C.A. No.
384 February 21, 1946 (3) That the trial court erred in holding that the commission of the alleged
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.
AVELINA JAURIGUE, appellant.
Jose Ma. Recto for appellant.
Assistant Solicitor General Enriquez and Solicitor Palma for appellee..
DE JOYA, J.:
Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First
Instance of Tayabas, for the crime of murder, of which Nicolas Jaurigue
was acquitted, but defendant Avelina Jaurigue was found guilty of
homicide and sentenced to an indeterminate penalty ranging from seven
years, four months and one day of prision mayor to thirteen years, nine
months and eleven days of reclusion temporal, with the accessory
penalties provided by law, to indemnify the heirs of the deceased, Amando
Capina, in the sum of P2,000, and to pay one-half of the costs. She was also
credited with one-half of the period of preventive imprisonment suffered
by her.
From said judgment of conviction, defendant Avelina Jaurigue appealed to
the Court of Appeals for Southern Luzon, and in her brief filed therein on
June 10, 1944, claimed —
(1) That the lower court erred in not holding that said appellant had acted
in the legitimate defense of her honor and that she should be completely
absolved of all criminal responsibility;
(2) That the lower court erred in not finding in her favor the additional
mitigating circumstances that (a) she did not have the intention to commit
so grave a wrong as that actually committed, and that (b) she voluntarily
surrendered to the agents of the authorities; and
1
offense was attended by the aggravating circumstance of having been
committed in a sacred place.
The evidence adduced by the parties, at the trial in the court below, has
sufficiently established the following facts:
That both the defendant and appellant Avelina Jaurigue and the deceased
Amado Capina lived in the barrio of Sta. Isabel, City of San Pablo, Province
of Laguna; that for sometime prior to the stabbing of the deceased by
defendant and appellant, in the evening of September 20, 1942, the
former had been courting the latter in vain, and that on one occasion,
about one month before that fatal night, Amado Capina snatched a
handkerchief belonging to her, bearing her nickname "Aveling," while it
was being washed by her cousin, Josefa Tapay.
On September 13, 1942, while Avelina was feeding a dog under her house,
Amado approached her and spoke to her of his love, which she flatly
refused, and he thereupon suddenly embraced and kissed her and touched
her breasts, on account of which Avelina, resolute and quick-tempered girl,
slapped Amado, gave him fist blows and kicked him. She kept the matter
to herself, until the following morning when she informed her mother
about it. Since then, she armed herself with a long fan knife, whenever she
went out, evidently for self-protection.
On September 15, 1942, about midnight, Amado climbed up the house of
defendant and appellant, and surreptitiously entered the room where she
was sleeping. He felt her forehead, evidently with the intention of abusing
her. She immediately screamed for help, which awakened her parents and
brought them to her side. Amado came out from where he had hidden
under a bed in Avelina's room and kissed the hand of Nicolas Jaurigue, her
father, asking for forgiveness; and when Avelina's mother made an
attempt to beat Amado, her husband prevented her from doing so, stating
that Amado probably did not realize what he was doing. Nicolas Jaurigue
sent for the barrio lieutenant, Casimiro Lozada, and for Amado's parents,
the following morning. Amado's parents came to the house of Nicolas
Jaurigue and apologized for the misconduct of their son; and as Nicolas
Jaurigue was then angry, he told them to end the conversation, as he
might not be able to control himself.
In the morning of September 20, 1942, Avelina received information that
Amado had been falsely boasting in the neighborhood of having taken
liberties with her person and that she had even asked him to elope with
her and that if he should not marry her, she would take poison; and that
Avelina again received information of Amado's bragging at about 5 o'clock
in the afternoon of that same day.
At about 8 o'clock in the evening of the same day, September 20, 1942,
Nicolas Jaurigue went to the chapel of the Seventh Day Adventists of which
he was the treasurer, in their barrio, just across the provincial road from
his house, to attend religious services, and sat on the front bench facing
the altar with the other officials of the organization and the barrio
lieutenant, Casimiro Lozada. Inside the chapel it was quite bright as there
were electric lights.
Defendant and appellant Avelina Jaurigue entered the chapel shortly after
the arrival of her father, also for the purpose of attending religious
services, and sat on the bench next to the last one nearest the door.
Amado Capina was seated on the other side of the chapel. Upon observing
the presence of Avelina Jaurigue, Amado Capina went to the bench on
which Avelina was sitting and sat by her right side, and, without saying a
word, Amado, with the greatest of impudence, placed his hand on the
upper part of her right thigh. On observing this highly improper and
offensive conduct of Amado Capina, Avelina Jaurigue, conscious of her
personal dignity and honor, pulled out with her right hand the fan knife
marked Exhibit B, which she had in a pocket of her dress, with the
intention of punishing Amado's offending hand. Amado seized Avelina's
right hand, but she quickly grabbed the knife with her left hand and
stabbed Amado once at the base of the left side of the neck, inflicting upon
him a wound about 4 1/2 inches deep, which was necessarily mortal.
Nicolas Jaurigue, who was seated on one of the front benches, saw Amado
bleeding and staggering towards the altar, and upon seeing his daughter
still holding the bloody knife, he approached her and asked: "Why did you
do that," and answering him Avelina said: "Father, I could not endure
anymore." Amado Capina died from the wound a few minutes later. Barrio
2
lieutenant Casimiro Lozada, who was also in the same chapel, approached
Avelina and asked her why she did that, and Avelina surrendered herself,
saying: "Kayo na po ang bahala sa aquin," meaning: "I hope you will take
care of me," or more correctly, "I place myself at your disposal." Fearing
that Amado's relatives might retaliate, barrio lieutenant Lozada advised
Nicolas Jaurigue and herein defendant and appellant to go home
immediately, to close their doors and windows and not to admit anybody
into the house, unless accompanied by him. That father and daughter went
home and locked themselves up, following instructions of the barrio
lieutenant, and waited for the arrival of the municipal authorities; and
when three policemen arrived in their house, at about 10 o'clock that
night, and questioned them about the incident, defendant and appellant
immediately surrendered the knife marked as Exhibit B, and informed said
policemen briefly of what had actually happened in the chapel and of the
previous acts and conduct of the deceased, as already stated above, and
went with said policemen to the police headquarters, where her written
statements were taken, and which were presented as a part of the
evidence for the prosecution.
The high conception of womanhood that our people possess, however
humble they may be, is universal. It has been entertained and has existed
in all civilized communities.
A beautiful woman is said to be a jewel; a good woman, a treasure; and
that a virtuous woman represents the only true nobility. And they are the
future wives and mothers of the land. Such are the reasons why, in the
defense of their honor, when brutally attacked, women are permitted to
make use of all reasonable means available within their reach, under the
circumstances. Criminologists and courts of justice have entertained and
upheld this view.
On the other hand, it is the duty of every man to protect and show loyalty
to womanhood, as in the days of chivalry. There is a country where women
freely go out unescorted and, like the beautiful roses in their public
gardens, they always receive the protection of all. That country is
Switzerland.
In the language of Viada, aside from the right to life on which rests the
legitimate defense of our own person, we have the right to property
acquired by us, and the right to honor which is not the least prized of our
patrimony (1 Viada, Codigo Penal, 5th ed., pp. 172, 173).
The attempt to rape a woman constitutes an unlawful aggression sufficient
to put her in a state of legitimate defense, inasmuch as a woman's honor
cannot but be esteemed as a right as precious, if not more, than her very
existence; and it is evident that a woman who, thus imperiled, wounds,
nay kills the offender, should be afforded exemption from criminal liability,
since such killing cannot be considered a crime from the moment it
became the only means left for her to protect her honor from so great an
outrage (1 Viada, Codigo Penal, 5th ed., p. 301; People vs. Luague and
Alcansare, 62 Phil., 504). .
As long as there is actual danger of being raped, a woman is justified in
killing her aggressor, in the defense of her honor. Thus, where the
deceased grabbed the defendant in a dark night at about 9 o'clock, in an
isolated barrio trail, holding her firmly from behind, without warning and
without revealing his identity, and, in the struggle that followed, touched
her private parts, and that she was unable to free herself by means of her
strength alone, she was considered justified in making use of a pocket
knife in repelling what she believed to be an attack upon her honor, and
which ended in his death, since she had no other means of defending
herself, and consequently exempt from all criminal liability (People vs. De
la Cruz, 16 Phil., 344).
And a woman, in defense of her honor, was perfectly justified in inflicting
wounds on her assailant with a bolo which she happened to be carrying at
the time, even though her cry for assistance might have been heard by
people nearby, when the deceased tried to assault her in a dark and
isolated place, while she was going from her house to a certain tienda, for
the purpose of making purchases (United States vs. Santa Ana and Ramos,
22 Phil., 249).
In the case, however, in which a sleeping woman was awakened at night
by someone touching her arm, and, believing that some person was
attempting to abuse her, she asked who the intruder was and receiving no
3
reply, attacked and killed the said person with a pocket knife, it was held
that, notwithstanding the woman's belief in the supposed attempt, it was
not sufficient provocation or aggression to justify her completely in using
deadly weapon. Although she actually believed it to be the beginning of an
attempt against her, she was not completely warranted in making such a
deadly assault, as the injured person, who turned out to be her own
brother-in-law returning home with his wife, did not do any other act
which could be considered as an attempt against her honor (United States
vs. Apego, 23 Phil., 391)..
In the instant case, if defendant and appellant had killed Amado Capina,
when the latter climbed up her house late at night on September 15, 1942,
and surreptitiously entered her bedroom, undoubtedly for the purpose of
raping her, as indicated by his previous acts and conduct, instead of merely
shouting for help, she could have been perfectly justified in killing him, as
shown by the authorities cited above..
According to the facts established by the evidence and found by the
learned trial court in this case, when the deceased sat by the side of
defendant and appellant on the same bench, near the door of the barrio
chapel and placed his hand on the upper portion of her right thigh, without
her consent, the said chapel was lighted with electric lights, and there
were already several people, about ten of them, inside the chapel,
including her own father and the barrio lieutenant and other dignitaries of
the organization; and under the circumstances, there was and there could
be no possibility of her being raped. And when she gave Amado Capina a
thrust at the base of the left side of his neck, inflicting upon him a mortal
wound 4 1/2 inches deep, causing his death a few moments later, the
means employed by her in the defense of her honor was evidently
excessive; and under the facts and circumstances of the case, she cannot
be legally declared completely exempt from criminal liability..
But the fact that defendant and appellant immediately and voluntarily and
unconditionally surrendered to the barrio lieutenant in said chapel,
admitting having stabbed the deceased, immediately after the incident,
and agreed to go to her house shortly thereafter and to remain there
subject to the order of the said barrio lieutenant, an agent of the
authorities (United States vs. Fortaleza, 12 Phil., 472); and the further fact
that she had acted in the immediate vindication of a grave offense
committed against her a few moments before, and upon such provocation
as to produce passion and obfuscation, or temporary loss of reason and
self-control, should be considered as mitigating circumstances in her favor
(People vs. Parana, 64 Phil., 331; People vs. Sakam, 61 Phil., 27; United
States vs. Arribas, 1 Phil., 86).
Defendant and appellant further claims that she had not intended to kill
the deceased but merely wanted to punish his offending hand with her
knife, as shown by the fact that she inflicted upon him only one single
wound. And this is another mitigating circumstance which should be
considered in her favor (United States vs. Brobst, 14 Phil., 310; United
States vs. Diaz, 15 Phil., 123).
The claim of the prosecution, sustained by the learned trial court, that the
offense was committed by the defendant and appellant, with the
aggravating circumstance that the killing was done in a place dedicated to
religious worship, cannot be legally sustained; as there is no evidence to
show that the defendant and appellant had murder in her heart when she
entered the chapel that fatal night. Avelina is not a criminal by nature. She
happened to kill under the greatest provocation. She is a God-fearing
young woman, typical of our country girls, who still possess the
consolation of religious hope in a world where so many others have
hopelessly lost the faith of their elders and now drifting away they know
not where.
The questions raised in the second and third assignments of error appear,
therefore, to be well taken; and so is the first assignment of error to a
certain degree.
In the mind of the court, there is not the least doubt that, in stabbing to
death the deceased Amado Capina, in the manner and form and under the
circumstances above indicated, the defendant and appellant committed
the crime of homicide, with no aggravating circumstance whatsoever, but
with at least three mitigating circumstances of a qualified character to be
considered in her favor; and, in accordance with the provisions of article 69
of the Revised Penal Code, she is entitled to a reduction by one or two
degrees in the penalty to be imposed upon her. And considering the
4
circumstances of the instant case, the defendant and appellant should be
accorded the most liberal consideration possible under the law (United
States vs. Apego, 23 Phil., 391; United States vs. Rivera, 41 Phil., 472;
People vs. Mercado, 43 Phil., 950)..
The law prescribes the penalty of reclusion temporal for the crime of
homicide; and if it should be reduced by two degrees, the penalty to be
imposed in the instant case is that of prision correccional; and pursuant to
the provisions of section 1 of Act No. 4103 of the Philippine Legislature,
known as the Indeterminate Sentence Law, herein defendant and
appellant should be sentenced to an indeterminate penalty ranging from
arresto mayor in its medium degree, to prision correccional in its medium
degree. Consequently, with the modification of judgment appealed from,
defendant and appellant Avelina Jaurigue is hereby sentenced to an
indeterminate penalty ranging from two months and one day of arresto
mayor, as minimum, to two years, four months, and one day of prision
correccional, as maximum, with the accessory penalties prescribed by law,
to indemnify the heirs of the deceased Amado Capina, in the sum of
P2,000, and to suffer the corresponding subsidiary imprisonment, not to
exceed 1/3 of the principal penalty, in case of insolvency, and to pay the
costs. Defendant and appellant should also be given the benefit of 1/2 of
her preventive imprisonment, and the knife marked Exhibit B ordered
confiscated. So ordered..
Ozaeta, Perfecto, and Bengzon, JJ., concur.
G.R. No. L-162 April 30, 1947
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DIOSCORO ALCONGA and ADOLFO BRACAMONTE, defendants.
DIOSCORO ALCONGA, appellant.
Jose Avanceña for appellant.
Assistant Solicitor General Kapunan, Jr. and Solicitor Barcelona for
appellee.
HILADO, J.:
On the night of May 27, 1943, in the house of one Mauricio Jepes in the
Municipality of San Dionisio, Province of Iloilo several persons were playing
prohibited games (t.s.n., pp. 95, 125). The deceased Silverio Barion was the
banker in the game of black jack, and Maria de Raposo, a witness for the
prosecution, was one of those playing the game (t.s.n., p. 95). Upon
invitation of the said Maria de Raposo, the accused Dioscoro Alconga
joined her as a partner, each of them contributing the sum of P5 to a
common fund (t.s.n., pp. 95, 125). Maria de Raposo played the game while
the said accused posted himself behind the deceased, acting as a spotter
of the cards of the latter and communicating by signs to his partner (t.s.n.,
pp. 95-96, 126). The deceased appears to have suffered losses in the game
because of the team work between Maria de Raposo and the accused
Alconga (t.s.n., pp. 96, 126). Upon discovering what the said accused had
been doing, the deceased became indignant and expressed his anger at the
former (t.s.n., pp. 96, 126). An exchange of words followed, and the two
would have come to blows but for the intervention of the maintainer of
the games (t.s.n., p. 96). In a fit of anger, the deceased left the house but
not before telling the accused Alconga, "tomorrow morning I will give you
a breakfast" (t.s.n., p. 96), which expression would seem to signify an
intent to inflict bodily harm when uttered under such circumstances.
The deceased and the accused Alconga did not meet thereafter until the
morning of May 29, 1943, when the latter was in the guardhouse located
in the barrio of Santol, performing his duties as "home guard" (t.s.n., pp.
98-100). While the said accused was seated on a bench in the guardhouse,
the deceased came along and, addressing the former, said, "Coroy, this is
your breakfast," followed forthwith by a swing of his "pingahan" (t.s.n., p.
100). The accused avoided the blow by falling to the ground under the
bench with the intention to crawl out of the guardhouse (t.s.n., pp. 100-
101). A second blow was given but failed to hit the accused, hitting the
bench instead (t.s.n., p. 101). The accused manage to go out of the
guardhouse by crawling on his abdomen (t.s.n., p. 101). While the
deceased was in the act of delivering the third blow, the accused, while still
in a crawling position (t.s.n., p. 119), fired at him with his revolver, causing
him to stagger and to fall to the ground (t.s.n., p. 101). Rising to his feet,
the deceased drew forth his dagger and directed a blow at the accused
5
who, however, was able to parry the same with his bolo (t.s.n., pp. 101-
102). A hand-to-hand fight ensued (t.s.n., p. 102). Having sustained several
wounds, the deceased ran away but was followed by the accused (t.s.n., p.
6). After running a distance of about 200 meters (t.s.n., pp. 21, 108), the
deceased was overtaken, and another fight took place, during which the
mortal bolo blow — the one which slashed the cranium — was delivered,
causing the deceased to fall to the ground, face downward, besides many
other blows deliver right and left (t.s.n., pp. 6, 28). At this instant, the
other accused, Adolfo Bracamonte, arrived and, being the leader of the
"home guards" of San Dionisio, placed under his custody the accused
Alconga with a view to turning him over to the proper authorities (t.s.n.,
pp. 102-105).
On their way to San Dionisio, the two accused were stopped by Juan
Collado, a guerrilla soldier (t.s.n., pp. 80, 104). Adolfo Bracamonte turned
over Alconga to Collado who in turn took him to the headquarters (t.s.n.,
pp. 81, 104). In the afternoon of the same day, Collado delivered Alconga
to Gregorio Barredo, a municipal policeman of San Dionisio, together with
the weapons used in the fight: a revolver, a bolo, and a dagger (t.s.n., pp.
81, 104).
The injuries sustained by the deceased were described by police sergeant
Gil G. Estaniel as follows:
P. ¿Y que hicieron ustedes cuando ustedes vieron a Silverio Barion? — R.
Examine sus heridas.
P. ¿Donde ha encontrado usted las heridas, en que parte del cuerpo? — R.
En la cabeza, en sus brazos, en sus manos, en la mandibula inferior, en la
parte frente de su cuello, en su pecho derecho, y tambien en el pecho
izquierdo, y su dedo meñique habia volado, se habia cortado, y otras
perqueñas heridas mas.
P. ¿En la cabeza, vio usted heridas? — R. Si, señor.
P. ¿Cuantas heridas? — R. Una herida en la region parietal derecha y una
contusion en la corona de la cabeza.
P. ¿Vio usted el craneo? — R. En la craneo llevaba una herida, en quel el
craneo se ha roto.
P. ¿En el pecho, herida ha encontrado usted? — R. Debajo de la tetilla
derecha, una herida causada por una bala.
P. ¿Y otras heridas en el pecho, puede usted decir que clase de heridas? —
R. Heridas causadas por bolo.
P. ¿Como de grande acquellas heridas en el pecho? — R. No recuerdo la
dimension de las heridas en el pecho.
P. ¿Pero en la cabeza? — R. La cabeza se rajo por aquella herida causada
por el bolo. (T.s.n., p. 25.)
It will be observed that there were two stages in the fight between
appellant and the deceased. The initial stage commenced when the
deceased assaulted appellant without sufficient provocation on the part of
the latter. Resisting the aggression, appellant managed to have the upper
hand in the fight, inflicting several wounds upon the deceased, on account
of which the latter fled in retreat. From that moment there was no longer
any danger to the life of appellant who, being virtually unscathed, could
have chosen to remain where he was. Resolving all doubts in his flavor,
and considering that in the first stage the deceased was the unlawful
aggressor and defendant had not given sufficient provocation, and
considering further that when the deceased was about to deliver the third
blow, appellant was still in a crawling position and, on that account, could
not have effectively wielded his bolo and therefore had to use his "paltik"
revolver — his only remaining weapon — ; we hold that said appellant was
then acting in self-defense.
But when he pursued the deceased, he was no longer acting in self-
defense, there being then no more aggression to defend against, the same
having ceased from the moment the deceased took to his heels. During the
second stage of the fight appellant inflicted many additional wounds upon
the deceased. That the deceased was not fatally wounded in the first
encounter is amply shown by the fact that he was still able to run a
distance of some 200 meters before being overtaken by appellant. Under
6
such circumstances, appellant's plea of self-defense in the second stage of
the fight cannot be sustained. There can be no defense where there is no
aggression.
Although the defendant was not the aggressor, he is not exempt from
criminal liability for the reason that it is shown that he struck several
blows, among them the fatal one, after the necessity for defending himself
had ceased, his assailant being then in retreat. Therefore one of the
essential ingredients of self-defense specified in No. 4, article 8 of the
Penal Code is wanting (now article 11, case No. 1, Revised Penal Code).
(United States vs. Dimitillo, 7 Phil., 475, 476; words in parenthesis
supplied.)
. . . Even if it be conceded for the moment that the defendants were
assaulted by the four (offended parties), the right to kill in self-defense
ceased when the aggression ceased; and when Toledo and his brothers
turned and ran, without having inflicted so much as a scratch upon a single
one of the defendants, the right of the defendants to inflict injury upon
them ceased absolutely. They had no right to pursue, no right to kill or
injure. A fleeing man is not dangerous to the one from whom he flees.
When danger ceases, the right to injure ceases. When the aggressor turns
and flees, the one assaulted must stay his hand. (United States vs. Vitug,
17 Phil., 1, 19; emphasis supplied.)
Upon the foregoing facts, we hold that appellant's guilt of the crime of
homicide has been established beyond reasonable doubt. The learned trial
court appreciated in his favor of two mitigating circumstances: voluntary
surrender and provocation on the part of the deceased. The first was
properly appreciated; the second was not, since it is very clear that from
the moment he fled after the first stage of the fight to the moment he
died, the deceased did not give any provocation for appellant to pursue
much less further to attack him.
The only provocation given by him was imbibed in, and inseparable from,
the aggression with which he started the first stage of the fight. The
evidence, as weighed and appreciated by the learned trial judge, who had
heard, seen and observed the witnesses testify, clearly shows that said
stage ended with the flight of the deceased after receiving a bullet wound
in his right breast, which caused him to stagger and fall to the ground, and
several bolo wounds inflicted by appellant during their hand-to-hand fight
after both had gotten up. The learned trial judge said:
The evidence adduced by the prosecution and the defense in support of
their respective theories of the case vary materially on certain points.
Some of these facts have to be admitted and some have to be rejected
with the end in view of arriving at the truth. To the mind of the Court,
what really happened in the case at bar, as can de disclosed by the records,
which lead to the killing of the deceased on that fatal morning of May 29,
1945 (should be 1943), is as follows:
xxx xxx xxx
In the morning of May 29, 1943, while Dioscoro Alconga was alone in the
guardhouse performing his duties as guard or "ronda" in Barrio Santol, the
deceased Silverio Barion passed by with a "pingahan". That was the first
time the deceased and the accused Alconga had met since that eventful
night of May 27th in the gambling house of Gepes. Upon seeing the
accused Alconga, who was then seated in the guardhouse, the deceased
cried: "Coroy, this is now the breakfast!" These words of warning were
immediately followed by two formidable swings of the "pingahan" directed
at the accused Alconga which failed to hit him. Alconga was able to avoid
the blows by falling to the ground and crawling on his abdomen until he
was outside the guardhouse. The deceased followed him and while in the
act of delivering the third blow, Dioscoro Alconga fired at him with his
revolver thereby stopping the blow in mid-air. The deceased fell to the
ground momentarily and upon rising to his feet, he drew forth a dagger.
The accused Alconga resorted to his bolo and both persons being armed, a
hand-to-hand fight followed. The deceased having sustained several
wounds from the hands of Alconga, ran away with the latter close to his
heels.
The foregoing statement of the pertinent facts by the learned trial judge is
in substantial agreement with those found by us and narrated in the first
paragraphs of this decision. Upon those facts the question arises whether
when the deceased started to run and flee, or thereafter until he died,
there was any provocation given by him from appellant to pursue and
7
further to attack him. It will be recalled, to be given with, that the first
stage of the fight was provoked when the deceased said to appellant
"Cory, this is now the breakfast," or "This is your breakfast," followed
forthwith by a swing or two of his "pingahan." These words without the
immediately following attack with the "pingahan" would not have been
uttered, we can safely assume, since such an utterance alone would have
been entirely meaningless. It was the attack, therefore, that effectively
constituted the provocation, the utterance being, at best, merely a
preclude to the attack. At any rate, the quoted words by themselves,
without the deceased's act immediately following them, would certainly
not have been considered a sufficient provocation to mitigate appellant's
liability in killing or injuring the deceased. For provocation in order to be a
mitigating circumstance must be sufficient and immediately preceding the
act. (Revised Penal Code, article 13, No. 4.)
Under the doctrine in United States vs. Vitug, supra, when the deceased
ran and fled without having inflicted so much as a scratch upon appellant,
but after, upon the other hand, having been wounded with one revolver
shot and several bolo slashes, as aforesaid, the right of appellant to inflict
injury upon him, ceased absolutely — appellant "had no right to pursue, no
right to kill or injure" said deceased — for the reason that "a fleeing man is
not dangerous to the one from whom he flees." If the law, as interpreted
and applied by this Court in the Vitug case, enjoins the victorious
contender from pursuing his opponent on the score of self-defense, it is
because this Court considered that the requisites of self-defense had
ceased to exist, principal and indispensable among these being the
unlawful aggression of the opponent (Rev. Penal Code, article 11, No. 1; 1
Viada, 5th ed., 173).
Can we find under the evidence of record that after the cessation of said
aggression the provocation thus involved therein still persisted, and to a
degree sufficient to extenuate appellant's criminal responsibility for his
acts during the second stage of the fight? Appellant did not testify nor
offer other evidence to show that when he pursued the deceased he was
still acting under the impulse of the effects of what provocation, be it
anger, obfuscation or the like. The Revised Penal Code provides:
ART. 13. Mitigating circumstances:
xxx xxx xxx
4. That sufficient provocation or threat on the part of the offended party
immediately preceded the act.
It is therefore apparent that the Code requires for provocation to be such a
mitigating circumstance that it not only immediately precede the act but
that it also be sufficient. In the Spanish Penal Code, the adjective modifying
said noun is "adecuada" and the Supreme Court of Spain in its judgment of
June 27, 2883, interpreted the equivalent provision of the Penal Code of
that country, which was the source of our own existing Revised Penal
Code, that "adecuada" means proportionate to the damage caused by the
act. Viada (Vol. 11, 5th ed., p. 51) gives the ruling of that Supreme Court as
follows:
El Tribunal Supremo ha declarado que la provocacion o amenaza que de
parte del ofendido ha de preceder para la disminucion de la
responsabilidad criminal debe ser proporcionada al daño que se cause, lo
cual no concurre a favor del reo si resulta que la unica cuestion que hubo
fue si en un monton de yeso habia mas omenos cantidad, y como perdiera
la apuesta y bromeando dijera el que la gano que beberia vino de balde,
esa pequeña cuestion de amor propio no justificaba en modo alguno la ira
que le impelio a herir y matar a su contrario. (S. de 27 de junio de 1883,
Gaceta de 27 de septiembre.)
Justice Albert, in his commentaries on the Revised Penal Code, 1946
edition, page 94, says: "The provocation or threat must be sufficient, which
means that it should be proportionate to the act committed and adequate
to stir one to its commission" (emphasis supplied).
Sufficient provocation, being a matter of defense, should, like any other,
be affirmatively proven by the accused. This the instant appellant has
utterly failed to do. Any way, it would seem self-evident that appellant
could never have succeeded in showing that whatever remained of the
effects of the deceased's aggression, by way of provocation after the latter
was already in fight, was proportionate to his killing his already defeated
adversary.
8
That provocation gave rise to a fight between the two men, and may be
said, not without reason, to have spent itself after appellant had shot the
deceased in his right breast and caused the latter to fall to the ground; or
— making a concession in appellant's favor — after the latter had inflicted
several bolo wounds upon the deceased, without the deceased so much as
having scratched his body, in their hand-to-hand fight when both were on
their feet again. But if we are to grant appellant a further concession,
under the view most favorable to him, that aggression must be deemed to
have ceased upon the flight of the deceased — upon the end of the first
stage of the fight. In so affirming, we had to strain the concept in no small
degree. But to further strain it so as to find that said aggression or
provocation persisted even when the deceased was already in flight,
clearly accepting defeat and no less clearly running for his life rather than
evincing an intention of returning to the fight, is more than we can
sanction. It should always be remembered that "illegal aggression is
equivalent to assault or at least threatened assault of an immediate and
imminent kind.
Agresion ilegitima. — Agresion vale tanto como acometimiento. Para que
exista el derecho de defensa es preciso que se nos acometa, que se nos
ataque, o cuando menos, que se nos amenace de atacarnos de un modo
inmediato e inminente; v. gr., desenvainando el puñal para herirnos con el
o apuntando la pistola para dispararla contra nosotros. (Viada, 5. a edicion,
173.)
After the flight of the deceased there was clearly neither an assault nor a
threatened assault of the remotest kind. It has been suggested that when
pursuing his fleeing opponent, appellant might have thought or believed
that said opponent was going to his house to fetch some other weapon.
But whether we consider this as a part or continuation of the self-defense
alleged by appellant, or as a separate circumstance, the burden of proof to
establish such a defense was, of course, upon appellant, and he has not so
much as attempted to introduce evidence for this purpose. If he really
thought so, or believed so, he should have positively proven it, as any
other defense. We can not now gratuitously assume it in his behalf.
It is true that in the case of United States vs. Rivera (41 Phil., 472, 474), this
Court held that one defending himself or his property from a felony
violently or by surprise threatened by another is not obliged to retreat but
may pursue his adversary until he has secured himself from danger. But
that is not this case. Here from the very start appellant was the holder of
the stronger and more deadly weapons — a revolver and a bolo, as against
a piece of bamboo called "pingahan" and a dagger in the possession of the
deceased. In actual performance appellant, from the very beginning,
demonstrated his superior fighting ability; and he confirmed it when after
the deceased was first felled down by the revolver shot in right breast, and
after both combatants had gotten up and engaged in a hand-to-hand fight,
the deceased using his dagger and appellant his bolo, the former received
several bolo wounds while the latter got through completely unscathed.
And when the deceased thereupon turned and fled, the circumstances
were such that it would be unduly stretching the imagination to consider
that appellant was still in danger from his defeated and fleeing opponent.
Appellant preserved his revolver and his bolo, and if he could theretofore
so easily overpower the deceased, when the latter had not yet received
any injury, it would need, indeed, an unusually strong positive showing —
which is completely absent from the record — to persuade us that he had
not yet "secured himself from danger" after shooting his weakly armed
adversary in the right breast and giving him several bolo slashes in
different other parts of his body. To so hold would, we believe, be
unjustifiably extending the doctrine of the Rivera case to an extreme not
therein contemplated.
Under article 249, in relation with article 64, No. 2, of the Revised Penal
Code, the crime committed by appellant is punishable by reclusion
temporal in its minimum period, which would be from 12 years and 1 day
to 14 years and 8 months. However, in imposing the penalty, we take into
consideration the provisions of section 1 of the Indeterminate Sentence
Law (Act No. 4103), as amended by Act No. 4225. Accordingly, we find
appellant guilty of the aforesaid crime of homicide and sentence him to an
indeterminate penalty of from 6 years and 1 day of prision mayor to 14
years and 8 months of reclusion temporal, to indemnify the heirs of the
deceased in the sum of P2,000, and to pay the costs.
9
As thus modified, the judgment appealed from is hereby affirmed. So
ordered.
G.R. Nos. L-41269-70 August 6, 1979
CARLOS CASTAÑARES, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, respondents.
Arturo A. Joaquin for petitioner.
Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General
Reynato S. Puno and Solicitor Carlos N. Ortega for respondents.
GUERRERO, J.:
Petitioner Carlos Castañares was charged before the Court of First Instance
of Rizal under two separate informations for homicide for the deaths of
Manuel Pacheco and Felizardo Pacheco, brothers, on February 7, 1967
between ten o'clock and eleven o'clock in the evening within the Rufina
Patis Compound at Calle Pescador, Malabon, Rizal. The accused admitted
the fact of killing the two brothers but he interposed as his defense the
justifying circumstance of complete selfdefense. After trial, the lower court
convicted him and imposed the following sentence:
WHEREFORE, the accused Carlos Castañares is hereby sentenced in each
case to an indeterminate penalty of from EIGHT (8) YEARS AND ONE (1)
DAY of prision mayor, as minimum, to FOURTEEN (14) YEARS, EIGHT (8)
MONTHS AND ONE (1) DAY of reclusion temporal, as maximum, together
with all the accessory penalties, to indemnify the heirs of the deceased
Manuel Pacheco in the amount of P12,000.00, and the heirs of the late
Felizardo Pacheco also in the amount of P12,000.00, without subsidiary
imprisonment in case of insolvency; and to pay the costs.
On appeal, the respondent Court of Appeals 1 modified the judgment of
the lower court in that it appreciated in favor of the accused the mitigating
circumstance of unlawful aggression on the part of the victims and
accordingly rendered the Decision dated February 21, 1975, the pertinent
portion of which states:
Nevertheless, since the mitigating circumstance of unlawful aggression on
the part of the victims has been duly established, the appellant is entitled
to be credited the same. (Article 13, par. (2), Revised Penal Code). The
penalty for homicide under Article 249 of the Revised Penal Code, in
relation with Article 64, paragraph (2) of the same Code, should be
imposed in its minimum, and applying the Indeterminate Sentence Law,
the penalty that should be imposed on the appellant for each of the two
homicides charged is that of Six (6) years and one (1) day of prison (sic)
mayor as minimum, to Twelve (12) years and one (1) day of reclusion
temporal as maximum.
WHEREFORE, with the above modifications as to the penalty, the judgment
appealed from is affirmed in all other respects, with costs against
appellant.
Accused's motion for reconsideration having been denied, he filed this
petition for review seeking the reversal of the above decision and praying
that he be acquitted of the crimes charged, with costs de oficio.
The law on self-defense embodied in any penal system in the civilized
world finds justification in man's natural instinct to protect, repel, and save
his person or rights from impending danger or peril; it is based on that
impulse of self-preservation born to man and part of his nature as a human
being. ... To the Classicists in penal law, lawful defense is grounded the
impossibility on the part of the State to avoid a present just aggression and
protect a person unlawfully attacked, a therefore it is inconceivable for the
State to require that the innocent succumb to an unlawful aggression
without resistance, while to the Positivists, lawful defense is an exercise of
a rig an act of social justice done to repel the attack of an aggressor. 2
Our law on the matter is embodied in Article 11, paragraph 1 of the
Revised Penal Code, thus —
10
Art. 11. The following do not incur any criminal liability:
(1) Anyone who acts in defense of his person or rights provide that
the following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel
it;
Third. Lack of sufficient provocation on the part of the person defending
himself.
xxx xxx xxx
It is further required that the presence of all the abovecited circumstances
must be proved clearly and convincingly with the burden of proof on the
accused, relying on the strength of his own evidence and not on the
weakness of that of the prosecution. The rationale for such requirement
proceeds from the ad mission of the accused that he has killed or wounded
another which is a felony for which he should be criminally liable unless he
establishes to the satisfaction of the court the fact o legitimate defense. 3
Based on the above discussion, We are faced with the lone issue presented
by the petition at bar: whether or not accused Carlos Castañares acted in
complete self-defense in the killing of Manuel Pacheco and Felizardo
Pacheco and thus be absolved from any criminal liability thereon.
Witnesses for the prosecution testified that on the evening of February 7,
1967 between ten o'clock and eleven o'clock in the evening, Pablito de
Jesus Aquino, Mariano Flores, Felicisimo Fuertes and Felizardo Pacheco
were then conversing at the gate of the Rufina Patis Compound at
Pescador St., Malabon, Rizal, "when later Felizardo Pacheco left and went
towards the riverside about fifteen (15) meters away from the gate where
he met the appellant (accused) who boxed him. Felizardo returned to the
gate of the compound, his mouth bleeding, and when he was asked by
Aquino why he was boxed by the appellant, he did not answer. Manuel
Pacheco, brother of Felizardo, arrived and Felizardo told him about the
incident with the appellant, so the Pacheco brothers went to the riverside
to inquire from the appellant why he boxed Felizardo. The appellant was
then on the fishing boat, about 5 meters from the riverbank, when Manuel
Pacheco asked him why he boxed Felizardo, but the appellant did not
answer. Instead, he went down by the outriggers of the boat and after
pulling his gun, fired at Manuel twice so Manuel fell in a sitting position at
the tear of the toilet of the Rufina Patis Factory. When Felizardo saw that
Manuel was shot, he ran away but the appellant pursued him, and
between a parked truck and the walls of the factory the appellant fired at
him and hit him at the back so the latter fell with his face down. The
appellant again fired twice at Felizardo. After the shooting, the appellant
scattered a basketful of fishes between the fallen bodies of the Pacheco
brothers and went back to the fishing boat. The Pacheco brothers died
because of the gunshot wounds." (CA decision, p. 2).
On the other hand, witnesses for the defense, including the accused,
testified that "when Felizardo saw the appellant (accused) on that evening,
he demanded that he be given fish and the appellant asked him to wait
until the fishes falling down from the "canastros" had been gathered.
Felizardo was angered, so he asked, "Anong palagay mo sa akin, aso?" The
appellant answer that he must wait as he was just asking for fish. Felizardo
boxed the appellant who ducked the blow and who instinctively fought
back. The two were pacified by the workers loading fishes into the truck.
Felizardo left with his lips bleeding but only after he threatened the
appellant "May araw ka rin " About ten minutes later, Felizardo with the
handle of a knife sticking out of his front waist returned with his brother,
Manuel, who was armed with a hand gun tucked in his waist. They
proceeded to where the appellant was. 4 Manuel stood near the toilet of
the compound, about an arm's length from the appellant, while Felizardo
went to the rear of the parked truck, about 1-1/2 arm's length from the
appellant. Manuel then asked the appellant, "Baket (sic) mo Sinuntok ang
kapatid ko?" While thus explaining, the appellant slowly approached
Manuel, who suddenly warned him, "Huwag kang lalapit, putang-ina mo!"
drawing from his waist a half- cocked .45 caliber pistol. The appellant
jumped at Manuel and grabbed the gun from him. So Manuel was pushed
back on the ground sitting down against the toilet wall. When the
appellant saw Manuel pick up something from the ground that appeared
11
to be a piece of broken iron gear and as Manuel stood up, half-crouching
charging towards the appellant, the appellant fired at Manuel. At this
moment, Felizardo drew his knife from his waist and swung his hand back
to stab the appellant but the latter suddenly turned around and evaded
the thrust of Felizardo, and the appellant fired at Felizardo. Felizardo must
have been hit at the right upper arm above the elbow, as he lost hold of
the knife, which was thrown underneath the rear of the parked truck. He
tried to grab the knife. The appellant warned Felizardo, "Bitiwan mo iyan"
but Felizardo did not release the knife and was about to stand up so the
appellant fired at Felizardo. Immediately, after the shooting, two persons
scampered from the rear of the parked truck causing a "canastro" of fish to
fall down the truck and overturn thus scattering its contents. The appellant
returned to the boat where he told his wife about the incident. He showed
the gun to his wife but the latter in her excitement brushed the same aside
and it fell into the river. After the appellant was detained and upon his
release, he looked for a diver to find the gun that fell into the river, but all
efforts to locate the same proved futile. " (CA decision, pp. 3-4).
Based on the following testimonies, the trial court completely disregarded
the theory of self-defense and upheld the prosecution's version of the
incident. On appeal, the respondent Court of Appeals, while stating that
unlawful aggression on the part of the victims was clearly established,
nevertheless concurred in the other factual findings of the trial court. We
are constrained, however, to disagree with the court a quo and depart
from the rule that appellate courts win generally not disturb the findings of
the trial court on facts testified to by the witnesses. After carefully reading
and analyzing the whole records of the case including the testimonies of all
witnesses, We are unable to admit the guilt of the accused of the crimes
charged or to affirm his conviction.
Before discussing at full length the merits of the petition at bar, We must
direct attention to certain statements of the respondent court in its
Decision subject of review which negate the court's finding the accused
guilty as charged. Thus, the court said, "However, the presence of unlawful
aggression in the case on the part of the Pacheco brothers has been clearly
established. There is no question as to the fact that the Pacheco brothers
returned to meet the appellant (accused) because the appellant boxed
Felizardo. It is safe to assume that when the Pacheco brothers returned
they were prepared, not only to inquire from the appellant why he boxed
Felizardo, but that they intended to cause injury to the appellant in
return." (CA decision, pp. 9-10). We find Ourselves curious as to how
respondent court arrived at the conclusion that unlawful aggression on the
part of the victims is present despite its finding that (1) Manuel Pacheco
was not armed with a gun (CA Decision. p. 10), and that (2) Felizardo
Pacheco. conceded to be armed with a knife, was already in flight when
the accused fired at him (CA Decision, p. 8). It is well-established in
jurisprudence that unlawful aggression is equivalent to an attack; it is
necessary that the accused be assaulted or that he be attacked, or at least
that he be threatened with an attack in an immediate and imminent
manner, such as brandishing the knife with which to stab or pointing the
gun to discharge against the accused. 5 A mere threatening or intimidating
attitude is not a sufficient equivalence of unlawful aggression as it requires
for an offensive act to have been made positively determining the intent of
the aggressor to cause an injury. 6 Therefore, with the findings that
Manuel was not armed with a gun nor any weapon with which he can
cause injury and absent any finding that he made any move to place the
accused in actual danger of his life because as found by the respondent
court, the accused shot Manuel who was merely asking why he boxed
Felizardo respondent court cannot assume the fact of unlawful aggression
on the part of victim Manuel Pacheco. Likewise, with the finding that
Felizardo Pacheco, who was armed with a knife, had no opportunity to
stab the accused as he immediately ran away when he saw his brother
shot, respondent court erred in holding that victim Felizardo Pacheco was
an unlawful aggressor because having fled, he posed no more danger to
the accused who would then have no more reason to kill or wound him. 7
The above observations force Us to disregard that particular holding of the
questioned decision and review the records in its entirety.
In cases such as the one now before Us where there are directly conflicting
versions of the incident object of the accusation, the Court in its search for
the truth perforce has to look for some facts or circumstances which can
be used as valuable aids in evaluating the probability or improbability of a
testimony. 8 We have reviewed the conflicting testimonies of the several
witnesses presented by both the defense and prosecution and We are
convinced that the testimonies of the two eyewitnesses for the
prosecution could not be believed in the face of their statements made in
12
the trial court which are at ,Variance with objective physical facts duly
established and likewise found improbable, considering the scene or
location of the occurrence.
1. Prosecution witness Pablito de Jesus Aquino testified that after
the altercation between Felizardo Pacheco and the accused, Felizardo
returned to their group conversing at the gate of the compound; that
Manuel Pacheco arrived several minutes later and insisted that they
(Manuel and Felizardo) ask the accused why he boxed Felizardo; that the
brothers went to the riverbank and asked the accused why he boxed
Felizardo; that the accused, without answering, went down by the
outriggers of his boat and started to shoot at Manuel; 9 that Manuel was
shot on the right side of his chest; that the accused shot him from the
outriggers of the boat; that immediately after, Felizardo started to run
towards Calle Pescador but was pursued by the accused; that the accused
shot once at Felizardo who fell down; that in that position, the accused
again shot at him twice; and that he never lost sight of Felizardo from the
nine Manuel was shot by the accused and Felizardo ran. 10
The candor and credibility of the witness is very much put in doubt by the
following: (a) The necropsy report and the testimony of Dr. Cueva, a
medicolegal officer of the NBI who conducted an autopsy on the victims,
state that Manuel sustained gunshot wounds behind the left armpit, at the
left side of the chest, and on the left arm, 11 and, therefore, belying the
claim of the witness that he actually saw Manuel shot at the right side of
his chest. (b) Exhibits "F" and "F-1", consisting of pictures of victim
Felizardo lying on the ground face up, and Exhibit "F-8", a picture of
Felizardo Pacheco lying beneath the truck, face up, show the falsity in the
witness' testimony that he saw the accused shoot at Felizardo twice while
lying face down after which Felizardo no longer moved. (c) His testimony
on cross-examination that he never lost sight of Felizardo and the accused
from the time Manuel was killed a Felizardo immediately fled towards
Calle Pescador could no be believed without nagging doubts because of
the undisputed presence of a fishtruck parked along Calle Pescador near t
riverbank. In the course of his testimony, the witness admit that after the
second shot, he immediately crossed Calle Pescador to go to the building
on the south, therefore, during those few seconds that he was crossing the
street by the from of the fishtruck, he was not able to observe, what
transpired between the accused and Felizardo hence destroying his candor
in claiming otherwise. (d) If the version of the witness would be believed
that the accused was down by the outrigger of his fishing boat moored on
the Navotas-Malabon river which on the night in question was on a lower
level than Calle Pescador while Manuel, at the time he was shot was facing
the accused while leaning against the wall of the toilet, their relative
position would, therefore, make it physically impossible to explain the
gunshot wound found behind Manuel's left armpit and the other wounds
admittedly inflicted by an assailant who stood on a higher elevation than
the victim. Aquino's testimony is not only inconsistent with physical facts
duly established, but it also destroys the prosecution's own theory that the
victim Manuel Pacheco was killed from behind.
2. The prosecution also presented Felicisimo Fuertes as an eye-
witness to the incident who testified on direct examination 12 that when
Manuel and Felizardo left them, they (the Pachecos) proceeded to the
riverbank where the accused's motorboat was docked; that Manuel asked
the accused, "Bakit mo naman sinuntok ang utol ko?" that Manuel was
standing by the toilet of the factory, seven meters away from (the accused
who was on his motorboat and fourteen meters away from where the
witness was; that the accused went down from his motorboat and when
he was near Manuel, he drew his gun and shot Manuel; that immediately
after, Felizardo fled towards the side of the truck pursued by the accused;
that the accused shot at Felizardo while he was still running; that Felizardo
fell face down when hit and the accused again fired twice at Felizardo; that
Felizardo ducked under the truck; that the accused then went to the back
of the truck, got 2 big fishes and placed them beside Felizardo; that the
accused also got a basketful of fish and poured it in-between the brothers;
and that the accused finally returned to his motorboat.
Fuertes' detailed testimony regarding Manuel's death appears doubtful
considering the following facts: he was conversing with others at the gate
of the compound found on the building north of Calle Pescador; the gate
was about fourteen meters away from Manuel and seven meters away
from the front of a fishtruck parked along Calle Pescador with its rear
portion about 1 meter away from the riverbank; he admitted on cross-
examination that when the brothers left them, his attention was already
diverted to the topic of conversation and that he continued conversing
13
with the group because he found the topic interesting as it was about the
forthcoming fiesta of Caloocan and the possibility of Felizardo Pacheco
becoming the godfather of his son. 13 Viewing all these facts, We are not
ready to admit without caution that Fuertes could describe in detail an
incident happening fourteen or fifteen meters away seen through a one
meter space (from the wall of the northern building to the high sides of the
fish truck) while he was admittedly actively engaged in a conversation with
others. But what convinces Us to regard the testimony of Fuertes as
incredulous is the very much more detailed description of the
circumstances leading to Felizardo's death. On cross-examination, Fuertes
stated that he "did not seek cover when he heard the gunshots" 14 — an
implied admission that he did not move from his previous position. He
could not, therefore, have seen the accused pursuing Felizardo or that
Felizardo fled towards the sides of the truck or that Felizardo fell when hit
or that the accused shot twice at Felizardo when he was already down or
that the accused afterwards returned to the rear of truck and got the fish
and the basket or that he poured them between the brothers, the reason
being that all of the transpired behind the rear portion and by that Side of
the fig truck near the building on the south of Calle Pescador. It is inhuman
feat for Fuertes, undisputedly standing seven me away from the front of
the fishtruck by that side near t building north of Calle Pescador to see
through the body of said truck shown to have very high sides so that a
person standing upright can barely touch with his raised hand the edge of
the sides 15 and observe what transpired behind the portion and by that
side of the same fishtruck near the building south of Calle Pescador.
Evidence, to be bell must not only proceed from the mouth of a credible
witness but it must be credible in itself — such as the common experience
and observation of mankind can approve as probable under the
circumstances. We have no test of the truth o human testimony, except its
conformity to our knowledge observation and experience. Whatever is
repugnant to the belongs to the miraculous and is outside of judicial
cognizance. 16
Upon the other hand, without relying on the weakness o prosecution's
evidence, the defense has met the requirement o proving by clear and
convincing evidence all the justifying circumstances of complete self-
defense. Three witnesses corroborated the accused's testimony. There is
no reason to disbelieve their testimonies because two of them, Telesforo
Andrade and Salvador del Mundo, were on the deck of the fishing boat
directly behind the particular area where the shooting took place, and,
therefore, in a better position to observe the entire event as there was no
obstruction to their lines of vision. The third witness, Romeo Santiago, who
testified only to the fact that Manuel had a gun tucked inside his
waistband, was in a store closely by-passed by Manuel when he first
approached the group of Aquino. Not only are the witnesses for the
defense more credible because of their vantage position, but the facts
testified to by the defense are confirmed by objective facts not disputed.
From the facts established by the defense, it is clear that Manuel and
Felizardo, and not the accused, initiated the unlawful aggression resulting
in their deaths. The fact that the two victims, evidently hostile, placed
themselves on either side of the accused who was by the rear of the truck,
presumably to cut off venues of escape, coupled with the fact that both
were armed with a gun and a knife, weapons ordinarily considered as
fatally dangerous, show that the victims were ready and looking for
trouble. Even the respondent court is of the impression that "when the
Pacheco brothers returned they were prepared not only to inquire from
the appellant (accused) why he boxed Felizardo, but that they intended to
cause injury to the appellant in return." (CA decision, pp. 9-10). So when
Manuel drew his half-cocked gun from his waist which the accused
successfully wrested from him resulting in Manuel's being pushed against
the wall where he fen in a sitting position, and despite this, he picked up
what the accused thoug ht to be was an iron gear and moved to charge
towards the accused, the only normal conclusion to be derived from such
acts of Manuel is his evident intent and persistent determination to harm
the accused. The same is true of Felizardo. When he attempted to stab the
accused but was frustrated only because the thrust was evaded by the
latter, and though hit in the arm he still followed the knife thrown beneath
the truck, picked the knife and stood ("akmang tatayo") despite warnings
from the accused to release the knife, such acts amount to continuing acts
of unlawful aggression showing the victim's determination to persist in his
purpose of wounding or killing the accused. In both cases of clear, real,
direct and positive aggression, the accused was justified in using the gun,
his only means of defense, against his assailants as he was placed in real
peril of his life.
14
In the decision under review, the respondent court made a finding that
Manuel was not armed with a gun and that the gun belonged to the
accused. One of the reasons intimated by the respondent court is the
incredibility for the accused, if truly unarmed, to have had the nerve to
wrest the gun from Manuel. The court further stressed that "(T)he natural
reaction of any reasoning man under such circumstances, however daring
he may be, would be either to retreat or get his own weapon or better still
manifest his desire for peace or unwillingness to fight." (CA decision, p. 6).
This is mere conjecture and cannot prevail over positive testimonies that
Manuel had a gun tucked in his waistband 17 and that the accused
successfully wrested the gun from Manuel. 18
Another reason offered by respondent court is the fact that the accused
could not produce the gun when asked by the proper authorities. Of
course, We have held that the act of throwing away the weapon used in
the commission of the crime may be considered a circumstance which
negates the plea of self-defense. 19 However, this is not meant to be an
absolute rule precluding the consideration of other factors in determining
the probability or improbability of an offered explanation. Herein, the
conduct of the accused shortly after the incident impresses upon the Court
that the throwing away of the gun was not for the purpose of concealment
but did happen as explained. When investigated by the proper authorities
immediately after the incident, the accused admitted the killing of the two
deceased but that he grabbed the gun from Manuel, and when asked to
produce the weapon, the accused declared that the same was grabbed by
his wife and was thrown into the river.20 Moreover, it also appears as an
unrebutted evidence that the accused secured the services of a local diver
to help him locate the missing gun so that it could be used in his defense.
21 All of these factors — the accused's disistance from flight, peaceful
surrender, spontaneous and voluntary statements to the proper
authorities before he had time to contrive a fabricated defense, and his
efforts in locating the missing gun — tend to give credence to his
allegations.
The second element of self-defense, that is, reasonable necessity for the
means employed in repelling the unlawful aggression, is likewise present.
Here, We have an unarmed man assaulted by two armed brothers
determined to exact payment for the insult and injury earlier caused by the
accused to the younger brother. To require him to flee or to manifest
peace, as would, respectively, require him to run the risk of exposing his
back to danger or would force upon him an act that may be repugnant to
his sense of values. As it happened, accused chose to stand his ground and
moved to take the offensive by attempting to wrest the better weapon
from one of his assailants. Having successfully grabbed the gun from
Manuel, there was reasonable necessity for the accused to use the gun to
disable his assailants because the gun was his only means of defense
against two aggressors who by their decidedly aggressive attitude were
manifestly determined to consummate their desire to cause injury to the
accused. It is not true that after the accused was able to wrest the gun
from Manuel, he was no longer in peril of his life because even after
Manuel was disarmed, he picked up what the accused thought to be was
an iron gear and proceeded to charge against the accused, thus imperiling
his life while the other brother was behind ready to attack him. Even at the
moment that the accused was repelling the attack of Manuel, the accused
was likewise exposed to the danger posed by Felizardo who was behind
him and armed with a knife. Necessarily, he had to disable Manuel in order
to cope with Felizardo. Neither is it true that after Felizardo lost his knife
because he was hit by the accused on the right arm, Felizardo desisted
from his attack so that the accused was not justified in killing him. From
the facts testified to by the accused, Felizardo even when wounded tried
to retrieve the knife and the accused fired the fatal shots only when
Felizardo made a move to stand up disregarding the accused's warning to
release the knife. If through the various stages of the fight, the accused
desisted from using the gun, the result of the combat would have been
very different; perhaps, the accused, instead of being the slayer, would
himself have been killed. Certainly, the accused was not in duty bound to
expose himself to such a contingency, and while the attacks continued,
and, consequently, the danger to his person or to his life subsisted, he had
a perfect and indisputable right to repel such danger by wounding his
adversaries, if necessary, as from the Circumstances of the case it was,
without any doubt whatever, and even to disable them completely so that
they may not continue the assault. 22
The location of the gunshot wounds found on the bodies of Manuel and
Felizardo and the trajectories of the bullets confirm, rather than belie, the
15
theory of the defense. According to Dr. Manuel Cueva, Jr., the following
gunshot wounds were found:
(1) On Manuel —
(a) Wound No. 1 with entrance hole, 1.6 x 1.5 cm. oval in shape
located at lower armpit region; so that the point of entrance of this
gunshot wound was located at a region behind the axillary or the left
armpit; it hit the victim at the left axillary bone and travels inside the body
going to the front and slightly downwards from left to the right side of the
body producing a point of exit at the right chest; that assuming that the
victim was standing in upright position, the appellant must probably be in
a higher elevation behind and to the left side of the victim at the moment
of the infliction of the wound.
(b) Wound No. 2 consists of an entrance wound located at the left
side of the chest of an oval shape with a direction from the left to the right
side of the body g ing slightly downwards to the front, and the bullet
traveled blindly beneath the skin and in the front portion of the right
chest; that there was no point of exit.
(c) Wound No. 3 which is minor in nature at the left arm on the
medial aspect that took a short route underneath the skin producing an
exit wound on the same armpit very near the same point of entry.
2) On Felizardo —
(a) Wound No. 1 with ail entrance hole of 2.0 x 1.6 cm., roughly oval
in shape, located at the right posterior axillary fold near the armpit which
has a valid track directed from the right to the left side of the body going
slightly downwards, going to the front where they extracted a .45 caliber
bullet at the left arm; that the bullet perforated and lacerated at the right
lung, the egg (sic) blood vessels of the heart and the left lung before it
ended at the muscle of the right forearm; that if the victim and appellant
were in standing position at the same elevation, the appellant must have
shot the victim while the appellant was slightly at the back to the right side
with the muzzle of the gun at a considerable distance from the point of
entrance of the gunshot wound; and that assuming that the appellant and
the victim were not on the same level and that the appellant was on a
higher level, the latter would also be at the back or behind at an elevated
level with the muzzle of the gun aimed downwards.
(b) Wound No. 2 with the point of entry at the back of the chest
below the right border blade presenting all oval appearance with a
diameter of that of a,45 caliber gun wound and it assumed a tract inside
the body from the left side of the body pointing from right to left going
upwards and to the front indicating that the gun man was directly behind
to the right side of the victim, with the victim in a standing position when
he sustained the gunshot wound.
(c) Wound No. 3 found behind the right arm, the bone on the right
arm that travels downwards where the bullet was recovered at the middle
portion of the right forearm, underneath the skin, and the bullet recovered
here was a .45 caliber bullet; that the wound must have been inflicted
from behind, as it was located at the back of the right arm
The wound found behind Manuel's left armpit particularly assumes
decisive importance in pointing out which of the conflicting versions is
true. Aforestated in this decision is the physical impossibility for Manuel to
have sustained this wound if the testimonies of the witnesses for the
prosecution would be believed as they put the accused and Manuel facing
each other at the time Manuel was shot. On the other hand, this particular
wound finds a plausible explanation in the version of the defense that the
accused shot Manuel when he saw him picked up something from the
ground and then proceeded to charge towards him in a half-crouching
position. Manuel must have sustained this particular wound at the very act
of picking up what the accused thought to be was an iron gear because
then, Manuel, who was slumped against the toilet wall, must have twisted
his body towards the right as one is wont to do when one looks for
something on the right, and must have stooped a little bit as he picked it
up from the ground, leaving therefore the back of his left shoulder exposed
as a possible target for the accused who was in front standing over him.
The other two gunshot wounds must have been sustained when Manuel
proceeded to charge towards the accused as these wounds indicate a
frontal confrontation. Moreover, all of these gunshot wounds show a track
of the left to right, going downwards to the front, indicating that the
16
assailant stood on a higher elevation than the victim, confirming,
therefore, the version of the accused. The bullets could not have had these
trajectories if the accused were down by the outriggers of his boat moored
by the river which, on the night in question, was a lower level than Calle
Pescador as testified to by prosecution witness Pablito Aquino.
Again, the location of the wounds sustained by Felizardo confirms the
version of the defense. The location of the wound at the back of his right
arm (wound no. 3) verified the fact that Felizardo was shot by the accused
immediately after evading, by stepping backwards, the thrust of Felizardo's
knife thereby putting the accused behind and to the right side of Felizardo
who would not yet have been able to check his forward momentum
caused by the force of his thrust. This particular wound also sustained the
explanation offered by the defense as to why the knife was released by
Felizardo and thrown beneath the rear portion of the truck. Those wounds
described as wound no. 1 and wound no. 2 admittedly inflicted from
behind do not necessarily negate the plea of self- defense because the
accused all along insisted that he followed Felizardo who retrieved the
knife from beneath the rear portion of the truck. Wound no. 1 specifically
indicated that the assailant was on a higher elevation with the muzzle of
the gun aimed downwards. Wound no. 2 indicated that the victim was in a
standing position when he sustained the wound. These exactly jibed with
the defense that the accused fired the fatal shots during the few seconds
that took the victim to retrieve the knife in what would naturally be a
bending position (wound no. 1) and then straighten up (wound no. 2) in
order to continue his attack.
It is also of record that the investigating authorities found a nickel plated
dagger on the ground lying near the right hip of the body of Felizardo. 23
This fact strongly confirmed that Felizardo had the knife with him when
shot and precluded all doubts as to the veracity of the defense evidence.
That leaves Us to the last question of whether or not the accused did not
give sufficient provocation for the unlawful aggression. The respondent
court maintained, thus, "(T)here was a fist fight between the appellant and
the victim Felizardo in which the appellant bested Felizardo by boxing him
at the mouth. This provocation, to Our mind, is sufficient to stir Felizardo
into returning to even up the score. " (CA decision, p. 5). This stance is
obviously erroneous. The defense alone presented evidence as to the
circumstances leading to the fist fight between the accused and Felizardo.
It remains, therefore, unrebutted, and thus from the facts narrated by the
witnesses f or the defense, Felizardo apparently insulted by the accused's
refusal to give him fish immediately and that he should wait until the fish
falling from the "canastro" be all gathered, as manifested in his following
remarks, "(A)nong palagay mo sa akin, aso? " he struck the first blow which
was however evaded by the accused who in turn successfully landed a
blow on him. Even at this stage, it was Felizardo who initiated the fight and
if he was bested, it would be preposterous to say that he had a right to
return and "even up the score" because such a pronouncement
erroneously sanctions aggression in return for an insult brought by
Felizardo upon himself alone. Moreover, even if We were to disregard the
testimonies of the defense witnesses that it was Felizardo who struck the
first blow, We would still be convinced that that would be the case
because in the nature of the order of things, the person who was deeply
offended by the insult was the one who believed he had a right to demand
explanation of the perpetrator of that insult, and the one who also struck
the first blow then he was not satisfied with the explanation offered. 24
To Our mind, the first altercation between Felizardo and the accused
ended when the former left but not without first uttering a threat "May
araw ka rin." This showed that Felizardo had no intention to continue the
fight but would wait for a more opportune time. In fact, Felizardo returned
to the group with whom he was previously conversing with. It was only
upon the order of his older brother, who, it must be noted, arrived only
minutes later, that both returned to where the accused was. In other
words, We have reason to believe that if Manuel had not arrived right
there and then, Felizardo would not have returned alone to make good his
threat. Therefore, there were two fights that took place: one, the
altercation between the accused and Felizardo, and second, the assault on
the accused by both Felizardo and Manuel. Because of the circumstances
above discussed, there was no continuity in the fights despite the lapse of
only ten minutes so that even if We were to admit, which We do not, that
the accused gave sufficient provocation Such provocation ",as not
proximate nor immediate to the aggression and therefore should still be
disregarded. 25
17
The last factor which We took into consideration in finding that the plea of
self-defense is more credible is the lack of motive of the accused in
attacking and killing the two deceased. We have stated in the recent case
26 that although it is the general rule that the presence of motive in the
killing of a person is not indispensable to a conviction especially where the
Identity of the assailant is duly established by other competent evidence or
is disputed, as in this case, nonetheless, the absence of such motive is
important in ascertaining the truth as between two antagonistic theories
or versions of the killing. Herein, it was the two victims who had reason to
harm the accused. After the altercation between the accused and Felizardo
where in the ensuing fistfight the accused bested Felizardo, the latter
uttered a threat, "(M)ay araw ka rin". It is natural to assume that Felizardo
felt humiliated not only in losing the fight which Felizardo himself had
started to the accused but also for having been refused his demand for fish
and having been told to wait until all the fish falling from the "canastro"
shall have been gathered for which he felt that he was treated like a dog.
The opportunity for retaliation arose when his older brother, Manuel,
arrived and insisted that they confront the accused.
After a painstaking review of the whole record of the case, We are
convinced that all the elements of self-defense are present. The evidence
for the defense has proven clearly that the, accused acted reasonably
according to his instinct of self-preservation. The necessity of the killings
committed by him exempts him from liability thereon. Upon the other
hand, the evidence for the prosecution falls short of that requisite
sufficiency and certainty which can persuade the human mind to agree
with the conclusion of guilt. 27
WHEREFORE, the decision appealed from is reversed and set aside and
another one is entered acquitting the accused, Carlos Castañares of all the
charges against him, with costs de oficio.
SO ORDERED:
G.R. Nos. L-33466-67 April 20, 1983
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MAMERTO NARVAEZ, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.
MAKASIAR, J.:
This is an appeal from the decision of the Court of First Instance of South
Cotabato, Branch I, in Criminal Cases Nos. 1815 and 1816 for murder
which, after a joint trial, resulted in the conviction of the accused in a
decision rendered on September 8, 1970, with the following
pronouncement:
Thus, we have a crime of MURDER qualified by treachery with the
aggravating circumstance of evident premeditation offset by the mitigating
circumstance of voluntary surrender. The proper penalty imposable,
therefore, is RECLUSION PERPETUA (Arts. 248 and 64, Revised Penal Code).
Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of
the crime of murder,
(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION
PERPETUA, to indemnify the heirs of the deceased Davis Q. Fleischer in the
sum of P 12,000.00 as compensatory damages, P 10,000.00 as moral
damages, P 2,000.00 as attorney's fees, the offended party having been
represented by a private prosecutor, and to pay the costs;
(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION
PERPETUA, to indemnify the heirs of the deceased Flaviano Rubia in the
sum of P12,000.00 as compensatory damages, P10,000.00 as moral
damages, P2,000.00 as attorney's fees, the offended party having been
represent by a private prosecutor, and to pay the costs (p. 48, rec.).
The facts are summarized in the People's brief, as follows:
18
At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus
Verano and Cesar Ibanez together with the two deceased Davis Fleischer
and Flaviano Rubia, were fencing the land of George Fleischer, father of
deceased Davis Fleischer. The place was in the boundary of the highway
and the hacienda owned by George Fleischer. This is located in the
municipality of Maitum, South Cotabato. At the place of the fencing is the
house and rice drier of appellant Mamerto Narvaez (pp. 179-182, t.s.n.,
Pieza II). At that time, appellant was taking his rest, but when he heard
that the walls of his house were being chiselled, he arose and there he saw
the fencing going on. If the fencing would go on, appellant would be
prevented from getting into his house and the bodega of his ricemill. So he
addressed the group, saying 'Pare, if possible you stop destroying my
house and if possible we will talk it over what is good,' addressing the
deceased Rubia, who is appellant's compadre. The deceased Fleischer,
however, answered: 'No, gademit, proceed, go ahead.' Appellant
apparently lost his equilibrium and he got his gun and shot Fleischer,
hitting him. As Fleischer fell down, Rubia ran towards the jeep, and
knowing there is a gun on the jeep, appellant fired at Rubia, likewise
hitting him (pp. 127-133, t.s.n., Defense transcript). Both Fleischer and
Rubia died as a result of the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9,
Appellant's Brief, p.161, rec.).
It appears, however, that this incident is intertwined with the long drawn
out legal battle between the Fleischer and Co., Inc. of which deceased
Fleischer was the secretary-treasurer and deceased Rubia the assistant
manager, on the one hand, and the land settlers of Cotabato, among
whom was appellant.
From the available records of the related cases which had been brought to
the Court of Appeals (CA-G.R. Nos. 28858-R and 50583-R) and to this Court
on certiorari (G.R. No. L-26757 and L-45504), WE take judicial notice of the
following antecedent facts:
Appellant was among those persons from northern and central Luzon who
went to Mindanao in 1937 and settled in Maitum, a former sitio of Kiamba
and now a separate municipality of South Cotabato. He established his
residence therein, built his house, cultivated the area, and was among
those who petitioned then President Manuel L. Quezon to order the
subdivision of the defunct Celebes Plantation and nearby Kalaong
Plantation totalling about 2,000 hectares, for distribution among the
settlers.
Shortly thereafter, Fleischer and Company, headed by George W. Fleischer,
an American landowner in Negros Oriental, filed sales application No.
21983 on June 3, 1937 over the same area formerly leased and later
abandoned by Celebes Plantation Company, covering 1,017.2234 hectares.
Meanwhile, the subdivision was ordered and a public land surveyor did the
actual survey in 1941 but the survey report was not submitted until 1946
because of the outbreak of the second world war. According to the survey,
only 300 hectares Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba,
were set aside for Sales Application No. 21983, while the rest were
subdivided into sublots of 5 to 6 hectares each to be distributed among the
settlers (pp. 32-33, G.R. No. L-45504).
The 300 hectares set aside for the sales application of Fleischer and
Company was declared open for disposition, appraised and advertised for
public auction. At the public auction held in Manila on August 14, 1948,
Fleischer and Company was the only bidder for P6,000.00. But because of
protests from the settlers the corresponding award in its favor was held in
abeyance, while an investigator was sent by the Director of Lands to
Kiamba in the person of Atty. Jose T. Gozon Atty. Gozon came back after
ten days with an amicable settlement signed by the representative of the
settlers. This amicable settlement was later repudiated by the settlers, but
the Director of Lands, acting upon the report of Atty. Gozon, approved the
same and ordered the formal award of the land in question to Fleischer
and Company. The settlers appealed to the Secretary of Agriculture and
Natural Resources, who, however, affirmed the decision in favor of the
company.
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First
Instance of Cotabato which then consisted only of one sala, for the
purpose of annulling the order of the Secretary of Agriculture and Natural
Resources which affirmed the order of the Director of Lands awarding the
contested land to the company. The settlers as plaintiffs, lost that case in
view of the amicable settlement which they had repudiated as resulting
19
from threats and intimidation, deceit, misrepresentation and fraudulent
machination on the part of the company. They appealed to the Court of
Appeals (CA-G.R. No. 28858-R) which likewise affirmed on August 16, 1965
the decision of the Court of First Instance in favor of the company.
This resulted in the ouster of the settlers by an order of the Court of First
Instance dated September 24, 1966, from the land which they had been
occupying for about 30 years. Among those ejected was the appellant who,
to avoid trouble, voluntarily dismantled his house, built in 1947 at a cost of
around P20,000.00, and transferred to his other house which he built in
1962 or 1963 near the highway. The second house is not far from the site
of the dismantled house. Its ground floor has a store operated by Mrs.
June Talens who was renting a portion thereof. He also transferred his
store from his former residence to the house near the highway. Aside from
the store, he also had a rice mill located about 15 meters east of the house
and a concrete pavement between the rice mill and the house, which is
used for drying grains and copra.
On November 14, 1966, appellant was among the settlers on whose behalf
Jose V. Gamboa and other leaders filed Civil Case No. 755 in the Court of
First Instance of Cotabato, Branch I. to obtain an injunction or annulment
of the order of award with prayer for preliminary injunction. During the
pendency of this case, appellant on February 21, 1967 entered into a
contract of lease with the company whereby he agreed to lease an area of
approximately 100 to 140 square meters of Lot No. 38 from the company
(Exh. 9, p. 1, Folder of Exhibits for Defense) for a consideration of P16.00
monthly. According to him, he signed the contract although the ownership
of the land was still uncertain, in order to avoid trouble, until the question
of ownership could be decided. He never paid the agreed rental, although
he alleges that the milling job they did for Rubia was considered payment.
On June 25, 1968, deceased Fleischer wrote him a letter with the following
tenor:
You have not paid six months rental to Fleischers & Co., Inc. for that
portion of land in which your house and ricemill are located as per
agreement executed on February 21, 1967. You have not paid as as even
after repeated attempts of collection made by Mr. Flaviano Rubia and
myself.

