Republic of the Philippines At about 1:00 o'clock in the afternoon of April 24, 1971, the deceased, PC
SUPREME COURT Lt. Guillermo Masana together with PC soldier Virgilio Fidel, Philippine
Manila
EN BANC
G.R. No. L-35156 November 20, 1981
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FLORO RODIL defendant-appellant.
MAKASIAR, J.:
Accused Floro Rodil was found guilty, beyond reasonable doubt, of the
crime of murder by the Circuit Criminal Court of Pasig, Rizal, for the
death of Lt. Guillermo Masana of the Philippine Constabulary.
Accordingly, he was sentenced to death, to indemnify the heirs of the
deceased in the amount of P12,000.00, to pay the amount of P10,000.00
as moral damages and another P10,000.00 as exemplary damages, and
to pay the costs.
The information alleges:
That on or about April 24, 1971, in the Municipality of
Indang, Province of Cavite, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused, armed with a double-bladed dagger, with
evident premeditation and treachery, and with intent to
kill, did, then and there, wilfully, unlawfully, and
feloniously, attack and stab PC Lt. Guillermo Masana
while the latter was in the performance of his official
duties, inflicting upon him stab wounds on the different
parts of his body which directly caused his death.
Contrary to law
From the evidence adduced by the prosecution, We glean the following
facts:
Coast Guard serviceman Ricardo Ligsa and Patrolman Felix Mojica of
Indang, Cavite, was having lunch inside a restaurant in front of the
Indang market (pp. 2,3, t.s.n., Oct. 30, 1971; pp. 10, 19, t.s.n., Nov. 22,
1971; p. 21, t.s.n., Jan. 20, 1972). While they were eating, they saw,
through the glass panel of the restaurant, appellant outside the restaurant
blowing his whistle. Their attention having been drawn to what appellant
was doing, Lt. Masana then in civilian clothing, accompanied by PC
soldier Virgilio Fidel, went out of the restaurant, approached appellant
and asked the latter, after Identifying himself as a PC officer, whether the
gun that was tucked in his waist had a license. Instead of answering the
question of Lt. Masana appellant moved one step backward and
attempted to draw his gun. PC soldier Virgilio Fidel immediately grabbed
appellant's gun from appellant's waist and gave it to Lt. Masana After
that, Lt. Masana told the appellant to go inside the restaurant. PC soldier
Virgilio Fidel followed. Lt. Masana and the appellant occupied a separate
table about one and one-half (1 1/2) meters from the table of Lt.
Masana's three companions Fidel, Ligsa and Mojica (p. 10, t.s.n., Nov.
22, 1971). After the two were already seated, Lt. Masana placed
appellant's gun on the table. After that Lt. Masana pulled out a piece of
coupon bond paper from his pocket and wrote thereon the receipt for the
gun, and after signing it, he asked appellant to countersign the same, but
appellant refused to do so. Instead, he asked Lt. Masana to return the
gun to him. Lt. Masana rejected appellant's plea, telling, the latter that
they would talk the matter over in the municipal building of Indang,
Cavite. When Lt. Masana was about to stand up, appellant suddenly
pulled out a double-bladed dagger and with it he stabbed Lt. Masana
several times, on the chest and stomach causing his death several hours
thereafter (pp. 4, 5, 6, 7, 8, t.s.n., Oct. 30, 1971; pp. 10, 11, 12, t.s.n.,
Nov. 22, 1971).
While the stabbing incident was taking place, the three companions of Lt.
Masana PC soldier Virgilio Fidel, Coast Guard Ricardo Ligsa and
policeman Felix Mojica who were all seated at a separate table about
one and one-half (1 1/2) meters away from that occupied by the accused
and Lt. Masana stood up to assist Lt. Masana but Chief of Police Primo
Panaligan of Indang, Cavite, who happened to be taking his lunch in the
same restaurant, was quicker than any of them in going near the
combatants and embraced and/or grabbed the accused from behind, and
thereafter wrested the dagger from the accused-appellant. Immediately
thereafter, the Chief of Police brought the accused to the municipal
building of Indang, Cavite (p. 8, t.s.n., Oct. 30, 1971; pp. 19-20, t.s.n.,
Nov. 22, 1971; pp. 26, 28, t.s.n., Jan. 20, 1972), while the companions of
Lt. Masana brought the latter to the V. Luna Hospital in Quezon City
where he expired several hours later as a result of the stab wounds
inflicted by the accused (pp. 21, 22, t.s.n., Nov. 22, 1971). Dr. Felicisimo
del Rosario, Medico-Legal Officer of the Armed Forces of the Philippines,
conducted an autopsy of the cadaver of Lt. Masana and made the
following findings, which are embodied in his Report, Exhibits "D" and "D-
1 " (pp. 88-89, rec.), and which reads as follows:
Postmortem findings.
General:
Fairly developed and nourished male subject in rigor
mortis with postmortem lividity over the dependent
portions of the body. Pupils are dilated. Finger and toe
tips are pale. There is an exploratory laparotomy incision
at the abdomen, measuring 21 cm. long, 3 cm. left of the
anterior midline, with eighteen (18) stitches applied. There
are surgical incisions at the left and right abdomen,
measuring 2 cm. long, 9 cm. from the anterior midline and
2 cm. long, 6.5 cm. from the anterior midline with two (2)
stitches applied and a rubber drain sticking out of each,
respectively.
TRUNK:
(1) Stab wound, left chest, measuring 0.9 by 0.4 cm., 5
cm. from the anterior midline, 128 cm. above the heel, 1
cm. deep, directed posterior wards and slightly upwards,
passing superficially between muscles and tissues.
(2) Stab wound, left chest, measuring 1.2 by 0.4 cm., 9
cm. from the anterior midline, 121 cm. above the heel,
5.5. cm. deep, directed posterior wards, downwards and
to the left, lacerating the muscles at the 4th intercostal
space.
(3) Stab wound, abdomen, measuring 0.9 by 0.2 cm. just
left of the anterior midline, 96 cm. above the heel 11 cm.
deep, directed posterior wards, upwards and to the left,
perforating the greater curvature of the stomach and the
gastric vessels, grazing the liver, perforating the
diaphragm and infero-medial border of the lower lobe of
the right lung.
(4) Impact abrasion, right scapular region, measuring 2 by
0.2 cm., 12 cm. from the posterior midline, 127 cm. above
the heel.
UPPER EXTREMITIES:
(5) Incised wound, anterior aspect of the distal third of the
left arm, measuring 3 by 0.5 cm., just medial to its anterior
midline.
(6) Incised wound, posterior aspect of the proximal
phalange of the right index finger, measuring 1 by 0.2
cm., just medial to its posterior midline.
Five hundred (500) cc. blood and blood clots accumulated
in the thoracic cavity.
There are four (4) sutures applied at a lacerated wound at
the greater curvature of the stomach.
There is nothing remarkable in the unaffected organs
internally.
REMARKS:
Cause of death is cardio-respiratory arrest due to severe
shock and intrathoracic hemorrhage as a result of multiple
stab wounds of the body, perforating the stomach, gastric
vessels, liver, diaphragm and lower lobe of the right lung.
Claiming self-defense, the accused, on the other hand, maintains and
relies on the following facts:
At about 1: 00 o'clock in the afternoon of April 24, 1971, the accused and
his wife were in a restaurant near the market place of Indang, Cavite, in
order to take their lunch. They had just come from Mandaluyong, Rizal
where they reside (pp. 21, 22, t.s.n., Dec. 10, 1971). Inside the
restaurant, the accused saw three persons to his right, eating, while to
his left he saw a person whom he later learned to be Lt. Guillermo
Masana drinking beer alone. While the accused and his wife were waiting
for the food to be served, Lt. Masana approached him and asked him
whether he was Floro Rodil and whether he was a member of the Anti-
Smuggling Unit. After receiving an affirmative answer, Lt. Masana invited
the accused to join him in his table. The accused accepted the invitation
so the two moved over to the officer's table where the deceased offered
beer to the accused who, however, refused saying he was still hungry. In
the course of their conversation, Lt. Masana told the accused not to
report any matter about smuggling to the PC. The accused informed the
officer that he had not reported any smuggling activity to the authorities.
Lt. Masana then asked the accused for his identification card as a
member of the Anti-Smuggling Unit, which the latter did by showing his ID
card, Exhibit " 1 ", bearing his picture and indicating that he was an officer
of the Anti-Communist League of the Philippines (pp. 62-68, t.s.n., Dec.
7, 1971).
Thereupon, Lt. Masana told the accused that the latter's ID was fake, and
after the accused insisted that it was genuine, Lt. Masana tried to take it
away from the accused when the latter was about to put it back in his
pocket. Because of his refusal to give his Id card to Lt. Masana the latter
got mad and, in an angry tone of voice, demanded: "Will you give it to me
or not?" (P. 7 1, Ibid). Still the accused refused to surrender his ID to Lt.
Masana Thereupon, the latter pulled a gun from his waist and hit the
accused on the head with its handle two (2) time Immediately, blood
gushed from his head and face. When Lt. Masana was about to hit the
accused for the third time, the latter parried the right hand of the officer,
pulled his "pangsaksak" and stabbed the officer two or three times and
then pushed him away from him and ran out of the restaurant (pp.
74,75,79, Ibid).
The accused went in the direction of the municipal building of Indang,
Cavite, where he intended to surrender to the authorities. But on his way,
he met Primo Panaligan, the Chief of Police of Indang, Cavite. The Chief
of Police asked him why his head and face were bloody and he answered
that he was hit by Lt. Masana on the head with a gun (pp. 86, 89,
t.s.n., Ibid). If here upon, the Chief of Police asked somebody to
accompany the accused to the municipal building. Arriving there, one
Victor, a policeman of Indang, Cavite, accompanied him to Dr. Ruben
Ochoa, whose clinic was just across the street where the municipal
building is located (p. 9, t.s.n., Ibid; p. 4, t.s.n., Dec. 15, 1971). After he
was given first aid treatment, he was brought back by the Indang
policeman to the municipal, building where he was detained for two days
before he was picked up by the Philippine Constabulary operatives and
transferred to the 121th PC Headquarters in Tagaytay City (pp. 90-91,
t.s.n., Ibid; pp. 4, 39, 40, t.s.n., Dec. 10, 1971; p. 6, t.s.n., Dec. 15, 1971;
p. 5, t.s.n., Jan. 20, 1972).
After due trial, the court a quo rendered a decision sentencing the
accused as heretofore stated.
I
Self-defense is an affirmative allegation that must be proven by clear,
sufficient, satisfactory and convincing evidence (People vs. Libed 14
SCRA 410, 413; People vs. Mendoza, 13 SCRA 11, 17; People vs.
Solaa, 6 SCRA 60, 65-66; People vs. Davis, 1 SCRA 473; 477; People
vs. Paras, 80 Phil. 149; 152; People vs. Berio 59 Phil. 533; 536; People
vs. Gimena, 59 Phil. 509, 514). Moreover, to prove justification, the
accused must rely on the strength of his own evidence and not on the
weakness of that of the prosecution, for even if it were weak, it could not
be disbelieved after the accused had admitted the killing (People vs.
Llamera, 51 SCRA 48, 57; People vs. Talaboc, 30 SCRA 87; People vs.
Navarro, 25 SCRA 491; 496; People vs. Solaa, 6 SCRA 60, 65-66;
People vs. Espenilla, 62 Phil. 264, 270; People vs. Apolinario, 58 Phil
586-588; People vs. Ansoyon, 65 Phil. 7 7 2). The rationale for this
jurisprudence is that, having admitted the wounding or killing of the
victim, the accused must be held criminally liable for the crime unless he
establishes to the satisfaction of the court the fact of legitimate self-
defense.
In the case at bar, the accused contends that it was the deceased, Lt.
Guillermo Masana who committed unlawful aggression when the latter hit
him on his head with the handle of his gun after he refused to surrender
his (accused's) ID to him.
This claim does not merit belief.
The accused claims that after he refused to give his ID to the deceased
because the same was his and he also spent money for it, the latter hit
him with the handle of his (deceased's) gun. WE cannot perceive how
this refusal of the accused could have provoked or enraged the deceased
to the extent of initiating the aggression by drawing his pistol and hitting
the accused with its butt, knowing that the accused was no longer armed
after the latter's gun had earlier been taken away from him. Besides, an
agent of authority, like the deceased, ordinarily is not authorized to use
force, except in an extreme case when he is attacked, or subject to active
resistance, and finds no other way to comply with his duty or cause
himself to be obeyed by the offender. Furthermore, the records reveal an
unrebutted fact to the effect that the deceased was unarmed when the
incident happened, he being then on leave. As a matter of fact, he was
then in civilian clothing (pp. 29-30, t.s.n., Jan. 20, 1972). WE are,
therefore, inclined to believe that it was the accused who had every
reason to be resentful of the deceased and to be enraged after the
deceased refused to heed his plea that his gun be returned him; because
he might be prosecuted for illegal possession of firearms. Accordingly,
We are constrained to draw the inescapable conclusion that it was the
accused, not the deceased, who initiated the aggression which ended in
the fatal wounding of the deceased resulting in his death.
The accused further claims that he was hit twice by the deceased before
he parried the third blow. This claim is belied by the record. During the
trial, the court a quo asked the accused to show the scar produced by the
injuries inflicted by the deceased when he refused to give his ID thus
Court
Q Where is that scar?
(Witness showing his right side of the
head to the Court)"
[pp. 86,88, t.s.n., Dec. 7, 1971].
Dr. Ruben Ochoa who treated the injuries of the accused corroborated
the foregoing testimony in his medical findings, Exhibit "3", which reads:
Injuries:
(1) lacerated wound 1/2 inch, parietal region.
(2) lacerated wound, 1 1/2 inches, rt ear lobe
(3) contusion, right mastoid area [Exh. "3"; p. 116, rec] .
The record reveals that the deceased was a right-handed person (pp. 76-
77, t.s.n., Dec. 7, 1971). It also shows that before the stabbing incident
took place, the deceased and the accused were facing each other. If that
was the case, and considering that the deceased was, according to the
accused, holding the gun with his right hand, why was the accused hit on
the right side of his head and and on his right ear lobe WE find that this
particular claim of the accused that it was the deceased who first hit him
twice with the handle of his gun before parrying the third blow and then
stabbing the latter is definitely belied not only by the location of the scar
but also by the medical finding of Dr. Ochoa aforequoted. Indeed, if the
protagonists were facing each other, and it appearing that they were both
right- handed (p. 13, t.s.n., Nov. 22, 1971), the blow given by one, if not
parried by the other, would perforce land on the left, and not on the right,
side of the body of the recipient of the blow. WE, therefore, reject such
claim for being improbable, the same being contrary to the natural course
of human behavior.
The fact of the matter, however, as testified to by state witness PC soldier
Virgilio Fidel, is that the victim parried with both hands the thrust of the
appellant with such force that appellant bumped his head on the edge of
the table causing blood to ooze from the resulting injury on his head.
When the accused allegedly met the Chief of Police of Indang, Cavite, on
his way to the municipal building from the scene of the stabbing incident
purportedly to surrender to the authorities, he claims that he told the
Chief of Police that Lt. Masana hit him on his head with the handle of his
(Masana's) gun. On his return from the clinic of Dr. Ochoa where his
injuries were treated, he was detained in the municipal building of Indang,
Cavite for two days before he was transferred to the Tagaytay PC
Headquarters. During all this time, he did not give any written statement,
much less inform any PC or other police agency that he stabbed Lt.
Masana in self-defense. It was only on July 8, 1971. after the lapse of
more than two and one-half (2 1/2) months that he claimed self-defense
during the preliminary investigation of the case before the municipal
judge of Indang, Cavite (pp. 44, t.s.n., Dec. 10, 1971). If the accused had
really acted in self-defense, he would surely have so informed the Chief
of Police at the first opportunity. He only allegedly told the Chief of Police,
who allegedly asked him why his head and face were bloody, that Lt.
Masana hit him with a gun. He did not tell the Police Chief that he was
surrendering for stabbing the deceased in self-defense. This claim of the
accused made before the municipal judge of Indang, Cavite, on July 8,
1971 aforesaid constitutes an exculpatory statement made so long after
the crime was committed on April 24, 1971. Such claim does not deserve
credence since the same is obviously an afterthought, which cannot
overthrow the straightforward testimony of prosecution witnesses PC
soldier Virgilio Fidel and Coast Guard serviceman Ricardo Ligsa both
disinterested and unbiased witnesses, whose testimony as peace
officers, in the absence of any showing as to any motive that would impel
them to distort the truth, must be afforded full faith and credit as a whole.
The fact that the chief of police detained the accused that same day after ATTY. MUOZ
he was treated by Dr. Ochoa, confirms the testimony of the state
witnesses that the police was present during the incident between the Q You said that Floro Rodil's head was
appellant and the victim and that the police chief embraced appellant and bumped on the edge of a table and you
grabbed the knife from appellant, whom he thereafter brought to the saw blood oozing from his head, is that
municipal building. correct?

II A Yes, sir.

Was the crime committed murder or homicide merely or murder or Q Who bumped the head of Rodil on the
homicide complexed with assault upon an agent of authority? table?

