moral damages is REDUCED to P50,000.00;
2. The award of exemplary damages is DELETED;
3. Appellant is ordered to pay the amount of P50,000.00 as
civil indemnity.
Pursuant to Section 13 (C), Rule 124 of the Revised Rules of
Criminal Procedure, appellant may appeal this case to the Supreme
Court via a Notice of Appeal filed before this Court.
SO ORDERED.[8]
Upon the denial of his motion for reconsideration on August 2,
2006, Sabadlab is now before the Court to seek the final review.
that her clothes had been torn when Sabadlab had forcibly
undressed her. Verily, details and matters that did not detract from
the commission of the crime did not diminish her credibility.
under Republic Act No. 8353 (The Anti-Rape Act of 1997) is Section
266-D, which adverts to the degree of resistance that the victim
may put up against the rapist, viz:
October 6, 1949
insolvency in each case, and to pay the costs. The most severe of
the seventeen sentences against the petitioner was 6 months and
1 day of prison correcional plus an indemnify of P8,000, with
subsidiary imprisonment in case of insolvency, and the costs. He
commenced to serve these sentences on February 18, 1948.
The assertion that the Decision of the RTC should be multiplied only
four (4) times since there are only four (4) Informations thereby
allowing petitioner to qualify for probation, instead of sixteen (16)
times, is quite difficult to understand. The penalties imposed by the
MeTC cannot be any clearer "one (1) year and one (1) day to one
(1) year and eight (8) months of prision correccional, in each crime
committed on each date of each case, as alleged in the
information(s). "Hence, petitioner should suffer the imposed
penalties sixteen (16) times. On the other hand, the RTC affirmed,
the judgment of conviction and merely reduced the duration of
each penalty imposed by the MeTC "in each case to a STRAIGHT
penalty of EIGHT (8) MONTHS imprisonment" on account of a
mitigating circumstance for each case, count or incident of grave
oral defamationThere is no valid reason therefore why the
penalties imposed by the RTC should be multiplied only four (4)
times, and not sixteen (16) times, considering that the RTC
merely affirmed the MeTC as regards the culpability of petitioner in
each of the sixteen (16) cases and reducing only the duration of
the penalties imposed therein. Thus
Premises considered, the judgment of conviction
rendered by the trial court is AFFIRMED with
modification, as follows:
WHEREFORE, the Court hereby finds the accused
Pablo C. Francisco GUILTY beyond reasonable doubt
in each of the above entitled cases and appreciating
in his favor the mitigating circumstance which is
analogous to passion or obfuscation, the Court
hereby sentences the said accused in each case to a
straight penalty of EIGHT (8) MONTHS imprisonment,
with the accessory penalties prescribed by law; and
to pay the costs. 16
Nowhere in the RTC Decision is it stated or even hinted at that the
accused was acquitted or absolved in any of the four (4) counts
under each of the four (4) Informatfons, or that any part of
thejudgment of conviction was reversed, or that any of the cases,
counts or incidents was dismissed. Otherwise, we will have to
account for the twelve (12) other penalties imposed by the MeTC.
Can we? What is clear is that the judgment of conviction rendered
by the was affirmed with the sole modification on the duration of
the penalties.
In fine, considering that the multiple prison terms should not be
summed up but taken separately as the totality of all the penalties
is not the test, petitioner should have immediately filed an
application for probation as he was already qualified after being
convicted by the MeTC, if indeed thereafter he felt humbled, was
The fact that petitioner did not elevate the affirmance of his
conviction by the RTC to the Court of Appeals does not necessarily
mean that his appeal to the RTC was solely to reduce his penalties.
Conversely, he was afraid that the Court of Appeals would increase
his penalties, which could be worse for him. Besides, the RTC
Decision had already become final and executory because of the
negligence, according to him, of his former counsel who failed to
seek possible remedies within the period allowed by law.
Our minds cannot simply rest easy on. the proposition that an
application for probation may yet be granted even if it was filed
only after judgment has become final, the conviction already set for
execution and a warrant of arrest issued for service of sentence.
The argument that petitioner had to await the remand of the case
to the MeTC, which necessarily must be after the decision of the
RTC had become final, for him to file the application for probation
with the trial court, is to stretch the law beyond comprehension.
The law, simply, does not allow probation after an appeal has been
perfected.
Accordingly, considering that prevailing jurisprudence treats appeal
and probation as mutually exclusive remedies, and petitioner
appealed from his conviction by the MeTC although the imposed
penalties were already probationable, and in his appeal, he
asserted only his innocence and did not even raise the issue of the
propriety of the penalties imposed on him, and finally, he filed an
application for probation outside the period for perfecting an appeal
granting he was otherwise eligible for probation, the instant
petition for review should be as it is hereby DENIED.
SO ORDERED.