In view of the obvious fact that you do not comply with the agreement, I
have no alternative but to terminate our agreement on this date.
I am giving you six months to remove your house, ricemill, bodega, and
water pitcher pumps from the land of Fleischers & Co., Inc. This six- month
period shall expire on December 31, 1966.
In the event the above constructions have not been removed within the
six- month period, the company shall cause their immediate demolition
(Exhibit 10, p. 2, supra).
On August 21, 1968, both deceased, together with their laborers,
commenced fencing Lot 38 by putting bamboo posts along the property
line parallel to the highway. Some posts were planted right on the
concrete drier of appellant, thereby cutting diagonally across its center
(pp. 227-228, t.s.n., Vol. 2), with the last post just adjacent to appellant's
house (p. 231, t.s.n., supra). The fence, when finished, would have the
effect of shutting off the accessibility to appellant's house and rice mill
from the highway, since the door of the same opens to the Fleischers' side.
The fencing continued on that fateful day of August 22, 1968, with the
installation of four strands of barbed wire to the posts.
At about 2:30 p.m. on the said day, appellant who was taking a nap after
working on his farm all morning, was awakened by some noise as if the
wall of his house was being chiselled. Getting up and looking out of the
window, he found that one of the laborers of Fleischer was indeed
chiselling the wall of his house with a crowbar (p. 129, t.s.n., Vol. 6), while
deceased Rubia was nailing the barbed wire and deceased Fleischer was
commanding his laborers. The jeep used by the deceased was parked on
the highway. The rest of the incident is narrated in the People's Brief as
above-quoted. Appellant surrendered to the police thereafter, bringing
with him shotgun No. 1119576 and claiming he shot two persons (Exh. Pp.
31, Defense Exhibits).
Appellant now questions the propriety of his conviction, assigning the
following errors:
20
First Assignment of Error: That the lower court erred in convicting
defendant-appellant despite the fact that he acted in defense of his
person; and
Second Assignment of Error: That the court a quo also erred in
convicting defendant-appellant although he acted in defense of his rights
(p. 20 of Appellant's Brief, p. 145, rec.).
The act of killing of the two deceased by appellant is not disputed.
Appellant admitted having shot them from the window of his house with
the shotgun which he surrendered to the police authorities. He claims,
however, that he did so in defense of his person and of his rights, and
therefore he should be exempt from criminal liability.
Defense of one's person or rights is treated as a justifying circumstance
under Art. 11, par. 1 of the Revised Penal Code, but in order for it to be
appreciated, the following requisites must occur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel
it;
Third. Lack of sufficient provocation on the part of the person defending
himself (Art. 11, par. 1, Revised Penal Code, as amended).
The aggression referred to by appellant is the angry utterance by deceased
Fleischer of the following words: "Hindi, sigue, gademit, avante", in answer
to his request addressed to his compadre, the deceased Rubia, when he
said, "Pare, hinto mona ninyo at pag-usapan natin kung ano ang mabuti"
(pp. 227-229, t.s.n., Vol. 6). This was in reaction to his having been
awakened to see the wall of his house being chiselled. The verbal exchange
took place while the two deceased were on the ground doing the fencing
and the appellant was up in his house looking out of his window (pp. 225-
227, supra). According to appellant, Fleischer's remarks caused this
reaction in him: "As if, I lost my senses and unknowingly I took the gun on
the bed and unknowingly also I shot Mr. Fleischer, without realizing it, I
shot Mr. Fleischer" (p. 132, supra). As for the shooting of Rubia, appellant
testified:
When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing
the shot, Mr. Rubia looked at Mr. Fleischer and when Mr. Fleischer fell
down, Mr. Rubia ran towards the jeep and knowing that there was a
firearm in the jeep and thinking that if he will take that firearm he will kill
me, I shot at him (p. 132, supra, Emphasis supplied).
The foregoing statements of appellant were never controverted by the
prosecution. They claim, however, that the deceased were in lawful
exercise of their rights of ownership over the land in question, when they
did the fencing that sealed off appellant's access to the highway.
A review of the circumstances prior to the shooting as borne by the
evidence reveals that five persons, consisting of the deceased and their
three laborers, were doing the fencing and chiselling of the walls of
appellant's house. The fence they were putting up was made of bamboo
posts to which were being nailed strands of barbed wire in several layers.
Obviously, they were using tools which could be lethal weapons, such as
nail and hammer, bolo or bamboo cutter, pliers, crowbar, and other
necessary gadgets. Besides, it was not disputed that the jeep which they
used in going to the place was parked just a few steps away, and in it there
was a gun leaning near the steering wheel. When the appellant woke up to
the sound of the chiselling on his walls, his first reaction was to look out of
the window. Then he saw the damage being done to his house,
compounded by the fact that his house and rice mill will be shut off from
the highway by the fence once it is finished. He therefore appealed to his
compadre, the deceased Rubia, to stop what they were doing and to talk
things over with him. But deceased Fleischer answered angrily with
'gademit' and directed his men to proceed with what they were doing.
The actuation of deceased Fleischer in angrily ordering the continuance of
the fencing would have resulted in the further chiselling of the walls of
appellant's house as well as the closure of the access to and from his house
and rice mill-which were not only imminent but were actually in progress.
There is no question, therefore, that there was aggression on the part of
the victims: Fleischer was ordering, and Rubia was actually participating in
21
the fencing. This was indeed aggression, not on the person of appellant,
but on his property rights.
The question is, was the aggression unlawful or lawful? Did the victims
have a right to fence off the contested property, to destroy appellant's
house and to shut off his ingress and egress to his residence and the
highway?
Article 30 of the Civil Code recognizes the right of every owner to enclose
or fence his land or tenements.
However, at the time of the incident on August 22, 1968, Civil Case no. 755
for annulment of the order of award to Fleischer and Company was still
pending in the Court of First Instance of Cotabato. The parties could not
have known that the case would be dismissed over a year after the
incident on August 22, 1968, as it was dismissed on January 23, 1970 on
ground of res judicata, in view of the dismissal in 1965 (by the Court of
Appeals) of Civil Case No. 240 filed in 1950 for the annulment of the award
to the company, between the same parties, which the company won by
virtue of the compromise agreement in spite of the subsequent
repudiation by the settlers of said compromise agreement; and that such
1970 dismissal also carried the dismissal of the supplemental petition filed
by the Republic of the Philippines on November 28, 1968 to annul the sales
patent and to cancel the corresponding certificate of title issued to the
company, on the ground that the Director of Lands had no authority to
conduct the sale due to his failure to comply with the mandatory
requirements for publication. The dismissal of the government's
supplemental petition was premised on the ground that after its filing on
November 28, 1968, nothing more was done by the petitioner Republic of
the Philippines except to adopt all the evidence and arguments of plaintiffs
with whom it joined as parties-plaintiffs.
Hence, it is reasonable to believe that appellant was indeed hoping for a
favorable judgment in Civil Case No. 755 filed on November 14, 1966 and
his execution of the contract of lease on February 21, 1967 was just to
avoid trouble. This was explained by him during cross-examination on
January 21, 1970, thus:
It happened this way: we talked it over with my Mrs. that we better rent
the place because even though we do not know who really owns this
portion to avoid trouble. To avoid trouble we better pay while waiting for
the case because at that time, it was not known who is the right owner of
the place. So we decided until things will clear up and determine who is
really the owner, we decided to pay rentals (p. 169, t.s.n., Vol.6).
In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2,
Defense Exhibits) within which to vacate the land. He should have allowed
appellant the peaceful enjoyment of his properties up to that time, instead
of chiselling the walls of his house and closing appellant's entrance and exit
to the highway.
The following provisions of the Civil Code of the Philippines are in point:
Art. 536. In no case may possession be acquired through force or
intimidation as long as there is a possessor who objects thereto. He who
believes that he has an action or a right to deprive another of the holding
of a thing must invoke the aid of the competent court, if the holder should
refuse to deliver the thing.
Art. 539. Every possessor has a right to be respected in his possession; and
should he be disturbed therein he shall be protected in or restored to said
possession by the means established by the laws and the Rules of Court
(Articles 536 and 539, Civil Code of the Philippines).
Conformably to the foregoing provisions, the deceased had no right to
destroy or cause damage to appellant's house, nor to close his accessibility
to the highway while he was pleading with them to stop and talk things
over with him. The assault on appellant's property, therefore, amounts to
unlawful aggression as contemplated by law.
Illegal aggression is equivalent to assault or at least threatened assault of
immediate and imminent kind (People vs. Encomiendas, 46 SCRA 522).
In the case at bar, there was an actual physical invasion of appellant's
property which he had the right to resist, pursuant to Art. 429 of the Civil
Code of the Philippines which provides:
22
Art. 429. The owner or lawful possessor of a thing has the right to exclude
any person from the enjoyment and disposal thereof. For this purpose, he
may use such force as may be reasonably necessary to repel or prevent an
actual or threatened unlawful physical invasion or usurpation of his
property (Emphasis supplied).
The reasonableness of the resistance is also a requirement of the justifying
circumstance of self-defense or defense of one's rights under paragraph 1
of Article 11, Revised Penal Code. When the appellant fired his shotgun
from his window, killing his two victims, his resistance was
disproportionate to the attack.
WE find, however, that the third element of defense of property is present,
i.e., lack of sufficient provocation on the part of appellant who was
defending his property. As a matter of fact, there was no provocation at all
on his part, since he was asleep at first and was only awakened by the
noise produced by the victims and their laborers. His plea for the deceased
and their men to stop and talk things over with him was no provocation at
all.
Be that as it may, appellant's act in killing the deceased was not justifiable,
since not all the elements for justification are present. He should therefore
be held responsible for the death of his victims, but he could be credited
with the special mitigating circumstance of incomplete defense, pursuant
to paragraph 6, Article 13 of the Revised Penal Code.
The crime committed is homicide on two counts. The qualifying
circumstance of treachery cannot be appreciated in this case because of
the presence of provocation on the part of the deceased. As WE held
earlier in People vs. Manlapaz (55 SCRA 598), the element of a sudden
unprovoked attack is therefore lacking.
Moreover, in order to appreciate alevosia, "it must clearly appear that the
method of assault adopted by the aggressor was deliberately chosen with
a special view to the accomplishment of the act without risk to the
assailant from any defense that the party assailed might have made. This
cannot be said of a situation where the slayer acted instantaneously ..."
(People vs. Cañete, 44 Phil. 481).
WE likewise find the aggravating (qualifying) circumstance of evident
premeditation not sufficiently established. The only evidence presented to
prove this circumstance was the testimony of Crisanto Ibañez, 37 years old,
married, resident of Maitum, South Cotabato, and a laborer of Fleischer
and Company, which may be summarized as follows:
On August 20, 1968 (two days before the incident) at about 7:00 A.M., he
was drying corn near the house of Mr. and Mrs. Mamerto Narvaez at the
crossing, Maitum, South Cotabato, when the accused and his wife talked to
him. Mrs. Narvaez asked him to help them, as he was working in the
hacienda. She further told him that if they fenced their house, there is a
head that will be broken. Mamerto Narvaez added 'Noy, it is better that
you will tell Mr. Fleischer because there will be nobody who will break his
head but I will be the one.' He relayed this to Mr. Flaviano Rubia, but the
latter told him not to believe as they were only Idle threats designed to get
him out of the hacienda (pp. 297-303, t.s.n., Vol. 2).
This single evidence is not sufficient to warrant appreciation of the
aggravating circumstance of evident premeditation. As WE have
consistently held, there must be "direct evidence of the planning or
preparation to kill the victim, .... it is not enough that premeditation be
suspected or surmised, but the criminal intent must be evidenced by
notorious outward acts evincing the determination to commit the crime"
(People vs. Ordioles, 42 SCRA 238). Besides, there must be a "showing"
that the accused premeditated the killing; that the culprit clung to their
(his) premeditated act; and that there was sufficient interval between the
premeditation and the execution of the crime to allow them (him) to
reflect upon the consequences of the act" (People vs. Gida, 102 SCRA 70).
Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the
deceased Davis Fleischer, neutralizes his credibility.
Since in the case at bar, there was no direct evidence of the planning or
preparation to kill the victims nor that the accused premeditated the
23
killing, and clung to his premeditated act, the trial court's conclusion as to
the presence of such circumstance may not be endorsed.
Evident premeditation is further negated by appellant pleading with the
victims to stop the fencing and destroying his house and to talk things over
just before the shooting.
But the trial court has properly appreciated the presence of the mitigating
circumstance of voluntary surrender, it appearing that appellant
surrendered to the authorities soon after the shooting.
Likewise, We find that passion and obfuscation attended the commission
of the crime. The appellant awoke to find his house being damaged and its
accessibility to the highway as well as of his rice mill bodega being closed.
Not only was his house being unlawfully violated; his business was also in
danger of closing down for lack of access to the highway. These
circumstances, coming so near to the time when his first house was
dismantled, thus forcing him to transfer to his only remaining house, must
have so aggravated his obfuscation that he lost momentarily all reason
causing him to reach for his shotgun and fire at the victims in defense of
his rights. Considering the antecedent facts of this case, where appellant
had thirty years earlier migrated to this so-called "land of promise" with
dreams and hopes of relative prosperity and tranquility, only to find his
castle crumbling at the hands of the deceased, his dispassionate plea going
unheeded-all these could be too much for any man-he should be credited
with this mitigating circumstance.
Consequently, appellant is guilty of two crimes of homicide only, the killing
not being attended by any qualifying nor aggravating circumstance, but
extenuated by the privileged mitigating circumstance of incomplete
defense-in view of the presence of unlawful aggression on the part of the
victims and lack of sufficient provocation on the part of the appellant-and
by two generic mitigating circumstance of voluntary surrender and passion
and obfuscation.
Article 249 of the Revised Penal Code prescribes the penalty for homicide
as reclusion temporal. Pursuant to Article 69, supra, the penalty lower by
one or two degrees shall be imposed if the deed is not wholly excusable by
reason of the lack of some of the conditions required to justify the same.
Considering that the majority of the requirements for defense of property
are present, the penalty may be lowered by two degrees, i.e., to prision
correccional And under paragraph 5 of Article 64, the same may further be
reduced by one degree, i.e., arresto mayor, because of the presence of two
mitigating circumstances and no aggravating circumstance.
The civil liability of the appellant should be modified. In the case of Zulueta
vs. Pan American World Airways (43 SCRA 397), the award for moral
damages was reduced because the plaintiff contributed to the gravity of
defendant's reaction. In the case at bar, the victims not only contributed
but they actually provoked the attack by damaging appellant's properties
and business. Considering appellant's standing in the community, being
married to a municipal councilor, the victims' actuations were apparently
designed to humiliate him and destroy his reputation. The records disclose
that his wife, councilor Feliza Narvaez, was also charged in these two cases
and detained without bail despite the absence of evidence linking her to
the killings. She was dropped as a defendant only upon motion of the
prosecution dated October 31, 1968. (p. 14, CFI rec. of Crim. Case No.
1816), but acted upon on November 4, 1968 (p. 58, CFI rec. of Criminal
Case No. 1815).
Moreover, these cases arose out of an inordinate desire on the part of
Fleischer and Company, despite its extensive landholdings in a Central
Visayan province, to extend its accumulation of public lands to the
resettlement areas of Cotabato. Since it had the capability-financial and
otherwise-to carry out its land accumulation scheme, the lowly settlers,
who uprooted their families from their native soil in Luzon to take
advantage of the government's resettlement program, but had no
sufficient means to fight the big landowners, were the ones prejudiced.
Thus, the moral and material suffering of appellant and his family deserves
leniency as to his civil liability.
Furthermore, Article 39 of the Revised Penal Code requires a person
convicted of prision correccional or arrests mayor and fine who has no
property with which to meet his civil liabilities to serve a subsidiary
imprisonment at the rate of one (1) day for each P 2.50. However, the
amendment introduced by Republic Act No. 5465 on April 21, 1969 made
24
the provisions of Art. 39 applicable to fines only and not to reparation of
the damage caused, indemnification of consequential damages and costs
of proceedings. Considering that Republic Act 5465 is favorable to the
accused who is not a habitual delinquent, it may be given retroactive effect
pursuant to Article 22 of the Revised Penal Code.
WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT
OF ONLY TWO (2) HOMICIDES, MITIGATED BY THE PRIVILEGED
EXTENUATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL AS
BY TWO (2) GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY
SURRENDER AND OBFUSCATION, WITHOUT ANY AGGRAVATING
CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN
IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO
INDEMNIFY EACH GROUP OF HEIRS OF DAVIS FLEISCHER AND OF
FLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS,
WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY AWARD FOR
MORAL DAMAGES AND ATTORNEY'S FEES.
CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR
ALMOST FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER
ON AUGUST 22,1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO
COSTS.
SO ORDERED.
Fernando, C.J., Teehankee, Concepcion Jr., Guerrero, De Castro, Melencio-
Herrera, Escolin Vasquez and Relova, JJ., concur.
Aquino, J., is on leave.
Plana, J., in the result.
Separate Opinions

ABAD SANTOS, J., dissenting:
I dissent. The self-defense of the Revised Penal Code refers to unlawful
aggression on persons, not property Plana, J., in the result.
GUTIERREZ, JR., J., dissenting:
While I agree with the order to release the appellant, I am constrained to
dissent in part. It is true that Art. 429, Civil Code of the Philippines,
provides that the owner or legal possessor of a thing may use such force as
may be reasonably necessary to repel or prevent an actual or threatened
unlawful physical invasion or usurpation of his property. It seems to me,
however, that an attack on the person defending his property is an
indispensable element where an accused pleads self-defense but what is
basically defended is only property.
Defense of property is not of such importance as the right to life and
defense of property can only be invoked when it is coupled with some
form of attack on the person of one entrusted with said property. The
defense of property, whether complete or incomplete, to be available in
prosecutions for murder or homicide must be coupled with an attack by
the one getting the property on the person defending it.
In the case now before Us, there is absolutely no evidence that an attack
was attempted, much less made upon the person of appellant. The mere
utterance "No, gademit proceed, go ahead" is not the unlawful aggression
which entitles appellant to the pela of self-defense. I agree with the
majority opinion that the crime is homicide but without any privileged
mitigating circumstance.
Therefore, since the appellant is guilty beyond reasonable doubt of two (2)
homicides, mitigated by the two generic mitigating circumstances of
voluntary surrender and obfuscation, without any aggravating
circumstance, maximum the sentence the appellant should have served
25
was prision mayor plus the indemnification to each group of heirs of Davis
Fleischer and of Flamiano Rubia of the sum of Four Thousand (P4,000.00)
Pesos, without subsidiary imprisonment, but without any award for moral
damages and attorney's fees.
Considering that appellant has been under detention for almost fourteen
(14) years now since August 22, 1968, he has served the penalty and
should be released.
Separate Opinions
ABAD SANTOS, J., dissenting:
I dissent. The self-defense of the Revised Penal Code refers to unlawful
aggression on persons, not property Plana, J., in the result.
GUTIERREZ, JR., J., dissenting:
While I agree with the order to release the appellant, I am constrained to
dissent in part. It is true that Art. 429, Civil Code of the Philippines,
provides that the owner or legal possessor of a thing may use such force as
may be reasonably necessary to repel or prevent an actual or threatened
unlawful physical invasion or usurpation of his property. It seems to me,
however, that an attack on the person defending his property is an
indispensable element where an accused pleads self-defense but what is
basically defended is only property.
Defense of property is not of such importance as the right to life and
defense of property can only be invoked when it is coupled with some
form of attack on the person of one entrusted with said property. The
defense of property, whether complete or incomplete, to be available in
prosecutions for murder or homicide must be coupled with an attack by
the one getting the property on the person defending it.
In the case now before Us, there is absolutely no evidence that an attack
was attempted, much less made upon the person of appellant. The mere
utterance "No, gademit proceed, go ahead" is not the unlawful aggression
which entitles appellant to the pela of self-defense. I agree with the
majority opinion that the crime is homicide but without any privileged
mitigating circumstance.
Therefore, since the appellant is guilty beyond reasonable doubt of two (2)
homicides, mitigated by the two generic mitigating circumstances of
voluntary surrender and obfuscation, without any aggravating
circumstance, maximum the sentence the appellant should have served
was prision mayor plus the indemnification to each group of heirs of Davis
Fleischer and of Flamiano Rubia of the sum of Four Thousand (P4,000.00)
Pesos, without subsidiary imprisonment, but without any award for moral
damages and attorney's fees.
Considering that appellant has been under detention for almost fourteen
(14) years now since August 22, 1968, he has served the penalty and
should be released.
G.R. No. L-7037 March 15, 1912
THE UNITED STATES, plaintiff-appellee,
vs.
JOSE LAUREL, ET AL., defendants-appellants.
O'Brien and DeWitt for appellants.
Attorney-General Villamor for appellee.
TORRES, J.:
This appeal was raised by the four above-named defendants, from the
judgment of conviction, found on page 117 of the record, rendered by the
Honorable Mariano Cui.
The facts in this case are as follows: On the night of December 26, 1909,
while the girl Concepcion Lat was walking along the street, on her way
26
from the house of Exequiel Castillo, situated in the pueblo of Tanauan,
Province of Batangas, accompanied by several young people, she was
approached by Jose Laurel who suddenly kissed her and immediately
thereafter ran off in the direction of his house, pursued by the girl's
companions, among whom was the master of the house above mentioned,
Exequiel Castillo; but they did not overtake him.
On the second night after the occurrence just related, that is, on the 28th,
while Exequiel Castillo and Jose Laurel, together with Domingo Panganiban
and several others of the defendants, were at an entertainment held on an
upper floor of the parochial building of the said pueblo and attended by
many residents of the town, it is alleged that the said Castillo and Laurel
were invited by Panganiban, the former through his brother, Roque
Castillo, and the latter, directly, to come out into the yard, which they did,
accompanied by Panganiban and the other defendants referred to. After
the exchange of a few words and explanations concerning the kiss given
the girl Lat on the night of the 26th of that month, a quarrel arose between
the said Jose Laurel and Exequiel Castillo, in which Domingo Panganiban,
Vicente Garcia, and Conrado Laurel took part, and as a result of the quarrel
Exequiel Castillo was seriously wounded. He succeeded in reaching a drug
store near by where he received first aid treatment; Jose Laurel also
received two slight wounds on the head.
Dr. Sixto Rojas, who began to render medical assistance to Exequiel Castillo
early in the morning of the following day, stated that his examination of
the latter's injuries disclosed a wound in the left side of the chest, on a
level with the fourth rib, from 3 to 4 centimeters in depth, reaching into
the lung; another wound in the back of the left arm and in the conduit
through which the ulnar nerve passes, from 10 to 11 centimeters in length,
penetrating to the bone and injuring the nerves and arteries of the said
region, especially the ulnar nerve, which was served; a contusion on the
right temple, accompanied by ecchymosis and hemorrhage of the tissues
of the eye; and, finally, another contusion in the back of the abdomen near
the left cavity, which by reaction injured the stomach and the right cavity.
According to the opinion of the physician above named, the wound in the
left side of the breast was serious on account of its having fully penetrated
the lungs and caused the patient to spit blood, as noticed the day after he
was wounded, and there must have been a hemmorhage of the lung, an
important vital vascular organ; by reason of this hemorrhage or general
infection the patient would have died, had it not been for the timely
medical aid rendered him. The wound on the back of the left arm was also
of a serious nature, as the ulnar nerve was cut, with the result that the title
and ring fingers of the patient's left hand have been rendered permanently
useless. With respect to the contusion on the right temple, it could have
been serious, according to the kind of blows received, and the contusion
on the back of the abdomen was diagnosed as serious also, on account of
its having caused an injury as a result of which the wounded man
complained of severe pains in the stomach and left spleen. The said
physician stated that he had attended the patient fourteen consecutive
days; that the contusion on the abdomen was cured in four or five days,
and that on the right temple in ten or twelve days, although this latter
injury was accompanied by a considerable ecchymosis which might not
disappear for about three months, the time required for the absorption of
the coagulated blood; that the stitches in the wound of the left arm were
taken out after twelve days, and when witness ceased to attend the
patient, this wound was healing up and for its complete cure would require
eight or more days' time; and that the wound in the breast, for the reason
that it had already healed internally and the danger of infection had
disappeared, was healing, although still more time would be required for
its complete cure, the patient being able to continue the treatment
himself, which in fact he did.
In view of the strikingly contradictory evidence adduced by the
prosecution and by the defense, and in order to decide what were the true
facts of the case we shall proceed to recite the testimony of the party who
was seriously wounded and of his witnesses, and afterwards, that of his
alleged assailants and of their witnesses, in order to determine the nature
of the crime, the circumstances that concurred therein and, in turn, the
responsibility of the criminal or criminals.
Exequiel Castillo testified that while he, together with Primitivo Gonzalez,
was in the hall of the parochial building of Tanauan, attending an
entertainment on the night of December 28, 1909, he was approached by
his brother, Roque Castillo, who told him, on the part of Domingo
Panganiban, that Jose Laurel desired to speak with him and was awaiting
him on the ground floor of the said building, to give him an explanation
27
with regard to his (Laurel's) having kissed Concepcion Lat on the night of
the 26th in the street and in the presence of the witness and other young
people; that the witness, Exequiel Castillo, therefore, left the parochial
building, accompanied by his brother Roque and Primitivo Gonzalez, and
met Sofronio Velasco, Gaudencio Garcia, and Alfonso Torres, at the street
door; that after he had waited there for half an hour, Jose laurel, Conrado
Laurel, Vicente Garcia, Jose Garcia, and Domingo Panganiban, likewise
came down out of the building and Jose Laurel approached him and
immediately took him aside, away from the door of the building and the
others; that Laurel then said to him that, before making any explanations
relative to the said offense against the girl Concepcion Lat, he would ask
him whether it was true that he (the witness, Castillo) had in his possession
some letters addressed by Laurel to the said girl, to which the witness
replied that as a gentleman he was not obliged to answer the question;
that thereupon Jose Laurel suddenly struck him a blow in the left side of
the breast with a knife, whereupon the witness, feeling that he was
wounded, struck in turn with the cane he was carrying at his assailant, who
dodged and immediately started to run; thereupon witness received
another knife thrust in the left arm followed by a blow in the left side from
a fist and witness, upon turning, saw Vicente Garcia and Domingo
Panganiban in the act of again assaulting him; just then he was struck a
blow with a cane on his right temple and, on turning, saw behind him
Conrado Laurel carrying a stick, and just at the moment Primitivo Gonzalez
and several policemen approached him calling of peace; his assailants then
left him and witness went to the neighboring drug store where he received
first aid treatment. Witness further testified that he had been courting the
girl Concepcion Lat for a month; that, because his sweetheart had been
kissed by Jose Laurel, he felt a little resentment against the latter, and that
since then he had no opportunity to speak with his assailant until the said
night of the attack.
Roque Castillo, a witness for the prosecution, testified that, at the request
of Domingo Panganiban, he had suggested to his brother, Exequiel Castillo,
that the latter should go down to the door of the ground floor of the
parochial building, where Jose Laurel was waiting for him, so that the latter
might make explanations to him with regard to what had taken place on
the night prior to the 26th of December; that Exequiel, who was in the hall
beside Primitivo Gonzalez, immediately upon receiving the notice sent him
in Laurel's name, got up and went down with Gonzalez and the witness,
though the latter remained at the foot of the stairs in conversation with
Virginio de Villa, whom he found there; that, after a little while, witness
saw Jose Laurel, Jose Garcia, Domingo Panganiban, Vicente Garcia, and
Conrado Laurel come down from the said building, and, on observing
something bulging from the back of the latter's waist he asked him what
made that bulge, to which Laurel replied that it meant "peace;" witness
thereupon said to him that if he really desired "peace," as witness also did,
he might deliver to the latter the revolver he was carrying, and to prove
that he would not make bad use of the weapon, Laurel might take the
cartridges out and deliver the revolver to witness. This he did, the witness
received the revolver without the cartridges, and his fears thus allayed, the
witness returned to the upper floor to the entertainment; but that, at the
end of about half an hour, he heard a hubbub among the people who said
that there was a quarrel, and witness, suspecting that his brother Exequiel
had met with some treachery, ran down out of the house; on reaching the
ground floor he met Primitivo Gonzalez, who had blood stains on his arms;
that Gonzalez then informed him that Exequiel was badly wounded; that
he found his said brother in Arsenio Gonzalez' drug store; and that his
brother was no longer able to speak but made known that he wanted to be
shriven. Witness added that on that same night he delivered the revolver
to his father, Sixto Castillo, who corroborated this statement.
The other witness, Primitivo Gonzalez, corroborated the testimony given
by the preceding witness, Roque Castillo, and testified that, while he was
that night attending the entertainment at the parochial building of
Tanauan, in company with Exequiel Castillo, the latter received notice from
his (Castillo's) brother, through Domingo Panganiban, to the effect that
Jose Laurel desired to speak with him concerning what occurred on the
night of December 26; that thereupon Exequiel, the latter's brother, Roque
and the witness all went down out of the house, though Roque stopped on
the main stairway while witness and Exequiel went on until they came to
the main door of the ground floor where they met Alfonso Torres and
Gaudencio Garcia; that, after a while, Jose Laurel, Conrado Laurel, Vicente
Garcia, Jose Garcia Aquino, and Domingo Panganiban came up; that when
Jose Laurel met Exequiel Castillo he caught the latter by the hand and the
two separated themselves from the rest and retired to a certain distance,
although Vicente and Jose Garcia, Conrado Laurel, and Alfonso Torres
28
placed themselves the nearest to the first two, Jose Laurel and Exequiel
Castillo; that at this juncture witness, who was about 6 or 7 meters away
from the two men last named, observed that Jose Laurel, who had his
hand in his pocket while he was talking with Exequiel, immediately drew
out a handkerchief and therewith struck Exequiel a blow on the breast;
that the latter forthwith hit his assailant, Laurel, with a cane which he was
carrying; that Laurel, upon receiving a blow, stepped back, while Exequiel
pursued him and continued to strike him; that thereupon Vicente Garcia
stabbed Exequiel, who had his back turned toward him and Conrado Laurel
struck the said Exequiel a blow on the head with a cane; that when witness
approached the spot where the fight was going on, several policemen
appeared there and called out for peace; and that he did not notice what
Jose Garcia Aquino and Alfonso Torres did.
Lucio Villa, a policeman, testified that on the hearing the commotion, he
went to the scene of it and met Jose Laurel who was coming away, walking
at an ordinary gait and carrying a bloody pocketknife in his hand; that
witness therefore arrested him, took the weapon from him and conducted
him to the municipal building; and that the sergeant and another
policemen, the latter being the witness's companion, took charge of the
other disturbers.
The defendant, Jose Laurel, testified that early in the evening of the 28th
of December he went to the parochial building, in company with Diosdado
Siansance and several young people, among them his cousin Baltazara
Rocamora, for the purpose of attending an entertainment which was to be
held there; that, while sitting in the front row of chairs, for there were as
yet but few people, and while the director of the college was delivering a
discourse, he was approached by Domingo Panganiban who told him that
Exequiel Castillo wished to speak with him, to which witness replied that
he should wait a while and Panganiban thereupon went away; that, a short
time afterwards, he was also approached by Alfredo Yatco who gave him a
similar message, and soon afterwards Felipe Almeda came up and told him
that Exequiel Castillo was waiting for him on the ground floor of the house;
this being the third summons addressed to him, he arose and went down
to ascertain what the said Exequiel wanted; that, when he stepped outside
of the street door, he saw several persons there, among them, Exequiel
Castillo; the latter, upon seeing witness, suggested that they separate from
the rest and talk in a place a short distance away; that thereupon Exequiel
asked witness why he kissed his, Exequiel's sweetheart, and on Laurel's
replying that he had done so because she was very fickle and prodigal of
her use of the word "yes" on all occasions, Exequiel said to him that he
ought not to act that way and immediately struck him a blow on the head
with a cane or club, which assault made witness dizzy and caused him to
fall to the ground in a sitting posture; that, as witness feared that his
aggressor would continue to assault him, he took hold of the pocketknife
which he was carrying in his pocket and therewith defended himself; that
he did not know whether he wounded Exequiel with the said weapon, for,
when witness arose, he noticed that he, the latter, had a wound in the
right parietal region and a contusion in the left; that witness was
thereupon arrested by the policemen, Lucio Villa, and was unable to state
whether he dropped the pocketknife he carried or whether it was picked
up by the said officer; that it took more than a week to cure his injuries;
that he had been courting the girl Concepcion Lat for a year, but that in
October, 1909, his courtship ended and Exequiel Castillo then began to
court her; and that, as witness believed that the said girl would not marry
him, nor Exequiel, he kissed her in the street, on the night of December 26,
1909, and immediately thereafter ran toward his house.
Baltazara Rocamora stated that, while she was with Jose Laurel on the
night of December 28, 1909, attending an entertainment in the parochial
building of Tanauan, the latter was successively called by Domingo
Panganiban, Alfredo Yatco, and Felipe Almeda, the last named saying: "Go
along, old fellow; you are friends now." Casimiro Tapia testified that, on
the morning following the alleged crime, he visited Jose Laurel in the jail,
and found him suffering from the bruises or contusions; that to cure them,
he gave him one application of tincture of arnica to apply to his injuries,
which were not serious.
Benito Valencia also testified that, while the entertainment, he saw
Domingo Panganiban approach Jose Laurel and tell him that Exequiel
Castillo was waiting for him downstairs to talk to him; that Laurel refused
to go, as he wished to be present at the entertainment, and that
Panganiban then went away; that, soon afterwards, witness also went
down, intending to return home, and, when he had been on the ground
floor of the parochial building for fifteen minutes, he saw, among the many
29
people who were there, Exequiel Castillo and Jose Laurel who were talking
apart from a group of persons among whom he recognized Roque Castillo,
Primitivo Gonzalez and Conrado Laurel; that soon after this, witness saw
Exequiel Castillo strike Jose Laurel a blow with a cane and the latter
stagger and start to run, pursued by the former, the aggressor; that at this
juncture, Conrado Laurel approached Exequiel and, in turn, struck him
from behind; and that the police presently intervened in the fight, and
witness left the place where it occurred.
The defendant Domingo Panganiban testified that, while he was at the
entertainment that night, he noticed that it threatened to rain, and
therefore left the house to get his horse, which he had left tied to a post
near the door; that, on reaching the ground floor, the brothers Roque and
Exequiel Castillo, asked him to do them the favor to call Jose Laurel,
because they wished to talk to the latter, witness noticing that the said
brothers were then provided with canes; that he called Jose Laurel, but the
latter said that he did not wish to go down, because he was listening to the
discourse which was then being delivered, and witness therefore went
down to report the answer to the said brothers; that while he was at the
door of the parochial building waiting for the drizzle to cease, Jose Laurel
and Felipe Almeda came up to where he was, and just then Exequiel
Castillo approached the former, Laurel, and they both drew aside, about 2
brazas away, to talk; that soon afterwards, witness saw Exequiel Castillo
deal Jose Laurel two blows in succession and the latter stagger and start to
run, pursued by his assailant; the latter was met by several persons who
crowded about in an aimless manner, among whom witness recognized
Roque Castillo and Conrado Laurel; and that he did not see Primitivo
Gonzalez nor Gaudencio Garcia at the place where the fight occurred,
although he remained where he was until a policeman was called.
Conrado Laurel, a cousin of Jose Laurel, testified that, on the night of
December 28, 1909, he was in the parochial building for the purpose of
attending the entertainment; that he was then carrying a revolver, which
had neither cartridges nor firing pin, for the purpose of returning it to its
owner, who was a Constabulary telegraph operator on duty in the pueblo
of Tanauan; that the latter, having been informed by a gunsmith that the
said revolver could not be fixed, requested witness, when they met each
other in the cockpit the previous afternoon, to return the weapon to him
during the entertainment; that, on leaving the said building to retire to his
house and change his clothes, he met Roque Castillo, his cousin and
confidential friend, on the ground floor of the parochial building or
convent and the latter, seeing that witness was carrying a revolver, insisted
on borrowing it, notwithstanding that witness told him that it was
unserviceable; that, after he had changed his clothes, he left his house to
return to the parochial building, and near the main door of said building he
found Exequiel Castillo and Jose Laurel talking by themselves; that a few
moment afterwards, he saw Exequiel strike Jose two blows with a cane
that nearly caused him to fall at full length on the ground, and that Jose
immediately got up and started to run, pursued by his assailant, Exequiel;
that witness, on seeing this, gave the latter in turn a blow on the head with
a cane, to stop him from pursuing Jose, witness fearing that the pursuer,
should he overtake the pursued, would kill him; that, after witness struck
Exequiel Castillo with the cane, the police intervened and arrested them;
and that, among those arrested, he saw Panganiban and Vicente Garcia,
and, at the place of the disturbance, Roque Castillo and Primitivo Gonzalez.
Vicente Garcia denied having taken part in the fight. He testified that he
also was attending the entertainment and, feeling warm, went down out
of the parochial building; that, upon so doing, he saw Domingo Panganiban
and Jose Laurel, but was not present at the fight, and only observed, on
leaving the building, that there was a commotion; then he heard a
policeman had arrested Jose Laurel.
Well-written briefs were filed in first instance, both by the prosecution and
by the defense; but, notwithstanding the large number of persons who
must have been eyewitnesses to what occurred, it is certain that the
prosecution was only able to present the witness, Primitivo Gonzalez, a
relative of Exequiel Castillo, to testify as to how and by whom the assault
was begun.
Each one of the combatants, Exequiel Castillo and Jose Laurel accused the
other of having commenced the assault. Castillo testified that Laurel, after
the exchange of few words between them, suddenly and without warning
stabbed him with a knife, while Laurel swore that, after a short
conversation Castillo struck him two blows with a cane, on which account,
in order to defend himself, he seized a pocketknife he carried in his pocket.
30
In view, therefore, of these manifest contradictions, and in order to
determine the liability of the defendant, Jose Laurel, who, it is proved,
inflicted the serious wound on Exequiel Castillo, it is necessary to decide
which of the two was the assailant.
Taking for granted that Jose Laurel did actually kiss Concepcion Lat in the
street and in the presence of Exequiel Castillo, the girl's suitor, and of
others who were accompanying her, the first query that naturally arises in
the examination of the evidence and the circumstances connected with
the occurrence, is: Who provoked the encounter between Laurel and
Castillo, and the interview between the same, and who invited the other,
on the night of December 28, 1909, to come down from the parochial
building of Tanauan, to the lower floor and outside the entrance of the
same? Even on this concrete point the evidence is contradictory, for, while
the witnesses of Exequiel Castillo swore that the latter was invited by Jose
Laurel, those of the latter testified, in turn, that Laurel was invited three
consecutive times by three different messengers in the name and on the
part of the said Castillo.
In the presence of this marked contradiction, and being compelled to
inquire into the truth of the matter, we are forced to think that the person
who would consider himself aggrieved at the kiss given the girl Concepcion
Lat, in the street and in the presence of several witnesses, would
undoubtedly be Exequiel Castillo, the suitor of the girl, and it would appear
to be a reasonable conclusion that he himself, highly offended at the
boldness of Jose Laurel, was the person who wished to demand
explanation of the offense.
Upon this premise, and having weighed and considered as a whole the
testimony, circumstantial evidence, and other merits of the present case,
the conviction is acquired, by the force of probability, that the invitation,
given through the medium of several individuals, came from the man who
was offended by the incident of the kiss, and that it was the perpetrator of
the offense who was invited to come down from the parochial building to
the ground floor thereof to make explanations regarding the insult to the
girl Lat, the real suitor of whom was at the time the said Exequiel Castillo.
All this is not mere conjecture; it is logically derived from the above related
facts.

Both Jose and Exequiel were attending the entertainment that night in the
upper story of the parochial building. Exequiel was the first who went
below, with his cousin, Primitivo Gonzalez, knowing the Laurel remained in
the hall above, and he it was who waited for nearly half an hour on the
ground floor of the said building for the said Jose Laurel to come down.
The latter was notified three times, and successively, in the name and on
the part of Exequiel Castillo, first by Domingo Panganiban, then by Alfredo
Yatco and finally by Felipe Almeda--three summonses which were
necessary before Jose Laurel could be induced, after the lapse of nearly
half an hour, to come down. Meanwhile, for that space of time, Exequiel
Castillo was awaiting him, undoubtedly for the purpose of demanding
explanations concerning the offensive act committed against his
sweetheart. The natural course and the rigorous logic of the facts can not
be arbitrarily be rejected, unless it be shown that other entirely anomalous
facts occurred.
If, in the natural order of things, the person who was deeply offended by
the insult was the one who believed he had a right to demand explanations
of the perpetrator of that insult, it is quite probable that the aggrieved
party was the one who, through the instrumentality of several persons,
invited the insulter to come down from the upper story of the parochial
building, where he was, and make the explanations which he believed he
had a right to exact; and if this be so, Exequiel Castillo, seriously affected
and offended by the insult to his sweetheart, Concepcion Lat, must be held
to be the one who brought about the encounter gave the invitation and
provoked the occurrence, as shown by his conduct in immediately going
down to the entrance door of the said building and in resignedly waiting,
for half an hour, for Jose Laurel to come down.
Moreover, if the latter had provoked the encounter or interview had on
the ground floor of the building, it is not understood why he delayed in
going down, nor why it became necessary to call him three times, in such
manner that Exequiel Castillo had to wait for him below for half an hour,
when it is natural and logical to suppose that the provoking party or the
one interested in receiving explanations would be precisely the one who
would have hastened to be in waiting at the place of the appointment; he
31
would not have been slow or indisposed to go down, as was the case with
Jose Laurel.
If, as is true, the latter was the one who insulted the girl Concepcion Lat —
an insult which must deeply have affected the mind of Exequiel Castillo,
the girl's suitor at the time — it is not possible to conceive, as claimed by
the prosecution, how and why it should be Jose Laurel who should seek
explanations from Exequiel Castillo. It was natural and much more likely
that it should have been the latter who had an interest in demanding
explanations from the man who insulted his sweetheart. In view of the
behavior of the men a few moments before the occurrence, we are of the
opinion that Castillo was the first to go down to the entrance door of the
parochial building, knowing that Jose Laurel was in the hall, and,
notwithstanding the state of his mind, he had the patience to wait for the
said Laurel who, it appears, was very reluctant to go down and it was
necessary to call him three times before he finally did so, at the end of half
an hour.
After considering these occurrences which took place before the crime, the
query of course arises as to which of the two was the first to assault the
other, for each lays the blame upon his opponent for the commencement
of the assault. Exequiel Castillo testified that after he had replied to Jose
Laurel that he, the witness, was not obliged to say whether he had in his
possession several letters addressed by laurel to the girl Concepcion Lat,
Laurel immediately stabbed him in the breast with a knife; while Jose
Laurel swore that, upon his answering the question put to him by Castillo
as to why the witness had kissed his sweetheart, saying that it was because
she was very fickle and prodigal of the word "yes" on all occasions,
Exequiel said to him in reply that he ought not to act in that manner, and
immediately struck him a couple of blows on the head with a club,
wherefore, in order to defend himself, he drew the knife he was carrying in
his pocket.
Were the statements made by Exequiel Castillo satisfactorily proven at the
trial, it is unquestionable that Jose Laurel would be liable as the author of
the punishable act under prosecution; but, in view of the antecedents
aforerelated, the conclusions reached from the evidence, and the other
merits of the case, the conclusion is certain that the assault was
commenced by Exequiel Castillo, who struck Jose Laurel two blows with a
cane, slightly injuring him in two places on the head, and the assaulted
man, in self-defense, wounded his assailant with a pocketknife; therefore,
Jose Laurel committed no crime and is exempt from all responsibility, as
the infliction of the wounds attended by the three requisites specified in
paragraph 4, article 8 of the Penal Code.
From the evidence, then, produced at the trial, it is concluded that it was
Exequiel Castillo who, through the mediation of several others, invited
Laurel to come down from the upper story of the parochial building, and
that it was he, therefore, who provoked the affray aforementioned, and,
also, it was he who unlawfully assaulted Jose Laurel, by striking the latter
two blows with a cane inasmuch as it is not likely that after having received
a dangerous wound in the left breast, he would have been able to strike
his alleged assailant two successive blows and much less pursue him. It is
very probable that he received the said wounds after he had assaulted Jose
Laurel with the cane, and Laurel, on his part, in defending himself from the
assault, employed rational means by using the knife that he carried in his
pocket.
For all the foregoing reasons, Jose Laurel must be acquitted and held to be
exempt from responsibility on the ground of self-defense. The case falls
within paragraph 4 of article 8 of the Penal Code, inasmuch as the
defensive act executed by him was attended by the three requisites of
illegal aggression on the part of Exequiel Castillo, there being a lack of
sufficient provocation on the part of Laurel, who, as we have said, did not
provoke the occurrence complained of, nor did he direct that Exequiel
Castillo be invited to come down from the parochial building and arrange
the interview in which Castillo alone was interested, and, finally, because
Laurel, in defending himself with a pocketknife against the assault made
upon him with a cane, which may also be a deadly weapon, employed
reasonable means to prevent or repel the same.
Under the foregoing reasoning, the other accused, Conrado Laurel and
Vicente Garcia, who likewise, were convicted as principals of the crime
under prosecution, are comprised within the provisions of paragraph 5 of
the said article 8 of the Penal Code, which are as follows:
32
He who acts in defense of the person or rights of his spouse, ascendants,
descendants, or legitimate, natural, or adopted brothers or sisters, or of
his relatives by affinity in the same degrees and those by consanguinity
within the fourth civil degree, provided the first and second circumstances
mentioned in the foregoing number are attendant, and provided that in
case the party attacked first gave provocation, the defender took no part
therein.
Conrado Laurel and Vicente Garcia, first cousins of Jose Laurel, as shown in
the trial record to have been proven without contradiction whatsoever, did
not provoke the trouble, nor did they take any part in the invitation
extended to Jose Laurel in the name of and for Exequiel Castillo; in
assisting in the fight between Castillo and Laurel, they acted in defense of
their cousin, Jose Laurel, when they saw that the latter was assaulted,
twice struck and even pursued by the assailant, Castillo; consequently
Conrado Laurel and Vicente Garcia have not transgressed the law and they
are exempt from all responsibility, for all the requisites of paragraph 4 of
the aforecited article attended the acts performed by them, as there was
illegal aggression on the part of the wounded man, Exequiel Castillo,
reasonable necessity of the means employed to prevent or repel the said
aggression on the part of the aforementioned Conrado Laurel and Vicente
Garcia, who acted in defense of their cousin, Jose Laurel, illegally assaulted
by Exequiel Castillo, neither of the said codefendants having provoked the
alleged crime.
With regard to Domingo Panganiban, the only act of which he was accused
by the wounded man, Exequiel Castillo, was that he struck the latter a
blow on the left side with his fist, while Castillo was pursuing Laurel.
Domingo Panganiban denied that he took part in the quarrel and stated
that he kept at a distance from the combatants, until he was arrested by a
policeman. His testimony appears to be corroborated by that of Primitivo
Gonzalez, a witness for the prosecution and relative of Exequiel Castillo,
for Gonzalez positively declared that Panganiban was beside him during
the occurrence of the fight and when the others surrounded the said
Exequiel Castillo; it is, therefore, neither probable nor possible that
Panganiban engaged in the affray, and so he contracted no responsibility
whatever.

Exequiel Castillo's wounds were very serious, but, in view of the fact that
conclusive proof was adduced at the trial, of the attendance of the
requisites prescribed in Nos. 4 and 5 of article 8 of the Penal Code, in favor
of those who inflicted the said wounds, it is proper to apply to this case the
provision contained in the next to the last paragraph of rule 51 of the
provisional law for the application of the said code.
With respect to the classification of the crime we believe that there is no
need for us to concern ourselves therewith in this decision, in view of the
findings of fact and of law made by the court below upon the question of
the liability of the defendants.
By reason, therefore, of all the foregoing, we are of opinion that, with a
reversal of the judgment appealed from, we should acquit, as we do
hereby, the defendants Jose Laurel, Vicente Garcia, Conrado Laurel, and
Domingo Panganiban. They have committed no crime, and we exempt
them from all responsibility. The costs of both instances shall be de oficio,
and the bond given in behalf of the defendants shall immediately be
canceled.
Johnson, Carson, Moreland and Trent, JJ., concur.
G.R. No. L-28451 August 1, 1928
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
NARCISO CABUNGCAL, defendant-appellant.
Esteban del Rosario for appellant.
Attorney-General Jaranilla for appellee.
AVANCEÑA, C.J.:
The appellant, Narciso Cabungcal, was sentenced by the Court of First
Instance of Tayabas for the crime of homicide to fourteen years, eight
months and one day reclusion temporal, with the accessories of the law, to
33
indemnify the heirs of the deceased in the sum of P500 and to pay the
costs of the action.
On March 21, 1926 the appellant invited several persons to a picnic in a
fishery of his property in the barrio of Misua, municipality of Infanta,
Province of Tayabas. They spent the day at said fishery and in the
afternoon returned in two boats, one steered by the appellant and the
other by an old woman named Anastasia Penaojas. Nine persons were in
the boat steered by the appellant, the great majority of whom were
women and among them the appellant's wife and son and a nursing child,
son of a married couple who had also gone in this boat. The deceased Juan
Loquenario was another passenger in this boat. Upon reaching a place of
great depth the deceased rocked the boat which started it to take water,
and the appellant, fearing the boat might capsize, asked the deceased not
to do it. As the deceased paid no attention to this warning and continued
rocking the boat, the appellant struck him on the forehead with an oar.
The deceased fell into the water and was submerged, but a little while
after appeared on the surface having grasped the side of the boat, saying
that he was going to capzise it and started to move it with this end in view,
seeing which the women began to cry, whereupon the appellant struck
him on the neck with the same oar, which submerged the deceased again.
With the movement that the appellant made in giving him the second
blow, the boat upset and then the appellant proceeded to save his
passengers. In the meantime the aged Anastasia Penaojas, who steered
the other boat, and who at that time was about 200 or 300 meters away,
having heard the cries of the wrecked persons, quickened its speed,
repaired to and arrived in time to pick up the passengers who are clinging
to the side of the capsized boat, taking them later to the river bank. The
appellant, after having thus saved his passengers, proceeded to search for
the deceased but was unable to find him and his body was recovered later.
The Attorney-General is of the opinion that the mitigating circumstances
described in the first, third, fourth and seventh paragraphs of article 9 of
the Penal Code are present without any aggravating circumstance, and the
penalty to be imposed on the appellant should be one or two degrees less
than that prescribed by the law.
In view of the facts stated, we are of the opinion that the appellant is
completely exempt from all criminal liability.
Due to the conditions of the river at the point where the deceased started
to rock the boat, if it had capsized the passengers would have run the risk
of losing their lives, the majority of whom were women, especially the
nursing child. The conduct of the deceased in rocking the boat until the
point of it having taken water and his insistence on this action, in spite of
the appellant's warning, gave rise to the belief on the part of the plaintiff
that it would capsize if he did not separate the deceased from the boat in
such a manner as to give him no time to accomplish his purpose. It was
necessary to disable him momentarily. For this purpose the blow given him
by the appellant on the forehead with an oar was the least that could
reasonably have been done. And this consideration militates with greater
weight with respect to the second blow given in his neck with the same
oar, because, then the danger was greater that the boat might upset,
especially as the deceased had expressed his intention to upset it.
In view of all the circumstances of the case, in doing what the appellant did
was in lawful defense of the lives of the passengers of the boat, two of
whom were his wife and child. The recourse of taking the boat to the shore
was not adequate in those circumstances, because that would require
sometime, whereas the deceased might in an instant cause the boat to
capsize without giving time to arrive at the shore.
The appellant having acted in defense of his wife and child and the other
passengers in the boat and the means employed having been reasonably
necessary in this defense, while it was at the cost of the life of the
deceased, he is completely exempt from criminal liability.
Reversing the judgment appealed from, the appellant is acquitted, with the
costs de oficio. So ordered.
Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ.,
concur.
34
G.R. No. L-41674 March 30, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
REMEDIOS DE LA CRUZ, defendant-appellant.
Silvino Lopez de Jesus for appellant.
Office of the Solicitor-General Hilado for appellee.
VICKERS, J.:
This is an appeal from a decision of the Court of First Instance of Nueva
Ecija, finding the defendant guilty of homicide and sentencing her to suffer
not more than fourteen years, eight months and one day of reclusion
temporal and not less than eight years and one day of prision mayor, to
indemnify the heirs of the deceased Francisco Rivera in the sum of P1,000,
and to pay the costs.
Appellant's attorney makes the following assignments of error:
I. El Juzgado a quo, erro al dar absoluto credito a las pruebas de la
acusacion, las que son insuficientes para apoyar una declaracion de
conviccion.
II. El Juzgado a quo erro al declarar que los celos fueron el motivo que
impulso a la acusada al agredir al occiso Francisco Rivera.
III. El Juzgado a quo al declarar increible el testimonio de la acusada en
esta causa.
IV. Y el Juzgado a quo erro al no absolver a la acusada.
It appears from the evidence that on the evening of February 18, 1934,
Francisco Ramos and his wife, Brigida Vistada; his sister, Baltazara Ramos;
and a woman named Consuelo or Natividad Santoyo called at the house of
the defendant and asked her to go with them to a wake in honor of one
Sion, who had died in the house of Maria Inguit. About nine o'clock the
defendant and her friends started home. They were followed about five
minutes later, according to Enrique Bautista, by the deceased Francisco
Rivera, who had been playing cards in the house where the wake was held.
He was accompanied by Enrique Bautista. Rivera and Bautista overtook
defendant's party. When they reached a narrow part of the path, Rivera
went ahead of Bautista. At that time the members of the defendant's party
were walking in single file. Baltazara Ramos was in the lead and the
defendant was the hindmost. She was about two brazas from the person
immediately ahead of her. Francisco Ramos, the only one of defendant's
companions that was called to testify, heard someone cry out "Aruy, Dios
mio". He went back and found that Francisco Rivera had been stabbed
under the right breast. The wounded man was taken to the hospital, where
he died the next afternoon.
Francisco Ramos testified that it took him about two minutes to go back to
the place where Francisco Rivera was. He found and that Enrique Bautista
was with the wounded man, and the defendant had started back towards
the house of mourning. He overtook her. She had a knife in her hand.
When they reached the house of Maria Inguit, Remedios de la Cruz stuck
the knife into a table and said that she stabbed Francisco Rivera because
he embraced her.
The case for the prosecution rests upon the testimony of Enrique Bautista.
According to him the defendant waited on the right side of the path near
some guava trees and stabbed Francisco Rivera with a knife in her right
hand when he arrived in front of her; that the injured man cried "Aruy,
Dios mio", while the defendant turned around and returned to the house
of Maria Inguit, saying "Icao ay malaon na" (hacia tiempo ya). He further
testified that the defendant stabbed the deceased before either of them
had said anything; that the distance between him and the deceased was
about one foot; that he did not see any of the companions of the
defendant after they reached the path and had to walk one behind the
other.
The defendant on the other hand testified that after they had passed a
fork in the trail and reached a narrow part a man suddenly threw his arms
around her from behind, caught hold of her breasts and kissed her, and
seized her in her private parts; that she tried to free herself, but he held
her and tried to throw her down; that when she felt weak and could do
35
nothing more against the strength of the man, she got a knife from her
pocket, opened it, and stabbed him in defense of her honor. She further
testified that the man who attacked her did not say anything; that she
asked him who he was but he did not answer; that when she was assaulted
she cried for help, saying "Madre mia; Dios mio"; that when she was
seized, she was about two brazas behind her nearest companion; that
when she was face to face with her assailant during the struggle she could
scarcely recognize his face in the darkness and could not be sure that it
was Francisco Rivera.
Her testimony as to what occurred is as follows:
P. ¿Y que paso siendo usted la ultima de entre sus compañeros? — R.
Despues de pasar nosotros en una bifurcacion de los caminos cuando
llegabamos en una parte estrecha el occiso subitamente me abrazo por
detras cogiendome los pechos y basandome.
P. ¿Y entonces que hizo usted cuando usted sintio ese abrazo y beso? — R.
todavia me agarro en mi parte genital y en eso yo trataba de desasirme de
el; el me siguio abrazando cogiendome de los pechos y basandome, y yo a
mi vez seguia tratando de desasirme de el insistentemente.
P. ¿Y que sucedio? — R. Cuando yo trataba de desasirma de el, el me siguio
abrazando y yo a mi vez seguia tratandome de desassirme de el y el llego a
agarrarme en la parte genital y trato de lanzarme.
P. ¿Y que hizo usted cuando le trataba de lanzarle a usted el occiso? — R.
Yo procuraba desasirme de el y cuando me quede debilitada y ya no podia
hacer nada contra la fuerza de el yo saque de mo bolsillo un cortaplumas.
P. ¿Y que hizo usted del cortaplumas? — R. Lo abri porque cuando ya no
podia hacer nada y estaba y a debil yo hice lo que debia hacer en defensa
de mi pudor, le apuñale.
She further testified that she was engaged in selling fruit, and that the
fanknife in question was in a pocket of the overcoat she was wearing that
day; that she went off with her friends without having an opportunity of
changing her clothes.

We cannot believe the testimony of Enrique Bautista, because Francisco
Ramos, one of the witnesses for the prosecution, testified that it was a
dark night, and Bautista himself said that he could scarcely see anyone in
the darkness ("Apenas se podia ver a alguien en esa obscuridad."); that he
did not see any of the companions of the defendant.
It appears from the evidence that the deceased had been making love to
the defendant, and also to another girl named Felicisima Sincaban; but the
finding of the trial judge that Francisco Rivera and the defendant were
engaged, that she was madly in love with him and was extremely jealous of
Felicisima Sincaban is not sustained by the evidence of record.
The appellant stabbed the deceased only once, although she retained
possession of the knife, and undoubtedly could have inflicted other
wounds on him if she had desired. In other words she desisted as soon as
he released her.
The evidence shows that an officer of the Constabulary went to see the
injured man about eleven o'clock that night in the hospital, but it does not
appear that Rivera told him anything about the circumstances under which
he had been stabbed.
The appellant is an illiterate barrio girl, unable to write her name, and
scarcely eighteen years old. We do not believe her story is a fabrication. In
this connection it is to be noted that almost immediately after the incident
in question took place, the appellant said she stabbed Francisco Rivera
because he embraced her. It is not improbable that she was reluctant to
relate in the presence of all the people in the house of Maria Inguit the
details of what had occurred.
We are convinced from a study of the record that the deceased did in fact
grab hold of the defendant on the night in question, and whether he
intended to rape her or not, taking into consideration that it was a dark
night and that the deceased grabbed her from behind without warning and
without making himself known and refused to say who he was, and in the
struggle that followed touched her private parts, and the fact that she was
unable to free herself by means of her strength alone, we are of the
36
opinion that she was justified in making use of the pocket-knife in repelling
what she believed to be an attack upon her honor, since she had no other
means of defending herself.
In the case of the United States vs. Ah Chong (15 Phil., 488), this court held
that a person is not criminally responsible when, by reason of a mistake of
facts, he does an act for which he would be exempt if the facts were as he
supposed them to be, but would constitute murder if he had known the
true state of facts at the time, provided that the ignorance or mistake of
fact was not due to negligence or bad faith.
The appellant claims to have cried for help, but so far as the record shows
her cries were not heard by any of her companions. Whether she did in
fact cry for help, as claimed by her, or failed to do so because of the
suddenness with which the deceased grabbed her and the fright which it
naturally caused, taking into consideration the circumstances of the case,
we still think she is exempt from criminal liability. In the case of the United
States vs. Santa Ana and Ramos (22 Phil., 249), this court held that a
woman in defense of her honor is justified in inflicting wounds or her
assailant with a bolo which she happens to be carrying, even though her
cry for assistance might have been heard by people near by.
For the foregoing reasons, the decision appealed from is reversed, and the
appellant is acquitted, with the costs de oficio.
Avanceña, C.J., Malcolm, Abad Santos, Imperial, Butte, and Diaz, JJ.,
concur.
Separate Opinions
HULL, J., dissenting:
My colleagues possibly through chivalry and compassion have given much
greater credence to the tale of the defendant than it justifies. I am
convinced that the trial judge, who heard her testify, more correctly
appreciated the facts of this case.
G.R. No. L-26750 August 18, 1972
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JOSEEN COMIENDA Y NAVARRO, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
Aladin B. Bermudez for defendant-appellant.
MAKASIAR, J.:p
The accused Jose Encomienda y Navarro appealed on September 22, 1966
from the decision dated September 12, 1966 of the Court of First Instance
of Nueva Ecija [Branch IV Guimba] (p. 97, Vol. I, rec.) sentencing him for
murder aggravated by recidivism but mitigated by voluntary surrender, to
life imprisonment or reclusion perpetua, to indemnify the heirs of the
deceased Severino Cabaral in the sum of P6,000.00, to suffer the
accessories provided for by law, and to pay the costs (pp. 84-96, Vol. 1,
rec.).
The record of the case was received on October 25, 1966 by the Clerk of
Court of the Supreme Court (p. 1, Vol. 11, rec.) from the Clerk of Court of
the Court of Appeals, who received the same on October 20, 1966, without
the transcript of stenographic notes, which transcript was submitted to the
Supreme Court on November 11, 1966 (p. 1, t.s.n., Vol. III), from the
deputy clerk of the trial court (p. 2, Vol. II, rec.).
After the briefs of appellant and appellee were filed respectively on
January 18, 1967 (pp 26-48, Vol. II, rec.) and July 2, 1967 (p. 67, Vol. II,
rec.), the case was submitted for decision on August 14, 1967 (p. 73, Vol. ll
rec.).
On January 14, 1970, one AFP T/Sgt Venancio B. Bañaga, through counsel,
filed a petition for an order directing the clerk of court of Branch IV of the
Court of First Instance of Nueva Ecija to deliver to him the .32 caliber
revolver with serial No. 154646, Exhibit "E", alleging that after the
37
appealed decision was rendered by the trial court, the ownership of said
revolver was transferred to him by reason of which he was issued by the
Philippine Constabulary Special Permit No. 369246 authorizing him to
possess the said revolver while he is in the active service (AFP), attaching
the said special permit as Annex "A" to his petition (pp. 74-75, 76, Vol. II,
rec.), and that his motion to withdraw the said revolver was denied by the
trial court due to the pendency of this case before the Supreme Court
(Annex "A", p. 78, Vol. II, rec.). Said petition was deemed submitted for
resolution on March 18, 1970 after the Solicitor General failed to comment
thereon within the period allowed him (pp. 79, 80, 82, Vol. II, rec.).
Arraigned on the following information for murder:
That on or about the 30th day of May, 1965, in the munipality of Cuyapo,
province of Nueva Ecija, Republic of Philippines, and within the jurisdiction
of this Honorable Court the above-named accused conspiring together and
mutually aiding one another, armed with a bolo and blunt instrument, with
intent to kill and with treachery and evident premeditation, did then and
there willfully, unlawfully and feloniously attack and hacked one Severino
Cabaral, inflicting upon him multiple wounds which caused his
instantaneous death.
That the accused Jose Encomienda y Navarro is a recidivist having been
convicted of the crime of Murder on April 30, 1958, in Criminal Case No.
4382 by the Court of First Instance of Nueva Ecija. (p. 47, Vol. I, rec.).
accused appellant who waived the presence of his counsel at said
arraignment (p. 53, Vol. I, rec.), pleaded not guilty on June 2, 1966 (p. 54,
Vol. I, rec.).
The evidence for the prosecution consists of the testimonies of Cuyapo
health officer Pio Alberto, policeman Esmenino Delo and police inspector
Casimiro Aguinaldo.
Patrolman Esmenino Delo declared that about 4 o'clock in the afternoon of
May 30, 1965, he was with policeman Federico Olog at police outpost No.
2 in Cuyapo, Nueva Ecija, when one Franklin Ancheta reported that
Severino Cabaral was wounded in the yard of the accused Jose
Encomienda. He proceeded to the defendant's yard where he saw
Severino mortally wounded in a kneeling position about two or three
meters in front of the stairs of the house of the accused and could not
raise his head. Severino was unconscious but still breathing (pp. 13-14,
t.s.n.), On his query, the wounded Severino told him in the presence of
policemen Eufemio Delo and Mateo Castillo, that the accused Jose
Encomienda stabbed him (pp. 9-10, t.s.n.), which statement he wrote
down in Ilocano on a piece of ruled paper (Exhibit "C", p. 4, Vol. II, rec.), on
which the deceased affixed his right thumbmark and duly signed by
patrolmen Mateo Castillo and Eufemio Delo as witnesses (p. 11, t.s.n.).
Said alleged ante mortem statement of the victim, Exhibit "C", was
translated into English by police inspector Casimiro Aguinaldo (Exh "C-1",
pp. 14 & 19, t.s.n.).
Exhibit "C-1" shows that the same was taken down at 4:45 P.M. of May 30,
1965 and contains the following conversation between partrolman
Esmenino Delo and the victim:
Q — Who boloed you?
A — Jose Encomienda.
Q — Is this true?
A — Yes.
Q — You thumbmark.
A — Yes. (p. 5, Vol. I, rec.).
Assisted by policemen Mateo Castillo, Eufemio Delo and Federico Olog,
patrolman Esmenino Delo brought the victim to the private clinic of Dr.
Potenciano Garcia, after which he looked for the accused in the premises
of the scene of the incident. Failing to locate the accused thereat,
patrolman Esmenino Delo, together with lieutenant Gamboa, proceeded
to the municipal building to report the incident after which they conducted
an investigation in the premises of the incident, where they found blood
stains in the yard and in front of the stairway of the house of the accused
38
(pp. 11-12, t.s.n.). About 5:30 in the afternoon of that same day, May 30,
1965, they returned to the municipal building where they saw police
inspector Casimiro Aguinaldo interrogating the accused. According to
police inspector Aguinaldo (p 13, t.s.n.), the accused went to the municipal
building alone at about 4:55 p.m. of May 30, 1965, surrendering a bolo and
a .32 caliber revolver (Exhs. "D" & "E") together wit two live bullets (Exhs.
"E-I" & "E-2") and four empty shells contained in an envelope. The bolo
(Exh. "D") is about 13 inches long with a wooden handle about 18
centimeters long. He placed the bolo and the revolver in seperate
wrappers (Exhs. "D-1" & "E-3", pp. 15-17, 19 t.s.n.). After entrusting the
accused to the guard, he and policeman Esmenino Delo went to the scene
of the incident, saw blood stains on the stairs of the house of the accused
and a box of water mixed with blood. Thereafter, they repaired to the
clinic of Dr. Garcia where they saw the victim about 6:30 that evening and
stayed there for about five minutes, after which they returned to the
municipal building (pp. 16-17, t.s.n.). When he asked the accused whether
he was willing to give any statement, the accused replied in the negative
and stressed that he would wait for his lawyer (pp. 17, 19, t.s.n.). He
translated into English the alleged dying declaration, Exhibit "C", of the
victim (Exh. "C-1", p. 15, Vol. I, rec.; p. 19, t.s.n.). When he asked the
accused why he boloed the victim, the accused replied that he would not
talk and he would await for his lawyer. He did not examine the hands of
the accused for powder burns as he did not know the procedure therefor.
Neither did he request the Philippine Constabulary to conduct such
examination of the victim for powder burns. He did not know who fired the
revolver. The victim bore no gunshot wounds. The accused did not tell him
that the victim fired at him. But, the victim's son told him that the revolver
was licensed in the name of the victim (pp 19-20, t.s.n.).
Dr. Pio Alberto, the Cuyapo health officer, recounted that about 6: 00 P.M.
of May 30, 1965, he examined the victim in the clinic of Dr. Potenciano
Garcia, executed the medical certificate Exhibit "A" (p. 2, Vol. I, rec.), and
issued the death certificate showing that the victim was born in 1898 and
was 67 years old when he died on May 30, 1965 (Exh. "B", p. 3, Vol. I, rec.).
The medical certificate, which states that the victim died about 10 o'clock
in the evening of May 30, 1965 from shock and hemorrhage, describes the
injuries sustained by the victim Severino Cabaral, thus:

1. — A clean cut horizontal wound about 1 inch above both eyebrows
extending from the outer tip of the left to the outer tip of the right
eyebrow; cutting the frontal bone and exposing the brain tissue.
Fragments of the frontal bone were extracted during the operation.
2. — A clean cut almost horizontal wound about 2 inches long from
inwards downwards and outwards at the latero-posterior aspect of the left
wrist exposing the ligaments which were found to be intact.
3. — An oblique clean cut wound about 1 ½, inch long on the postero-
medial aspect of right forearm about 3 inches above the wrist joint from
outwards downwards and inwards.
4. — Swelling and ecchymosis about 2-½ inches by 3-½ inches on lower
angle of right scapula.
5. — Swelling and ecchymosis about 2-½ inches by 3-½ inches just above
the brim of the right hip bone at the back. (Exh. "A", p. 2, Vol. I, rec.).
Dr. Alberto opined that wound no. 1 on the forehead was mortal and was
caused by a sharp instrument like a bolo, with the assailant on the side of
and higher than the victim or the victim was stooping at the time said
wound was inflicted (pp. 3, 4, 7, t.s.n.); that wound no. 2, about 2 inches
long on the left wrist of the victim, was also caused by a sharp instrument
like a bolo, was not fatal and could have been inflicted when the victim
raised his hands in self defense with the right hand a little higher than the
left, adding that the victim could still move his hands (pp. 3, & 8, t.s.n.);
that wound no. 3 on the right forearm and about 3 or 4 inches above the
wrist could have been inflicted with a sharp instrument like a bolo when
the victim raised his hands in self-defense (pp. 3, 4, & 8, t.s.n.); that wound
no. 4, the swelling and ecchymosis about 2 ½ inches by 3 ½ inches on the
lower angle of the right scapula and about 8 inches below the right armpit,
could have been caused by a rod or a bat or a fall or a bolo's handle, but
not by the narrow back of a bolo (p. 5, t.s.n.); that wound no. 5 the
swelling and ecchymosis about 2 ½ inches by 3 ½ inches on the right pelvic
bone just above the waistline could have been caused by a rod with the
assailant on the side of the victim (pp. 5-6, t.s.n.); that the victim was in a
39
state of shock at the time he examined him; that he left the victim at about
8:30 that evening of May 30, 1965 sleeping in Dr. Garcia's clinic; and that
the next day, he saw the victim already dead due to shock and hemorrhage
(pp. 6-7, t.s.n.).
Appellant narrated that since 1947 he was a tenant of hacienda Doña Nena
in Cuyapo, Nueva Ecija; that the victim Severino Cabaral was the hacienda
overseer (pp. 22, 27, t.s.n.); that the land he was working was recorded in
the name of his late father, who died in 1963 (p. 28, t.s.n.); that about one
week before May 30, 1965, the victim went to his house and invited him to
go to his (victim's) house telling him that he could no longer work on the
land for the land is not in his name; that he did not go with the victim to
the latter's house then; that he was not mad when the victim told him for
the first time that he can no longer work on the land; that the second time
the victim went to his house was on a Friday or Saturday, but only his little
child was home then as he was out and his wife was in the market; that the
third time the victim went to his house was about 4:30 in the afternoon of
May 30, 1965 telling him that he was sent by the hacienda owner to tell
him that he cannot work in the hacienda and that he will be removed as
tenant; that he was then cutting wood beside the stairway with a bolo
(Exh. "D"), while the victim was standing also beside the stairs; that when
he asked why he was being removed as tenant when it was his means of
livelihood, the victim replied that he had no right to work on the land
because it was not in his name, to which he countered that the victim had
no right to remove him for he (the victim) was only a messenger and also a
tenant like him in the hacienda, which alone has the right to remove him
(pp. 23, 30, t.s.n.); that the victim became angry and with his right hand
drew his revolver tucked in his left side when they were about one meter
apart (p. 23, t.s.n.); that with his left hand he immediately grabbed the
victim's right hand holding the revolver, forcing the victim to lean on the
stairway, pinned the victim's right hand also on the stairs; that during their
struggle, the revolver fired four times continuously that with the bolo in his
right hand he struck the victim's right forearm; that when the victim
wanted to get the gun with his left hand, he boloed the victim's left arm
about one inch from the left wrist; that he shook the victim's right arm
downward causing the gun to fall to the ground; that when the victim tried
to pick up the gun, he stepped backward and hacked the victim's forehead
causing the victim to fall backward on the stairway, as he (appellant)
retrieved the gun to prevent the victim from picking it up again and then
stepped about two meters backward for the victim might grab him (pp. 24,
25, 31, 32, 34, t.s.n.); that thereafter the victim slowly got up and washed
his forehead with the water from the box nearby while sitting in front of
said box, after which he went to the municipal building with the bolo and
the gun which he surrendered to police inspector Casimiro Aguinaldo; that
the ecchymosis on the lower and right scapula of the victim might be due
to his having violently pushed the victim against the bamboo stairway with
two wooden lower steps (pp. 26, 27, t.s.n.); that he was alone in the house
that afternoon of May 30, 1965 when the incident happened as his wife
was then out selling meat and his children were with his father-in-law (p.
20, t.s.n.); that the victim was taller and slightly bigger than he is; that the
victim's son, Guillermo, is taller than his deceased father (p. 32, t.s.n.); and
that he is right-handed (p. 33, t.s.n.).
By actual measurement, Guillermo Cabaral is 5'6" tall; while the accused
has a height of 5'3" (p. 33, t.s.n.).
The prosecution did not offer any rebuttal evidence and relied mainly on
the alleged ante mortem statement Exhibits "C" & "C-1" of the deceased
and on the medical testimony of Dr. Pio Alberto, the town health officer.
There is therefore no testimonial evidence for the state as to how and why
the incident occurred for no eyewitness was presented.
It is most unfortunate that the police authorities did no cause the
immediate examination of the trigger of the revolver for finger prints and
of the stairs, the hands and clothing of both the accused and the victim for
powder burns, to determine whose fingers were actually on trigger of the
revolver.
If the four slugs had been recovered, the same would have been helpful in
ascertaining the trajectory and direction of the bullets and whether they
could have been fired from the stairs or not.
The unrebutted fact that the incident happened inside the yard and just
beside the stairway of the house of the accused and that the victim was
armed with a revolver licensed in his name, confirms appellant's story that
the deceased, as the hacienda overseer, went to the residence who the
40
accused, informed the latter that the hacienda owner had removed him as
tenant, and directed him to vacate the land tilled by him as it was not
recorded in his name. When the accused questioned the victim's authority
to remove him, the victim became furious and drew his gun.
While it is true that the victim was taller and slightly bigger than the
accused, the latter could match the strength of the right hand of the victim
with his left hand since he was then a 37-year old farmer and the victim
was 67 year of age or 30 years his senior. In his excitement and
apprehension of the peril to his life, appellant was not expected nor had
the time, to determine whether he could save himself by just kicking the
gun away from the victim or stepping on it or pushing the victim away
from the latter when the victim tried to pick up the gun after he was
already wounded on both forearms; or whether the victim, if able to pick
up the gun, could have fired the remaining two bullets at appellant who
was just about a meter away.
The alleged dying declaration of the deceased which consists only of three
brief, mostly monosyllabic, answers to equally brief questions of
partrolman Esmenino Delo, to wit:
Q — Who boloed you?
A — Jose Encomienda.
Q — Is this true?
A — Yes.
Q — You thumbmark.
A — Yes. (Exhs. "C" & "C-1", pp. 4-5, Vol. 1, rec.).
uncorroborated as it is bereft of essential details as to the motive and
circumstances surrounding the incident, does not generate the moral
certainty as to the culpability of appellant. The evidence of the prosecution
lacks the requisite sufficiency to persuade the human mind to agree with
the conclusion of the trial court, whose decision cannot as a consequence
be sustained.
It is also doubtful whether the victim could hear or understand the three
questions propounded to him or could clearly mumble his three answers
thereto or could nod his head; because policeman Esmenino Delo himself
admitted that the victim was unconcious although still breathing, and
could not raise his head when they found him in the yard of the defendant
(pp. 13-14, t.s.n., Vol. III).
On the other hand, the plausibility and credibility of the unrebutted
narration of the appellant as to the motive and circumstances surrounding
and leading to the incident, is enhanced by its detail and by the fact that
appellant immediately surrendered that same afternoon to the police
authorities with his bolo and the revolver of the deceased,1 despite the
fact that he was already laboring under a handicap by virtue of his previous
conviction as an accomplice to the crime of murder, which ordinarily would
impair his trustworthiness.
Under the circumstances, the version of the appellant appears to meet the
required clear and convincing evidence to establish self-defense,2 or
weakens all the more and therefore neutralizes the effect of the proof of
the prosecution. The story of the appellant is partly corroborated by
Aurelio Encomienda, his second cousin (p. 41, t.s.n., Vol. II) and nearest
neighbor just about four meters away (p. 37, t.s.n. Vol. III), who testified to
his having heard several shots while he was lying down that afternoon and
thereafter his having seen through a hole in his kitchen the victim sitting
under the shed of the stairs of appellant house, who was also sitting in
front of the victim and holding a bolo and a revolver, which Aurelio
Encomienda related the next morning to the barrio captain, who called for
him. (pp. 37-40, t.s.n., Vol. III).
Three essential elements must concur for legitimate self-defense to exist,
namely; (1) unlawful aggression on part of the victim; (2) reasonable
necessity of the means, employed to prevent or repel the attack; and (3)
lack ofsufficient provocation on the part of the person defending himself.3
41
Illegal aggression is equivalent to assault or at least threatened assault of
immediate and imminent kind.4 Here when the deceased drew his gun
with his right hand, appellant grabbed with his free left hand the victim's
right hand holding the revolver, forced the victim to lean on the stairs and
pinned the victim's right hand also on the stair. During the struggle, the
revolver fired four times continously and he hacked the victim's right
forearm. When the victim tried to get the gun with his left hand, appellant
boloed the victim's left arm and then shook the victim right arm downward
causing the gun to fall to the ground and the victim tried to pick up the
gun, appellant stepped backward and hacked the victim's forehead, after
which he himself picked up the gun so as to prevent the victim, from
retrieving the same.
If the deceased had no intention to use his gun on the appellant, he would
not have drawn it or resisted appellant's attempt to prevent him from
using it. There was therefore real danger to the life or personal safety of
the appellant.5
The instant case is quite analogous to the case of People vs. Pangan, et al
wherein the accused, also an agricultural share tenant, killed with a
penknife the superintendent of the hacienda. When the accused therein
denied the charge of the superintendent that he was letting his carabaos
run loose to destroy the tender sugar cane shoots, the deceased while
berating him, struck him twice with a whip hitting him (the accused) on the
left temporal and occipital regions causing his ear to bleed, against which
the accused offered no resistance but only tried to evade the blows. After
they were separated by a third party, the accused sat down on an acacia
trunk, but the deceased approached him again and insultingly asked him
whether he wanted to fight, to which accused replied he would not fight.
Thereafter, the accused retired to his home. Between four and five o'clock
in the afternoon of the same day, accused went to the house of the
deceased to ask him to return his two cows that had been caught but the
deceased kicked him and struck him with a cane, causing a welt on this left
shoulder. As the accused stepped back to avoid the second blow aimed at
him, the deceased placed his right hand upon the handle of the revolver he
carried by his waist. When the accused saw this intention of the deceased,
he drew his knife and opened it with his teeth. The deceased then drew his
revolver; but before he could fire it, the accused wrestled with him and
caught the hand holding the gun. During the ensuing struggle, both fell to
the ground, the deceased upon his back, while the accused upon him, with
one hand griping the deceased's hand holding the revolver and with the
other stabbing the deceased on the abdomen and other parts of the body
including the right arm compelling the deceased to drop the revolver. Then
the accused took hold of the revolver and threw it to one side. Thereafter,
he ran to the municipal building and surrendered to the
authorities.7 The defense of the accused in said case was sustained by the
Court.
In U.S. vs. Domens,8 the theory of self-defense was likewise upheld. There
the deceased and the accused quarreled about a carabao which had gotten
into the corn patch of the deceased, who, by reason thereof, struck the
accused four orfive times with a piece of wood about one yard long and
about the size of one's wrist. The accused did not retreat but struck back
wounding the deceased on the forehead.
In U.S. vs. Mojica,9 the deceased, a constabulary soldier resisted arrest,
struck the arresting policeman with a fist, drew a mess kit knife and
brandished it at the accused, another policeman, who retreated a step or
two, drew his revolver and fired, killing the soldier. WE ruled that the
policeman acted in self-defense.
That there is reasonable necessity of the means employed by herein
appellant to prevent or repel the unlawful aggression cannot seriously be
disputed. "Reasonable necessity of the means employed does not imply
material commensurability between the means of attack and defense.
When the law requires is rational equivalence, in the consideration of
which will enter as principal factors the emergency, the imminent danger
to which the person attacked is exposed and the instinct, more than the
reason, that moves or impels the defense, and the proportionateness
thereof does not depend upon the harm done, but rests upon the
imminent danger of such injury ... ." 10 As WE stated in the case of People
vs. Lara, in emergencies of this kind, human nature does not act upon
processes of formal reason but in obedience to the instinct of self-
preservation; and when it is apparent that a person has reasonably acted
upon this instinct, it is the duty of the courts to sanction the act and hold
the act irresponsible in law for the consequences."
42
In the case at bar, appellant did not immediately hack the deceased to
completely disable him, much less to kill him. When the deceased drew his
gun with his right hand, the appellant merely grabbed the right hand of the
deceased holding the gun, pinning said right hand on the stairs without
striking the deceased with the bolo in his right hand. After the gun fired
four times continuously as they struggled, it was only then that appellant
struck the right forearm of the victim with his bolo. Appellant could have
continued hacking the deceased right then and there. But he did not. He
boloed the victim's left forearm because the victim tried to get the gun
from his right hand. And then he just shook the right arm of the victim
downward, forcing the latter to release the gun which fell to the ground. It
was only when the deceased tried to pick up the gun that the appellant
boloed him on the forehead. As heretofore stated, appellant had no time
to coolly deliberate on whether he could save himself by just kicking the
gun away or by just pushing or boxing the victim or stepping on the hands
of the deceased to prevent him from getting the gun and firing the same at
him. The immediate danger to his life precluded such serene
rationalization on his part.
It should be stressed that the victim did not sustain any gunshot wounds.
After taking possession of the victim's revolver, appellant did-not use it
against the victim to finish him off, nor did he continue hacking the
deceased with his bolo. He was free to do either as the victim was
completely rendered hors de combat. Instead the appellant allowed the
disabled and defenseless victim to wash his wounds with water in
appellant's own wooden box.
In U . S. vs. Molina, 11 the accused was unarmed while the deceased
attacked him with a bolo. After overpowering the deceased and wresting
the bolo from him, the accused struck the deceased several times with the
bolo thereby killing him almost instantaneously as the deceased tried to
seize a hatchet. Under the circumstances, WE held that the accused
employed reasonable means to repel the assault against his life.
In People vs. Rabandaban, 12 one night appellant found his wife lying in
bed with another man, who escaped through the window. He scolded his
wife and ordered her to leave the house. Calling him names, the wife
gathered her clothes and picked up a bolo in the kitchen. When the
accused husband followed her there, she attacked him with the bolo,
wounding him twice on the abdomen. Wresting the bolo from his wife,
appellant stabbed her with it in the breast, causing her death that same
night. WE ruled that the appellant acted in self-defense and that there was
reasonable necessity of the means employed by him to repel the attack.
WE overruled the opinion of the trial court wherein it stated that appellant
could have saved himself by throwing away the bolo after wresting it from
his wife and that there was no need for him to stab her once she was
disarmed; because she struggled to regain possession of the bolo,
justifying appellant's belief that his wife wanted to finish him off.
Considering that he must have been losing strength due to loss of blood,
with his wife armed to fight to the finish, it would have been sheer folly or
stupidity on his part to throw away the bolo so that his wife may again use
it against him.
In People vs. Sumikat, 13 a bolo was considered a reasonable means of
repelling an attack by a bully of known violent disposition, who was larger
and stronger than the accused and who was trying to wrest the bolo from
him.
In People vs. Lara, supra, the use of a pistol in shooting to death the
deceased who was much stronger than the appellant and who in the
darkness and from behind suddenly threw his arms around appellant and
attempted to wrest the pistol from him, was considered reasonably
necessary; because by reason of the darkness as well as the superior
strength of the deceased, there was probability that the deceased would
seize control of the pistol and use it against appellant.
There certainly was lack of sufficient provocation on the part of appellant.
On the contrary, he was the one provoked by the deceased. He was in his
own yard cutting wood when the deceased arrived ordering him to vacate
the land he was then tilling, which was his livelihood. Ejecting him from the
land he was farming and which his father farmed before him, was, to this
simple farmer, like depriving him of his life. Yet, with all that provocation,
appellant merely told the deceased that the latter had no right to eject him
from the land because he was also a tenant like him in the hacienda.
Certainly, this retort was no justification for the victim to draw his gun.
43
In view of the uncontradicted testimony of the appellant that the victim
drew his revolver to assault the appellant, which is not a lawful purpose,
the victim lost thereby the privilege to possess the same.
WHEREFORE, the appealed judgment is hereby reversed, the accused-
appellant is hereby acquitted, and his immediate release from
confinement is hereby ordered.
The .32 caliber revolver with serial No. 15446 (Exh. "E") is hereby ordered
forfeited to the government and the Clerk of Court is hereby directed to
deliver the same for record purposes to the official headquarters of the
Philippine Constabulary at Camp Crame, Quezon City. The bolo (Exhibit
"D") is ordered returned to appellant.
G.R. No. L-23249 November 25, 1974
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CUNIGUNDA BOHOLST-CABALLERO, accused-appellant.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor
General Florencio Villamor and Attorney Concepcion F. Torrijos for
plaintiff-appellee.
Accused-appellant in her own behalf.
MUÑOZ PALMA, J.:p
Convicted for having killed her husband, Cunigunda Boholst-Caballero
seeks a reversal of the judgment of the Court of First Instance of Ormoc
City finding her guilty of PARRICIDE and sentencing her "to suffer an
indeterminate imprisonment of from EIGHT (8) YEARS and ONE (1) DAY of
prision mayor in its medium period, as the minimum, to FOURTEEN (14)
YEARS, EIGHT (8) MONTHS and ONE (1) DAY of reclusion temporal in its
medium period as the maximum; to indemnify the heirs of Francisco
Caballero in the sum of SIX THOUSAND PESOS (P6,000.00) without
subsidiary imprisonment in case of insolvency, and to pay the costs", and
prays for an acquittal based on her plea of self-defense.1
The Solicitor General however asks for the affirmance of the appealed
decision predicated on the following testimonial and documentary
evidence presented by the prosecution before the trial court:
Cunigunda Boholst and Francisco Caballero, both at the age of twenty,
were married on June 7, 1956, at a ceremony solemnized by the parish
priest of the Roman Catholic Church in Ormoc City.2 The marriage was not
a happy one and before the end of the year 1957 the couple separated.
Late in the evening of January 2, 1958, Francisco Caballero and two
companions, namely, Ignacio Barabad and Kakong Sacay, drank "tuba" in a
certain house in barrio Ipil, Ormoc City. At about midnight, Francisco
Caballero and his companions proceeded home. On the way, they saw
Francisco's wife, Cunigunda, standing at the corner of the yard of Igmedio
Barabad Cunigunda called Francisco and when the latter approached her,
Cunigunda suddenly stabbed Francisco with a knife marked by the
prosecution as its Exhibit C. Francisco called for help to his two
companions who upon seeing that Francisco was wounded, brought him to
the St. Jude Hospital.3 Dr. Cesar Samson, owner of the hospital, personally
attended to the victim and found a "punctured wound on the left lumbar
region measuring 1 inch externally" (Exhibit B). First aid was given, but
because there was a need for blood transfusion and the facilities of the
hospital were inadequate to provide the necessary treatment, Dr. Samson
suggested that the patient be transported to Cebu City.4 In the meantime,
Cunigunda Caballero had gone to the Police Department of Ormoc City,
surrendered to desk sergeant Restituto Mariveles and informed the latter
that she stabbed her husband.5 While Francisco Caballero was confined at
the hospital, he was interrogated by Patrolman Francisco Covero
concerning the identity of his assailant and he pointed to his wife
Cunigunda. The questions propounded by Pat. Covero and the answers
given by the victim were written down in a piece of paper on which the
victim affixed his thumbmark (Exhibit D) in the presence of his brother,
Cresencio Caballero, and another policeman, Francisco Tomada.6 On
January 4, 1958, Francisco Caballero was brought to Cebu City on board
44
the "MV Ormoc" but the trip proved futile because the victim died at
noontime of the same day from the stab wound sustained by him.7
Appellant, on the other hand, pleads that We discard the proof adduced by
the prosecution and believe instead what she declared before the trial
judge briefly summarized as follows:
After her marriage to Francisco Caballero on June 7, 1956, appellant lived
with her husband in the house of her parents in barrio Ipil, Ormoc City, and
their marriage, although not a harmonious one, was blessed with a
daughter; her married life was marked by frequent quarrels caused by her
husband's "gambling, drinking, and serenading", and there were times
when he maltreated and beat her; after more than a year she and her
husband transferred to a house of their own, but a month had hardly
passed when Francisco left her and her child, and she had to go back to live
with her parents who bore the burden of supporting her and her child; in
the month of November, 1957, her daughter became sick and she went to
her husband and asked for some help for her sick child but he drove her
away and said "I don't care if you all would die"; in the evening of January
2, 1958, she went out carolling with her friend, Crispina Barabad, and
several men who played the musical instruments; at about 12:00 o'clock
midnight they divided the proceeds of the carolling in the house of Crispina
Barabad after which she went home, but before she could leave the
vicinity of the house of Crispina, she met her husband Francisco, who upon
seeing her, held her by the collar of her dress and asked her: "Where have
you been prostituting? You are a son of a bitch."; she replied: "What is
your business. Anyway you have already left us. You have nothing to do
with us"; upon hearing these words Francisco retorted: "What do you
mean by saying I have nothing to do with you. I will kill you all, I will kill you
all"; Francisco then held her by the hair, slapped her face until her nose
bled, and pushed her towards the ground, to keep herself from falling she
held on to his waist and as she did so her right hand grasped the knife
tucked inside the belt line on the left side of his body; because her
husband continued to push her down she fell on her back to the ground;
her husband then knelt over her, held her neck, and choked her saying.
"Now is the time I can do whatever I want. I will kill you"; because she had
"no other recourse" as she was being choked she pulled out the knife of
her husband and thrust it at him hitting the left side of his body near the
"belt line" just above his left thigh; when she finally released herself from
the hold of her husband she ran home and on the way she threw the knife;
in the morning of January 3, she went to town, surrendered to the police,
and presented the torn and blood-stained dress worn by her on the night
of the incident (see Exhibit I); Pat. Cabral then accompanied her to look for
the weapon but because they could not find it the policeman advised her
to get any knife, and she did, and she gave a knife to the desk sergeant
which is the knife now marked as Exhibit C for the prosecution.8
The sole question thus presented in this appeal is: did appellant stab her
husband in the legitimate defense of her person?
The law on self-defense embodied in any penal system in the civilized
world finds justification in man's natural instinct to protect, repel, and save
his person or rights from impending danger or peril; it is based on that
impulse of self-preservation born to man and part of his nature as a human
being. Thus, in the words of the Romans of ancient history: Quod quisque
ob tutelam sui fecerit, jure suo ficisse existimetur.9 To the Classicists in
penal law, lawful defense is grounded on the impossibility on the part of
the State to avoid a present unjust aggression and protect a person
unlawfully attacked, and therefore it is inconceivable for the State to
require that the innocent succumb to an unlawful aggression without
resistance; while to the Positivists, lawful defense is an exercise of a right,
an act of social justice done to repel the attack of an aggressor.10
Our law on self-defense is found in Art. 11 of the Revised Penal Code which
provides:
ART. 11. Justifying circumstances. — The following do not incur any
criminal liability:
1. Anyone who acts in defense of his person or rights, provided that
the following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel
it;
45
Third. Lack of sufficient provocation on the part of the person defending
himself.
xxx xxx xxx
As part of this law is the settled jurisprudence that he who seeks
justification for his act must prove by clear and convincing evidence the
presence of the aforecited circumstances, the rationale being that having
admitted the wounding or killing of his adversary which is a felony, he is to
be held criminally liable for the crime unless he establishes to the
satisfaction of the court the fact of legitimate self-defense. 11
In this case of Cunigunda Caballero, the trial court did not find her
evidence clear and convincing, and gave these reasons for its conclusion: a)
appellant's testimony is inherently improbable as brought out by her
demonstration of the incident in question during the trial of the case; b)
there was no wound or injury on appellant's body treated by any physician:
c) appellant's insistence that the weapon used by her was Moro hunting
knife and not Exh. C is incredible; d) she gave contradictory statements
concerning the report made by her to the police authorities that she was
choked by her husband; and e) her husband's abandonment of her and her
child afforded the motive behind appellant's
attack. 12
We are constrained, however, to disagree with the court a quo and depart
from the rule that appellate court will generally not disturb the findings of
the trial court on facts testified to by the witnesses.
An examination of the record discloses that the trial judge overlooked and
did not give due importance to one piece of evidence which more than the
testimony of any witness eloquently confirms the narration of appellant on
how she happened to stab her husband on that unfortunate night. We
refer to the location of the wound inflicted on the victim.
Appellant's account of that fatal occurrence as given in her direct
testimony follows:
Q At that precise time when you were going home to the place of
your parents, did any unusual incident occur?
A Yes, sir.
Q What was it?
A At the time when I went down from the house of Crispina
Barabad, when I reached near the banana hill, my husband held me.
Q What happened when your husband, Francisco Caballero, held
you?
A He asked me from where did I prostitute myself.
Q What did you answer?
A I answered that I did not go (on) prostituting. I told him that I was
only forced to accompany with the carolling in order to earn money for our
child.
Q What part of your body did your husband, Francisco Caballero,
hold you?
A He held me at the collar of my dress. (Witness holding the right
portion of the collar of her dress.)
Q After you answered Francisco, what did he do?
A He said "Where have you been prostituting? You are a son of a
bitch." Then I told him "What is your business. Anyway you have already
left us. You have nothing to do with us."
Q When Francisco heard these words, what did he do?
A Francisco said "What do you mean by saying l have nothing to do
with you. I will kill you all. I will kill you all."
46
Q And then, what happened?
A He held my hair and slapped my face twice. Then I staggered and
my nose was bleeding.
Q Do you mean to say that blood flowed out of your nose?
A Yes, sir.
Q After you were slapped twice and your nose begun to bleed, what
happened next?
A He held the front part of my dress just below the collar and
pushed me towards the ground. .
Q While your husband was holding your dress below the neck and
tried to push you down, what did you do?
A I held a part of his body in order that I would not fall to the
ground.
Q And then what happened?
A Because I struggled hard in order that I would not fall to the
ground I held his belt and that was the time I got hold of a weapon along
his belt line.
Q After that what happened?
A He shoved my hands upward and pushed me to the ground and
that was the time my hands were released. He was choking me.
Q When you said your hands were released, was that before or after
you were choked by Francisco Caballero?
A At that time when I was about to fall to the ground that was the
time I released my hands.
Q When you were almost fallen to the ground, where were the
hands of Francisco Caballero?
A On my hair.
Q You mean to say the two hands of Francisco Caballero?
A One of his hands was holding my hair. The other hand pushed me.
COURT:
Q What hand was holding your hair?
A His right hand was holding my hair while his left hand pushed me.
ATTORNEY GARCIA:
Q When you were fallen to the ground what happened?
A While I lay prostrate on the ground and believing that I have no
other recourse, while his left hand was holding my neck, I was able to take
hold of the weapon from his belt line and I thrust it to him.
Q What was this weapon which you were able to get from his belt
line?
A It was a hunting knife." (tsn. pp. 53-55, witness Cunigunda
Caballero)
On cross-examination, appellant was asked by the private prosecutor to
show her position when she stabbed her husband and she did, and
although the stenographic notes on that demonstration are very sketchy
which We quote:
Q Please demonstrate to this Court when you made the thrust to
your husband?
47
A When I took hold of the hunting knife I made the thrust in this
manner. (Witness held the ruler with her right hand kneeled on the floor)"
(tsn. p. 67, ibid)
still We can get a clear picture of what appellant must have done, from the
questions and answers immediately following the above-quoted portion of
the transcript, viz:
Q You want to make us understand that when you thrust the
weapon to the body of your husband you were lying down flat to the
ground?
A I was lying flat on the ground face upward. I was a little bit
inclined because tried to struggle trying to get away from the hold of my
husband.
Q You want to make us understand that your back was touching the
ground when you made the thrust to your husband?
A Yes, sir.
COURT:
Q Where were you kneeled by your, husband?
A On my right thigh. (ibid; emphasis supplied)
Thus, with her husband kneeling over her as she lay on her back on the
ground and his hand choking her neck, appellant, as she said, had no other
recourse but to pull out the knife inserted at the left side of her husband's
belt and plunge it at his body hitting the left back portion just below the
waist, described by the attending physician, Dr. Cesar Samson, as the left
lumbar region. The fact that the blow landed in the vicinity from where the
knife was drawn is a strong indication of the truth of appellant's testimony,
for as she lay on the ground with her husband bent over her it was quite
natural for her right hand to get hold of the knife tucked in the left side of
the man's belt and thrust it at that section of the body nearest to her hand
at the moment.

We do not agree with the trial judge's observation that as demonstrated
by the accused it was physically impossible for her to get hold of the
weapon because the two knees of her husband were on her right thigh
"which would have forced her to put her right elbow towards the
ground"(see p. 9 of Decision), for even if it were true that the two knees of
Francisco were on his wife's right thigh, however, there is nothing in the
record to show that the right arm of the accused was held, pinned down or
rendered immobile, or that she pressed her elbow to the ground, as
conjectured by the trial judge, in such a manner that she could not reach
for the knife. On the contrary, as indicated earlier, accused testified and so
demonstrated that she was lying flat on her back, her husband kneeling
over her and her right arm free to pull out the knife and strike with it.
The trial judge also referred the a demonstration made by appellant of that
portion of her testimony when she was held by the hair and pushed down
to the ground, and His Honor commented that "(S)he could not be falling
to the ground, as shown to the Court by her, considering the fact that the
pushing was to and fro as shown in her demonstration." (p. 8, Decision)
The trial judge, however, failed to consider that it is humanly impossible to
have an exact and accurate reproduction or reenactment of an occurrence
especially if it involves the participation of persons other than the very
protagonists of the incident being re-enacted. In this particular instance
appellant was asked by the private prosecutor to show how she was
pushed down by her husband, and her demonstration is described in the
stenographic transcript as follows:
Q Please demonstrate to this Court the position of your husband
and you while your husband held your hair.
A He did this way. (Witness held the hair of the Court Interpreter
with his left hand and his right hand held the right shoulder of the
Interpreter and pulled the Interpreter to and fro. The Interpreter
represented as the accused and the accused as the deceased.)
Q Where were your two hands?
48
A My two hands held his waist line. (tsn. 66, witness Cunigunda
Caballero; emphasis supplied)
In that demonstration, accused represented the victim while she in turn
was impersonated by the court interpreter, and so it was difficult if not
impossible for the two to give an accurate reenactment considering that
the accused assumed a role not hers during the actual incident and the
court interpreter played a part which was not truly his. At any rate, the
accused showed how one hand of her husband held her hair while the
other pushed her down by the shoulder, and to portray how she in turn
struggled and tried to push back her husband to keep herself from falling,
she "pulled the interpreter (representing the accused) to and fro." The fact
is that Francisco succeeded in forcing appellant down to the ground as
portrayed by the latter when, following the foregoing demonstration, she
was asked by the private prosecutor to show how she stabbed her
husband — a matter which is discussed in pages 8 and 9 of this Decision.
It is this particular location of the wound sustained by the victim which
strongly militates against the credibility of the lone prosecution witness,
Ignacio Barabad. This witness declared that on that night when husband
and wife met on the road, Cunigunda called Francisco and when the latter
was near, she immediately stabbed him. If that were true, that is, husband
and wife were standing face to face at a distance of one-half meter when
the stabbing occurred (tsn. p. 11, witness Ignacio Barabad), it would have
been more natural and probable for the weapon to have been directed
towards the front part of the body of the victim such as his abdomen or
chest, rather than at his back, left side, just above the left thigh.
In cases such as the one now before Us where there are directly conflicting
versions of the incident object of the accusation, the Court in its search for
the truth perforce has to look for some facts or circumstances which can
be used as valuable aids in evaluating the probability or improbability of a
testimony, for after all the element of probability is always involved in
weighing testimonial evidence13, so much so that when a court as a
judicial fact-finder pronounces judgment that a set of facts constitute the
true happening it does so not of its own personal knowledge but as the
result of an evaluating process of the probability or improbability of a fact
sought to be proved.

Thus, in People vs. Aquino, L-32390, December 28, 1973, a decision of the
First Division of this Court penned by Chief Justice Querube C. Makalintal,
the plea of self-defense of the accused-appellant was sustained on the
basis of certain "physical and objective circumstances" which proved to be
of "decisive importance" in ascertaining the veracity of the plea of self-
defense, to wit: the location of the wound on the right side of the throat
and right arm of the deceased, the direction of the trajectories of the
bullets fired by the accused, the discovery of bloodstains at the driver's
seat, the finding of the dagger and scabbard of the deceased, and so on. 14
In the case of appellant Cunigunda Caballero, We find the location of the
fatal wound as a valuable circumstance which confirms the plea of self-
defense.
Another, is the lack of motive of appellant in attacking and killing her
husband on that particular night of January 2. Although it is the general
rule that the presence of motive in the killing of a person is not
indispensable to a conviction especially where the identity of the assailant
is duly established by other competent evidence or is not disputed, as in
this case, nonetheless, the absence of such motive is important in
ascertaining the truth as between two antagonistic theories or versions of
the killings. 15
We disagree with the statement of the court a quo that appellant's motive
for killing her husband was his abandonment of her and his failure to
support her and her child. While appellant admitted in the course of her
testimony that her marriage was not a happy one, that she and her
husband separated in the month of October, 1957, and since then she and
her child lived with her parents who supported them, nevertheless she
declared that notwithstanding their separation she still loved her husband
(tsn. p. 59, cross-examination of appellant). As a matter of fact, appellant
had been living with her parents for several months prior to the incident in
question and appeared resigned to her fate. Furthermore, there is no
record of any event which occurred immediately prior to January 2 which
could have aroused her feelings to such a degree as to drive her to plan
and carry out the killing of her husband.
49
On the other hand, it was Francisco Caballero who had a reason for
attacking his wife, Cunigunda. Meeting his wife unexpectedly at past
midnight on the road, Francisco reacted angrily, and suspecting that she
was out for some bad purpose he held her by the collar of her dress and
said: "Where have you been prostituting? You are a son of a bitch." This
was followed by a slapping on the face until Cunigunda's nose bled, pulling
of her hair, pushing her down to the ground, and strangling her — all of
which constituted the unlawful aggression against which appellant had to
defend herself.
Next to appellant's lack of motive for killing her husband, is her conduct
shortly after the occurrence. As soon as the sun was up that morning of
January 3 (the stabbing occurred past midnight of January 2), Cunigunda
went to the city and presented herself at the police headquarters where
she reported that she stabbed her husband and surrendered the blood-
stained dress she wore that night. On this point, the trial judge stated that
appellant made contradictory statements in her testimony concerning the
report made by her to the police authorities, for while at the start she
declared that she did not report the "choking by her husband", she later
changed her testimony and stated that she did relate that fact. (p. 10,
Decision)
We have gone over the stenographic transcript of the testimony of
appellant on direct examination and nowhere is there a positive and direct
statement of hers that she did not report that she was choked by her
husband. What the trial judge asked of appellant was whether or not she
told the police about the fist mark on her face and her answer was "No, sir,
I forgot." (tsn. p. 55, supra) And on appellant's cross-examination, there
was no question propounded and therefore there was no answer given on
the subject-matter of appellant's report to the police concerning the
incident except for the following:
COURT:
Q Did you show that dress to the police authorities the following
day?
A I was not able to wear that, Your Honor, because it was torn out.

Q You did not bring that to the police authorities?
A I showed it to the police authorities, and they told me to keep it,
not to touch it. (Tsn. p. 65, ibid)
We do not see, therefore, the alleged contradiction in appellant's
testimony which was singled out by His Honor as one of his reasons for
discrediting her plea of self-defense.
That appellant made it clear to the police that she stabbed her husband
because he attacked her is confirmed by no less than the prosecution
witness, Patrolman Restituto Mariveles, who was on duty at the desk when
appellant arrived at the police headquarters. This witness on cross-
examination declared:
Q And she also told you that on that night previous to the incident
her husband Francisco Caballero beat her up, is that right?
A She told me that she was met on the way by her husband
immediately after carolling and she was manhandled by her husband and
when she was struggling to get loose from her husband she happened to
take hold of a knife that was placed under the belt of her husband and
because she was already half conscious she did not know that she was able
to thrust said knife to the stomach of her husband. (tsn. p. 23, witness R.
Mariveles)
It is indeed regrettable that the statements made by appellant to the
police upon her surrender were not taken down in writing to serve as a
faithful and reliable account of her report, nevertheless, We are satisfied
by the fact, which is not disputed, that of her own accord appellant went
to the police authorities early in the morning of January 3, informed
Policeman Mariveles that she stabbed her husband because he
manhandled her which rendered her "half-conscious", and brought and
showed the dress she wore during the incident which was torn by the
collar and with blood stains due to the bleeding of her nose. Another
policeman, Joventino de Leon, who at the time was property custodian of
the Ormoc City police, corroborated appellant's testimony concerning the
50
dress marked Exhibit 1 for the defense. (tsn. p. 70 witness J. de Leon) If
there was no clear and positive statement in appellant's testimony either
on direct or cross examination that she informed the police that she was
choked by her husband, it was because, as We noted, no question was
propounded to her on that point.
While We are on this subject of appellant's surrender, mention is to be
made of the knife marked as Exhibit C for the prosecution. In her
testimony, appellant stated that Exhibit C was not the knife actually used
by her in stabbing her husband because the true weapon was her
husband's Moro hunting knife with a blade of around six inches which she
threw away immediately after the incident; that when she was asked by
Pat. Mariveles to look for the weapon and she could not find it, she was
advised by policeman Cabral who helped her in the search to get any knife
and surrender it to the desk officer and so she took the knife Exhibit C and
presented it to Pat. Mariveles. (tsn. appellant pp. 56-57, 60) This testimony
of appellant was taken against her by the court a quo which held that her
declaration could not have been true. We find however no strong reason
for disbelieving the accused on this point. Appellant does not deny that she
turned over Exhibit C to Pat. Mariveles as the knife with which she stabbed
her husband but she claims that she did so upon advise of another
policeman, Pat. Cabral, and it is quite significant that the latter was not
called upon by the prosecution to refute such declaration. There is
sincerity in appellant's attempt to rectify a misstatement made by her to
Pat. Mariveles and We are inclined to believe and in fact We do believe
that the fatal weapon must have had indeed a blade of around six inches
as stated by appellant for it to penetrate through the left lumbar region to
the victim's large intestine and cause the discharge of fecal matter (tsn. Dr.
C. Samson, p. 6)
All the elements of self-defense are indeed present in the instant case.
The element of unlawful aggression has been clearly established as
pointed out above.
The second element, that is, reasonable necessity for the means employed
is likewise present. Here we have a woman who being strangled and
choked by a furious aggressor and rendered almost unconscious by the
strong pressure on her throat had no other recourse but to get hold of any
weapon within her reach to save herself from impending death. Early
jurisprudence of this Court has followed the principle that the reasonable
necessity of the means employed in self-defense does not depend upon
the harm done but rests upon the imminent danger of such injury. (U.S. vs.
Paras, 1907, 9 Phil. 367, citing Decision of Dec. 22, 1887) And so the fact
that there was no visible injury caused on the body of the appellant which
necessitated medical attention, a circumstance noted by the trial court, is
no ground for discrediting self-defense; what is vital is that there was
imminent peril to appellant's life caused by the unlawful aggression of her
husband. The knife tucked in her husband's belt afforded appellant the
only reasonable means with which she could free and save herself from
being strangled and choked to death. What this Court expressed in the
case of People vs. Lara, 1925, 48 Phil. 153, 160, is very true and applicable
to the situation now before Us, and We quote:
It should be borne in mind that in emergencies of this kind human nature
does not act upon processes of formal reason but in obedience to the
instinct of self-preservation; and when it is apparent, as in this case, that a
person has reasonably acted upon this instinct, it is the duty of the courts
to sanction the act and to hold the actor irresponsible in law for the
consequences. 16
Equally relevant is the time-honored principle: Necessitas Non habet
legem. Necessity knows no law.
The third element of self-defense is lack of sufficient provocation on the
part of the person defending himself. Provocation is sufficient when it is
proportionate to the aggression, that is, adequate enough to impel one to
attack the person claiming self-
defense. 17 Undoubtedly appellant herein did not give sufficient
provocation to warrant the aggression or attack on her person by her
husband, Francisco. While it was understandable for Francisco to be angry
at his wife for finding her on the road in the middle of the night, however,
he was not justified in inflicting bodily punishment with an intent to kill by
choking his wife's throat. All that appellant did was to provoke an
imaginary commission of a wrong in the mind of her husband, which is not
a sufficient provocation under the law of self-defense. Upon being
51
confronted by her husband for being out late at night, accused gave a valid
excuse that she went carolling with some friends to earn some money for
their child. January 2 was indeed within the Christmas season during which
by tradition people carol from house to house and receive monetary gifts
in a Christian spirit of goodwill. The deceased therefore should have given
some consideration to his wife's excuse before jumping to conclusions and
taking the extreme measure of attempting to kill his wife.
IN VIEW OF THE ABOVE CONSIDERATIONS, We find that accused-appellant
acted in the legitimate defense of her person, and We accordingly set aside
the judgment of conviction and ACQUIT her with costs de oficio.
So Ordered.
G.R. No. 148810 November 18, 2003
PEOPLE OF THE PHILIPPINES, appellee,
vs.
HEVER PAULINO y BIYAYA, appellant.
DECISION
YNARES-SANTIAGO, J.:
This is an appeal from the decision1 of the Regional Trial Court of
Dumaguete City, Branch 34, in Criminal Case No. 12720 finding appellant
Hever Paulino y Biyaya guilty beyond reasonable doubt of the crime of
Murder, sentencing him to suffer the penalty of reclusion perpetua and
ordering him to indemnify the heirs of the victim the sum of P50,000.00.
For the death of the Leonarda Paulino, appellant was charged with murder
in an Information that reads:
That on 18 August 1996 at about 5:00 o'clock in the afternoon in Sitio
Tubod, Tamao, Tayasan, Negros Oriental, Philippines and within the
jurisdiction of this Honorable Court the above-named accused, with intent
to kill and with treachery and evident premeditation and without regard of
the respect due to the offended party on account of her sex did then and
there willfully, feloniously and unlawfully attack, assault and stone one
Leonarda Paulino with a large rock thereby inflicting upon the latter fatal
injury at her head which caused her death soon thereafter.
CONTRARY TO ART. 248 of the Revised Penal Code.2
When arraigned, appellant pleaded not guilty.1âwphi1 Thereafter trial on
the merits ensued.
The facts of the case are as follows:
On August 18, 1996, at about 5:00 p.m., the victim and her daughters, Joy
and Mylene, were at their house when appellant passed by and asked for
water to drink. Since he was the nephew of the victim, appellant was
welcomed into the house and was given a glass of water by Mylene. He
stayed at their porch while Mylene left for the house of her grandmother,
Vivenciana Cantero, approximately 40 meters away. Moments later, the
victim advised appellant to go home as his father might be looking for him.
Appellant left the house angry at the victim for telling him to leave. Then,
as the victim and Joy walked towards the house of Vivenciana Cantero to
fetch Mylene, Joy saw appellant, who was only about 2 meters behind
them, throw a rock at them hitting the head of the victim. The victim
slumped to the ground with her face down while appellant ran away.
Vivenciana heard the cries of Joy for help, and rushed to the scene. Her
husband, Timoteo Cantero and Leonila Onayan, Joy's aunt, helped
Vivenciana bring the victim to Bindoy District Hospital where she was
treated. She was then transferred to the Negros Oriental Provincial
Hospital later that night. The victim died the following day.3
Dr. Fe Herrera, a resident physician of Bindoy District Hospital, testified
that the victim was unconscious when she was brought by the relatives to
the hospital. The victim sustained two lacerated wounds, one on the left
temporal region, about three centimeters long and the other one on the
right parietal region, about six centimeters long. She referred the victim to
the Negros Oriental Provincial Hospital for further treatment.4
52
Dr. Virgilio de Guzman, the government physician at the Negros Oriental
Provincial Hospital who attended to the victim, testified that the injuries
sustained by the victim were fatal and no amount of surgical intervention
could have saved her. The victim died on August 19, 1996 at 8:30 a.m. due
to cardio-pulmonary arrest secondary to uncal herniation secondary to
severe traumatic injury.5
For his part, appellant admits that he threw a stone at the victim but
claims that he did so in self-defense. According to him, in the afternoon of
August 18, 1996, he passed by the house of the victim and asked for water
to drink. After Mylene Paulino gave him a glass of water, he asked her if
she already had a boyfriend. Mylene did not reply but kicked him instead.
She then went into the kitchen. Suddenly, the victim came out of the
kitchen holding a scythe in her hand and shouted at him, "I will kill you! I
will chop you finely with the use of this scythe!" Appellant ran away and
the victim chased him. When the victim was about 3 meters away from
him, he picked a stone and threw it at her to defend himself. After that, he
ran towards their house. He did not see whether the victim was hit or not.
That same night, he told his father what happened. The following morning,
he went to the house of policeman Remegio Torres to surrender. He was
accompanied to the police station of Tayasan, Negros Oriental, where he
was investigated and detained.6
After trial, the court a quo rendered a decision, the dispositive portion of
which reads:
WHEREFORE, accused HEVER PAULINO is hereby found guilty beyond
reasonable doubt of the crime of Murder, qualified by treachery, and the
Court hereby imposes upon him the penalty of RECLUSION PERPETUA.
Accused is likewise directed to indemnify the heirs of victim Leonarda
Paulino the amount of FIFTY THOUSAND PESOS (P50,000.00).
In line with Section 5, Rule 114 of the 1985 Rules on Criminal Procedure, as
amended, accused Hever Paulino is hereby ordered to be immediately
detained at the New Bilibid Prison in Muntinlupa City, Metro Manila. The
accused is, however, hereby given full credit for the entire period of his
preventive detention, provided that he has submitted himself to and
observed the rules and regulations imposed by the detention center.
No pronouncement as to costs.
SO ORDERED. 7
Hence, this appeal, based on the following assignment of errors:
I.
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER.
II.
THE COURT A QUO GRAVELY ERRED IN NOT CONSIDERING THE JUSTIFYING
CIRCUMSTANCE OF SELF-DEFENSE INTERPOSED BY THE ACCUSED-
APPELLANT.
III.
ON THE ASSUMPTION THAT THE ACCUSED-APPELLANT IS LIABLE FOR THE
ACTS COMPLAINED OF, THE COURT A QUO GRAVELY ERRED IN
APPRECIATING THE QUALIFYING AGGRAVATING CIRCUMSTANCE OF
TREACHERY.8
Appellant's claim of self-defense is unavailing.
Settled is the rule in criminal cases that the prosecution has the onus
probandi in establishing the guilt of the accused.9 However, where the
accused admits commission of the crime but invokes self-defense, the
basic rule that the burden of proving the guilt of the accused lies on the
prosecution is reversed, and the burden of proof is shifted to the accused
to prove the elements of his defense.10 It then becomes incumbent upon
him to rely on the strength of his own evidence and not on the weakness
of the evidence of the prosecution, for even if the latter were weak, it
could not be disbelieved after he had admitted the killing.11 Hence, if the
53
accused fails to discharge the burden of proof, his conviction must ensue
as a matter of consequence.12
By invoking self-defense, appellant must prove: (a) unlawful aggression on
the part of the victim; (b) reasonable necessity of the means employed to
repel or prevent it; and (c) lack of sufficient provocation on the part of the
person defending himself.13 Although all the three elements must concur,
self-defense must rest firstly on proof of unlawful aggression on the part of
the victim. If no unlawful aggression has been proved, no self-defense may
be successfully pleaded, whether complete or incomplete. In other words
in self-defense, unlawful aggression is a primordial element.14
The question whether appellant acted in self-defense is essentially a
question of fact.15 In convicting appellant, the trial court succinctly held
that:
In the case at bar, the court is not persuaded to believe the assertion of
accused Hever Paulino that he acted in self-defense when he threw a big
stone at the head of victim Leornarda Paulino, which led to her death. As
admitted by the accused on the witness stand, he had no previous quarrel
or misunderstanding with victim Leonarda Paulino, nor with eyewitness
Joy Paulino, or with any members of their family. There is no reason,
therefore, why Leonarda would chase him with a scythe. There is also no
reason at all why Joy Paulino would impute to the accused the heinous
crime of Murder, if he did not commit the crime as charged. This is
especially so, taking into account the fact that the accused, the victim and
the eyewitness are relatives. Leonarda is the wife of the uncle of the
accused, while Joy is the first cousin of the accused. Well-settled is the rule
that where there is no showing that the principal witnesses for the
prosecution were actuated by any improper motive, the presumption is
that they are not so actuated and their testimonies are entitled to full faith
and credit. Mere relationship of a witness to the victim does not impair her
credibility as to render her testimony unworthy of credence where no
improper motive can be ascribed to her for so testifying. The assertion of
the accused that the victim chased him with a scythe is unworthy of belief
as it is unnatural, coupled by the fact that it runs counter to the credible
and straightforward testimony of eyewitness Joy Paulino…
xxx xxx xxx
The fact that victim Leonarda Paulino advised the accused, who is the
nephew of her husband, to go home because he has his own house and his
father might be looking for him, does not constitute an unlawful
aggression in contemplation of law. The victim simply showed concern for
the accused and his father.16 (Citations omitted)
We have consistently held that findings of facts and assessment of
credibility of witnesses are matters best left to the trial court because of its
unique position of having observed that elusive and incommunicable
evidence of the witnesses' deportment on the stand while testifying, which
opportunity is denied to the appellate courts. The trial court's findings are
accorded finality, unless there appears in the record some fact or
circumstance of weight which the lower court may have overlooked,
misunderstood or misappreciated and which, if properly considered, would
alter the results of the case.17 No such fact or circumstance obtains in the
case at bar.1âwphi1
Appellant failed to prove with satisfactory and convincing evidence that
the victim was guilty of unlawful aggression. Self-defense cannot be
justifiably entertained where it is not only uncorroborated by competent
evidence but is seriously doubtful. Like alibi, self-defense is inherently a
weak defense, which is so easy to concoct but very difficult to verify.18
Appellant's invocation of self-defense therefore deserves scant
consideration.
Appellant next argues that if he were to be held criminally liable, it should
only be for homicide. According to him, treachery was not alleged in the
Information with specificity as to qualify the killing to murder. He cites as
bases for his argument the cases of People v. Alba19 and People v.
Manlansing,20 wherein the Court disregarded the qualifying circumstance
of treachery for the reason that it failed to specify treachery as a
circumstance qualifying the killing to murder. In said cases, treachery was
considered only a generic aggravating circumstance; thus, the crime
committed was only homicide and not murder.
We do not agree.
54
In the subsequent case of People v. Aquino,21 the Court clarified its ruling
in the cases of Alba and Manlansing by holding that:
[T]he Court has repeatedly held, even after the recent amendments to the
Rules of Criminal Procedure, that qualifying circumstances need not be
preceded by descriptive words such as "qualifying" or "qualified by" to
properly qualify an offense.
xxx xxx xxx
Section 9, Rule 110 of the Revised Rules of Criminal Procedure states that
the-
"x x x qualifying and aggravating circumstances must be stated in ordinary
and concise language and not necessarily in the language used in the
statute but in terms sufficient to enable a person of common
understanding to know x x x (the) qualifying and aggravating circumstances
x x x."
Thus, even the attendant circumstance itself, which is the essential
element that raises the crime to a higher category, need not be stated in
the language of the law. With more reason, the words
"aggravating/qualifying circumstances" as used in the law need not appear
in the Information, especially since these words are merely descriptive of
the attendant circumstances and do not constitute an essential element of
the crime. These words are also not necessary in informing the accused
that he is charged of a qualified crime. What properly informs the accused
of the nature of the crime charged is the specific allegation of the
circumstances mentioned in the law that raise the crime to a higher
category.
The rules require the qualifying circumstances to be specifically alleged in
the Information in order to comply with the constitutional right of the
accused to be properly informed of the nature and cause of the accusation
against him. The purpose is to allow the accused to prepare fully for his
defense to prevent surprises during the trial.
xxx xxx xxx
Section 8 of Rule 110 requires that the 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." (Emphasis supplied). Section 8 merely requires the
Information to specify the circumstances. Section 8 does not require the
use of the words "qualifying" or "qualified by" to refer to the
circumstances which raise the category of an offense. It is not the use of
the words "qualifying" or "qualified by" that raises a crime to a higher
category, but the specific allegation of an attendant circumstance which
adds the essential element raising the crime to a higher category.
xxx xxx xxx
We therefore reiterate that Sections 8 and 9 of Rule 110 merely require
that the Information allege, specify or enumerate the attendant
circumstances mentioned in the law to qualify the offense. These
circumstances need not be preceded by the words
"aggravating/qualifying," "qualifying," or "qualified by" to be considered as
qualifying circumstances. It is sufficient that these circumstances be
specified in the Information to apprise the accused of the charges against
him to enable him to prepare fully for his defense, thus precluding
surprises during the trial. When the prosecution specifically alleges in the
Information the circumstances mentioned in the law as qualifying the
crime, and succeeds in proving them beyond reasonable doubt, the Court
is constrained to impose the higher penalty mandated by law. This includes
the death penalty in proper cases.
In the case at bar, the Information clearly passes the test as it specified
treachery as an attending circumstance in the commission of the crime.
The allegation, although not preceded by the words
"aggravating/qualifying," "qualifying," or "qualified by," is sufficient to
apprise appellant of the charge against him as to enable him to prepare
fully his defense.
The trial court correctly found the presence of the qualifying circumstance
of treachery in the instant case. There is treachery when the offender
55
commits any of the crimes against persons, 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 essence of treachery is the swift and
unexpected attack on the unarmed victim without the slightest
provocation on his part.22
In the case at bar, it was established that the victim had no reason to
expect that she will be assaulted by appellant. She and her daughter Joy
were just walking towards the house of Vivenciana to fetch her other
daughter Mylene. The unexpected and sudden attack on Leonarda
constitutes treachery because said assault rendered her unable and
unprepared to defend herself. Appellant's act of throwing a stone at the
victim from behind shows that he deliberately adopted a mode of attack
that would deprive the victim of an opportunity to defend herself.
As to the mitigating circumstance of voluntary surrender, we agree with
appellant that the same should be considered in his favor. The evidence
shows that appellant surrendered to a person in authority a day after the
incident. This fact was not contested by the prosecution. Notwithstanding
this, the presence of voluntary surrender as a mitigating circumstance will
not affect the penalty to be imposed upon appellant. Under Article 248 of
the Revised Penal Code, as amended, the penalty for murder is reclusion
perpetua to death. Article 63 of the same code states that when the law
prescribes a penalty consisting of two indivisible penalties and the crime is
attended by a mitigating circumstance and no aggravating circumstance,
the lesser penalty shall be imposed.23 Consequently, the penalty of
reclusion perpetua was correctly imposed by the trial court.
Finally, the trial court correctly awarded civil indemnity in the amount of
P50,000.00 to the heirs of the victim. Civil indemnity is automatically
imposed upon the accused without need of proof other than the fact of
the commission of murder or homicide.24 Likewise, the trial court was
correct in not awarding actual, moral and exemplary damages because the
prosecution failed to present competent evidence to prove the same. To
justify an award of actual damages, there must be competent proof of the
actual amount of loss.25 Further, in murder cases, moral damages cannot
be granted in the absence of proof therefor26 and exemplary damages
without any aggravating circumstance.27
WHEREFORE, in view of the foregoing, the decision of the Regional Trial
Court of Dumaguete City, Branch 34, in Criminal Case No. 12720 finding
appellant Hever Paulino y Biyaya guilty beyond reasonable doubt of the
crime of murder and sentencing him to suffer the penalty of reclusion
perpetua and ordering him to pay the heirs of the victim the sum of
P50,000.00 as civil indemnity is AFFIRMED in toto.
Costs de oficio.
SO ORDERED.
G.R. No. 160341 October 19, 2004
EXEQUIEL SENOJA, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CALLEJO, SR., J.:
Before us is a petition for review on certiorari of the Decision1 of the Court
of Appeals (CA) in People v. Exequiel Senoja, docketed as CA-G.R. CR No.
26564, affirming with modification the Decision2 of the Regional Trial
Court (RTC) of Baler, Aurora, Branch 96, in Criminal Case No. 2259, for
homicide.
The Case For the People
As culled by the Office of the Solicitor General (OSG) in its comment on the
petition, the case stemmed from the following:
1. On April 16, 1997, petitioner Exequiel Senoja, Fidel Senoja, Jose Calica,
and Miguel Lumasac were drinking gin in the hut of Crisanto Reguyal in
56
Barangay Zarah, San Luis, Aurora. An angry Leon Lumasac suddenly arrived
at the said place, holding a bolo in his right hand and looking for his
brother Miguel. Petitioner and Jose tried to pacify Leon. But when
petitioner approached Leon, the latter tried to hack him so he embraced
Leon and Jose took Leon’s bolo. Then, Leon and petitioner talked things
out and later reconciled (pp. 2-4, TSN, November 16, 1998; pp. 2-4, TSN,
August 30, 2002; p. 2, TSN, April 21, 1998; p. 5, TSN, March 14, 2001; p. 2,
CA Decision).
2. Subsequently, Leon walked out of Crisanto’s hut followed by petitioner.
Suddenly, about ten meters from the hut, petitioner stabbed Leon at the
back. When Leon turned around, petitioner continued stabbing him until
he fell to the ground. Then, petitioner ran towards the barangay road and
threw away the "kolonial" knife he used in stabbing Leon. The latter died
on the spot (pp. 2-6, TSN, November 22, 2000; p. 5, TSN, August 30, 2002;
p. 3, CA Decision).
3. Dr. Pura Deveza Valenzuela-Uy, San Luis Municipal Health Officer,
examined the cadaver of Leon and found multiple lesions on his body and
five fatal wounds on his chest. Dr. Uy issued a medico-legal report and
death certificate (Exhibits A and B, pp. 13-14, Records; pp. 3-5, TSN,
November 20, 1997).3
On August 13, 1997, an Information was filed charging petitioner Exequiel
Senoja with homicide, the accusatory portion of which reads:
That on April 16, 1997 at around 11 o’clock in the morning in Barangay
Zarah, San Luis, Aurora, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, did then and there, willfully, unlawfully,
and feloniously, with intent to kill, attack, assault, and use personal
violence upon the person of one Leon Lumasac by then and there stabbing
him with a bladed weapon locally known as "kolonyal" at the different
parts of his body thereby inflicting upon the latter mortal stab wounds
which were the direct and immediate cause of his death thereafter.
CONTRARY TO LAW.4
The petitioner admitted killing the victim but invoked the affirmative
defense of self-defense. His version of the fatal incident is set forth in his
petition at bar:
1. On April 16, 1997 at about 11 o’clock in the morning, Crisanto Reguyal,
Fidel Senoja, Jose Calica, Miguel Lumasac, and Exequiel Senoja were in the
hut of Crisanto Reguyal in Barangay Zarah, San Luis, Aurora, drinking gin;
2. Leon Lumasac suddenly arrived holding a bolo and hacked the doorpost
of Crisanto’s hut, angrily demanding for his brother, Miguel Lumasac,
whom he suspected of drying up the ricefield he was plowing;
3. At this time, Miguel Lumasac was no longer inside the hut but fetching
water;
4. To prevent Leon Lumasac from entering the hut, Exequiel Senoja
(appellant) and Jose Calica stood by the door while simultaneously trying
to pacify Leon Lumasac;
5. Exequiel Senoja with a knife then went outside and tried to pacify Leon
Lumasac but the latter angered by the gestures of the former tried to hack
Exequiel Senoja;
6. To avoid any injury, Exequiel Senoja embraced Leon which gave an
opportunity to disarm the duo. Jose Calica got the bolo of Leon and threw
it away while Fidel Senoja took the "colonial" knife of Exequiel;
7. Jose Calica and Fidel Senoja were able to pacify Leon Lumasac so they
invited him to get inside the hut. Inside the hut, Leon Lumasac tried to box
Fidel Senoja for siding with his brother, Miguel, but was prevented by
Exequiel Senoja who held Leon’s hands;
8. After a while, Leon Lumasac left but returned and angrily demanded for
his bolo. Jose Calica gave his own bolo with a sabbard to replace the bolo
of Leon which he threw away;
57
9. With Jose Calica’s bolo in him, Leon Lumasac left but only after leaving a
threat that something will happen to Exequiel Senoja for siding with his
brother;
10. After walking for about 10 meters away from the hut, Leon Lumasac
turned around and saw Exequiel Senoja on his way home following him;
11. Leon Lumasac walked back to meet Exequiel Senoja and upon reaching
him, the former suddenly and treacherously hacked the latter at the left
side of his head and right thigh;
12. Unable to evade the treacherous attack by Leon Lumasac who
persisted in his criminal design, Exequiel Senoja drew his "colonial" knife
and stabbed Leon Lumasac in self-defense, inflicting upon him multiple
wounds which caused his death.5
On June 7, 2002, the trial court rendered judgment against the petitioner,
finding him guilty beyond reasonable doubt of the crime charged. The fallo
of the decision reads:
WHEREFORE, premises considered, this Court finds accused Exequiel
Senoja GUILTY beyond reasonable doubt of the crime of Homicide for the
death of victim Leon Lumasac and hereby sentences him, applying Article
64, paragraph 1 of the Revised Penal Code and Section 1 of the
Indeterminate Sentence Law, (a) to suffer the penalty of twelve (12) years
of prision mayor as minimum to seventeen (17) years and four (4) months
of reclusion temporal as maximum; (b) to pay the heirs of the victim the
amount of Fifteen (sic) Thousand Pesos (Php 50,000.00) by way of civil
indemnity; and (c) to pay the costs.
SO ORDERED.6
In due course, the petitioner appealed the decision to the CA which
rendered judgment affirming, with modification, the decision of the RTC.
The petitioner now seeks relief from this Court, contending that:
The Honorable Court of Appeals failed to appreciate vital facts which, if
considered, would probably alter the result of this case on appeal finding
appellant’s plea of self-defense credible.7
The petitioner faults the CA for its analysis of his testimony, as follows:
The injuries suffered by the petitioner at the left side of his head and right
thigh was confirmed by Dr. Rodolfo Eligio in open court. The relative
positions of the wounds clearly show that the drunken Leon Lumasac
brandished and executed several hacking blows against Exequiel Senoja
before he was stabbed, neutralized and finished by the latter. It would be
physically and highly improbable for the victim if he was treacherously hit
at the left buttock and as he turned around to face the petitioner, the
latter stabbed him successively and without let-up hitting him 9 times
resulting in 9 fatal wounds. This did not give a chance to the victim to
retaliate and inflict those wounds upon the aggressor. The victim used Mr.
Jose Calica’s bolo which was secured by its scabbard. Unless earlier drawn,
it would be impossible for the victim to use it in defending himself from
the surprise attack and stabbing at a lightning fashion inflicting nine (9)
fatal wounds. Time element was the essence of this encounter which, as
narrated by the Honorable Court, after the assailant poked the victim at
the left side of the buttock with the use of the "colonial" knife he stabbed
him successively until he fell down dead. Under these circumstances, how
could Exequiel Senoja suffered (sic) those hacking (sic) wounds inflicted by
the victim using Calica’s bolo? In all indications, it was Leon Lumasac who
attacked his adversary first but lost in the duel considering that he was
older than Exequiel Senoja and drunk. Clearly, therefore, it was Leon
Lumasac who was the aggressor both in the first and second phases of the
incident and Exequiel Senoja was compelled to defend himself.
A closer scrutiny of the attending circumstances which resulted in this
stabbing incident shows that Exequiel Senoja has no compelling reasons to
kill his godfather. On that same occasion, Mr. Exequiel Senoja was with the
brother of the victim, Miguel Lumasac, which only shows that there was no
pre-existing grudge between these families. And still, what titillates our
imagination is the fact that Miguel Lumasac, who was then with the group
drinking gin at the hut of Crisanto Reguyal did not clearly impute this crime
to petitioner. On the contrary, when he was presented to the witness
58
stand, he was very evasive in answering the questions profounded by the
prosecutors if he wanted the petitioner to be imprisoned. Miguel Lumasac
could have told the real truth that Senoja murdered his brother.8
The CA declared that, based on the evidence on record:
As seen from appellant’s testimony, Leon Lumasac’s actions can be divided
into two (2) phases: the first phase, when Leon entered Crisanto Reguyal’s
hut, up to the time he and the appellant reconciled. The second phase was
when Leon left to go home. In phase one where Leon entered Reguyal’s
hut, Leon was the aggressor but his aggression was mostly directed to his
brother Miguel who was not inside the hut anymore, although it was also
partly directed at the appellant and even at Fidel Soneja (sic). But Leon’s
aggression against the appellant and Fidel Senoja ceased since, as
appellant testified, when Leon tried to box Fidel Senoja and he (appellant)
told Leon "Huwag po, Huwag po," Leon was pacified.
In the second phase, when Leon left the hut to go home, his aggression
had already ceased.
It is uncontroverted that the appellant followed the victim when the latter
went out of the hut to go home. Appellant’s testimony is that when he was
two meters outside the hut, Leon turned around to face him saying "if
you’re not only my godson" in a threatening way, then approached and
hacked him (with Calica’s bolo) inflicting wounds on the left side of his
head and his right thigh, thus, he (appellant) attacked the victim with the
kolonial knife he was holding. That appellant suffered such injuries was
corroborated by the testimony of Dr. Rodolfo Eligio.9
The petition is denied.
Paragraph 1, Article 11, of the Revised Penal Code provides:
ART. 11. Justifying circumstances. – The following do not incur any criminal
liability:
1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur;

First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel
it;
Third. Lack of sufficient provocation on the part of the person defending
himself.
The affirmative defense of self-defense may be complete or incomplete. It
is complete when all the three essential requisites are present; it is
incomplete if only unlawful aggression on the part of the victim and any of
the two essential requisites were present. In fine, unlawful aggression on
the part of the victim is a condition sine qua non to self-defense, complete
or incomplete. Whether or not the accused acted in self-defense is a
question of fact. Like alibi, the affirmative defense of self-defense is
inherently weak because, as experience has demonstrated, it is easy to
fabricate and difficult to disprove.10
The right of self-defense proceeds from necessity and limited by it. The
right begins where necessity does, and ends where it ends.11 There is,
however, a perceptible difference between necessity and self-defense,
which is that, self-defense excuses the repulse of a wrong; necessity
justifies the invasion of a right. Hence, it is essential to self-defense that it
should be a defense against a present unlawful attack.12
Life can be taken under the plea of necessity, when necessary for the
preservation of the life on the party setting up the plea. Self-defense is an
act to save life; hence, it is right and not a crime.13 There is a need for one,
indeed, for it is a natural right for one to defend oneself when confronted
by an unlawful aggression by another. It is a settled rule that to constitute
aggression, the person attacked must be confronted by a real threat on his
life and limb; and the peril sought to be avoided is imminent and actual,
not merely imaginary. Absent such an actual or imminent peril to one’s life
or limb, there is nothing to repel; there is no necessity to take the life or
inflict injuries on another.14
59
But then what is the standard to use to determine whether the person
defending himself is confronted by a real and imminent peril to his life or
limb? We rule that the test should be: does the person invoking the
defense believe, in due exercise of his reason, his life or limb is in danger?
After all, the rule of law founded on justice and reason: Actus no facit
remin, nisi mens sit rea. Hence, the guilt of the accused must depend upon
the circumstances as they reasonably appear to him.15
Unlawful aggression presupposes an actual, sudden, unexpected attack or
imminent danger thereof, not merely a threatening or intimidating
attitude.16 Hence, when an inceptual/unlawful aggression ceases to exist,
the one making a defense has no right to kill or injure the former
aggressor.17 After the danger has passed, one is not justified in following
up his adversary to take his life. The conflict for blood should be avoided if
possible.18 An assault on his person, he cannot punish when the danger or
peril is over. When the danger is over, the right of self-defense ceases. His
right is defense, not retribution.19
When the accused offers the affirmative defense of self-defense, he
thereby admits killing the victim or inflicting injuries on him. The burden of
evidence is shifted on the accused to prove, with clear and convincing
evidence, that he killed the victim or inflicted injuries on him to defend
himself. The accused must rely on the strength of his own evidence and
not on the weakness of that of the prosecution because if the evidence of
the prosecution were weak, the accused can no longer be acquitted.20
We agree with the CA that, as gleaned, even from the testimony of the
petitioner, there were two separate but interrelated incidents that
culminated in the petitioner’s stabbing and killing of the victim Leon
Lumasac. The first was the arrival of the victim, who was armed with a
bolo, in the hut of Crisanto Reguyal, looking for his brother Miguel
Lumasac, whom he was angry at. The victim hacked the wall of the house
in anger. The petitioner, who was armed with a knife, tried to pacify the
victim. The victim attempted to hack the petitioner; nevertheless, the
latter embraced and managed to pacify the victim. Forthwith, Jose Calica
took the bolo of the victim and threw it away. For his part, Fidel Senoja
took the petitioner’s knife. As it was, the victim was already pacified. He
and the petitioner were already reconciled.21 Fidel even gave back the
knife to the petitioner.
The second incident took place when the victim demanded that Calica
return his bolo as he wanted to go home already. Because he had thrown
away the victim’s bolo, Calica was, thus, impelled to give his own. The
victim then warned the petitioner three times, "May mangyayari sa iyo,
kung hindi ngayon, bukas," and left the hut. When the victim had already
gone about ten meters from the hut, the petitioner followed the victim.
The victim turned around and told the petitioner, "Kung hindi lang kita
inaanak." The victim then hacked the petitioner, hitting the latter on the
left side of his head and thigh. Believing that the victim would attack him
anew, the petitioner stabbed the victim frontally several times.22 He also
stabbed the victim on the left buttock. The petitioner could not recall how
many times he stabbed the victim and what parts of the latter’s body had
been hit.
The first episode inside the hut had been completed with the protagonist,
the victim, and the petitioner reconciled. The second episode commenced
inside the hut and continued outside, and ended with the petitioner
stabbing the victim several times.
The trial and the appellate courts gave no credence and probative weight
to the testimony of the petitioner. So do we.
First. The findings of fact of the trial court and its conclusions based on the
said findings are accorded by this Court high respect, if not conclusive
effect, especially when affirmed by the CA. This is because of the unique
advantage of the trial court of having been able to observe, at close range,
the demeanor and behavior of the witnesses as they testify. This rule,
however, is inapplicable if the trial court ignored, overlooked, or
misinterpreted cogent facts and circumstances which, if considered, will
alter or reverse the outcome of the case. We have reviewed the records
and found no justification for a reversal of the findings of the trial court
and its conclusions based thereon.
Second. The victim sustained six hack wounds and one lacerated wound.
This is gleaned from the Necropsy Report of Dr. Pura Uy, to wit:
60
FINDINGS: The victim lies in supine position, stocky in built; his clothing
completely soaked with fresh blood.
CHEST:
(+) stab wound 2 inches below the L nipple 4 inches deep running medially
to the anterior median line.
(+) stab wound 2 inches to the L of the anterior median line at the level of
the L nipple 5½ inches deep running posteriorly.
(+) stab wound 1 inch above the L nipple 4 inches deep running
inferomedially.
(+) stab wound 2 inches to the left of the anterior median line 4 inches
deep running inferoposteriorly.
(+) stab wound 1 inch to the right of the anterior median line at the level of
the second right intercostal space 0.5 inch in depth.
(+) stab wound ½ inch to the right of the anterior median line at the level
of the xyphoid process 3½ inches deep running superiorly.
(+) stab wound at the level of the L nipple L anterior axillary line 4½ inches
in depth running superiorly to the left armpit.
(+) hack wound at the left armpit 3 inches long injuring the muscles and
the blood vessels.
(+) lacerated wound on the left palm almost cutting off the proximal
phalanx of the left thumb.23
Five of the wounds of the victim on his chest were fatal.24 The victim also
sustained a stab wound on the left buttock. According to the doctor, it was
unlikely for the victim to have survived even with medical attention.25
After the doctor made her initial autopsy and submitted her report, she
noted that the victim sustained a stab wound of about two inches deep at
the left buttock, thus:
Q In this medico-legal report, you indicated that the cause of death of the
victim is "Hypovolemic shock 2º to multiple stab wounds, chest." Will you
please explain this?
A "Ito pong nakalagay o dahilan ng pagkamatay ng biktima sa sobrang
natapon na dugo gawa ng maraming saksak na tinamo ng biktima sa
kanyang dibdib ang nagbigay ng daan sa kanyang kamatayan."
Q Will you please tell us, Dr. Uy, if there is one amont (sic) these lesions
that is located at the back of the victim?
A I forgot to tell you that a day after I submitted the report, the funeral
parlor which attended the victim has called my attention because of the
wound at the back of the victim and I attended immediately to see these
lesions at the home of the victim. I reviewed for (sic) these lesions and I
saw one lesion located at the left buttock of the victim.
Q What is the nature of the injury?
A Stab wound, about two inches deep.
Q By the nature of the lesion, is it not fatal?
A It is not that fatal.
Q In your expert opinion, by the nature of the wound sustained by the
victim, what could have been the relative position of the victim in relation
to his assailant?
A Based on my examination, I think the victim and the assailant were
facing each other. "Masyadong malapit."
Q How many fatal wounds have (sic) the victim sustained in his chest?
A Five fatal stab wounds on the chest.26
61
Considering the number, nature and location of the wounds sustained by
the victim, the petitioner’s plea of self-defense is incredible.27 It bears
stressing that the petitioner resolutely denied stabbing the victim at the
buttock and insisted that he stabbed the victim frontally:
Q As a matter of fact, he sustained an injury at the back of his buttock
(pigi) and when he faced you, you stabbed him again several times?
A That is not true, Sir.
Q But you are admitting that you stabbed him several times frontally?
A Yes, Sir, because I am (sic) defending myself.
Q You also stabbed him in his left armpit?
A I don’t know, Sir.
Q But you knew that you stabbed him in his buttock?
A No, Sir.
Q After stabbing him several times and felt that he was already dead, you
already left the place?
A Yes, Sir.28
The testimony of the petitioner is belied by the physical evidence on
record. The settled rule is that physical evidence is evidence of the highest
order; it speaks more eloquently than a hundred witnesses.29
Third. The petitioner threw away his knife and failed to surrender it to the
policemen; neither did he inform the policemen that he killed the victim in
self-defense. The petitioner’s claim that the victim was armed with a bolo
is hard to believe because he even failed to surrender the bolo.30
Fourth. The petitioner’s version of the events that transpired immediately
before he stabbed the victim does not inspire belief. He claims that when
he saw the victim emerged from the hut, the victim walked towards the
petitioner saying, "Kung hindi lang kita inaanak," but hit and hacked the
latter on the left buttock.31 As gleaned from his statement, the victim was
not disposed, much less determined to assault the petitioner. And yet, the
petitioner insists that without much ado, the victim, nevertheless, hit him
on the head and on the thigh with his bolo.
Fifth. According to the petitioner, the victim warned him three times
before leaving the hut, "May mangyayari sa iyo, kung hindi ngayon, bukas."
The petitioner testified that shortly before the victim uttered these words,
the latter even touched the blade of the bolo to see if it was sharp.32 The
petitioner was, thus, aware of the peril to his life if he followed the victim.
The petitioner, nevertheless, followed the victim and left the hut after the
victim had gone barely ten meters. He should have waited until after the
victim had already gone far from the hut before going home to avoid any
untoward incident.
Sixth. The petitioner presented his brother-in-law Ruben Dulay to
corroborate his testimony that the victim stabbed the petitioner and that
this impelled the latter to stab the former. But the testimony of Dulay
contradicted the testimony of the petitioner:
Q When Exequiel Senoja stabbed Leon Lumasac several times, he
immediately fell to the ground and was fatal[ly] wounded, immediately
died because of several stabs and lay (sic) down?
A I did not see that scene because Exequiel Senoja stabbed Leon Lumasac, I
turn (sic) back upon seeing Leon Lumasac hack Exequiel Senoja, I turn (sic)
back because I was afraid then. When I turn (sic) back I saw them
embracing each other, Sir.
Q And that is the time when Exequiel Senoja stabbed Leon Lumasac?
A I did not see the stabbing. What I only saw was that they were embracing
each other, Sir.
62
Q So you are now changing your answer, you actually saw Exequiel Senoja
stabbing Leon Lumasac several times, after he was hack[ed] by Leon
Lumasac?
A I did not see that Exequiel Senoja stab Leon Lumasac, Sir.33
Seventh. The bare fact that the petitioner sustained a five-centimeter
wound at the left temporal region and an eight-centimeter hack wound on
the anterior portion of his right thigh does not preclude the fact that he
was the unlawful aggressor; nor buttress his plea that he acted in self-
defense. The petitioner failed to inform the doctor that he sustained the
wounds to defend himself. Moreover, the doctor testified that the wounds
the petitioner sustained were slight:
Pros. Ronquillo:
Q Does (sic) the wound at the right anterior thigh vertical, diagonal or
what?
A I did not place it, Sir.
Q So, you don’t know?
A It is vertical, Sir, but I did not place it on the record. And the hack wound
on the temporal region is oblique.
Q Were the injuries only slight?
A Yes, Sir.
Q So, it is (sic) possible that these injuries were self-inflicted?
A Probably, Sir, but I cannot comment on that.
Q You said that the patient was under the influence of alcohol? Would you
say that the patient was then so drunk at that time?
A When I saw him at that time, he was moderately drunk.34
 thigh is belied by his testimony on direct examination that the victim
The doctor gave the petitioner due medications for 30 minutes and the stabbed him while still inside the hut of Reguyal:
petitioner then went home:
Q How did it happen that you were able to kill the victim in this case Mr.
Q How did it happen that you were able to kill the victim in this case Mr. Leon Lumasac?
Leon Lumasac?
A Because when I went out, he hacked me, Sir.
A Because when I went out, he hacked me, Sir.
Q Were you hit by the hack made by the victim in this case?
Q Were you hit by the hack made by the victim in this case?
A Yes, Sir.
A Yes, Sir.
Q Where?
Q Where?
A Here, Sir.
A Here, Sir.
And Witness is pointing to his left head.
And Witness is pointing to his left head.
Q Where else?
Q Where else?
A (His) right thigh.
A (His) right thigh.
Q In what place did this incident happen?
Q In what place did this incident happen?
A In the hut of Tata Santos, Sir.
A In the hut of Tata Santos, Sir.
Q What is his real name?
Q What is his real name?
A Crisanto Reguyal, Sir.36
A Crisanto Reguyal, Sir.35
But then, after the said incident, the petitioner and the victim had
If, as claimed by the petitioner, the victim stabbed him frontally, it is reconciled. We agree with the following findings of the appellate court:
incredible that the victim was able to hack the anterior part of his right
thigh. The question that must be resolved is whether or not the victim was the
unlawful aggressor as the appellant’s testimony pictures him to be. The
Eighth. The testimony of the petitioner that the victim stabbed him outside Court rules in the negative. The victim had already left the hut and was ten
the hut on the left side of his head and the anterior portion of his right (10) meters away from it. There is no showing that the victim, who was
drunk, was aware that appellant was following him, or that the appellant

63
called out to him so that he (the victim) had to turn around and notice him.
It is clear that at that point in time, the victim was simply walking toward
his home; he had stopped being an aggressor. It was the appellant who,
smarting from the earlier incident in the hut where Leon told him "hindi ka
tatagal, sa loob ng tatlong araw mayroong mangyayari sa iyo, kung hindi
ngayon, bukas" repeated three times, wanted a confrontation. Appellant
stabbed or poked the victim in the left buttock resulting in the non-fatal
wound, and when the latter turned around, successively stabbed and
hacked the victim in the armpit and chest until he fell. In all, the victim
suffered nine (9) wounds.
It is the well-considered finding of this Court that while Leon Lumasac had
ceased being the aggressor after he left the hut to go home, accused
Exequiel Senoja was now the unlawful aggressor in this second phase of
their confrontation. It bears mentioning that appellant contradicted
himself with respect for (sic) the reason why he left the hut. First, it was to
pacify Leon and the second reason was that he was going home.
As for appellant’s injuries, it is clear that they were sustained in the course
of the victim’s attempt to defend himself as shown by the lacerated wound
on the victim’s left palm, a defensive wound.37
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed
Decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
G.R. No. 140985 August 28, 2007
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
VICTORIANO M. ABESAMIS, Appellant.
DECISION
CORONA, J.:
64
This is an automatic review of the decision1 dated July 30, 1999 of the
Court of Appeals (CA) in CA-G.R. CR No. 21860 finding accused-appellant
Victoriano M. Abesamis guilty of murder and meting out the penalty of
reclusion perpetua to him.
This is a story of a game of billiards with a tragic ending.
At around 6:00 p.m. of September 18, 1994, accused-appellant and his
brother, Rodel Abesamis, were in the billiard hall located at Cruz corner
Pepin Streets in Sampaloc, Manila. Accused-appellant played a game of
billiards with Rogelio Mercado, Jr. called "rotation" where the first player
who garners 61 points wins the game. A ₱40 bet was on the line. Ramon
Villo stood as "spotter" for them.
Accused-appellant was ahead with 59 points when he pocketed the
number 3 ball. Ramon erroneously scored it for Rogelio. Aggrieved,
accused-appellant protested. Matters got worse when Rogelio suddenly
rearranged the balls on the table and the game turned into a shouting
match between Rogelio and accused-appellant. Ramon tried to mediate
but accused-appellant vented his ire on him, sparking a heated argument.
Ramon decided to leave and proceeded to go out of the hall. However,
Rodel, accused-appellant’s brother, pursued him and caught up with him in
front of Andok’s lechon manok store a few meters away. A fistfight
between the two ensued. While the two were trading blows, accused-
appellant ran to a Ford Fiera2 parked nearby and got a foot-long butcher’s
knife. He then rushed to where Ramon and Rodel were fighting. He
stabbed Ramon in the back. The victim turned around to face accused-
appellant but Rodel grabbed his hands and held them from behind.
Accused-appellant then stabbed Ramon two more times, one in the upper
right portion of the chest and another in the lower left portion of the
chest. Thereafter, accused-appellant and Rodel boarded the Ford Fiera and
drove away.
Greatly weakened by the mortal wounds inflicted on him, Ramon managed
to take a few steps before slumping on the pavement. His mother3 and
brother4 soon arrived. He was brought to the University of Sto. Tomas
Hospital but his wounds were fatal and he was declared dead on arrival.