According to the Solicitor General, the crime committed was murder A When Masana parried his stab with his
because "it was established by the prosecution that during the stabbing hands he accidentally bumped his head
incident, appellant suddenly and without giving the victim a chance to on the table.
defend himself, stabbed the latter several times with a dagger, inflicting
upon mortal wounds on the chest and stomach. ...Needless to say, such Q Is it not a fact that Floro Rodil is much
a sudden and unexpected attack with a deadly weapon on an unarmed bigger than Lt. Masana
and unsuspecting victim, which made it impossible for the latter to flee or
defend himself before the fatal blow is delivered, is alevosia or treachery"
A Yes, sir.
(p. 14, Appellee's brief).
Q You mean, by simple parrying, Floro
In support of his contention, the Solicitor General cited the cases of U.S.
Rodil was pushed to the extent that he
vs. Cornejo (28 Phil. 475); People vs. Palomo (43 O.G. No. 10, 4190).
bumped his head on the table?
WE do not agree with the Solicitor General. Alevosia or treachery is
A The force of Lt. Masana might have
belied by the following testimony of Virgilio Fidel, star witness for the
been strong in parrying.
prosecution:
xxx xxx xxx
COURT
Q When the head of Rodil bumped on the
Q What is the truth?
table, was Lt. Masana already stabbed?
A The truth is that when I saw that Floro
A It could be that he was already stabbed
Rodil stabbed Lt. Guillermo
or he was not yet stabbed.
Masana, Masana parried him and his
head (Rodil's head) bumped on the edge
of a table; that is why he sustained an pp 30-31, 33, t.s.n., Jan. 20, 1972; emphasis supplied].
injury and blood oozed from his head (pp.
8-9, t.s.n., Jan. 20, 1972; emphasis After a thorough analysis of the aforequoted portions of the testimony of
supplied). Virgilio Fidel, one of the prosecution witnesses, WE can only conclude
that the assailant and the victim were indeed face to face when the
Then, on cross-examination, the same witness testified: stabbing took place. As such the attack was not treacherous because the
victim was able to ward off the same with his hand. As a matter of fact,
the force he used in warding off the attack was so strong that the
accused bumped his head on a table nearby, causing injuries to him
which necessitated medical treatment. In short, the attack on the victim
was made on the spur of the moment. The suddenness of the attack
does not by itself suffice to support a finding of treachery (People vs.
Torejas, et al., 43 SCRA 158, 167). Besides, the record failed to show
that the accused made any preparation to kill his victim so as to insure
the commission of the crime, making it at the same time possible or hard
for the victim to defend himself or retaliate (People vs. Saez, 1 11 Phil.
546, 553, citing the case of People vs. Tumaob, 83 Phil. 738). Neither
does it show that the accused employed means directly and specially
tending to insure the killing without risk to himself. On the contrary, it
shows that the accused was easily within striking distance of his three
companions, two of whom were police officers. Furthermore, there was
an altercation between the accused and the victim about the confiscation
by the latter of the gun belonging to the former, and at the moment when
the victim was about to stand up, the accused drew a knife from his
pocket and with it stabbed the victim in the chest. Clearly, therefore, the
impelling motive for the attack by appellant on his victim was the latter's
performance of official duty, which the former resented. This kind of
evidence does not clearly show the presence of treachery in the
commission of the crime. Alevosia is not to be presumed, but must be
proved as conclusively as the act which it qualifies (People vs. Abril, 51
Phil. 670, 675). This is so because in the explicit language of the Revised
Penal Code, alevosia or treachery exists when the offender commits any
of the crimes against the person, employing means, methods, or forms in
the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the
offended party might make [Art. 14, par. 16, Revised Penal Code].
While the evidence definitely demonstrated that appellant knew because
the victim, who was in civilian clothing, told him that he was an agent of a
person in authority; he cannot be convicted of the complex crime of
homicide with assault upon an agent of a person in authority, for the
simple reason that the information does not allege the fact that the
accused then knew that, before or at the time of the assault, the victim
was an agent of a person in authority. The information simply alleges that
appellant did attack and stab PC Lt. Guillermo Masana while the latter
was in the performance of his official duties, ..." Such an allegation
cannot be an adequate substitute for the essential averment to justify a
conviction of the complex crime, which necessarily requires the
imposition of the maximum period of the penalty prescribed for the graver
offense. Like a qualifying circumstance, such knowledge must be
expressly and specifically averred in the information; otherwise, in the
absence of such allegation, the required knowledge, like a qualifying
circumstance, although proven, would only be appreciated as a generic
aggravating circumstance. Applying this principle, the attack on the
victim, who was known to the appellant as a peace officer, could be
considered only as aggravating, being "in contempt or with insult to the
public authorities" (Par. 1, Art. XIV of the Revised Penal Code), or as an
"insult or in disregard of the respect due the offended party on account of
his rank, ..." (par. 3, Art. XIV, Revised Penal Code).
It is essential that the accused must have knowledge that the person
attacked was a person in authority or his agent in the exercise of his
duties, because the accused must have the intention to offend, injure, or
assault the offended party as a person in authority or agent of a person in
authority (People vs. Villaseor 35 SCRA 460 [19701, People vs. Rellin
72 Phil. 1038 [1947]; US vs. Alvear et al., 35 Phil. 626 [1916]).
In the case of People vs. Balbar (21 SCRA 1119, Nov. 29, 1967), it was
held that failure to expressly alleged in the information that the accused
had knowledge that the person attacked was a person in authority does
not render the information defective so long as there are facts alleged
therein from which it can be implied that the accused knew that the
person attacked was a person in authority. Thus, the information for
Direct Assault upon a person in authority reads as follows:
The undersigned Assistant Provincial Fiscal accuses
Tiburcio Balbar of the crime of Assault upon a Person in
Authority, committed as follows:
That on or about the 29th day of August, 1960, in Barrio
Cumba, Municipality of Lian, Province of Batangas,
Philippines, and within the jurisdiction of this Honorable
Court, the abovenamed accused did then and there
wilfully, unlawfully and feloniously assault Miss Ester
Gonzales, a public school teacher in the school bonding
of Lian, duly qualified and appointed as such and while in
the performance of her official duties or on the occasion
therefor, by then and there pulling his dagger, embraced
and kissed. and repeatedly trying to embrace and kiss the
said teacher, Miss Ester Gonzales. That the crime was
committed with the aggravating circumstances of having
committed it inside the school building and during school
classes.
 Contrary to law.
And the ruling of the Court was:
Direct assault is committed 'by any person or persons
who, without a public uprising, ... shall attack, employ
force, or seriously intimidate or resist any person in
authority or any of his agents, while engaged in the
performance of official duties, or on occasion of such
performance' (See Art. 148, Revised Penal Code).
By express provision of law (Com. Act No. 578, now part
of Article 152 of the Revised Penal Code, as amended by
Republic Act No. 1978), "teachers, professors, and
persons charged with the supervision of public or duly
recognized private schools, colleges and universities shall
be deemed persons in authority, in applying the
provisions of article 148." This special classification is
obviously intended to give teachers protection, dignity,
and respect while in the performance of their official
duties. The lower court, however, dismissed the
information on the ground that there is no express
allegation in the information that the accused had
knowledge that the person attacked was a person in
authority. This is clearly erroneous.
Complainant was a teacher. The information sufficiently
alleges that the accused knew that fact, since she was in
her classroom and engaged in the performance of her
duties. He therefore knew that she was a person in
authority, as she was so by specific provision of law. It
matters not that such knowledge on his part is not
expressly alleged, complainant's status as a person in
authority being a matter of law and not of fact, ignorance
thereof could not excuse non- compliance on his part
(Article 3, Civil Code). This article applies to all kinds of
domestic laws, whether civil or penal (De Luna vs.
Linatoc, 74 Phil 15) and whether substantive or remedial
(Zulueta vs. Zulueta, 1 Phil. 254) for reasons of
expediency, policy and necessity.
But, in the case of People vs. CFI of Quezon, Branch V (68 SCRA 305,
Nov. 28, 1975), the information for Direct Assault reads:
That on or about the 17th day of January, 1974, at Barrio
Languyin, Municipality of Potillo, Province of Quezon,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, Ernesto Busto, Paulo
Coralde, Dony Grande and Jose Astjada each of whom
was armed with a piece of wood, except Paulo Coraide
conspiring and confederating together and mutually
helping one another, did then and there wilfully, unlawfully
and feloniously attack, assault, box and strike with said
pieces of wood one Rufino Camonias a councilman of
barrio Languyin of said municipality, duly elected and
qualified as such while said councilman was engaged in
the actual performance of his duties.
The trial court dismissed the same on the ground that:
Of importance in this case is the lack of allegation in the
complaint or in the information that the offended party
was an agent of a person in authority and that such fact
was known to the accused. The absence of such
allegation is fatal in this case."
The People appealed to this Court through a petition for review on
certiorari.
This Court held that the fiscal's proper course of action is not a petition
for review on certiorari but the refiling of a valid information against the
accused, for the following considerations:
The Solicitor General in his comment of November 4,
1975 duly observed that '(I)t is patent that the acquittal of
the accused herein is not on the merits. There is want of
factual finding upon which their conviction or acquittal
could have been based.'
It need only be observed that contrary to the fiscal's
contention, the information was deficient in that it did not
allege an essential element of the crime of direct assault
that the accused had knowledge of or knew the position
of authority held by the person attacked, viz. that of a
barrio councilman (and hence the agent of a person in
authority under Article 152 of the Revised Penal Code as
amended by Republic Act No. 1978) [See U.S. vs. Alvear
35 Phil. 626; People vs. Rellin 77 Phil. 1038; Vol. 11,
Padilla's Revised Penal Code, 10th Ed., p. 225].
What was held in People vs. Balbar 21 SCRA, 119,1123,
cited by the fiscal is that it is sufficient that the information
alleged that the accused knew the position of authority,
held by the offended party, in that case a public school
teacher, then engaged in the performance of her official
duties, and that it is not necessary to allege further that
the accused also knew that such position was that of a
person in authority, since 'this is a matter of law' thus:
Complainant was a teacher. The
information sufficiently alleges that the
accused knew that fact, since she was in
her classroom and engaged in the
performance of her duties. He therefore
knew that she was a person in authority,
as she was so by specific provision of law.
It matters not that such knowledge on `his
part is not expressly alleged,
complainant's status as a person in
authority being a matter of law and not of
fact, ignorance whereof could not excuse
non-compliance on his part (Article 3, Civil
Code). This article applies to all kinds of
domestic laws, whether civil or penal (De
Luna vs. Linatoc, 74 Phil. 15) and whether
substantive or remedial (Zulueta vs.
Zulueta, 1 Phil, 254) for reasons of
expediency, policy and necessity.
Since the 'decision' of acquittal was really a mere
dismissal of the information for failure to charge an
offense and was not a decision on the merits with factual
findings as per the trial judge's own disavowal it is patent
that the fiscal's proper course is not the present petition
but the refiling of a valid information against respondents-
accused, as herein indicated.
ACCORDINGLY, the petition is dismissed without
prejudice to the refiling of a valid information against
respondents-accused as hereinabove indicated
(emphasis supplied).
The ruling in the aforementioned case of People vs. CFI of Quezon,
etc., supra, applies to the instant case; because the information in the
former is strikingly similar to the information in the latter and does not
allege facts from which inference can be deduced that the accused knew
that the person assaulted is a person, or an agent of a person, in
authority.
The aggravating circumstance of disregard of rank should be appreciated
because it is obvious that the victim, PC. Lt. Masana Identified himself as
a PC officer to the accused who is merely a member of the Anti-
Smuggling Unit and therefore inferior both in rank and social status to the
victim.
The term "rank" should be given its plain, ordinary meaning, and as such,
refers to a high social position or standing as a grade in the armed forces
(Webster's Third New International Dictionary of the English Language
Unabridged, p. 1881); or to a graded official standing or social position or
station (75 CJS 458); or to the order or place in which said officers are
placed in the army and navy in relation to others (Encyclopedic Law
Dictionary, Third Edition, Walter A. Shumaker and George Foster
Longsdorf, p. 90); or to the designation or title of distinction conferred
upon an officer in order to fix his relative position in reference to other
officers in matters of privileges, precedence, and sometimes of command
or by which to determine his pay and emoluments as in the case of army
staff officers (Bouvier's Law Dictionary, Third Edition, p. 2804); or to a
grade or official standing, relative position in civil or social life, or in any
scale of comparison, status, grade, including its grade, status or scale of
comparison within a position (Vol. 36, Words and Phrases, Permanent
Edition, p. 100).
Thus, rank aggravated the killing of a staff sergeant by his corporal
(People vs. Mil 92 SCRA 89, 105-106, July 30, 1979), the killing of the
Assistant Chief of Personnel Transaction of the Civil Service Commission
by a clerk therein (People vs. Benito, 62 SCRA 351, 357-358, Feb. 13,
1975), the murder by a pupil of his teacher (U.S. vs. Cabling, 7 Phil. 469.
474; People vs. Aragon & Lopez, 107 Phil. 706, 709), the murder of a
municipal mayor (People vs. Lopez de Leon, et al., 69 Phil. 298), the
murder -of a city chief of police by the chief of the secret service division
(People vs. Hollero 88 Phil. 167), assault upon a 66-year old District
Judge of the Court of First Instance by a justice of the peace (People vs.
Torrecarreori CA 52 OG 7644), the killing of a Spanish consul by his
subordinate a mere chancellor (People vs. Godinez, 106 Phil. 597,
606607), and the killing of an army general (People vs. Torres, et al., L-
4642, May 29, 1953).
As explained by Mr. Justice Mariano Albert, then of the Court of Appeals,
those "generally considered of high station in life, on account of their rank
(as well as age or sex), deserve to be respected. Therefore, whenever
there is a difference in social condition between the offender and the
offended party, this aggravating circumstance sometimes is present"
(Albert M.A. The Revised Penal Code Annotated, 1946 Ed., p. 109).
The difference in official or social status between a P.C. lieutenant and a
mere member of an anti-smuggling unit, is patent.
If the accused herein were charged with the complex crime of murder
with assault against an agent of a person in authority, and not merely
murder, then the aggravating circumstance of disregard of rank or
contempt of or insult to public authority cannot be appreciated as
aggravating because either circumstance is inherent in the charge of
assault against a person in authority or an agent of a person in authority.
But in the case at bar, the appellant is accused of murder only.
Consequently, either aggravating circumstance should be considered in
the imposition of the penalty.
Thus, in the following cases where the charge was merely murder or
frustrated murder, the aggravating circumstance of disregard of rank was
appreciated:
(1) People vs. Benito, supra the appellant, a clerk in the Civil Service
Commission, was charged with and convicted of the murder of the
assistant chief of the personnel transaction of the said Commission;
(2) People vs. Torres, et al., supra the appellants were charged with
and convicted of murder for the death of Army Col. Valentin Salgado and
attempted murder for the injuries inflicted on Army Gen. Mariano
Castaneda;
(3) People vs. Valeriano, et al. appellants were accused and convicted
of robbery with homicide for the killing of District Judge Bautista of the
Court of First Instance of Pampanga [90 Phil. 15, 34-35]; and
(4) People vs. Hollero supra where the accused chief of the Secret
Division of the Bacolod City Police Department was convicted of murder
for the killing of the chief of police.
The aggravating circumstance of contempt of, or insult to, public authority
under paragraph 2 of Article 14 of the Revised Penal Code can likewise
be appreciated in the case at bar.
The evidence of the prosecution clearly established that Chief of Police
Primo Panaligan of Indang was present as he was taking his lunch in the
same restaurant when the incident occurred.
As a matter of fact, the said chief of police was the one who embraced or
grabbed the accused from behind, wrested the dagger from him and
thereafter brought him to the municipal building of Indang. And appellant
admittedly knew him even then as the town chief of police, although he
now claims that he went to the municipal building to surrender to the chief
of police who was not allegedly in the restaurant during the incident.
While it is true that in the cases of U.S. vs. Rodriguez, et al. (19 Phil. 150,
157-158), People vs. Siojo (61 Phil. 307, 317), and People vs. Verzo (21
SCRA 1403), this Court ruled that the term public authority refers to a
person in authority and that a PC lieutenant or town chief of police is not
a public authority but merely an agent of a person in authority; there is
need of re-examining such a ruling since it is not justified by the
employment of the term public authority in aforesaid paragraph 2 of
Article 14 instead of the term person in authority which is specifically
used in Articles 148 and 152 of the Revised Penal Code. There is no
extended reasoning of the doctrine enunciated in the aforesaid three (3)
cases why the phrase public authority should comprehend only persons
in authority. The lawmaker could have easily utilized the term "persons in
authority" in the aforesaid paragraph 2 of Article 14 in much the same
way that it employed the said phrase in Articles 148 and 1452. The
lawmaker must have intended a different meaning for the term public
authority, which may however include, but not limited to persons in
authority.
Under the decided cases, a municipal mayor, barrio captain, barrio
lieutenant or barangay captain is a person in authority or a public
authority. Even a public school teacher is now considered a person in
authority under CA 578 amending Article 152 of the Revised Penal Code
(Sarcepudes vs. People, 90 Phil 228). So is the town municipal health
officer (People vs. Quebral et al., 73 Phil 640), as well as a nurse, a
municipal councilor or an agent of the Bureau of Internal Revenue
(People vs. Yosoya, CA-GR No. 8522-R, May 26, 1955; People vs.
Reyes, et al O.G.S. 11 p. 24).
The chief of police should therefore be considered a public authority or a
person in authority; for he is vested with jurisdiction or authority to
maintain peace and order and is specifically duty bound to prosecute and
to apprehend violators of the laws and municipal ordinances, more than
the aforementioned officials who cannot prosecute and who are not even
enjoined to arrest malefactors although specifically mentioned as persons
in authority by the decided cases and by Article 152 of the Revised Penal
Code as amended by R.A. 1978 of June 22, 1957. The town chief of
police heads and supervises the entire police force in the municipality as
well as exercises his authority over the entire territory of the municipality,
which is patently greater than and includes the school premises or the
town clinic or barrio, to which small area the authority or jurisdiction of the
teacher, nurse, or barrio lieutenant, respectively, is limited.
With two aggravating circumstances and no mitigating circumstance, the
appellant should therefore be condemned to suffer the maximum period
of reclusion temporal the penalty prescribed for homicide.
WHEREFORE, HAVING BEEN FOUND GUILTY BEYOND
REASONABLE DOUBT OF HOMICIDE AGGRAVATED BY CONTEMPT
FOR OR INSULT TO A PUBLIC AUTHORITY OR DISREGARD OF THE
RESPECT DUE THE OFFENDED PARTY ON ACCOUNT OF HIS
RANK, APPELLANT FLORO RODIL IS HEREBY SENTENCED TO
SUFFER AN INDETERMINATE TERM OF IMPRISONMENT RANGING
FROM 12 YEARS OF RECLUSION TEMPORAL AS MAXIMUM.
THUS MODIFIED, THE JUDGMENT APPEALED FROM IS HEREBY
AFFIRMED IN ALL OTHER RESPECTS.
Aquino, Concepcion Jr., Fernandez and Guerrero, JJ., concur.
Fernando, C.J., concur in the result.
Separate Opinions
TEEHANKEE, J., concurring:
I concur with the judgment's imposition of the maximum penalty for
homicide, although I join Mme. Justice Herrera's partial dissent insofar as
she holds that the aggravating circumstance of contempt of or insult to
the public authorities may not be appreciated. However, disregard of rank
was properly appreciated as a generic aggravating circumstance, and
hence the maximum penalty for homicide is properly imposed in the
absence of any mitigating circumstance.
Barredo, J., concur.
MELENCIO-HERRERA, J., dissenting:
I believe that neither the aggravating circumstance of contempt of, or
insult to the public authorities under Article 14, par. 2 of the Revised
Penal Code, nor that of insult or disregard of the respect due to the
offended party on account of his rank under Article 14, par. 3 of the same
Code, is applicable to the present case.
1. For the circumstance of contempt of, or with insult to, public authorities
to be considered aggravating, it is essential (a) that the crime is
committed in the presence of a public authority, not a mere agent of the
authorities (People vs. Siojo, 61 Phil. 307 [19351; People vs. Verzo, et al
21 SCRA 1403 [1967]; and (b) that the public authority is engaged in the
exercise of his functions and is not the person against whom the crime is
committed (People vs. Siojo, citing U.S. vs. Rodriguez, 19 Phil. 150 [191];
Decision of the Supreme Court of Spain dated January 24, 1881, 1 Viada
310), nor the one injured by the commission of the offense (People vs.
Pardo, 79 Phil. 568 [1947]).
In this case, Lt. Guillermo Masana of the Philippine Constabulary is not a
public authority nor a person in authority as these terms are defined by
Article 152, par. 1 of the Revised Penal Code for he is not directly vested
with jurisdiction, that is, power or authority to govern and execute the
laws or to hear and decide a cause; he is a mere agent of a person in
authority as defined by Article 152, par. 2 of the Revised Penal Code, he
being a member of the Philippine Constabulary which is a government
military agency in charge of the maintenance of public order and the
protection and security of fife and property. In fact, the Decision itself
calls him an agent of a person in authority (p. 13).
And even if Lt. Masana were a person in authority, this aggravating
circumstance cannot be taken into account because it is he himself who
is the offended party (People vs. Siojo, supra).
2. Neither can the second circumstance, that of disregard of the respect
due to rank, be made to apply. It is not the existence alone of rank of the
offended party that determines the presence of this aggravating
circumstance. There must be a difference in the social condition of the
offender and the offended party.
El concepto de dignidad en su aspects general no esta
constituido solo por el caracter de authoridad solo por la
funcion publica o cargo que desempene el ofendido sino
tambien pro la diferencia de condicion social entre la
victims y el ofensor ... (Cuello Calon, Derecho Penal
Decimotercera edicion Tomo I, p. 554).
Where the offender and the offended party are of the same rank, this
aggravating circumstance does not apply.
Las personas constituidas en dignidad, y que por esta
razon merecen mayor respeto, son las que generalmente
se consideran por todo el mundo como superiores o mas
elevadas que el que comets el delito: tales son los
sacerdotes y las Autoridades respecto de los particulares,
los maestros con relacion a sus discipulos, los
guardadores respecto de sus pupilos, etc. Siempre, pues,
que hay diferencia de condicion social entre el ofensor y
el ofendido, concurrira la agravante de este numero, mas
no cuando hay igualdad Asi pues, si un Sacerdote o un
Magistrado calumnian a otro Sacerdote o Magistrado
respectivamente, no existira la circunstancia de
agravacion que comentamos. (Viada Codigo Penal
Reformado de 1870, Tomo II, p. 316).
The provision contemplates such a different in rank as that of
a teacher where the offender is a pupil (U.S. vs. Cabiling, 7 Phil. 469
[1907]) (although a teacher is now considered a person in authority);
a Judge where the offender is a private citizen (People vs. Valeriano, et
al., 90 Phil. 15 [1951]); a General of the Philippine Army where the
offender is a private citizen (People vs. Torres, et al., L- 4642, May 29,
1953); a Chief of Police, a superior of the accused, who was chief of a
division of the secret police (People vs. Hollero 88 Phil. 167 [1951]);
a ranking official of the Civil Service Commission where the offender is a
clerk thereat (People vs. Benito, 74 SCRA 271 [1976]); a Consul who
was killed by a chancellor in the Consulate, who is a subordinate (People
vs. Martinez Godinez, 106 Phil 597 [1959]).
In the case at bar, the difference in the social condition and rank of the
victim, a Lieutenant in the Philippine Constabulary, and that of the
accused, who is a member of an anti-smuggling unit and an officer of the
Anti-Communist League of the Philippines, is not of such a degree as to
justify consideration of disrespect of rank due to the offended party as an
aggravating circumstance.
In the absence of the two aggravating circumstances discussed above or
of any mitigating circumstance, the penalty imposable is reclusion
temporal in its medium period, and the accused should be sentenced to
an indeterminate term of imprisonment ranging from ten (10) years
of prision mayor, as minimum, to seventeen (17) years of reclusion
temporal as maximum.
Abad Santos and De Castro, JJ., concur.
Separate Opinions
TEEHANKEE, J., concurring:
I concur with the judgment's imposition of the maximum penalty for
homicide, although I join Mme. Justice Herrera's partial dissent insofar as
she holds that the aggravating circumstance of contempt of or insult to
the public authorities may not be appreciated. However, disregard of rank
was properly appreciated as a generic aggravating circumstance, and
hence the maximum penalty for homicide is properly imposed in the
absence of any mitigating circumstance.
Barredo, J., concur.
MELENCIO-HERRERA, J., dissenting:
I believe that neither the aggravating circumstance of contempt of, or
insult to the public authorities under Article 14, par. 2 of the Revised
Penal Code, nor that of insult or disregard of the respect due to the
offended party on account of his rank under Article 14, par. 3 of the same
Code, is applicable to the present case.
1. For the circumstance of contempt of, or with insult to, public authorities
to be considered aggravating, it is essential (a) that the crime is
committed in the presence of a public authority, not a mere agent of the
authorities (People vs. Siojo, 61 Phil. 307 [19351; People vs. Verzo, et al
21 SCRA 1403 [1967]; and (b) that the public authority is engaged in the
exercise of his functions and is not the person against whom the crime is
committed (People vs. Siojo, citing U.S. vs. Rodriguez, 19 Phil. 150 [191];
Decision of the Supreme Court of Spain dated January 24, 1881, 1 Viada
310), nor the one injured by the commission of the offense (People vs.
Pardo, 79 Phil. 568 [1947]).
In this case, Lt. Guillermo Masana of the Philippine Constabulary is not a
public authority nor a person in authority as these terms are defined by
Article 152, par. 1 of the Revised Penal Code for he is not directly vested
with jurisdiction, that is, power or authority to govern and execute the
laws or to hear and decide a cause; he is a mere agent of a person in
authority as defined by Article 152, par. 2 of the Revised Penal Code, he
being a member of the Philippine Constabulary which is a government
military agency in charge of the maintenance of public order and the
protection and security of fife and property. In fact, the Decision itself
calls him an agent of a person in authority (p. 13).
And even if Lt. Masana were a person in authority, this aggravating
circumstance cannot be taken into account because it is he himself who
is the offended party (People vs. Siojo, supra).
2. Neither can the second circumstance, that of disregard of the respect
due to rank, be made to apply. It is not the existence alone of rank of the
offended party that determines the presence of this aggravating
circumstance. There must be a difference in the social condition of the
offender and the offended party.
El concepto de dignidad en su aspects general no esta
constituido solo por el caracter de authoridad solo por la
funcion publica o cargo que desempene el ofendido sino
tambien pro la diferencia de condicion social entre la
victims y el ofensor ... (Cuello Calon, Derecho Penal
Decimotercera edicion Tomo I, p. 554).
Where the offender and the offended party are of the same rank, this
aggravating circumstance does not apply.
Las personas constituidas en dignidad, y que por esta
razon merecen mayor respeto, son las que generalmente
se consideran por todo el mundo como superiores o mas
elevadas que el que comets el delito: tales son los
sacerdotes y las Autoridades respecto de los particulares,
los maestros con relacion a sus discipulos, los
guardadores respecto de sus pupilos, etc. Siempre, pues,
que hay diferencia de condicion social entre el ofensor y
el ofendido, concurrira la agravante de este numero, mas
no cuando hay igualdad Asi pues, si un Sacerdote o un
Magistrado calumnian a otro Sacerdote o Magistrado
respectivamente, no existira la circunstancia de
agravacion que comentamos. (Viada Codigo Penal
Reformado de 1870, Tomo II, p. 316).
The provision contemplates such a different in rank as that of
a teacher where the offender is a pupil (U.S. vs. Cabiling, 7 Phil. 469
[1907]) (although a teacher is now considered a person in authority);
a Judge where the offender is a private citizen (People vs. Valeriano, et
al., 90 Phil. 15 [1951]); a General of the Philippine Army where the
offender is a private citizen (People vs. Torres, et al., L- 4642, May 29,
1953); a Chief of Police, a superior of the accused, who was chief of a
division of the secret police (People vs. Hollero 88 Phil. 167 [1951]);
a ranking official of the Civil Service Commission where the offender is a
clerk thereat (People vs. Benito, 74 SCRA 271 [1976]); a Consul who
was killed by a chancellor in the Consulate, who is a subordinate (People
vs. Martinez Godinez, 106 Phil 597 [1959]).
In the case at bar, the difference in the social condition and rank of the
victim, a Lieutenant in the Philippine Constabulary, and that of the
accused, who is a member of an anti-smuggling unit and an officer of the
Anti-Communist League of the Philippines, is not of such a degree as to
justify consideration of disrespect of rank due to the offended party as an
aggravating circumstance.
In the absence of the two aggravating circumstances discussed above or
of any mitigating circumstance, the penalty imposable is reclusion
temporal in its medium period, and the accused should be sentenced to
an indeterminate term of imprisonment ranging from ten (10) years
of prision mayor, as minimum, to seventeen (17) years of reclusion
temporal as maximum.
Abad Santos, and De Castro, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 76338-39 February 26, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RENATO TAC-AN Y HIPOS, accused-appellant.
The Office of the Solicitor General for plaintiff-appellee.
Amadeo D. Seno for accused-appellant.
FELICIANO, J.:
Accused Renato Tac-an appeals from the decision of the Regional Trial
Court of Tagbilaran City, convicting him of qualified illegal possession of
a firearm and ammunition in Criminal Case No. 4007 and of murder in
Criminal Case No. 4012 and imposing upon him the penalty of death in
both cases.
On 18 December 1984, appellant was charged with violation of Section 1,
paragraph (2), of Presidential Decree No. 1866, committed as follows:
That, on or about the 14th day of December 1984, in the
City of Tagbilaran Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, while
acting under the influence of drugs and without any
license or permit from the proper authorities, did then and
there willfully, unlawfully and feloniously have ill his
possession, custody and control an unlicensed firearm, a
SMITH & WESSON Airweight caliber .38 revolver with
Serial Number 359323 with Five (5) spent shells and Five
(5) live ammunitions and without any justifiable cause and
with intent to kill, used the said firearm and ammunitions
to shoot one Francis Ernest Escano III hitting and
inflicting upon the latter the following gunshot wounds or
injuries, to wit:
MULTIPLE GUNSHOT WOUNDS
Head & Chest (through and through);
Head Entrance 1.4 x 2.2 cm., Left
Fronto-Temporal Area; Port 1.3 x 0.3
cm.; Right Cheek. 3.5 cm. above the right
external meatus;
Chest Entrance 0.3 x 1 cm. Right
Infrascapular Area at the level of the 7th
Intercostal Rib (Back); Exist 0.3 cm.
dia; above the right nipple;
Y-shape laceration, check at the right
angle of the mouth, Right
Dimensions: 3 x 1.2 cm. x 1.8
which gunshot wounds or injuries directly caused his
death, to the damage and prejudice of the Republic of the
Philippines.
Acts committed contrary to the provisions of Section 1,
paragraph 2 of the Presidential Decree No. 1866. 1
On 11 January 1985, an amended information 2 for murder was also filed
against appellant reading as follows:
That, on or about the 14th day of December, 1984 in the
City of Tagbilaran, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused,
without any justifiable cause and with intent to kill, evident
pre-meditation treachery, while acting under the influence
of drugs, with cruelty and deliberately augmenting the
suffering of the victim, did then and there willfully,
unlawfully and feloniously attack, assault and shot one
Francis Ernest Escano with the use of an unlicensed
SMITH & WESSON Airweight caliber .38 revolver with
Serial Number 359323 hitting and inflicting upon the latter
the following gunshot wounds or injuries, to wit:
MULTIPLE GUNSHOT WOUNDS
Head and Chest (Through & Through);
 Head Entrance 14 x 2.2 cm., Left
Fronto-temporal Area; Port l.3 x 0.3
cm., Right Cheek, 3.5 cm., above the right
external meatus;
Chest Entrance 0.3 x 1 cm. right
Infrascapular Area at the level of the 7th
Inter-Costal Rib (back); exit 0.3 cm. dia;
above the right nipple
Y-shape laceration, cheek at the angle of
the mouth, Right
Dimensions: 3 x 1.2 cm. x 1.8.
which gunshot wounds or injuries directly caused his
death, to the damage and prejudice of the heirs of the
deceased namely: Judge & Mrs. Francisco Rey H.
Escano, in the amount to be proved during the trial of the
case.
Acts committed contrary to the provisions of Article 248 of
the Revised Penal Code, in relation to Section 17 of
Batas Pambansa Blg. 179, with the qualifying aggravating
circumstances of evident premeditation, treachery and
acting under the influence of dangerous drugs and
cruelty.
Appellant entered a plea of not guilty in both cases. The two (2) criminal
cases were consolidated upon motion of the prosecution and tried jointly.
On 31 July 1986, the trial court rendered a decision 3 convicting appellant
under both informations. The dispositive portion of the decision read as
follows:
WHEREFORE, all the foregoing premises considered,
decision is hereby rendered in Criminal Case No. 4007
finding the accused Renato Tac-an y Hipos GUILTY
beyond reasonable doubt of Illegal Possession of
Firearms and Ammunitions qualified with Murder under
Section 1, paragraphs 1 and 2 of Presidential Decree No.
1866 and hereby sentences said Renato Tac-an y Hipos
to suffer the penalty of DEATH. Further, decision is also
rendered in Criminal Case No. 4012 finding the same
accused Renato Tac-an y Hipos GUILTY beyond
reasonable doubt of Murder under Article 248 of the
Revised Penal Code, in relation to Batas Pambansa Blg.
179 and P.D. 1866. Appreciating the aggravating
circumstance of evident premeditation (treachery used to
qualify the crime to murder) and the special aggravating
circumstances of acting while under the influence of
dangerous drugs and with the use of an unlicensed
firearm and with insult to a person in authority and there
being no mitigating circumstance to offset them, and
sentences the said Renato Tac-an y Hipos to suffer the
penalty of DEATH. The accused is likewise ordered to
indemnify the heirs of the deceased Francis Ernest
Escano in the amount of THIRTY THOUSAND PESOS
(P30,000.00); to pay actual compensatory damages in the
amount of ONE HUNDRED EIGHT THOUSAND THREE
HUNDRED TEN PESOS (P108,310.00); to pay moral
damages to Judge Francisco Escano, Jr., the sum of
ONE HUNDRED THOUSAND PESOS (P100,000.00) and
to Mrs. Lydia Escano the sum of ONE HUNDRED
THOUSAND PESOS (P100,000.00) for the mental
anguish and suffering each experienced because of the
death of Francis Ernest. All such amount shall earn legal
interest from the time this decision shall become final and
executory until fully satisfied. The accused shall also pay
the costs.
SO ORDERED.
Immediately after promulgation of the decision, appellant signified his
intention to appeal to this Court, although the same was subject to
automatic review by this Court.
In his brief, appellant assigned the following as errors allegedly
committed by the trial court:
I. The lower court erred in believing the prosecution's
version of the case instead of according full faith and
credence to the defendant's version.
II. The trial court erred in not holding that Renato Tac-an
was justified in shooting the deceased.
 III. The trial court erred in not holding that in (sic) the least
the defendant acted in incomplete self-defense in
shooting the deceased.
IV. The trial court erred in not holding that P.D. 1866 is
inapplicable to the defendant inasmuch as said decree
was enforceable only during the existence of the Martial
Law Regime.
V. The trial court erred in not holding that the defendant
was placed twice in jeopardy for having been prosecuted
for violation of P.D. 1866 despite his being prosecuted for
murder in an information which alleges that the accused
used an unlicensed firearm in killing the deceased.
VI. The trial court erred in not adjudging the defendant
innocent of murder.
From the record, the facts may be collated and summarized as follows:
Appellant Renato Tac-an, then eighteen (18) years and seven (7) months
of age, and the deceased Francis Ernest Escano III, fifteen (15) years
old, were classmates in the third year of high school of the Divine Word
College in Tagbilaran City. They were close friends, being not only
classmates but also members of the same gang, the Bronx gang. Renato
had been to the house where Francis and his parents lived, on one or
two occasions. On those occasions, Francis' mother noticed that Renato
had a handgun with him. Francis was then advised by his mother to
distance himself from Renato. 4
Francis withdrew from the Bronx gang. The relationship between Renato
and Francis turned sour. Sometime in September 1984, Renato and
Francis quarrelled with each other, on which occasion Francis bodily
lifted Arnold Romelde from the ground. Arnold was friend and companion
to Renato. The quarrel resulted in Renato and Francis being brought to
the high school principal's office. The strained relationship between the
two (2) erstwhile friends was aggravated in late November 1984 when
Francis teamed that Renato, together with other members of the Bronx
gang, was looking for him, apparently with the intention of beating him
up. Further deterioration of their relationship occurred sometime in the
first week of December 1984, when graffiti appeared on the wall of the
third year high school classroom and on the armrest of a chair in that
classroom, deprecating the Bronx gang and describing Renato as
"bayot" (homosexual) 5 Renato attributed the graffiti to Francis.
At about 2:00 o'clock in the afternoon of 14 December 1984, Renato
entered Room 15 of the high school building to attend his English III
class. Renato placed his scrapbook prepared for their Mathematics class
on his chair, and approached the teacher, Mrs. Liliosa Baluma, to raise a
question. Upon returning to his chair, he found Francis sitting there, on
the scrapbook. Renato was angered by what he saw and promptly kicked
the chair on which Francis was seated. Francis, however, explained that
he had not intentionally sat down on Renato's scrapbook. A fistfight
would have ensued but some classmates and two (2) teachers, Mrs.
Baluma and Mr. Damaso Pasilbas, intervened and prevented them from
assaulting each other. After the two (2) had quieted down and apparently
shaken hands at the instance of Mrs. Baluma, the latter resumed her
English III class. Francis sat on the last row to the extreme right of the
teacher while Renato was seated on the same last row at the extreme left
of the teacher. While the English III class was still going on, Renato
slipped out of the classroom and went home to get a gun. He was back at
the classroom approximately fifteen (15) minutes later. 6
The Mathematics class under Mr. Damaso Pasilbas scheduled for 3:00
p.m. had just started in Room 15 when Renato suddenly burst into the
room, shut the door and with both hands raised, holding a revolver,
shouted "Where is Francis?" Upon sighting Francis seated behind and to
the light of student Ruel Ungab, Renato fired at Francis, hitting a
notebook, a geometry book and the armrest of Ruel's chair. Francis and
Ruel jumped up and with several of their classmates rushed forward
towards the teacher's platform to seek protection from their teacher.
Renato fired a second time, this time hitting the blackboard in front of the
class. Francis and the other students rushed back towards the rear of the
room. Renato walked towards the center of the classroom and fired a
third time at Francis, hitting the concrete wall of the classroom. Francis
and a number of his classmates rushed towards the door, the only door
to and from Room 15. Renato proceeded to the teacher, s platform
nearest the door and for the fourth time fired at Francis as the latter was
rushing towards the door. This time, Francis was hit on the head and he
fell on the back of Ruel and both fell to the floor. Ruel was pulled out of
the room by a friend; Francis remained sprawled on the floor bleeding
profusely. 7
Renato then went out of Room 15, and paced between Rooms 14 and
15. A teacher, Mr. Pablo Baluma, apparently unaware that it was Renato
who had gunned down Francis, approached Renato and asked him to
help Francis as the latter was still alive inside the room. Renato
thereupon re-entered Room 15, closed the door behind him, saying: "So,
he is still alive. Where is his chest?" Standing over Francis sprawled face
down on the classroom floor, Renato aimed at the chest of Francis and
fired once more. The bullet entered Francis' back below the right
shoulder, and exited on his front chest just above the right nipple. 8
Renato then left with two (2) remaining students and locked Francis
alone inside Room 15. Renato proceeded to the ground floor and entered
the faculty room. There, he found some teachers and students and
ordered them to lock the door and close the windows, in effect holding
them as hostages. He also reloaded his gun with five (5) bullets. After
some time, a team of Philippine Constabulary troopers led by Capt.
Larino Lazo arrived and surrounded the faculty room. With a hand-held
public address device, Capt. Lazo called upon Renato to surrender
himself Renato did not respond to this call. Renato's brother approached
Capt. Lazo and volunteered to persuade his brother to give up. Renato's
father who, by this time had also arrived, pleaded with Renato to
surrender himself Renato then turned over his gun to his brother through
an opening in the balustrade of the faculty room. Capt. Lazo took the gun
from Renato's brother, went to the door of the faculty room, entered and
placed Renato under arrest. 9
Meantime, as soon as Renato left Room 15, some teachers and students
came to rescue Francis but could not open the door which Renato had
locked behind him. One of the students entered the room by climbing up
the second floor on the outside and through the window and opened the
door from the inside. The teachers and students brought Francis down to
the ground floor from whence the PC soldiers rushed him to the Celestino
Gallares Memorial Hospital. 10 Francis died before reaching the hospital.
Capt. Lazo brought Renato to the PC Headquarters at Camp Dagohoy,
Tagbilaran City. The officer deposited the revolver recovered from
Renato which was an Airweight Smith and Wesson .38 caliber revolver,
with Serial No. 359323, as well as the five (5) live bullets removed from
the said revolver, and the five (5) empty cartridges which Renato had
turned over to him. Ballistic examination conducted by Supervising
Ballistician, Artemio Panganiban, National Bureau of Investigation, Cebu,
showed that the empty cartridge cases had been fired from the revolver
recovered from Renato. 11
Appellant at the outset assails the trial court for having believed the
prosecution's version of the facts instead of the version offered by the
appellant. The trial court took into account, inter alia, the positive and
direct testimony of:
1. Mrs. Liliosa Baluma who testified as to, among other
things, the events which took place inside her English III
classroom immediately before the shooting;
2. Ruel Ungab a fifteen (15) year old classmate of
Renato and Francis, who had fallen on the floor with
Francis when the latter was finally hit by Renato;
3. Damaso Pasilbas the Mathematics teacher who was
holding his class when Renato had burst into Room 15
and started firing at Francis; and
4. Napoleon Jumauan another sixteen (16) year old,
classmate of Renato and Francis who was inside the
classroom when Renato had started firing at Francis and
who was only about a foot away from the head of Francis
when Renato, having re-entered Room 15, had fired at
Francis as the latter was sprawled on the floor of the
classroom.
After careful examination of the record, we find no reason to disagree
with the conclusion of the trial court that Renato had indeed shot and
killed Francis under the circumstances and in the manner described by
these witnesses.
1. The claim of self-defense.
Renato claimed that he was acting in self-defense, or at least in
incomplete self-defense, when he shot Francis. For a claim of self-
defense to be sustained, the claimant must show by clear and convincing
evidence that the following requisites existed:
a) unlawful aggression on the part of the victim;
b) reasonable necessity of the means employed by the
accused to repel the aggression; and
c) lack of sufficient provocation on the part of the
accused. 12
Testifying in his own behalf, Renato said that a few minutes before the
end of Mrs. Baluma's English III class, Francis had approached him:
(Atty. Seno, Defense Counsel)
Q: How did it happened (sic) that you had
a conversation with Francis?
(Renato)
A: While the class was going on, Mrs.
Baluma was writing on the blackboard.
Q: Then what happened?
A: While our teacher was writing on the
blackboard Francis suddenly got near me.
Q: And what happened when Francis
approached you?
A: He said, 'So you are brave now you
had a (sic) guts to fight against me.'
Q: And what else did he say?
A: He said, 'Go home, get your firearm
because I will go home to get a gun.'
Q: Was that all that he told you?
A: He further said, 'You go home get your
firearm, if you won't go home and get a
gun, I will go to your place and kill you
including your parents, brothers and
sisters.'
Q: And after that where did Francis go?
A: Before the bell rang he went ahead. 13
(Emphasis supplied)
We note at the outset that there was no evidence before the Court,
except Renato's own testimony, that Francis had uttered the above
statements attributed to him by Renato. Although there had been about
twenty-five (25) other students, and the teacher, in the classroom at the
time, no corroborating testimony was offered by the defense. In the
second place, assuming (arguendo merely) that Francis had indeed
made those statements, such utterances cannot be regarded as the
unlawful aggression which is the first and most fundamental requirement
of self-defense. Allegedly uttered in a high school classroom by an
obviously unarmed Francis, such statements could not reasonably inspire
the "well grounded and reasonable belief" claimed by Renato that "he
was in imminent danger of death or bodily harm." 14 Unlawful aggression
refers to an attack that has actually broken out or materialized or at the
very least is clearly imminent: it cannot consist in oral threats or a merely
threatening stance or posture. 15Further as pointed out by the Solicitor
General, Francis was obviously without a firearm or other weapon when
Renato returned and burst into Room 15 demanding to know where
Francis was and forthwith firing at him repeatedly, without the slightest
regard for the safety of his other classmates and of the teacher. There
being no unlawful aggression, there simply could not be self-defense
whether complete or incomplete, 16 and there is accordingly no need to
refer to the other requirements of lawful self-defense.
2. The claim that P.D. No. 1866 is inapplicable.
As pointed out at the outset, appellant was charged with unlawful
possession of an unlicensed firearm, a Smith and Wesson Airweight.38
caliber revolver with five (5) spent bullets and five (5) live ones and with
having used such firearm and ammunition to shoot to death Francis
Ernest Escano III, in violation of Section 1 of P.D. No. 1866.
Section 1 of P.D. No. 1866 provides, in relevant part, that:
Section 1. Unlawful Manufacture, Sale, Acquisition,
Disposition or Possession of Firearms or Ammunition or
Instruments Used or Intended to be Used in the
Manufacture of Firearms or Ammunition. The penalty
of reclusion temporal in its maximum period to reclusion
perpetua shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose,
or possess any firearms, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used
in the manufacture of any firearm or ammunition.
 If homicide or murder is committed with the use of an
unlicensed firearm, the penalty of death shall be
imposed. (Emphasis supplied)
Appellant urges that P.D. No. 1866 is inapplicable to him "considering
that the reason for its [P.D. No. 1866] issuance no longer exists." He
argues that P.D. No. 1866 was enforceable only during the existence of
martial law, and that when martial law was "lifted in 1979," the reason for
the "existence" of P.D. No. 1866 faded away, with the result that the
"original law on firearms, that is, Section 2692 of the [Revised]
Administrative Code, together with its pre-martial law amendments, came
into effect again thereby replacing P.D. No. 1866." 17
There is nothing in P.D. No. 1866 (which was promulgated on 29 June
1983) which suggests that it was intended to remain in effect only for the
duration of the martial law imposed upon the country by former President
Marcos. Neither does the statute contain any provision that so prescribes
its lapsing into non-enforceability upon the termination of the state or
period of martial law. On the contrary, P.D. No. 1866 by its own terms
purported to "consolidate, codify and integrate" all prior laws and decrees
penalizing illegal possession and manufacture of firearms, ammunition
and explosives in order "to harmonize their provisions as well as to
update and revise certain provisions and prior statutes "in order to more
effectively deter violators of the law on firearms, ammunitions and
explosives." 18 Appellant's contention is thus without basis in fact.
3. The claim of double jeopardy.
It is also contended by appellant that because he had already been
charged with illegal possession of a firearm and ammunition in Criminal
Case No. 4007, aggravated by the use of such unlicensed firearm to
commit a homicide or murder, he was unconstitutionally placed in
jeopardy of punishment for the second time when he was charged in
Criminal Case No. 4012 with murder "with the use of an unlicensed
[firearm]," in violation of Article 248 of the Revised Penal Code in relation
to Section 17 of B.P. Blg. 179.
It is elementary that the constitutional right against double jeopardy
protects one against a second or later prosecution for the same
offense, and that when the subsequent information charges another and
different offense, although arising from the same act or set of acts, there
is no prohibited double jeopardy. In the case at bar, it appears to us quite
clear that the offense charged in Criminal Case No. 4007 is that of
unlawful possession of an unlicensed firearm penalized under a special
statute, while the offense charged in Criminal Case No. 4012 was that of
murder punished under the Revised Penal Code. It would appear self-
evident that these two (2) offenses in themselves are quite different one
from the other, such that in principle, the subsequent filing of Criminal
Case No. 4012 is not to be regarded as having placed appellant in a
prohibited second jeopardy.
We note that the information in Criminal Case No. 4007 after charging
appellant with unlawful possession of an unlicensed firearm and
ammunition, went on to state that said firearm and ammunition had been
used to shoot to death Francis Ernest Escao III. We note also that the
amended information in Criminal Case No. 4012 after charging appellant
with the unlawful killing of Francis Ernest Escao III, stated that the killing
had been done with the use of an unlicensed firearm. We believe these
additional allegations in the two (2) informations did not have the effect of
charging appellant with having committed the same offense more than
once.
However, in sentencing Renato to suffer the penalty of death for the
crime of murder, the trial court did take into account as a "special
aggravating circumstance" the fact that the killing of Francis had been
done "with the use of an unlicensed firearm." In so doing, we believe and
so hold, the trial court committed error. There is no law which renders the
use of an unlicensed firearm as an aggravating circumstance in homicide
or murder. Under an information charging homicide or murder, the fact
that the death weapon was an unlicensed firearm cannot be used to
increase the penalty for the second offense of homicide or murder to
death (or reclusion perpetua under the 1987 Constitution). The essential
point is that the unlicensed character or condition of the instrument used
in destroying human life or committing some other crime, is not included
in the inventory of aggravating circumstances set out in Article 14 of the
Revised Penal Code. 19
In contrast, under an information for unlawful possession (or
manufacture, dealing in, acquisition or disposition) of a firearm or
ammunition, P.D. No. 1866 authorizes the increase of the imposable
penalty for unlawful possession or manufacture, etc. of the unlicensed
firearm where such firearm was used to destroy human life. Although the
circumstance that human life was destroyed with the use of the
unlicensed firearm is not an aggravating circumstance under Article 14 of
the Revised Penal Code, it may still be taken into account to increase the
penalty to death (reclusion perpetua, under the 1987 Constitution)
because of the explicit provisions of P.D. No. 1866. As noted earlier, the
unlawful possession of an unlicensed firearm or ammunition is an offense
punished under a special law and not under the Revised Penal Code.
4. The claim that there was no treachery.
Appellant contends that there was no treachery present because before
any shot was fired, Renato had shouted "where is Francis?" Appellant in
effect suggests his opening statement was a warning to Francis and that
the first three (3) shots he had fired at Francis were merely warning
shots. Moreover, building upon his own testimony about the alleged
threat that Francis had uttered before he (Renato) left his English III class
to go home and get a gun, appellant argues that Francis must have
anticipated his return and thus had sufficient time to prepare for the
coming of the appellant. 20 Appellant's contention, while ingenious, must
be rejected. The trial court made a finding of treachery taking explicit
account of the following factors:
1. Room 15 of the Divine Word College High School
Department Tagbilaran City, is situated in the second
floor of the building. It is a corner room and it has only
one (1) door which is the only means of entry and exit;
2. At the time of the attack, the deceased was seated on
his chair inside his classroom and was writing on the
armrest of his chair and also talking to Ruel Ungab and
while their teacher, Mr. Damaso Pasilbas was checking
the attendance. The deceased was not aware of any
impending assault neither did he have any means to
defend himself;
3. The accused used an airweight Smith & Wesson .38
caliber revolver in shooting to death the defenseless and
helpless Francis Ernest Escao;
4. The attack was so sudden and so unexpected. the
accused consciously conceived that mode of attack;
5. The accused fired at Francis again and again and did
not give him a chance to defend himself. After the
deceased was hit on the head and fell to the floor while
he was already sprawled and completely defenseless the
accused fired at him again and the deceased was hit on
the chest;
6. The deceased was not armed. He was totally
defenseless. He was absolutely not aware of any coming
attack. 21
The Court also pointed out that Renato must have known that Francis
while inside Room 15 had no means of escape there being only one (1)
door and Room 15 being on the second floor of the building. Renato in
effect blocked the only exit open to Francis as he stood on the teacher's
platform closest to the door and fired as Francis and Ruel sought to dash
through the door. Renato's question "where is Francis?" cannot
reasonably be regarded as an effort to warn Francis for he shot at
Francis the instant he sighted the latter, seated and talking to Ruel
Ungab. That Renato fired three (3) shots before hitting Francis with the
fourth shot, can only be ascribed to the indifferent markmanship of
Renato and to the fact that Francis and the other students were scurrying
from one part of the room to the other in an effort to evade the shots fired
by Renato. The cumulative effect of the circumstances underscored by
the trial court was that the attack upon Francis had been carried out in a
manner which disabled Francis from defending himself or retaliating
against Renato. Finally, the circumstance that Renato, having been
informed that Francis was still alive, re-entered Room 15 and fired again
at Francis who lay on the floor and bathed with his own blood, manifested
Renato's conscious choice of means of execution which directly and
especially ensured the death of his victim without risk to himself. 22 We
are compelled to agree with the trial court that treachery was here
present and that, therefore, the killing of Francis Ernest Escao III was
murder.
5. The claim that there was no evident premeditation.
The trial court also found the presence of evident premeditation and
appreciated the same as a generic aggravating circumstance. Here, it is
the urging of the appellant that the requisites of evident premeditation
had not been sufficiently shown. In order that evident premeditation may
be taken into account, there must be proof of (a) the time when the
offender formed his intent to commit the crime; (b) an action manifestly
indicating that the offender had clung to his determination to commit the
crime; and (c) of the passage of a sufficient interval of time between the
determination of the offender to commit the crime and the actual
execution thereof, to allow him to reflect upon the consequences of his
act. 23 The defense pointed out that barely fifteen (15) minutes had
elapsed from the time Renato left his English III class and the time he
returned with a gun. While there was testimony to the fact that before that
fatal day of 14 December 1984, anger and resentment had welled up
between Francis and Renato, there was no evidence adequately showing
when Renato had formed the intention and determination to take the life
of Francis. Accordingly, we must discard evident premeditation as an
aggravating circumstance.
6. The claim that the killing was not done under the
influence of a dangerous drug.
Section 17 of B.P. Blg. 179 which was promulgated on 2 March 1982
provides as follows:
SEC. 17. The provisions of any law to the contrary
notwithstanding, when a crime is committed by an
offender who is under the influence of dangerous drugs,
such state shall be considered as a qualifying aggravating
circumstance in the definition of a crime and the
application of the penalty provided for in the Revised
Penal Code.
The trial court found that Francis was killed by Renato while the later was
under the influence of a dangerous drug, specifically marijuana, and took
that into account as a "special aggravating circumstance". No medical
evidence had been submitted by the prosecution to show that Renato
had smoked marijuana before gunning down Francis. Fourteen (14) days
had elapsed after December 14, 1984 before Renato was medically
examined for possible traces of marijuana; the results of the examination
were negative. Defense witness Dr. Rogelio Ascona testified that in order
to have a medically valid basis for determining the presence of marijuana
in the human system, the patient must be examined within twenty-four
(24) hours from the time he is supposed to have smoked
marijuana. 24 The prosecution had presented Orlando Balaba, a student at
the Divine Word College, High School Department, who testified that he
found Renato and one Jaime Racho inside the men's room of the High
School Department sucking smoke from a hand-rolled thing that look like
a cigarette, that he had asked Renato what that was and that Renato had
replied damo (marijuana). 25 While the testimony of Orlando Balaba was
corroborated by two (2) other prosecution witnesses, we believe that
Orlando Balaba's testimony was incompetent to show that what Renato
and Jaime Racho were smoking inside the men's room was indeed
marijuana. It was pointed out by apellant that Orlando Balaba had never
smoked nor smelled marijuana.
In the absence of medical evidence, the Court took into account certain
detailed factors as circumstantial evidence supporting the testimony of
Orlando Balaba. These circumstances were:
The circumstance of place where the killing was
committed, the circumstance of the manner of the attack,
the circumstance of holding hostage some teachers and
students inside the faculty room, the circumstance of
terrifying an entire school, the circumstance that sitting on
a scrapbook is too insignificant as to arouse passion
strong enough to motivate a killing, are circumstantial
evidences that gave the court no room for doubt that
prosecution witnesses Orlando Balaba, Benjamin Amper
and Allan de la Serna truthfully told the court that they
saw the accused smoking marijuana inside the comfort
room at 1:45 in the afternoon of December 14, 1984. ... . 26
The above circumstances pointed to by the trial court may be indicative
of passionate anger on the part of Renato; we do not believe that they
necessarily show that Renato had smoked marijuana before entering his
English III class. In the absence of competent medical or other direct
evidence of ingestion of a dangerous drug, courts may be wary and
critical of indirect evidence, considering the severe consequences for the
accused of a finding that he had acted while under the influence of a
prohibited drug. The Court considers that the evidence presented on this
point was simply inadequate to support the ruling of the trial court that
Renato had shot and killed Francis while under the influence of a
prohibited drug.
7. The claim that appellant had voluntarily surrendered.
Appellant contends that he had voluntarily surrendered and that the trial
court should have considered that mitigating circumstance in his favor.
The trial court did not, and we consider that it correctly refused to do so.
Firstly, Renato surrendered his gun, not himself, 27 by handing over the
weapon through the balustrade of the faculty room. Secondly, he
surrendered the gun to his brother, who was not in any case a person in
authority nor an agent of a person in authority. 28 Thirdly, Renato did not
surrender himself he was arrested by Capt. Lazo. The fact that he did not
resist arrest, did not constitute voluntary surrender. 29 Finally, if it be
assumed that Renato had surrendered himself, such surrender cannot be
regarded as voluntary and spontaneous. Renato was holed up in the
faculty room, in effect holding some teachers and students as hostages.
The faculty room was surrounded by Philippine Constabulary soldiers
and there was no escape open to him. He was not entitled to the
mitigating circumstance of voluntary surrender.
8. Whether or not the crime was committed in contempt of
or with insult to the public authorities.
The trial court held that the shooting to death of Francis had been done
"in contempt of or with insult to the public authorities:
Under Republic Act 1978, as amended, a teacher of a
public or private school is considered a person in
authority. The fact that Mr. Damaso Pasilbas, the teacher
in mathematics, was already checking the attendance did
not deter the accused from pursuing his evil act, The
accused ignored his teacher's presence and pleas. Not
yet satisfied with the crime and terror he had done to
Francis and the entire school, the accused entered the
faculty room and held hostage the teachers and students
who were inside that room. To the court, this act of the
accused was an insult to his teachers and to the school,
an act of callus disregard of other's feelings and safety
and completely reprehensible. 30
We believe the trial court erred in so finding the presence of a generic
aggravating circumstance. Article 152 of the Revised Penal Code, as
amended by Republic Act No. 1978 and Presidential Decree No. 299,
provides as follows:
Art. 152. Persons in authority and agents of persons in
authority. Who shall be deemed as such. In
applying the provisions of the preceding and other articles
of this Code, any person directly vested with
jurisdiction, whether as an individual or as a member of
some court or government corporation, board, or
commission, shall be deemed a person in authority. A
barrio captain and a barangay chairman shall also be
deemed a person in authority.
A person who by direct provision of law or by election or
by appointment by competent authority, is charged with
the maintenance of public order and the protection and
security of life and property, such as a barrio councilman,
barrio policeman and barangay leader and any person
who comes to the aid of persons in authority, shall be
deemed an agent of a person in authority.
In applying the provisions of Articles 148 and 151 of this
Code, teachers, professors and persons charged with the
supervision of public or duly recognized private
schools, colleges and universities, and lawyers in the
actual performance of their professional duties or on the
occasion of such performance, shall be deemed persons
in authority. (As amended by P.D. No. 299, September
19, 1973 and Batas Pambansa Blg. 873, June 12, 1985).
Careful reading of the last paragraph of Article 152 will show that while a
teacher or professor of a public or recognized private school is deemed
to be a "person in authority," such teacher or professor is so deemed only
for purposes of application of Articles 148 (direct assault upon a person
in authority), and 151 (resistance and disobedience to a person in
authority or the agents of such person) of the Revised Penal Code. In
marked contrast, the first paragraph of Article 152 does not identify
specific articles of the Revised Penal Code for the application of which
any person "directly vested with jurisdiction, etc." is deemed "a person in
authority." Because a penal statute is not to be given a longer reach and
broader scope than is called for by the ordinary meaning of the ordinary
words used by such statute, to the disadvantage of an accused, we do
not believe that a teacher or professor of a public or recognized private
school may be regarded as a "public authority" within the meaning of
paragraph 2 of Article 14 of the Revised Penal Code, 31 the provision the
trial court applied in the case at bar.
ACCORDINGLY, the decision of the trial court dated 31 July 1986 is
hereby MODIFIED in the following manner and to the following extent
only:
1. In Criminal Case No. 4007, appellant shall suffer the
penalty of reclusion perpetua;
2. In Criminal Case No. 4012 (a) the aggravating
circumstances of evident premeditation and of having
acted with contempt of or insult to the public authorities
shall be DELETED and not taken into account; and (b)
the special aggravating circumstances of acting while
under the influence of dangerous drugs and with the use
of an unlicensed firearm shall similarly be DELETED and
 not taken into account. There being no generic
aggravating nor mitigating circumstances present, the
appellant shall suffer the penalty of reclusion perpetua.

