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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-5272

March 19, 1910

THE UNITED STATES, plaintiff-appellee,


vs.
AH CHONG, defendant-appellant.
Gibb & Gale, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
The evidence as to many of the essential and vital facts in this case is limited to the testimony of the accused
himself, because from the very nature of these facts and from the circumstances surrounding the incident upon
which these proceedings rest, no other evidence as to these facts was available either to the prosecution or to the
defense. We think, however, that, giving the accused the benefit of the doubt as to the weight of the evidence
touching those details of the incident as to which there can be said to be any doubt, the following statement of the
material facts disclose by the record may be taken to be substantially correct:
The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley, Rizal Province,
and at the same place Pascual Gualberto, deceased, was employed as a house boy or muchacho. "Officers'
quarters No. 27" as a detached house situates some 40 meters from the nearest building, and in August, 19087,
was occupied solely as an officers' mess or club. No one slept in the house except the two servants, who jointly
occupied a small room toward the rear of the building, the door of which opened upon a narrow porch running along
the side of the building, by which communication was had with the other part of the house. This porch was covered
by a heavy growth of vines for its entire length and height. The door of the room was not furnished with a permanent
bolt or lock, and occupants, as a measure of security, had attached a small hook or catch on the inside of the door,
and were in the habit of reinforcing this somewhat insecure means of fastening the door by placing against it a chair.
In the room there was but one small window, which, like the door, opened on the porch. Aside from the door and
window, there were no other openings of any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night, was suddenly
awakened by some trying to force open the door of the room. He sat up in bed and called out twice, "Who is there?"
He heard no answer and was convinced by the noise at the door that it was being pushed open by someone bent
upon forcing his way into the room. Due to the 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

4 He who acts in defense of his person or rights, provided there are the following attendant circumstances:
(1) Illegal aggression.
(2) Reasonable necessity of the means employed to prevent or repel it.
(3) Lack of sufficient provocation on the part of the person defending himself.
Under these provisions we think that there can be no doubt that defendant would be entitle to complete exception
from criminal liability for the death of the victim of his fatal blow, if the intruder who forced open the door of his room
had been in fact a dangerous thief or "ladron," as the defendant believed him to be. No one, under such
circumstances, would doubt the right of the defendant to resist and repel such an intrusion, and the thief having
forced open the door notwithstanding defendant's thrice-repeated warning to desist, and his threat that he would kill
the intruder if he persisted in his attempt, it will not be questioned that in the darkness of the night, in a small room,
with no means of escape, with the thief advancing upon him despite his warnings defendant would have been
wholly justified in using any available weapon to defend himself from such an assault, and in striking promptly,
without waiting for the thief to discover his whereabouts and deliver the first blow.
But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the defendant nor his
property nor any of the property under his charge was in real danger at the time when he struck the fatal blow. That
there was no such "unlawful aggression" on the part of a thief or "ladron" as defendant believed he was repelling

and resisting, and that there was no real "necessity" for the use of the knife to defend his person or his property or
the property under his charge.
The question then squarely presents it self, whether in this jurisdiction one can be held criminally responsible who,
by reason of a mistake as to the facts, does an act for which he would be exempt from criminal liability if the facts
were as he supposed them to be, but which would constitute the crime of homicide or assassination if the actor had
known the true state of the facts at the time when he committed the act. To this question we think there can be but
one answer, and we hold that under such circumstances there is no criminal liability, provided always that the
alleged ignorance or mistake or fact was not due to negligence or bad faith.
In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a
particular intent which under the law is a necessary ingredient of the offense charged (e.g., in larcerny, animus
furendi; in murder, malice; in crimes intent) "cancels the presumption of intent," and works an acquittal; except in
those cases where the circumstances demand a conviction under the penal provisions touching criminal negligence;
and in cases where, under the provisions of article 1 of the Penal Code one voluntarily committing a crime or
misdeamor incurs criminal liability for any wrongful act committed by him, even though it be different from that which
he intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases
cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y., 509;
Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)
The general proposition thus stated hardly admits of discussion, and the only question worthy of consideration is
whether malice or criminal intent is an essential element or ingredient of the crimes of homicide and assassination
as defined and penalized in the Penal Code. It has been said that since the definitions there given of these as well
as most other crimes and offense therein defined, do not specifically and expressly declare that the acts constituting
the crime or offense must be committed with malice or with criminal intent in order that the actor may be held
criminally liable, the commission of the acts set out in the various definitions subjects the actor to the penalties
described therein, unless it appears that he is exempted from liability under one or other of the express provisions of
article 8 of the code, which treats of exemption. But while it is true that contrary to the general rule of legislative
enactment in the United States, the definitions of crimes and offenses as set out in the Penal Code rarely contain
provisions expressly declaring that malice or criminal intent is an essential ingredient of the crime, nevertheless, the
general provisions of article 1 of the code clearly indicate that malice, or criminal intent in some form, is an essential
requisite of all crimes and offense therein defined, in the absence of express provisions modifying the general rule,
such as are those touching liability resulting from acts negligently or imprudently committed, and acts done by one
voluntarily committing a crime or misdemeanor, where the act committed is different from that which he intended to
commit. And it is to be observed that even these exceptions are more apparent than real, for "There is little
distinction, except in degree, between a will to do a wrongful thing and indifference whether it is done or not.
Therefore carelessness is criminal, and within limits supplies the place of the affirmative criminal intent" (Bishop's
New Criminal Law, vol. 1, s. 313); and, again, "There is so little difference between a disposition to do a great harm
and a disposition to do harm that one of them may very well be looked upon as the measure of the other. Since,
therefore, the guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and
since this disposition is greater or less in proportion to the harm which is done by the crime, the consequence is that
the guilt of the crime follows the same proportion; it is greater or less according as the crime in its own nature does
greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated, the thing done, having proceeded
from a corrupt mid, is to be viewed the same whether the corruption was of one particular form or another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions punished by law.
Acts and omissions punished by law are always presumed to be voluntarily unless the contrary shall appear.
An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even though the
wrongful act committed be different from that which he had intended to commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this article, say
that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that without intention (intention to do
wrong or criminal intention) there can be no crime; and that the word "voluntary" implies and includes the words
"con malicia," which were expressly set out in the definition of the word "crime" in the code of 1822, but omitted from

the code of 1870, because, as Pacheco insists, their use in the former code was redundant, being implied and
included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the crime can only be said to exempt from criminal
responsibility when the act which was actually intended to be done was in itself a lawful one, and in the absence of
negligence or imprudence, nevertheless admits and recognizes in his discussion of the provisions of this article of
the code that in general without intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have shown
above, the exceptions insisted upon by Viada are more apparent than real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which declared that where there is no intention there is no
crime . . . in order to affirm, without fear of mistake, that under our code there can be no crime if there is no
act, an act which must fall within the sphere of ethics if there is no moral injury. (Vol. 2, the Criminal Law,
folio 169.)
And to the same effect are various decisions of the supreme court of Spain, as, for example in its sentence of May
31, 1882, in which it made use of the following language:
It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed from the
operation of the will and an intent to cause the injury which may be the object of the crime.
And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be the civil effects
of the inscription of his three sons, made by the appellant in the civil registry and in the parochial church, there can
be no crime because of the lack of the necessary element or criminal intention, which characterizes every action or
ommission punished by law; nor is he guilty of criminal negligence."
And to the same effect in its sentence of December 30, 1896, it made use of the following language:
. . . Considering that the moral element of the crime, that is, intent or malice or their absence in the
commission of an act defined and punished by law as criminal, is not a necessary question of fact submitted
to the exclusive judgment and decision of the trial court.
That the author of the Penal Code deemed criminal intent or malice to be an essential element of the various crimes
and misdemeanors therein defined becomes clear also from an examination of the provisions of article 568, which
are as follows:
He who shall execute through reckless negligence an act that, if done with malice, would constitute a grave
crime, shall be punished with the penalty of arresto mayor in its maximum degree, to prision correccional in
its minimum degrees if it shall constitute a less grave crime.
He who in violation of the regulations shall commit a crime through simple imprudence or negligence shall
incur the penalty of arresto mayor in its medium and maximum degrees.
In the application of these penalties the courts shall proceed according to their discretion, without being
subject to the rules prescribed in article 81.
The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal to or less
than those contained in the first paragraph thereof, in which case the courts shall apply the next one thereto
in the degree which they may consider proper.
The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent," and the direct
inference from its provisions is that the commission of the acts contemplated therein, in the absence of malice
(criminal intent), negligence, and imprudence, does not impose any criminal liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the word "willful"
as used in English and American statute to designate a form of criminal intent. It has been said that while the word

"willful" sometimes means little more than intentionally or designedly, yet it is more frequently understood to extent a
little further and approximate the idea of the milder kind of legal malice; that is, it signifies an evil intent without
justifiable excuse. In one case it was said to mean, as employed in a statute in contemplation, "wantonly" or
"causelessly;" in another, "without reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that
ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in other words, corruptly." In English
and the American statutes defining crimes "malice," "malicious," "maliciously," and "malice aforethought" are words
indicating intent, more purely technical than "willful" or willfully," but "the difference between them is not great;" the
word "malice" not often being understood to require general malevolence toward a particular individual, and
signifying rather the intent from our legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and
cases cited.)
But even in the absence of express words in a statute, setting out a condition in the definition of a crime that it be
committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of the various modes generally
construed to imply a criminal intent, we think that reasoning from general principles it will always be found that with
the rare exceptions hereinafter mentioned, to constitute a crime evil intent must combine with an act. Mr. Bishop,
who supports his position with numerous citations from the decided cases, thus forcely present this doctrine:
In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent. In
controversies between private parties the quo animo with which a thing was done is sometimes important,
not always; but crime proceeds only from a criminal mind. So that
There can be no crime, large or small, without an evil mind. In other words, punishment is the sentence of
wickedness, without which it can not be. And neither in philosophical speculation nor in religious or mortal
sentiment would any people in any age allow that a man should be deemed guilty unless his mind was so. It
is therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is
the wrongful intent, without which it can not exists. We find this doctrine confirmed by
Legal maxims. The ancient wisdom of the law, equally with the modern, is distinct on this subject. It
consequently has supplied to us such maxims as Actus non facit reum nisi mens sit rea, "the act itself does
not make man guilty unless his intention were so;" Actus me incito factus non est meus actus, "an act done
by me against my will is not my act;" and others of the like sort. In this, as just said, criminal jurisprudence
differs from civil. So also
Moral science and moral sentiment teach the same thing. "By reference to the intention, we inculpate or
exculpate others or ourselves without any respect to the happiness or misery actually produced. Let the
result of an action be what it may, we hold a man guilty simply on the ground of intention; or, on the dame
ground, we hold him innocent." The calm judgment of mankind keeps this doctrine among its jewels. In times
of excitement, when vengeance takes the place of justice, every guard around the innocent is cast down.
But with the return of reason comes the public voice that where the mind is pure, he who differs in act from
his neighbors does not offend. And
In the spontaneous judgment which springs from the nature given by God to man, no one deems another to
deserve punishment for what he did from an upright mind, destitute of every form of evil. And whenever a
person is made to suffer a punishment which the community deems not his due, so far from its placing an
evil mark upon him, it elevates him to the seat of the martyr. Even infancy itself spontaneously pleads the
want of bad intent in justification of what has the appearance of wrong, with the utmost confidence that the
plea, if its truth is credited, will be accepted as good. Now these facts are only the voice of nature uttering
one of her immutable truths. It is, then, the doctrine of the law, superior to all other doctrines, because first in
nature from which the law itself proceeds, that no man is to be punished as a criminal unless his intent is
wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of abstract justice
result from the adoption of the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law excuses no
man"), without which justice could not be administered in our tribunals; and compelled also by the same doctrine of
necessity, the courts have recognized the power of the legislature to forbid, in a limited class of cases, the doing of
certain acts, and to make their commission criminal without regard to the intent of the doer. Without discussing these
exceptional cases at length, it is sufficient here to say that the courts have always held that unless the intention of
the lawmaker to make the commission of certain acts criminal without regard to the intent of the doer is clear and

beyond question the statute will not be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and 77); and the
rule that ignorance of the law excuses no man has been said not to be a real departure from the law's fundamental
principle that crime exists only where the mind is at fault, because "the evil purpose need not be to break the law,
and if suffices if it is simply to do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and
cases cited.)
But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring mistake in fact to
be dealt with otherwise that in strict accord with the principles of abstract justice. On the contrary, the maxim here
is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all cases of supposed offense, a sufficient
excuse"). (Brown's Leg. Max., 2d ed., 190.)
Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act
committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal liability
provided always there is no fault or negligence on his part; and as laid down by Baron Parke, "The guilt of the
accused must depend on the circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387;
P. vs.Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625;
Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the
question as to whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be
determined by the circumstances as they appeared to him at the time when the mistake was made, and the effect
which the surrounding circumstances might reasonably be expected to have on his mind, in forming the intent,
criminal or other wise, upon which he acted.
If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts
which will justify a killing or, in terms more nicely in accord with the principles on which the rule is
founded, if without fault or carelessness he does believe them he is legally guiltless of the homicide;
though he mistook the facts, and so the life of an innocent person is unfortunately extinguished. In other
words, and with reference to the right of self-defense and the not quite harmonious authorities, it is the
doctrine of reason and sufficiently sustained in adjudication, that notwithstanding some decisions apparently
adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as they appear to
him. If, without fault or carelessness, he is misled concerning them, and defends himself correctly according
to what he thus supposes the facts to be the law will not punish him though they are in truth otherwise, and
he was really no occassion for the extreme measures. (Bishop's New Criminal Law, sec. 305, and large
array of cases there cited.)
The common illustration in the American and English textbooks of the application of this rule is the case where a
man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his friends in a spirit of mischief,
and with leveled pistol demands his money or his life, but is killed by his friend under the mistaken belief that the
attack is a real one, that the pistol leveled at his head is loaded, and that his life and property are in imminent
danger at the hands of the aggressor. No one will doubt that if the facts were such as the slayer believed them to be
he would be innocent of the commission of any crime and wholly exempt from criminal liability, although if he knew
the real state of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of homicide
or assassination. Under such circumstances, proof of his innocent mistake of the facts overcomes the presumption
of malice or criminal intent, and (since malice or criminal intent is a necessary ingredient of the "act punished by
law" in cases of homicide or assassination) overcomes at the same time the presumption established in article 1 of
the code, that the "act punished by law" was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that the person slain had a felonious design against
him, and under that supposition killed him, although it should afterwards appear that there was no such
design, it will not be murder, but it will be either manslaughter or excusable homicide, according to the
degree of caution used and the probable grounds of such belief. (Charge to the grand jury in Selfridge's
case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:
A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an outstretched arms and a
pistol in his hand, and using violent menaces against his life as he advances. Having approached near

enough in the same attitude, A, who has a club in his hand, strikes B over the head before or at the instant
the pistol is discharged; and of the wound B dies. It turns out the pistol was loaded with powder only, and
that the real design of B was only to terrify A. Will any reasonable man say that A is more criminal that he
would have been if there had been a bullet in the pistol? Those who hold such doctrine must require that a
man so attacked must, before he strikes the assailant, stop and ascertain how the pistol is loaded a
doctrine which would entirely take away the essential right of self-defense. And when it is considered that
the jury who try the cause, and not the party killing, are to judge of the reasonable grounds of his
apprehension, no danger can be supposed to flow from this principle. (Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which are here set
out in full because the facts are somewhat analogous to those in the case at bar.
QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only of his
wife, without other light than reflected from the fire, and that the man with his back to the door was attending
to the fire, there suddenly entered a person whom he did not see or know, who struck him one or two blows,
producing a contusion on the shoulder, because of which he turned, seized the person and took from his the
stick with which he had undoubtedly been struck, and gave the unknown person a blow, knocking him to the
floor, and afterwards striking him another blow on the head, leaving the unknown lying on the floor, and left
the house. It turned out the unknown person was his father-in-law, to whom he rendered assistance as soon
as he learned his identity, and who died in about six days in consequence of cerebral congestion resulting
from the blow. The accused, who confessed the facts, had always sustained pleasant relations with his
father-in-law, whom he visited during his sickness, demonstrating great grief over the occurrence. Shall he
be considered free from criminal responsibility, as having acted in self-defense, with all the circumstances
related in paragraph 4, article 8, of the Penal Code? The criminal branch of theAudiencia of Valladolid found
that he was an illegal aggressor, without sufficient provocation, and that there did not exists rational
necessity for the employment of the force used, and in accordance with articles 419 and 87 of the Penal
Code condemned him to twenty months of imprisonment, with accessory penalty and costs. Upon appeal by
the accused, he was acquitted by the supreme court, under the following sentence: "Considering, from the
facts found by the sentence to have been proven, that the accused was surprised from behind, at night, in
his house beside his wife who was nursing her child, was attacked, struck, and beaten, without being able to
distinguish with which they might have executed their criminal intent, because of the there was no other than
fire light in the room, and considering that in such a situation and when the acts executed demonstrated that
they might endanger his existence, and possibly that of his wife and child, more especially because his
assailant was unknown, he should have defended himself, and in doing so with the same stick with which he
was attacked, he did not exceed the limits of self-defense, nor did he use means which were not rationally
necessary, particularly because the instrument with which he killed was the one which he took from his
assailant, and was capable of producing death, and in the darkness of the house and the consteration which
naturally resulted from such strong aggression, it was not given him to known or distinguish whether there
was one or more assailants, nor the arms which they might bear, not that which they might accomplish, and
considering that the lower court did not find from the accepted facts that there existed rational necessity for
the means employed, and that it did not apply paragraph 4 of article 8 of the Penal Code, it erred, etc."
(Sentence of supreme court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .
QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the city,
upon arriving at a point where there was no light, heard the voice of a man, at a distance of some 8 paces,
saying: "Face down, hand over you money!" because of which, and almost at the same money, he fired two
shots from his pistol, distinguishing immediately the voice of one of his friends (who had before simulated a
different voice) saying, "Oh! they have killed me," and hastening to his assistance, finding the body lying
upon the ground, he cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had
been the victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he retired
from the place. Shall he be declared exempt in toto from responsibility as the author of this homicide, as
having acted in just self-defense under the circumstances defined in paragraph 4, article 8, Penal Code?
The criminal branch of the Audiencia of Malaga did not so find, but only found in favor of the accused two of
the requisites of said article, but not that of the reasonableness of the means employed to repel the attack,
and, therefore, condemned the accused to eight years and one day of prison mayor, etc. The supreme court
acquitted the accused on his appeal from this sentence, holding that the accused was acting under a
justifiable and excusable mistake of fact as to the identity of the person calling to him, and that under the
circumstances, the darkness and remoteness, etc., the means employed were rational and the shooting
justifiable. (Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.)

QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone thrown
against his window at this, he puts his head out of the window and inquires what is wanted, and is
answered "the delivery of all of his money, otherwise his house would be burned" because of which, and
observing in an alley adjacent to the mill four individuals, one of whom addressed him with blasphemy, he
fired his pistol at one the men, who, on the next morning was found dead on the same spot. Shall this man
be declared exempt from criminal responsibility as having acted in just self-defense with all of the requisites
of law? The criminal branch of the requisites of law? The criminal branch of the Audiencia of Zaragoza finds
that there existed in favor of the accused a majority of the requisites to exempt him from criminal
responsibility, but not that of reasonable necessity for the means, employed, and condemned the accused to
twelve months of prision correctional for the homicide committed. Upon appeal, the supreme court acquitted
the condemned, finding that the accused, in firing at the malefactors, who attack his mill at night in a remote
spot by threatening robbery and incendiarism, was acting in just self-defense of his person, property, and
family. (Sentence of May 23, 1877). (I Viada, p. 128.)
A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman struck
the fatal blow alleged in the information in the firm belief that the intruder who forced open the door of his sleeping
room was a thief, from whose assault he was in imminent peril, both of his life and of his property and of the
property committed to his charge; that in view of all the circumstances, as they must have presented themselves to
the defendant at the time, he acted in good faith, without malice, or criminal intent, in the belief that he was doing no
more than exercising his legitimate right of self-defense; that had the facts been as he believed them to be he would
have been wholly exempt from criminal liability on account of his act; and that he can not be said to have been guilty
of negligence or recklessness or even carelessness in falling into his mistake as to the facts, or in the means
adopted by him to defend himself from the imminent danger which he believe threatened his person and his
property and the property under his charge.
The judgment of conviction and the sentence imposed by the trial court should be reversed, and the defendant
acquitted of the crime with which he is charged and his bail bond exonerated, with the costs of both instance de
oficio. So ordered.
Johnson Moreland and Elliott, JJ., concur.
Arellano, C.J., and Mapa, J., dissent.

Separate Opinions
TORRES, J., dissenting:
The writer, with due respect to the opinion of the majority of the court, believes that, according to the merits of the
case, the crime of homicide by reckless negligence, defined and punishes in article 568 of the Penal Code, was
committed, inasmuch as the victim was wilfully (voluntariomente) killed, and while the act was done without malice
or criminal intent it was, however, executed with real negligence, for the acts committed by the deceased could not
warrant the aggression by the defendant under the erroneous belief on the part of the accused that the person who
assaulted him was a malefactor; the defendant therefore incurred responsibility in attacking with a knife the person
who was accustomed to enter said room, without any justifiable motive.
By reason of the nature of the crime committed, in the opinion of the undersigned the accused should be sentenced
to the penalty of one year and one month of prision correctional, to suffer the accessory penalties provided in article
61, and to pay an indemnify of P1,000 to the heirs of the deceased, with the costs of both instances, thereby
reversing the judgment appealed from.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-47722

July 27, 1943

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.
Antonio Z. Oanis in his own behalf.
Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibaez and Assistant Attorney Torres for appellee.
MORAN, J.:
Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto Galanta, chief
of police of Cabanatuan and corporal of the Philippine Constabulary, respectively, were, after due trial, found guilty
by the lower court of homicide through reckless imprudence and were sentenced each to an indeterminate penalty
of from one year and six months to two years and two months of prison correccional and to indemnify jointly and
severally the heirs of the deceased in the amount of P1,000. Defendants appealed separately from this judgment.
In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial Inspector at
Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor: "Information received
escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get him dead or alive." Captain Monsod
accordingly called for his first sergeant and asked that he be given four men. Defendant corporal Alberto Galanta,
and privates Nicomedes Oralo, Venancio Serna and D. Fernandez, upon order of their sergeant, reported at the
office of the Provincial Inspector where they were shown a copy of the above-quoted telegram and a newspaper
clipping containing a picture of Balagtas. They were instructed to arrest Balagtas and, if overpowered, to follow the
instruction contained in the telegram. The same instruction was given to the chief of police Oanis who was likewise
called by the Provincial Inspector. When the chief of police was asked whether he knew one Irene, a bailarina, he
answered that he knew one of loose morals of the same name. Upon request of the Provincial Inspector, the chief of
police tried to locate some of his men to guide the constabulary soldiers in ascertaining Balagtas' whereabouts, and
failing to see anyone of them he volunteered to go with the party. The Provincial Inspector divided the party into two
groups with defendants Oanis and Galanta, and private Fernandez taking the route to Rizal street leading to the
house where Irene was supposedly living. When this group arrived at Irene's house, Oanis approached one Brigida
Mallare, who was then stripping banana stalks, and asked her where Irene's room was. Brigida indicated the place
and upon further inquiry also said that Irene was sleeping with her paramour. Brigida trembling, immediately
returned to her own room which was very near that occupied by Irene and her paramour. Defendants Oanis and
Galanta then went to the room of Irene, and an seeing a man sleeping with his back towards the door where they
were, simultaneously or successively fired at him with their .32 and .45 caliber revolvers. Awakened by the
gunshots, Irene saw her paramour already wounded, and looking at the door where the shots came, she saw the
defendants still firing at him. Shocked by the entire scene. Irene fainted; it turned out later that the person shot and
killed was not the notorious criminal Anselmo Balagtas but a peaceful and innocent citizen named Serapio Tecson,
Irene's paramour. The Provincial Inspector, informed of the killing, repaired to the scene and when he asked as to
who killed the deceased. Galanta, referring to himself and to Oanis, answered: "We two, sir." The corpse was
thereafter brought to the provincial hospital and upon autopsy by Dr. Ricardo de Castro, multiple gunshot wounds
inflicted by a .32 and a .45 caliber revolvers were found on Tecson's body which caused his death.
These are the facts as found by the trial court and fully supported by the evidence, particularly by the testimony of
Irene Requinea. Appellants gave, however, a different version of the tragedy. According to Appellant Galanta, when
he and chief of police Oanis arrived at the house, the latter asked Brigida where Irene's room was. Brigida indicated
the place, and upon further inquiry as to the whereabouts of Anselmo Balagtas, she said that he too was sleeping in
the same room. Oanis went to the room thus indicated and upon opening the curtain covering the door, he said: "If
you are Balagtas, stand up." Tecson, the supposed Balagtas, and Irene woke up and as the former was about to sit
up in bed. Oanis fired at him. Wounded, Tecson leaned towards the door, and Oanis receded and shouted: "That is
Balagtas." Galanta then fired at Tecson.
On the other hand, Oanis testified that after he had opened the curtain covering the door and after having said, "if
you are Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas, while the latter was still lying
on bed, and continued firing until he had exhausted his bullets: that it was only thereafter that he, Oanis, entered the

door and upon seeing the supposed Balagtas, who was then apparently watching and picking up something from
the floor, he fired at him.
The trial court refused to believe the appellants. Their testimonies are certainly incredible not only because they are
vitiated by a natural urge to exculpate themselves of the crime, but also because they are materially contradictory.
Oasis averred that be fired at Tecson when the latter was apparently watching somebody in an attitudes of picking
up something from the floor; on the other hand, Galanta testified that Oasis shot Tecson while the latter was about to
sit up in bed immediately after he was awakened by a noise. Galanta testified that he fired at Tecson, the supposed
Balagtas, when the latter was rushing at him. But Oanis assured that when Galanta shot Tecson, the latter was still
lying on bed. It is apparent from these contradictions that when each of the appellants tries to exculpate himself of
the crime charged, he is at once belied by the other; but their mutual incriminating averments dovetail with and
corroborate substantially, the testimony of Irene Requinea. It should be recalled that, according to Requinea, Tecson
was still sleeping in bed when he was shot to death by appellants. And this, to a certain extent, is confirmed by both
appellants themselves in their mutual recriminations. According, to Galanta, Oanis shot Tecson when the latter was
still in bed about to sit up just after he was awakened by a noise. And Oanis assured that when Galanta shot
Tecson, the latter was still lying in bed. Thus corroborated, and considering that the trial court had the opportunity to
observe her demeanor on the stand, we believe and so hold that no error was committed in accepting her testimony
and in rejecting the exculpatory pretensions of the two appellants. Furthermore, a careful examination of Irene's
testimony will show not only that her version of the tragedy is not concocted but that it contains all indicia of veracity.
In her cross-examination, even misleading questions had been put which were unsuccessful, the witness having
stuck to the truth in every detail of the occurrence. Under these circumstances, we do not feel ourselves justified in
disturbing the findings of fact made by the trial court.
The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back towards the door,
Oanis and Galanta, on sight, fired at him simultaneously or successively, believing him to be Anselmo Balagtas but
without having made previously any reasonable inquiry as to his identity. And the question is whether or not they
may, upon such fact, be held responsible for the death thus caused to Tecson. It is contended that, as appellants
acted in innocent mistake of fact in the honest performance of their official duties, both of them believing that Tecson
was Balagtas, they incur no criminal liability. Sustaining this theory in part, the lower court held and so declared
them guilty of the crime of homicide through reckless imprudence. We are of the opinion, however, that, under the
circumstances of the case, the crime committed by appellants is murder through specially mitigated by
circumstances to be mentioned below.
In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the case of U.S. v. Ah
Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only when the mistake is committed
without fault or carelessness. In the Ah Chong case, defendant therein after having gone to bed was awakened by
someone trying to open the door. He called out twice, "who is there," but received no answer. Fearing that the
intruder was a robber, he leaped from his bed and called out again., "If you enter the room I will kill you." But at that
precise moment, he was struck by a chair which had been placed against the door and believing that he was then
being attacked, he seized a kitchen knife and struck and fatally wounded the intruder who turned out to be his roommate. A common illustration of innocent mistake of fact is the case of a man who was marked as a footpad at night
and in a lonely road held up a friend in a spirit of mischief, and with leveled, pistol demanded his money or life. He
was killed by his friend under the mistaken belief that the attack was real, that the pistol leveled at his head was
loaded and that his life and property were in imminent danger at the hands of the aggressor. In these instances,
there is an innocent mistake of fact committed without any fault or carelessness because the accused, having no
time or opportunity to make a further inquiry, and being pressed by circumstances to act immediately, had no
alternative but to take the facts as they then appeared to him, and such facts justified his act of killing. In the instant
case, appellants, unlike the accused in the instances cited, found no circumstances whatsoever which would press
them to immediate action. The person in the room being then asleep, appellants had ample time and opportunity to
ascertain his identity without hazard to themselves, and could even effect a bloodless arrest if any reasonable effort
to that end had been made, as the victim was unarmed, according to Irene Requinea. This, indeed, is the only
legitimate course of action for appellants to follow even if the victim was really Balagtas, as they were instructed not
to kill Balagtas at sight but to arrest him, and to get him dead or alive only if resistance or aggression is offered by
him.
Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to secure and
detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself
from bodily harm (People vs. Delima, 46 Phil, 738), yet he is never justified in using unnecessary force or in treating

him with wanton violence, or in resorting to dangerous means when the arrest could be effected otherwise (6 C.J.S.,
par. 13, p. 612). The doctrine is restated in the new Rules of Court thus: "No unnecessary or unreasonable force
shall be used in making an arrest, and the person arrested shall not be subject to any greater restraint than is
necessary for his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot claim exemption from criminal
liability if he uses unnecessary force or violence in making an arrest (5 C.J., p. 753; U.S.vs. Mendoza, 2 Phil., 109).
It may be true that Anselmo Balagtas was a notorious criminal, a life-termer, a fugitive from justice and a menace to
the peace of the community, but these facts alone constitute no justification for killing him when in effecting his
arrest, he offers no resistance or in fact no resistance can be offered, as when he is asleep. This, in effect, is the
principle laid down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242).
It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to life which
he has by such notoriety already forfeited. We may approve of this standard of official conduct where the criminal
offers resistance or does something which places his captors in danger of imminent attack. Otherwise we cannot
see how, as in the present case, the mere fact of notoriety can make the life of a criminal a mere trifle in the hands
of the officers of the law. Notoriety rightly supplies a basis for redoubled official alertness and vigilance; it never can
justify precipitate action at the cost of human life. Where, as here, the precipitate action of the appellants has cost
an innocent life and there exist no circumstances whatsoever to warrant action of such character in the mind of a
reasonably prudent man, condemnation not condonation should be the rule; otherwise we should offer a
premium to crime in the shelter of official actuation.
The crime committed by appellants is not merely criminal negligence, the killing being intentional and not accidental.
In criminal negligence, the injury caused to another should be unintentional, it being simply the incident of another
act performed without malice. (People vs. Sara, 55 Phil., 939). In the words of Viada, "para que se celifique un
hecho de imprudencia es preciso que no haya mediado en el malicia ni intencion alguna de daar; existiendo esa
intencion, debera calificarse el hecho del delito que ha producido, por mas que no haya sido la intencion del agente
el causar un mal de tanta gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed.
pag. 7). And, as once held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the
idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16), and where such
unlawful act is wilfully done, a mistake in the identity of the intended victim cannot be considered as reckless
imprudence (People vs. Gona, 54 Phil., 605) to support a plea of mitigated liability.
As the deceased was killed while asleep, the crime committed is murder with the qualifying circumstance ofalevosia.
There is, however, a mitigating circumstance of weight consisting in the incomplete justifying circumstance defined
in article 11, No. 5, of the Revised Penal Code. According to such legal provision, a person incurs no criminal liability
when he acts in the fulfillment of a duty or in the lawful exercise of a right or office. There are two requisites in order
that the circumstance may be taken as a justifying one: (a) that the offender acted in the performance of a duty or in
the lawful exercise of a right; and (b) that the injury or offense committed be the necessary consequence of the due
performance of such duty or the lawful exercise of such right or office. In the instance case, only the first requisite is
present appellants have acted in the performance of a duty. The second requisite is wanting for the crime by
them committed is not the necessary consequence of a due performance of their duty. Their duty was to arrest
Balagtas or to get him dead or alive if resistance is offered by him and they are overpowered. But through
impatience or over-anxiety or in their desire to take no chances, they have exceeded in the fulfillment of such duty
by killing the person whom they believed to be Balagtas without any resistance from him and without making any
previous inquiry as to his identity. According to article 69 of the Revised Penal Code, the penalty lower by one or two
degrees than that prescribed by law shall, in such case, be imposed.
For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder with the
mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate penalty of from five (5)
years of prision correctional to fifteen (15) years of reclusion temporal, with the accessories of the law, and to pay
the heirs of the deceased Serapio Tecson jointly and severally an indemnity of P2,000, with costs.
Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.

Separate Opinions

PARAS, J., dissenting:


Anselmo Balagtas, a life termer and notorious criminal, managed to escape and flee form Manila to the provinces.
Receiving information to the effect that he was staying with one Irene in Cabanatuan, Nueva Ecija, the office of the
Constabulary in Manila ordered the Provincial Inspector in Cabanatuan by telegram dispatched on December 25,
1938, to get Balagtas "dead or alive". Among those assigned to the task of carrying out the said order, were Antonio
Z. Oanis, chief of police of Cabanatuan, and Alberto Galanta, a Constabulary corporal, to whom the telegram
received by the Provincial Inspector and a newspaper picture of Balagtas were shown. Oanis, Galanta and a
Constabulary private, after being told by the Provincial Inspector to gather information about Balagtas, "to arrest him
and, if overpowered, to follow the instructions contained in the telegram," proceeded to the place where the house of
Irene was located. Upon arriving thereat, Oanis approached Brigida Mallari, who was then gathering banana stalks
in the yard, and inquired for the room of Irene. After Mallari had pointed out the room, she was asked by Oanis to tell
where Irene's paramour, Balagtas, was, whereupon Mallari answered that he was sleeping with Irene. Upon
reaching the room indicated, Oanis and Galanta, after the former had shouted "Stand up, if you are Balagtas,"
started shooting the man who was found by them lying down beside a woman. The man was thereby killed, but
Balagtas was still alive, for it turned out that the person shot by Oanis and Galanta was one Serapio Tecson.
Consequently, Oanis and Galanta were charged with having committed murder. The Court of First Instance of
Nueva Ecija, however, convicted them only of homicide through reckless imprudence and sentenced them each to
suffer the indeterminate penalty of from 1 year and 6 months to 2 years and 2 months of prision correctional, to
jointly and severally indemnify the heirs of Serapio Tecson in the amount of P1,000, and to pay the costs. Oanis and
Galanta have appealed.
In accomplishing the acts with which the appellants were charged, they undoubtedly followed the order issued by
the Constabulary authorities in Manila requiring the Provincial Inspector in Cabanatuan to get Balagtas dead or
alive, in the honest belief that Serapio Tecson was Anselmo Balagtas. As the latter became a fugitive criminal, with
revolvers in his possession and a record that made him extremely dangerous and a public terror, the Constabulary
authorities were justified in ordering his arrest, whether dead or alive. In view of said order and the danger faced by
the appellants in carrying it out, they cannot be said to have acted feloniously in shooting the person honestly
believed by them to be the wanted man. Conscious of the fact that Balagtas would rather kill than be captured, the
appellants did not want to take chances and should not be penalized for such prudence. On the contrary, they
should be commended for their bravery and courage bordering on recklessness because, without knowing or
ascertaining whether the wanted man was in fact asleep in his room, they proceeded thereto without hesitation and
thereby exposed their lives to danger.
The Solicitor-General, however, contends that the appellants were authorized to use their revolvers only after being
overpowered by Balagtas. In the first place, the alleged instruction by the Provincial Inspector to that effect, was in
violation of the express order given by the Constabulary authorities in Manila and which was shown to the
appellants. In the second place, it would indeed be suicidal for the appellants or, for that matter, any agent of the
authority to have waited until they have been overpowered before trying to put our such a character as Balagtas. In
the third place, it is immaterial whether or not the instruction given by the Provincial Inspector was legitimate and
proper, because the facts exist that the appellants acted in conformity with the express order of superior
Constabulary authorities, the legality or propriety of which is not herein questioned.
The theory of the prosecution has acquired some plausibility, though quite psychological or sentimental, in view only
of the fact that it was not Balagtas who was actually killed, but an "innocent man . . . while he was deeply asleep."
Anybody's heart will be profoundly grieved by the trade, but in time will be consoled by the realization that the life of
Serapio Tecson was not vainly sacrificed, for the incident will always serve as a loud warning to any one desiring to
follow in the footsteps of Anselmo Balagtas that in due time the duly constituted authorities will, upon proper order,
enforce the summary forfeiture of his life.
In my opinion, therefore, the appellants are not criminally liable if the person killed by them was in fact Anselmo
Balagtas for the reason that they did so in the fulfillment of their duty and in obedience to an order issued by a
superior for some lawful purpose (Revised Penal Code, art. 11, pars. 5 and 6). They also cannot be held criminally
liable even if the person killed by them was not Anselmo Balagtas, but Serapio Tecson, because they did so under
an honest mistake of fact not due to negligence or bad faith. (U.S. vs. Ah Chong, 15 Phil., 488).

It is true that, under article 4 of the Revised Penal Code, criminal liability is incurred by any person committing a
felony although the wrongful act done be different from that which he intended; but said article is clearly inapplicable
since the killing of the person who was believed to be Balagtas was, as already stated, not wrongful or felonious.
The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-General, is not in point, inasmuch as the
defendant therein, who intended to injure Hilario Lauigan with whom he had a quarrel, but killed another by mistake,
would not be exempted from criminal liability if he actually injured or killed Hilario Lauigan, there being a malicious
design on his part. The other case involved by the prosecution is U.S. vs. Donoso (3 Phil., 234). This is also not in
point, as it appears that the defendants therein killed one Pedro Almasan after he had already surrendered and
allowed himself to be bound and that the said defendants did not have lawful instructions from superior authorities to
capture Almasan dead or alive.
The appealed judgment should therefore be reversed and the appellants, Antonio Z. Oanis and Alberto Galanta,
acquitted, with costs de oficio.

HONTIVEROS, J., dissenting:


According to the opinion of the majority, it is proper to follow the rule that a notorious criminal "must be taken by
storm without regard to his life which he has, by his conduct, already forfeited," whenever said criminal offers
resistance or does something which places his captors in danger of imminent attack. Precisely, the situation which
confronted the accused-appellants Antonio Z. Oanis and Alberto Galanta in the afternoon of December 24, 1938,
was very similar to this. It must be remembered that both officers received instructions to get Balagtas "dead or
alive" and according to the attitude of not only the said appellants but also of Capt. Monsod, constabulary provincial
inspector of Nueva Ecija, it may be assumed that said instructions gave more emphasis to the first part; namely, to
take him dead. It appears in the record that after the shooting, and having been informed of the case, Capt. Monsod
stated that Oanis and Galanta might be decorated for what they had done. That was when all parties concerned
honestly believed that the dead person was Balagtas himself, a dangerous criminal who had escaped from his
guards and was supposedly armed with a .45 caliber pistol Brigida Mallari, the person whom the appellants met
upon arriving at the house of Irene Requinea, supposed mistress of Balagtas, informed them that said Balagtas was
upstairs. Appellants found there asleep a man closely resembling the wanted criminal. Oanis said: If you are
Balagtas stand up," But the supposed criminal showed his intention to attack the appellants, a conduct easily
explained by the fact that he should have felt offended by the intrusion of persons in the room where he was
peacefully lying down with his mistress. In such predicament, it was nothing but human on the part of the appellants
to employ force and to make use of their weapons in order to repel the imminent attack by a person who, according
to their belief, was Balagtas It was unfortunate, however that an innocent man was actually killed. But taking into
consideration the facts of the case, it is, according to my humble opinion, proper to apply herein the doctrine laid
down in the case of U.S. vs. Ah Chong (15 Phil., 488). In the instant case we have, as in the case supra, an
innocent mistake of fact committed without any fault or carelessness on the part of the accused, who having no time
to make a further inquiry, had no alternative but to take the facts as they appeared to them and act immediately.
The decision of the majority, in recognition of the special circumstances of this case which favored the accusedappellants, arrives at the conclusion that an incomplete justifying circumstance may be invoked, and therefore,
according to Article 69 of the Revised Penal Code, the imposable penalty should be one which is lower by one or
two degrees than that prescribed by law. This incomplete justifying circumstance is that defined in Article 11, No. 5
of the Revised Penal Code, in favor of "a person who acts in the fulfillment of a duty or in the lawful exercise of a
right or office." I believe that the application of this circumstance is not proper. Article 69 of the Revised Penal Code
provides as follows:
Art. 69. Penalty to be imposed when the crime committed is not wholly excusable. A penalty lower by one
or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of
the lack of some of the conditions required to justify the same or to exempt from criminal liability in the
several cases mentioned in articles 11 and 12, provided that the majority of such conditions be present. The
courts shall impose the penalty in the period which may be deemed proper, in view of the number and
nature of the conditions of exemption present or lacking.

This provision has been copied almost verbatim from Article 84 of the old Penal Code of the Philippines, and which
was also taken from Article 87 of the Spanish Penal Code of 1870.
Judge Guillermo Guevara, one of the members of the Committee created by Administrative Order No. 94 of the
Department of Justice for the drafting of the Revised Penal Code, in commenting on Article 69, said that the
justifying circumstances and circumstances exempting from liability which are the subject matter of this article are
the following: self-defense, defense of relatives, defense of strangers, state of necessity and injury caused by mere
accident. Accordingly, justifying circumstance No. 5 of Article 11 dealing with the fulfillment of a duty or the lawful
exercise of a right, calling or office, cannot be placed within its scope.
The eminent treatiser of criminal law Mr. Groizard, in his commentary of Article 87 of the Spanish Penal Code of
1870 which is the source of Article 69 of our Code says:
Ni tratandose de la imbecilidad, ni de la locura, ni de la menor edad, ni del que obra violentado por una
fuerza inrresistible o impulsado por miedo insuperable de un mal igual o mayor, o en cumplimiento de un
deber, o en el ejercito legitimo de un derecho, oficio o cargo, o en virtud de obediencia debida, ni del que
incurre en alguna omision hallandose impedido por causa legitima o insuperable, puede tener aplicacion al
articulo que comentamos. Y la razon es obvia. En ninguna de estas execiones hay pluralidad de requisitos.
La irrespondabilidad depende de una sola condicion. Hay o no perturbacion de la razon; el autor del hecho
es o no menor de nueve aos; existe o no violencia material o moral irresistible, etc., etc.; tal es lo que
respectivamente hay que examinar y resolver para declarar la culpabilidad o inculpabilidad. Es, por lo tanto,
imposible que acontezca lo que el texto que va al frente de estas lineas rquiere, para que se imponga al
autor del hecho la penalidad excepcional que establece; esto es, que falten algunos requisitos de los que la
ley exige para eximir de responsabilidad, y que concurran el mayor numero de ellos, toda vez que, en los
casos referidos, la ley no exige multiples condiciones.
It must be taken into account the fact according to Article 69 a penalty lower by one or two degrees than that
prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the
conditions required by the law to justify the same or exempt from criminal liability. The word "conditions" should not
be confused with the word "requisites". In dealing with justifying circumstance No. 5 Judge Guevara states: "There
are two requisites in order that this circumstance may be taken into account: (a) That the offender acted in the
performance of his duty or in the lawful exercise of a right; and (b) That the injury or offense committed be the
necessary consequence of the performance of a duty or the lawful exercise of a right or office." It is evident that
these two requisites concur in the present case if we consider the intimate connection between the order given to
the appellant by Capt. Monsod, the showing to them of the telegram from Manila to get Balagtas who was with a
bailarina named Irene, the conduct of said appellants in questioning Brigida Mallari and giving a warning to the
supposed criminal when both found him with Irene, and the statement made by Capt. Monsod after the shooting.
If appellant Oanis is entitled to a reversal of the decision of the court below, there are more reasons in favor of the
acquittal of appellant Galanta. According to the evidence no bullet from the gun fired by this accused ever hit
Serapio Tecson. Galanta was armed in the afternoon of December 24, 1938, with a .45 caliber revolver (Exhibit L).
He so testified and was corroborated by the unchallenged testimony of his superior officer Sgt. Valeriano Serafica.
According to this witness, since Galanta was made a corporal of the Constabulary he was given, as part of his
equipment, revolver Exhibit L with a serial No. 37121. This gun had been constantly used by Galanta, and,
according to Sgt. Pedro Marasigan, who accompanied said accused when he took it from his trunk in the barracks
on the night of December 24, 1938, upon order of Captain Monsod, it was the same revolver which was given to the
witness with five .45 caliber bullets and one empty shell. Fourteen unused bullets were also taken from Galanta by
Sergeant Serafica, thus completing his regular equipment of twenty bullets which he had on the morning of
December 24, 1938, when Sergeant Serafica made the usual inspection of the firearms in the possession of the
non-commissioned officers and privates of the constabulary post at Cabanatuan. Galanta stated that he had fired
only one shot and missed. This testimony is corroborated by that of a ballistic expert who testified that bullets
exhibits F and O, the first being extracted from the head of the deceased, causing wound No. 3 of autopsy report
Exhibit C and the second found at the place of the shooting, had not been fired from revolver Exhibit L nor from
any other revolver of the constabulary station in Cabanatuan. It was impossible for the accused Galanta to have
substituted his revolver because when Exhibit L was taken from him nobody in the barracks doubted that the
deceased was none other than Balagtas. Moreover, Exhibit L was not out of order and therefore there was no
reason why Galanta should carry along another gun, according to the natural course of things. On the other hand,
aside from wound No. 3 as above stated, no other wound may be said to have been caused by a .45 caliber

revolver bullet. Doctor Castro's record gives the conclusion that wound No. 2 must have been caused by a .45
caliber revolver bullet. Doctor Castro's record gives the conclusion that wound No. 2 must have been caused by a .
45 caliber bullet, but inasmuch as the diameter of the wound's entrance was only 8 mm., the caliber should be .32
and not .45, because according to the medico-legal expert who testified in this case, a bullet of a .45 caliber will
produce a wound entrance with either 11 mm. or 12 mm. diameter. All other wounds found by the surgeon who
performed the autopsy appeared to have been caused by bullets of a lesser caliber. In consequence, it can be
stated that no bullet fired by Galanta did ever hit or kill Serapio Tecson and therefore there is no reason why he
should be declared criminally responsible for said death.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 103119 October 21, 1992


SULPICIO INTOD, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

CAMPOS, JR., J.:


Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of Appeals 1 affirming in toto the judgment of the

Regional Trial Court, Branch XIV, Oroquieta City, finding him guilty of the crime of attempted murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino Daligdig went to Salvador Mandaya's
house in Katugasan, Lopez Jaena, Misamis Occidental and asked him to go with them to the house of Bernardina Palangpangan.
Thereafter, Mandaya and Intod, Pangasian, Tubio and Daligdig had a meeting with Aniceto Dumalagan. He told Mandaya that he
wanted Palangpangan to be killed because of a land dispute between them and that Mandaya should accompany the four (4) men,
otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio and Daligdig, all armed with firearms,
arrived at Palangpangan's house in Katugasan, Lopez Jaena, Misamis Occidental. At the instance of his companions, Mandaya pointed
the location of Palangpangan's bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said room. It turned out,
however, that Palangpangan was in another City and her home was then occupied by her son-in-law and his family. No one was in the
room when the accused fired the shots. No one was hit by the gun fire.
Petitioner and his companions were positively identified by witnesses. One witness testified that before the five men left the premises,
they shouted: "We will kill you (the witness) and especially Bernardina Palangpangan and we will come back if (sic) you were not
injured". 2
After trial, the Regional Trial Court convicted Intod of attempted murder. The court (RTC), as affirmed by the Court of Appeals, holding
that Petitioner was guilty of attempted murder. Petitioner seeks from this Court a modification of the judgment by holding him liable only
for an impossible crime, citing Article 4(2) of the Revised Penal Code which provides:
Art. 4(2). CRIMINAL RESPONSIBILITY. Criminal Responsibility shall be incurred:
xxx xxx xxx
2. By any person performing an act which would be an offense against persons or property, were it not for the
inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means.

Petitioner contends that, Palangpangan's absence from her room on the night he and his companions riddled it with bullets
made the crime inherently impossible.
On the other hand, Respondent People of the Philippines argues that the crime was not impossible. Instead, the facts were sufficient to
constitute an attempt and to convict Intod for attempted murder. Respondent alleged that there was intent. Further, in its Comment to
the Petition, respondent pointed out that:
. . . The crime of murder was not consummated, not because of the inherent impossibility of its accomplishment (Art.
4(2), Revised Penal Code), but due to a cause or accident other than petitioner's and his accused's own spontaneous
desistance (Art. 3., Ibid.) Palangpangan did not sleep at her house at that time. Had it not been for this fact, the crime
is possible, not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void in the Old Penal Code

where:
. . . it was necessary that the execution of the act has been commenced, that the person conceiving the idea should
have set about doing the deed, employing appropriate means in order that his intent might become a reality, and
finally, that the result or end contemplated shall have been physically possible. So long as these conditions were not
present, the law and the courts did not hold him criminally liable. 5
This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired by the Positivist School,

recognizes in the offender his formidability, 7 and now penalizes an act which were it not aimed at something quite
impossible or carried out with means which prove inadequate, would constitute a felony against person or against
property. 8 The rationale of Article 4(2) is to punish such criminal tendencies. 9
Under this article, the act performed by the offender cannot produce an offense against person or property because: (1) the commission
of the offense is inherently impossible of accomplishment: or (2) the means employed is either (a) inadequate or (b) ineffectual. 10
That the offense cannot be produced because the commission of the offense is inherently impossible of accomplishment is the focus of
this petition. To be impossible under this clause, the act intended by the offender must be by its nature one impossible of
accomplishment. 11 There must be either impossibility of accomplishing the intended act 12 in order to qualify the act an

impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime. 13 Thus:
Legal impossibility would apply to those circumstances where (1) the motive, desire and expectation is to perform an
act in violation of the law; (2) there is intention to perform the physical act; (3) there is a performance of the intended
physical act; and (4) the consequence resulting from the intended act does not amount to a crime. 14
The impossibility of killing a person already dead 15 falls in this category.
On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his control prevent the
consummation of the intended crime. 16 One example is the man who puts his hand in the coat pocket of another with the

intention to steal the latter's wallet and finds the pocket empty. 17
The case at bar belongs to this category. Petitioner shoots the place where he thought his victim would be, although in reality, the victim
was not present in said place and thus, the petitioner failed to accomplish his end.
One American case had facts almost exactly the same as this one. In People vs. Lee Kong, 18 the accused, with intent to kill, aimed

and fired at the spot where he thought the police officer would be. It turned out, however, that the latter was in a different
place. The accused failed to hit him and to achieve his intent. The Court convicted the accused of an attempt to kill. It held
that:
The fact that the officer was not at the spot where the attacking party imagined where he was, and where the bullet
pierced the roof, renders it no less an attempt to kill. It is well settled principle of criminal law in this country that
where the criminal result of an attempt is not accomplished simply because of an obstruction in the way of the thing to
be operated upon, and these facts are unknown to the aggressor at the time, the criminal attempt is committed.

In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the victim because the latter did

not pass by the place where he was lying-in wait, the court held him liable for attempted murder. The court explained that:
It was no fault of Strokes that the crime was not committed. . . . It only became impossible by reason of the
extraneous circumstance that Lane did not go that way; and further, that he was arrested and prevented from
committing the murder. This rule of the law has application only where it is inherently impossible to commit the crime.
It has no application to a case where it becomes impossible for the crime to be committed, either by outside
interference or because of miscalculation as to a supposed opportunity to commit the crime which fails to materialize;
in short it has no application to the case when the impossibility grows out of extraneous acts not within the control of
the party.
In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if there was nothing to rob. In

disposing of the case, the court quoted Mr. Justice Bishop, to wit:
It being an accepted truth that defendant deserves punishment by reason of his criminal intent, no one can seriously
doubt that the protection of the public requires the punishment to be administered, equally whether in the unseen
depths of the pocket, etc., what was supposed to exist was really present or not. The community suffers from the
mere alarm of crime. Again: Where the thing intended (attempted) as a crime and what is done is a sort to create
alarm, in other words, excite apprehension that the evil; intention will be carried out, the incipient act which the law of
attempt takes cognizance of is in reason committed.
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking that the latter was inside.