The Office of the Solicitor General does not offer any explanation as
to the delay in the filing of the information. The Court will not be
made as an unwitting tool in the deprivation of the right of the
offended party to vindicate a wrong purportedly inflicted on him by
the mere expediency of a prosecutor not filing the proper
information in due time.
The Court will not tolerate the prosecutors apparent lack of a sense
of urgency in fulfilling their mandate. Under the circumstances, the
more appropriate course of action should be the filing of an
administrative disciplinary action against the erring public officials.
WHEREFORE, the Petition is hereby GRANTED. The Decision of
the Court of Appeals in CA-G.R. SP No. 72784 is
hereby REVERSED and SET ASIDE and the Decision of the
Regional Trial Court of Manila in Civil Case No. 02-103990 is
hereby REINSTATED.
Let the Secretary of the Department of Justice be furnished a copy
of herein Decision for appropriate action against the erring officials.
SO ORDERED.
SO ORDERED.
From the above quoted decision, petitioner filed the instant petition
for review on a question purely of law and raised the following
issue:
3. That the convict who had escaped from prison has not
given himself up, or been captured, or gone to a foreign
country with which we have no extradition treaty, or
committed another crime;
4. The penalty has prescribed, because of the lapse of time
from the date of the evasion of the service of the sentence
by the convict.
Consistent with the two cases cited above, this Court pronounces
that the prescription of penalties found in Article 93 of the Revised
Penal Code, applies only to those who are convicted by final
judgment and are serving sentence which consists in deprivation of
liberty. The period for prescription of penalties begins only when
the convict evades service of sentence by escaping during the term
of his sentence. Since petitioner never suffered deprivation of
liberty before his arrest on January 20, 2000 and as a consequence
never evaded sentence by escaping during the term of his service,
the period for prescription never began.
The Court is unable to find and, in fact, does not perceive any
compelling reason to deviate from our earlier pronouncement
clearly exemplified in the Tanega case.
dated January 28, 1998. It also held that it could not hold the
respondents liable for damages because of the absence of
preponderant evidence to prove their liability for Wilsons death.
The petitioner appealed the order to the Court of Appeals (CA)
insofar as the civil aspect of the case was concerned. In her brief,
she averred that
THE TRIAL COURT ERRED IN DISMISSING THE CASE AND IN RULING
THAT NO PREPONDERANT EVIDENCE EXISTS TO HOLD ACCUSEDAPPELLEES CIVILLY LIABLE FOR THE DEATH OF THE VICTIM WILSON
QUINTO.14
The CA rendered judgment affirming the assailed order of the RTC
on December 21, 2001. It ruled as follows:
The acquittal in this case is not merely based on reasonable doubt
but rather on a finding that the accused-appellees did not commit
the criminal acts complained of. Thus, pursuant to the above rule
and settled jurisprudence, any civil action ex delicto cannot
prosper. Acquittal in a criminal action bars the civil action arising
therefrom where the judgment of acquittal holds that the accused
did not commit the criminal acts imputed to them. (Tan v. Standard
Vacuum Oil Co., 91 Phil. 672)15
The petitioner filed the instant petition for review and raised the
following issues:
I
WHETHER OR NOT THE EXTINCTION OF RESPONDENTS CRIMINAL
LIABILITY, LIKEWISE, CARRIES WITH IT THE EXTINCTION OF THEIR
CIVIL LIABILITY.
II
WHETHER OR NOT PREPONDERANT EVIDENCE EXISTS TO HOLD
RESPONDENTS CIVILLY LIABLE FOR THE DEATH OF WILSON
QUINTO.16
The petitioner avers that the trial court indulged in mere
possibilities, surmises and speculations when it held that Wilson
died because (a) he could have fallen, his head hitting the stones in
the drainage system since the culvert was slippery; or (b) he might
act
such
as
tetanus,
A - If the fall if the victim fell and he hit a hard object, well, it is
also possible.39
The trial court took into account the following facts:
A Yes, Sir.
Q So it is your finding that the victim was submerged while still
breathing?
A Yes, Your Honor, considering that the finding on the lung also
would indicate that the victim was still alive when he was placed
under water.37
The doctor also admitted that the abrasion on the right side of the
victims face could have been caused by rubbing against a concrete
wall or pavement:
Q The abrasion 4x3 centimeters on the right [side of the] face,
would it be caused by the face rubbing against a concrete wall or
pavement?
A Yes, Sir. Abrasion is usually caused by a contact of a skin to a
rough surface.
Q Rough surface?
A Yes, Your Honor.
Q When you say that the trachea region was full of mud, were there
no signs that the victim was strangled?
Moreover, Dr. Aguda failed to testify and explain what might have
caused the abrasion on the left forearm of the deceased. He,
likewise, failed to testify whether the abrasions on the face and left
forearm of the victim were madeante mortem or post mortem.
The petitioner even failed to adduce preponderance of evidence
that either or both the respondents hit the deceased with a blunt
object or instrument, and, consequently, any blunt object or
instrument that might have been used by any or both of the
respondents in hitting the deceased.