The two (2) penalties of reclusion perpetua shall be served successively

in accordance with the provisions of Article 70 of the Revised Penal
Code. As so modified, the decision of the trial court is hereby AFFIRMED.
Costs against appellant.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Bidin and Cortes, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. L-40367-69 August 22, 1985
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PACITO STO. TOMAS, accused-appellant.
CUEVAS, J.:
At about ten o'clock in the evening of May 23, 1967, tragedy struck at the
residence of the GRULLAS situated in the municipality of Donsol,
Sorsogon. After the smoke of gun fire had cleared, two (2) persons were
found dead inside the house of the Grullas bathed in their own blood,
namely: SALVACION GRULLA, wife of the herein accused-appellant who
lay prostrate on the floor at the sala; and appellant's mother-in-law
CONSOLACION BELMONTE VDA. DE GRULLA who appeared seated
motionless on a chair with her body reclining on a table. The third victim
NATIVIDAD GRULLA, younger sister of Salvacion, nearly escaped death
but likewise suffered gunshot wounds necessitating hospitalization for
almost a month.
As an aftermath of the aforesaid shooting incident, three Criminal Cases
were filed before the then Court of First Instance of Sorsogon-Branch III,
against appellant PACITO STO. TOMAS. One for PARRICIDE under
Criminal Case No. 22, for the death of Salvacion Grulla; another one for
MURDER under Criminal Case No. 23, for the death of appellant's
mother-in-law Consolacion Belmonte Vda. de Grulla; and the third one for
FRUSTRATED MURDER under Criminal Case No. 29, for the near fatal
shooting of Natividad Grulla, appellant's sister-in-law.
After trial, following a plea of NOT GUILTY entered upon arraignment,
accused was convicted and thereafter sentenced as follows:
1. In Criminal Case No. 22: to suffer the penalty
of reclusion perpetua; and to indemnify the heirs of the
deceased Salvacion Grulla in the amount of P15,000.00;
plus P10,000.00 by way of moral damages;
2. In Criminal Case No. 23: to suffer an indeterminate
penalty of twelve (12) years as the minimum, to twenty
(20) years of reclusion temporal; and to indemnify the
heirs of deceased Consolacion Vda. de Grulla in the
amount of P15,000.00; and to pay P10,000.00 as moral
damages plus P5,000.00 as punitive damages.
3. In Criminal Case No. 29: to suffer an indeterminate
penalty of ten (10) years of prison mayor, as the minimum
of twenty (20) years of reclusion temporal as the
maximum; and to indemnify Natividad Grulla, in the
amount of P700.00 as actual damages; P10,000.00 as
moral damages; and P5,000 as punitive damages; plus
From the aforesaid judgment, accused ventilated an
appeal to this Court, seeking the reversal of his aforesaid
conviction on the ground that the trial court allegedly
erred
I
IN HOLDING THAT SALVACION GRULLA IS THE WIFE
OF THE ACCUSED-APPELLANT;
II
IN FINDING THAT NATIVIDAD GRULLA WITNESSED
THE SHOOTING OF SALVACION GRULLA AND
CONSOLACION VDA. DE GRULLA;
III
IN FINDING THAT TREACHERY ACCOMPANIED THE
SHOOTING OF NATIVIDAD GRULLA;
IV
IN FINDING THAT THE AGGRAVATING
CIRCUMSTANCE OF ABUSE OF SUPERIOR
STRENGTH ATTENDED THE COMMISSION OF THE
OFFENSE;
 V knocked upon it. (p. 4, tsn, Dec. 27, 1968). Pacito's wife,
IN TAKING INTO ACCOUNT THE AGGRAVATING
CIRCUMSTANCE OF DWELLING IN THE IMPOSITION
OF PENALTIES;
VI
IN FINDING THAT NATIVIDAD GRULLA SUFFERED
PERMANENT DEFORMITY FROM THE INJURY WHICH
COULD HAVE CAUSED HER DEATH;
VII
IN AWARDING DAMAGES DESPITE THE ABSENCE OF
A CLEAR AND CONVINCING PROOF IN SUPPORT
THEREOF; and
VIII
IN CONVICTING APPELLANT ON THE BASIS OF
PURELY CIRCUMSTANTIAL EVIDENCE.
The prosecution's version of the incident in question as summarized by
the Solicitor General runs thus
On May 23, 1967 at about 10:00 o'clock in the evening,
Natividad Grulla, then a 19 year old girl, was engrossed in
reading the Illustrated Classics in her bedroom at the
Grulla residence in Dansol, Sorsogon (pp. 19, 21, tsn,
Feb. 25, 1969). Also then at home, were her nephews,
Fidel, Pacito, Jr., and Roberto, her sisters, Blesilda and
Salvacion, her mother Consolacion Grulla, a niece, Alma
and their maid Avelina Bordeos (p, 34, tsn, Dec. 5, 1968).
A brother, Sixto, was out of the house at that time, while
two other brothers Samuel and Alfredo, were asleep in
the house of Natividad's grandmother located at the back
of their residence (p. 38, tsn, Ibid). Between 10:00 o'clock
and 11:00 o'clock that same evening, Salvacion Grulla's
husband, Pacito Sto. Tomas arrived by car and knocked
at the front door of the Grulla residence and upon hearing
the knocking, Natividad proceeded to the front door to
open it but Pacito had walked towards the back door and
Salvacion, proceeded to meet him in the kitchen. Once
inside, Pacito asked his wife to go with him, together with
their children, and rushed the maid to get their things
packed for Legaspi City. Natividad saw the couple talking
in the sala. (p. 5, tsn, Ibid.).
Awakened by Pacito and Salvacion's conversation,
Consolacion Grulla, Salvacion and Natividad's mother,
came out of her bedroom and joined the spouses in the
sala. There, Pacito asked his mother-in-law's permission
to bring his wife and children to Legaspi City. Speaking in
the dialect, Consolacion Grulla replied, "Pacito, my
daughter cannot go with you to Legaspi because she
does not want to live with you. She can no longer endure
the sufferings she is undergoing because of your
jealousy." Pacito, however, retorted, "May, I cannot talk
over this thing with you any longer and I would like Vacion
to go with me to Legaspi." (p. 5, tsn, Dec. 27, 1968) After
which, he turned to his wife and asked her whether she
was going with him, but she answered that she could not
do so because their youngest child Blesilda, then only
seven months old, was with fever (p. 36, tsn, Dec. 5,
1968; p. 6, tsn, Dec. 27, 1968).
Later, while Natividad was already in her room she heard
a series of gunshots that caused her to stopped reading,
and she went out her room to see Pacito firing at her
sister (p. 6, tsn, Dec. 27, 1968; pp. 6, 34 and 35, tsn, Feb.
25, 1969). After the series of gunshot by Pacito, Natividad
then saw her mother seated, motionless, on a chair about
three meters from Pacito, her body reclining on a table,
while her sister lay prostrate on the floor (pp. 29, 31-33,
tsn. Dec. 5, 1968; p. 6, tsn, Dec. 27, 1968). Then, in
response to Natividad's call of "Manay", Mrs. Sto. Tomas
raised her head slightly but was apparently too weak to
rise (p. 27, tsn, Dec. 5, 1968; p. 6, tsn, Dec. 27, 1968).
Natividad pleaded with Pacito to spare Salvacion's life
telling him that the latter would go with him to Legaspi.
But her pleas merited no more than an expression of
"Hmmm" from Pacito who began to reload his revolver (p.
6, tsn, Dec. 27, 1968).
 At this juncture, Natividad suddenly remembered that her
sister had told her, sometime in the past, that Pacito had
threatened to kill all the members of the Grulla family (p.
6, tsn, Dec. 27, 1968). Scared by this recollection,
Natividad thought of escaping, and forthwith returned to
her bedroom, her back now towards the accused, her
hands raised in a gesture of surrender. As she entered
her room she heard gunshots again, and she turned
around to find out at whom the accused was firing, but as
she did so, she felt her left arm go numb (p. 34, tsn, Dec.
5, 1968, p. 7, tsn, Dec. 27, 1968; p. 47, tsn, Feb. 25,
1969). She saw her left arm bleed and tried to support it
with her right hand, but Pacito shot her once more, this
time hitting her right forearm (p. 35, tsn, Dec. 5, 1968).
Frightened' to death, she ran through the front door,
shouting for help at the top of her voice (p. 35, tsn, Dec.
5, 1968; p. 7, tsn, Dec. 27, 1968; p. 42, tsn, Feb. 25,
1969). Upon reaching a doromon tree some ten meters
away from her house, she met Reynaldo Masanque and
Hospicio Pasibi, who were on their way to find out the
cause of the successive gunshots that they had heard
while conserving in the park near the municipal building.
Natividad thereupon requested Reynaldo Masanque to go
to her mother and sister, telling him that they had been
shot and so Masanque complied, and ran towards
Natividad's house (pp. 5, 16-20, tsn, March 31, 1970).
Upon reaching the door of the Grulla residence,
Masanque saw Pacito Sto. Tomas inside, his right hand
holding a gun and his back towards the door. Masanque
likewise saw Salvacion lying on the floor and Consolacion
leaning against a table (pp. 6-7, tsn, Ibid). Afraid that he
might be shot if he were seen by Pacito, Masanque left
immediately, and he overtook Natividad Grulla near the
house of Mr. Barios, her arms being held by Hospicio
Pasibi (pp. 10, 11, tsn, Ibid). Upon reaching the corner of
Calle Tres Marias, they met Sixto Grulla, a brother of
Natividad, who had also been alarmed by the shots he
heard. Sixto went with them to the municipal building, and
on the way, Natividad unfolded to him the tragic incident
(p. 11, tsn, March 31, 1970; p. 16, tsn, April 1, 1970).1
On the other hand, appellant's version of the incident tends to show that it
was his wife Salvacion Grulla who accidentally shot his mother-in-law, the
deceased Consolacion Belmonte Vda. de Grulla. Summing up his
evidence, it appears that he went to Donsol, Sorsogon on the fatal day in
question in order to fetch his wife Salvacion Grulla and their children for
purposes of bringing them to Legaspi City since he will have to be
confined in a hospital on the following day upon orders of his doctor.
Upon reaching his wife's place, he knocked at the back door near the
kitchen. Salvacion opened the door. Right then and there, appellant told
her to get ready for Legaspi City with their children. Salvacion refused to
leave for Legaspi City and ignored appellant's plea. Appellant then
entered the room occupied by his mother-in-law, Consolacion, to get the
suitcase containing his children's clothes. Consolacion was awakened
and learning of appellant's purpose in going to their place, she angrily
cursed the latter. Appellant then reiterated and explained to his mother-
in-law, (Consolacion) his purpose in fetching his wife and children. A
verbal altercation thereafter ensued between them during which time,
accused-appellant branded his mother-in-law as " kunsintidora.
Angered by the harsh and discourteous words of the appellant,
Consolacion grabbed both hands of the latter from behind and while
struggling to free himself from his mother- in-law, Salvacion grabbed
appellant's Magnum 357 revolver from the latter's shoulder holster, and
when Salvacion saw accused kicking her mother, she fired the gun hitting
the appellant at the lower mandible dislocating his mandible and
shattering completely his pharynx. The force of the gun fire rifted the
appellant, forcing him to fall by his side on the floor bleeding and gasping
for breath. Salvacion fell on her knees beside the fallen body of accused-
appellant and in a moment of self-recrimination uttered out of fear. "I
pulled the trigger of the gun when I saw you kicked my mother. I did not
do it purposely, Cito" referring to the appellant. Accused-appellant then
succeeded in reaching for the gun held by his wife Salvacion. Salvacion
warded him off and called her mother for help. Salvacion, Consolacion
and appellant then began grappling for the gun. In the process, the gun
went off hitting Consolacion who was thrown backward into a chair. Still,
accused-appellant and Salvacion continued to grapple for the possession
of the gun until both of them fell on the floor with Salvacion falling on top
of the appellant. As they continued grappling near a table, the gun again
exploded. Finally, Salvacion slowly relaxed her hold on the gun and said
"I am hit, Cito", and thereafter fell on the floor. Later, accused-appellant
heard a noise coming from the room of Natividad Grulla, sister of
Salvacion. Afraid that someone was trying to gain entrance into the
bedroom, accused-appellant instinctively reloaded his gun and fired in
the general direction of the bedroom where the noise came from. The
noise stopped and suddenly Natividad crying, came out of the bedroom
across the sala. 2
As will be noted, appellant denies any liability for the death of Salvacion
(his deceased wife), Consolacion (his mother-in-law), and the near fatal
shooting of Natividad (his sister-in-law), claiming that the death of the two
(2) aforementioned victims was purely accidental, the firing of his gun
that hit them being brought about by Salvacion's grappling with him for
the possession thereof. Disputing this claim, however, and totally
demolishing the veracity of said assertion, are the injuries sustained by
the deceased as shown by the post mortem examination conducted upon
their cadavers. Salvacion Grulla suffered four (4) gunshot wounds: one
on the posterior aspect of her neck; another one on the chest; a third one
on the left abdominal region; and a fourth one on the right forearm. 3
Mrs. Consolacion Grulla on the other hand, likewise sustained four (4)
gunshot wounds:one on the left face just below the cheekbone; a
second one on the left side of the neck; a third one on the left cheek at
the level of the second rib; and a fourth one at the back left side of her
body. These multiple gunshot wounds sustained by the two (2)
aforementioned victims conclusively negate the theory espoused by the
appellant-that the shooting was merely accidental. On the contrary, they
were mute but vivid testimonials of the manner by which they were
inflicted-indicating that both Salvacion and Consolacion were deliberately
fired upon by the appellant thereby sustaining those various gunshot
wounds resulting in their death.
The same holds true with regards to Natividad. That she was intentionally
fired upon by the appellant is clearly established by her clear and
straightforward testimony which do not appear to have been dented
despite rigorous and rigid cross-examination. Natividad testified that the
exchange of words between appellant and his wife Salvacion at their sala
awakened her. Coming out of her bedroom, Natividad joined the spouses
(appellant and Salvacion) and her mother Consolacion in the sala. The
incident was preceded by appellant's plea upon Consolacion to allow
Salvacion to go with him to Legaspi City since he was going to enter the
hospital the following day. Consolacion told appellant that her daughter
Salvacion is no longer willing to go and live with him because of the
untold miseries and sufferings she has undergone at his hands brought
about by appellant's jealousy. Turning upon his wife (Salvacion) appellant
also got a negative answer. Besides, ,Salvacion told appellant that their
daughter Blesilda was suffering from high fever at the time.
As the heated exchange of words went on between appellant ,on the one
hand and Consolacion and Salvacion at the other, and while Natividad
was returning to her bedroom, a series of gunshots rent the air. She then
turned around and saw appellant firing at Salvacion. As she stepped
back into their sala, she saw accused holding his revolver. 4 She also saw
her mother Consolacion about three meters away from the appellant
already reclining on a table totally motionless. Natividad called her but
there was no answer. Consolacion was already dead.
Natividad continued pleading to the appellant to spare the life of his sister
Salvacion telling him that the latter will now go with him to Legaspi City.
Natividad's plea, however, fell on deaf ears. Frightened that appellant
may now vent his ire on her and already panicky at the time, she rushed
back to her bedroom with her hands raised in gesture of surrender. As
she was entering her room she again heard gunshots. She turned around
to see whom the accused was firing at only to find out that she was
already hit at her left arm which was profusely bleeding at that time. She
tried to support it with her right arm, but the accused again fired at her
this time hitting her at her right forearm. She lost no time running out of
the house passing by their front door to escape from the appellant,
simultaneously shouting for help.
Examined and treated by Dr. Adan R. Eva of the Albay Provincial
Hospital on that same night, she was found to have suffered 5 gunshot
wounds at the posterior lateral side, middle third left forearm; another
gunshot wound with lacerated edges on the posterior surface of her left
elbow; a third gunshot wound with lacerated edges on distal 1/5 posterior
surface left arm; and a compound fracture of the left forearm.
Testifying on the said injuries, Dr. Eva stated that the injury of the left
forearm which penetrated through and through, causing a compound
fracture comminuted with bone fragments which necessitated an
operation could have caused the death of the patient were it not for the
timely surgery because complications could have arisen and tetanus
would have set in.
That appellant's gun which had finally been determined to be a Magnum
357 revolver was fired intentionally appeared further corroborated by the
empty shells found at the sala of the Grullas' residence. Chief of Police
Salvatierra responding to the report of the shooting incident, found ten
(10) empty shells on the floor of the sala of Mrs. Grulla's house.
Inspecting the Magnum revolver of the appellant, he found inside its
chamber one empty shell and another live bullet. Considering that the
revolver's chamber could accommodate only six (6) bullets at a time and
as admitted by the appellant himself, the gun was reloaded after being
emptied. If the first shot was accidental, why was there a necessity to
reload the said gun? Would that not be inviting more trouble that could
lead to more disastrous consequences? If his version is true, he should
have thrown that gun away to prevent a repetition of it being fired by
accident. But that is not what he did. His reloading of that gun destroys
and unravel the falsity of his concoction. To subscribe with appellant's
claim of accidental shooting will be gullibility at its highest.
The trial court found Natividad Grulla to be a very credible witness. Her
testimony appeared positive, categorical and unequivocal despite rigid
and thorough cross-examination. She has never waivered much less
vacillated at any time throughout the entire course of her testimony.
As aptly observed by the trial court
A careful analysis of Natividad's testimony gives out the
revealing fact that she saw something else, and this was
the horrible spectacle of her helpless sister being fired at
pointblank by the accused, Natividad stuck to this
statement, making no mention whatsoever, however, that
she saw the accused doing the same to an equal beloved
if not a far dearer individual in the person of her mother
whom, she saw at the same moment seated motionless.
This unembelished testimony of Natividad, who could
have so easily pointed an accusing finger at the accused
as having been likewise seen by her firing at her mother,
exudes nothing less than the untarnished truth of what
she actually saw and spoke of. If her purpose in declaring
forthright that she actually saw accused Pacito Sto.
Tomas firing at Salvacion was none other than to falsely
implicate him, how easily could she have done the same
insofar as the incident concerned her mother!
We can do no less in according her the same credence since the record
is bereft of any circumstance of note that will negate His HONOR's
findings and conclusions. 6
In view thereof, We find no merit in appellant's assignment of error nos.
II, III, VI and VIII.
In Criminal Case No. 22, accused-appellant was charged with and
convicted of PARRICIDE, the victim being his wife Salvacion Grulla.
Appellant, however, contends that even assuming he could be made
liable for the death of Salvacion, yet his conviction for parricide is
erroneous, his marriage to the latter being null and void since he is
previously married to a certain Prima Patanao wayback in 1943. In
support of his aforesaid claim, he presented Prima Patanao who testified
on this alleged marriage. He also introduced a xerox copy of his alleged
marriage certificate 7 with Patanao. Upon objection, however, by the
prosecution, the trial court rejected said xerox copy since admission
thereof violates the best evidence rule.
We agree with His Honor's ruling, the same being welltaken. Section 2,
Rule 130 of the Rules of Court provides:
Sec. 2. Original writing must be produce exceptions.
There can be no evidence of a writing the contents of
which is the subject of inquiry, other than the original
writing itself, except in the following cases:
a) When the original has been lost, destroyed, or cannot
be produced in court;
c) When the original is in the possession of the party
against whom the evidence is offered, and the latter fails
to produce it after reasonable notice;
c) When the original is a record or other document in the
custody of a public officer;
d) When the original has been recorded in an existing
record a certified copy of which is made evidence by law;
e) When the original consists of numerous accounts or
other documents which cannot be examined in court
without great loss of time and the fact sought to be
established from them is only the general result of the
whole.
None of the aforesaid circumstances appeared proven by the defense
evidence that will sufficiently warrant admission of the xerox copy in
question. The uncorroborated testimony of Patanao hardly sufficed to
overthrow the legality of appellant's marriage to the deceased Salvacion
Grulla.
Anent appellant's submission that the trial court erred in considering
dwelling as an aggravating circumstance, we find the same bereft of any
legal support. There is no dispute that the place where the crimes herein
involved were committed is the house of Consolacion Grulla. It is there
where she lives with her daughter, Natividad Grulla (the other victim) and WHEREFORE, the judgment appealed from is hereby AFFIRMED with
where Salvacion Grulla was temporarily staying in order to escape from the following MODIFICATIONS:
the brutalities of the appellant brought about by the latter's jealousy. The
fact that Salvacion's stay in the said place may be considered as a A. In Criminal Case No. 22:
temporary sojourn adds no validity to appellant's stance on this point. As
we earlier held in People vs. Galapia, 8 the aggravating circumstance of Accused-appellant is hereby sentenced to reclusion perpetua; and to
dwelling is present when the appellant killed his wife in the house indemnify the heirs of the deceased Salvacion Grulla in the amount of
occupied by her other than the conjugal home. Similarly, dwelling is P30,000.00 plus P10,000.00 moral damages; and costs.
aggravating where the offended party was raped in a boarding house
rented by her. 9
B. In Criminal Case No. 23:
Appellant also questions the trial court's findings that Natividad Grulla
To an indeterminate penalty of 10 years and 1 day of prision mayor as
suffered permanent deformity 10 by reason of the injuries sustained by
minimum, to 17 years and 4 months of reclusion temporal as the
her. Furthermore, he also asserts that no treachery attended the shooting
maximum; and to indemnify the heirs of the deceased Consolacion Vda.
of Natividad. A review of the evidence on record, however, clearly
de Grulla the amount of P30,000.00 plus P10,000.00 moral damages and
indicates that Natividad was fired upon by the appellant while she was
costs.
entering her bedroom with her back turned against the appellant. lt was
while she was running away with her arms raised in surrender that
accused fired at her. Treachery therefore clearly attended the attack C. In Criminal Case No. 29.
made upon her. 11
To 6 years and 1 day of prision mayor as minimum, to 14 years and 8
With respect to the questioned deformity, it was indubitably shown that months of reclusion temporal as the maximum; to indemnify Natividad
she is now permanently mained. Her left arm became shorter than her Grulla in the following amounts: P700.00 covering actual damages;
right arm as a result of the gunshot wound sustained by her. All hope of P20,000.00 by way of moral damages plus P10,000.00 representing
her left arm being restored to its normal length had been totally value for the loss of the scholarship grant and costs.
foreclosed. In short, her present condition is beyond medical repair. By
reason thereof, she is now exposed to public ridicule aside from having SO ORDERED.
spent some P700.00 for her hospitalization. She also lost the chance of a
lifetime to better her future in the form of a scholarship grant by the Concepcion, Jr., Escolin, De la Fuente * and Alampay, JJ., concur.
Insular Life Assurance Corporation amounting to P10,000.00. The two (2)
bullets pumped into her body from the gun of the accused deprived her of
a better tomorrow and total loss of the monetary value of said scholarship
grant to which she is rightfully entitled to.

Aside from parricide, accused-appellant was likewise found guilty of

MURDER for the death of her mother-in-law Consolacion Vda. de Grulla.
The Information in this case 12 alleged evident premeditation as the
qualifying circumstance. We, however, found no evidence on record
proving the existence of said circumstance. Consolacion was fired upon
while arguing with the appellant, the latter having probably blacked-outed
when he thereafter squeezed the trigger of his gun aimed at Consolacion.
There is likewise no evidence on record showing the manner by which he
was attacked and/or fired upon by the appellant. Hence, appellant may
be liable only for Homicide.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19491 August 30, 1968
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
APOLONIO APDUHAN, JR. alias JUNIOR, ET AL., defendants,
APOLONIO APDUHAN, JR. alias JUNIOR, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
Alberto M. Meer for defendant-appellant.
CASTRO, J.:
This is an automatic review of the judgment rendered on August 30, 1961
by the Court of First Instance of Bohol (Judge Hipolito Alo presiding)
convicting Apolonio Apduhan, Jr. of robbery with homicide and
sentencing him to death and "to idemnify the heirs of the deceased
Geronimo Miano in the amount of P6,000.00, to indemnify the heirs of the
other deceased Norberto Aton in the same amount of P6,000.00 ..."
On August 2, 1961 the accused Apduhan, then represented by Atty.
David Ocangas, together with his co-accused Rodulfo Huiso and Felipe
Quimson, both represented by Atty. David Tirol, pleaded not guilty to a
second amended information which recites:.
The undersigned Provincial Fiscal accuses Apolonio Apduhan,
Jr., alias Junior, Rodulfo Huiso and Felipe Quimson of the crime
of Robbery with Homicide, committed as follows:
That on or about the 23rd day of May, 1961, at about 7:00 o'clock
in the evening, in the Municipality of Mabini, Province of Bohol,
Philippines, the above-named accused and five (5) other persons
whose true names are not yet known (they are presently known
only with their aliases of Bernabe Miano, Rudy, Angel-Angi,
Romeo and Tony) and who are still at large (they will be charged
in separate information or informations as soon as they are
arrested and preliminary proceedings in Crim. Case No. 176
completed before the Justice of the Peace Court), all of them
armed with different unlicensed firearms, daggers, and other
deadly weapons, conspiring, confederating and helping one
another, with intent of gain, did then and there willfully, unlawfully
and feloniously enter, by means of violence, the dwelling house of
the spouses Honorato Miano and Antonia Miano, which was also
the dwelling house of their children, the spouses Geronimo Miano
and Herminigilda de Miano; and, once inside the said dwelling
house, the above-named accused with their five (5) other
companions, did attack, hack and shoot Geronimo Miano and
another person by the name of Norberto Aton, who happened to
be also in the said dwelling house, thereby inflicting upon the said
two (2) persons physical injuries which caused their death; and
thereafter the same accused and their five (5) other companions,
did take and carry way from said dwelling house cash money
amounting to Three Hundred Twenty-two Pesos (P322.00),
Philippine Currency, belonging to Honorato Miano and Geronimo
Miano, to the damage and prejudice of the said Honorato Miano
and the heirs of the deceased Geronimo Miano in the sum of
Three Hundred Twenty-two Pesos (P322.00) with respect to the
amount robbed, and also to the damage and prejudice of the
heirs of deceased Geronimo Miano and Norberto Aton by reason
of the death of these two persons.
Act committed contrary to the provisions of Art. 294, par. 1, of the
Revised Penal Code with the special aggravating circumstance
that the crime was committed by a band with the use of
unlicensed firearms (Art. 296, Rev. Penal Code), and other
aggravating circumstances, as follows:
1. That the crime was committed in the dwelling of the offended
parties without any provocation from the latter;
2. That nighttime was purposely sought to facilitate the
commission of the crime; and.
3. That advantage was taken of superior strength, accused and
their companions, who were fully armed, being numerically
superior to the offended parties who were unarmed and
defenseless.
When the case was called for trial on August 9, 1961, Atty. Tirol informed
the court a quo that he was appearing also for Apduhan, but only as
counsel de oficio. In view of this manifestation, the trial court appointed
Atty. Tirol as counsel de oficio for the said accused. Forthwith, Atty. Tirol
manifested that Apduhan would change his former plea of not guilty to a
plea of guilty. The record discloses that after the trial, judge had
repeatedly apprised Apduhan of the severity of the offense for which he
was indicted and the strong possibility that the capital penalty might be
imposed upon him despite a plea of guilty, Apduhan persisted in his
intention to plead guilty with the request, however, that the death penalty
be not imposed. Then after hearing the arguments of Provincial Fiscal
Jesus N. Borromeo and Atty. Tirol on the effect of articles 295 and 296 of
the Revised Penal Code on the case at bar, the trial judge advised the
herein accused anew that he could be sentenced to death
notwithstanding his projected plea of guilty, but the latter reiterated his
desire to confess his guilt on the specific condition that he be sentenced
to life imprisonment. Eventually, however, Apduhan desisted from
pleading guilty and let his previous plea stand on record after further
warnings that he faced the grave danger of being sentenced to death in
view of the circumstances of his case. But the aforesaid desistance was
merely momentary as it did not end the accused's equivocation on the
matter of his plea. After a five-minute recess requested by Atty. Tirol in
order to confer with the accused, the former informed the court a quo that
his client would insist on entering a plea of guilty. The following appears
on record:
Atty. D. TIROL:
Your Honor, please, I had a conference with the accused and I
apprised him with the situation of the case and after hearing our
apprisal he manifested that he will insist on his entering a plea of
guilty, Your Honor. I made it clear to him that we are not forcing
him to enter the plea of guilty.
COURT (To accused Apolonio Apduhan, Jr.)
Q. Is it true that you are withdrawing your plea of not guilty?
A. I will just enter the plea of guilty.
Q. Have you been forced to enter the plea of guilty by your
lawyer?.
A. No, Sir.
Q. And why do you said "I will JUST enter the plea of not guilty"?
A. I have proposed to enter the plea of guilty even before.
Q. Now the Court warns you again. Are you conscious of the fact
that notwithstanding your plea of guilty the Court may impose
upon you the penalty of death?
A. I will just enter the plea of guilty, at the discretion of the Court.
Q. Even with all those dangers mentioned by the Court to you? .
A. Yes, Sir. (t.s.n. pp. 23-25).
Subsequently the prosecuting fiscal and the counsel de oficio resumed
their oral arguments regarding the effect on the instant case of articles
295 and 296, particularly the use of unlicensed firearm as a special
aggravating circumstance under the latter article. Also discuss were the
existence and effect of the alleged mitigating and aggravating
circumstances. All of these points will be later analyzed.
When the lower court subsequently reviewed the proceedings, it found
that the accused's plea of guilty was ambiguous. Hence, on August 30,
1961, the case was reopened with respect to Apduhan, and on said date
the latter entered a categorical plea of guilty, as evidenced by the record:
COURT (To Accused Apduhan, Jr.):
The Court reopened this case because after a review of the proceedings
it found that your plea was not definite. In answer to a question of the
Court you simply said "I will just enter the plea of guilty". The Court wants
to know whether you enter the plea of guilty of the crime charged in the
second amended information.
ACCUSED APDUHAN:.
I enter the plea of guilty.
COURT (To same accused Apduhan):
Q. Therefore, you admit that you have committed the crime
charged in the second information?
A. Yes, Your Honor.
 Q. Is it necessary for you that the second amended information
be read again?
A. No more; it is not necessary.
Q. Do you want that the second amended information be read to
you again?
A. No more, Your Honor. (t.s.n. pp. 50-51).
On the same day, the court a quo rendered its decision, the pertinent
dispositive portion of which reads:.
PREMISES CONSIDERED, the Court renders judgment finding
accused Apolonio Apduhan, Jr., alias Junior guilty of the complex
crime of robbery with homicide, punished by Article 294 of the
Revised Penal Code, in relation to Article 296 of the game Code,
as amended, and sentences him to suffer the penalty of death.
Considering that Apduhan had voluntarily confessed his guilt in open
court, then the only aspect of the case properly subject to review is the
correctness of the penalty imposed by the court a quo. In this respect, the
appreciation of the use of unlicensed firearm as a special aggravating
circumstance (art. 296) in fixing the appropriate penalty for robbery with
homicide (Art, 294 [1]) committed by a band with the use of unlicensed
firearms, and the interplay and counter-balancing of the attendant
mitigating and aggravating circumstances, would determine the severity
of the penalty imposable.
The disposition of the question at hand necessitates a discussion of the
interrelation among articles 294, 295 and 296 of the Revised Penal Code.
For this purpose the said articles are hereunder quoted:
ART. 294. Robbery with violence against or intimidation of
persons Penalties. Any person guilty of robbery with the use
of violence against or intimidation of any person shall suffer:
1. The penalty of reclusion perpetua to death, when by
reason or on occasion of the robbery, the crime of
homicide shall have been committed.
2. The penalty of reclusion temporal in its medium period
to reclusion perpetua, when the robbery shall have been
accompanied by rape or intentional mutilation, or if by
reason or on occasion of such robbery, any of the
physical injuries penalized in subdivision 1 of article 263
shall have been inflicted.
3. The penalty of reclusion temporal, when by reason or
on occasion of the robbery, any of the physical injuries
penalized in subdivision 2 of the article mentioned in the
next preceding paragraph, shall have been inflicted.
4. The penalty of prision mayor in its maximum period
to reclusion temporal in its medium period, if the violence
or intimidation employed in the commission of the robbery
shall have been carried to a degree clearly unnecessary
for the commission of the crime, or when in the course of
the execution, the offender shall have inflicted upon any
person not responsible for its commission any of the
physical injuries covered by subdivisions 3 and 4 of said
article 263.
5. The penalty of prision correccional in its maximum
period to prision mayor in its medium period in other
cases. (As amended by Rep. Act 18.).
ART 295. Robbery with physical injuries, committed in an
uninhabited place and by a band, or with the use of firearm on a
street, road or alley. If the offenses mentioned in subdivisions
three, four, and five of the next preceding article shall have been
committed in an uninhabited place or by a band, or by attacking a
moving train, street car, motor vehicle or airship, or by entering
the passengers' compartments in a train or, in any manner, taking
the passengers thereof by surprise in the respective
conveyances, or on a street, road highway, or alley, and the
intimidation is made with the use of a firearm, the offender shall
be punished by the maximum period of the proper penalties. (As
amended by Rep. Acts Nos. 12 and 373.) (Emphasis supplied) .
ART. 296. Definition of a band and penalty incurred by the
members thereof. When more than three armed malefactors
take part in the commission of a robbery, it shall be deemed to
have been committed by a band. When any of the arms used in
the commission of the offense be an unlicensed firearm the
penalty to be imposed upon all the malefactors shall be the
 maximum of the corresponding penalty provided by law, without
prejudice to the criminal liability for illegal possession of such
unlicensed firearm.
Any member of a band who is present at the commission of a
robbery by the band, shall be punished as principal of any of the
assaults committed by the band, unless it be shown that he
attempted to prevent the same. (As amended by Rep. Act No.
12). (Emphasis supplied).
The afore-quoted art. 294 enumerates five classes of robbery
with violence against or intimidation of persons and prescribes
the corresponding penalties. The case at bar falls under art.
294(1) which defines robbery with homicide and fixes the penalty
from reclusion perpetua to death.
Article 295 provides, inter alia, that when the offenses described in
subdivisions 3, 4 and 5 of art. 294 are committed by a band, the proper
penalties must be imposed in the maximum periods. The circumstance of
band is therefore qualifying only in robbery punished by subdivisions 3, 4,
and 5 of art. 294. Consequently, art. 295 is inapplicable to robbery with
homicide, rape, intentional mutilation, and lesiones graves resulting in
insanity, imbecility, impotency or blindness. If the foregoing classes of
robbery which are described in art. 294(1) and (2) are perpetrated by a
band, they would not be punishable under art. 295, but
then cuadrilla would be a generic aggravating under Art. 14 of the
Code.1 Hence, with the present wording of art. 2952 there is no crime as
"robbery with homicide in band." If robbery with homicide is committed by
a band, the indictable offense would still be denominated as "robbery with
homicide" under art. 294(1), but the element of band, as stated above,
would be appreciated as an ordinary aggravating circumstance.
Article 296, as quoted above, defines "band", creates the special
aggravating circumstance of use of unlicensed firearm, and provides the
criminal liability incurred by the members of the band. The ascertainment
of the definite function and range of applicability of this article in relation
to articles 294 and 295 is essential in the disposition of the case at bar.
In imposing the death penalty, the trial court appears to have accorded
validity to the Provincial Fiscal's contention that in robbery with homicide
committed by a band, the use of unlicensed firearm must be appreciated
as a special aggravating circumstance pursuant to art. 296. Thus
convinced, the trial judge stressed in his decision that "under the express
mandate of the law, we cannot escape the arduous task of imposing the
death penalty." Subscribing to the said position, the Solicitor General
adds that the "penalty for robbery under the circumstances mentioned in
Articles 294, paragraph 1, and 296 of the Code is the maximum of
reclusion perpetua to death, or the supreme penalty of death. This is
mandatory." .
On the other hand, Atty. Alberto M. Meer, the accused's counsel de oficio
in the present review, contends that the use of unlicensed firearm, if ever
appreciated in the case at bar, must be considered a generic aggravating
factor which "may be off-set by the existence of mitigating circumstances
so that the penalty to be imposed should be the penalty of reclusion
perpetua." .
Both the foregoing contentions are untenable.
After a perceptive analysis of the provisions of art. 296, we reach the
considered opinion that the said article is exclusively linked and singularly
applicable to the immediately antecedent provision of art. 295 on robbery
in band, as the latter article, in turn, is explicitly limited in scope to
subdivisions 3, 4, and 5 of art. 294. Consequently, although the use of
unlicensed firearm is a special aggravating circumstance under art. 296,
as amended by Rep. Act 12, 3 it cannot be appreciated as such in
relation to robbery with homicide, described and penalized under
paragraph 1 of art. 294.
As previously stated, art. 295 provides that if any of the classes of
robbery described in subdivisions 3, 4, and 5 of art. 294 is committed by
a band, the offender shall be punished by the maximum period of the
proper penalty. Correspondingly, the immediately following provisions of
art. 296 define the term "band", prescribe the collective liability of the
members of the band, and state that "when any of the arms used in the
commission of the offense be in unlicensed firearm, the penalty to be
imposed upon all the malefactors shall be the maximum of the
corresponding penalty provided by law." Viewed from the contextual
relation of articles 295 and 296, the word "offense" mentioned in the
above-quoted portion of the latter article logically means the crime of
robbery committed by a band, as the phrase "all the malefactors"
indubitably refers to the members of the band and the phrase "the
corresponding penalty provided by law" relates to the offenses of robbery
described in the last three subdivisions of art. 294 which are all
encompassed within the ambit of art. 295. Evidently, therefore, art. 296 in
its entirety is designed to amplify and modify the provision on robbery in
band which is nowhere to be found but in art. 295 in relation to
subdivisions 3, 4, and 5 of art. 294. Verily, in order that the aforesaid
special aggravating circumstance of use of unlicensed firearm may be
appreciated to justify the imposition of the maximum period of the proper
penalty it is a condition sine qua non that the offense charged be robbery
committed by a band within the contemplation of art. 295. To reiterate,
since art. 295, does not apply to subdivision 1 and 2 of art. 294, then the
special aggravating factor in question, which is solely applicable to
robbery in band under art. 295, cannot be considered in fixing the penalty
imposable for robbery with homicide under art. 294(1), even if the said
crime was committed by a band with the use of unlicensed firearms.
The legislative intent of making art. 296 corollary to art. 295 with respect
to robbery in band was unmistakably articulated by Congressman Albano
in his sponsorship speech on H. B. No. 124 (subsequently enacted as
Rep. Act No. 12, amending, among others, articles 295 and 296 of the
Revised Penal Code). Said Congressman Albano: "Article 296 as a
corollary of Article 295 would change the definition heretofore known of
the term "band" under the law. The purpose of this amendment is to inject
therein the element of aggravation, when any member of the band carries
an unlicensed firearm . ." 4.
The special aggravating circumstance of use of unlicensed firearm,
however, was initially applicable to all the subdivisions of art. 294 since
the said Rep. Act No. 12 also amended art. 295 to include within its
scope all the classes of robbery described in art. 294. With the then
enlarged coverage of art. 295, art. 296, being corollary to the former, was
perforce made applicable to robbery with homicide (art. 294[1]). Thus, in
People vs. Bersamin, 5 this Court, in passing, opined: "The use of
unlicensed firearm is a special aggravating circumstanceapplicable only
in cases of robbery in band (Art. 296, Revised Penal Code, as amended
by Section 3, Republic Act No. 12)." .
In the said case, this Court declared in effect that in robo con homicidio
the use of unlicensed firearm is not a special aggravating circumstance
when the said offense is not committed by a band. Inferentially, had the
robbery with homicide in Bersamin been perpetrated by a band, the use
of unlicensed firearm would have been appreciated. This implied
pronouncement would have been justified under art. 296 in relation to art.
295, as amended by Rep. Act 12. But the aforesaid inference lost all
legal moorings in 1949 with the enactment of Rep. Act 373 which
excluded subdivisions 1 and 2 of art. 294 from the coverage of art. 295.
Since art. 296, as repeatedly emphasized above, is corollary to art. 295,
the diminution of the latter's scope correspondingly reduced the former's
extent of applicability. In other words, the passage of the foregoing
amendment did not only jettison the first two subdivisions of art. 294 from
the periphery of art. 295 but also removed the said subdivisions (which
pertain, inter alia, to the offense of robbery with homicide) from the
effective range of art. 296.
Notwithstanding that the special aggravating circumstance of use of
unlicensed firearm cannot be appreciated in the instant case, we are
constrained, in the final analysis, to observe that the imposition of the
death penalty on the accused Apduhan would appear to be a logical legal
consequence, because as against the attendant mitigating circumstances
the aggravating circumstances numerically and qualitatively
preponderate.
After Apduhan had pleaded guilty, the defense counsel offered for
consideration three mitigating circumstances, namely, plea of guilty,
intoxication, and lack of intent to commit so grave a wrong.
Subsequently, however, the defense withdrew the last mentioned
mitigating circumstance after the prosecution had withdrawn the
aggravating circumstance of abuse of superior strength. The following
manifestations appear on record: .
"FISCAL BORROMEO: .
"In fairness to the accused, because the crime charged is robbery
in band (the case at bar is actually robbery with homicide), it is
natural that in robbery in band there is already abuse of superior
strength, so we will just withdraw that superior strength.
"COURT (To Atty. D. Tirol): .
"What do you say now? .
"ATTY. D. TIROL: .
"Such being the case, we will not insist on presenting evidence in
support of our contention that the accused did not intend to
commit so grave a wrong.
"COURT: .
"Moreover by the mere use of firearm the accused cannot claim
that he did not intend to commit so grave a wrong as that
committed. So now you withdraw your petition that you be
allowed to present evidence to that effect? .
"ATTY. D. TIROL: .
"Yes, Your Honor." (t.s.n. pp. 47-48).
Thus, only two alleged mitigating circumstances remain for
consideration.
Anent the plea of guilty, we believe that under art. 13 (7) its
appreciation in the case at bar is beyond controversion.
However, apropos the alternative circumstance of intoxication, we
find no evidence on record to support the defense's claim that it
should be considered as a mitigating factor. This absence of
proof can be attributed to the defense's erroneous belief that it
was not anymore its burden to establish the state of intoxication
of the accused when he committed the offense charged since
anyway the prosecution had already admitted the attendance of
the said mitigating circumstance on the ground that the State did
not have strong evidence to overthrow the accused's claim of
non-habituality to drinking. The record discloses the following
pertinent discussion: .
"COURT (To Fiscal Borromeo):.
"Do you agree, Mr. Fiscal, that the non-habitual intoxication of the
accused be also taken into account in his favor as a mitigating
circumstance? "FISCAL BORROMEO: .
"We have no evidence exactly to know at this time that the
accused was intoxicated, but his affidavit states that before the
commission of the crime they took young coconuts and there is
no mention about the taking of any liquor, so that, as it is now, we
are constrained to object.
"COURT (To the Fiscal): .
"But do you have evidence to counteract that allegation? .
"FISCAL BORROMEO: .
"We do not have any evidence to counteract that.
"COURT (To the Fiscal): .
"But do you not admit the attendance of that circumstance? .
"FISCAL BORROMEO: With that manifestation we submit
because actually we do not have evidence to counteract that he
was a habitual drinker. "COURT (To the Fiscal): .
"But do you prefer to admit that mitigating circumstance or you
need that evidence be presented to that effect? "FISCAL
BORROMEO: .
"Inasmuch as we do not have strong evidence to contradict that
circumstance in fairness to the accused, we would rather submit.
"COURT (To the Fiscal): .
"The attendance of the mitigating circumstance of non-habitual
intoxication? .
"FISCAL BORROMEO: .
"Yes, Your Honor." (t.s.n. pp. 7-9) (Emphasis supplied) .
From the above proceedings in the trial court, it would appear that what
the prosecution actually intended to admit was the non-habituality of the
accused to drinking liquor, not as a matter of fact, but due to the State's
inability to disprove the same. The prosecution apparently did not
concede the actual intoxication of the accused. We are of the firm
conviction that, under the environmental circumstances, the defense was
not relieved of its burden to prove the accused's actual state of
intoxication. Otherwise, to appreciate the attendance of a mitigating
factor on the mere allegation of the accused, coupled with the dubious
acquiescence of the prosecution, would open wide the avenue for
unscrupulous and deceitful collusion between defense and prosecution in
order to unduly and unjustly minimize the penalty imposable upon the
accused.
The last paragraph of art. 15 of the Code provides:.
"The intoxication of the offender shall be taken into consideration as a
mitigating circumstance when the offender has committed a felony in a
state of intoxication, if the same is not habitual or subsequent to the plan
to commit said felony but when the intoxication is habitual or intentional it
shall be considered as an aggravating circumstance. (Emphasis
supplied).
Under the foregoing provision, intoxication is mitigating when it is not
habitual or intentional, that is, not subsequent to the plan to commit the
crime. However, to be mitigating the accused's state of intoxication must
be proved. 6 Once intoxication is established by satisfactory evidence, 7
then in the absence of proof to the contrary" it is presumed to be non-
habitual or unintentional. 8 .
In People vs. Noble 9 the defendant testified that before the murder he
took a bottle of wine and drank little by little until he got drunk. The
policeman who arrested the accused testified that the latter smelled wine
and vomited. The Court held that the evidence presented was not
satisfactory to warrant a mitigation of the penalty. Intoxication was
likewise not competently proved in a case 10 where the only evidence
was that the defendant had a gallon of tuba with him at the time he
committed the crime.
In the case at bar the accused merely alleged that when he committed
the offense charged he was intoxicated although he was "not used to be
drunk," 11This self-serving statement stands uncorroborated. Obviously,
it is devoid of any probative value.
To recapitulate, the accused has in his favor only one mitigating
circumstance: plea of guilty. As aforementioned, the defense withdrew its
claim of "lack of intent to commit so grave a wrong" and failed to
substantiate its contention that intoxication should be considered
mitigating.
While an unqualified plea of guilty is mitigating, it at the same time
constitutes an admission of all the material facts alleged in the
information, including the aggravating circumstances therein recited. 12
The four aggravating circumstances are (1) band; (2) dwelling; (3)
nighttime; and (4) abuse of superior strength. The circumstance of abuse
of superiority was, however, withdrawn by the prosecution on the ground
that since the offense of robbery with homicide was committed by a band,
the element of cuadrilla necessarily absorbs the circumstance of abuse of
superior strength. We believe that said withdrawal was ill-advised since
the circumstances of band and abuse of superiority are separate and
distinct legal concepts. The element of band is appreciated when the
offense is committed by more than three armed malefactors regardless of
the comparative strength of the victim or victims. Hence, the
indispensable components of cuadrilla are (1) at least four malefactors
and (2) all of the four malefactors are armed. On the other hand, the
gravamen of abuse of superiority is the taking advantage by the culprits
of their collective strength to overpower their relatively weaker victim or
victims. Hence, in the latter aggravating factor, what is taken into account
is not the number of aggressors nor the fact that they are armed, but their
relative physical might vis-a-vis the offended party.
Granting, however, that the said withdrawal was valid, there still remain
three aggravating circumstances which render inutile the solitary
extenuating circumstance of plea of guilty. The prosecution does not
need to prove the said three circumstances (all alleged in the second
amended information) since the accused by his plea of guilty, has
supplied the requisite proof. 13 Hence, we will not belabor our discussion
of the attendance aggravating circumstances.
The settled rule is that dwelling is aggravating in robbery with violence or
intimidation of persons, 14 like the offense at bar. The rationale behind
this pronouncement is that this class of robbery could be committed
without the necessity of transgressing the sanctity of the home. Morada is
inherent only in crimes which could be committed in no other place than
in the house of another, such as trespass and robbery in an inhabited
house. 15 This Court in People vs. Pinca, 16 citing People vs. Valdez, 17
ruled that the "circumstances (of dwelling and scaling) were certainly not
inherent in the crime committed, because, the crime being robbery with
violence or intimidation against persons (specifically, robbery with
homicide) the authors thereof could have committed it without the
necessity of violating or scaling the domicile of their victim." Cuello Calon
opines that the commission of the crime in another's dwelling shows
greater perversity in the accused and produces greater alarm. 18.
Nocturnity is aggravating when it is purposely and deliberately sought by
the accused to facilitate the commission of the crime 19 or to prevent
their being recognized or to insure unmolested escape. 20 Nocturnidad
must concur with the intent and design of the offender to capitalize on the
intrinsic impunity afforded by the darkness of night. 21 In the case at bar,
the affidavit (exh. I-1) of the accused Apduhan shows that he and his co-
malefactors took advantage of the nighttime in the perpetration of the
offense as they waited until it was dark before they came out of their
hiding place to consummate their criminal designs.
In his decision, the trial judge recommends to, the President of the demands a speedy administration, judges are duty bound to be extra
Republic the commutation of the death sentence which he imposed on solicitous in seeing to it that when an accused pleads guilty he
the accused to life imprisonment. The Solicitor General supports this understands fully the meaning of his plea and the import of an inevitable
recommendation for executive clemency. conviction.

We find no compelling reason to justify such recommendation. Contrary As a final commentary on the criminal conduct of the accused herein, it
to the trial judge's observation, the accused's plea of guilty was far from must be emphasized that the instant review was delayed for several
"spontaneous" and "insistent". It will be recalled that his initial plea was years because he escaped from the New Bilibid Prisons on June 17,
one of not guilty. Later, he changed his plea but with the persistent 1963, less than six months after he was committed to the said
condition that he be sentenced to life imprisonment, not death. It was penitentiary. He was recommitted on July 10, 1964 with a new mittimus
only after much equivocation that he finally decided to "just" plead guilty. from the Court of First Instance of Leyte for robbery in band in criminal
Because his plea was still ambiguous, the court a quo had to reopen the case 10099, for which he was sentenced to serve a prison term of from 8
case to ascertain its real nature. Conceding, however, that his plea was years and 1 day to 12 years and 1 day commencing on October 31,
"spontaneous" and "insistent," such manifestation of sincere repentance 1963. 22 His recommitment was reported to this Court only on July 5,
cannot serve to obliterate the attendant aggravating circumstances which 1966.
patently reveal the accused's criminal perversity.
Notwithstanding the foregoing disquisition, for failure to secure the
It appears from a cursory reading of the decision under review that the required number of votes, the penalty of death cannot be legally
trial judge also anchored his recommendation on the ground that there is imposed. The penalty next lower in degree - reclusion perpetua - should
"the possibility that the firearm was used in order to counteract the consequently be imposed on the accused.
resistance of the deceased." This is no justification at all for executive
clemency. Firstly, the above observation is a mere conjecture - in the ACCORDINGLY, with the modification that the death sentence imposed
language of the presiding judge, a "possibility." Secondly, even granting upon Apolonio Apduhan, Jr. by the court a quo is reduced to reclusion
that the said observation relates to the actual happening, to employ a perpetua, the judgment a quo is affirmed in all other respects, without
firearm in subduing the lawful resistance of innocent persons is a criminal pronouncement as to costs.
act by any standard.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez,
Even as we purge the decision under review of its errors, we must hasten Angeles and Fernando, JJ., concur.
to commend the trial judge, the Hon. Hipolito Alo, for his earnest and
patient efforts to forestall the entry of an improvident plea of guilty by the
accused Apduhan, notwithstanding that the latter was already
represented by a counsel de oficio and hence presumed to have been
advised properly. Judge Alo made sure that the accused clearly and fully
understood the seriousness of the offense charged and the severity of
the penalty attached to it. When the accused proposed to confess his
guilt, Judge Alo repeatedly warned him that the death penalty might be
imposed despite his plea of guilty. As aforementioned, when it appeared
that Apduhan's plea of guilty was ambiguous, Judge Alo reopened the
case to determine with definitiveness the nature of his plea.