However, at that moment, the victim was in another part of the house. The court convicted the accused of attempted
murder.
The aforecited cases are the same cases which have been relied upon by Respondent to make this Court sustain the judgment of
attempted murder against Petitioner. However, we cannot rely upon these decisions to resolve the issue at hand. There is a difference
between the Philippine and the American laws regarding the concept and appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes and made the punishable.
Whereas, in the United States, the Code of Crimes and Criminal Procedure is silent regarding this matter. What it provided for were
attempts of the crimes enumerated in the said Code. Furthermore, in said jurisdiction, the impossibility of committing the offense is
merely a defense to an attempt charge. In this regard, commentators and the cases generally divide the impossibility defense into two
categories: legal versus factual impossibility. 22 In U.S. vs. Wilson 23 the Court held that:
. . . factual impossibility of the commission of the crime is not a defense. If the crime could have been committed had
the circumstances been as the defendant believed them to be, it is no defense that in reality the crime was impossible
of commission.
Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal liability for an attempt. In U.S.
vs. Berrigan, 24 the accused was indicated for attempting to smuggle letters into and out of prison. The law governing the

matter made the act criminal if done without knowledge and consent of the warden. In this case, the offender intended to
send a letter without the latter's knowledge and consent and the act was performed. However, unknown to him, the
transmittal was achieved with the warden's knowledge and consent. The lower court held the accused liable for attempt
but the appellate court reversed. It held unacceptable the contention of the state that "elimination of impossibility as a
defense to a charge of criminal attempt, as suggested by the Model Penal Code and the proposed federal legislation, is
consistent with the overwhelming modern view". In disposing of this contention, the Court held that the federal statutes did
not contain such provision, and thus, following the principle of legality, no person could be criminally liable for an act which
was not made criminal by law. Further, it said:
Congress has not yet enacted a law that provides that intent plus act plus conduct constitutes the offense of attempt
irrespective of legal impossibility until such time as such legislative changes in the law take place, this court will not
fashion a new non-statutory law of criminal attempt.
To restate, in the United States, where the offense sought to be committed is factually impossible or accomplishment, the offender
cannot escape criminal liability. He can be convicted of an attempt to commit the substantive crime where the elements of attempt are
satisfied. It appears, therefore, that the act is penalized, not as an impossible crime, but as an attempt to commit a crime. On the other
hand, where the offense is legally impossible of accomplishment, the actor cannot be held liable for any crime neither for an attempt
not for an impossible crime. The only reason for this is that in American law, there is no such thing as an impossible crime. Instead, it
only recognizes impossibility as a defense to a crime charge that is, attempt.

This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The impossibility of accomplishing the criminal
intent is not merely a defense, but an act penalized by itself. Furthermore, the phrase "inherent impossibility" that is found in Article 4(2)
of the Revised Penal Code makes no distinction between factual or physical impossibility and legal impossibility. Ubi lex non distinguit
nec nos distinguere debemos.
The factual situation in the case at bar present a physical impossibility which rendered the intended crime impossible of
accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code, such is sufficient to make the act an impossible crime.
To uphold the contention of respondent that the offense was Attempted Murder because the absence of Palangpangan was a
supervening cause independent of the actor's will, will render useless the provision in Article 4, which makes a person criminally liable
for an act "which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment . . ." In
that case all circumstances which prevented the consummation of the offense will be treated as an accident independent of the actor's
will which is an element of attempted and frustrated felonies.
WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of respondent Court of Appeals holding
Petitioner guilty of Attempted Murder is hereby MODIFIED. We hereby hold Petitioner guilty of an impossible crime as defined and
penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively. Having in mind the social danger and degree of
criminality shown by Petitioner, this Court sentences him to suffer the penalty of six (6) months ofarresto mayor, together with the
accessory penalties provided by the law, and to pay the costs.
SO ORDERED.
Feliciano, Regalado and Nocon, JJ., concur.
Narvasa, C.J., is on leave.

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 182239

March 16, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,


vs.
HERMIE M. JACINTO, Accused-Appellant.
DECISION
PEREZ, J.:
Once again, we recite the time-honored principle that the defense of alibi cannot prevail over the victims positive
identification of the accused as the perpetrator of the crime. 1 For it to prosper, the court must be convinced that there
was physical impossibility on the part of the accused to have been at the locus criminis at the time of the
commission of the crime.2
Nevertheless, a child in conflict with the law, whose judgment of conviction has become final and executory only
after his disqualification from availing of the benefits of suspended sentence on the ground that he/she has
exceeded the age limit of twenty-one (21) years, shall still be entitled to the right to restoration, rehabilitation, and
reintegration in accordance with Republic Act No. 9344, otherwise known as "An Act Establishing a Comprehensive
Juvenile Justice and Welfare System, Creating the Juvenile Justice and Welfare Council under the Department of
Justice, Appropriating Funds Therefor and for Other Purposes."
Convicted for the rape of five-year-old AAA,3 appellant Hermie M. Jacinto seeks before this Court the reversal of the
judgment of his conviction.4
The Facts

In an Information dated 20 March 20035 filed with the Regional Trial Court and docketed as Criminal Case No. 167913-141[1],6 appellant was accused of the crime of RAPE allegedly committed as follows:
That on or about the 28th day of January, 2003 at about 7:00 oclock in the evening more or less, at barangay xxx,
municipality of xxx, province of xxx and within the jurisdiction of this Honorable Court, [Hermie M. Jacinto], with lewd
design did then and there willfully, unlawfully and feloniously had carnal knowledge with one AAA, a five-year old
minor child.
CONTRARY TO LAW, with the qualifying/aggravating circumstance of minority, the victim being only five years old. 7
On 15 July 2003, appellant entered a plea of not guilty.8 During pre-trial,9 the defense admitted the existence of the
following documents: (1) birth certificate of AAA, showing that she was born on 3 December 1997; (2) police blotter
entry on the rape incident; and (3) medical certificate, upon presentation of the original or upon identification thereof
by the physician.
Trial ensued with the prosecution and the defense presenting witnesses to prove their respective versions of the
story.
Evidence for the Prosecution
The testimonies of AAA,10 her father FFF,11 and rebuttal witness Julito Apiki [Julito]12 may be summarized in the
following manner:
FFF and appellant have been neighbors since they were born. FFFs house is along the road. That of appellant lies
at the back approximately 80 meters from FFF. To access the road, appellant has to pass by FFFs house, the
frequency of which the latter describes to be "every minute [and] every hour." Also, appellant often visits FFF
because they were close friends. He bore no grudge against appellant prior to the incident. 13
AAA likewise knows appellant well. She usually calls him kuya. She sees him all the time playing at the basketball
court near her house, fetching water, and passing by her house on his way to the road. She and appellant used to
be friends until the incident.14
At about past 6 oclock in the evening of 28 January 2003, FFF sent his eight-year-old daughter CCC to the store of
Rudy Hatague to buy cigarettes. AAA followed CCC. When CCC returned without AAA, FFF was not alarmed. He
thought she was watching television at the house of her aunt Rita Lingcay [Rita]. 15
Julito went to the same store at around 6:20 in the evening to buy a bottle of Tanduay Rum. 16 At the store, he saw
appellant place AAA on his lap.17 He was wearing sleeveless shirt and a pair of short pants. 18 All of them left the
store at the same time.19 Julito proceeded to the house of Rita to watch television, while appellant, who held the
hand of AAA, went towards the direction of the "lower area or place."20
AAA recalled that appellant was wearing a chaleko (sando) and a pair of short pants21 when he held her hand while
on the road near the store.22 They walked towards the rice field near the house of spouses Alejandro and Gloria
Perocho [the Perochos].23 There he made her lie down on harrowed ground, removed her panty and boxed her on
the chest.24 Already half-naked from waist down,25 he mounted her, and, while her legs were pushed apart, pushed
his penis into her vagina and made a push and pull movement. 26 She felt pain and cried.27Afterwards, appellant left
and proceeded to the Perochos.28 She, in turn, went straight home crying.29
FFF heard AAA crying and calling his name from downstairs.30 She was without slippers.31 He found her face
greasy.32 There was mud on her head and blood was oozing from the back of her head. 33 He checked for any injury
and found on her neck a contusion that was already turning black.34 She had no underwear on and he saw white
substance and mud on her vagina.35 AAA told him that appellant brought her from the store36 to the grassy area at
the back of the house of the Perochos;37 that he threw away her pair of slippers, removed her panty, choked her and
boxed her breast;38 and that he proceeded thereafter to the Perochos. 39

True enough, FFF found appellant at the house of the Perochos.40 He asked the appellant what he did to
AAA.41Appellant replied that he was asked to buy rum at the store and that AAA followed him. 42 FFF went home to
check on his daughter,43 afterwhich, he went back to appellant, asked again,44 and boxed him.45
Meanwhile, at around 7:45 in the evening of even date, Julito was still watching television at the house of Rita. 46AAA
and her mother MMM arrived.47 AAA was crying.48 Julito pitied her, embraced her, and asked what happened to her,
to which she replied that appellant raped her.49 Julito left and found appellant at the Perochos.50 Julito asked
appellant, "Bads, did you really rape the child, the daughter of [MMM]?" but the latter ignored his
question.51 Appellants aunt, Gloria, told appellant that the policemen were coming to which the appellant responded,
"Wait a minute because I will wash the dirt of my elbow (sic) and my knees." 52 Julito did found the elbows and knees
of appellant with dirt.53
On that same evening, FFF and AAA proceeded to the police station to have the incident blottered. 54 FFF also had
AAA undergo a physical check up at the municipal health center.55 Dr. Bernardita M. Gaspar, M.D., Rural Health
Physician, issued a medical certificate56 dated 29 January 2003. It reads:
Injuries seen are as follows:
1. Multiple abrasions with erythema along the neck area.
2. Petechial hemorrhages on both per-orbital areas.
3. Hematoma over the left upper arm, lateral area
4. Hematoma over the upper anterior chest wall, midclavicular line
5. Abrasion over the posterior trunk, paravertebral area
6. Genital and peri-anal area soiled with debris and whitish mucoid-like material
7. Introitus is erythematous with minimal bleeding
8. Hymenal lacerations at the 5 oclock and 9 oclock position
Impression
MULTIPLE SOFT TISSUE INJURIES
HYMENAL LACERATIONS
Upon the recommendation of Dr. Gaspar,57 AAA submitted herself to another examination at the provincial hospital
on the following day. Dr. Christine Ruth B. Micabalo, Medical Officer III of the provincial hospital, attended to her and
issued a medico-legal certificate dated 29 January 2003, 58 the pertinent portion of which reads:
P.E. = Findings is consistent with Dr. Bernardita M. Gaspar findings except No. 6 and 7 there is no bleeding in this
time of examination. (sic)59
Evidence for the Defense
Interposing the defense of alibi, appellant gave a different version of the story. To corroborate his testimony, Luzvilla
Balucan [Luzvilla] and his aunt Gloria took the witness stand to affirm that he was at the Perochos at the time of the
commission of the crime.60 Luzvilla even went further to state that she actually saw Julito, not appellant, pick up AAA
on the road.61 In addition, Antonia Perocho [Antonia], sister-in-law of appellants aunt, Gloria, 62 testified on the
behavior of Julito after the rape incident was revealed. 63

Appellant claimed that he lives with his aunt, not with his parents whose house stands at the back of FFFs
house.64 He denied that there was a need to pass by the house of FFF in order to access the road or to fetch
water.65 He, however, admitted that he occasionally worked for FFF,66 and whenever he was asked to buy something
from the store, AAA always approached him.67
At about 8 oclock in the morning of 28 January 2003, appellant went to the Perochos to attend a birthday party. At
6:08 in the evening, while the visitors, including appellant and his uncle Alejandro Perocho [Alejandro], were
gathered together in a drinking session, appellants uncle sent him to the store to buy Tanduay Rum. Since the store
is only about 20 meters from the house, he was able to return after three (3) minutes. He was certain of the time
because he had a watch .68
Appellants aunt, Gloria, the lady of the house, confirmed that he was in her house attending the birthday party; and
that appellant went out between 6 and 7 in the evening to buy a bottle of Tanduay from the store. She recalled that
appellant was back around five (5) minutes later. She also observed that appellants white shorts and white
sleeveless shirt were clean.69
At 6:30 in the evening,70 Luzvilla, who was also at the party, saw appellant at the kitchen having a drink with his
uncle Alejandro and the rest of the visitors.71 She went out to relieve herself at the side of the tree beside the road
next to the house of the Perochos.72 From where she was, she saw Julito, who was wearing black short pants and
black T-shirt, carry AAA.73 AAAs face was covered and she was wiggling.74 This did not alarm her because she
thought it was just a game.75 Meanwhile, appellant was still in the kitchen when she returned. 76Around three (3)
minutes later, Luzvilla saw Julito, now in a white T-shirt, 77 running towards the house of Rita.78AAA was slowly
following behind.79 Luzvilla followed them.80 Just outside the house, Julito embraced AAA and asked what the
appellant did to her.81 The child did not answer.82
Luzvilla also followed FFF to the Perochos. She witnessed the punching incident and testified that appellant was
twice boxed by FFF. According to her, FFF tapped the left shoulder of the appellant, boxed him, and left. FFF came
in the second time and again boxed appellant. This time, he had a bolo pointed at appellant. Appellants uncle
Alejandro, a barangay councilor, and another Civilian Voluntary Organization (CVO) member admonished FFF.83
On sur-rebuttal, Antonia testified that, at 7 oclock in the evening, she was watching the television along with other
people at the house of Rita. Around 7:10, Julito, who was wearing only a pair of black short pants without a shirt on,
entered the house drunk. He paced back and forth. After 10 minutes, AAA came in crying. Julito tightly embraced
AAA and asked her what happened. AAA did not answer. Upon Antonias advice, Julito released her and went out of
the house.84
Appellant further testified that at past 7 oclock in the evening, FFF arrived, pointed a finger at him, brandished a
bolo, and accused him of molesting AAA. FFF left but returned at around 8 oclock in the evening. This time, he
boxed appellant and asked again why he molested his daughter.85
On 26 March 2004, the Regional Trial Court rendered its decision,86 the dispositive portion of which reads:
WHEREFORE, finding accused Hermie M. Jacinto guilty beyond reasonable doubt of rape committed upon a 5-year
old girl, the court sentences him to death and orders him to pay [AAA] P75,000.000 as rape indemnity and
P50,000.00 as moral damages. With costs87
The defense moved to reopen trial for reception of newly discovered evidence stating that appellant was apparently
born on 1 March 1985 and that he was only seventeen (17) years old when the crime was committed on 28 January
2003.88 The trial court appreciated the evidence and reduced the penalty from death to reclusion perpetua.89 Thus:
WHEREFORE, the judgment of the court imposing the death penalty upon the accused is amended in order to
consider the privileged mitigating circumstance of minority. The penalty impos[a]ble upon the accused, therefore[,] is
reduced to reclusion perpetua. xxx
Appealed to this Court, the case was transferred to the Court of Appeals for its disposition in view of the ruling
inPeople v. Mateo and the Internal Rules of the Supreme Court allowing an intermediate review by the Court of
Appeals of cases where the penalty imposed is death, reclusion perpetua, or life imprisonment.90

On 29 August 2007, the Court of Appeals AFFIRMED the decision of the trial court with the following
MODIFICATIONS:
xxx that Hermie M. Jacinto should suffer the Indeterminate penalty of from six (6) years and one (1) day to twelve
(12) years of prision mayor, as minimum, to seventeen (17) and four (4) months of reclusion temporal, as maximum.
Appellant Hermie M. Jacinto is ordered to indemnify the victim in the sum of P75,000.00 as civil indemnity,
P75,000.00 as moral damages, and P25,000.00 as exemplary damages and to pay the costs. 91
On 19 November 2007, the Court of Appeals gave due course to the appellants Notice of Appeal. 92 This Court
required the parties to simultaneously file their respective supplemental briefs. 93 Both parties manifested that they
have exhaustively discussed their positions in their respective briefs and would no longer file any supplement. 94
Before the Court of Appeals, appellant argued that "THE COURT A QUO GRAVELY ERRED IN CONVICTING
HEREIN ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF RAPE" 95 by invoking the principle
that "if the inculpatory facts and circumstances are capable of two or more reasonable explanations, one of which is
consistent with the innocence of the accused and the other with his guilt, then the evidence does not pass the test of
moral certainty and will not suffice to support a conviction." 96
Our Ruling
We sustain the judgment of conviction.
In the determination of the innocence or guilt of a person accused of rape, we consider the three well-entrenched
principles:
(1) an accusation for rape can be made with facility; it is difficult to prove but more difficult for the accused, though
innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape in which only two persons are usually
involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the
prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the
evidence for the defense.97
Necessarily, the credible, natural, and convincing testimony of the victim may be sufficient to convict the
accused.98 More so, when the testimony is supported by the medico-legal findings of the examining physician. 99
Further, the defense of alibi cannot prevail over the victims positive identification of the perpetrator of the
crime,100 except when it is established that it was physically impossible for the accused to have been at the locus
criminis at the time of the commission of the crime.101
I
A man commits rape by having carnal knowledge of a child under twelve (12) years of age even in the absence of
any of the following circumstances: (a) through force, threat or intimidation; (b) when the offended party is deprived
of reason or otherwise unconscious; or (c) by means of fraudulent machination or grave abuse of authority.102
That the crime of rape has been committed is certain. The vivid narration of the acts culminating in the insertion of
appellants organ into the vagina of five-year-old AAA and the medical findings of the physicians sufficiently proved
such fact.
AAA testified:
PROS. OMANDAM:
xxxx
Q You said Hermie laid you on the ground, removed your panty and boxed you, what else did he do to you?

A He mounted me.
Q When Hermie mounted you, was he facing you?
A Yes.
Q When he mounted you what did he do, did he move?
A He moved his ass, he made a push and pull movement.
Q When he made a push and pull movement, how were your legs positioned?
A They were apart.
Q Who pushed them apart?
A Hermie.
Q Did Hermie push anything at you?
A Yes.
Q What was that?
A His penis.
Q Where did he push his penis?
A To my vagina.
Q Was it painful?
A Yes.
Q What was painful?
A My vagina.
Q Did you cry?
A Yes.103
The straightforward and consistent answers to the questions, which were phrased and re-phrased in order to test
that AAA well understood the information elicited from her, said it all she had been raped. When a woman, more
so a minor, says so, she says in effect all that is essential to show that rape was committed. 104 Significantly, youth
and immaturity are normally badges of truth and honesty.105
Further, the medical findings and the testimony of Dr. Micabalo 106 revealed that the hymenal lacerations at 5 oclock
and 9 oclock positions could have been caused by the penetration of an object; that the redness of the introitus
could have been "the result of the repeated battering of the object;" and that such object could have been an erect
male organ.107
The credible testimony of AAA corroborated by the physicians finding of penetration conclusively established the
essential requisite of carnal knowledge.108

II
The real identity of the assailant and the whereabouts of the appellant at the time of the commission of the crime are
now in dispute.
The defense would want us to believe that it was Julito who defiled AAA, and that appellant was elsewhere when
the crime was committed.109
We should not, however, overlook the fact that a victim of rape could readily identify her assailant, especially when
he is not a stranger to her, considering that she could have a good look at him during the commission of the
crime.110 AAA had known appellant all her life. Moreover, appellant and AAA even walked together from the road
near the store to the situs criminus111 that it would be impossible for the child not to recognize the man who held her
hand and led her all the way to the rice field.
We see no reason to disturb the findings of the trial court on the unwavering testimony of AAA.
The certainty of the child, unusually intelligent for one so young, that it was accused, whom she called "kuya" and
who used to play basketball and fetch water near their house, and who was wearing a sleeveless shirt and shorts at
the time he raped her, was convincing and persuasive. The defense attempted to impute the crime to someone else
one Julito Apiki, but the child, on rebuttal, was steadfast and did not equivocate, asserting that it was accused who
is younger, and not Julito, who is older, who molested her.112
In a long line of cases, this Court has consistently ruled that the determination by the trial court of the credibility of
the witnesses deserves full weight and respect considering that it has "the opportunity to observe the witnesses
manner of testifying, their furtive glances, calmness, sighs and the scant or full realization of their oath," 113 unless it is
shown that material facts and circumstances have been "ignored, overlooked, misconstrued, or misinterpreted." 114
Further, as correctly observed by the trial court:
xxx His and his witness attempt to throw the court off the track by imputing the crime to someone else is xxx a vain
exercise in view of the private complainants positive identification of accused and other corroborative
circumstances. Accused also admitted that on the same evening, Julito Apiki, the supposed real culprit, asked him
"What is this incident, Pare?", thus corroborating the latters testimony that he confronted accused after hearing of
the incident from the child."115
On the other hand, we cannot agree with the appellant that the trial court erred in finding his denial and alibi weak
despite the presentation of witnesses to corroborate his testimony. Glaring inconsistencies were all over their
respective testimonies that even destroyed the credibility of the appellants very testimony.
Appellant testified that it was his uncle Alejandro Perocho who sent him to store to buy Tanduay; that he gave the
bottle to his uncle; and that they had already been drinking long before he bought Tanduay at the store.
This was contradicted by the testimony of his aunt Gloria, wife of his uncle Alejandro. On cross-examination, she
revealed that her husband was not around before, during, and after the rape incident because he was then at
work.116 He arrived from work only after FFF came to their house for the second time and boxed appellant. 117 It was
actually the fish vendor, not her husband, who asked appellant to buy Tanduay.118 Further, the drinking session
started only after the appellants errand to the store. 119
Neither was the testimony of Luzvilla credible enough to deserve consideration.
Just like appellant, Luzvilla testified that Alejandro joined the drinking session. This is contrary to Glorias statement
that her husband was at work.
Luzvillas testimony is likewise inconsistent with that of sur-rebuttal witness Antonia Perocho. Antonia recalled that
Julito arrived without a shirt on. This belied Luzvillas claim that Julito wore a white shirt on his way to the house of
Rita. In addition, while both the prosecution, as testified to by AAA and Julito, and the defense, as testified to by

Gloria, were consistent in saying that appellant wore a sleeveless shirt, Luzvillas recollection differ in that Julito
wore a T-shirt (colored black and later changed to white), and, thus, a short-sleeved shirt.
Also, contrary to Luzvillas story that she saw AAA walking towards Ritas house three (3) minutes after she returned
to the Perochos at 6:38 in the evening, Antonia recalled that AAA arrived at the house of Rita at 7:30. In this respect,
we find the trial courts appreciation in order. Thus:
xxx. The child declared that after being raped, she went straight home, crying, to tell her father that Hermie had
raped her. She did not first drop into the house of Lita Lingkay to cry among strangers who were watching TV, as
Luzvilla Balucan would have the court believe. When the child was seen at the house of Lita Lingkay by Julito Apiki
and Luzvilla Balucan, it was only later, after she had been brought there by her mother Brenda so that Lita Lingkay
could take a look at her just as Julito Apiki said.120
Above all, for alibi to prosper, it is necessary that the corroboration is credible, the same having been offered
preferably by disinterested witnesses. The defense failed thuswise. Its witnesses cannot qualify as such, "they being
related or were one way or another linked to each other." 121
Even assuming for the sake of argument that we consider the corroborations on his whereabouts, still, the defense
of alibi cannot prosper.
We reiterate, time and again, that the court must be convinced that it would be physically impossible for the accused
to have been at the locus criminis at the time of the commission of the crime.122
Physical impossibility refers to distance and the facility of access between the situs criminis and the location of the
accused when the crime was committed. He must demonstrate that he was so far away and could not have been
physically present at the scene of the crime and its immediate vicinity when the crime was committed. 123
In People v. Paraiso,124 the distance of two thousand meters from the place of the commission of the crime was
considered not physically impossible to reach in less than an hour even by foot. 125 Inasmuch as it would take the
accused not more than five minutes to rape the victim, this Court disregarded the testimony of the defense witness
attesting that the accused was fast asleep when she left to gather bamboo trees and returned several hours after.
She could have merely presumed that the accused slept all throughout. 126
In People v. Antivola,127 the testimonies of relatives and friends corroborating that of the appellant that he was in their
company at the time of the commission of the crime were likewise disregarded by this Court in the following manner:
Ruben Nicolas, the appellants part-time employer, and Marites Capalad, the appellants sister-in-law and co-worker,
in unison, vouched for the appellants physical presence in the fishpond at the time Rachel was raped. It is,
however, an established fact that the appellants house where the rape occurred, was a stones throw away
from the fishpond. Their claim that the appellant never left their sight the entire afternoon of December 4,
1997 is unacceptable. It was impossible for Marites to have kept an eye on the appellant for almost four hours,
since she testified that she, too, was very much occupied with her task of counting and recording the fishes being
harvested. Likewise, Mr. Nicolas, who, admittedly was 50 meters away from the fishpond, could not have focused
his entire attention solely on the appellant. It is, therefore, not farfetched that the appellant easily sneaked out
unnoticed, and along the way inveigled the victim, brought her inside his house and ravished her, then
returned to the fishpond as if he never left.128 (Emphasis supplied.)
1avvphi1

As in the cases above cited, the claim of the defense witnesses that appellant never left their sight, save from the 5minute errand to the store, is contrary to ordinary human experience. Moreover, considering that the farmland where
the crime was committed is just behind the house of the Perochos, it would take appellant only a few minutes to
bring AAA from the road near the store next to the Perochos down the farmland and consummate the crime. As
correctly pointed out by the Court of Appeals, appellant could have committed the rape after buying the bottle of
Tanduay and immediately returned to his uncles house. 129 Unfortunately, the testimonies of his corroborating
witnesses even bolstered the fact that he was within the immediate vicinity of the scene of the crime. 130
Clearly, the defense failed to prove that it was physically impossible for appellant to have been at the time and place
of the commission of the crime.

All considered, we find that the prosecution has sufficiently established the guilt of the appellant beyond reasonable
doubt.
III
In the determination of the imposable penalty, the Court of Appeals correctly considered Republic Act No.
9344(Juvenile Justice and Welfare Act of 2006) despite the commission of the crime three (3) years before it was
enacted on 28 April 2006.
We recognize its retroactive application following the rationale elucidated in People v. Sarcia:131
[Sec. 68 of Republic Act No. 9344]132 allows the retroactive application of the Act to those who have been convicted
and are serving sentence at the time of the effectivity of this said Act, and who were below the age of 18 years at the
time of the commission of the offense. With more reason, the Act should apply to this case wherein the
conviction by the lower court is still under review.133 (Emphasis supplied.)
Criminal Liability; Imposable Penalty
Sec. 6 of Republic Act No. 9344 exempts a child above fifteen (15) years but below eighteen (18) years of age from
criminal liability, unless the child is found to have acted with discernment, in which case, "the appropriate
proceedings" in accordance with the Act shall be observed. 134
We determine discernment in this wise:
Discernment is that mental capacity of a minor to fully appreciate the consequences of his unlawful act. 135 Such
capacity may be known and should be determined by taking into consideration all the facts and circumstances
afforded by the records in each case.136
xxx The surrounding circumstances must demonstrate that the minor knew what he was doing and that it was
wrong.137 Such circumstance includes the gruesome nature of the crime and the minors cunning and shrewdness. 138
In the present case, we agree with the Court of Appeals that: "(1) choosing an isolated and dark place to perpetrate
the crime, to prevent detection[;] and (2) boxing the victim xxx, to weaken her defense" are indicative of then
seventeen (17) year-old appellants mental capacity to fully understand the consequences of his unlawful action. 139
Nonetheless, the corresponding imposable penalty should be modified.
The birth certificate of AAA140 shows that she was born on 3 December 1997. Considering that she was only five (5)
years old when appellant defiled her on 28 January 2003, the law prescribing the death penalty when rape is
committed against a child below seven (7) years old141 applies.
The following, however, calls for the reduction of the penalty: (1) the prohibition against the imposition of the penalty
of death in accordance with Republic Act No. 9346;142 and (2) the privileged mitigating circumstance of minority of
the appellant, which has the effect of reducing the penalty one degree lower than that prescribed by law, pursuant to
Article 68 of the Revised Penal Code.143
Relying on People v. Bon,144 the Court of Appeals excluded death from the graduation of penalties provided in Article
71 of the Revised Penal Code.145 Consequently, in its appreciation of the privileged mitigating circumstance of
minority of appellant, it lowered the penalty one degree from reclusion perpetua and sentenced appellant to suffer
the indeterminate penalty of six (6) years and one (1) day to twelve (12) years of prision mayor, as minimum, to
seventeen (17) years and four (4) months of reclusion temporal, in its medium period, as maximum.146
We differ.
In a more recent case,147 the Court En Banc, through the Honorable Justice Teresita J. Leonardo-de Castro, clarified:

Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the penalty next lower
than that prescribed by law shall be imposed, but always in the proper period. However, for purposes of
determining the proper penalty because of the privileged mitigating circumstance of minority, the penalty of
death is still the penalty to be reckoned with. Thus, the proper imposable penalty for the accused-appellant
is reclusion perpetua.148 (Emphasis supplied.)
Accordingly, appellant should be meted the penalty of reclusion perpetua.
Civil Liability
We have consistently ruled that:
The litmus test xxx in the determination of the civil indemnity is the heinous character of the crime committed, which
would have warranted the imposition of the death penalty, regardless of whether the penalty actually imposed is
reduced to reclusion perpetua.149
Likewise, the fact that the offender was still a minor at the time he committed the crime has no bearing on the gravity
and extent of injury suffered by the victim and her family.150 The respective awards of civil indemnity and moral
damages in the amount of P75,000.00 each are, therefore, proper.151
Accordingly, despite the presence of the privileged mitigating circumstance of minority which effectively lowered the
penalty by one degree, we affirm the damages awarded by the Court of Appeals in the amount of P75,000.00 as
civil indemnity and P75,000.00 as moral damages. And, consistent with prevailing jurisprudence, 152 the amount of
exemplary damages should be increased from P25,000.00 to P30,000.00.
Automatic Suspension of Sentence; Duration; Appropriate Disposition after the Lapse of the Period of Suspension
of Sentence
Republic Act No. 9344 warrants the suspension of sentence of a child in conflict with the law notwithstanding that
he/she has reached the age of majority at the time the judgment of conviction is pronounced. Thus:
SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of age at the time of
the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any
civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of
conviction, the court shall place the child in conflict with the law under suspended sentence, without need of
application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is
already eighteen (18) years of age or more at the time of the pronouncement of his/her guilt.(Emphasis
supplied.)
xxxx
Applying Declarador v. Gubaton,153 which was promulgated on 18 August 2006, the Court of Appeals held that,
consistent with Article 192 of Presidential Decree No. 603, as amended, 154 the aforestated provision does not apply
to one who has been convicted of an offense punishable by death, reclusion perpetua or life imprisonment.155
Meanwhile, on 10 September 2009, this Court promulgated the decision in Sarcia,156 overturning the ruling
inGubaton. Thus:
The xxx provision makes no distinction as to the nature of the offense committed by the child in conflict with the law,
unlike P.D. No. 603 and A.M. No. 02-1-18-SC. The said P.D. and Supreme Court (SC) Rule provide that the benefit
of suspended sentence would not apply to a child in conflict with the law if, among others, he/she has been
convicted of an offense punishable by death, reclusion perpetua or life imprisonment. In construing Sec. 38 of R.A.
No. 9344, the Court is guided by the basic principle of statutory construction that when the law does not distinguish,
we should not distinguish. Since R.A. No. 9344 does not distinguish between a minor who has been convicted of a
capital offense and another who has been convicted of a lesser offense, the Court should also not distinguish and
should apply the automatic suspension of sentence to a child in conflict with the law who has been found guilty of a
heinous crime.157

The legislative intent reflected in the Senate deliberations158 on Senate Bill No. 1402 (Juvenile Justice and
Delinquency Prevention Act of 2005) further strengthened the new position of this Court to cover heinous crimes in
the application of the provision on the automatic suspension of sentence of a child in conflict with the law. The
pertinent portion of the deliberation reads:
If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or may have committed a
serious offense, and may have acted with discernment, then the child could be recommended by the Department of
Social Welfare and Development (DSWD), by the Local Council for the Protection of Children (LCPC), or by
[Senator Miriam Defensor-Santiagos] proposed Office of Juvenile Welfare and Restoration to go through a judicial
proceeding; but the welfare, best interests, and restoration of the child should still be a primordial or primary
consideration. Even in heinous crimes, the intention should still be the childs restoration, rehabilitation and
reintegration. xxx (Italics supplied in Sarcia.)159
On 24 November 2009, the Court En Banc promulgated the Revised Rule on Children in Conflict with the Law,which
reflected the same position.160
These developments notwithstanding, we find that the benefits of a suspended sentence can no longer apply to
appellant. The suspension of sentence lasts only until the child in conflict with the law reaches the maximum age of
twenty-one (21) years.161 Section 40162 of the law and Section 48163 of the Rule are clear on the matter. Unfortunately,
appellant is now twenty-five (25) years old.
Be that as it may, to give meaning to the legislative intent of the Act, the promotion of the welfare of a child in conflict
with the law should extend even to one who has exceeded the age limit of twenty-one (21) years, so long as he/she
committed the crime when he/she was still a child. The offender shall be entitled to the right to restoration,
rehabilitation and reintegration in accordance with the Act in order that he/she is given the chance to live a normal
life and become a productive member of the community. The age of the child in conflict with the law at the time of
the promulgation of the judgment of conviction is not material. What matters is that the offender committed the
offense when he/she was still of tender age.
Thus, appellant may be confined in an agricultural camp or any other training facility in accordance with Sec. 51 of
Republic Act No. 9344.164
Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. A child in conflict
with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of
confinement in a regular penal institution, in an agricultural camp and other training facilities that may be
established, maintained, supervised and controlled by the BUCOR, in coordination with the DSWD.
Following the pronouncement in Sarcia,165 the case shall be remanded to the court of origin to effect appellants
confinement in an agricultrual camp or other training facility.
WHEREFORE, the Decision dated 29 August 2007 of the Court of Appeals in CA-G.R. CR HC No. 00213 finding
appellant Hermie M. Jacinto guilty beyond reasonable doubt of qualified rape is AFFIRMED with the
followingMODIFICATIONS: (1) the death penalty imposed on the appellant is reduced to reclusion perpetua; and (2)
appellant is ordered to pay the victim P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P30,000.00
as exemplary damages. The case is hereby REMANDED to the court of origin for its appropriate action in
accordance with Section 51 of Republic Act No. 9344.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice
WE CONCUR:
Republic of the Philippines
SUPREME COURT
Manila

EN BANC
G.R. No. 135981

January 15, 2004

PEOPLE OF THE PHILIPPINES, appellee,


vs.
MARIVIC GENOSA, appellant.

DECISION

PANGANIBAN, J.:
Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the "battered
woman syndrome" (BWS), which allegedly constitutes self-defense. Under the proven facts, however, she is not
entitled to complete exoneration because there was no unlawful aggression -- no immediate and unexpected attack
on her by her batterer-husband at the time she shot him.
Absent unlawful aggression, there can be no self-defense, complete or incomplete.
But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of cumulative provocation
that broke down her psychological resistance and self-control. This "psychological paralysis" she suffered
diminished her will power, thereby entitling her to the mitigating factor under paragraphs 9 and 10 of Article 13 of the
Revised Penal Code.
In addition, appellant should also be credited with the extenuating circumstance of having acted upon an impulse so
powerful as to have naturally produced passion and obfuscation. The acute battering she suffered that fatal night in
the hands of her batterer-spouse, in spite of the fact that she was eight months pregnant with their child,
overwhelmed her and put her in the aforesaid emotional and mental state, which overcame her reason and impelled
her to vindicate her life and her unborn child's.
Considering the presence of these two mitigating circumstances arising from BWS, as well as the benefits of the
Indeterminate Sentence Law, she may now apply for and be released from custody on parole, because she has
already served the minimum period of her penalty while under detention during the pendency of this case.
The Case
For automatic review before this Court is the September 25, 1998 Decision 1 of the Regional Trial Court (RTC) of
Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond reasonable doubt of
parricide. The decretal portion of the Decision reads:
"WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic Genosa y
Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as provided under Article 246 of the
Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a generic
aggravating circumstance and none of mitigating circumstance, hereby sentences the accused with the
penalty of DEATH.
"The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand pesos
(P50,000.00), Philippine currency as indemnity and another sum of fifty thousand pesos (P50,000.00),
Philippine currency as moral damages."2

The Information3 charged appellant with parricide as follows:


"That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province of
Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent
to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack,
assault, hit and wound one BEN GENOSA, her legitimate husband, with the use of a hard deadly weapon,
which the accused had provided herself for the purpose, [causing] the following wounds, to wit:
'Cadaveric spasm.
'Body on the 2nd stage of decomposition.
'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from its sockets and
tongue slightly protrudes out of the mouth.
'Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in] laceration
of the brain, spontaneous rupture of the blood vessels on the posterior surface of the brain,
laceration of the dura and meningeal vessels producing severe intracranial hemorrhage.
'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the epidermis.
'Abdomen distended w/ gas. Trunk bloated.'
which caused his death."4
With the assistance of her counsel,5 appellant pleaded not guilty during her arraignment on March 3, 1997. 6 In due
course, she was tried for and convicted of parricide.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) summarizes the prosecution's version of the facts in this wise:
"Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City. Thereafter, they
lived with the parents of Ben in their house at Isabel, Leyte. For a time, Ben's younger brother, Alex, and his
wife lived with them too. Sometime in 1995, however, appellant and Ben rented from Steban Matiga a house
at Barangay Bilwang, Isabel, Leyte where they lived with their two children, namely: John Marben and Earl
Pierre.
"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their salary. They each
had two (2) bottles of beer before heading home. Arturo would pass Ben's house before reaching his. When
they arrived at the house of Ben, he found out that appellant had gone to Isabel, Leyte to look for him. Ben
went inside his house, while Arturo went to a store across it, waiting until 9:00 in the evening for
the masiao runner to place a bet. Arturo did not see appellant arrive but on his way home passing the side of
the Genosas' rented house, he heard her say 'I won't hesitate to kill you' to which Ben replied 'Why kill me
when I am innocent?' That was the last time Arturo saw Ben alive. Arturo also noticed that since then, the
Genosas' rented house appeared uninhabited and was always closed.
"On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living about fifty
(50) meters from her house, to look after her pig because she was going to Cebu for a pregnancy check-up.
Appellant likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie Dayandayan who
unfortunately had no money to buy it.
"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to Ormoc when he
saw appellant going out of their house with her two kids in tow, each one carrying a bag, locking the gate

and taking her children to the waiting area where he was. Joseph lived about fifty (50) meters behind the
Genosas' rented house. Joseph, appellant and her children rode the same bus to Ormoc. They had no
conversation as Joseph noticed that appellant did not want to talk to him.
"On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor emanating from his
house being rented by Ben and appellant. Steban went there to find out the cause of the stench but the
house was locked from the inside. Since he did not have a duplicate key with him, Steban destroyed the
gate padlock with a borrowed steel saw. He was able to get inside through the kitchen door but only after
destroying a window to reach a hook that locked it. Alone, Steban went inside the unlocked bedroom where
the offensive smell was coming from. There, he saw the lifeless body of Ben lying on his side on the bed
covered with a blanket. He was only in his briefs with injuries at the back of his head. Seeing this, Steban
went out of the house and sent word to the mother of Ben about his son's misfortune. Later that day,
Iluminada Genosa, the mother of Ben, identified the dead body as that of [her] son.
"Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police station at
Isabel, Leyte, received a report regarding the foul smell at the Genosas' rented house. Together with SPO1
Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house and went inside the
bedroom where they found the dead body of Ben lying on his side wrapped with a bedsheet. There was
blood at the nape of Ben who only had his briefs on. SPO3 Acodesin found in one corner at the side of
anaparador a metal pipe about two (2) meters from where Ben was, leaning against a wall. The metal pipe
measured three (3) feet and six (6) inches long with a diameter of one and half (1 1/2) inches. It had an open
end without a stop valve with a red stain at one end. The bedroom was not in disarray.
"About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken outside at the
back of the house before the postmortem examination was conducted by Dr. Cerillo in the presence of the
police. A municipal health officer at Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo found that
Ben had been dead for two to three days and his body was already decomposing. The postmortem
examination of Dr. Cerillo yielded the findings quoted in the Information for parricide later filed against
appellant. She concluded that the cause of Ben's death was 'cardiopulmonary arrest secondary to severe
intracranial hemorrhage due to a depressed fracture of the occipital [bone].'
"Appellant admitted killing Ben. She testified that going home after work on November 15, 1995, she got
worried that her husband who was not home yet might have gone gambling since it was a payday. With her
cousin Ecel Arao, appellant went to look for Ben at the marketplace and taverns at Isabel, Leyte but did not
find him there. They found Ben drunk upon their return at the Genosas' house. Ecel went home despite
appellant's request for her to sleep in their house.
"Then, Ben purportedly nagged appellant for following him, even challenging her to a fight. She allegedly
ignored him and instead attended to their children who were doing their homework. Apparently disappointed
with her reaction, Ben switched off the light and, with the use of a chopping knife, cut the television antenna
or wire to keep her from watching television. According to appellant, Ben was about to attack her so she ran
to the bedroom, but he got hold of her hands and whirled her around. She fell on the side of the bed and
screamed for help. Ben left. At this point, appellant packed his clothes because she wanted him to leave.
Seeing his packed clothes upon his return home, Ben allegedly flew into a rage, dragged appellant outside
of the bedroom towards a drawer holding her by the neck, and told her 'You might as well be killed so
nobody would nag me.' Appellant testified that she was aware that there was a gun inside the drawer but
since Ben did not have the key to it, he got a three-inch long blade cutter from his wallet. She however,
'smashed' the arm of Ben with a pipe, causing him to drop the blade and his wallet. Appellant then 'smashed'
Ben at his nape with the pipe as he was about to pick up the blade and his wallet. She thereafter ran inside
the bedroom.
"Appellant, however, insisted that she ended the life of her husband by shooting him. She supposedly
'distorted' the drawer where the gun was and shot Ben. He did not die on the spot, though, but in the
bedroom."7 (Citations omitted)
Version of the Defense
Appellant relates her version of the facts in this manner:

"1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her marriage, Marivic
had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor of Science in Business
Administration, and was working, at the time of her husband's death, as a Secretary to the Port Managers in
Ormoc City. The couple had three (3) children: John Marben, Earl Pierre and Marie Bianca.
"2. Marivic and Ben had known each other since elementary school; they were neighbors in Bilwang; they
were classmates; and they were third degree cousins. Both sets of parents were against their relationship,
but Ben was persistent and tried to stop other suitors from courting her. Their closeness developed as he
was her constant partner at fiestas.
"3. After their marriage, they lived first in the home of Ben's parents, together with Ben's brother, Alex, in
Isabel, Leyte. In the first year of marriage, Marivic and Ben 'lived happily'. But apparently, soon thereafter,
the couple would quarrel often and their fights would become violent.
"4. Ben's brother, Alex, testified for the prosecution that he could not remember when Ben and Marivic
married. He said that when Ben and Marivic quarreled, generally when Ben would come home drunk,
Marivic would inflict injuries on him. He said that in one incident in 1993 he saw Marivic holding a kitchen
knife after Ben had shouted for help as his left hand was covered with blood. Marivic left the house but after
a week, she returned apparently having asked for Ben's forgiveness. In another incident in May 22, 1994,
early morning, Alex and his father apparently rushed to Ben's aid again and saw blood from Ben's forehead
and Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently again asked
for Ben's forgiveness.
"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that Ben and Marivic married in '1986
or 1985 more or less here in Fatima, Ormoc City.' She said as the marriage went along, Marivic became
'already very demanding. Mrs. Iluminada Genosa said that after the birth of Marivic's two sons, there were
'three (3) misunderstandings.' The first was when Marivic stabbed Ben with a table knife through his left arm;
the second incident was on November 15, 1994, when Marivic struck Ben on the forehead 'using a sharp
instrument until the eye was also affected. It was wounded and also the ear' and her husband went to Ben to
help; and the third incident was in 1995 when the couple had already transferred to the house in Bilwang
and she saw that Ben's hand was plastered as 'the bone cracked.'
"Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.
"5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 'After we collected our salary,
we went to the cock-fighting place of ISCO.' They stayed there for three (3) hours, after which they went to
'Uniloks' and drank beer allegedly only two (2) bottles each. After drinking they bought barbeque and went
to the Genosa residence. Marivic was not there. He stayed a while talking with Ben, after which he went
across the road to wait 'for the runner and the usher of the masiao game because during that time, the
hearing on masiao numbers was rampant. I was waiting for the ushers and runners so that I can place my
bet.' On his way home at about 9:00 in the evening, he heard the Genosas arguing. They were quarreling
loudly. Outside their house was one 'Fredo' who is used by Ben to feed his fighting cocks. Basobas'
testimony on the root of the quarrel, conveniently overheard by him was Marivic saying 'I will never hesitate
to kill you', whilst Ben replied 'Why kill me when I am innocent.' Basobas thought they were joking.
"He did not hear them quarreling while he was across the road from the Genosa residence. Basobas
admitted that he and Ben were always at the cockpits every Saturday and Sunday. He claims that he once
told Ben 'before when he was stricken with a bottle by Marivic Genosa' that he should leave her and that
Ben would always take her back after she would leave him 'so many times'.
"Basobas could not remember when Marivic had hit Ben, but it was a long time that they had been
quarreling. He said Ben 'even had a wound' on the right forehead. He had known the couple for only one (1)
year.
"6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a habitual drinker.
She said he provoked her, he would slap her, sometimes he would pin her down on the bed, and sometimes
beat her.

"These incidents happened several times and she would often run home to her parents, but Ben would
follow her and seek her out, promising to change and would ask for her forgiveness. She said after she
would be beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These
doctors would enter the injuries inflicted upon her by Ben into their reports. Marivic said Ben would beat her
or quarrel with her every time he was drunk, at least three times a week.
"7. In her defense, witnesses who were not so closely related to Marivic, testified as to the abuse and
violence she received at the hands of Ben.
'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on November 15,
1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting for help and through the open
jalousies, he saw the spouses 'grappling with each other'. Ben had Marivic in a choke hold. He did not do
anything, but had come voluntarily to testify. (Please note this was the same night as that testified to by
Arturo Busabos.8)
'7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified that he heard
his neighbor Marivic shouting on the night of November 15, 1995. He peeped through the window of his hut
which is located beside the Genosa house and saw 'the spouses grappling with each other then Ben
Genosa was holding with his both hands the neck of the accused, Marivic Genosa'. He said after a while,
Marivic was able to extricate he[r]self and enter the room of the children. After that, he went back to work as
he was to go fishing that evening. He returned at 8:00 the next morning. (Again, please note that this was
the same night as that testified to by Arturo Basobas).
'7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in Isabel, Leyte. His
house was located about fifty (50) meters from theirs. Marivic is his niece and he knew them to be living
together for 13 or 14 years. He said the couple was always quarreling. Marivic confided in him that Ben
would pawn items and then would use the money to gamble. One time, he went to their house and they
were quarreling. Ben was so angry, but would be pacified 'if somebody would come.' He testified that while
Ben was alive 'he used to gamble and when he became drunk, he would go to our house and he will say,
'Teody' because that was what he used to call me, 'mokimas ta,' which means 'let's go and look for a whore.'
Mr. Sarabia further testified that Ben 'would box his wife and I would see bruises and one time she ran to
me, I noticed a wound (the witness pointed to his right breast) as according to her a knife was stricken to
her.' Mr. Sarabia also said that once he saw Ben had been injured too. He said he voluntarily testified only
that morning.
'7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the afternoon of
November 15, 1995, Marivic went to her house and asked her help to look for Ben. They searched in the
market place, several taverns and some other places, but could not find him. She accompanied Marivic
home. Marivic wanted her to sleep with her in the Genosa house 'because she might be battered by her
husband.' When they got to the Genosa house at about 7:00 in the evening, Miss Arano said that 'her
husband was already there and was drunk.' Miss Arano knew he was drunk 'because of his staggering
walking and I can also detect his face.' Marivic entered the house and she heard them quarrel noisily.
(Again, please note that this is the same night as that testified to by Arturo Basobas) Miss Arano testified
that this was not the first time Marivic had asked her to sleep in the house as Marivic would be afraid every
time her husband would come home drunk. At one time when she did sleep over, she was awakened at
10:00 in the evening when Ben arrived because the couple 'were very noisy in the sala and I had heard
something was broken like a vase.' She said Marivic ran into her room and they locked the door. When Ben
couldn't get in he got a chair and a knife and 'showed us the knife through the window grill and he scared
us.' She said that Marivic shouted for help, but no one came. On cross-examination, she said that when she
left Marivic's house on November 15, 1995, the couple were still quarreling.
'7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at PHILPHOS, Isabel,
Leyte. Marivic was his patient 'many times' and had also received treatment from other doctors. Dr. Caing
testified that from July 6, 1989 until November 9, 1995, there were six (6) episodes of physical injuries
inflicted upon Marivic. These injuries were reported in his Out-Patient Chart at the PHILPHOS Hospital. The
prosecution admitted the qualifications of Dr. Caing and considered him an expert witness.'
xxx

xxx

xxx

'Dr. Caing's clinical history of the tension headache and hypertention of Marivic on twenty-three (23)
separate occasions was marked at Exhibits '2' and '2-B.' The OPD Chart of Marivic at the Philphos Clinic
which reflected all the consultations made by Marivic and the six (6) incidents of physical injuries
reportedwas marked as Exhibit '3.'
"On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether the injuries
were directly related to the crime committed. He said it is only a psychiatrist who is qualified to examine the
psychological make-up of the patient, 'whether she is capable of committing a crime or not.'
'7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified that about two
(2) months before Ben died, Marivic went to his office past 8:00 in the evening. She sought his help to settle
or confront the Genosa couple who were experiencing 'family troubles'. He told Marivic to return in the
morning, but he did not hear from her again and assumed 'that they might have settled with each other or
they might have forgiven with each other.'
xxx

xxx

xxx

"Marivic said she did not provoke her husband when she got home that night it was her husband who began
the provocation. Marivic said she was frightened that her husband would hurt her and she wanted to make
sure she would deliver her baby safely. In fact, Marivic had to be admitted later at the Rizal Medical Centre
as she was suffering from eclampsia and hypertension, and the baby was born prematurely on December 1,
1995.
"Marivic testified that during her marriage she had tried to leave her husband at least five (5) times, but that
Ben would always follow her and they would reconcile. Marivic said that the reason why Ben was violent and
abusive towards her that night was because 'he was crazy about his recent girlfriend, Lulu x x x Rubillos.'
"On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the bedroom; that
their quarrels could be heard by anyone passing their house; that Basobas lied in his testimony; that she left
for Manila the next day, November 16, 1995; that she did not bother anyone in Manila, rented herself a
room, and got herself a job as a field researcher under the alias 'Marvelous Isidro'; she did not tell anyone
that she was leaving Leyte, she just wanted to have a safe delivery of her baby; and that she was arrested in
San Pablo, Laguna.
'Answering questions from the Court, Marivic said that she threw the gun away; that she did not know what
happened to the pipe she used to 'smash him once'; that she was wounded by Ben on her wrist with the
bolo; and that two (2) hours after she was 'whirled' by Ben, he kicked her 'ass' and dragged her towards the
drawer when he saw that she had packed his things.'
"9. The body of Ben Genosa was found on November 18, 1995 after an investigation was made of the foul
odor emitting from the Genosa residence. This fact was testified to by all the prosecution witnesses and
some defense witnesses during the trial.
"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at the time of the
incident, and among her responsibilities as such was to take charge of all medico-legal cases, such as the
examination of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic pathologist. She merely
took the medical board exams and passed in 1986. She was called by the police to go to the Genosa
residence and when she got there, she saw 'some police officer and neighbor around.' She saw Ben
Genosa, covered by a blanket, lying in a semi-prone position with his back to the door. He was wearing only
a brief.
xxxxxxxxx
"Dra. Cerillo said that 'there is only one injury and that is the injury involving the skeletal area of the head'
which she described as a 'fracture'. And that based on her examination, Ben had been dead 2 or 3 days.
Dra. Cerillo did not testify as to what caused his death.