Q So when you reached the place where your son was lying down,
Dante Andres also came or arrived?
A It was only when we boarded the jeep that he arrived, Sir. 44
In sum, the petitioner failed to adduce preponderance of evidence
to prove a cause of action for damages based on the deliberate
acts alleged in the Information.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for
lack of merit. No costs.
SO ORDERED.
The Antecedents
Ernesto Ancheta was employed by the Philippine Rabbit Bus Lines,
Inc. (PRBLI) as driver of one of its passenger buses. On July 23,
1993, an Information was filed with the RTC of Capas, Tarlac,
Branch 66, charging Ancheta with reckless imprudence resulting in
homicide. The inculpatory portion of the Information reads:
A.
THE COURT OF APPEALS ERRED IN HOLDING THAT THE
CONVICTION OF THE ACCUSED HAS ATTAINED FINALITY AS
AGAINST PETITIONER.
B.
PETITIONER MUST BE AFFORDED THE STANDING AND THE
OPPORTUNITY TO QUESTION THE ACCUSEDS CONVICTION.13
The petitioner submits the ruling of this Court in Pajarito v.
Seneris14 and Miranda v. Malate Garage & Taxicab, Inc.,15 that "the
decision of the trial court convicting the employee is binding and
conclusive upon the employer not only with regard to the civil
liability but also, with regard to its amount," should not apply to it.
It avers that unlike in Pajarito and Miranda, the counsel of the
accused therein was given ample opportunity to defend the
accused during the trial and on appeal in the CA. The petitioner
laments that in this case, the counsel it provided to defend the
accused was remiss in the performance of his duties and failed to
notify it of the RTC decision, the November 10, 2000 Resolution of
the CA, as well as the June 5, 2001 Order of the RTC; consequently,
it was not apprised of its civil liability to the heirs of the deceased,
thus depriving the petitioner of its right to due process. It avers
that it was only on account of its own diligence that it discovered
the decision of the RTC, the November 10, 2000 Resolution of the
CA and the June 5, 2001 Order of the RTC.
The petitioner further avers that it was not furnished with a copy of
the said CA Resolution, and of the Arrest Order of the RTC dated
June 5, 2001. The petitioner posits that until it is furnished with
such copies, the period within which to assail the decision of the
RTC on its civil liability to the heirs of the deceased had not
commenced to run.
The petitioner submits that it is unjust and unreasonable for the CA
to deprive it of its right to question its civil liability to the heirs of
the deceased, considering the gross negligence of the counsel that
it had provided the accused.
By way of comment on the petition, the Office of the Solicitor
General (OSG) contends that the decision of the RTC convicting
Ancheta of the crime charged had become final and executory,
following the dismissal of his appeal before the CA. The decision of
the RTC was conclusive on the petitioner, not only with regard to its
civil liability but also as to the amount thereof, absent any collusion
between the accused-employee and the private complainant. The
petitioner was not a direct party in the criminal case; hence, was
not entitled to a copy of the decision of the RTC or to appeal
therefrom; it was, likewise, not entitled to be furnished a copy of
the CA Resolution dated November 10, 2000 and the Order of the
RTC dated June 5, 2001. Hence, according to the OSG, it cannot
complain of denial of its right to due process. The OSG further
asserts that the petition at bar is premature, considering that no
writ of execution has yet been issued by the RTC, and cites the
ruling of this Court in Philippine Rabbit Bus Lines, Inc. v. People 16 to
buttress its stance.
The petition is denied for lack of merit.
The ruling of the CA dismissing the petitioners appeal of the RTC
decision convicting Ancheta of reckless imprudence resulting in
homicide is correct. However, the Court of Appeals erred in
modifying the decision of the RTC.
The petitioner, as the employer of the said accused, had no right to
appeal from the said decision because, in the first place, it was not
a party in the said case. While the subsidiary liability provided for
by Articles 102 and 103 of the Revised Penal Code may render the
petitioner a party in substance and, in effect, it is not, for this
reason, entitled to be furnished a copy of the decision of the RTC,
as well as the resolution and decision of the CA.
Indeed, the petitioner was entitled to protect its interest by taking
actual participation in the defense of its employee, Ancheta, by
providing him with counsel. It cannot leave its employee to his own
fate because his failure is its failure. 17 The petitioner, as the
employer of the accused, would thereby be apprised of the
progress of the case and the outcome thereof from time to time
through the said counsel. The failure of such counsel to apprise the
petitioner of the progress of the case is thus not equivalent to lack
of due process. The pronouncement of the Court in Miranda v.
Malate Garage & Taxicab, Inc. 18 is instructive on this score:
It is true that an employer, strictly speaking, is not a party
to the criminal case instituted against his employee but in
substance and, in effect, he is considering the subsidiary
liability imposed upon him by law. It is his concern, as well