The virtue of Judge Alo's efforts in ascertaining whether Apduhan

pleaded guilty with full knowledge of the significance and consequences
of his act, recommends itself to all trial judges who must refrain from
accepting with alacrity an accused's plea of guilty, for while justice
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-30449 October 31, 1979
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO GARCIA Y CABARSE alias "TONY MANOK" and
REYNALDO ARVISO V REBELLEZA alias "RENE
BISUGO," defendants-appellants.
Wenceslao B. Trinidad for appellants.
Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V.
Bautista and Solicitor Adolfo J. Diaz for appellee.
ABAD SANTOS, J.:
This is an appeal from the decision of April 17, 1969 by the Circuit
Criminal Court at Pasig, Rizal, which found the accused guilty of murder
and sentenced them to the death penalty.
The legal verdict hinges on the testimony of the lone eyewitness for the
prosecution, Mrs. Corazon Dioquino Paterno, sister of the deceased,
Apolonio Dioquino, Jr. She testified that at the time of the incident, she
resided at Ventanilla Street, Pasay City. She lived at Pasay City for about
five months before moving to another dwelling at Timog Avenue, Quezon
City. While residing at Pasay City, she conceived a child and during this
period, it was not unusual for her, accompanied by her husband, to step
out of the house in the wee hours of the morning. They set out on these
irregular walks about five times.
During her residence at Pasay City, her brother Apolonio visited her
family for about twenty times. Sometimes her brother would stay instead
at their parents' house at Muntinlupa, Rizal. He usually spent his
weekends in his residence at Bo. Balubad, Porac, Pampanga. Apolonio
and her husband were very close to each other; whenever Apolonio paid
them a visit, he usually slept in the house and sought their help on
various problems.
Before the incident which gave rise to this case, Corazon's husband
informed her that he saw Apolonio engaged in a drinking spree with his
gang in front of an establishment known as Bill's Place at M. de la Cruz
Street. Pasay City. In her sworn statement before the Pasay City Police
executed on November 3, 1968, Corazon surmised that her husband
must have been painting the town red ("nag good time") in that same
place. Upon learning this information from her husband, Corazon
obtained permission to leave the house at 3:00 a.m. so she could fetch
her brother. At that time, she had not been aware that Apolonio was in
Pasay City; she had been of the belief that he was with his family in
Pampanga. She went to fetch him because she wanted him to escape
the untoward influence of his gang. In explaining the rationale for her
noctural mission, she employed in her sworn statement the following
language: "Dahil itong si Junior ay meron na kaming nabalitaan na
naaakay ng barkada niya sa paggawa ng hindi mabuti."
On her way, as she rounded the corner of P.C. Santos Street, Corazon
saw her brother fleeing a group of about seven persons, including the two
accused, Antonio Garcia and Reynaldo Arviso. She recognized the two
accused because they were former gangmates of her brother; in fact, she
knew them before the incident by their aliases of "Tony Manok" and
"Rene Bisugo, " respectively.
Corazon saw that the chase was led by the two accused, with Antonio
carrying a long sharp instrument. Later, in the course of giving her sworn
statement before the Pasay City Police on , November 3, 1968, Corazon
positively Identified Antonio and Reynaldo, who were then at the office of
the General Investigation Section, Secret Service Division, Pasay City
Police Department. She also stated that if she saw the other members of
the group again, perhaps she could likewise Identify them. At the trial,
Corazon likewise pointed out the two accused. During the incident, she
exerted efforts to Identify the other group members, taking care to
conceal herself as she did so. She heard a gunshot which caused her to
seek cover.
When she ventured to look from where she was hiding, about 20 meters
away, she saw the group catch up with her brother and maltreat him.
Some beat him with pieces of wood, others boxed him. Immediately
afterwards, the group scampered away in different directions. Antonio
was left behind. He was sitting astride the prostrate figure of Apolonio,
stabbing the latter in the back with his long knife. Corazon was not able
to observe where Antonio later fled, for she could hardly bear to witness
the scene.
When Corazon mustered the courage to approach her brother, she saw
that he was bathed in a pool of his own blood. The incident threw her in a
state of nervous confusion, and she resolved to report the incident to her
younger sister, who lived at Lakandula Street, Pasay City. Her sister in
turn decided to break the news to their father at Muntinlupa.
Subsequently, Corazon learned that the police authorities were searching
for her brother's gangmates for having killed him. She also learned that
the suspects were in hiding. On the same day October 19, 1968
accompanied by her family, she went at 2:00 p.m. to the Police
Department to inquire about her brother's corpse. They were directed to
the Funeraria Popular, where an autopsy was held. Sometime later, on
November 1, 1968, she transferred residence to Quezon City.
Dr. Mariano Cueva, Jr. testified that he conducted a post-
mortem examination on the cadaver of the decedent Apolonio, and that
he prepared the corresponding Necropsy Report. Dr. Cueva found that
the deceased suffered 22 stab wounds in the different portions of his
hips; in the front portion of the chest and neck; in the back portion of the
torso; and in the right hand. He testified that the wounds sustained by the
deceased brought about a massive hemorrhage which caused death. He
also testified that it is possible that the instrument marked as Exhibit "B"
could have been used in inflicting the multiple stab wounds sustained by
the deceased, except the stab wounds on the neck.
Both the accused took refuge in the defense of alibi. Antonio Garcia
claimed that at that time of the incident starting with the chase and
ending with the victim's death in the morning of October 19, 1968, he
was at a place called Pacita's Canteen which adjoins Bill's Place at M, de
la Cruz Street. Reynaldo Arviso claimed that in the evening of the
preceding night (October 18, 1968) he went on a drinking spree with his
friends at Pacita's Canteen. He went home at 10:30 p.m. and slept up to
7:00 a.m. of October 19, 1968. From 7:00 a.m. of that day, he performed
his duties as a bus conductor by calling for passengers near Pacita's
Canteen.
The trial court pinpointed the issue as revolving around the Identity of the
persons who participated in the killing of the deceased. it banked on the
testimony of the witness, Corazon Dioquino, who positively Identified the
accused as participants in the attack. Noting that "the defense did not
even attempt to present any evil motive on the part of the witness," the
court concluded that "the two accused took part in the perpetuation of the
crime charged." It gave short shrift to the defense of alibi presented by
the two accused, noting that, by their own admission, the two accused
were residents of the vicinity of the crime.
In respect of the circumstances attending the crime it said:
But considering the aggravating circumstances of
nighttime; superior strength; and treachery, which three
aggravating circumstances had been sufficiently
established by the prosecution, the same cannot be offset
by said voluntary surrender to a person in authority of his
agent, plus the uncontested fact that deceased, Apolonio
Dioquino, Jr. suffered no less than 22 stab wounds,
convincing evidence of the apparent criminal perversity of
the accused, the court, therefore, has no alternative but to
impose the supreme penalty.
And rendered judgment as follows:
IN VIEW OF THE FOREGOING, the Court finds the
accused, Antonio Garcia v Cabarse and Reynaldo Arviso
y Rebelleza, GUILTY, beyond reasonable doubt, of the
crime of Murder under Article 248, of the Revised Penal
Code, as charged under Article 248, of the Revised Penal
Code, as charged in the information, and considering the
aggravating circumstances surrounding the commission
of the crime, each one of them is hereby sentenced to
suffer the penalty of DEATH.
The two accused are further ordered to indemnify, the
heirs of the deceased, Apolonio Dioquino, Jr. in the
amount of TWELVE 'THOUSAND (P12,000,00) PESOS,
jointly and severally and to pay their proportionate share
of the costs.
In their Brief, the accused contended that the lower court erred: in not
considering nighttime and superior strength as absorbed in treachery: in
finding nighttime as an aggravating circumstance despite absolute
absence of evidence that nighttime was purposely sought to insure the
execution of the crime; in finding superior strength as an aggravating
circumstance despite absence of evidence to sustain such a finding; in
finding treachery as an aggravating circumstance despite absence of
evidence to that effect; in not stating the qualifying circumstance of the
alleged crime; in holding that the accused Reynaldo Arviso stabbed and
hit the victim when there is no evidence as to the participation of the said
accused Arviso in the execution of the alleged crime; and in failing to
consider the material inconsistencies, prejudice and other circumstances
in the uncorroborated testimony of the only eyewitness, rendering said
testimony not worthy of belief.
The assignment of errors by the accused is anchored on their attempt to
discredit the lone eyewitness for the prosecution, a function which, if
successfully undertaken, would totally obliterate the nexus between the
accused and the crime. The defense vigorously maintained that the
testimony of the only eyewitness is a fabrication, and that she was in fact
absent from the scene which she described in both her sworn statement
and in her testimony at the trial.
The defense asserted that Corazon Dioquino's testimony was riddled by
material inconsistencies. The defense sought to capitalize on the
discrepancy of a sketch made by Corazon and the sketch made by
Pasay City Electrical Engineer Jaime Arriola. Corazon's sketch shows
Juan Sumulong Elementary School to be right in front of P.C. Santos
Street; while Arriola's sketch shows that the school is about 135 meters
from the corner of the street. The defense contended that the
discrepancy was a deliberate falsehood on the part of the witness,
Corazon testified that she was near the corner of P.C. Santos Street
when she saw her brother under chase in front of the school, and that
she met the group in front of the school in a matter of five seconds, more
or less. The defense assailed her testimony on this point as incredible on
the ground that the distance between the point where she saw her
brother being chased, up to the point where she met them, is 135 meters,
and no human being can cover that distance in five seconds. Moreover,
Corazon testified that she was 20 meters away from the place where the
accused caught up with her brother. Again, the defense criticized her
testimony in this respect by pointing out that the true distance is 175
meters.
The defense insisted that Corazon's sketch of the locale of the crime
(Exhibit "1") constitutes "the high point of falsity of her testimony." The
defense sought to substantiate this claim by arguing that from her sketch,
it appears that she never crossed paths with her brother or his pursuers.
The witness testified that she saw her brother at the point which is four to
five meters from the corner of P.C. Santos Street. Yet she also testified
that she saw the incident from 20 meters. The witness claimed she hid
after hearing the shot at a point which is 170 meters from the scene of
the crime. The defense argued that she could not have covered the
distance in such a short time, and that this belies her claim that she was
only 20 meters from the scene of the crime. The defense pointed out that
Arriola's sketch (Exhibit "2") shows that the school is 135 meters from the
scene of the crime, and the point where the witness claimed she viewed
the crime is 170 meters from the scene of the crime thus giving the lie to
her claim that she was 20 meters away.
The alleged inconsistencies in Corazon's testimony which the defense
makes much of are not irreconcilable with the physical facts, At the
outset, it should not be overlooked that Corazon was testifying as an
eyewitness to the traumatic incident by which her brother met a violent
death at the hands of a mob. Naturally, Corazon can not be expected to
deliver a testimony which passes microscopic scrutiny and scrupulous
armchair analysis of the facts, conducted under circumstances far
removed from the turbulence and emotional color of the event as it
actually transpired. Al contrario, if Corazon's testimony were meticulously
accurate with respect to distance covered and the time taken to negotiate
it, an impartial observer would wonder whether such exactitude were not
the product of previous rehearsal, if not of fabrication. In times of stress,
the human mind is frequently overpowered by the ebb and flow of
emotions in turmoil; and it is only judicious to take into consideration the
natural manifestations of human conduct, when the physical senses are
subdued by the psychological state of the individual.
Corazon was a resident of Pasay City for only about five months. She
testified that she is not familiar with the streets along M. de la Cruz
Street. Moreover, Corazon did not categorically testify that she covered
the distance of 135 meters in five seconds. Mole accurately, she testified
that she walked for a period of from five to ten seconds, more or less. Put
in this way, the period was sufficient to allow her to negotiate the
distance. Moreover, Corazon did not stay rooted to one spot while the
incident was taking place, but surreptitiously edged her way up to
Magtibay Street, which is closer to the place of the killing.
The defense also claims that the delay which Corazon allowed to
transpire, before reporting the crime to the authorities and giving her
sworn statement (on November 3, 1968), is indicative of fabrication. The
killing took place before dawn of October 19, 1968, In the afternoon of
the same day, Corazon and her family went to the Police Department to
inquire about the remains of her brother. Corazon already knew that the
police were taking steps to round up the killers. She incurred no fault in
waiting until the culprits were arrested before confronting them and giving
her statement. It would have been the better part of legal procedure if she
had given her statement earlier; but since she was only a 22-year old
housekeeper at that tune, she can not be held to a higher standard of
discretion.
The defense further contends that the failure to present Corazon's
husband in court indicates that Corazon was not actually at the scene of
the crime at 3:00 o'clock in the morning. It the defense felt that the
husband had a contribution to make in the cause of truth, there was
nothing which prevented them from compelling his process by summons.
This they failed to do; and their omission should not be taken to reflect
adversely on the prosecution, who evidently believed that the husband's
testimony was unnecessary,
Finally, the defense claims that it was unnatural for Corazon, after
viewing her brother's body, to proceed to her sister's house one kilometer
away, instead of returning to her own house, which was just a block or so
away. It is not unnatural for a witness to a gruesome event, to choose to
confer with a person bound to her by ties of consanguinity, even if such a
conference necessitates that she traverse a longer distance. The
exercise of judgment, on the spot, should not be gauged by reason
applied in hindsight with a metrical yard stick.
The next major burden which the defense undertook to assume was to
contend that the accused Reynaldo Arviso is innocent because there is
no evidence as to his participation in the execution of the crime. It is
claimed that there is absolute absence of evidence to show that
Reynaldo was a direct participant and that the only evidence against him
is that he was seen pursuing the victim. However, the finding of
Reynaldo's guilt stems, not from his direct participation in the criminal
execution, but from his participation in the conspiracy to kill the
deceased. His participation in the conspiracy is supported by Corazon's
testimony that he and Antonio were the leaders of the pack following
closely at the heels of the victim.
It is well established that conspiracy may be inferred from the acts of the
accused themselves, when such acts point to a joint purpose and design.
A concerted assault upon the victim by the defendants may indicate
conspiracy. (PP v. Monroy & Idica, L-11177, Oct. 30, 1958, 104 Phil.
759). Conspiracy exists if, at the time of the commission of the offense,
the defendants had the same criminal purpose and were united in its
execution. (PP v. Datu Dima Binahasing, L-4837, April 28, 1956, 98 Phil.
902). Those who are members of the band of malefactors by which a
murder is committed and are present at the time and place of the
commission of the crime, thus contributing by their presence to augment
the power of the band and to aid in the successful realization of the
crime, are guilty as principals even if they took no part in the material act
of killing the deceased. (US v. Abelinde, No. 945, Dec. 10, 1902, 1 Phil.
568; People v. Carunungan, L-13283, Sept. 30, 1960, 109 Phil. 534). To
establish conspiracy, it is not essential that there be proof as to previous
agreement to commit a crime. It is sufficient that the malefactors have
acted in concert, pursuant to the same objective. (PP vs. San Luis, L-
2365, May 29, 1950, 86 Phil. 485).
Conspiracy need not be established by direct evidence of acts charged,
but may and generally must be proven by a number of indefinite acts,
conditions and circumstances which vary according to the purpose to be
accomplished. If it be proved that two or more persons aimed by their
acts towards accomplishment of the same unlawful object, each doing a
part. so that their acts, though apparently independent, were in fact
connected and cooperative, indicating a closeness of personal
association and concurrence of sentiment, a conspiracy maybe inferred
though no actual meeting among them to concert is proven (PP v.
Colman L-6652-54, Feb. 28, 1958, 103 Phil. 6). A conspiracy may be
entered into after the commencement of overt acts leading to the
consummation of the crime. (PP v. Barredo, L-2728, Dec. 29, 1950, 87
Phil. 800). Conspiracy implies concert of design and not participation in
every detail of execution (PP v. Carbonel, L-24177, March 15, 1926, 48
Phil. 868; PP v. Danan, L-1766, March 31, 1949, 83 Phil. 252).
When a group of seven men, more or less, give chase to a single
unarmed individual running for his life, and they overtake him and inflict
wounds on his body by means of shooting, stabbing, and hitting with
pieces of wood, there is conspiracy to kill; and it does not detract from
their status as conspirators that there is no evidence of previous
agreement, it being sufficient that their wills have concurred and they
labored to achieve the same end.
The defense submits that the failure of the lower court to specify the
qualifying circumstance in the crime of murder is violative of the
Constitution and the Rules of Court. We find no such infirmity. Since the
principle concerned is "readily understood from the facts, the conclusion
and the penalty posed., an express specification of the statute or
exposition of the law is not necessary." (People vs. Silo, L-7916, May 25,
1956, 99 Phil. 216). In the absence of a specification by the trial court,
the defense surmised that the qualifying circumstance in this case is
evident premeditation: but the defense argued that evident premeditation
was not shown. We agree. Under normal conditions, conspiracy
generally presupposes premeditation. But in the case of implied
conspiracy, evident premeditation may not be appreciated, in the
absence of proof as to how and when the plan to kill the victim was
hatched or what time elapsed before it was carried out, so that it can not
be determined if the accused had "sufficient time between its inception
and its fulfillment dispassionately to consider and accept the
consequences." There should be a showing that the accused had the
opportunity for reflection and persisted in executing his criminal design.
(PP v. Custodia, L-7442, October 24,1955, 97 Phil. 698; PP v. Mendoza
and Sinu-ag, L-4146 and L-4147, March 28, 1952, 91 Phil. 58; PP v.
Yturiaga, L-2816, May 31, 1950, 86 Phil. 534; PP v. Lozada, No. 46998,
Nov. 16, 1940, 70 Phil. 525; PP v. Upao Moro, L-6771, May 28, 1957,
Phil. 101 Phil. 1226; PP v. Sakam, No. 41566, Dec. 7, 1934, 61 Phil. 27:
PP v. Peralta, L-19069, Oct. 29, 1968, 25 SCRA 759; PP v. Pareja, L-
21937, Nov. 29, 1969, 30 SCRA 693).
Even in the absence of evident premeditation, the crime of murder in this
case might still be qualified by treachery, which is alleged in the
information. But the defense argued that treachery was not present. We
are so convinced. It is an elementary axiom that treachery can in no way
be presumed but must be fully proven. (US v. Asilo, No. 1957, Jan. 30,
1905, 4 Phil, 175; US v. Arciga, No. 1129, April 6, 1903, 2 Phil. 110; PP
v. Durante, No. 31101, Aug. 23, 1929, 53 Phil. 363; PP v. Pelago, L-
24884, Aug. 31, 1968, 24 SCRA 1027), Where the manner of the attack
was not proven, the defendant should be given the benefit of the doubt,
and the crime should be considered homicide only. (Carpio, 83 Phil. 509;
Amansec, So Phil, 424).
In People vs. Metran (L-4205, July 27, 1951, 89 Phil. 543). the
aggravating circumstances of aid of armed men, abuse of superiority,
and nocturnity, were considered as constituting treachery, which qualified
the crime as murder, since there was no direct evidence as to the manner
of the attack. However, in this case we believe that the correct qualifying
circumstance is not treachery, but abuse of superiority. Here we are
confronted with a helpless victim killed by assailants superior to him in
arms and in numbers. But the attack was not sudden nor unexpected,
and the element of surprise was lacking. The victim could have made a
defense; hence, the assault involved some risk to the assailants. There
being no showing when the intent to kill was formed, it can not be said
that treachery has been proven. We believe the correct rule is found in
People vs. Proceso Bustos (No. 17763, July 23, 1923, 45 Phil. 9),
where alevosia was not appreciated because it was deemed included in
abuse of superiority.
We find that abuse of superiority attended the offense, following a long
line of cases which made this finding on parallel facts Our jurisprudence
is exemplified by the holding that where four persons attacked an
unarmed victim but there was no proof as to how the attack commenced
and treachery was not proven, the fact that there were four assailants
would constitute abuse of superiority. (People vs. Lasada, No. 6742, Jan.
26, 1912, 21 Phil. 287; US v. Banagale, No. 7870, Jan. 10, 1913, 24 Phil.
69). However, the information does not allege the qualifying circumstance
of abuse of superiority; hence, this circumstance can only be Created as
generic aggravating. (People v. Acusar, L-1798, Dee. 29, 1948, 82 Phil.
490; People v. Beje, L-8245, July 19, 1956, 99 Phil. 1052; People v.
Bautista, L-23303, May 20, 1969, 28 SCRA 184).
The offense took place at 3:00 o'clock in the morning. It may therefore be
said that it was committed at night, which covers the period from sunset
to sunrise, according to the New Civil Code, Article 13. Is this basis for
finding that nocturnity is aggravating? The Revised Penal Code, Article
14, provides that it is an aggravating circumstance when the crime is
committed in the nighttime, whenever nocturnity may facilitate the
commission of the offense. There are two tests for nocturnity as an
aggravating circumstance: the objective test, under which nocturnity is
aggravating because it facilitates the commission of the offense; and
the subjective test, under which nocturnity is aggravating because it was
purposely sought by the offender. These two tests should be applied in
the alternative.
In this case, the subjective test is not passed because there is no
showing that the accused purposely sought the cover of night time. Next,
we proceed and apply the objective test, to determine whether nocturnity
facilitated the killing of the victim. A group of men were engaged in a
drinking spree, in the course of which one of them fled, chased by seven
others. The criminal assault on the victim at 3:00 a.m. was invited by
nocturnal cover, which handicapped the view of eyewitnesses and
encouraged impunity by persuading the malefactors that it would be
difficult to determine their Identity because of the darkness and the
relative scarcity of people in the streets. There circumstances combine to
pass the objective test, and e find that nocturnity is aggravating because
it facilitated the commission of the offense. Nocturnity enticed those with
the lust to kill to follow their impulses with the false courage born out of
the belief that they could not be readily Identified.
The information alleges that the crime of murder was attended by the two
qualifying circumstances of treachery and evident premeditation. Neither
of these qualifying circumstances was proved; hence, the killing can not
be qualified into murder, and constitutes instead the crime of homicide,
which is punished by reclusion temporal. It is not controverted that the
accused voluntarily surrendered to the authorities; they are therefore
entitled to the mitigating circumstance of voluntary surrender. This lone
mitigating circumstance offset by the two generic aggravating
circumstances of abuse of superiority and nocturnity, produces the result
that in the crime of homicide, one aggravating circumstance remains.

WHEREFORE, the judgment of the court a quo is hereby modified in that

the two accused, Antonio Garcia y Cabarse and Reynaldo Arviso y
Rebelleza, are sentenced to undergo an indeterminate imprisonment of
10 years as minimum to 18 years as maximum, but in all other respects
affirmed.

SO ORDERED.

Fernando, C.J., Barredo, Makasiar, Antonio, Aquino, Concepcion, Jr.,

Santos Fernandez, Guerrero, De Castro and -Melencio-Herrera, JJ.,
concur.

Teehankee J., took no part.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. L-No. 5292 August 28, 1909
THE UNITED STATES, plaintiff,
vs.
THE MORO MANALINDE, defendant.
Office of the Solicitor-General Harvey for plaintiff.
Ramon Diokno for defendant.
TORRES, J.:
Between 2 and 3 o'clock on the afternoon of the 19th of January, 1909,
while Juan Igual, a Spaniard, was seated on a chair in the doorway of
Sousa's store in Cotabato, Moro Province, he suddenly received a wound
on the head delivered from behind and inflicted with a kris. Ricardo
Doroteo, a clerk in the said store, who was standing behind the counter,
upon hearing the noise and the cry of the wounded man, ran to his
assistance and found him lying on the ground. Meanwhile the aggressor,
the Moro Manalinde, approached a Chinaman named Choa, who was
passing along the street, and just as the latter was putting down his load
in front of the door of a store and was about to enter, attacked him with
the same weapon, inflicting a severe wound in the left shoulder, on
account of which he fell to the ground. The Moro, who came from the
rancheria of Dupit and had entered the town carrying his weapon
wrapped up in banana leaves, in the meantime escaped by running away
from the town. Both wounded men, the Chinaman and the Spaniard,
were taken to the hospital, where the former died within an hour, the
record not stating the result of the wound inflicted on the Spaniard Juan
Igual.
In view of the above a complaint was filed by the provincial fiscal with the
district court charging Manalinde with the crime of murder, and
proceedings having been instituted, the trial judge, in view of the
evidence adduced, rendered judgment on the 5th of February of said
year, sentencing the accused to the penalty of death, to indemnify the
heirs of the deceased in the sum of P1,000, and to pay the costs. The
case has been submitted to this court for review.
From the above facts fully substantiated in this case, it appears beyond
doubt that the crime of murder, defined and punished by article 403 of the
Penal Code, was committed on the person of the Chinaman Choa, in that
the deceased was unexpectedly and suddenly attacked, receiving a deep
cut on the left shoulder at the moment when he had just put down the
load that he was carrying and was about to start for the door of the store
in front of which he stopped for the purpose of entering therein. As a
result of the tremendous wound inflicted upon him by the heavy and
unexpected blow, he was unable, not only to defend himself, apart from
the fact that he was unarmed, but even to flee from the danger, and
falling to the ground, died in an hour's time. It is unquestionable that by
the means and form employed in the attack the violent death of the said
Chinaman was consummated with deceit and treachery (alevosia), one of
the five qualifying circumstances enumerated in the aforesaid article as
calling for the greatest punishment.
When Manalinde was arrested he pleaded guilty and confessed that he
had perpetrated the crime herein mentioned, stating that his wife had
died about one hundred days before and that he had come from his
home in Catumaldu by order of the Datto Rajamudah Mupuck, who had
directed him to go juramentado in Cotabato in order to kill somebody,
because the said Mupuck had certain grievances to avenge against a
lieutenant and a sergeant, the said datto further stating that if he,
Manalinde, was successful in the matter, he would give him a pretty
woman on his return, but that in case he was captured he was to say that
he performed the killing by order of Maticayo, Datto Piang, Tambal and
Inug. In order to carry out his intention to kill two persons in the town of
Cotabato he provided himself with a kris, which he concealed in banana
leaves, and, traveling for a day and a night from his home, upon reaching
the town, attacked from behind a Spaniard who was seated in front of a
store and, wounding him, immediately after attacked a Chinaman, who
was close by, just as the latter was placing a tin that he was carrying on
the ground and he was about to enter a store near by, cutting him on the
left shoulder and fleeing at once; he further stated that he had no quarrel
with the assaulted persons.
From the statements made by the accused his culpability as the sole-
confessed and self-convicted author of the crime in question has been
unquestionably established, nor can his allegation that he acted by order
of Datto Mupuck and that therefore he was not responsible exculpate
him, because it was not a matter of proper obedience. The excuse that
he went juramentado by order of the said datto and on that account killed
only two persons, whereas if he had taken the oath of his own volition he
would have killed many more, because it is the barbarous and savage
custom of a juramentado to kill anyone without any motive or reason
whatever, can not under any consideration be accepted or considered
under the laws of civilized nations; such exhibitions of ferocity and
savagery must be restrained, especially as the very people who up to the
present time have been practicing such acts are well aware that the
established authorities in this country can never allow them to go
unpunished, and as has happened a number of times in towns
where juramentados are in the habit of appearing, the punishment of the
author has followed every crime so committed.
In the commission of the crime of murder the presence of aggravating
circumstances 3 and 7 of article 10 of the Penal Code should be taken
into consideration in that promise of reward and premeditation are
present, which in the present case are held to be generic, since the crime
has already been qualified as committed with the treachery, because the
accused confessed that he voluntarily obeyed the order given him by
Datto Mupuck to go juramentadoand kill some one in the town of
Cotabato, with the promise that if he escaped punishment he would be
rewarded with a pretty woman. Upon complying with the order the
accused undoubtedly acted of his own volition and with the knowledge
that he would inflict irreparable injury on some of his fellow-beings,
depriving them of life without any reason whatever, well knowing that he
was about to commit a most serious deed which the laws in force in this
country and the constituted authorities could by no means permit. Datto
Mupuck, who ordered and induced him to commit the crimes, as well as
the accused knew perfectly well that he might be caught and punished in
the act of committing them.
As to the other circumstance it is also unquestionable that the accused,
upon accepting the order and undertaking the journey in order to comply
therewith, deliberately considered and carefully and thoughtfully
meditated over the nature and the consequences of the acts which,
under orders received from the said datto, he was about to carry out, and
to that end provided himself with a weapon, concealing it by wrapping it
up, and started on a journey of a day and a night for the sole purpose of
taking the life of two unfortunate persons whom he did not know, and with
whom he had never had any trouble; nor did there exist any reason
which, to a certain extent, might warrant his perverse deed. The fact that
the arrangement between the instigator and the tool considered the killing
of unknown persons, the first encountered, does not bar the
consideration of the circumstance of premeditation. The nature and the
circumstances which characterize the crime, the perversity of the culprit,
and the material and moral injury are the same, and the fact that the
victim was not predetermined does not affect nor alter the nature of the
crime. The person having been deprived of his life by deeds executed
with deliberate intent, the crime is considered a premeditated one as the
firm and persistent intention of the accused from the moment, before said
death, when he received the order until the crime was committed in
manifestly evident. Even though in a crime committed upon offer of
money, reward or promise, premeditation is sometimes present, the latter
not being inherent in the former, and there existing no incompatibility
between the two, premeditation can not necessarily be considered as
included merely because an offer of money, reward or promise was
made, for the latter might have existed without the former, the one being
independent of the other. In the present case there can be no doubt that
after the crime was agreed upon by means of a promise of reward, the
criminal by his subsequent conduct showed a persistency and firm intent
in his plan to carry out the crime which he intentionally agreed to execute,
it being immaterial whether Datto Mupuck did or did not conceive the
crime, once Manalinde obeyed the inducement and voluntarily executed
it.
The facts in this case are quite different from those in the proceedings
instituted by the United States vs. Caranto et al., wherein the decision on
page 256 of Volume IV of the Philippine Reports was rendered, as may
be seen from the mere perusal of the statement of facts. It is also
different from the case where a criminal who has made up his mind to kill
a certain individual kills a person other than the object of his criminal
intent. On going to Cotabato the Moro Manalinde intended to and did kill
the first two persons he encountered, and the fact that the victim was not
predetermined does not alter the nature, conditions, or circumstances of
the crime, for the reason that to cause the violent death of a human being
without any reasonable motive is always punishable with a more or less
grave penalty according to the nature of the concurrent circumstances.
For the above reasons and in view of the fact that no mitigating
circumstance is present to neutralize the effects of the aggravating ones,
it is our opinion that the judgment appealed from should be affirmed with
costs provided however, that the penalty imposed on the culprit shall be
executed in accordance with the provisions of Acts. Nos. 451 and 1577,
and that in the event of a pardon being granted he shall likewise be
sentenced to suffer the accessory penalties imposed by article 53 of the
Penal Code. So ordered.
Arellano, C. J., Johnson, Carson, and Moreland, JJ., concur.
 EN BANC
[G.R. No. 136892. April 11, 2002]
PEOPLE OF THE PHILIPPINES, appellee, vs. SUEENE
DISCALSOTA y JUGAR, appellant.
DECISION
PANGANIBAN, J.:
Without any proven qualifying circumstance, a killing constitutes
homicide which is punishable by reclusion temporal, not death. Where
the attack was made openly and the victim had ample opportunity to
escape, treachery cannot be appreciated.
The Case
For automatic review by this Court is the Decision[1] dated
September 28, 1998, issued by the Regional Trial Court (RTC) of
Bacolod City (Branch 53), finding Sueene Discalsota y Jugar guilty of
murder beyond reasonable doubt. The decretal portion of the Decision
reads as follows:
WHEREFORE, the court finds the accused Sueene Discalsota,
alias Ronnie de la Pea, GUILTY of the crime of Murder,
punished under Article 248 of the Revised Penal Code as
amended by R.A. 7659, of Herbert Suarnaba. Applying Art.
63, of the Revised Penal Code, paragraph 2, No. 1, on the
application of indivisible penalties, which provides that
whenever there is present only one aggravating penalty, the
greater penalty shall applied, and there is no mitigating
circumstance. The Court hereby imposes upon the accused
Sueene Discalsota the penalty of DEATH.
The accused is further ordered to pay the heirs of the deceased the sum
of P50,000.00, as civil indemnity; P30,000.00 as moral damages,
and P25,000.00 as actual expenses for the wake and funeral, and
costs.[2]
The Information[3] against appellant reads as follows:
That on or about the 24th day of January, 1996, 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 bladed weapon, with
intent to kill and by means of treachery and evident
premeditation, did, then and there wilfully, unlawfully, and
feloniously assault, attack and stab with said weapon one
HERBERT SUARNABA Y CATALAN, thereby inflicting
upon the person of the latter the following wounds:
I.W. 4 cm, left posterior lumbar area, level of L2 L4
penetrating Retroperiton[e]al Cavity completely transacting
left kidney, inferior pole, penetrating abdominal cavity
completely transacting pancreas, body, perforating posterior
surface of Stomach, pundus with massive gastric spillage.
Cause of Death: Hypovolemic Shock 2
which were the direct and immediate cause of his death.
When arraigned on July 9, 1997, appellant, with the assistance of
counsel,[4] pleaded not guilty.[5] In due course, the former was tried by
the RTC which found him guilty of murder.
The Facts
 Version of the Prosecution
The Office of the Solicitor General (OSG) summarized the
evidence for the prosecution in this wise:[6]
At about 1:00 P.M. of January 24, 1996, the victim, Herbert
Suarnaba, 16 years old, along with his neighborhood friends,
Jenny Aplaza (17 years old), Pedro Ramos (17 years old) and
Rowell Lavega (17 years old) left 6th Street, Bacolod City and
went to Plaza Mart, a shopping mall, where they loitered for
about an hour or two. They decided to visit their friend,
Novieboy del Rosario, who used to be their neighbor at Purok
Pag-asa but who ha[d] since transferred to Libertad
Baybay. They took [a] jeepney and arrived there at around
3:00 P.M. They proceeded to the inner portion of the barangay,
passing by several houses [o]n a footwalk to the house of
Novieboy del Rosario. They were welcomed by the latter and
[they] then listened to music on the tape recorder. When
Novieboys mother arrived, she offered them chorizo (sausage)
which she brought with her from Kalibo.
While peacefully enjoying themselves, they were suddenly
startled by shouts coming from a group of men outside the
house. Looking out, they saw about nine (9) men with their
leader shouting: Gua kamo dira, kay pamatyon ta kamo! Nga-a
nagsulod-sulod kamo diri sa amon teritoryo? Gua kamo dira
kay pamatyon ta kamo! (You there, get out and we will kill
you!) The four (4) teen-agers were terrified since they did not
know the men who were threatening them. Nor did they know
of any grudge or misunderstanding between their group and
the men outside. They then called Mrs. Del Rosario
(Novieboys mother) who advised them not to go out of the
house and called for the police. However, after waiting for
some time, no police assistance came. Mrs. Del Rosario then
went out and returned with four (4) barangay tanods. The
tanods entered the house and talked to the teen-agers and
assured them that no harm would come to them and that there
would be a police Bac[k]-up waiting for them at the road. The
group was then escorted out of the house by the tanods and
were accompanied by two (2) of them and Mrs. Del Rosario
towards the footpath leading to the main road. It was already
dusk by that time. The men threatening them were still outside
when they went out of the house and they followed the
group. When the group reached the main road, no police
Bac[k]-up was in sight but Mrs. Del Rosario remained with
them.
There was a single trisikad (pedicab) outside and the four (4)
boarded it. Since the pedicab could only accommodate two (2)
persons inside, Rowell Lavega stood on the rail at the back of
the pedicab while the victim sat in front.
The pedicab had not left when Rowell saw a man running
towards them from the footwalk. He was about 50 meters
away when Rowell first saw him. The four jumped out of the
pedicab when Mrs. Del Rosario and the people there shouted
at them to run. Despite efforts by the barangay tanods to stop
him, the man rushed headlong towards Rowell and the
victim. He was about to strike at Rowell when Mrs. Del
Rosario pushed Rowell to run. When Mrs. Del Rosario fell
down as if to faint, the victim helped her stand up. Mrs. Del
Rosario then told the victim to run and he ran around the
pedicab more than a foot long. While the victim was running
away trying to escape, the man holding the knife caught up
with him and thrust his knife at the fleeing victim who was hit
at the back. The victim fell and crawled, while gasping for
breath, and he managed to enter a house pleading for help.
Rowell saw what happened to his friend and wanted to help
him but could not because the attacker was still there. After
seeing the victim fall down, bloodied, his attacker ran towards
the interior of the barangay. Meanwhile, Pedro, Jenny and
Rowell ran as fast [as] they could because the companions of
the attacker also came rushing out of the footwalk and were
charging at them with drawn knives. They escaped being hurt
when they sought refuge in the house of a friend at the
opposite side of the basketball court. Mrs. Del Rosario fainted
upon seeing the attack on the victim.
Pedro and Rowell recognized the attacker as the one who
earlier shouted at them while they were still inside the house of
Mrs. Del Rosario. They stayed for about an hour inside the
house of their friend where they sought refuge and there they
learned that the man who chased them and struck the victim
was known by the nickname, Yawa and is also known as
Ronnie de la Pea although his real name is Sueene
Discalsota. Much later, when the police finally came and
investigated them, Pedro was shown pictures of the suspects
and he picked out the picture of accused-appellant.
Louie Gregorio, a reluctant witness who testified only on pain
of arrest for contempt of court, declared that he was a live-in
partner of Nieves del Rosario; that while resting at the house
of Nieves del Rosario around 4:00 P.M. of January 24, 1996,
he confirmed that the victim and three (3) others were at the
house and that no untoward incident happened while they were
inside the house. Several minutes after the boys were escorted
out of the house by four (4) barangay tanods, he learned that a
stabbing incident happened outside and when he went out to
investigate, he saw accused-appellant running towards the
house of his girlfriend. He was only about five (5) armslength
from accused-appellant who was carrying a bloodied long
knife which he did not even bother to conceal. He heard
accused-appellant shouting, Naigo ko gid! (I got him). He also
confirmed that Ronnie de la Pea is the same accused-appellant
Sueene Discalsota.
The victim was rushed to the Corazon Locsin Montelibano
Memorial Hospital. He was still alive when the police and his
mother arrived. However, he was already breathing heavily, in
a critical condition, and could no longer respond. A few
minutes later, he was pronounced dead by the doctor.
Dr. Hildegard B. Madalag conducted the autopsy on the body
of the victim and submitted a Report of his findings (Exhibit
D). He confirmed his findings in open court and further
testified that upon examination, he found the kidney of the
victim completely transacted or totally cut. The knifes entry
point was at the back, a direct and straight thrust which went
through three (3) vital organs pancreas, stomach and the
kidney, causing massive gastric spillage. He gave the cause of
death in the Certificate of Death (Exhibit E) as Hypo-volemic
shock.
Despite lack of cooperation from the residents of the area where the
incident happened, the police authorities were able to arrest accused-
appellant on the identification of Pedro Ramos and Rowell Lavega.[7]
Version of the Defense
On the other hand, the Public Attorneys Office narrated appellants
version of the incident as follows:[8]
SUEENE DISCALSOTA, denied that he was [the] one who
stabbed and killed Herbert Suarnaba. He testified that in the
afternoon of January 24, 1996, he was in their house at Purok
Kingfisher, Libertad Baybay, Bacolod City, from 3:00 to 5:00
P.M. He was tending their store where he acted as cashier. His
companion thereat were older sister Aileen and younger sister
Yvette. He never left their store even after 5:00 P.M. When his
mother Lilia Discalsota arrived from the Central Market she
took over the chores in the store. He only learned that there
was a stabbing incident on the following day (January 25,
1996).
He learned that he was charged [with] Murder on April 7,
1997, when he was arrested by policemen in the house of his
wife, Christina at Purok Tulihaw, Brgy. 16, Bacolod City. He
was surprised when the policemen presented a warrant for his
arrest. The policemen told him that he was involved in a
murder case in Libertad, Baybay, Bacolod City in January
1996. He did not want to go with the policemen, but it was a
certain Tiyo Erwin who prevailed upon him to go with the
arresting officers. He was then brought to Bac[k]-up I and later
to headquarters. He was subsequently detained at the Lock-up.
He further testified that he [did] not know Louie Gregorio, one
of the witnesses for the prosecution. He [did] not know
whether Louie Gregorio [was] the common law husband of
Nieves del Rosario but he met her only at the City jail, when
she visited her common-law husband Marcial Flores, in
January 1998. Marcial Flores [was] his neighbor at Libertad,
Baybay.
Discalsota also denied leaving Libertad, Baybay, Bacolod City
after the incident. He was there on January 25, 1996, and he
was even able to leave their house that day. He continued
staying in their house x x x until April 1996. Eventually their
house was demolished in 1997 and his family transferred to
Tangub. He nevertheless, remained in the area and stayed with
his wife at her house in Purok Tulinaw, which was just about
30 meters away from the house of Nieves del Rosario.
He denied membership [in] any fraternity, much less U-2. He
declared that Yawa, x x x Ming, Michael Bartolo, Da-dan,
were not his neighbors, but admitted they were residents of the
place. These persons are members of Red-O
fraternity. He denied knowing Ulysses Tonggoy. He admitted
knowing x x x Alfonso one of the CVOs mentioned by
prosecutions [witness] Alfonso de la Cruz. He mentioned that
he [was] not Yawa but one Stephen.
EVETTE DISCALSOTA corroborated the testimony of
Suenne Discalsota. She testified that she was tending their
store the whole day of January 24, 1996. Her companions
thereat were her brother, Sueene[;] and sister, Aileen. Their
store opened at 7:00 A.M. and closed on that particular day, at
9:00 P.M. her brother Sueene never left the store from 7:00
A.M. to 9:00 P.M. Sueene was then acting as the cashier of
their store.
She also testified that she did not know that her brother Sueene was
charged in court. When her brother was arrested she went to the police
station and inquired why Sueene was detained and she was told he had
a case. She then told the police that on the day the alleged stabbing
was committed Sueene was not able to leave the house the whole
day.[9]
Ruling of the Trial Court
The RTC ruled that appellant had positively been identified by the
prosecution witnesses as the culprit responsible for the death of Herbert
Suarnaba. It gave no credence to the denial and alibi proffered by
appellant. It also appreciated evident premeditation and treachery as
qualifying and aggravating circumstances, respectively, and thus
sentenced him to death.
Hence, this automatic review before us.[10]
Assignment of Errors
In his Brief, appellant faults the trial court with the following
alleged errors:
I and substance.[12]
The trial court gravely erred in finding accused-appellant
guilty beyond reasonable doubt of the crime of murder as
charged in the information despite the failure of the
prosecution to prove the qualifying circumstances of evident
premeditation and treachery.
II
The trial court erred in imposing the death penalty upon the
accused-appellant.[11]
The Courts Ruling
The appeal is partly meritorious.
Preliminary Matter
Appellant no longer questions the finding of the RTC that he
stabbed and killed Herbert Suarnaba. However, an appeal in a criminal
case opens the whole case to review. Thus, we shall still pass upon the
matter.
The prosecution witnesses were one in identifying appellant as the
person who had wielded a knife and stabbed the victim. Appellant had
nothing to offer in his defense but an alibi corroborated by his two
sisters. A careful scrutiny of the records shows no reason to disbelieve
the prosecution witnesses and to overturn the court a quos finding that
they were credible.
Basic is the rule that the findings of the trial court on the credibility
of witnesses are entitled to the highest respect and will not be disturbed
on appeal in the absence of any showing that it overlooked,
misunderstood, or misapplied some facts or circumstances of weight
Also, the RTC was correct in disregarding the alibi of appellant. As
it aptly ruled, his defense of alibi crumbles in the face of the positive
identification of the accused by prosecution witnesses as being present
in the scene of the crime.[13]
First Issue:
Evident Premeditation and Treachery
Appellant contends that evident premeditation should not have
been appreciated by the trial court as a qualifying circumstance.
It is settled that qualifying circumstances cannot be presumed, but
must be established by clear and convincing evidence as conclusively
as the killing itself.[14]
[F]or evident premeditation to be appreciated, there must be
proof, as clear as the evidence of the crime itself of the
following elements thereof, viz: (a) the time when the accused
determined to commit the crime; (b) an act manifestly
indicating that the accused has clung to his determination, and
(c) sufficient lapse of time between the determination and
execution to allow himself to reflect upon the consequences of
his act.[15]
 In this case, the first two elements of evident premeditation are
present. As found by the RTC, the time appellant determined to commit
the crime was when he started shouting at the victim and the latters
companions: You, there, get out and we will kill you! By staying outside
the house and following the victims companions when they came out,
he manifestly indicated that he clung to his determination.
As for the third element, the prosecution evidence shows that
appellant started shouting outside Mrs. del Rosarios house at 3:30
p.m.[16] When the victims group left the house, it was not yet dark;[17] it
was only past four oclock in the afternoon.[18] The police received
information on the stabbing incident at 4:30[19] p.m. on the same day. It
took less than an hour from the time appellant evinced a desire to
commit the crime, as manifested by his shouts outside the house, up to
the time he stabbed the victim. The span of less than one hour could not
have afforded the former full opportunity for meditation and reflection
on the consequences of the crime he committed.
The essence of premeditation is that the execution of the criminal
act must be preceded by cool thought and reflection on the resolution to
carry out the criminal intent during a space of time sufficient to arrive
at a calm judgment.[20]
To justify the inference of deliberate premeditation, there must
be a period sufficient in a judicial sense to afford full
opportunity for meditation and reflection and to allow the
conscience of the actor to overcome the resolution of his will if
he desires to hearken to its warning.[21]
Where no sufficient lapse of time is appreciable from the
determination to commit the crime until its execution, evident
premeditation cannot be appreciated.[22] Hence, the lower court erred in
holding that evident premeditation qualified the killing to murder.
No Treachery
Appellant also argues that treachery did not attend the commission
of the crime.
There is treachery when the offender commits any of the crimes
against persons employing means, methods, or forms of attack that tend
directly and specially to insure the execution of the crime without risk
arising from the defense that the offended party might make.[23]
For treachery to exist, two essential elements must concur: (a) the
employment of means of execution that gives the person attacked no
opportunity to defend himself or to retaliate, and (b) the said means of
execution was deliberately or consciously adopted.[24] Treachery cannot
be presumed; it must be proved by clear and convincing evidence or as
conclusively as the killing itself.[25]
In the present case, the victim had the opportunity to escape or to
defend himself. Before he and his group left the house of Mrs. del
Rosario, they had already been forewarned of violent aggression from
appellant, whose words and stance while outside the house made its
imminence clear. The mode of attack adopted by appellant was not
without risk to himself; neither was it sudden. When he began his
menacing approach, he was visible to the victim and the latters
companions. Appellant was out in the open and thus at risk from any
defense which the group might make. The presence of such risk and the
existence of ample opportunity for the victim to escape or defend
himself negated treachery.
Second Issue:
Proper Penalty
In his Brief, appellant further claims to have been a minor at the
time of the commission of the crime. This matter was, however, not
raised during the trial. Furthermore, in his direct examination held on
June 11, 1998, he stated for the record that he was a 20-year-old married
man. Hence, we cannot agree to appreciate minority as a privileged
mitigating circumstance.
Absent any qualifying circumstance, appellant may be convicted of
homicide only. Considering further the absence of any aggravating or
mitigating circumstance, the imposable penalty of reclusion
temporal should be in the medium period[26] and encompassed by the
Indeterminate Sentence Law.