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


"11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her with the crime of
PARRICIDE committed 'with intent to kill, with treachery and evidence premeditation, x x x wilfully, unlawfully
and feloniously attack, assault, hit and wound x x x her legitimate husband, with the use of a hard deadly
weapon x x x which caused his death.'
"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September 1997, 12
November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6 August 1998.
"13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon. Fortunito L.
Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a JUDGMENT finding Marivic guilty
'beyond reasonable doubt' of the crime of parricide, and further found treachery as an aggravating
circumstance, thus sentencing her to the ultimate penalty of DEATH.
"14. The case was elevated to this Honorable Court upon automatic review and, under date of 24 January
2000, Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as counsel, attaching
thereto, as a precautionary measure, two (2) drafts of Appellant's Briefs he had prepared for Marivic which,
for reasons of her own, were not conformed to by her.
"The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of appearance of
undersigned counsel.
"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to the Chief
Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial
Records Office, wherein she submitted her 'Brief without counsels' to the Court.
"This letter was stamp-received by the Honorable Court on 4 February 2000.
"16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable Court on 19
February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION praying that the Honorable
Court allow the exhumation of Ben Genosa and the re-examination of the cause of his death; allow the
examination of Marivic Genosa by qualified psychologists and psychiatrists to determine her state of mind at
the time she killed her husband; and finally, to allow a partial re-opening of the case a quo to take the
testimony of said psychologists and psychiatrists.
"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only qualified
forensic pathologist in the country, who opined that the description of the death wound (as culled from the
post-mortem findings, Exhibit 'A') is more akin to a gunshot wound than a beating with a lead pipe.
"17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivic's URGENT
OMNIBUS MOTION and remanded the case 'to the trial court for the reception of expert psychological
and/or psychiatric opinion on the 'battered woman syndrome' plea, within ninety (90) days from notice, and,
thereafter to forthwith report to this Court the proceedings taken, together with the copies of the TSN and
relevant documentary evidence, if any, submitted.'
"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon. Fortunito L.
Madrona, RTC-Branch 35, Ormoc City.
"Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed Marivic Genosa.
Dra. Dayan informed the Court that interviews were done at the Penal Institution in 1999, but that the clinical
interviews and psychological assessment were done at her clinic.
"Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her own private
clinic and connected presently to the De La Salle University as a professor. Before this, she was the Head of
the Psychology Department of the Assumption College; a member of the faculty of Psychology at the Ateneo
de Manila University and St. Joseph's College; and was the counseling psychologist of the National Defense

College. She has an AB in Psychology from the University of the Philippines, a Master of Arts in Clinical
[Counseling], Psychology from the Ateneo, and a PhD from the U.P. She was the past president of the
Psychological Association of the Philippines and is a member of the American Psychological Association.
She is the secretary of the International Council of Psychologists from about 68 countries; a member of the
Forensic Psychology Association; and a member of the ASEAN [Counseling] Association. She is actively
involved with the Philippine Judicial Academy, recently lecturing on the socio-demographic and
psychological profile of families involved in domestic violence and nullity cases. She was with the Davide
Commission doing research about Military Psychology. She has written a book entitled 'Energy Global
Psychology' (together with Drs. Allan Tan and Allan Bernardo). The Genosa case is the first time she has
testified as an expert on battered women as this is the first case of that nature.
"Dra. Dayan testified that for the research she conducted, on the socio-demographic and psychological
profile of families involved in domestic violence, and nullity cases, she looked at about 500 cases over a
period of ten (10) years and discovered that 'there are lots of variables that cause all of this marital conflicts,
from domestic violence to infidelity, to psychiatric disorder.'
"Dra. Dayan described domestic violence to comprise of 'a lot of incidents of psychological abuse, verbal
abuse, and emotional abuse to physical abuse and also sexual abuse.'
xxx

xxx

xxx

"Dra. Dayan testified that in her studies, 'the battered woman usually has a very low opinion of herself. She
has a self-defeating and self-sacrificing characteristics. x x x they usually think very lowly of themselves and
so when the violence would happen, they usually think that they provoke it, that they were the one who
precipitated the violence, they provoke their spouse to be physically, verbally and even sexually abusive to
them.' Dra. Dayan said that usually a battered x x x comes from a dysfunctional family or from 'broken
homes.'
"Dra. Dayan said that the batterer, just like the battered woman, 'also has a very low opinion of himself. But
then emerges to have superiority complex and it comes out as being very arrogant, very hostile, very
aggressive and very angry. They also had (sic) a very low tolerance for frustrations. A lot of times they are
involved in vices like gambling, drinking and drugs. And they become violent.' The batterer also usually
comes from a dysfunctional family which over-pampers them and makes them feel entitled to do anything.
Also, they see often how their parents abused each other so 'there is a lot of modeling of aggression in the
family.'
"Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave her husband:
poverty, self-blame and guilt that she provoked the violence, the cycle itself which makes her hope her
husband will change, the belief in her obligations to keep the family intact at all costs for the sake of the
children.
xxx

xxx

xxx

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

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xxx

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

xxx

xxx

xxx

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

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xxx

"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared and
testified before RTC-Branch 35, Ormoc City.
"Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine Board of
Psychiatry and a Fellow of the Philippine Psychiatry Association. He was in the practice of psychiatry for
thirty-eight (38) years. Prior to being in private practice, he was connected with the Veterans Memorial
Medical Centre where he gained his training on psychiatry and neurology. After that, he was called to active
duty in the Armed Forces of the Philippines, assigned to the V. Luna Medical Center for twenty six (26)
years. Prior to his retirement from government service, he obtained the rank of Brigadier General. He
obtained his medical degree from the University of Santo Tomas. He was also a member of the World
Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical Society; and the
Philippine Association of Military Surgeons.
"He authored 'The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy from the
Period 1954 1978' which was presented twice in international congresses. He also authored 'The Mental
Health of the Armed Forces of the Philippines 2000', which was likewise published internationally and locally.
He had a medical textbook published on the use of Prasepam on a Parke-Davis grant; was the first to use
Enanthate (siquiline), on an E.R. Squibb grant; and he published the use of the drug Zopiclom in 1985-86.
"Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and neurology deals
with the ailment of the brain and spinal cord enlarged. Psychology, on the other hand, is a bachelor degree
and a doctorate degree; while one has to finish medicine to become a specialist in psychiatry.
"Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already encountered a
suit involving violent family relations, and testified in a case in 1964. In the Armed Forces of the Philippines,
violent family disputes abound, and he has seen probably ten to twenty thousand cases. In those days, the
primordial intention of therapy was reconciliation. As a result of his experience with domestic violence cases,
he became a consultant of the Battered Woman Office in Quezon City under Atty. Nenita Deproza.
"As such consultant, he had seen around forty (40) cases of severe domestic violence, where there is
physical abuse: such as slapping, pushing, verbal abuse, battering and boxing a woman even to an
unconscious state such that the woman is sometimes confined. The affliction of Post-Traumatic Stress
Disorder 'depends on the vulnerability of the victim.' Dr. Pajarillo said that if the victim is not very healthy,
perhaps one episode of violence may induce the disorder; if the psychological stamina and physiologic
constitutional stamina of the victim is stronger, 'it will take more repetitive trauma to precipitate the posttraumatic stress disorder and this x x x is very dangerous.'
"In psychiatry, the post-traumatic stress disorder is incorporated under the 'anxiety neurosis or neurologic
anxcietism.' It is produced by 'overwhelming brutality, trauma.'
xxx

xxx

xxx

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

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xxx

"A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable, and she
is irritable and restless. She tends to become hard-headed and persistent. She has higher sensitivity and
her 'self-world' is damaged.
"Dr. Pajarillo said that an abnormal family background relates to an individual's illness, such as the
deprivation of the continuous care and love of the parents. As to the batterer, he normally 'internalizes what
is around him within the environment.' And it becomes his own personality. He is very competitive; he is
aiming high all the time; he is so macho; he shows his strong faade 'but in it there are doubts in himself and
prone to act without thinking.'
xxx

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xxx

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

xxx

xxx

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

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xxx

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

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xxx

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

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xxx

"20. No rebuttal evidence or testimony was presented by either the private or the public prosecutor. Thus, in
accord with the Resolution of this Honorable Court, the records of the partially re-opened trial a quo were
elevated."9
Ruling of the Trial Court
Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution evidence that
appellant had killed the deceased while he was in bed sleeping. Further, the trial court appreciated the generic
aggravating circumstance of treachery, because Ben Genosa was supposedly defenseless when he was killed -lying in bed asleep when Marivic smashed him with a pipe at the back of his head.
The capital penalty having been imposed, the case was elevated to this Court for automatic review.
Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the exhumation of
Ben Genosa and the reexamination of the cause of his death; (2) the examination of appellant by qualified
psychologists and psychiatrists to determine her state of mind at the time she had killed her spouse; and (3) the
inclusion of the said experts' reports in the records of the case for purposes of the automatic review or, in the
alternative, a partial reopening of the case for the lower court to admit the experts' testimonies.
On September 29, 2000, this Court issued a Resolution granting in part appellant's Motion, remanding the case to
the trial court for the reception of expert psychological and/or psychiatric opinion on the "battered woman syndrome"
plea; and requiring the lower court to report thereafter to this Court the proceedings taken as well as to submit
copies of the TSN and additional evidence, if any.
Acting on the Court's Resolution, the trial judge authorized the examination of Marivic by two clinical psychologists,
Drs. Natividad Dayan10 and Alfredo Pajarillo,11 supposedly experts on domestic violence. Their testimonies, along
with their documentary evidence, were then presented to and admitted by the lower court before finally being
submitted to this Court to form part of the records of the case. 12
The Issues
Appellant assigns the following alleged errors of the trial court for this Court's consideration:
"1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting on the
evidence adduced as to self-defense.
"2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally married and
that she was therefore liable for parricide.
"3. The trial court gravely erred finding the cause of death to be by beating with a pipe.
"4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial and unbiased
witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-beater; and further gravely erred
in concluding that Ben Genosa was a battered husband.
"5. The trial court gravely erred in not requiring testimony from the children of Marivic Genosa.
"6. The trial court gravely erred in concluding that Marivic's flight to Manila and her subsequent apologies
were indicia of guilt, instead of a clear attempt to save the life of her unborn child.
"7. The trial court gravely erred in concluding that there was an aggravating circumstance of treachery.
"8. The trial court gravely erred in refusing to re-evaluate the traditional elements in determining the
existence of self-defense and defense of foetus in this case, thereby erroneously convicting Marivic Genosa
of the crime of parricide and condemning her to the ultimate penalty of death." 13
In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense and in defense
of her fetus; and (2) whether treachery attended the killing of Ben Genosa.
The Court's Ruling
The appeal is partly meritorious.
Collateral Factual Issues
The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution of the principal
issues. As consistently held by this Court, the findings of the trial court on the credibility of witnesses and their
testimonies are entitled to a high degree of respect and will not be disturbed on appeal in the absence of any

showing that the trial judge gravely abused his discretion or overlooked, misunderstood or misapplied material facts
or circumstances of weight and substance that could affect the outcome of the case. 14
In appellant's first six assigned items, we find no grave abuse of discretion, reversible error or misappreciation of
material facts that would reverse or modify the trial court's disposition of the case. In any event, we will now briefly
dispose of these alleged errors of the trial court.
First, we do not agree that the lower court promulgated "an obviously hasty decision without reflecting on the
evidence adduced as to self-defense." We note that in his 17-page Decision, Judge Fortunito L. Madrona
summarized the testimonies of both the prosecution and the defense witnesses and -- on the basis of those and of
the documentary evidence on record -- made his evaluation, findings and conclusions. He wrote a 3-page discourse
assessing the testimony and the self-defense theory of the accused. While she, or even this Court, may not agree
with the trial judge's conclusions, we cannot peremptorily conclude, absent substantial evidence, that he failed to
reflect on the evidence presented.
Neither do we find the appealed Decision to have been made in an "obviously hasty" manner. The Information had
been filed with the lower court on November 14, 1996. Thereafter, trial began and at least 13 hearings were held for
over a year. It took the trial judge about two months from the conclusion of trial to promulgate his judgment. That he
conducted the trial and resolved the case with dispatch should not be taken against him, much less used to
condemn him for being unduly hasty. If at all, the dispatch with which he handled the case should be lauded. In any
case, we find his actions in substantial compliance with his constitutional obligation. 15
Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been legally married,
despite the non-presentation of their marriage contract. In People v. Malabago,16 this Court held:
"The key element in parricide is the relationship of the offender with the victim. In the case of parricide of a
spouse, the best proof of the relationship between the accused and the deceased is the marriage certificate.
In the absence of a marriage certificate, however, oral evidence of the fact of marriage may be considered
by the trial court if such proof is not objected to."
Two of the prosecution witnesses -- namely, the mother and the brother of appellant's deceased spouse -- attested
in court that Ben had been married to Marivic.17 The defense raised no objection to these testimonies. Moreover,
during her direct examination, appellant herself made a judicial admission of her marriage to Ben. 18Axiomatic is the
rule that a judicial admission is conclusive upon the party making it, except only when there is a showing that (1) the
admission was made through a palpable mistake, or (2) no admission was in fact made. 19Other than merely
attacking the non-presentation of the marriage contract, the defense offered no proof that the admission made by
appellant in court as to the fact of her marriage to the deceased was made through a palpable mistake.
Third, under the circumstances of this case, the specific or direct cause of Ben's death -- whether by a gunshot or by
beating with a pipe -- has no legal consequence. As the Court elucidated in its September 29, 2000 Resolution,
"[c]onsidering that the appellant has admitted the fact of killing her husband and the acts of hitting his nape with a
metal pipe and of shooting him at the back of his head, the Court believes that exhumation is unnecessary, if not
immaterial, to determine which of said acts actually caused the victim's death." Determining which of these admitted
acts caused the death is not dispositive of the guilt or defense of appellant.
Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk, gambler, womanizer
and wife-beater. Until this case came to us for automatic review, appellant had not raised the novel defense of
"battered woman syndrome," for which such evidence may have been relevant. Her theory of self-defense was then
the crucial issue before the trial court. As will be discussed shortly, the legal requisites of self-defense under
prevailing jurisprudence ostensibly appear inconsistent with the surrounding facts that led to the death of the victim.
Hence, his personal character, especially his past behavior, did not constitute vital evidence at the time.
Fifth, the trial court surely committed no error in not requiring testimony from appellant's children. As correctly
elucidated by the solicitor general, all criminal actions are prosecuted under the direction and control of the public
prosecutor, in whom lies the discretion to determine which witnesses and evidence are necessary to present. 20As
the former further points out, neither the trial court nor the prosecution prevented appellant from presenting her
children as witnesses. Thus, she cannot now fault the lower court for not requiring them to testify.

Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and her subsequent
apologies to her brother-in-law are indicia of her guilt or are attempts to save the life of her unborn child. Any
reversible error as to the trial court's appreciation of these circumstances has little bearing on the final resolution of
the case.
First Legal Issue:
Self-Defense and Defense of a Fetus
Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or defense of her
unborn child. When the accused admits killing the victim, it is incumbent upon her to prove any claimed justifying
circumstance by clear and convincing evidence.21 Well-settled is the rule that in criminal cases, self-defense (and
similarly, defense of a stranger or third person) shifts the burden of proof from the prosecution to the defense. 22
The Battered Woman Syndrome
In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While new in Philippine
jurisprudence, the concept has been recognized in foreign jurisdictions as a form of self-defense or, at the least,
incomplete self-defense.23 By appreciating evidence that a victim or defendant is afflicted with the syndrome, foreign
courts convey their "understanding of the justifiably fearful state of mind of a person who has been cyclically abused
and controlled over a period of time."24
A battered woman has been defined as a woman "who is repeatedly subjected to any forceful physical or
psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her
rights. Battered women include wives or women in any form of intimate relationship with men. Furthermore, in order
to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may
find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation,
she is defined as a battered woman."25
Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about the home, the
family and the female sex role; emotional dependence upon the dominant male; the tendency to accept
responsibility for the batterer's actions; and false hopes that the relationship will improve. 26
More graphically, the battered woman syndrome is characterized by the so-called "cycle of violence," 27 which has
three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at least,
nonviolent) phase.28
During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse or another
form of hostile behavior. The woman usually tries to pacify the batterer through a show of kind, nurturing behavior;
or by simply staying out of his way. What actually happens is that she allows herself to be abused in ways that, to
her, are comparatively minor. All she wants is to prevent the escalation of the violence exhibited by the batterer. This
wish, however, proves to be double-edged, because her "placatory" and passive behavior legitimizes his belief that
he has the right to abuse her in the first place.
However, the techniques adopted by the woman in her effort to placate him are not usually successful, and the
verbal and/or physical abuse worsens. Each partner senses the imminent loss of control and the growing tension
and despair. Exhausted from the persistent stress, the battered woman soon withdraws emotionally. But the more
she becomes emotionally unavailable, the more the batterer becomes angry, oppressive and abusive. Often, at
some unpredictable point, the violence "spirals out of control" and leads to an acute battering incident. 29
The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. The
battered woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no control;
only the batterer may put an end to the violence. Its nature can be as unpredictable as the time of its explosion, and
so are his reasons for ending it. The battered woman usually realizes that she cannot reason with him, and that
resistance would only exacerbate her condition.

At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later clearly
remember every detail. Her apparent passivity in the face of acute violence may be rationalized thus: the batterer is
almost always much stronger physically, and she knows from her past painful experience that it is futile to fight back.
Acute battering incidents are often very savage and out of control, such that innocent bystanders or intervenors are
likely to get hurt.30
The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period,
the couple experience profound relief. On the one hand, the batterer may show a tender and nurturing behavior
towards his partner. He knows that he has been viciously cruel and tries to make up for it, begging for her
forgiveness and promising never to beat her again. On the other hand, the battered woman also tries to convince
herself that the battery will never happen again; that her partner will change for the better; and that this "good,
gentle and caring man" is the real person whom she loves.
A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer. Sensing his
isolation and despair, she feels responsible for his well-being. The truth, though, is that the chances of his reforming,
or seeking or receiving professional help, are very slim, especially if she remains with him. Generally, only after she
leaves him does he seek professional help as a way of getting her back. Yet, it is in this phase of remorseful
reconciliation that she is most thoroughly tormented psychologically.
The illusion of absolute interdependency is well-entrenched in a battered woman's psyche. In this phase, she and
her batterer are indeed emotionally dependent on each other -- she for his nurturant behavior, he for her
forgiveness. Underneath this miserable cycle of "tension, violence and forgiveness," each partner may believe that it
is better to die than to be separated. Neither one may really feel independent, capable of functioning without the
other.31
History of Abuse
in the Present Case
To show the history of violence inflicted upon appellant, the defense presented several witnesses. She herself
described her heart-rending experience as follows:
"ATTY. TABUCANON
Q How did you describe your marriage with Ben Genosa?
A In the first year, I lived with him happily but in the subsequent year he was cruel to me and a behavior of
habitual drinker.
Q You said that in the subsequent year of your marriage, your husband was abusive to you and cruel. In
what way was this abusive and cruelty manifested to you?
A He always provoke me in everything, he always slap me and sometimes he pinned me down on the bed
and sometimes beat me.
Q How many times did this happen?
A Several times already.
Q What did you do when these things happen to you?
A I went away to my mother and I ran to my father and we separate each other.
Q What was the action of Ben Genosa towards you leaving home?
A He is following me, after that he sought after me.

Q What will happen when he follow you?


A He said he changed, he asked for forgiveness and I was convinced and after that I go to him and he said
'sorry'.
Q During those times that you were the recipient of such cruelty and abusive behavior by your husband,
were you able to see a doctor?
A Yes, sir.
Q Who are these doctors?
A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.
xxx

xxx

xxx

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


A Yes, sir.
Q Who inflicted these injuries?
A Of course my husband.
Q You mean Ben Genosa?
A Yes, sir.
xxx

xxx

xxx

[Court] /to the witness


Q How frequent was the alleged cruelty that you said?
A Everytime he got drunk.
Q No, from the time that you said the cruelty or the infliction of injury inflicted on your occurred, after your
marriage, from that time on, how frequent was the occurrence?
A Everytime he got drunk.
Q Is it daily, weekly, monthly or how many times in a month or in a week?
A Three times a week.
Q Do you mean three times a week he would beat you?
A Not necessarily that he would beat me but sometimes he will just quarrel me."

32

Referring to his "Out-Patient Chart"33 on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing bolstered her
foregoing testimony on chronic battery in this manner:
"Q So, do you have a summary of those six (6) incidents which are found in the chart of your clinic?
A Yes, sir.

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


A I did.
Q Will you please read the physical findings together with the dates for the record.
A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and redness of eye.
Attending physician: Dr. Lucero;
2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion (R) breast.
Attending physician: Dr. Canora;
3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;
4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending physician: Dr. Caing;
5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr. Canora; and
6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending physician: Dr.
Canora.
Q Among the findings, there were two (2) incidents wherein you were the attending physician, is that
correct?
A Yes, sir.
Q Did you actually physical examine the accused?
A Yes, sir.
Q Now, going to your finding no. 3 where you were the one who attended the patient. What do you mean by
abrasion furuncle left axilla?
A Abrasion is a skin wound usually when it comes in contact with something rough substance if force is
applied.
Q What is meant by furuncle axilla?
A It is secondary of the light infection over the abrasion.
Q What is meant by pain mastitis secondary to trauma?
A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain] meaning there
is tenderness. When your breast is traumatized, there is tenderness pain.
Q So, these are objective physical injuries. Doctor?
xxx
Q Were you able to talk with the patient?
A Yes, sir.
Q What did she tell you?

xxx

xxx

A As a doctor-patient relationship, we need to know the cause of these injuries. And she told me that it was
done to her by her husband.
Q You mean, Ben Genosa?
A Yes, sir.
xxx

xxx

xxx

ATTY. TABUCANON:
Q By the way Doctor, were you able to physical examine the accused sometime in the month of November,
1995 when this incident happened?
A As per record, yes.
Q What was the date?
A It was on November 6, 1995.
Q So, did you actually see the accused physically?
A Yes, sir.
Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?
A Yes, sir.
Q Being a doctor, can you more engage at what stage of pregnancy was she?
A Eight (8) months pregnant.
Q So in other words, it was an advance stage of pregnancy?
A Yes, sir.
Q What was your November 6, 1995 examination, was it an examination about her pregnancy or for some
other findings?
A No, she was admitted for hypertension headache which complicates her pregnancy.
Q When you said admitted, meaning she was confined?
A Yes, sir.
Q For how many days?
A One day.
Q Where?
A At PHILPHOS Hospital.
xxx

xxx

xxx

Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine her
personally on November 6, 1995 and she was 8 months pregnant.
What is this all about?
A Because she has this problem of tension headache secondary to hypertension and I think I have a record
here, also the same period from 1989 to 1995, she had a consultation for twenty-three (23) times.
Q For what?
A Tension headache.
Q Can we say that specially during the latter consultation, that the patient had hypertension?
A The patient definitely had hypertension. It was refractory to our treatment. She does not response when
the medication was given to her, because tension headache is more or less stress related and emotional in
nature.
Q What did you deduce of tension headache when you said is emotional in nature?
A From what I deduced as part of our physical examination of the patient is the family history in line of giving
the root cause of what is causing this disease. So, from the moment you ask to the patient all comes from
the domestic problem.
Q You mean problem in her household?
A Probably.
Q Can family trouble cause elevation of blood pressure, Doctor?
A Yes, if it is emotionally related and stressful it can cause increases in hypertension which is unfortunately
does not response to the medication.
Q In November 6, 1995, the date of the incident, did you take the blood pressure of the accused?
A On November 6, 1995 consultation, the blood pressure was 180/120.
Q Is this considered hypertension?
A Yes, sir, severe.
Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood pressure?
A It was dangerous to the child or to the fetus." 34
Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte, testified that he had
seen the couple quarreling several times; and that on some occasions Marivic would run to him with bruises,
confiding that the injuries were inflicted upon her by Ben.35
Ecel Arano also testified36 that for a number of times she had been asked by Marivic to sleep at the Genosa house,
because the latter feared that Ben would come home drunk and hurt her. On one occasion that Ecel did sleep over,
she was awakened about ten o'clock at night, because the couple "were very noisy and I heard something was
broken like a vase." Then Marivic came running into Ecel's room and locked the door. Ben showed up by the
window grill atop a chair, scaring them with a knife.

On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but they were
unable to. They returned to the Genosa home, where they found him already drunk. Again afraid that he might hurt
her, Marivic asked her to sleep at their house. Seeing his state of drunkenness, Ecel hesitated; and when she heard
the couple start arguing, she decided to leave.
On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or heard the
couple quarreling.37 Marivic relates in detail the following backdrop of the fateful night when life was snuffed out of
him, showing in the process a vivid picture of his cruelty towards her:
"ATTY. TABUCANON:
Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening?
A Whole morning and in the afternoon, I was in the office working then after office hours, I boarded the
service bus and went to Bilwang. When I reached Bilwang, I immediately asked my son, where was his
father, then my second child said, 'he was not home yet'. I was worried because that was payday, I was
anticipating that he was gambling. So while waiting for him, my eldest son arrived from school, I prepared
dinner for my children.
Q This is evening of November 15, 1995?
A Yes, sir.
Q What time did Ben Genosa arrive?
A When he arrived, I was not there, I was in Isabel looking for him.
Q So when he arrived you were in Isabel looking for him?
A Yes, sir.
Q Did you come back to your house?
A Yes, sir.
Q By the way, where was your conjugal residence situated this time?
A Bilwang.
Q Is this your house or you are renting?
A Renting.
Q What time were you able to come back in your residence at Bilwang?
A I went back around almost 8:00 o'clock.
Q What happened when you arrived in your residence?
A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time because I had
fears that he was again drunk and I was worried that he would again beat me so I requested my cousin to
sleep with me, but she resisted because she had fears that the same thing will happen again last year.
Q Who was this cousin of yours who you requested to sleep with you?
A Ecel Arao, the one who testified.

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


A No, because she expressed fears, she said her father would not allow her because of Ben.
Q During this period November 15, 1995, were you pregnant?
A Yes, 8 months.
Q How advance was your pregnancy?
A Eight (8) months.
Q Was the baby subsequently born?
A Yes, sir.
Q What's the name of the baby you were carrying at that time?
A Marie Bianca.
Q What time were you able to meet personally your husband?
A Yes, sir.
Q What time?
A When I arrived home, he was there already in his usual behavior.
Q Will you tell this Court what was his disposition?
A He was drunk again, he was yelling in his usual unruly behavior.
Q What was he yelling all about?
A His usual attitude when he got drunk.
Q You said that when you arrived, he was drunk and yelling at you? What else did he do if any?
A He is nagging at me for following him and he dared me to quarrel him.
Q What was the cause of his nagging or quarreling at you if you know?
A He was angry at me because I was following x x x him, looking for him. I was just worried he might be
overly drunk and he would beat me again.
Q You said that he was yelling at you, what else, did he do to you if any?
A He was nagging at me at that time and I just ignore him because I want to avoid trouble for fear that he will
beat me again. Perhaps he was disappointed because I just ignore him of his provocation and he switch off
the light and I said to him, 'why did you switch off the light when the children were there.' At that time I was
also attending to my children who were doing their assignments. He was angry with me for not answering
his challenge, so he went to the kitchen and [got] a bolo and cut the antenna wire to stop me from watching
television.
Q What did he do with the bolo?

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


Q What else happened after he cut the wire?
A He switch off the light and the children were shouting because they were scared and he was already
holding the bolo.
Q How do you described this bolo?
A 1 1/2 feet.
Q What was the bolo used for usually?
A For chopping meat.
Q You said the children were scared, what else happened as Ben was carrying that bolo?
A He was about to attack me so I run to the room.
Q What do you mean that he was about to attack you?
A When I attempt to run he held my hands and he whirled me and I fell to the bedside.
Q So when he whirled you, what happened to you?
A I screamed for help and then he left.
Q You said earlier that he whirled you and you fell on the bedside?
A Yes, sir.
Q You screamed for help and he left, do you know where he was going?
A Outside perhaps to drink more.
Q When he left what did you do in that particular time?
A I packed all his clothes.
Q What was your reason in packing his clothes?
A I wanted him to leave us.
Q During this time, where were your children, what were their reactions?
A After a couple of hours, he went back again and he got angry with me for packing his clothes, then he
dragged me again of the bedroom holding my neck.
Q You said that when Ben came back to your house, he dragged you? How did he drag you?
COURT INTERPRETER:
The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)
A And he dragged me towards the door backward.

ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then he kept on shouting at me that 'you might
as well be killed so there will be nobody to nag me.'
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER:
(At this juncture the witness started crying).
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to open the drawer but he could not open it
because he did not have the key then he pulled his wallet which contained a blade about 3 inches long and I
was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The
one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the
wallet and the blade, I smashed him then I ran to the other room, and on that very moment everything on my
mind was to pity on myself, then the feeling I had on that very moment was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.
COURT INTERPRETER:
(The witness at this juncture is crying intensely).
xxx

xxx

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.

xxx

Q You mean they were inside the room?


A Yes, sir.
Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches long,
how does it look like?
A Three (3) inches long and 1/2 inch wide.
Q Is it a flexible blade?
A It's a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me."

38

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in understanding
the psyche of a battered person. She had met with Marivic Genosa for five sessions totaling about seventeen hours.
Based on their talks, the former briefly related the latter's ordeal to the court a quo as follows:
"Q: What can you say, that you found Marivic as a battered wife? Could you in layman's term describe to this
Court what her life was like as said to you?
A: What I remember happened then was it was more than ten years, that she was suffering emotional
anguish. There were a lot of instances of abuses, to emotional abuse, to verbal abuse and to physical
abuse. The husband had a very meager income, she was the one who was practically the bread earner of
the family. The husband was involved in a lot of vices, going out with barkadas, drinking, even womanizing
being involved in cockfight and going home very angry and which will trigger a lot of physical abuse. She
also had the experience a lot of taunting from the husband for the reason that the husband even accused
her of infidelity, the husband was saying that the child she was carrying was not his own. So she was very
angry, she was at the same time very depressed because she was also aware, almost like living in purgatory
or even hell when it was happening day in and day out." 39
In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly put forward,
additional supporting evidence as shown below:
"Q In your first encounter with the appellant in this case in 1999, where you talked to her about three hours,
what was the most relevant information did you gather?
A The most relevant information was the tragedy that happened. The most important information were
escalating abuses that she had experienced during her marital life.
Q Before you met her in 1999 for three hours, we presume that you already knew of the facts of the case or
at least you have substantial knowledge of the facts of the case?
A I believe I had an idea of the case, but I do not know whether I can consider them as substantial.

xxx

xxx

xxx

Q Did you gather an information from Marivic that on the side of her husband they were fond of battering
their wives?
A I also heard that from her?
Q You heard that from her?
A Yes, sir.
Q Did you ask for a complete example who are the relatives of her husband that were fond of battering their
wives?
A What I remember that there were brothers of her husband who are also battering their wives.
Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc where her husband
followed her and battered [her] several times in that room?
A She told me about that.
Q Did she inform you in what hotel in Ormoc?
A Sir, I could not remember but I was told that she was battered in that room.
Q Several times in that room?
A Yes, sir. What I remember was that there is no problem about being battered, it really happened.
Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think that is the first
time that we have this in the Philippines, what is your opinion?
A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a self-defense. I
also believe that there had been provocation and I also believe that she became a disordered person. She
had to suffer anxiety reaction because of all the battering that happened and so she became an abnormal
person who had lost she's not during the time and that is why it happened because of all the physical
battering, emotional battering, all the psychological abuses that she had experienced from her husband.
Q I do believe that she is a battered wife. Was she extremely battered?
A Sir, it is an extreme form of battering. Yes.40
Parenthetically, the credibility of appellant was demonstrated as follows:
"Q And you also said that you administered [the] objective personality test, what x x x [is this] all about?
A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that test is to find
out about the lying prone[ne]ss of the person.
Q What do you mean by that?
A Meaning, am I dealing with a client who is telling me the truth, or is she someone who can exaggerate or x
x x [will] tell a lie[?]
Q And what did you discover on the basis of this objective personality test?

A She was a person who passed the honesty test. Meaning she is a person that I can trust. That the data
that I'm gathering from her are the truth."41
The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric Report, 42which
was based on his interview and examination of Marivic Genosa. The Report said that during the first three years of
her marriage to Ben, everything looked good -- the atmosphere was fine, normal and happy -- until "Ben started to
be attracted to other girls and was also enticed in[to] gambling[,] especially cockfighting. x x x. At the same time Ben
was often joining his barkada in drinking sprees."
The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to his wife. The
Report continued: "At first, it was verbal and emotional abuses but as time passed, he became physically abusive.
Marivic claimed that the viciousness of her husband was progressive every time he got drunk. It was a painful
ordeal Marivic had to anticipate whenever she suspected that her husband went for a drinking [spree]. They had
been married for twelve years[;] and practically more than eight years, she was battered and maltreated relentlessly
and mercilessly by her husband whenever he was drunk."
Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the Report, "[s]he
also sought the advice and help of close relatives and well-meaning friends in spite of her feeling ashamed of what
was happening to her. But incessant battering became more and more frequent and more severe. x x x." 43
From the totality of evidence presented, there is indeed no doubt in the Court's mind that Appellant Marivic Genosa
was a severely abused person.
Effect of Battery on Appellant
Because of the recurring cycles of violence experienced by the abused woman, her state of mind metamorphoses.
In determining her state of mind, we cannot rely merely on the judgment of an ordinary, reasonable person who is
evaluating the events immediately surrounding the incident. A Canadian court has aptly pointed out that expert
evidence on the psychological effect of battering on wives and common law partners are both relevant and
necessary. "How can the mental state of the appellant be appreciated without it? The average member of the public
may ask: Why would a woman put up with this kind of treatment? Why should she continue to live with such a man?
How could she love a partner who beat her to the point of requiring hospitalization? We would expect the woman to
pack her bags and go. Where is her self-respect? Why does she not cut loose and make a new life for herself? Such
is the reaction of the average person confronted with the so-called 'battered wife syndrome.'" 44
To understand the syndrome properly, however, one's viewpoint should not be drawn from that of an ordinary,
reasonable person. What goes on in the mind of a person who has been subjected to repeated, severe beatings
may not be consistent with -- nay, comprehensible to -- those who have not been through a similar experience.
Expert opinion is essential to clarify and refute common myths and misconceptions about battered women. 45
The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has had a
significant impact in the United States and the United Kingdom on the treatment and prosecution of cases, in which
a battered woman is charged with the killing of her violent partner. The psychologist explains that the cyclical nature
of the violence inflicted upon the battered woman immobilizes the latter's "ability to act decisively in her own
interests, making her feel trapped in the relationship with no means of escape." 46 In her years of research, Dr.
Walker found that "the abuse often escalates at the point of separation and battered women are in greater danger of
dying then."47
Corroborating these research findings, Dra. Dayan said that "the battered woman usually has a very low opinion of
herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen the violence would happen,
they usually think that they provoke[d] it, that they were the one[s] who precipitated the violence[; that] they
provoke[d] their spouse to be physically, verbally and even sexually abusive to them." 48
According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an abusive
partner -- poverty, self-blame and guilt arising from the latter's belief that she provoked the violence, that she has an
obligation to keep the family intact at all cost for the sake of their children, and that she is the only hope for her
spouse to change.49

The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in suits involving
violent family relations, having evaluated "probably ten to twenty thousand" violent family disputes within the Armed
Forces of the Philippines, wherein such cases abounded. As a result of his experience with domestic violence
cases, he became a consultant of the Battered Woman Office in Quezon City. As such, he got involved in about forty
(40) cases of severe domestic violence, in which the physical abuse on the woman would sometimes even lead to
her loss of consciousness.50
Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in posttraumatic stress disorder, a form of
"anxiety neurosis or neurologic anxietism."51 After being repeatedly and severely abused, battered persons "may
believe that they are essentially helpless, lacking power to change their situation. x x x [A]cute battering incidents
can have the effect of stimulating the development of coping responses to the trauma at the expense of the victim's
ability to muster an active response to try to escape further trauma. Furthermore, x x x the victim ceases to believe
that anything she can do will have a predictable positive effect."52
A study53 conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that "even if a
person has control over a situation, but believes that she does not, she will be more likely to respond to that
situation with coping responses rather than trying to escape." He said that it was the cognitive aspect -- the
individual's thoughts -- that proved all-important. He referred to this phenomenon as "learned helplessness." "[T]he
truth or facts of a situation turn out to be less important than the individual's set of beliefs or perceptions concerning
the situation. Battered women don't attempt to leave the battering situation, even when it may seem to outsiders that
escape is possible, because they cannot predict their own safety; they believe that nothing they or anyone else does
will alter their terrible circumstances."54
Thus, just as the battered woman believes that she is somehow responsible for the violent behavior of her partner,
she also believes that he is capable of killing her, and that there is no escape. 55 Battered women feel unsafe, suffer
from pervasive anxiety, and usually fail to leave the relationship.56 Unless a shelter is available, she stays with her
husband, not only because she typically lacks a means of self-support, but also because she fears that if she leaves
she would be found and hurt even more.57
In the instant case, we meticulously scoured the records for specific evidence establishing that appellant, due to the
repeated abuse she had suffered from her spouse over a long period of time, became afflicted with the battered
woman syndrome. We, however, failed to find sufficient evidence that would support such a conclusion. More
specifically, we failed to find ample evidence that would confirm the presence of the essential characteristics of
BWS.
The defense fell short of proving all three phases of the "cycle of violence" supposedly characterizing the
relationship of Ben and Marivic Genosa. No doubt there were acute battering incidents. In relating to the court a
quo how the fatal incident that led to the death of Ben started, Marivic perfectly described the tension-building phase
of the cycle. She was able to explain in adequate detail the typical characteristics of this stage. However, that single
incident does not prove the existence of the syndrome. In other words, she failed to prove that in at least another
battering episode in the past, she had gone through a similar pattern.
How did the tension between the partners usually arise or build up prior to acute battering? How did Marivic
normally respond to Ben's relatively minor abuses? What means did she employ to try to prevent the situation from
developing into the next (more violent) stage?
Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply mentioned that
she would usually run away to her mother's or father's house; 58 that Ben would seek her out, ask for her forgiveness
and promise to change; and that believing his words, she would return to their common abode.
Did she ever feel that she provoked the violent incidents between her and her spouse? Did she believe that she was
the only hope for Ben to reform? And that she was the sole support of his emotional stability and well-being?
Conversely, how dependent was she on him? Did she feel helpless and trapped in their relationship? Did both of
them regard death as preferable to separation?
In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that would clearly
and fully demonstrate the essential characteristics of the syndrome.

The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they were able to
explain fully, albeit merely theoretically and scientifically, how the personality of the battered woman usually evolved
or deteriorated as a result of repeated and severe beatings inflicted upon her by her partner or spouse. They
corroborated each other's testimonies, which were culled from their numerous studies of hundreds of actual
cases. However, they failed to present in court the factual experiences and thoughts that appellant had related to
them -- if at all -- based on which they concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven in order to be
appreciated. To repeat, the records lack supporting evidence that would establish all the essentials of the battered
woman syndrome as manifested specifically in the case of the Genosas.
BWS as Self-Defense
In any event, the existence of the syndrome in a relationship does not in itself establish the legal right of the woman
to kill her abusive partner. Evidence must still be considered in the context of self-defense. 59
From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS defense is the state of
mind of the battered woman at the time of the offense60 -- she must have actually feared imminent harm from her
batterer and honestly believed in the need to kill him in order to save her life.
Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face a real 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;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself."
Unlawful aggression is the most essential element of self-defense. 63 It presupposes actual, sudden and unexpected
attack -- or an imminent danger thereof -- on the life or safety of a person. 64 In the present case, however, according
to the testimony of Marivic herself, there was a sufficient time interval between the unlawful aggression of Ben and
her fatal attack upon him. She had already been able to withdraw from his violent behavior and escape to their
children's bedroom. During that time, he apparently ceased his attack and went to bed. The reality or even the
imminence of the danger he posed had ended altogether. He was no longer in a position that presented an actual
threat on her life or safety.
Had Ben still been awaiting Marivic when she came out of their children's bedroom -- and based on past violent
incidents, there was a great probability that he would still have pursued her and inflicted graver harm -- then, the
imminence of the real threat upon her life would not have ceased yet. Where the brutalized person is already
suffering from BWS, further evidence of actual physical assault at the time of the killing is not required. Incidents of
domestic battery usually have a predictable pattern. To require the battered person to await an obvious, deadly
attack before she can defend her life "would amount to sentencing her to 'murder by installment.'" 65 Still, impending
danger (based on the conduct of the victim in previous battering episodes) prior to the defendant's use of deadly
force must be shown. Threatening behavior or communication can satisfy the required imminence of
danger.66 Considering such circumstances and the existence of BWS, self-defense may be appreciated.
We reiterate the principle that aggression, if not continuous, does not warrant self-defense. 67 In the absence of such
aggression, there can be no self-defense -- complete or incomplete -- on the part of the victim. 68 Thus, Marivic's
killing of Ben was not completely justified under the circumstances.
Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other modifying circumstances that would alter
her penalty, we deem it proper to evaluate and appreciate in her favor circumstances that mitigate her criminal
liability. It is a hornbook doctrine that an appeal in a criminal case opens it wholly for review on any issue, including
that which has not been raised by the parties.69
From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological Evaluation
Report dated November 29, 2000, opined as follows:
"This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic experienced with her
husband constitutes a form of [cumulative] provocation which broke down her psychological resistance and
natural self-control. It is very clear that she developed heightened sensitivity to sight of impending danger
her husband posed continuously. Marivic truly experienced at the hands of her abuser husband a state of
psychological paralysis which can only be ended by an act of violence on her part." 70
Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of "repetitious pain taking,
repetitious battering, [and] repetitious maltreatment" as well as the severity and the prolonged administration of the
battering is posttraumatic stress disorder.71 Expounding thereon, he said:
"Q What causes the trauma, Mr. Witness?
A What causes the trauma is probably the repetitious battering. Second, the severity of the battering. Third,
the prolonged administration of battering or the prolonged commission of the battering and the psychological
and constitutional stamina of the victim and another one is the public and social support available to the
victim. If nobody is interceding, the more she will go to that disorder....
xxx

xxx

xxx

Q You referred a while ago to severity. What are the qualifications in terms of severity of the postraumatic
stress disorder, Dr. Pajarillo?
A The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder is injury to the
head, banging of the head like that. It is usually the very very severe stimulus that precipitate this
post[t]raumatic stress disorder. Others are suffocating the victim like holding a pillow on the face,
strangulating the individual, suffocating the individual, and boxing the individual. In this situation therefore,
the victim is heightened to painful stimulus, like for example she is pregnant, she is very susceptible
because the woman will not only protect herself, she is also to protect the fetus. So the anxiety is heightened
to the end [sic] degree.
Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?
A We classify the disorder as [acute], or chronic or delayed or [a]typical.
Q Can you please describe this pre[-]classification you called delayed or [atypical]?
A The acute is the one that usually require only one battering and the individual will manifest now a severe
emotional instability, higher irritability remorse, restlessness, and fear and probably in most [acute] cases the
first thing will be happened to the individual will be thinking of suicide.
Q And in chronic cases, Mr. Witness?
A The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it is longer than six
(6) months. The [acute] is only the first day to six (6) months. After this six (6) months you become chronic. It
is stated in the book specifically that after six (6) months is chronic. The [a]typical one is the repetitious
battering but the individual who is abnormal and then become normal. This is how you get neurosis from
neurotic personality of these cases of post[t]raumatic stress disorder." 72
Answering the questions propounded by the trial judge, the expert witness clarified further:

"Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x his or her mental
capacity?
A Yes, your Honor.
Q As you were saying[,] it x x x obfuscated her rationality?
A Of course obfuscated."73
In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in "cumulative
provocation which broke down her psychological resistance and natural self-control," "psychological paralysis," and
"difficulty in concentrating or impairment of memory."
Based on the explanations of the expert witnesses, such manifestations were analogous to an illness that
diminished the exercise by appellant of her will power without, however, depriving her of consciousness of her
acts. There was, thus, a resulting diminution of her freedom of action, intelligence or intent. Pursuant to paragraphs
974 and 1075 of Article 13 of the Revised Penal Code, this circumstance should be taken in her favor and considered
as a mitigating factor. 76
In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an impulse so
powerful as to have naturally produced passion and obfuscation. It has been held that this state of mind is present
when a crime is committed as a result of an uncontrollable burst of passion provoked by prior unjust or improper
acts or by a legitimate stimulus so powerful as to overcome reason.77 To appreciate this circumstance, the following
requisites should concur: (1) there is an act, both unlawful and sufficient to produce such a condition of mind; and
(2) this act is not far removed from the commission of the crime by a considerable length of time, during which the
accused might recover her normal equanimity.78
Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his being killed by
Marivic. He had further threatened to kill her while dragging her by the neck towards a cabinet in which he had kept
a gun. It should also be recalled that she was eight months pregnant at the time. The attempt on her life was
likewise on that of her fetus.79 His abusive and violent acts, an aggression which was directed at the lives of both
Marivic and her unborn child, naturally produced passion and obfuscation overcoming her reason. Even though she
was able to retreat to a separate room, her emotional and mental state continued. According to her, she felt her
blood pressure rise; she was filled with feelings of self-pity and of fear that she and her baby were about to die. In a
fit of indignation, she pried open the cabinet drawer where Ben kept a gun, then she took the weapon and used it to
shoot him.
The confluence of these events brings us to the conclusion that there was no considerable period of time within
which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillo's testimony 80 that with "neurotic
anxiety" -- a psychological effect on a victim of "overwhelming brutality [or] trauma" -- the victim relives the beating
or trauma as if it were real, although she is not actually being beaten at the time. She cannot control "reexperiencing the whole thing, the most vicious and the trauma that she suffered." She thinks "of nothing but the
suffering." Such reliving which is beyond the control of a person under similar circumstances, must have been what
Marivic experienced during the brief time interval and prevented her from recovering her normal equanimity.
Accordingly, she should further be credited with the mitigating circumstance of passion and obfuscation.
It should be clarified that these two circumstances -- psychological paralysis as well as passion and obfuscation -did not arise from the same set of facts.
On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery inflicted by the
batterer-spouse upon appellant. That is, the repeated beatings over a period of time resulted in her psychological
paralysis, which was analogous to an illness diminishing the exercise of her will power without depriving her of
consciousness of her acts.
The second circumstance, on the other hand, resulted from the violent aggression he had inflicted on her prior to the
killing. That the incident occurred when she was eight months pregnant with their child was deemed by her as an

attempt not only on her life, but likewise on that of their unborn child. Such perception naturally produced passion
and obfuscation on her part.
Second Legal Issue:
Treachery
There is treachery when one commits any of the crimes against persons by employing means, methods or forms in
the execution thereof without risk to oneself arising from the defense that the offended party might make. 81 In order
to qualify an act as treacherous, the circumstances invoked must be proven as indubitably as the killing itself; they
cannot be deduced from mere inferences, or conjectures, which have no place in the appreciation of
evidence.82 Because of the gravity of the resulting offense, treachery must be proved as conclusively as the killing
itself.83
Ruling that treachery was present in the instant case, the trial court imposed the penalty of death upon appellant. It
inferred this qualifying circumstances merely from the fact that the lifeless body of Ben had been found lying in bed
with an "open, depressed, circular" fracture located at the back of his head. As to exactly how and when he had
been fatally attacked, however, the prosecution failed to establish indubitably. Only the following testimony of
appellant leads us to the events surrounding his death:
"Q You said that when Ben came back to your house, he dragged you? How did he drag you?
COURT:
The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then he kept on shouting at me that 'you might
as well be killed so there will be nobody to nag me'
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER
(At this juncture the witness started crying)
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?

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

xxx

xxx

Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches long,
how does it look like?
A Three (3) inches long and inch wide.
Q It is a flexible blade?
A It's a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me.
xxx

xxx

xxx

ATTY. TABUCANON:
Q You said that this blade fell from his grip, is it correct?
A Yes, because I smashed him.
Q What happened?
A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran to the other
room.
Q What else happened?
A When I was in the other room, I felt the same thing like what happened before when I was admitted in
PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I was frightened I was about
to die because of my blood pressure.
COURT INTERPRETER:

(Upon the answer of the witness getting the pipe and smashed him, the witness at the same time
pointed at the back of her neck or the nape).
ATTY. TABUCANON:
Q You said you went to the room, what else happened?
A Considering all the physical sufferings that I've been through with him, I took pity on myself and I felt I was
about to die also because of my blood pressure and the baby, so I got that gun and I shot him.
COURT
/to Atty. Tabucanon
Q You shot him?
A Yes, I distorted the drawer."84
The above testimony is insufficient to establish the presence of treachery. There is no showing of the victim's
position relative to appellant's at the time of the shooting. Besides, equally axiomatic is the rule that when a killing is
preceded by an argument or a quarrel, treachery cannot be appreciated as a qualifying circumstance, because the
deceased may be said to have been forewarned and to have anticipated aggression from the assailant. 85
Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must have been
consciously and deliberately chosen for the specific purpose of accomplishing the unlawful act without risk from any
defense that might be put up by the party attacked.86 There is no showing, though, that the present appellant
intentionally chose a specific means of successfully attacking her husband without any risk to herself from any
retaliatory act that he might make. To the contrary, it appears that the thought of using the gun occurred to her only
at about the same moment when she decided to kill her batterer-spouse. In the absence of any convincing proof
that she consciously and deliberately employed the method by which she committed the crime in order to ensure its
execution, this Court resolves the doubt in her favor.87
Proper Penalty
The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to death. Since
two mitigating circumstances and no aggravating circumstance have been found to have attended the commission
of the offense, the penalty shall be lowered by one (1) degree, pursuant to Article 64 of paragraph 5 88 of the same
Code.89 The penalty of reclusion temporal in its medium period is imposable, considering that two mitigating
circumstances are to be taken into account in reducing the penalty by one degree, and no other modifying
circumstances were shown to have attended the commission of the offense. 90 Under the Indeterminate Sentence
Law, the minimum of the penalty shall be within the range of that which is next lower in degree -- prision mayor -and the maximum shall be within the range of the medium period of reclusion temporal.
Considering all the circumstances of the instant case, we deem it just and proper to impose the penalty of prision
mayor in its minimum period, or six (6) years and one (1) day in prison as minimum; to reclusion temporal in its
medium period, or 14 years 8 months and 1 day as maximum. Noting that appellant has already served the
minimum period, she may now apply for and be released from detention on parole. 91
Epilogue
Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor simple to analyze
and recognize vis--vis the given set of facts in the present case. The Court agonized on how to apply the theory as
a modern-day reality. It took great effort beyond the normal manner in which decisions are made -- on the basis of
existing law and jurisprudence applicable to the proven facts. To give a just and proper resolution of the case, it
endeavored to take a good look at studies conducted here and abroad in order to understand the intricacies of the
syndrome and the distinct personality of the chronically abused person. Certainly, the Court has learned much. And

definitely, the solicitor general and appellant's counsel, Atty. Katrina Legarda, have helped it in such learning
process.
While our hearts empathize with recurrently battered persons, we can only work within the limits of law,
jurisprudence and given facts. We cannot make or invent them. Neither can we amend the Revised Penal Code.
Only Congress, in its wisdom, may do so.
The Court, however, is not discounting the possibility of self-defense arising from the battered woman syndrome.
We now sum up our main points. First, each of the phases of the cycle of violence must be proven to have
characterized at least two battering episodes between the appellant and her intimate partner. Second, the final
acute battering episode preceding the killing of the batterer must have produced in the battered person's mind an
actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save
her life. Third, at the time of the killing, the batterer must have posed probable -- not necessarily immediate and
actual -- grave harm to the accused, based on the history of violence perpetrated by the former against the latter.
Taken altogether, these circumstances could satisfy the requisites of self-defense. Under the existing facts of the
present case, however, not all of these elements were duly established.
WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However, there being
two (2) mitigating circumstances and no aggravating circumstance attending her commission of the offense, her
penalty is REDUCED to six (6) years and one (1) day of prision mayor as minimum; to 14 years, 8 months and 1
day of reclusion temporal as maximum.
Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon her, the director
of the Bureau of Corrections may immediately RELEASE her from custody upon due determination that she is
eligible for parole, unless she is being held for some other lawful cause. Costs de oficio.
SO ORDERED.
Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.
Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ., join Justice Santiago in her dissent.
Vitug and Quisumbing JJ., in the result.
Ynares-Santiago J., see dissenting opinion.