Dr. Manuel Lagonera5 performed an autopsy on Ramon’s cadaver. His
report stated:
EXTERNAL FINDINGS:
1. Stab wound, right anterior thorax, 51 inches from heel, 5 cms. from
anterior midline, measuring 20x6 cms., directed slightly downwards
backwards towards right lateral, transecting the sternum at the level of 1st
intercostal space, incising the upper lobe of the right lung, transecting the
right sub-clavian artery and ascending aorta. Depth – 11 cms.
2. Stab wound, left lower anterior thorax, 43 ½ inches from heel, 17 cms.
from anterior midline, measuring 5x2 cms., directed upwards, backwards
towards midline, lacerating the diaphragm, and spleen. Depth – 13 cms.
3. Stab wound, left lower posterior thorax, 41 inches from heel[,] 10 cms.
from posterior midline, incising the lower lobe of the left lung. Depth – 10
cms.
INTERNAL FINDINGS
1. Injuries to organs and tissues as indicated in the internal extensions of
the stab wounds, with massive bleeding in the thoracic and abdominal
cavities.
2. About one glassful of partially digested meaty materials with slight
alcoholic odor was recovered from the stomach.
CAUSE OF DEATH
STAB WOUNDS.6
An information7 for murder was filed against the brothers accused-
appellant and Rodel in the Regional Trial Court (RTC) of Manila, Branch 41.
It read:
65
That on or about September 18, 1994, in the City of Manila, Philippines,
the said accused, conspiring and confederating…and helping one another,
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 RAMON VILLO y MANGALINDAN… thrice with
a butcher’s knife, hitting him on the different parts of his body thereby
inflicting upon him mortal stab wounds which were the direct and
immediate cause of his death thereafter.8
However, accused-appellant and his brother remained at-large. Thus, the
case was temporarily archived. It was reactivated when accused-appellant
was arrested on March 26, 1996.
Accused-appellant pleaded not guilty when arraigned. During the trial, he
admitted stabbing Ramon with a butcher’s knife but claimed that he did so
only to defend himself. He claimed that when he questioned the victim
why ball number 3 was credited to Rogelio, he suddenly cussed him and
threatened to kill him. When he tried to leave the billiards hall, Ramon
blocked his way and tried to stab him with a balisong. He evaded the thrust
and ran outside to get a butcher’s knife from the Ford Fiera. Ramon
pursued him but he stood his ground. The victim tried to stab him again,
this time hitting him in the left arm. He fought back and stabbed Ramon
several times.
He then boarded the Ford Fiera and drove towards España Street in
Manila. He encountered heavy traffic along the way and abandoned the
vehicle somewhere in Forbes Street, Manila. He wanted to surrender to
the police but was advised by his relatives not to do so because Ramon’s
relatives might kill him. He then went to his hometown in Calamba,
Laguna. He managed to elude arrest until March 26, 1996.
On April 1, 1998, the trial court rendered its decision.9 It ruled that, while
it was established that accused-appellant killed Ramon, the prosecution
failed to prove the existence of either evident premeditation or treachery.
Thus, the trial court found accused-appellant guilty of homicide and
sentenced him to suffer the penalty of eight years and one day of prision
mayor as minimum to fourteen years, eight months and one day of
reclusion temporal as maximum. It also ordered him to pay the heirs of the
victim ₱50,000 as indemnity and ₱100,000 "for other damages":
WHEREFORE, judgment is hereby rendered finding the accused guilty of
Homicide and[,] with the application of the Indeterminate Sentence Law[,]
sentencing him to suffer the penalty of eight (8) years and one (1) day of
prision mayor to fourteen (14) years[,] eight (8) months and one (1) day of
reclusion temporal, as minimum and maximum respectively and to pay the
heirs of the victim the amount of ₱50,000.00 for the latter’s life and
₱100,000.00 for other damages, with legal interest from the time this
decision has become final until the same is fully paid.
SO ORDERED.10
On appeal, accused-appellant’s conviction was affirmed with modification
by the CA.11 It ruled that the evidence sufficiently established that Ramon
was killed with treachery: he was first stabbed in the back while he was
engaged in a fistfight with Rodel, then twice in front when he turned
around to face accused-appellant, with his hands held behind him by
Rodel. He was completely unaware and caught off-guard when he suffered
the first stab. He was defenseless when he was stabbed again. Thus, the
appellate court found accused-appellant guilty of murder, sentenced him
to reclusion perpetua and certified the case to this Court for review:
IN THE LIGHT OF ALL THE FOREGOING, the Decision of the Court a quo is
hereby AFFIRMED with the modification that the Appellant is hereby found
guilty of "Murder" qualified by treachery defined and penalized by Article
248 of the Revised Penal Code and is hereby meted the penalty of
"RECLUSION PERPETUA." However, considering the penalty imposed on
the Appellant, the Court hereby certifies this case to the Supreme Court for
appropriate review.
The Clerk of Court of this Court is hereby ordered to elevate all records of
this case, including documentary and testimonial evidence, to the Supreme
Court for appropriate review.
SO ORDERED.12
66
Accused-appellant faults the appellate court for (1) disregarding his claim
that he was only acting in self-defense when he inflicted the mortal
wounds on Ramon and (2) finding that the killing was attended by
treachery.
In a letter dated June 12, 2007, Julio Arciaga, assistant director for prisons
and security of the Bureau of Corrections, informed the Court that
accused-appellant was granted parole by the Board of Pardons and Parole
(Board) on March 5, 2003 and released from the custody of the Bureau of
Corrections on March 20, 2003.13
We are thus confronted with the following issues:
1. whether the grant of parole rendered this case moot;
2. whether accused-appellant only acted in self-defense and
3. whether the victim was killed with treachery.
The appeal has no merit.
Accused-Appellant’s Release on Parole Did Not Render the Case Moot
The appeal was not mooted by accused-appellant’s release on parole. His
release only meant that, according to the Board, he had already served the
minimum penalty imposed on him14 and that he was "fitted by his training
for release, that there [was] reasonable probability that [he would] live
and remain at liberty without violating the law and that such release
[would] not be incompatible with the welfare of society."15 Should he
violate the conditions of his parole, accused-appellant may be ordered
rearrested, to serve the remaining unexpired portion of the maximum
sentence.16
Parole refers to the conditional release of an offender from a correctional
institution after he serves the minimum term of his prison sentence.17 The
grant thereof does not extinguish the criminal liability of the offender.
Parole is not one of the modes of totally extinguishing criminal liability
under Article 89 of the Revised Penal Code.18 Inclusio unius est exclusio
alterius.
Similarly, accused-appellant’s release on parole did not extinguish his civil
liability.19 Article 113 of the Revised Penal Code provides:
ART. 113. Obligation to satisfy civil liability. – Except in case of extinction of
his civil liability as provided in the next preceding article,20 the offender
shall continue to be obliged to satisfy the civil liability resulting from the
crime committed by him, notwithstanding the fact that he has served his
sentence consisting of deprivation of liberty or other rights, or has not
been required to serve the same by reason of amnesty, pardon
commutation of sentence or any other reason. (emphasis supplied)
Thus, accused-appellant’s civil liability subsists despite his release on
parole.
Moreover, the grant of parole would be improvident if the CA decision
finding accused-appellant guilty of murder and sentencing him to suffer
the penalty of reclusion perpetua were to be affirmed by this Court. In
such a case, the determination of the Board that accused-appellant would
have already served the minimum penalty imposed on him would turn out
to be erroneous. Worse, in basing its determination of accused-appellant’s
eligibility for parole on the penalty imposed in the RTC decision, the Board
effectively ignored the decision of the CA.
Furthermore, the Board violated its own rules disqualifying from parole
those convicted of an offense punished with reclusion perpetua.21 Thus,
the Board should be warned in no uncertain terms for acting ultra vires,
carelessly disregarding the CA decision and improvidently granting parole
to accused-appellant.
We will now proceed to consider the merits of the appeal.
Accused-Appellant Did
Not Act In Self-Defense
67
He who admits killing or fatally injuring another in the name of self-
defense bears the burden of proving: (a) unlawful aggression on the part of
his victim; (b) reasonable necessity of the means employed to prevent or
repel it and (c) lack of sufficient provocation on his part. By invoking self-
defense, the burden is placed on the accused to prove the elements
thereof clearly and convincingly.22
While all three elements must concur, self-defense relies first and
foremost on proof of unlawful aggression on the part of the victim.23 If no
unlawful aggression is proved, no self-defense may be successfully
pleaded.24 Here, both the trial and appellate courts found that there was
no unlawful aggression on Ramon’s part and that, in fact, it was accused-
appellant who was the unlawful aggressor. Thus, accused-appellant’s claim
of self-defense cannot stand.
The nature, number and location of the wounds sustained by the victim
disprove accused-appellant’s claim of self-defense.25 On this account, the
appellate court correctly ruled that the accused-appellant’s version that he
fought face to face with the victim was inconsistent with the fatal stab
wound at the victim’s back. Moreover, the wounds inflicted by accused-
appellant on the victim indicated a determined effort to kill and not merely
to defend.26
Accused-appellant’s failure to surrender, his escape to Laguna and hiding
for more than a year until his eventual capture and arrest also contradicted
his claim that he acted in self-defense. Flight is indicative of guilt.
Furthermore, whether or not accused-appellant acted in self-defense is a
question of fact. It is a matter that is properly addressed to the trial court,
not to this Court. In fact, the trial and appellate courts amply evaluated
and carefully considered the issue. Their identical conclusions were based
on competent evidence. There is therefore no reason to disturb their
findings.
Treachery Attended the
Killing of the Victim

According to the CA, Ramon was defenseless when accused-appellant
stabbed him in the back. And he was completely at the mercy of accused-
appellant when he was repeatedly stabbed in front while Rodel was
holding his hands from behind. Thus, the CA ruled that Ramon was killed
with treachery.
We agree.
Accused-appellant perpetrated the killing in such a manner that there was
absolutely no risk to himself arising from the defense which the victim
might have made. Ramon was unarmed, had his back turned to accused-
appellant and was fighting with another person when stabbed in different
parts of the body. He was caught totally by surprise and did not even have
a chinaman’s chance to survive the attack. As we ruled in People v.
Fabrigas, Jr.:27
Treachery is present where the assailant stabbed the victim while the
latter was grappling with another thus, rendering him practically helpless
and unable to put up any defense. (emphasis supplied)
The Award of "Other
Damages" Was Improper
The trial court correctly awarded ₱50,000 to the heirs of the victim as civil
indemnity for his death.lavvphil This did not need any evidence or proof of
damages. However, the award of ₱100,000 "for other damages" was
wrong.
Under the law, there are various kinds of damages.28 They differ as to the
necessity of proof of pecuniary loss, the purpose of and grounds for their
award and the need for stipulation. Thus, the rule is that, in every case,
trial courts must specify the award of each item of damages and make a
finding thereon in the body of the decision.29
Nonetheless, every person criminally liable for a felony is also civilly
liable.30 Hence, this Court may go through the records to determine the
68
civil liability of accused-appellant. Moreover, an appeal in a criminal
proceeding opens the entire case for review.31 This includes a review of
the indemnity and damages involved.32
The award of actual damages is proper only if the actual amount of loss
was proven with a reasonable degree of certainty.33 It should be
supported by receipts.34 While the victim’s mother, Lolita Villo, testified
that she incurred expenses in connection with the victim’s death (e.g.,
funeral and burial expenses), she failed to substantiate her claim. Thus,
actual or compensatory damages cannot be awarded.
Current jurisprudence, however, allows the grant of ₱25,000 as temperate
damages when it appears that the heirs of the victim suffered pecuniary
loss but the award thereof cannot be established with certainty.35 Thus,
Lolita may be given ₱25,000 as temperate damages. She is also entitled to
an award of ₱50,000 moral damages for the mental anguish and distress
she suffered for the death of her son.36 Exemplary damages are not
warranted because no aggravating circumstance attended the crime.
Accordingly, the decision dated July 30, 1999 of the Court of Appeals in CA-
G.R. CR No. 21860 finding accused-appellant Victoriano M. Abesamis guilty
of murder, sentencing him to suffer the penalty of reclusion perpetua and
affirming the trial court’s order for him to pay the heirs of Ramon Villo
₱50,000 as civil indemnity is hereby AFFIRMED with the modification that
he is ordered to pay said heirs ₱50,000 as moral damages and ₱25,000 as
temperate damages. Accused-appellant is further ordered to pay the costs
of suit.
The grant of parole to accused-appellant by the Board of Pardons and
Parole is hereby declared NULL and VOID for lack of legal and factual basis.
Accused-appellant is hereby ordered to be REARRESTED immediately to
forthwith serve the remaining period of his sentence.
The members of the Board of Pardons and Parole are hereby WARNED to
never again disregard its rules and the decision of the Court of Appeals.
SO ORDERED.
G.R. No. 157201 September 14, 2007
NEMROD GOTIS, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
VELASCO, JR., J.:
In order to determine the sufficiency of a provocation for the purpose of
mitigating a crime, one must look into the act constituting the provocation,
the social standing of the person provoked, and the place and time when
the provocation is made.1 In the present case, a finding that the act of the
victim did not constitute unlawful aggression does not automatically
negate the attendant circumstance of sufficient provocation.
The Case
This Petition for Review on Certiorari2 under Rule 45 seeks the annulment
of the August 30, 2002 Decision3 and February 12, 2003 Resolution4 of the
Court of Appeals (CA) in CA-G.R. CR No. 22536 entitled People of the
Philippines v. Nemrod Gotis. The assailed Decision affirmed the October
29, 1997 Decision5 of the Irosin, Sorsogon Regional Trial Court (RTC),
Branch 55, convicting petitioner Nemrod of the crime of homicide. The
assailed Resolution denied petitioner’s Motion for Reconsideration.
The Facts
On October 21, 1990, at around six o’clock in the evening, petitioner,
Nemrod Gotis, and his brother, Nahom, arrived at Eddie Bautista’s coconut
plantation in Barangay Bonga, Bulan, Sorsogon looking for Serafin Gotis.
Serafin’s wife, Carmen, and daughter, Nilda, were then at the plantation.
Petitioner and Nahom, who were both armed with bolos, angrily
approached Carmen and Nilda and asked them where Serafin was. Not
being able to find Serafin, Nahom pointed his bolo at Nilda and said, "We
will kill your father!"6
69
After petitioner and Nahom had left, Carmen and Nilda went to the house
of Adolfo Malinao to wait for Serafin. When Serafin arrived, Carmen told
him what had happened at the plantation and prevented him from going
home. Serafin, however, disregarded Carmen’s warning and insisted on
going home.7
On their way home, Serafin and his family had to pass by Nahom’s house.
Upon reaching the gate of Nahom’s house, Serafin called for Nahom and
asked him to come out. When Nahom heard the shouts of Serafin, he
immediately called petitioner for help. Petitioner came over and advised
Serafin to go home, but he refused to leave. Instead, Serafin attempted to
hack petitioner and tried to enter the gate of Nahom’s house.8 Thereafter,
Nahom struck Serafin on the head with a bolo.9 Meanwhile, petitioner
entered his brother’s house to look for a bolo.10
After being hit, Serafin ran away. Petitioner, however, pursued him, and hit
him several times on the back and arm.11 Carmen, who was then following
Serafin, saw the incident and cried for help. Serafin’s brother, Jose,
responded, but before he could extend any help, petitioner poked a
Batangas knife on his neck. Jose, however, was able to parry the blow with
his arm. Thereafter, petitioner ran away.12
Serafin was brought to a hospital in Irosin, Sorsogon, but he eventually
died during treatment.
On January 16, 1991, the following Information was submitted before the
trial court:
That on or about the 21st day of October, 1990 at about [seven] o’clock in
the evening at Barangay Bonga, Municipality of Bulan, Province of
Sorsogon, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused conspiring, confederating and mutually helping
one another, armed with bolos and with intent to kill, did then and there,
willfully, unlawfully and feloniously, with treachery and evident
premeditation, attack, assault and hack one Serafin Gotis in the different
parts of his body which caused his instantaneous death, to the damage and
prejudice of his legal heirs.13
Petitioner admitted having killed Serafin. He, however, interposed the
justifying circumstance of self-defense. He claimed that he hit Serafin
merely to defend himself against the latter’s attack.
After trial, the RTC rendered its Decision, the dispositive portion of which
reads:
WHEREFORE, the Court renders judgment in Crim. Case No. 676 finding the
accused Nahom Gotis and Nemrod Gotis guilty beyond reasonable doubt
of the crime of Homicide as defined in Article 249, of the Revised Penal
Code. With respect to Nahom Gotis[,] the mitigating circumstance of
incomplete self-defense and defense of relative should be appreciated in
his favor. Applying the provisions of Article 69 of the Revised Penal Code[,]
the court hereby sentences the accused Nahom Gotis to suffer
imprisonment of an indeterminate [s]entence of six (6) months of arresto
mayor maximum as the minimum to six (6) years of prision correccional
maximum as the maximum. The accused Nemrod Gotis is to be credited
the mitigating circumstances of sufficient provocation and voluntary
surrender and applying the provisions of Article 64 (5) of the Revised Penal
Code[,] the said accused is to suffer imprisonment for an [i]ndeterminate
[s]entence of [f]our (4) years [and] two (2) months of prision correccional
medium as the minimum to [t]en (10) years of prision mayor medium as
the maximum. The accused Nahom Gotis shall jointly and severally
indemnify the heirs of Serafin Gotis the amount of P50,000.00 and to pay
the cost.
xxxx
SO ORDERED.14
Nahom applied for probation which was granted by the trial court.
Petitioner, on the other hand, appealed to the CA.
The Ruling of the Court of Appeals
The appellate court held that petitioner failed to satisfactorily prove the
elements of self-defense. Particularly, the CA held that unlawful aggression
did not exist at the time that petitioner attacked the victim. It observed
70
that the unlawful aggression against petitioner’s life had already ceased
when petitioner went inside his brother’s house and the victim ran away.
Thus, "[petitioner’s] coming out of the house with a bolo is indicative of a
determination to kill Serafin Gotis and not merely to defend himself."15
However, the CA ruled that petitioner is not entitled to the mitigating
circumstance of sufficient provocation because "this circumstance is
anchored on [petitioner’s] plea for self-defense which stands discredited
by the trial court x x x."16
Also, on the award of damages, the CA granted actual damages in the
amount of PhP 3,000, observing that "expenses for the embalmment of
the deceased x x x [were] duly documented by a receipt."17
The fallo of the August 30, 2002 Decision of the CA reads:
WHEREFORE, the Decision finding [petitioner] Nemrod Gotis guilty of
Homicide is AFFIRMED with the modification that he is hereby sentenced
to suffer a prison term of eight (8) years of prision mayor, as minimum, to
fourteen (14) years and eight (8) months of reclusion temporal, as
maximum and to pay the heirs of Serafin Gotis the amount of P3,000.00 as
actual damages in addition to the P50,000.00 [as] civil indemnity awarded
by the trial court.18
Hence, we have this petition.
The Issue
Whether or not the Honorable Court of Appeals gravely erred in affirming
with modification the Decision of the Regional Trial Court disregarding
petitioner’s plea of self-defense.19
The Court’s Ruling
The petition is partly meritorious.
Factual Questions Not Reviewable
The present petition was brought under Rule 45 of the Rules of Court. It is
a settled doctrine that petitions of this nature should only raise questions
of law.20 Moreover, the general rule is that questions of fact are not
reviewable, subject only to certain exceptions as when the judgment is not
supported by sufficient evidence or is premised on a misapprehension of
facts.21
In the present case, petitioner maintains that the CA failed to appreciate
that he had acted in self-defense, and thus, he should not be held liable for
Serafin’s death. However, petitioner failed to show that the CA’s findings
of fact should be disregarded. The factual findings are borne out by the
records and are supported by substantial evidence.
Article 11(1) of the Revised Penal Code provides the elements of self-
defense as a justifying circumstance, thus:
1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur:
First. Unlawful Aggression;
Second. Reasonable necessity of the means employed to prevent or repel
it;
Third. Lack of sufficient provocation on the part of the person defending
himself.
Unlawful aggression by the victim is a primordial element of self-defense;
without it, there can be no self-defense, complete or incomplete.22 To be
appreciated, the unlawful aggression must be a continuing circumstance or
must have been existing at the time the defense is made.23 A person
making a defense has no more right to attack an aggressor when the
unlawful aggression has ceased.24 In this case, the trial and appellate
courts correctly held that while Serafin initially attacked petitioner with a
bolo, the unlawful aggression already ceased when the latter was able to
go inside his brother’s house and the former ran away. At this point, there
was no longer any danger on his life; thus, there was also no necessity to
"defend" himself by pursuing and attacking Serafin.
71
Sufficient Provocation as a Mitigating Circumstance
The trial court appreciated the mitigating circumstance of sufficient
provocation. However, the appellate court reversed the trial court’s ruling
explaining that sufficient provocation is not compatible with the finding
that petitioner did not act in self-defense. By faulting petitioner for
inflicting injuries on the victim after the latter had run away, the CA likened
sufficient provocation with unlawful aggression. The CA erred.
As an element of self-defense, unlawful aggression presupposes an actual,
sudden, and unexpected attack, or imminent danger of the attack, from
the victim.25 On the other hand, as a mitigating circumstance, sufficient
provocation is any unjust or improper conduct or act of the victim
adequate enough to excite a person to commit a wrong, which is
accordingly proportionate in gravity.26 Notably, while an act cannot be
considered an unlawful aggression for the purpose of self-defense, the
same act can be considered as sufficient provocation for the purpose of
mitigating the crime.
In Pepito v. CA,27 the victim, before the killing, had challenged the
accused’s family with a bolo and an "indian pana." After this attack, the
victim went home. The accused thereafter grabbed a bolo, pursued the
victim, and killed him. The Court did not consider the victim’s act as an
unlawful aggression for the purpose of self-defense. However, such was
considered a provocation sufficient to mitigate the crime. People v.
Ubaldo28 had likewise disregarded the violent act of the victim before the
shooting incident as an unlawful aggression, but appreciated it as a
mitigating circumstance of sufficient provocation.
Moreover, the retaliation of the accused in Romero v. People,29 although
not considered an unlawful aggression, was nevertheless deemed as
sufficient provocation. The Court explained, "Thrusting his bolo at
petitioner, threatening to kill him, and hacking the bamboo walls of his
house are, in our view, sufficient provocation to enrage any man, or stir his
rage and obfuscate his thinking, more so when the lives of his wife and
children are in danger."30
In the present case, petitioner was merely pacifying Serafin when the latter
suddenly attempted to hack the former. Although petitioner evaded the
attack, Serafin’s act was enough provocation to anger petitioner and cause
him to strike back.
Thus, we find that sufficient provocation attended the crime. The prison
term imposed by the trial court in its October 29, 1997 Decision is hereby
REINSTATED.1âwphi1
WHEREFORE, the petition is PARTIALLY GRANTED. The August 30, 2002
Decision in CA-G.R. CR No. 22536 is AFFIRMED with modification on the
penalty, as follows:
Petitioner is hereby found guilty of Homicide, and sentenced to suffer an
indeterminate prison term of four (4) years and two (2) months of prisión
correccional as minimum to ten (10) years of prisión mayor as maximum,
and to pay the heirs of Serafin Gotis PhP 50,000 as indemnity for his death
and PhP 3,000 as actual damages.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 153287 June 30, 2008
NOEL GUILLERMO y BASILIANO, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
BRION, J.:
For our review is the petition1 filed by the petitioner Noel Guillermo y
Basiliano (petitioner) against the decision2 dated November 15, 2001 and
the resolution3 dated April 5, 2002 of the Court of Appeals (CA) in CA-G.R.
CR No. 24181. The challenged decision4 affirmed the decision of the
72
Regional Trial Court (RTC), Branch 18, Roxas City convicting and penalizing
the petitioner for the crime of homicide with an indeterminate sentence of
six (6) years of prision correccional, as minimum, to ten (10) years of
prision mayor, as maximum. The assailed resolution, on the other hand,
denied the petitioner’s motion for reconsideration.
BACKGROUND
For the death of one Winnie Alon (Winnie), the prosecution charged
Arnaldo Socias,5 Joemar Palma, and the petitioner with the crime of
homicide under an Information that states:
xxx
That at or about 5:40 o’clock in the afternoon, on or about July 21, 1996, at
Brgy. Poblacion Takas, Municipality of Cuartero, Province of Capiz,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating[,] and mutually helping one
another, armed with knives and with intent to kill, did then and there
willfully, unlawfully and feloniously assault, attack and stab one WINNIE
ALON y BILLANES, hitting the latter and inflicting multiple stab wounds on
the different parts of his body, which injuries caused his death shortly
thereafter.
That due to the untimely death of Winnie Alon y Billanes[,] his heirs are
entitled to death indemnity in the amount of P50,000.00 and other
damages pursuant to the provisions of the Civil Code of the Philippines.
ACTS CONTRARY TO LAW.6
The petitioner and his co-accused were arraigned and pleaded not guilty to
the offense charged with the assistance of their counsel de parte. The
prosecution presented Vicente Alon (Vicente) and Eddie Roque (Eddie) as
witnesses in the trial that followed; Dr. Ricardo Betita, Jr. (Dr. Betita), Baby
Lou Felipe (Baby Lou), and the three accused – the petitioner, Arnaldo
Socias, and Joemar Palma – took the witness stand for the defense.
The material points in the testimony of Vicente were summarized by the
trial court in its decision7 as follows:
Vicente Alon averred that at 5:40 in the afternoon of July 21, 1996, Winnie
Alon, Wilfredo Cabison, Eddie Roque, and him [sic] were at the public
market of Cuartero, at [sic] the restaurant of Melecio Heyres to eat.8 Noel
Guillermo, Arnel Socias, and Joemar Palma were at the restaurant drinking
beer. Noel Guillermo and Arnel Socias are known to him since childhood
since they come from the same barangay.9 Joemar Palma is known to him
only recently in that incident.10
While sitting at the table inside the restaurant, an altercation between
Arnel Socias and Winnie Alon regarding the cutting of wood by a chain saw
[sic] transpired. Noel Guillermo suddenly took hold of Winnie Alon and
stabbed the latter at the neck three (3) times.11 Joemar Palma went to the
kitchen and got a knife. Arnel Socias hit him with a bottle of beer by [sic]
the head. He fell down and lost consciousness.12 [Footnotes referring to
the pertinent parts of the record supplied]
Significantly, Vicente admitted on cross-examination that he and Winnie
were already drunk even before they went to the restaurant where the
stabbing took place.13
Eddie corroborated the testimony of Vicente on material points,
particularly on the state of their intoxication even before going to the
scene of the stabbing. His testimony on what transpired at the restaurant
was summarized in the RTC decision14 as follows:
Eddie Roque alleged that at around 5:40 o’clock in the afternoon of July
21, 1996, he, together with Winnie Alon, Vicente Alon and Wilfredo
Cabison, were [sic] inside the restaurant of Mrs. Heyres at Cuartero Public
Market to leave their tools of the chain saw [sic] and to eat and drink.15
Noel Guillermo, Arnel Socias, and Joemer Palma were ahead of them to
[sic] the restaurant and were drinking beer. They invited them and they
joined them.16 Before each of them could fully consume a bottle served
upon each of them, Winnie Alon and Arnel Socias argued about the cutting
of wood by means of a chain saw [sic]. The argument was so heated that
73
each of the protagonists stood up and Arnel Socias took 2 bottles which
were thrown to Vicente Alon who was hit on the forehead.17
Noel Guillermo hugged or embraced Winnie Alon and stabbed him three
times (3) on [sic] the neck with a Batangueño knife. Arnel Socias went
around, then behind, and stabbed Winnie Alon once, on the left side of his
body, just below his left armpit, with a pointed object, but he could not
determine what weapon was used. Joemar Palma also helped in stabbing
Winnie Alon once, hitting him at the right side of his body.18
Winnie Alon resisted trying to struggle [sic], but could not move because
he was ganged up by the three.19 [Footnotes referring to the pertinent
parts of the record supplied]
Dr. Betita, rural health physician of Cuartero, Capiz, declared on the
witness stand that he conducted on July 22, 1996 a postmortem
examination on the body of Winnie20 and made the following findings:
POSTMORTEM EXAMINATION
The postmortem examination is done on the remains of Winnie Alon, 31
years old, single, from Malagab-i, Cuartero, Capiz, was stab [sic] to death at
about 5:40 P.M. at Pob. Takas, Public Market, Cuartero, Capiz sustaining
the following injuries:
1. Stab wound 1.5 x 3 cm with 6-8 cm depth [L]eft anterior chest at level of
5th rib mid clavicular area.
2. Stab wound 2 x 3 cm with 5 cm depth anterior neck just above the
sternum.
3. Stab wound 2 x 3 cm with 3-5 cm depth at epigastric area.
The most probable cause of death was massive [H]emorrhage secondary to
multiple stab wounds.21
According to Dr. Betita, the cause of death was massive hemorrhage due
to multiple stab wounds.22 He added that the three (3) stab wounds were
probably caused by a sharp-bladed instrument like a knife.23
The petitioner gave a different version of the events, summarized in the
RTC decision as follows:
Noel Guillermo testified that at 5:30 in the afternoon of July 21, 1996, he
was in Cuartero at the restaurant of Melecio Heyres, husband of Gertrudes
Heyres, together with Arnel Socias and Joemar Palma drinking beer,
consuming only about half a bottle, when Winnie Alon, Eddie Roque,
Vicente Alon, and Wilfredo Cabison arrived and ordered beer from Babylou
Felipe. Winnie Alon came to him and requested to join them in their table
which he affirmatively answered. Winnie Alon then had an altercation with
Arnel Socias regarding "labtik" (string used in marking wood to be cut).24
Winnie Alon challenged Arnel Socias to a contest on clean or straight
cutting of wood. Arnel declined the challenge claiming that he is only an
assistant to his brother-in-law. Winnie Alon got angry and told him that he
has long been in [the] chain saw [sic] business but "you’re stupid" ("gago
ka!"). Arnel responded: "If the wood is crooked and you would deviate
from line, you’re stupid."25
Winnie Alon suddenly stood up and said to Arnel: "Don’t ever call me
stupid," pointing his finger to Arnel. He told them to settle the matter
peacefully as they are friend [sic], but Winnie Alon was so furious and
grabbed Arnel Socias by the collar. Arnel tried to release the hold of
Winnie from his collar. While he was pacifying the two telling them to
settle the matter peacefully, Winnie Alon turned to him and said: "you
also," then struck him with a beer bottle. He was hit at the right top of his
head thrice. He stood up and boxed Winnie who again picked up a bottle
break [sic] it against the wall, and struck him with the broken bottle. He
stepped back, pulled his knife, and stabbed him three (3) times but cannot
remember what part of his body was hit by his successive stabs.26 x x x
[Footnotes referring to the pertinent parts of the record supplied]
Baby Lou, a waitress at the restaurant of Melecio Heyres, narrated that in
the afternoon of July 21, 1996, the petitioner, together with Arnaldo and
74
Joemar, arrived at the restaurant and ordered beer.27 A few minutes later,
Vicente, Eddie, Winnie, and Wilfredo Cabison arrived and also ordered
beer. She then saw the group of Winnie transfer to the table occupied by
the petitioner and his companions. Thereafter, the group had a heated
argument among themselves regarding "labtik."28 In the course of the
exchange, she saw Winnie strike the petitioner on the head with a bottle.
Winnie and the petitioner then grappled with each other. At that point,
she hid behind the refrigerator and did not see what happened next.
Afterwards, she saw the bloodied body of Winnie lying outside the
restaurant.29 She likewise saw the petitioner outside the restaurant; his
shirt was splattered with blood.30
Dr. Betita, this time testifying as defense witness, stated, among others,
that the contusion hematoma suffered by the petitioner could have been
caused by a hard object like a beer bottle, while the linear abrasion could
have been caused by a fingernail.31
Arnaldo Socias testified that on July 21 1996, he, together with the
petitioner and Joemar, was drinking beer at the restaurant of Melecio
Heyres32 when Winnie stood up and asked if they (Winnie’s group) could
join them at their table. Arnaldo and his companions agreed. Winnie’s
group then transferred to the table of Arnaldo’s group.33
The discussion took a bad turn when the matter of cutting by chainsaw
was raised. Winnie challenged Arnaldo to a contest to determine who
could do the cleanest cut. He declined and claimed he does not know how
to operate a chainsaw. To this, Winnie retorted, "You are already old in
that business, but your finished product is still crooked. You are all dumb."
He countered, "If the wood itself is crooked, you cannot have a straight
lumber. You are dumb if you insist you can." At that point, Winnie stood up
and grabbed him by the collar. The petitioner intervened and told them to
settle their differences peacefully. Winnie then grabbed a bottle and struck
the petitioner on the head three times.34 Arnaldo added that he did not
see who stabbed Winnie, because while the petitioner and Winnie were
grappling, he was busy fighting with Vicente.35
Joemar Palma testified that in the afternoon of July 21, 1996, the
petitioner, Arnaldo, and he were drinking beer at the restaurant of Mr.
Heyres when four persons, who appeared to be drunk (later identified as
Vicente, Eddie, Winnie, and Wilfredo Cabison), entered the restaurant and
ordered beer.36 After the latter group joined them at their table, Winnie
and Arnaldo had a heated discussion regarding expertise in operating a
chainsaw. Winnie grabbed the shirt collar of Arnaldo in the course of the
heated exchange.37 The petitioner advised them to calm down, but
Winnie struck him (petitioner) on the head with a beer bottle three times.
Vicente also tried to strike Arnaldo, but the latter managed to duck and so
he (Joemar) took the hit instead. Thereafter, he and Arnaldo engaged
Vicente.38
The RTC, in its decision of January 8, 2000, convicted the petitioner of the
crime of homicide, but acquitted Arnaldo and Joemar. The dispositive
portion of the decision reads:
WHEREFORE, the evidence on record having established the guilt of Noel
Guillermo as principal in the crime of homicide for stabbing three (3) times
Winnie Alon which caused the latter’s death, attended by a special or
privileged mitigating circumstance of incomplete justification, and without
any aggravating or mitigating circumstances attendant, he is imposed an
indeterminate sentence of six (6) years of prision correccional, as
minimum, to ten (10) years of prision mayor, as maximum, with the
corresponding accessory penalties, and to pay death indemnity of
P50,000.00 to the heirs of Winnie Alon, in the service of his sentence he
shall be credited the period that he undergone [sic] preventive
imprisonment, conformably with Art. 29 of the Code.
Costs against the accused.
For insufficiency of evidence, the accused Arnaldo Socias and Joemar
Palma are acquitted of the crime charged. The bail bond for their
provisional liberty is CANCELLED AND DISCHARGED.
SO ORDERED.39 [Emphasis in the original]
The petitioner appealed to the CA whose decision is now assailed in the
present petition. The petitioner essentially claims that the RTC and the CA
75
erred in failing to recognize the existence of all the elements of self-
defense.
THE COURT’S RULING
We resolve to deny the petition for lack of merit.
Plea of Self-Defense
We note at the outset that the petitioner does not deny that he killed
Winnie. He expressly made this admission in his testimony of July 15, 1999:
ATTY. VILLAREAL:
Q: And what did you do when he struck you with the bottle?
NOEL GUILLERMO:
A: I was able to move backward and I realized that I have a knife on [sic]
the back of my waist.
Q: And what did you do with your knife?
A: I then stabbed him.
Q: How many times?
A: About three times as far as I can remember.40 [Emphasis supplied]
The petitioner justifies the stabbing as an act of self-defense.
As the lower courts did, we do not recognize that the petitioner fully acted
in self-defense.
As a rule, the prosecution bears the burden of establishing the guilt of the
accused beyond reasonable doubt. However, when the accused admits the
killing and, by way of justification, pleads self-defense, the burden of
evidence shifts; he must then show by clear and convincing evidence that
he indeed acted in self-defense. For that purpose, he must rely on the
strength of his own evidence and not on the weakness of the prosecution’s
evidence.41
The elements that the accused must establish by clear and convincing
evidence to successfully plead self-defense are enumerated under Article
11(1) of the Revised Penal Code:
ART. 11. Justifying circumstances. – The following do not incur any criminal
liability:
1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel
it;
Third. Lack of sufficient provocation on the part of the person defending
himself.
As a justifying circumstance, self-defense may be complete or incomplete.
It is complete when all the three essential requisites are present; it is
incomplete when the mandatory element of unlawful aggression by the
victim is present, plus any one of the two essential requisites.42
In the present case, we find it beyond dispute that the victim Winnie
started the fight that ended in his death; he struck the petitioner on the
head when the latter intervened to pacify the quarrel between Winnie and
Arnaldo. In short, the victim was the unlawful aggressor while the
petitioner was in the lawful act of pacifying the quarreling parties; thus,
the latter has in his favor the element of unlawful aggression by the victim.
We consider it also established that the petitioner did not provoke the
fight that ensued; he was a third party to the quarrel between the original
protagonists – Winnie and Arnaldo – and did not at all initiate any
76
provocation to ignite the quarrel. Thus, the petitioner also has the element
of lack of sufficient provocation in his favor.
The third element – the reasonableness of the means to repel the
aggression – is the critical element that the lower courts found lacking in
the petitioner’s case. Generally, reasonableness is a function of the nature
or severity of the attack or aggression confronting the accused, the means
employed to repel this attack, the surrounding circumstances of the attack
such as its place and occasion, the weapons used, and the physical
condition of the parties – which, when viewed as material considerations,
must show rational equivalence between the attack and the defense.43 In
People v. Escarlos,44 this Court held that the means employed by a person
invoking self-defense must be reasonably commensurate to the nature and
the extent of the attack sought to be averted. In Sienes v. People,45 we
considered the nature and number of wounds inflicted on the victim as
important indicia material to a plea for self-defense.
In the present case, the attack on the petitioner came as he intervened in a
quarrel between the victim and another party. As we concluded above, we
deem it established that the victim was the unlawful aggressor who
attacked the petitioner. Physical evidence shows that indeed the petitioner
suffered the following injuries:
1. Contusion Hematoma 2 x 3 left parital area just above the left ear.
2. Linear abrasion 3 – 4 cm left hand medial side.
3. Linear abrasion 2 – 3 cm left head ulnar side.46
The weapons that caused these injuries were a beer bottle and, quite
possibly, fingernails as the victim and the appellant grappled with each
other.47 In contrast, the victim suffered three stab wounds: at the neck, at
the abdomen and in the chest. The weapon used was a Batangas knife that
admittedly belonged to the petitioner. Thus, the physical evidence in the
case stands.
The petitioner claims self-defense on the position that Winnie, after hitting
him on the head three times with an empty bottle, grabbed another bottle,
broke it against the wall, and thrust it towards him. It was at this point that
the petitioner used his knife to inflict Winnie’s fatal wounds. Clearly, the
petitioner wants to impress upon us that his response to Winnie’s attack
was reasonable; he used a knife to repel an attacker armed with a broken
beer bottle.
Several reasons militate against our acceptance of the petitioner’s version
and interpretation of events.
First, there is intrinsic disproportion between a Batangas knife and a
broken beer bottle. Although this disproportion is not conclusive and may
yield a contrary conclusion depending on the circumstances, we mention
this disproportionality because we do not believe that the circumstances
of the case dictate a contrary conclusion.
Second, physical evidence shows that the petitioner suffered only one
contusion hematoma at the parietal area above the left ear. Unless the
three (3) beer bottle blows that the petitioner alleged all landed on the
same site – a situation that could have incapacitated the petitioner – the
more plausible conclusion from the physical evidence is that the petitioner
received only one blow, not three as he claimed. Contrary to what the
petitioner wishes to imply, he could not have been a defender reeling from
successive head blows inflicted by the victim.
Third, the victim, Vicente, and Eddie, were already drunk when they
arrived at the restaurant before the fatal fight. This state of intoxication,
while not critically material to the stabbing that transpired, is still material
for purposes of defining its surrounding circumstances, particularly the fact
that a broken beer bottle might not have been a potent weapon in the
hands of a drunk wielder.
Fourth, and as the CA aptly observed as well, the knife wounds were all
aimed at vital parts of the body, thus pointing against a conclusion that the
petitioner was simply warding off broken beer bottle thrusts and used his
knife as a means commensurate to the thrusts he avoided. To be precise,
the petitioner inflicted on the victim: one stab wound at the chest, 6-8
cms. deep, at the 5th rib clavicular area, or in plainer terms, in the area of
the victim’s heart; another was at the neck, 5 cms. deep, just above the
77
breastbone; and a last one was in the abdominal area, 3-5 cms. deep. The
depth of these wounds shows the force exerted in the petitioner’s thrusts
while the locations are indicative that the thrusts were all meant to kill, not
merely to disable the victim and thereby avoid his drunken thrusts.
Fifth, in appreciating the facts, the RTC and the CA were one in the
conclusion to disbelieve the petitioner’s allegation of complete self-
defense, as reflected in the CA’s further cogent observations that:
(b) If, indeed the deceased picked up another bottle of beer, hit the same
against the wall, resulting in the breakage of the bottle, and with it, hit the
Appellant anew, it behooved the Appellant to have rushed posthaste to
the police station and report the stabbing, with the request that a
policeman be dispatched to the locus criminis and confirm the presence of
broken pieces of beer bottle in the restaurant. The Appellant did not. He
and his companions, Arnaldo and Joemar, fled from the scene, via the back
door, and escaped on board a motorcycle.
(c) Neither Arnaldo, Joemar, or Babylou corroborated the claim of the
Appellant that, after the Appellant boxed Winnie, who lost his hold of the
bottle of beer, he picked up another bottle and struck the bottle of beer
against the wall and hit the Appellant with the bottle. The appellant relied
solely on is own testimony to buttress his defense.
(d) The Municipal Trial Court conducted a preliminary investigation of the
"Criminal Complaint" filed against the Appellant, Arnaldo, and Joemar.
However, the Appellant did not submit any "Counter-Affidavit" claiming
that he was impelled to stab Winnie three (3) successive times on mortal
parts of his body and killing [sic] him because Winnie picked up a bottle, hit
the same against a wall and hit the Appellant anew with the broken
bottle.48 [Underscoring in the original]
We see no reason to disturb these findings as they are based on existing
evidence, and the conclusions drawn therefrom are patently reasonable.
We have time and again held that the findings of facts of the trial court, its
assessment of the credibility of witnesses and the probative weight of their
testimonies, and the conclusions based on the these factual findings are to
be given the highest respect; the trial court enjoys the unique advantage of
being able to observe, at close range, the conduct and deportment of
witnesses as they testify. These factual findings, when adopted and
confirmed by the CA, are final and conclusive and need not be reviewed on
the appeal to us. We are not a trier of facts; as a rule, we do not weigh
anew the evidence already passed on by the trial court and affirmed by the
CA.49 Only after a showing that the courts below ignored, overlooked,
misinterpreted, or misconstrued cogent facts and circumstances of
substance that would alter the outcome of the case, are we justified in
undertaking a factual review. No such exceptional grounds obtain in this
case.
In sum, we rule that there was no rational equivalence between the means
of the attack and the means of defense sufficient to characterize the latter
as reasonable.
The Proper Penalty
The imposable penalty for homicide under Article 249 of the Revised Penal
Code is reclusion temporal in its full range.50 Article 69 of the Code
however provides that:
ART. 69. Penalty to be imposed when the crime committed is not wholly
excusable. — A penalty lower by one or two degrees than that prescribed
by law shall be imposed if the deed is not wholly excusable by reason of
the lack of some of the conditions required to justify the same or to
exempt from criminal liability in the several cases mentioned in Articles 11
and 12, provided that the majority of such conditions be present. The
courts shall impose the penalty in the period which may be deemed
proper, in view of the number and nature of the conditions of exemption
present or lacking.
Since the petitioner’s plea of self-defense lacks only the element of
"reasonable means," the petitioner is, therefore, entitled to the privileged
mitigating circumstance of incomplete self-defense. Consequently, the
penalty for homicide may be lowered by one or two degrees, at the
discretion of the court.
78
The penalty which the RTC imposed and which the CA affirmed lowered
the penalty of reclusion temporal by one degree, which yields the penalty
of prision mayor. From this penalty, the maximum of the indeterminate
penalty is determined by taking into account the attendant modifying
circumstances, applying Article 64 of the Revised Penal Code.51 Since no
aggravating nor mitigating circumstance intervened, the maximum of the
indeterminate penalty shall be prision mayor in its medium period whose
range is from 8 years and 1 day to 10 years.
To determine the minimum of the indeterminate penalty, prision mayor
has to be reduced by one degree without taking into account the
attendant modifying circumstances. The penalty lower by one degree is
prision correccional whose range is from 6 months and 1 day to 6 years.
The trial court is given the widest discretion to fix the minimum of the
indeterminate penalty provided that such penalty is within the range of
prision correccional.
The CA affirmed the indeterminate penalty of six (6) years prision
correccional, as minimum, to ten (10) years of prision mayor, as maximum,
as imposed by the RTC on petitioner. We affirm this to be the legally
correct and proper penalty to be imposed upon petitioner.
We also affirm the P50,000.00 death indemnity awarded to Winnie’s heirs,
in accordance with prevailing jurisprudence.52
We add that moral damages should be awarded as they are mandatory in
murder and homicide cases without need of allegation and proof other
than the death of the victim.53 The award of P50,000.00 as moral damages
is, therefore, in order.
WHEREFORE, in light of all the foregoing, we DENY the petition. The
assailed decision and resolution of the CA dated November 15, 2001 and
April 5, 2002, respectively, in CA-G.R. CR No. 24181 are AFFIRMED with the
MODIFICATION that the petitioner is ordered to pay the heirs of Winnie
Alon the amount of P50,000.00 as moral damages. Costs against the
petitioner.
SO ORDERED.
G.R. No. 173824 August 28, 2008
PETER TARAPEN y CHONGOY, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CHICO-NAZARIO, J.:
Assailed before Us is the Decision1 of the Court of Appeals in CA-G.R. CR
No. 26636, dated 31 January 2006, which affirmed with modification the
Decision2 of the Regional Trial Court (RTC) of Baguio City, Branch 3,
convicting petitioner Peter Chongoy Tarapen of the crime of Homicide.
On 9 June 2000, petitioner was charged before the RTC of Baguio City with
Frustrated Homicide for attacking and assaulting James Lacbao Pangoden.3
The day after, the victim died from the injuries he sustained. As a
consequence, an amended information was filed on 13 June 2000 charging
petitioner with Homicide allegedly committed as follows:
That on or about the 8th day of June, 2000, in the City of Baguio,
Philippines, and within the jurisdiction of the Honorable Court, the above-
named accused, with intent to kill, did then and there willfully, unlawfully
and feloniously attack, and assault JAMES LACBAO PANGODEN, by hitting
his head twice with a steel shovel, thereby inflicting upon the latter:
Cardio-respiratory arrest secondary to cranio-cerebral injury, which
directly caused his death.4
The case was raffled to Branch 3. When arraigned on 15 June 2000,
petitioner, with the assistance of counsel de oficio, pleaded not guilty to
the crime charged.5
On 10 October 2000, the pre-trial conference of the case was terminated
with the trial court issuing its pre-trial order.6
The prosecution presented the following witnesses, namely: (1) Patricia S.
Pangoden7; (2) Molly J. Linglingen8; (3) Silmana Linglingen9; (4) Virginia
79
Costales10; (5) Dr. Lindo Mensalvas11; (6) Dr. Rizal Leo Cala12; and (7)
Senior Police Officer (SPO) 2 Juanito Meneses II.13
The collective testimonies of the witnesses revealed:
At around 7:00 to 7:30 in the morning of 8 June 2000, a dump truck driven
by Jimmy Pugoy arrived at Zandueta St., Baguio City, to collect garbage. He
was accompanied by petitioner and Edmond Ferrer. The garbage truck
came from lower Zandueta St. and proceeded to upper Zandueta St. Upon
reaching the Hilltop Market, the truck turned around. During this time,
vendors, including the victim James Pangoden, Molly J. Linglingen, Silmana
Linglingen and Virginia Costales were peddling their wares along said
street. Petitioner alighted from the truck and signaled to the driver to
move slowly. Despite guiding the truck, said vehicle ran over the eggplants
being sold by Virginia Costales. Petitioner picked up the vegetables and
threw them towards the place where James was. This angered James
because the flowers he was selling were soiled. An exchange of words
ensued between petitioner and James.14 Petitioner went to the back of
the dump truck and got a shovel. He then moved in front of the truck
where James was. While James was facing downwards, petitioner, coming
from behind and holding the shovel with two hands, struck James on the
head with the same, causing him to fall to the ground in a squatting
position. As soon as James raised his head, petitioner hit the former’s head
again with the shovel.15 Petitioner then ran away. James was brought to
the Baguio General Hospital & Medical Center (BGHMC) in a taxi.
The wife of James, Patricia Pangoden, arrived at the BGHMC and saw her
husband in the Emergency Room. Dr. Rizal Leo Cala refused to operate on
her husband, saying that it was already hopeless. She then requested for
the transfer of her husband to the Saint Louis University (SLU) Hospital.
The request was approved, and her husband was transferred to SLU
Hospital at 1:30 p.m. James was operated on, and Patricia was told that
her husband had no more chance to live. She was advised to bring home
James; otherwise, they would just be spending so much. Patricia brought
her husband to his hometown in Namatugan, Sudipen, La Union, where he
expired on 10 June 2000.16
Patricia S. Pangoden testified on the events that happened to her husband
from the time he was bought to the hospital until the time he died. She
also testified on the expenses she incurred as a result of the incident.17
Molly J. Linglingen and Silmana Linglingen, mother and daughter, and co-
vendors of James at Zandueta St., testified that they saw petitioner get a
shovel from the rear of the garbage truck, approach James from behind,
and hit him with it twice on the head.
Virginia Costales recounted the events prior to her seeing James already
slumped on the ground. She narrated that when the garbage truck was
going down Zandueta St., petitioner got off from the truck and guided it.
The truck ran over the eggplants she was selling. Petitioner picked them up
and threw them to where James was. James, she said, got angry because
the flowers he was selling were soiled. Petitioner and James exchanged
words. While the two were exchanging words, she transferred her sack of
eggplants to a nearby place. It was then that she heard people shouting.
When she turned around, she saw James already slumped on the ground
oozing with blood.
Dr. Lindo Mensalvas and Dr. Rizal Leo Cala, physicians at the SLU Hospital
and BGHMC, respectively, attended to the victim. They respectively issued
a medico-legal certificate containing the injuries sustained by the victim.18
SPO2 Juanito Meneses II, assigned at Police Community Precinct 1, Baguio
City, was the investigator to whom the case of petitioner was turned over.
At around 10:00 a.m. of 8 June 2000, the Division Chief of the General
Services Office of Baguio City turned the petitioner over to him. SPO2
Meneses disclosed that petitioner admitted to having inflicted injuries on
the victim. The police officer disclosed that he did not notice any injury on
Peter’s body or face. He added that Peter did not request any medical
treatment that morning. He brought Peter to the BGHMC for possible
identification, but the victim was still unconscious. Upon going back to the
police station, he took the statement of the victim’s wife. He likewise
identified the steel shovel19 allegedly used in killing the victim.
The prosecution formally offered Exhibits "A" to "H," inclusive, with sub-
markings which the trial court admitted.20
80
For the defense, the following took the witness stand: (1) Jimmy Pugoy,21
(2) petitioner Peter Tarapen,22 (3) Edmond Ferrer,23 and (4) Dr. Maryjane
Tipayno.24
The version of the defense as culled from these witnesses is as follows:
Jimmy Pugoy, petitioner Peter Tarapen and Edmond Ferrer are garbage
collectors employed by the General Services Office of the City of Baguio. At
around 3:00 a.m. of 8 June 2000, they started collecting garbage. At
around 7:00 a.m., they arrived at Zandueta St. Half of said street was
almost occupied by vendors who were selling various goods. In order to
collect garbage piled on said street, the truck driven by Jimmy Pugoy had
to go up the street then go down. While going down the street, Pugoy kept
on honking the truck’s horn, causing the vendors selling near the garbage
pile to move away, but some of their goods were left behind. Ferrer
alighted and started filling up the garbage basket with the use of a shovel.
Peter saw a sack of eggplants pinned under the truck being removed by its
owner. Peter helped the old woman carry the sack to the side of the road
when, all of a sudden, James punched him hard on the right ear, causing
him to fall and roll down the street. Peter ended up sitting on the ground.
As he was getting up with his hands raised, James punched him again.
Peter protested, saying he did not do anything wrong. James answered:
"You people from the government are show-off[s]." Peter, still dizzy while
getting up and still with hands raised, was kicked by James on the left side
of the body. Peter fell on the road and rolled anew.25 Feeling very dizzy,
Peter tried to pick up something to throw at James to stop him, because he
(Peter) thought James would kill him. At this moment, Edmond was coming
to the aid of Peter, who was in front of the truck. Edmond carried with him
the shovel he used to collect garbage. Edmond tried to help Peter stand.
He put down the shovel on the ground. While in a sitting position, Peter
was able to get hold of the shovel and swing it, hitting James who was
approaching him and about to strike with a clenched fist. With the help of
the shovel, Peter stood up and tried to leave. When James followed Peter,
the latter hit him again with the shovel. Peter saw James boarding a taxi.
After feeling a little better, Peter walked to his office and reported the
matter to his supervisor.
Peter, accompanied by his supervisor, voluntarily surrendered to the police
authorities. Per his request, he was brought to the hospital where he met
James’s wife who hit him on the back. To avoid trouble, he was brought to
the City Jail. Upon posting bail, he went to the hospital for treatment.
Jimmy Pugoy testified on what he allegedly saw that fateful morning. He
recounted that while he was maneuvering the garbage truck he was
driving at Zandueta St., he saw petitioner Peter Tarapen go down the truck
and help an old woman, who was in front of the truck, carry a sack of
eggplants. At that moment, a person (James) went near Peter and
suddenly punched him on the face, causing him to fall and roll down the
street. When Peter stood up with his hands raised, James punched him
again on the face, making the latter fall and roll again. Peter stood up a
second time with his hands up. This time, he said, James delivered a flying
kick, which hit Peter on the stomach. Peter fell and rolled once more. After
this, Jimmy no longer saw what happened, because the people had
gathered, and he parked the truck. After parking the vehicle, what he saw
was a man lying on the ground. He went back to the office and gave a
report.
Edmond Ferrer narrated that at around 7:00 a.m. of 8 July 2000, he was
with Jimmy Pugoy and Peter Tarapen at Zandueta St. collecting garbage.
He was with Peter hanging at the back of the truck. When the vehicle
stopped, Peter alighted and went in front of the vehicle. Jimmy also went
down, taking with him the shovel and the garbage basket. While Peter was
settling some things in front, he placed the garbage inside the basket. After
filling up the basket and before he could load it into the truck, he heard
people shouting in front of the vehicle. As there was a commotion, he
proceeded to the front of the vehicle carrying the shovel he was using. He
saw Peter sitting on the ground shaking his head. He went near Peter, put
down the shovel and tried to help him stand up. A person approached and
was about to hit Peter, when the latter got hold of the shovel, swung it and
hit this person. The person remained standing. Peter was able to stand and
was turning around to leave, but the person whom he hit with the shovel
was about to follow him in order to punch him. Peter hit this person one
more time, causing the latter to fall down. Seeing Peter leave, he also left.
81
Petitioner testified that at the time the incident subject of this case
happened, he was in Zandueta St. to collect garbage. He was riding the
garbage truck driven by Jimmy Pugoy. Since the driver was continuously
blowing the horn of the vehicle, he went down the truck and saw a sack of
eggplants under the vehicle. The owner of the sack of eggplants
approached him and asked him to help her. He helped the old woman
remove the sack under the truck and carry it to the side of the road. After
that, he said someone (James) punched him at the right side of the head,
which caused him to fall and sit on the road. As he was getting up with his
hands raised, James said, "Nalastog kayo nga taga-gobierno," and then
punched him for the second time. He was a little dizzy and was again
getting up when he was kicked on the left side of his body. Feeling very
dizzy, he tried to pick up something to throw at James. While sitting, he got
hold of a shovel which he swung, hitting James. Peter said he got up to run
away, but James followed him. It was then that Peter hit him again with
the shovel. He went to their office and he was accompanied by his
supervisor in surrendering to the police. He added that he asked the
policemen to bring him to the hospital, because his ear was aching. It was
on 16 July 2000 that he was able to have a medical examination of his ears.
Dr. Maryjane Tipayno, physician at the BGHMC, testified that she
performed an audio logic test on petitioner on 16 June 2000. She found
out that petitioner had mild hearing loss on the left ear and severe hearing
loss on the right ear.26 She said that the hearing condition of petitioner
could not have been self-inflicted. She explained that the hearing loss in
both ears could have started years before. She added that it was Dr.
Vinluan who interviewed the petitioner, and that it was petitioner who
told him that the hearing loss in his right ear was due to a blunt trauma.
After formally offering Exhibits "1" and "2" and with the admission thereof
by the trial court, the defense rested its case.27
As rebuttal witnesses, the prosecution presented Molly Linglingen, who
said that petitioner was standing up when he hit James twice on the head
with a shovel. He explained that James was standing with his back turned,
when Peter came from behind and hit him.28
On 20 June 2002, the trial court convicted petitioner of Homicide in a
decision the dispositive portion of which reads:
WHEREFORE, the Court finds accused Peter Tarapen GUILTY beyond
reasonable doubt for the crime of Homicide and he is hereby sentenced to
suffer the penalty of imprisonment at the National Penitentiary,
Muntinlupa City from Fourteen (14) Years as Minimum to Twenty (20)
Years as Maximum. Peter Tarapen shall also indemnify private complainant
Patricia Pangoden the following amounts: One Hundred Ninety Five
Thousand Eighty Pesos and 05/100 (P195,080.05), representing the
expenses for hospitalization, funeral and burial; Moral Damages to Patricia
Pangoden in the amount of Three Hundred Thousand Pesos (P300,000.00)
and Death Indemnity of Fifty Thousand Pesos (P50,000.00), and Loss of
Earning Capacity in the amount of Three Million One Hundred Thirty Five
Thousand Seven Hundred Twenty Pesos (P3,680,800.05), plus costs of suit
against the accused.29
The trial court gave credence to the testimonies of the prosecution
witnesses Molly J. Linglingen, Silmana Linglingen and Virginia Costales as
against the testimonies of defense witnesses Jimmy Pugoy, petitioner
Peter Tarapen and Edmond Ferrer. The trial court found the prosecution’s
version of the incident credible. The trial court said Virginia Costales saw
the first part of the incident, which was the heated argument between
petitioner and the victim involving the victim’s soiled goods, while Molly J.
Linglingen and Silmana Linglingen witnessed the second part of the
incident when petitioner went to the back portion of the garbage truck and
got a shovel with which he hit the victim from the back, twice on the head,
resulting in his death. Having had the opportunity to observe them, it was
convinced that they were telling the truth vis-à-vis the defense witnesses
who were lying, as can be seen from their hesitant answers and evasive
looks when they testified for the petitioner who was a co-employee.
The trial court likewise did not appreciate self-defense in favor of
petitioner, who struck the unarmed victim from the back, twice on the
head.
On 8 July 2002, petitioner filed a Motion for Reconsideration,30 which the
trial court denied on 16 July 2002.31 On 23 July 2002, petitioner filed a
82
Notice of Appeal.32 In an Order33 dated 29 July 2002, the trial court,
finding the notice of appeal to have been seasonably filed, forwarded the
records of the case to the Court of Appeals.
On 31 January 2006, the Court of Appeals rendered a decision, affirming
with modification the decision of the trial court convicting petitioner Peter
Chongoy Tarapen of the crime of Homicide, the decretal portion reading:
WHEREFORE, in view of all the foregoing, the decision dated June 20, 2002
of Branch 3 of the Regional trial Court of Baguio City in Criminal Case No.
17792-R finding accused-appellant Peter Tarapen y Chongoy guilty beyond
reasonable doubt of the crime of homicide is AFFIRMED with modification.
Accused-appellant is sentenced to suffer the penalty of eight (8) years of
prision mayor, AS MINIMUM, to fourteen (14) years of reclusion temporal,
AS MAXIMUM, and ordered to pay the heirs of the victim James Lacbao
Pangoden the following amounts: P51,549.25 in actual damages,
P50,000.00 as moral damages, P50,000.00 as civil indemnity and the sum
of P1,960,200.00 representing lost earnings.34
On 8 March 2006, petitioner filed a Motion for Reconsideration,35 on
which the Office of the Solicitor General (OSG) filed its Comment.36 On 6
July 2006, the Court of Appeals denied said motion.37
On 31 August 2006, petitioner, via registered mail, filed a petition for
review with this Court, seeking the reversal of the decision of the Court of
Appeals.38
In our Resolution39 dated 2 October 2006, respondent People of the
Philippines, through the OSG, was required to file its Comment on the
petition. After three motions for extension to file comment on the petition,
which were granted by this Court, the OSG filed its Comment on 5
February 2007.40 On 12 March 2007, petitioner was required to file a
Reply to the Comment, which he did on 11 December 2007.41
On 18 February 2008, the Court resolved to give due course to the petition
for review on certiorari and required the parties to submit their respective
memoranda within thirty (30) days from notice. Petitioner and respondent
filed their respective memoranda on 2 May 2008 and 10 April 2008.42
Petitioner assails his conviction, arguing that both trial courts:
I. Erred in giving credence to the prosecution witnesses, despite the grave
inconsistencies in their testimonies and not considering the testimonies of
the witnesses for the defense showing manifest bias against the accused.
II. Erred in not acquitting the accused when the defense had sufficiently
proved the existence of facts proving that indeed the accused was
defending himself from James Pangoden.
III. Erred in not acquitting the accused based on reasonable doubt.43
On the first assigned error, petitioner contends that the testimonies of
Molly and Silmana Linglingen that there was no prior quarrel or exchange
of words between petitioner and James before the former hit the latter
with a shovel, are contrary to human experience, because petitioner could
not have taken the life of James, whom he did not personally know, for no
reason at all.
This contention is untenable.
A review of the testimonies of both Molly and Silmana Linglingen shows
they never said that petitioner and the victim did not have any prior
quarrel or exchange of words before Peter hit James with the shovel. What
they said was that they never witnessed any quarrel or exchange of words
between Peter and James. They, however, declared in unison that they
saw petitioner get a shovel from the back of the garbage truck and, coming
from behind, twice struck James on the head with it. Both Molly and
Silmana Linglingen never witnessed the events prior to Peter’s act of
getting the shovel. This void was substantially filled up by the testimony of
Virginia Costales, who actually witnessed the altercation between the
petitioner and the victim. Through the testimony of Mrs. Costales, it
became clear why petitioner got the shovel, which he used in striking
James twice on the head. By combining the testimonies of the three ladies,
a picture of the incident has been wholly painted. The rage that Peter had
in him was brought about by his squabble with James. The defense cannot,
therefore, claim that Peter took the life of James for no reason at all.
83
Petitioner brands Molly and Silmana Linglingen as biased witnesses, thus,
unreliable, because they were town mates and co-vendors of the victim.
The fact that these two witnesses were the victim’s town mates and co-
vendors did not necessarily make them biased witnesses. It is well-settled
that the mere relationship of a witness to the victim does not impair the
witness’ credibility. On the contrary, a witness’ relationship to a victim of a
crime would even make his or her testimony more credible, as it would be
unnatural for a relative, or a friend as in this case, who is interested in
vindicating the crime, to accuse somebody other than the real culprit.44 A
witness is said to be biased when his relation to the cause or to the parties
is such that he has an incentive to exaggerate or give false color to his
statements, or to suppress or to pervert the truth, or to state what is
false.45 To warrant rejection of the testimony of a relative or friend, it
must be clearly shown that, independently of the relationship, the
testimony was inherently improbable or defective, or that improper or evil
motives had moved the witness to incriminate the accused falsely.46
The friendship of Molly and Silmana Linglingen with the victim, per se, did
not impair their credibility. We, like both lower courts, are convinced that
they were telling the truth. Moreover, the defense failed to show any
evidence that prosecution witnesses Molly and Silmana Linglingen had
improper or evil motives to testify falsely against petitioner. This being the
case, their testimonies are entitled to full faith and credit.
The defense accuses the prosecution witnesses of deliberately suppressing
material evidence favorable to the petitioner. It thus argues that it may be
safely presumed that such evidence, having been willfully suppressed,
would be adverse if produced.
We do not find any suppression of evidence by the prosecution. The
defense failed to specify which evidence was suppressed. It simply made a
general statement that the prosecution witnesses allegedly did not tell the
truth and thus deliberately suppressed material evidence favorable to the
petitioner. The adverse presumption of suppression of evidence is not
applicable when (1) the suppression is not willful; (2) the evidence
suppressed or withheld is merely corroborative or cumulative; (3) the
evidence is at the disposal of both parties; and (4) the suppression is an
exercise of a privilege.47 In the case at bar, the prosecution witnesses who
allegedly suppressed material evidence were presented in court and were
cross-examined by the defense counsel. How then can the defense claim
there was suppression? The defense counsel was able to question these
witnesses, but failed to elicit the answer he wanted or needed to hear for
the exoneration of his client.
The defense attacks the credibility of Virginia Costales by pointing out that
her testimony in court, that she did not see petitioner and the victim
engage in a fistfight, contradicts her declaration in her sworn statement
that that two engaged in a fistfight.
Such inconsistency will not discredit her. It is settled that certain
discrepancies between declarations made in an affidavit and those made
on the witness stand seldom could discredit the declarant. Sworn
statements, being taken ex parte, are almost always incomplete and often
inaccurate for various reasons, sometimes from partial suggestion or for
want of suggestion and inquiries. They are generally inferior to the
testimony of the witness given in open court. Our case law is unequivocal
in saying that the testimony of a witness prevails over an affidavit. In short,
affidavits are generally subordinated in importance to open-court
declarations; or, more bluntly stated, whenever there is inconsistency
between an affidavit and the testimony of a witness in court, the
testimony commands greater weight.48 The Court has consistently ruled
that the alleged inconsistencies between the testimony of a witness in
open court and his sworn statement before the investigators are not fatal
defects that would justify the reversal of a judgment of conviction.49 In
this case, when Mrs. Costales was confronted with this contradiction, she
explained that she never told the police that the petitioner and the victim
had a fistfight. What she said was they had a quarrel; that is, they faced
each other and exchanged words.
The defense tries to destroy the version of Molly and Silmana Linglingen
that the victim was hit from behind by arguing that same is not
corroborated by medical findings. Molly and Silmana Linglingen’s claim
that James was hit on the right side of the head was, according to the
defense, negated by the findings of Dr. Mensalvas that James suffered
injuries on the "left frontoparietal and left frontotemporo parietal" areas
84
of his head. The findings of Dr. Mensalvas mean that James was facing
Peter when hit by the shovel contrary to the prosecution’s claim that
James was hit by Peter from behind.
We do not agree.
The defense relies too much on the findings made by Dr. Lindo Mensalvas
and completely omits the findings made by Dr. Rizal Leo Cala. It must not
be forgotten that the victim was brought to two hospitals where the
attending doctors issued separate medico-legal certificates. The medico-
legal certificate50 issued by Dr. Cala of the BGHMC was marked Exh. "D."
The one issued by Dr. Mensalvas was marked Exh. "C."
On the witness stand, Dr. Cala read his findings as follows:
"Skull Fracture" meaning there is a break in the skull bone, "Linear" which
is a straight line fracture, "parietal" area on the right side of the head, then
we have "Epidural hematoma" it is a blood clot at the right side of the
head.51
When cross-examined, he explained his findings as follows:
q Both injuries you found were on the front parietal area?
a Yes, Sir.
q Will you please demonstrate to us?
a (Witness demonstrating by pointing to the right side of his head.)
q Doctor, while you were demonstrating, the linear fracture, is it
perpendicular to the head?
a I am sorry but it was injury to the right side of the head, Sir.
q Only part of the right ear?
a Yes, sir.