Damages

We affirm the RTCs award of P50,000 as civil indemnity

and P30,000.00 as moral damages. However, the grant of actual
damages should be reduced to P10,890, since this is the only amount
duly supported by a statement of account and receipts. To justify an
award of actual damages, it is necessary to prove with a reasonable
degree of certainty, premised upon competent proof and on the best
evidence obtainable by the injured party, the actual amount of loss.[27]
WHEREFORE, the appeal is PARTLY GRANTED. Appellant
is CONVICTED of homicide and is SENTENCED to an indeterminate
penalty of 10 years of prision mayor medium as minimum to 17 years
and 4 months of reclusion temporal medium as maximum. The grant of
civil indemnity and moral damages is AFFIRMED, but that of actual
damages is reduced to P10,890. No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Quisumbing, Ynares-Santiago, De Leon Jr., Sandoval-
Gutierrez, and Carpio, JJ., concur.
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF
WITNESSES; A MATTER THAT IS BEST
ADDRESSED TO THE SOUND JUDGMENT OF THE
TRIAL COURT. - The defense relies, in invoking the
justifying circumstances of self-defense, primarily on
the basis of the testimony of appellant and that given
by his sister-in-law. Regrettably, the trial court has
3. ID.; MURDER; QUALIFYING CIRCUMSTANCES;
refused to give any credit to their asseverations. So
strongly did the court feel about its findings in this
regard that it has declared the self-defense theory to
be "an out and out fabrication." The issue concerning
the credibility of witnesses has almost always been
considered to be a matter that is best addressed to the
sound judgment of the trial court. Its vantage point
over that of an appellate court in that determination
can hardly be doubted. The Court here adds that, in
reviewing the records, it has seen nothing to make it
conclude that the trial court has overlooked any fact of
substance and value to warrant a reversal of its factual
assessments.
2. CRIMINAL LAW; MITIGATING CIRCUMSTANCES;
INCOMPLETE SELF-DEFENSE; THAT OF HAVING
ACTED UPON AN IMPULSE SO POWERFUL AS TO
NATURALLY HAVE PRODUCED PASSION OR
OBFUSCATION; NOT ESTABLISHED IN CASE AT
BAR. - The alternative plea for the Court to reduce the
trial court's sentence on appellant by appreciating the
mitigating circumstances of incomplete self-defense
and of the accused having allegedly "acted upon an
impulse so powerful as naturally to have produced
passion or obfuscation, "unfortunately cannot also be
favorably considered. These mitigating circumstances
are dependent on proof of facts that, among other
things, includes the attendance of unlawful aggression
in self-defense and an act that is both unlawful and
sufficient to produce the circumstances of passion and
obfuscation. Appellant's contention of a supposed
encounter between him and the victim with the latter
being the unlawful aggressor, as already so adverted
to, simply has not been established.
TREACHERY; PRESENCE THEREOF IN THE
COMMISION OF THE CRIME; ESTABLISHED IN
CASE AT BAR. - Treachery was correctly appreciated;
the trial court said: "However, it is crystal clear that the
crime committed is murder qualified by treachery. It
was held that if there was a break in the continuity of
the aggression and at the time the fatal wound was
inflicted on the deceased, he was defenseless, the
circumstances of treachery must be taken into
account. (US vs. Baluyot, 40 Phil. 385). "In the case at
bar, prosecution witness Mario Soliman testified that
after the accused hit the victim in the cheek with a
dustpan (tsn, 22 Aug. 1994, p. 6), the latter ran away
but was still pursued by the former. Upon meeting his
brother, he got hold of the bolo which accused Tom
Barona handed to him and in the ensuing segment,
accused Omar Cleto was seen by the witness hacking
the deceased while he was kneeling and pleading to
the accused even up to the time the body of the
deceased was already lying motionless on
ground.Obviously, the stand taken by the victim posed
no risk to the accused as he was unarmed, begging
for his life and utterly defenseless. Accused Omar
Cleto deliberately executed the act of kiling Eduardo
by taking advantage of the situation. Treachery then
was manifested in that manner of assault because it
insured the killing without any risk to the
assailant.Furthermore, the autopsy report strongly
shows the cruel an merciless attack by the accused
with clear intent to kill the victim. The number and
location of the hack wounds coupled with the deep and
gaping incised wounds, lead to no other conclusion
that accused Omar Cleto employed all the means to
ensure success of the crime without any threats to
himself.Death was instantaneous rendering prompt
medical attention inutile due to the multiple hack
wounds inflicted on the deceased."

APPEARANCES OF COUNSEL

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.
 EN BANC
[G.R. No. 140756. April 4, 2003]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. JUAN GONZALES ESCOTE, JR. @ Jun
Mantika of Sta. Lucia, Angat, Bulacan and
VICTOR ACUYAN y OCHOVILLOS @ Vic
Arroyo of Sto. Nio, Poblacion, Bustos,
Bulacan, accused-appellants.
DECISION
CALLEJO, SR., J.:
Robbery with homicide is classified as a crime against
property. Nevertheless, treachery is a generic aggravating
circumstance in said crime if the victim of homicide is killed
treacherously. The Supreme Court of Spain so ruled. So
does the Court rule in this case, as it had done for
decades.
Before the Court on automatic review is the
Decision of Branch 11 of the Regional Trial Court of
[1]
Bulacan in Criminal Case No. 443-M-97 convicting
accused-appellants Juan Gonzales Escote, Jr. and Victor
Acuyan of the complex crime of robbery with homicide,
meting on each of them the supreme penalty of death, and
ordering them to pay the heirs of the victim, SPO1 Jose
C. Manio, Jr., the total amount of P300,000.00 by way of
actual and moral damages and to pay to Five Star Bus,
Inc., the amount of P6,000.00 by way of actual damages.
The Facts
The antecedent facts as established by the
prosecution are as follows:
On September 28, 1996 at past midnight, Rodolfo
Cacatian, the regular driver of Five Star Passenger Bus
bearing Plate No. ABS-793, drove the bus from its
terminal at Pasay City to its destination in Bolinao,
Pangasinan. Also on board was Romulo Digap, the
regular conductor of the bus, as well as some
passengers. At Camachile, Balintawak, six passengers
boarded the bus, including Victor Acuyan and Juan
Gonzales Escote, Jr. who were wearing maong pants,
rubber shoes, hats and jackets. Juan seated himself on
[2]
the third seat near the aisle, in the middle row of the
passengers seats, while Victor stood by the door in the
mid-portion of the bus beside Romulo. Another
passenger, SPO1 Jose C. Manio, Jr., a resident of
Angeles City, was seated at the rear portion of the bus on
his way home to Angeles City. Tucked on his waist was
his service gun bearing Serial Number 769806. Every now
and then, Rodolfo looked at the side view mirror as well
as the rear view and center mirrors installed atop the
drivers seat to monitor any incoming and overtaking
vehicles and to observe the passengers of the bus.
The lights of the bus were on even as some of the
passengers slept. When the bus was travelling along the
highway in Plaridel, Bulacan, Juan and Victor suddenly
stood up, whipped out their handguns and announced a
holdup. Petrified, Rodolfo glanced at the center mirror
towards the passengers seat and saw Juan and Victor
armed with handguns. Juan fired his gun upward to
awaken and scare off the passengers. Victor followed suit
and fired his gun upward. Juan and Victor then accosted
the passengers and divested them of their money and
valuables. Juan divested Romulo of the fares he had
collected from the passengers. The felons then went to
the place Manio, Jr. was seated and demanded that he
show them his identification card and wallet. Manio, Jr.
brought out his identification card bearing No.
00898. Juan and Victor took the identification card of the
[3]
police officer as well as his service gun and told
him: Pasensya ka na Pare, papatayin ka namin, baril mo
rin and papatay sa iyo. The police officer pleaded for
mercy: Pare maawa ka sa akin. May pamilya
ako. However, Victor and Juan ignored the plea of the
police officer and shot him on the mouth, right ear, chest
and right side of his body. Manio, Jr. sustained six
entrance wounds. He fell to the floor of the bus.Victor and
Juan then moved towards the driver Rodolfo, seated
themselves beside him and ordered the latter to maintain
the speed of the bus. Rodolfo heard one of the felons
saying: Ganyan lang ang pumatay ng tao. Parang
pumapatay ng manok. The other said: Ayos na naman
tayo pare. Malaki-laki ito. Victor and Juan further told
Rodolfo that after they (Victor and Juan) shall have
alighted from the bus, he (Rodolfo) should continue
driving the bus and not report the incident along the
way. The robbers assured Rodolfo that if the latter will
follow their instructions, he will not be harmed. Victor and
Juan ordered Rodolfo to stop the bus along the overpass
in Mexico, Pampanga where they alighted from the
bus. The robbery was over in 25 minutes.
When the bus reached Dau, Mabalacat, Pampanga,
Rodolfo and Romulo forthwith reported the incident to the
police authorities. The cadaver of SPO1 Manio, Jr. was
brought to the funeral parlor where Dr. Alejandro D.
Tolentino, the Municipal Health Officer of Mabalacat,
Pampanga, performed an autopsy on the cadaver of the
police officer. The doctor prepared and signed an autopsy
report detailing the wounds sustained by the police officer
and the cause of his death:
Body still flaccid (not in rigor mortis) bathed with his own
blood. There were 6 entrance wounds and 6 exit wounds. All
the entrance were located on his right side. An entrance (0.5
cm x 0.5 cm.) located infront of the right ear exited at the left
side just below the ear lobe. Another entrance through the
mouth exited at the back of the head fracturing the occiput
with an opening of (1.5 cm x 2 cm). Blood CSF and brain
tissues came out. Another fatal bullet entered at the upper right
cornea of the sternum, entered the chest cavity pierced the
heart and left lung and exited at the left axillary line. Severe
hemorrhage in the chest cavity came from the heart and left
lung. The other 3 bullets entered the right side and exited on
the same side. One entrance at the top of the right shoulder
exited at the medial side of the right arm.The other entered
above the right breast and exited at the right lateral abdominal
wall travelling below muscles and subcutaneous tissues
without entering the cavities. Lastly another bullet entered
above the right iliac crest travelled superficially and exited
above the right inguinal line.
Cause of Death:
Shock, massive internal and external hemorrhage, complete
brain destruction and injury to the heart and left lung caused
by multiple gunshot wounds. [4]
Rodolfo and Romulo proceeded to the police station of
Plaridel, Bulacan where they reported the robbery and
gave their respective sworn statements. SPO1 Manio, Jr.
[5]
was survived by his wife Rosario Manio and their four
young children. Rosario spent P20,000.00 for the coffin
and P10,000.00 for the burial lot of the slain police
officer. Manio, Jr. was 38 years old when he died and had
[6]
a gross salary of P8,085.00 a month. [7]
Barely a month thereafter, or on October 25, 1996, at
about midnight, SPO3 Romeo Meneses, the team leader
of Alert Team No. 1 of Tarlac Police Station, and PO3
Florante S. Ferrer were at the police checkpoint along the
national highway in Tarlac, Tarlac. At the time, the
Bambang-Concepcion bridge was closed to traffic and the
police officers were tasked to divert traffic to the Sta. Rosa
road. Momentarily, a white colored taxi cab without any
plate number on its front fender came to view. Meneses
stopped the cab and asked the driver, who turned out to
be the accused Juan Gonzales Escote, Jr., for his
identification card. Juan told Meneses that he was a
policeman and handed over to Meneses the identification
card of SPO1 Manio, Jr. and the money which Juan and
Victor took from Manio, Jr. during the heist on September
28, 1996. Meneses became suspicious when he noted
[8]
that the identification card had already expired on March
16, 1995. He asked Juan if the latter had a new pay
slip. Juan could not produce any. He finally confessed to
Meneses that he was not a policeman. Meneses brought
Juan to the police station. When police officers frisked
Juan for any deadly weapon, they found five live bullets of
a 9 millimeter firearm in his pocket. The police officers
confiscated the ammunition. In the course of the
investigation, Juan admitted to the police investigators
that he and Victor, alias Victor Arroyo, staged the robbery
on board Five Star Bus and are responsible for the death
of SPO1 Manio, Jr. in Plaridel, Bulacan. Meneses and
Ferrer executed their joint affiavit of arrest of Juan. Juan
[9]
was subsequently turned over to the Plaridel Police
Station where Romulo identified him through the latters
picture as one of those who robbed the passengers of the
Five Star Bus with Plate No. ABS-793 and killed SPO1
Manio, Jr. on September 28, 1996. In the course of their
investigation, the Plaridel Police Station Investigators
learned that Victor was a native of Laoang, Northern
Samar. On April 4, 1997, an Information charging Juan
[10]
Gonzales Escote, Jr. and Victor Acuyan with robbery with
homicide was filed with the Regional Trial Court of
Bulacan. The Information reads:
That on or about the 28th day of September 1996, in the
municipality of Plaridel, province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating together and
mutually helping each other, armed with firearms, did then and
there wilfully, unlawfully and feloniously, with intent of (sic)
gain and by means of force, violence and intimidation, take,
rob and carry away with one (1) necklace and cash in [the]
undetermine[d] amount of one SPO1 Jose C. Manio, Jr., to the
damage and prejudice of the said owner in the said
undetermine[d] amount; that simultaneously or on the
occassion (sic) of said robbery, said accused by means of
violence and intimidation and in furtherance of their
conspiracy attack, assault and shoot with the service firearm of
the said SPO1 Jose C. Manio, Jr., thereby inflicting serious
physical injuries which resulted (sic) the death of the said
SPO1 Jose C. Manio, Jr.
Contrary to law. [11]
On the strength of a warrant of arrest, the police
officers arrested Victor in Laoang, Northern Samar and
had him incarcerated in the Bulacan Provincial
Jail. Assisted by Atty. Ramiro Osorio, their counsel de
parte, Juan and Victor were duly arraigned and entered
their plea of not guilty to the charge. Trial thereafter
ensued. After the prosecution had rested its case on
August 26, 1998, Juan escaped from the provincial
jail. The trial court issued a bench warrant on September
[12]
22, 1998 for the arrest of said accused-appellant. In the
[13]
meantime, Victor adduced his evidence.
Victor denied the charge and interposed the defense
of alibi. He testified that in 1996, he worked as a tire man
in the vulcanizing shop located in Banga I, Plaridel,
Bulacan owned by Tony Boy Negro. On one occasion,
Ilarde Victorino, a customer of Tony Boy Negro, ordered
Victor to sell a tire. Victor sold the tire but did not turn over
the proceeds of the sale to Ilarde.The latter hated Victor
for his misdeed. The shop was later demolished and after
two months of employment, Victor returned to Barangay
Muwal-Buwal, Laoang, Northern Samar. On September
26, 1996, at 9:30 p.m., Victor was at the town fiesta in
Laoang. Victor and his friends, Joseph Iringco and Rickey
Lorcio were having a drinking spree in the house of
Barangay Captain Ike Baluya. At 11:30 p.m., the three left
the house of the barangay captain and attended the public
dance at the town auditorium. Victor and his friends left
the auditorium at 5:30 a.m. of September 27, 1996. Victor
likewise testified that he never met Juan until his arrest
and detention at the Bulacan Provincial Jail. One of the
inmates in said provincial jail was Ilarde Victorino. Victor
learned that Ilarde implicated him for the robbery of the
Five Star Bus and the killing of SPO1 Manio, Jr. to hit back
at him for his failure to turn over to Ilarde the proceeds of
the sale of the latters tire.
On January 14, 1999, Juan was rearrested in Daet,
Camarines Norte. However, he no longer adduced any
[14]
evidence in his behalf.
The Verdict of the Trial Court
On March 11, 1999, the trial court rendered its
Decision judgment finding Juan and Victor guilty beyond
reasonable doubt of the crime charged, meted on each of
them the penalty of death and ordered them to
pay P300,000.00 as actual and moral damages to the
heirs of the victim and to pay the Five Star Bus Company
the amount of P6,000.00 as actual damages.The decretal
portion of the decision reads:
WHEREFORE, this Court finds both accused, Juan Gonzales
Escote, Jr. and Victor Acuyan GUILTY beyond reasonable
doubt of Robbery with Homicide as penalized under Art. 294
of the Revised Penal Code as amended and hereby sentences
both to suffer the supreme penalty of Death and to indemnify
the heirs of the late SPO1 Jose C. Manio, Jr., the amount of
P300,000.00 as actual and moral damages and to pay the Five
Star Bus P6,000.00 as actual damage.
SO ORDERED. [15]
Assignment of Errors
Juan and Victor assail the Decision of the trial court
and contend that:
I
THE TRIAL COURT ERRED IN HOLDING THAT
RODOLFO CACATIAN AND ROMULO DIGAP, DRIVER
AND CONDUCTOR OF THE FIVE STAR BUS,
RESPECTIVELY, WERE ABLE TO POSITIVELY
IDENTIFY THE TWO (2) MEN WHO HELD-UP THEIR
BUS AND KILLED ONE PASSENGER THEREOF AT
AROUND 3:00 OCLOCK IN THE EARLY MORNING OF
SEPTEMBER 28, 1996.
II
THE TRIAL COURT ERRED IN FINDING THE TWO (2)
ACCUSED GUILTY BEYOND REASONABLE DOUBT OF
THE CRIME OF ROBBERY WITH HOMICIDE. [16]
The Courts Verdict
Anent the first assignment of error, Juan and Victor
contend that the trial court committed a reversible error in
relying on the testimony of Rodolfo, the bus conductor, for
convicting them of the crime charged. They aver that
although their counsel was able to initially cross-examine
Rodolfo, the former failed to continue with and terminate
his cross-examination of the said witness through no fault
of his as the witness failed to appear in subsequent
proceedings. They assert that even if the testimonies of
Rodolfo and Romulo were to be considered, the two
witnesses were so petrified during the robbery that they
were not able to look at the felons and hence could not
positively identify accused-appellants as the perpetrators
of the crime. They argue that the police investigators
never conducted a police line-up for the identification of
the authors of the crime.
The contentions of Juan and Victor are not
meritorious. There is no factual and legal basis for their
claim that they were illegally deprived of their
constitutional and statutory right to fully cross-examine
Rodolfo. The Court agrees that the right to cross-examine
is a constitutional right anchored on due process. It is a
[17]
statutory right found in Section 1(f), Rule 115 of the
Revised Rules of Criminal Procedure which provides that
the accused has the right to confront and cross-examine
the witnesses against him at the trial. However, the right
has always been understood as requiring not necessarily
an actual cross-examination but merely an opportunity to
exercise the right to cross-examine if desired. What is
[18]
proscribed by statutory norm and jurisprudential precept
is the absence of the opportunity to cross-examine. The [19]
right is a personal one and may be waived expressly or
impliedly. There is an implied waiver when the party was
given the opportunity to confront and cross-examine an
opposing witness but failed to take advantage of it for
reasons attributable to himself alone. If by his actuations,
[20]
the accused lost his opportunity to cross-examine wholly
or in part the witnesses against him, his right to cross-
examine is impliedly waived. The testimony given on
[21]
direct examination of the witness will be received or
allowed to remain in the record. [22]
In this case, the original records show that after
several resettings, the initial trial for the presentation by
the prosecution of its evidence-in-chief was set on
November 18, 1997 and December 5, 1997, both at 9:00
a.m. Rodolfo testified on direct examination on
[23]
November 18, 1997. The counsel of Juan and Victor
forthwith commenced his cross-examination of the
witness but because of the manifestation of said counsel
that he cannot finish his cross-examination, the court
ordered the continuation thereof to December 5,
1997. On December 5, 1997, Rodolfo did not appear
[24]
before the court for the continuation of his cross-
examination but Rosemarie Manio, the widow of the victim
did. The prosecution presented her as witness.Her
testimony was terminated. The court ordered the
continuation of the trial for the cross-examination of
Rodolfo on January 20, 1998 at 8:30 a.m. During the trial
[25]
on January 20, 1998, Rodolfo was present but accused-
appellants counsel was absent. The court issued an order
declaring that for failure of said counsel to appear before
the court for his cross-examination of Rodolfo, Victor and
Juan waived their right to continue with the cross-
examination of said witness. During the trial set for
[26]
February 3, 1998, the counsel of Juan and Victor
appeared but did not move for a reconsideration of the
courts order dated January 20, 1998 and for the recall of
Rodolfo Cacatian for further cross-examination. It
behooved counsel for Juan and Victor to file said motion
and pray that the trial court order the recall of Rodolfo on
the witness stand. Juan and Victor cannot just fold their
arms and supinely wait for the prosecution or for the trial
court to initiate the recall of said witness. Indeed, the Court
held in Fulgado vs. Court of Appeals, et al:
xxx
The task of recalling a witness for cross examination is, in law,
imposed on the party who wishes to exercise said right. This is
so because the right, being personal and waivable, the
intention to utilize it must be expressed. Silence or failure to
assert it on time amounts to a renunciation thereof. Thus, it
should be the counsel for the opposing party who should move
to cross-examine plaintiffs witnesses. It is absurd for the
plaintiff himself to ask the court to schedule the cross-
examination of his own witnesses because it is not his
obligation to ensure that his deponents are cross-
examined. Having presented his witnesses, the burden shifts to
his opponent who must now make the appropriate
move. Indeed, the rule of placing the burden of the case on
plaintiffs shoulders can be construed to extremes as what
happened in the instant proceedings. [27]
The trial was reset to March 31, April 17 and 24, 1998,
all at 8:30 a.m. because of the non-availability of the other
witnesses of the prosecution. On March 31, 1998, the
[28]
prosecution presented Dr. Alejandro Tolentino, PO2 Rene
de la Cruz and Romulo Digap. During the trial on April 17,
1998, the counsel of Juan and Victor failed to appear. The
trial was reset to June 3, 19 and 26, 1998. The trial
[29]
scheduled on June 3, 1998 was cancelled due to the
absence of the counsel of Juan and Victor. The court
issued an order appointing Atty. Roberto Ramirez as
counsel for accused-appellants. [30]
During the trial on August 26, 1998, Atty. Ramirez
appeared in behalf of Juan and Victor. The prosecution
rested its case after the presentation of SPO2 Romeo
Meneses and formally offered its documentary
evidence. The next trial was set on September 23, 1998
at 8:30 a.m. On November 11, 1998, Juan and Victor
[31]
commenced the presentation of their evidence with the
testimony of Victor. They rested their case on January
[32]
27, 1999 without any evidence adduced by Juan.
Juan and Victor did not even file any motion to reopen
the case before the trial court rendered its decision to
allow them to cross-examine Rodolfo. They remained
mute after judgment was rendered against them by the
trial court. Neither did they file any petition for certiorari
with the Court of Appeals for the nullification of the Order
of the trial court dated January 20, 1998 declaring that
they had waived their right to cross-examine Rodolfo. It
was only on appeal to this Court that Juan and Victor
averred for the first time that they were deprived of their
right to cross-examine Rodolfo. It is now too late in the day
for Juan and Victor to do so. The doctrine of estoppel
states that if one maintains silence when in conscience he
ought to speak, equity will debar him from speaking when
in conscience he ought to remain silent. He who remains
silent when he ought to speak cannot be heard to speak
when he should be silent. [33]
The contention of accused-appellants Juan and Victor
that Rodolfo and Romulo failed to identify them as the
perpetrators of the crime charged is disbelieved by the trial
court, thus:
As can be gathered from the testimonies of the witnesses for
the prosecution, on September 28, 1996, the accused boarded
at around 3:00 a.m. a Five Star Bus driven by Rodolfo
Cacatian, bound to Pangasinan, in Camachile, Balintawak,
Quezon City. Twenty (20) minutes or so later, when the bus
reached the vicinity of Nabuag, Plaridel, Bulacan, along the
North Espressway, the accused with guns in hand suddenly
stood up and announced a hold-up. Simultaneously with the
announcement of a hold-up, Escote fired his gun
upwards. Acuyan, meanwhile, took the gun of a man seated at
the back. Both then went on to take the money and valuables
of the passengers, including the bus conductors collections in
the amount of P6,000.00. Thereafter, the duo approached the
man at the back telling him in the vernacular Pasensiya ka na
pare, papatayin ka namin. Baril mo rin ang papatay sa iyo.
They pointed their guns at him and fired several shots
oblivious of the plea for mercy of their victim. After the
shooting, the latter collapsed on the floor. The two (2) then
went back at the front portion of the bus behind the drivers seat
and were overheard by the bus driver, Cacatian, talking how
easy it was to kill a man. The robbery and the killing were over
in 25 minutes. Upon reaching the Mexico overpass of the
Expressway in Pampanga, the two (2) got off the bus. The
driver drove the bus to the Mabalacat Police Station and
reported the incident. During the investigation conducted by
the police, it was found out that the slain passenger was a
policeman, SPO1 Jose C. Manio, Jr. of the Caloocan City
Police Department.
The above version came from Rodolfo Cacatian and Romulo
Digap, bus driver and conductor, respectively, of the ill-fated
Five Star Bus.[34]
The Court agrees with the trial court. It may be true
that Romulo was frightened when Juan and Victor
suddenly announced a holdup and fired their guns
upward, but it does not follow that he and Rodolfo failed
to have a good look at Juan and Victor during the entire
time the robbery was taking place. The Court has held in
a catena of cases that it is the most natural reaction of
victims of violence to strive to see the appearance of the
perpetrators of the crime and to observe the manner in
which the crime was committed. Rodolfo and Romulo
[35]
had a good look at both Juan and Victor before, during
and after they staged the robbery and before they alighted
from the bus. The evidence on record shows that when
Juan and Victor boarded the bus and while the said
vehicle was on its way to its destination, Romulo stationed
himself by the door of the bus located in the mid-section
of the vehicle. The lights inside the bus were on. Juan
seated himself in the middle row of the passengers seat
near the center aisle while Victor stood near the door of A Once in a while the driver look at the side mirror and the rear
the bus about a meter or so from Romulo. Romulo, Juan [36] view mirror, sir.
and Victor were near each other. Moreover, Juan divested Q Before the announcement there was no reason for you to
Romulo of his collection of the fares from the look at any at the rear mirror, correct, Mr. witness?
passengers. Romulo thus had a face-to-face encounter
[37]
Court:
with Juan. After shooting SPO1 Manio, Jr. at the rear Every now and then they usually look at the side mirror and
portion of the bus, Juan and Victor passed by where on the rear, that was his statement.
Romulo was standing and gave their instructions to Atty. Osorio:
him. Considering all the facts and circumstances, there is
no iota of doubt that Romulo saw and recognized Juan (to the witness)
and Victor before, during and after the heist. Rodolfo [38] Q I am asking him if there was no reason for him....
looked many times on the rear, side and center view Fiscal:
mirrors to observe the center and rear portions of the bus
Before the announcement of hold-up, there was no
before and during the robbery. Rodolfo thus saw Juan and mention.
Victor stage the robbery and kill SPO1 Manio, Jr. with
Court:
impunity:
Every now and then.
xxx
Atty. Osorio:
Q So, the announcement of hold-up was ahead of the firing of
the gun? (to the witness)
A Yes, sir. Q When you said every now and then, how often is it, Mr.
witness?
Q And before the actual firing of the gun it was even still said
bad words before saying the hold-up? A I cannot tell how often but I used to look at the mirror once
in a while, sir.
A After they fired the gun they uttered bad words, sir.
Q How many mirror do you have, Mr. witness?
Q Mr. Witness before the announcement of the hold-up you
do not have any idea that you will encounter that nature A Four (4), sir.
which took place, is that correct? Q Where are these located?
A None, sir. A Two (2) on the side mirror, center mirror and rear view
Q Within the two (2) year[s] period that you are plying the route mirror, sir.
of Manila to Bolinao that was your first experience of hold- Q The two side mirror protruding outside the bus?
up?
A Yes, sir, they are in the side of the bus, sir.
A Yes, sir.
Q One of them is located on the left and the other on the right,
Q And the speed of above 70 kilometers per hour your total correct?
attention is focus in front of the road, correct, Mr. witness?
A Yes, sir.
Q You only look at the side mirror when you are going to over
take, Mr. witness?
A No, sir.
Q Where is this center mirror located, Mr. witness?
A In the center, sir.
Q What is the purpose of that?
A So that I can see the passengers if they are already settled
so that I can start the engine, sir.
Q What about the remaining mirror?
A Rear view mirror, sir.
Q What is the purpose and where is it located?
A The rear view is located just above my head just to check
the passengers, sir.
Q So that the center mirror and the rear view mirror has the
same purpose?
A They are different, sir.
Q How do you differentiate of (sic) one from the other?
A The center mirror is used to check the center aisle while the
rear mirror is for the whole view of the passengers, sir.
Q If you are going to look at any of your side mirrors, you will
never see any passengers, correct, Mr. witness?
A None, sir.
Q If you will look at your center mirror you will only see the
aisle and you will never see any portion of the body of
your passengers?
A Yes, sir.
Q Seated passengers?
A It is only focus (sic) on the middle aisle sir.
Q If you look at your rear mirror, you will only see the top
portion of the head of your passengers, correct?
A Only the portion of their head because they have different
hight (sic), sir.
Q You will never see any head of your passengers if they were
seated from the rear mirror portion, correct, Mr. witness?
A Yes, sir.
Q Before the announcement of hold-up, all of your passengers
were actually sleeping?
A Some of my passengers were sleeping, some were not, sir.
Q But you will agree Mr. witness that when you said every now
and then you are using your mirror? It is only a glance,
correct?
A Yes, sir.
Q And by mere glancing, Mr. witness you were not able to
identify any person on the basis of any of your mirror,
correct?
A If only a glance but when I look at him I can recognize him,
sir.
Q You agree a while ago by every now and then it is by
glancing, as a driver, Mr. witness by your side mirror?
A Not all glancing, there are times when you want to recognize
a person you look at him intently, sir.
Q The purposes of your mirror inside your Bus is mainly of the
safety of your passengers on board, Mr. witness?
A Yes, sir.
Q And as a driver, Mr. witness, you do not used (sic) your
mirror to identify the person particularly when you are
crossing (sic) at a speed of 70 kilometers per hour?
A I do that, sir.
Q How long Mr. witness can you focus your eyes on any of
these mirror before getting back your eyes into the main
road?
A Seconds only, sir.
Q When you said seconds, for how long the most Mr. witness
that you can do to fix your eyes on any of your mirrors and
the return back of (sic) your eyes into the main road?
A Two seconds, sir.
Q At that time Mr. witness, that you were travelling at about 70
kilometers you were glancing every now and then on any
of your mirrors at about two seconds, correct?
A Yes, sir.
Q And when you heard the announcement of hold-up your
natural reaction is to look either at the center mirror or rear
mirror for two seconds, correct?
A Yes, sir.
Q And you were instructed Mr. witness to even accelerate
your speed upon the announcement of hold-up?
A No sir, they just told me to continue my driving, sir.
Fiscal:
May I request the vernacular alalay ka lang, steady ka lang.
Atty. Osorio:
(to the witness)
Q Steady at what speed?
A 70 to 80, sir.
Q What is the minimum speed, Mr. witness for Buses along
North Expressway?
A 60 kilometers, sir.
Q Are you sure of that 60 kilometers, minimum? Are you sure
of that?
A Yes, sir.
Q That is what you know within the two (2) years that you are
driving? Along the North Expressway?
A Yes, sir.
Q And while you were at the precise moment, Mr. witness, you
were being instructed to continue driving, you were not
looking to anybody except focus yours eyes in front of the
road?
Fiscal:
May I request the vernacular. Nakikiramdam ako.
Atty. Osorio:
(to the witness)
Q Thats what you are doing?
A During the time they were gathering the money from my
passengers, that is the time when I look at them, sir.
Q For two seconds, correct?
A Yes, sir.
Q Which of the four (4) mirrors that you are looking at within
two seconds, Mr. witness you said you are
nakikiramdam?
A The rear view mirror, sir.
Q The Bus that you were driving is not an air con bus?
A Ordinary bus, sir.
Q And at what time your passengers, most of your passengers
were already sleep (sic), Mr. witness?
A Most of my passengers, sir. Some of my passengers were
still sleep (sic), sir.
Q And the lights inside the Bus are off, correct Mr. witness?
A The lights were on, sir.
Q While the passengers were sleep (sic) the light was still on,
Mr. witness, at the time of the trip.?
A Yes, sir.
Q Now, Mr. witness when the hold-up was announced and
then when you look for two seconds in the rear mirror you
 were not able to see any one, you were only sensing what
is happening inside your bus?
A I saw something, sir.
Q You saw something in front of your Bus? You can only see
inside when you are going to look at the mirror?
A Yes, sir.
Q That is the only thing that you see every now and then, you
said you were looking at the mirror?
A Yes, sir.
Q How many times, Mr. witness did you look Mr. witness at
the rear mirror during the entire occurance (sic) of the
alleged hold-up?
A There were many times, sir.
Q The most that you can remember, please inform the
Honorable Court? During the occurance (sic) of the
alleged hold-up, Mr. witness?
A I cannot estimate, sir.
Q How long did the alleged hold-up took place?
A More or less 25 minutes, sir.[39]
When Rodolfo gave his sworn statement to the police
investigators in Plaridel, Bulacan after the robbery, he
described the felons. When asked by the police
investigators if he could identify the robbers if he see them
again, Rodolfo declared that he would be able to identify
them:
8. T: Natatandaan mo ba kung ano ang itsura ng dalawang
lalaki na nanghold-up sa minamaneho mong bus?
S: Halos magkasing taas, 54 o 55 katam-taman ang
pangangatawan, parehong nakapantalon ng maong
naka-suot ng jacket na maong, parehong naka rubber
shoes at pareho ring naka sumbrero.
9. T: Kung sakali bang makikita mo pa ang mga ito ay
makikilala mo pa sila?
S: Makikilala ko po sila.[40]
When asked to identify the robbers during the trial,
Rodolfo spontaneously pointed to and identified Juan and
Victor:
QFiscal:
(to the witness)
xxx
Q Those two man (sic) who stated that it was a hold-up inside
the bus and who fired the gun are they inside the Court
room (sic) today?
A Yes, maam.
Q Point to us?
Interpreter:
Witness pointing to a man wearing red T-shirt and when
asked his name answered Victor Acuyan and the man
wearing green T-shirt and when asked his name
answered Juan Gonzales.[41]
For his part, Romulo likewise spontaneously pointed
to and identified Juan and Victor as the culprits when
asked by the prosecutor to identify the robbers from
among those in the courtroom:
xxx
Q You said that you were robbed inside the bus, how does
(sic) the robbing took place?
A They announced a hold up maam, afterwards, they
confiscated the money of the passengers including my
collections.
Q You said they who announced the hold up, whose (sic)
these they you are referring to?
 A Those two (2), maam.
Interpreter:
Witness pointing to the two accused.
Public Pros.:
May we request that the accused be identified, Your Honor.
Court:
(to both accused)
What are your names?
A Juan Escote, Your Honor. Victor Acuyan, Your Honor.
Public Pros.:
May we know from the accused if his name is Juan Escote
Gonzales because he just said Juan Escote. In the
Information, it is one Juan Gonzales, Jr., so, we can
change, Your Honor.[42]
Moreover, when he was accosted by SPO3 Romeo
Meneses on October 25, 1997 in Tarlac, Tarlac, Juan was
in possession of the identification card of the slain police
[43]
officer. Juan failed to explain to the trial court how and
under what circumstances he came into possession of
said identification card. Juan must necessarily be
considered the author of the robbery and the killing of
SPO1 Manio, Jr. In People v. Mantung, we held: [44]
xxx [T]he recovery of part of the loot from Mantung or the
time of his arrest gave rise to a legal presumption of his
guilt. As this Court has held, [I]n the absence of an explanation
of how one has come into possession of stolen effects
belonging to a person wounded and treacherously killed, he
must necessarily be considered the author of the aggression
and death of the said person and of the robbery committed on
him.
While police investigators did not place Juan and
Victor in a police line-up for proper identification by
Rodolfo and Romulo, it cannot thereby be concluded that
absent such line-up, their identification by Romulo and
Rodolfo as the authors of the robbery with homicide was
unreliable. There is no law or police regulation requiring a
police line-up for proper identification in every case. Even
if there was no police line-up, there could still be proper
and reliable identification as long as such identification
was not suggested or instigated to the witness by the
police. In this case, there is no evidence that the police
[45]
officers had supplied or even suggested to Rodolfo and
Romulo the identities of Juan and Victor as the
perpetrators of the robbery and the killing of SPO1 Manio,
Jr.
The Felony Committed by Juan and Victor
The Court finds that the trial court committed no error
in convicting Juan and Victor of robbery with homicide.
Article 294, paragraph 1 of the Revised Penal Code, as
amended by Republic Act 7659, reads:
Art. 294. - Robbery with violence against or intimidation of
persons. - Penalties. - Any person guilty of robbery with the
use of violence against or intimidation of any person shall
suffer:
1. The penalty of reclusion perpetua to death, when by reason
or on occasion of the robbery, the crime of homicide shall have
been committed, or when the robbery shall have been
accompanied by rape or intentional mutilation or arson.
 To warrant the conviction of Juan and Victor for the
said charge, the prosecution was burdened to prove the
confluence of the following essential elements:
xxx (a) the taking of personal property with the use of violence
or intimidation against a person; (b) the property thus taken
belongs to another; (c) the taking is characterized by intent to
gain or animus lucrandi and (d) on the occasion of the robbery
or by reason thereof, the crime of homicide, which is therein
used in a generic sense, was committed. xxx [46]
The intent to rob must precede the taking of human
life. In robbery with homicide, so long as the intention of
[47]
the felons was to rob, the killing may occur before, during
or after the robbery. In People v. Barut, the Court held
[48]
that:
In the controlling Spanish version of article 294, it is provided
that there is robbery with homicide cuando con motivo o con
ocasin del robo resultare homicidio. Basta que entre aquel este
exista una relacin meramente ocasional. No se requiere que el
homicidio se cometa como medio de ejecucin del robo, ni que
el culpable tenga intencin de matar, el delito existe segn
constanta jurisprudencia, aun cuando no concurra animo
homicida. Incluso si la muerte sobreviniere por mero
accidente, siempre que el homicidio se produzca con motivo
con ocasin del robo, siendo indiferente que la muerte sea
anterior, coetnea o posterior a ste (2 Cuello Calon, Derecho
Penal, 1975 14th Ed. P. 872).
Even if the victim of robbery is other than the victim of
the homicide committed on the occasion of or by reason
of the robbery, nevertheless, there is only one single and
indivisible felony of robbery with homicide. All the crimes
committed on the occasion or by reason of the robbery are
merged and integrated into a single and indivisible felony
of robbery with homicide. This was the ruling of the
Supreme Court of Spain on September 9, 1886, et
sequitur cited by this Court in People v. Mangulabnan, et
al.
[49]
We see, therefore, that in order to determine the existence of
the crime of robbery with homicide it is enough that a
homicide would result by reason or on the occasion of the
robbery (Decision of the Supreme Court of Spain of November
26, 1892, and January 7, 1878, quoted in 2 Hidalgos Penal
Code, p. 267 and 259-260, respectively). This High Tribunal
speaking of the accessory character of the circumstances
leading to the homicide, has also held that it is immaterial that
the death would supervene by mere accident (Decision of
September 9, 1886; October 22, 1907; April 30, 1910 and July
14, 1917), provided that the homicide be produced by reason
or on occasion of the robbery, inasmuch as it is only
the result obtained, without reference or distinction as to the
circumstances, causes, modes or persons intervening in the
commission of the crime, that has to be taken into
consideration (Decision of January 12, 1889 see Cuello Calons
Codigo Penal, p. 501-502).
Case law has it that whenever homicide has been
committed by reason of or on the occasion of the robbery,
all those who took part as principals in the robbery will also
be held guilty as principals of robbery with homicide
although they did not take part in the homicide, unless it
appears that they endeavored to prevent the homicide. [50]
In this case, the prosecution proved beyond
reasonable doubt that Juan and Victor conspired and
confabulated together in robbing the passengers of the
Five Star Bus of their money and valuables and Romulo
of his collections of the fares of the passengers and in
killing SPO1 Manio, Jr. with impunity on the occasion of
the robbery. Hence, both Juan and Victor are guilty as
principals by direct participation of the felony of robbery
with homicide under paragraph 1, Article 294 of the
Revised Penal Code, as amended by R.A. 7659,
punishable by reclusion perpetua to death.
The Proper Penalty
The trial court imposed the supreme penalty of death
on Juan and Victor for robbery with homicide, defined in
Article 294, paragraph 1 of the Revised Penal Code,
punishable with reclusion perpetua. Under Article 63,
paragraph 1 of the Revised Penal Code, the felons should
be meted the supreme penalty of death when the crime is
committed with an aggravating circumstance attendant in
the commission of the crime absent any mitigating
circumstance. The trial court did not specify in the decretal
portion of its decision the aggravating circumstances
attendant in the commission of the crime mandating the
imposition of the death penalty. However, it is evident from
the findings of facts contained in the body of the decision
of the trial court that it imposed the death penalty on Juan
and Victor on its finding that they shot SPO1 Manio, Jr.
treacherously on the occasion of or by reason of the
robbery:
xxx
The two (2) accused are incomparable in their ruthlessness and
base regard for human life. After stripping the passengers of
their money and valuables, including the firearm of the victim,
they came to decide to execute the latter seemingly because he
was a police officer. They lost no time pouncing him at the
rear section of the bus, aimed their firearms at him and, in a
derisive and humiliating tone, told him, before pulling the
trigger, that they were rather sorry but they are going to kill
him with his own gun; and thereafter, they simultaneously
fired point blank at the hapless policeman who was practically
on his knees begging for his life. Afterwhich, they calmly
positioned themselves at the front boasting for all to hear, that
killing a man is like killing a chicken (Parang pumapatay ng
manok). Escote, in particular, is a class by himself in
callousness. xxx.[51]
The Court agrees with the trial court that treachery was
attendant in the commission of the crime. There is
treachery when the following essential elements are
present, viz: (a) at the time of the attack, the victim was
not in a position to defend himself; and (b) the accused
consciously and deliberately adopted the particular
means, methods or forms of attack employed by
him. The essence of treachery is the sudden and
[52]
unexpected attack by an aggressor on the unsuspecting
victim, depriving the latter of any chance to defend himself
and thereby ensuring its commission without risk of
himself. Treachery may also be appreciated even if the
victim was warned of the danger to his life where he was
defenseless and unable to flee at the time of the infliction
of the coup de grace. In the case at bar, the victim
[53]
suffered six wounds, one on the mouth, another on the
right ear, one on the shoulder, another on the right breast,
one on the upper right cornea of the sternum and one
above the right iliac crest. Juan and Victor were armed
with handguns. They first disarmed SPO1 Manio, Jr. and
then shot him even as he pleaded for dear life. When the
victim was shot, he was defenseless. He was shot at close
range, thus insuring his death. The victim was on his way
to rejoin his family after a hard days work. Instead, he was
mercilessly shot to death, leaving his family in grief for his
untimely demise. The killing is a grim example of the utter
inhumanity of man to his fellowmen.
The issues that now come to fore are (1) whether or
not treachery is a generic aggravating circumstance in
robbery with homicide; and if in the affirmative, (b) whether
treachery may be appreciated against Juan and Victor.
On the first issue, we rule in the affirmative. This Court has
ruled over the years that treachery is a generic
[54]
aggravating circumstance in the felony of robbery with
homicide, a special complex crime (un delito especial
complejo) and at the same time a single and indivisible
offense (uno solo indivisible). However, this Court in two
[55]
cases has held that robbery with homicide is a crime
against property and hence treachery which is
appreciated only to crimes against persons should not be
appreciated as a generic aggravating circumstance. It
held in another case that treachery is not appreciated in
robbery with rape precisely because robbery with rape is
a crime against property. These rulings of the Court find
[57]
support in case law that in robbery with homicide or
robbery with rape, homicide or rape are merely incidents
of the robbery, with robbery being the main purpose and
object of the criminal. Indeed, in People vs. Cando, two
[58] [59]
distinguished members of this Court advocated a review
of the doctrine that treachery is a generic aggravating
circumstance in robbery with homicide. They opined that
treachery is applicable only to crimes against
persons. After all, in People vs. Bariquit, this Court in
[60]
a per curiam decision promulgated in year 2000 declared
that treachery is applicable only to crimes against
persons. However, this Court held in People vs.
Cando that treachery is a generic aggravating
circumstance in robbery with homicide, citing its prior
rulings that in robbery with homicide, treachery is a
generic aggravating circumstance when the victim of
homicide is killed with treachery. This Court opted not to
apply its ruling earlier that year in People vs. Bariquit.
Legal Luminaries in criminal law and eminent
commentators of the Revised Penal Code are not in full
accord either. Chief Justice Ramon C. Aquino (Retired)
says that treachery is appreciated only in crimes against
persons as defined in Title 10, Book Two of the
Code. Chief Justice Luis B. Reyes (Retired) also is of the
[61]
opinion that treachery is applicable only to crimes against
persons. However, Justice Florenz D. Regalado
[62]
(Retired) is of a different view. He says that treachery
[63]
cannot be considered in robbery but can be appreciated
insofar as the killing is concerned, citing the decisions of
this Court in People vs. Balagtas for the purpose of
[64]
[56]
determining the penalty to be meted on the felon when the
victim of homicide is killed with treachery.
It must be recalled that by Royal Order of December
17, 1886 the 1850 Penal Code in force in Spain, as
amended by the Codigo Penal Reformado de 1870 was
applied in the Philippines. The Penal Code of 1887 in the
Philippines was amended by Act 3815, now known as the
Revised Penal Code, which was enacted and published in
Spanish. In construing the Old Penal Code and the
Revised Penal Code, this Court had accorded respect and
persuasive, if not conclusive effect to the decisions of the
Supreme Court of Spain interpreting and construing the
1850 Penal Code of Spain, as amended by Codigo Penal
Reformado de 1870. [65]
 Article 14, paragraph 16 of the Revised Penal Code
reads:
ART. 14. Aggravating circumstances. The following are
aggravating circumstances:
xxx
16. That the act be committed with treachery (alevosia). There
is treachery when the offender commits any of the crimes
against the person, employing means, methods, or forms in the
execution thereof which tend directly and specially to insure
its execution, without risk to himself arising from the defense
which the offended party might make.
The law was taken from Chapter IV, Article 10,
paragraph 2 of the 1860 Penal Code and the Codigo
Penal Reformado de 1870 of Spain which reads:
Art. 10 ...2. Ejecutar el hecho con alevosia. Hay alevosia
cuando el culpable comete cualquiera de los delitos contra las
personas empleando medios, modos o for mas en la
ejecucion que tiendan directa y especialmente a asegurarla sin
riesgo para su persona, que proceda de la defensa que pudiera
hacer el ofendido. xxx
Article 14, paragraph 16 of the Revised Penal Code is
a reproduction of the 1850 Penal Code of Spain and
the Codigo Penal Reformado de 1870 with a slight
difference. In the latter law, the words las personas (the
persons) are used, whereas in Article 14, paragraph 6, of
the Revised Penal Code, the words the person are used.
Going by the letter of the law, treachery is applicable
only to crimes against persons as enumerated in Title
Eight, Chapters One and Two, Book II of the Revised
Penal Code. However, the Supreme Court of Spain has
consistently applied treachery to robbery with homicide,
classified as a crime against property. Citing decisions of
the Supreme Court of Spain, Cuello Calon, a noted
commentator of the Spanish Penal Code says that despite
the strict and express reference of the penal code to
treachery being applicable to persons, treachery also
applies to other crimes such as robbery with homicide: [66]
Aun cuando el Codigo solo se refiere a los delitos contra las
personas, cabe estimarla en los que no perteneciendo a este
titulo se determinan por muerte o lesiones, como, en el robo
con homicidio, y en el homicidio del Jefe del Estado que es un
delito contra la seguridad interior del Estado, y no obstante la
referencia estricta del texto legal a los delitos contra las
personas no es la alevosia aplicable a la mayoria de ellos, no lo
es en el homicidio, pues como su concurrencia lo cualifica lo
transforma en delito distinto, en asesinato, ni en el homicidio
consentido (art. 409), ni en la ria tumultuaria (art. 408) ni en el
infanticidio (art. 410). xxx.[67]
Viada also says that treachery is appreciated in crimes
against persons (delitos contra personas) and also in
robbery with homicide (robo con homicidio). [68]
Contra las personas. - Luego la circunstancia de alevosia solo
puede apreciarse en los delitos provistos desde el art. 417 al
447, y en algun otro, como el de robo con homicidio, atentario,
a la vez que contra la propriedad, contra la persona.
Thus, treachery is a generic aggravating circumstance
to robbery with homicide although said crime is classified
as a crime against property and a single and indivisible
crime.Treachery is not a qualifying circumstance because
as ruled by the Supreme Court of Spain in its decision
dated September 11, 1878, the word homicide is used in
its broadest and most generic sense. [69]
Article 62, paragraph 1 of the Revised Penal Code
provides that in diminishing or increasing the penalty for a
crime, aggravating circumstances shall be taken into
account. However, aggravating circumstances which in
themselves constitute a crime specially punishable by law
or which are included by the law in defining a crime and
prescribing a penalty therefor shall not be taken into
account for the purpose of increasing the penalty. Under
[70]
paragraph 2 of the law, the same rule shall apply with
respect to any aggravating circumstances inherent in the
crime to such a degree that it must of necessity
accompany the commission thereof.
1. Aggravating circumstances which in themselves constitute a
crime specially punishable by law or which are included by the
law in defining a crime and prescribing the penalty therefor
shall not be taken into account for the purpose of increasing
the penalty.
xxx
2. The same rule shall apply with respect to any
aggravating circumstances inherent in the crime to such a
degree that it must be of necessity accompany the commission
thereof.
Treachery is not an element of robbery with
homicide. Neither does it constitute a crime specially
punishable by law nor is it included by the law in defining
the crime of robbery with homicide and prescribing the
penalty therefor. Treachery is likewise not inherent in the
crime of robbery with homicide. Hence, treachery should
be considered as a generic aggravating circumstance in
robbery with homicide for the imposition of the proper
penalty for the crime.
In its Sentencia dated March 14, 1877, the Supreme
Court of Spain declared that treachery is a generic
aggravating circumstance not only in crimes against
persons but also in robbery with homicide. The high court
of Spain applied Article 79 of the Spanish Penal Code
(Article 62 of the Revised Penal Code) and ruled that since
treachery is not a constitutive element of the crime of
robbery with homicide nor is it inherent in said crime,
without which it cannot be committed, treachery is an
aggravating circumstance to said crime. The high court of
Spain was not impervious of the fact that robbery with
homicide is classified as a crime against property. Indeed,
it specifically declared that the classification of robbery
with homicide as a crime against property is irrelevant and
inconsequential in the application of treachery. It further
declared that it would be futile to argue that in crimes
against property such as robbery with homicide, treachery
would have no application. This is so, the high tribunal
ruled, because when robbery is coupled with crimes
committed against persons, the crime is not only an
assault (ataca) on the property of the victims but also of
the victims themselves (ofende):
xxx que la circunstancia agravante de alevosia ni es
constitutiva del delito complejo de robo y homicidio, ni de tal
modo inherente que sin ella no pueda cometerse, sin que quepa
arguir que en los delitos contra la propiedad no debe aquella
tener aplicacion, porque cuando estos son complejos de los
que se cometen contra las personas, no solo se ataca a la
propiedad, sino que se ofende a estas. xxx[71]
 In fine, in the application of treachery as a generic
aggravating circumstance to robbery with homicide,
the law looks at the constituent crime of homicide
which is a crime against persons and not at the
constituent crime of robbery which is a crime against
property. Treachery is applied to the constituent
crime of homicide and not to the constituent crime
of robbery of the special complex crime of robbery
with homicide.
The crime of robbery with homicide does not lose
its classification as a crime against property or as a
special complex and single and indivisible crime
simply because treachery is appreciated as a generic
aggravating circumstance. Treachery merely
increases the penalty for the crime conformably with
Article 63 of the Revised Penal Code absent any
generic mitigating circumstance.
In its Sentencia, dated July 9, 1877, the high tribunal
of Spain also ruled that when the victim of robbery is killed
with treachery, the said circumstance should be
appreciated as a generic aggravating circumstance in
robbery with homicide:
xxx que si aparece probado que el procesado y su co-reo
convinieron en matar a un conocido suyo, compaero de viaje,
para lo cual desviaron cautelosamente los carros que guiaban,
en uno de los cuales iba el interfecto, dirigiendolos por otro
camino que conducia a un aljibon, y al llegar a este, valiendose
de engao para hacer bajar a dicho interfecto, se lanzaron de
improviso sobre el, tirandolo en tierra, robandole el dinero, la
manta y los talegos que llevaba, y atandole al pie una piedra de
mucho peso, le arrojaron con ella a dicho aljibon, dados estos
hechos, no cabe duda que constituyen el delito complejo del
art. 516, num. I, con la circunstancia agravante de alevosia,
puesto que los medios, forma y modos empleados en la
ejecucion del crimen tendieron directa y especialmente a
asegurarla sin riesgo para sus autores, procedente de la
defensa del ofendido.[72]
In sum then, treachery is a generic aggravating
circumstance in robbery with homicide when the victim of
homicide is killed by treachery.
On the second issue, we also rule in the
affirmative. Article 62, paragraph 4 of the Revised Penal
Code which was taken from Article 80 of the Codigo Penal
Reformado de 1870, provides that circumstances which
[73]
consist in the material execution of the act, or in the means
employed to accomplish it, shall serve to aggravate or
mitigate the liability of those persons only who had
knowledge of them at the time of the execution of the act
or their cooperation therein. The circumstances attending
the commission of a crime either relate to the persons
participating in the crime or into its manner of execution or
to the means employed. The latter has a direct bearing
upon the criminal liability of all the accused who have
knowledge thereof at the time of the commission of the
crime or of their cooperation thereon. Accordingly, the
[74]
Spanish Supreme Court held in its Sentencia dated
December 17, 1875 that where two or more persons
perpetrate the crime of robbery with homicide, the generic
aggravating circumstance of treachery shall be
appreciated against all of the felons who had knowledge
of the manner of the killing of victims of homicide, with the
ratiocination that:
xxx si por la Ley basta haberse ejecutado un homicidio simple
con motivo ocasin del robo para la imposicion de la pena del
art. 516, num. I, no puede sere ni aun discutible que,
concurriendo la agravante de alevosia, se aumente la
criminalidad de los delincuentes; siendo aplicable a todos los
autores del hecho indivisible, porque no es circunstancia que
afecte a la personalidad del delincuente, de las que habla el art.
80 del Codigo penal en su primera parte, sino que consiste en
la ejecusion material del hecho y en los medios empleados
para llevarle a cabo, cuando de ellos tuvieron conocimiento
todos los participantes en el mismo por el concierto previo y
con las condiciones establecidad en la segunda parte del citado
articulo.
[75]
Be that as it may, treachery cannot be appreciated
against Juan and Victor in the case at bar because the
same was not alleged in the Information as mandated by
Section 8, Rule 110 of the Revised Rules on Criminal
Procedures which reads:
Sec. 8. Designation of the offense. - The complaint or
information shall state the designation of the offense given by
the statute, aver the acts or omissions constituting the offense
and specify its qualifying and aggravating circumstances. If
there is no designation of the offense, reference shall be made
to the section or subsection of the statute punishing it.
Although at the time the crime was committed, generic
aggravating circumstance need not be alleged in the
Information, however, the general rule had been applied
retroactively because if it is more favorable to the
accused. Even if treachery is proven but it is not alleged
[76]
in the information, treachery cannot aggravate the penalty
for the crime.
There being no modifying circumstances in the
commission of the felony of robbery with homicide, Juan
and Victor should each be meted the penalty of reclusion
perpetua conformably with Article 63 of the Revised Penal
Code.
Civil Liability of Juan and Victor
The trial court awarded the total amount
of P300,000.00 to the heirs of SPO1 Manio, Jr. The court
did not specify whether the said amounts included civil
indemnity for the death of the victim, moral damages and
the lost earnings of the victim as a police officer of the
PNP. The Court shall thus modify the awards granted by
the trial court.
Since the penalty imposed on Juan and Victor
is reclusion perpetua, the heirs of the victim are entitled to
civil indemnity in the amount of P50,000.00. The heirs are
also entitled to moral damages in the amount
of P50,000.00, Rosemarie Manio having testified on the
factual basis thereof. Considering that treachery
[77]
aggravated the crime, the heirs are also entitled to
exemplary damages in the amount of P25,000.00. This
Court held in People vs. Catubig that the retroactive
[78]
application of Section 8, Rule 110 of the Revised Rules of
Criminal Procedure should not impair the right of the heirs
to exemplary damages which had already accrued when
the crime was committed prior to the effectivity of the said
rule. Juan and Victor are also jointly and severally liable
to the said heirs in the total amount of P30,000.00 as
actual damages, the prosecution having adduced
evidence receipts for said amounts. The heirs are not
entitled to expenses allegedly incurred by them during the
wake as such expenses are not supported by
receipts. However, in lieu thereof, the heirs are entitled
[79]
to temperate damages in the amount of P20,000.00. The [80]
service firearm of the victim was turned over to the
Evidence Custodian of the Caloocan City Police Station
per order of the trial court on October 22, 1997. The [81]
prosecution failed to adduce documentary evidence to
prove the claim of Five Star Bus, Inc. in the amount
of P6,000.00. Hence, the award should be
deleted. However, in lieu of actual damages, the bus
company is entitled to temperate damages in the amount
of P3,000.00. [82]
The heirs are likewise entitled to damages for the lost
earnings of the victim. The evidence on record shows that
SPO1 Manio, Jr. was born on August 25, 1958. He was
killed on September 28, 1996 at the age of 38. He had a
gross monthly salary as a member of the Philippine
National Police of P8,065.00 or a gross annual salary
of P96,780.00. Hence, the heirs are entitled to the amount
of P1,354,920.00 by way of lost earnings of the victim
computed, thus:
Age of the victim = 38 years old
Life expectancy = 2/3 x (80 age of the victim at the time of
death)
= 2/3 x (80-38)
= 2/3 x 42
= 28 years
Gross Annual Income = gross monthly income x 12 months
= P8,065.00 x 12
= P96,780.00
Living Expenses = 50% of Gross Annual Income
= P96,780.00 x 0.5
= P48,390.00
Lost Earning Capacity = Life expectancy x [Gross Annual
Income-
Living
expenses]
= 28 x [P96,780.00 P48,390.00]
= 28 x P48,390.00
= P1,354,920.00
IN LIGHT OF ALL THE FOREGOING, the Decision of
the Regional Trial Court of Bulacan is hereby AFFIRMED
with MODIFICATIONS. Accused-appellants Juan
Gonzales Escote, Jr. and Victor Acuyan are hereby found
guilty beyond reasonable doubt of the felony of robbery
with homicide defined in Article 294, paragraph 1 of the
Revised Penal Code and, there being no modifying
circumstances in the commission of the felony, hereby
metes on each of them the penalty of RECLUSION
PERPETUA. Said accused-appellants are hereby
ordered to pay jointly and severally the heirs of the victim
SPO1 Jose C. Manio, Jr. the amounts of P50,000.00 as
civil indemnity, P50,000.00 as moral
damages, P1,349,920.00 for lost earnings, P30,000.00 as
actual damages and P25,000.00 as exemplary
damages. The award of P6,000.00 to the Five Star Bus,
Inc. is deleted. However, the said corporation is awarded
the amount of P3,000.00 as temperate damages.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Mendoza,
Panganiban, Quisumbing, Carpio, Austria-Martinez,
Corona, Carpio-Morales, and Azcuna, JJ., concur.
Vitug J., please see separate opinion.
Ynares-Santiago, and Sandoval-Gutierrez, JJ., join J.
Vitugs separate opinion.
 FIRST DIVISION
[G.R. No. 126281. June 10, 2003]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. SERGIO A. CARATAO, appellant.
DECISION
AZCUNA, J.:
Sergio A. Caratao appeals from the decision of the
Regional Trial Court of Libertad, Butuan City, Branch 3, in
Criminal Case No. 5143, dated December 22, 1995,
finding him guilty of murder, as follows:
WHEREFORE, in the light of the foregoing findings of facts
and law, with the attendan[ce] of the qualifying circumstance
of treachery, the court finds the accused Sergio A. Caratao
guilty beyond reasonable doubt of the crime of murder under
Art. 248, Revised Penal Code. Republic Act No. 7659 defining
heinous crimes was not yet passed and effective at the time of
the commission of the crime. Accused Sergio A. Caratao is
hereby sentenced to suffer the penalty of reclusion perpetua,
with all the accessory penalties provided for in Art. 41,
Revised Penal Code. Further, the knife used in the commission
of the crime is hereby declared confiscated and forfeited in
favor of the government. Furthermore, he is ordered to
indemnify the heirs of the deceased Edgardo Tado Bulawin,
the following:
(1) P50,000.00 for the death of Edgardo Tado Bulawin;
(2) P22,050.00 as actual damages ; and
(3) P20,000.00 as moral damages.
And also to pay the costs. [1]
On July 21, 1992, appellant was charged under an
amended information, thus:
That on or about the 27th day of April, 1992, at, more or less,
4:20 oclock in the evening, at Nalco Commissary Compound,
Hill Top Village, Nasipit, Agusan del Norte, Philippines, and
within the jurisdiction of this Honorable Court, the above-
name[d] accused, armed with a bladed weapon, with intent to
kill and with evident premeditation and treachery and with
cruelty, did then and there willfully, unlawfully, and
feloniously attack, assault and stab Edgardo Bulawin, thus
inflicting upon him stab wounds on the different parts of his
body, which directly caused his death.
CONTRARY TO LAW: (Article 248, of the Revised Penal
Code).[2]
Upon his arraignment on August 11, 1992, appellant,
assisted by his counsel, entered a plea of not guilty. Trial
[3]
thereafter ensued and the court a quo rendered the
assailed decision.
The prosecution relies on the eyewitness accounts of
Martin Sugala, Eugenio Agudera and Roberto
Mangmang. The widow of the deceased, Moreta Bulawin,
testified to prove civil damages. Their testimonies are
summarized below.
Martin Sugala, a rice dispatching checker employed
with Nasipit Agusan Lumber Company (NALCO) at
Nasipit, Agusan del Norte, testified that at around 4:00
p.m., appellant and his wife entered the commissary
canteen of NALCO. Appellants wife approached Sugala
and told him that her husband was angry. Sugala asked
appellant about this. Appellant replied, saying that he was
not given additional rice vale by the victim Edgardo Tado
Bulawin, NALCOs rice vale issuer. After checking that
there was extra rice available, Sugala assured appellant
that he would give him an additional 25 kilos.
Shortly thereafter, Sugala saw the victim walk out of
the canteen. Sensing that appellant was about to rush to
the victim, the witness restrained him and said, Do not do
anything harsh because we are all brothers here, anyway
I am giving you [an] additional 25 kilos of rice. He placed
his arm around appellant and accompanied him to the
issuing area for the additional rice. Upon reaching the
issuing area, he first checked the rice being issued to two
employees. After this, he noticed that appellant was no
longer near him. Through the canteens screened
windows, he next saw appellant standing one meter
behind the victim, who was then already astride his
motorbike. About 5 meters from Sugalas position, the
victims motorbike was facing towards the exit gate, with
its engine already running. At that moment, he saw
[4]
appellant attack the victim from behind:
Q. What did you observe next?
A. When I saw that Sergio Caratao was already about 1 meter
away from the back of Edgardo Bulawin, I shouted to him
saying Bay, your rice is ready. At that moment, I saw that
the left hand of Caratao was on the shoulder of Bulawin
and his right hand was on the side of Bulawin. I thought
he only boxed the latter.
Q. Aside from thrusting his hand at the side of Bulawin, what
else if any did you see Caratao do with his hand?
A. When the right hand was on the side of Bulawin, it was
retracted very fast and I saw that that hand was holding a
knife, and [that he] immediately made another thrust
towards here. (witness pointing to his nose)
ATTY. GONZALES: With the permission of the Court, may we
request the witness to re-enact what [he] actually saw,
and we request the jail guard to act as the victim.
COURT: Okay.
INTERPRETER: (Jail guard Meode being requested to act as
Edgardo Bulawin and the witness as accused Sergio
Caratao.)
(Edgardo Bulawin made an initial stance as if riding on a
motorcycle with both hands on the handle bars of the
motorcycle.)
ATTY GONZALES:
Q. Where was Caratao when you first saw him, how far was
he?
A. This distance, [S]ir. (witness demonstrating a distance of
about 1 meter from the back of Bulawin)
Q. Then re-enact what you saw.
A. After I shouted Bay, your rice is ready, I saw Sergio
Caratao, in a simultaneous action, place his left hand on
the left shoulder of Bulawin and the right hand of Caratao
on the right side of Bulawin. When Sergio Caratao
withdrew his right hand from the right side of Bulawin, I
saw that the right hand has a knife in it, and a second
thrusting motion was made towards the face of Bulawin.
After that, Bulawin got off from his motorcycle and ran
towards the cemented road. Sergio Caratao remained
standing on the place of the incident still holding that knife,
and after that, Caratao and his wife went home.[5]
Sugala also recalled seeing many people at the scene
of the incident, such as some NALCO employees, security
guards, and outsiders who buy rice from the canteen
called the blackmarketers. [6]
 Roberto Mangmang, canteen dispatcher of NALCO,
corroborated Sugalas testimony. He testified that in the
afternoon of April 27, 1992, while walking from the
canteen towards the gate, he saw the victim in a squatting
position, tinkering with his motorbike. Shortly thereafter,
[7]
on his way back to the canteen, at around 4:20 p.m., he
saw appellant behind the victim who was already astride
his motorbike facing the gate, with his hands on its handle
bars. From a distance of one and a half meter, he
witnessed appellant put his left hand on the victims left
shoulder and thrust his right hand on the victims right side.
Immediately thereafter, appellant made another thrust at
the victims face. At that point, Mangmang saw that
appellant was holding a dagger, and he later heard
somebody shout, Do, run! The victim then ran out through
the gate towards the hospital, while appellant ran home.
Mangmang followed the victim and saw his intestines
bulging and coming out. He then brought the victim to the
nearby hospital aboard a tricycle. He testified having
[8]
seen many employees in the area at the time of the
incident, whom he could not identify. [9]
Eugenio Agudera, the security guard of NALCO,
testified that on April 27, 1992, he likewise saw the
stabbing incident four meters away from the guardhouse
by the gate of the canteen. At around 4:15 p.m., he
witnessed appellant sneak from behind the victim who
was astride his motorcycle, and stab the victims right side
with a knife.
Immediately thereafter, appellantdelivered a second
blow, with a slashing motion across the victims mouth.
Upon seeing this, he shouted, Run, Do!, directed at the
victim. The victim then ran out towards the highway
through the gate, while clutching his stomach as it bled
profusely. Agudera also confirmed the presence of those
[10]
who witnessed the incident such as Clemente Felias,
Roberto Mangmang, Dino Macabugto, Martin Sugala and
the blackmarketers. [11]
Moreta Bulawin, wife of the victim, testified that she
saw her husband in St. Christopher Hospital around 4:30
p.m. with stab wounds on his right stomach and upper lip,
and a cut across his right cheek. Shortly thereafter, the
[12]
victim was transferred to Butuan Doctors Hospital, where
he expired. She presented her husbands death certificate
to prove his age at the time of death, and his latest
[13]
income tax return to prove his annual gross income
of P37,432. She testified that she spent more
[14]
than P30,000 for hospital and funeral expenses, some of
which were supported with receipts. [15]
The defense presented four witnesses, namely,
appellant, Nancy Sotis, Delia Peramide, and SPO4
Bienvenido Capablanca.
Taking the witness stand, appellant Sergio
Caratao admitted stabbing the victim, but interposed self-
defense to exculpate himself. He testified that on April 27,
1992, at around 4:00 p.m., he was with his wife at
the NALCO Commissary Canteen, where the victim was
then on duty as rice vale issuer. He requested the victim
for his rice vale. The victim told him to wait. Appellant
hence waited nearby for around ten minutes, while the
victim issued rice to others. Appellant thereafter kept
begging the victim for his turn, telling him Do, give me my
rice because I have nothing to eat for supper, but the
victim made no reply. Despite repeated pleas, he was not
given any rice. Upon seeing the victim leave the issuing
area, he kept silent and walked away. He went to his wife
and told her that he was unable to get rice. His wife then
left.
 Shortly thereafter, appellant also left to go home. On however, he confirmed the presence of Agudera outside
his way out, he saw the victim getting his motorbike. He the said gate.[20]