DISSENTING OPINION
YNARES-SANTIAGO, J.:
In convicting Marivic Genosa of the crime of parricide, our esteemed colleague Mr. Justice Artemio V. Panganiban
found that there was no factual basis to conclude that Marivic was suffering from "Battered Woman Syndrome"
(BWS) at the time she took the life of her husband. With due respect, I register my dissent.
The novel theory of "Battered Woman Syndrome" is recognized in foreign jurisprudence as a form of self-defense. It
operates upon the premise that a woman who has been cyclically abused and controlled over a period of time
develops a fearful state of mind. Living in constant danger of harm or death, she knows that future beatings are
almost certain to occur and will escalate over time. Her intimate knowledge of the violent nature of her batterer
makes her alert to when a particular attack is forthcoming, and when it will seriously threaten her survival. Trapped
in a cycle of violence and constant fear, it is not unlikely that she would succumb to her helplessness and fail to
perceive possible solutions to the problem other than to injure or kill her batterer. She is seized by fear of an existing
or impending lethal aggression and thus would have no opportunity beforehand to deliberate on her acts and to
choose a less fatal means of eliminating her sufferings.1
As exhaustively discussed in the ponencia, the "Battered Woman Syndrome" has three phases, to wit: (1) the
tension-building phase, where minor batterings in the form of verbal or slight physical abuse occurs. Here, the
woman tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way; (2)

the acute battering incident phase which is characterized by brutality, destructiveness and sometimes, death. The
battered woman usually realizes that she cannot reason with him and that resistance would only exacerbate her
condition; and (3) the tranquil period, where the couple experience a compound relief and the batterer may show a
tender and nurturing behavior towards his partner.
Contrary to the findings in the ponencia, the defense was able to establish the occurrence on more than one
occasion of the "tension-building phase" of the cycle. The various testimonies of appellant's witnesses clearly reveal
that she knew exactly when she would once again be subjected to acute battery. Her cousin, Ecel Arano, testified
that she often asked the latter to sleep in her house as she was afraid every time her husband came home drunk.
Clearly, whenever appellant requested for Arano's company, she was experiencing a tension-building phase. The
barangay captain, Panfilo Tero, also testified that appellant sought his help two months before she killed her
husband, again demonstrating that she was in the tension-building phase and was attempting to prevent another
incident of acute battery. Appellant presented evidence to prove that the tension-building phase would occur
whenever her husband would go out looking for other women, would lose at cockfights or would come home drunk.
She often tried to ignore her husband's attitude or, as testified to by some witnesses for the prosecution, even
shouted back, fought off or even injured her husband during the tension-building phase, if only to prevent the onset
of acute battery.
Appellant was able to perfectly describe the tension-building phase of the cycle immediately prior to the death of her
husband, i.e., when she knew or felt that she was going to be killed by the deceased. She could not possibly have
testified with clarity as to prior tension-building phases in the cycle as she had never tried to kill her husband before
this time.
It was shown by the testimonies of appellant and even witnesses for the prosecution that appellant would seek
shelter in her mother's or her father's house after an acute battering incident, after which would begin the process of
begging for forgiveness, promises of change in behavior and return to the conjugal home, only for the same cycle to
begin all over again.
To require appellant to prove the state of mind of the deceased, as seems to be required in the ponencia, would
mean that no person would ever be able to prove self-defense in a battered woman case. Appellant could not
possibly prove whether the deceased felt provoked into battering by any act or omission of appellant. She cannot
possibly prove that she felt herself to be the sole support of the deceased's emotional stability and well-being.
Nevertheless, appellant felt trapped and helpless in the relationship as, in the end, she resorted to killing her
husband as no one could or did help her, whether out of fear or insensitivity, during the violent marriage she
endured.
The "acute battering incident stage" was well demonstrated by the severe beatings suffered by Marivic in the hands
of the deceased as well as the threats to kill her using a bolo or a cutter.2 The physical abuses occurred at least 3
times a week in the 11 miserable years of their marriage,3 six incidents of which were documented by the 1990-1995
medical records of Marivic. They included, among others, hematoma, contusion, and pain on the breasts; multiple
contusions and trauma on the different parts of her body even during her pregnancy in 1995. 4The tranquil period
underwent by Marivic was shown by the repeated "kiss and make-up" episodes of their relationship. On more than 5
occasions, Marivic ran to her parents' house after violent fights with the deceased only to forgive the latter every
time he would fetch her and promise to change.5
All these recurring phases of cycle of violence, repentance and forgiveness developed a trauma in the mind of
Marivic making her believe that a forthcoming attack from the deceased would cause her death. This state of mind
of Marivic was revealed in her testimony given way back in 1998, before she was examined by experts on BWS.
Unaware of the significance of her declarations, she candidly narrated how she felt immediately before she killed the
deceased, thus ATTY. TABUCANON
Q So you said that he dragged you towards the drawer?
A Yes, sir.

Q What is there in the drawer?


A I was aware that it was a gun.
xxx

xxx

xxx

Q What happened when you were brought to the 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. [T]hen 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 room, and on that very moment everything on my
mind was 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.
xxx

xxx

xxx6

Q What else happened?


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

xxx

xxx

A Considering all the physical sufferings that I've been through him, I took pity on myself and I felt I was
about to die also because of my blood pressure and the baby, so I got the gun and shot him. 7
It must be stressed that the defense of "Battered Woman Syndrome" was not raised by Marivic before the lower
court but only here on automatic review. This makes the foregoing testimony more worthy of great weight and
credence considering that the same could not have been cunningly given to suit or conform to the profile of a
battered woman.
Moreover, there was indeed basis for Marivic to fear death because of her medical history. Dr. Dino Caing testified
that he treated Marivic for hypertension due to domestically related emotional stress on 23 separate occasions. The
latest one was on November 6, 1995 when she suffered from severe hypertension and had a blood pressure of
180/120 on the 8th month of her pregnancy.8
Furthermore, Dr. Natividad A. Dayan, a clinical psychologist and an expert on BWS who examined Marivic,
assessed the effects of the repeated violence on the latter as follows:
A What I remember ... was it was more than ten years that she was suffering from emotional anguish. There
were a lot of instance of abuses, ... emotional abuse...verbal abuse and... physical abuse. The husband had
very meager income, she was the one who was practically the bread earner of the family. The husband was
involved in a lot of vices, going out with barkadas, drinking, even womanizing, being involved in cockfighting
and in going home very angry which... triggered a lot of physical abuse. She also had the experience of
taunting from the husband for the reason that the husband even accused her of infidelity, the husband was
saying that the child she was carrying was not his own. So she was very angry, she was at the same time
very depressed because she .. .[felt] almost like living in purgatory or even in hell when it was happening
day in and day out.
xxx

xxx

xxx

Q And what was it that triggered ... that tragedy in your opinion?

A I think for several weeks, she was already having all those tensions, all those anxieties, they were not
enough, that the husband was even going to cockfighting x x x
A She was angry with him, he was angry with her and I think he dragged her and even spun her around. She
tried to fight him so there was a lot of fight and when she was able to escape, she went to another room and
she locked herself with the children. And when the husband was for a while very angry he calms down then
and then (sic). But I remember before that the husband was looking for the gun and I think he was not able
to open the cabinet because she had the key. So during that time, I remember, that she was very much
afraid of him, so when the husband calmed down and he was asleep, all she was concerned was to end up
her misery, to save her child which she was carrying and to save her two children. I believe that somehow
she's not rational.9
xxx

xxx

xxx

PROS. TRUYA
Q Mrs. Witness, being an expert witness, giving more the facts and circumstances on this case that the
books you studied in the expertise in line and in the 77 hour contact with appellant Mrs. Genosa, could you
say that this is not ordinary self-defense but a survival on her part?
A Yes, sir.
Q To what she did to her husband (sic)?
A Yes, sir this is not an ordinary self-defense, but this [is] a need to survive, a need to survive with her two
sons and [the] child she's bringing.
Q Had she not able to kill her husband, would she still be in the very short moment with the victim (sic)?
A If she did not do that she believes that she will be the one who would be killed. 10
There is no doubt therefore that Marivic was afflicted with the "Battered Woman Syndrome" and that it was an
apprehension of death and the instinct to defend her and her unborn child's life that drove her to kill her husband.
The ponente further refused to sustain the self-defense proffered by Marivic because there was allegedly no
aggression or danger posed on her life by the victim at the time she attacked the latter. Again, I beg to disagree.
Traditionally, in order that self-defense may be appreciated, the unlawful aggression or the attack must be imminent
and actually in existence. This interpretation must, however, be re-evaluated vis-a-vis the recognized inherent
characteristic of the psyche of a person afflicted with the "Battered Woman Syndrome." As previously discussed,
women afflicted by this syndrome live in constant fear for their life and thus respond in self-defense. Once BWS and
an impending danger based on the conduct of the deceased in previous battering episodes are established, actual
occurrence of an assault is no longer a condition sine qua non before self defense may be upheld. Threatening
behavior or communication can satisfy the required imminence of danger. As stated in theponencia, 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.
In the case at bar, the cycle of violence perpetrated by the deceased, which culminated in the physical assaults and
an attempt to shoot Marivic when she was 8 months pregnant, took the place of unlawful aggression, thus entitling
her to a complete self defense even if there was no actual employment of violence by the deceased at the time of
the killing. Marivic had every reason to believe that the deceased would kill her that night not only because the latter
was verbally threatening to kill her while attempting to get a gun from the drawer, but more importantly because the
deceased wounded her on the wrist with a bolo, and because of the deceased's previous conduct of threatening to
cut her throat with a cutter which he kept in his wallet. Quoted hereunder are the relevant testimonies of Marivic A When I arrived home, he was already in his usual behavior.

xxx

xxx

xxx

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


xxx

xxx

xxx

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

xxx

xxx

A He switch[ed] off the light and the children were shouting because they were scared and he was already
holding a bolo.
Q How do you describe this bolo?
A 1 1/2 feet.
xxx

xxx

xxx

Q You said the children were scared, what else happened as Ben was carrying that bolo?
A He was about to attack me so I ran to the room.
Q What do you mean that he was about to attack you?
A When I attempted] to run he held my hands and he whirled me and I fell [on] the bedside. 11
xxx

xxx

xxx

xxx

xxx

xxx

COURT
To the witness

Q The bolo that you said which Ben was holding at that time, [was] it a bolo or a knife?
A Bolo.
Q Were you wounded or were there inflictions on your body when he was holding and trying to frighten you
[with] that bolo?
A No, only here.
COURT INTERPRETER
(The witness pointed to her wrist).
COURT

To the witness
Q You were demonstrating a motion, whirling, did your husband really whirl you?
A Yes, your Honor.
Q How did he whirl you?
A Whirled around.
Q Just like spinning.
xxx

xxx

xxx

Q Where did he whirl you, was it inside the bedroom or outside?


A In our bedroom.
Q Then after the whirling what happened?
A He kicked my ass and then I screamed.12
xxx

xxx

xxx

Q You screamed for help and he left, do you know where he was going?
A Outside perhaps to drink more.
Q When he left what did you do...?
A I packed all his clothes.
Q What was your reason in packing his clothes?
A I wanted him to leave us.13
A I was frightened that my husband would hurt me, so I packed all his things then on the following day I will
leave, I was afraid and I want to make sure I would deliver my baby safely.14
xxx

xxx

xxx

A After a couple of hours, he went back again and got angry with me for packing his clothes, then he
dragged me again outside of the bedroom holding my neck.
ATTY. TABUCANON
Q You said that when Ben came back to your house, he dragged you? How did he drag... you?
COURT INTERPRETER
(The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)
A And he dragged me towards the door backwards.
ATTY. TABUCANON

Q Where did he bring you?


A Outside the bedroom and he wanted to get something and then he kept shouting at me that "you might as
well be killed so there will be nobody to nag me.
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
xxx

xxx

xxx

Q What happened when you were brought to the 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. [T]hen 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 room, and on that very moment everything on my
mind was 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.
xxx

xxx

xxx

Q You said that he dropped the blade, for the record will you please
describe this blade about 3 inches long, how does it look like?
A Three (3) inches long and 1/2 inch wide.
Q Is it a flexible blade?
A It's a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes sir, that was the object used when he intimidate me.15
RE-DIRECT BY ATTY. TABUCANON
Q In other words, there were two (2) incidents, the first incident and then he left and then two (2) hours after
he came back?
A Yes, sir.

Q And the whirling happened in the first incident?


A Yes, sir.
Q And the dragging with arms flexed in her neck and on that blade
happened on the second incident (sic)?
A Ye, sir.
xxx

xxx

xxx

xxx

xxx

xxx

COURT
To the witness
Q Why, what is that blade about?
A A cutter about 3 inches long.
Q Who used that?
A Ben.
Q He used that on you?
A He scared me on that (sic).

Q But he did not hit you with that?


A Yes, because I managed to run every time he scared (sic). 16
There are many things which cannot be proved by direct evidence. One of this is state of mind. In the case at bar,
there is more than sufficient physical evidence presented by the appellant from which her mental state can be
inferred. The prosecution did not object to the presentation of these physical and testimonial pieces of evidence,
namely, the medical records of 23 instances of domestic violence-related injuries and the testimonies of neighbors,
cousins and even the barangay captain. Indeed, no person would endure 23 reported instances of beatings if she
were planning to kill her spouse in the first place. The majority need not worry that women around the country will
mastermind the killings of their husbands and then use this Decision to bolster their attempts to employ the BWS
defense.
Moreover, as found in the ponencia, appellant should be allowed the mitigating circumstance of passion and
obfuscation. This, at the very least, supports a finding that the acts of violence and battery committed by the
deceased were illegal and unlawful and were committed immediately before appellant could recover her natural
equanimity. But what is the natural equanimity of a battered woman? Appellant was not a normal married woman.
She can never be in a state of natural equanimity as she was in a constant state of alertness and hypersensitivity to
the next phase of acute battery. The esteemed ponente also correctly found that the appellant acted with diminished
will-power. However, he failed to go further. In the case of People v. Javier,17 it was held:
Since accused-appellant has already admitted to the killing, it is incumbent upon him to prove the claimed mitigating
circumstance of illness. In this case, however, aside from the testimony of the accused that his mind went blank
when he killed his wife due to loss of sleep, no medical finding was presented regarding his mental condition at the
time of the killing. This Court can hardly rely on the bare allegations of accused-appellant, nor on mere

presumptions and conjectures. No clear and convincing evidence was shown that accused-appellant was suffering
an illness which diminished his exercise of will-power at the time of the killing. 18
In the case at bar, appellant was allowed and did in fact present clear and convincing evidence that she was a
battered woman for 13-14 years and that she suffered from the "Battered Woman Syndrome". Expert testimony was
presented and admitted to this effect, such that the ponente ably discussed the causes and effects of the syndrome.
To ignore the testimony and the evidence thus presented is to make impossible the proof of mental state. Evidence
as to the mental state need not be also "beyond reasonable doubt."
Verily, the requirement of threatening behavioral pattern of the batterer in previous violent episodes was sufficiently
satisfied in the present case. This, juxtaposed to Marivic's affliction with BWS justified the killing of the deceased.
The danger posed or created in her mind by the latter's threats using bladed weapons, bred a state of fear, where
under the circumstances, the natural response of the battered woman would be to defend herself even at the cost of
taking the life of the batterer.
The ponencia's acknowledgement of "Battered Woman Syndrome" as a valid form of self-defense, is a noble
recognition of the plight of, and a triumph for battered women who are trapped in a culture of silence, shame, and
fear. This would however be an empty victory if we deliberately close our eyes to the antecedents of this case. The
facts are simple. Marivic was suffering from the "Battered Woman Syndrome" and was defending herself when she
killed her husband. Her acquittal of the charge of parricide is therefore in order.
IN VIEW WHEREOF, I vote to ACQUIT Marivic Genosa.
RA 9262
SECTION 26. Battered Woman Syndrome as a Defense. Victim-survivors who are found by the courts to be
suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of
any of the elements for justifying circumstances of self-defense under the Revised Penal Code.
In the determination of the state of mind of the woman who was suffering from battered woman syndrome at the
time of the commission of the crime, the courts shall be assisted by expert psychiatrists/ psychologists.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 180219

November 23, 2011

VIRGILIO TALAMPAS y MATIC, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
By petition for review on certiorari, Virgilio Talampas y Matic (Talampas) seeks the review of the affirmance of his
conviction for homicide (for the killing of the late Ernesto Matic y Masinloc) by the Court of Appeals (CA) through its
decision promulgated on August 16, 2007.1
The Regional Trial Court, Branch 25, in Bian, Laguna (RTC) had rejected his pleas of self-defense and accident
and had declared him guilty of the felony under the judgment rendered on June 22, 2004. 2

Antecedents
The information filed on November 17, 1995, to which Talampas pleaded not guilty, averred as follows: 3
That on or about July 5, 1995, in the Municipality of Bian, Province of Laguna, Philippines and within the
jurisdiction of this Honorable Court, accused VIRGILIO TALAMPAS, with intent to kill, while conveniently armed with
a short firearm and without any justifiable cause, did then and there willfully, unlawfully and feloniously attack,
assault and shoot one Ernesto Matic y Masinloc with the said firearm, thereby inflicting upon him gunshot wound at
the back of his body which directly caused his instantaneous death, to the damage and prejudice of his surviving
heirs.
CONTRARY TO LAW.
The State presented as witnesses Jose Sevillo, Francisco Matic, Jerico Matic, Dr. Valentin Bernales, and Josephine
Matic. The CA summarized their testimonies thuswise:4
Prosecution witness Jose Sevillo (Jose) who allegedly witnessed the incident in question, testified that on July 5,
1995 at about 7:00 oclock in the evening, he together with Eduardo Matic (Eduardo) and Ernesto Matic (Ernesto)
were infront of his house, along the road in Zona Siete (7), Wawa, Malaban, Bian, Laguna, repairing his tricycle
when he noticed the appellant who was riding on a bicycle passed by and stopped. The latter alighted at about three
(3) meters away from him, walked a few steps and brought out a short gun, a revolver, and poked the same to
Eduardo and fired it hitting Eduardo who took refuge behind Ernesto. The appellant again fired his gun three (3)
times, one shot hitting Ernesto at the right portion of his back causing him (Ernesto) to fall on the ground with his
face down. Another shot hit Eduardo on his nape and fell down on his back (patihaya). Thereafter, the appellant ran
away, while he (Jose) and his neighbors brought the victims to the hospital. On June 6, 1995, Jose executed a
Sworn Statement at the Bian Police Station.
Another witness, Francisco Matic, testified that prior to the death of his brother Ernesto who was then 44 years old,
he (Ernesto) was driving a tricycle on a boundary system and earned P100.00 daily, although not on a regular basis
because sometimes Ernesto played in a band for P100.00 per night.
Jerico Matic, eldest son of Ernesto, alleged that he loves his father and his death was so painful to him that he could
not quantify his feelings in terms of money. The death of his father was a great loss to them as they would not be
able to pursue their studies and that nobody would support them financially considering that the money being sent
by their mother in the amount of P2,000.00 to P2,500.00 every three (3) months, would not be enough.
Dr. Valentin Bernales likewise, testified that he was the one who conducted the autopsy on the body of Ernesto and
found one gunshot in the body located at the back of the costal area, right side, sixteen (16) centimeters from the
spinal column. This shot was fatal as it involved the major organs such as the lungs, liver and the spinal column
which caused Ernestos death.
The last witness, Josephine Matic, wife of Ernesto, testified that her husband was laid to rest on July 18, 1995 and
that his untimely death was so painful and that she could not provide her children with sustenance. She asked for
the amount of P200,000.00 for her to be able to send her children to school.
On his part, Talampas interposed self-defense and accident. He insisted that his enemy had been Eduardo Matic
(Eduardo), not victim Ernesto Matic (Ernesto); that Eduardo, who was then with Ernesto at the time of the incident,
had had hit him with a monkey wrench, but he had parried the blow; that he and Eduardo had then grappled for the
monkey wrench; that while they had grappled, he had notice that Eduardo had held a revolver; that he had thus
struggled with Eduardo for control of the revolver, which had accidentally fired and hit Ernesto during their struggling
with each other; that the revolver had again fired, hitting Eduardo in the thigh; that he had then seized the revolver
and shot Eduardo in the head; and that he had then fled the scene when people had started swarming around.
Ruling of the RTC

On June 22, 2004, the RTC, giving credence to the testimony of eyewitness Jose Sevilla, found Talampas guilty
beyond reasonable doubt of homicide,5 and disposed:
WHEREFORE, premises considered, the court finds the accused guilty beyond reasonable doubt of the crime of
Homicide, with one mitigating circumstance of voluntary surrender, and hereby sentences him to suffer an
indeterminate penalty of IMPRISONMENT ranging from TEN (10) years and One (1) day of prision mayor, as
minimum, to FOURTEEN (14) years and EIGHT (8) months of reclusion temporal, as maximum. He is likewise
ordered to pay the heirs of Ernesto Matic y Masinloc the following sums, to wit:
1. P50,000.00 as and for death indemnity;
2. P50,000.00 as and for moral damages;
3. P25,000.00 as and for actual damages; and
4. P30,000.00 as and for temperate damages.
Furnish Public Prosecutor Nofuente, Atty. Navarroza, the private complainant and accused with a copy of this
decision.
SO ORDERED.6
Ruling of the CA
Talampas appealed to the CA, contending that:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT
FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT.
II
THE COURT A QUO GRAVELY ERRED IN NOT FINDING THAT THE DEATH OF ERNESTO MATIC WAS
MERELY ACCIDENTAL.
III
THE COURT A QUO GRAVELY ERRED IN NOT FINDING THAT THE ACCUSED-APPELLANT ACTED IN
DEFENSE OF HIMSELF WHEN HE GRAPPLED WITH EDUARDO MATIC.
Still, the CA affirmed the conviction based on the RTCs factual and legal conclusions, and ruled that Talampas,
having invoked self-defense, had in effect admitted killing Ernesto and had thereby assumed the burden of proving
the elements of self-defense by credible, clear and convincing evidence, but had miserably failed to discharge his
burden.7
The CA deleted the award of temperate damages in view of the awarding of actual damages, pointing out that the
two kinds of damages were mutually exclusive.8
Issue
Hence, Talampas is now before the Court, continuing to insist that his guilt was not proven beyond reasonable
doubt, and that the lower courts both erred in rejecting his claim of self-defense and accidental death.

Ruling
The petition for review is denied for lack of merit.
Firstly, the elements of the plea of self-defense are: (a) unlawful aggression on the part of the victim; (b) reasonable
necessity of the means employed to prevent or repel the unlawful aggression; and (c) lack of sufficient provocation
on the part of the accused in defending himself.9
In the nature of self-defense, the protagonists should be the accused and the victim. The established circumstances
indicated that such did not happen here, for it was Talampas who had initiated the attack only against Eduardo; and
that Ernesto had not been at any time a target of Talampas attack, he having only happened to be present at the
scene of the attack. In reality, neither Eduardo nor Ernesto had committed any unlawful aggression against
Talampas. Thus, Talampas was not repelling any unlawful aggression from the victim (Ernesto), thereby rendering
his plea of self-defense unwarranted.
Secondly, Talampas could not relieve himself of criminal liability by invoking accident as a defense. Article 12(4) of
the Revised Penal Code,10 the legal provision pertinent to accident, contemplates a situation where a person is in
fact in the act of doing something legal, exercising due care, diligence and prudence, but in the process produces
harm or injury to someone or to something not in the least in the mind of the actor an accidental result flowing out
of a legal act.11 Indeed, accident is an event that happens outside the sway of our will, and although it comes about
through some act of our will, it lies beyond the bounds of humanly foreseeable consequences. 12 In short, accident
presupposes the lack of intention to commit the wrong done.
The records eliminate the intervention of accident. Talampas brandished and poked his revolver at Eduardo and
fired it, hitting Eduardo, who quickly rushed to seek refuge behind Ernesto. At that point, Talampas fired his revolver
thrice. One shot hit Ernesto at the right portion of his back and caused Ernesto to fall face down to the ground.
Another shot hit Eduardo on the nape, causing Eduardo to fall on his back. Certainly, Talampas acts were by no
means lawful, being a criminal assault with his revolver against both Eduardo and Ernesto.
And, thirdly, the fact that the target of Talampas assault was Eduardo, not Ernesto, did not excuse his hitting and
killing of Ernesto. The fatal hitting of Ernesto was the natural and direct consequence of Talampas felonious deadly
assault against Eduardo. Talampas poor aim amounted to aberratio ictus, or mistake in the blow, a circumstance
that neither exempted him from criminal responsibility nor mitigated his criminal liability. Lo que es causa de la
causa, es causa del mal causado (what is the cause of the cause is the cause of the evil caused). 13Under Article 4 of
the Revised Penal Code,14 criminal liability is incurred by any person committing a felony although the wrongful act
done be different from that which he intended.
Nonetheless, the Court finds the indeterminate sentence of 10 years and one day of prision mayor, as minimum, to
14 years and eight months, as maximum, legally erroneous.
The penalty for homicide under Article 246 of the Revised Penal Code is reclusion temporal. Under Section 1 of the
Indeterminate Sentence Law,15 the court, in imposing a prison sentence for an offense punished by the Revised
Penal Code, or its amendments, is mandated to prescribe an indeterminate sentence the maximum term of which
shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the
Revised Penal Code, and the minimum term shall be within the range of the penalty next lower to that prescribed by
the Revised Penal Code for the offense. With the absence of aggravating or mitigating circumstances, the
imposable penalty is reclusion temporal in its medium period, or 14 years, eight months, and one day to 17 years
and four months. This is pursuant to Article 64 of the Revised Penal Code. 16 It is such period that the maximum term
of the indeterminate sentence should be reckoned from. Hence, limiting the maximum term of the indeterminate
sentence at only 14 years and eight months contravened the express provision of the Indeterminate Sentence Law,
for such penalty was within the minimum period of reclusion temporal. Accordingly, the Court must add one day to
the maximum term fixed by the lower courts.
1avvphi1

The Court finds to be unnecessary the increment of one day as part of the minimum term of the indeterminate
sentence. It may be true that the increment did not constitute an error, because the minimum term thus fixed was
entirely within the parameters of the Indeterminate Sentence Law. Yet, the addition of one day to the 10 years as the
minimum term of the indeterminate sentence of Talampas may occasion a degree of inconvenience when it will be
time for the penal administrators concerned to consider and determine whether Talampas is already qualified to
enjoy the benefits of the Indeterminate Sentence Law. Hence, in order to simplify the computation of the minimum
penalty of the indeterminate sentence, the Court deletes the one-day increment from the minimum term of the
indeterminate sentence.
WHEREFORE, the Court AFFIRMS the decision promulgated on August 16, 2007 finding VIRGILIO TALAMPAS y
MATIC guilty beyond reasonable doubt of the crime of homicide, and IMPOSES the indeterminate sentence of 10
years of prision mayor, as minimum, to 14 years, eight months, and one day of reclusion temporal, as maximum.
The petitioner shall pay the costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
Republic of the Philippines
SUPREME COURT
Baguio
THIRD DIVISION
G.R. No. 139213-14

April 4, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
JONAHS JABIAN y TARROSA and JIMMY MAGARO y GILLANG, accused-appellants.
GONZAGA-REYES, J.:
Accused Jonahs Jabian y Tarrosa and his friend Jimmy Magaro y Gillang were charged with murder for the death of
Jose Sammy Daza y Mangubat in a stabbing incident that occurred late in the evening of December 1, 1998. On the
same occasion, Solomon Daza, Jr., brother of Jose Sammy, was stabbed by Jonahs as the latter was leaving the
crime scene, Solomon sustaining an injury which would have been fatal had it not been seasonably attended to
medically. Jonahs was charged also with frustrated murder.
The informations for murder against Jonahs Jabian and Jimmy Magaro, and for frustrated murder against Jonahs
Jabian alone, respectively read as follows:
Crim. Case No. 19478
"That on or about the 1st day of December 1998, in the City of Bacolod, Philippines, and within the
jurisdiction of this Honorable Court, the herein accused, conspiring, confederating and mutually helping each
other, without any justifiable cause or motive, being then armed with a fan knife (batangueo), with intent to
kill and by means of treachery with evident premeditation, did then and there willfully, unlawfully and
feloniously assault, attack and stab one Jose Sammy Daza y Mangubat, thereby inflicting upon the person
of the latter (sic) stab wound which directly caused the death of said victim, to the damage and prejudice of
the heirs of said Jose Sammy Daza y Mangubat.

That the crime was committed with the attendance of the aggravating circumstance of dwelling of the said
victim Jose Sammy Daza y Mangubat.
Act contrary to law."1
Crim. Case No. 19477:
"That on or about the 1st day of December 1998, in the City of Bacolod, Philippines, and within the
jurisdiction of this Honorable Court, the herein accused, without any justifiable cause or motive, being then
armed with a fan knife (batangueo), with intent to kill, by means of treachery and evident premeditation, did
then and there wilfully, unlawfully and feloniously assault, attack and stab with said bladed weapon one
Solomon Daza, Jr. y Mangubat, thereby inflicting upon the person of the latter a stabbed (sic) wound, thus
performing all the acts of execution which would have produced the crime of murder as a consequence but
which nevertheless did not produce it by reason of some cause or accident independent of the will of said
accused, that is, by the timely and able medical assistance rendered to said Solomon Daza, Jr. y Mangubat
which prevented his death.
That the crime was committed with the attendance of the aggravating circumstance of dwelling of the said
victim.
Act contrary to law."2
When arraigned on January 13, 1999, both accused Jonahs Jabian and Jimmy Magaro pleaded not guilty to the
charge of murder, while Jonahs Jabian entered a negative plea to the charge of frustrated murder.
Since the two incidents happened on the same occasion, a joint pre-trial conference and joint trial were conducted.
The prosecutions version is drawn from the testimonies of Joel Daza, a 12-year old brother of the victims, Ruel
Lipalam, and Sally Daza (as rebuttal witness) who were all present at the crime scene, the attending physicians,
and the police investigator. Both accused testified in their behalf.
The prosecutions version of the incident is stated in the appellees consolidated brief as follows:
"At around 11:00 oclock in the evening of December 1, 1998, Joel Daza, his sister Sally Daza and her suitor
Ruel Lipalam were sitting and conversing at the upper steps of the stairway leading to the second floor of
the two-storey house of the Daza family situated in Molave Extension, Barangay Villamonte, Bacolod City (p.
5, TSN, March 2, 1999). They were at the same time watching just three arms length away victim Jose
Sammy Daza, Joel and Sallys brother and his friend Okie seated together drinking Tanduay, a local rhum
and playing "tong-its", a car game at the ground floor which serves as the dining room and store of the
house (p. 14, TSN, February 22, 1999).
The peace of the night was shattered when at the precise moment, Jimmy Magaro suddenly appeared and
entered the door, which is beside the stairway. Magaro who is tall and with a big physique, quickly
approached and held the hands of the diminutive and unsuspecting hunchbacked Jose Sammy from behind.
Jose Sammy stood up and struggled to free himself from Magaros hold, shouting "let me go; let go of me,
Jimmy" but to no avail. Maintaining his hold, Magaro was able to force Jose Sammy face the door (p. 13,
TSN, March 2, 1999; p. 7, TSN, March 8, 1999).
Right then and there, Jabian who entered the door trailing behind Magaro, immediately stabbed Jose Daza
once with a knife at the lower left breast just below the nipple (p. 14, TSN, March 2, 1999). During the
incident, Okie stepped aside in a corner and did not do anything (p. 5, TSN, March 8, 1999) while Lipalam
was prevented by Sally Daza from going downstairs (Ibid, p. 8).

Immediately thereafter, Magaro ran out of the house followed by Jabian passing through the same door of
the house they entered (ibid, p. 15). Jabian bumped his head on one for the posts of the house on his way
out (p. 17, TSN, February 22, 1999).
Outside the house Jabian met Solomon Daza, Jr. who was walking and about to enter the door of the house
(ibid, p. 19; p. 16, TSN, March 2, 1999). At that instant, Jabian stabbed Solomon Daza with a single blow of
the same fan knife he used in hitting Jose Daza, at the left side of the abdomen (pp. 16-17, TSN,ibid). Both
accused continued with the escape.
Jabian was arrested minutes later by the police (p. 36, TSN, March 8, 1999), while Magaro was arrested in
the morning of the following day after visiting Jabian at the police station.
The brothers Jose and Solomon Daza were brought to the Doctors Hospital of Bacolod City (p. 3, TSN,
February 24, 2000). Jose Daza died. The cause of his death was cardio-respiratory arrest, shock,
hemorrhage, severe internal ruptured heart and lung due to stab wound (p. 6, TSN, March 2, 1999).
Solomon Daza, on the other hand, suffered a fatal stab wound in the left upper portion of the umbilicus.
However, due to timely medical attendance, his impending death was prevented (pp. 20-22, TSN, February
24, 1999)."3
The accused Jonahs Jabian claimed self-defense. His version of the stabbing incident is contained in his testimony
as summarized in his appellants brief as follows:
"As testified to by Jonahs Jabian, when he and Raymundo Baldava entered the carinderia of the Dazas,
Jose Sammy Daza, Okie and Solomon Daza were already drinking long neck gin. He was invited by Okie to
drink gin but he refused to do so because he had just eaten his supper. When he refused the invitation of
Okie, the latter insulted him by saying, DAW SA TONTO KA (YOU ARE NAUGHTY). Okie then stood up and
strangled him (Jabian) so he stepped backwards. Jose Sammy Daza held him. As he was being held by
Jose Sammy Daza, Okie struck him with a bottle of gin (cuatro cantos) on the head. (ANNEX "B" EXCERPT
FROM THE PS4 BLOTTER REPORT ENTRY NOS. 98-10011 PP. 0490 & ANNEX "C" MEDICAL
CERTIFICATE OF JONAHS JABIAN DATED DECEMBER 3, 1998). Because of the pain, for a while, he lost
his vision and he was able to embrace Jose Sammy Daza. As he was embracing Jose Sammy Daza, he
was able to touch the fan knife on the back pocket of Jose Sammy Daza. He got hold of the fan knife and
pushed Jose Sammy Daza forward with his left hand and then stabbed him in front. Then he faced Okie
stabbed him on the right arm and ran towards the door. And as he was about to escape, Solomon blocked
his way so he also stabbed Solomon (TSN of March 8, 1999, pp. 29-38)."4
For his part, Jimmy Magaro raised alibi as a defense. He claimed that he had been drinking in the evening of
December 1, 1999 with his friends Jessie Ramos and Daniel Centeno, and when he was already drunk he was
brought to the guardhouse in front of West Negros College and left there to sleep until 6:00 a.m. of the following day.
The court a quo found both accused guilty of murder in Criminal Case No. 19478, having acted in conspiracy with
each other in the treacherous slaying of Jose Sammy Daza, and found Jonahs Jabian guilty of frustrated murder in
Criminal Case No. 19477. The dispositive portion of the judgment reads as follows:
"WHEREFORE, finding both accused Jonahs Jabian y Tarrosa and Jimmy Magaro y Gillang GUILTY beyond
reasonable doubt of Murder, as co-conspirators, in Criminal Case No. 19478, JUDGMENT is hereby
rendered imposing upon each of them the penalty of RECLUSION PERPETUA, as well as the accessory
penalty prescribed by law. They are also ordered to jointly pay the heirs of deceased Jose Sammy
Daza; P50,000.00 as civil indemnity for his death; and P25,000.00 as moral damages. Costs against both of
them.
Also, finding accused Jonahs Jabian y Tarrosa GUILTY beyond reasonable doubt of Frustrated Murder in
Criminal Case No. 19477, he is hereby condemned to suffer imprisonment of EIGHT (8) YEARS and
FIFTEEN (15) DAYS of prision mayor, as minimum of his sentence, to FOURTEEN (14) YEARS and FOUR

(4) MONTHS, of reclusion temporal, as maximum, and the accessory penalty provided by law. Costs against
him.
Both accused Jonahs Jabian and Jimmy Magaro being detained by reason of the present cases, the period
of their preventive imprisonment shall be credited in their favor and shall be conducted from the service of
their sentence, provided they have agreed in writing to abide by the same disciplinary rules imposed upon
convicted prisoners pursuant to Article 29 of the Revised Penal Code." 5
Both parties have appealed to this Court and filed separate briefs.
Jonahs Jabian interposes the following assignments of error in his brief:
"I
THE TESTIMONY OF PROSECUTION WITNESS JOEL DAZA WERE ALL FABRICATED FROM THE
FERTILE MINDS OF JOEL DAZA AS EVIDENCED BY THE NUMEROUS INCONSISTENCIES.
II
TREACHERY HAS NOT ATTENDED THE COMMISSION OF THE CRIME OF MURDER AS FOUND BY
THE HONORABLE JUDGE.
III
CONSPIRACY COULD NOT HAVE EXISTED BETWEEN JONAHS JABIAN AND JIMMY MAGARO IN THE
CRIME OF MURDER.
IV
NO AGGRAVATING CIRCUMSTANCE OF TREACHERY EXISTS WHICH WOULD QUALIFY THE CRIME
COMMITTED AGAINST SOLOMON DAZA, JR. AS FRUSTRATED MURDER.
V
SELF-DEFENSE AS MITIGATING CIRCUMSTANCE SHOULD HAVE BEEN APPRECIATED IN FAVOR OF
JONAHS JABIAN."6
On the other hand, Jimmy Magaros brief submits the following arguments to establish his "non-guilt":
"A
There are two major, unrebutted crucial facts in this case which, with all due respect, have not been properly
appraised by the Honorable RTC: the fact, first, that Accused Jimmy Magaro went to the police station
immediately the following morning after the incident subject matter of this case. The second, the Accused
was drunk at the time that the alleged crime was committed, having been received by a security guard of a
very nearby school to sleep there at the night that the incident happened just a few meters away.
B
MOREOVER, the Honorable RTC erred in not giving due credence to co-Accused Jonahs Jabians
testimony that Accused Jimmy Magaro was not his companion in stabbing the victim to death.

TAKEN ALTOGETHER, these facts were more than sufficient to establish reasonable doubt, if not outright
non-guilt.
C
Or, in the alternative, granting arguendo that Accused indeed participated in the commission of the crime,
the fact that he went to the police station the following day where he was easily apprehended should have
been and should be considered as a mitigating circumstance analogous to voluntary surrender, and the fact
that he was drunk, absent the showing of habituality or intentionality, should have been and should be
considered as another mitigating circumstance, resulting in the lowering of the penalty imposed." 7
After a careful review of the evidence, we resolve to affirm the decision of the trial court with modification.
Accused-appellant Jabians brief assails the testimony of eye-witness Joel Daza, on the following grounds:
"(1) Joel Daza could not have seen his brother Jose Sammy Daza and Okie at the lower level of the house
because he was at the upper level when the incident accused;
(2) Joel Daza testified that Magaro was already inside the house together with Lipalam at around 11:00
oclock in the evening of the incident contrary to Joel Dazas statement that Magaro and Jabian entered the
house together;
(3) Joel Daza missed to mention that Sally Daza was sitting beside Lipalam and Joel Daza at the second
level of the house at the time of the incident and at the same time Raymundo Baldava entered also the
store;
(4) Joel Daza was caught lying as to the date of the incident as happening on a Sunday when in fact it was
on a Tuesday; and
(5) Joel Daza testified that no exchange of words transpired between Jabian, Magaro, Jose Daza and Okie
contrary to Lipalams testimony that there were arguments heard downstairs coming from three persons
during the incident."8
The above arguments are not convincing. The alleged flaws or imperfections in the recounting of the stabbing
incident which Joel witnessed together with his sister Sally and the latters suitor Lipalam, at a distance of just three
arms length away from the place where his brother Jose was stabbed, are not of substantial consequence. Such
minor inconsistencies in the narration do not detract from the essence of Joels testimony that he actually saw the
two accused suddenly appear at their place, after which Jimmy Magaro held the hands of the dimunitive Jose
Sammy from behind, and Jabian immediately stabbed Jose Sammy with a knife at the lower left breast just below
the nipple. He also witnessed the subsequent stabbing of Solomon at the left side of the abdomen by Jabian with
the same fan knife that was used in stabbing Jose Sammy, as Jabian was escaping from the scene. Joels
testimony was corroborated by Sally Daza and Ruel Lipalam both of whom also saw clearly the stabbing, and gave
a uniform and consistent account of the incident in court.
Accused-appellant Jabians attempt to discredit Joels testimony by asserting that the upper level of the Dazas
house is the bedroom from which place it was inconceivable that Joel could have witnessed what transpired
downstairs between Jose Sammy and the accused-appellant Jabian, is unconvincing. Joel, Ruel and Sally uniformly
testified that they were sitting at the upper part of the staircase leading to the second floor when they saw the two
accused-appellants enter the ground floor where the victim Jose Sonny was playing "tong-its" with his friend Okie,
and was suddenly assaulted by the two accused-appellants. The staircase was beside the door downstairs and was
around three arms length away from the door near which Jose Sammy and Okie were playing cards. 9 The view of
the three witnesses was unobstructed.10

As regards the alleged inconsistency in the testimony of Joel that Jimmy Magaro was already watching the card
game before the arrival of Jonahs Jabian and yet he saw Jimmy Magaro and Jonahs Jabian arrive together, the
twelve-year old witness clarified that Magaro was "able to get out of the store and later re-entered together with
Jabian".11 Also, whether Joel correctly or incorrectly recalled that the incident happened on a Sunday, or on a
Tuesday, and whether he failed to mention the presence of Raymundo Baldava, which her sister Sally
acknowledged in her testimony, these statements refer to matters that are of no serious consequence that would
necessarily erode the credibility of an eyewitness account. In like manner, Joels failure to recall hearing an
exchange of words transpiring between the co-accused and the victim during the incident contrary to Lipalams
testimony, does not impair the veracity of Joels narration, which together with the testimony of the two other
witnesses present at the crime scene, were described by the court as having been given in a "clear, candid,
convincing and forthright manner, free from major contradiction and consistency and prevarication." This
observation of the trial court should be respected, there being nothing in the record to derogate from the same.
1wphi1.nt

Anent the presence of treachery as a circumstance that qualifies the killing to murder, we affirm the trial courts
finding that the killing was attended by treachery judged by the manner with which the attack was carried out. Jose
Sammy was attacked and stabbed without provocation and was thus totally unaware of the impending attack, and
had nary an opportunity to repel the aggression or defend himself. Jose Sammy was a hunchback and he was
stabbed in the chest by Jabian while his hands were held at the back by Magaro, indicating not only the presence of
treachery, because his physical condition and the suddenness of the aggression did not allow him to repel the
impending attack, but also the existence of a conspiracy between the two accused-appellants as evidenced by their
having acted in cooperation and concert with each other to carry out a common criminal purpose and design to kill
Jose Sammy. We quote with approval the trial courts ratiocination.
"Here in the case at bar, it was clearly and persuasively demonstrated by prosecution witnesses that when
accused Magaro entered the ground floor of the Daza residence, doubling as a store, he instantly
approached Jose Sammy who was unarmed and focused in a card game with Oke and, and accused
Magaro firmly held both Jose Sammys hands at the victims back. The victims futile effort to extricate
himself was no match to Magaros height, strength and build, which were excessive for the diminutive
hunchback. Thus held still to face accused Jabian, who was treading on the heels of Magaro in entering the
house, Jabian delivered the death blow with a fanknife in the chest of Jose Sammy. After their victim was hit
with a deadly thrust of Jabian, Magaro released his grip on Jose Sammy and the duo fled together towards
the door. Meeting on the way to their escape Solomon Daza, Jr., Jabian lost no time in also stabbing him in
the belly, perhaps mistaking said other victim to succor his brother Jose Sammy. They then proceeded to
pursue their joint flight.
A person found in conspiracy with the actual perpetrator of the crime by performing specific acts with such
closeness and coordination as the one who executed the criminal act is equally guilty as the other. (People
vs. Matubis, et al., G.R. No. 109774, March 27, 1998).
Quite obviously, the conspiracy between Jabian and Magaro was manifested by the manner with which the
attack was carried out, giving Jose Sammy no chance to defend himself or to escape from the aggressors
since he was steadfastly held immobile by Magaro in order to be stabbed by Jabian. The killing was thus
qualified by treachery. Then attacked and stabbed without provocation, the victim was deliberately deprived
of any opportunity to extricate himself from the hold of Magaro or defend himself from the imminent death
blow of Jabian, since his physical condition and the suddenness of the aggression could not allow him to. In
the similar case of People vs. Apongan, G.R. No. 112360, April 4, 1997, the Supreme Court treanchantly
said: In the case at bench, the victim was innocently walking and totally unaware of the impending attack
upon her by the persons she was about to meet ahead. To ensure the success of their criminal design, one
of the assailants held the victims arms while the other viciously stabbed her. x x x The suddenness of such
savage attack, without the slightest provocation from the victim who was unarmed had nary an opportunity
to repel the aggression or defend himself, ineluctably qualifies the crime with alevosia." 12
Accused-appellant Jabians suggestion that an argument between the parties preceded the slaying as testified to by
Ruel Lipalam, coupled with the fact that the attack was frontal, as shown by location of the wound, and that

therefore the killing as of Jose Sammy was not sudden or unexpected as to negate a finding of treachery, cannot be
sustained. There is treachery when the offender commits any of the crimes against person, employing means,
methods or forms in the execution thereof which tend to directly and specially to insure its execution, without risk to
himself arising from the defense which the offended party might make. 13 Thus, it has been held that the fact that the
attack was preceded by a fight, or even when the victim was forewarned of danger to his person 14 does not negate
treachery. In this case, accused-appellant Jimmy Magaro held both arms of the victim behind his back, effectively
rendering the latter incapable of defending himself while the other accused stabbed him in the chest. As correctly
pointed out by the trial court, the victim was "a virtual sitting duck when stabbed by Jabian because he was
handclasped by Magaro in order to be so stabbed, without any risk whatsoever to the two accused arising from any
useful defense which Jose Sammy might make."15 Indeed, "what contributed to the inability of the victim xxx to
escape or defend himself from the attack were his small and fragile frame and his being a hunchback." 16
We also find no cogent basis for disturbing the trial courts conclusion rejecting Jabians claim of self-defense. By his
admission that he killed his victim, he assumed the burden of proof to establish his plea of self-defense by credible,
clear and convincing evidence. Jabians version was uncorroborated and was not credible. Thus, the trial court
correctly observed:
"On this score, for self-defense to prosper, it must be positively shown that there was a previous unlawful
and unprovoked attack that placed the life of the accused in danger and forced him to inflict more or less
severe wounds upon his assailant, employing therefor reasonable means to resist said attack (People vs.
Sambulan, supra; People vs. Obzanar, 265 SCRA 547; People vs. Balamban, 264 SCRA 619). Jabians sole
testimony tried to demonstrate that he accompanied his friend Raymundo Baldava inside the Daza store to
use the pay phone. Inside, he was invited by Oke to drink gin but since he refused Oke was slighted and
stood up to strangle Jabian who stepped back. Then Jose Sammy held accused while Oke struck Jabian
with a gin bottle; causing Jabian to lose his vision and embrace Jose Sammy. While hugging Jose Sammy,
Jabian incidentally touched the fanknife placed placed in the formers back pocket, pulled the same and
pushed Jose Sammy away with his left and stabbed the victim once. Then he faced Oke and stabbed him
too at the right arm and ran towards the door. As Solomon Daza, Jr. blocked the door, Jabian stabbed him
also at the abdomen and dashed away.
For one, Baldava was not presented, or refused, to substantiate the claim of accused Jabian of having acted
in self-defense. While Baldavas presence at the Daza store was admitted by prosecution witness Sally
Daza Lipalam, the phone call he made was earlier or prior to the joint entry of accused Magaro and Jabian.
During the actual incident, Baldava had already left the place. Second, even if he assume a gratia argumenti
that Oke attempted to strangle Jabian, it was impossible or foolhardy for Jose Sammy who was physically
handicapped to hold, contain and control Jabian who was taller, heavier and sturdier because a light push,
elbow, kick or fist blow would have easily freed Jabian from Jose Sammy. Jabian even alleged that he just
pushed Jose Sammy away when he touched and pulled the fanknife from the back pocket of the petite
hunchback. Third, considering the mark advantage of Jabian over Jose Sammy in height and build,
accused, if he was indeed attacked by Oke, could have easily used Jose Sammy as shield, for it was not the
latter, if we have to accept the version purveyed by said accused, who was the aggressor but Oke. Fourth,
the fanknife, if it was really owned by the victim, was not used by him against Jabian such that there was no
necessity for him to repel or prevent an imagined aggression from the victim who was incapable of staging
one on account of his physical condition. Fifth, the knife was also admittedly used by Jabian in stabbing his
second victim Solomon Daza, Jr., and the weapon was kept by him to indicate his ownership thereof since
the same was not presented in evidence. Sixth, after pulling the fanknife, Jabian quite comfortably opened
or unfolded it, for it is publicly known that a balisong (fan knife) is encased with a safety clip, in its own
handle or scabbard, demonstrating that he was familiar with the features of the fatal weapon since he owned
the same. Seventh, Jabians Exhibit "1" (excerpt of Police Blotter entry) showed that after he was arrested
that very night, he confessed and admitted the killing but never claimed having been injured or acted in selfdefense. Eight, the same police blotter entry (also Exh. "1"-Magaro) states that as of time of the recording of
the events, prosecution witnesses Ruel Lipalam and Joel Daza identified both accused Jonahs Jabian and
Jimmy Magaro as together and companions during the stabbing incident. Ninth, the police blotter entry (Exh.
"1"-Jabian) to the effect that Jabian was struck with a gin bottle by Oke, was recorded only on "03 1410_
Dec. 98," meaning on December 3, 1998 at 2:10 oclock in the afternoon, or about two days after the tragic

incident, when the accused had enough time to fashion, conceive and concoct the claim of self-defense out
of the injury Jabian sustained in banging his head against the door jamb. And tenth, Jabians Medical
Certificate (Exh. "2"-Jabian) is also dated December 3, 1998, showing that he submitted himself for medical
examination only two days after the incident."17
The existence of conspiracy between the two accused-appellants was duly established. This was proven by the
manner in which the attack was carried out, i.e., the two accused-appellants acted in concert in the commission of
the offense, manifesting a common purpose or design and unity in its execution. Although Jabian denied that
Magaro was not present at that time of the incident, and claimed that he was even visited by Magaro in the jail
following the slaying, this cannot prevail over the positive identification made by the three prosecution witnesses
who were present at the crime scene, and who by the admission of the accused were his friends and could not have
been impelled by any improper motive to falsely implicate the accused.
For his part, Jimmy Magaros appeal focuses on the alleged erroneous rejection of his defense of alibi, i.e., that he
was then asleep at the guardhouse of West Negros College, which was bolstered by Jabians disclaimer that
Magaro was present at the crime scene. The trial court justified its rejection of alibi, pointing out that Magaro went to
the guardhouse to sleep long after the crime was committed. Considering that his boarding house was just at the
back of the Daza residence, he deliberately slept in the guardhouse "in order to feign a perfect alibi." 18 Settled is the
rule that alibi as a defense is inherently weak and cannot prevail over the clear and positive identification made by
the witnesses present at the locus criminis. More important, the crime scene was merely sixty meters away from the
guardhouse and such a short distance does not preclude the physical impossibility for the accused to have been at
the place where the victim was attacked.
Accused-appellant Magaro next posits that the fact that he visited his co-accused Jabian in the jail on the day
following the slaying incident is an indication of his innocence, as human experience teaches that "no man who is
truly guilty of any offense would be visiting his alleged co-principal in jail right the next day." 19 The argument is not
tenable. Although flight may be an indication of guilt, there is no case law holding that non-flight is conclusive proof
of innocence.20
Magaros alternative prayer that his visit in jail should at least be appreciated as a mitigating circumstance of
voluntary surrender must likewise fail. By his own admission, he went to the jail to visit Jabian, and his visit may by
no means be considered voluntary surrender. He went to the jail without the least intention to surrender his person
to the police authorities or a person in authority.
On the other hand, we find tenable Magaros plea that drunkenness should be appreciated in his favor as a
mitigating circumstance. He was very drunk past midnight, when he was left at the guardhouse of West Negros
College, where he was allowed to sleep until the following morning. The security guard on duty, Rommel Inorino,
confirmed Magaros state of intoxication.21 In the absence of proof that the drunkenness was habitual or
delinquent, i.e., subsequent to the plan to commit the crime or related to the intention to kill, it is presumed to be
non-habitual or unintentional, and should be appreciated in his favor. Unfortunately, the presence of a mitigating
circumstance will not cause a reduction of the penalty because the penalty for murder is reclusion perpetua to
death,22 and the only imposable penalty is the lesser penalty of reclusion perpetua pursuant to Article 63 of the
Revised Penal Code which reads, insofar as pertinent:
"In all cases in which the law prescribes a penalty composed of two indivisible penalties the following rules
shall be observed in the application thereof:
xxx
3. When the commission of the act is attended by some mitigating circumstance and there is no aggravating
circumstance, the lesser penalty shall be applied."
With respect to Criminal Case No. 19477, we agree with the Solicitor General that the crime committed is only
frustrated homicide. Based on the testimony of Joel Daza and Ruel Lipalam, there was no proof that Jabian

deliberately planned to stab Solomon Daza, Jr. Both witnesses saw Jabian stab Solomon Daza as the latter was
about to enter the door of the house for the purpose of washing himself, immediately after Jose Daza had been
stabbed and the two accused were in the act of escaping, thus indicating that there was only a chance encounter
between Jabian and Solomon Daza, Jr. Such accidental encounter is not consistent with a finding of treachery and
therefore the stabbing should merely constitute frustrated homicide, which is punishable by prision mayor.
WHEREFORE, the decision appealed from is AFFIRMED with MODIFICATION. It is AFFIRMED insofar as Jonahs
Jabian y Tarrosa and Jimmy Magaro y Gillang are found guilty beyond reasonable doubt of Murder, as coconspirators, in Criminal Case No. 19478, and are sentenced to suffer the penalty of recluson perpetua, as well as
the accessory penalties prescribed by law.
1wphi1.nt