q If I am facing you, it is on your?
a Right, Sir.
q Right side on your part. Did you find any injury on the left side?
a No, Sir.52
From the medico-legal certificate issued by Dr. Cala and with his testimony
in court, it is clear that the victim suffered injuries on the right side of his
head. Thus, the claim of Molly and Silmana Linglingen that the victim was
struck from behind on the right side of his head is consistent with the
findings of Dr. Cala.
Dr. Mensalvas, on the other hand, testified that the victim sustained four
injuries, three of which were on the left side of the head and one on the
right side. The medical certificate he issued states that the victim was
confined for the following injuries:
1. ACCI; CEREBRAL CONTUSSION
2. EPIDURAL HEMATOMA, LEFT FRONTOPARIETAL AREA
3. SUTURED SCALP LACERATION, RIGHT TEMPOROPARIETAL AREA
4. SCALP CONTUSSION, LEFT FRONTOTEMPORO PARIETAL AREA WITH
UNDERLYING LINEAR FRACTURE OF THE SKULL EXTENDING FROM THE LEFT
FRONTAL TO THE LEFT TEMPORAL BONE.53
The question now is: which medical findings should this Court believe?
This Court believes in the findings made by Dr. Cala as contained in the
medico-legal certificate he issued showing that the victim suffered injuries
on the right side of his head, consistent with the declarations of
prosecution witnesses that the victim was, from behind, struck with a
shovel twice on the right side of the head. We give more weight to this
medical certificate, because the same was issued by a government doctor.
85
By actual practice, only government physicians, by virtue of their oaths as
civil service officials, are competent to examine persons and issue medical
certificates which will be used by the government.54 As such, the medical
certificate carries the presumption of regularity in the performance of his
functions and duties. Moreover, under Section 44, Rule 130,55 Revised
Rules of Court, entries in official records made in the performance of
official duty are prima facie evidence of the facts therein stated. Dr. Cala’s
findings that the victim sustained injuries on the right side of his head are,
therefore, conclusive in the absence of evidence proving the contrary, as in
this case. We cannot consider the contents of the medical certificate
issued by Dr. Mensalvas sufficient to controvert the findings of Dr. Cala. As
held by this Court, an unverified medical certificate not issued by a
government physician is unreliable.56
Even assuming arguendo that we give more weight to the medical
certificate issued by Dr. Mensalvas, this does not mean that the
testimonies of Molly and Silmana Linglingen shall be disbelieved. It is noted
that Dr. Mensalvas testified that the victim sustained a wound on the right
side of his head, possibly caused by a steel shovel.57 Such a finding is
consistent with the claim of Molly and Silmana Linglingen that the victim
was hit on the right side of the head. Though there can be inconsistencies
of the testimonies of the witnesses with Dr. Mensalvas’s other findings
(i.e., injuries on the left portion of the head) this does not mean that we
should totally doubt and discard the other portions of their testimonies.
Well-settled is the rule that the testimony of a witness may be believed in
part and disbelieved in another, depending on the corroborative evidence
or the probabilities and improbabilities of the case. Where a part of the
testimony of a witness runs counter to the medical evidence submitted, it
is within the sound discretion of the court to determine which portions of
the testimony to reject as false and which to consider worthy of belief.58
From the two medical certificates issued, what cannot be doubted is the
fact that the victim sustained head injuries, whether on the left or the
right, which caused his demise.
We find the testimonies of the prosecution eyewitnesses more credible
and convincing than those of the defense eyewitnesses. When it comes to
credibility, the trial court’s assessment deserves great weight and is even
conclusive and binding, if not tainted with arbitrariness or oversight of
some fact or circumstance of weight and influence. The reason is obvious.
Having the full opportunity to observe directly the witnesses’ deportment
and manner of testifying, the trial court is in a better position than the
appellate court to evaluate testimonial evidence properly.59
The Court of Appeals further affirmed the findings of the RTC. In this
regard, it is settled that when the trial court’s findings have been affirmed
by the appellate court, said findings are generally conclusive and binding
upon this Court. We find no compelling reason to deviate from their
findings.
Petitioner claims that the trial court judge was not able to observe the
demeanor of the prosecution witnesses, because they were looking at the
court interpreter when they were testifying. We find this untenable. The
trial court judge was emphatic in saying that he had the chance to see the
face of the witness while she testified.60
On the second and third assigned errors, petitioner admits killing James
but invokes self-defense. He claims that the victim was the unlawful
aggressor and that he (petitioner) did not provoke the victim.
Article 11, paragraph (1) of the Revised Penal Code, provides for the
elements and/or requisites in order that a plea of self-defense may be
validly considered in absolving a person from criminal liability, viz:
ART. 11. Justifying circumstances. – The following do not incur any criminal
liability:
1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel
it;
86
Third. Lack of sufficient provocation on the part of the person defending
himself.
Having admitted that he killed James, the burden of evidence that one
acted in self-defense shifted to petitioner. Like an alibi, self-defense is
inherently weak, for it is easy to fabricate.61 It is textbook doctrine that
when self-defense is invoked, the burden of evidence shifts to the accused
to show that the killing was justified, and that he incurred no criminal
liability therefor. He must rely on the strength of his own evidence and not
on the weakness of the prosecution’s evidence, for, even if the latter were
weak, it could not be disbelieved after his open admission of responsibility
for the killing. Hence, he must prove the essential requisites of self-defense
as aforementioned.62
Unlawful aggression is a condition sine qua non for the justifying
circumstance of self-defense, whether complete or incomplete.63
Unlawful aggression presupposes an actual, sudden, and unexpected
attack, or imminent danger thereof, and not merely a threatening or
intimidating attitude.64 There must be actual physical force or a threat to
inflict physical injury. In case of a threat, it must be offensive and positively
strong so as to display a real, not imagined, intent to cause injury.65
We agree with the Court of Appeals that petitioner failed to clearly and
convincingly prove self-defense, whether complete or incomplete.
We confirm the observation of the trial court. A circumspect scrutiny of
accused-appellant’s version of what happened likewise leaves this Court
unconvinced that he killed the victim James Pangoden in self-defense.
First, accused-appellant’s claim that the victim James Pangoden, suddenly
and without provocation, boxed him on his right ear is simply unbelievable.
By his own account, he (accused-appellant) was at that moment helping a
road vendor carry her sack of eggplants away from the path of the truck. If
this is true, then his testimony that James Pangoden attacked and boxed
him for no reason at all loses credibility. Testimonies to be believed must
not only come from the mouth of credible witnesses but should by
themselves be credible, reasonable, and in accord with human experience.
Second, it is likewise inconceivable how accused-appellant could have hit
the victim James Pangoden twice in the head while he (accused-appellant)
was allegedly in a sitting position and holding the shovel by the middle part
of its shaft. Interestingly also, while accused-appellant and his witness
testified that he was in a "sitting" position when he hit James Pangoden
with the shovel, accused-appellant portrayed a different account when
asked during cross-examination to demonstrate how he hit the victim, viz:
Q: Now, how did you hit Pangoden with the shovel, demonstrate it to the
Court. All right you can step down from the witness stand (Witness
demonstrating.)
For the record, witness was in a kneeling position when he got the shovel.
A: I was down on the ground, and I was groping (sic) to somebody and I
was able to get hold of the shovel, that was the time I swang (sic) it
towards him.
Q: You have not demonstrated how you hit Pangoden with the shovel?
For the record, witness is in a kneeling position when he allegedly picked
up the shovel holding it in the middle part. With his two hands and swang
(sic) it upwards towards his left.
For the record, accused held the shovel on the middle part of the shaft,
your Honor, not on the handle.
Third, it simply goes against the grain of human experience for the victim
James Pangoden to persist in his attack against accused-appellant after
getting hit in the head with a steel shovel, considering that he is unarmed
and had nothing to match accused-appellant’s weapon on hand. That
James Pangoden still had the resolution and power for a second assault on
accused-appellant, after getting hit with a steel shovel in the head, flouts
ordinary human capacity and nature. In contrast, accused-appellant would
claim that he "fell down" and "felt dizzy" after getting boxed on the right
side of his head by James Pangoden with his bare fist.
87
Fourth, accused-appellant himself admitted walking away from the crime
scene immediately after the incident. As we see it, this actuation on his
part is contrary to his assertion of self-defense. Flight strongly indicates a
guilty mind and betrays the existence of a guilty conscience, for a righteous
individual will not cower in fear and unabashedly admit the killing at the
earliest possible opportunity if he were morally justified in doing so.
Finally, the nature and number of the fatal injuries inflicted upon James
Pangoden negate accused-appellant’s claim of self-defense. Said victim
suffered cerebral contusion, epidural hematoma, scalp laceration and skull
fracture, which directly caused his death. If accused-appellant hit the
victim just to defend himself, it certainly defies reason why he had to aim
for the head and do it twice. Indeed, the nature, number and location of
the wounds sustained by the victim belie the assertion of self-defense
since the gravity of said wounds is indicative of a determined effort to kill
and not just to defend.
xxxx
But even assuming arguendo that accused-appellant was able to establish
the element of unlawful aggression, still, this Court will rule out self-
defense.
It is undisputed that James Pangoden was unarmed while accused-
appellant was armed with a steel shovel. There was no reasonable
necessity for accused-appellant to use a steel shovel to repel the attack of
an unarmed man. Moreover, the eyewitnesses’ account of how accused-
appellant uncaringly threw the soiled eggplants towards the direction of
James Pangoden’s goods would negate the absence of sufficient
provocation on the part of accused-appellant. Thus, the second and third
requisites for self-defense to be successfully invoked, namely, reasonable
necessity of the means employed to repel the attack and lack of sufficient
provocation on the part of the accused, are not present in this case.66
We now go to the imposition of the penalty. We agree with the Court of
Appeals when it appreciated in favor of the petitioner the mitigating
circumstance of voluntary surrender. It was established that a few hours
after the incident, petitioner submitted himself to his supervisors, who, in
turn, surrendered him to the police authorities.
Petitioner is guilty of Homicide for having killed James Pangoden. The
penalty for homicide under Article 249 of the Revised Penal Code is
reclusion temporal. However, considering that there is one mitigating
circumstance and no aggravating circumstance in the commission of the
crime, the imposable penalty, following Article 64(2) of the Revised Penal
Code, is reclusion temporal in its minimum period or within the range of
twelve (12) years and one (1) day to fourteen (14) years and eight (8)
months. Applying the Indeterminate Sentence Law, the maximum penalty
to be imposed shall be taken from the minimum period of reclusion
temporal, while the minimum shall be taken from within the range of the
penalty next lower in degree, which is prision mayor or from six (6) years
and one (1) day to twelve (12) years.
The Court of Appeals sentenced petitioner to suffer the penalty of eight (8)
years of prision mayor, as minimum, to fourteen (14) years of reclusion
temporal, as maximum. We find this to be in order.
With respect to award of damages, the trial court awarded to the heirs of
the victim the following amounts: P195,080.05 as actual damages;
P300,000.00 as moral damages; P50,000.00 as death indemnity; and
P3,135,720.00 for loss of earning capacity.
The Court of Appeals, except for the award of death indemnity, reduced
the awards given by the trial court as follows: P51,549.25 as actual
damages; P50,000.00 as moral damages and P1,960,200.00 for lost
income.
When death occurs due to a crime, the following damages may be
awarded: (1) civil indemnity ex delicto for the death of the victim; (2)
actual or compensatory damages; (3) moral damages; (4) exemplary
damages; and (5) temperate damages.67
Civil indemnity is mandatory and granted to the heirs of the victim without
need of proof other than the commission of the crime.68 Under prevailing
88
jurisprudence,69 the award of P50,000.00 to the heirs of the victim as civil
indemnity is in order.70
As to actual damages, the heirs of the victim are entitled thereto, because
said damages amounting to P51,549.25 were duly proved by receipts. It is
necessary for a party seeking actual damages to produce competent proof
or the best evidence obtainable, such as receipts, to justify an award
therefor.71
Moral damages must also be awarded because these are mandatory in
cases of murder and homicide, without need of allegation and proof other
than the death of the victim.72 The award of P50,000.00 as moral damages
is in order.
The award of P25,000.00 as temperate damages in homicide or murder
cases is proper when no evidence of burial and funeral expenses is
presented in the trial court.73 Under Article 2224 of the Civil Code,
temperate damages may be recovered, as it cannot be denied that the
heirs of the victim suffered pecuniary loss, although the exact amount was
not proved.74 In the case on hand, temperate damages cannot be
awarded, because evidence of expenses for burial and funeral has been
presented for which actual damages have been awarded.
As regards exemplary damages, Article 2230 of the Civil Code allows the
award thereof as part of the civil liability when the crime was committed
with one or more aggravating circumstances.75 There being no
aggravating circumstance that accompanied the commission of the crime,
exemplary damages cannot be awarded.
The computation of the Court of Appeals with respect to lost earning
capacity is correct. At the time of his death, the victim was 31 years old.
His gross annual income was P120,000.00 because he was earning
P10,000.00 monthly. Living expenses are estimated at 50% of the gross
annual income. Loss of earning capacity is computed by applying the
following formula:76
WHEREFORE, all the foregoing considered, the decision of the Court of
Appeals in CA-G.R. CR No. 26636, dated 31 January 2006, is AFFIRMED in
toto. Costs against the petitioner.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, vs. CLEMENTE CASTA y CAROLINO,
G.R. No. 172871 September 16, 2008
DECISION
BRION, J.:
This is an appeal from the March 10, 2006 Decision1 of the Court of
Appeals (CA) in CA-G.R. CR-HC No. 01217. The CA affirmed the August 18,
1999 Decision2 of the Regional Trial Court (RTC), Branch 55, Alaminos,
Pangasinan, finding the appellant Clemente Casta y Carolino (appellant)
guilty beyond reasonable doubt of the crime of murder and sentencing him
to suffer the penalty of reclusion perpetua.
ANTECEDENT FACTS
The prosecution charged the appellant before the RTC with the crime of
murder under an Information that states:
That on or about the 20th day of August, 1989 in the afternoon, at
barangay Goyoden, municipality of Bolinao, province of Pangasinan, New
[sic]Republic of the Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with intent to kill and by
means of treachery, did, then and there, willfully, unlawfully and
feloniously, suddenly and without warning attack and stab DANILO CAMBA
with a knife, inflicting upon the victim the following injuries to wit:
- stab wound, 3 inches in length, 4 inches in depth, located at the back, left
side, 5 inches (level) below the armpit;
89
- stab wound at the left forearm, 3 cm. length and 1 inch depth.
which caused his instantaneous death to the damage and prejudice of the
heirs of Danilo Camba.
CONTRARY to Article 248 of the Revised Penal Code.3
The appellant pleaded not guilty to the charge upon arraignment. The
prosecution presented the following witnesses in the trial on the merits
that followed: Marlyn4 Cister; Modesto Cardona; Domingo Camba;
Dionisia Camba; and Dr. Prudencio C. de Perio. The appellant took the
witness stand for the defense.
Marlyn Cister (Marlyn) testified that in the afternoon of August 20, 1989,
while seated on the steps of the stairs of their house, she saw Danilo
Camba (Danilo) and Modesto Cardona (Modesto) standing by the
roadside.5 Suddenly, the appellant appeared from behind Danilo and
stabbed him (Danilo).6 Danilo fell and died on the spot. Thereafter, the
appellant fled.7
Modesto narrated that at around 3:00 o’clock in the afternoon of August
20, 1989, he was walking along the road at Sitio Makber, Goyoden,
Bolinao, Pangasinan when Danilo emerged from a small road and joined
him. Along the way, they met Marcos Gumangan (Marcos) and Angel
Gatchalian (Angel) with whom they exchanged greetings; it was Danilo’s
first time to visit Goyoden after several years. They all walked towards the
west with Marcos and Angel walking behind them. Suddenly, the appellant
appeared from behind Danilo and stabbed him using a double-bladed
knife.8 Danilo turned around and then fell; the appellant fled still holding
the knife he used in stabbing Danilo.9
On cross-examination, he testified that he was at about "two (2) arms
length" away from Danilo when he was stabbed, while their other
companions were behind them.10
Senior Police Officer I Domingo Camba (SPO1 Camba), a member of the
Bolinao Police Station, narrated that on August 20, 1989, Barangay Captain
Igmedio Gatchalian went to the Bolinao Police Station to report the
stabbing of Danilo by the appellant; the incident was entered in the police
blotter as Entry No. 4300.11 He and other police officers promptly went to
Barangay Goyoden and conducted an on-the-spot investigation at the
crime scene.12 The next day (August 21, 1989), the appellant’s uncle came
and told him that the appellant was at his (the appellant’s) house. He went
with the appellant’s uncle to the appellant’s house where the appellant
gave himself up. He forthwith brought the appellant to the police station
for investigation.13
At the police station, the appellant confessed to the killing of Danilo after
being informed of his constitutional rights and in the presence of counsel,
a certain Atty. Antonio V. Tiong,14 The confession was reduced to writing
and was signed by the appellant and Atty. Tiong.15
Dionisia Camba (Dionisia), Danilo’s widow, testified that her husband was
an employee of the Office of the Register of Deeds, Lingayen, Pangasinan
at the time of his death, earning more than P3,000.00 a month.16 They
have four (4) children and that her husband was the sole breadwinner of
the family. According to her, she spent a total of P13,500.00 for the funeral
and burial expenses of her husband17 but the receipts for these expenses
have all been lost.18
Dr. Prudencio C. de Perio (Dr. de Perio), the Municipal Health Officer of
Bolinao, Pangasinan, narrated that he conducted an autopsy on the
remains of Danilo at the request of the police,19 and made the following
findings:
AUTOPSY REPORT
xxxx
III. Findings
A male cadaver undergoing rigor mortis, around 5’6" in height, and around
145 lbs. in weight.
- Stab wound, 3 inches in length, 4 inches in depth, located at the back, left
side, 5 inches (level) below the armpit.
90
- Left lung injured and also the heart, causing massive hemorrhages.
- Stab wound at the left forearm, 3 cm. length and 1 inch depth.
Wound is horizontal.20
According to Dr. de Perio, the victim’s cause of death was "shock, due to
massive hemorrhage brought about by the stab wounds."21 He added that
the stab wounds were caused by a sharp-pointed instrument such as a
dagger.22
The appellant gave a different version of the events which the RTC
summarized as follows
x x x that on August 20, 1989 in the afternoon, he went to Sitio Matber,
Goyoden, Bolinao, to buy fish; that before reaching the place where he will
buy fish, he met a person whom he did not know.23 This person called him
by waving his hand and pointing to him. He responded to the call of this
person by approaching him but when he was near him, this person boxed
him but he was not hit. They grappled with each other and he did not
notice if there were other persons around them; that he then noticed that
his knife was already bloody so he ran away; that there was no person
around that he noticed when he saw his knife bloody; that at that time, he
did not know the identity of the person with whom he grappled; that when
he was already detained, he learned that the person was Danilo Camba.24
The accused also declared that he was not arrested by the Police, but he
surrendered to Pat. Domingo Camba on August 21, 1989 to whom his
uncle relayed the information that he wanted to surrender and Pat. Camba
fetched him. While under Police custody, he was investigated by Pat.
Camba and said investigation was in writing and signed by him (Exhibit D,
D-1 and D-2), but he said that the document was not his statement
although it bears his signature.25 He was forced to sign the investigation
because he was afraid of the investigator who bears the same family name
as the victim but he does not know if they are related; x x x x26
On cross-examination, he declared that he did not plan to kill the victim
and his killing was accidental.27 He gave his affidavit in the Bolinao dialect
in questions and answers (Exhibits D and series); that all the signatures
bearing his name are his (Exhibit D-4, D-5, D-6); that this document has an
English translation (Exhibit F); x x x that he admitted on direct examination
that he stabbed Danilo Camba and he threw the knife into the sea when he
rode on a motorboat and was confused; that he knew that the date when
he stabbed Danilo Camba was August 20, 1989 and in the afternoon but he
did no know the time.28
On re-direct examination, the accused declared that the reason for his
stabbing Danilo Camba was that when they met on the road and Camba
was drunk, without any provocation on his part, Camba positioned to box
him so he drew his knife and stabbed him; that he did not know the reason
why Camba wanted to box him; that at that time, Camba was with one
Fedelino Gatchalian; that he had no previous grudge with Camba because
he did not know him; that he did not see the victim with any weapon and
he did not know if he was armed or not; and that he is bigger than
Camba.29 [Footnotes referring to the pertinent parts of the record
supplied]
The RTC convicted the appellant of the crime of murder in its decision of
August 18, 1999 as follows:
Wherefore, in view of the foregoing considerations, the Court hereby
renders judgment, finding the accused Clemente Casta y Carolino, of
Barangay Goyoden, Bolinao, Pangasinan, guilty beyond reasonable doubt
of the crime of Murder for the death of Danilo Camba, of the same place,
and hereby sentences him to suffer the penalty of reclusion perpetua and
to indemnify the heirs of the deceased in the amount of P50,000.00 as
compensation for the death of the victim, P100,000.00 as moral and
exemplary damages and P13,000.00 as actual damages.
With costs de oficio.
SO ORDERED.30
91
The records of this case were originally transmitted to this Court on
appeal. Pursuant to our ruling in People v. Mateo,31 we endorsed the case
and its records to the CA for appropriate action and disposition.32
The CA, in a decision dated March 10, 2006, affirmed the RTC decision in
toto.
In his brief,33 the appellant argues that the RTC erred –
1. in convicting him of the crime of murder; and
2. in imposing upon him the penalty of reclusion perpetua.
THE COURT’S RULING
We resolve to deny the appeal but we modify the penalty imposed and the
amount of the awarded indemnities.
Sufficiency of Prosecution Evidence
An established rule in appellate review is that the trial court’s factual
findings, including its assessment of the credibility of the witnesses and the
probative weight of their testimonies, as well as the conclusions drawn
from the factual findings, are accorded respect, if not conclusive effect.
These actual findings and conclusions assume greater weight if they are
affirmed by the CA. Despite the enhanced persuasive effect of the initial
RTC factual ruling and the results of the CA’s appellate factual review, we
nevertheless fully scrutinized the records of this case as the penalty of
reclusion perpetua that the lower courts imposed on the accused demands
no less than this kind of scrutiny.34
A striking feature of this case is that the appellant did not deny that he
stabbed Danilo. He expressly made this admission in his testimony of
January 18, 1995:
ATTY. ROMIE V. BRAGA:
Q: In your direct-examination, you admitted having stabbed the deceased
Danilo Camba, will you tell the Court where was that knife which you used Q: After Gumangan left and you continued walking, were you able to reach
in stabbing Danilo Camba? the place where you were to buy fish?

CLEMENTE CASTA: CLEMENTE CASTA:

A: I left it in the sea, sir. A: No, sir.

Q: You mean you threw it into the sea? Q: Why?

A: Yes, sir. A: I met the person whom I don’t know, sir.

Q: Will you tell the Court why you threw the knife which you used in xxx
stabbing Danilo Camba into the sea?
Q: What did you do when you saw that person by the roadside after you
A: Because I rode in a motor boat and then I threw it into the sea, sir. have seen Gumangan?

Q: And will you tell the Court why you threw or drop it into the sea? A: None, sir, he called me.

A: Because I was confused, sir. xxx

Q: Now will you tell us what time was it more or less when you stabbed Q: Will you tell us what you heard when you said that person called you?
Danilo Camba?
A: He called me by waving his hand and then he pointed me [sic].
A: I do not know the time, sir.
Q: After that, did you respond to his hand-waving by getting near?
Q: But it was in the afternoon of August 20, 1989, is that correct?
A: When I got near him, he boxed me, sir.
A: Yes, sir. x x x35 [Emphasis ours]
Q: Were you hit when he boxed you?
This in-court admission confirms the separate admission he made at the
Bolinao police station on August 22, 1989 in the presence of counsel, Atty. A: No, sir.
Antonio V. Tiong.
Q: What happened next after that person boxed you?
The petitioner sought to exculpate himself by claiming that the stabbing
was an act of self-defense. In his testimony of May 3, 1994, he claimed: A: We fought each other by grappling, sir.

ATTY. TEOFILO A. HUMILDE: xxx

92

Q: When you grappled with each other, who was the first who grappled
against whom?
A: He, sir.
Q: What happened when he grappled with you and you grappled with him,
what happened next?
A: I did not notice that my knife has already blood so I ran away.
xxx
Q: Did you come to know him later, that person whom you grappled with?
A: When I was in prison, sir.
Q: Who was that?
A: Danilo Camba, sir.36 [Emphasis ours]
Like the RTC, we do not believe that the appellant acted in self-defense.
As a rule, the prosecution bears the burden of establishing the guilt of the
accused beyond reasonable doubt. However, when the accused admits the
killing and, by way of justification, pleads self-defense, the burden of
evidence shifts; he must then show by clear and convincing evidence that
he indeed acted in self-defense. For that purpose, he must rely on the
strength of his own evidence and not on the weakness of the prosecution’s
case.37
Article 11(1) of the Revised Penal Code spells out the elements that the
accused must establish by clear and convincing evidence to successfully
plead self-defense. The Article provides:
Art. 11. Justifying Circumstances. – The following do not incur any criminal
liability:
93
1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending
himself.
xxx
There is unlawful aggression when the peril to one’s life, limb or right is
either actual or imminent. There must be actual physical force or actual
use of a weapon. It is a statutory and doctrinal requirement to establish
self-defense that unlawful aggression must be present. It is a condition
sine qua non; there can be no self-defense, complete or incomplete, unless
the victim commits unlawful aggression against the person defending
himself.38
We find that the appellant miserably failed to prove that he had to defend
himself against an unlawful aggression. Aside from his own claim (which
we find under the circumstances to be self-serving), the appellant did not
present any other evidence to corroborate his claim that the victim boxed
him when they met on the road in Sitio Makber, Barangay Goyoden,
Bolinao, Pangasinan. As against his bald claim, two eye-witnesses - Marlyn
and Modesto – saw no unlawful aggression by the victim against the
appellant. Marlyn testified that at the time he was stabbed, Danilo was
merely standing near the roadside fronting her (Marlyn’s) house. Modesto,
on the other hand, narrated that, he, Danilo and several others were
simply walking slowly along the Sitio Makber, Goyoden road towards the
west when the appellant suddenly approached from behind and stabbed
Danilo.
We find no reason to disbelieve these straightforward narration of the
events surrounding the stabbing that led to Danilo’s death. Nor do we see
anything on the record showing any improper motive that would lead the
witnesses to testify as they did. In fact, the appellant never imputed any
such motive on Marlyn and Modesto. The established rule, laid down in an
already long line of cases, is that in the absence of evidence showing any
reason or motive for the prosecution witnesses to falsely testify, their
testimony can be given full faith and credit.39 Thus, no actual or imminent
threat to the appellant’s life or limb existed when he stabbed Danilo to
death.
The Crime Committed
Article 248 of the Revised Penal Code defines the crime of murder as
follows:
Article 248. Murder. – Any person who not falling within the provisions of
Article 246, shall kill another, shall be guilty of murder and shall be
punished by reclusion temporal in its maximum period to death, if
committed with any of the following attendant circumstances:
1. With treachery x x x x 40
Treachery, the qualifying circumstance alleged against the appellant, exists
when an offender commits any of the crimes against persons, employing
means, methods or forms which tend directly or especially to ensure its
execution, without risk to the offender, arising from the defense that the
offended party might make.41 This definition sets out what must be shown
by evidence to conclude that treachery existed, namely: (1) the
employment of such means of execution as would give the person
attacked no opportunity for self-defense or retaliation; and (2) the
deliberate and conscious adoption of the means of execution. To reiterate,
the essence of qualifying circumstance is the suddenness, surprise and the
lack of expectation that the attack will take place, thus depriving the victim
of any real opportunity for self-defense while ensuring the commission of
the crime without risk to the aggressor.42
The evidence in the case shows that Danilo was by the roadside when the
appellant, wielding a deadly weapon - a double-bladed knife - suddenly
appeared from behind and stabbed him. The unsuspecting victim was hit
at the back below the left armpit, puncturing his heart and lungs. As the
witnesses testified, the attack was sudden and while the victim was in an
94
unguarded position: from his rear so that the unsuspecting victim had
practically no chance to defend himself. The location of the thrust – at the
left side, below the armpit – shows that the heart was the targeted organ
to immediately incapacitate the victim and render him unable to defend
against or respond to the attack. As the evidence shows, the victim simply
fell immediately after being stabbed, in the way that a raging bull
immediately crumbles to its knees, spent and harmless, upon being hit by
the matador’s sword thrust, delivered from above, between its shoulder
blades, targeting the heart. These mode, manner and execution of the
attack, to our mind, bespeak of treachery.
Voluntary Surrender
Voluntary surrender, properly undertaken, is a mitigating circumstance
that lowers the imposable penalty. It is present when the following
elements concur: a) the offender has not been actually arrested; b) the
offender surrenders himself to a person in authority or to the latter’s
agent; and c) the surrender is voluntary. To be sufficient, the surrender
must be spontaneous and made in a manner clearly indicating the intent of
the accused to surrender unconditionally, either because he acknowledges
his guilt or wishes to save the authorities the trouble and expense
attendant to the efforts of searching for and capturing him.43
We find all the requisites present in this case. The appellant testified that
he had asked his uncle, Ediom Casta, to go to the police to signify his
intention to surrender. At around 7:00 o’clock in the morning of August 21,
1989, SPO1 (then Patrolman) Camba came to his house to bring him back
to the Bolinao Police Station for investigation. The appellant’s testimony
that he voluntarily surrendered was corroborated by the November 21,
1991 testimony of SPO1 Camba, which we quote:
ATTY. ROMIE V. BRAGA
Q: Now, as police investigator, will you inform the Court if Clemente Casta,
the accused herein, ever presented himself to your office?
DOMINGO CAMBA
A: Yes, sir.
Q: And in relation with this incident and that appearance of Clemente
Casta in your office, was it reflected and entered in your police blotter?
A: Yes, sir.
Q: Now, will you go over your police blotter and read into the record the
fact of the appearance of Clemente in your office in relation with this
incident?
A: On entry 4302 21 August, 1989 07 hundred hours Clemente Casta y
Carolino, 21 years old, single, fisherman, resident of Goyuden Bolinao,
Pangasinan was brought into this station for investigation following his
voluntary surrender to have allegedly killed Danilo Camba on or about
1500 hundred hours 20 August 1989 in Goyuden this municipality.44
That the appellant surrendered only in the morning of August 21, 1989 (or
a day after the stabbing incident) does not diminish nor affect the
voluntariness of his surrender. For voluntary surrender to mitigate an
offense, it is not required that the accused surrender at the first
opportunity.45 Here, the appellant went voluntarily went with SPO1
Camba to the police station within a day after the killing to own up to the
killing. Thus, the police did not devote time and effort to the investigation
of the killing and to the search and capture of the assailant.
Based on these considerations, we hold that the mitigating circumstance of
voluntary surrender should be appreciated in appellant’s favor.
The Proper Penalty
The Information in this case indicates that the crime of murder was
committed by the appellant on August 20, 1989 which was before the
effectivity of Republic Act No. 7659 on December 31, 1993 amending
Article 248 of the Revised Penal Code on murder, raising the penalty to
reclusion perpetua to death. Prior to its amendment the penalty for the
crime of murder under Article 248 of the Revised Penal Code was reclusion
temporal in its maximum period to death.
95
In light of the greater penalty that attaches under the amendment, the
previous penalty of reclusion temporal in its maximum period to death will
have to be imposed in order not to run afoul of the constitutional
prohibition against ex post facto laws. Under Section 22 of Article III of the
1987 Constitution, no ex post facto law or bill of attainder shall be enacted.
An ex post facto law, among others, is one that changes the penalty and
inflicts a greater punishment than what the law annexed to the crime
when committed46 - the situation that would obtain if the amendment
under Republic Act No. 7659 would be applied.
Considering that the appellant has in his favor the mitigating circumstance
of voluntary surrender with no aggravating circumstance to offset it, the
imposable penalty should be in the minimum period, i.e., reclusion
temporal in its maximum period. Under the Indeterminate Sentence
Law,47 the maximum sentence shall be reclusion temporal in its maximum
period (17 years, 4 months and 1 day to 20 years) and the minimum shall
be taken from the next lower penalty, which is prision mayor maximum to
reclusion temporal medium (10 years and 1 day to 17 years and 4 months).
Civil Liability
The RTC awarded the amount of P13,000.00 to the victim’s heirs as actual
damages in light of established jurisprudence that allows only expenses
duly supported by receipts as proof of actual damages.48 This RTC ruling
has however been overtaken by our rulings in the landmark cases of
People v. Abrazaldo49 and People v. Villanueva.50 In Abrazaldo, we ruled
that where the amount of the actual damages cannot be determined
because of the absence of supporting and duly presented receipts but
evidence confirming the heirs’ entitlement to actual damages, temperate
damages in the amount of P25,000.00 may be awarded. This ruling was
reiterated, with slight modification in Villanueva, where we held that when
the actual damages proven by receipts during the trial amount to less than
P25,000.00, we can nevertheless award temperate damages of
P25,000.00. Thus, the heirs’ entitlement is P25,000.00 of temperate
damages.
We also modify the award of P100,000.00 as moral and exemplary
damages which the RTC lumped together. Moral damages are mandatory
in cases of murder and homicide without need of allegation and proof
other than the death of the victim. We find the award of P50,000.00 as
moral damages in order in accordance with established jurisprudence. 51
The award of exemplary damages is justified by the duly proven qualifying
circumstance of treachery; when a crime is committed with an aggravating
circumstance, either qualifying or generic, an award of P25,000.00 as
exemplary damages is justified under Article 2230 of the New Civil Code.52
We cannot award loss of earning capacity to the victim’s heirs since no
documentary evidence was presented to substantiate this claim. As a rule,
documentary evidence should be presented to substantiate a claim for
damages for loss of earning capacity. While there are exceptions to the
rule, these exceptions do not apply as the victim, Danilo, was an employee
of the Office of the Register of Deeds of Lingayen, Pangasinan when he
died; he was not a worker earning less than the minimum wage under the
prevailing labor laws.53
We affirm the P50,000.00 death indemnity awarded to the victim’s heirs,
in accordance with prevailing jurisprudence.54
WHEREFORE, in light of all the foregoing, we hereby AFFIRM the March 10,
2006 Decision of the Court of Appeals in CA-G.R. CR-HC
No. 01217 with the following MODIFICATIONS:
(1) the appellant is sentenced to suffer the indeterminate penalty of
imprisonment for (10) years and one (1) day of prision mayor maximum, as
minimum, to seventeen (17) years four (4) months and one (1) day of
reclusion temporal maximum, as maximum;
(2) moral damages is REDUCED to P50,000.00;
(3) exemplary damages is REDUCED to P25,000.00;
(4) the award of actual damages is DELETED; and
96
(5) the appellant is ORDERED to PAY the victim’s heirs the amount of
P25,000.00 as temperate damages.
Costs against the appellant Clemente Casta.
SO ORDERED.
G.R. No. 182750 January 20, 2009
RODEL URBANO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
VELASCO, JR., J.:
This petition for review under Rule 45 seeks to reverse and set aside the
Decision1 dated January 25, 2008 of the Court of Appeals (CA) in CA-G.R.
CR No. 25371 which affirmed with modification the April 30, 2001
Decision2 of the Regional Trial Court (RTC), Branch 39 in Lingayen,
Pangasinan in Criminal Case No. L-5028. The RTC found petitioner Rodel
Urbano guilty beyond reasonable doubt of the crime of Homicide.
The Facts
In an Information filed before the RTC, petitioner was charged with
Homicide, committed as follows:
That on or about the 28th of September 1993 in the evening, in Barangay
Poblacion, Municipality of Lingayen, Province of Pangasinan, Philippines
and within the jurisdiction of this Honorable Court, the above-named
accused, with intent to kill, did then and there willfully, unlawfully and
feloniously attack, assault, hit and maul Brigido Tomelden, inflicting upon
him mortal injuries and as borne out from the autopsy report the following
findings:

EXTERNAL FINDINGS:
A- Softened portion of the scalp over (R) occipito-temporal area about 5
inches above and posterior to the (R) ear.
B- Clotted blood over the (R) occipito-temporal area.
C- No lacerations noted.
INTERNAL FINDINGS:
A- On opening the skull there is oozing of dark colored blood from the
brain substances.
B- More darked blood vessels at the (L) side of the brain.
CAUSE OF DEATH:
Cardio-respiratory arrest secondary to cerebral concussion with resultant
cerebral hemorrhage due to mauling incident.
Which directly caused his death, to the damage and prejudice of the heirs
of the said Brigido Tomelden.
CONTRARY to Article 249 of the Revised Penal Code.
Petitioner, when arraigned, pleaded not guilty to the charge. Following the
parties’ waiver of pre-trial, trial on the merits then ensued.
As summarized in the decision subject of review, the prosecution’s
evidence established the following facts:
On September 28, 1993, at around 8:00 p.m., the victim Brigido Tomelden
and petitioner were at the compound of the Lingayen Water District
(LIWAD) in Lingayen, Pangasinan, having just arrived from a picnic in the
nearby town of Bugallon, Pangasinan, where, with some other co-workers,
they drunk beer in a restaurant. While inside the compound, the two had a
97
heated altercation in the course of which Tomelden hurled insulting
remarks at petitioner. Reacting, petitioner asked why Tomelden, when
drunk, has the penchant of insulting petitioner.
The exchange of words led to an exchange of blows. Cooler heads
succeeded in breaking up the fight, but only for a brief moment as the
protagonists refused to be pacified and continued throwing fist blows at
each other. Then petitioner delivered a "lucky punch," as described by
eyewitness Orje Salazar, on Tomelden’s face, which made Tomelden
topple down. Tomelden was on the verge of hitting his head on the ground
had their companions not caught him and prevented the fall. The blow,
however, caused Tomelden’s nose to bleed and rendered him
unconscious.
Petitioner and his other co-workers brought Tomelden to the office of the
LIWAD general manager where he spent the night. He remained in the
compound the following day, September 29, 1993. Upon arriving home at
around 6:00 p.m. of that day, Tomelden informed his wife, Rosario, of the
fight the previous night and of his having been rendered unconscious. He
complained of pain in his nape, head, and ear which impelled Rosario to
immediately bring him to the Lingayen Community Hospital where Dr.
Daisy Arellano examined him and treated his lacerated left index finger,
contusions, and hematoma at the right cerebrum.
On October 2 and 7, 1993, Tomelden went back to the hospital
complaining of dizziness, headache, and other pains. The attending doctors
observed the patient to be in a state of drowsiness and frequent vomiting.
On October 8, 1993, Rosario brought Tomelden to the Sison Memorial
Provincial Hospital in Dagupan City, where the attending physician, Dr.
Ramon Ramos, diagnosed Tomelden suffering from "brain injury,
secondary to mauling to consider cerebral hemorrhage."3
Tomelden was confined in the provincial hospital until 3:00 p.m. of
October 10, 1993, and, due to financial constraints, was thereafter
discharged despite signs negating physical condition improvement. Upon
reaching their house, however, Tomelden again complained of extreme
head pain, prompting his wife to bring him back to the Lingayen
Community Hospital where Dr. Arellano again attended to him. This time,
things turned for the worst, the doctor noting that Tomelden appeared to
be semi-conscious, sleepy, uncooperative, and not responding to any
stimulant. Tomelden died at 9:00 p.m. of that day due, per Dr. Arellano, to
"cardio-respiratory arrest secondary to cerebral concussion with resultant
cerebral hemorrhage due to mauling incident."
The defense presented petitioner who denied having any intention to kill,
asserting that hypertension, for which Tomelden was receiving treatment,
was the cause of the latter’s death.
The Ruling of the RTC
On April 30, 2001, the RTC rendered judgment finding petitioner guilty as
charged. The fallo of the RTC’s decision reads:
WHEREFORE, the prosecution having established beyond reasonable doubt
the guilt of the accused of the crime of HOMICIDE as defined and penalized
under Art. 249 of the Revised Penal Code, this Court in the absence of any
modifying circumstances, hereby sentences said accused to suffer the
indeterminate prison term of eight (8) years and one (1) day of Prision
Mayor as minimum to seventeen (17) years and four (4) months of
Reclusion Temporal as maximum and to indemnify the legal heirs of the
victim in the amount of PHP50,000.00, plus cost of the suit.
The period of preventive imprisonment suffered by the accused shall be
credited in full in the service of his sentence in accordance with Art. 29 of
the Revised Penal Code.4
Therefrom, petitioner appealed to the CA, his recourse docketed as CA-
G.R. CR No. 25371.
The Ruling of the CA
On January 25, 2008, the CA rendered a decision, affirming the conviction
of petitioner, but awarding moral damages to the heirs of Tomelden,
disposing as follows:
98
WHEREFORE, in the light of the foregoing, the appeal of the accused-
appellant is DISMISSED. The decision appealed from is AFFIRMED with
MODIFICATION that an award of P50,000.00 moral damages is GRANTED.
Remand of the records should immediately follow finality for the
consequent execution of the decision.5
The appellate court held that the commission by petitioner of the crime of
homicide, as defined and penalized under Article 2496 of the Revised Penal
Code (RPC), had been proved beyond moral certainty of doubt, pointing to
the lucky punch as the proximate cause of Tomelden’s hospitalization and
ultimately his death. And like the RTC, the CA found no qualifying
circumstance to increase or lower the penalty.
Following the denial of petitioner’s motion for reconsideration, per the CA
Resolution7 of April 24, 2008, he interposed this petition.
The Issues
On essentially the same issues raised before the CA, petitioner now urges
the Court to set aside the appealed decision, or at least modify it,
maintaining that the appellate court:
I. x x x erred in affirming the decision of the [RTC] finding [him] guilty
beyond reasonable doubt of the crime charged.
II. x x x erred in not appreciating the mitigating circumstances of sufficient
provocation on the part of the victim and lack of intent to commit so grave
a wrong in favor of the petitioner.8
The Court’s Ruling
The petition is partly meritorious.
Homicide Duly Proved
It is petitioner’s threshold posture that the fistic injury Tomelden sustained
was not "the main underlying cause of his death."9 In this regard,
petitioner draws attention to the fact that the fist fight in question
happened on September 28, 1993. Tomelden, however, died only on
October 10, 1993 or 12 days thereafter and that, during the intervening
days, particularly September 29, 1993, the deceased regularly reported for
work. Moreover, petitioner avers that days prior to the fateful incident of
September 28, 1993, Tomelden failed to come to work as he was suffering
from malignant hypertension and that this circumstance greatly engenders
doubt as to the proximate cause of the victim’s death. Petitioner, thus,
contends that he could only be adjudged guilty of physical injuries.10
We are not persuaded.
The prosecution witness, Salazar, testified about petitioner’s lucky punch
hitting Tomelden right smack on the face. And even if Tomelden’s head did
not hit the ground as his co-workers averted that actuality, that punch
gave him a bleeding nose and rendered him unconscious right after the
September 28, 1993 fight. From then on, Tomelden was in and out of the
hospital complaining of headache, among other pains, until his demise on
October 10, 1993, or 12 days after the blow that made Tomelden
unconscious.
Significantly, Dr. Arellano testified conducting an autopsy on the body of
Tomelden and stressed that the "softened portion of the scalp over (R)
occipito-temporal area about 5 inches above and posterior to the (R) ear"
of the victim could have been caused by a fist blow. She also opined that
the fist blow which landed on Tomelden’s head could have shaken his
brain which caused the cerebral concussion; and that the cause of the
victim’s death was "cardio-respiratory arrest secondary to cerebral
concussion with resultant cerebral hemorrhage due to mauling incident."
The combined effects of the testimonies of Salazar and Dr. Arellano,
buttressed by that of Rosario who related about her husband’s post
September 28, 1993 severe head pain, clearly establish beyond cavil the
cause of Tomelden’s death and who was liable for it.
The CA observed aptly:
99
It was through the direct accounts of the prosecution witnesses of the
events that transpired during the fisticuff incident x x x more specifically
the landing of the "lucky punch" on the face of [Tomelden], taken together
with the result of the medical examinations and autopsy report which
described the death of the victim as "cardio-respiratory arrest secondary
to cerebral concussion with resultant cerebral hemorrhage due to mauling
incident" that we are convinced that the "lucky punch" was the proximate
cause of [Tomelden’s] death. The prosecution had satisfactorily proven
that it was only after the incident that transpired on September 28, 1993
that the victim was hospitalized on several occasions until he expired,
twelve days later x x x. It is moreover of no consequence whether the
victim was able to report for work during the intervening days x x x.
We find no reason to depart from the doctrinal rule that great weight is
accorded the factual findings of the trial court, particularly with respect to
the ascertainment of the credibility of witnesses. There was absence of any
ill motive on the part of x x x Salazar who in fact testified that he was a
friend of both [petitioner] and [Tomelden]; more so on the part of the
attending physicians.11 x x x
Petitioner’s suggestion that Tomelden succumbed to heart ailment and/or
that his death was the result of his malignant hypertension is untenable,
given that the post-mortem report yields no positive indication that he
died from such malady.
Mitigating Circumstances Present
Petitioner next contends that the mitigating circumstances of no intention
to commit so grave a wrong and sufficient provocation on the part of the
victim ought to be appreciated in petitioner’s favor.
On this score, we agree with petitioner.
Paragraphs 3 and 4 of Art. 13, RPC provide as follows:
Art. 13. Mitigating circumstances.––The following are mitigating
circumstances:
xxxx
3. That the offender had no intention to commit so grave a wrong as that
committed.
4. That sufficient provocation or threat on the part of the offended party
immediately preceded the act.
When the law speaks of provocation either as a mitigating circumstance or
as an essential element of self-defense, the reference is to an unjust or
improper conduct of the offended party capable of exciting, inciting, or
irritating anyone;12 it is not enough that the provocative act be
unreasonable or annoying;13 the provocation must be sufficient to excite
one to commit the wrongful act14 and should immediately precede the
act.15 This third requisite of self-defense is present: (1) when no
provocation at all was given to the aggressor; (2) when, even if provocation
was given, it was not sufficient; (3) when even if the provocation was
sufficient, it was not given by the person defending himself; or (4) when
even if a provocation was given by the person defending himself, it was
not proximate and immediate to the act of aggression.16
In the instant case, Tomelden’s insulting remarks directed at petitioner and
uttered immediately before the fist fight constituted sufficient
provocation. This is not to mention other irritating statements made by the
deceased while they were having beer in Bugallon. Petitioner was the one
provoked and challenged to a fist fight.
Petitioner’s unrebutted testimony on the events immediately preceding
the fisticuff and earlier dovetails with the testimony of Salazar.
In gist, petitioner testified being, in the afternoon of September 28, 1993,
in the nearby town of Bugallon for a picnic. He was with Tomelden and
several others, including Dominador Navarro, Chairperson of LIWAD. At a
restaurant in Bugallon, the group ordered goat’s meat and drank beer.
When it was time to depart, Navarro asked petitioner to inform Tomelden,
then seated in another table, to prepare to leave.
100
When so informed, Tomelden insulted petitioner, telling the latter he had
no business stopping him from further drinking as he was paying for his
share of the bill. Chastised, petitioner returned to his table to report to
Navarro. At that time, petitioner saw that Tomelden had already
consumed 17 bottles of beer. In all, the group stayed at the picnic place for
three and a half hours before returning to the LIWAD.
Upon reaching the LIWAD compound, Tomelden allegedly slapped and
hurled insults at him, calling him "sipsip" just to maintain his employment
as Navarro’s tricycle driver. Tomelden allegedly then delivered several fist
and kick blows at petitioner, a couple of which hit him despite his evasive
actions. Petitioner maintained that he only boxed the victim in retaliation,
landing that lucky punch in the course of parrying the latter’s blows.
The following testimony of Salazar attests to the provocative acts of
Tomelden and to his being the aggressor:
PROSECUTOR CHIONG
Q After you heard from the accused those remarks, what if any did the
victim replied if any?
WITNESS
A They exchanged angry words, sir.
Q What were these words?
A Rodel Urbano said, "When you’re already drunk, you keep on insulting
me."
Q And what was the reply if any?
A ‘Akina tua lanti".
PROS. CHIONG
Q Who said that?
WITNESS Q When the victim and this accused had this fight, fist fight, they
exchanged blows, but there was this lucky punch that hit the victim
A It was Brigido Tomelden, sir. because the victim fall down, is that correct?

Q And what transpired next? A When I stop pacifying them x x x, I saw Biring the late Brigido Tomelden,
he was much aggressive than the accused, sir.
A After that they exchange words, sir. " If you like we will have a fist fight"
he said. Q You mean that although it was the victim who was more aggressive than
the accused here, he also [threw] punches but sometime some of his
Q Who said that? punches most of which did not hit the victim?

A Brigido Tomelden said. A He tried to parry the blows of the late Brigido Tomelden, sir.

Q At that time, were you already inside the compound of the LIWAD? Q Because he tried to parry the blow of the Brigido Tomelden, when the
accused throw punches, the punch was directed to the victim but most of
A Yes, sir. them did not hit the victim, is that what you saw?

Q After the victim allegedly told the accused, "If you want a fist fight,"
what transpired next?
A Rodel Urbano said, "if it is a fist fight we fight."17
Q And when you were already in the compound of LIWAD Office, Brigido
Tomelden was challenging the accused for a fist fight?
A Yes, sir.
Q And the accused refused to accept the challenge?
A Yes because Mr. Brigido Tomelden is very much bigger than Mr. Rodel
Urbano. He is stouter than the accused.
Q But finally the fist fight took place?
A Yes, sir.18
PROS. CHIONG
A Yes, sir.19 (Emphasis added.)
It is abundantly clear from the above transcript that the provocation came
from Tomelden. In fact, petitioner, being very much smaller in height and
heft, had the good sense of trying to avoid a fight. But as events turned
out, a fisticuff still ensued, suddenly ending when petitioner’s lucky punch
found its mark. In People v. Macaso,20 a case where the accused police
officer shot and killed a motorist for repeatedly taunting him with defiant
words, the Court appreciated the mitigating circumstance of sufficient
provocation or threat on the part of the offended party immediately
preceding the shooting. The Court had the same attitude in Navarro v.
Court of Appeals,21 a case also involving a policeman who killed a man
after the latter challenged him to a fight. Hence, there is no rhyme or
reason why the same mitigating circumstance should not be considered in
favor of petitioner.
Moreover, the mitigating circumstance that petitioner had no intention to
commit so grave a wrong as that committed should also be appreciated in
his favor. While intent to kill may be presumed from the fact of the death
of the victim, this mitigating factor may still be considered when attendant

101
facts and circumstances so warrant, as in the instant case. Consider:
Petitioner tried to avoid the fight, being very much smaller than Tomelden.
He tried to parry the blows of Tomelden, albeit he was able, during the
scuffle, to connect a lucky punch that ended the fight. And lest it be
overlooked, petitioner helped carry his unconscious co-worker to the office
of the LIWAD’s general manager. Surely, such gesture cannot reasonably
be expected from, and would be unbecoming of, one intending to commit
so grave a wrong as killing the victim. A bare-knuckle fight as a means to
parry the challenge issued by Tomelden was commensurate to the
potential violence petitioner was facing. It was just unfortunate that
Tomelden died from that lucky punch, an eventuality that could have
possibly been averted had he had the financial means to get the proper
medical attention. Thus, it is clear that the mitigating circumstance of "no
intention to commit so grave a wrong as that committed" must also be
appreciated in favor of petitioner while finding him guilty of homicide. That
petitioner landed a lucky punch at Tomelden’s face while their co-workers
were trying to separate them is a compelling indicium that he never
intended so grave a wrong as to kill the victim.
Withal, with no aggravating circumstance and two mitigating
circumstances appreciable in favor of petitioner, we apply par. 5 of Art. 64,
RPC, which pertinently provides:
Art. 64. Rules for the application of penalties which contain three periods.–
–In cases in which the penalties prescribed by law contain three periods,
whether it be a single divisible penalty or composed of three different
penalties, each one of which forms a period in accordance with the
provisions of Articles 76 and 77, the courts shall observe for the application
of the penalty the following rules, according to whether there are or are no
mitigating or aggravating circumstances:
xxxx
5. When there are two or more mitigating circumstances and no
aggravating circumstances are present, the court shall impose the penalty
next lower to that prescribed by law, in the period that it may deem
applicable, according to the number and nature of such circumstances.
102
The prescribed penalty for homicide under Art. 249 of the RPC is reclusion
temporal or from 12 years and one day to 20 years. With the appreciation
of two mitigating circumstances of no intention to commit so grave a
wrong as that committed and of sufficient provocation from the victim,
and the application of par. 5 of Art. 64, RPC, the imposable penalty would,
thus, be the next lower penalty prescribed for homicide and this should be
prision mayor or from six years and one day to 12 years. Consequently,
with the application of the Indeterminate Sentence Law, petitioner ought
to be incarcerated from prision correccional as minimum and prision
mayor as maximum. In view of the circumstances of the case, considering
that the petitioner never meant or intended to kill the victim, a prison
term of eight (8) years and one (1) day of prision mayor as maximum
period is proper while the period of two (2) years and four (4) months of
prision correccional as minimum period is reasonable.
We find no reason to modify the award of civil indemnity and moral
damages.
WHEREFORE, the CA Decision dated January 25, 2008 in CA-G.R. CR No.
25371 is, in the light of the presence and the appreciation of two
mitigating circumstances in favor of petitioner, hereby MODIFIED by
decreasing the term of imprisonment. As thus modified, petitioner Rodel
Urbano is hereby sentenced to serve an indeterminate prison term of from
two (2) years and four (4) months of prision correccional, as minimum, to
eight (8) years and one (1) day of prision mayor, as maximum, with
whatever imprisonment he has already served fully credited in the service
of this sentence. The rest of the judgment is hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
[G.R. Nos. 129961-62. August 25, 2003]
THE PEOPLE OF THE PHILIPPINES, appellee, vs. VIRGILIO CAABAY,
ESTEBAN CAABAY, RODRIGO LUDRING CAABAY, VALENTINO COOL
CAABAY and ISIDRO BOYET CAABAY, accused,

VIRGILIO CAABAY, ESTEBAN CAABAY, VALENTINO COOL CAABAY and
ISIDRO BOYET CAABAY, appellants.
DECISION
CALLEJO, SR., J.:
This is an automatic review of the Decision[1] of the Regional Trial Court of
San Jose, Occidental Mindoro, Branch 46, convicting the appellants with
double murder for the deaths of Paulino Urbano and his son Aliguer
Urbano, sentencing them to double death by lethal injection, and directing
them to pay, jointly and severally, civil indemnity in the total amount of
P100,000.00.
The Indictments
On August 9, 1994, an Information was filed with the RTC of Occidental
Mindoro, docketed as Criminal Case Nos. R-3733, charging the appellants
and Rodrigo Caabay with murder, qualified by abuse of superior strength,
the accusatory portion of which reads:
That on or about the 27th day of June, 1994 at around 5:00 oclock in the
afternoon in Sitio Lamis, Barangay San Agustin, Municipality of San Jose,
Province of Occidental Mindoro, Philippines and within the jurisdiction of
this Honorable Court, the accused being then armed with sharp bladed
instruments, with intent to kill and taking advantage of their superior
strength, conspiring and confederating together and helping one another,
did then and there willfully, unlawfully and feloniously attack, assault and
hack with the said weapons one Aliguer Urbano, thereby inflicting upon
the latter serious wounds which caused his untimely death.
CONTRARY TO LAW. [2]
Another Information was filed with the said RTC docketed as Criminal Case
No. 3734, charging the same appellants and Rodrigo Caabay with murder,
the accusatory portion of which reads:
103
That on or about the 27th day of June, 1994, at around 5:00 oclock in the
afternoon in Sitio Lamis, Barangay San Agustin, Municipality of San Jose,
Province of Occidental Mindoro, Philippines and within the jurisdiction of
this Honorable Court, the accused being then armed with sharp bladed
instruments, with intent to kill and taking advantage of their superior
strength, conspiring and confederating together and helping one another,
did then and there willfully, unlawfully and feloniously attack, assault and
hack with the said weapons one Paulino Urbano, thereby inflicting upon
the latter serious wounds which caused his untimely death.
CONTRARY TO LAW.[3]
On November 9, 1994, the appellants, assisted by counsel, were arraigned
and entered their respective pleas of not guilty. Accused Rodrigo Caabay
remained at large. A joint trial thereafter ensued.
The Case for the Prosecution[4]
The spouses Paulino Urbano and Adelina Urbano, were residents of Sitio
Lamis, Barangay San Agustin, San Jose, Occidental Mindoro. About forty
meters away from their house was Paulinos four-hectare farmland. The
house of their 27-year-old son Aliguer Urbano[5] and his wife Arlene, was
about fifteen meters away. The 64-year-old Paulino could not walk without
the use of a cane because of a foot injury. Adjacent to the couples property
was a two-hectare farmland cultivated by accused Virgilio Caabay and his
sons accused Esteban Caabay, Rodrigo (Ludring) Caabay, Valentino (Cool)
Caabay and Isidro (Boyet) Caabay. Banana trees were planted within the
periphery of the common boundary of the two parcels of land. Because of
a recurring dispute over the boundary of the farmlands they respectively
cultivated, Paulino lodged a complaint against accused Virgilio with
Barangay Captain Victory Sualog. On May 31, 1993, the barangay captain
resolved the dispute and delineated the boundary of the farmlands. On
March 14, 1994, Adelina complained to the barangay captain that their
house was burned.
On June 27, 1994, at 5:30 p.m., Paulino and Adelina were at their farmland.
Paulino was cutting the overgrown grasses in the middle portion of the
land using a bolo. After a while, he rested and smoked a cigarette while
seated. Adelina was cooking dahon ng sili. Momentarily, Adelina told her The next day, Municipal Health Officer Dr. Hurley G. delos Reyes of San
husband that it was getting late and they should be heading home. Paulino Jose, performed an autopsy on the cadavers of the victims and signed two
told his wife to go ahead as his clothes were drenched in sweat and he was autopsy reports. The doctor made the following findings on his
waiting for them to dry. Despite her proddings, Paulino refused to go examination of Paulinos body:
home.
...
Accused Rodrigo Caabay sauntered by and commented to Paulino that he
was clearing a wide portion of the land. Paulino replied that the farmland II POST MORTEM FINDINGS:
was very wide and it was about time that he cleared it. Rodrigo then
inquired from Adelina what she was doing and she answered that she was 1. Incised wound, 13 cms. x 7 cms., left scapular area incising the collar
cooking. Rodrigo left. Adelina also decided to go home and left her bone;
husband behind.
2. Incised wound, (crosswise) at the ear, face and nose; 14 cms. x 2 cms.;
When Adelina was barely three meters away from their house, she met her
son Aliguer, armed with a bolo, rushing to where his father was. When 3. Incised wound, 6 cms. x 1.2 cms. at the left parietal area;
Adelina looked back, she was shocked to see accused Virgilio and his
children - Esteban, Rodrigo, Valentino and Isidro - each armed with bolos, 4. Incised wound, 8 cms. x 1.5 cms. at the left temporal area;
hacking Paulino on the neck and the right hand. Accused Rodrigo hacked
Paulino on his back. The victim fell to the ground. Aliguer scampered away 5. Incised wound, 3 cms. x 1.4 cms. at the left frontal area;
from the scene but accused Virgilio and Esteban ran after and overtook
him. Accused Virgilio, Esteban, Valentino and Isidro and other persons 6. Incised wound, 5 cms. x 0.3 cm. at the chin;
encircled Aliguer, and thereafter ganged up and stabbed him. Aliguer fell
to the ground, mortally wounded. The accused Caabays and their cohorts 7. Stab wound, 3 cms. x 1 cm. at the right scapular area;
placed the cadavers of Paulino and Aliguer side by side. Shocked and
petrified, Adelina could do nothing but bow her head in silent grief. She 8. Amputated, right hand;
was afraid even to go to the place where her husband and son were. Alone
in their house, Adelina was unable to sleep the entire night. 9. Incised wound, 4 cms. x 3 cms. at the left posterior area;

The following morning, Adelina proceeded to the place where her husband
and son were hacked and stabbed. She found them sprawled in their
farmland, side by side, already dead. She proceeded to the house of
Barangay Captain Victory Sualog at Barangay San Vicente and reported the
incident. She also informed the barangay captain that accused Virgilio and
his sons Esteban, Valentino, Rodrigo and Isidro were the assailants. In the
meantime, SPO3 Romeo Robles and SPO2 Jesus Gonong arrived and
conducted an on-the-spot investigation.
10. Incised wound, 4 cms. x 3 cms. at the left anterior wrist;
11. Incised wound, 13 cms. 4 cms. at the posterior neck;
I. CAUSE OF DEATH:
Cardio respiratory arrest, hemorrhage due to incised and stab wounds.[6]
On the other hand, the following were the doctors findings upon
examining Aliguers body:

104

II. POST MORTEM FINDINGS:
1. Incised wound, 12 cms. x 4 cms. maxillary area fracturing the teeth;
2. Incised wo[u]nd, 10 cms. x 5 cms. at the left of the face;
3. Incised wound, 13 cms. x 3 cms., right posterior hand;
4. Incised wound, pointer and middle fingers, right hand;
5. Incised wound at the scrotum;
6. Incised wound, 4 cms. x 1 cm. at the right forearm posterior;
7. Incised wound, 3 cm. x 1 cm., left ear;
II. CAUSE OF DEATH:
Cardio respiratory arrest, hemorrhage due to incised wounds.[7]
Dr. delos Reyes signed the respective death certificates of Paulino and
Aliguer.[8] Because the collar bone was broken, it appears that the incised
wound on Paulinos left scapular area was the most serious.
On June 29, 1994, Adelina gave her sworn statement on the stabbing
incident to SPO1 Romeo P. Narcise, wherein she identified Virgilio Caabay
and his sons Esteban, Rodrigo, Valentino and Isidro as the assailants.[9]
The Evidence of the Accused[10]
The accused Virgilio Caabay admitted having hacked Paulino and Aliguer.
He claimed, however, that he killed Aliguer to defend himself. He, also
killed Paulino to defend his son, accused Esteban Caabay.
Virgilio testified that he was adept at defending himself, having studied
martial arts. He was 54 years old at the time of the killings. On June 27,
1994 at 5:00 p.m., he was outside feeding their pigs, while his wife was
105
cooking in the kitchen. His son Esteban was about 15 meters away,
transferring the cow to another place.
Virgilio saw Paulino within the boundary of his farmland, destroying his
fence. Virgilio confronted Paulino and told him to stop. Paulino retorted:
Bakit, ano? Virgilio said: Hindi ako lalaban. Aliguer, who was near the
banana trees, about a meter away, was armed with a bolo. He suddenly
tried to hack Virgilio from behind. The latter turned around and faced
Aliguer who, thereupon struck Virgilio with the bolo, hitting the latter on
the face and the left ear. Paulino likewise hacked Virgilio, but the latter
was able to parry the thrust with his right hand. Virgilios leg and right
elbow were hit by Paulinos bladed weapon. Virgilio cried for help, calling
his son Esteban who armed himself with a piece of wood and immediately
rushed to his father. Aliguer then hacked Virgilio on the head twice, but
Virgilio was able to wrest the bolo away from Aliguer. He then held
Aliguers hands and used him as a shield, to prevent Paulino from stabbing
him. Virgilio pushed Aliguer forward. Aliguer fell to the ground. Virgilio
then stabbed the fallen Aliguer several times, even as the latter tried to
ward off the thrusts with his feet. Virgilio could no longer recall how many
times he stabbed and hacked the victim.
In the meantime, Paulino squared off with Esteban. After hacking Aliguer,
Virgilio then thrust the bolo at Paulino and hacked the latter several times.
Paulinos right hand was severed; it fell to the ground, its fingers still
clutching the bolo. Virgilio, his wife and Esteban then proceeded to
Barangay Adela where they took a motor boat and proceeded to the
Zapanta Maternity and General Hospital for the treatment of their
wounds. He stayed in the hospital for one week, and had to return for
further treatment. His wife destroyed the bolos.
For his part, accused Esteban testified that at 5:00 p.m. on June 23, 1994,
he was grazing his cow in their farmland. He saw Paulino and Aliguer, each
armed with a bolo, hacking his father. He heard his father shout to him for
help. Esteban picked up a piece of wood, about a meter long, from the
fence and rushed to defend his father who was then fending for himself
against Aliguers hacking blows. Esteban sustained wounds on his left and
right arms, and the left side of his neck. Esteban called to his father for
help. Virgilio had by then hacked Aliguer to death. He squared off with
Paulino, whom he also struck down. Virgilio, his wife, and Esteban then
fled from the scene, and proceeded to Barangay Adela, about one and a
half kilometers from Sitio Lamis where they borrowed a banca owned by
Iyok Awit. From there, they proceeded to the house of Councilor Danilo
Malayas whose banca they borrowed for the trip to the Zapanta Maternity
and General Hospital in San Jose. Once there, Dr. Senen Zapanta treated
father and son for their wounds.
Virgilio and Esteban were treated for multiple lacerated wounds. Virgilio
sustained the following wounds:
- Lac. Wd. Face Left about 7-8 inches up to the ear left.
- Lac. Wd. Temple Left 1 inch.
- Lac. Wd. Wrist Left, Posterior
- Lac. Wd. Shoulder Rt. Anterior
- Lac. Wd. Elbow Rt. Post
- Lac. Wd. Leg Middle 3rd. Rt. Ant.[11]
Esteban sustained the following injuries:
- Lac. Wd. Face Rt.
- Lac. Wd. Forearm Prox. 3rd. Postero-Lateral
- Lac. Wd. Forearm Distal 3rd. Antero-Lateral
- Lac. Wd. Forearm Middle 3rd. Ant.
- Lac. Wd. Hand, Palmar along the little finger
- Lac. Wd. Thigh, Distal 3rd. Anterior
- Lac. Wd. Leg, middle 3rd. Antero-Lat. Left
106
- Lac. Wd. Finger, Thumb, Ant.
- Lac. Wd. Forearm, distal 3rd. Post.
- Lac. Wd. Forearm, middle 3rd. Post.[12]
The wounds sustained by the two could have been caused by a sharp bolo;
the wounds were serious and could have caused their deaths. Virgilio and
Esteban were discharged from the hospital on July 12, 1994.
Renato Oquindo testified that he was a barangay kagawad and chairman of
the barangay peace and order committee. At 8:00 a.m. on June 28, 1994,
Adelina arrived in his house at Barangay San Agustin and told him that her
husband and her son had been killed. He accompanied Adelina to the
house of Barangay Captain Victory Sualog, who directed them to go to San
Jose to report the incident to the police authorities. Later, Oquindo and
Barangay Councilor Alberto Quindap proceeded to the scene of the killing
and saw the cadavers of Paulino and Aliguer, about ten meters away,
inside the Urbano farmland. Adelina told Oquindo that were it not for their
white dog, she would not have discovered the bodies. However, Oquindo
failed to inform the police authorities about what Adelina had told him.
Barangay Captain Victory Sualog testified that at 6:30 a.m. on June 28,
1994, Oquindo and Adelina arrived at his house and reported the stabbing
and killing of Paulino and Aliguer. He was told that the incident stemmed
from a boundary conflict between Virgilio and Paulino. Adelina requested
him and the two barangay councilors to conduct an on-the-spot
investigation. Sualog then ordered Oquindo and Quindap to proceed to the
scene of the crime, while he proceeded to San Jose to report the incident
to the police authorities and secure the services of a medico-legal officer.
The accused Isidro and Valentino denied any involvement in the killing of
Paulino and Aliguer. They adduced evidence that they were employed by
Danilo Malayas at Barangay Adela, Cambaruan, Rizal, about three
kilometers from Sitio Lamis. They had been working in the twelve-hectare
farmland as operators of hand tractors since June 10, 1994 or barely two
weeks before the killing. During this time, they stayed in Danilos house.
They likewise averred that it would take three hours on foot to reach Sitio
Lamis from the Malayas farm, but there was also a route via motor boat
through the nearby Busuanga River.
In the afternoon of June 27, 1994, Isidro and Valentino were at work until
6:00 p.m. They left the fields with their employer. Rodrigo and Isidro were
told that their father Virgilio and their brother Esteban had been hacked
and were confined at the Zapanta Maternity and General Hospital in San
Jose. With their co-worker Juanito Roldan, they rushed to the hospital on
board the motor banca owned by Malayas. Valentino and Isidro slept in
the hospital that night. The testimonies of Valentino and Isidro were
corroborated by Juanito Roldan.
Danilo Malayas testified that Valentino and Isidro had been working in his
farm since June 1, 1994. On June 27, 1994, he and his helpers, including
Valentino and Isidro, were working at his farmland since 7:30 a.m. At 11:30
a.m., they left the farm and went to his house at the poblacion, which was
about a kilometer away. They went back to the farm at 1:00 p.m. His
brother Lucreo Malayas saw them as they worked. Danilo went back home
at 4:00 p.m., leaving Valentino and Isidro. At around 6:00 p.m. to 7:00
p.m., Virgilio and Esteban arrived, wounded. They asked him to lend his
motor boat, to ferry them to the Zapanta Maternity and General Hospital
in San Jose. He agreed. Virgilio and Esteban were transported to San Jose
on board his motor boat. When Esteban and Isidro arrived, he told them
what happened. Danilo also testified that it would take one to negotiate
the distance from his house to the place of the killing about forty to fifty
minutes.
Lucreo Malayas corroborated Danilos testimony. He testified that accused
Valentino and Isidro were in the farm from 7:00 a.m. to 6:00 p.m. on June
27, 1994. The next day, June 28, 1994, he learned that Valentino and
Isidro, as well as accused Virgilio, Esteban and Rodrigo, were suspects in
the killing of Paulino and Aliguer. Lucreo Malayas corroborated the
testimony of his brother Danilo.
During the preliminary investigation, the accused submitted their
respective counter-affidavits.
107
On January 23, 1997, the trial court rendered judgment convicting the
appellants with double murder, the decretal portion of which reads:
WHEREFORE, the Court finds that:
a) In Criminal Case No. R-3733;
Accused Virgilio Caabay, Esteban Caabay, Cool (Valentino) Caabay, and
Boyet (Isidro) Caabay guilty as principals of the crime of Murder, as defined
and penalized under Article 248 of the Revised Penal Code, and Section 6
of Republic Act No. 7659, otherwise referred to as the Death Penalty Law,
and are hereby sentenced to DEATH.
All the accused are hereby ordered to jointly and severally indemnify the
heirs of the late Aliguer Urbano in the amount of FIFTY THOUNSAD PESOS
(P50,000.00).
b) In Criminal Case No. R-3734;
Accused Virgilio Caabay, Esteban Caabay, Cool (Valentino Caabay, and
Boyet (Isidro) Caabay guilty as principals of the crime of Murder as defined
and penalized under Article 248 of the Revised Penal Code, and Section 6
of Republic Act Number 7659, otherwise known as the Death Penalty Law,
and are hereby sentenced to DEATH.
All the accused are ordered to jointly and severally indemnify the heirs of
the late Paulino Urbano in the amount of FIFTY THOUSAND PESOS
(P50,000.00).
The accused who are all detained at the Provincial Jail at Magbay are
ordered immediately transferred to the New Bilibid Prisons, Muntinlupa
City.[13]
The trial court ruled that treachery and abuse of superior strength were
attendant in the commission of the crimes.
All the accused, now the appellants, assail the decision of the trial court,
contending that:

The Court a quo erred:
I. In relying heavily on the testimony of the lone alleged eye- witness of the
prosecution whose testimony is tainted with bias and contradictions.
II. In totally not giving credence and deliberately disregarding the
testimonies of witnesses for the defense.
III. In finding of material facts against the accused unsupported by
evidence.
IV. In convicting all the accused for murder.[14]
The appellants aver that the trial court erred in giving credence and
probative weight to Adelinas testimony. She failed to reveal the identity of
the assailants to her daughter-in-law Arlene Urbano, to the policemen who
conducted an on-the-spot investigation of the killings and to Barangay
Captain Sualog. She did not tell them that she witnessed the killing.
Appellants Valentino and Isidro could not possibly be involved because at
the time, they were working in the Malayas farmland. Only the appellants
Virgilio Caabay and Esteban Caabay were involved in the killing of the
victims, as only they sustained injuries. The other appellants did not even
sustain a scratch on their bodies. The trial court also erred in not holding
that appellants Virgilio Caabay and Esteban Caabay acted in self-defense
when they killed the victims.
The Office of the Solicitor General, for its part, argues that Adelina
positively identified the appellants as the assailants. That she failed to
divulge their identities to her daughter-in-law Arlene, to the policemen
who conducted the on-the-spot investigation and to Barangay Captain
Sualog, did not impair her credibility and the probative weight of her
testimony. The trial court did not err in giving credence and probative
weight to Adelinas testimony which is even corroborated by the physical
evidence on record.
The contentions of the appellants do not persuade. The legal aphorism is
that the findings of the trial court, its assessment of the credibility of the
108
witnesses and the probative weight thereof, and its conclusions based on
the said findings are accorded by the appellate court conclusive effect
unless the trial court ignored, misconstrued and misinterpreted facts and
circumstances of substance which, if considered, would alter the outcome
of the case.[15]
After a review of the evidence on record, we find no reason to deviate
from the findings and conclusions of the trial court. Contrary to the
appellants assertions, Adelina did identify the appellants as the assailants
and testified on their respective involvement in the killings. Her testimony
on direct examination is as follows:
Q You mentioned also about the accused as the one who killed your
husband and son, will you kindly point to us accused Virgilio Caabay?
A (The witness pointed to a person seated on the bench and when asked
about his name, he answered that he is Virgilio Caabay)
Q How about Esteban Caabay, is he in court?
A Yes, sir.
Q Will you please point to him?
A (The accused voluntarily stood up when he heard his name).
Q How about Ludring Caabay, is he inside the court?
A Hes not yet arrested, Sir.
Q How about Cool Caabay, is he inside the courtroom?
ATTY. VILLAMAR:
The accused voluntarily stood up when he heard his name.
Q How about Boyet Caabay, where is he?
A (The witness pointed to a person wearing white T-shirt and when asked COURT:
his name he answered that he is Isidro Caabay @ Boyet Caabay).
Q What happened to your husband?
COURT:
A When my son went to approach my husband and when I turned my back,
There are five accused, only one at large. I saw my husband dead already. I saw also my husband being hacked, Your
Honor.
FISCAL SALCEDO:
Q Who hacked your husband?
Yes, your Honor.
A The Caabays, Your Honor.
Q Now, will you kindly tell us Mrs. Urbano the relationship of the accused
with each other? Q Who among the Caabay because there are many Caabays?

A One family, Sir. A The Caabays hacked my husband, sabay-sabay, Your Honor.

Q And who is the father among the accused? Q All of the Caabays were armed with bolos?

A Virgilio Caabay is the father who is wearing wrist watch. A Yes, Your Honor, they were all armed with long bolos.

Q How about this Ludring Caabay, what is his relationship? Q And they hacked your husband to death?

A He is also the son of Virgilio Caabay. A Yes, Your Honor, they hacked my husband on the neck and cut his right
hand.
Q Do you want to tell us that Esteban, Ludring, Cool and Boyet are the
children of Virgilio Caabay? FISCAL OLARTE:

A Yes, sir.[16] Q I noticed that there are only four (4) Caabays, now, where is the other
one?
...
A He is hiding in Cambarwang [sic], in the house of Marcelo Candelario, Sir.
FISCAL OLARTE:
Q What is the name of that Caabay who is hiding in the house of Mario
Q When you were going to your house, what happened, if any? Candelario?

A When I reached home, I met my son Aliguer and he told me that we have A Ludring Caabay, Sir. He was really the one who hacked my husband at
a visitor in our house and I told him to go ahead of me. the back.

109
Q While your husband was being hacked by the Caabays, as you said, what A My son proceeded to the place where my husband was to fetch him so
did your son Aliguer Urbano do? that he could go home.

A When my son approached the body of my husband, he was chased by
the two (2) accused, Berling Caabay and Esteban Caabay so, my son ran
away.
Q What happened to your son when he was being chased by these
persons?
A Eight (8) persons approached and they killed my son, Sir.
Q But according to you, when you turned your back, you saw your husband
being hacked by the Caabays?
A My son was still walking when I met him, and when I turned back, I saw
my husband being hacked by the Caabays.
Q And when you saw his father being hacked by the Caabays, your son
proceeded to the place where his father was?

Q Who killed your son? A Yes, Sir.

A All the Caabays, Sir.[17] Q And your son was holding a bolo?

... A Yes, sir.

Q Now, when you met your son, your son proceeded to the place where Q When you left your husband in that place, he was with his bolo because
your husband was? he was then clearing your land?

A When I met my son, and when I turned back, I saw my son being hacked A Yes, sir.
by the Caabays.
Q You mentioned that there were 10 people who were involved in the
COURT: killing of your son and husband, my question is: you do not know the
others except the Caabays?
All these accused Mrs. Witness?
A I do not know them by their names but I looked only at the Caabays.
A Yes, your Honor.
Q Because youre very familiar with the Caabays?
Q Including Ludring who is still at large?
A Yes, sir.
A When my son ran away, many persons encircled and ran after him.
Q And in fact, you have land boundary dispute?
ATTY. VILLAMAR:
A Yes, Sir.
Your son went to that direction to help his father, is it not?

110
Q Now, because of what you witnessed when you turned your head, you
were shocked, is it not?
A Yes, Sir, I just looked at them, and I know them, I just stood up and
bowed my head.
Q And you never run towards your husband to plea for his life?
A No, sir, because they were armed.
Q But before that incident, youre in talking terms with the Caabays
because in your testimony your husband and Ludring Caabay even talked
with each other?
A Yes, sir, in fact we gave them fish when my husband caught fish.
Q How long did you stay there standing and in shocked [sic]?
A After my husband was killed, they left, so I also went home.
Q And you stayed in your house?
A Yes, sir.[18]
On cross examination, Adelina testified as follows:
ATTY. VILLAMAR:
On that morning of the following day, you never went to the place where
you saw your husband and your son dead?
A Before I went to the Barangay Captain, I went first to the place where my
husband and son were killed.
Q And you saw the dead bodies of your husband and son Aliguer the
following morning before you went to the house of the Barangay Captain?
A Yes Sir, they were beside with [sic] each other.
111
Q Do you want to tell us that the dead bodies of your husband and your
son the following morning before you went to the Barangay Captain were
lying side by side already?
A Yes Sir, they were lying side by side.
COURT:
Who moved the bodies?
A The Caabays your Honor, who laid the bodies side by side.[19]
On June 29, 1994, or barely two days after the gory killing, Adelina gave
her sworn statement to SPO1 Romeo P. Narcise, where she identified the
appellants as the assailants:
4. T - Sino o sino-sino naman ang pumatay sa iyong asawa at anak, kung
kilala mo?
S - Sina VIRGILIO CAABAY, ESTEBAN CAABAY, LUDRING CAABAY, COOL
CAABAY at BOYET CAABAY.
5. T - Ano naman ang ginamit ng mga taong iyong binanggit sa pagpatay sa
iyong asawa at anak?
S - Ang mag-aama pong ito na pumatay sa aking asawa at anak na ang
kanilang ginamit ay tig-iisa sila ng gulok.
6. T - Kailan at saan naman nangyari ito?
S - Noon pong petsa 27 ng Hunyo, 1994 humigit kumulang sa alas 5:30 ng
hapon sa aming bukid sa So. Lamis, Brgy. San Agustin, bayang ito.[20]
The fact that Adelina is Paulinos widow and Aliguers mother adds more
credence to her testimony. It is in her natural interest to secure the
conviction of the killers of her loved ones. Thus, this deters her from
implicating persons other than the real culprits, for otherwise, the latter
would thereby gain immunity.[21]
In People v. Porras,[22] we held that experience dictates that precisely
because of the unusual acts of violence committed right before their eyes,
witnesses can remember with a high degree of reliability the identities of
criminals, and the time and manner they committed the crimes.
In People v. Baquiran,[23] we ruled that the natural reaction of one who
witnesses a crime and recognizes the offender is to reveal it to the
authorities at the earliest opportunity so that the culprits will be
apprehended without loss of time and prosecuted and convicted in due
course of proceedings. In this case, Adelina informed Barangay Captain
Victory Sualog that the appellants were the assailants of her husband and
son:
Q Now, the following morning, you proceeded to where?.
A I went to Barangay Captain Victory Sualog.
Q And you narrated what you saw to the barangay captain?
A I told the barangay captain that my husband and son Aliguer were dead
lying down, and they were killed by the Caabays.[24]
There is no standard behavior for a person confronted with a shocking
incident, especially if the victim is a close kin. One may immediately report
the incident to the proper authorities and may opt to come forward to
reveal the identities of the perpetrators.[25] Others may simply opt to
prioritize his reaction to a gory incident. One may bring the victim to the
hospital to save his life, and defer in the meantime the reporting of the
incident to the police authorities and the revelation of the identities of the
perpetrators. Others may report the crime to the police authorities after
some time for investigation.[26]
In this case, Adelina was the simple unlettered wife of a farmer. She had
just witnessed the gory debutchery of her husband and son. She was
deluged with mixed feelings of fear, grief and helplessness. Ranged against
112
the appellants who were each armed with bolos, she had nobody to lean
on for help. She opted to report the incident to the barangay captain who
would then be obligated to report the same to the police authorities. The
police investigators must have noticed how distraught Adelina was that
they did not immediately subject her to questioning at the time. This can
be gleaned from Adelinas testimony:
Q The police went to Sitio Lamis?
A Yes, your honor.
Q What time did they arrive there?
A Around 11:00 oclock in the morning, your Honor.
Q Were you investigated by the police?
A They did not investigate me because my mind was not yet ready for the
investigation.[27]
Adelina was so overcome with grief when she saw the motionless bodies
of her husband and son, that Barangay Captain Victor Sualog and the
barangay councilors present had to pull her away:
ATTY. VILLAMAR:
Who were the persons that you were able to talk on that day June 28,
1994?
A The barangay captain and councilors were the one [sic] who pulled me
away from the body of my son and husband.[28]
There was no need to inform Arlene that her husband had been killed,
because, as Adelina testified, Arlene herself saw the incident from her
house:
ATTY. VILLAMAR:
How far is the house of Aliguer from your house? convincing evidence; that they were in such a place other than the situs
criminis, such that it was physically impossible for them to have committed
A Near Sir, fifteen meters away. the crimes.

Q And the wife of Aliguer is living in their house? In this case, the evidence of the appellants in support of their alibi is weak.
Even assuming that indeed as of June 27, 1994, the appellants were
A Yes, Sir. employed by Danilo Malayas in his farmland and were staying thereat, it
was not physically impossible for them to have been at the scene of the
Q And on that afternoon, you know for a fact that the wife of Aliguer was crime at the time of its commission. Danilo Malayas, the appellants
in their house? employer, testified that one would take only one and a half hours to travel
from his farmland to Sitio Lamis, where the assailants killed the victims:
A Yes, sir.
...
Q And yet, you did not go to their house to tell that her husband, your son,
was already dead? Q And from the river if you would use the paddled banca directly going to
Sitio Lamis it would take you about fifteen minutes also?
A She saw also because she looked outside the window and saw Caabay
hacked her husband. ATTY. VILLAMAR:

Q And you know for a fact also that the wife of Aliguer did not go to any No. You can not reach Sitio Lamis by banca.
authority to report the incident on that afternoon?
COURT:
A She did not go outside the house because her son was sick and had
measles.[29] From the river bank going to Sitio Lamis, how long will it take you to the
other side?
We do not believe Renato Oquindos testimony that Adelina told him that
she would not have known about the killing of her husband and son were A Because when we came from the farm going to Sitio Lamis you will
it not for their white dog. There is no evidence on record that the Urbanos passed [sic] by Adela so that you can ride in a banca, Your Honor.
owned a dog. Furthermore, Oquindo never breathed a word about this to
the police authorities. It was only when he testified that he revealed the COURT:
matter for the first time.
Q How long will it take you from the farm to Adela by walking?
The alibi and the denials of the appellants Isidro and Valentino Caabay,
being the weakest of all defenses, will not prevail over the positive and A One (1) hour, Your Honor.
straightforward identification made by Adelina, pointing to the appellants
as two of the assailants of her husband and son.[30] Such defenses are COURT:
easy to concoct and difficult to disprove.[31] To merit approbation, the
appellants were burdened to prove their alibi at the trial with clear and And the banca, that will take you ten to fifteen minutes?

113
A Twenty minutes, Your Honor.
When you reached the other side, how long will it take you walking?
A After crossing the river you will walk around ten minutes, Your Honor.
Considering the short distance between the situs criminis and the Malaya
farm where the appellants claim they were, it was not physically
impossible for appellants Valentino and Isidro Caabay to have left the
Malaya farmland at 4:00 p.m., arrive at their house at about 5:30 p.m. and
thereafter hack the two victims to death.

COURT: Self-defense as interposed by the appellants Virgilio and Esteban is

So, more or less one hour and thirty minutes. Proceed, Fiscal.[32]
He also testified that one coming from his house going to the place of the
hacking incident, would negotiate the distance in only forty to fifty
minutes:
COURT:
Q How far is that place of hacking incident to your house?
untenable. For one thing, appellant Estebans theory is antithetical to his
and appellant Virgilios testimonies that when appellant Esteban rushed to
the aid of his father, he was armed merely with a piece of wood, and upon
hearing his son, appellant Esteban, pleading for succor, appellant Virgilio
faced Paulino and hacked the latter to death with the bolo which he earlier
managed to grab from Aliguer. Paulino and Aliguer died of incised and stab
wounds, and not of injuries caused by a piece of wood. Furthermore,
whether the accused acted in self-defense or in defense of a relative is a
question of fact to be determined by the trial court based on the evidence
on record.[34]

A 1.5 kilometers, Your Honor. The trial court must consider by a balance of probabilities who of the
participants in a fight had in the natural order of things, the reason to
Q How far is that place of the hacking to your farm? commence the unlawful aggression.[35]

A 2.5 kilometers, Your Honor. Case law has it that like alibi, self-defense or defense of relatives are
inherently weak defenses which, as experience has shown, can easily be
Q If you will go to the place of the incident by walking or hiking how many fabricated.[36] If the accused admits the killing, the burden of evidence, as
hours will it reach [sic] you? distinguished from burden of proof, is shifted on him to prove with clear
and convincing evidence the essential elements of the justifying
A 1-1/2 hours, Your Honor. circumstance of self-defense, namely: (a) unlawful aggression on the part
of the victim; (b) reasonable necessity of the means employed by the
Q From your house to the place of the hacking incident how long will it accused to prevent or repel the unlawful aggression; and (c) lack of
take you to negotiate the distance? sufficient provocation on the part of the accused defending himself.[37]
Defense of a relative requires the following essential elements: (a)
A 40 to 50 minutes, Your Honor. unlawful aggression on the part of the victim; (b) reasonable necessity of
the means employed by the accused to prevent or repel the unlawful
COURT: aggression of the victim; and (c) in case of provocation given by the person
being attacked, the one evading the attack, defense had no part
Alright, proceed.[33] therein.[38] For the accused to be entitled to exoneration based on self-

114
defense or defense of relatives, complete or incomplete, it is essential that
there be unlawful aggression on the part of the victim, for if there is no
unlawful aggression, there would be nothing to prevent or repel.[39] For
unlawful aggression to be appreciated, there must be an actual, sudden
and unexpected attack or imminent danger thereof, not merely a
threatening or intimidating attitude.[40]
The accused must rely on the strength of his own evidence and not on the
weakness of that of the prosecution because even if the evidence of the
prosecution is weak, the same could no longer be disbelieved after the
accused has admitted the killing.[41] Self-defense and/or defense of
relatives cannot prosper if not corroborated by independent and
competent evidence.[42]
In this case, the appellants aver that the trial court erred in not
exonerating them on their plea of self-defense, taking into account the
following:
1. The victims are admitted to be both armed with bolos.
2. The accused Virgilio Caabay and Esteban Caabay suffered several serious
injuries that will negate the presumption adopted by the Lower Court that
they were the aggressors qualified by Treachery and aggravated by the
presence of evidence premeditation and abused of superior strength.
3. That the testimonies of the accused Virgilio Caabay and Esteban Caabay
jibed with the corresponding injuries. For instance Esteban Caabay said
that he was just armed with a piece of wood and that he only parried the
hacking blows of the victim Aliguer Urbano by his hands. True enough,
most of his injuries, were on his hands. As to Virgilio Caabay, he said that
he was hacked by the victim Paulino Urbano on his face. This allegation is
backed by a serious hack wound on his face. The only reason why he
survived the attacked [sic] of Paulino Urbano is because he knows
something about martial arts.[43]
But the trial court ruled that the appellants failed to prove with clear and
convincing evidence their plea of self-defense or defense of a relative.
115
We agree with the trial court.
First. The trial court gave credence and probative weight to the testimony
of Adelina, fortified as it is with the physical evidence on record. She
testified that the appellants hacked the victim Paulino on the neck and cut
off his arm. The autopsy report of Dr. Hurley delos Reyes shows that the
victim sustained an incised wound on the neck and his right hand was
amputated.[44]
Second. Appellant Virgilio testified that he was not armed, while appellant
Esteban was armed with a piece of wood. However, Paulino sustained ten
incised wounds and one stab wound on the scapular area, ear, face and
nose, parietal area, left temporal area, left frontal area, chin, right scapular
area and posterior neck. Aliguer sustained seven incised wounds on the
maxillary area, fracturing his teeth on the left side of the face; he also
sustained wounds on the scrotum and on the left ear.[45] Considering the
nature, location and number of the wounds sustained by the victims, the
appellants plea of self defense and defense of a relative will not hold.[46]
Third. Appellant Virgilio failed to prove when and how he learned martial
arts. His barefaced testimony that he knew something about martial arts is
self-serving and barren of probative weight.
Fourth. The appellants should have surrendered the bolos and the piece of
wood to the police authorities. They should have reported that appellants
Esteban and Virgilio were at the Zapanta Maternity and General Hospital
for the treatment of wounds sustained while defending themselves from
the victims. The appellants did not. Appellant Virgilio testified that his wife
destroyed the bolos, thus:
Q Those bolo [sic] that you retrieve [sic] from Aliguer did you surrender it?
A No, sir, I was in the hospital.
Q How about the bolo used by Paulino Urbano, was there anybody who
get [sic] that?
A It was in our house but my wife throw [sic] it away, sir.
 When they wrestle[d] with the bolo away from Aliguer, Aliguer fell. There
Q Likewise the bolo that you retrieve [sic] from Aliguer Urbano was thrown is no showing that he immediately fell.
away?
FISCAL SALCEDO:
A Yes, sir.[47]
When you wrestled with Aliguer wrestling the bolo from him, did he fell on
Appellant Virgilio, however, failed to present his wife to explain when and the ground?
why she destroyed the bolos used by the victims.
A No, sir.
Fifth. Appellant Virgilio testified that he managed to grab Aliguers bolo,
then pushed the latter, held his right hand, and used him as a shield. He Q What was the relative position of Aliguer Urbano after you wrest the
then stabbed Aliguer several times even as the victim had already fallen to bolo from him?
the ground. Appellant Virgilio could no longer remember how many times
he had stabbed the victim because his vision had blurred: A He was standing, sir.

Q And according to you when Aliguer Urbano was about to strike you Q Facing you?
parried his blow and by using judo, you were able to wrest the bolo from
him? A Yes, sir.

A I was able to get the bolo from him, sir. Q Right then and there you delivered hacked wounds on his face?

Q Because you used judo? A Yes, sir, when I got hold of that bolo, I hacked him.

A Yes, sir. Q The same bolo that you get [sic] from him?

Q You demonstrated in Court [sic] Aliguer Urbano immediately fell on the A Yes, sir.
ground when you twisted his arm and finally wrest the bolo, is it not?
Q You hit him?
ATTY. VILLAMAR:
A Yes, sir.
The question is misleading, Your Honor.
Q On what part of his body?
FISCAL SALCEDO:
A I hit him in his arm, sir.
Why misleading?
Q How many times did you hit him?
ATTY. VILLAMAR:
A That is what I do not know, sir.

116
 FISCAL SALCEDO:
Q Now, this Aliguer Urbano was already defenseless at the time you
wrested the bolo from him? Okay, he remain [sic] standing while you were hacking his son Aliguer
Urbano?
A Yes, sir.
A He was already facing Steven, sir.
Q In fact, since you have already wrested the bolo you should stop hitting
him if you wanted so, is it not? Q And according to you when Aliguer Urbano fell, you also stabbed him
with a bolo you used in hacking him?
A Because my sight at that time was already blurred, sir.
A Yes, sir.
Q How long did you face Aliguer Urbano after you wrested the bolo from
him? Q Why? Was the bolo you used a pointed one?

A Saglit lang po, sir.[48] A Yes, sir.[49]

... In People v. Decena,[50] we ruled that where the inceptual unlawful

aggression of the victim had already ceased, the accused had no more right
Q So thereafter you let loose his son is that what you want to tell us? to kill the victim. In this case, there is no evidence that Aliguer attacked
appellant Virgilio when the latter felled him.
A I pushed him away, sir.
Sixth. The bare fact that the appellants sustained injuries does not prove
Q You pushed him towards Paulino Urbano? that they acted in self-defense or in defense of a relative.[51]

A I pushed him and after that I hacked him, sir. The Crimes Committed by the Appellants

Q And Paulino Urbano did not do anything at the time you were The trial court correctly ruled that the appellants are guilty of two counts
successively hacking Aliguer Urbano? of murder under Article 248 of the Revised Penal Code, as amended by
Republic Act No. 7659, qualified by abuse of superior strength. However,
A None, sir. the trial court erred in appreciating treachery in both cases as an
aggravating circumstance against the appellants.
Q He remain [sic] standing while you were continuously hacking his son
Aliguer Urbano? First. Adelina did not see how the assault started; hence, she could not
testify whether the appellants deliberately adopted a sudden and
ATTY. VILLAMAR: unexpected method of attack which deprived the victims of an opportunity
to defend themselves.[52]
We will object to the word continuously, Your Honor.

117
Second. Even if proved, treachery was not alleged in the information as
mandated by Section 9, Rule 110 of the Revised Rules of Criminal
Procedure. Although the crime took place before the effectivity of the said
rule, the same should be applied retroactively because it is more favorable
to the appellants.[53] On the other hand, the aggravating circumstance of
abuse of superior strength was attendant because the appellants took
advantage of their numerical superiority and their bladed weapons in
killing the victims.[54]
Proper Penalties for the Felonies
The trial court erred in sentencing the appellants to death for each of the
crimes. The penalty for murder under Article 248 of the Revised Penal
Code, as amended by Republic Act No. 7659 is reclusion perpetua to death.
There being no modifying circumstance attendant in the commission of the
crimes, aside from the qualifying circumstance of abuse of superior
strength, the appellants should be sentenced to suffer reclusion perpetua
for each crime, conformably to Article 63 of the Revised Penal Code.
Civil Liabilities of the Appellants
The trial court ordered the appellants to pay, jointly and severally, the
heirs of the victims Paulino Urbano and Aliguer Urbano in the amount of
P50,000 for each crime as civil indemnity. However, the trial court failed to
award to the heirs of the said victims in the amount of P50,000. The
decision of the trial court should, thus, be modified.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court
of San Jose, Occidental Mindoro, Branch 46, is AFFIRMED with
MODIFICATIONS. Appellants Virgilio Caabay, Esteban Caabay, Valentino
Caabay and Isidro Caabay are found guilty beyond reasonable doubt of
murder in Criminal Cases Nos. R-3733 and R-3734. The said appellants are
sentenced to reclusion perpetua for each crime; and are directed to pay,
jointly and severally, the heirs of Paulino Urbano P50,000 as civil indemnity
and P50,000 as moral damages; and to the heirs of Aliguer Urbano the
amount of P50,000 as civil indemnity and P50,000 as moral damages. Costs
against the appellants.
118
SO ORDERED.
[G.R. No. 132351. January 10, 2002]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALEXANDER
SALVA Y PATEA, FERDINAND SALVA Y PATEA and ROLITO SALVA Y PATEA,
accused,
ALEXANDER SALVA Y PATEA and FERDINAND SALVA Y PATEA, accused-
appellants.
DECISION
QUISUMBING, J.:
On appeal is the joint decision[1] dated February 24, 1997, of the Regional
Trial Court of Tanay, Rizal, Branch 80, in Criminal Cases No. 1476-T and No.
1486-T against the brothers Alexander, Ferdinand, and Rolito Salva for
murder and for frustrated homicide, respectively. In the first case, the
court convicted appellant Alexander Salva of murder and appellant
Ferdinand Salva of homicide, and ordered both appellants to pay jointly
and severally the heirs of the victim, Palmero Milanes, P12,000 as actual
damages, P100,000 as moral damages, and the costs of the suit. In the
second case, it convicted only appellant Alexander Salva of frustrated
homicide and ordered him to pay the victim, SPO1 Mariano Cura, P36,000
as actual damages, P50,000 as moral damages, and P10,000 as attorneys
fees. Accused Rolito Salva was acquitted in both cases. Appellant
Ferdinand Salva was acquitted in the second case.
The indictments against Ferdinand, Alexander and Rolito Salva in Criminal
Cases No. 1476-T and No. 1486-T, respectively, read:
In Criminal Case No. 1476-T:
That on or about the 10th day of January 1995 in the Municipality of
Tanay, Province of Rizal, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating
together and mutually helping and aiding with one another, armed with a
fan knife and .38 caliber revolver (Squires Bingham) with serial number
179533, with intent to kill, evident premeditation and by means of
treachery, did then and there willfully, unlawfully and feloniously attack,
assault and stab and shot one Palmero L. Milanes, thereby inflicting upon
the latter multiple stab and shot wounds which directly cause[d] his death.
CONTRARY TO LAW.[2]
In Criminal Case No. 1486-T:
That on or about the 10th day of January 1995 in the Municipality of
Tanay, Province of Rizal, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, armed with a bladed weapon,
conspiring and confederating together and mutually helping and aiding
one another, with intent to kill, did then and there willfully, unlawfully and
feloniously attack, assault and with the said bladed weapon one SPO1
Mariano Tejada Y Cura on his body, thereby inflicting upon the latter
wounds which would ordinarily cause his death, thus performing all the
acts of execution which should have produced the crime of murder, as a
consequence but nevertheless did not produce it by reason of cause or
causes independent of his will, that is, due to the timely and able medical
attendance rendered to said SPO1 Mariano Tejada Y. Cura.[3]
During arraignment Ferdinand, Alexander and Rolito Salva pleaded not
guilty. Thereafter, the cases were jointly tried.
The prosecution presented the following witnesses: Pablito Tibay, the
jeepney conductor; SPO1 Mariano Cura, assisting policeman and private
complainant for the charge of frustrated murder; Rodney Tan, one of the
jeepney passengers; Elmer Figueroa, tricycle driver; Sgt. Pablo Villegas,
responding policeman; Dr. Bayani Viado, attending physician of SPO1 Cura;
Jesusa Vergara, medico-legal officer of the PNP Crime Laboratory who
autopsied the deceased; SPO1 Joseph Pueblo, investigating policeman;
SPO1 Renato Ragadi, patrol mate of SPO1 Cura; and Wilma Milanes, wife
of the deceased.[4]
119
The prosecutions version of the incident, as summed up by the Solicitor
General, is as follows:
On January 10, 1995, around 10:00 a.m., Palmero Milanes was driving a
passenger jeepney with Pablito Tibay as conductor going to Tanay, Rizal
when Ferdinand Salva waved at them and tried to stop the jeep and then
uttered putang ina mo (p. 5-7, TSN, August 8, 1995). Failing to stop the
jeep, Ferdinand took a tricycle and followed the jeep but Milanes
maneuvered the jeep and went to the police outpost in Pililla, Rizal where
he sought police assistance (p. 8, id.). SPO1 Mariano Cura, clad in half-
uniform (wearing khaki pants with civilian short) boarded the jeep with its
driver and conductor (pp. 16, 21, 29-30, TSN, September 1, 1995). The
three, all seated in the front seat, with Milanes driving, proceeded to
Tanay to find Ferdinand to settle a small damage caused by Milanes jeep to
Ferdinands tricycle (p. 23, id.).
When they reached Barangay Aldea, Tanay, the three got stuck in a traffic
jam. While waiting for the traffic jam to ease up, Tibay sighted Ferdinand
inside a tricycle (pp. 9-10, TSN, August 18, 1995). Ferdinand who also saw
the jeep and its occupants, alighted from the tricycle, approached the jeep,
grabbed Milanes out of the jeep and they grappled with each other (p. 11,
id.).
While Milanes head was under Ferdinands armpit, appellant stabbed
Milanes back twice with a fan knife (pp. 11-12, TSN, September 1, 1995).
While the fight was going on, SPO1 Cura alighted from the jeep, took his
gun and while he was about to make a warning shot, appellant stabbed
him (p. 13, TSN, September 1, 1995). Thereafter, Ferdinand freed Milanes
and helped Alexander in grappling for the possession of SPO1 Curas gun. At
this point, the gun suddenly fired hitting Rolito Salvas foot. Thereupon,
Milanes went back to his jeep.
Later, Ferdinand got hold of SPO1 Curas gun and shot Milanes who
slumped behind the steering wheel of the jeep (pp. 15-16, id.). SPO1 Cura
also went inside the jeep holding his wounded stomach (p. 18, id.).
Milanes and SPO1 Cura were brought to the Tanay Community Hospital by
Rodney Tan. Milanes died while SPO1 Cura survived after receiving
treatment at the Morong General Hospital (pp. 19-20, TSN, September 1,
1995).[5]
The version of the defense is slightly different, as revealed by the
testimonies of appellant and his co-accused herein summarized as follows:
According to co-accused FERDINAND SALVA, on January 10, 1995, at about
7:00 A.M., he was driving his own tricycle with his brothers Rolito and
Alexander on board. Upon reaching the San Ildefonso Lines terminal, they
were caught in a traffic jam when Palmero Milanes alighted from a jeep
and boxed Rolito. Ferdinand halted the tricycle and tried to stop Milanes
from further boxing Rolito. Later, when he saw SPO1 Mariano Cura point a
gun at Rolito, he parried the gun causing it to fire, and a bullet hit Rolito.
Then, SPO1 Cura pointed the gun at him but he was able to hold Curas
wrist and the two of them grappled for the gun until both of them reached
the drivers seat of the jeep. It was then that the gun fired, hitting
somebody. The gun fell on the pavement. He picked up the gun and ran
towards Pililla where he was met by a soldier who fired warning shots. He
voluntarily surrendered to the police.[6]
ROLITO SALVA essentially corroborated his brothers testimony. He added
that during the struggle for the gun, it accidentally fired and a bullet hit
Milanes. According to him, Ferdinand asked Alexander to bring him to the
Tanay General Hospital where his right foot was treated. He recalled that
he came to know that on January 9, 1995, the jeep of Milanes had
suddenly stopped, causing damage to the front of Ferdinands tricycle. He
reported the incident to his brothers and they tried later to look for
Milanes. Because of the injury Rolito suffered during the shooting incident
on January 10, 1995, Rolito filed an attempted homicide case against SPO1
Cura, which is still pending before the MTC of Tanay, Rizal.[7]
According to appellant ALEXANDER SALVA, on January 10, 1995, at about
7:00 A.M., he was at Hulo, Pililla, Rizal on an errand to get money from his
employer, Andy Poblete. He failed to get the money but while on his way
to Tanay, his brother Ferdinand saw him and asked him to board the
tricycle where his other brother Rolito and two passengers were riding.
120
After the two passengers alighted, they continued on the way going to the
tricycle terminal in Pililla, but they were caught in a traffic jam. At this
juncture, he saw a man box Rolito. He also heard Ferdinand shout, Hoy,
hoy, while getting off the tricycle. He saw Ferdinand push away that man
after Ferdinand had put his arm around the latters neck. Another person
(who turned out to be SPO1 Cura) arrived and hit his brother Rolito with a
yantok. Alexander, who had a limp, got off the tricycle, at the very moment
Rolito was shot. Alexander said he had grabbed something (later identified
as a fan knife) from the tricycles tool kit and swung it against the boxer
who turned out to be Palmero Milanes. According to Alexander, he did not
know if he hit Milanes. He then saw someone [SPO1 Cura] poke a gun at
Rolito, but his brother Ferdinand parried the gun. It fired and a bullet hit
Rolito. He then heard Ferdinand shout, May tama si Rolito, dalhin mo sa
hospital. Thus, Alexander loaded Rolito in the tricycle and brought him to
the Tanay General Hospital.[8]
Andreo Poblete, employer of Alexander; Florita Deligencia, a passenger of
Rolito and Ferdinand; and Larry Anievas, a bystander, also testified to
corroborate the story of the three accused.
On February 24, 1997, the trial court rendered a joint decision, thus:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1. In Criminal Case No. 1476-T:
a) Convicting Alexander Salva of the crime of Murder and he is hereby
sentenced to suffer the penalty of reclusion perpetua.
b) Convicting Ferdinand Salva of the crime of homicide and he is hereby
sentenced to suffer the indeterminate penalty of 8 years and 1 day of
prision mayor as minimum to 15 years of reclusion temporal as maximum.
c) Acquitting Rolito Salva of the crime charged.
d) Both accused Alexander Salva and Ferdinand Salva are also ordered to
pay jointly and severally to the heirs of Palmero Milanes the amount of
P12,000.00 as actual damages, P100,000.00 as moral damages, and to pay
the costs.
2. In Criminal Case No. 1486-T:
a) Convicting accused Alexander Salva of the crime of frustrated homicide
and he is hereby sentenced to suffer the indeterminate penalty of 6 years
of prision correctional as minimum to 10 years of prision mayor as
maximum. The said accused is also ordered to pay SPO1 Mariano Cura the
amount of P36,000.00 as actual damages, P50,000.00 as moral damages
and P10,000.00 as attorneys fees.
b) Acquitting accused Ferdinand and Rolito Salva of the crime charged.
SO ORDERED.[9]
From this decision, Alexander and Ferdinand Salva filed a notice of appeal
on March 3, 1997.[10] On December 4, 1998, Ferdinand Salva filed a
motion to withdraw appeal,[11] which we granted in a resolution dated
January 11, 1999.[12] We are now concerned only with Alexander Salvas
appeal.[13]
In his brief, appellant Alexander Salva now contends that the lower court
gravely erred in:
I acting in defense of his brothers. He adds, that his offense was only for
CONVICTING ACCUSED ALEXANDER SALVA OF MURDER IN THE TOTAL
ABSENCE OF PROOF THAT THE ACT OF THE LATTER CAUSED THE DEATH OF
THE VICTIM OR THAT TREACHERY CHARACTERIZED THE STABBING OF THE
VICTIM.
II
CONVICTING FERDINAND SALVA OF HOMICIDE IN THE ABSENCE OF PROOF
BEYOND REASONABLE DOUBT THAT SAID ACCUSED ACTUALLY FIRED THE
GUN THAT HIT THE VICTIM.
121
III
CONVICTING ACCUSED ALEXANDER SALVA OF FRUSTRATED HOMICIDE
NOTWITHSTANDING UNREBUTTED PROOF THAT SAID ACCUSED RUSHED
TO THE SCENE ONLY IN DEFENSE OF HIS YOUNGER BROTHER, ROLITO
SALVA.
IV
AWARDING MORAL DAMAGES BOTH TO THE FAMILY OF THE DECEASED
AND SPO1 MARIANO CURA IN THE ABSENCE OF PROVEN CIRCUMSTANCES
JUSTIFYING IMPOSITION OF THE SAME.[14]
Appellant Alexander Salva claims that he cannot be held liable for murder
in Criminal Case No. 1476-T, because the stab wounds of Milanes were not
the cause of his death.[15] Further, he protests the trial courts finding that
his stabbing Milanes was attended by treachery. He insists that he stabbed
Milanes in defense of his two (2) brothers. He further assails the trial
courts ruling that his brother Ferdinand was liable for homicide because
Milanes was accidentally hit by the gun while Ferdinand and SPO1 Cura
were grappling for it. He also claims that the identity of the person who
fired the shot that killed Milanes was not positively established.
In Criminal Case No. 1486-T, appellant assails his conviction for frustrated
homicide for the stabbing of SPO1 Cura. Again, he claims he was merely
physical injuries. He had no intention of killing Cura and it was Milanes
who provoked them while it was SPO1 Cura who hit his brother Rolito with
a yantok.
In its brief for the appellee, the Office of the Solicitor General contends
that the trial court did not err in its assessment of the credibility of the
witnesses, and in giving full faith and credence to those of the prosecution.
The OSG adds that the trial court did not overlook facts, which if
considered, would alter the result of the case. The OSG prayed for the
affirmance of the conviction of appellant and the penalties imposed.
In a criminal case, an appeal throws the whole case wide open for review.
Issues whether raised or not by the parties may be resolved by the
appellate court.[16] However, considering the assigned errors, we find that
the issues for resolution here pertain to (1) the assessment of credibility of
the witnesses; (2) the presence of treachery as a qualifying circumstance,
and of defense of relatives as a justifying circumstance; and (3) the
propriety of conviction of the appellant for murder and for frustrated
homicide, and of the corresponding sentences imposed.
Anent the first issue, the assessment of the credibility of witnesses by the
trial court is generally accorded great respect.[17] In this case, the trial
court found that appellant and his co-accused were positively and
categorically identified as the offenders by the surviving victim, SPO1 Cura,
and corroborated by eyewitnesses Figueroa and Tan. These witnesses
testified that appellant and his brother Ferdinand grabbed the victim,
Palmero Milanes, out of the jeepney by pulling his left hand.[18]
Thereafter, appellant Alexander stabbed Milanes at the back using a 29 or
a fan knife, while Ferdinand had his arms around Milanes neck.[19] The
knife lacerated the victims lungs.[20] Thereupon, SPO1 Cura alighted from
the jeep to pacify them, but appellant Alexander turned to Cura and also
stabbed him in the stomach as the police officer was about to fire a
warning shot.[21] Alexander and Ferdinand let go of Milanes and then
assaulted Cura. But when the wounded Milanes had forced himself onto
the drivers seat of the jeepney and started its engine to escape, Ferdinand
shot and hit him at the back.[22]
The trial court found that both appellant Alexander and his brother
Ferdinand inflicted the wounds that caused the death of the deceased. The
testimonial evidence and the physical evidence support said finding. The
official report stated that the cause of death of Milanes was hemorrhage
resulting from gunshot and stab wounds in the trunk of his body.[23]
Appellants claim that he acted in defense of relatives (brothers), in our
view, cannot be sustained. To invoke this justifying circumstance
successfully, there should be reasonable necessity for the action taken as
well as the means used.[24] Here, the weapon used and the grave wounds
inflicted on the victims negate the reasonableness of appellants action
taken allegedly in defense of his brothers. Moreover, on this point, we find
122
appellants testimony on record to be unconvincing, confused, and evasive.
Hence there is no sufficient proof of defense of relatives which, like self-
defense, must be proved positively and convincingly.
Neither does appellants contention, that it was uncertain whether it was
SPO1 Cura or Ferdinand Salva who pulled the trigger, have any merit. SPO1
Cura and Elmer Figueroa categorically testified that it was Ferdinand who
shot Milanes while the latter was trying to start the engine of his jeep in
order to escape.[25]
We now come to the nature of the offense committed by appellant and
the propriety of his conviction for murder. After a careful consideration of
the evidence on record, we are convinced that the crime committed by
Alexander Salva is homicide only, not murder qualified by treachery.[26]
Treachery (alevosia) is committed when two conditions concur, namely: (1)
that the means, methods, and forms of execution employed gave the
person attacked no opportunity to defend himself or to retaliate; and (2)
that such means, methods and forms of execution were deliberately and
consciously adopted by the accused without danger to his person.[27] In
this case, attendant circumstances including the sequence of events, as
found by trial court and as shown by the records, rule out the presence of
the first element of alevosia. True, appellant stabbed Milanes at the back
while Ferdinand encircled his arm in a tight grip around the victims neck.
But recall, however, that Milanes was together with an armed policeman
(SPO1 Cura), Rodney Tan, and other passengers.[28] There were also on-
lookers. Note likewise that the incident happened at past 7 oclock A.M.[29]
during a traffic jam.[30] The presence of Cura (albeit in civilian attire) and
his companions who came to Milanes rescue shows that the victim was not
completely helpless.[31]
Neither is there sufficient evidence to establish that appellant consciously
adopted the mode of attack. The records reveal that (1) a day earlier there
was a mishap involving Milanes jeepney and Ferdinand Salvas tricycle; and
(2) a verbal confrontation[32] with curses had ensued between appellants
brother Ferdinand and Milanes. This was before the adversaries found
themselves in a traffic jam and the Salvas yanked Milanes out of the
jeepney.[33] Treachery is not present where the victim, before being
attacked, had a heated argument with one of the malefactors which must
have placed him on guard, aside from standing face to face with them, so
that the initial assault was not sudden or unforeseen.[34] Even if the
aggression was from behind, it is not treacherous if preceded by a heated
argument.[35]
Finally, as SPO1 Cura himself admitted on cross-examination, the meeting
between the two groups was accidental, while the two vehicles where they
were on board were not moving due to the heavy traffic. It was only upon
sighting Milanes, after 10 to 15 minutes while on a traffic standstill, did
appellant and co-accused assault Milanes.[36] Treachery cannot be
considered when the meeting between the victim and the accused was
only accidental.[37]
In sum, we agree with appellant that the killing of Milanes was not
characterized by treachery, hence it was only homicide and not murder.
Appellants conviction for frustrated homicide for the stabbing of SPO1
Cura, however, must be sustained. Appellants intent to kill as earlier
discussed is reflected by the weapon he used; and the nature and position
of the wounds inflicted.[38] Dr. Viado testified that SPO1 Cura suffered
thru and thru laceration of the gall bladder, stomach and the jejunum as a
result of the stabbing by appellant.[39] Were it not for timely medical
attention, SPO1 Cura would have died from said wounds.
Coming now to the propriety of the sentences imposed on appellant.
Without any mitigating or aggravating circumstance, the penalty for
homicide is reclusion temporal, imposed in its medium period. Applying
the Indeterminate Sentence Law, appellants sentence should be prision
mayor to reclusion temporal in its medium period, for the death of
Palmero Milanes. The penalty for frustrated homicide, which is one degree
lower, is prision mayor,[40] imposed in its medium period. Again applying
the Indeterminate Sentence Law, appellant should be sentenced to prision
correccional to prision mayor in its medium period,[41] for the frustrated
homicide in the stabbing of SPO1 Cura.
On the award of damages. The award of P100,000 as moral damages in
Criminal Case No. 1476-T does not appear to be amply supported by the
evidence on record. Moral damages are not awarded to punish the
123
defendant but to compensate the heirs of the victim. Pursuant to current
jurisprudence, the award of moral damages should only be P50,000. But
civil indemnity in the amount of P50,000 for the death of Palmero Milanes
should likewise be awarded to his heirs. The award of P12,000 for actual
damages[42] is supported by the evidence and should be affirmed. In
Criminal Case No. 1486-T, for frustrated homicide, the award of P50,000 as
moral damages to SPO1 MARIANO CURA is properly reduced to
P20,000.[43] But the award of P36,000 as actual damages should be
increased to P46,770.65 in accordance with the evidence presented. [44]
Finally, the award of P10,000 for attorneys fees is proper and ought to be
affirmed.
WHEREFORE, the decision appealed from is AFFIRMED with
MODIFICATIONS. In Criminal Case No. 1476-T, appellant ALEXANDER
SALVA is found guilty of homicide. He is sentenced to suffer an
indeterminate penalty of ten (10) years of prision mayor as minimum to
seventeen (17) years and four (4) months of reclusion temporal as
maximum. He is further ordered to pay jointly and severally with his co-
accused Ferdinand Salva, the heirs of PALMERO L. MILANES, the amount of
P50,000 as civil indemnity and P12,000 as actual damages but only P50,000
as moral damages.
In Criminal Case No. 1486-T, appellant ALEXANDER SALVA is found guilty of
frustrated homicide, and he is sentenced to an indeterminate prison term
of one (1) year and one (1) day of prision correccional, as minimum, to
eight (8) years and one (1) day of prision mayor medium, as maximum.[45]
He is also ordered to pay SPO1 MARIANO CURA the amount of P46,770.65
as actual damages, P20,000 as moral damages and P10,000 as attorneys
fees.
SO ORDERED.
[G.R. No. 127441. October 5, 2001]
DOROTEO TOBES @ DOTING, petitioner, vs. COURT OF APPEALS, and
PEOPLE OF THE PHILIPPINES, respondents.
DECISION
PARDO, J.:
Appeal via certiorari from the decision[1] of the Court of Appeals affirming
with modification[2] the trial courts decision finding petitioner guilty of
homicide and sentencing him to an indeterminate penalty of eight (8)
years of prision mayor as minimum, to twelve (12) years, ten (10) months
and twenty (20) days of reclusion temporal, as maximum, to indemnify the
heirs of the victim Joel Escareal in the amount of P12,000.00, moral
damages of P20,000.00, actual damages of P6,000.00 and attorneys fees of
P5,000.00 and to pay the costs.
On August 27, 1990, the provincial prosecutor of Northern Samar filed with
the Regional Trial Court, Northern Samar, at Catarman an information
charging accused Wilfredo Pollentes @ Pido and Doroteo Tobes @ Doting
with murder, as follows:
That on or about the 8th day of July, 1990, at about 8:30 oclock in the
evening, in Barangay Sta. Clara, Municipality of Bobon, Province of
Northern Samar, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, armed with a gun, conspiring with and
confederating together and mutually helping each other, with deliberate
intent to kill and thru treachery and evident premeditation and taking
advantage of their superior strength, did then and there, wilfully,
unlawfully and feloniously attack, assault and shoot one JOEL ESCAREAL
with the use of the said gun, which the accused had provided themselves
for the purpose, thereby inflicting upon said Joel Escareal a gunshot wound
which caused the instant death of said victim.
CONTRARY TO LAW.[3]
On September 13, 1990, the trial court arraigned both accused. They each
entered a plea of not guilty. Trial ensued.
After due trial, on June 21, 1991, the trial court rendered a decision, the
dispositive portion of which reads:
124
WHEREFORE, the Court hereby declares the accused DOROTEO TOBES alias
DOTING guilty of the crime of HOMICIDE beyond a reasonable doubt, as
principal, and considering the presence of one mitigating circumstances
without any aggravating circumstance to offset the same, hereby
sentences him to suffer an indeterminate penalty ranging from EIGHT (8)
YEARS OF prision mayor, as minimum, to TWELVE (12) YEARS, TEN (10)
MONTHS and TWENTY (20) DAYS of reclusion temporal, as maximum, and
to pay the costs. Likewise, the Court condemns the said accused to
indemnify the heirs of the victim Joel Escareal in the amount of P12,000.00
to pay the widow and children of the same victim moral damages of
P20,000.00, actual damages of P6,000.00 and attorneys fees of P5,000.00.
However, the corresponding filing fees based on the total amount herein
awarded, shall be assessed and shall constitute as first liens upon the total
amount of awards herein ordered.
The Court hereby finds accused WILFREDO POLLENTES alias PIDO guilty
beyond a reasonable doubt of the felony of SLIGHT PHYSICAL INJURIES and
considering one mitigating circumstance without any aggravating
circumstance, sentences him to suffer TEN (10) days of arresto menor and
to pay the costs.
In the service of their sentence, the accused shall be credited with the full
time of their preventive imprisonment provided they had agreed
voluntarily in writing to abide by the same disciplinary rules imposed upon
convicted prisoners; otherwise, they shall be entitled to only four-fifths
(4/5) thereof; pursuant to the provisions of Article 29 of the Revised Penal
Code as amended by Republic Act 6127.
SO ORDERED.[4]
On July 05, 1991, petitioner appealed the decision to the Court of
Appeals.[5]
On December 3, 1996, the Court of Appeals promulgated its decision
affirming the appealed decision with modification. We quote the decretal
portion:
WHEREFORE, premises considered, the decision appealed from is hereby
AFFIRMED with a MODIFICATION that the awarded civil indemnity be
increased from P12,000.00 to P50,000.00. Costs against the appellant.
SO ORDERED.[6]
Hence, this appeal.[7]
The facts, as found by the trial court and upheld on appeal by the Court of
Appeals, are as follows:
That at about 8:00 oclock in the evening of July 8, 1990, the victim Joel
Escareal alias Willy was walking towards the door of AM Disco house
situated at the corner of Escareal and Duran Sts. in Bobon, Northern
Samar; he was fixing up the zipper of his trousers as he was proceeding on
his way. Accuse Wilfredo Pollentes alias Pido who came out of the door of
the AM Disco house met Escareal and confronted the latter why he threw
bottles to the former. Pollentes was holding the shoulder of Escareal and
after uttering the statement to confront, boxed the latter on his chin. Joel
Escareal fell down, face up, and as he was about to rise, Wilfredo Pollentes
poised to box again the said Escareal. At this juncture, Joel Escareal drew
his Cal. 38 revolver from his waistline and shot Pollentes who was thereby
hit on his body. The Pollentes walked to the street, while Joel Escareal just
stood near the door of the AM Disco house, looking to Pollentes as the
latter was moving away; Escareals back was then towards the door of the
AM Disco and he was still holding by his right hand the revolver which he
used in shooting Pollentes. At this moment, accused Doroteo Tobes went
out of the door of the Disco house, and as he was behind, place his arm
around the neck of Escareal and hurled him (Escareal) who thereby fell on
his back on the ground; the revolver of Escareal was likewise thrown to the
ground near his foot when Tobes hurled him down. As Escareal lay face up,
Tobes then picked the firearm and shot Escareal on his left temporal area
as his head was slightly tilted to its right side. After he fired at Escareal,
Tobes then fired another shot to the air.
The gun of Escareal that was used by accused Tobes, was Cal. 38 revolver,
with Serial No. 434872 which accused Tobes gave to policeman Eleuterio
Celespara in the presence of a certain Ben Esquillo, a retired policeman.
125
At the place where the victim was shot by the accused Tobes, were two
electric bulbs one placed outside the AM Disco house and another at the
NORSAMELCO post. When the shooting incident herein complained of took
place, prosecution witnesses Cenon Cobrana and Joverto Sula were just
nearby; in fact, Cobrana was about 5 meters away while Sule was more or
less 3 meters in distance.[8]
The issues raised are:
(1) whether or not there was unlawful aggression on the part of the victim;
(2) whether the mitigating circumstances of incomplete defense of
relative/stranger, sufficient provocation or threat on the part of the victim,
passion and obfuscation and voluntary surrender may be appreciated in
favor of petitioner; and
(3) whether or not the penalty and civil indemnity imposed are correct.[9]
Petitioner admitted killing the victim Jose Escareal. He, however,
interposes the justifying circumstance of self-defense or defense of a
stranger. The elements of self-defense are the following:
(a) unlawful aggression on the part of the victim;
(b) reasonable necessity of the means employed to the victim; and,
(c) lack of sufficient provocation on the part of the person defending
himself, which must be proved by clear and convincing evidence.[10]
In such case, the burden of evidence shifted to the accused[11] to prove
the elements of self-defense by clear and preponderant evidence,
otherwise conviction would follow from his admission that he killed the
victim.[12]
It is not disputed that in the evening of July 8, 1990, after the bottle-
hurling incident inside the disco house, Joel Escareal went outside. It was
there that accused Wilfredo Pollentes met Joel Escareal and confronted
the latter about the incident inside and boxed him causing Joel Escareal to
fall to the ground face up. When accused Pollentes was poised to strike
Joel Escareal again, the latter drew his gun and shot accused Pollentes,
who, upon being hit, retreated towards the direction of the street. Joel
Escareal was by then standing with his back to the door of the disco house
when petitioner came out and, from behind, placed his arm around Joel
and hurled him to the ground causing him to fall on his back. The revolver
he was holding was also thrown to the ground and landed near his foot.
Petitioner Doroteo Tobes picked up the gun and shot Joel Escareal on the
left temporal area as his head was slightly tilted to the right. Petitioner
Tobes then fired a second shot into the air.
The foregoing facts show that the plea of self-defense or defense of a
stranger would not lie. When petitioner attacked the victim, the aggression
by the victim against accused Pollentes no longer existed. Joel Escareal was
standing with his back to the door without doing anything but watching
accused Pollentes walk away. A person defending a relative or stranger
must find out who the aggressor was before undertaking the defense.[13]
Thus, when petitioner attacked Joel Escareal, petitioner was not defending
himself. In fact, it was petitioner who was the aggressor.
In the absence of unlawful aggression on the part of Joel Escareal, there
can be no self-defense, complete or incomplete.[14]
Petitioner submits that the mitigating circumstances of sufficient
provocation or threat on the part of the deceased or passion or
obfuscation may be appreciated in his favor.
As a fact, there was no threat or provocation directed at petitioner, then
he could not have been provoked into passion or obfuscation.[15]
On the other hand, the trial court appreciated the mitigating circumstance
of voluntary surrender in petitioners favor.
The increase in civil indemnity from P12,000.00 to P50,000.00 is consistent
with current jurisprudence.[16]
126
WHEREFORE, the Court denies the petition and affirms the decision[17]
sought to be reviewed, with costs.
SO ORDERED.
G.R. No. 129875 September 30, 2005
JOVITO CABUSLAY, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN (Third Division),
Respondent.
DECISION
Tinga, J.:
Assailed in this petition for review1 under Rule 45 of the 1997 Rules of Civil
Procedure is the Decision2 dated 25 June 1997 of the Sandiganbayan in
Criminal Case No. 19586 finding Jovito Cabuslay, petitioner herein, guilty
beyond reasonable doubt of the crime of homicide and sentencing him as
follows:
WHEREFORE, accused Celso G. Regencia, Rosello Canoy, Nilo Montebon
and Gerry Cane are ACQUITTED on reasonable doubt. Accused Jovito
Cabuslay is found GUILTY beyond reasonable doubt of the crime of
homicide and is sentenced to an indeterminate penalty of imprisonment of
Ten (10) years and One (1) Day of prision mayor as minimum, to Fourteen
(14) Years, Eight (8) Months and One (1) Day of Reclusion Temporal, as
maximum, with all the accessory penalties provided for by law, and to
indemnify the heirs of Pacquito Umas-as in the amount of Fifty Thousand
Pesos (₱50,000.00) for actual damages and Fifty Thousand Pesos
(₱50,000.00) for moral damages, and to pay the costs.
SO ORDERED.3
In an Information4 dated 10 August 1993, petitioner SPO2 Jovito Luna
Cabuslay, Senior Inspector Celso Gomera Regencia, SPO4 Rosello
Rodriguez Canoy, C2C Nilo Rico Montebon and C2C Gerry Orillaneda Cane
were charged with murder, committed as follows:
That on or about August 5, 1992, in Kauswagan, Lanao del Norte,
Philippines, within the jurisdiction of this Honorable Court, the said
accused, SENIOR INSPECTOR CELSO G. REGENCIA, SPO4 ROSELLO CANOY,
SPO2 JOVITO CABUSLAY, C2C NILO MONTEBON AND C2C GERRY CANE, all
public officers, being then members of the Philippine National Police
assigned at the PNP Provincial Headquarters of Lanao del Norte, acting in
the capacities aforesaid and conspiring, confederating and helping one
another, while manning a
mobile checkpoint at Libertad, Kauswagan, Lanao del Norte, thus
committing the offense in relation to office, and with intent to kill, did then
and there wilfully, unlawfully, feloniously and treacherously shoot
PAQUITO UMAS-AS, with their firearms, thereby inflicting mortal wounds
upon the latter which caused his instantaneous death.5
On arraignment, petitioner and his co-accused all pleaded not guilty.
Forthwith, trial ensued with the prosecution presenting as witnesses Dr.
Tammy Uy, Bernabe Purificacion Arenga, Leoncio Tagapulot Zaragosa and
Generoso Caayao Umas-as.
The prosecution presented evidence proving the following as facts:
Paquito Umas-as, 34, was one of the four children of Generoso Umas-as of
Bulua, Cagayan de Oro City. Still single, Paquito earned a living as a
collector of payments for assorted articles such as jackets, mats, thermos
and plates that he sold on credit. Paquito collected as much as ₱70,000.00
for a period of four months and the net profit of such collections was
divided equally between him and his employer. 6
In collecting payments, Paquito used a motorcycle he bought on credit
from his employer.7 His collection brought him to such places as Manticao,
Iligan and Kolambogan.8 He rented a house in Iligan City but every
fifteenth (15th) day of the month, Paquito would go home to his family to
give them a sack of rice.9
127
At around 8:30 in the morning of 5 August 1992, Leoncio Tagapulot
Zaragosa, a refrigeration technician helper and resident of Roosevelt
Street, Iligan City, was conversing with Felix Lauriana10 near the school
building in Lapayan, Libertad, Kauswagan, Lanao del Norte when a
Hammer (Hummer) truck parked in front of them.11 Four policemen
alighted, followed by a driver. The police thereafter halted the collector
who was riding a motorcycle from Lapayan. The collector was wearing a
blue denim jacket with folded sleeves and blue denim pants.12
The police asked the collector to show his identification card (ID). The
collector took the ID out of his left pocket and when it reached the "front
man," one of the policemen, who Zaragosa later verified as the petitioner,
opened fire at the collector whose right hand was then raised. The four
other policemen meanwhile had their firearms pointed at the collector. 13
Petitioner, who was four meters away from the collector, consumed the
entire magazine of his M-16 armalite in firing at him. The collector fell to
the ground and was still moving when the police placed him on board a
vehicle and brought him to Kolambugan.14 One of the policemen rode on
the collector’s motorcycle and likewise headed for Kolambugan.15
Upon the request of Pedro P. Legaspi, barangay captain of Bulua, Cagayan
de Oro City,16 NBI forensic chemist Bernabe P. Arenga examined the
victim’s body, later identified as Paquito Umas-as, on 10 August 1992 to
determine the presence of gunpowder nitrates on his hands. Arenga’s
report revealed that the victim was negative for gunpowder nitrates.17
Arenga opined that on the average, nitrates would be lost within a
seventy-two (72)-hour period; that there had been instances when the
substance would remain on a living person up to nine days; that nitrates
could not penetrate rubber gloves; that no amount of washing can remove
the nitrates; and that even the application of formalin does not affect the
presence of nitrates in the hands of a person.18
On 11 August 1992, Dr. Tammy Uy, a medico-legal officer of the NBI in
Cagayan de Oro City, conducted a post-mortem examination on the body
of Paquito Umas-as. At the time of examination, the victim’s body had
already been cleaned and embalmed. Dr. Uy’s examination disclosed that
the cause of death was severe hemorrhage secondary to multiple gunshot
wounds. There were eight (8) gunshot wounds and each wound was
considered fatal.19
To prove damages, Generoso Umas-as testified that he lost consciousness
upon learning of the death of his son Paquito. Paquito’s family spent
₱8,000.00 for the wake and ₱10,000.00 for his burial. Paquito had left his
father ₱12,000.00 to pay for some appliances the former had bought; but
the latter, to underwrite funeral expenses, still had to sell his land for
₱100,000.00 only ₱25,000.00 of which had been paid in advance by the
buyer. However, Generoso could not remember where he placed the
receipts for the wake and burial expenses.20
The defense presented a different version of the commission of the crime.
Petitioner presented as witnesses Julmunier Akbar Jubail, Celso Gomera
Regencia and Jovito Luna Cabuslay.
Police Superintendent Julmunier A. Jubail, Provincial Director of the
Philippine National Police (PNP), Lanao del Norte Command stated that he
had received a reliable intelligence report of a plot to assassinate the
Mayor and Vice-Mayor of Kauswagan, Lanao del Norte and Governor
Abalos and his family. In response to the intelligence report, he dispatched
a team of PNP personnel to conduct mobile checkpoints along the national
highways in several municipalities and to check on people who would
possibly carry out the plot. Jubail claims that the intelligence report was
proven accurate after a few months because the Vice-Mayor of Kauswagan
was killed in Samborong, Linamon and in December of the same year,
Governor Abalos was assassinated in Iligan City.21
The team headed by Senior Inspector Celso G. Regencia included SPO4
Rosello Canoy, SPO2 Jovito Cabuslay, C2C Nilo Montebon and C2C Gerry
Cane. Their area of responsibility consisted of the twenty-two (22)
municipalities of Lanao del Norte. In full military outfit, save for Canoy as
he was assigned to the Intelligence Operatives Command, the men
established a mobile checkpoint on 5 August 1992 at the national highway,
Barangay Libertad, Kauswagan, Lanao del Norte for the purpose of
intercepting armed men who intend to carry out the assassination plot.22
128
At about 8:30 in the morning, a man riding on a red Honda motorcycle23
going to the direction of Pagadian City approached the mobile checkpoint.
The motorcycle rider was allegedly wearing a black bonnet, sunglasses,
sweatshirt and gloves that covered the half portion of his fingers.24
Regencia testified that he signaled the motorcycle rider to stop at the right
side of the road. He asked for the identification card of the motorcycle
rider who pretended to reach for his wallet, but instead pulled out a gun.
He heard a shot and his thigh went numb. As he rolled to the ground, he
heard a volley of gunshots after which petitioner approached him.
Regencia then approached the motorcyclist and removed his bonnet to be
able to identify him. Regencia later found out that the motorcyle rider was
shot by petitioner. 25
Regencia ordered his men to load the motorcycle rider to the truck. The
victim later identified as Paquito Umas-as was still alive when he was
loaded on the hummer vehicle to be brought to a hospital, but was
pronounced dead on arrival by Dr. Caga, the attending physician. Regencia
then asked that he be given first-aid treatment for the wounds he
sustained. He thereafter turned over the rider’s motorcycle, sunglasses
and revolver to the police station at Kauswagan. And after bringing the
victim’s body to a funeral home in Kolambugan, he proceeded to Baroy
General Hospital where his wounds were treated by a certain Dr. Fabin.26
To prove that he was wounded during the incident, Regencia showed to
the court a quo the scars caused by the gunshot wounds. There were three
scars, one of which was the entry of the bullet and the other two were
splinter wounds. He said that the bullet used was the kind that splinters
upon hitting an object. He presented a medical certificate under the
signature of Dr. Demterio U. Opamen, Jr.27
For his defense, petitioner confirmed Regencia’s testimony that the latter
had directed an approaching motorcyclist to stop at the right side of the
highway. He heard Regencia ask the motorcycle rider in Visayan dialect to
show his identification card. Cabuslay then saw Paquito Umas-as shoot
Celso Regencia. This and his belief that he was the next target prompted
him to shoot the motorcycle rider with his M-16.28
Police Superintendent Jubail was immediately informed of the incident and
on the basis of Regencia’s account, he sent out a "Spot Report"29 to
inform Recon 9 and 13. The report is couched as follows:
"SPOT REPORT x x x CMM SPO2 JOVITO CABUSLAY CMM INSP REGENCIA’S
BACK-UP OPEN FIRE (sic) HITTING AND FATTALY (sic) WOUNDING SAID
UNIDENT(IFIED) PERSON WWITH (sic) MULTIPLE GUNSHOT WOUNDS IN
HIS BODY AND DIED ON THE SPOT PD RESPONDING PNP ELEMETS
RECOVERED FROM THE VICTIM’S BODY ALFA CAL. 38 REVOLVER SMITH
AND WESSON (HM) SN 236701 WITH ONE (1) EMPTY SHELL AND 5
UNSPENT AMMO x x x "
The incident found its way to the police blotter of the police station of
Kauswagan, Lanao del Norte.30 It is embodied in a Certification31 signed
by Inspector Fulgencio dela Pena Raguine, Chief of Police, issued at the
request of Atty. Arthur Abundiente for trial purposes and formulated in
this wise:
Police Blotter Page Nr. 496-Entry Nr. 9187 & 9188=
050810H Aug 1992 – SPO3 Nestor S Ortiz, Intel NOR this station, left stn
with elements from Lanao del Norte PNPC under INSPECTOR CELSO G
REGENCIA PNP and proceeded to Libertad, Kauswagan, LN to follow-up
suspects allegedly hired for killing Mpl Mayor Myron B. Rico of Kaus, LN.
050835H Aug 1992 – SPO3 Nestor Ortiz PNP returned station informed
that suspects were intercepted at Libertad, Kaus, LN but when confronted
by the PNP team, fired and shot INSPECTOR CELSO G REGENCIA PNP using
cal. 38 revolber (sic) (Homemade) hitting on his right thigh prompting SPO3
Cabustay (sic), fired back to the suspect hitting at the chest causing the
instantaneous death of the suspect. One cal. 38 revolber (sic) (Homemade)
with 5 live ammos and one empty shell at the chamber, one rayban
(sunglass) and one motorcycle (Honda-Camel backtype) color red with out
plate Nr.
Police Blotter Page Nr. 497- Entry Nr.9191=
081240H Aug 1992 – Romeo Umas-as, 42 years old x x x.
129
Police Blotter Page Nr. 501-Entry Nr.9228=
251315H Aug 1992 – Impounded Honda Motorcycle x x x.
Police Blotter Page Nr. 508-Entry Nr. 9100=
021130H Oct 1992 – COP Bartolini RD got the one deposited rev. cal. 38
SW S#236701 w/ (4) four live ammo and one empty shell past 30th day of
Sep 92 for NBI examination at Cagayan de Oro City.
Petitioner justified the shooting of Paquito Umas-as because he believed
that he would be the next person to be shot at by the victim; and having
acted in defense of his person and that of his superior officer, he asserted
before the court a quo that he has no criminal liability because of the
attendance of the following circumstances: (a) unlawful aggression on the
part of the victim; (b) reasonable necessity of the means employed to
prevent or repel the unlawful aggression of the victim; (c) lack of sufficient
provocation on his part, and in the case of defense of his superior officer,
he was not induced by revenge, resentment, or other evil motives. All of
these requisites being present, petitioner claimed there was legal
justification for shooting Paquito Umas-as.32
The Sandiganbayan however grave credence to the version of the
prosecution and rejected the version of petitioner. So, it found him guilty
beyond reasonable doubt of the crime of homicide. It accorded full faith
and credence to the testimony of Zaragosa as it was "categorical,
straightforward, spontaneous and consistent." Moreover, it observed that
no proof was adduced to show that Zaragosa was moved by some evil
motive to falsely testify against the accused Cabuslay.33
The Sandiganbayan likewise noted grave deficiencies in the evidence of the
defense as follows: (1) The physical existence of the handgun allegedly
used by the victim Paquito was not established as the same was not
presented before the court during the trial;34 (2) The affidavit executed by
Gualberto Dayot Pasco-presented by the defense to impeach the
credibility of Zaragosa-was taken under intimidating and dubious
circumstances, which fact creates doubt as to the affidavit’s voluntariness
and credibility;35 (3) The medical certificate purportedly evidencing that
Regencia had been shot has no probative value as the doctor who
executed the same did not testify during trial. Notably, the medical
certificate was executed by a doctor different from the one who treated
Regencia’s wound;36 (4) The number of gunshot wounds inflicted upon
the victim betrays petitioner’s claim of reasonable necessity of the means
used to repel the unlawful aggression allegedly displayed by the victim.37
Hence, petitioner filed the instant petition before the Court, insisting that
the Sandiganbayan erred in not crediting him the justifying circumstance of
self-defense or defense of a stranger or the lawful exercise of a right or
office.38
Pursuant to the Court’s Resolution39 dated 3 September 1997, the Office
of the Solicitor General (OSG) submitted before the Court a Manifestation
and Motion In Lieu Of Comment40 to aid the resolution of the instant
petition. In said manifestation, the OSG stated that it is the Office of the
Ombudsman which should represent the People in cases elevated to the
Court from the Sandiganbayan except in cases filed under Executive Orders
Nos. 1, 2, 14, and 14-A issued in 1986. Nevertheless, it opined that the
conviction of petitioner should be reversed because the evidence of the
prosecution when pitted against that of the defense "may not stand close
scrutiny." It also asserted that the ponente of the appealed decision was
not yet a member of the Third Division when the witnesses testified and
when the parties presented their evidence; hence, the applicability of the
Court’s ruling in People v. Gutual,41 that no respect can be accorded to the
trial court’s findings of fact where the judge who penned the questioned
decision heard only one of the witnesses and only at the sur-rebuttal
stage.42
In its Comment,43 the Office of the Ombudsman through the Office of the
Special Prosecutor seeks the denial of the instant petition on the ground
that the defense failed to impeach the credibility of Zaragosa. It agrees
with respondent court that petitioner’s story was contrary to human
experience and hence, it correctly debunked self-defense and defense of a
stranger as grounds for petitioner’s acquittal.44
The petition is without merit.
130
While the rule that the factual findings of the court a quo are generally not
disturbed on appeal because the trial judge had the best opportunity to
observe them and the manner by which they testify is concededly not
applicable to the instant case considering that the ponente of the assailed
Decision was not the one who heard all the witnesses, nevertheless, after a
careful review of the records of the case, the Court finds no reason to
disturb the conclusions reached by respondent court. As held in Hugo v.
Court of Appeals,45 "the efficacy of a decision is not necessarily impaired
by the fact that the ponente only took over from a colleague who had
earlier presided over the trial. For it does not follow that a judge who was
not present during the trial cannot render a valid and just decision."
Moreover, it should be stressed that the Sandiganbayan, which functions
in divisions of three Justices each, is a collegial body which arrives at its
decisions only after deliberation, the exchange of view and ideas, and the
concurrence of the required majority vote.46
Simply put, the ponente of the assailed Decision is not the Third Division of
the Sandiganbayan. He alone does not speak for and on behalf of his
Division. Each Division of the Sandiganbayan is a three-man body whose
members each have one vote to cast in every deliberation concerning a
case or any incident therein that is within its jurisdiction.
We have minutely scrutinized the assailed Decision and find it amply
supported by the evidence on record.
Petitioner claims that he acted in self-defense and in defense of Regencia.
One who invokes self-defense admits responsibility for the killing.
Accordingly, the burden of proof shifts to the accused who must then
prove the justifying circumstance. He must show by clear and convincing
evidence that he indeed acted in self-defense, or in defense of a relative or
a stranger. With clear and convincing evidence, all the following elements
of self-defense must be established: (1) unlawful aggression on the part of
the victim; (2) reasonable necessity of the means employed to prevent or
repel it; and (3) lack of sufficient provocation on the part of the person
claiming self-defense.47