approached the victim, who at that point was already

Nancy Sotis, a blackmarketer who frequented the
mounted on his motorcycle, holding the handle bars, with
NALCO canteen, testified that she was seated under a
the engine already running. As appellant stood one meter
jackfruit tree by the gate of the canteen the whole day of
away from the victim, along the right side of the
April 27, 1992. At about 4:00 p.m., from a distance of four
[21]

motorcycle, he asked, Do, how about my rice? The victim

meters, she saw the victim astride his motorcycle, with its
answered, That is no longer my problem. Why are you
engine already running. Appellant then approached the
forcing me? Appellant persisted with his pleas, and the
victim and stood in front of the latter, a little obliquely to
victim angrily answered back, Are you forcing me?
the right. She saw appellant utter something to the victim,
Immediately thereafter, the victim punched appellants
which she did not hear because of the sound of the
face with his right fist and said, You are always like that,
engine. She looked away, and when she glanced back at
you are forcing me. Appellant was thrown backward, and
their direction, she saw the victim punch appellant in the
the victim moved his motorbike forward, hitting appellants
face with his right hand.
left thigh near the groin. Appellant then held the victims
Appellant then thrust something near the victims
right hand, and when the victim tried to break free, he
abdomen. Upon seeing appellant pull out a knife from the
twisted it. Thereafter, with a knife on his right hand, he
victims abdomen, she shouted to the people outside the
stabbed the right portion of the victims belly. In retaliation,
fence of the canteen. When she looked back, he saw the
the victim punched appellant with his left fist, hitting
victim raise his right fist towards appellants face. Appellant
appellants mouth. The victim thereafter ran, while
then stabbed the victims face with his knife. The victim
appellant remained standing for about ten minutes. He
thereafter alighted from his motorcycle and walked
later followed the victim to the gate, and saw the victim
towards the gate, holding his bleeding abdomen. The
from afar boarding a tricycle alone. Appellant went home
people outside the fence were about to meet and assist
to get his tricycle and immediately drove to the municipal
him, but they later turned back when they saw appellant
hall, where he voluntarily surrendered. [16]

following the victim. [22]

In his testimony, appellant denied seeing any guard at

Sotis testified that there was nobody near the victim
the guardhouse at the time of the incident. He saw
and appellant at the time of the incident. She denied
[23]

Mangmang only, inside the canteen, and denied hearing

[17]

seeing Mangmang, but confirmed that Sugala was then

[24]

anyone shout Run, Do! On his way out of the gate after
[18]

inside the canteen. She admitted having seen in the

[25]

the stabbing, he noticed only one person in the

morning a security guard at the guardhouse, by the name
compound, a woman sitting under the jackfruit tree at the
of Felias, but was uncertain as to his presence from
corner by the gate, whom he does not know. He recalled
noontime onwards. Shedenied seeing any guard at the
[26]

seeing other people outside the gate of the canteen,

gatepost at the time of the incident, but admitted seeing
[27]

whom he could not identify. On cross-examination,

[19]
Agudera approach the victim when the latter was about to
go out of the gate. [28]
Delia Peramide, a blackmarketer like Sotis, testified to
rebut the statement of prosecution eyewitness
Mangmang, who declared that he brought the victim to the
hospital aboard a tricycle. She narrated that in the
afternoon of April 27, 1992, while she was in line for
consultation inside St. Christopher Hospital, she heard
someone shout, Doctor, there is an emergency. She ran
to look outside, and saw a tricycle parked outside the
hospital, about 20 to 25 meters away from where she
stood. She saw the driver, and a bloodied person curled
up on the passengers seat, whom she later recognized as
Tado Bulawin. She declared that when she saw the
[29]
victim in the tricycle, Mangmang was not with him. She
saw Mangmang in the hospital only after 15 minutes,
when he was on his way to the emergency room to visit
the victim.
[30]
SPO4 Bienvenido Capablanca, chief of the
operations division at Nasipit PNP Station, testified that at
about 4:30 p.m. of April 27, 1992, appellant, looking cool
and composed, arrived at the station and told him, Sir, I
voluntarily surrender myself because I have killed
somebody. Appellant identified the victim as a certain
Tado, and also surrendered his knife. [31]
For its rebuttal evidence, the prosecution recalled
Roberto Mangmang and presented a new witness,
Clemente Felias.
Roberto Mangmang, the prosecution eyewitness
who testified earlier, added that the victim never boxed
appellant, nor did he try to run over the latter with his
motorcycle prior to the stabbing, contrary to appellants
claim.[32]
Clemente Felias, the NALCO security guard whose
shift was previous to that of prosecution eyewitness
Agudera, testified that throughout his tour of duty from
8:00 a.m. to 4:00 p.m., he never saw defense eyewitness
Sotis within the compound. He also testified that he, too,
witnessed the incident, and declared that it was not true
that the victim punched appellant before the stabbing. [33]
The trial court gave credence to the prosecutions
version of the incident. It found that the victims
indifference to appellants repeated pleas for rice must
have angered appellant to the point of attacking the victim
upon seeing the latter about to leave without heeding his
request. It rejected the plea of self-defense for appellants
failure to prove unlawful aggression on the part of the
victim. It upheld the presence of treachery, but ruled out
the aggravating circumstances of evident premeditation
and cruelty, for lack of evidence.
Hence, this appeal.
In his brief, appellant submits the following errors:
I. THE HONORABLE COURT GRAVELY ERRED
IN NOT FINDING THAT THE KILLING OF
THE DECEASED WAS ATTENDED BY [THE]
JUSTIFYING CIRCUMSTANCE OF SELF-
DEFENSE.
II. THE LOWER COURT LIKEWISE GRAVELY
ERRED IN HOLDING THAT ACCUSED
COMMITTED MURDER BY TREACHERY.
 III. THE LOWER COURT ALSO GRAVELY
ERRED IN NOT ACQUITTING THE
ACCUSED-APPELLANT. [34]
In his first and third assignment of errors, appellant
assails the trial court for giving credence to the
prosecutions evidence and disregarding his claim of self-
defense.
The settled rule is that where an accused admits killing
the victim but invokes self-defense to escape criminal
liability, he assumes the burden to establish his plea by
credible, clear and convincing evidence; otherwise,
conviction would follow from his admission that he killed
the victim. This is known as a shift in the burden of the
[35]
evidence, and as a result thereof the person claiming self-
defense must rely on the strength of his own evidence and
not on the weakness of the prosecutions. Furthermore,
[36]
on appeal, appellant must show that the court below
committed reversible error in appreciating the evidence. [37]
To prove self-defense, the accused must show with
clear and convincing evidence: (1) that the victim
committed unlawful aggression amounting to actual or
imminent threat to the life and limb of the person claiming
self-defense; (2) that there was reasonable necessity in
the means employed to prevent or repel the unlawful
aggression; and (3) that there was lack of sufficient
provocation on the part of the person claiming self-
defense or, at least, that any provocation executed by the
person claiming self-defense was not the proximate and
immediate cause of the victims aggression. [38]
At the heart of the claim for self-defense is the
presence of an unlawful aggression committed against
appellant. Without unlawful aggression, self-defense will
not have a leg to stand on and this justifying circumstance
cannot and will not be appreciated, even if the other
elements are present. Unlawful aggression refers to an
[39]
attack amounting to actual or imminent threat to the life
and limb of the person claiming self-defense. The [40]
admission of appellant in his testimony that he stabbed
the victim makes it incumbent upon him convincingly to
prove that there was unlawful aggression on the part of
the victim which necessitated the use of deadly force. In [41]
the case at bar, appellant tried to prove that the unlawful
aggression emanated from the victim, who punched him
in the face and hit him in the thigh with his motorbike,
without provocation on his part. This the trial court found
unconvincing, thus:
Under the situation where Tado Bulawin was in a riding
position on his motorcycle, holding its handle bars, ready to
start the engine, the court finds it incredible for him to be the
unlawful aggressor. Instead, Sergio Carataos being made to
wait and make repeated requests or pleas for his vale of rice
must have moved him to be the unlawful aggressor thereby
inflicting stab wounds on the victim Tado Bulawin. For the
circumstance of self-defense to be appreciated, it must be
shown that the compulsion is of such character that the
accused is left with no opportunity to escape or self-defense
[sic] in equal combat (People v. Fronda, 222 SCRA 71). And
this is not the set-up in the case at bar. The prosecution version
merits belief and credence beyond reasonable doubt. [42]
We agree with the foregoing finding of the trial court.
Appellants account of the circumstances of the attack
does not inspire belief.
First, according to appellants testimony, after an
exchange of words, the victim punched him in the face,
and thereafter hit his left thigh with his motorcycle.
Appellant held the victims hand, twisted it and stabbed the
latter in the abdomen. The victim then punched appellant
in the mouth with his left fist. After this, the victim ran
away. Noticeably, in this narration, nowhere did appellant
mention that he stabbed the victim for the second time in
the face. This is in conflict with the testimonies of the
prosecution witnesses, and even of the defense witness
Sotis, who all narrated that appellant stabbed the victim in
the mouth. Appellants account, moreover, does not jibe
with the physical evidence showing the victims injuries
below the nose and across the cheek. [43]
Second, on cross-examination, appellant missed the
part where the victim allegedly hit his left thigh with the
motorcycle, testifying that after the first punch, he
immediately stabbed the victim. Interestingly, defense
[44]
witness Sotis also made no mention of this important
portion, rendering it highly dubious.
[45]
Third, we agree with the trial courts observation that
the circumstances of the victims alleged assault on
appellant is not credible, thus:
xxx xxx xxx
Further, his contention that Tado Bulawin while still in that
riding position boxed him and that Tado Bulawin let run his
motorcycle pushing forward hitting accused on his thigh also
do not inspire belief because accused Sergio Caratao was
positioned at the right side of the motorcycle, not in front, and
if at all Tado Bulawin boxed him in that riding position, the
motorcycle could have probably fallen down. But [there was]
no proof that it did fall.
[46]
xxx xxx xxx
We further observe that in their relative positions,
appellant had more freedom of action than the victim who
was riding his motorcycle. Moreover, it is hardly believable
that the victim in that position would have the strength to
punch appellant in the face with his left fist, after being
stabbed in his right abdomen. All the eyewitness accounts
showed that, after being stabbed, the victim left his
motorcycle and walked away while clutching his bleeding
abdomen with both hands. [47]
Fourth, we note that as between appellant and the
victim, appellant had more hatred to harbor arising from
the fact that the victim refused to give him his rice vale. He
thus had more motive to do harm than the victim. On the
witness stand, he reasoned that he stabbed the victim, not
to repel the victims attack, nor out of fear for his life, but
specifically because he lost his temper. [48]
Fifth, we note that appellants plea of self-defense is
rendered doubtful by the fact that he invoked it for the first
time only upon taking the witness stand for his defense.
When he surrendered at the police station, he only
reported that he had killed a certain Tado, but never raised
self-defense to exculpate himself. Records also show that
appellant waived his right to a preliminary investigation
and submission of counter-affidavits. We have ruled that
[49]
an appellants failure to inform the police upon his
surrender that he acted in self-defense is fatal to his
defense. A righteous individual will not cower in fear but
[50]
rather unabashedly admit the killing at the earliest
opportunity if he were morally justified in so doing. A
belated plea suggests that it is false and only an
afterthought made as a last-ditch effort to avoid the
consequences of the crime. [51]
 Appellant tried to obtain corroboration from Sotis and
Peramide to prop up his defense and to assail the
prosecutions testimonies. The account of Sotis, however,
was put to question by the rebuttal testimony of Felias,
whom Sotis admitted to having seen on the day of the
incident. Felias in his testimony denied seeing her under
the jackfruit tree near the guardhouse, or anywhere within
the compound on that day. Peramides testimony, on the
other hand, failed to cast doubt on the testimony of
prosecution witness Mangmang, as it was established that
when she saw the tricycle where Mangmang claimed to
have ridden going to the hospital, it was already parked. It
therefore does not render false Mangmangs claim that he
brought the victim to the hospital, as he could already
have alighted from the vehicle by the time Peramide saw
it.
Moreover, appellant has not shown that the
prosecution witnesses had any ill motive against him,
which would have moved them falsely to implicate him. On
the contrary, he admitted on cross-examination that
prosecution witness Sugala is his friend. Prosecution
[52]
witness Mangmang further testified that appellant was his
neighbor in their younger days, and that appellants
brother is his friend. It is worth reiterating that where
[53]
there is no evidence that the principal witnesses of the
prosecution were actuated by ill motives, their testimonies
are entitled to full faith and credit.
[54]
All told, no matter how appellant tried to cast doubt on
the veracity of the testimonies of the prosecution, we find
the prosecution witnesses to be more credible than those
of the defense. There may have been inconsistencies in
the narration of the prosecution witnesses on minor
details, but these do not affect the weight of their
testimonies, as these cannot be expected to be uniform to
the last details. In fact, a perfectly dovetailing narration
[55]
by different witnesses could mean that their testimonies
were prefabricated and rehearsed. What is primordial is
[56]
that the mass of testimony jibes on material points. [57]
Furthermore, even assuming that appellant
succeeded in weakening the prosecutions evidence, such
will not suffice to exculpate him. He must rely on the
strength of his own evidence, and not on the weakness of
that of the prosecution, for even if it were weak, it could
not be disbelieved after his open admission of
responsibility for the killing.
[58]
Finally, the question whether or not appellant acted in
self-defense is essentially a question of fact. The trial
[59]
court found the testimonies of the prosecution worthy of
belief. As to who between the prosecution and the
defense witnesses are to be believed, the trial courts
assessment enjoys a great amount of respect for the
reason that the trial court has the advantage of observing
the demeanor of the witnesses as they testify, unless
found to be clearly arbitrary or unfounded. In the present
[60]
case, appellant failed to point out any arbitrariness on the
part of the trial court.
Thus, we find that the court a quo was correct in
upholding the testimonies of the prosecution. The unlawful
aggression was convincingly established to have
emanated from appellant, and not from the victim.
Appellant having failed to discharge the burden of
establishing his defense, his conviction necessarily
follows on the basis of his admission of the killing. [61]
This brings us to appellants second assignment of
error on the finding of treachery.
 Treachery is present when two conditions concur, an unjust act of the victim, rather than from a deliberated
namely: (1) that the means, methods and forms of action. Hence, as the killing was done at the spur of the
[67]

execution employed gave the person attacked no moment, treachery cannot be appreciated. [68]

opportunity to defend himself or to retaliate; and (2) that

Furthermore, we find the mitigating circumstance of
such means, methods and forms of execution were
voluntary surrender present in the case at bar. To benefit
deliberately and consciously adopted by the accused
an accused, the following requisites of this circumstance
without danger to his person. In the case at bar, the first
[62]

must be proven, namely: (1) the offender has not actually

element was established by the fact that appellant
been arrested; (2) the offender surrendered himself to a
suddenly attacked from behind the unsuspecting and
person in authority; and (3) the surrender was
unarmed victim who was then astride his motorcycle.
voluntary. In the present case, based on SPO4
[69]

However, we find the prosecutions evidence insufficient to

sustain the finding of the presence of the second element,
namely, that appellant deliberately adopted the mode of
attack.
Repeatedly upheld has been the rule that chance
encounters, impulse killing or crimes committed at the
spur of the moment, or those that were preceded by
heated altercations are generally not attended by
treachery, for lack of opportunity of the accused
Capablancas testimony, appellants surrender at the
station immediately after the incident was spontaneous,
showing his intent to submit himself unconditionally to the
authorities. He expressly acknowledged having killed the
victim, surrendered his knife, and allowed himself to be
detained in prison.
In the absence of the qualifying circumstance of
treachery, the crime committed is Homicide, not
Murder. The penalty therefor, under Article 249 of the
[70]

deliberately to employ a treacherous mode of attack. In[63]