With respect to Criminal Case No. 19477, Jonahs Jabian y Tarrosa is find guilty beyond reasonable doubt of
frustrated homicide and sentenced to suffer the penalty of 8 years and 1 day to 10 years of prision mayor.
The rest of the judgment pertaining to the civil liability, and the crediting of the period of preventive imprisonment in
favor of the accused as ordered by the trial court is AFFIRMED.
SO ORDERED.
Melo, Vitug, Panganiban, Sandoval-Gutierrez, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 128966

August 18, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
EDWIN DE VERA y GARCIA, RODERICK GARCIA y GALAMGAM, KENNETH FLORENDO and ELMER
CASTRO, accused,
EDWIN DE VERA y GARCIA, appellant.
PANGANIBAN, J.:
When is a lookout deemed an accomplice and when a conspirator? What is the distinction between the two?
Statement of the Case
These are the main questions passed upon by the Court in resolving the present appeal, which assails the March
12, 1997 Decision1 of the Regional Trial Court of Quezon City (Branch 57) in Criminal Case No. Q-92-31323, finding
Appellant Edwin De Vera and Accused Roderick Garcia guilty beyond reasonable doubt of murder and sentencing
them to reclusion perpetua.
In an Information dated June 11, 1992, Assistant City Prosecutor Tirso M. Gavero charged with murder Appellant
Edwin De Vera, together with Roderick Garcia and two other persons who were subsequently identified during the
trial as Kenneth Florendo and Elmer Castro. The crime was allegedly committed as follows:
That on or about the 8th day of June, 1992, in Quezon City, Philippines, the said accused, conspiring [and]
confederating [with] and helping . . . two (2) other persons, did then and there wilfully, unlawfully and
feloniously with intent to kill, with evident premeditation, treachery and use of superior strength, attack,
assault and employ personal violence upon the person of one FREDERICK CAPULONG y DIZON, by then
and there shooting him with the use of a .22 cal. with trade mark "Paspar Armas" bearing SN-29069 with five

(5) pieces of caliber 22 ammo inside, hitting him between his eyes and striking him with the use of a
baseball bat in the mouth, thereby inflicting upon him serious and mortal wounds which were the direct and
immediate cause of his untimely death, to the damage and prejudice of the heirs of the said Frederick
Capulong y Dizon.2
On July 9, 1992, Assistant City Prosecutor Enrico P. Bringas filed a Motion to Amend the Information to include the
use of a .32 caliber firearm in the killing of Frederick Capulong. The trial court granted the Motion, and the Amended
Information now reads as follows:
That on or about the 8th day of June, 1992, in Quezon City, Philippines, the said accused, conspiring [and]
confederating [with] and helping . . . two (2) other persons, did then and there wilfully, unlawfully and
feloniously with intent to kill, with evident premeditation, treachery and use of superior strength, attack,
assault and employ personal violence upon the person of one FREDERICK CAPULONG y DIZON, by then
and there shooting him with the use of a .22 cal. with trade mark "Paspar Armas" bearing SN-29069 with five
(5) pieces of caliber 22 ammo inside and a .32 cal. firearm of still undetermined make, hitting him between
his eyes and striking him with the use of a baseball bat in the mouth, thereby inflicting upon him serious and
mortal wounds which were the direct and immediate cause of his untimely death, to the damage and
prejudice of the heirs of the said Frederick Capulong y Dizon.3
On their arraignment, Appellant Edwin De Vera4 and Roderick Garcia5 pleaded not guilty. The other two accused
were at large. Trial in due course proceeded only against De Vera and Garcia. Thereafter, the trial court rendered
the assailed Decision, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered finding the accused EDWIN DE VERA y GARCIA and
RODERICK GARCIA y GALAMGAM guilty beyond reasonable doubt of the crime of MURDER and they are
hereby accordingly sentenced to suffer reclusion perpetua, including all its accessory penalties; to indemnify
the heirs of Frederick Capulong y Dizon, as follows:
a) P50,000.00, as death indemnity;
b) P211,670.00, as compensatory damages;
c) P600,000.00, as indemnification for loss of earning capacity;
d) P500,000.00, as moral damages;
e) Interest at the legal rate on a) and b), hereof from the filing of the information until full payment;
and,
f) Costs of suit.16
Only Edwin De Vera filed a Notice of Appeal.7
The Facts
Version of the Prosecution
In its Brief,8 the Office of the Solicitor General presented the following narration of facts: 9
As earlier stated, the prosecution presented an eyewitness in the person of Bernardino Cacao, a
resident of Denver Loop Street, Filinvest II, Quezon City before he moved to No. 58 Elisa Street,
Caloocan City. He was residing at Filinvest II, together with his wife and children, at the time of the
incident on June 28, 1992 in the house owned by David Lim. He was then employed at a Kodak
branch in Caloocan City, while his wife served as secretary of the homeowners association.
1wphi1.nt

About 1:30 in the afternoon of June 8, 1992, while bringing out the garbage, the witness saw a car
passing by, driven by victim Frederick Capulong together with four (4) other passengers. He knew
the victim by name who was a resident of the subdivision. He recognized and identified two of the
passengers as Kenneth Florendo and Roderick Garcia, both familiar in the subdivision.
Cacao did not at first notice anything unusual inside the car while it passed by him, but then he
heard unintelligible voices coming from the car as it was cruising around Denver Loop Street, a
circular road whose entrance and exit were through the same point (ibid, p. 12). His curiosity taking
[the] better part of him, Cacao walked to the opposite side of the road from where he saw the car
already parked. Moments later, he saw the victim dragged out of the car by Florendo and brought to
a grassy place. Florendo was holding a gun (ibid, p. 13). Upon reaching the grassy spot, Florendo
aimed and fired the gun at the victim, hitting him between the eyes, After the shooting, Florendo and
his companions fled in different directions.
When he submitted a sworn statement to the investigating prosecutor, Cacao attached a sketch of
the crime scene prepared by police officers, indicating therein his relative position at the time of the
incident. While testifying in court, Cacao identified Garcia and pointed to appellant as among the
companions of Florendo.
Ten minutes later, or about 2:40 in the afternoon, the desk officer of the Investigation Division,
Station 5, Central Police District, Quezon City received a report about the shooting incident from a
security guard of the subdivision. The officer immediately dispatched a team to Filinvest II,
composed of PO2 Armando Garcia, PO3 Armando Junio, and PO3 Jovencio Villacorte, to investigate
and gather evidence (TSN, p. 5, September 13, 1993). A security guard guided the team to the
corner of Denver and Doa Justina Streets, site of the shooting, where they discovered blood stains
and damaged grass (ibid, p. 6). The guard informed them that the victim was rushed to the East
Avenue Medical Center by other security guards. The policemen then found a color red sports car
with plate no. NBZ 869, with engine still running and its doors opened. They recovered inside the car
several class cards and a license belonging to one Ric Capulong, who was later identified as
Frederick Capulong.
The policemen went around the subdivision to look for possible suspects. They came upon a person
wearing muddled maong pants and white t-shirt "standing and walking around" near the clubhouse
of the subdivision. When asked his name, the person identified himself as Edwin de Vera, herein
appellant. Explaining the mud stains on his pants, appellant declared that he was a victim of a holdup. Suspicious [of] his conduct, the policemen brought appellant to Station 5 and turned him over to
the desk officer for investigation.
Another prosecution witness, SPO3 Mario Guspid, a police investigator since 1989, was assigned to
investigate the shooting of Frederick Capulong. He was assisted by SPO4 Pablito Selvido, SPO2
Armando Rivera, SPO3 Jovencio Villacorte, SPO3 Rolando Gacute, SPO3 Danilo Castro and other
police officers.
Upon receiving his assignment, SPO3 Guspid immediately went to the East Avenue Medical Center
where he saw the victim lying inside the intensive care unit receiving medical treatment. The victim
was unconscious. After conferring with the victim's parents and relatives, SPO3 Guspid returned to
Station 5. On his arrival, the desk officer referred appellant to him for questioning. He was told that
appellant was picked up near the crime scene acting suspiciously. When appellant was asked about
his participation in the shooting, he was reluctant at first to talk, but later relented after SPO3 Guspid
told him that his conscience would bother him less if he would tell the truth.
Without any hesitation, appellant admitted being [with the] group which perpetrated the crime, and
implicated Roderick Garcia. He was then persuaded to accompany a group of policemen to the
residence of Garcia, which turned out to be at Doa Justina Street, Filinvest II Subdivision. Finding
Garcia at home, SPO3 Guspid informed him that he was implicated by appellant [in] the crime. He
was then invited to the station to shed light [on] the incident. Garcia consented.

At Station 5, SPO3 Guspid interviewed appellant and Garcia. In the course of the interview, Garcia
revealed the place where he hid a .22 caliber gun, black t-shirt and black cap. According to Garcia,
Florendo asked them to wear black t-shirts. With the revelation, SPO3 Guspid, SPO2 Rivera, SPO3
Gacute and SPO3 Castro, together with the suspects, went back to the subdivision and proceeded
to a grassy portion near the boundary of Filinvest II and San Mateo, Rizal. The place was near a
creek and about 50 meters away from the residence of Garcia (TSN, pp. 9-14, September 30, 1993).
Truly, the policemen recovered a .22 caliber revolver, black t-shirt and black cap (TSN, pp. 12-13,
August 24, 1993).While there, SPO3 Guspid and SPO2 Rivera prepared a sketch of the crime scene
to reflect the explanations and answers given by appellant and Garcia in response to their questions.
As identifying marks, SPO3 Gacute placed his initials "OG" (acronym for his first name and family
name) between the handle and cylinder of the gun, and on the neck of the t-shirt, as well as in the
inner lining of the black cap.
From the crime site, the policemen and the suspects returned to Station 5 where SPO3 Guspid
asked them if they were willing to give their written statements, to which they assented.
Consequently, they were brought to the Integrated Bar of the Philippines, Quezon City Chapter, at
Malakas Street, Diliman, Quezon City. They were then introduced to Atty. Confesor Sansano, the
[c]hairman of the Free Legal Aid of the IBP. Also, present at that time were appellant's relatives,
including his mother and sisters, and other lawyers of the IBP.
SPO3 Guspid inquired from them if they would agree to be assisted by Atty. Sansano, "a competent
lawyer." They replied in the affirmative. Thereafter, the two conferred with Atty. Sansano.
Atty. Sansano, a rebuttal witness of the prosecution, testified that upon arrival of the suspects [i]n his
office, he requested the policemen, as a matter of policy, to step outside the building in order to
assure that no pressure would be exerted on the suspects even by their mere presence (TSN, p. 6,
November 6, 1996). After they left, Atty. Sansano interviewed the suspects for about twenty minutes,
informing them of their rights under the constitution and inquiring from them if they indeed wanted to
give voluntary statements. To the query, the suspects answered positively. They also affirmed their
earlier declaration that they were willing to be assisted by the IBP (ibid, pp. 8-9). He further advised
them of their right during the investigation to answer or not to answer the questions which they
thought would incriminate them, but they retorted that they fully understood their right.
Satisfied that they were not coerced or threatened to give their statements, Atty. Sansano requested
the suspects to show their upper bodies to enable him to determine any telltale signs of torture or
bodily harm. Finding no such signs, he then summoned the policemen to re-enter the building. The
investigators readied two typewriters and each suspect was assigned to an investigator. He served
as the lawyer of the suspects, cautioning them against answering questions that they did not
understand, and to seek . . . a clarification, if needed.
According to Atty. Sansano, the interrogation took place in his office, a single separate room from
where his five staff members were visible. He sat between the two tables used by the investigators
for typing the questions and answers, involving himself from beginning to end of the investigation
until the signing of the statements. He never left the office to attend to anything else, consistent with
[the] standing policy of the IBP to properly safeguard the rights of suspects during investigation.
He recalled that the investigators first typed the headings of the statements, then informed the
suspects before starting the investigation about their rights under the constitution, specifically, the
right of the suspects to have a lawyer of their own choice; if not, the police would provide them with
one who would assist them; that they could answer or refuse to answer the questions. The
investigators also asked him if he was willing to serve as counsel of the suspects. They also asked
the suspects if they were willing to accept him as their counsel. They agreed expressly by saying:
"Oho."
SPO3 Guspid investigated Garcia while SPO4 Selvido investigated appellant. They conducted the
question and answer investigation in Pilipino. The statement of appellant was marked as Exhibit O
and that of Garcia was marked as Exhibit N. The statements were signed by the suspects and Atty.
Sansano.

For his part, SPO4 Selvido declared that SPO3 Guspid requested his help in taking the statements
of the suspects (TSN, p. 4, June 29, 1993). He took the statement of appellant in the presence of
Atty. Sansano. Before proceeding, he reminded appellant of the constitutional warnings, consisting
of four (4) questions under the heading "Paunawa," to which the latter gave positive answers. The
statement was signed by appellant and Atty. Sansano. After taking down the statement, he turned
over appellant to SPO3 Guspid.
Following the investigation, the policemen brought the suspects to the Philippine National Police
Crime Laboratory for paraffin testing. The result: "both hands of Edwin de Vera y Garcia @
Boy/Bong gave positive results [in] the test for gunpowder nitrates while both hands of Roderick
Garcia y Galamgam @ Deo gave negative result [in] the test for gunpowder nitrates."
After coming from the crime laboratory, SPO3 Guspid contacted the mother of the victim to get her
own statement. Next, he obtained a death certificate and prepared a referral to the Quezon City
Prosecution Office which was signed by Senior Inspector Ernesto Collado, Chief of the Station
Investigation Division. During the inquest, the prosecutor asked the suspects some clarificatory
questions.
Surveillance and follow-up operations were conducted against Florendo and his other companion,
Elmer Castro. However, the two were never arrested and brought to trial.
Version of the Defense
Appellant claims that he had no part in the killing, and that it was Kenneth Florendo who had shot the victim.
He avers that he merely accompanied to Filinvest the other accused and Florendo, who was his friend, upon
the latter's request. A few hours after the shooting incident, appellant was picked up by the police, who
subsequently tortured and coerced him into signing his Statement regarding the incident. The trial court
summarized appellant's evidence in this wise:10
Edwin de Vera admitted that, as of June 8, 1992, he and Kenneth Florendo were already close
friends for about a year, sometimes sleeping in the latter's house at No. 106 Kamias Road, Quezon
City. His own residence at the time was at No. 7 Bignay Street, Project 2, Quezon City. That was
also the address of Elmer Castro, his and Kenneth's friend.
Edwin had slept in Kenneth's house on Kamias Road from June 6 to June 8, 1992 and went home at
7:00 am of June 8th Later at around 10:30 am, Kenneth passed by Edwin's house to invite him back
to [the former's] house that morning and to bring Elmer along. Kenneth mentioned that he, his
girlfriend, and Deo, who were then with him, would be going somewhere first. Deo, or Roderick
Garcia, was another friend of Kenneth's.
Edwin and Elmer later went to and arrived at Kenneth's house at 11:00 am. Kenneth, his girlfriend,
and Deo were already taking lunch, and invited the two to lunch. After lunch, Kenneth asked Edwin
to go with him to Filinvest without telling why. It was Deo who mentioned to Edwin that Kenneth was
going to see a friend. Edwin was not aware if Kenneth had also asked the others to go with him to
Filinvest, but the four of them Kenneth, Edwin, Elmer, and Deo later proceeded to Filinvest [i]n
Kenneth's car. Edwin sat at the back seat. The time was past 12:00 noon.
Kenneth drove his car. Upon reaching Filinvest, Kenneth stopped at a house and the four of them
alighted in front of the house. Edwin did not know whose house it was. Kenneth and Elmer told
Edwin and Deo to wait near the car because they were going to see a friend. At that point in time,
Edwin knew the person[,] whom Kenneth and Elmer went to see[,] by name, never having met him
personally before then. From his conversation with Deo, Edwin found out that the house was where
Deo stayed.
Then, Edwin heard the voices of Kenneth and his friend and they appeared to be arguing (". . . .
parang nagtatalo sila") The voices came from some twenty-two (22) meters away. Not before long,
Edwin also heard a gunshot which came from where Kenneth and Elmer had gone to. He was

shocked because he was not used to hearing gunfire. Frightened, he panicked and ran away from
the place. His singular thought while running was to get out of Filinvest. Deo also ran away.
Edwin denied that either he or Deo carried any firearm on that occasion.
Edwin was arrested by the police at past 2:00 p.m. when he was already outside of Filinvest
subdivision in front of Batasan. He was brought to Station 5 where four (4) persons in civilian attire
tortured him by forcing him to lie down on a bench, tying his feet together and binding his hands from
his back with handcuffs, and then covering his face with a piece of dirty cloth into which water was
poured little by little into his face and mouth, while one of them sat on his thighs. This maltreatment
lasted for about 20 or 25 minutes, because they wanted him to admit "something" and to name "my
companions" but he refused to admit or to name anyone. They next took him outside to a mango
tree where they repeated his ordeal for 30 minutes. At one point during the torture, a policeman
untied his feet and hands and poked a gun to his temple, telling him to run as it was his chance to
escape, but he did not escape because he could see that they were merely frightening him.
None of the policemen told him that he could . . . get a lawyer[;] instead, one of them, whose name
he [did] not know, told him that "I should listen only to them and not to anyone else." He claimed that
he saw one [of] his tormentors in court, and he identified him as police officer Rivera. Guspid did not
participate in his torture, because he merely took down his statement. His tormentors were not drunk
or under the influence of drugs, but Guspid seemed to be under the influence of drugs when he took
his statement because of his troubled appearance.
Edwin was not advised to inform or call any of his relatives. Before his torture, his request to contact
his relatives or lawyer was turned down. His intimidation continued (". . . . puro pananakot and
ginawa nila sa akin"). After his torture at the mango tree, he was returned inside and thrown into a
cell, where he remained until the following day (June 9th). During the night, an inmate named Cesar
boxed him once in the upper body upon instruction of a policeman. He was not given any dinner.
At around noontime of the next day (June 9th), Edwin was taken out of the cell and brought to the
IBP office by police officers Guspid and Selvido. Also with them were Deo Garcia and two other
police officers. At the IBP office, the officers talked with one of the lawyers there, whom Edwin came
to know to be Atty. Sansano only after the lawyer was introduced ("present") to him and Deo. That
was the first he met and saw Atty. Sansano.
Atty. Sansano informed both Edwin and Deo that they had the choice whether to talk or not. Edwin
could not make any comment because "wala po ako sa sarili ko". Then, Atty. Sansano warned Edwin
substantially that: "Alam n'yo ba na ang salaysay na ito ay maaring hindi ninyo sumpaan," referring
to the statement taken from Edwin by officers Guspid at around past 8 p.m. until 9 p.m. on the day
before (June 8, 1992) at the police station. He was not assisted by counsel, and had no relatives
present. Guspid appeared to be "like drunk or tipsy," when he took down Edwin's statement that
night."
At the IBP office, Edwin's and Deo's statement were taken separately by Guspid and Selvido,
respectively. At the time, Edwin and Deo were about six (6) meters from each other, but he could
hear what was being asked of Deo. Guspid asked the questions and typed both the questions and
his answers, which were given in Tagalog. All the while, Atty. Sansano was inside his office, which
was about seven (7) meters away from where he and Guspid were situated. The office of Atty.
Sansano was separated by a divider, so that he could not see what Atty. Sansano was doing at the
time. After the questioning, he signed a paper which he was not able to read. He did not see Atty.
Sansano sign the paper.
xxx

xxx

xxx

On July 14, 1992, Edwin executed a so-called salaysay ng pagbabawi ng sinumpaang salaysay,
which he swore to before Prosecutor Tobia of Quezon City, for the purpose of recanting his
statements given at the precinct in the evening of June 8, 1992 and at the IBP office on June 9, 1992

on the ground that they were given under coercion, intimidation, and in violation of his constitutional
rights.
Ruling of the Trial Court
Based on the testimony of Eyewitness Bernardino Cacao, the trial court ruled that it was indeed Kenneth Florendo
who had actually shot the victim, Roderick Capulong. It convicted appellant as a principal, however, because "the
scientific and forensic findings on the criminal incident directly and substantially confirmed the existence of
conspiracy among the four [accused], namely, Kenneth Florendo, Elmer Castro, Edwin de Vera, and Roderick
Garcia.11
The Issues
Appellant submits for the consideration of this Court the following alleged errors:
I
THE TRIAL JUDGE ERRED IN NOT FINDING THAT PROSECUTION EYE-WITNESS BERNARDO CACAO HAD
TESTIFIED TO NO CRIMINAL ACT OF APPELLANT;
II
THE TRIAL JUDGE ERRED IN FINDING AND CONCLUDING THAT THERE WAS A CONSPIRACY TO KILL THE
VICTIM AND THAT APPELLANT WAS A CO-CONSPIRATOR;
III
THE TRIAL JUDGE ERRED IN ADMITTING EXHIBIT "O", ALLEGED STATEMENT OF APPELLANT; AND IN NOT
DECLARING THE SAME AS AN INADMISSIBLE EVIDENCE CONSIDERING THE BARBARIC MANNER UNDER
WHICH IT WAS EXTRACTED/OBTAINED FROM THE APPELLANT WHICH VIOLATED THE LATTER'S
CONSTITUTIONAL RIGHTS;
IV
THE TRIAL COURT ERRED IN NOT FINDING AND DECLARING THAT THE PROSECUTION HAS NOT PROVED
THE APPELLANT'S GUILT BEYOND REASONABLE DOUBT AND IN NOT ACQUITTING THE APPELLANT.12
In the main, the Court will resolve three questions: (1) the sufficiency of the prosecution evidence, (2) the
admissibility of appellant's extrajudicial statement, and (3) the nature of his liability.
The Court's Ruling
The appeal is partly meritorious. Appellant should be convicted only as an accomplice, not as a principal.
First and Third Issues:
Sufficiency of Prosecution Evidence and Appellant's Liability
Because the first and the third questions mentioned above are interrelated, they shall be discussed jointly.
Eyewitness Account
In ruling that there was conspiracy between Florendo, Castro, Garcia and Appellant De Vera, the trial court relied
mainly on the testimony of Eyewitness Cacao. Specifically, it based its conclusions on the following facts: appellant
was seen with the other accused inside the victim's car; the victim was clearly struck with a blunt object while inside

the car, and it was unlikely for Florendo to have done it all by himself; moreover, it was impossible for De Vera and
Garcia to have been unaware of Florendo's dark design on Roderick.
We disagree. It is axiomatic that the prosecution must establish conspiracy beyond reasonable doubt. 13 In the
present case, the bare testimony of Cacao fails to do so.
Cacao testified that he saw Appellant De Vera in the car, where an altercation later occurred. Thereafter, he saw
Florendo drag out of the vehicle an apparently disabled Capulong and shoot the victim in the head moments later.
Cacao's testimony contains nothing that could inculpate appellant. Aside from the fact that he was inside the car, no
other act was imputed to him. Mere presence does not amount to conspiracy.14 Indeed, the trial court based its
finding of conspiracy on mere presumptions, and not on solid facts indubitably indicating a common design to
commit murder. Such suppositions do not constitute proof beyond reasonable doubt. As the Court has repeatedly
stated, criminal conspiracy must be founded on facts, not on mere surmises or conjectures. Clearly, Cacao's
testimony does not establish appellant's culpability.
Appellant's Extrajudicial
Statement
Aside from the testimony of Cacao, the prosecution also presented Appellant De Vera's extrajudicial statement,
which established three points.
First, appellant knew of Kenneth Florendo's malevolent intention.
T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag kang maging
kasapakat nito?
S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan na lamang at
napilitan akong sumama.15
Second, appellant's companions were armed that day, a fact which revealed the unmistakable plan of the group.
T: Ikaw ba ay mayroong dalang armas noong hapon na iyo[n]?
S: Wala po akong dalang armas. Pero itong si Kenneth ay mayroong dalang dalawang baril[,] sina Deo at
Elmer ay wala. Pero noong naroroon na kami sa lugar ay ibinigay ni Kenneth ang isang baril niya kay Deo at
itong si Elmer ay mayroong nang dalang baseball bat.
Third, he cooperated with the other accused in the commission of the crime by placing himself at a certain distance
from Kenneth and the victim in order to act as a lookout. This is clear from the following portion of his statement:
S: Kabarkada ko po si Kenneth at dalawang araw po akong nakitulog sa kanila at noong araw ng June 08,
1992 ay sinabihan ako ni Kenneth Gumabao na huwag raw akong uuwi, dahil [mayroon] daw po kaming
lakad. Pagkaraan ng ilang oras ay dumating naman itong si Roderick Garcia @ Deo at may sinabi sa kanya
itong si Kenneth at sinabi naman ito sa akin ni Deo na kaysa raw maunahan siya ni Frederick Sumulong
[sic] ay uunahan na raw po niya ito. Umalis po itong si Kenneth na kasama ang kanyang nobya at itong si
Deo, para ihatid ang kanyang [sic] sa hospital at bago sila umalis ay sinabihan ako ni Kenneth na sunduin
ko raw itong si Elmer Castro at magbhihai [magbihis] na rin daw ako at pagdating nila ay . . . lalakad na raw
po kami. Mga ilang oras pa ay sinundo ko na itong si Elmer Castro at pagdating namin sa bahay nila
Kenneth ay naroroon na itong si Kenneth at Deo. Matapos magpalit ng damit itong si Kenneth ay sumakay
na kami sa kanilang kotse at nagtuloy sa kanilang katabing bahay at doon ay kumain kami. Pagkatapos
noon ay umalis na kami at nagtuloy sa F[i]l-Invest. P[a]gdating namin sa isang lugar doon sa medyo malayolayo sa bahay nila Deo ay bumaba na itong si Deo at Elmer at sila ay nagpunta doon sa lugar ng
pinagbarilan para kunin ang bayad sa utang ni Fred[er]ick Capulong sa tiyuhin ni Deo P[a]gkaraan ng ilang
minuto ay sumunod po kami ni Kenn[e]th sa lugar at ako ay naiwan nang medyo malayo-layo sa lugar
upang tingnan kung mayroong darating na tao. Samantalang si Kenneth ay lumapit kina Deo at Frederick at

kasunod noon ay nagkaroon ng sagutan itong si Kenneth at Frederick at nakita kong inaawat ni Deo itong si
Kenneth. Hindi nakapagpigil itong si Kenneth at nasipa niya s[i] Frederick at kasunod noon ay binunot niya
ang kanyang baril na kalibre .38 at pinaputukan niya ng isang beses itong si Frederick na noong tamaan ay
natumba sa lupa. Lumapit si Elmer kina Kenneth habang binabatak ni Kenneth itong si Frederick at kasunod
po noon ay lumapit sa akin si Deo at sinabihan ako na tumakbo na kami. Tumakbo na po kami, pero ako po
ay nahuli ng mga security guard ng Subdivision at itong si Deo ay nahuli naman sa kanilang bahay. Itong
sina Kenneth at Elmer ay hindi pa nahuhuli.16
Appellant an Accomplice,
Not a Conspirator
In other words, appellant's presence was not innocuous. Knowing that Florendo intended to kill the victim and that
the three co-accused were carrying weapons, he had acted as a lookout to watch for passersby. He was not an
innocent spectator; he was at the locus criminis in order to aid and abet the commission of the crime. These facts,
however, did not make him a conspirator; at most, he was only an accomplice.
The Revised penal Code provides that a conspiracy exists when "two or more persons come to an agreement
concerning the commission of a felony and decide to commit it." 17 To prove conspiracy, the prosecution must
establish the following three requisites: "(1) that two or more persons came to an agreement, (2) that the agreement
concerned the commission of a crime, and (3) that the execution of the felony [was] decided upon." 18Except in the
case of the mastermind of a crime, it must also be shown that the accused performed an overt act in furtherance of
the conspiracy.19 The Court has held that in most instances, direct proof of a previous agreement need not be
established, for conspiracy may be deduced from the acts of the accused pointing to a joint purpose, concerted
action and community of interest.20
On the other hand, the Revised Penal Code defines accomplices as "those persons who, not being included in
Article 17,21 cooperate in the execution of the offense by previous or simultaneous acts." 22 The Court has held that
an accomplice is "one who knows the criminal design of the principal and cooperates knowingly or intentionally
therewith by an act which, even if not rendered, the crime would be committed just the same." 23 To hold a person
liable as an accomplice, two elements must be present: (1) the "community" of criminal design; that is, knowing the
criminal design of the principal by direct participation, he concurs with the latter in his purpose;" and (2) the
performance of previous or simultaneous acts that are not indispensable to the commission of the crime. 24
The distinction between the two concepts needs to be underscored, in view of its effect on appellant's penalty. Once
conspiracy is proven, the liability is collective and not individual. The act of one of them is deemed the act of all. 25 In
the case of an accomplice, the liability is one degree lower than that of a principal.
Conspirators and accomplices have one thing in common: they know and agree with the criminal design.
Conspirators, however, know the criminal intention because they themselves have decided upon such course of
action. Accomplices come to know about it after the principals have reached the decision, and only then do they
agree to cooperate in its execution. Conspirators decide that a crime should be committed; accomplices merely
concur in it. Accomplices do not decide whether the crime should be committed; they merely assent to the plan and
cooperate in its accomplishment. Conspirators are the authors of a crime; accomplices are merely their instruments
who perform acts not essential to the perpetration of the offense.
Thus, in People v. Castro,26 the Court convicted Rufino Cinco, together with two others, as a principal, although he
had acted merely as a lookout. The Court held that "their concerted action in going armed and together to their
victim's house, and there, while one stayed as a lookout, the other two entered and shot the mayor and his wife,
leaving again together afterwards, admits no other rational explanation but conspiracy." It may be noted further that
Cinco executed a Sworn Statement that the three of them, together with some others, had planned to kill the victim
on the promise of a P5,000 reward.
In People v. Tawat et al.,27 the lookout, Nestor Rojo, was convicted as a principal for conspiring with two others. The
Court ruled that the conspiracy was shown by their conduct before, during and after the commission of the crime.
The Court also noted that, upon their arrest, they disclosed that they had intended to rob the victim's store and that
they did so in accordance with their plan. In that case, it was clear that all three of them, including the lookout, were
the authors of the crime.

In People v. Loreno,28 the Supreme Court convicted all the accused as principals because they had acted in band. In
acting as a lookout, Jimmy Marantal was armed at the time like the other conspirators, and he gave his companions
effective means and encouragement to commit the crime of robbery and rape.
Upon the other hand in People v. Corbes,29 the Court noted that Manuel Vergel knew of the criminal design to
commit a robbery, and that he cooperated with the robbers by driving the vehicle to and from the crime scene. In
convicting him as an accomplice and not as a conspirator, the Court observed that he was merely approached by
one of the robbers who was tasked to look for a getaway vehicle. He was not with the robbers when they resolved to
commit a robbery. When his services were requested the decision to commit the crime had already been made.
In People v. Tatlonghari,30 the Court was asked to resolve the responsibility of some appellants who "knowingly
aid[ed] the actual killers by casting stones at the victim, and distracting his attention." The Court ruled that they were
accomplices and not co-conspirators, "[i]n the absence of clear proof that the killing was in fact envisaged by them."
In People v. Suarez et al.,31 Wilfredo Lara merely introduced the gang of Reyes to Suarez who intended to
perpetrate the crime with the help of the said group. In ruling that he was merely an accomplice, the Court noted
that there was no evidence showing that he "took part in the planning or execution of the crime, or any proof
indicating that he profited from the fruits of the crime, or of acts indicative of confederacy on his part."
In People v. Balili,32 the Court convicted appellant as an accomplice, holding that "in going with them, knowing their
criminal intention, and in staying outside of the house with them while the others went inside the store to rob and kill,
[he] effectively supplied the criminals with material and moral aid, making him guilty as an accompliance." The Court
noted that there was no evidence that he "had conspired with the malefactors, nor that he actually participated in the
commission of the crime."
In People v. Doble,33 the Court held that Cresencio Doble did not become a conspirator when he looked for a banca
that was eventually used by the robbers. Ruled the Court: "Neither would it appear that Joe Intsik wanted to draft
Crescencio into his band of malefactors that would commit the robbery more than Just asking his help to look for a
banca. Joe Intsik had enough men, all with arms and weapons to perpetrate the crime, the commission of which
needed planning and men to execute the plan with full mutual confidence of each other, which [was] not shown with
respect to appellants by the way they were asked to look and provide for a banca just a few hours before the actual
robbery."
In the present case, Appellant De Vera knew that Kenneth Florendo had intended to kill Capulong at the time, and
he cooperated with the latter. But he himself did not participate in the decision to kill Capulong; that decision was
made by Florendo and the others. He joined them that afternoon after the decision to kill had already been agreed
upon; he was there because "nagkahiyaan na." This is clear from his statement, which we quote again for the sake
of clarity:
T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag kang maging
kasapakat nito?
S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan na lamang at
napilitan akong sumama.34
Significantly, the plan to kill could have been accomplished without him. It should be noted further that he alone was
unarmed that afternoon. Florendo and Garcia had guns, and Castro had a baseball bat.
In any event, the prosecution evidence has not established that appellant was part of the conspiracy to kill the
victim. His participation, as culled from his own Statement, was made. after the decision to kill was already a fait
accompli. Thus, in several cases, the Court has held:
[L]ack of complete evidence of conspiracy, that creates the doubt whether they had acted as principals or
accomplices in the perpetration of the offense, impels this Court to resolve in their favor the question, by
holding . . . that they were guilty of the "milder form of responsibility," i.e., guilty as mere accomplices.35
Second Issue:

Admissibility of Extrajudicial Statement


Extrajudicial confessions must conform to constitutional requirements. Section 12, Article III of the Constitution,
provides:
(1) Any person under investigation for the commission of an offense shall have the right to be informed of his
right to remain silent and to have competent and independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
xxx

xxx

xxx

(3) Any confession or admission obtained in violation of this or section 17 hereof shall be inadmissible in
evidence against him.
If the confession meets these requirements, "it is subsequently tested for voluntariness, i.e., if it was given freely
without coercion, intimidation, inducement, or false promises; and credibility, i.e., if it was consistent with the normal
experience of mankind."36
Appellant claims that his extrajudicial statement was inadmissible, because it was not made in the presence of
counsel. Although Atty. Confesor Sansano of the Quezon City IBP Legal Aid Committee purportedly assisted him
and his co-accused in the execution of their extrajudicial Statements, appellant asserts that the lawyer was in his
office, not with them, at the time. Appellant adds that he was tortured.
Appellant's claims must be rejected. Atty. Sansano testified that he did not leave them at any time.
Q: You were involved in the interrogation from the very start?
A: Yes, from the beginning to the end of the interview until the boys signed their statements.
Q: Did you recall having at any time left your office to attend to some official matters?
A: I never left the office to attend to anything.
Q: Is that the usual manner by which you assist persons referred to you by the police insofar as custodial
investigation is concerned?
A: It is our policy that when we assist [in] that capacity, we [want] to see to it that the rights of the accused or
suspects are properly [protected] during the course of the entire interrogation. 37
In fact, Atty. Sansano even checked to see if there were torture marks on Appellant De Vera, and Garcia and
interviewed the two to make sure that they understood what they were doing.
Q: What was your purpose in asking the police officers to leave the room?
A: My purpose in asking the police officers to step out of the building was to assure myself that no pressure
could be exerted on the two boys by the presence of the police officers during my personal interview. Before
we allow any police officers to take the statements of people brought before us[,] we see to it [that] we
interview the persons personally out of hearing and sight of any police officer.
Q: After the police officers left the room, completely left the room[,] you were able to interview the two
accused namely Mr. de Vera and Mr. Garcia?
A: Yes, I spent about 15 to 20 minutes interviewing the boys.
Q: What was the nature of your initial interview with these two accused?

A: I asked the boys Roderick and Edwin if it [was] true that they [were] going to give their own statements to
the police?
Q: And what did they say?
A: They said yes, sir.
Q: What was your reaction to that?
A: Routinely[,] I informed them about their rights under the constitution.
xxx

xxx

xxx

Q: Having obtained their answers, what next transpired?


A: After telling them the statements they may give to the police could be used against them for a [sic] in any
court of the Phil., I was satisfied that nobody coerced them, that they were never threatened by anybody
much less by the police officers to give these statements. Casually I asked the two boys to raise their upper
clothes.
xxx

xxx

xxx

Q: What was your purpose in requiring these persons to show you or remove their upper clothing?
A: I wanted to assure myself that there were no telltale signs of torture or bodily harm committed on the[m]
prior to their [being brought] to the office. In spite of their [personal] assurances . . . , verbal assurance that
they were never hurt.38
The right to counsel is enshrined in the Constitution in order to address, among others, the use of duress and undue
influence in the execution of extrajudicial confessions. 39 In the present case, the Court is satisfied that Atty. Sansano
sufficiently fulfilled the objective of this constitutional mandate. Moreover, appellant's allegations of torture must be
disregarded for being unsubstantiated. To hold otherwise is to statements at the mere facilitate the retraction of
solemnly made statements of the mere allegation of torture, without any proof whatsoever.
When an extrajudicial statement satisfies the requirements of the Constitution, it constitutes evidence of a high
order, because of the strong presumption that no person of normal mind would deliberately and knowingly confess
to a crime unless prompted by truth and conscience. 40 The defense has the burden of proving that it was extracted
by means of force, duress or promise of reward.41 Appellant failed to overcome the overwhelming prosecution
evidence to the contrary.
Sec. 3, Rule 133 of the Rules of Court, provides that "[a]n extrajudicial confession made by an accused shall not be
sufficient ground for conviction, unless corroborated by evidence of corpus delicti." In the present case, the
prosecution presented other evidence to prove the two elements of corpus delicti: (a) a certain result has been
proven for example, a man has died; and (b) some person is criminally responsible. 42 It is indubitable that a crime
has been committed, and that the other pieces of prosecution evidence clearly show that appellant had conspired
with the other accused to commit the crime. He himself does not deny that he was at the crime scene. In fact, he
was seen by the prosecution eyewitness in the company of the gunman. Furthermore, Atty. Sansano and the police
officers testified to the voluntariness of his confession. It must be stressed that the aforementioned rule merely
requires that there should be some other evidence "tending to show the commission of the crime apart from the
confession."43
Criminal and Civil Liability
In ruling that the crime committed was murder, the trial court found that the killing was attended by treachery,
evident premeditation and abuse of superior strength. One of these was enough to qualify the crime as murder; the
two others constituted generic aggravating circumstances. The lower court explained that the evidence established
evident premeditation, for Florendo's group acted with deliberate forethought and tenacious persistence in the

accomplishment of the criminal design. Treachery was also proven, because the attack was planned and performed
in such a way as to guarantee the execution of the criminal design without risk to the group. There was also abuse
of superior strength, because the attackers took advantage of their superiority in numbers and weapons.
We disagree with the court a quo in appreciating two generic aggravating circumstances, because treachery
absorbs abuse of superior strength.44 Hence, there is only one generic aggravating circumstance, not two.
Notwithstanding the presence of a generic aggravating circumstance, we cannot impose the death penalty, because
the crime was committed before the effectivity of the Death Penalty Law.
In the present case, the penalty of appellant as an accomplice is one degree lower than that of a principal, which in
murder cases is reclusion temporal in its maximum period to death. He is also entitled to the benefits of the
Indeterminate Sentence Law.
We sustain the trial court's grant of P50,000 as indemnity ex delicto, which may be awarded without need of proof
other than the commission of the crime. The award of P211,670 as compensatory damages was duly supported by
evidence. Based on the evidence presented, moral damages is also warranted, but only in the amount of P50,000,
not P500,000 as fixed by the trial court. Furthermore, we affirm the payment of interest. 45 However, the grant of
P600,000 for loss of earning capacity lacks factual basis. Such indemnification partakes of the nature of actual
damages, which must be duly proven.46 In this case, the trial court merely presumed the amount of Capulong's
earnings. Since the prosecution did not present evidence of the current income of the deceased, the indemnity for
lost earnings must be rejected.
WHEREFORE, the appeal is hereby partially GRANTED. Appellant De Vera is CONVICTED as an accomplice, not
as a principal, in the crime of murder. He is sentenced to an indeterminate prison term of 8 years and 1 day
ofprision mayor as minimum, to 14 years 8 months and 1 day of reclusion temporal as maximum. We AFFIRM the
awards of: (a) P50,000 indemnity ex delicto, (b) P211,670 as compensatory damages and (c) interest of six
percent per annum on these two amounts. The award of moral damages is however REDUCED to P50,000 and the
award for the loss of earning capacity is DELETED. No pronouncement as to costs.
SO ORDERED.
Melo, Purisima and Gonzaga-Reyes, JJ., concur.
Vitug, J., please see separate opinion.

Separate Opinions

VITUG, J., separate opinion;


I share the ponencia of my colleagues in its affirmance of the conviction of appellants except, with all due respect,
insofar as it has concluded that appellant De Vera is guilty merely as an accomplice.
There is conspiracy under Article 8 of the Revised Penal Code when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. Conspiracy, of course, by itself is legally
inconsequential unless the criminal plot is, in fact, carried out. Once the offense is perpetrated, the responsibility of
the conspirators is collective, not individual, that render all of them equally liable regardless of the extent of their
respective participations, the act of one being deemed to be the act of the other or the others, in the commission of
the felony. An accomplice, under Article 18 of the same Code, is one who, not being a principal who (a) takes a
direct part in the execution of the act, (b) directly forces or induces others to commit it or (c) cooperates in the
commission of the offense by another act without which the offense would not have been accomplished (per Article
17 of the Code), collaborates in the execution of the offense by previous or simultaneous acts.
In the case at bar, De Vera, "knowing that Florendo intended to kill the victim and that the three co-accused were
carrying weapons, he had acted as a lookout to watch for passersby. He was not an innocent spectator; he was at
the locus criminis in order to aid and abet the commission of the crime" (ponencia).

I cannot bring myself to accept any material variance between the terms "to decide," on the one hand, and "to
concur" or "to assent," on the other hand, in defining, i.e., whether as a conspirator or as an accomplice, the specific
criminal liability of the criminal offender. Where there is concurrence or assent by one to a plan, even when
previously hatched by another or others, to commit a felony which concurrence or assent is made prior to the actual
perpetration of the offense, and he then actually participates in its commission, regardless of the extent of such
participation, his liability should be deemed, in my view, that of a conspirator rather than that of an accomplice. I
would equate the liability of an accomplice to one who, knowing of the criminal design, but neither concurring nor
assenting to it, cooperates in the execution of the crime short of taking a direct part in, and short of taking an
indispensable act for the commission of the offense. In the last two instances (taking a direct part in, or taking an
indispensable act for, the commission of the felony), his participation would be that of a principal under Article 17 of
the Revised Penal Code.
When appellant De Vera, aware of the plan to kill the victim, agreed to be the lookout during the commission of the
crime which, in fact, so took place as planned, he rendered himself liable no less than that incurred by his coaccused.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. Nos. L-38551-53 February 27, 1987
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CLAUDIO VELOSO, JULIO DALUMPIENES, RENATO TORRES, ISRAEL RAPOTE, REY TORRES, JOHN DOE
alias "ROLLY" and "PETER DOE," accused, CLAUDIO VELOSO, accused-appellant.

CRUZ, J.:
Three young and innocent girls went to the park on a Sunday evening to relax and enjoy each other's company.
Before the night was over, they would be brutally attacked and flowered and seared with ugly memories that will
probably outrage them for the rest of their lives.
These unfortunate girls were Rosita Rubio, fifteen years old, Constancia de los Reyes, fourteen, and Rosanna
Rodriguez, who was only twelve at the time. 1
At about seven o'clock in the evening of June 22, 1972, while they were seated near the fountain at a public park in
Lucena City, they were approached by a group of men composed of Claudio Veloso, Julio Dalumpienes, Renato
Torres, Israel Rapote, Rey Torres, one Gerry, and a seventh who remains unidentified to date. Gerry introduced
himself to Rosanna and then the men left. 2 At 10 o'clock of the same evening, the same group was to return to the
three girls in the park, but this time with a more malevolent purpose.
This time there were no amenities. The men surrounded the girls. Veloso held the hand of Constancia, who pushed
him to the ground. His 8-1/2 inch bolo fell. Constancia ran but Dalumpienes caught and detained her. The three girls
were then pulled by the group to the Capitol Building, their mouths covered to prevent them from shouting for help.
As it happened, the lights in the park temporally went out at that precise time, and nobody saw or succored them. 3
Upon reaching the second floor of the building, Veloso and Renato Torres dragged Rosita to a dark corner, where
they raped her in succession. Veloso threatened her with his bolo. 4 Meanwhile, about seven meters away, Constancia
was struggling with Dalumpienes, who subdued and violated her while she was being held by his two companions, who

thereafter also satisfied their lust on her while also held by the others in turn. 5 Nearby, Rosanna met a similar fate from the
seventh man in the group. 6

After ravishing them, the men called a jeep to take the girls home but instead they proceeded directly to the police
station, where they reported their harrowing experiences. 7 Constancia was then taken by a policeman to the railroad
station, where she saw and pointed to Veloso as one of her assailants. 8 Veloso was arrested. After investigation, he
signed an extrajudicial confession. 9 In the among of the following day, the three were physically examined by Dr. Imelda
de Imus, who was to testify later that she found hymenal lacerations in the complainants that were caused within the past
twenty-four hours from her examination. 10
The above narration is on the testimony of the three girls, 11 as well as the examining physician, 12 the Several
policemen who received the reports of the three victims and investigated Veloso 13 and his extrajudicial confession. 14
In his defense at the joint trial of the three complaints for rape filed against him and his companions, Veloso denied
the accusations, saying he and Rosita were sweethearts and that they did have sexual intercourse on the night and
in the place in question but by mutual consent. 15 This is not believable. In the first place, he offers no evidence other
than his self-serving statement. Rosita flatly rejects it. 16 Moreover, it is not likely that, if they were really sweethearts, they
would have had sexual intercourse only a few meters from where the other two girls were being violated. The act of love is
not that perverse and vulgar. It is a private communion. This blatant lie, which would convert a brutal rape into an amorous
fulfillment, does not even have the charm of fantasy.
The extrajudicial confession 17 is admissible against him, having been made before January 17, 1973, when the right to
counsel was not yet in effect under the Magtoto doctrine. 18 Significantly, he presented no medical or other evidence of his
alleged manhandling by the police and did not complain about it to the fiscal or any other officer. 19 By contrast, the
policemen he claimed had mauled him were, presented at the trial and testified to deny his allegations. 20
Indeed, even if the confession were to be disregard the rest of the prosecution evidence would still be overwhelming
against Veloso. The trial judge, * who had the firsthand opportunity to observe the witnesses and assess their credibility, considered those for the
prosecution more reliable, especially the complaints themselves. While it may be conceded that there were certain inconsistencies in their testimony, the tale they
narrated of that terrible night is on the whole credible. The imperfections were on mere insignificant details that do not detract from the veracity of the basic

One could hardly expect that these three naive girls would concoct it out of pure imagination, implicating
without reason people they did not even know, and, worse, exposing their own ravishment and testing publicly on are the
embarrassing details.
accusation. 21

Veloso also faults the trial court for convicting him of the other rapes, considering that he was alleged to have raped
only Rosita. The defense forgets that he is responsible also for the other rapes because he was a co-conspirator
along with his six other companions, whose guilt he must also share. The conspiracy among them has been amply
established by the facts that they together approached the three girls earlier that night as one of them introduced
himself; that they returned about three hours later and without much ado dragged the three girls into the Capitol
Building; that they successively raped their hapless victims, helping each other as each forced himself upon a
victim; and that they later released the girls after they had satisfied their lust and sent them home in. a jeep they had
flagged.
A conspiracy exists when two or more persons come to an agreement to commit a crime and decide to commit
it.22 While it is desirable that the conspiracy be proved by direct evidence, the an express understanding among the
plotters affirming their commitment and defining their respective roles, it may nevertheless be established at times by
circumstantial evidence only. 23 Thus, to repeat established doctrine, where the accused move in concert toward a
common purpose, conspiracy may be inferred from their joint acts and design, without need of direct evidence of the
criminal agreement. 24We have held in many cases that the conduct of the accused before, during and after the
commission of the crime, are circumstances that can show whether or not there was a conspiracy among them. 25
In a conspiracy, the guilt of one is the guilt of halt Therefore, Veloso is responsible not only for the rape he
committed against Rosita but for all the other rapes committed by his companions, with whom he had conspired. In
other words, he is liable also for the rape of Rosita by Renato Torres, of Constancia by Dalumpienes and two others,
and of Rosanna by another of the conspirators, or a total of six rapes, including the one he actually committed.

Rape is punished with reclusion perpetua to death where it is committed with the use of a deadly weapon or by two
or more persons, as in case. 26 The trial court, appreciating the aggravating circumstance of superiority mitigated by
voluntary surrender, imposed the penalty of life imprisonment on Veloso in each of the three cases filed against him, or
three life sentences. 27 This was erroneous.
The accused-appellant did not voluntarily surrender but was in fact arrested at the railroad station in the morning
after the rapes he and his companions had committed. 28 Voluntary surrender should therefore not have been
appreciated. On the other hand, the crime was aggravated not only by superiority but also by evident premeditation, which
the court did not consider. The record shows that after approaching the three girls in the park at 7 o'clock of that fateful
night, the same group returned about three hours later, obviously according to plan, and without much ado surrounded
their victims and dragged them into the Capitol Building and raped them. 29
With the above aggravating circumstances and no mitigating circumstance, the applicable penalty is death, to be
imposed not for each of the three victims but for each of the six rapes committed on them by Veloso personally and
his companions. Fortunately for him, however, these six death penalties will now each have to be reduced to life
imprisonment in accordance with Article III, Section 19(l) of the 1987 Constitution.
This decision affects only Claudio Veloso because Julio Dalumpienes, who was convicted with him, did not appeal.
As for the others, we note that they have not been arrested and tried, allegedly because of the protection and
immunity they are enjoying from the police of Lucena City. 30 Let a copy of this decision be sent to the Chief, PCIntegrated National Police, for investigation of this charge.
WHEREFORE, the appealed judgment as above modified is AFFIRMED, with costs against the accused-appellant.
It is so ordered.
Yap (Chairman), Narvasa, Melencio-Herrera, Feliciano, Gancayco and Sarmiento, JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-2365

May 29, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
ALBERTO SAN LUIS and SEVERO NATIVIDAD, defendants-appellants.
J.A. Garcia for appellants.
Solicitor General Felix Bautista Angelo and Solicitor Augusto M. Luciano for appellee.
PER CURIAM:
We are here to review a sentence of death passed upon two alleged hold-uppers for the crime for robbery with
homicide and serious physical injuries in which the victims were Teotimo Mendoza and his chauffeur Faustino
Castro.
It appears that the said Teotimo Mendoza was before his death, maintaining several gambling houses in the city of
Manila and suburbs. On the night he met his death, January 22, 1948, he left his house at 1332 O'Donnell Street,
Manila, sometime after seven o'clock to make his regular inspection of those gambling houses and at the same time
to make the nightly collections. He rode on the automobile of his daughter, a Chrysler sedan driven by his chauffeur,

Faustino Castro. In the back or hip pocket of his trousers he had his wallet which contained P370 in paper money
and some personal papers. As usual he also had with him his .38 caliber pistol. After visiting several gambling
houses, he came to the one at No. 2098 Azcarraga Street shortly before 10 o'clock p.m. There he collected P98,
which, together with the different amounts taken from the other gambling houses, brought his total collection to
P976. This he shoved into one of his pockets, contrary to his usual practice of putting his collections in a paper bag.
Going downstairs, he proceeded to his car, which was parked on the street in front of the gambling house, a short
distance from the corner of said street and calle Morayta. He occupied the back seat, with the driver, Faustino
Castro, on the front seat.
Before the car could start, two men came, each pointing a .45 caliber pistol at them, and ordering them not to move,
opened the doors of the car and got in. One of the intruders seated himself besides the driver on the front seat while
the other took his place half-standing beside Mendoza, who was in the back seat, and ordered him "to hand over the
money." Obeying the command, Mendoza took out the money from his pocket and gave it to the one demanding it,
who after receiving same ordered the chauffer to drive on to Morayta street, and then, with one hand pointing a gun
at Mendoza and with the other searching for his firearm, he was able to get possession of Mendoza's pistol which
he found in his pocket. As the car neared the gasoline station on Morayta Street, the driver, fearful that the intruders
might have more sinister plans for them, thought of crashing his car into another car that was then leaving the
station, with the idea of either scaring the hold-uppers or calling the attention of bystanders, and suiting his action to
this thought he bumped his car into the other. But the strategy did not work, because after the crash Mendoza was
shot several times by the man beside him, while the driver and the other hold-upper grappled for the possession of
the latter's gun which on account of the violence of the collision had slipped from his hand and fell on the front seat
and went off. And as the driver was about to get possession of the gun, he was shot repeatedly from behind by the
same man who had shot Mendoza, after which, the two hold-uppers got off the car and ran away. Seriously
wounded in the face, neck, and shoulder, the driver lost consciousness for a brief moment but upon coming to, he
shouted for help, and staggered out of the car. To the people who came attracted by his cries he said, as they
picked him up from the ground, that he and his master had been held up.
Among the people at or near the gasoline station, aside from the occupants of the two cars, were the manager of
the station, Angel Sevilla, and a chauffeur named Liberato Tinio. Taking cover when the shooting began, these two
came out as soon as the shooting was over, in time to see two gunmen running from behind Mendiza's car towards
Azcarraga Street. In the car of Mendoza they found the latter slumped on the rear seat with gunshot wounds,
already dead. From the ground they picked up the wounded driver Faustino Castro, loaded him on a jeep and took
him to the University of Santo Tomas hospital.
Notified of the shooting, Captain Javier of the Manila Police and his men went immediately to the scene of the crime
to investigate. They found the dead body of Mendoza lying on its back on the rear seat of his car, his watch on his
left wrist and his wallet with its contents P370 in paper money and some personal papers in the hip pocket of
his trousers. Inside the car they also found one buri hat with a bullet hole, one fatigue cap, seven .45 caliber empty
shells and bullets, one .38 caliber empty shell, several packs of cards and two paper bags containing foodstuff. The
corpose was ordered outopsied while the slugs and empty shells were turned over to a ballistic expert for
examination.
While the police immediately started work on the case, for several days they found themselves helpless with the
meager cluses they had on hand, for although the driver Castro saw the facr of the hold-uppers in the brief moment
that the light inside the car was switched on when its doors were opened, the men were unknown to him, aside from
the fact that he was for several days in a critical condition due to the gunshot wounds he had received. But on
January 26th, that is, four days after the crime, Defective Pablo Montilla happened to think that a police character
named Alberto San Luis, who had figured in the shooting of an American named Prescott in the Manila Hotel some
months before, might have something to do with the hold-up, and acting on this hunch he sent one of his assistants
to see the wounded driver at the U.S.T. hospital and show him a picture of San Luis. This the assistant did. But as
the picture shown to the driver was rather small and his eyesight had been impaired by the injury to his left eye,
asked for a larger picture. The detective returned with a post card size picture of Alberto San Luis. Upon seeing the
picture, the driver trembled and asked that the person in the photograph be brought to his presence. Knowing that
San Luis had his residence in Morong, Rizal, the detective went there in the afternoon and arrested him in his

house, and then brought him to the driver. Though placed between two ward attendants, who like himself were
wearing "civilian" clothes, San Luis was immediately pointed to and identified by the driver as the hol-up man who
had seated himself beside him in the car on that fatal night, the driver at the same time addressing him with this
remark: "Be thankful that I am now weak, for if I were strong, you will see what i will do to you." To this observation
San Luis said nothing. Turned over to Det. Sgt. Lapia for questioning at the Detective Bureau, San Luis before
midnight of that day, made a signed statement, confessing his participation in the hold-up, and naming his coaccused Severo Natividad, alias Berong, as his companion in that affair. He also admitted having received from
Natividad P120 just before they parted after leaving the scene of the crime.
Going after Severo Natividad, Detective Francisco was able to apprehend him in the town plaza of Morong while he
was waiting for transporation to Manila. Taken to to the Detective Bureau and brought face to face with Alberto San
Luis, he was identified by the latter in the presence of several detectives, as his companion in the crime.Though
thus implicated, Natividad said nothing. He also refused to give a statement and did not even want to give his name
to the police. He protested vigorously when the detectives tried to bring him before the driver Castro in the hospital
in the company of about 20 students from Santo Tomas University whom the detectives had gathered for the
purpose of making the identification of the culprit more difficult and thus more positive, with the result that he had to
be brought alone into the presence of Castro, who, upon seeing him immediately identified him as one of the holduppers. Again Natividad said nothing in the face of this damaging accusation.
With the arrest of Natividad, who was found to have a bullet wound in the left leg, San Luis thought it necessary to
amplify his previous confession and made another statement, saying that after leaving the scene of the crime he
called a taxi and went to Natividad's house on calle Franco, where he dressed Natividad's wound; that he did not
mention this fact in his previous confession because he never thought that Natividad would be caught; that the
following morning the two of them took a Raytranco bus to Morong and had conversation with the conductor by the
name of Uwing whom he jokingly informed that Natividad had a wooden leg in answer to a question as to why the
latter was limping; that in Morong they had Natividad's wound treated by Dr. Feliciano Nora; and that the money
given to him by Natividad on the night of the crime had already been spent.
According to the doctor who performed the autopsy on Mendoza's body, the latter's death was caused by "severe
shock and profuse hemorrhage (900 cc. rersidual blood0 due to multiple (3) gunshot wounds through the abdomen,
chest, and left upper extremity lacerating the heart, diaphragm and liver and fracturing the left humerus and left 3rd
rib."
The same doctor made an examination of Castro's wound and gave his findings as follows:
"(1) A gunshot wound of entry located in the lateral left supraorbital region, measuring inch by 1.0 inch in
diameter. There is a little gauze strip inserted as a surgical drainage. Below this wound there is small
laceration of the lateral canthus of the left eye and reddish contusion injury to the lateral left eyeball.
The malar region of the left facr is flattened and there is a bluish area with palpable fractured bone
fragments of the left malar bone.
"(2) A gunshot wound of exit from (1) measuring inch by 6/8 inch in diameter, located in the angle of the
left lower jaw. There is a gauze strip as a surgical drainage.
"(3) A gunshot wound of entry measuring inch by inch in diameter located in the right cheek.
"(4) A gunshot wound of exit from (3) measuring inch by inch in diameter, and bearing a narrow gauze
strip drainage located in the anterior upper left side of the neck.
"(5) A gunshot wound of re-entry from exit wound No. (4), measuring 3/4 inch by 1.0 inch in diameter located
in the left supra-clavicular region. This wound is also packed by a gauze strip.

"(6) A sutured closed surgical incision of the skin over the upper left scapular region in the posterior chest.
Dr. Calma of the U.S.T. Hospital, the attending Surgeon, admitted to the undersigned that this wound was
caused by the surgical removal of a .45 caliber bullet under skin over this area by N. G. Hosp. Doctors.
"(7) A gunshot wound of entry, measuring inch by inch in diameter located in the anterior upper patellar
region of the right knee.
"(8) A gunshot wound of exit from No. (7), measuring inch by 3/4 inch in diameter located in the lower
lateral right thigh.
Conclusion:
"All the above gunshot wound injuries are serious in nature. All the wounds in the head, neck and chest are
threatening life at the time of examination. Their ultimate outcome at that time could not be definitely
predicted, but if he survives, there will be permanent anatomical deformities and functional impairment."
The above facts have been established by the evidence for the prosecution.
In their defense, the appellants, through their testimony and that of Francisco Espinelle who, like themselves, was
confined in the national prison at Muntinglupa, tried to prove that in the evening in question San Luis met his friend
Espinelli at a restaurant on Quezon Boulevard; that after eating there the two of them went to calle Morayta and
stopped in front of the driveway to the gasoline station on said street; that while they were conversing about the offer
of Espinelli to sell some blasting caps, Severo Natividad came and joined the two; that while they were standing
there, a car which was parked nearby suddenly backed up, hitting San Luis' left leg with its left bumper; that San
Luis then tapped on the rear part of the car, but the driver did not seem to pay any attention, and so, after the car
had stopped, San Luis went to the right side of the car and addressed the driver thus: "Padre, if you back out your
car, please take the trouble of looking back first," to which the driver replied: "Why, were you hurt,?" San Luis
answered that he was only hurt a little but admonished the driver that in backing up his car he should first look
behind to avoid accidents. The driver retorted that if, after all, San Luis was not hurt, there was no need for him to
sermonize anybody. A heated discussion followed, and while it was going on Natividad came near the car. On
seeing him, Mendoza, who was in the rear seat, gave him a kick, and just then a shot was fired from inside the car.
At this juncture, Espinelli went around to the left side of the car, opened the door and fired at Mendoza, and seeing
that the latter was about to return the fire he hit him on the hand which was holding the pistol, causing this to drop
on the front seat between the driver and San Luis. These two grapled for the gun, and when San Luis felt that the
driver was getting the upper hand, he called for Espinelli's help, whereupon the latter fired about three times at the
driver, putting him out of combat and enabling San Luis to get possession of the weapon. Thereafter the three
scampered away.
Rejecting the story related by appellants and their witness and accepting the prosecution's versionas the true one,
the trial court found Alberto San Luis and Severo Natividad guilty of robbery with homicide and serious physical
injuries with the aggravating circumstances of nocturnity and treachery, not offset by any mitigating circumstance,
and sentenced them to death, jointly and severally to indemnify the heirs of the deceased Teotimo Mendoza in the
sum of P2,000, and to pay proportionate costs. This is the sentence that has been brought here for review because
of the nature of the penalty imposed.
It being admitted that the appellants were at the scene of the crime and even figured in the incident which produced
that crime, the question for determination is whether the shooting occurred by reason of a robbery, as related by the
driver, Fautino Castro, and confirmed by one of the appellants in his confession before the police, or as a result of a
street brawl, as both appellants and their witness, Francisco Espinelli, would, with their testimony, have the court
believe. The case hinges on the credibility of witnesses, and as is the rule in such cases the trial judge's opinion as
to which of them should be believed is entitled to great weight. The trial judge who heard the witnesses in this case
testify and had occasion to observe their demeanor on the stand was of the opinion that those of the prosecution
were the ones that deserve credence. The record discloses nothing which might justify our taking a different view.

It is true that the case for the prosecution rests principally on the testimony of the driver Faustino Castro. But this
testimony leaves no room for doubt, confirmed as it is by appellant San Luis's confession and also by what was
declared by other ocular witnesses. Thus, Castro's declaration that he and his master were held-up by two men
only, and that these two are the appellants herein, not only coincides with San Luis' confession on that point but is
also confirmed by Liberato Tinio and Angel Sevilla, who were at the scene of the crime and testified at the trial that,
after the shooting, they saw two persons of the same height and build as the appellants running away from the car.
These same witnesses, together with Eusebio Lariosa (the driver of the car that was bumped), also corroborated
Castro's testimony that the shooting occurred after the collission of the two cars, and not before, as the defense
would have the court believe. Sevilla, Tinio, and Lariosa are all of them disinterested witnesses, and nothing has
been proved to show that they could have had any motive for not telling the truth. And, speaking of Castro's
testimony, the trial judge observes that the same "carried in its simplicity and naturalness, the characteristics of
veracity in contrast with the testimony of the witnesses for the defense which are not only contradictory but do not
ring true throughout."
On the other hand, we find that the theory of the defense is not only inherently improbable but also contrary to the
indisputable facts established by the testimony of disineterested witnesses. The theory is improbable because if it
were true that appellants and their alleged saviour Francisco Espinelli had merely acted in self-defense, it is hard to
understand why after killing the aggressor and seriously wounding his companion, they should all flee and go into
hiding instead of notifying the authorities, especially when they had in their favor the circumstance that they were in
possession of the aggressor's pistol and that one of them, the appellant Natividad, had been wounded. The course
that they took belies their innocence and greatly weakens their theory of self-defense. And it is significant that when
appellants were investigated by the police they said nothing about this alleged self-defense and even made no
mention of Espinelli.
But the one circumstance which, perhaps more than any other, destroys the story told by the appellants and their
witness is their claim that the shooting occurred before the collision of the two cars. If their story of self-defense
were true, we do not see how the driver, seriously wounded as he already was to the point of losing consciousness,
could still have driven the car and brought about the cras. But the fact is, as established by the clear testimony of
disinterested witnesses and confirmed by San Luis's confession, the shooting occured after and not before the
collission. To this may be added the fact that, as the witness Eusebio Lariosa, the driver of the other car,
approached the wounded Castro immediately after the shooting, the latter told him to help them because they were
held-up.
Francisco Espinelli told a cock and bull story as to how he was able to disarm the deceased Mendoza by knocking
the latter's pistol out of his hand just as he was about to shoot, a feat not only improbable in itself but made doubly
so by the fact that the deceased was inside thecar while Espinelli was outside. The story detracts greatly from the
credibility of this witness.
The role played by Espinelli in the story concocted by the defense becomes perfectly understandable when it is
noted that he was, together with appellants, an inmate of the national prison at Muntinglupa, and admitted on crossexamination that he had a talk with San Luis in prison and was asked by him to testify in this case. To what lengths
he would go to favor appellants is shown by his admission to the effect that he had been robbing jeeps so that he
could be in a position to render them aid and that it would not matter to him if he should be prosecuted for the crime
now in question because, anyway, he was already serving a prison sentence of many years' duration. This
revelation furnishes a sufficient explanation for Espinelli's attampt to assume entire responsibility for the present
crime even if we should disregard the drial judge's observation that this witness had already been convicted of
robbery in two cases, and that in the trial of his co-accused Saturnino Seria in one of those cases (criminal case No.
), which was held before the same trial judge, Espinelli also tried to exculpate his co-accused by assuming
responsibility for the crime.
In the trial, appellant San Luis repudiated his confession on the ground that the same was extracted from him
through force and intimidation, but this claim is denied by Det. Lapia, before whom the confession was made, who
also declared that onthe occassion when the confession was mde, which was in the evening of the day of his arrest,
friends of San Luis and newspaper reporters were at the police station and talked to them, and that on the following

day San Luis talked to his lawyer. Besides, the record does not disclose that any complaint for maltreatment has
ever been filed by or on behalf of this appellant. And, indeed, even supposing that the confession was really
involuntary, the same was mde admissible in evidence by reason of the fact that in consequence thereof a fact was
discovered which confirmed it. (III Moran's Comments on the Rules of court, p. 100.) That fact relates to appellant
Natividad's participation in the crime, which was revealed by the said confession and subsequently confirmed by
Castro's positive identification of this appellant. It may herebe repeated that the confession is confirmed in its
essentials by the testimony of the driver Castro and by the other eyewitnesses. And while this confession may not
be taken into account to the prejudice of hte appellant Natividad, still latter's responsibility for the crime is sufficiently
established by the declaration of the driver Castro and the other prosecution witnesses, and cannot be brushed
aside by appellant's tale of self-defense which has been shown to be incredible.
The wound in Natividad's left leg is, we think, sufficiently accounted for in the decision below as having been due to
a ricochet, and the bullet hole in the hat which had been left in the death car and turned out to be that of appellant
San Luis may well have been caused by a bullet fired from Natividad's gun as he was shooting at the driver while
the latter was struggling with San Luis, or it may also be possible that the hat fell off during the struggle and was hit
by a bullet when it was already on the floor of the car.
As to the claim that robbery has not been established, there is no gainsaying the fact that after Mendoza's visit to
the gambling house at No. 2098 Azcarraga, he had already collected a total of P976 from the different gambling
houses. That was apart from the P370 which he had in his wallet when he left his house that evening. But the
defense argues that if robbery had been appellant's object, why then was the P370 in Mendoza's wallet not taken by
them? The suggestion is that some other people may have taken hold of the money after the holduppers had fled. It
is sufficient answer to this argument that the driver actually saw Mendoza hand the money to appellant Natividad,
and this fact is in some way corroborated by San Luis' confession to the effect that immediately after the
commission of the crime and before they parted he was given P120 by Natividad. That the wallet with its valuable
contents was not taken may be explained by the fact that being in the back pocket of Mendoza's trousers it may
have escaped detection, to say nothing of the possibility that when the money collected from the different gambling
houses was handed by Mendoza to Natividad, the latter may have thought that was all the money the former had.
And while it is true that Mendoza's wrist watch was not taken, that may have been due to the fact that the appellants
were acting in haste and may also have thought that possession of said article by them might lead to their
identification as the authors of the crime.
The evidence shows that Mendoza was shot several times after he had been disarmed by Natividad. And with the
aggressor already armed with two pistols, i.e., his own and that of Mendoza, it is hard to conceive how the latter
could have put up an effective defense. He could not expect any help from his companion (the driver Castro) who
was himself struggling with San Luis for the posession of another gun. It may, therefore, be said that Natividad
inflicted the fatal wounds on Mendoza without danger to himself arising from the defense which the offended party
might make. It is true that only the acts of Natividad are characterized by treachery, for it does not appear that San
Luis fired any of the shots that killed Mendoza and wounded Castro. But San Luis is responsible not only for his own
acts but also for those of his confederate, Natividad, since the evidence shows that there was conspiracy between
the two.
To establish conspiracy, it is not essential that there be proof as to previous agreement to commit a crime, it being
sufficient that the malefactors shall have acted in concert pursuant to the same objective. (People vs. Timbol et al.,
G.R. No. 47473.) In the present case, it appears tht appellants approached the car together and showed concerted
action when one of them, with his drawn pistol, covered the driver on the front seat, while the other also with a
drawn pistol covered Mendoza in the back seat, one of them telling those inside the car "not to move." The two also
entered the car by opening the doors simultaneously: one, the front door, and the other, the rear. And in the case of
appellant San Luis, the conspiracy is further made manifeste by his confession wherein it appears, among other
things, that he received a part of the booty.
After a careful study of the evidence, we find the appellants guilty as principals of the crime with which they are
charged, which is robbery with homicide and serious physical injuries and for which the law prescribes the penalty of
reclusion perpetua to death. There are no mitigating circumstances. On the other hand, the aggravating circumstane

of nocturnity, which has been correctly appreciated by the trial court and not disputed by the defense, is present. In
addition, the trial trial court has already taken into account the aggravating circumstance of treachery, which is also
proven. But even if this latter circumstance be disregarded, there would still be the aggravating circumstance of
nocturnity to be taken into account. The penalty imposable is, therefore, the maximum prescribed by law for the
offense, which is death. The indemnity imposed by the trial court is only P2,000. This should be raised to P6,000 in
line with the precedent established in similar cases.
Wherefore, with the only modification that the indemnity to be paid to the heirs of the deceased be raised to P6,000
and, in addition, the appellants be also required to reimburse to the said heirs the sum stolen, amounting to P976,
which the lower court appears to have overlooked, the sentence below is hereby affirmed, with costs against the
appellants.
This sentence of death shall be carried into effect in the manner prescribed by law upon a day to be fixed by the
judge of the court of origin.
Moran, C.J., Ozaeta, Paras, Pablo, Bengzon, Tuason, Montamayor, and Reyes, JJ.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-63862

July 31, 1987

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
VICENTE ANDAYA, defendant-appellant.
CORTES, J.:
The defendant-appellant, Vicente Andaya, was charged with the murder of Teresita Cervantes in an information
which reads:
That on or about March 3, 1980, in the morning thereof, at Barangay Kinamaligan, Municipality of Masbate,
Province of Masbate, Philippines, within the jurisdiction of this court, the said accused with intent to kill
evident premeditation and treachery did then and there willfully, unlawfully and feloneously attack, assault
and hack several times one Teresita Cervantes, hitting the latter on the head, thereby inflicting wounds
which directly caused her instantaneous death.
Contrary to law.
Andaya pleaded "NOT GUILTY" but the court a quo after trial rendered judgment finding him guilty beyond
reasonable doubt of the crime of murder and imposed the death penalty. Hence this automatic review. The
dispositive portion of the decision is as follows:
WHEREFORE, PREMISES CONSIDERED, the Court finds accused Vicente Andaya GUILTY beyond
reasonable doubt of the crime of murder qualified by treachery and aggravated by the circumstance of an
uninhabited place, without any mitigating circumstance to offset the same, therefore, hereby sentences him
to the supreme penalty of death, to indemnify the heirs of the late Teresita Cervantes the amount of
P12,000.00 as compensatory damages, and to pay the costs of the suit.
In view of the nature of the penalty imposed by the Court, the record of this case is hereby ordered
forwarded to the Supreme Court of the Philippines, Manila for automatic review.

SO ORDERED.
The case for the prosecution rests on the positive Identification of the defendant-appellant by witnesses Edna Ternal
and Francisco Masamoc. The latter testified to having seen the crime actually committed. The defense relies on
alibi.
The decision appealed from, takes into account the conflicting versions of the prosecution and of the defense as to
what happened on the morning of March 3, 1980. It clearly indicates the facts and law on which the decision is
based, thus:
xxx

xxx

xxx

A perusal of the conflicting versions of the prosecution and that of the defense show that accused's alibi is
feeble and flimsy. Prosecution witness, Francisco Masamoc positively Identified accused Vicente Andaya as
the assailant of the deceased Teresita Cervantes. He saw Vicente Andaya armed with bolo, chasing the
victim and upon overtaking her, he hacked the victim. As a result of the hacking, she died. Thereafter,
Vicente Andaya ran to the creek. Francisco Masamoc immediately reported the incident to the parents of the
victim. Significantly, this testimony of Francisco Masamoc was the subject of a perfect corroboration by a
young barrio girl, Edna Ternal who in her testimony said that while she was going down the trail of barrio
Kinamaligan, Masbate, Masbate, she saw accused Vicente Andaya and Teresita Cervantes going the hill of
Kinamaligan. Teresita Cervantes was ahead, followed by the accused who was then carrying a bolo tucked
on his waist. Edna Ternal testified that accused Vicente Andaya was behind Teresita Cervantes while they
were going down the trail. In this connection, Dr. Emilio Quemi declared that the incised wound of the victim,
about four inches long at the posterior base of the neck could have been inflicted while the assailant was
behind the victim. The evidence on record is bereft of any known motive why these witnesses should falsely
testify against the accused or of any special interest in accused's conviction, thus, their testimonies deserve
weight and credence.
Accused Vicente Andaya pleaded the defense of alibi. He maintains that in the early morning of March 3,
1980, he was in the house of his parents-in-law at barrio Kinamaligan, Masbate, Masbate. And from said
house he went to his place of work in the coconut plantation of Carlito Saut also located in the same barrio,
arriving thereat about 8:00 A.M. on said date. At about past 8:00 A.M. he started gathering coconuts until
11:00 A.M. Cecilio Labastida corroborated accused's claim that at about 7:00 A.M. on March 3, 1980, he was
in the house of his father-in-law, Crispulo Labastida. Cecilio stayed there for almost two (2) hours where he
also saw Edna Ternal in the same house. He declared however that Vicente Andaya went uphill of barrio
Kinamaligan at around past 7:00 A.M. on the same day. Jose Saut likewise attempted to corroborate Vicente
Andaya's alibi. He testified that in the early morning of March 3, 1980, he went to the house of his nephew,
Carlito Saut in the hill of barrio Kinamaligan, Masbate; Masbate to borrow money. On his way, he met
Vicente Andaya. So they went together in going to the house of Carlito Saut and arrived thereto about past
8:00 A.M. After resting for a while, Vicente Andaya started gathering coconuts from past 8:00 A.M. up to
11:00 A.M.
It is significant to note that Cecilio Labastida is not an impartial witness as he is Vicente Andaya's brother-inlaw, therefore his testimony is tainted with bias. At any rate, he admitted that at around 7:00 A.M. on March
3, 1980, Vicente Andaya actually left the house of his father-in-law and went up the hill of barrio
Kinamaligan, Masbate, Masbate the place where the victim was killed. Similarly, Jose Saut could not be a
disinterested witness because he is the uncle of Carlito Saut, the owner of the coconut plantation where
Vicente Andaya was gathering coconuts. But, even granting that the alibi presented by the accused and his
witnesses is to be admitted, the fact remains that the place where Teresita Cervantes was killed and the
place where accused was allegedly gathering coconuts on March 3, 1980 is only around 500 meters away,
therefore, it was not physically impossible for the accused to have been at the place where the crime was
committed, either before or after the time he was in the place of his work in the plantation of Carlito Saut. In
this connection, it has been held that "to establish an alibi, a defendant must not only show that he was
present at some other place about the time of the alleged crime, but also that he was at such other place for

so long a time that it was impossible for him to have been at the place where the crime was committed,
either before or after the time he was at such other place. (People v. Palomas, 49 Phil. 501; People v.
Angeles, 92 SCRA 432; People v. Alcantara, 33 SCRA 812). In another case the Supreme Court refused to
believe appellants' defense of alibi as the plantation where he was allegedly working on the day in question
was only about six hundred yards away from the scene of the crime, and it was not impossible for them to
leave their place of work. (People v. Niem, et al., L-8634, 75 Phil. 668; People v. Gamboa, et al, L-8634,
October 18, 1954) But apart from the foregoing weakness which inheres in the alibi invoked by the accused,
his inability to exculpate from the fact that the prosecution eyewitness, Francisco Masamoc positively and
categorically Identified Vicente Andaya as the perpetrator of the crime and Edna Ternal substantially
corroborated his version of the incident. The positive Identification of the accused as the author of the crime
by said witnesses is beyond doubt, hence the alibi of Vicente Andaya cannot stand against it. The
unchallenged rule in this jurisdiction is that the defense of alibi is worthless in the face of positive
Identification by prosecution witnesses pointing to the accused as particeps criminis. (People v. Dela Cruz,
97 SCRA 385)
In the instant case, the crime was correctly characterized by the prosecutor as murder. Accused Vicente
Andaya made a deliberate and sudden attack with his bolo on the unarmed victim, Teresita Cervantes after
she was chased and overtaken by said accused. Dr. Emilio Quemi who examined the deceased, said that
the incised wound of the victim, about four inches long at the posterior base of the neck could have been
inflicted while the assailant was behind the victim, thus, corroborating the testimonies of prosecution
eyewitnesses Francisco Masamoc and Edna Ternal that the accused herein was behind the victim during
the incident. Accused resorted to a mode of assault which insured the consummation (sic) of the killing
without any risk to himself arising from any defense which the victim could have made. Hence, alevosia
qualifies the killing as murder. But the evidence on record also shows that the victim was killed on top of the
hill of barrio Kinamaligan, Masbate, Masbate, an uninhabited place which is far from human habitation, the
nearest house being about 1/2 kilometer away and the place of the killing was obviously sought and chosen
by the accused to avoid detection and preclude interference with the commission of the murder or giving
assistance to the victim. Thereby uninhabited place aggravates the penalty. And there being no mitigating
circumstance present, the death penalty must be imposed to the accused. The accused in this case
victimized a young barrio girl living at the top of the hill of barrio Kinamaligan, Masbate, Masbate. Clearly,
the accused is a criminal with anti-social proclivities against which society has the need, if not the right, to
defend itself. The imposition of the supreme penalty to him is not only justified by the facts of the case, but is
required as a measure of social defense. To spare his fife is to endanger the lives of many more other
innocent persons. For him justice cannot be tempered with mercy, the law must be applied to its full force
and to its full extent.
As counsel for the defendant-appellant the Citizens Legal Assistance Office (CLAO) assigns the following errors:
I
THE COURT A QUO GRAVELY ERRED IN RELYING ON THE TESTIMONY OF FRANCISCO MASAMOC
AS THE ALLEGED EYE-WITNESS TO THE CRIME INSPITE (sic) OF HIS CONTRADICTORY
STATEMENTS.
II
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT ON MERE CIRCUMSTANTIAL
EVIDENCE. [Rollo, p. 29].
This Court finds no merit in the appeal.
The defense challenges the credibility of the witness Francisco Masamoc pointing out discrepancies in his
statements in the affidavit executed before the police authorities and those made on the witness stand. In the
affidavit the witness did not say anything about having seen the defendant-appellant hack the victim while he

testified at the trial to having seen the act done. However, the witness explaining his omission, on cross-examination
stated that the affidavit was prepared by a policeman at the municipal building who asked and typed the questions
together with the answers.
In previous cases this Court has ruled on the issues of contradictions made by witnesses for the prosecution in
statements in their affidavits and on the witness stand. [People v. Tan, 89 Phil. 337 (1951), People v. Pacala, L26647, August 15, 1974, 58 SCRA 370].
In People v. Tan [at p. 341], the Court dealt with the issue, thus:
. . . As aptly pointed out by the Solicitor General, the contradictions, if any, may be explained by the fact that
an "affidavit * * * will not always disclose the whole facts, and will oftentimes and without design incorrectly
describe, without the deponent detecting it, some of the occurrences, narrated * * *" (2 Moore on Facts,
1098) and "being taken ex parte, is almost always incomplete and often inaccurate, sometimes from partial
suggestions, and sometimes from the want of suggestions and inquiries, without the aid of which the witness
may be unable to recall the connected, collateral circumstances necessary for the correction of the first
suggestions of his memory, and for his accurate recollection of all that belongs to the subject . . .
Another discrepancy in the testimony of the principal witness Masamoc pointed out by the defense refers to
Masamoc's purpose in going to the poblacion on the morning of March 3, 1980. This is minor, is satisfactorily
explained and does not affect the credibility of the witness.
The defense assigns as error the conviction of the defendant-appellant on "mere circumstantial evidences."
The prosecution presented Francisco Masamoc as eyewitness to the dastardly act of the defendantappellant. Masamoc testified that he saw Vicente Andaya armed with a bolo chasing the victim, and that upon
overtaking her, Andaya hacked the victim. The court a quo who heard the testimony of Masamoc and observed him
during the trial gave fun credence to his account of what happened. Masamoc's act of immediately reporting what
he saw to the parents of the victim supports the veracity of his account of the event. Furthermore, the schoolgirl
Edna Ternal's testimony that she met the victim closely followed by the accused-appellant carrying a bolo tucked on
his waist, as they were going down the trail, corroborates Masamoc's testimony. Further corroboration was made in
findings of the medical doctor that the most fatal wounds of the victim were located on the mandible and at the back
of the neck, which could have been caused by a sharp edged instrument wielded by the assailant positioned behind
the victim.
1avvphil

The court a quo committed no error in rejecting alibi as a defense against the positive Identification of the
defendant-appellant as the perpetrator of the crime. As the trial court noted the witnesses presented for the defense
were not impartial witnesses and even if they were, the place where the defendant-appellant was supposed to be at
the time the murder was committed was only about 500 meters away from the scene of the crime.
However, the Court agrees with the Solicitor General, that although the offense was committed in an uninhabited
place, the record does not show that the defendant-appellant actually sought the solitude of the place to better attain
his purpose. For this reason this aggravating circumstance should not be considered against the defendantappellant [People v. Luneta, et al., 79 Phil. 815 (1948), People v. Deguia, et al., 88 Phil. 520 (1951), U.S. v. Vitug, 17
Phil. 1 (1910)]. With neither aggravating nor mitigating circumstance, the proper penalty, therefore, would
be reclusion perpetua not death. Even without this factor, under the 1987 Constitution [Art. III, Sec. 19(l)] the
modification of the penalty imposed by the trial court would in any event have to be modified toreclusion perpetua.
WHEREFORE, the appealed decision finding the defendant-appellant guilty of murder beyond reasonable doubt is
hereby MODIFIED to reduce the penalty of death to reclusion perpetua and to increase the amount of indemnity to
be paid the heirs of Teresita Cervantes to P30,000.00.
SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin and Sarmiento, JJ., concur.

EN BANC
[G.R. No. 4487. September 7, 1908. ]
THE UNITED STATES, Plaintiff-Appellee, v. ALFONSO MELEGRITO, ET AL., Defendants-Appellants.
Eusebio Orense for Appellants.
Attorney-General Araneta for Appellee.
SYLLABUS
1. ROBBERY "EN CUADRILLA." In order to sustain a charge that the accused committed the crime of robo en cuadrilla, it
must appear from the evidence that more than three of the party committing the crime were armed. Proof that three of the
party were armed without proof as to whether the other members were or were not armed, is not sufficient.
2. ROBBERY AGGRAVATING CIRCUMSTANCES. Where the crime of robbery with violence to the person, as defined and
penalized in article 503 of the Penal Code, is committed in the house of the offended person, that fact should be taken into
consideration as an aggravating circumstance. (U. S. v. Leyba, 8 Phil. Rep., 671.)

DECISION

CARSON, J. :

The accused were charged with the crime of robbery in an armed gang (robo en cuadrilla) on the following complaint:

jgc:chanrobles.com .ph

"The undersigned charges Alfonso Melegrito and Catalino Melegrito with the crime of robbery in a gang, committed as
follows: That between 10 and 11 p. m. of the 15th of March, 1907, in the barrio of Mabanengbeng, pueblo of Bacnotan,
Province of La Union, the said accused, accompanied by two unknown men, willfully, illegally, and feloniously, and with arms,
entered the dwelling of one Teodoro Dacanay and, with intent of profiting thereby and by means of violence and intimidation,
took possession of personal property of said Teodoro Dacanay, of the total value of 1,028 pesetas; the commission of the
crime being marked by gravity manifest]y unnecessary for its execution. The said deed constitutes the crime punished by
paragraph 4 of article 503 of the Penal Code, and was committed within the jurisdiction of this Court of First Instance and
against the statute."
cralaw virtua1aw library

The evidence of record conclusively establishes the guilt of the accused of the crime of robbery, as charged, except in so far
as it is alleged that it was committed en cuadrilla, and that the robbery was attended with violence or intimidation,
manifestly unnecessary for its execution.
The only question raised by counsel for the appellants is as to the accuracy of their identification by the witnesses for the
prosecution. Upon this point the trial judge held that "the two accused were clearly and positively identified at the time of
their arrest by Agapita Lagao, who is a very intelligent woman, and her daughter, a young girl, in whose testimony the court
had the utmost faith. There is not the least doubt in the mind of the court of the identity of the accused nor of their guilt."
We think that this finding must be sustained.
The evidence in support of the allegation that the crime was committed en cuadrilla consists of proof that the two appellants
being armed, entered the house of Teodoro Dacanay, leaving several companions outside, and that one of their companions
drove a bolo through the floor of the house. None of their companions were seen by the witnesses. While it appears,
therefore, that at least three of the party were armed, the evidence of record does not disclose that "more than three" of the
party were armed, as required by the provisions of article 505 of the Penal Code, which describes a gang as consisting of
more than three armed malefactors united in the robbery.
The only evidence as to violence committed by the accused was to the effect that they pushed Teodoro Dacanay, the owner
of the house, into one corner of the room, and at the same time struck him in the back with a bolo, causing no wound, and

making him lie down and cover himself with a blanket or sheet. This is not violence or intimidation of a "gravity manifestly
unnecessary for the execution of the crime," and was not sufficient to bring it under the provisions of subdivision 4 of article
503, as alleged in the complaint.
The judgment of the trial court should, therefore, be reversed, and the appellants should be and are hereby convicted of the
crime of simple robbery, as defined in subdivision 5 of article 503, and it appearing that the crime was marked by the
aggravating circumstance of nocturnity and the fact that it was committed in the house of the offended person, the penalty
should be imposed in its maximum degree. (U. S. v. Marcelo Aquino Et. Al., decided September 8, 1908; U. S. v. Leyba, 8
Phil. Rep., 671: sentencia of the supreme court of Spain, December 24, 1896.) The penalty of nine years of presidio mayor
with the accessory penalties prescribed by law imposed by the trial court, is within the limits prescribed for the offense of
which the accused are thus convicted, and we therefore impose upon the appellants the same penalty, with the cost of this
instance against the appellants. So ordered.
Arellano, C.J., Torres, Mapa, Willard and Tracey, JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

G.R. No. L-28865 February 28, 1972


NICANOR NAPOLIS, petitioner,
vs.
COURT OF APPEALS, and THE PEOPLE OF THE PHILIPPINES, respondents.
Victor Arichea for petitioner.
Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio G. Ibarra and Solicitor Conrado
T. Limcaoco for respondents.

CONCEPCION, C.J.:p
Appeal taken by Nicanor Napolis from a decision of the Court of Appeals affirming that of the Court of First Instance
of Bataan, the dispositive part of which reads as follows:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court hereby finds the accused Bonifacio
Malana, Nicanor Napolis and Apolinario Satimbre guilty beyond reasonable doubt of the crime of
robbery in band and sentences Bonifacio Malanaas an accessory after the fact to suffer
imprisonment of from six (6) months, arresto mayor, as minimum to six (6) years, prision
correccional, as maximum and to indemnify the offended party, Ignacio Peaflor in the sum of
P80.00 with subsidiary imprisonment in case of insolvency but not to exceed one-third (1/3)of the
principal penalty and the accused Nicanor Napolis and Apolinario Satimbre to suffer imprisonment of
from ten (10) years and one (1) day, prision mayor, as minimum, to seventeen (17) years, four (4)
months and one (1) day, reclusion temporal, as maximum, both to indemnify the spouses Ignacio
Peaflor and Casimira Lagman in the sum of Two Thousand Five Hundred Fifty-Seven Pesos
(P2,557.00) without subsidiary imprisonment in case of insolvency and all three to pay the
proportionate part of the costs.
The main facts, on which there is no dispute, are set forth in the decision of the Court of Appeals, from which We
quote:

At about 1:00 o'clock in the early morning of October 1, 1956, Mrs. Casimira Lagman Peaflor , 47year old wife of Ignacio Peaflor , the owner of a store located at the new highway, Hermosa,
Bataan, after answering a minor call of nature, heard the barkings of the dog nearby indicating the
presence of strangers around the vicinity. Acting on instinct, she woke up husband Ignacio Peaflor
who, after getting his flashlight and .38 caliber revolver, went down the store to take a look. As he
approached the door of the store, it suddenly gave way having been forcibly pushed and opened by
4 men, one of them holding and pointing a machinegun. Confronted by this peril, Ignacio Peaflor
fired his revolver but missed. Upon receiving from someone a stunning blow on the head, Ignacio fell
down but he pretended to be dead. He was hogtied by the men. The fact, however, was that he did
not lose consciousness (tsn. 5, I). The men then went up the house. One of the robbers asked Mrs.
Casimira L. Peaflor for money saying that they are people from the mountain. Mrs. Casimira L.
Peaflor , realizing the danger, took from under the mat the bag containing P2,000.00 in cash and
two rings worth P350.00 and delivered them to the robber. Thereupon, that robber opened and
ransacked the wardrobe. Then they tied the hands of Mrs. Casimira L. Peaflor and those of her two
sons. After telling them to lie down, the robbers covered them with blankets and left. The revolver of
Ignacio, valued at P150.00, was taken by the robbers. The spouses thereafter called for help and
Councilor Almario, a neighbor, came and untied Ignacio Peaflor . The robbery was reported to the
Chief of Police of Hermosa and to the Philippine Constabulary.
Chief of Police Delfin Lapid testified that he went to the premises upon receiving the report of
Councilor Almario and found owner Ignacio Peaflor with a wound on the head (tsn. 23, I). The
wardrobe was ransacked and things scattered around. It appears that the robbers bore a hole on the
sidewall of the ground floor of the store and passed through it to gain entrance. According to Chief of
Police Delfin Lapid, "they removed the adobe stone and that is the place where they passed
through" (tsn. 24, I). In that same morning, policeman Melquiades Samaniego reported seeing
suspicious characters passing through a nearby field and when the field was inspected, the
authorities were able to locate a greasegun with 5 bullets and a pistol with 3 bullets (tsn. 24, I,
testimony of Chief of Police)...
It appears that, shortly after the occurrence, a criminal complaint for robbery in band was filed with the Justice of the
Peace Court of Hermosa, Bataan. Named as defendants in the complaint, as subsequently amended, were Nicanor
Napolis, Bonifacio Malana, Ben de la Cruz, Mauricio Anila, alias Mori, Jose Escabel, alias Pepe, Antonio Bededia,
alias Toning, John Doe, alias Sommy Casimiro, Apolinario Satimbre, Paul Doe, et al. Napolis, Malana, Anila and
Casimiro having waived their right to a preliminary investigation, the case, insofar as they are concerned, was
forwarded to the Court of First Instance of Bataan, where the corresponding information was filed. As subsequently
amended, by the inclusion, as defendants therein, of Antonio Bededia alias Toning, Domingo Flores alias Eko, Ben
de la Cruz, Jose Escabel alias Pepe, Apolinario Satimbre, Carlito Veloso and Paul Doe, it is alleged in said
information: .
That on or about 1:00 o'clock in the early morning of October 1, 1956, in the Municipality of
Hermosa, Province of Bataan, Philippines, and within the jurisdiction of this Honorable Court, the
herein accused Bonifacio Malana, Nicanor Napolis, Ben de la Cruz, Mauricio Anila, Alias Mori, Jose
Escabel, Alias Pepe, Antonio Bededia, alias Toning, John Doe, Alias Sommy Casimiro, Apolinario
Satimbre, Carlito Veloso, Domingo Flores, Alias Eko and Paul Doe, by conspiring, confederating and
helping one another, with the intent to gain and armed with a Grease Gun, Three (3) caliber .45
pistols and two (2) revolvers, did then and there willfully, unlawfully and feloniously, entered the
dwelling of the spouses IGNACIO PEAFLOR and CASIMIRA L. PEAFLOR by boring a hole
under the sidewall of the ground floor of the house and once inside, attack, assault and hit Ignacio
Peaflor with the handle of the Grease Gun causing him to fall on the ground and rendering him
unconscious, tied his hands and feet and then leave him; that the same accused approached
Casimira L. Peaflor , threatened her at gun point and demanded money; that the same accused
while inside the said house searched and ransacked the place and take and carry away the following
cash money and articles belonging to said spouses Ignacio Peaflor and Casimira L. Peaflor , to
wit: P2,000.00 in cash, Philippine Currency, One (1) ring (Brillante) valued at P350.00, One (1)
licensed Commando Colt Revolver, Serial No. 532132 and One (1) Flashlight, valued at P7.00, to

the damage and prejudice of said spouses in the total sum of TWO THOUSAND FIVE HUNDRED
FIFTY-SEVEN PESOS, (P2,557.00) Philippine Currency.".
At the trial of Malana, Napolis, Satimbre, De la Cruz, Anila, Casimiro and
Flores, 1 the evidence for the prosecution consisted of the testimony of the offended parties, Ignacio Peaflor and his wife
Casimira Lagman Peaflor , Provincial Fiscal Eleno L. Kahayon, Clerk of Court Pedro Aldea, Deputy Clerk of Court
Eulogio C. Mina, Delfin Lapid, the Chief of Police of Hermosa, Bataan, and Lt. Luis Sacramento of the Constabulary and
the affidavits, Exhibits A, B and C of defendants Napolis, Satimbre and Malana, respectively, admitting their participation
in the commission of the crime charged.
Mr. and Mrs. Peaflor testified mainly on the robbery involved in the charge, whereas Fiscal Kahayon narrated the
circumstances under which the affidavit Exhibit A was subscribed and sworn to before him by appellant Napolis;
Police Chief Lapid and Lt. Sacramento dwelt on the investigations conducted by them and the circumstances under
which said defendants made their aforementioned affidavits; and Clerk of Court Pedro Aldea and Deputy Clerk of
Court Eulogio C. Mina explained how Exhibits B and C were subscribed and sworn to before them by defendants
Satimbre and Malana, respectively.
Upon the other hand, Napolis tried to establish an alibi. Testifying in his own defense, he would have Us believe that
on October 1, 1956, he was in his house in Olongapo, Zambales, because of a tooth extracted from him by one Dr.
Maginas.
Defendant Satimbre, in turn, introduced his own testimony and that of his wife Engracia Mendoza. Satimbre claimed
to be innocent of the crime charged and said that, although reluctant to sign Exhibit B, he eventually signed thereon,
upon the advice of his wife Engracia Mendoza who sought to corroborate him and Mayor Guillermo Arcenas of
Hermosa, in order that he may not be implicated in a robbery that took place in Balanga, Bataan, and that he could
be sent back to his hometown, Hermosa, Bataan.
Before the conclusion of the trial, the court of first instance of Bataan dismissed the case as against defendants
Flores, Anila, Casimiro and De la Cruz.
In due course, said court convicted Nicanor Napolis, Bonifacio Malana and Apolinario Satimbre, as above indicated.
Said defendants appealed to the Court of Appeals which, however, dismissed Malana's appeal, and affirmed the
decision of the Court of First Instance, insofar as Napolis and Satimbre are concerned. Satimbre did not appeal from
said decision of the Court of Appeals, whereas Napolis alleges that said court has erred .
I. In affirming in toto the conviction of petitioner herein, of the crime charged based upon a lurking
error of identity.
II. In affirming the conviction of petitioner based upon an extra-judicial confession extracted through
duress.
III. In affirming the decision of the court a quo based upon the evidence on record adduced during
the trial.
IV. In deciding the case not in accordance with the provision of law and jurisprudence on the matter.
Under the first assignment of error, it is urged that appellant has not been sufficiently identified as one of those who
perpetrated the crime charged. In support of this contention, it is argued that the identification made by Mrs.
Peaflor was due to a picture of appellant taken by Lt. Sacramento from the files of the police in Olongapo,
Zambales, and then shown to her, before he (appellant) was apprehended and then brought to her presence for
identification. It is thus implied that Mrs. Peaflor identified him in consequence of the suggestion resulting from the
picture she had seen before he was taken to her for said purpose. The defense further alleges that she could not
have recognized appellant herein, in the evening of the occurrence, because the same was dark, and the flashlight
used by the malefactors was then focused downward.

Appellant's pretense is, however, devoid of factual basis. The record shows that the authorities were notified
immediately after the occurrence; that, soon after, peace officers Police Chief Lapid and PC Lt. Sacramento
repaired to the house of Mr. and Mrs. Peaflor and investigated them; that based upon the description given by Mrs.
Peaflor , one individual was apprehended and then presented to Mrs. Peaflor , who said that he was not one of
the thieves; that another person subsequently arrested and taken to Mrs. Peaflor was, similarly, exonerated by her;
that in the course of the investigation conducted by the Philippine Constabulary, Lt. Sacramento later brought Mrs.
Peaflor to the offices of the police force in Olongapo and showed her the pictures of police characters on file
therein; that among those pictures, she noticed that of appellant herein, who, she believed, was one of the culprits;
and that appellant was, therefore, arrested and brought to Mrs. Peaflor , who positively identified him as one of the
malefactors.
In other words, Lt. Sacramento did not suggest to Mrs. Peaflor , through the aforementioned picture of appellant,
that he was one of the thieves. It was she who told Lt. Sacramento that said picture was that of one of the thieves.
Besides, the fact that Mrs. Peaflor readily exonerated the first two suspects, arrested by the authorities, shows that
appellant herein would not have been identified by her if she were not reasonably certain about it.
Then, again, she had ample opportunity to recognize appellant herein because it was he who demanded money
from her and to whom she delivered P2,000 in cash and two (2) rings worth P350; it was, also, he who opened and
ransacked her wardrobe; and it was he who tied her hands and those of her two sons. These series of acts,
performed in her presence, consumed sufficient time from 10 to 20 minutes to allow her eyesight to be
adjusted to existing conditions, and, hence, to recognize some of the robbers. The night was dark; but, there were
two flashlights switched on, namely, that of her husband, and the one used by the thieves. Although the latter was,
at times, focused downward, it had to be aimed, sometimes, in another direction, particularly when the money and
rings were delivered to appellant herein, and when he opened and ransacked the wardrobe of Mrs. Peaflor . Lastly,
her testimony was confirmed by other circumstances presently to be mentioned, in connection with the
consideration of the other alleged errors pointed out by appellant herein.
The second assignment of error is based upon a wrong premise that appellant's conviction was based upon his
extra-judicial confession and that the same had been made under duress.
Said extra-judicial confession was merely one of the factors considered by His Honor, the trial Judge, and the Court
of Appeals in concluding that the evidence for the defense cannot be relied upon and that the witnesses for the
prosecution had told the truth. Besides, appellant's confession was not tainted with duress. In this connection, the
Court of Appeals had the following to say: .
Apart from the reliability of Mrs. Casimira Lagman Peaflor 's identification, we have the extrajudicial confession of appellant Nicanor Napolis, marked Exh. A, subscribed and sworn to by said
accused on October 26, 1956, 25 days after the occurrence, before Provincial Fiscal Eleno L.
Kahayon, the 64-year old prosecutor who, since July 18, 1946, was the Provincial Fiscal of Bataan
up to the present. His testimony shows that he read the confession, Exh. A, to said accused in the
Tagalog dialect; asked him whether he understood it to which appellant Napolis answered "yes";
inquired whether he was coerced to which he replied "No"; and then, required him to raise his hand
in affirmation which he did (tsn. 14-15, I). Thereupon, appellant Napolis signed the confession in his
(Fiscal's) presence. Provincial Fiscal Eleno L. Kahayon further testified that he saw no signs of
physical violence on the person of the appellant who appeared normal in his appearance (tsn. 15, I).
In this confession, Exh. A, appellant Napolis related that it was co-accused Antonio Bededia (still-atlarge) who pointed the greasegun to husband Ignacio Peaflor and who hit him (Peaflor ) on the
head and that it was co-accused Ben de la Cruz (whose case was dismissed) who wrested Peaflor
's revolver. For his part, appellant Napolis admitted that it was he who talked to Mrs. Casimira L.
Peaflor and it was he who got the money bag. The loot, according to him, was split from which he
received a share of P237.00 (Answer to Q. A, Exh. A). Among others, he mentioned appellant
Bonifacio Malana as the owner of the greasegun and the one who got Peaflor 's revolver from the
hands of co-accused Ben de la Cruz. ... .

It may not be amiss to advert to the fact that, on appeal from a decision of the Court of Appeals, the findings of fact
made in said decision are final, except .
(1) When the conclusion is a finding grounded entirely on speculations, surmises or conjectures; (2)
when the inference is manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of
discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of
fact are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of
the case and the same is contrary to the admissions of both appellant and appellee. 2
and that the case at bar does not fall under any of the foregoing exceptions.
The third assignment of error is predicated upon the theory that the evidence for the prosecution is contradictory
and, hence, unworthy of credence. Counsel for the defense alleges that, whereas Ignacio Peaflor said that the
thieves had entered his house by forcing its door open, Mrs. Peaflor testified that their entry was effected through
an excavation by the side of the house, and the chief of police affirmed that the malefactors had removed a piece of
wood and an adobe stone to get into said house. No such contradictions, however, exist. The house of Mr. and Mrs.
Peaflor consisted of two (2) parts, one of which was a store and the other the dwelling proper, adjoining the store,
which had a door leading thereto (to the dwelling proper). Mrs. Peaflor testified that the culprits had entered the
store by removing an adobe stone from a wall thereof, and this was corroborated by the chief of police, although he
added that the malefactors had, also, removed a piece of wood from said wall. Upon the other hand, the testimony
of Mr. Peaflor referred to a door, inside the store, leading to the dwelling proper, as distinguished from the store.
In the light of the foregoing, and considering that the findings of fact made by the Court of Appeals are supported by
those of His Honor, the trial Judge, who had observed the behaviour of the witnesses during the trial, it is clear to Us
that the first three (3) assignments of error are untenable.
The fourth assignment of error refers to the characterization of the crime committed and the proper penalty therefor.
It should be noted that the Court of Appeals affirmed the decision of the trial court convicting Napolis, Malana and
Satimbre of the crime of robbery committed by armed persons, in an inhabited house, entry therein having been
made by breaking a wall, as provided in Article 299 (a) of the Revised Penal Code, and, accordingly, sentencing
Napolis and Satimbre to an indeterminate penalty ranging from ten (10) years and one (1) day of prision mayor, as
minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum, which is in
accordance with said legal provision.
In addition, however, to performing said acts, the malefactors had, also, used violence against Ignacio Peaflor ,
and intimidation against his wife, thereby infringing Article 294 of the same Code, under conditions falling under subparagraph (5) of said article, which prescribes the penalty of prision correccional in its maximum period to prision
mayor in its medium period, which is lighter than that prescribed in said Article 299, although, factually, the crime
committed is more serious than that covered by the latter provision. This Court had previously ruled .
... that where robbery, though committed in an inhabited house, is characterized by intimidation, this
factor "supplies the controlling qualification," so that the law to apply is article 294 and not article 299
of the Revised Penal Code. This is on the theory that "robbery which is characterized by violence or
intimidation against the person is evidently graver than ordinary robbery committed by force upon
things, because where violence or intimidation against the person is present there is greater
disturbance of the order of society and the security of the individual." (U.S. vs. Turla, 38 Phil. 346;
People vs. Baluyot, 40 Phil. 89.) And this view is followed even where, as in the present case, the
penalty to be applied under article 294 is lighter than that which would result from the application of
article 299. ... . 3
Upon mature deliberation, We find ourselves unable to share the foregoing view. Indeed, one who, by breaking a
wall, enters, with a deadly weapon, an inhabited house and steals therefrom valuable effects, without violence
against or intimidation upon persons, is punishable under Art. 299 of the Revised Penal Code with reclusion
temporal. 4 Pursuant to the above view, adhered to in previous decision, 5 if, aside from performing said acts, the thief lays

hand upon any person, without committing any of the crimes or inflicting any of the injuries mentioned in subparagraphs
(1) to (4) of Art. 294 of the same Code, the imposable penalty -- under paragraph (5) thereof -- shall be much lighter. 6 To
our mind, this result and the process of reasoning that has brought it about, defy logic and reason.