Revised Penal Code, is reclusion temporal. Considering

the present case, it appears from the evidence that
the attendant mitigating circumstance of voluntary
appellants grudge against the victim was brought about
surrender, the penalty should be imposed in its minimum
only moments before the attack, when the latter ignored
period, pursuant to Article 64 (2) of the aforesaid
his repeated pleas for rice. As observed by the trial court,
Code. Applying the Indeterminate Sentence Law,
[71]

the sight of the victim leaving the compound without

appellants sentence will consist of a minimum that is
heeding appellants request must have worsened his
anywhere within the full range of prision mayor, and a
anger. In his testimony, appellant admitted that at that
[64]

maximum which is anywhere within reclusion temporal in

moment, he forgot himself. Further, he explained that it
[65]

its minimum period. We hereby fix it to be from eight (8)

was then customary for him to bring a knife for his own
years of prision mayor as minimum, to thirteen (13) years
safety, in defense against lawless elements in their area
of reclusion temporal, as maximum.
at the time. It was thus only by chance and not by plan
[66]

that he attacked the victim the way he did. The stabbing Coming now to the matter of damages, we affirm the
was evidently a result of a rash and impetuous impulse of award of actual damages in the amount of P22,050, as
the moment arising from what appellant perceived to be these are duly substantiated by receipts and appear to
have been genuinely incurred in connection with the 26 x [P37,432 x 50% (annual net income)]= P 486, 616 [78]

death, wake and burial of the victim. The award of civil

indemnity in the amount of P50,000 is likewise sustained, WHEREFORE, the decision of the court a quo is
pursuant to controlling case law. However, we increase
[72] MODIFIED. Appellant Sergio A. Caratao is found GUILTY
the award of moral damages to a more reasonable beyond reasonable doubt of Homicide, and is sentenced
amount of P30,000, in line with prevailing jurisprudence. [73] to suffer the penalty of an indeterminate sentence of from
eight (8) years of prision mayor as minimum to thirteen
Finally, we rule that the heirs of the victim are also
(13) years of reclusion temporal as maximum. Appellant
entitled to indemnification for the loss of the latters earning is further ordered to pay the heirs of the victim the
capacity. In a recent case, we explained how to arrive at
amounts of P50,000 as death indemnity, P30,000 as
the amount of this indemnity, thus:
moral damages, P22,050 as actual damages
and P486,616 as indemnity for the victims loss of earning
The following factors should be considered in determining the
capacity. The decision under review is AFFIRMED in all
compensable amount of lost earnings: (1) the number of years
other respects. Cost de oficio.
for which the victim would have otherwise lived; and (2) the
rate of loss sustained by the heirs of the deceased. Life SO ORDERED.
expectancy is computed using the formula adopted in the
Davide, Jr., C.J., (Chairman), Vitug, Ynares-
American Combined Experience Table of Mortality: 2/3 x (80
Santiago, and Carpio, JJ., concur.
age at death). The rate of loss is arrived at by multiplying life
expectancy by the net earnings of the deceased, i.e., the total
earnings less expenses necessary in the creation of such
earnings or income and less living and other incidental
expenses. The net earning is ordinarily pegged at fifty percent
of the gross earnings. [74]

Evidence on record reveals that the victim died at the

age of 41, and that he was earning an annual gross
[75]

income of P37,432 from his employment with

NALCO. The widows testimony regarding the victims
[76]

income from his sideline cannot be considered for lack of

the necessary unbiased proof. Thus, applying the
[77]

above-cited formula, appellant should pay the victims

heirs P486,616 as shown by the following computation:

2/3 [80-41(age at the time of death)] = 26 (life expectancy)

 EN BANC
[G.R. No. 134362. February 27, 2002]
THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. EMELITO SITCHON y of the same agency.
TAYAG, accused-appellant.
DECISION
KAPUNAN, J.:
For beating to death the two-year old son of his common-law
wife, accused-appellant Emelito Sitchon y Tayag was convicted
of murder and sentenced to death by the Regional Trial Court
of Manila. His case is now before this Court on automatic review.
Appellant was charged in an information stating:
That on or about June 12, 1996, in the City of Manila,
Philippines, the said accused did then and there willfully,
unlawfully and feloniously, with intent to kill and with
treachery and evident premeditation, attack, assault and use
personal violence upon one MARK ANTHONY
FERNANDEZ y TABORA a minor, 2 years old, by then and
there mauling and clubbing him on the different parts of his
body with the use of a steel hammer and a wooden stick,
approximately 18 inches long, thereby inflicting upon the latter
mortal wounds which were the direct and immediate cause of
his death thereafter.
CONTRARY TO LAW. [1]
Appellant pleaded not guilty to the above charge.[2] However,
before testifying in his own defense on June 4, 1998, appellant
admitted that he killed the victim and changed his plea to guilty. [3]
Five witnesses testified for the prosecution, namely, Lilia
Garcia, a neighbor; the victim's eight-year old brother Roberto;
the investigating officer, PO3 Paul Dennis Javier; Dr. Manuel
Lagonera, medico-legal officer of the National Bureau of
Investigation (NBI); and Felicisima Francisco, a forensic chemist
Appellant lived in the second floor of a three-square
meter house located at 2001 Batangas Street,
Tondo, Manila. His neighbor of two months, Lilia Garcia, resided
in the first floor of the same house.
At about 10:00 in the morning of June 12, 1996, Lilia was in
front of the house attending to her children when she heard the
sound of a boy crying. Curious, Lilia went up the stairway, her
children in tow. The open door of the upper floor allowed Lilia to
witness appellant beating two-year old Mark Anthony Fernandez.
From a distance of less than three arms length, Lilia saw
appellant hit various parts of the boys body with a piece of wood,
about 14 inches in length and 2 inches in diameter. Appellant also
banged the head of the boy against the wooden wall.
The beating went on for about one hour. Lilia then saw
appellant carry the boy down the house to bring him to the
hospital. The two-year old was already black and no longer
moving.[4]
Eight-year old Roberto Fernandez is the elder brother of the
victim, also known as Macky. According to Roberto, Macky had
scattered his feces all over the house. Appellant, whom Roberto
called Kuya Chito, thus beat Macky with a belt, a hammer and a
2x2 piece of wood. Roberto could not do anything to help his
brother because he was afraid Kuya Chito might also beat him
up. When Kuya Chito brought Macky to the hospital, his little
brother, who could barely talk, was not crying anymore.[5]
 Roberto identified the two pieces of wood [6] that appellant
allegedly used in beating the victim. He also identified the T-
shirt[7] that Macky wore when he died.
A certain Alice Valerio from
the Galang Medical Hospital informed PO3 Paul Dennis
Javier that a boy had been admitted there. When PO3 Javier
went to the hospital, he found the boy already dead. He observed
that the child had wounds on the left middle finger, the right index
finger and both feet. The child also had lacerations in the upper
lip and contusions all over his head and body.
PO3 Javier proceeded to appellants house at No. 2001,
Batangas Ext., Tondo, Manila. Human feces and fresh blood
splattered on the floor. PO3 Javier recovered from the house the
broken wooden sticks, the steel hammer,[8] which were allegedly
used to beat up the boy, as well as a bloodstained white T-shirt.
PO3 Javier then went to the house of appellants sister in Del
Fierro St., Tondo, who informed him of matters relative to
appellants identification. Thereafter, the police conducted a
search operation in Cavite where appellants mother lived but
they did not find him there. Later that afternoon, PO3 Javier
learned that appellant had surrendered to Station 3 of their
district.
The following day, a staff member of the television
program Magandang Gabi Bayan turned over to PO3 Javier a
brown belt which appellant allegedly also used in beating the
victim.Roberto Fernandez, the victims brother, had given the belt
to the staff member.[9]
Dr. Manuel Lagonera, medico-legal officer of the NBI,
conducted the postmortem examination of the victims body
on June 12, 1996 at 4:40 p.m. He found that the boy had suffered
many injuries, including three wounds at the head and the
anterior chest, which could have been inflicted with the use of
blunt objects such as a piece of wood or a fist. The child could
have been dead three to four hours, or not more than eight hours,
prior to the postmortem examination. Dr. Lagonera concluded
that the victim died of bilateral pneumonia secondary to multiple
blunt traversal injuries or complication of the lungs due to said
injuries.[10] The autopsy report of Dr. Lagonera shows that Mark
Anthony Fernandez sustained the following injuries:
EXTERNAL FINDINGS:
1. Multiple old scars, forehead.
2. Healing lacerated wound, left forehead.
3. Healed lacerated wound, above the left eyebrow,
measuring 1.2x0.2 cm.
4. Healed linear abrasions, left cheek.
5. Lacerated wound, extending up to the mucous membrane
of the upper lip, measuring 2 x0.3 cm.
6. Contussion (sic), left temporo-parietal region, measuring
6x5 cms.
7. Healing lacerated wound, left zygomatic region, measuring
0.5x0.3 cm.
8. Contussion (sic), left jaw, measuring 1.5x1 cm.
9. Contussion (sic), right anterior thorax, measuring 17x12
cms.
10. Contussion (sic), right anterior forearm.
11. Lacerated wound, tip of the forefinger, right.
12. Old scar, upper 3rd , right anterior thigh.
13. Contussion (sic), right lower leg, above and below the
knee measuring 9x5 cms.
14. Contussion (sic), left lower leg, above and below the knee,
measuring 13x6 cms.
15. Hematoma, big toe, under the nail bed, right.
16. Contusso-abrasion, dorsum of the left foot, measuring 6x2
cms.
17. Contussion (sic), left posterior thorax, measuring 17x6
cms.
 18. Contussion (sic), right postero-lateral thorax, extending up
to the right lumbar region, measuring 13x6 cms.
19. Contussion (sic), right posterior forearm, measuring 24x8
cms.
20. Contussion (sic), left posterior forearm, measuring 22x7
cms.
21. Healing abrasion, right buttocks, measuring 2x0.5 cm.
22. Plucked finger nail, left middle finger, with hematoma of
the nail bed.
23. Posterior hand, both swollen.
INTERNAL FINDINGS:
1. Presence of left sub-aponeurotic hematoma, temporo-
parietal region and over the mid-occipital region.
2. Hematoma over the sternum and pectoralis muscles.
3. Both lungs showed patcy and confluent consolidations.
4. Small amount of rice porridge was recovered from the
stomach.[11]
Felicisima M. Francisco, NBI forensic chemist, conducted an
examination to determine the presence and grouping of human
blood found on the steel hammer, the wooden sticks, and the T-
shirt that were sent to his office by P/Sr. Inspector Pedro Ramos
Angulo, Jr. of the Western Police District in Manila.[12] She
prepared Report No. B-96-941 stating that Specimen No. 1 or the
steel hammer, was positive for human blood but insufficient for
blood group. Specimen Nos. 2 (the broken wooden sticks) and 3
(the white T-shirt) were also positive for human blood showing
reactions of Group A.[13]
Only appellant, 40, a sidewalk vendor, testified for the
defense. As stated earlier, appellant admitted killing the two-year
old victim, the son of his live-in partner. He and the boys mother
had lived together for two years before the incident, starting when
the boy was about a year old. He claimed he enjoyed a
harmonious relationship with his partner and that he killed the boy
only because he was under the influence of shabu,
marijuana and Valium 10 at that time. Appellant professed that
he began using drugs in 1974 and that he had also taken drugs
two weeks before the incident.
On June 12, 1996, appellant came upon Macky playing with
his feces, scattering them all over the pillow, the bed sheets and
the curtains. Appellant scolded the boy, Putang-ina ka
Macky! Bakit mo ikinalat ng ganyan ang tae mo? Halika, dadalhin
kita sa baba para hugasan! Appellant got hold of Macky but the
boy struggled to free himself from appellants grasp.Appellant, still
reeling from the Valium 10 he had just taken, became so angry
that he picked up a broom with a wooden handle, and hit the
boy. Appellant did not realize that he had hit Macky hard until he
saw the boy sprawled on the floor, breathing with difficulty. He
dressed Macky and brought him to the Galang Medical Center at
the corner of Abad Santos Avenue and Tayabas
Street, Manila. He prayed to God that nothing serious would
happen to the boy.
A lady doctor immediately attended to Macky. Appellant
pleaded to the lady doctor to do all she can to save the child;
otherwise, he would be in serious trouble. After examining the
child, the doctor told appellant that she could not do anything
more Macky was dead. The same day, appellant surrendered to
the police. He was brought to the Homicide Section at 3:00 p.m.
Explaining his change of plea, appellant clarified that the
killing of the boy was "accidental." He reiterated that he was
under the influence of drugs, which he had taken one after the
other. He was a drug dependent and, in fact, had been confined
at the Tagaytay Rehabilitation Center. He said he was conscious
when the incident happened but he simply did not realize that he
had hit the child hard with the brooms wooden handle. He denied
having hit the boy with a hammer or having banged his head
against the wall. He hoped the trial court would be lenient with
him because of his voluntary surrender. He prayed that the court
would not impose upon him the death penalty.[14]
Nevertheless, on July 3, 1998, the trial court promulgated its
decision, the dispositive portion of which reads:
WHEREFORE, this Court finds the accused, Emelito Sitchon
y Tayag, guilty beyond reasonable doubt of the crime of
murder and is sentenced to suffer the death penalty and to pay
the costs. The accused is further ordered to pay the mother of
the victim Christina Tabora, moral and nominal damages in the
respective sums of P100,000.00 and P50,000.00, plus death
compensation in the sum of P50,000.00, with interest thereon
at the legal rate from this date until fully paid.
SO ORDERED. [15]
The Court entertains little doubt that appellant is guilty of the
killing of Mark Anthony Fernandez. Appellants guilt was
adequately established by the testimonies of Lilia Garcia and
Roberto Fernandez, who both saw appellant beat Macky. These
testimonies were further corroborated by those of PO3 Paul
Dennis Javier, Dr. Manuel Lagonera and Felicisima Francisco, as
well as the various pieces of object evidence. Indeed, appellant
in open court admitted beating the poor child, which beating
resulted in the latters death.
That appellant purportedly did not intend to kill the toddler
would not exculpate him from liability. Article 4(1) of the Revised
Penal Code provides that criminal liability shall be incurred by any
person committing a felony (delito) although the wrongful act
done be different from that which he intended. The rationale of
the rule is found in the doctrine that el que es causa de la causa
es causa del mal causado (he who is the cause of the cause is
the cause of the evil caused).[16]
Thus, where the accused violently kicked the sleeping victim
in vital parts of the latters body, the accused is liable for the
supervening death as a consequence of the injuries.[17]Assuming,
therefore, that appellant merely intended to inflict physical injuries
upon the boy, he is nevertheless liable for the death of the victim
caused by such injuries.
The killing in this case was attended by treachery. There is
treachery when the offender commits any of the crimes against
persons, employing means, methods or forms in the execution
thereof which tend directly and especially to insure its execution
without risk to himself arising from the defense which the
offended party might make.[18] It is beyond dispute that the killing
of minor children who, by reason of their tender years, could not
be expected to put up a defense, is treacherous.[19]
Evident premeditation is absent. For the court to appreciate
evident premeditation, the prosecution must prove: (a) the time
the accused decided to commit the crime; (b) an overt act
manifestly indicating that he clung to his determination; and (c)
sufficient lapse of time between the decision and the execution to
allow the accused to reflect upon the consequence of his
act.[20] The prosecution failed to establish any of these requisites.
The trial court incorrectly appreciated cruelty against the
accused. The test in appreciating cruelty as an aggravating
circumstance is whether the accused deliberately and sadistically
augmented the wrong by causing another wrong not necessary
for its commission, or inhumanly increased the victims suffering
or outraged or scoffed at his person or corpse.[21] The nature of
cruelty lies in the fact that the culprit enjoys and delights in making
his victim suffer slowly and gradually, causing him moral and
physical pain which is unnecessary for the consummation of the
criminal act which he intended to commit.[22] The sheer number of
wounds, however, is not a test for determining whether cruelty
attended the commission of a crime.[23]
The prosecution did not show that appellant enjoyed inflicting
injuries upon the victim. The inordinate force employed by
appellant appears to have been caused not by any sadistic bend
but rather by the drugs that diminished his capacity.
The trial court also considered intoxication as an aggravating
circumstance. The Solicitor General defends this ruling,
contending that appellants habitual drug addiction is an
alternative circumstance analogous to habitual intoxication under
Article 15 of the Revised Penal Code:
Intoxication of the offender shall be taken into consideration as
a mitigating circumstance when the offender has committed a
felony in a state of intoxication, if the same is not habitual or
subsequent to the plan to commit said felony; but when the
intoxication is habitual or intentional, it shall be considered as
an aggravating circumstance.
The Court does not agree. Article 13 of the Revised Penal
Code provides a list of mitigating circumstances, which work to
reduce the accuseds penalty. Article 13(10) allows courts to
consider any other circumstance of a similar nature and
analogous to those mentioned therein. Neither Article 14 of the
same Code on aggravating circumstances[24] nor Article 15 on
alternative circumstances,[25] however, contain a provision similar
to Article 13(10). Accordingly, the Court cannot consider
appellants drug addiction as an aggravating
circumstance.Criminal statutes are to be strictly construed and no
person should be brought within their terms who is not clearly
within them.[26]
Appellant maintains that his plea of guilt mitigates his criminal
liability. On this matter, this Court said in People v. Ramos:[27]
To effectively alleviate the criminal liability of an accused, a
plea of guilt must be made at the first opportunity, indicating
repentance on the part of the accused. In determining the
timeliness of a plea of guilty, nothing could be more explicit
than the provisions of the Revised Penal Code requiring that
the offender voluntarily confess his guilt before the court prior
to the presentation of the evidence for the prosecution. It is
well-settled that a plea of guilty made after arraignment and
after trial had begun does not entitle the accused to have such
plea considered as a mitigating circumstance.
As appellant changed his plea only after the prosecution had
rested its case and just when he was just about to testify, said
mitigating circumstance is unavailing.
The trial court credited appellant with the mitigating
circumstance of voluntary surrender. For voluntary surrender to
be appreciated, these elements must be established: (1) the
offender has not been actually arrested; (2) he surrendered
himself to a person in authority or an agent of a person in
authority; and (3) his surrender was voluntary.[28] It is sufficient that
the surrender be spontaneous and made in a manner clearly
indicating the intent of the accused to surrender unconditionally,
either because he acknowledges his guilt or he wishes to save
the authorities the trouble and expense which will necessarily be
incurred in searching for and capturing him.[29]
Appellant has failed to adequately prove voluntary
surrender. While he claimed that he surrendered to the police on
the same day that the victim was killed, he did not detail the
circumstances like the time and place of such surrender. Neither
did appellant state to whom he surrendered. He did not indicate
if the person was a person in authority or an agent of the
latter. PO3 Javiers testimony that he learned of appellants
alleged surrender is hearsay and does not serve to corroborate
appellants claim.
The Court, however, discerns no intention on the part of
appellant to commit so grave a wrong against his
victim. Appellants intention was merely to maltreat the victim, not
to kill him.When appellant realized the horrible consequences of
his felonious act, he immediately brought the victim to the
hospital.[30] Sadly, his efforts were for naught.
In view of the attendance of the aggravating circumstance of
treachery, the killing of the victim is qualified to murder,
punishable under Article 248 of the Revised Penal Code
by reclusion perpetua to death. The murder was attended by the
mitigating circumstance of lack of intention to commit so grave a
wrong and there is no aggravating circumstance. Hence, the
lesser penalty of reclusion perpetua must be imposed upon
appellant.[31]
Appellant is liable for civil indemnity of P50,000.00 without
proof of damages.[32] Moral damages that are recoverable for the
mental anguish or emotional distress suffered by the heirs of the
victim cannot be awarded here as the prosecution did not present
any evidence to justify its award.[33]
WHEREFORE, accused-appellant Emelito Sitchon y Tayag
is found GUILTY beyond reasonable doubt of Murder, as defined
and punished by Article 248 of the Revised Penal Code,and is
sentenced to suffer the penalty of reclusion perpetua. He is
ordered to pay the heirs of Mark Anthony Fernandez civil
indemnity in the amount of P50,000.00.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza,
Panganiban, Quisumbing, Buena, Ynares-Santiago, De Leon,
Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.
 SECOND DIVISION crime of Murder as a consequence but which nevertheless did not
produce it by reason of causes independent of the will of the herein
accused, that is, due to timely, able and efficient medical attendance
rendered to the victim."[4]
[G.R. Nos. 138306-07. December 21, 2001]
During trial, the main witness for the prosecution, Jonathan
Aromin, testified that on the night of 2 September 1993 he and his
neighbor Julian Ancheta went to the house of the accused who lived just
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, across them.[5] Julian told Jonathan to knock on the door first but when
vs. SPO1 EDUARDO ANCHETA Y no one answered Julian did the knocking himself.[6] When the accused
RODIGOL, accused-appellant. opened the door, Jonathan immediately noticed that SPO1 Ancheta was
armed with a gun. Intimidated, Jonathan began to move away.[7] As he
left the house of the accused, Jonathan suddenly heard two (2) shots
DECISION which prompted him to hide behind the nearest wall.But when he looked
BELLOSILLO, J.: back the accused SPO1 Ancheta was already aiming his revolver
directly at his face and without hesitation shot him at close
This is an appeal from the Decision of the Regional Trial Court range.[8] Stunned by the gunshot wound, Jonathan momentarily blacked
Caloocan City finding SPO1 accused-appellant SPO1 Eduardo Ancheta out but soon regained consciousness when his neighbor, Leonila Lopez,
y Rodigol guilty of Murder in Crim. Case No. C-44939 and came to his aid and rushed him to the Jose Reyes Memorial Medical
of Frustrated Murder in Crim. Case No. 44940.[1] Center.[9] At the hospital, the slug that pierced his right cheek was
removed from his left shoulder and was subsequently released on 7
SPO1 Eduardo Ancheta y Rodigol[2] was originally charged
September 1993.[10]
with Homicide in Crim. Case No. C-44939 and Frustrated
Homicide in Crim. Case No. C-44940. However, upon motion of Leonila Lopez narrated that her house was right across the house of
private complainant, a reinvestigation was conducted and the the accused, separated only by a narrow alley.[11] At around 8:00 o'clock
Informations were amended to charge the accused in the evening of 2 September 1993 while she was preparing dinner, she
with Murder in Crim. Case No. C-44939 and Frustrated was startled by the sound of two (2) gunshots coming from the house of
Murder in Crim Case No. C-44940. the accused. She immediately told her children to go inside and as she
was about to close her windows she saw Jonathan Aromin running
In the amended Information for Murder, it was alleged that the
towards her house, followed by the accused. She then saw the accused
accused "with deliberate intent to kill and with treachery and evident
shoot Jonathan Aromin on the right cheek. After the accused left, she
premeditation, did then and there willfully, unlawfully and feloniously
helped the hapless victim and brought him to the hospital.[12] She was
shoot one Julian Ancheta y Rodigol on the left temple, thereby inflicting
approximately a meter away when she witnessed the shooting.[13]
upon the latter serious physical injuries, which injuries caused the
victims death."[3] On the other hand, in the Virginia Ancheta, wife of Julian Ancheta, testified that she and her
amended Informationfor Frustrated Murder it was alleged that the deceased husband had two (2) children and that she incurred P54,200.00
accused "with deliberate intent to kill and with treachery and evident as funeral expenses for his burial.[14]
premeditation, did then and there willfully, unlawfully and feloniously
Dr. Roberto Garcia, a Medico-Legal Officer of the NBI, testified
shoot with a gun one Jonathan Aromin y Cardinez on the right cheek,
that he autopsied the body of Julian Ancheta on 3 September
thus performing all the acts of execution which would constitute the
1993. Julian sustained three (3) gunshot wounds. One (1)
bullet pierced the the back of his left forearm and exited in front thereof,
another entered the rear left portion of the neck and exited through the
right rear portion thereof, while the fatal bullet pierced the front portion
of the left ear without an exit wound.[15] However, although Dr. Garcia
concluded that three (3) bullets hit the deceased, he did not discount the
possibility that the three (3) wounds could have been caused by only
two (2) bullets as the left arm, being a movable part of the body, might
have been in the way when the bullet exited through the neck of the
victim.[16]
Police Officer 3 Feliciano Almojuela of the Intelligence and
Investigation Division, PNP Station, Caloocan City, claimed that in the
early morning of 3 September 1993 he received a report of a shooting
incident at Block 36, Phase 3-F-1 Dagat-dagatan, Caloocan
City.[17] Upon reaching the crime scene he was informed that the slain
victim was S/Sgt. Julian Ancheta of the Philippine Air Force and the
suspect was the deceaseds brother SPO1 Eduardo Ancheta. When he
learned that another victim was confined at the Jose Reyes Memorial
Medical Center he went there and found Jonathan Aromin in critical
condition. Thinking that the victim might not survive he immediately
interviewed him and took an "ante-mortem" statement.[18] In the
afternoon of the same day, the accused voluntarily surrendered himself
as well as his service firearm at the PNP Station in Caloocan City.[19] At
around 11:00 p.m., PO3 Almojuela brought the accused to the hospital
where the latter was positively identified by Jonathan Aromin as the
assailant.[20]
Dr. Abraham Gonzales, the resident physician at the Jose Reyes
Memorial Medical Center, testified that he was on duty on 2 September
1993 when Jonathan Aromin was admitted. Upon examination he
observed that the victim sustained a gunshot wound on the right portion
of his jaw and no exit wound was visible.[21] During treatment, the lead
slug was recovered from the left side of the neck or from the "trapicious
muscle."[22] He added that were it not for the timely medical intervention
Jonathan Aromin would have died.[23]
In his defense, the accused claimed that on the night of 2 September
1993 he was sleeping at home with his wife and son when he was
awakened by the sound of someone banging on his door.[24] After a brief
silence he heard him say: "Pare buksan mo ito." Sensing danger, the
accused took his gun from under his pillow and ordered the person to
identify himself. But the stranger just kept on banging the door and
insisted that it be opened.[25] When he finally opened the door, he saw
his brother Julian Ancheta and his neighbor Jonathan Aromin. Upon
seeing them, he inquired as to why his brother addressed him as
"pare" but instead of answering, Julian Ancheta angrily asked him why
he was holding a gun.[26] To appease his brother, the accused lowered
his pistol and explained that the gun was only for protection as he had
no idea who was banging his door in the middle of the night. He then
invited them into the house, but when he turned around his brother
suddenly grabbed his hand from behind to disarm
him.[27]As they grappled, the gun accidentally fired twice and the next
thing he saw was his brother sprawled on the ground and Jonathan
Aromin was nowhere to be found. He never knew what actually
happened to Jonathan Aromin as his back was turned against him when
the gun went off.[28]
Confused by the startling events, the accused just took his family to
the house of his wifes cousin. His wife then convinced him to spend the
night with them and postpone his surrender until the next day.[29] At
around 6:00 o'clock p.m.[30] of 3 September 1993 he surrendered at the
PNP Station in Caloocan City. After being taken into custody, PO3
Almojuela brought him to the Jose Reyes Memorial Hospital where
Jonathan Aromin identified him as the perpetrator.[31]
On 26 March 1999 the trial court, giving credence to the
prosecution witnesses, found the accused guilty of both
charges.[32] In Crim. Case No. C- 44939, the accused was found guilty
of Murder and sentenced to reclusion perpetua. He was also ordered to
pay the heirs of the victim P50,000.00 as death indemnity, P54,200.00
as actual and compensatory damages and the costs. In Crim. Case No.
C-44940the accused was found guilty of Frustrated Murder and was
sentenced to ten (10) years of prision mayor as minimum to fourteen
(14) years and eight (8) months of reclusion temporal as maximum. He
was also ordered to pay Jonathan Aromin P30,000.00 as moral damages
and the costs.[33]
Accused-appellant, in his brief, raises two (2) points: First, his guilt
was not proved beyond reasonable doubt as the circumstantial evidence
presented by the prosecution failed to establish that he intended to kill
Julian Ancheta and Jonathan Aromin. Second, the court a quo gravely case, appellate courts will not disturb the credence, or lack of it,
erred in convicting him of murder and frustrated murder since there was accorded by the trial court to the testimonies of witnesses.[37] We find
no proof that the killing was attended by evident premeditation or no reason to deviate from this well-entrenched principle.
treachery.[34]
But although we affirm the factual findings of the trial court on the
The defense of accused-appellant is that the death of Julian Ancheta presence of "intent to kill," we believe that the killing of Julian Ancheta
and the injury of Jonathan Aromin were caused by the accidental and the shooting of Jonathan Aromin were not qualified by treachery.
gunshots which occurred when he and the deceased grappled for the
While it was established that accused-appellant intentionally shot
gun. Thus, absent any intent to kill the victims, he could not be
his brother Julian, the witnesses never saw how the killing
convicted of homicide or murder.
started. Treachery cannot be considered where the witnesses did not see
However, the evidence presented proves otherwise. the commencement of the assault and the importance of such
testimonies cannot be overemphasized considering that treachery
The autopsy of Julian Ancheta reveals that he sustained three (3)
cannot be presumed nor established from mere suppositions.[38] And
bullet wounds: one (1) in the rear of the left forearm, another on the left
where no particulars are shown as to the manner by which the
rear portion of his neck and the most fatal one, on the front portion of
aggression was commenced or how the act which resulted in the death
his left temple.
of the victim began and developed, treachery can in no way be
On the other hand, Jonathan Aromin sustained a gunshot wound on established.[39]Hence, without the existence of treachery accused-
his right cheek which would have caused his death had it not been for appellant can only be convicted of homicide in Crim. Case No. C-
the timely medical attention. Based on the number of bullet wounds and 44939.
the location of the injuries sustained by the victims it is quite impossible
Neither was treachery established in the shooting of Jonathan
to believe that such wounds were caused by two (2) accidental gunshots
Aromin. Two (2) conditions must concur for treachery to exist,
which ensued while the accused and the deceased wrestled for
namely: (a) the employment of means of execution that gave the person
the gun. On the contrary, the location of the injuries proves that
attacked no opportunity to defend himself or to retaliate; and, (b) the
accused-appellant intentionally shot his own brother to death and
means or method of execution was deliberately or consciously
thereafter shot the eyewitness at point blank to permanently silence him.
adopted.[40] Both these circumstances must be proved as indubitably as
Further, Jonathan Aromin categorically and positively identified the crime itself.[41]
accused-appellant as the person who pursued and shot him at close
In the case at bar, however, there is no sufficient proof to establish
range. This Court has no reason to doubt his testimony for even accused-
with certainty that accused-appellant deliberately and consciously
appellant admitted that he and the witness were in good terms prior to
adopted the means of executing the crime against Jonathan
the incident.[35] Neither does this Court have any ground to question the
Aromin.Furthermore, the victim was already aware of the danger as he
veracity of Leonila Lopezs testimony that she saw accused-appellant
saw accused-appellant carrying a gun and heard two (2)
shoot Jonathan Aromin as there was no proved ill motive on her
gunshots prompting him to run and hide behind a wall.[42] Thus, there
part. Thus, where there is no evidence to show any dubious reason or
could be no treachery since prior to the attack the victim was forewarned
improper motive why prosecution witnesses should testify falsely
of the danger to his life and even managed to flee, albeit
against the accused or falsely implicate him in a heinous crime, such
unsuccessfully.[43] Consequently, accused-appellant can only be
testimonies are worthy of full faith and credit.[36] Besides, it has been an
convicted of frustrated homicide in Crim. Case No.C-44940.
established rule that unless the trial judge overlooked certain facts of
substance and value, which if considered might affect the result of the
 It must be noted that the testimonies of the witnesses show that In G.R. No. 138306 (Crim. Case No C-44939), accused-appellant
accused-appellant surrendered himself on 3 September 1993 at the PNP SPO1 Eduardo Ancheta y Rodigol is found guilty of HOMICIDE and is
Station in Caloocan City. For voluntary surrender to be appreciated as a sentenced to an indeterminate prison term of six (6) years eight (8)
mitigating circumstance the following requisites must concur: (a) the months and ten (10) days of prision mayor minimum as minimum to
offender had not been actually arrested; (b) the offender surrendered twelve (12) years six (6) months and twenty (20) days of reclusion
himself to a person in authority; and, (c) the surrender was temporal minimum as maximum. He is also ordered to pay the heirs of
voluntary.[44] All these requisites were present in this case as PO3 Julian Ancheta P50,000.00 as death indemnity, P54,200.00 as actual
Feliciano Almojuela confirmed that on 3 September 1993, the day after and compensatory damages, plus the costs.
the incident, accused-appellant voluntarily gave himself up and his
In G.R. No. 138307 (Crim. Case No. C-44940), accused-appellant
service firearm at the PNP Station in Caloocan City.[45] Thus, the
SPO1 Eduardo Ancheta y Rodigol is found guilty of FRUSTRATED
mitigating circumstance of voluntary surrender should be appreciated in
HOMICIDE and is sentenced to an indeterminate prison term of two (2)
his favor.
years two (2) months and twenty (20) days of prision
Article 249 of The Revised Penal Code provides that the penalty for correccional minimum as minimum to six (6) years four (4) months and
homicide is reclusion temporal. There being one mitigating ten (10) days of prision mayor minimum as maximum. He is also
circumstance, namely, voluntary surrender, the imposable penalty ordered to pay Jonathan Aromin P30,000.00 as moral damages plus the
is reclusion temporal in its minimum period the range of which is costs.
twelve (12) years and one (1) day to fourteen (14) years and eight (8)
SO ORDERED.
months. Applying the Indeterminate Sentence Law, the maximum shall
be taken from the minimum of the imposable penalty while the Mendoza, Quisumbing, and De Leon, Jr., JJ., concur.
minimum shall be taken from the penalty next lower in degree, which Buena, J., on official business.
is prision mayor the range of which is six (6) years and one (1) day to
twelve (12) years.
Article 50 of The Revised Penal Code provides that the penalty next
lower in degree than that prescribed by law for the consummated felony
shall be imposed upon the principal in a frustrated felony.Thus, in Crim.
Case No. C-44940, there also being one (1) mitigating circumstance, the
maximum term of the indeterminate sentence shall be taken
from prision mayor in its minimum period, the range of which is from
six (6) years and one (1) day to eight (8) years, while the minimum term
shall be taken from the penalty next lower in degree which is prision
correccional, in any of its periods, the range of which is six (6) months
and one (1) day to six (6) years.
WHEREFORE, the Decision of the trial court appealed from
convicting accused-appellant SPO1 Eduardo Ancheta y Rodigol
of Murder in Crim. Case No. C-44939 and Frustrated Murder in Crim.
Case No. C-44940, is MODIFIED.
 EN BANC
[G.R. No. 125633. December 9, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
ROLANDO ALFANTA y ALO, accused-appellant.
DECISION
VITUG, J.:
Before this Court, by way of automatic review, is the decision,
dated 29 July 1996, of the Regional Trial Court of Makati City, Branch
82, convicting[1] accused-appellant Rolando Alfanta y Alo of rape with
two aggravating circumstances and sentencing him to suffer the extreme
penalty of death.
Rolando Alfanta was charged with the crime of rape in an
information that simply read:
That on or about the 26th day of August, 1995, in the City of
Makati, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, by means of force
and intimidation, did then and there willfully, unlawfully and
feloniously have carnal knowledge upon the person of one
NITA FERNANDEZ y JOSEFA against her will and
consent.[2]
When arraigned on 27 September 1995, accused-appellant entered a
plea of not guilty to the crime charged. Trial thereupon ensued.
The evidence of the parties has been recited in good detail by the
trial court in its decision under review, thus:
The first prosecution witness was Dr. Noel Minay, Medico
Legal Officer of the National Bureau of Investigation who
testified that on August 27, 1995 at around 5:45 in the
afternoon, he performed a physical examination and medico
genital examination on one Nita Fernandez for alleged
rape. Upon physical examination he found mark swelling on
the left lower jaw or on the mandibular area left portion; and,
upon examination of the hymen, he found that the labia majora
and minora gaping, similar to the appearance of a woman who
had just given birth; or a normal appearance as a result of
several sexual intercourses that had been performed. He
submitted a report on his findings (Exhibit A).
The next witness was Nita Fernandez, the offended party
alleged in the information who testified that on August 26,
1995 at around 12:00 o'clock midnight, while asleep in the
residence of a friend at AFOVAI Fort Bonifacio, Makati city, a
man whom she had not seen before suddenly entered the house
where she was sleeping, pulled her, boxed her jaw and put his
hand on her mouth, and told her that if she will not obey him,
he will kill her. She resisted, but could not do
anything. Thereafter, she was forced to climb a fence. Because
of fear, as the man was holding a bolo, she followed. After
climbing the fence, the man instructed her to go to a vacant
house. She followed, as instructed. While at the vacant house,
she was told to undress, she did because of fear, as the man
was holding a bolo. Thereafter, the man embraced and kissed
her. Then she was told to lie down and told to separate her
legs. The man inserted his penis into her vagina. After
inserting the mans penis to her vagina, she was told to lie face
down. She complied, thereafter, the man inserted his penis into
her anus. After inserting the mans penis into her anus, she was
told to turn around face up. All these acts of the man hurt
her. After turning around face up, the man inserted his fingers
in and out into her private part. After the man had finished
inserting his fingers in and out of her private part, she was told
to go near him and lie beside him, and not to dress up as he
was going to take a rest and at the same time telling her not to
tell what happened to others saying that lahat ng nirape ko ay
pinatay ko dahil sa ayokong may magsumbong. All the time
the man was inserting his penis and fingers into her private
part and into her anus, she was shouting: tulungan po ninyo
ako,' but nobody responded. Noticing that the man was already
sleeping, she suddenly got the knife at waist of the man and
stab the man on his chest. The knife broke. She suddenly
grabbed the bolo and hack the man several times. Thereafter,
she put on her dress, got hold of the bolo and ran to the signal
office of soldiers. When she arrived at the signal office of
soldiers, she told the persons she met that she killed a
man. The bolo was taken from her by the soldiers. With,
soldiers, they went to the place where she was raped. They
found the man lying down still alive. The man was brought to
the hospital. The man turned out to be accused Rolando
Alfanta y Alo. Thereafter, she executed an affidavit (Exh. C),
narrating what happened to her to the police; and was brought
to the NBI Medico-Legal Officer for examination.
On cross examination she testified that, from Valle Verde,
Pasig City, where she worked as housemaid, she went to her
friends house named Patrick because she brought mongo and
because she and Patricks wife Inday, are friends, arriving in
the house of Patrick at 6:30 in the evening of August 26,
1995. She was not able to go back to her place of work at
Valle Verde, Pasig because it was already late at night and was
told to sleep at Patricks house. Earlier that evening, at 9:00,
she saw accused passed by in front of the house. Aside from
her two (2) other persons slept in the house of Patrick, Inday
and son. She slept in the sala, while Inday and her son in a
room. The door of the house was closed, but was not
locked. In entering the house were she slept, one has to reach
the sala first. When awakened, she shouted, but nobody heard
her because they were sleeping and at the same time the
accused placed his hand on her mouth. She was really afraid
because she was boxed on her chest and accused was holding a
bolo. While outside the house she was boxed. At the garage,
which was not lighted, she was told to undress. She followed,
because of fear. Accused also undressed himself. While
accused was on top of her, holding a bolo, she cried. Accused
is not her sweetheart. She even said, why will I hack him if he
is my sweetheart.
The last witness for prosecution was Lilia Hogar of the
Womens Desk Unit, Makati Police Station who testified that
she came into the possession of the bolo, Exh. D, because Nita
Fernandez was brought to Sub-Station A. The bolo, which was
brought by Nita Fernandez to the Military Signal Village, was
in turn given to the Central Police Desk wherein she is the
Investigator. After the bolo was handed to her by the soldiers
of the Signal Village, she conducted an investigation. Based on
her investigation, she learned from Nita Fernandez that when
Nita Fernandez woke up at 12:00 midnight on August 26,
1995, Nita Fernandez saw a man standing beside her. Nita was
punched on the left portion of the face and ordered her to go
outside, instructed to climb over a fence on the other side of
the house. After climbing the fence, Nita Fernandez was told
to undress, was boxed on her breast and was told to lie down in
a vacant house owned by Captain Pascua, where suspect raped
Nita Fernandez. On their way to the hospital on board the
Makati Police car, she asked accused why he rape Nita
Fernandez. Accused answered that Fernandez was not telling
the truth because they were sweethearts.
Defense presented the accused. Accused testified that on
August 26, 1995, while at AFOVAI Village, Municipality of
Makati, fixing the fence of the house of General Renato
Icarma together with many other laborers, somebody told him
that his wife was waiting for him in the house of Captain
Pascua. At 10:00 oclock that evening, he went to the house of
Captain Pascua; and upon reaching the house, he knocked, and
called Patrick Augusto Ablon, the caretaker of Captain
Pascua. Belinda Ablon, the cousin of Patrick Augusto Ablon,
opened the door. After opening the door, Nita Fernandez, his
live-in partner for almost a year came out, in an angry mood,
because she has been waiting for him for long, and asked him
why he was late. He explained that he did not expect her to
come, as his understanding with Nita Fernandez was, he will
call her by phone or write her before she comes. Then Nita
Fernandez told him that they talk outside as she was ashamed
with the neighbor, and they will disturb the child who was
sleeping. After half hour talking, he invited Nita to sleep. He
and Nita went to a vacant house, owned by a Colonel passing a
fence. When they arrived in the vacant house, it was closed, so
they slept in the terrace. He denied doing what Nita Fernandez
claimed he did. He claimed that, he was surprised why
Fernandez hacked him, for he knows of no reason why Nita
Fernandez will hack him. He believes that Nita Fernandez
concocted the story of rape because of fear that he will file a
case against Nita Fernandez for hacking him.
On cross-examination, accused testified that, he has been
staying in the house of General Romeo Icarma (the house
where he and 15 other workers were constructing a fence),
since 1990. His livelihood was, as a Mason, since 1993. In
February 1995, the daughter of Nita Fernandez named, Lucia
who is married to Lito introduced him to Nita. He and Nita
became sweethearts in February 1995. They have not live
together because Nita was working at Valle Verde. They only
meet during Nitas day off. He has been at Nitas place of work,
but he used to call then at her telephone numbers which are
6326062 and 6356060.They used to see each other at Gen.
Icarmas place where he lived. On August 26, 1995, when the
incident in questioned happened, Lucia and Lito were no
longer residing at Gen. Icarmas place because they were told
to leave in April 1993. On August 26, 1995, while in the
squatters area, just 100 meters away from the house of Gen.
Icarma, Nita came, looking for him. Because Nita does not
know the workers in Gen. Icarmas house, Nita left and went to
the house of Captain Pascua, just at the back of the house of
Gen. Icarma. While at the squatters area, Melchor Rudy Abella
told him that Nita was looking for him.He went to the house of
Captain Pascua. At Captain Pascuas place, he met
Nita. Present in the house of Captain Pascua were Augusto
Ablon, his wife Rubylin, Belinda, a cousin and a small child
who were all awake, except the child. Although Ablon was
very much willing to accommodate him in Ablons house, he
brought Nita to the house of the Air Force Colonel because if it
rains, there is a roof to protect them and ashamed to stay at
Ablons house. Even Nita does not like to sleep in Ablons
place, saying that instead of sleeping at Ablons place, she
prefers to go back at Valle Verde. He did not allow Nita to go
back at Valle Verde because it was already late at night and if
anything happens to her, her daughter who knows his
relationship with Nita will blame him. He did not bring Nita to
Gen. Icarmas house because it is crowded and the Colonels
house is just 20 meters from Captain Pascuas house. They
went to the Colonels house, climbing the fence. When they
climbed the wall, he was carrying banig, pillow and blanket,
and did not notice that Nita was carrying a knife. Nobody live
in the Colonels house and was closed. They slept in the terrace
of the house on a cement flooring. While he was sleeping Nita
hacked him with a kitchen knife. When hacked, he just
said aray. The bolo was not used in hacking him. After
stabbing him, Nita left and went to the Military Police leaving
the kitchen knife. When the Military Police arrived, he was no
longer at the Colonels house because he went to another house,
where he slept. After he was stabbed, he asked the assistance
of Ablon. Ablon was the one who called for the Military
Police. He did not leave the colonels house. He just stayed in
the premises. Despite his wounds, he was able to sleep and
woke up at 5:00 in the morning. When asked why Nita stabbed
him, he said that it was because he hurt Nita by holding Nita's
hand and pushing her on her chest when Nita insisted in
leaving for Valle Verde; and because he hurt Nita, he did not
file a complaint against Nita for hacking him.[3]
In the decretal portion of the decision, the court a quo has
pronounced judgment, thus:
WHEREFORE, this court finds accused Rolando Alfanta y
Alo guilty beyond reasonable doubt of the crime of rape,
penalized by Art. 335 of the Revised Penal Code, as amended,
with aggravating circumstances of nighttime and ignominy, he
is hereby sentenced to suffer the maximum penalty of death,
and indemnify complainant Nita Fernandez the sum
of P50,000.00, plus the costs of the suit.[4]
Now before the Court, accused-appellant seeks the reversal of the
conviction and the imposition of the death penalty decreed by the trial
court; he contends that -
I. THE TRIAL COURT [HAS] ERRED IN FINDING AND
CONVICTING THE ACCUSED-APPELLANT OF THE
CRIME OF RAPE.
II. THE TRIAL COURT [HAS] ERRED IN TAKING INTO
CONSIDERATION THE AGGRAVATING
CIRCUMSTANCES OF NIGHTTIME AND IGNOMINY.[5]
The case can be described as not really being too far from the
typical rape cases that have been previously reviewed by the Court. It is
a case, like the instances before it, of two people, each testifying on the
same incident but making a clearly discordant testimony. Since only the
participants could directly testify on the sexual congress, here conceded
to have taken place, extreme care is observed in evaluating the
respective declarations of the complainant and the accused. The
doctrinally accepted rule is to accord great respect over the assessment
of the trial court on the credibility of the witnesses and, in the usual
words of similar import employed by the Court, it would be best not to
disturb the findings of the court which has heard the evidence except
only when a material or substantial fact has truly been overlooked or
misappreciated which if properly taken into account can alter the
outcome of the case.[6] Regrettably for accused-appellant, no such
exceptive instances of possible oversight are perceived or evident in this
case.
Complainant gave a thorough narrative account, so found to be
credible by the trial court and by this Court as well, of what had
transpired during the late hour of the night in question.
Prosecutor Manola:
Q Mrs. Witness will you kindly tell the Honorable Court where you were
on August 26, 1995 at around 12:00 oclock midnight?
A At Fort Bonifacio.
Q What city or municipality?
A I do not know but it must be here sir.
Q Meaning Makati City?
A Yes sir.
Q Why were you there on that date and time Mrs. Witness?
A I was sleeping in my friends residence.
Court:
Q What is the address of that friends residence at Fort Bonifacio?
A At AFOVAI Fort Bonifacio Makati sir.
Q Why were you there at that time?
A Because I always go there and my sons residence is beside the house of
my friend sir.
Court: Proceed fiscal:
Pros. Manola:
Q Now, while you were there on that date and time at the house of your
friend in AFOVAI Fort Bonifacio Makati City do you recall of any
unusual incident that happened?
A There was sir.
Q Will you kindly tell what that incident was?
A During that time while I was sleeping in the residence of my friend
suddenly there was a man who entered the house where I was sleeping.
Q So when you saw that man entered the house what did he do if any?
A I stood up because he was pulling me and then he put his hand in my
mouth sir.
Q What else happened after that?
A When I was resisting he boxed me and at that time he was holding a bolo
and he said if I will not obey him he will be going to kill me sir.
Q After that what transpired next Mr. Witness?
A He forced me to climb the fence and then I saw he was holding a bolo.
Q Did you climb over the fence?
A I climb sir because he forced me to climb the fence.
Q Were you able to go over the fence?
A When I was over the fence already he told me to go to a vacant house.
Q How about the accused where was he when he ordered you to climb over
the fence?
A He was at my back and he told me to go first and then he followed.
Q So after you went or cross over the fence what happened next Madam
witness?
A He told me to go to the vacant house and there he himself told me to
undress and I took off my clothes he embraced me and kissed me sir.
Q Now when this man told you to go to the vacant house did you obey him?
A I was told to go to the vacant house there he told me to undress.
Q Did you obey him?
A He told me to undress and he was holding a bolo.
Court:
Q The question of the prosecutor to you was did you obey the instruction
of the accused for you to undress?
A Yes sir.
Prosecutor Manola:
Q Tell the Honorable Court why you do followed the instruction of that
Man to go to that vacant house and to undress why did you follow this
instruction?
A I was afraid that he might kill me sir.
Q Why do you say that he might kill you?
A He like to rape me sir.
Court:
Q You did not answer the question of the prosecutor why were you afraid?
A Because he was holding a bolo and he was at the same time boxing me
sir.
Prosecutor Manola:
Q So what happened after according to you you were instructed to undress?
A He embraced me and kissed me and told me to lie down.
Q And did you lie down as instructed by this Man?
A He forced me to lie down and then he forced me to separate my legs sir.
Q And what happened when you were forced to open your legs?
A He told me not to shout because if I will shout he will kill me and the he
inserted his penis to my vagina sir.
Q After this Man inserted his penis in your vagina or private part what
happened next Mrs. Witness?
A He told me to lie front my face down and he inserted his penis to my
anus sir.
Q After that what happened next Mrs. Witness?
A Then he told me again to lie down and at the same time he inserted his
fingers to my private parts going it and out sir.
Q After that what happened next Mrs. Witness?
A He lie down because he was already tired of molesting.
Q How about you what were you doing at that time when the accused this
person according to you lie down after he put his fingers inside your
private part?
A He asked me to go near him and lie down beside him.
Q Did you follow his instruction for you to lie near him?
A Yes sir because he was holding a bolo sir.
Q So what happened after you lie down beside this person?
A He told me to put on my dress and at the same time he also told me that
he does not want me to tell it to anybody because he have raped many.
Q Now if this person whom according to you raped you inside the court
room would you be able to recognize him?
A Yes sir I could recognize him.
Q Will you kindly look around the court room if you could recognize this
person if he is inside?
Note: Witness pointed to a man who was pointed as the man who raped
him and when asked his name answered as Rolando Alfanta.
Q Now after this person whom you just pointed to who answered by the
name of Rolando Alfanta uttered the words lahat nang ni rape ko ay
pinapatay ko dahil sa ayokong may magsumbong what happened next
Mrs. Witness?
A I pleaded to him and he said not to put on my dress because he is going
to take a rest.
Q After that what happened next if any Mrs. Witness?
A I saw him that he was sleeping already and then I suddenly got the knife
and stab him in the chest sir.
Q After you stabbed him on his chest what happened next Mrs. Witness?
A The knife broke and then I suddenly grabbed the bolo and hack and hack
him sir.
Q After you hacked this person who raped you what happened next Mrs.
Witness?
A I immediately put on my shirt and I got hold of the bolo and I run to the
signal where the soldiers were.
Q Did you reach this place signal where there are soldiers according to you?
A Yes sir.
Q And what did you do when then when you arrived there?
A I told him that I killed a person therein and give them the bolo.
Q What happened after that when you informed the solders at signal that
according to you you have killed a person what happened next?
A We went to the person who raped me sir.
Q And did you see him there?
A Yes sir.
Q Who were with you when you went back to the place where you were
allegedly raped?
A The soldiers sir.
Q Did you find this person who raped you?
A Yes sir.
Q What was he doing?
A He was lying down sir.
Q What happened after that?
A When we arrived there he was still alive and he was brought to the A Yes sir.
hospital.
Q How did you ask for help?
Q Who brought him to the hospital?
A I asked for help but they were sleeping they did not hear me sir.
A The ambulance of the soldier.
Q The question to you was how did you ask for help?
Q Now do you remember having given a statement to the Makati Police in
connection with what you have just narrated or told or testified to this A I cried and I said tulungan po ninyo ako.
afternoon? Q Did anybody respond to your cries for help?
A I could remember. A None sir.
Q If that statement is shown to you would you be able to recognize it? Q Now how did you feel while the accused was inserting his private part to
A Yes sir. your private part?

Q Now showing you a statement attached to the records of the prosecutors A It hurt sir my vagina and my anus, my mouth that he boxed me sir.
office consisting of two pages kindly go over it and tell us if you Q Now why did you say that the accused was able to insert his penis into
recognize this statement? your vagina?
A Yes sir I could recognize this. A He forced that to insert it.
Q Is that your statement Q Forced it to where?
A Yes sir. A He forced it to enter my vagina sir.
xxx xxx xxx. Q Did you feel when the private part of the accused entered to your vagina?
Q Now this bolo which according to you surrendered to the soldier at the A Yes sir I feel it sir.
signal if you see this bolo again would you be able to recognize it
again? Q By the way do you know the accused prior to the date that you were
awakened?
A Yes sir.
A I do not know him.
Prosecutor Manola:
Q In short he is a complete stranger to you when he entered the room?
We would like to make reservation for this witness to identify this bolo
when this bolo is presented by the policeman who is in custody of this A I saw him around 7:00 oclock in the evening that he was passing thru the
bolo. front of the house of my friends where I was sleeping.

Court: Q At that time that you were awaken by the accused with whom were you
sleeping?
Q How about the knife which according to you was seen by you at the waist
line of the accused did you bring it also? A Only me sir.

A I did not bring it sir because it was broken sir it was only the bolo that I Prosecutor Manola:
brought. Q Now you said that while you and the accused were lying down first you
Q Now while you were being raped did you shout for help? stab him with the knife how many times have you stabbed him with
the knife?
A I was not able to count because I was afraid of him.
Q You said that after stabbing him with the knife which you broke you got
hold of the bolo you hacked him how many times have you hacked
him?
A I failed to count how many times. I hacked him because I was afraid of
him he might kill me.
Prosecutor Manola: That will be all for the witness.
Court: Cross-examination.
Atty. Manalo: With the permission of the Honorable Court.
Court: Proceed.
Atty. Manalo:
Q Now who were with you at the time when you were sleeping at the house
of your friend at AFOVAI Fort Bonifacio?
A One of their children so there were three and I was one.
Q Were you sleeping in one room?
A I was sleeping in the sala sir.
Q Now before you sleep in that house at the sala did you close the door of
that house?
A It was closed but it was not locked.
xxx xxx xxx.
Q Now when why were you interested in sleeping in the house of your
friend when you could already at the house of your employer?
A Because I was bringing mongo to my friend because I am indebted to
them sir.
Q Now why did you not return to your employer after giving or handing
that mongo to your friend?
A They told me to sleep there because it was already late at night.
Q By the way what time did you go there?
A Around 6:00 to 6:30 in the evening.
Q And what time did you reach your friend at AFOVAI?
A 6:30 sir.
Q And Valle Verde is just in Pasig isnt?
A Yes sir.
Q It is near where you are employed and it will take you one ride only to
reach that place isnt?
A Three rides sir.
Q Now which is first to be reached from the front door of the house where
you were sleeping at the time the place where you were sleeping or
the place of the room where the owner of the house were sleeping?
A First it is the sala where he passed.
Q Now you said that the door was not locked was there any other
improvised locked placed in that door like a wood?
A They did not lock the door because they are in confident.
Q Now what is the name of the owner of the house where you slept at that
time?
A Patrick sir.
Q And how are you related to Patrick?
A His wife is my friend sir.
Q What is the name of his wife?
A Inday sir.
Q Now when you were awaken while you were sleeping in the sala of the
house of your friend Inday did you not shout when you saw a person
pulling you holding a bolo?
A I shouted but they did not hear me because they were sleeping and at the
same time he placed his hands on my mouth sir.
Q Now you said that you were boxed on the chest by the accused how many
times were you boxed by the accused on the chest?
A I do not know how many times I was boxed sir because I was really afraid
of him.
Q But you were sure that you were boxed at the chest?
A Yes sir.
Note: Witness demonstrating with her hands first pointing on her chest and Q How big?
also on her mouth.
Prosecutor Manola: Immaterial your honor.
Q Was it strong?
Atty. Manalo: To test the credibility, your honor.
A Yes sir it was strong because the following day it has marked.
Court: Answer
Note: Witness holding on his left chin.
A It was dark and I was able to see and I do not know because I was afraid.
Q How about on the chest?
Atty. Manalo:
Note: Witness demonstrating it was pointed on her chest.
Q And then you lie down?
A It was not too strong sir.
A He told me to lie down and he placed himself on top of me.
Q Did you fall down on your knee when you were hit by the blow?
Q Was he still holding the bolo?
A Yes sir.
A Yes sir he was holding the bolo on his one hand.
Q Where?
Q How did you see him?
A I fell on the ground down.
A When he was holding the bolo with his one hand while I he was on top
Q Where were you boxed by the accused? of me I cried and he was holding the bolo.
A Outside sir of the house. Note: Witness demonstrating the accused holding the bolo upward.
Q Now you said that you were ordered to undress and to lie down on the A When I cried he was on top of me sir.
ground is that correct?
Q What was he doing when he was on top of you?
A Yes sir.
A He was molesting me sir.
Q And you followed him?
xxx xxx xxx
A He told me to undress in the garage and he also undressed himself and
because I was afraid because he was holding a bolo sir. Q Now what time did you see him passed by the house of your friend
according to you?
Q When he undressed himself was he still holding a bolo?
A 9:00 oclock in the evening sir.
A Yes sir one hand was holding the bolo the other one hand he was
undressing himself. Q Why were you sure that he was the one who passed by the house of your
friend?
Q Was it lighted the place?
A I saw him that he was passing.
A None sir.
Q Where were you at the time?
Q How far were you when the accused was undressing himself?
A I was seating by the window sir.[7]
A Near sir.
The testimony of the complainant about the incident is
Q Did you see his private part when he undressed himself? straightforward categorical, and relatively free from any serious
A Yes sir. flaw. No compelling reason is advanced to sufficiently persuade the
Court to conclude that the trial court has erred in giving due weight and
credence to the testimony of the complainant. Neither is evidence
adduced to show that the complainant has had any ulterior motive to
prevaricate and enmesh accused-appellant in a fabricated charge. The
Court repeats the familiar doctrine that when a woman claims that she
has been raped, she says in effect all that is necessary to show such a
fact so long as her testimony can meet the test of credibility,[8] for it is
said that no woman in her right mind will cry rape, allow examination
of her private parts, or subject herself and her family to the humiliation
concomitant to the prosecution of the case, unless the story were true.[9]
Testifying in his defense, accused-appellant claimed that he and the
complainant had been lived-in partner for almost a year, and that while
they did sleep together on 26 August 1995 at the porch of the house of
a certain Air Force officer, accused-appellant denied any carnal
knowledge of the victim that evening. In his appeal brief, accused-
appellant sought to negate any possible or likely use of violence or
intimidation, considering that: (a) in the house where the victim was
sleeping on the night of 26 August 1995, there were at least three
persons (the caretaker of the house Patrick Augusto Ablon, his wife
Rubylin and the couples son) who could have responded to any shout
for help from the victim; (b) the door of the house was purposely left
unlocked in order to enable accused-appellant to come into the house,
and (c) when the victim was made to climb a fence followed by the
accused, she could have escaped but did not.
The sweetheart theory of accused-appellant would appear to be
another worn out strategy, often resorted to as a last ditch effort, to
exculpate oneself from criminal liability. No documentary evidence of
any sort, like a letter or a photograph or any piece of memento, was
presented to confirm a romantic liaison between accused-appellant and
the complainant. The latter testified:
Q Is it not a fact that you and the accused were sweethearts?
A No sir.
Q And that you went to that place AFOVAI just to meet him in that place?
A No sir he is not my sweetheart. Why will I hack him if he is my
sweetheart?
Q You hacked him with the bolo because of you are too much jealousy is
concerned because your sweetheart was then womanizing?
Prosecutor Manola: Misleading your honor.
Atty. Manalo: I am on cross-examination your Honor.
Court: Answer.
A Why will I get jealous I have nothing to do with him. I do not know him
sir.
Atty. Manalo:
Q Really?
A I do not know him. I really do not know him sir.[10]
It would be rather strange an occurrence for a love-partner, if true,
to stab her beloved for petty reasons. The trial court was not out of line
when it made this evaluation; viz:
This Court cannot accept the claim of accused that he and
complainant Nita Fernandez were sweethearts, for such a
claim defies rationality, let alone common sense, because if
they were sweethearts, she will not hack him. Not only that,
the manner on which she stabbed and hacked him, first with a
knife, then with a bolo, shows a complete anger to vindicate
the outrage on her. If they were sweethearts, she would not
have acted in the manner she did in stabbing and hacking
him. At least, if they have some relationship, she would not
show anger the way she did.[11]
Neither would the presence of at least three persons on the night of
26 August 1995 in the house where victim was sleeping necessarily
disprove the sexual assault. It was already close to midnight when the
incident occurred, and the other occupants of the house were by then
apparently all sound asleep. The evidence is to the effect that accused-
appellant immediately after getting into the house hit her on the jaw, put
his hand on her mouth and threatened to kill her if she dared refuse to
yield to his demands. Understandably, the victim was shocked, gripped
by fear and then cowed into submission. Intimidation should be viewed
in the light of the perception and judgment of the victim at the time of
the commission of the offense and not by any kind of hard and fast
rule. It would be unreasonable to expect the victim to act with
equanimity of disposition and to have the courage and intelligence to
disregard the threat made by accused-appellant.[12]
The claim that the unlocked door of the house was a sign that the
complainant wanted accused-appellant to have a chance to see her
during the late evening indeed should deserve scant consideration. The
so-called love angle was properly ruled out by the trial court for lack of
concrete evidence to establish any such relationship.
Anent the failure of the complainant to escape when accused-
appellant ordered her to climb a fence, it should be enough to state she
did not appear to have had any real opportunity to flee from the clutches
of the intruder who was, in fact, just behind her. After scaling the fence
and while inside the abandoned and enclosed house, she could not have
done any much better since she was all the time within striking distance
of the bolo-wielding malefactor.
And now on the propriety of an appreciation of the aggravating
circumstances of nighttime and ignominy.
Nighttime is said to be that period of darkness beginning at the end
of dusk and ending at dawn.[13] The law defines nights as being from
sunset to sunrise.[14] By and of itself, nighttime would not be an
aggravating circumstance unless it is specially sought by the offender,
or it is specially taken advantage of by him, or it facilitates the
commission of the crime by insuring the offenders immunity from
capture.[15] As an ordinary aggravating circumstance, nighttime can be
so considered provided it is duly proved although not alleged in the
information.[16] The Court entertains no doubt that appellant has
specially taken advantage of the cover of darkness to facilitate the
commission of the crime without being recognized. Accused-appellant
has abducted his victim, brought her to an abandoned and unlit house
and then unleashed his carnal desire on her, assured of the stillness of a
sleeping world.[17] The Court has long held that this aggravating
circumstance can be considered when an accused takes advantage of the
silence and darkness of the night to ensure impunity from his illegal
act.[18]
With respect to ignominy, the victim testified that after appellant
had inserted his penis into her vagina, appellant ordered her to lie face
down and while in that position had his penis into her anus.Thereafter,
he ordered her to lie down again and this time he inserted his finger
inside her. The Solicitor General correctly invoked the case of
People vs. Saylan,[19] where this Court said:
The trial court held that there was ignominy because the
appellant used not only the missionary position, i.e. male
superior, female inferior, but also the same position as dogs do
i.e., entry from behind. The appellant claims there was no
ignominy because The studies of many experts in the matter
have shown that this position is not novel and has repeatedly
and often been resorted to by couples in the act of copulation.
(Brief, p. 24.) This may well be if the sexual act is performed
by consenting partners but not otherwise.[20]
Article 14, paragraph 17, of the Revised Penal Code considers to
be an aggravating circumstance any means employed or circumstance
brought about which add ignominy to the natural effects of the act.The
circumstance, it is said,[21] "pertains to the moral order [and] adds
disagree and obloquy to the material injury caused by the crime.
The crime of rape is committed by having carnal knowledge of a
woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise
unconscious; and
3. When the woman is under twelve years of age or is
demented.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use of a
deadly weapon or by two or more persons, the penalty shall
be reclusion perpetua to death.[22]
In the case at bar, it remained uncontroverted that accused-
appellant was armed with a bolo to realize his criminal
objective. Nonetheless, the use of a deadly weapon could not be
considered as a qualifying circumstance in the crime of rape[23] for not
having been correspondingly alleged in the information as to make the
offense fall under the jurisprudentially referred qualified rape
punishable by reclusion perpetua to death. In People vs. Garcia,[24] the
Court declared:
One further observation. Article 335 originally provided only
for simple rape punishable by reclusion perpetua, but
Republic Act No. 4111 introduced amendments thereto by
providing for qualified forms of rape carrying the death
penalty, that is, when committed with the use of a deadly
weapon or by two or more persons, when by reason or on
the occasion of the rape the victim becomes insane, or, under
the same circumstances, a homicide is committed. The
homicide in the last two instances in effect created a special
complex crime of rape with homicide. The first two
attendant circumstances are considered as equivalent to
qualifying circumstances since they increase the penalties
by degrees, and not merely as aggravating circumstances
which affect only the period of the penalty but do not
increase it to a higher degree. The original provisions of
Article 335 and the amendments of Republic Act No. 4111 are
still maintained.
xxx xxx xxx.
Now, it has long been the rule that qualifying
circumstances must be properly pleaded in the
indictment. If the same are not pleaded but proved, they
shall be considered only as aggravating circumstances,
(People vs. Collado, 60 Phil. 610 [1934]; People vs. Jovellano,
et al., L-32421, March 27, 1974, 56 SCRA 156; People vs.
Fuertes, G.R. No. 104067, January 17, 1994, 229 SCRA 289;
People vs. Rodico, et al., G.R. No. 107101, October 16, 1995,
249 SCRA 309.) since the latter admit of proof even if not
pleaded. (U.S. vs. Campo, 23 Phil. 368 [1912]; People vs.
Domondon, 60 Phil. 729 [1934]; People vs. De Guzman, G.R.
No. 73464, August 1988, 164 SCRA 215.) Indeed, it would be
a denial of the right of the accused to be informed of the
charges against him and, consequently, a denial of due process,
if he is charged with simple rape and be convicted of its
qualified form punishable with death, although the attendant
circumstance qualifying the offense and resulting in capital
punishment was not alleged in the indictment on which he was
arraigned.[25]
Simple rape is punishable by a single indivisible penalty
of reclusion perpetua. Thus, even if there were aggravating
circumstances of nighttime and ignominy in attendance the appropriate
penalty would still be reclusion perpetua under the law. Article 63 of
the Revised Penal Code provides that in all cases in which the law
prescribes a single indivisible penalty, it shall be applied by the courts
regardless of any mitigating or aggravating circumstances that may have
attended the commission of the deed.
WHEREFORE, the decision of the trial court finding accused-
appellant Rolando Alfanta guilty beyond reasonable doubt of the crime
of rape is AFFIRMED WITH MODIFICATION by hereby lowering the
penalty therein imposed from death to reclusion perpetua. An award
of P50,000.00 for moral damages is likewise ordered to be paid by
accused-appellant Rolando Alfanta to the victim Nita Hernandez in
addition to the sum of P50,000.00 by way of indemnity ex
delictu granted by the trial court.
SO ORDERED.
 Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza,
Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes,
Ynares-Santiago, and De Leon, Jr., JJ., concur.
 EN BANC
[G.R. No. 134802. October 26, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. RENATO Z. DIZON, accused-appellant.
DECISION
PER CURIAM:
Before us on automatic review is the Decision[1] of the Regional
Trial Court of Quezon City, Branch 219, in Crim. Case No. Q-97-71910,
finding Renato Dizon y Zuela guilty of Robbery with Rape, attended by
two aggravating circumstances, imposing upon him the penalty of Death
and ordering him to pay complainant Arlie Rosalin P9,500.00 for actual
damages, P200,000.00 as moral damages and to pay the costs.
Culled principally from the testimony of private complainant, the
facts of the case are as follows:
On July 7, 1997, around 9:30 p.m., private complainant Arlie
Rosalin, then a 21-year old engineering student from Dinalupihan,
Bataan, alighted from a bus as it stopped by a small bridge along EDSA
just before Roosevelt Avenue, Quezon City.[2] Seconds later, she heard
someone call out Miss! and when she turned her head around, she found
appellant behind her.[3] Appellant suddenly seized her, pointing a fan
knife to the side of her neck, and announced a holdup. He then told her
to face the railing of the bridge and asked for her wallet and jewelry.
Terrified, private complainant complied. Still not content, though,
appellant got her backpack, warning her that should he find another
wallet inside, he would kill her and throw her over the bridge as he had
done to his other victims.[4]
After appellant stripped her of her valuables, appellant instructed
private complainant to walk with him along EDSA and pretend that they
were a couple.[5] They crossed Roosevelt Avenue, passed the Munoz
market, then headed for Project 7. Private complainant could not ask for
anyones help because, all the while, appellant had his arm around her
and a knife pressed to her side.[6] Appellant further frightened her by
telling her that he had already killed many people.[7] Scared as she was,
however, private complainant would furtively look at appellants face
whenever they passed a lighted place, vowing to herself that should she
ever be able to escape, she would remember him and have him
arrested.[8]
After walking for some time, they finally reached a dark and empty
basketball court.[9] There, appellant ordered private complainant to
remove her pants and underwear. Private complainant could not do
anything but follow appellants orders since he was holding her at
knifepoint. Besides, even if she screamed, nobody would hear her.[10]
Appellant kissed private complainant on the lips, neck, and breasts,
which he also mashed.[11] He likewise bit her nipple at least three times,
as well as the right side of her back and vagina.[12] Unable to control his
lustful urges any longer, he forced her to bend forward over the hood of
a taxi and, in this position, forcefully penetrated her vagina with his
organ.[13]
After satisfying himself in this fashion, appellant ordered private
complainant to hold and massage his penis which, he boastfully
informed the latter, carried bolitas.[14] He then forced her to put his foul-
smelling penis into her mouth, which sickened her to the pit of her
stomach.[15]
Still not done with her, appellant forced private complainant to lie
on the ground.[16] Private complainant could not fight off any of
appellants demands, because whenever she tried to resist, and whenever
she failed to answer any of his questions, he would bang her head on the
hood of the taxi, slam her head on the wall, or slap her hard in the face.[17]
After appellant pushed private complainant to the ground, he went
down on her and proceeded to ravish her all over again.[18]
Though admittedly spent by now, appellant still refused to let go of
private complainant. Instead, he made her sit astride over him, and to
make sure she would not be able to escape, held her tightly by the hair
with both hands.[19] When private complainant balked at inserting his
organ inside of hers, appellant removed one hand from her hair and
groped in the dark.[20] Sensing that he was reaching for his knife and
would finally kill her, private complainant struggled with all her might
and broke free from appellants hold. She scampered to her feet, grabbed
her pants, and ran as fast as she could away from appellant.[21]
Soon, private complainant found a store that was about to close.
She barged in, informing the people that she had been raped, and
pleaded for their help. However, the owner of the store did not want to
get involved. Instead, he reminded her to wear her pants, then referred
her to the barangay.[22]
When a barangay officer arrived, he accompanied her back to the
basketball court, where they were able to recover her shoes, underwear,
and appellants black cap.[23] Since appellant was no longer around,
private complainant just gave a description of him: he was dark, 53 to
54 in height, and with a body covered with tattoos from the waist
down.[24] Private complainant was then brought to the police station
where her statement was taken.[25]
About three days later, the barangay informed private complainant
that they already had a suspect who matched appellants description.
Accompanied by policemen, among others, she went to the vicinity of
the Munoz market, where appellant was reportedly working as a tricycle
dispatcher.[26] After some anxious moments of searching in the crowd,
private complainant finally caught sight of appellant and pointed him
out to her companions.[27] One of the police officers accosted appellant
and asked him if he knew private complainant.[28] Upon seeing her,
appellant pulled out the same fan knife he had earlier used on her.[29] He
was not quick enough, however, because the police officers were able
to disarm him. Appellant was then handcuffed and brought to the police
station.[30]
In an Information[31] dated July 14, 1997, Assistant City Prosecutor
Mercedes D. Penamora charged appellant as follows:
That on or about the 7 day of July, 1997 in Quezon City,
th
Philippines, the above-named accused, with intent to gain, by
means of force and violence against and/or intimidation upon
person did, then and there wilfully, unlawfully and feloniously
rob the person of one ARLIE ROSALIN Y NICDAO In the
following manner, to wit: on the date and place
aforementioned while said complainant was walking along the
sidewalk of EDSA, Munoz, this city after alighting from a
passenger bus, said accused suddenly appeared and embraced
complainant and at knife point announced a hold-up and then
and there rob, took and carted away the following items, to
wit:
One necklace w/pendant - P 300.00
Two (2) gold rings 5,000.00
One bag pack containing
Assorted clothes 2,000.00
One(1) paper bag (bench)
Containing stuff toys 200.00
Perfume 1,000.00
Cash 1,000.00
all in the total amount of p9,500.00, Philippine Currency, all
belonging to said ARLIE ROSALIN y NICDAO, to her
damage and prejudice and on the occasion of the robbery,
accused with lewd designs and with force and intimidation and
with use of a knife undressed said complainant and put himself
on top of her and have carnal knowledge with said ARLIE
ROSALIN y NICDAO against her will and without her
consent, to the damage and prejudice of the said ARLIE
ROSALIN Y NICDAO.
Contrary to law.
Appellant entered a plea of not guilty when arraigned on August 7,
1997, with the assistance of Atty. Donato A. Mallabo.[32] Trial proceeded
in due course. The prosecution presented as witnesses the victim herself,
Arlie Rosalin; SPOI Cristopher Hael, a police officer assigned at the
Baler Police Station who testified on the circumstances leading to the
arrest of the accused; PO1 Emelito de La Cruz, the police investigator;
and Dr. Emmanuel Reyes, the PNP medico-legal officer who conducted
the examination on Arlie Rosalin.
The appellant put up the defense of denial and alibi. Appellants
testimony was not corroborated by any other witness. His testimony
consisted mainly of denials of his involvement in the crime being
imputed against him. He averred that as a tricycle dispatcher, he used to
work from 7:00 oclock to 11:00 oclock in the morning and from 2:00
oclock to 5:00 oclock in the afternoon; that on the evening of July 7,
1997, he was just at home resting; that he was at work when he was
arrested and when he was brought to the police station, he was beaten
up; that he told the police that he had nothing to do with what happened
to the complainant and that he saw her for the first time only when he
was arrested; that he did not know of any reason why she singled him
out and filed a case against him; and that when he was brought to the
fiscal, he again denied the charges against him.
On July 13, 1998, the trial court promulgated its decision, the
dispositive portion of which reads:
WHEREFORE, finding that the prosecution was able to prove
the guilt of the accused beyond reasonable doubt for the crime
of Robbery with rape under paragraph one, Article 294 of the
Revised Penal Code, as amended by R.A. 7659, attended by
two aggravating circumstances, the Court hereby sentences
him (1) to suffer the penalty of Death; (2) to indemnify
complainant Arlie Rosalin in the amount of P9,500.00 as
actual damages; (3) to pay her P200,000.00 as moral damages;
and (4) to pay the costs.
Let the records of the case be transmitted to the Supreme Court
for automatic review.
SO ORDERED.
Appellant impugns the decision of the trial court on the following
grounds:
1. The lower court erred in convicting the accused when in truth and
in fact he was not positively identified by the victim.
2. The lower court erred in appreciating the aggravating
circumstances of cruelty and uninhabited place against the
accused.
3. The lower court erred in finding the accused guilty beyond
reasonable doubt of the crime of robbery with rape in violation
of Art. 294, Par. 1 (should be par. 2) of the Revised Penal Code.
We affirm the trial courts decision.
Being interrelated, appellants first and third assigned errors, which
boil down to a question of credibility of the private complainant, will be
discussed jointly.
In assailing the credibility of the private complainant, appellant
puts the following in issue:
First, appellant states that he has only two hands; hence, it was
impossible for him to remove his pants, restrain private complainant,
and hold a fan knife all at the same time.
Second, appellant points out an alleged inconsistency between
private complainants account of rape and her alleged refusal to escape
her rapist despite opportunity to do so.
Third, appellant argues that he was not positively identified by
private complainant because somebody had to tell her where he was
when she and the police went out to look for him at the market place in
Munoz.
We find appellants arguments to be untenable.
On the first point, it is not impossible for appellant to undress while
holding his victim and a fan knife at the same time. On direct
examination, the private complainant testified thus:
Q When he raped you did he remove his pants?
A Yes, maam he removed his pants.
Q When he removed his pants, did you run?
A No, Maam because he was holding me and the knife was pointed at me,
 Q When he was holding you and the gun (sic) was pointing (sic) at you how
did he remove his pants?
A Like this, maam . . .
COURT INTERPRETER
Witness holding the right wrist of the Interpreter using the left hand. The
witness demonstrating that the accused was using his right hand
holding the knife while unbuttoning his pants and every time she
would resist the accused would point the knife at her.[33]
Countless cases of rape have been committed in a similar fashion. We
quote the pertinent portions of two such cases:
xxx When she saw her father naked, she got scared and did not
move. Because of her refusal, her father poked a three-cantos
knife at her neck and he undressed her by pulling down her
skirt and her panty until they were removed from her body.
Her father then told her to sit up and when she did, he pulled
her t-shirt off her head. She cried and her father threatened to
kill her if her cries will be heard by others.[34]
xxx The accused awakened Mergena upon arriving from a
drinking session with his brothers, pointed a knife at her and
ordered her to stand up. When she refused to obey, he pulled
her up. He removed his short pants, then with a knife still
pointed at her, removed her skirt and made her lie down. He
removed her panty and his underwear, separated her thighs and
inserted his penis into her vagina while fondling her breast.
This entire time his left hand was holding the knife.[35]
On the second point, that private complainant could have escaped
her captor with facility is something easier said than done. Private
complainant was a terrified captive, held fast at the wrist by appellant
while the latter, using his other hand, unbuttoned his pants, stopping
only to brandish his fan knife at private complainant whenever she
showed the least sign of resistance. Overcome with fear, it is
understandable why she was not able to escape at that moment.
On the third point, contrary to appellants assertion, private
complainant was able to identify appellant as her assailant. While
somebody did point out to private complainant and her companions that
they had already passed the person they were looking for, this was
understandable because the place where they were searching was
crowded. The failure to see is not the same as failure to recognize which
is what is crucial in identification. Nobody prodded her to point to
appellant. Nobody told her that he was the malefactor. What is important
is that it was private complainant herself who had provided appellants
description and who, without assistance, eventually picked him out from
the crowd as the person who robbed and raped her.
Appellant finds it unbelievable that private complainant was able
to recognize him when she did not even touch his penis and test it for
the presence of bolitas during his identification at the Muoz market.
Private complainant did not have to do that. She was able to recognize
appellant because of his mole on the cheek and his body smeared with
tattoos, and more importantly, because she repeatedly gazed at
appellants face every time they passed a well-lit place on their way to
the basketball court.[36] She was also able to take a good hard look at
appellants face and body while she was forced to sit on top of him during
an unwanted sexual act at the basketball court.[37]
On cross-examination, private complainant testified thus:
Q So much so that because his hands were placed around your neck and the
knife was pressed in your body, practically, you were closing your
eyes, you just believed whatever he tells (sic) you?
A Everytime we would pass by a lighted area, even if I was scared, I would
look at him, sir.
Q But as much as possible, because you were scared and you were already
angry, you would not like to see the face of that stranger, right?
A No, sir, because I was really trying to memorize the face.[38]
xxx
Q Why were you interested in the face of that stranger?
A So that in case I would be able to escape, I would have him arrested.[39]
And on re-direct examination, private complainant testified:
 Q Are you very sure that it was the accused now in this case who actually
sexually abused you?
A Yes, maam I am sure.
Q Why are you so sure?
A Because I could see his face everytime I passed by a lighted area, maam
(witness crying).[40]
This only shows that private complainant had ample opportunity to
behold the appellant so that she was able to positively identify the
appellant as the one who robbed her and sexually abused her.
In the light of this positive and direct evidence of appellants
culpability, the trial court correctly discarded his defense of denial and
alibi. It is an elementary rule that alibi cannot prevail over the clear and
positive identification of the appellant as the very person who
committed the crime. Moreover, in order to justify an acquittal based on
this defense, the accused must establish by clear and convincing
evidence that (a) he was in another place at the time of the commission
of the offense; and, (b) it was physically impossible for him to be at the
scene of the crime at the time it was committed.[41] This, appellant
miserably failed to do. It was not physically impossible for appellant to
have been at the crime scene in Project 7, Quezon City, considering that
he claimed to have been a mere tricycle ride away in his house in San
Jose del Monte, Quezon City around the time of the commission of the
crime.
Considering all the foregoing, the trial court did not err in giving
full faith and credence to the testimony of private complainant. This,
especially since appellant has not even imputed any ill motive on the
part of private complainant to testify falsely against him. Where there is
no evidence to show any improper motive on the part of the prosecution
witness to testify falsely against the accused or to falsely implicate him
in the commission of a crime, the logical conclusion is that the testimony
is worthy of full faith and credence.[42]
The matter of assigning values to the declarations of witnesses is
best and most competently performed by the trial court who had the
unmatched opportunity to observe the demeanor of witnesses while
testifying, and to assess their credibility using various indicia available
but not reflected in the records. Hence, the court a quos appraisal on the
matter is entitled to the highest respect, and will not be disturbed on
appeal unless there is a clear showing that it overlooked, misunderstood
or misapplied some facts or circumstances of weight and substance that
would affect the result of the case. There is no compelling reason in the
present case to depart from this rule.[43]
On the second assigned error, the trial court correctly appreciated
the generic aggravating circumstances of cruelty and uninhabited place
against appellant.
Indeed, the term cruelty often conjures bloody and gory images
which are conspicuously absent in this case. However, as correctly
pointed out by the trial court, the appreciation of cruelty, as an
aggravating circumstance, is relative. It depends upon the crime
committed. As long as the wrong done in the commission of the offense
is deliberately augmented and that such wrong is not essential for the
accomplishment of the ultimate purpose of the offender, the same could
be considered as aggravating. The nature of the wrong or the number
thereof is immaterial.[44]
The trial courts pronouncement finds support in a long line of
jurisprudence. As held in People vs. Basao,[45] People vs.
Lacao,[46] People vs. llaoa,[47] People vs. Alban,[48] and other cases, the
test of cruelty is whether the accused deliberately and sadistically
augmented the wrong by causing another wrong not necessary for its
commission, or inhumanly increased the victims suffering, or outraged,
or scoffed at his person or corpse. Where the accused, for his pleasure
and satisfaction, inflicted on the victim unnecessary physical and moral
pain, with the intention of deliberately and inhumanly intensifying or
aggravating the sufferings of the victim, cruelty is present.
Tested against the foregoing yardstick, the element of cruelty
undoubtedly attended the commission of the crime in this case. As
recounted by private complainant, appellant not only raped her, but
subjected her to various dehumanizing indignities, such as making her
fondle and put his foul-smelling penis in her mouth, forcing her to
admire his bolitas, and demanding that she assume embarrassing and
indelicate positions. Furthermore, he viciously slammed her head
against the hood of the taxi, banged her head against the wall, and
slapped her hard in the face whenever she failed to answer any of his
questions. All these wrongs were no longer necessary insofar as
appellants purpose of raping private complainant was concerned. By
subjecting her to these unwarranted physical and moral abuses on top of
raping her, appellant deliberately and inhumanly augmented her pain
and sufferings, thus, committing cruelty.
Finally, appellant claims that the generic aggravating circumstance
of uninhabited place cannot be appreciated against him since the
basketball court where he supposedly brought his victim cannot be
considered an uninhabited place. Appellant cites private complainants
testimony that the basketball court was near a highway and surrounded
by houses.
We are not convinced.
Whether or not a place may be considered uninhabited, is
determined not by the distance of the nearest house to the scene of the
crime but whether or not in the place of commission, there was
reasonable possibility of the victim receiving some help.[49] In People vs.
Desalisa,[50] the crime was considered as having been committed in an
uninhabited place because the killing was done during nighttime, and
many fruit trees and shrubs obstructed the view of neighbors and
passersby. Similarly, in the case of People vs. Damaso, et al.,[51] the
court, notwithstanding the close proximity of the sugarcane field where
the victims were killed to the national highway and some houses, still
considered the aggravating circumstance of uninhabited place because
the killing was done during nighttime and the sugarcane in the field was
tall enough to obstruct the view of neighbors and passersby. The
situation is no different in the case at bar. Appellant precisely sought the
solitude of the basketball court to ensure that private complainant would
not be able to call for, and receive, any help. Aside from being cloaked
by the darkness of the night, the basketball court was a relatively
isolated place, shielded from the public view by the high walls of the
surrounding houses.[52] Private complainant could have screamed at the
top of her lungs and nobody still would have heard her. Without a doubt,
therefore, the trial court properly appreciated the aggravating
circumstance of uninhabited place against appellant.
Article 294 of the Revised Penal Code, as amended by Republic
Act 7659 provides:
Art. 294. Robbery with violence against or intimidation of
persons - Penalties. - Any person guilty of robbery with the use
of violence against or any person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason
or on occasion of the robbery, the crime of homicide shall have
been committed, or when the robbery shall have been
accompanied by rape or intentional mutilation or arson.
In the case at bar, two (2) aggravating circumstances attended the
commission of the robbery with rape, thus the trial court correctly
imposed on the appellant the penalty of death.
The trial court also ordered appellant to pay the victim P200,000.00
as moral damages. Ordinarily, the victims of rape are awarded a
minimum of P50,000.00 as moral damages. However, the factual
circumstances of the case at bar calls for a stiffer penalty. After robbing
and raping the victim, appellant subjected the victim to physical harm
like biting her nipples and vagina; banging her head on the hood of the
taxi and on the wall; and subjecting her to indignities like holding and
massaging his penis and worst of all, forcing her to put his foul-smelling
penis into her mouth. The trial court was correct in ordering the
appellant to pay his victim the amount P200,000.00 as moral damages
for all of these repulsive acts and P9,500.00 as actual damages for the
money and valuables taken from her. We also hold that the victim is
entitled to P50,000.00 for civil indemnity, as it is mandatory upon a
conviction of rape. Such indemnity is distinct from moral damages and
based on different jural foundations.[53]Furthermore, under Article 2230
of the New Civil Code, exemplary damages may be imposed when the
crime was committed with one or more aggravating
circumstances.[54] Hence, We find an award of exemplary damages in the
amount of P25,000.00 proper.
Four Justices of the Court maintain their position that R. A. No.
7659 is unconstitutional insofar as it prescribes the death penalty.
Nevertheless they submit to the ruling of the majority that the law is
constitutional and the death penalty can be lawfully imposed in the case
at bar.
 WHEREFORE, the Court AFFIRMS the decision of the Regional
Trial Court of Quezon City, Branch 219 in Crim. Case No. Q-71910
finding appellant Renato Dizon y Zuela guilty beyond reasonable doubt
of the crime of robbery with rape under paragraph one, Art. 294 of the
Revised Penal Code, as amended by RA 7659, attended by two (2)
aggravating circumstances, and sentencing him to suffer the penalty of
death, to pay victim Arlie Rosalin P200,000.00 as moral damages;
and P9,500.00 as actual damages, with the MODIFICATION that he
shall further pay the victim P50,000.00 as civil indemnity;
and P25,000.00 as exemplary damages.
In accordance with Section 25 of Republic Act No. 7659, amending
Article 83 of the Revised Penal Code, upon finality of this decision, let
certified copies thereof, as well as the records of this case, be forwarded
without delay to the Office of the President for possible exercise of
executive clemency.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza,
Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon,
Jr., and Sandoval-Gutierrez, JJ., concur.
Vitug, J., on official leave.