The argument to the effect that the violence against or intimidation of a person supplies the "controlling
qualification," is far from sufficient to justify said result. We agree with the proposition that robbery with "violence or
intimidation against the person is evidently graver than ordinary robbery committed by force upon things,"
but,precisely, for this reason, We cannot accept the conclusion deduced therefrom in the cases above cited
reduction of the penalty for the latter offense owing to the concurrence of violence or intimidation which made it
amore serious one. It is, to our mind, more plausible to believe that Art. 294 applies only where robbery with
violence against or intimidation of person takes place without entering an inhabited house, under the conditions set
forth in Art. 299 of the Revised Penal Code.
We deem it more logical and reasonable to hold, as We do, when the elements of both provisions are present, that
the crime is a complex one, calling for the imposition -- as provided in Art. 48 of said Code -- of the penalty for the
most serious offense, in its maximum period, which, in the case at bar, is reclusion temporal in its maximum period.
This penalty should, in turn, be imposed in its maximum period -- from nineteen (19) years, one (1) month and
eleven (11) days to twenty (20) years of reclusion temporal owing to the presence of the aggravating
circumstances of nighttime. In short, the doctrine adopted in U.S. v. De los Santos 7 and applied in U.S. v.
Manansala, 8 U.S. v. Turla, 9 People v. Baluyot, 10 Manahan v. People, 11 and People v. Sebastian, 12 is hereby abandoned
and appellant herein should be sentenced to an indeterminate penalty ranging from ten (10) years, and one (1) day
of prision mayor to nineteen (19) years, one (1) month and eleven (11) days of reclusion temporal.
Thus modified as to the penalty, the decision of the Court of Appeals is hereby affirmed in all other respects, with
costs against herein appellant, Nicanor Napolis. It is so ordered.
Reyes, J.B.L., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ., concur.
Makasiar, J., took part.

THIRD DIVISION
[G.R. No. 128966. August 18, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDWIN DE VERA y GARCIA,
RODERICK GARCIA y GALAMGAM, KENNETH FLORENDO and ELMER
CASTRO, accused, EDWIN DE VERA y GARCIA, appellant.
DECISION
PANGANIBAN, J.:

When is a lookout deemed an accomplice and when a conspirator? What is the distinction between the two?
Statement of the Case

These are the main questions passed upon by the Court in resolving the present appeal, which assails the
March 12, 1997 Decision[1] of the Regional Trial Court of Quezon City (Branch 57) in Criminal Case No. Q-92-

31323, finding Appellant Edwin De Vera and Accused Roderick Garcia guilty beyond reasonable doubt of
murder and sentencing them to reclusion perpetua.
In an Information dated June 11, 1992, Assistant City Prosecutor Tirso M. Gavero charged with murder
Appellant Edwin De Vera, together with Roderick Garcia and two other persons who were subsequently
identified during the trial as Kenneth Florendo and Elmer Castro. The crime was allegedly committed as
follows:

That on or about the 8th day of June, 1992, in Quezon City, Philippines, the said accused,
conspiring [and] confederating [with] and helping xxx two (2) other persons, did then and there
wilfully, unlawfully and feloniously with intent to kill, with evident premeditation, treachery and
use of superior strength, attack, assault and employ personal violence upon the person of one
FREDERICK CAPULONG y DIZON, by then and there shooting him with the use of a .22 cal.
with trade mark Paspar Armas bearing SN-29069 with five (5) pieces of caliber 22 ammo inside,
hitting him between his eyes and striking him with the use of a baseball bat in the mouth, thereby
inflicting upon him serious and mortal wounds which were the direct and immediate cause of his
untimely death, to the damage and prejudice of the heirs of the said Frederick Capulong y Dizon. [2]
On July 9, 1992, Assistant City Prosecutor Enrico P. Bringas filed a Motion to Amend the Information to
include the use of a .32 caliber firearm in the killing of Frederick Capulong. The trial court granted the Motion,
and the Amended Information now reads as follows:

That on or about the 8th day of June, 1992, in Quezon City, Philippines, the said accused,
conspiring [and] confederating [with] and helping xxx two (2) other persons, did then and there
wilfully, unlawfully and feloniously with intent to kill, with evident premeditation, treachery and
use of superior strength, attack, assault and employ personal violence upon the person of one
FREDERICK CAPULONG y DIZON, by then and there shooting him with the use of a .22 cal.
with trade mark Paspar Armas bearing SN-29069 with five (5) pieces of caliber 22 ammo inside
and a .32 cal. firearm of still undetermined make, hitting him between his eyes and striking him
with the use of a baseball bat in the mouth, thereby inflicting upon him serious and mortal wounds
which were the direct and immediate cause of his untimely death, to the damage and prejudice of
the heirs of the said Frederick Capulong y Dizon. [3]
On their arraignment, Appellant Edwin De Vera [4] and Roderick Garcia[5] pleaded not guilty. The other two accused
were at large. Trial in due course proceeded only against De Vera and Garcia. Thereafter, the trial court rendered the assailed Decision,
the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered finding the accused EDWIN DE VERA y GARCIA
and RODERICK GARCIA y GALAMGAM guilty beyond reasonable doubt of the crime
of MURDER and they are hereby accordingly sentenced to suffer reclusion perpetua, including all
its accessory penalties; to indemnify the heirs of Frederick Capulong y Dizon, as follows:
a) P50,000.00, as death indemnity;
b) P211,670.00, as compensatory damages;

c) P600,000.00, as indemnification for loss of earning capacity;


d) P500,000.00, as moral damages;
e) Interest at the legal rate on a) and b), hereof from the filing of the information until full payment; and,
f) Costs of suit.[6]

Only Edwin De Vera filed a Notice of Appeal.[7]


The Facts

Version of the Prosecution

In its Brief,[8] the Office of the Solicitor General presented the following narration of facts:[9]

As earlier stated, the prosecution presented an eyewitness in the person of Bernardino Cacao, a
resident of Denver Loop Street, Filinvest II, Quezon City before he moved to No. 58 Elisa Street,
Caloocan City. He was residing at Filinvest II, together with his wife and children, at the time of
the incident on June 28, 1992 in the house owned by David Lim. He was then employed at a Kodak
branch in Caloocan City, while his wife served as secretary of the homeowners association.
About 1:30 in the afternoon of June 8, 1992, while bringing out the garbage, the witness saw a car
passing by, driven by victim Frederick Capulong together with four (4) other passengers. He knew
the victim by name who was a resident of the subdivision. He recognized and identified two of the
passengers as Kenneth Florendo and Roderick Garcia, both familiar in the subdivision.
Cacao did not at first notice anything unusual inside the car while it passed by him, but then he
heard unintelligible voices coming from the car as it was cruising around Denver Loop Street, a
circular road whose entrance and exit were through the same point (ibid, p. 12). His curiosity taking
[the] better part of him, Cacao walked to the opposite side of the road from where he saw the car
already parked. Moments later, he saw the victim dragged out of the car by Florendo and brought to
a grassy place. Florendo was holding a gun (ibid, p. 13). Upon reaching the grassy spot, Florendo
aimed and fired the gun at the victim, hitting him between the eyes. After the shooting, Florendo
and his companions fled in different directions.
When he submitted a sworn statement to the investigating prosecutor, Cacao attached a sketch of
the crime scene prepared by police officers, indicating therein his relative position at the time of the
incident. While testifying in court, Cacao identified Garcia and pointed to appellant as among the
companions of Florendo.
Ten minutes later, or about 2:40 in the afternoon, the desk officer of the Investigation Division,
Station 5, Central Police District, Quezon City received a report about the shooting incident from a
security guard of the subdivision. The officer immediately dispatched a team to Filinvest II,
composed of PO2 Armando Garcia, PO3 Armando Junio, and PO3 Jovencio Villacorte, to
investigate and gather evidence (TSN, p. 5, September 13, 1993). A security guard guided the team

to the corner of Denver and Doa Justina Streets, site of the shooting, where they discovered blood
stains and damaged grass (ibid, p. 6). The guard informed them that the victim was rushed to the
East Avenue Medical Center by other security guards. The policemen then found a color red sports
car with plate no. NBZ 869, with engine still running and its doors opened. They recovered inside
the car several class cards and a license belonging to one Ric Capulong, who was later identified as
Frederick Capulong.
The policemen went around the subdivision to look for possible suspects. They came upon a person
wearing muddied maong pants and white t-shirt standing and walking around near the clubhouse of
the subdivision. When asked his name, the person identified himself as Edwin de Vera, herein
appellant. Explaining the mud stains on his pants, appellant declared that he was a victim of a holdup. Suspicious [of] his conduct, the policemen brought appellant to Station 5 and turned him over
to the desk officer for investigation.
Another prosecution witness, SPO3 Mario Guspid, a police investigator since 1989, was assigned
to investigate the shooting of Frederick Capulong. He was assisted by SPO4 Pablito Selvido, SPO2
Armando Rivera, SPO3 Jovencio Villacorte, SPO3 Rolando Gacute, SPO3 Danilo Castro and other
police officers.
Upon receiving his assignment, SPO3 Guspid immediately went to the East Avenue Medical Center
where he saw the victim lying inside the intensive care unit receiving medical treatment. The victim
was unconscious. After conferring with the victims parents and relatives, SPO3 Guspid returned to
Station 5. On his arrival, the desk officer referred appellant to him for questioning. He was told that
appellant was picked up near the crime scene acting suspiciously. When appellant was asked about
his participation in the shooting, he was reluctant at first to talk, but later relented after SPO3
Guspid told him that his conscience would bother him less if he would tell the truth.
Without any hesitation, appellant admitted being [with the] group which perpetrated the crime, and
implicated Roderick Garcia. He was then persuaded to accompany a group of policemen to the
residence of Garcia, which turned out to be at Doa Justina Street, Filinvest II Subdivision. Finding
Garcia at home, SPO3 Guspid informed him that he was implicated by appellant [in] the crime. He
was then invited to the station to shed light [on] the incident. Garcia consented.
At Station 5, SPO3 Guspid interviewed appellant and Garcia. In the course of the interview, Garcia
revealed the place where he hid a .22 caliber gun, black t-shirt and black cap. According to Garcia,
Florendo asked them to wear black t-shirts. With the revelation, SPO3 Guspid, SPO2 Rivera, SPO3
Gacute and SPO3 Castro, together with the suspects, went back to the subdivision and proceeded to
a grassy portion near the boundary of Filinvest II and San Mateo, Rizal. The place was near a creek
and about 50 meters away from the residence of Garcia (TSN, pp. 9-14, September 30, 1993).
Truly, the policemen recovered a .22 caliber revolver, black t-shirt and black cap (TSN, pp. 12-13,
August 24, 1993). While there, SPO3 Guspid and SPO2 Rivera prepared a sketch of the crime
scene to reflect the explanations and answers given by appellant and Garcia in response to their
questions. As identifying marks, SPO3 Gacute placed his initials OG (acronym for his first name

and family name) between the handle and cylinder of the gun, and on the neck of the t-shirt, as well
as in the inner lining of the black cap.
From the crime site, the policemen and the suspects returned to Station 5 where SPO3 Guspid
asked them if they were willing to give their written statements, to which they assented.
Consequently, they were brought to the Integrated Bar of the Philippines, Quezon City Chapter, at
Malakas Street, Diliman, Quezon City. They were then introduced to Atty. Confesor Sansano, the
[c]hairman of the Free Legal Aid of the IBP. Also, present at that time were appellants relatives,
including his mother and sisters, and other lawyers of the IBP.
SPO3 Guspid inquired from them if they would agree to be assisted by Atty. Sansano, a competent
lawyer. They replied in the affirmative. Thereafter, the two conferred with Atty. Sansano.
Atty. Sansano, a rebuttal witness of the prosecution, testified that upon arrival of the suspects [i]n
his office, he requested the policemen, as a matter of policy, to step outside the building in order to
assure that no pressure would be exerted on the suspects even by their mere presence (TSN, p. 6,
November 6, 1996). After they left, Atty. Sansano interviewed the suspects for about twenty
minutes, informing them of their rights under the constitution and inquiring from them if they
indeed wanted to give voluntary statements. To the query, the suspects answered positively. They
also affirmed their earlier declaration that they were willing to be assisted by the IBP (ibid, pp. 8-9).
He further advised them of their right during the investigation to answer or not to answer the
questions which they thought would incriminate them, but they retorted that they fully understood
their right.
Satisfied that they were not coerced or threatened to give their statements, Atty. Sansano requested
the suspects to show their upper bodies to enable him to determine any telltale signs of torture or
bodily harm. Finding no such signs, he then summoned the policemen to re-enter the building. The
investigators readied two typewriters and each suspect was assigned to an investigator. He served
as the lawyer of the suspects, cautioning them against answering questions that they did not
understand, and to seek xxx a clarification, if needed.
According to Atty. Sansano, the interrogation took place in his office, a single separate room from
where his five staff members were visible. He sat between the two tables used by the investigators
for typing the questions and answers, involving himself from beginning to end of the investigation
until the signing of the statements. He never left the office to attend to anything else, consistent
with [the] standing policy of the IBP to properly safeguard the rights of suspects during
investigation.
He recalled that the investigators first typed the headings of the statements, then informed the
suspects before starting the investigation about their rights under the constitution, specifically, the
right of the suspects to have a lawyer of their own choice; if not, the police would provide them
with one who would assist them; that they could answer or refuse to answer the questions. The
investigators also asked him if he was willing to serve as counsel of the suspects. They also asked

the suspects if they were willing to accept him as their counsel. They agreed expressly by saying:
Oho.
SPO3 Guspid investigated Garcia while SPO4 Selvido investigated appellant. They conducted the
question and answer investigation in Pilipino. The statement of appellant was marked as Exhibit O
and that of Garcia was marked as Exhibit N. The statements were signed by the suspects and Atty.
Sansano.
For his part, SPO4 Selvido declared that SPO3 Guspid requested his help in taking the statements
of the suspects (TSN, p. 4, June 29, 1993). He took the statement of appellant in the presence of
Atty. Sansano. Before proceeding, he reminded appellant of the constitutional warnings, consisting
of four (4) questions under the heading Paunawa, to which the latter gave positive answers. The
statement was signed by appellant and Atty. Sansano. After taking down the statement, he turned
over appellant to SPO3 Guspid.
Following the investigation, the policemen brought the suspects to the Philippine National Police
Crime Laboratory for paraffin testing. The result: both hands of Edwin de Vera y Garcia @
Boy/Bong gave positive results [in] the test for gunpowder nitrates while both hands of Roderick
Garcia y Galamgam @ Deo gave negative result [in] the test for gunpowder nitrates.
After coming from the crime laboratory, SPO3 Guspid contacted the mother of the victim to get her
own statement. Next, he obtained a death certificate and prepared a referral to the Quezon City
Prosecution Office which was signed by Senior Inspector Ernesto Collado, Chief of the Station
Investigation Division. During the inquest, the prosecutor asked the suspects some clarificatory
questions.
Surveillance and follow-up operations were conducted against Florendo and his other companion,
Elmer Castro. However, the two were never arrested and brought to trial.
Version of the Defense

Appellant claims that he had no part in the killing, and that it was Kenneth Florendo who had shot the
victim. He avers that he merely accompanied to Filinvest the other accused and Florendo, who was his friend,
upon the latters request. A few hours after the shooting incident, appellant was picked up by the police, who
subsequently tortured and coerced him into signing his Statement regarding the incident. The trial court
summarized appellants evidence in this wise:[10]

Edwin de Vera admitted that, as of June 8, 1992, he and Kenneth Florendo were already close
friends for about a year, sometimes sleeping in the latters house at No 106 Kamias Road, Quezon
City. His own residence at the time was at No. 7 Bignay Street, Project 2, Quezon City. That was
also the address of Elmer Castro, his and Kenneths friend.
Edwin had slept in Kenneths house on Kamias Road from June 6 to June 8, 1992 and went home at
7:00 am of June 8 . Later at around 10:30 am, Kenneth passed by Edwins house to invite him back
to [the formers] house that morning and to bring Elmer along. Kenneth mentioned that he, his
th

girlfriend, and Deo, who were then with him, would be going somewhere first. Deo, or Roderick
Garcia, was another friend of Kenneths.
Edwin and Elmer later went to and arrived at Kenneths house at 11:00 am. Kenneth, his girlfriend,
and Deo were already taking lunch, and invited the two to lunch. After lunch, Kenneth asked Edwin
to go with him to Filinvest without telling why. It was Deo who mentioned to Edwin that Kenneth
was going to see a friend. Edwin was not aware if Kenneth had also asked the others to go with him
to Filinvest, but the four of them Kenneth, Edwin, Elmer, and Deo later proceeded to Filinvest [i]n
Kenneths car. Edwin sat at the back seat. The time was past 12:00 noon.
Kenneth drove his car. Upon reaching Filinvest, Kenneth stopped at a house and the four of them
alighted in front of the house. Edwin did not know whose house it was. Kenneth and Elmer told
Edwin and Deo to wait near the car because they were going to see a friend. At that point in time,
Edwin knew the person[,] whom Kenneth and Elmer went to see[,] by name, never having met him
personally before then. From his conversation with Deo, Edwin found out that the house was where
Deo stayed.
Then, Edwin heard the voices of Kenneth and his friend and they appeared to be arguing (x x x x
parang nagtatalo sila). The voices came from some twenty-two (22) meters away. Not before long,
Edwin also heard a gunshot which came from where Kenneth and Elmer had gone to. He was
shocked because he was not used to hearing gunfire. Frightened, he panicked and ran away from
the place. His singular thought while running was to get out of Filinvest. Deo also ran away.
Edwin denied that either he or Deo carried any firearm on that occasion.
Edwin was arrested by the police at past 2:00 pm when he was already outside of Filinvest
subdivision in front of Batasan. He was brought to Station 5 where four (4) persons in civilian attire
tortured him by forcing him to lie down on a bench, tying his feet together and binding his hands
from his back with handcuffs, and then covering his face with a piece of dirty cloth into which
water was poured little by little into his face and mouth, while one of them sat on his thighs. This
maltreatment lasted for about 20 or 25 minutes, because they wanted him to admit something and
to name my companions but he refused to admit or to name anyone. They next took him outside to
a mango tree where they repeated his ordeal for 30 minutes. At one point during the torture, a
policeman untied his feet and hands and poked a gun to his temple, telling him to run as it was his
chance to escape, but he did not escape because he could see that they were merely frightening him.
None of the policemen told him that he could xxx get a lawyer[;] instead, one of them, whose name
he [did] not know, told him that I should listen only to them and not to anyone else. He claimed that
he saw one [of] his tormentors in court, and he identified him as police officer Rivera. Guspid did
not participate in his torture, because he merely took down his statement. His tormentors were not
drunk or under the influence of drugs, but Guspid seemed to be under the influence of drugs when
he took his statement because of his troubled appearance.

Edwin was not advised to inform or call any of his relatives. Before his torture, his request to
contact his relatives or lawyer was turned down. His intimidation continued (x x x x puro
pananakot and ginawa nila sa akin). After his torture at the mango tree, he was returned inside and
thrown into a cell, where he remained until the following day (June 9 ). During the night, an inmate
named Cesar boxed him once in the upper body upon instruction of a policeman. He was not given
any dinner.
th

At around noontime of the next day (June 9 ), Edwin was taken out of the cell and brought to the
IBP office by police officers Guspid and Selvido. Also with them were Deo Garcia and two other
police officers. At the IBP office, the officers talked with one of the lawyers there, whom Edwin
came to know to be Atty. Sansano only after the lawyer was introduced (present) to him and Deo.
That was the first he met and saw Atty. Sansano.
th

Atty. Sansano informed both Edwin and Deo that they had the choice whether to talk or not. Edwin
could not make any comment because wala po ako sa sarili ko. Then, Atty. Sansano warned Edwin
substantially that: Alam nyo ba na ang salaysay na ito ay maaring hindi ninyo sumpaan, referring to
the statement taken from Edwin by officers Guspid at around past 8 pm until 9 pm on the day
before (June 8, 1992) at the police station. He was not assisted by counsel, and had no relatives
present. Guspid appeared to be like drunk or tipsy, when he took down Edwins statement that night.
At the IBP office, Edwins and Deos statement were taken separately by Guspid and Selvido,
respectively. At the time, Edwin and Deo were about six (6) meters from each other, but he could
hear what was being asked of Deo. Guspid asked the questions and typed both the questions and his
answers, which were given in Tagalog. All the while, Atty. Sansano was inside his office, which
was about seven (7) meters away from where he and Guspid were situated. The office of Atty.
Sansano was separated by a divider, so that he could not see what Atty. Sansano was doing at the
time. After the questioning, he signed a paper which he was not able to read. He did not see Atty.
Sansano sign the paper.
xxxxxxxxx

On July 14, 1992, Edwin executed a so-called salaysay ng pagbabawi ng sinumpaang salaysay,
which he swore to before Prosecutor Tobia of Quezon City, for the purpose of recanting his
statements given at the precinct in the evening of June 8, 1992 and at the IBP office on June 9, 1992
on the ground that they were given under coercion, intimidation, and in violation of his
constitutional rights.
Ruling of the Trial Court

Based on the testimony of Eyewitness Bernardino Cacao, the trial court ruled that it was indeed Kenneth
Florendo who had actually shot the victim, Roderick Capulong. It convicted appellant as a principal, however,
because the scientific and forensic findings on the criminal incident directly and substantially confirmed the
existence of conspiracy among the four [accused], namely, Kenneth Florendo, Elmer Castro, Edwin de Vera,
and Roderick Garcia.[11]

The Issues

Appellant submits for the consideration of this Court the following alleged errors:
I

THE TRIAL JUDGE ERRED IN NOT FINDING THAT PROSECUTION EYE-WITNESS


BERNARDO CACAO HAD TESTIFIED TO NO CRIMINAL ACT OF APPELLANT;
II

THE TRIAL JUDGE ERRED IN FINDING AND CONCLUDING THAT THERE WAS A
CONSPIRACY TO KILL THE VICTIM AND THAT APPELLANT WAS A CO- CONSPIRATOR;
III

THE TRIAL JUDGE ERRED IN ADMITTING EXHIBIT O, ALLEGED STATEMENT OF


APPELLANT; AND IN NOT DECLARING THE SAME AS AN INADMISSIBLE EVIDENCE
CONSIDERING THE BARBARIC MANNER UNDER WHICH IT WAS
EXTRACTED/OBTAINED FROM THE APPELLANT WHICH VIOLATED THE LATTERS
CONSTITUTIONAL RIGHTS;
IV

THE TRIAL COURT ERRED IN NOT FINDING AND DECLARING THAT THE
PROSECUTION HAS NOT PROVED THE APPELLANTS GUILT BEYOND REASONABLE
DOUBT AND IN NOT ACQUITTING THE APPELLANT.[12]
In the main, the Court will resolve three questions: (1) the sufficiency of the prosecution evidence, (2) the
admissibility of appellants extrajudicial statement, and (3) the nature of his liability.
The Courts Ruling

The appeal is partly meritorious. Appellant should be convicted only as an accomplice, not as a principal.
First and Third Issues:

Sufficiency of Prosecution Evidence and Appellants Liability

Because the first and the third questions mentioned above are interrelated, they shall be discussed jointly.
Eyewitness Account

In ruling that there was conspiracy between Florendo, Castro, Garcia and Appellant De Vera, the trial court
relied mainly on the testimony of Eyewitness Cacao. Specifically, it based its conclusions on the following
facts: appellant was seen with the other accused inside the victims car; the victim was clearly struck with a blunt
object while inside the car, and it was unlikely for Florendo to have done it all by himself; moreover, it was
impossible for De Vera and Garcia to have been unaware of Florendos dark design on Roderick.

We disagree. It is axiomatic that the prosecution must establish conspiracy beyond reasonable doubt.[13] In the
present case, the bare testimony of Cacao fails to do so.

Cacao testified that he saw Appellant De Vera in the car, where an altercation later occurred. Thereafter, he
saw Florendo drag out of the vehicle an apparently disabled Capulong and shoot the victim in the head moments
later.
Cacaos testimony contains nothing that could inculpate appellant. Aside from the fact that he was inside the
car, no other act was imputed to him. Mere presence does not amount to conspiracy. [14] Indeed, the trial court based its
finding of conspiracy on mere presumptions, and not on solid facts indubitably indicating a common design to commit murder. Such
suppositions do not constitute proof beyond reasonable doubt. As the Court has repeatedly stated, criminal conspiracy must be
founded on facts, not on mere surmises or conjectures. Clearly, Cacaos testimony does not establish appellants culpability.
Appellants Extrajudicial Statement

Aside from the testimony of Cacao, the prosecution also presented Appellant De Veras extrajudicial
statement, which established three points.
First, appellant knew of Kenneth Florendos malevolent intention.
T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag kang maging kasapakat
nito?
S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan na lamang at napilitan
akong sumama.[15]

Second, appellants companions were armed that day, a fact which revealed the unmistakable plan of the
group.
T: Ikaw ba ay mayroong dalang armas noong hapon na iyo[n]?
S: Wala po akong dalang armas. Pero itong si Kenneth ay mayroong dalang dalawang baril[,] sina Deo at Elmer ay
wala. Pero noong naroroon na kami sa lugar ay ibinigay ni Kenneth ang isang baril niya kay Deo at itong si Elmer
ay mayroong nang dalang baseball bat.

Third, he cooperated with the other accused in the commission of the crime by placing himself at a certain
distance from Kenneth and the victim in order to act as a lookout. This is clear from the following portion of his
statement:
S: Kabarkada ko po si Kenneth at dalawang araw po akong nakitulog sa kanila at noong araw ng June 08, 1992 ay
sinabihan ako ni Kenneth Gumabao na huwag raw akong uuwi, dahil [mayroon] daw po kaming lakad. Pagkaraan
ng ilang oras ay dumating naman itong si Roderick Garcia @ Deo at may sinabi sa kanya itong si Kenneth at
sinabi naman ito sa akin ni Deo na kaysa raw maunahan siya ni Frederick Sumulong [sic] ay uunahan na raw po
niya ito. Umalis po itong si Kenneth na kasama ang kanyang nobya at itong si Deo, para ihatid ang kanyang [sic]
sa hospital at bago sila umalis ay sinabihan ako ni Kenneth na sunduin ko raw itong si Elmer Castro at magbhihai
[magbihis] na rin daw ako at pagdating nila ay xxx lalakad na raw po kami. Mga ilang oras pa ay sinundo ko na
itong si Elmer Castro at pagdating namin sa bahay nila Kenneth ay naroroon na itong si Kenneth at Deo. Matapos
magpalit ng damit itong si Kenneth ay sumakay na kami sa kanilang kotse at nagtuloy sa kanilang katabing bahay
at doon ay kumain kami. Pagkatapos noon ay umalis na kami at nagtuloy sa F[i]l-Invest. P[a]gdating namin sa
isang lugar doon sa medyo malayo-layo sa bahay nila Deo ay bumaba na itong si Deo at Elmer at sila ay nagpunta
doon sa lugar ng pinagbarilan para kunin ang bayad sa utang ni Fred[er]ick Capulong sa tiyuhin ni

Deo. P[a]gkaraan ng ilang minuto ay sumunod po kami ni Kenn[e]th sa lugar at ako ay naiwan nang medyo
malayo-layo sa lugar upang tignan kung mayroong darating na tao. Samantalang si Kenneth ay lumapit kina Deo
at Frederick at kasunod noon ay nagkaroon ng sagutan itong si Kenneth at Frederick at nakita kong inaawat ni
Deo itong si Kenneth. Hindi nakapagpigil itong si Kenneth at nasipa niya s[i] Frederick at kasunod noon ay
binunot niya ang kanyang baril na kalibre .38 at pinaputukan niya ng isang beses itong si Frederick na noong
tamaan ay natumba sa lupa. Lumapit si Elmer kina Kenneth habang binabatak ni Kenneth itong si Frederick at
kasunod po noon ay lumapit sa akin si Deo at sinabihan ako na tumakbo na kami. Tumakbo na po kami, pero ako
po ay nahuli ng mga security guard ng Subdivision at itong si Deo ay nahuli naman sa kanilang bahay. Itong sina
Kenneth at Elmer ay hindi pa nahuhuli.[16]
Appellant an Accomplice, Not a Conspirator

In other words, appellants presence was not innocuous. Knowing that Florendo intended to kill the victim
and that the three co-accused were carrying weapons, he had acted as a lookout to watch for passersby. He was
not an innocent spectator; he was at the locus criminis in order to aid and abet the commission of the crime.
These facts, however, did not make him a conspirator; at most, he was only an accomplice.
The Revised Penal Code provides that a conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. [17] To prove conspiracy, the prosecution must
establish the following three requisites: (1) that two or more persons came to an agreement, (2) that the
agreement concerned the commission of a crime, and (3) that the execution of the felony [was] decided upon.
[18]
Except in the case of the mastermind of a crime, it must also be shown that the accused performed an overt
act in furtherance of the conspiracy.[19] The Court has held that in most instances, direct proof of a previous
agreement need not be established, for conspiracy may be deduced from the acts of the accused pointing to a
joint purpose, concerted action and community of interest.[20]
On the other hand, the Revised Penal Code defines accomplices as those persons who, not being included
in Article 17,[21] cooperate in the execution of the offense by previous or simultaneous acts. [22]The Court has held
that an accomplice is one who knows the criminal design of the principal and cooperates knowingly or
intentionally therewith by an act which, even if not rendered, the crime would be committed just the same. [23] To
hold a person liable as an accomplice, two elements must be present: (1) the community of criminal design; that
is, knowing the criminal design of the principal by direct participation, he concurs with the latter in his purpose;
and (2) the performance of previous or simultaneous acts that are not indispensable to the commission of the
crime.[24]
The distinction between the two concepts needs to be underscored, in view of its effect on appellants
penalty. Once conspiracy is proven, the liability is collective and not individual. The act of one of them is
deemed the act of all.[25] In the case of an accomplice, the liability is one degree lower than that of a principal.
Conspirators and accomplices have one thing in common: they know and agree with the criminal design.
Conspirators, however, know the criminal intention because they themselves have decided upon such course of
action. Accomplices come to know about it after the principals have reached the decision, and only then do they
agree to cooperate in its execution. Conspirators decide that a crime should be committed; accomplices merely
concur in it. Accomplices do not decide whether the crime should be committed; they merely assent to the plan
and cooperate in its accomplishment. Conspirators are the authors of a crime; accomplices are merely their
instruments who perform acts not essential to the perpetration of the offense.
Thus, in People v. Castro,[26] the Court convicted Rufino Cinco, together with two others, as a principal,
although he had acted merely as a lookout. The Court held that their concerted action in going armed and

together to their victims house, and there, while one stayed as a lookout, the other two entered and shot the
mayor and his wife, leaving again together afterwards, admits no other rational explanation but conspiracy. It
may be noted further that Cinco executed a Sworn Statement that the three of them, together with some others,
had planned to kill the victim on the promise of a P5,000 reward.
In People v. Tawat et al.,[27] the lookout, Nestor Rojo, was convicted as a principal for conspiring with two
others. The Court ruled that the conspiracy was shown by their conduct before, during and after the commission
of the crime. The Court also noted that, upon their arrest, they disclosed that they had intended to rob the
victims store and that they did so in accordance with their plan. In that case, it was clear that all three of them,
including the lookout, were the authors of the crime.
In People v. Loreno,[28] the Supreme Court convicted all the accused as principals because they had acted in
band. In acting as a lookout, Jimmy Marantal was armed at the time like the other conspirators, and he gave his
companions effective means and encouragement to commit the crime of robbery and rape.
Upon the other hand, in People v. Corbes,[29] the Court noted that Manuel Vergel knew of the criminal
design to commit a robbery, and that he cooperated with the robbers by driving the vehicle to and from the
crime scene. In convicting him as an accomplice and not as a conspirator, the Court observed that he was
merely approached by one of the robbers who was tasked to look for a getaway vehicle. He was not with the
robbers when they resolved to commit a robbery. When his services were requested, the decision to commit the
crime had already been made.
In People v. Tatlonghari,[30] the Court was asked to resolve the responsibility of some appellants who
knowingly aid[ed] the actual killers by casting stones at the victim, and distracting his attention. The Court ruled
that they were accomplices and not co-conspirators, [i]n the absence of clear proof that the killing was in fact
envisaged by them.
In People v. Suarez et al.,[31] Wilfredo Lara merely introduced the gang of Reyes to Suarez who intended to
perpetrate the crime with the help of the said group. In ruling that he was merely an accomplice, the Court noted
that there was no evidence showing that he took part in the planning or execution of the crime, or any proof
indicating that he profited from the fruits of the crime, or of acts indicative of confederacy on his part.
In People v. Balili,[32] the Court convicted appellant as an accomplice, holding that in going with them,
knowing their criminal intention, and in staying outside of the house with them while the others went inside the
store to rob and kill, [he] effectively supplied the criminals with material and moral aid, making him guilty as an
accompliance. The Court noted that there was no evidence that he had conspired with the malefactors, nor that
he actually participated in the commission of the crime.
In People v. Doble,[33] the Court held that Cresencio Doble did not become a conspirator when he looked for
a banca that was eventually used by the robbers. Ruled the Court: Neither would it appear that Joe Intsik wanted
to draft Crescencio into his band of malefactors that would commit the robbery more than just asking his help to
look for a banca. Joe Intsik had enough men, all with arms and weapons to perpetrate the crime, the commission
of which needed planning and men to execute the plan with full mutual confidence of each other, which [was]
not shown with respect to appellants by the way they were asked to look and provide for a banca just a few
hours before the actual robbery.
In the present case, Appellant De Vera knew that Kenneth Florendo had intended to kill Capulong at the
time, and he cooperated with the latter. But he himself did not participate in the decision to kill Capulong; that

decision was made by Florendo and the others. He joined them that afternoon after the decision to kill had
already been agreed upon; he was there because nagkahiyaan na. This is clear from his statement, which we
quote again for the sake of clarity:
T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag kang maging kasapakat
nito?
S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan na lamang at napilitan
akong sumama.[34]

Significantly, the plan to kill could have been accomplished without him. It should be noted further that he
alone was unarmed that afternoon. Florendo and Garcia had guns, and Castro had a baseball bat.
In any event, the prosecution evidence has not established that appellant was part of the conspiracy to kill
the victim. His participation, as culled from his own Statement, was made, after the decision to kill was already
a fait accompli. Thus, in several cases, the Court has held:

[L]ack of complete evidence of conspiracy, that creates the doubt whether they had acted as
principals or accomplices in the perpetration of the offense, impels this Court to resolve in their
favor the question, by holding x x x that they were guilty of the milder form of responsibility, i.e.,
guilty as mere accomplices.[35]
Second Issue:

Admissibility of Extrajudicial Statement

Extrajudicial confessions must conform to constitutional requirements. Section 12, Article III of the
Constitution, provides:

(1) Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably of
his own choice. If the person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of counsel.
xxxxxxxxx

(3) Any confession or admission obtained in violation of this or section 17 hereof shall be
inadmissible in evidence against him.
If the confession meets these requirements, it is subsequently tested for voluntariness, i.e., if it was given
freely -- without coercion, intimidation, inducement, or false promises; and credibility, i.e., if it was consistent
with the normal experience of mankind. [36]
Appellant claims that his extrajudicial statement was inadmissible, because it was not made in the presence
of counsel. Although Atty. Confesor Sansano of the Quezon City IBP Legal Aid Committee purportedly assisted
him and his co-accused in the execution of their extrajudicial Statements, appellant asserts that the lawyer was
in his office, not with them, at the time. Appellant adds that he was tortured.

Appellants claims must be rejected. Atty. Sansano testified that he did not leave them at any time.
Q: You were involved in the interrogation from the very start?
A: Yes, from the beginning to the end of the interview until the boys signed their statements.
Q: Did you recall having at any time left your office to attend to some official matters?
A: I never left the office to attend to anything.
Q: Is that the usual manner by which you assist persons referred to you by the police insofar as custodial investigation
is concerned?
A: It is our policy that when we assist [in] that capacity, we [want] to see to it that the rights of the accused or suspects
are properly [protected] during the course of the entire interrogation. [37]

In fact, Atty. Sansano even checked to see if there were torture marks on Appellant De Vera, and Garcia and
interviewed the two to make sure that they understood what they were doing.
Q: What was your purpose in asking the police officers to leave the room?
A: My purpose in asking the police officers to step out of the building was to assure myself that no pressure could be
exerted on the two boys by the presence of the police officers during my personal interview. Before we allow any
police officers to take the statements of people brought before us[,] we see to it [that] we interview the persons
personally out of hearing and sight of any police officer.
Q: After the police officers left the room, completely left the room[,] you were able to interview the two accused
namely Mr. de Vera and Mr. Garcia?
A: Yes, I spent about 15 to 20 minutes interviewing the boys.
Q: What was the nature of your initial interview with these two accused?
A: I asked the boys Roderick and Edwin if it [was] true that they [were] going to give their own statements to the
police?
Q: And what did they say?
A: They said yes, sir.
Q: What was your reaction to that?
A: Routinely[,] I informed them about their rights under the constitution.

xxxxxxxxx
Q: Having obtained their answers, what next transpired?
A: After telling them the statements they may give to the police could be used against them for a [sic] in any court of
the Phil., I was satisfied that nobody coerced them, that they were never threatened by anybody much less by the
police officers to give these statements. Casually I asked the two boys to raise their upper clothes.

xxxxxxxxx
Q: What was your purpose in requiring these persons to show you or remove their upper clothing?
A: I wanted to assure myself that there were no telltale signs of torture or bodily harm committed on the[m] prior to
their [being brought] to the office. In spite of their [personal] assurances xxx, verbal assurance that they were
never hurt.[38]

The right to counsel is enshrined in the Constitution in order to address, among others, the use of duress
and undue influence in the execution of extrajudicial confessions. [39] In the present case, the Court is satisfied
that Atty. Sansano sufficiently fulfilled the objective of this constitutional mandate. Moreover, appellants
allegations of torture must be disregarded for being unsubstantiated. To hold otherwise is to facilitate the
retraction of solemnly made statements at the mere allegation of torture, without any proof whatsoever.
When an extrajudicial statement satisfies the requirements of the Constitution, it constitutes evidence of a
high order, because of the strong presumption that no person of normal mind would deliberately and knowingly
confess to a crime unless prompted by truth and conscience. [40] The defense has the burden of proving that it was
extracted by means of force, duress or promise of reward. [41] Appellant failed to overcome the overwhelming
prosecution evidence to the contrary.
Section 3, Rule 133 of the Rules of Court, provides that [a]n extrajudicial confession made by an accused
shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. In the present
case, the prosecution presented other evidence to prove the two elements of corpus delicti: (a) a certain result
has been proven for example, a man has died; and (b) some person is criminally responsible. [42] It is indubitable
that a crime has been committed, and that the other pieces of prosecution evidence clearly show that appellant
had conspired with the other accused to commit the crime. He himself does not deny that he was at the crime
scene. In fact, he was seen by the prosecution eyewitness in the company of the gunman. Furthermore, Atty.
Sansano and the police officers testified to the voluntariness of his confession. It must be stressed that the
aforementioned rule merely requires that there should be some other evidence tending to show the commission
of the crime apart from the confession. [43]
Criminal and Civil Liability

In ruling that the crime committed was murder, the trial court found that the killing was attended by
treachery, evident premeditation and abuse of superior strength. One of these was enough to qualify the crime as
murder; the two others constituted generic aggravating circumstances. The lower court explained that the
evidence established evident premeditation, for Florendos group acted with deliberate forethought and tenacious
persistence in the accomplishment of the criminal design. Treachery was also proven, because the attack was
planned and performed in such a way as to guarantee the execution of the criminal design without risk to the
group. There was also abuse of superior strength, because the attackers took advantage of their superiority in
numbers and weapons.
We disagree with the court a quo in appreciating two generic aggravating circumstances, because treachery
absorbs abuse of superior strength.[44] Hence, there is only one generic aggravating circumstance, not two.
Notwithstanding the presence of a generic aggravating circumstance, we cannot impose the death penalty,
because the crime was committed before the effectivity of the Death Penalty Law.

In the present case, the penalty of appellant as an accomplice is one degree lower than that of a principal,
which in murder cases is reclusion temporal in its maximum period to death. He is also entitled to the benefits
of the Indeterminate Sentence Law.
We sustain the trial courts grant of P50,000 as indemnity ex delicto, which may be awarded without need of
proof other than the commission of the crime. The award of P211,670 as compensatory damages was duly
supported by evidence. Based on the evidence presented, moral damages is also warranted, but only in the
amount of P50,000, not P500,000 as fixed by the trial court. Furthermore, we affirm the payment of interest.
[45]
However, the grant of P600,000 for loss of earning capacity lacks factual basis. Such indemnification
partakes of the nature of actual damages, which must be duly proven. [46] In this case, the trial court merely
presumed the amount of Capulongs earnings. Since the prosecution did not present evidence of the current
income of the deceased, the indemnity for lost earnings must be rejected.
WHEREFORE, the appeal is hereby partially GRANTED. Appellant De Vera is CONVICTED as an
accomplice, not as a principal, in the crime of murder. He is sentenced to an indeterminate prison term of 8
years and 1 day of prision mayor as minimum, to 14 years 8 months and 1 day of reclusion temporal as
maximum. We AFFIRM the awards of: (a) P50,000 indemnity ex delicto, (b) P211,670 as compensatory
damages and (c) interest of six percent per annum on these two amounts. The award of moral damages is
however REDUCED to P50,000 and the award for the loss of earning capacity isDELETED. No pronouncement
as to costs.
SO ORDERED.
Melo, (Chairman), Purisima, and Gonzaga-Reyes, JJ., concur.
Vitug, J., Please see separate opinion.
SEPARATE OPINION

VITUG, J.:

I share the ponencia of my colleagues in its affirmance of the conviction of appellants except, with all due
respect, insofar as it has concluded that appellant De Vera is guilty merely as an accomplice.
There is conspiracy under Article 8 of the Revised penal Code when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it. Conspiracy of, course, by itself is
legally inconsequential unless the criminal plot is, in fact, carried out. Once the offense is perpetrated, the
responsibility of the conspirators is collective, not individual, that render, all of them equally liable regardless of
the extent of their respective participations, the act of one being deemed to be the act of the other or the others,
in the commission of the felony. An accomplice, under Article 18 of the same Code, is one who, not being a
principal who (a) takes a direct part in the execution of the act, (b) directly forces or induces others to commit,
(c) cooperates in the commission of the offense by another act without which the offense would not have been
accomplished (per Article 17 of the Code), collaborates in the execution of the offense by previous or
simultaneous acts.
In the case at bar, De Vera, knowing that Florendo intended to kill the victim and that the three co-accused
were carrying weapons, he had acted as a lookout to watch for passersby. He was not an innocent spectator; he
was at the locus criminis in order to aid and abet the commission of the crime (ponencia).

I cannot bring myself to accept any material variance between the terms to decide, on the one hand, and to
concur or to assent, on the other hand, in defining, i.e., whether as a conspirator or as an accomplice, the
specific criminal liability of the criminal offender. Where there is concurrence or assent by one to a plan, even
when previously hatched by another or others, to commit a felony which concurrence or assent is made prior to
the actual perpetration of the offense, and he then actually participates in its commission, regardless of the
extent of such participation, his liability should be deemed, in my view, that of a conspirator rather than that of
an accomplice. I would equate the liability of an accomplice to one who, knowing of the criminal design, but
neither concurring nor assenting to it, cooperates in the execution of the crime short of taking a direct part in,
and short of taking an indispensable act for, the commission of the offense. In the last two instances (taking a
direct part in, or taking an indispensable act for, the commission of the felony), his participation would be that
of a principal under Article 17 of the Revised Penal Code.
When appellant De Vera, aware of the plan to kill the victim, agreed to be lookout during the commission
of the crime which, in fact, so took place as planned, he rendered himself liable no less than that incurred by his
co-accused.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 209195

September 17, 2014

MANUEL J. JIMENEZ, JR., Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x-----------------------x
G.R. No. 209215
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
MANUEL J. JIMENEZ, JR., Respondent.
DECISION
BRION, J.:
Before the Court are two consolidated petitions for review on certiorari filed under Rule 45 of the Rules of Court,
assailing the amended decision of the Court of Appeals (CA) in CA-G.R. SP No. 121167 entitled Manuel J.
Jimenez, Jr. v. Hon. Zaldy B. Docena et al.
1

The CA did not find any grave abuse of discretion on the part of the Regional Trial Court (RTC Branch 170,
Malabon) Judge Zaldy B. Docena (Judge Docena)in issuing the order which granted the People of the Philippines
motion to discharge Manuel A. Montero (Montero)as a state witness in Criminal Case No. 39225-MN.
The G.R. No. 209195petition was filed by Manuel J. Jimenez, Jr. (Jimenez). He prays in this petition for the reversal
of the CAs amended decision insofar as it ruled that Judge Docena did not gravely abuse his discretion in issuing
the assailed order.

The People likewise filed its petition, docketed as G.R. No. 209215. This petition seeks to reverse the amended
decision of the CA insofar as it ordered the re-raffle of the criminal case to another RTC judge for trial on the merits.
The Factual Antecedents
On May 18, 2009 and June 11, 2009, Montero (a former employee of the BSJ Company owned by the Jimenezes)
executed sworn statements confessing his participation in the killing ofRuby Rose Barrameda (Ruby Rose),and
naming petitioner Jimenez, Lope Jimenez (Lope, the petitioner Jimenezs younger brother),Lennard A. Descalso
(Lennard) alias "Spyke," Robert Ponce (Robert) alias "Obet," and Eric Fernandez (Eric), as his coconspirators.
2

The statements of Montero which provided the details on where the alleged steel casing containing the body of
Ruby Rose was dumped, led to the recovery of a cadaver, encased ina drum and steel casing, near or practically at
the place that Montero pointed to.
3

On August 20, 2009, the People, through the state prosecutors, filed an Information before the RTC, charging
Jimenez, Lope, Lennard, Robert, Eric and Montero of murder for the killing of Ruby Rose.
4

Montero thereafter filed a motion for his discharge entitled "Motion for the Discharge of the Witness as Accused
Pursuant to the Witness Protection Program" pursuant to Republic Act No. 6981. The People also filed a motion to
discharge Montero as a state witness for the prosecution. Jimenez opposed both motions.
5

The RTCs ruling


On March 19, 2010, the RTCs Acting Presiding Judge Hector B. Almeyda (Judge Almeyda)denied the motion to
discharge Montero as a state witness.
6

Judge Almeyda ruled that the prosecution failed to comply with the requirements of Section 17, Rule 119 of the
Revised Rules of Criminal Procedure for the discharge of an accused as a state witness; it failed to clearly show that
Montero was not the most guilty or, at best, the least guilty among the accused. The judge further ruled that
Monteros statements were not corroborated by the other evidence on record. The prosecution, too, failed to present
evidence to sustain the possibility of conviction against Jimenez.
7

Montero and the People filed separate motions for reconsideration.


The July 30, 2010 order
On July 30, 2010, Judge Docena, the newly-appointed regular judge, reconsidered and reversed Judge Almeydas
order and ruled that the prosecution had presented clear, satisfactory and convincing evidence showing compliance
with the requisites of Section 17, Rule 119 of the Revised Rules of Criminal Procedure.
According to Judge Docena, the crime would have remained undiscovered and unsolved had it not been for
Monteros extrajudicial confession that narrated in detail the manner of the abductionand subsequent murderof Ruby
Rose. As the crime was committed in secret, only one of the co-conspirators, such asMontero, could give direct
evidence identifying the other coconspirators.
Judge Docena further ruled that Montero is qualified tobe discharged as a state witness as he does not appear to be
the most guilty although he is a principal by direct participation. The principals by inducement are more guilty
because, without their orders, the crime would not have been committed. Finally, Montero has not been convicted of
any crime involving moral turpitude. Jimenez moved for the reconsideration of Judge Docenas ruling.
8

The December 29, 2010 order

During the pendency of the motion for reconsideration, Jimenez filed a motion for inhibition, praying that Judge
Docena inhibit himself from hearing the case on the ground of bias and prejudice. Judge Docena denied the motion
in his order of December 29, 2010.
9

The June 29, 2011 order


On June 29, 2011, Judge Docena issued an omnibus order: 1) denying the petitioners motion for reconsideration of
the July 30, 2010 order; 2) denying the petitioners motion for reconsideration of the December 29, 2010 order; and
3) granting Manuel Jimenez IIIs alternative motion to suspend the proceedings, as his inclusion in the Information
was still pending final determination by the Office of the President.
Jimenez responded to these adverse rulings by filing with the CA a petition for certiorariunder Rule 65 of the Rules
of Court. The petition sought the annulment of Judge Docenas orders dated July 30, 2010, December 29, 2010,
and June 29, 2011. The petition also prayed for the issuance of a temporary restraining order and a writ of
preliminary injunction that the CA both granted in its resolutions of December 8, 2011 and February 6, 2012,
respectively.
10

The CAs Decision


On May 22, 2012, the CAs then Tenth Division, through the ponencia of Associate Justice Agnes Reyes-Carpio
(concurred in by Associate Justice Jose C. Reyes, Jr. and Associate Justice Priscilla J. Baltazar-Padilla) rendered a
decision granting Jimenez petition.
11

However, on motion for reconsideration filed by the People, the CA reversedits earlier ruling and issued anAmended
Decision penned by Associate Justice Jose Reyes.
The CAs Amended Decision
The CA held that Judge Docena did not gravely abuse his discretion in ordering Monteros discharge to become a
state witness because the prosecution had complied with the requirements of Section 17, Rule 119 of the Revised
Rules of Criminal Procedure.
12

First, Judge Docena acted in accordance with settled jurisprudence when he ruled that there was absolute necessity
for the testimony of Montero as no other direct evidence other than his testimony was available. Additionally, since
the determination of the requirements under Section 17, Rule 119 of the Revised Rules of Criminal Procedure is
highly factual in nature, Judge Docena did not commit grave abuse of discretion in largely relying on the
recommendation of the prosecution to discharge Montero as a state witness.
13

Furthermore, the CA agreed with Judge Docena that Montero is not the most guilty among the accused because the
principals by inducement are more guilty than the principals by direct participation. To the CA, this finding is highly
factual in nature and it would not interfere with the trial courts exercise of discretion on factual issues in the absence
of showing that the court had acted with grave abuse of discretion.
14

On Judge Docenas no inhibition order, the CA held that while the case does not call for mandatory inhibition, it
should still be raffled to another sala for trial on the meritsto avoid any claim of bias and prejudice.
15

The CA likewise dismissed the motion for the issuance of a show cause order which Jimenez filed against Judge
Docena.
16

Both Jimenez and the People moved for partial reconsideration of the CAs order but these motions were all
denied. The denials prompted both parties to file with this Court the present consolidated petitions for review on
certiorari.
17

The Present Petitions

I. G.R. No. 209195 (The Jimenez Petition)


Jimenez raises the following errors:
First, there is no necessity to discharge Montero as a state witness because: 1) the voluntary sworn extrajudicial
confessions of Montero are all in the possession of the prosecution which they could readily present in court without
discharging Montero; and 2) there was unjust favoritism in the discharge of Montero because all the other
conspirators are equally knowledgeable of the crime.
18

Second, contrary to the CAs ruling, the judge, and not the prosecution, has the ultimate discretion in ensuring that
the requirements under Section 17, Rule 119 are complied with. Third, the cases the CA cited are factually different
from the present case. Chua v. CA should not apply as it deals with two accused, one of whom was ordered
discharged. Fourth, Monteros testimony cannot be substantially corroborated in its material points as the
prosecutions own evidence contradicts his declarations.
19

20

21

These inconsistencies include: Monteros statement that a "busal" was placed inside the mouth of Ruby Rose; this
statement is belied by the other prosecution witness; Montero also never mentioned the presence of a packaging
tape wrapped around the head and neck of the recovered cadaver; in Monteros sinumpaang salaysay, he stated
that Ruby Rose was killed by strangulation using a "lubid" but the death certificate stated asphyxia by suffocation
and not by strangulation; the identification of the cadaver as Ruby Rose is likewise questionable as there are
differences in the height, and the dental and odontological reports of Ruby Rose and the recovered cadaver.
Jimenez argued that these inconsistencies would require a thorough scrutiny; hence, the immediate discharge of
Montero as a state witness is suspicious.
22

Fifth, Montero appears to be the mostguilty. He was the architect who designed and actively participated in all
phases of the alleged crime.
23

Jimenez further argued that there is no authority supporting the ruling that the principals by inducement are more
guilty than the principal by direct participation. On the contrary, the Revised Penal Code imputes on the principal by
direct participation the heavier guilt; without the latters execution of the crime, the principal byinducement cannot be
made liable. Even if the principal by inducement is acquitted, the principal by direct participation can still be held
liable and not vice-versa.
24

Sixth, the discharge of Montero was irregular because Judge Docena failed to conduct a prior hearing.

25

Finally, Montero already executed a notice of withdrawal of consent and testimony which was submitted to the CA.

26

Comment of the People


The People argued that Jimenez is now estopped from raising the lack of hearing as an issue since he raised this
issue only after Judge Docena granted the motion to discharge and not after Judge Almeyda denied the motion an
action that was favorable to him.
27

It also argued that Jimenez actively participated in the proceedings for Monteros discharge as the trial court
received evidence for and against the discharge. In this light, Judge Docenas order granting or denying the motion
for discharge is in order, notwithstanding the lack of actual hearing.
28

The People also agreed with the CAs amended ruling that the requirements for the discharge of anaccused as a
state witness were complied with. It added that the availability of the extrajudicial statements in the prosecutions
possession is not a ground to disqualify an accused from being a state witness.
29

30

It further maintained that the alleged contradictions between Monteros statements and other prosecutions evidence
are better resolved during trial and are irrelevant tothe issues in the present case.
31

For purposes of the present case, the material allegations of Montero on the identity of the victim and the manner of
her killing were substantially corroborated by the presence of the recovered original steel casing, the drum
containing a cadaver, the place where it was found, and the cadavers apparel.
32

The People observed that Montero had already testified on direct examination on June 28, 2011 and October 25,
2011. He attested and affirmed his statements in his affidavits dated May 18 and June 11, 2009; he narrated in his
statements the murder of Ruby Rose and Jimenez participation.
33

Reply of Jimenez
Jimenez reiterated his allegations in the comment. He added that Montero did not identify or authenticate his sworn
statements in support of the motion for his discharge.
34

According to Jimenez, the notice of withdrawal of consent and testimony of Montero rendered his discharge as a
state witness moot and academic.
35

II. G.R. No. 209215(The Peoples Petition)


The People, through the Office of the Solicitor General, argue that the CAs order to re-raffle the case to another
sala is not supported by Section 1, Rule 137 of the Rules of Court, either under mandatory or voluntary inhibition.

36

To disqualify a judge from hearing a case, bias and prejudice must be proven, in the manner being done in cases of
voluntary inhibition.
37

Jurisprudence establishes, too, that affiliation does not necessarily translate to bias. A judges non-favorable action
against the defense is not also necessarily indicative of bias and prejudice.
38

39

Finally, the administrative case filed against Judge Docena is not a ground to disqualify him from hearing the case.

40

Comment of Jimenez
The option for voluntary inhibition does not give judges unlimited discretion to decide whether or not they will desist
from hearing a case. Jimenez enumerated Judge Docenas acts that allegedly constituted bias and prejudice:
First, Judge Docena granted the motion to discharge even though the legal requirements under Section 17, Rule
119 of the Revised Rules of Criminal Procedure were not factually and legally proven. He also relied on the
suggestions and information of the prosecutors thereby surrendering his duty to ensure that the requirements for a
discharge are duly complied with.
Second, in a previous case where his fraternity brother appeared as counsel, Judge Docena inhibited himself from
hearing the case. Thus, no reason exists for him not to similarly act in the present case where Jimenez is his
fraternity brother and State Prosecutor Villanueva was his classmate.
Third, Judge Docena granted the prosecutions motion for cancellation of the September 29, 2011 hearing because
the state prosecutor would be attending a legal forum. This was improper since other prosecutors were available
and other prosecution witnesses could be presented. Fourth, Judge Docena has an uncontrolled temper and
unexplainable attitude. In Jimenez bail hearing, Judge Docena immediately shouted at Jimenez counsel whenhe
made a mistake. The Issues
41

1) Whether or not the CA erred in ruling that Judge Docena did not commit grave abuse of discretion in
granting the motion to discharge Montero as a state witness; and
2) Whether or not the CA erred in ordering the re-raffle of Criminal Case No. 39225-MN toanother RTC
branch for trial on the merits.

THE COURTS RULING:


G.R. No. 209195
We agree with the CAs ruling that Judge Docena did not gravely abuse his discretion when he granted the motion
to discharge Montero as a state witness.
The well-settled rule is that a petition for certiorariagainst a court which has jurisdiction over a case will prosper only
ifgrave abuse of discretion is clear and patent. The burden is on the part of the petitioner to prove not merely
reversible error, but grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the public
respondent issuing the impugned order. Notably, mere abuse of discretion is not enough; the abuse must be grave.
Jurisprudence has defined "grave abuse of discretion" as the capricious and whimsical exercise of judgment so
patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law,
as where the power is exercised in an arbitrary and despotic manner because of passion or hostility.
42

We agree with the CA that the prosecution has complied with the requisites under Section 17,Rule 119 of the
Revised Rules of Criminal Procedure which provides that:
In the discharge of an accused inorder that he may be a state witness, the following conditions must be present,
namely:
(1) Two or more accused are jointly charged with the commission of an offense;
(2) The motion for discharge isfiled by the prosecution before it rests its case;
(3) The prosecution is required to present evidence and the sworn statement of each proposed state witness
at a hearing in support of the discharge;
(4) The accused gives his consent to be a state witness; and
(5) The trial court is satisfied that:
a) There is absolute necessity for the testimony of the accused whose discharge is requested; b)
There is no other directevidence available for the proper prosecution of the offense committed,
except the testimony of said accused;
c) The testimony of said accused can be substantially corroborated in its material points;
d) Said accused does not appear to be the most guilty; and,
e) Said accused has not atany time been convicted of any offense involving moral turpitude.
No issues have been raised with respect to conditions (1), (2), (4), and 5(e). The parties dispute the compliance with
conditions (3) and 5(a) to (d) as the issues before us. We shall discuss these issues separately below.
Absolute necessity of the testimony of Montero
We see no merit in Jimenezs allegation that no absolute necessity exists for Monteros testimony.
Absolute necessity exists for the testimony of an accused sought to be discharged when he or she alone has
knowledge of the crime. In more concrete terms, necessity is not there when the testimony would simply corroborate
or otherwise strengthen the prosecutions evidence. We do not agree with Jimenez that the Courts pronouncement
in Chua v. CA et al.is inapplicable in the present case simply because more than two accused are involved in the
43

present case. The requirement of absolute necessity for the testimony of a state witness depends on the
circumstances of each case regardless of the number of the participating conspirators.
In People v. Court of Appeals and Perez et al., the Court ordered the discharge of the accused Roncesvalles, ruling
that his testimony is absolutely necessary to prove conspiracy with his other co-accused. The Court agreed with the
Solicitor General that considering the circumstances of the case and that the other accused could not be compelled
to testify, certain facts necessary for the conviction of the accused would not come to light unless the accused
Roncesvalles was allowed to testify for the State. Specifically, unless accused Roncesvalles was allowed to testify
for the government, there would be no other direct evidence available for the proper prosecution of the offense
charged, particularly on the role of his co-accused in the preparation and completion of the falsified loan application
and its supporting papers.
44

Similarly in People v. Court of Appeals and Tan, the Court reinstated the ruling of the trial court which ordered the
discharge of accused Ngo Sin from among the five accused. The record justified his discharge as a state witness
considering the absolutenecessity of his testimony to prove that the accused Luciano Tan had planned and financed
the theft.
45

In the present case, not one ofthe accused-conspirators, except Montero, was willing to testify on the alleged
murder of Ruby Rose and their participation in her killing. Hence, the CA was correct in ruling that Judge Docena
acted properly and in accordance with jurisprudence in ruling that there was absolute necessity for the testimony of
Montero. He alone is available to provide directevidence of the crime.
That the prosecution could use the voluntary statements of Montero without his discharge as a state witness is not
an important and relevant consideration. To the prosecution belongs the control of its case and this Court cannot
dictate on its choice in the discharge of a state witness, save only when the legal requirements have not been
complied with.
The prosecutions right to prosecute gives it "a wide range of discretion the discretion of whether, what and whom
to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors."
Under Section 17, Rule 119 of the Revised Rules of Criminal Procedure, the court is given the power to discharge a
state witness only after it has already acquired jurisdiction over the crime and the accused.
46

Monteros testimony can be substantially corroborated


We also do not find merit in Jimenez argument that Monteros testimony cannot be substantially corroborated in its
material points and is even contradicted by the physical evidence of the crime. As the trial court properly found, the
evidence consisting of the steel casing where the cadaver was found; the drum containing the cadaver which the
prosecution successfully identified (and which even the acting Judge Almeyda believed) to be Ruby Rose; the spot
in the sea that Montero pointed to (where the cadaver was retrieved); the apparel worn by the victim when she was
killed as well as her burned personal effects, all partly corroborate some of the material points in the sworn
statements of Montero.
47

With these as bases, Judge Docenas ruling that Monteros testimony found substantial corroboration cannot
becharacterized as grave abuse of discretion.
Jimenez points to the discrepancies in Monteros statements and the physical evidence, such as the absence of
"busal"in the mouth of the retrieved cadaver; his failure to mention that they used packaging tape wrapped around
the head down to the neck of the victim; and his declaration that the victim was killed through strangulation using a
rope (lubid).
However, the corroborated statements of Montero discussed above are far more material than the inconsistencies
pointed outby Jimenez, at least for purposes of the motion to discharge.

The alleged discrepancies in the physical evidence, particularly on the height and dental records of Ruby Rose, are
matters that should properly be dealt with during the trial proper.
We emphasize at this point that to resolve a motion to discharge under Section 17, Rule 119 of the Revised Rules of
Criminal Procedure, the Rules only require that that the testimony ofthe accused sought to be discharged be
substantially corroborated in its material points, not on all points.
This rule is based on jurisprudential line that in resolving a motion to discharge under Section 17, Rule 119, a trial
judge cannot be expected or required, at the start of the trial, to inform himself with absolute certainty of everything
that may develop in the course of the trial with respect to the guilty participation of the accused. If that were
practicable or possible, there would be little need for the formality of a trial.
48

Montero is not the most guilty


We also do not agree with Jimenez that the CA erred in finding that Montero is not the most guilty.
By jurisprudence, "most guilty" refers to the highest degree of culpability in terms of participation in the commission
of the offense and does not necessarily mean the severity of the penalty imposed. While all the accused may be
given the same penalty by reason of conspiracy, yet one may be considered to have lesser orthe least guilt taking
into account his degree of participation in the commission of the offense.
49

What the rule avoids is the possibility that the most guilty would be set free while his co-accused who are less guilty
in terms of participation would be penalized.
50

Before dwelling on the parties substantive arguments, we find it necessary to first correct the rulings of the CA that
are not exactly correct.
Contrary to the CAs findings, a principal by inducement is not automatically the most guilty in a conspiracy. The
decision of the Court in People v. Baharan did not involve the resolution of a motion to discharge an accused to
become a state witness. Instead, the pronouncement of the Court related to the culpability of a principal by
inducement whose coinducement act was the determining cause for the commission of the crime.
51

Thus viewed, Baharan cannot be the basis of a peremptory pronouncement that a principal by inducement is more
guilty than the principal by direct participation.
In Chua v. People, which involved a motion to discharge an accused, the Court declared that if one induces
another to commit a crime, the influence is the determining cause of the crime. Without the inducement, the crime
would not have been committed; it is the inducer who sets into motion the execution of the criminal act.
52

To place the Chua ruling in proper perspective, the Court considered the principal by inducement as the most guilty
based on the specific acts done by the two accused and bearing in mind the elements constitutive of the crime of
falsification of private documents where the element of "damage" arose through the principal by inducements
encashment of the falsified check. This led the Court to declare that the principal by inducement is the "most guilty"
(or properly, the more guilty) between the two accused.
Thus, as a rule, for purposes of resolving a motion to discharge an accused as a state witness,what are controlling
are the specific acts of the accused in relation to the crime committed.
We cannot also agree with Jimenez argument that a principal by direct participation is more guilty than the principal
by inducement as the Revised Penal Code penalizes the principal by inducement only when the principal by direct
participation has executed the crime.
We note that the severity of the penalty imposed is part of the substantive criminal law which should not be equated
with the procedural rule on the discharge of the particeps criminis. The procedural remedy of the discharge of an

accused is based on other considerations, such as the need for giving immunity to one of several accused in order
that not all shall escape, and the judicial experience that the candid admission of an accused regarding his
participation is a guaranty that he will testify truthfully.
53

On the substantive issues of the present case, we affirm the CA ruling that no grave abuse of discretion transpired
when Judge Docena ruled that Montero is not the most guilty.
We draw attention to the requirement that a state witness does not need to be found to be the least guilty; he or she
should not only "appear to be the most guilty."
54

From the evidence submitted by the prosecution in support of its motion to discharge Montero, it appears that while
Montero was part of the planning, preparation, and execution stage as most of his co-accused had been, he had no
direct participation inthe actual killing of Ruby Rose. While Lope allegedly assigned to him the execution of the
killing, the records do not indicate that he had active participation in hatching the plan to kill Ruby Rose, which
allegedly came from accused Lope and Jimenez, and in the actual killing of Ruby Rose which was executed by
accused Lennard. Monteros participation was limited to providing the steel box where the drum containing the
victims body was placed, welding the steel box to seal the cadaver inside, operating the skip or tug boat, and,
together with his co-accused, dropping the steelbox containing the cadaver into the sea.
55

At any rate, the discharge of anaccused to be utilized as a state witness because he does not appear to bethe most
guilty is highly factual in nature as it largely depends on the appreciation of who had the most participation in the
commission of the crime. The appellate courts do not interfere in the discretionary judgment ofthe trial court on this
factual issue except when grave abuse ofdiscretion intervenes.
56

In light of these considerations, we affirm the ruling of the CA that Judge Docena did not commit grave abuse of
discretion in ruling that Montero is not the most guilty.
The discharge of Montero as a state witness was procedurally sound
We agree with the People that Jimenez is estopped from raising the issue of lack of hearing prior to the discharge of
Montero asa state witness. Jimenez did not raise this issue when Acting Judge Almeyda denied the motion to
discharge. This denial, of course, was favorable toJimenez. If he found no reason to complain then, why should we
entertain his hearingrelated complaint now?
The People even supported its argument that Jimenez actively participated in the proceedings of the motion to
discharge such as his filing of a 20-page opposition to the motion; filing a reply to the Peoples comment; submitting
his memorandum of authorities on the qualification of Montero as state witness; and filing a consolidated opposition
on the Peoples and Monteros motion for reconsideration of Judge Almeydas order.
57

In these lights, Jimenez cannot impute grave abuse of discretion on Judge Docena for not conducting a hearing
prior to his grant of the motion to discharge. In People v. CA and Pring, the Court ruled that with both litigants able
to present their sides,the lack of actual hearing is not sufficiently fatal to undermine the court's ability to determine
whether the conditions prescribed for the discharge ofan accused as a state witness have been satisfied. Contrary
to Jimenez argument, the Pringruling is applicable in the present case. In Pring, the sworn statements of the
accused sought to be discharged (Nonilo Arile), together with the prosecutions other evidence, were already in the
possession of the court and had been challenged by the respondent in his Opposition to Discharge Nonilo Arile and
in his Petition for Bail. The issue in that case was the propriety of the trial courts resolution of the motion to
discharge Nonilo Arile without conducting a hearing pursuant Section 9, Rule 119 of the 1985 Rules on Criminal
Procedure (now Section 17, Rule 119 ofthe Revised Rules of Criminal Procedure).
58

With Jimenez active participation in the proceeding for the motion to discharge as outlined above, the ruling of the
Court in Pringshould squarely apply.
Monteros Notice of Withdrawal of Consent is not material in the resolution of the present case

We find no merit in Jimenez argument that Monteros submission of his notice of withdrawal of consent and
testimony of Manuel dated February 26, 2013 rendered the present case moot, since the Court cannot consider this
document in this petition.
It must be recalled that the present case involves an appellate review of the CAs decision which found no grave
abuse of discretion on the part of Judge Docena in granting the motion to discharge.
Under the present recourse now before this Court, we cannot rule on the notice of withdrawal and consider it in
ruling on the absence or presence of grave abuse of discretion in the issuance of the assailed orders. The present
case is not the proper venue for the determination of the value of the notice.
This conclusion is all the more strengthened by the fact that Montero already testified on direct examination on June
28, 2011 and October 25, 2011. He attested and affirmed his statements in his affidavits dated May 18 and June 11,
2009; he not only narrated the grisly murder of Ruby Rose, but also revealed Jimenez participation in the murder.
With this development, the notice may partake of the nature of a recantation, which is usually taken ex parte and is
considered inferior to the testimony given in open court. It would be a dangerous rule to reject the testimony taken
before a court of justice simply because the witness who gave it later changed his/her mind.
59

In sum on this point, the appreciation of the notice of withdrawal properly belongs to the trial court.
Interplay between the judge and prosecutor in the motion to discharge an accused to become a state witness
As a last point, we find it necessary to clarify the roles of the prosecution and the trial court judge in the resolution of
a motion to discharge an accused as a state witness.This need arises from what appears to us to be a haphazard
use of the statement that the trial court judge must rely in large part on the prosecutions suggestion in the resolution
of a motion to discharge.
In the present case, the CA cited Quarto v. Marcelo in ruling that the trial court must rely in large part upon the
suggestions and the information furnished by the prosecuting officer, thus:
60

A trial judge cannot be expected orrequired to inform himself with absolute certainty at the very outset of the trial as
to everything which may be developed in the course of the trial in regard to the guilty participation of the accused in
the commission of the crime charged in the complaint. If that were practicable or possible there would be little need
for the formality of a trial. He must rely inlarge part upon the suggestions and the information furnished by the
prosecuting officer in coming to his conclusions as to the "necessity for the testimony of the accused whose
discharge is requested"; asto the availability or non-availability of other direct or corroborative evidence; as to which
of the accused is "most guilty," and the like.
We deem it important to place this ruling in its proper context lest we create the wrong impression that the trial court
is a mere "rubber stamp" of the prosecution, in the manner that Jimenez now argues.
In Quarto, we emphasized that it is still the trial court that determines whether the prosecutions preliminary
assessment of the accused-witness qualifications to be a state witness satisfies the procedural norms. This
relationship is in reality a symbiotic one as the trial court, by the very nature of its role in the administration of justice,
largely exercises its prerogative based on the prosecutors findings and evaluation.
61

Thus, we ruled in People v. Pring that in requiring a hearing in support of the discharge, the essential objective of
the law is for the court to receive evidence for or against the discharge, which evidence shall serve as the courts
tangible and concrete basis independently of the fiscal's or prosecution's persuasions in granting or denying the
motion for discharge. We emphasize, in saying this, that actual hearing is not required provided that the parties have
both presented their sides on the merits of the motion.
62

1wphi1

We likewise do not agree with Jimenez that Quartoshould not apply to the present case, since the principles laid
down in that case similarly operate in the present case, specifically, on issue of the procedural processes required in
the discharge of the accused as a state witness.
G.R. No. 209215
We find the Peoples petition meritorious.
We note at the outset that the CA did not provide factual or legal support when it ordered the inhibition ofJudge
Docena. Additionally, we do not find Jimenez arguments sufficiently persuasive.
The second paragraph of Section 1 of Rule 137 does not give judges the unlimited discretion to decide whether or
not to desist from hearing a case. The inhibition must be for just and valid causes. The mere imputation of bias or
partiality is likewise not enough ground for their inhibition, especially when the charge is without basis.
63

It is well-established that inhibition is not allowed at every instance that a schoolmate or classmate appears before
the judge as counsel for one of the parties. A judge, too, is not expected to automatically inhibit himself from acting
in a case involving a member of his fraternity, such as Jimenez in the present case.
64

In the absence of clear and convincing evidenceto prove the charge of bias and prejudice, a judges ruling not to
inhibit oneself should be allowed to stand.
65

In attributing bias and prejudice to Judge Docena, Jimenez must prove that the judge acted or conducted himself in
a manner clearly indicative of arbitrariness or prejudice soas to defeat the attributes of the cold neutrality that an
impartial judge must possess.Unjustified assumptions and mere misgivings that the judge acted with prejudice,
passion, pride and pettiness in the performance of his functions cannot overcome the presumption that a judge shall
decide on the merits of a case with an unclouded vision of its facts.
66

In the present case, Jimenez allegation of bias and prejudice is negated by the CA finding in its amended decision,
as affirmed by this Court, that Judge Docena did not gravely abuse his discretion in granting the motion to
discharge. We support this conclusion as the cancellation of the September 29, 2011 hearing is not clearly indicative
of bias and prejudice.
On the allegation that Judge Docena's uncontrollable temper and unexplainable attitude should be considered as a
factor, we note that the allegations and perceptions of bias from the mere tenor and language of a judge is
insufficient to show prejudgment. Allowing inhibition for these reasons would open the floodgates to abuse. Unless
there is concrete proof that a judge has a personal interest in the proceedings, and that his bias stems from an
extra-judicial source, the Court would uphold the presumption that a magistrate shall impartially decide the merits of
a case.
67

WHEREFORE, we DENY the petition in G.R. No. 209195 and affirm the CA's amended decision in CA-G.R. SP No.
121167 insofar as it found no grave abuse of discretion on the part of Judge Docena in granting the People's motion
to discharge Montero as a state witness.
We GRANT the petition in G.R. No. 209215 and modify the CA's amended decision in CA-G.R. SP No. 121167 in
accordance with our ruling that Judge Docena's denial of the motion for inhibition was proper.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-16486

March 22, 1921

THE UNITED STATES, plaintiff-appelle,


vs.
CALIXTO VALDEZ Y QUIRI, defendant-appellant.
Angel Roco for appellant.
Acting Attorney-General Feria for appellee.
STREET, J.:
The rather singular circumstances attending the commission of the offense of homicide which is under discussion in
the present appeal are these:
At about noon, on November 29, 1919, while the interisland steamer Vigan was anchored in the Pasig River a short
distance from the lighthouse and not far from where the river debouches into the Manila Bay, a small boat was sent
out to raise the anchor. The crew of this boat consisted of the accused, Calixto Valdez y Quiri, and six others among
whom was the deceased, Venancio Gargantel. The accused was in charge of the men and stood at the stern of the
boat, acting as helmsman, while Venancio Gargantel was at the bow.
The work raising the anchor seems to have proceeded too slowly to satisfy the accused, and he accordingly began
to abuse the men with offensive epithets. Upon this Venancio Gargantel remonstrated, saying that it would be better,
and they would work better, if he would not insult them. The accused took this remonstrance as a display of
insubordination; and rising in rage he moved towards Venancio, with a big knife in hand, threatening to stab him. At
the instant when the accused had attained to within a few feet of Venancio, the latter, evidently believing himself in
great and immediate peril, threw himself into the water and disappeared beneath its surface to be seen no more.
The boat in which this incident took place was at the time possibly 30 or 40 yards from shore and was distant, say,
10 paces from the Vigan. Two scows were moored to the shore, but between these and the boat intervened a space
which may be estimated at 18 or 20 yards. At it was full midday, and there was nothing to obstruct the view of
persons upon the scene, the failure of Venancio Gargantel to rise to the surface conclusively shows that, owing to
his possible inability to swim or the strength of the current, he was borne down into the water and was drowned.
Two witnesses who were on the boat state that, immediately after Venancio leaped into the water, the accused told
the remaining members of the crew to keep quiet or he would kill them. For this reason they made no movement
looking to rescue; but inasmuch as there witnesses are sure that Venancio did not again come to the surface, efforts
at rescue would have been fruitless. The fact that the accused at his juncture threatened the crew with violence is,
therefore, of no moment except tho show the temporary excitement under which he was laboring.
On the next day one of the friends of Venancio Gargantel posted himself near the lighthouse to watch for the body,
in the hope that it might come to the surface and could thus be recovered. Though his friendly vigil lasted three days
nothing came of it.
It may be added that Venancio has not returned to his lodging in Manila, where he lived as a bachelor in the house
of an acquaintance; and his personal belongings have been delivered to a representative of his mother who lives in
the Province of Iloilo. His friends and relatives, it is needless to say, take it for granted that he is dead.
The circumstances narrated above are such in our opinion as to exclude all reasonable possibility that Venancio
Gargantel may have survived; and we think that the trial judge did not err in holding that he is dead and that he
came to his death by drowning under the circumstances stated. The proof is direct that he never rose to the surface
after jumping into the river, so far as the observers could see; and this circumstance, coupled with the known fact

that human life must inevitably be extinguished by asphyxiation under water, is conclusive of his death. The
possibility that he might have swum ashore, after rising in a spot hidden from the view of his companions, we
consider too remote to be entertained for a moment.
As to the criminal responsibility of the accused for the death thus occasioned the likewise can be no doubt; for it is
obvious that the deceased, in throwing himself in the river, acted solely in obedience to the instinct of selfpreservation and was in no sense legally responsible for his own death. As to him it was but the exercise of a choice
between two evils, and any reasonable person under the same circumstances might have done the same. As was
once said by a British court, "If a man creates in another man's mind an immediate sense of dander which causes
such person to try to escape, and in so doing he injuries himself, the person who creates such a state of mind is
responsible for the injuries which result." (Reg. vs. Halliday, 61 L. T. Rep. [N.S.], 701.
In this connection a pertinent decision from the Supreme Court of Spain, of July 13, 1882, is cited in the brief of The
Attorney-General, as follows: It appeared that upon a certain occasion an individual, after having inflicted sundry
injuries upon another with a cutting weapon, pointed a shotgun at the injured person and to escape the discharge
the latter had to jump into a river where he perished by drowning. The medical authorities charged with conducting
the autopsy found that only one of the wounds caused by a cut could have resulted in the death of the injured
person, supposing that he had received no succour, and that by throwing himself in the river he in fact died of
asphyxia from submersion. Having been convicted as the author of the homicide, the accused alleged upon appeal
that he was only guilty of the offense of inflicting serious physical injuries, or at most of frustrated homicide. The
Supreme Court, disallowing the appeal, enunciated the following doctrine: "That even though the death of the
injured person should not be considered as the exclusive and necessary effect of the very grave wound which
almost completely severed his axillary artery, occasioning a hemorrhage impossible to stanch under the
circumstances in which that person was placed, nevertheless as the persistence of the aggression of the accused
compelled his adversary, in order to escape the attack, to leap into the river, an act which the accused forcibly
compelled the injured person to do after having inflicted, among others, a mortal wound upon him and as the
aggressor by said attack manifested a determined resolution to cause the death of the deceased, by depriving him
of all possible help and putting him in the very serious situation narrated in the decision appealed from, the trial
court, in qualifying the act prosecuted as consummated homicide, did not commit any error of law, as the death of
the injured person was due to the act of the accused." (II Hidalgo, Codigo Penal, p. 183.)
The accused must, therefore, be considered the responsible author of the death of Venancio Gargantel, and he was
properly convicted of the offense of homicide. The trial judge appreciated as an attenuating circumstance the fact
that the offender had no intention to commit so great a wrong as that committed. (Par. 3, art. 9 Penal Code.) In
accordance with this finding the judge sentenced the accused to undergo imprisonment for twelve years and one
day, reclusion temporal, to suffer the corresponding accessories, to indemnify the family of the deceased in the sum
of P500, and to pay the costs. Said sentenced is in accordance with law; and it being understood that the
accessories appropriate to the case are those specified in article 59 of the Penal Code, the same is affirmed, with
costs against the appellant. So ordered.
Mapa, C.J., Malcolm, Avancea and Villamor, JJ., concur.

Separate Opinions
ARAULLO, J., dissenting:
I dissent from the majority opinion in this case.
The only fact that the evidence shows in that Venancio Gargantel, one of those who were in a boat of the
steamerVigan subject to the orders of the accused Calixto Valdez and who at the time was engaged in the work of
raising the anchor of that vessel, which was then lying at the Pasig River, a short distance from the lighthouse and
not far from its mouth at the Manila Bay, upon seeing that the accused was approaching him, armed with a big knife,
and in the attitude of attacking him, threw himself into the water and disappeared from the surface and had not been
seen again. This event took place at noon on November 29, 1919, the boat being then about 30 or 40 yards from

land and about 10 steps from the Vigan, there being two lighters moored to the shore and at a distance of about 18
or 20 yards from the boat. All of these facts are stated in the decision itself.
The original information in the present case, charging Calixto Valdez y Quiri with the crime of homicide and alleging
that as a result of his having thrown himself into the river under the circumstances mentioned, Venancio Gargantel
was drowned, was presented on December 8, 1919, that is, nine days afterwards.
There is no evidence whatever that the corpse of Venancio Gargantel had been found or, what is the same thing,
that he had died. From November 28, the day when the event occurred, until December 8, when the information
was filed, it cannot in any manner be maintained that the necessary time had passed for us to properly conclude, as
is alleged in the information, that said Gargantel had died by drowning, as a consequence of his having thrown
himself into the water upon seeing himself threatened and attacked by the accused. Neither does it appear in the
evidence that all the precaution necessary for us to assure ourselves, as a sure and proven fact, that Venancio
Gargantel then died by drowning, were taken; nor is there any evidence that it would have been impossible for him,
by swimming or by any other means to rise to the surface at a place other than the Pasig River or that where the
boat was, from which he threw himself into the river, and in that manner save himself from death.
From the evidence of the witnesses for the prosecution which is the only evidence in the record, for the accused di
not take the stand, it only appears that Venancio Gargantel, after having jumped from the boat, did not rise again to
the surface. Such was the statement of two of those witnesses who were members of the boat's crew at the time.
Another witness also declared that Gargantel was afterwards not again seen at the house where he lived in this city,
No. 711 San Nicolas Street, where he kept his trunks and some effects, a fact which caused his mother, who lived in
the municipality of Guimbal, in the Province of Iloilo, upon being informed of it and upon the failure of Venancio to
appear in said place, to give special power on the 28th of that month of December, that is, one month afterwards, to
a student, Ignacio Garzon, to get the trunks and effects of Venancio from said house. Sid Garzon himself testified,
upon being asked whether Venancio Gargantel had returned to the house of his parents since November 29, 1919,
that he had no information about it, and another witness, Pedro Garcia, of the prosecution, stated that he had
probably died, because he had not seen Venancio Gargantel.
Therefore, in short, the only fact proved is that since Venancio Gargantel threw himself into the river, upon being
threatened with a knife by the accused, his whereabouts has remained unknown even at the moment of rendering
judgment in this case, or, February 9, 1920, that is, two and one-half months after the occurrence of the event.
It is stated in the decision that the friend and parents of Gargantel give him up for dead. There is nevertheless in the
record no statement of any parent of Gargantel to that effect; for his mother Maria Gatpolitan, a resident of the
municipality of Guimbal, merely stated in the power of attorney executed in favor of Ignacio Garzon that the latter
should take steps in order that the city fiscal might investigate the death of her son which, according to information,
was caused by another members, of the crew of the steamer Vigan; and none of his friends, that is, none of the two
members of the party in the boat at that time and of the crew of the steamer Vigan, nor Maximo Gumbog, the owner
of the house in which Gargantel lived in this city, nor Pedro Garcia, another member of the crew of that steamer, and
finally, nor Ignacio Garzon himself has stated that he gave up Gargantel for dead, for the simple reason that this was
not possible, for they only knew that he did not again rise to the surface and was not seen again after having thrown
himself into the river from the boat.
For this reason it is stated in the decision that the circumstances therein stated are such that they exclude all
reasonable possibility that Venancio Gargantel could have survived and that the circumstance that never rose to the
surface after having jumped into the river, as witnessed by the persons present, together with the admitted fact that
human life is necessarily asphyxiated under the water, is conclusive that he died. Then, there is nothing more than a
deduction that Gargantel had died based upon those facts and circumstances.
In my opinion this is not sufficient to convict the accused as guilty of homicide, because there is the possibility that
Gargantel had risen to the surface at some place away from the where he threw himself into the river and had
embarked on some other vessel in the same river or out of it in the bay and had gone abroad, or to some province
of these Islands and is found in some municipality thereof, cannot be denied. And this is very probable inasmuch as
it does not appear in the record that the necessary investigation has been made in order to determined even with
only some measure of certainty, not to say beyond all reasonable doubt, that it was and is impossible to find said
person or determined his whereabouts.

Furthermore, there is not even a presumption juris tantum that he had died, for in order that this presumption may
exist, according to section 334 of the Code of Civil Procedure, it is necessary that no information about him should
have been received for seven years from his disappearance upon his throwing himself into the river, which occurred
on November 29, 1919, that is, only about one year and four months ago. And if, in order that a finding of a civil
character in favor of or against some person, may be made, by virtue of that presumption, it is necessary that seven
years should have elapsed without any notice being received of the person whose whereabouts is unknown, it is not
just, reasonable, or legal that the period of one year and four months from his disappearance or since Venancio
Gargantel threw himself into the water should suffice for us to impose upon the accused Calixto Valdez such a grave
penalty as that of twelve years and one day of reclusion temporal, merely assuming without declaring it, as a proven
fact, that Gargantel has died and at the same time finding said accused to be the author of that death.
Lastly, the decision of the English Supreme Court or that of the Spanish Supreme Court dated July 13, 1882, cited
by the majority opinion is not applicable. The first, is not applicable because in the present case it is not proved,
beyond reasonable doubt, that some damage resulted to Gargantel, just as it cannot be considered as proved that
he had died, or that he had been injured or that he had suffered some injury after having thrown himself into the
river as a result of the threat of the accused. The second is not applicable because the decision of the Supreme
Court of Spain refers to a case, in which the injured party had already been wounded with a cutting instrument by
the accused before throwing himself into the river upon the latter aiming at him with his gun, it having afterwards
been proved upon his being taken out of the river that the wound inflicted upon him by the accused was mortal; and,
consequently, it was declared by said court that, even if the death of the deceased be considered as not having
resulted exclusively and necessarily from that most grave wound, the persistence of the aggression of the accused
compelled his adversary to escape it and threw himself into the river, by depriving him of all possible help and
placing him in the serious situation related in the judgment appealed from -a case which, as is seen, is very different
from that which took place in the present case.
For the reasons above stated, I am of the opinion, with due respect to the opinion of the majority, that the accused
Calixto Valdez y Quiri cannot be found guilty of homicide and should be acquitted.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-1477

January 18, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
JULIO GUILLEN, defendant-appellant.
Mariano A. Albert for appellant.
Office of the Solicitor General Felix Bautista Angelo and Solicitor Francisco A. Carreon for appellee.
PER CURIAM, J.:
This case is before us for review of, and by virtue of appeal from, the judgment rendered by the Court of First
Instance of Manila in case No. 2746, whereby Julio Guillen y Corpus, or Julio C. Guillen, is found guilty beyond
reasonable doubt of the crime of murder and multiple frustrated murder, as charged in the information, and is
sentenced to the penalty of death, to indemnify the of the deceased Simeon Valera (or Barrela) in the sum of P2,000
and to pay the costs.
Upon arraignment the accused entered a plea of not guilty to the charges contained in the information.
Then the case was tried in one of the branches of the Court of First Instance of Manila presided over by the
honorable Buenaventura Ocampo who, after the submission of the evidence of the prosecution and the defense,
rendered judgment as above stated.

In this connection it should be stated that, at the beginning of the trial and before arraignment, counsel de oficiofor
the accused moved that the mental condition of Guillen be examined. The court, notwithstanding that it had found
out from the answers of the accused to questions propounded to him in order to test the soundness of his mind, that
he was not suffering from any mental derangement, ordered that Julio Guillen be confined for Hospital, there to be
examined by medical experts who should report their findings accordingly. This was done, and, according to the
report of the board of medical experts, presided over by Dr. Fernandez of the National Psychopathic Hospital, Julio
Guillen was not insane. Said report (Exhibit L), under the heading "Formulation and Diagnosis," at pages 13 and 14,
reads:
FORMULATION AND DIAGNOSIS
Julio C. Guillen was placed under constant observation since admission. There was not a single moment
during his whole 24 hours daily, that he was not under observation.
The motive behind the commission of the crime is stated above. The veracity of this motivation was
determined in the Narcosynthesis. That the narco-synthesis was successful was checked up the day after
the test. The narco-synthesis proved not only reveal any conflict or complex that may explain a delusional or
hallucinatory motive behind the act.
Our observation and examination failed to elicit any sign or symptom of insanity in Mr. Julio C. Guillen. He
was found to be intelligent, always able to differentiate right from wrong, fully aware of the nature of the
crime he committed and is equally decided to suffer for it in any manner or form.
His version of the circumstances of the crime, his conduct and conversation relative thereto, the motives,
temptations and provocations that preceded the act, were all those of an individual with a sound mind.
On the other hand he is an man of strong will and conviction and once arriving at a decision he executes,
irrespective of consequences and as in this case, the commission of the act at Plaza Miranda.
What is of some interest in the personality of Julio C. Guillen is his commission of some overt acts. This is
seen not only in the present instance, but sometime when an employee in la Clementina Cigar Factory he
engaged in a boxing bout Mr. Manzano, a Span-wanted to abuse the women cigar makers, and felt it his
duty to defend them. One time he ran after a policeman with a knife in hand after being provoked to a fight
several times. He even challenged Congressman Nueno to a fight sometime before when Mr. Nueno was
running for a seat in the Municipal Board of the City of Manila, after hearing him deliver one of his apparently
outspoken speeches.
All these mean a defect in his personality characterized by a weakness of censorship especially in relation to
rationalization about the consequences of his acts.
In view of the above findings it is our considered opinion that Julio C. Guillen is not insane but is an
individual with a personality defect which in Psychiatry is termed, Constitutional Psychopathic Inferiority.
Final Diagnosis
Not insane: Constitutional Psychopathic Inferiority, without psychosis.
In view of the above-quoted findings of the medical board, and notwithstanding the contrary opinion of one Dr.
Alvarez, who was asked by the defense to give his opinion on the matter, the court ruled that Guillen, not being
insane, could be tired, as he was tired, for the offenses he committed on the date in question.
THE FACTS
Upon careful perusal of the evidence and the briefs submitted by counsel for the accused, the Solicitor General and
their respective memoranda, we find that there is no disagreement between the prosecution and the defense, as to
the essential facts which caused the filing of the present criminal case against this accused. Those facts may be
stated as follows:

On the dates mentioned in this decision, Julio Guillen y Corpus, although not affirmed with any particular political
group, has voted for the defeated candidate in the presidential elections held in 1946. Manuel A. Roxas, the
successful candidate, assumed the office of President of the Commonwealth and subsequently President of the
President of the Philippine Republic. According to Guillen, he became disappointed in President Roxas for his
alleged failure to redeem the pledges and fulfill the promises made by him during the presidential election
campaign; and his disappointment was aggravated when, according to him, President Roxas, instead of looking
after the interest of his country, sponsored and campaigned for the approval of the so-called "parity" measure.
Hence he determined to assassinate the President.
After he had pondered for some time over the ways and means of assassinating President Roxas, the opportunity
presented itself on the night of March 10, 1947, when at a popular meeting held by the Liberal Party at Plaza de
Miranda, Quiapo, Manila attended by a big crowd, President Roxas, accompanied by his wife and daughter and
surrounded by a number of ladies and gentlemen prominent in government and politics, stood on a platform erected
for that purpose and delivered his speech expounding and trying to convince his thousand of listeners of the
advantages to be gained by the Philippines, should the constitutional amendment granting American citizens the
same rights granted to Filipino nationals be adopted.
Guillen had first intended to use a revolver for the accomplishment of his purpose, but having lost said firearm,
which was duly licensed, he thought of two hand grenades which were given him by an American soldier in the early
days of the liberation of Manila in exchange for two bottles of whisky. He had likewise been weighing the chances of
killing President Roxas, either by going to Malacaan, or following his intended victim in the latter's trips to
provinces, for instance, to Tayabas (now Quezon) where the President was scheduled to speak, but having
encountered many difficulties, he decided to carry out his plan at the pro-parity meeting held at Plaza de Miranda on
the night of March 10, 1947.
On the morning of that he went to the house of Amando Hernandez whom he requested to prepare for him a
document (Exhibit B), in accordance with their pervious understanding in the preceding afternoon, when they met at
the premises of the Manila Jockey Club on the occasion of an "anti-parity" meeting held there. On account of its
materially in this case, we deem it proper to quote hereunder the contents of said document. An English translation
(Exhibit B-2) from its original Tagalog reads:
FOR THE SAKE OF A FREE PHILIPPINES
I am the only one responsible for what happened. I conceived it, I planned it, and I carried it out all by myself
alone. It took me many days and nights pondering over this act, talking to my own conscience, to my God,
until I reached my conclusion. It was my duty.
I did not expected to live long; I only had on life to spare. And had I expected to lives to spare, I would not
have hesitated either ton sacrifice it for the sake of a principle which was the welfare of the people.
Thousands have died in Bataan; many more have mourned the loss of their husbands, of their sons, and
there are millions now suffering. Their deeds bore no fruits; their hopes were frustrated.
I was told by my conscience and by my God that there was a man to be blamed for all this: he had deceived
the people, he had astounded them with no other purpose than to entice them; he even went to the extent of
risking the heritage of our future generations. For these reasons he should not continue any longer. His life
would mean nothing as compared with the welfare of eighteen million souls. And why should I not give up
my life too if only the good of those eighteen million souls.
These are the reasons which impelled me to do what I did and I am willing to bear up the consequences of
my act. I t matters not if others will curse me. Time and history will show, I am sure, that I have only
displayed a high degree of patriotism in my performance of my said act.
Hurrah for a free Philippines.
Cheers for the happiness of every Filipino home.

May God pity on me.


Amen.

JULIO C. GUILLEN

A copy (Exhibit B-1) of the original in Tagalog (Exhibit B), made at the request of Guillen by his nephew, was handed
to him only at about 6 o'clock in the afternoon of March 10, 1947, for which reason said Exhibit B-1 appears
unsigned, because he was in a hurry for that meeting at Plaza de Miranda.
When he reached Plaza de Miranda, Guillen was carrying two hand grenades concealed in a paper bag which also
contained peanuts. He buried one of the hand grenades (Exhibit D), in a plant pot located close to the platform, and
when he decided to carry out his evil purpose he stood on the chair on which he had been sitting and, from a
distance of about seven meters, he hurled the grenade at the President when the latter had just closed his speech,
was being congratulated by Ambassador Romulo and was about to leave the platform.
General Castaeda, who was on the platform, saw the smoking, hissing, grenade and without losing his presence of
mind, kicked it away from the platform, along the stairway, and towards an open space where the general thought
the grenade was likely to do the least harm; and, covering the President with his body, shouted to the crowd that
everybody should lie down. The grenade fell to the ground and exploded in the middle of a group of persons who
were standing close to the platform. Confusion ensued, and the crowd dispersed in a panic. It was found that the
fragments of the grenade had seriously injured Simeon Varela (or Barrela ) who died on the following day as the
result of mortal wounds caused by the fragments of the grenade (Exhibits F and F-1) Alfredo Eva, Jose Fabio,
Pedro Carrillo and Emilio Maglalang.
Guillen was arrested by members of the Police Department about two hours after the occurrence. It appears that
one Angel Garcia, who was one spectators at that meeting, saw how a person who was standing next to him hurled
an object at the platform and, after the explosion, ran away towards a barber shop located near the platform at
Plaza de Miranda. Suspecting that person was the thrower of the object that exploded, Garcia went after him and
had almost succeeded in holding him, but Guillen offered stiff resistance, got loose from Garcia and managed to
escape. Garcia pursued him, but some detectives, mistaking the former for the real criminal and the author of the
explosion, placed him under arrest. In the meantime, while the City Mayor and some agents of the Manila Police
Department were investigating the affair, one Manuel Robles volunteered the information that the person with whom
Angel Garcia was wrestling was Julio Guillen; that he (Manuel Robles) was acquainted with Julio Guillen for the
previous ten years and had seen each other in the plaza a few moments previous to the explosion.
The police operatives interrogated Garcia and Robles, and Julio Guillen was, within two hours after the occurrence,
found in his home at 1724 Juan Luna Street, Manila, brought to the police headquarters and identified by Angel
Garcia, as the same person who hurled towards the platform the object which exploded and whom Garcia tried to
hold when he was running away.
During the investigation conducted by the police he readily admitted his responsibility, although at the same time he
tried to justify his action in throwing the bomb at President Roxas. He also indicated to his captors the place where
he had hidden his so called last will quoted above and marked Exhibit B, which was then unsigned by him and
subsequently signed at the police headquarters.
Re-enacting the crime (Exhibit C), he pointed out to the police where he had buried (Exhibit C-1) the other hand
grenade (Exhibit D), and, in the presence of witnesses he signed a statement which contained his answers to
question propounded to him by Major A. Quintos of the Manila Police, who investigated him soon after his arrest
(Exhibit E). From a perusal of his voluntary statement, we are satisfied that it tallies exactly with the declarations and
made by him on the witness stand during the trial of this case.
THE ISSUES

In the brief submitted by counsel de oficio for this appellant, several errors are assigned allegedly committed by the
trial court, namely: first, "in finding the appellant guilty of murder for the death of Simeon Varela"; second, "in
declaring the appellant guilty of the complex crime of murder and multiple frustrated murder"; third, "in applying subsection 1 of article 49 of the Revised Penal Code in determining the penalty to be imposed upon the accused";
and fourth, "in considering the concurrence of the aggravating circumstances of nocturnity and of contempt of public
authorities in the commission of crime."
The evidence for the prosecution, supported by the brazen statements made by the accused, shows beyond any
shadow of doubt that, when Guillen attended that meeting, carrying with him two hand grenades, to put into
execution his preconceived plan to assassinate President Roxas, he knew fully well that, by throwing one of those
two hand grenades in his possession at President Roxas, and causing it to explode, he could not prevent the
persons who were around his main and intended victim from being killed or at least injured, due to the highly
explosive nature of the bomb employed by him to carry out his evil purpose.
Guillen, testifying in his own behalf, in answer to questions propounded by the trial judge (page 96 of transcript)
supports our conclusion. He stated that he performed the act voluntarily; that his purpose was to kill the President,
but that it did not make any difference to him if there were some people around the President when he hurled that
bomb, because the killing of those who surrounded the President was tantamount to killing the President, in view of
the fact that those persons, being loyal to the President being loyal to the President, were identified with the latter. In
other word, although it was not his main intention to kill the persons surrounding the President, he felt no
conjunction in killing them also in order to attain his main purpose of killing the President.
The facts do not support the contention of counsel for appellant that the latter is guilty only of homicide through
reckless imprudence in regard to the death of Simeon Varela and of less serious physical injuries in regard to
Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang, and that he should be sentenced to the
corresponding penalties for the different felonies committed, the sum total of which shall not exceed three times the
penalty to be imposed for the most serious crime in accordance with article 70 in relation to article 74 of the Revised
Penal Code.
In throwing hand grenade at the President with the intention of killing him, the appellant acted with malice. He is
therefore liable for all the consequences of his wrongful act; for in accordance with article 4 of the Revised Penal
Code, criminal liability is incurred by any person committing felony (delito) although the wrongful act done be
different from that which he intended. In criminal negligence, the injury caused to another should be unintentional, it
being simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939.) In the words of
Viada, "in order that an act may be qualified as imprudence it is necessary that either malice nor intention to cause
injury should intervene; where such intention exists, the act should qualified by the felony it has produced even
though it may not have been the intention of the actor to cause an evil of such gravity as that produced.' (Viada's
Comments on the Penal Code, vol. 7, 5th ed., p.7.) And, as held by this Court, a deliberate intent to do an unlawful
act is essentially inconsistent with the idea of reckless imprudence. (People vs. Nanquil, 43 Phil., 232.) Where such
unlawful act is wilfully done, a mistake in the identity of the intended victim cannot be considered as reckless
imprudence. (People vs. Gona, 54 Phil., 605)
Squarely on the point by counsel is the following decision of the Supreme Court of Spain:
Cuestion 62. Se presenta A, a las ocho de la noche, en el estanco de B a comprar tabaco, y habiendose
negado este a darselo al fiado, se retira a quel sin mediar entre ambos disputa alguna; pero; trnscurrido un
cuarto de hora, hallandose el estanquero despachando a C, se oye la detonacion de un arma de fuego
disparada por A desde la calle, quedando muertos en el acto C y el estanquero; supuesta la no intencion en
A de matar a C y si solo al estanquero, cabe calificar la muerte de este de homicidio y la de c de
imprudencia temeraria? La Sala de lo Criminal de la Auudiencia de Granada lo estimo asi, y condeno al
procesado a catorse anos de reclusion por el homivcidio y a un ao de prision correctional por la
imprudencia. Aparte de que la muerte del estanquero debio calificarse de assesinato y no de homicidio, por
haberse ejecutado con aleviosa. es evidente que la muerte de C, suponiendo que no se propusiera
ejecutaria el procesado, no pudo calificarse de imprudencia teme raria, sino que tambien debio declararsele
responsable de la misma, a tenor de lo puesto en este apartado ultimo del articulo; y que siendo ambas
muertes producidas por un solo hecho, o sea por un solo disparo, debio imponerse al reo la pena del delito
de asesinato en el grado maximo, a tenor de lo dispuesto en el art. 90 del Codigo, o sea la pena de muerte.
Se ve, pues, claramente que en el antedicha sentencia, aparte de otros articulos del Codigo, se infringio por

la Sala la disposicion de este apartado ultimo del articulo muy principalmente, y asi lo declaro el Tribunal
Supremo en S. de 18 junio de 1872. (Gaceta de 1,0 de agosto.) (I Viada, 5th Ed., p. 42.)
Article 48 of the Revised Penal Code provides as follows:
Art. 48. Penalty for Complex Crimes. When a single act constitutes two or more grave or less grave
felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious
crime shall be imposed, the same to be applied in its maximum period.
We think it is the above-quoted article and not paragraph 1 of article 49 that is applicable. The case before us is
clearly governed by the first clause of article 48 because by a single act, that a throwing highly explosive hand
grenade at President Roxas, the accused committed two grave felonies, namely: (1) murder, of which Simeon
Varela was the victim; and (2) multiple attempted murder, of which President Roxas, Alfredo Eva, Jose Fabio, Pedro
Carrillo and Emilio Maglalang were the injured parties.
The killing of Simeon Varela was attended by the qualifying circumstance of treachery. In the case of People vs.
Mabug-at, supra, this court held that the qualifying circumstance of treachery may be properly considered, even
when the victim of the attack was not the one whom the defendant intended to kill, if it appears from the evidence
that neither of the two persons could in any manner put up defense against the attack, or become aware of it. In the
same case it was held that the qualifying circumstance of premeditation may not be properly taken into the account
when the person whom the defendant proposed to kill was different from the one who became his victim.
There can be no question that the accused attempted to kill President Roxas by throwing a hand grenade at him
with the intention to kill him, thereby commencing the commission of a felony by over acts, but he did not succeed in
assassinating him "by reason of some cause or accident other than his own spontaneous desistance." For the same
reason we qualify the injuries caused on the four other persons already named as merely attempted and not
frustrated murder.
In this connection, it should be stated that , although there is abundant proof that , in violation of the provisions of
article 148 of the Revised Penal Code, the accused Guillen has committed among others the offense of assault
upon a person in authority, for in fact his efforts were directed towards the execution of his main purpose of
eliminating President Roxas for his failure to redeem his electoral campaign promises, by throwing at him in his
official capacity as the Chief Executive of the nation the hand grenade in question, yet, in view of the appropriate
allegation charging Guillen with the commission of said offense, we shall refrain making a finding to that effect.
The complex crimes of murder and multiple attempted murder committed by the accused with the single act of
throwing a hand grenade at the President, was attended by the various aggravating circumstances alleged in the
information, without any mitigating circumstance. But we do not deem it necessary to consider said aggravating
circumstances because in any event article 48 of the Revised Penal Code above-quoted requires that the penalty
for the most serious of said crimes be applied in its maximum period. The penalty for murder is reclusion temporalin
its maximum period to death. (Art. 248.)
It is our painful duty to apply the law and mete out to the accused the extreme penalty provided by it upon the facts
and circumstances hereinabove narrated.
The sentence of the trial court being correct, we have no alternative but to affirm it, and we hereby do so by a
unanimous vote. The death sentence shall be executed in accordance with article 81 of the Revised Penal Code,
under authority of the Director of Prisons, on such working day as the trial court may fix within 30 days from the date
the record shall have been remanded. It is so ordered.
Moran, C.J., Ozaeta, Paras, Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes and Torres, JJ., concur.

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