Self-defense, like alibi, is a defense which can easily be concocted. It is
well-settled in this jurisdiction that once an accused has admitted that he
inflicted the fatal injuries on the deceased, it is incumbent upon him in
order to avoid criminal liability, to prove the justifying circumstance
claimed by him with clear, satisfactory and convincing evidence. He cannot
rely on the weakness of the prosecution but on the strength of his own
evidence, "for even if the evidence of the prosecution were weak it could
not be disbelieved after the accused himself had admitted the killing."48
Thus, petitioner must establish with clear and convincing evidence that the
killing was justified, and that he incurred no criminal liability therefor.
In order that defense of a stranger may be appreciated, the following
requisites must concur: (1) unlawful aggression by the victim; (2)
reasonable necessity of the means to prevent or repel it; and (3) the
person defending be not induced by revenge, resentment or other evil
motive.49
Unlawful aggression is the first and primordial element of self-defense. Of
the three requisites, it is the most important. Without it, the justifying
circumstance cannot be invoked. If there is no unlawful aggression, there is
nothing to prevent or repel.50
Unlawful aggression refers to an attack or a threat to attack, positively
showing the intent of the aggressor to cause injury. It presupposes not
merely a threatening or an intimidating attitude, but an actual, sudden and
unexpected attack or an imminent danger thereof, which imperils one’s
life or limb. Thus, when there is no peril, there is no unlawful aggression.51
It is crucial to ask whether the victim Paquito was an unlawful aggressor.
We answer this question in the negative. Aggression to be unlawful, must
be actual and imminent, such that there is a real threat of bodily harm to
the person resorting to self-defense or to others whom that person is
seeking to defend.
Petitioner asserts that he was the victim’s next target, thus the need to
shoot the victim in self-defense. His claim should be disbelieved. As he
himself had explicitly testified before respondent court, the hummer jeep
131
was behind him and was parked about three to four meters from the
national highway.52 He also stated that Paquito could not have seen the
hummer jeep because it was obscured by Muslim houses.53 It only follows
that if from Paquito’s perspective, he cannot see the hummer jeep which is
a fairly large vehicle, then he could not have seen petitioner as well. If
Paquito cannot see petitioner from where he was positioned, then Paquito
could not have possibly aimed to shoot at petitioner. Petitioner’s
contention therefore that there was an imminent threat of bodily harm
coming from Paquito upon his person is at best illusory. There was no peril,
ergo, there was no unlawful aggression.
It should also be recalled that at the time, Cane was on top of the hummer
jeep manning the machine gun.54 If Regencia had indeed been shot as the
defense insists, then Cane was better situated to defend Regencia. It is
implausible how an officer like him, in such a strategic position and trained
in the operation of the said weapon could have omitted firing a shot in
Regencia’s defense. More to the point, it is beyond credulity that the
outbursts of gunfire hardly elicited any reaction from the other police
officers who were only a few meters away from the crime scene and who
continued conducting their search on the bus which was then about to
pass the checkpoint.55
Likewise noteworthy is the fact that after the second burst of fire on
Paquito, knowing that Paquito was still alive56 and in all probability was
still holding a handgun,57 petitioner chose to assist Regencia instead of
making sure that Paquito had been immobilized and disarmed, basic to a
policeman’s training.
In addition, the claim of the defense that Paquito shot Regencia on his
right thigh is untenable. Petitioner would have the Court believe that
Paquito dared challenge five policemen, four of them in full battlegear, at a
checkpoint and armed with only a handgun. This is contrary to ordinary
human experience, as well as the human instinct which is to flee for dear
life and seek safety. If indeed Paquito was armed and had criminal designs
in his mind, the natural tendency upon seeing a checkpoint ahead would
be to abort one’s plans and leave the premises immediately. Petitioner’s
story not only was contrary to the ordinary course of nature and the
ordinary habits of life, in all appearances it was also contrived.58 that he took the gun for NBI Examination sometime in the month of
Respondent court was correct in rejecting it. October, 1992, no, on the 30th day of September, 1992.

We also confirm that the medical certificate presented by Regencia to CHAIRMAN:

prove that he had been shot by the victim has no probative value. The
physician who signed the same was never presented as witness for the This was covered by police blotter?
defense. We also note that the physician who signed said medical
certificate, a certain Dr. Demterio U. Opamen, Jr., is different from the ATTY. ABUNDIENTE:
doctor who according to Regencia had treated his wounds.59
Yes, Your Honor.
It is also worthy of note that the defense never presented in evidence the
gun Paquito allegedly use to shoot Regencia. The gun was also not clearly CHAIRMAN:
identified. Unlawful aggression on the part of the victim must be positively
proved and said gun would have been a vital evidence to establish this You don’t need the testimony of Bartolini, but do you have the report of
requisite. the NBI?

Petitioner, however, insists that he would have presented the gun had not ATTY. ABUNDIENTE:
respondent court pressured him to rest his case and submit it for decision.
Such contention hardly inspires belief. Records reveal that petitioner never That is why, Your Honor, because we have not received any
made it known to respondent court that the defense would be presenting communication from Bartolini . . .
the gun allegedly used by Paquito. What the defense did manifest was
their intention to present one Major Bartolino to testify that he had CHAIRMAN:
received the gun allegedly used by Paquito and that he had brought it to
the NBI on 30 September 1992 for examination. It should be underscored How did you come to know that Bartolini sent this firearm to the NBI for
that the defense was not even sure that there was an NBI report on said examination? . . .
examination. The counsel for the defense manifested before respondent
court, as follows: ATTY. ABUNDIENTE:

ATTY. ABUNDIENTE:
xxx
I intended, Your Honor, Please, to present two more witnesses, Major
Bartolini who received the gun and he will testify on this particular
testimony that he was the Station Commander of the municipality of
Kauswagan, Lanao del Norte at the time of the incident and then he
received this gun from the team of Capt. Regencia on August 5, 19 (sic) and
Because it is stated in the blotter, Your Honor, . . . dated September 1992
for NBI examination in Cagayan de Oro City, Entry No. 91000, page 108 . . .
CHAIRMAN:
Does it matter – whether you can prove the examination report of the NBI
or not?
ATTY. ABUNDIENTE:

132
I don’t know if there was a report of the NBI examination . . .
CHAIRMAN:
Precisely . . ."60
The defense was well aware of the relevance of the NBI report to prove
their allegations that the victim was carrying a gun and used the same on
Regencia, especially since the victim was reported to be negative of
nitrates on his hands. No cogent reason could be thought of for the failure
to secure a copy of the report or even know of its existence. It should be
noted that the examination was made as early as September 1992. A
party’s failure to produce evidence, which if favorable would naturally
have been produced, is open to the inference that the facts were
unfavorable to his case.61 This Court can only conclude that said gun never
existed, and this explains the failure of the defense to present it before
respondent court. Thus, it is immaterial to delve on the issue raised by the
petitioner on the discrepancy of the make of the gun as noted by
respondent court in its Decision.
Parenthetically, petitioner stresses that the victim had tested negative for
gunpowder nitrates as the latter had been wearing gloves at the time of
the incident. This claim runs counter to his62 and Regencia’s63 testimony
that the only things recovered from Paquito and which were turned over
to the Provincial Police Command were the victim’s motorcycle, sunglasses
and the alleged gun. The police blotter reporting the incident confirms
their testimonies. Interestingly, said police blotter also makes no mention
that gloves were recovered from the victim.64
Anent the credibility of Zaragoza, the sole prosecution eyewitness on
whose testimony the version of the prosecution is anchored, we find that
petitioner failed to impeach his credibility. No evidence was shown that
Zaragoza was actuated by an improper motive. As such, there is no cogent
reason why the Court should deny Zaragoza’s testimony the full faith and
credit it deserves.
133
On the alleged inconsistencies in Zaragoza’s testimony, it is relevant to
state that a witness is not expected to remember an occurrence with
perfect recollection of the minute details. Thus, even the most
truthful of witnesses may err and often give confusing statements. What is
important is that Zaragosa unwaveringly, forthrightly and unequivocally
declared that petitioner shot at the victim. Neither did he falter in
identifying the gunman.65
All in all, petitioner has failed to prove unlawful aggression on the part of
the victim. Without this essential element, petitioner cannot successfully
invoke self-defense. Even assuming that he tried to defend a stranger, his
defense would not prosper. In defense of a stranger, unlawful aggression
on the part of the victim is also indispensable. In both self-defense and
defense of a stranger, unlawful aggression is a primordial element.
Granting arguendo that there was unlawful aggression, we find that
petitioner’s contention that he employed reasonable means to repel the
aggression must fail. It is settled that reasonable necessity of the means
employed does not imply material commensurability between the means
of attack and defense. What the law requires is rational equivalence.66
Also, the nature and number of wounds suffered by Paquito negate any
claim of self-defense or defense of a stranger. The Court notes that the
victim sustained eight gunshot wounds which were all fatal as they
affected vital organs.67 Petitioner testified that he pulled the trigger of his
armalite twice.68 He aimed at "the front of his body, at the chest, up to
the stomach."69 Had petitioner merely defended himself from the victim’s
unlawful aggression, one shot to immobilize him would have been enough.
There was no reason for petitioner to shoot him seven more times, even
aiming at his vital organs. It bears repeating that the nature and number of
wounds inflicted by the accused are constantly and unremittingly
considered as important indicia which disprove a plea for self-defense or
defense of stranger because they demonstrate a determined effort to kill
the victim and not just defend oneself.70 In the instant case, Paquito’s
wounds serve to tell us that petitioner was induced by revenge,
resentment or other evil motive and that he was set on killing the victim.
Petitioner’s avowal that his first shot was single but went automatic on the
second shot is likewise unbelievable.71 Petitioner’s armalite has a selector
that switches it from single shot to automatic. Since it was petitioner who
was in possession of the firearm and he admitted that he fired the shots,
we reasonably conclude that it was he who switched the firearm to
automatic firing.
All told, petitioner failed to satisfy the requirements of self-defense and
defense of a stranger to justify the shooting of Paquito.
Next, petitioner contends that the killing of Paquito resulted from the
lawful performance of his duty as police officer. However, such justifying
circumstance may be invoked only after the defense successfully proves
that the accused acted in the performance of a duty, and the injury or
offense committed is the necessary consequence of the due performance
or lawful exercise of such duty.72 These two requisites are wanting in this
case. The victim was not committing any offense at the time. Petitioner
has not sufficiently proven that the victim had indeed fired at Regencia.
Killing the victim under the circumstances of this case cannot in any wise
be considered a valid performance of a lawful duty by a man who had
sworn to maintain peace and order and to protect the lives of the people.
As aptly held in People v. de la Cruz,73 "Performance of duties does not
include murder…. Murder is never justified, regardless of the victim."
A final word on the civil liability. An appeal in a criminal proceeding throws
the whole case open for review and it becomes the duty of the Court to
correct any error in the appealed judgment, whether it is made the subject
of an assignment of error or not. Therefore, we delete the award of
₱50,000.00 as actual damages. To seek recovery of actual damages, it is
necessary to prove the actual amount of loss with reasonable degree of
certainty premised upon competent proof and on the best evidence
obtainable. Since the prosecution did not present receipts to prove the
actual losses suffered, such actual damages cannot be awarded.74
On the other hand, consistent with prevailing jurisprudence, we award
₱50,000.00 by way of indemnity ex delicto to the heirs of Paquito. When
death occurs as a result of a crime, the heirs of the deceased are entitled
134
to such amount as indemnity for death without need of any evidence or
proof of damages.75
We also affirm the award of moral damages in view of the finding that
Generoso Umas-as lost consciousness and suffered anguish and sorrow
because of the incident.
WHEREFORE, the assailed Decision dated 25 June 1997 of the
Sandiganbayan in Criminal Case No. 19586 finding petitioner GUILTY of
homicide is partially AFFIRMED with the following MODIFICATIONS: (a) the
award of Fifty Thousand Pesos (₱50,000.00) as actual damages is deleted;
and (b) petitioner is ordered to pay fifty thousand pesos (₱50,000.00) as
indemnity ex delicto. No costs.
SO ORDERED.
G.R. No. 124058 December 10, 2003
PEOPLE OF THE PHILIPPINES, appellee,
vs.
JESUS G. RETUBADO alias "JESSIE," appellant.
DECISION
CALLEJO, SR., J.:
This is an appeal from the Decision1 of the Regional Trial Court, Toledo
City, Branch 29, in Criminal Case No. TCS-2153 convicting the appellant
Jesus G. Retubado of murder, sentencing him to reclusion perpetua, and
directing him to indemnify the heirs of the victim Emmanuel Cañon the
sum of P50,000.00.
The appellant was indicted for murder in an Information, the accusatory
portion of which reads:
That on the 5th day of November, 1993 at 9:30 o’clock in the evening,
more or less, at Barangay I Poblacion, Municipality of Tuburan, Province of
Cebu, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, with deliberate intent to kill, by means of
treachery, evident premeditation and taking advantage of superior
strength, did then and there willfully, unlawfully and feloniously attack,
assault and shoot Emmanuel Cañon with the use of unlicensed revolver of
unknown caliber, thereby hitting the latter on his forehead, resulting to
the instantaneous death of the said victim.
CONTRARY TO LAW.2
Shortly before November 5, 1993, someone played a joke on Edwin
Retubado, the appellant’s younger brother who was mentally ill. Someone
inserted a lighted firecracker in a cigarette pack and gave it to Edwin. He
brought the cigarette home and placed it on the dining table as he was
having dinner with his father. Momentarily, the firecracker exploded. The
suspect was Emmanuel Cañon, Jr., The Cañons and the appellant were
neighbors. The matter was brought to the attention of the barangay
captain who conducted an investigation. It turned out that Emmanuel
Cañon, Jr. was not the culprit. The barangay captain considered the matter
closed. The appellant, however, was bent on confronting Emmanuel
Cañon, Jr.
On November 5, 1993, at about 9:00 p.m., 50-year-old Emmanuel Cañon,
Sr., a pedicab driver called it a day and decided to go home after a day’s
work. He drove his pedicab and stopped at the junction of Rizal and
Gallardo Streets, at the poblacion of Tuburan. The appellant, who was
conversing with Marcial Luciño saw him. "Noy, why is [it] your son did
something to my brother?" Emmanuel ignored the appellant. The
appellant was incensed and ran after Emmanuel. He overtook Emmanuel,
grabbed and pushed the pedicab which nearly fell into a canal. Emmanuel
again ignored the appellant and pedaled on until he reached his house. His
wife, Norberta Cañon was in the balcony of their house, above the porch
waiting for him to arrive. Emmanuel, Jr., meanwhile, was already asleep.
Undeterred, the appellant continued following Emmanuel.
Shortly after Emmanuel had entered his house, the appellant arrived and
tarried at the porch. Emmanuel suddenly opened the door and demanded
to know why he was being followed. The appellant told Emmanuel that he
135
just wanted to talk to Emmanuel, Jr., but Emmanuel told the appellant that
his son was already asleep. Norberta went down from the balcony and
placed her hand on her husband’s shoulder to pacify him.
The appellant forthwith pulled out a handgun from under his T-shirt and
shot Emmanuel on the forehead. The latter fell to the floor as the
appellant walked away from the scene. Norberta shouted for help. The
neighbors, her daughter, and her son-in-law arrived. They brought
Emmanuel to the Tuburan District Hospital, but the victim died shortly
thereafter. Dr. Ivar G. Arellano, the Municipal Health Officer, performed an
autopsy on the cadaver of Emmanuel and prepared a report thereon with
the following findings:
Examination in Detail:
On detailed examination, a gunshot wound was found at the left side of
the forehead, measuring 1 cm. in diameter. At the skin surrounding this
wound was found powder burns which measured 3 cms. in diameter as the
skin had been blackened and burned by powder of the bullet. The
underlying frontal bone was fractured and depressed. The underlying
meninges of the brain as well as the frontal area of the brain was
traumatized and injured. Blood and cerebrospinal fluid were leaking from
this wound. The edges of this bullet wound was inverted thus this was the
gunshot entry wound. The wound was found to be circular in shape. The
exit wound was found at the left parietal bone measuring 1.2 cm. in size or
diameter for this wound communicated with the entry wound of the left
side of the forehead. The connection from the wound of entry to the exit
wound measured 8 cms. The parietal bone was fractured and was
depressed and the parietal part of the brain and meninges was
traumatized. Blood and cerebrospinal fluid as well as brain tissues leaked
out from this wound.
Possible cause of death:
1. Gunshot wound at the head (left side) with injury to brain and meninges
2. Hypovolemic shock secondary to loss of blood (Severe loss of blood)
(Sgd.) Ivar G. Arellano
MUN. Health Officer3
Dr. Charity Patalinghug and the victim’s daughter Loreta C. Claro signed
Emmanuel’s Certificate of Death.4 The appellant surrendered to the police
authorities but failed to surrender the firearm he used to kill the victim.
Forensic Officer Myrna P. Areola of the PNP Regional Office subjected the
appellant to paraffin tests. The Chemical Analysis of the paraffin casts gave
the following results:
FINDINGS:
...
1. POSITIVE for the presence of gunpowder residue on his left hand cast.
2. NEGATIVE for the presence of gunpowder residue on his right hand
cast.5
Norberta also testified on the expenses incurred by her family due to her
husband’s death. No documentary evidence was, however, offered to
support the same. She declared that she felt sad and lonely as a result of
her husband's death.
The Case for the Appellant
The appellant admitted shooting the victim but claimed that he was merely
performing a lawful act with due care; hence, cannot be held criminally
liable for the victim’s death. He testified that when he insisted that
Emmanuel wake up his son, Emmanuel went to his room and emerged
therefrom holding a handgun with his right hand. Emmanuel’s trigger
finger was outside the trigger guard, and he held the firearm with the
muzzle facing downward. Fearing that he would be shot, the appellant
took hold of Emmanuel’s right hand with his left, and pulled the gun
towards Emmanuel’s stomach. The appellant grabbed Emmanuel’s free
hand with his right hand, and the old man almost fell on his knees to the
ground. Emmanuel still resisted. The appellant pulled the gun to the level
of Emmanuel’s forehead, and the gun suddenly went off. The bullet hit
136
Emmanuel’s forehead. Norberta fled from the house. For his part, the
appellant rushed to his house to change clothes. He placed the gun on the
dining table before entering his bedroom. When he went back to the
dining room to get the gun, his younger sister, Enrica told him that their
brother Edwin had taken the gun. He found Edwin outside their house near
the church, and the latter told the appellant that he threw the gun into the
sea. When the appellant asked his brother to show him where he threw
the gun, Edwin refused to do so.
Marcial Luciño corroborated the appellant’s testimony. He testified that he
was talking with the appellant at around 9:00 p.m. at the junction of Rizal
and Gallardo streets when the victim Emmanuel passed by in his pedicab.
When the appellant called the victim, the latter ignored the call, prompting
the appellant to chase the victim, and eventually push the pedicab into a
canal.
The appellant’s father, Iñigo Retubado, testified that on the evening of
November 5, 1993, he was in their house with Edwin, his son who was
mentally-ill. It was already late when the appellant arrived. The appellant
was disheveled, and laid down the gun he was carrying on the table. The
appellant told his father that he would surrender to the police because he
had shot somebody.6 The appellant thereafter went to his room to change
clothes while Iñigo went to the comfort room to answer the call of nature.
When he was done, he saw the appellant frantically looking for the gun. As
Edwin was also nowhere to be found, Iñigo concluded that Edwin might
have taken the gun with him. He also testified on Edwin’s mental
imbalance and on the latter’s confinement at the Psychiatric Department
of the Don Vicente Sotto Memorial Medical Center in Cebu City sometime
in 1991.7
On November 6, 1993, the appellant surrendered to the police authorities.
Although he was required by the municipal trial court to file his counter-
affidavit, the appellant refused to do so.
After due proceedings, the trial court rendered judgment in Criminal Case
No. TCS-2153, convicting the appellant of murder, and sentencing him to
reclusion perpetua. The decretal portion of the decision reads:
WHEREFORE, in view of the foregoing, this Court finds accused GUILTY
beyond reasonable doubt of the crime of Murder under Art. 248 R.P.C. and
sentences the accused to the penalty of Reclusion Perpetua and to
indemnify the heirs of the deceased the sum of P50,000.00.
However, accused is given full credit of his preventive imprisonment.
SO ORDERED.8
On appeal, the appellant assails the decision of the trial court contending
that:
I wrestled with the victim for the possession of the gun, he was merely
First Assignment of Error
THE LOWER COURT ERRED IN NOT FINDING THE DEATH OF THE DECEASED
AS CAUSED BY MERE ACCIDENT WITHOUT FAULT OR INTENTION OF
CAUSING IT WHILE THE ACCUSED WAS PERFORMING A LAWFUL ACT WITH
DUE CARE OR, IN THE ALTERNATIVE, IT ERRED IN NOT CONVICTING HIM
JUST MERELY OF HOMICIDE INSTEAD OF MURDER.
II
Second Assignment of Error
THE LOWER COURT ERRED IN DISREGARDING THE VERY RELEVANT AND
MATERIAL CONTENTS OF EXHIBIT "B" OF THE PROSECUTION --- CHEMISTRY
REPORT, PARAFFIN TEST -- WHICH ARE FAVORABLE TO THE ACCUSED.
III
Third Assignment of Error
THE LOWER COURT ERRED IN CONCLUDING THAT THE TESTIMONY OF THE
SOLE WITNESS OF THE PROSECUTION IS SATISFACTORY AND SUFFICIENT
TO CONVICT THE ACCUSED OF MURDER.
137
IV
Fourth Assignment of Error
THE LOWER COURT ERRED IN FAILING TO CONSIDER THAT THE ACCUSED
HAS EXPLAINED WHY HE FAILED TO SURRENDER THE GUN WHICH HE GOT
FROM THE DECEASED.9
The appellant asserts that he was merely performing a lawful act of
defending himself when he grabbed the victim’s hand which held the gun.
The gun accidentally fired and the bullet hit the victim’s forehead. The
accident was not the appellant’s fault. The appellant asserts that when he
defending himself. He contends that he had no intention of killing the
victim, as he merely wanted to talk to his son. If he had wanted to kill the
victim, he could have easily done so when he met the latter for the first
time that fateful night of November 5, 1993. Moreover, the appellant
submits, he did not commit any felony; hence, under paragraph 4 of Article
12 of the Revised Penal Code, he is not criminally liable for the death of the
victim.10 In the alternative, the appellant asserts that he should be
convicted only of the crime of homicide under Article 249 of the Revised
Penal Code, since the qualifying circumstance of treachery is wanting. He
and the victim had a heated exchange of words before they grappled for
the possession of the gun. Such heated discussion had already forewarned
the victim and placed him on guard; thus, treachery cannot be legally
considered.
The contention of the appellant has no merit. Article 11, paragraph 4 of
the Revised Penal Code reads:
ART. 11. Justifying circumstances. –
...
4) Any person who, in order to avoid an evil or injury, does an act which
causes damage to another provided that the following requisites are
present:
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid it;
Third. That there be no other practical and less harmful means of
preventing it.
The provision was taken from Article 8, paragraph 7 of the Spanish Penal
Code, which reads:
ARTICULO 8.
7. El que para evitar un mal ejecuta un hecho que produzca dañ en la
propiedad ajena, siempre que concurran las circumstancias siguientes:
Primera. Realidad del mal que se trata de evitar.
Segunda. Quesea mayor que el causado para evitarlo.
Tercera. Que no haya otro medio practicable y menos
perjudicial para impedirlo.
Article 11, paragraph 4 of the Revised Penal Code is not an accurate
translation of the Spanish Penal Code. The phrase "an injury" does not
appear in the first paragraph in the Spanish Penal Code. Neither does the
word "injury" appear in the second subparagraph of the Spanish Penal
Code.
The justification is what is referred to in the Spanish Penal Code as el
estado de necessidad:
Es una situacion de peligro, actual o immediato para bienes, juridicamente
protegides que solo puede ser evitada mediante, la lesion de bienes,
tambien juridicamento protegidos, pertenecientes a otra personas.11
The phrase "state of necessity" is of German origin. Countries which have
embraced the classical theory of criminal law, like Italy, do not use the
phrase. The justification refers to a situation of grave peril (un mal), actual
138
or imminent (actual o imminente). The word propiedad covers diverse
juridical rights (bienes juridicos) such as right to life, honor, the integrity of
one’s body, and property (la vida, la integridad corporal, el pudor, el
honor, bienes patrimoniales) belonging to another.12
It is indispensable that the state of necessity must not be brought about by
the intentional provocation of the party invoking the same.13
A number of legal scholars in Europe are of the view that the act of the
accused in a state of necessity is justifying circumstance; hence, lawful.
Under Article 12, paragraph 4 of the Revised Penal Code, a "state of
necessity" is a justifying circumstance. The accused does not commit a
crime in legal contemplation; hence, is not criminally and civilly liable. Civil
liability is borne by the person/persons benefited by the act of the
accused. Crimes cannot exist unless the will concurs with the act, and
when, says Blackstone, "a man intending to do a lawful act, does that
which is unlawful, the deed and the will act separately" and there is no
conjunction between them which is necessary to constitute a crime.14
Others are of the view that such act is a cause for exclusion from being
meted a penalty; still others view such act as a case of excluding the
accused from culpability.
According to Groizard, rights may be prejudiced by three general classes of
acts, namely, (a) malicious and intentional acts; (b) negligent or reckless
acts; (c) acts which are neither malicious, imprudent nor negligent but
nevertheless cause damages.
Nuestra propiedad puede ser perjudicada, puede sufrir detrimentos por
tres clases de hechos.1âwphi1 Por actos maliciosos, intencionales,
encaminados directamente a causarnos daño; por actos que, sin llevar ese
malicioso fin y por falta de prudencia, por culpa o temeridad del que los
ejecuta, den ese mismo resultado, y por actos que, sin concurrir en su
ejecucion un proposito doloso, ni culpa, ni negligencia sin embargo
produzcan menocabo en nuestros bienes.15
The defense of a state of necessity is a justifying circumstance under
Article 12, paragraph 4 of the Revised Penal Code. It is an affirmative
defense that must be proved by the accused with clear and convincing
evidence. By admitting causing the injuries and killing the victim, the
accused must rely on the strength of his own evidence and not on the
weakness of the evidence of the prosecution because if such evidence is
weak but the accused fails to prove his defense, the evidence of the
prosecution can no longer be disbelieved. Whether the accused acted
under a state of necessity is a question of fact, which is addressed to the
sound discretion of the trial court. The legal aphorism is that the findings
of facts by the trial court, its calibration of the testimony of the witnesses
of the parties and of the probative weight thereof as well as its conclusions
based on its own findings are accorded by the appellate court high respect,
if not conclusive effect, unless the trial court ignored, misconstrued or
misapplied cogent facts and circumstances of substance which, if
considered, will change the outcome of the case. We have meticulously
reviewed the records and find no basis to deviate from the findings of the
trial court that the appellant was the provocateur, the unlawful aggressor
and the author of a deliberate and malicious act of shooting the victim at
close range on the forehead.
First: When Norberta heard her husband and the appellant arguing with
each other in the porch of their house, she went down from the balcony
towards her husband and placed her hand on the latter’s shoulders. She
was shocked when the appellant pulled out his handgun and deliberately
shot the victim on the forehead, thus:
Q Now, you said that when your husband was about to go out again in
order to see his trisicad and as he opened the door he saw Jesus Retubado
near the door. What happened after that?
A He asked Jesus Retubado why Jesus Retubado chased him when he was
driving his trisicad.
Q Now, as your husband was asking this question to the accused Jesus
Retubado what was the distance to your husband at the time?
A Just very near to him.
Q And you to the accused at that very moment what was more or less your
distance?
139
A About an armslength.
Q When your husband asked Jesus Retubado why the latter chased him
while your husband was driving his trisicad what was the answer of Jesus
Retubado, if any?
A My husband asked the accused Jesus Retubado what is his grudge to him
and Jesus Retubado answered that it is not you who has a grudge to me
but it is your son.
Q When Jesus Retubado uttered that statement what transpired after
that?
A He immediately pointed his firearm that he was bringing (sic) to my
husband Emmanuel Cañon.
Q By the way considering that you were just near to both your husband
and the accused where did that firearm that you said was pointed by the
accused to your husband come (sic) from?
A While the accused was standing in front of our door his hands were
placed inside his T-shirt covered by his T-shirt.
Atty. Pepito:
We move to strike out the answer. It is not responsive, Your Honor. The
question was, where did it come from?
COURT:
Let the answer stay in the record but let the witness answer again.
A From the hands of accused Jessie.
Fiscal Pansoy:
Q Now, just a while ago you were making a motion using your hand placed
inside your T-shirt. Now, when you saw the firearm for the first time where
did you saw (sic) the firearm for the first time where did the firearm come
from as you saw it from the hands of the accused?
Atty. Pepito:
Already answered. It came from the hands of the accused.
Fiscal Pansoy:
I will reform.
Q Before you saw the firearm in the hands of the accused where did the
firearm come from?
Atty. Pepito:
She is incompetent. We object.
COURT:
Reform the question.
Fiscal Pansoy:
Q Now, Mrs. Witness, before this question was asked to you as to where
the firearm came from you were making a motion by placing your hands
inside your shirt when you were only asked as to where the firearm came
from?
A That was what the position of the accused when he was standing in front
of our door and I do not know what was inside his T-shirt. I only know that
he was carrying a firearm when it fired.
Q Now, when the accused pointed the firearm to your husband and fired
the same more or less what was the distance between the accused and
your husband at the very precise time when the firing was made?
140
A It was just very near because his hand did not bend. (Witness
demonstrating by pointing to her forehead).
Q Now, more or less, describe to the Court the approximate distance
between the firearm that was pointed to your husband and the forehead
of your husband at the time when the firing was done?
A It touched the forehead of my husband.
Q That was the very time that you heard the gunburst?
A Yes.
Q When the accused fired the firearm that was carried by him, what
happened to your husband?
A My husband fell down backward to the ground inside the house.
Q By the way, what was the flooring of your house where your husband fell
backward to the ground?
A Cemented.
Q By the way considering that you were just very near to where the
incident occurred can you describe the length of the firearm that was used
by the accused in firing your husband?
A It was a short firearm about 6 inches.
Q Now, as your husband fell down to the floor where did the accused
proceed and what did the accused do?
A He was just casually walking away as if nothing had happened.
Q Now, what did you do to your husband, if any, after he fell down to the
floor?
A I have done nothing because I was somewhat shocked. I could not move
because I was shocked.16
Second: After shooting the victim, the appellant fled from the situs
criminis. He surrendered to the police authorities only on November 6,
1993, but failed to surrender the gun he used to kill the victim. The
appellant’s claim that he placed the gun on the dining table before
entering his bedroom to change his clothes is incredible. There is no
evidence that the appellant informed the police authorities that he killed
the victim in a state of necessity and that his brother, Edwin, threw the gun
into the sea. The appellant never presented the police officer to whom he
confessed that he killed the victim in a state of necessity.
Third: The appellant had the motive to shoot and kill the victim.1avvphi1
The victim ignored the appellant as the latter talked to him at the junction
of Rizal and Gallardo streets, in the poblacion of Tuburan. The appellant
was incensed at the effrontery of the victim, a mere pedicab driver. The
appellant followed the victim to his house where the appellant again
confronted him. The appellant insisted on talking with the victim’s son but
the victim refused to wake up the latter. The appellant, exasperated at the
victim’s intransigence, pulled out a gun from under his shirt and shot the
victim on the forehead. It was impossible for the victim to survive. With
the appellant’s admission that he shot the victim, the matter on whether
he used his right or left hand to shoot the latter is inconsequential.
We agree with the contention of the Solicitor General that there is no
treachery in the present case to qualify the crime to murder. To appreciate
treachery, two (2) conditions must be present, namely, (a) the
employment of the means of execution that give the person attacked no
opportunity to defend himself or to retaliate, and (b) the means of
execution were deliberately or consciously adopted.17 The prosecution
failed to adduce an iota of evidence to support the confluence of the
abovementioned conditions. Thus, the appellant is guilty only of homicide
under Article 249 of the Revised Penal Code. Although the Information
alleges that the appellant used an unlicensed firearm to shoot the victim,
the prosecution failed to prove that the appellant had no license to
possess the same. Hence, the aggravating circumstance of the use of an
141
unlicensed firearm to commit homicide should not be appreciated against
the appellant.
The appellant is entitled to the mitigating circumstance of voluntary
surrender. He turned himself in to the police authorities prior to the
issuance of any warrant for his arrest.
The trial court awarded ₱50,000.00 as civil indemnity18 to the heirs of the
deceased. In addition, the heirs are entitled to moral damages in the
amount of ₱50,000.0019 and the temperate damages in the amount of
₱25,000.00 since no sufficient proof of actual damages was offered.20
WHEREFORE, the appealed judgment is AFFIRMED with MODIFICATION.
The appellant Jesus G. Retubado alias "Jessie" is found GUILTY beyond
reasonable doubt of homicide defined in and penalized by Article 249 of
the Revised Penal Code and is hereby sentenced to suffer an indeterminate
sentence of ten (10) years of prision mayor, in its medium period, as
minimum, to fifteen (15) years of reclusion temporal, in its medium period,
as maximum, and to pay the heirs of the victim, Emmanuel Cañon,
₱50,000.00 as civil indemnity; ₱50,000.00 as moral damages; and
P25,000.00 as temperate damages.
SO ORDERED.
G.R. No. 153875 August 16, 2006
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ROLANDO DAGANI y REYES and OTELLO SANTIANO Y LEONIDA, Accused-
Appellants.
DECISION
AUSTRIA-MARTINEZ, J.:
For review before the Court is the Decision dated June 20, 20021 of the
Court of Appeals (CA) which affirmed the Decision of the Regional Trial
Court of the City of Manila, Branch 12 (RTC), dated February 18, 1993, in
Criminal Case No. 89-77467, finding the accused-appellants Otello
Santiano y Leonida (Santiano) and Rolando Dagani y Reyes (Dagani) guilty
of the crime of Murder.
The accusatory portion of the Information reads:
That on or about September 11, 1989, in the City of Manila, Philippines,
the said accused conspiring and confederating together and mutually
helping each other did then and there, willfully, unlawfully and feloniously,
with intent to kill, evident premeditation and treachery, attack, assault and
use of personal violence upon one ERNESTO JAVIER Y FELIX by then and
there shooting him with a .38 caliber revolver, thereby inflicting upon the
said ERNESTO JAVIER Y FELIX mortal gunshot wounds which were the
direct and immediate cause of his death thereafter.
CONTRARY TO LAW.2
Upon arraignment, the appellants pleaded not guilty. Trial ensued where
the prosecution adduced evidence to establish the following:
At about 4:45 in the afternoon of September 11, 1989, a group composed
of Ernesto Javier (Javier), Lincoln Miran (Miran), and two other individuals
had been drinking at the canteen located inside the compound of the
Philippine National Railways (PNR) along C.M. Recto Avenue, Tondo,
Manila. All of a sudden, appellants, who were security officers of the PNR
and covered by the Civil Service Rules and Regulations, entered the
canteen and approached the group. Appellant Dagani shoved Miran,
causing the latter to fall from his chair. Dagani then held Javier while
Santiano shot Javier twice at his left side, killing the latter.
The defense proceeded to prove their version of the facts:
Appellants testified that they were ordered by their desk officer to
investigate a commotion at the canteen. Upon reaching the place,
Santiano ordered his co-accused, Dagani, to enter, while the former waited
outside.
142
Dagani approached Javier who had been striking a bottle of beer on the
table. Javier then pulled out a .22 caliber revolver and attempted to fire at
Dagani, but the gun failed to go off. Then suddenly, while outside the
canteen, Santiano heard gunfire and, from his vantage point, he saw Javier
and Dagani grappling for a .22 caliber gun which belonged to Javier. During
the course of the struggle, the gun went off, forcing Santiano to fire a
warning shot. He heard Javier’s gun fire again, so he decided to rush into
the canteen. Santiano then shot Javier from a distance of less than four
meters.
Appellants invoked the justifying circumstances of self-defense and lawful
performance of official duty as PNR security officers. They also argued that
the prosecution failed to establish treachery and conspiracy.
The RTC rendered its Decision, the dispositive portion of which reads:
WHEREFORE, finding both accused Otello Santiano y Leonida and Rolando
Dagani y Reyes guilty beyond reasonable doubt of the crime of Murder
defined and punished under Art. 248, RPC, with the presence of the
mitigating circumstance of voluntary surrender and granting them the
benefit of [the] Indeterminate Sentence Law, both accused are hereby
sentenced to each suffer an Indeterminate prison term of TEN (10) YEARS
and ONE (1) DAY of prision mayor as minimum, to EIGHTEEN (18) YEARS
and ONE (1) DAY of reclusion temporal x x x.
Both accused are hereby ordered to indemnify the heirs of the victim the
sum of P50,000.00 as death indemnity, the sum of P31,845.00 as funeral
and burial expenses, the sum of
P30,000.00 as and for [sic] attorney’s fees and the further sum of
P1,000.00 per appearance of counsel.
Both accused shall be credited with the full extent of their preventive
imprisonment. Both accused are hereby committed to the Director,
National Penitentiary, Muntinlupa, Metro Manila for service of Sentence.
SO ORDERED.3
In brief, the RTC held that appellants failed to prove that Javier attempted
to squeeze the trigger of the .22 caliber gun when he pointed it at Dagani;
that during the course of the struggle for the possession of the .22 caliber
gun, the danger to the life of the accused ceased to be imminent; that in
grappling for the weapon, Dagani "controlled" the hands of Javier and
pushed them away from his body; that the appellants failed to produce the
two empty shells as physical evidence of the gunfire allegedly caused by
Javier; that no points of entry or bullet markings on the walls of the
canteen were shown; that, in light of these findings, no unlawful
aggression was present on the part of the victim; that the appellants failed
to prove that they were on official duty at the time of the incidence; that,
since it was not established that Javier actually fired his gun, the injury
inflicted upon him cannot be regarded as a necessary consequence of the
due performance of an official duty; that the appellants were acting in
conspiracy; that the qualifying circumstance of treachery attended the
killing, considering that Javier had been shot while his hands were being
held by Dagani and as his body was out of balance and about to fall; and
that the mitigating circumstance of voluntary surrender should be
appreciated in favor of the appellants.
The appellants appealed to the CA and assigned the following errors:
I CA reasoned, the instant case is criminal in nature which is under the
THE LOWER COURT GRAVELY ERRED IN NOT APPRECIATING SELF DEFENSE
ON THE PART OF THE ACCUSED.
II
THE LOWER COURT ERRED WHEN IT FAILED TO CONSIDER THE FACT THAT
THE ACCUSED-APPELLANTS WERE IN LAWFUL PERFORMANCE OF AN
OFFICIAL DUTY.
III
THE LOWER COURT GRAVELY AND SERIOUSLY ERRED IN RULING THAT
THERE WAS CONSPIRACY.
143
IV
THE LOWER COURT GRAVELY ERRED IN FINDING THAT THE PROSECUTION
WAS ABLE TO ESTABLISH BEYOND REASONABLE DOUBT THAT THE
ACCUSED ARE GUILTY OF MURDER.4
The CA rendered its Decision, the dispositive portion of which states:
WHEREFORE, the appealed judgment of conviction is MODIFIED.
Appellants are hereby sentenced to reclusion perpetua. The award for
attorney’s fees and appearance fees for counsel are hereby deleted. In all
the other aspects, the appealed decision is maintained.
Let the entire records of the case be elevated to the Supreme Court for the
mandated review.
SO ORDERED.5
The CA affirmed the findings of fact as well as the salient portions of the
RTC Decision, but deleted the award of attorney’s fees and the per
appearance fees of counsel since, the
control of the public prosecutor, and, additionally, the RTC failed to justify
this award in the body of its Decision. And last, the CA found that the RTC
erroneously applied the Indeterminate Sentence Law since the penalty for
Murder, at the time of the incident, was reclusion perpetua which is an
indivisible penalty to be imposed in its entirety, regardless of the attending
mitigating circumstance of voluntary surrender.
Appellants are now before this Court submitting for resolution the same
matters argued before the CA. Through their Manifestation dated February
11, 2003,6 appellants prayed to dispense with the filing of additional
briefs.
As of date, the records show that despite the efforts exerted by the surety
and the responsible law officers to locate the appellants, the latter could
not be found and have jumped bail.7
The appeal is partly meritorious.
Appellants argue that the courts a quo misappreciated the facts and erred
in finding that there was no unlawful aggression on the part of the victim.
They insist that the victim, Javier, had been armed with a revolver at the
time he was struggling with appellant Dagani; that the former "could have
easily killed the latter;" that, given the fact that Javier had been drinking,
"it is quite probable for Javier to act harshly and aggressively towards
peace officers such as the accused;"8 and that Javier actually fired three
shots from his .22 caliber gun.9
We are not convinced.
When self-defense is invoked, the burden of evidence shifts to the accused
to show that the killing was legally justified. Having owned the killing of the
victim, the accused should be able to prove to the satisfaction of the Court
the elements of self-defense in order to avail of this extenuating
circumstance. He must discharge this burden by clear and convincing
evidence. When successful, an otherwise felonious deed would be
excused, mainly predicated on the lack of criminal intent of the accused.
Self-defense requires that there be (1) an unlawful aggression by the
person injured or killed by the offender, (2) reasonable necessity of the
means employed to prevent or repel that unlawful aggression, and (3) lack
of sufficient provocation on the part of the person defending himself. All
these conditions must concur.10
Unlawful aggression, a primordial element of self-defense, would
presuppose an actual, sudden and unexpected attack or imminent danger
on the life and limb of a person – not a mere threatening or intimidating
attitude11 – but most importantly, at the time the defensive action was
taken against the aggressor.12 To invoke self-defense successfully, there
must have been an
unlawful and unprovoked attack that endangered the life of the accused,
who was then forced to inflict severe wounds upon the assailant by
employing reasonable means to resist the attack.13
144
In the instant case, the assertions that it was "quite probable" that Javier,
during the course of the struggle for the firearm, "could have easily killed"
the appellants are uncertain and speculative. There is aggression in
contemplation of the law only when the one attacked faces real and
immediate threat to one’s life. The peril sought to be avoided must be
imminent and actual, not just speculative.14
To sum up the matter, we quote the findings of the CA:
The defense was unable to prove that there was unlawful aggression on
the part of Javier. They were unable to present evidence that the victim
actually fired his gun. No spent shells from the .22 caliber pistol were
found and no bullets were recovered from the scene of the incident. Javier
also tested negative for gunpowder residue. Moreover, the trial court
found appellant Dagani’s account of the incident to be incredible and self-
serving. In sum, the defense presented a bare claim of self-defense
without any proof of the existence of its requisites.15
Even if it were established that Javier fired his gun as the appellants so
insist, the imminence of the danger to their lives had already ceased the
moment Dagani held down the victim and grappled for the gun with the
latter. After the victim had been thrown off-balance, there was no longer
any unlawful aggression
that would have necessitated the act of killing.16 When an unlawful
aggression that has begun no longer exists, the one who resorts to self-
defense has no right to kill or even to wound the former aggressor.17
When Javier had been caught in the struggle for the possession of the gun
with appellant Dagani, the grave peril envisaged by appellant Santiano,
which impelled him to fire at the victim, had then ceased to a reasonable
extent,18 and undoubtedly, Santiano went beyond the call of self-
preservation when he proceeded to inflict the excessive and fatal injuries
on Javier, even when the alleged unlawful aggression had already
ceased.19
The second element of self-defense demands that the means employed to
neutralize the unlawful aggression are reasonable and necessary. It is
settled that reasonable necessity of the means employed does not imply
material commensurability between the means of attack and defense.
What the law requires is rational equivalence.20 The circumstances in their
entirety which surround the grappling of the firearm by Dagani and Javier,
such as the nature and number of gunshot wounds sustained by the
victim21 which amounted to two fatal wounds,22 that Dagani was able to
restrain the hands of Javier and push
them away from his body,23 that Dagani was larger than Javier and had
finished Special Weapons and Tactics (SWAT) hand-to-
hand combat training,24 and Javier, as admitted by the appellants, was
inebriated at the time of the incident,25 do not justify appellant Santiano’s
act of fatally shooting the victim twice.26
All things considered, the appellants’ plea of self-defense is not
corroborated by competent evidence. The plea of self-defense cannot be
justifiably entertained where it is not only uncorroborated by any separate
competent evidence but is in itself extremely doubtful.27 Whether the
accused acted in self-defense is a question of fact. Like alibi, the
affirmative defense of self-defense is inherently weak because, as
experience has demonstrated, it is easy to fabricate and difficult to
disprove.28 This Court, therefore, finds no reversible error on the part of
the courts a quo in rejecting the claim of self-defense.
Appellants set up the defense that they were in the lawful performance of
their official duties. They specifically aver that they had been ordered by
their desk officer to proceed to the canteen in response to a telephone call
stating that there was a group "creating trouble;" that they were in the call
of duty and exercising their functions and responsibilities as members of
the PNR Civil Security Office to preserve peace and order and
protect the lives and property in the PNR Compound;29 and that, invoking
jurisprudence, as security officers in the performance of duty, like the
police, they must stand their ground and overcome the opponent, and the
force that may be exerted must differ from that which ordinarily may be
offered in self-defense.30
145
Article 11 of the Revised Penal Code provides that a person who acts in the
fulfillment of a duty or in the lawful exercise of a right or office does not
incur any criminal liability. Two requisites must concur before this defense
can prosper: 1) the accused must have acted in the performance of a duty
or in the lawful exercise of a right or office; and 2) the injury caused or the
offense committed should have been the necessary consequence of such
lawful exercise.31 These requisites are absent in the instant case.
As found by the CA:
The defense failed to prove that the security officers were in fact on duty
at the time they were at the canteen. The trial court gave weight to the
fact that the appellants were unable to submit their daily time records to
show that they were on duty at the time. Appellants’ assertion that they
were ordered to go on 24-hour duty was belied by PNR Security
Investigator Rolando Marinay’s testimony that PNR security officers work
in two 12-hour shifts, from 7:00 a.m. to 7:00 p.m. and from 7:00 p.m. to
7:00 a.m.
Moreover, since it was not established that Javier fired his gun, the injury
inflicted upon him cannot be regarded as a necessary consequence of
appellants’ due performance of an official duty.32
As stated, considering that the imminent or actual danger to the life of the
appellants had been neutralized when Dagani grappled with Javier and
restrained his hands; that Javier had been thrown off-balance; that Dagani
had been specially trained for these purposes; and that Javier had been
drinking immediately prior to the scuffle, this Court holds that the fatal
injuries that appellant Santiano inflicted on the victim cannot be deemed
to be necessary consequences of the performance of his duty as a PNR
security officer.33 While it is recognized that police officers – if indeed the
appellants can be likened to them – must stand their ground and
overwhelm their opponents, in People v. Ulep,34 this Court counseled:
The right to kill an offender is not absolute, and may be used only as a last
resort, and under circumstances indicating that the offender cannot
otherwise be taken without bloodshed. The law does not clothe police
officers with authority to arbitrarily judge the necessity to kill. It may be
true that police officers sometimes find themselves in a dilemma when
pressured by a situation where an immediate and decisive, but legal,
action is needed. However, it must be stressed that the judgment and
discretion of police officers in the performance of their duties must be
exercised neither capriciously nor oppressively, but within reasonable
limits. In the absence of a clear and legal provision to the contrary, they
must act in conformity with the dictates of a sound discretion, and within
the spirit and purpose of the law. We cannot countenance trigger-happy
law enforcement officers who indiscriminately employ force and violence
upon the persons they are apprehending. They must always bear in mind
that although they are dealing with criminal elements against whom
society must be protected, these criminals are also human beings with
human rights.35
But this Court cannot agree with the findings of the courts a quo that the
appellants were in conspiracy.
The RTC simply held:
The Information cited conspiracy of the accused. Since it can also be
committed thru simultaneous/concerted action and considering that Javier
was shot by Santiano while being held by Dagani, under jurisprudence,
conspiracy is present.36
The tenor of the factual findings of the CA is equally unsatisfactory:
Moreover, the facts show that Javier was shot by appellant Santiano as he
was being subdued by appellant Dagani. The trial court held that the
manner of the attack was indicative of a joint purpose and design by the
appellants.37
Courts must judge the guilt or innocence of the accused based on facts and
not on mere conjectures, presumptions, or suspicions.38 Other than the
plain fact that the victim had been shot by one of the accused while being
held by a co-accused, there is no other evidence that the appellants were
animated by the same purpose or were moved by a previous common
accord. It follows that the liability of the accused must be determined on
an individual basis. While no formal agreement is necessary to establish
146
conspiracy because conspiracy may be inferred from the circumstances
attending the commission of the crime, yet, conspiracy must be
established by clear and convincing evidence.39
This Court has held that even if all the malefactors joined in the killing,
such circumstance alone does not satisfy the requirement of conspiracy
because the rule is that
neither joint nor simultaneous action is per se sufficient proof of
conspiracy. Conspiracy must be shown to exist
as clearly and convincingly as the commission of the offense itself.40 Thus,
even assuming that Javier was simultaneously attacked, this does not
prove conspiracy. No evidence was presented to show that the appellants
planned to kill Javier or that Dagani’s overt acts facilitated that alleged
plan. The prosecution did not establish that the act of Dagani in trying to
wrestle the gun from Javier and in the process, held the latter’s hands, was
for the purpose of enabling Santiano to shoot at Javier. The prosecution
had the burden to show Dagani’s intentional participation to the
furtherance of a common design and purpose41 or that his action was all
part of a scheme to kill Javier. That Dagani did not expect Santiano to
shoot the victim is established when Santiano testified that Dagani
"seem[ed] to be shocked, he was standing and looking at the victim" as
Javier gradually fell to the ground.42 And since Dagani’s conviction can
only be sustained if the crime had been carried out through a conspiracy
duly proven, in view of the failure of the prosecution to discharge that
burden, this Court is constrained to acquit him.
And this Court cannot say that treachery attended the attack. The RTC
declared:
[T]he Court believes that Javier was shot while his body was out-balanced
and about to fall to the right side and while his hands were being held by
Dagani. Javier, therefore, was shot at when he has no means to defend
himself, hence, the killing was attended by the qualifying circumstance of
treachery.43
which the CA affirmed as follows:

The findings of the court a quo clearly showed that Javier was being held
down and could not effectively use his weapon. As such, the trial court
held that Javier could not be considered to be an armed man as he was
being held down and was virtually helpless.
It has been held that when an assault is made with a deadly weapon upon
an unarmed and unsuspecting victim who [was] given no immediate
provocation for the attack and under conditions which made it impossible
for him to evade the attack, flee or make [a] defense, the act is properly
qualified as treachery, and the homicide resulting therefrom is classified as
murder.44 x x x
Treachery under par.16 of Article 14 of the Revised Penal Code is defined
as the deliberate employment of means, methods or forms in the
execution of a crime against persons which tend directly and specially to
insure its execution, without risk to the offender arising from the defense
which the intended victim might raise. Treachery is present when two
conditions concur, namely: (1) that the means, methods and forms of
execution employed gave the person attacked no opportunity to defend
himself or to retaliate; and (2) that such means, methods and forms of
execution were deliberately and consciously adopted by the accused
without danger to his person.45
This Court has held that the suddenness of the attack, the infliction of the
wound from behind the victim, the vulnerable position of the victim at the
time the attack was made, or the fact that the victim was unarmed, do not
by themselves render the
attack as treacherous.46 This is of particular significance in a case of an
instantaneous attack made by the accused whereby he gained an
advantageous position over the victim when the latter accidentally fell and
was rendered defenseless.47 The means employed for the commission of
the crime or the mode of attack must be shown to have been consciously
or deliberately adopted by the accused to insure the consummation of the
crime and at the same time eliminate or reduce the risk of retaliation from
the intended victim.48 For the rules on treachery to apply, the sudden
attack must have been preconceived by the accused, unexpected by the
147
victim, and without provocation on the part of the latter.49 Treachery is
never presumed. Like the rules on conspiracy, it is required that the
manner of attack must be shown to have been attended by treachery as
conclusively as the crime itself.50
The prosecution failed to convincingly prove that the assault by the
appellants had been deliberately adopted as a mode of attack intended to
insure the killing of Javier and without the latter having the opportunity to
defend himself. Other than the bare fact that Santiano shot Javier while
the latter had been struggling with Dagani over the possession of the .22
caliber gun, no other fact had been adduced to show that the appellants
consciously planned or predetermined the methods to insure the
commission of the crime, nor had the risk of the victim to
retaliate been eliminated during the course of the struggle over the
weapon, as the latter, though struggling, had not been
completely subdued. As already stated, this Court must emphasize that the
mere suddenness of the attack, or the vulnerable position of the victim at
the time of the attack, or yet even the fact that the victim was unarmed,
do not by themselves make the attack treacherous.51 It must be shown
beyond reasonable doubt that the means employed gave the victim no
opportunity to defend himself or retaliate, and that such means had been
deliberately or consciously adopted without danger to the life of the
accused.52
For these reasons, the Court is inclined to look upon the helpless position
of Javier as merely incidental to the attack, and that the decision to shoot
Javier was made in an instant.53
Considering the rule that treachery cannot be inferred but must be proved
as fully and convincingly as the crime itself, any doubt as to its existence
must be resolved in favor of Santiano. Accordingly, for failure of the
prosecution to prove treachery to qualify the killing to Murder, appellant
Santiano may only be convicted of Homicide.54 The penalty, therefore,
under Article 249 of the Revised Penal Code, as amended, is reclusion
temporal.
The Office of the Solicitor General is correct in that the courts a quo failed
to consider the aggravating circumstance of
taking advantage of official position under Article 14 (1) of the Revised
Penal Code, since the accused, a PNR security officer
covered by the Civil Service, committed the crime with the aid of a gun he
had been authorized to carry as such.55 Considering that the mitigating
circumstance of voluntary surrender, as duly appreciated by the courts a
quo, shall be offset against the aggravating circumstance of taking
advantage of official position, the penalty should be imposed in its medium
period, pursuant to Article 64 (4) of the aforesaid Code.
Applying the Indeterminate Sentence Law, the sentence of appellant
Santiano will consist of a minimum that is anywhere within the full range
of prision mayor, and a maximum which is anywhere within reclusion
temporal in its medium period. This Court hereby fixes it to be from eight
(8) years and one (1) day of prision mayor as minimum, to fourteen (14)
years, eight (8) months, and one (1) day of reclusion temporal, as
maximum.
As to the award of damages, prevailing jurisprudence entitles the heirs of
the deceased to the amount of P50,000.00 as civil indemnity for the death
of the victim without need of any evidence or proof of damages.56
The CA erred in deleting the attorney’s fees and per appearance fees for
lack of factual basis. Although the CA is correct in noting that the RTC failed
to justify these awards in the body of its Decision, this appeal opens the
entire case for review and, accordingly, the records show that the
foregoing
amounts had been stipulated by the parties,57 thereby dispensing with the
need to prove the same.58
As to moral damages, however, the widow of the victim, Erlinda Javier, is
not entitled to the same. She did not testify on any mental anguish or
emotional distress which she suffered as a result of her husband’s death.
No other heirs of Javier testified in the same manner.59
148
Inasmuch as the aggravating circumstance of taking advantage of official
position attended the killing, the Court awards exemplary damages in the
amount of P25,000.00 in accordance with Articles 2230 and 2234 of the
Civil Code and prevailing jurisprudence.60
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No. 15304
dated June 20, 2002 is MODIFIED. Appellant Otello Santiano y Leonida is
found GUILTY beyond reasonable doubt of Homicide and is sentenced to
suffer the penalty of an indeterminate sentence from eight (8) years and
one (1) day of prision mayor as minimum to fourteen (14) years, eight (8)
months, and one (1) day of reclusion temporal as maximum. Appellant
Santiano is further ordered to pay the heirs of the victim the amounts of
P50,000.00 as death indemnity, P31,845.00 as funeral and burial expenses,
P25,000.00 as exemplary damages, P30,000.00 as attorney’s fees and
P1,000.00
per appearance of counsel. Appellant Santiano shall be credited with the
full extent of his preventive imprisonment.
Appellant Rolando Dagani y Reyes is hereby ACQUITTED.
SO ORDERED.
G.R. No. 149152 February 2, 2007
RUFINO S. MAMANGUN, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:
In this petition for review under Rule 45 of the Rules of Court, petitioner
Rufino Mamangun y Silverio seeks the reversal of the Decision1 dated
January 19, 2001 (promulgated on February 13, 2001) of the
Sandiganbayan in its Criminal Case No. 21131, convicting him of the crime
of Homicide.
The factual backdrop:
On September 12, 1994, herein petitioner, then a police officer, was
charged before the Sandiganbayan with the crime of Murder, allegedly
committed, per the indicting Information,2 docketed as Criminal Case No.
21131, as follows:
That on or about the 31st day of July 1992, in the Municipality of
Meycauyan, (sic) Province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the said accused Rufino S. Mamangun,
a public officer, being then a Police Officer (PO2), duly appointed as such
and acting in relation to his office, armed with a gun, with intent to kill, did
then and there willfully, unlawfully and feloniously, with treachery, evident
premeditation and abuse of superior strength, attack, assault and shoot
one Gener M. Contreras with the said gun, hitting the latter on his body,
thereby inflicting (sic) him serious physical injuries which directly cause
(sic) his death.
CONTRARY TO LAW.
On arraignment, petitioner, as accused below, duly assisted by a counsel
de oficio, entered a plea of "Not Guilty."
In the ensuing trial, the prosecution presented in evidence the testimonies
of Crisanto Ayson (Ayson), an alleged eyewitness, and Dr. Benito Caballero,
then the designated Medico-Legal Officer of Bulacan who performed an
autopsy on the cadaver of the victim.
For its part, the defense adduced in evidence the testimonies of the
accused himself, Rufino Mamangun, his co-policemen at the Philippine
National Police (PNP), namely, PO2 Carlito Cruz, PO4 Hobert O. Diaz and
Police Investigator SPO-1 Hernando B. Banez, all assigned at the
Meycauayan Police Station; and those of Lorenzo S. Abacan and Rogelio
Ingco, son and son-in-law, respectively, of Antonio Abacan, owner of the
house on which rooftop the shooting of the victim took place.
149
It is not disputed that on July 31, 1992, at about 8:00 in the evening, in
Brgy. Calvario, Meycauayan, Bulacan a certain Liberty Contreras was heard
shouting, "Magnanakaw…Magnanakaw." Several residents responded and
thereupon chased the suspect who entered the yard of Antonio Abacan
and proceeded to the rooftop of Abacan’s house.
At about 9:00 o’clock that same evening, the desk officer of the
Meycauayan PNP Police Station, upon receiving a telephone call that a
robbery-holdup was in progress in Brgy. Calvario, immediately contacted
and dispatched to the scene the crew of Patrol Car No. 601 composed of
Team Leader SPO1 Andres Legaspi, with PO2 Eugenio Aminas and herein
petitioner PO2 Rufino S. Mamangun; and Patrol Car No. 602 composed of
Team Leader PO3 Sandiego San Gabriel, with PO2 Carlito Cruz and PO2
Hobert Diaz. With the permission of Abacan, petitioner Mamangun, PO2
Diaz and PO2 Cruz went to the rooftop of the house whereat the suspect
was allegedly taking refuge.
The three policemen, i.e., petitioner, Diaz and Cruz, each armed with a
drawn handgun, searched the rooftop. There, they saw a man whom they
thought was the robbery suspect. At that instance, petitioner Mamangun,
who was walking ahead of the group, fired his handgun once, hitting the
man. The man turned out to be Gener Contreras (Contreras) who was not
the robbery suspect.
Contreras died from the gunshot wound. The autopsy conducted by Dr.
Benito B. Caballero yielded the following findings:
The cause of death was "Shock due to massive external and internal
hemorrhage due to multiple gunshot wounds in the left arm side of the
thorax, penetrating the left lung and vertebral column." There were
several wounds caused by one (1) bullet.
As shown on the sketch of human body attached to the Certificate of
Death, and as testified on by Dr. Caballero, the bullet entered through the
"lower third of the left arm, left side of the thorax and it penetrated the
left lung and vertebral column and that is where the slug was found." From
a layman’s appreciation of the sketch, the bullet entered the outer, upper
left arm of the victim, exited through the inner side of the said upper left
arm, a little lower than the left armpit and the slug lodging on the victim’s
back where it was recovered at the vertebral column.3
From the foregoing admitted or undisputed facts, the prosecution and the
defense presented conflicting versions as to how the fatal shooting of
Contreras by petitioner Mamangun actually happened.
According to Ayson, the lone eyewitness for the prosecution, he
accompanied the three policemen (Mamangun, Diaz and Cruz) to the
rooftop of Abacan’s house. He was following petitioner Mamangun who
was ahead of the group. They passed through the second-floor door of the
house to the rooftop. The roof was lighted by an incandescent bulb from
an adjacent house. He was beside Mamangun when they saw, some four
to five arms-length away, a man whom he (witness) recognized as Gener
Contreras. Mamangun pointed his .45 cal. pistol at the man, who instantly
exclaimed, "Hindi ako, hindi ako!," to which Mamangun replied, "Anong
hindi ako?" Before he (Ayson) could say anything, Mamangun fired his gun,
hitting the man who turned out to be Contreras. He (witness) approached
the victim who was then lying on his left side unconscious. He brought
down the victim and they rushed him to the hospital where he died at
about 10:00 o’clock that same evening.
The defense has its own account of what purportedly actually
transpired.1awphi1.net
PO2 Mamangun, along with PO2 Cruz and PO2Diaz, denied the presence of
Ayson at the rooftop during the shooting incident. Corroborating one
another, the three testified that they were the only ones at the scene of
the shooting, and that it was dark. They claimed that each of them, with
Mamangun on the lead, went on separate directions around a water tank.
As they met each other at the other side of the tank, PO2 Cruz pointed to a
person crouching at the edge of the roof of the garage. Thinking that the
person was the suspect they were looking for, Mamangun chased said
person. They announced that they were police officers but the person
continued to run in a crouching position until Mamangun caught up with
him and shouted, "Pulis. Tigil," whereupon the person suddenly stopped,
turned around, faced Mamangun, and raised a stainless steel pipe towards
150
the latter’s head but Mamangun was able to evade the attack. This
prompted Mamangun to shoot the person on the left arm. All three
claimed that it was only at this point that PO2 Cruz and Diaz approached
Contreras who told them, "Hindi ako. Hindi ako." Mamangun went near
Contreras and asked, "Why did you go to the rooftop? You know there are
policemen here." Contreras was thereafter brought to the hospital where
he died. After the shooting incident, Mamangun reported the same to the
desk officer, POI Filomeno de Luna, who advised him to remain in the
police station. De Luna directed Police Investigator Hernando Banez to
investigate the incident. That same evening, Investigator Banez went to
the place where the shooting happened. Banez allegedly found a steel pipe
about three (3) feet long on the depressed portion of the roof.
On January 19, 2001, after due proceedings, the Sandiganbayan came out
with its decision4 finding the petitioner guilty beyond reasonable doubt of
only the crime of Homicide. In so finding, the Sandiganbayan did not
appreciate the presence of the aggravating circumstances of treachery,
evident premeditation and abuse of superior strength to qualify the killing
to Murder. But even as the said court rejected the petitioner’s claim that
the shooting was justified by self-defense, it nonetheless ruled that the
crime of Homicide was attended by an incomplete justifying circumstance
of the petitioner having acted in the performance of his duty as a
policeman, and also appreciated in his favor the generic mitigating
circumstance of voluntary surrender. Dispositively, the decision reads:
WHEREFORE, the accused, RUFINO S. MAMANGUN, is hereby found
GUILTY beyond reasonable doubt of the crime of Homicide, defined and
penalized under Article 249, Revised Penal Code, and taking into account
the attendance of one (1) privileged mitigation (sic) circumstance, one
generic circumstance and no aggravating circumstance, he is hereby
sentenced under the Indeterminate Sentence Law, to suffer the penalty of
imprisonment of from Three (3) Years and Three (3) Months of prision
correctional as minimum, to Seven (7) years of prision mayor, as
maximum, to indemnify the heirs (parents) of Gener Contreras in the total
amount of P352,025.00, and to past the costs.
SO ORDERED.
Unable to accept the judgment of conviction, petitioner is now with this
Court via the present recourse alleging that the Sandiganbayan committed
reversible error in failing to apply paragraph 5, Article 11, of the Revised
Penal Code, which would have absolved him from criminal liability on the
basis of his submission that the shooting in question was done in the
performance of a duty or in the lawful exercise of a right or office.
First off, petitioner insists that the shooting, which ultimately caused the
demise of Contreras, was justified because he was repelling Contreras’
unlawful attack on his person, as Contreras was then about to strike him
on the head with a steel pipe.
We are not persuaded.
Well-settled is the rule that factual findings of the Sandiganbayan are
conclusive upon the Court except where: (1) the conclusion is a finding
grounded entirely on speculations, surmises and conjectures; (2) the
inference made is manifestly mistaken; (3) there is grave abuse of
discretion; (4) the judgment is based on misapprehension of facts and the
findings of fact are premised on the absence of evidence and are
contradicted by the evidence on record.5 None of these exceptions obtains
in this case.
Having admitted6 the fatal shooting of Contreras on the night of July 31,
1992, petitioner is charged with the burden of adducing convincing
evidence to show that the killing was done in the fulfillment of his duty as
a policeman.
The justifying circumstance of fulfillment of duty under paragraph 5, Article
II, of the Revised Penal Code may be invoked only after the defense
successfully proves that: (1) the accused acted in the performance of a
duty; and (2) the injury inflicted or offense committed is the necessary
consequence of the due performance or lawful exercise of such duty.7
Concededly, the first requisite is present in this case. Petitioner, a police
officer, was responding to a robbery-holdup incident. His presence at the
situs of the crime was in accordance with the performance of his duty.
However, proof that the shooting and ultimate death of Contreras was a
151
necessary consequence of the due performance of his duty as a policeman
is essential to exempt him from criminal liability.
As we see it, petitioner’s posturing that he shot Contreras because the
latter tried to strike him with a steel pipe was a mere afterthought to
exempt him from criminal liability.
We see no plausible basis to depart from the Sandiganbayan’s findings that
there was no reason for the petitioner to shoot Contreras. The latter was
unarmed and had already uttered, "Hindi po ako, Hindi po ako" before the
petitioner fatally shot him on the left arm. Prosecution witness Ayson, who
was then behind the petitioner when the latter shot Contreras, testified
that to the victim’s utterances, the petitioner even responded, "Anong
hindi ako," and immediately shot Contreras.8 As correctly observed by the
Sandiganbayan:
Besides being self-serving (with respect to the accused) and biased (with
respect to his co-policemen-witnesses), We find (1) the claim of the
accused and his co-policemen-witnesses that the victim (Contreras)
attacked the said accused and (2) their seemingly "positive" identification
of the stainless steel pipe (more of a rod) as his weapon, to be of doubtful
credibility, for the following reasons:
(1) We have no doubt that, as claimed by PO2 Carlito Cruz and PO2 Hobert
Diaz, the three policemen appropriately identified themselves as police
officers as they started chasing the man they saw "crouching," and, as
claimed by accused PO2 Rufino Mamangun, that, as he was about to catch
up with said man, he shouted, "Pulis! Tigil!" With all these introductions
and forewarnings, it is utterly incredible and contrary to human experience
that, that man, later identified to be Gener Contreras and admittedly not
the person they were looking for, purportedly armed only with a stainless
steel "lead" pipe (more of a rod) would suddenly stop, turn around and
attack one of the three policemen who were chasing him, one after the
other, with drawn guns.
(2) When the victim (Gener Contreras) fell down after being shot by
accused PO2 Mamangun, and as the latter went near the fallen victim, said
accused asked, "Why did you go to the rooftop. You know there are
policemen here." He admits that he did not ask the victim, "Why did you
try to hit me, if you are not the one?" This admission clearly belies the
claim of the police-witnesses that Gener Contreras attacked the accused
policeman with an iron pipe when he was shot, for the accused should
have asked the latter question.
(3) The location of the entry of the bullet fired by accused Mamangun
which is at the outer left arm at about the bicep of the victim and its
trajectory as it penetrated his body hitting his vital organs along the way
belies the claim of the accused that the victim was facing him and had just
missed his head with an iron pipe, as instead the victim must have
instinctively shielded his body with his left arm.
Moreover, petitioner’s pretense that Contreras struck him with a steel pipe
is intriguing. As it is, petitioner did not report the same to Police
Investigator Banez when he reported back to the police station after the
shooting incident. It was only when a lead pipe was recovered from the
scene and brought to the police station that petitioner conveniently
remembered Contreras trying to hit him with a pipe. Such a vital
information could not have escaped the petitioner’s mind. We are thus
inclined to believe that the alleged actuation of Contreras, which could
have justified petitioner’s shooting him, was nothing but a concocted story
to evade criminal liability. Indeed, knowing that he shot Contreras, the
least that the petitioner should have done was to bring with him to the
police station the very pipe with which Contreras tried to attack him. As
borne by the evidence, however, it was only after a police investigator
referred to the scene that the lead pipe surfaced.
Petitioner would likewise argue that the testimony of prosecution witness
Ayson was incredible and riddled with inconsistencies.
The alleged contradictions cited by the petitioner, i.e. where the victim
was shot, where he died, and as to whether Ayson left his house after the
shooting incident, are but minor details which do not affect Ayson’s
credibility. We have held time and again that few discrepancies and
inconsistencies in the testimony of a witness referring to minor details and
not in actuality touching upon the central fact of the crime, do not impair
his credibility. Quite the contrary, such minor inconsistencies even tend to
152
strengthen credibility because they discount the possibility that the
testimony was rehearsed.9
For sure, the record reveals that Ayson’s answers to the questions
propounded by the defense counsel are clear and categorical. As to where
the victim died, Ayson clarified that the victim was already at the rooftop
even before the arrival of the police officers. As to why he was not able to
warn Mamangun that the victim was his relative, Ayson explained that he
was not able to utter any word because when Contreras said "Hindi ako.
Hindi ako," petitioner suddenly fired at the latter.10 As to the claim that
Ayson was also on the roof, record shows that the robbery-holdup
happened at around 8:00 in the evening. Before the policemen arrived,
Ayson and Contreras were already pursuing the robber.11 Ayson also
testified that when the victim was shot by the petitioner, the former fell on
his left side unconscious; that he did not leave his house after the incident
because he was afraid that the policemen would detain him.12
Self-defense, whether complete or incomplete, cannot be appreciated as a
valid justifying circumstance in this case. For, from the above admitted,
uncontroverted or established facts, the most important element of
unlawful aggression on the part of the victim to justify a claim of self
defense was absent. Lacking this essential and primary element of
unlawful aggression, petitioner’s plea of self-defense, complete or
incomplete, must have to fail.
To be sure, acts in the fulfillment of a duty, without more, do not
completely justify the petitioner’s firing the fatal gunshot at the victim.
True, petitioner, as one of the policemen responding to a reported robbery
then in progress, was performing his duty as a police officer as well as
when he was trying to effect the arrest of the suspected robber and in the
process, fatally shoot said suspect, albeit the wrong man. However, in the
absence of the equally necessary justifying circumstance that the injury or
offense committed be the necessary consequence of the due performance
of such duty, there can only be incomplete justification, a privileged
mitigating circumstance under Articles 13 and 69 of the Revised Penal
Code.
There can be no quibbling that there was no rational necessity for the
killing of Contreras. Petitioner could have first fired a warning shot before
pulling the trigger against Contreras who was one of the residents chasing
the suspected robber.
All told, we find no reversible error committed by the Sandiganbayan in
convicting the petitioner of the crime of Homicide attended by the
privileged mitigating circumstance of incomplete justifying circumstance of
having acted in the performance of his duty as a policeman and the generic
mitigating circumstance of voluntary surrender.
IN VIEW WHEREOF, the instant petition is DENIED and the assailed decision
of the Sandiganbayan is AFFIRMED in all respects.
No pronouncement as to costs.
SO ORDERED.
[G.R. No. 103501-03. February 17, 1997]
LUIS A. TABUENA, petitioner, vs. HONORABLE SANDIGANBAYAN, and THE
PEOPLE OF THE PHILIPPINES, respondents.
[G.R. No. 103507. February 17, 1997]
ADOLFO M. PERALTA, petitioner, vs. HON. SANDIGANBAYAN (First
Division), and THE PEOPLE OF THE PHILIPPINES, represented by the
OFFICE OF THE SPECIAL PROSECUTOR, respondents.
DECISION
FRANCISCO, J.:
Through their separate petitions for review,[1] Luis A. Tabuena and Adolfo
M. Peralta (Tabuena and Peralta, for short) appeal the Sandiganbayan
decision dated October 12, 1990,[2] as well as the Resolution dated
December 20, 1991[3] denying reconsideration, convicting them of
153
malversation under Article 217 of the Revised Penal Code. Tabuena and
Peralta were found guilty beyond reasonable doubt of having malversed
the total amount of P55 Million of the Manila International Airport
Authority (MIAA) funds during their incumbency as General Manager and
Acting Finance Services Manager, respectively, of MIAA, and were thus
meted the following sentence:
(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to
suffer the penalty of imprisonment of seventeen (17) years and one (1) day
of reclusion temporal as minimum to twenty (20) years of reclusion
temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS
(P25,000,000.00), the amount malversed. He shall also reimburse the
Manila International Airport Authority the sum of TWENTY-FIVE MILLION
PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification
from public office.
(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to
suffer the penalty of imprisonment of seventeen (17) years and one (1) day
of reclusion temporal as minimum, and twenty (20) years of reclusion
temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS
(P25,000,000.00), the amount malversed. He shall also reimburse the
Manila International Airport Authority the sum of TWENTY-FIVE MILLION
PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification
from public office.
(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M.
Peralta are each sentenced to suffer the penalty of imprisonment of
seventeen (17) years and one (1) day of reclusion temporal as minimum
and twenty (20) years of reclusion temporal as maximum and for each of
them to pay separately a fine of FIVE MILLION PESOS (P5,000,000.00) the
amount malversed. They shall also reimburse jointly and severally the
Manila International Airport Authority the sum of FIVE MILLION PESOS
(P5,000,000.00).
In addition, they shall both suffer the penalty of perpetual special
disqualification from public office.
A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant
General Manager of MIAA, has remained at large.
There were three (3) criminal cases filed (nos. 11758, 11759 and 11760)
since the total amount of P55 Million was taken on three (3) separate
dates of January, 1986. Tabuena appears as the principal accused - he
being charged in all three (3) cases. The amended informations in criminal
case nos. 11758, 11759 and 11760 respectively read:
That on or about the 10th day of January, 1986, and for sometime
subsequent thereto, in the City of Pasay, Philippines, and within the
jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo
G. Dabao, both public officers, being then the General Manager and
Assistant General Manager, respectively, of the Manila International
Airport Authority (MIAA), and accountable for public funds belonging to
the MIAA, they being the only ones authorized to make withdrawals
against the cash accounts of MIAA pursuant to its board resolutions,
conspiring, confederating and confabulating with each other, did then and
there wilfully, unlawfully, feloniously, and with intent to defraud the
government, take and misappropriate the amount of TWENTY FIVE
MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the
issuance of a managers check for said amount in the name of accused Luis
A. Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3
in the PNB Extension Office at the Manila International Airport in Pasay
City, purportedly as partial payment to the Philippine National
Construction Corporation (PNCC), the mechanics of which said accused
Tabuena would personally take care of, when both accused well knew that
there was no outstanding obligation of MIAA in favor of PNCC, and after
the issuance of the above-mentioned managers check, accused Luis A.
Tabuena encashed the same and thereafter both accused misappropriated
and converted the proceeds thereof to their personal use and benefit, to
the damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
154
xxx
That on or about the 16th day of January, 1986, and for sometime
subsequent thereto, in the City of Pasay, Philippines and within the
jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo
G. Dabao, both public officers, being then the General Manager and
Assistant General Manager, respectively, of the Manila International
Airport Authority (MIAA), and accountable for public funds belonging to
the MIAA, they being the only ones authorized to make withdrawals
against the cash accounts of MIAA pursuant to its board resolutions,
conspiring, confederating and confabulating with each other, did then and
there wilfully, unlawfully, feloniously, and with intent to defraud the
government, take and misappropriate the amount of TWENTY FIVE
MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the
issuance of a managers check for said amount in the name of accused Luis
A. Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3
in the PNB Extension Office at the Manila International Airport in Pasay
City, purportedly as partial payment to the Philippine National
Construction Corporation (PNCC), the mechanics of which said accused
Tabuena would personally take care of, when both accused well knew that
there was no outstanding obligation of MIAA in favor of PNCC, and after
the issuance of the above-mentioned managers check, accused Luis A.
Tabuena encashed the same and thereafter both accused misappropriated
and converted the proceeds thereof to their personal use and benefit, to
the damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
xxx
That on or about the 29th day of January, 1986, and for sometime
subsequent thereto, in the City of Pasay, Philippines, and within the
jurisdiction of this Honorable Court, accused Luis A. Tabuena and Adolfo
M. Peralta, both public officers, being then the General Manager and
Acting Manager, Financial Services Department, respectively, of the Manila
International Airport Authority (MIAA), and accountable for public funds
belonging to the MIAA, they being the only ones authorized to make
withdrawals against the cash accounts of MIAA pursuant to its board
resolutions, conspiring, confederating and confabulating with each other,
did then and there wilfully, unlawfully, feloniously, and with intent to
defraud the government, take and misappropriate the amount of FIVE
MILLION PESOS (P5,000,000.00) from MIAA funds by applying for the
issuance of a managers check for said amount in the name of accused Luis
A. Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3
in the PNB Extension Office at the Manila International Airport in Pasay
City, purportedly as partial payment to the Philippine National
Construction Corporation (PNCC), the mechanics of which said accused
Tabuena would personally take care of, when both accused well knew that
there was no outstanding obligation of MIAA in favor of PNCC, and after
the issuance of the above-mentioned managers check, accused Luis A.
Tabuena encashed the same and thereafter both accused misappropriated
and converted the proceeds thereof to their personal use and benefit, to
the damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
Gathered from the documentary and testimonial evidence are the
following essential antecedents:
Then President Marcos instructed Tabuena over the phone to pay directly
to the presidents office and in cash what the MIAA owes the Philippine
National Construction Corporation (PNCC), to which Tabuena replied, Yes,
sir, I will do it. About a week later, Tabuena received from Mrs. Fe Roa-
Gimenez, then private secretary of Marcos, a Presidential Memorandum
dated January 8, 1986 (hereinafter referred to as MARCOS Memorandum)
reiterating in black and white such verbal instruction, to wit:
Office of the President
of the Philippines
Malacaang
January 8, 1986
MEMO TO: The General Manager
155
Manila International Airport Authority
You are hereby directed to pay immediately the Philippine National
Construction Corporation, thru this Office, the sum of FIFTY FIVE MILLION
(P55,000,000.00) PESOS in cash as partial payment of MIAAs account with
said Company mentioned in a Memorandum of Minister Roberto Ongpin
to this Office dated January 7, 1985 and duly approved by this Office on
February 4, 1985.
Your immediate compliance is appreciated.
(Sgd.) FERDINAND MARCOS.[4]
The January 7, 1985 memorandum of then Minister of Trade and Industry
Roberto Ongpin referred to in the MARCOS Memorandum, reads in full:
MEMORANDUM
F o r : The President
F r o m : Minister Roberto V. Ongpin
D a t e : 7 January 1985
Subject : Approval of Supplemental Contracts and
Request for Partial Deferment of Repayment of PNCCs Advances for MIA
Development Project
May I request your approval of the attached recommendations of Minister
Jesus S. Hipolito for eight (8) supplemental contracts pertaining to the MIA
Development Project (MIADP) between the Bureau of Air Transport (BAT)
and Philippine National Construction Corporation (PNCC), formerly CDCP,
as follows:
1. Supplemental Contract No. 12
Package Contract No. 2
P11,106,600.95
2. Supplemental Contract No. 13
5,758,961.52
3. Supplemental Contract No. 14
Package Contract No. 2
4,586,610.80
4. Supplemental Contract No. 15
1,699,862.69
5. Supplemental Contract No. 16
Package Contract No. 2
233,561.22
6. Supplemental Contract No. 17
Package Contract No. 2
8,821,731.08
156
7. Supplemental Contract No. 18
Package Contract No. 2
6,110,115.75
8. Supplemental Contract No. 3
Package Contract No. II
16,617,655.49
(xerox copies only; original memo was submitted to the Office of the
President on May 28, 1984)
In this connection, please be informed that Philippine National
Construction Corporation (PNCC), formerly CDCP, has accomplishment
billings on the MIA Development Project aggregating P98.4 million,
inclusive of accomplishments for the aforecited contracts. In accordance
with contract provisions, outstanding advances totalling P93.9 million are
to be deducted from said billings which will leave a net amount due to
PNCC of only P4.5 million.
At the same time, PNCC has potential escalation claims amounting to P99
million in the following stages of approval/evaluation:
Approved by Price Escalation Committee (PEC) but pended for lack of
funds
P 1.9 million
Endorsed by project consultants and currently being evaluated by PEC
30.7 million

Submitted by PNCC directly to PEC and currently under evaluation
66.5 million
Total
P99.1 million
There has been no funding allocation for any of the above escalation
claims due to budgetary constraints.
The MIA Project has been completed and operational as far back as 1982
and yet residual amounts due to PNCC have not been paid, resulting in
undue burden to PNCC due to additional cost of money to service its
obligations for this contract.
To allow PNCC to collect partially its billings, and in consideration of its
pending escalation billings, may we request for His Excellencys approval for
a deferment of the repayment of PNCCs advances to the extent of P30
million corresponding to about 30% of P99.1 million in escalation claims of
PNCC, of which P32.5 million has been officially recognized by MIADP
consultants but could not be paid due to lack of funding.Korte
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out
of existing MIA Project funds. This amount represents the excess of the
gross billings of PNCC of P98.4 million over the undeferred portion of the
repayment of advances of P63.9 million.
(Sgd.) ROBERTO V. ONGPIN
Minister[5]
In obedience to President Marcos verbal instruction and memorandum,
Tabuena, with the help of Dabao and Peralta, caused the release of P55
Million of MIAA funds by means of three (3) withdrawals.
157
The first withdrawal was made on January 10, 1986 for P25 Million,
following a letter of even date signed by Tabuena and Dabao requesting
the PNB extension office at the MIAA - the depository branch of MIAA
funds, to issue a managers check for said amount payable to Tabuena. The
check was encashed, however, at the PNB Villamor Branch. Dabao and the
cashier of the PNB Villamor branch counted the money after which,
Tabuena took delivery thereof. The P25 Million in cash were then placed in
peerless boxes and duffle bags, loaded on a PNB armored car and
delivered on the same day to the office of Mrs. Gimenez located at Aguado
Street fronting Malacaang. Mrs. Gimenez did not issue any receipt for the
money received.
Similar circumstances surrounded the second withdrawal/encashment and
delivery of another P25 Million, made on January 16, 1986.
The third and last withdrawal was made on January 31, 1986 for P5 Million.
Peralta was Tabuenas co-signatory to the letter- request for a managers
check for this amount. Peralta accompanied Tabuena to the PNB Villamor
branch as Tabuena requested him to do the counting of the P5 Million.
After the counting, the money was placed in two (2) peerless boxes which
were loaded in the trunk of Tabuenas car. Peralta did not go with Tabuena
to deliver the money to Mrs. Gimenez office at Aguado Street. It was only
upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for all
the amounts she received from Tabuena. The receipt, dated January 30,
1986, reads:
Malacaang
Manila
January 30, 1986
RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE
MILLION PESOS (P55,000,000.00) as of the following dates:
Jan. 10 - P25,000,000.00
Jan. 16 - 25,000,000.00

Jan. 30 - 5,000,000.00
(Sgd.) Fe Roa-Gimenez
The disbursement of the P55 Million was, as described by Tabuena and
Peralta themselves, out of the ordinary and not based on the normal
procedure. Not only were there no vouchers prepared to support the
disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt
for the P55 Million was presented. Defense witness Francis Monera, then
Senior Assistant Vice President and Corporate Comptroller of PNCC, even
affirmed in court that there were no payments made to PNCC by MIAA for
the months of January to June of 1986.
The position of the prosecution was that there were no outstanding
obligations in favor of PNCC at the time of the disbursement of the P55
Million. On the other hand, the defense of Tabuena and Peralta, in short,
was that they acted in good faith. Tabuena claimed that he was merely
complying with the MARCOS Memorandum which ordered him to forward
immediately to the Office of the President P55 Million in cash as partial
payment of MIAAs obligations to PNCC, and that he (Tabuena) was of the
belief that MIAA indeed had liabilities to PNCC. Peralta for his part shared
the same belief and so he heeded the request of Tabuena, his superior, for
him (Peralta) to help in the release of P5 Million.
With the rejection by the Sandiganbayan of their claim of good faith which
ultimately led to their conviction, Tabuena and Peralta now set forth a
total of ten (10) errors[6] committed by the Sandiganbayan for this Courts
consideration. It appears, however, that at the core of their plea that we
acquit them are the following:
1) the Sandiganbayan convicted them of a crime not charged in the
amended informations, and
2) they acted in good faith.
158
Anent the first proposition, Tabuena and Peralta stress that they were
being charged with intentional malversation, as the amended informations
commonly allege that:
x x x accused x x x conspiring, confederating and confabulating with each
other, did then and there wilfully, unlawfully, feloniously, and with intent
to defraud the government, take and misappropriated the amount of x x x.
But it would appear that they were convicted of malversation by
negligence. In this connection, the Courts attention is directed to p. 17 of
the December 20, 1991 Resolution (denying Tabuenas and Peraltas motion
for reconsideration) wherein the Sandiganbayan said:
xxxxxxxxx
On the contrary, what the evidence shows is that accused Tabuena
delivered the P55 Million to people who were not entitled thereto, either
as representatives of MIAA or of the PNCC.Sclaw
It proves that Tabuena had deliberately consented or permitted through
negligence or abandonment, some other person to take such public funds.
Having done so, Tabuena, by his own narration, has categorically
demonstrated that he is guilty of the misappropriation or malversation of
P55 Million of public funds. (Underscoring supplied.)
To support their theory that such variance is a reversible flaw, Tabuena
and Peralta argue that:
1) While malversation may be committed intentionally or by negligence,
both modes cannot be committed at the same time.
2) The Sandiganbayan was without jurisdiction to convict them of
malversation of negligence where the amended informations charged
them with intentional malversation.[7]
3) Their conviction of a crime different from that charged violated their
constitutional right to be informed of the accusation.[8]
We do not agree with Tabuena and Peralta on this point. Illuminative and
controlling is Cabello v. Sandiganbayan[9] where the Court passed upon
similar protestations raised by therein accused-petitioner Cabello whose
conviction for the same crime of malversation was affirmed, in this wise:
x x x even on the putative assumption that the evidence against petitioner
yielded a case of malversation by negligence but the information was for
intentional malversation, under the circumstances of this case his
conviction under the first mode of misappropriation would still be in order.
Malversation is committed either intentionally or by negligence. The dolo
or the culpa present in the offense is only a modality in the perpetration of
the felony. Even if the mode charged differs from the mode proved, the
same offense of malversation is involved and conviction thereof is proper.
x x x.
In Samson vs. Court of Appeals, et. al., we held that an accused charged
with willful or intentional falsification can validly be convicted of
falsification through negligence, thus:
While a criminal negligent act is not a simple modality of a willful crime, as
we held in Quizon vs. Justice of the Peace of Bacolor, G.R. No. L-6641, July
28, 1995, but a distinct crime in our Penal Code, designated as a quasi
offense in our Penal Code, it may however be said that a conviction for the
former can be had under an information exclusively charging the
commission of a willful offense, upon the theory that the greater includes
the lesser offense. This is the situation that obtains in the present case.
Appellant was charged with willful falsification but from the evidence
submitted by the parties, the Court of Appeals found that in effecting the
falsification which made possible the cashing of the checks in question,
appellant did not act with criminal intent but merely failed to take proper
and adequate means to assure himself of the identity of the real claimants
as an ordinary prudent man would do. In other words, the information
alleges acts which charge willful falsification but which turned out to be
not willful but negligent. This is a case covered by the rule when there is a
variance between the allegation and proof, and is similar to some of the
cases decided by this Tribunal.
xxx
159
Moreover, Section 5, Rule 116, of the Rules of Court does not require that
all the essential elements of the offense charged in the information be
proved, it being sufficient that some of said essential elements or
ingredients thereof be established to constitute the crime proved. x x x.
The fact that the information does not allege that the falsification was
committed with imprudence is of no moment for here this deficiency
appears supplied by the evidence submitted by appellant himself and the
result has proven beneficial to him. Certainly, having alleged that the
falsification has been willful, it would be incongruous to allege at the same
time that it was committed with imprudence for a charge of criminal intent
is incompatible with the concept of negligence.
Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated
rationale and arguments also apply to the felony of malversation, that is,
that an accused charged with willful malversation, in an information
containing allegations similar to those involved in the present case, can be
validly convicted of the same offense of malversation through negligence
where the evidence sustains the latter mode of perpetrating the offense.
Going now to the defense of good faith, it is settled that this is a valid
defense in a prosecution for malversation for it would negate criminal
intent on the part of the accused. Thus, in the two (2) vintage, but
significant malversation cases of US v. Catolico[10] and US v. Elvia,[11] the
Court stressed that:
To constitute a crime, the act must, except in certain crimes made such by
statute, be accompanied by a criminal intent, or by such negligence or
indifference to duty or to consequences as, in law, is equivalent to criminal
intent. The maxim is actus non facit reum, nisi mens sit rea - a crime is not
committed if the mind of the person performing the act complained of is
innocent.
The rule was reiterated in People v. Pacana,[12] although this case
involved falsification of public documents and estafa:
Ordinarily, evil intent must unite with an unlawful act for there to be a
crime. Actus non facit reum, nisi mens sit rea. There can be no crime when
the criminal mind is wanting.
American jurisprudence echoes the same principle. It adheres to the view
that criminal intent in embezzlement is not based on technical mistakes as
to the legal effect of a transaction honestly entered into, and there can be
no embezzlement if the mind of the person doing the act is innocent or if
there is no wrongful purpose.[13] The accused may thus always introduce
evidence to show he acted in good faith and that he had no intention to
convert.[14] And this, to our mind, Tabuena and Peralta had meritoriously
shown.
In so far as Tabuena is concerned, with the due presentation in evidence of
the MARCOS Memorandum, we are swayed to give credit to his claim of
having caused the disbursement of the P55 Million solely by reason of such
memorandum. From this premise flows the following reasons and/or
considerations that would buttress his innocence of the crime of
malversation.
First. Tabuena had no other choice but to make the withdrawals, for that
was what the MARCOS Memorandum required him to do. He could not be
faulted if he had to obey and strictly comply with the presidential directive,
and to argue otherwise is something easier said than done. Marcos was
undeniably Tabuenas superior the former being then the President of the
Republic who unquestionably exercised control over government agencies
such as the MIAA and PNCC.[15] In other words, Marcos had a say in
matters involving inter-government agency affairs and transactions, such
as for instance, directing payment of liability of one entity to another and
the manner in which it should be carried out. And as a recipient of such
kind of a directive coming from the highest official of the land no less, good
faith should be read on Tabuenas compliance, without hesitation nor any
question, with the MARCOS Memorandum. Tabuena therefore is entitled
to the justifying circumstance of Any person who acts in obedience to an
order issued by a superior for some lawful purpose.[16] The subordinate-
superior relationship between Tabuena and Marcos is clear. And so too, is
the lawfulness of the order contained in the MARCOS Memorandum, as it
has for its purpose partial payment of the liability of one government
160
agency (MIAA) to another (PNCC). However, the unlawfulness of the
MARCOS Memorandum was being argued, on the observation, for
instance, that the Ongpin Memo referred to in the presidential directive
reveals a liability of only about P34.5 Million. The Sandiganbayan in this
connection said:
Exhibits 2 and 2-a (pages 1 and 2 of the memorandum of Min. Ongpin to
the President dated January 7, 1985) were mainly:
a.) for the approval of eight Supplemental Contracts; and
b.) a request for partial deferment of payment by PNCC for advances made
for the MIAA Development Project, while at the same time recognizing
some of the PNCCs escalation billings which would result in making
payable to PNCC the amount of P34.5 million out of existing MIAA Project
funds.
Thus:
xxx
To allow PNCC to collect partially its billings, and in consideration of its
pending escalation billings, may we request for His Excellencys approval for
a deferment of repayment of PNCCs advances to the extent of P30 million
corresponding to about 30% of P99.1 million in escalation claims of PNCC,
of which P32.6 million has been officially recognized by MIADP consultants
but could not be paid due to lack of funding.
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out
of existing MIA Project funds. This amount represents the excess of the
gross billings of PNCC of P98.4 million over the undeferred portion of the
repayment of advances of P63.9 million.
While Min. Ongpin may have, therefore recognized the escalation claims of
the PNCC to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial
portion thereof was still in the stages of evaluation and approval, with only
P32.6 million having been officially recognized by the MIADP consultants.
If any payments were, therefore, due under this memo for Min. Ongpin
(upon which President Marcos Memo was based) they would only be for a
sum of up to P34.5 million.[17]
xxxxxxxxx
V. Pres. Marcos order to Tabuena dated January 8, 1986 baseless.
Not only was Pres. Marcos Memo (Exhibit 1) for Tabuena to pay P55
million irrelevant, but it was actually baseless.
This is easy to see.
Exhibit 1 purports to refer itself to the Ongpin Memorandum (Exhibit 2, 2-
a); Exhibit 1, however, speaks of P55 million to be paid to the PNCC while
Exhibit 2 authorized only P34.5 million. The order to withdraw the amount
of P55 million exceeded the approved payment of P34.5 million by P20.5
million. Min. Ongpins Memo of January 7, 1985 could not therefore serve
as a basis for the Presidents order to withdraw P55 million.[18]
Granting this to be true, it will not nevertheless affect Tabuenas good faith
so as to make him criminally liable. What is more significant to consider is
that the MARCOS Memorandum is patently legal (for on its face it directs
payment of an outstanding liability) and that Tabuena acted under the
honest belief that the P55 million was a due and demandable debt and
that it was just a portion of a bigger liability to PNCC. This belief is
supported by defense witness Francis Monera who, on direct examination,
testified that:
ATTY ANDRES
Q Can you please show us in this Exhibit 7 and 7-a where it is indicated the
receivables from MIA as of December 31, 1985?
A As of December 31, 1985, the receivables from MIA is shown on page 2,
marked as Exhibit 7-a, sir, P102,475,392.35.
x x x x x x x x x.[19]
161
ATTY. ANDRES
Q Can you tell us, Mr. Witness, what these obligations represent?
WITNESS
A These obligations represent receivables on the basis of our billings to
MIA as contract-owner of the project that the Philippine National
Construction Corporation constructed. These are billings for escalation
mostly, sir.
Q What do you mean by escalation?
A Escalation is the component of our revenue billings to the contract-
owner that are supposed to take care of price increases, sir.
x x x x x x x x x.[20]
ATTY ANDRES
Q When you said these are accounts receivable, do I understand from you
that these are due and demandable?
A Yes, sir.[21]
Thus, even if the order is illegal if it is patently legal and the subordinate is
not aware of its illegality, the subordinate is not liable, for then there
would only be a mistake of fact committed in good faith.[22] Such is the
ruling in Nassif v. People[23] the facts of which, in brief, are as follows:
Accused was charged with falsification of commercial document. A mere
employee of R.J. Campos, he inserted in the commercial document alleged
to have been falsified the word sold by order of his principal. Had he
known or suspected that his principal was committing an improper act of
falsification, he would be liable either as a co-principal or as an accomplice.
However, there being no malice on his part, he was exempted from
criminal liability as he was a mere employee following the orders of his
principal.[24]
Second. There is no denying that the disbursement, which Tabuena
admitted as out of the ordinary, did not comply with certain auditing rules
and regulations such as those pointed out by the Sandiganbayan, to wit:
a) [except for salaries and wages and for commutation of leaves] all
disbursements above P1,000.00 should be made by check (Basic Guidelines
for Internal Control dated January 31, 1977 issued by COA)
b) payment of all claims against the government had to be supported with
complete documentation (Sec. 4, P.D. 1445, State Auditing Code of the
Philippines). In this connection, the Sandiganbayan observed that:
There were no vouchers to authorize the disbursements in question. There
were no bills to support the disbursement. There were no certifications as
to the availability of funds for an unquestionably staggering sum of P55
Million.[25]
c) failure to protest (Sec. 106, P.D. 1445)
But this deviation was inevitable under the circumstances Tabuena was in.
He did not have the luxury of time to observe all auditing procedures of
disbursement considering the fact that the MARCOS Memorandum
enjoined his immediate compliance with the directive that he forward to
the Presidents Office the P55 Million in cash. Be that as it may, Tabuena
surely cannot escape responsibility for such omission. But since he was
acting in good faith, his liability should only be administrative or civil in
nature, and not criminal. This follows the decision in Villacorta v.
People[26] where the Court, in acquitting therein accused municipal
treasurer of Pandan, Catanduanes of malversation after finding that he
incurred a shortage in his cash accountability by reason of his payment in
good faith to certain government personnel of their legitimate wages,
leave allowances, etc., held that:
Nor can negligence approximating malice or fraud be attributed to
petitioner. If he made wrong payments, they were in good faith mainly to
162
government personnel, some of them working at the provincial auditors
and the provincial treasurers offices. And if those payments ran counter to
auditing rules and regulations, they did not amount to a criminal offense
and he should only be held administratively or civilly liable.
Likewise controlling is US v. Elvia[27] where it was held that payments in
good faith do not amount to criminal appropriation, although they were
made with insufficient vouchers or improper evidence. In fact, the
Dissenting Opinions reference to certain provisions in the revised Manual
on Certificate of Settlement and Balances - apparently made to underscore
Tabuenas personal accountability, as agency head, for MIAA funds - would
all the more support the view that Tabuena is vulnerable to civil sanctions
only. Sections 29.2 and 29.5 expressly and solely speak of civilly liable to
describe the kind of sanction imposable on a superior officer who performs
his duties with bad faith, malice or gross negligence and on a subordinate
officer or employee who commits willful or negligent acts x x x which are
contrary to law, morals, public policy and good customs even if he acted
under order or instructions of his superiors.
Third. The Sandiganbayan made the finding that Tabuena had already
converted and misappropriated the P55 Million when he delivered the
same to Mrs. Gimenez and not to the PNCC, proceeding from the following
definitions/concepts of conversion:
Conversion, as necessary element of offense of embezzlement, being the
fraudulent appropriation to ones own use of anothers property which does
not necessarily mean to ones personal advantage but every attempt by
one person to dispose of the goods of another without right as if they were
his own is conversion to his own use. (Terry v. Water Improvement Dist.
No. 5 of Tulsa County, 64 p. 2d 904, 906, 179 Okl. 106)
- At p. 207, Words and Phrases,
Permanent Edition 9A.
Conversion is any interference subversive of the right of the owner of
personal property to enjoy and control it. The gist of conversion is the
usurpation of the owners right of property, and not the actual damages
inflicted. Honesty of purpose is not a defense. (Ferrera v. Parks, 23 p. 883,
885 19 Or. 141)
- At page 168, id.
xxxxxxxxx
The words convert and misappropriate connote an act of using or
disposing of anothers property as if it were ones own. They presuppose
that the thing has been devoted to a purpose or use different from that
agreed upon. To appropriate to ones own use includes not only conversion
to ones personal advantage but every attempt to dispose of the property
of another without right.
People vs. Webber, 57 O.G.
p. 2933, 2937
By placing them at the disposal of private persons without due
authorization or legal justification, he became as guilty of malversation as
if he had personally taken them and converted them to his own use.
People vs. Luntao, 50 O.G.
p. 1182, 1183[28]
We do not agree. It must be stressed that the MARCOS Memorandum
directed Tabuena to pay immediately the Philippine National Construction
Corporation, thru this office, the sum of FIFTY FIVE MILLION...., and that
was what Tabuena precisely did when he delivered the money to Mrs.
Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the
President inasmuch as Mrs. Gimenez was Marcos secretary then.
Furthermore, Tabuena had reasonable ground to believe that the
President was entitled to receive the P55 Million since he was certainly
aware that Marcos, as Chief Executive, exercised supervision and control
over government agencies. And the good faith of Tabuena in having
delivered the money to the Presidents office (thru Mrs. Gimenez), in strict
compliance with the MARCOS Memorandum, was not at all affected even
163
if it later turned out that PNCC never received the money. Thus, it has been
said that:
Good faith in the payment of public funds relieves a public officer from the
crime of malversation.
xxxxxxxxx
Not every unauthorized payment of public funds is malversation. There is
malversation only if the public officer who has custody of public funds
should appropriate the same, or shall take or misappropriate or shall
consent, or through abandonment or negligence shall permit any other
person to take such public funds. Where the payment of public funds has
been made in good faith, and there is reasonable ground to believe that
the public officer to whom the fund had been paid was entitled thereto, he
is deemed to have acted in good faith, there is no criminal intent, and the
payment, if it turns out that it is unauthorized, renders him only civilly but
not criminally liable.[29]
Fourth. Even assuming that the real and sole purpose behind the MARCOS
Memorandum was to siphon-out public money for the personal benefit of
those then in power, still, no criminal liability can be imputed to Tabuena.
There is no showing that Tabuena had anything to do whatsoever with the
execution of the MARCOS Memorandum. Nor is there proof that he
profited from the felonious scheme. In short, no conspiracy was
established between Tabuena and the real embezzler/s of the P55 Million.
In the cases of US v. Acebedo[30] and Ang v. Sandiganbayan,[31] both also
involving the crime of malversation, the accused therein were acquitted
after the Court arrived at a similar finding of non-proof of conspiracy. In
Acebedo, therein accused, as municipal president of Palo, Leyte, was
prosecuted for and found guilty by the lower court of malversation after
being unable to turn over certain amounts to the then justice of the peace.
It appeared, however, that said amounts were actually collected by his
secretary Crisanto Urbina. The Court reversed Acebedos conviction after
finding that the sums were converted by his secretary Urbina without the
knowledge and participation of Acebedo. The Court said, which we herein
adopt:
No conspiracy between the appellant and his secretary has been shown in
this case, nor did such conspiracy appear in the case against Urbina. No
guilty knowledge of the theft committed by the secretary was shown on
the part of the appellant in this case, nor does it appear that he in any way
participated in the fruits of the crime. If the secretary stole the money in
question without the knowledge or consent of the appellant and without
negligence on his part, then certainly the latter can not be convicted of
embezzling the same money or any part thereof.[32]
In Ang, accused-petitioner, as MWSS bill collector, allowed part of his
collection to be converted into checks drawn in the name of one Marshall
Lu, a non-customer of MWSS, but the checks were subsequently
dishonored. Ang was acquitted by this Court after giving credence to his
assertion that the conversion of his collections into checks were thru the
machinations of one Lazaro Guinto, another MWSS collector more senior
to him. And we also adopt the Courts observation therein, that:
The petitioners alleged negligence in allowing the senior collector to
convert cash collections into checks may be proof of poor judgment or too
trusting a nature insofar as a superior officer is concerned but there must
be stronger evidence to show fraud, malice, or other indicia of
deliberateness in the conspiracy cooked up with Marshall Lu. The
prosecution failed to show that the petitioner was privy to the
conspirational scheme. Much less is there any proof that he profited from
the questioned acts. Any suspicions of conspiracy, no matter how sincerely
and strongly felt by the MWSS, must be converted into evidence before
conviction beyond reasonable doubt may be imposed.[33]
The principles underlying all that has been said above in exculpation of
Tabuena equally apply to Peralta in relation to the P5 Million for which he
is being held accountable, i.e., he acted in good faith when he, upon the
directive of Tabuena, helped facilitate the withdrawal of P5 Million of the
P55 Million of the MIAA funds.
This is not a sheer case of blind and misguided obedience, but obedience in
good faith of a duly executed order. Indeed, compliance to a patently
lawful order is rectitude far better than contumacious disobedience. In the
case at bench, the order emanated from the Office of the President and
164
bears the signature of the President himself, the highest official of the
land. It carries with it the presumption that it was regularly issued. And on
its face, the memorandum is patently lawful for no law makes the payment
of an obligation illegal. This fact, coupled with the urgent tenor for its
execution constrains one to act swiftly without question. Obedientia est
legis essentia. Besides, the case could not be detached from the realities
then prevailing. As aptly observed by Mr. Justice Cruz in his dissenting
opinion:
We reject history in arbitrarily assuming that the people were free during
the era and that the judiciary was independent and fearless. We know it
was not; even the Supreme Court at that time was not free. This is an
undeniable fact that we can not just blink away. Insisting on the contrary
would only make our sincerity suspect and even provoke scorn for what
can only be described as our incredible credulity.[34]
But what appears to be a more compelling reason for their acquittal is the
violation of the accuseds basic constitutional right to due process. Respect
for the Constitution, to borrow once again Mr. Justice Cruzs words, is more
important than securing a conviction based on a violation of the rights of
the accused.[35] While going over the records, we were struck by the way
the Sandiganbayan actively took part in the questioning of a defense
witness and of the accused themselves. Tabuena and Peralta may not have
raised this as an error, there is nevertheless no impediment for us to
consider such matter as additional basis for a reversal since the settled
doctrine is that an appeal throws the whole case open to review, and it
becomes the duty of the appellate court to correct such errors as may be
found in the judgment appealed from whether they are made the subject
of assignments of error or not.[36]
Simply consider the volume of questions hurled by the Sandiganbayan. At
the taking of the testimony of Francis Monera, then Senior Assistant Vice
President and Corporate Comptroller of PNCC, Atty. Andres asked sixteen
(16) questions on direct examination. Prosecutor Viernes only asked six (6)
questions on cross-examination in the course of which the court
interjected a total of twenty-seven (27) questions (more than four times
Prosecutor Viernes questions and even more than the combined total of
direct and cross-examination questions asked by the counsels). After the
defense opted not to conduct any re-direct examination, the court further
asked a total of ten (10) questions.[37] The trend intensified during
Tabuenas turn on the witness stand. Questions from the court after
Tabuenas cross-examination totalled sixty-seven (67).[38] This is more
than five times Prosecutor Viernes questions on cross-examination (14),
and more than double the total of direct examination and cross-
examination questions which is thirty-one (31) [17 direct examination
questions by Atty. Andres plus 14 cross-examination questions by
Prosecutor Viernes]. In Peraltas case, the Justices, after his cross-
examination, propounded a total of forty-one (41) questions.[39]
But more importantly, we note that the questions of the court were in the
nature of cross examinations characteristic of confrontation, probing and
insinuation.[40] (The insinuating type was best exemplified in one question
addressed to Peralta, which will be underscored.) Thus we beg to quote in
length from the transcripts pertaining to witness Monera, Tabuena and
Peralta. (Questions from the Court are marked with asterisks and italicized
for emphasis.)
(MONERA)
(As a background, what was elicited from his direct examination is that the
PNCC had receivables from MIAA totalling P102,475,392.35, and although
such receivables were largely billings for escalation, they were nonetheless
all due and demandable. What follows are the cross-examination of
Prosecutor Viernes and the court questions).
CROSS-EXAMINATION BY PROS. VIERNES
Q You admit that as shown by these Exhibits 7 and 7-a, the items here
represent mostly escalation billings. Were those escalation billings
properly transmitted to MIA authorities?
A I dont have the documents right now to show that they were
transmitted, but I have a letter by our President, Mr. Olaguer, dated July 6,
1988, following up for payment of the balance of our receivables from
MIA, sir.
165
*AJ AMORES
*Q This matter of escalation costs, is it not a matter for a conference
between the MIA and the PNCC for the determination as to the correct
amount?
A I agree, your Honor. As far as we are concerned, our billings are what we
deemed are valid receivables. And, in fact, we have been following up for
payment.
*Q This determination of the escalation costs was it accepted as the
correct figure by MIA?
A I dont have any document as to the acceptance by MIA, your Honor, but
our company was able to get a document or a letter by Minister Ongpin to
President Marcos, dated January 7, 1985, with a marginal note or approval
by former President Marcos.
*PJ GARCHITORENA
*Q Basically, the letter of Mr. Ongpin is to what effect?
A The subject matter is approval of the supplementary contract and
request for partial deferment of payment for MIA Development Project,
your Honor.
*Q It has nothing to do with the implementation of the escalation costs?
A The details show that most of the accounts refer to our escalations, your
Honor.
*Q Does that indicate the computation for escalations were already billed
or you do not have any proof of that?
A Our subsidiary ledger was based on billings to MIA and this letter of
Minister Ongpin appears to have confirmed our billings to MIA, your
Honor.
*AJ AMORES
*Q Were there partial payments made by MIA on these escalation billings?
A Based on records available as of today, the P102 million was reduced to
about P56.7 million, if my recollection is correct, your Honor.
*PJ GARCHITORENA
*Q Were the payments made before or after February 1986, since Mr.
Olaguer is a new entrant to your company?
WITNESS
A The payments were made after December 31, 1985 but I think the
payments were made before the entry of our President, your Honor.
Actually, the payment was in the form of: assignments to State Investment
of about P23 million; and then there was P17.8 million application against
advances made or formerly given; and there were payments to PNCC of
about P2.6 million and there was a payment for application on withholding
and contractual stock of about P1 million; that summed up to P44.4 million
all in all. And you deduct that from the P102 million, the remaining balance
would be about P57 million.
*PJ GARCHITORENA
*Q What you are saying is that, for all the payments made on this P102
million, only P2 million had been payments in cash?
A Yes, your Honor.
*Q The rest had been adjustments of accounts, assignments of accounts,
or offsetting of accounts?
A Yes, your Honor.
*Q This is as of December 31, 1985?
166
A The P102 million was as of December 31, 1985, your Honor, but the
balances is as of August 1987.
*Q We are talking now about the P44 million, more or less, by which the
basic account has been reduced. These reductions, whether by adjustment
or assignment or actual delivery of cash, were made after December 31,
1985?
WITNESS
A Yes, your Honor.
*Q And your records indicate when these adjustments and payments were
made?
A Yes, your Honor.
*AJ AMORES
*Q You said there were partial payments before of these escalation
billings. Do we get it from you that there was an admission of these
escalation costs as computed by you by MIA, since there was already
partial payments?
A Yes, your Honor.
*Q How were these payments made before February 1986, in case or
check, if there were payments made?
A The P44 million payments was in the form of assignments, your Honor.
*PJ GARCHITORENA
*Q The question of the Court is, before December 31, 1985, were there
any liquidations made by MIA against these escalation billings?
A I have not reviewed the details of the record, your Honor. But the ledger
card indicates that there were collections on page 2 of the Exhibit earlier
presented. It will indicate that there were collections shown by credits *Q After December 31, 1985?
indicated on the credit side of the ledger.
A Yes, your Honor.
*AJ AMORES
*Q And they have liquidated that, as you described it, by way of
*Q Your ledger does not indicate the manner of giving credit to the MIA assignments, adjustments, by offsets and by P2 million of cash payment?
with respect to the escalation billings. Was the payment in cash or just
credit of some sort before December 31, 1985? A Yes, your Honor.

A Before December 31, 1985, the reference of the ledger are official *AJ AMORES
receipts and I suppose these were payments in cash, your Honor.
*Q Your standard operating procedure before December 31, 1985 in
*Q Do you know how the manner of this payment in cash was made by connection with or in case of cash payment, was the payment in cash or
MIA? check?

A I do not know, your Honor. A I would venture to say it was by check, your Honor.

*PJ GARCHITORENA *Q Which is the safest way to do it?

*Q But your records will indicate that? A Yes, your Honor.

A The records will indicate that, your Honor. *PJ GARCHITORENA

*Q Except that you were not asked to bring them? *Q And the business way?

A Yes, your Honor. A Yes, your Honor.

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

December 31, 1985?
Continue.
A Yes, your Honor.
PROS VIERNES
*PJ GARCHITORENA
Q You mentioned earlier about the letter of former Minister Ongpin to the
*Q Subsequent thereto, we are talking merely of about P44 million? former President Marcos, did you say that that letter concurs with the
escalation billings reflected in Exhibits 7 and 7-a?
A Yes, your Honor, as subsequent settlements.
WITNESS

167
A The Company or the management is of the opinion that this letter, a
copy of which we were able to get, is a confirmation of the acceptance of
our billings, sir.
Q This letter of Minister Ongpin is dated January 7, 1985, whereas the
entries of escalation billings as appearing in Exhibit 7 are dated June 30,
1985, would you still insist that the letter of January 1985 confirms the
escalation billings as of June 1985?
A Yes, sir.
Q In 1986, from your records as appearing in Exhibit 7-a, there were no
payments made to PNCC by MIA for the months of January to June 1986?
A Yes, sir.
Q And neither was the amount of P22 million remitted to PNCC by MIA?

A The entries started June 30 in the ledger card. And as of December 31, A Yes, sir.
1985, it stood at P102 million after payments were made as shown on the
credit side of the ledger. I suppose hat the earlier amount, before the PROS VIERNES
payment was made, was bigger and therefore I would venture to say that
the letter of January 7, 1985 contains an amount that is part of the original That will be all, your Honor.
contract account. What are indicated in the ledger are escalation billings.
PJ GARCHITORENA
*PJ GARCHITORENA
Redirect?
*Q We are talking about the letter of Minister Ongpin?
ATTY ANDRES
A The letter of Minister Ongpin refers to escalation billings, sir.
No redirect, your Honor.
*Q As of what date?
*PJ GARCHITORENA
A The letter is dated January 7, 1985, your Honor.
Questions from the Court.
PJ GARCHITORENA
*AJ AMORES
Continue.
*Q From your records, for the month of January 1986, there was no
PROS. VIERNES payment of this escalation account by MIA?

Q In accordance with this letter marked Exhibit 7 and 7-a, there were
credits made in favor of MIA in July and November until December 1985.
These were properly credited to the account of MIA?
WITNESS
WITNESS
A Yes, your Honor. But on page 2 of Exhibit 7 there appears an assignment
of P23 million, that was on September 25, 1986.

168
*Q But that is already under the present administration? *Q Is there a payback agreement?

A After February 1986, your Honor. A I have a copy of the assignment to State Investment but I have not yet
reviewed the same, your Honor.
*Q But before February, in January 1986, there was no payment
whatsoever by MIA to PNCC? *AJ AMORES

A Per record there is none appearing, your Honor. *Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?

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

collection letter by our President dated July 6, 1988, your Honor. The
*Q The earliest payment, whether by delivery of cash equivalent or of amount indicated in the letter is P55 million.
adjustment of account, or by assignment, or by offsets, when did these
payments begin? PJ GARCHITORENA

A Per ledger card, there were payments in 1985, prior to December 31, Any clarifications you would like to make Mr. Estebal?
1985, your Honor.
ATTY ESTEBAL
*Q After December 31, 1985?
None, your Honor.
A There appears also P23 million as credit, that is a form of settlement,
your Honor. PJ GARCHITORENA

*Q This is as of September 25? Mr. Viernes?

A Yes, your Honor. There were subsequent settlements. P23 million is just PROS VIERNES
part of the P44 million.
No more, your Honor.
*Q And what you are saying is that, PNCC passed the account to State
Investment. In other words, State Investment bought the credit of MIA? PJ GARCHITORENA

A Yes, your Honor. The witness is excused. Thank you very much Mr. Monera. x x x.[41]

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

Investment is P23 million?
(In his direct examination, he testified that he caused the preparation of
A Yes, your Honor. the checks totalling P55 Million pursuant to the MARCOS Memorandum
and that he thereafter delivered said amount in cash on the three (3) dates

169
as alleged in the information to Marcos private secretary Mrs. Jimenez at
her office at Aguado Street, who thereafter issued a receipt. Tabuena also A January 31st, your Honor.
denied having used the money for his own personal use.)
PJ GARCHITORENA
CROSS-EXAMINATION BY PROS. VIERNES
Continue.
Q The amount of P55 million as covered by the three (3) checks Mr.
Tabuena, were delivered on how many occasions? PROS VIERNES

A Three times, sir. Q You did not go to Malacaang on January 30, 1986?

Q And so, on the first two deliveries, you did not ask for a receipt from A Yes, sir, I did not.
Mrs. Gimenez?
Q Do you know at whose instance this Exhibit 3 was prepared?
A Yes, sir.
A I asked for it, sir.
Q It was only on January 30, 1986 that this receipt Exhibit 3 was issued by
Mrs. Gimenez? Q You asked for it on January 31, 1986 when you made the last delivery?

A Yes, sir. A Yes, sir.

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

*Q So January 30 is the date of the last delivery? A Yes, sir.

A I remember it was on the 31st of January, your Honor. What happened is Q This receipt was typewritten in Malacaang stationery. Did you see who
that, I did not notice the date placed by Mrs. Gimenez. typed this receipt?

*Q Are you telling us that this Exhibit 3 was incorrectly dated? A No, sir. What happened is that, she went to her room and when she
came out she gave me that receipt.
A Yes, your Honor.
*PJ GARCHITORENA
*Q Because the third delivery was on January 31st and yet the receipt was
dated January 30? *Q What you are saying is, you do not know who typed that receipt?

A Yes, your Honor. WITNESS

*Q When was Exhibit 3 delivered actually by Mrs. Gimenez? A Yes, your Honor.

170
*Q Are you making an assumption that she typed that receipt? A Because I know her signature, your Honor. I have been receiving letters
from her also and when she requests for something from me. Her writing is
A Yes, your Honor, because she knows how to type. familiar to me.

*Q Your assumption is that she typed it herself? *Q So, when the Presiding Justice asked you as to how you knew that this
was the signature of Mrs. Gimenez and you answered that you saw Mrs.
A Yes, your Honor. Gimenez signed it, you were not exactly truthful?

PJ GARCHITORENA A What I mean is, I did not see her sign because she went to her room and
when she came out, she gave me that receipt, your Honor.
Proceed.
PJ GARCHITORENA
PROS. VIERNES
That is why you have to wait for the question to be finished and listen to it
Q This receipt was prepared on January 31, although it is dated January carefully. Because when I asked you, you said you saw her signed it. Be
30? careful Mr. Tabuena.

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

Q In what particular place did Mrs. Gimenez sign this Exhibit 3? Yes, your Honor.

A In her office at Aguado, sir. PJ GARCHITORENA

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

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

Q So, she was in her room and when she came out of the room, she Q Was there another person inside the office of Mrs. Gimenez when she
handed this receipt to you already typed and signed? gave you this receipt Exhibit 3?

A Yes, sir. A Nobody, sir.

*AJ HERMOSISIMA Q I noticed in this receipt that the last delivery of the sum of P55 million
was made on January 30. Do we understand from you that this date
*Q So, how did you know this was the signature of Mrs. Gimenez? January 30 is erroneous?

WITNESS

171
A Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This We are adopting the testimony of Mr. Tabuena and we will also present
should be January 31st, sir. the accused, your Honor.

PROS VIERNES *AJ DEL ROSARIO

That will be all, your Honor. *Q From whom did you receive the Presidents memorandum marked
Exhibit 1? Or more precisely, who handed you this memorandum?
PJ GARCHITORENA
A Mrs. Fe Roa Gimenez, your Honor.
Redirect?
*Q Did you ask Mrs. Fe Gimenez for what purpose the money was being
ATTY. ANDRES asked?

No redirect, your Honor. A The money was in payment for the debt of the MIA Authority to PNCC,
your Honor.
*PJ GARCHITORENA
*Q If it was for the payment of such obligation why was there no voucher
Questions from the Court. prepared to cover such payment? In other words, why was the delivery of
the money not covered by any voucher?Calrky
*AJ HERMOSISIMA
A The instruction to me was to give it to the Office of the President, your
*Q Why did you not ask for a receipt on the first and second deliveries? Honor.

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

*PJ GARCHITORENA *Q Be that as it may, why was there no voucher to cover this particular
disbursement?
*Q So you know that the total amount to be delivered was P55 million?
A I was just told to bring it to the Office of the President, your Honor.
A Yes, your Honor.
*AJ DEL ROSARIO
PJ GARCHITORENA
*Q Was that normal procedure for you to pay in cash to the Office of the
Response by Mr. Peralta to the testimony of Mr. Tabuena. President for obligations of the MIAA in payment of its obligation to
another entity?
ATTY. ESTEBAL
WITNESS

172
A No, your Honor, I was just following the Order to me of the President. *AJ DEL ROSARIO

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

*Q So the Order was out of the ordinary? A I just said, Yes, sir, I will do it/

A Yes, your Honor. *Q Were you the one who asked for a memorandum to be signed by him?

*AJ DEL ROSARIO A No, your Honor.

*Q Did you file any written protest with the manner with which such *Q After receiving that verbal instruction for you to pay MIAAs obligation
payment was being ordered? with PNCC, did you not on your own accord already prepare the necessary
papers and documents for the payment of that obligation?
A No, your Honor.
A He told me verbally in the telephone that the Order for the payment of
*Q Why not? that obligation is forthcoming, your Honor. I will receive it.

A Because with that instruction of the President to me, I followed, your *Q Is this the first time you received such a memorandum from the
Honor. President?

*Q Before receiving this memorandum Exhibit 1, did the former President
Marcos discuss this matter with you?
A Yes, your Honor.
*Q When was that?
A He called me up earlier, a week before that, that he wants to me pay
what I owe the PNCC directly to his office in cash, your Honor.
A Yes, your Honor.
*Q And was that the last time also that you received such a memorandum?
A Yes, your Honor.
*Q Did you not inquire, if not from the President, at least from Mrs.
Gimenez why this procedure has to be followed instead of the regular
procedure?

*PJ GARCHITORENA A: No, sir.

*Q By I OWE, you mean the MIAA? *AJ DEL ROSARIO

WITNESS *Q Why did you not ask?

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

173
*AJ HERMOSISIMA WITNESS

*Q You said there was an I OWE YOU? A I was just basing it from the Order of Malacaang to pay PNCC through
the Office of the President, your Honor.
A Yes, your Honor.
*Q Do you know the President or Chairman of the Board of PNCC?
*Q Where is that I OWE YOU now?
A Yes, your Honor.
A All I know is that we owe PNCC the amount of P99.1 million, your Honor.
MIAA owes PNCC that amount. *Q How was the obligation of MIAA to PNCC incurred. Was it through the
President or Chairman of the Board?
*Q Was this payment covered by receipt from the PNCC?
A PNCC was the one that constructed the MIA, your Honor.
A It was not covered, your Honor.
*Q Was the obligation incurred through the President or Chairman of the
*Q So the obligation of MIAA to PNCC was not, for the record, cancelled by Board or President of the PNCC? In other words, who signed the contract
virtue of that payment? between PNCC and MIAA?

A Based on the order to me by the former President Marcos ordering me
to pay that amount to his office and then the mechanics will come after,
your Honor.
*Q Is the PNCC a private corporation or government entity?
A Actually, we inherited this obligation, your Honor. The one who signed
for this was the former Director of BAT which is General Singzon. Then
when the MIA Authority was formed, all the obligations of BAT were
transferred to MIAA. So the accountabilities of BAT were transferred to
MIAA and we are the ones that are going to pay, your Honor.

A I think it is partly government, your Honor. *Q Why did you agree to pay to Malacaang when your obligation was with
the PNCC?
*PJ GARCHITORENA
A I was ordered by the President to do that, your Honor.
*Q That is the former CDCP?
*Q You agreed to the order of the President notwithstanding the fact that
A Yes, your Honor. this was not the regular course or Malacaang was not the creditor?

*AJ HERMOSISIMA
*Q Why were you not made to pay directly to the PNCC considering that
you are the Manager of MIA at that time and the PNCC is a separate
corporation, not an adjunct of Malacaang?
A I saw nothing wrong with that because that is coming from the
President, your Honor.
*Q The amount was not a joke, amounting to P55 million, and you agreed
to deliver money in this amount through a mere receipt from the private
secretary?

174
 A Yes, your Honor.
A I was ordered by the President, your Honor.
*Q While you were Manager of MIA, did you have other subsequent
*PJ GARCHITORENA concurrent positions in the government also?

*Q There is no question and it can be a matter of judicial knowledge that A I was also the Chairman of the Games and Amusement Board, your
you have been with the MIA for sometime? Honor.

A Yes, your Honor. *Q But you were not the executive or operating officer of the Games and
Amusement Board?
*Q Prior to 1986?
A I was, your Honor.
A Yes, your Honor.
*Q As Chairman you were running the Games and Amusement Board?
*Q Can you tell us when you became the Manager of MIA?
A Yes, your Honor.
A I became Manager of MIA way back, late 1968, your Honor.
*Q What else, what other government positions did you occupy that time?
*Q Long before the MIA was constituted as an independent authority?
A I was also Commissioner of the Game Fowl Commission, your Honor.
A Yes, your Honor.
*PJ GARCHITORENA
*PJ GARCHITORENA
*Q That is the cockfighting?
*Q And by 1986, you have been running the MIA for 18 years?
WITNESS
WITNESS
A Yes, your Honor.
A Yes, your Honor.
*Q Here, you were just a member of the Board?
*Q And prior to your joining the MIA, did you ever work for the
government? A Yes, your Honor.

A No, your Honor. *Q So you were not running the commission?

*Q So, is it correct for us to say that your joining the MIA in 1968 as its A Yes, your Honor.
Manager was your first employment with the government?
*Q Any other entity?

175
A No more, your Honor.
*Q As far as you can recall, besides being the Manager of the MIA and later
the MIAA for approximately 18 years, you also ran the Games and
Amusement Board as its executive officer?
A Yes, your Honor.
*Q And you were a commissioner only of the Game Fowl Commission?
A Yes, your Honor.
*Q Who was running the commission at that time?
A I forgot his name, but he retired already, your Honor.
*Q And more than anything else the COA is ever anxious for proper
documentation and proper supporting papers?
A Yes, your Honor.
*Q Sometimes, regardless of the amount?
A Yes, your Honor.
*Q Now, you have P55 million which you were ordered to deliver in cash,
not to the creditor of the particular credit, and to be delivered in armored
cars to be acknowledged only by a receipt of a personal secretary. After
almost 18 years in the government service and having had that much time
in dealing with COA people, did it not occur to you to call a COA
representative and say, What will I do here?

*Q All of us who joined the government, sooner or later, meet with our A I did not, your Honor.
Resident COA representative?
*PJ GARCHITORENA
A Yes, your Honor.
*Q Did you not think that at least out of prudence, you should have asked
*PJ GARCHITORENA the COA for some guidance on this matter so that you will do it properly?

*Q And one of our unfortunate experience (sic) is when the COA WITNESS
Representative comes to us and says: Chairman or Manager, this cannot
be. And we learn later on that COA has reasons for its procedure and we A What I was going to do is, after those things I was going to tell that
learn to adopt to them? delivery ordered by the President to the COA, your Honor.

WITNESS *Q That is true, but what happened here is that you and Mr. Dabao or you
and Mr. Peralta signed requests for issuance of Managers checks and you
A Yes, your Honor. were accommodated by the PNB Office at Nichols without any internal
documentation to justify your request for Managers checks?
*Q As a matter of fact, sometimes we consider it inefficient, sometimes we
consider it foolish, but we know there is reason in this apparent madness A Yes, your Honor.
of the COA and so we comply?
*Q Of course we had no intimation at that time that Mr. Marcos will win
A Yes, your Honor. the elections but even then, the Daily Express, which was considered to be

176
a newspaper friendly to the Marcoses at that time, would occasionally
come with so-called expose, is that not so?
A Yes, your Honor.
*Q And worst, you had the so-called mosquito press that would always
come out with the real or imagined scandal in the government and place it
in the headline, do you recall that?
A Yes, your Honor.
*PJ GARCHITORENA
*Q Under these circumstances, did you not entertain some apprehension
that some disloyal employees might leak you out and banner headline it in
some mosquito publications like the Malaya at that time?
WITNESS
A No, your Honor.
*PJ GARCHITORENA
I bring this up because we are trying to find out different areas of fear. We
are in the government and we in the government fear the COA and we also
fear the press. We might get dragged into press releases on the most
innocent thing. You believe that?
A Yes, your Honor.
*Q And usually our best defense is that these activities are properly
documented?
A Yes, your Honor.
*Q In this particular instance, your witnesses have told us about three (3)
different trips from Nichols to Aguado usually late in the day almost in
177
movie style fashion. I mean, the money being loaded in the trunk of your
official car and then you had a back-up truck following your car?
A Yes, your Honor.
*Q Is that not quite a fearful experience to you?
A I did not think of that at that time, your Honor.
*PJ GARCHITORENA
*Q You did not think it fearful to be driving along Roxas Boulevard with
P25 million in the trunk of your car?
WITNESS
A We have security at that time your Honor.
ATTY. ANDRES
Your Honor, the P25 million was in the armored car; only P5 million was in
the trunk of his car.
*PJ GARCHITORENA
Thank you for the correction. Even P1 million only. How much more with
P5 million inside the trunk of your car, was that not a nervous experience?
A As I have said, your Honor, I never thought of that.
PJ GARCHITORENA
Thank you very much, Mr. Tabuena. You are excused. x x x.[42]
(PERALTA)
(He testified on direct examination that he co-signed with Tabuena a
memorandum request for the issuance of the Managers Check for P5
Million upon order of Tabuena and that he [Peralta] was aware that MIAA Was that marked in evidence?
had an existing obligation with PNCC in the amount of around P27 Million.
He affirmed having accompanied Tabuena at the PNB Villamor Branch to WITNESS
withdraw the P5 Million, but denied having misappropriated for his own
benefit said amount or any portion thereof.) Yes, your Honor.

CROSS-EXAMINATION BY PROS VIERNES *PJ GARCHITORENA

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

A At that time I was the Acting Financial Services Manager of MIAA, sir, and I have here a copy, your Honor. This was the order and it was marked as
all withdrawals of funds should have my signature because I was one of exhibit N.
the signatories at that time.

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

Mr. Tabuena in similar requests for the issuance of Managers checks by the PROS VIERNES
PNB?
It was marked as Exhibit M, your Honor.
A That is the only occasion I signed, sir.
Q How did you know there was an existing liability of MIAA in favor of
Q Did you say you were ordered by Mr. Tabuena to sign the request? PNCC at that time?

A Yes, sir, and I think the order is part of the exhibits. And based on that
order, I co-signed in the request for the issuance of Managers check in
favor of Mr. Luis Tabuena.
PROS VIERNES
Q Was there a separate written order for you to co-sign with Mr. Tabuena?
WITNESS
A Yes, sir, an order was given to me by Mr. Tabuena.
A Because prior to this memorandum of Mr. Tabuena, we prepared the
financial statement of MIAA as of December 31, 1985 and it came to my
attention that there was an existing liability of around P27,999,000.00,
your Honor.
Q When was that Financial Statement prepared?
A I prepared it around January 22 or 24, something like that, of 1986, sir.
Q Is it your usual practice to prepare the Financial Statement after the end
of the year within three (3) weeks after the end of the year?

*PJ GARCHITORENA A Yes, sir, it was a normal procedure for the MIAA to prepare the Financial
Statement on or before the 4th Friday of the month because there will be

178
a Board of Directors Meeting and the Financial Statement of the prior
month will be presented and discussed during the meeting. PROS VIERNES

*PJ GARCHITORENA Q You also stated that you were with Mr. Tabuena when you withdrew the
amount of P5 million from the PNB Extension Office at Villamor?
*Q This matter of preparing Financial Statement was not an annual activity
but a monthly activity? A Yes, sir.

A Yes, your Honor. Q Why was it necessary for you to go with him on that occasion?

*Q This Financial Statement you prepared in January of 1986 recapitulated A Mr. Tabuena requested me to do the counting by million, sir. So what I
the financial condition as of the end of the year? did was to bundle count the P5 million and it was placed in two (2)
peerless boxes.
A Yes, your Honor.
Q Did you actually participate in the counting of the money by bundles?
PJ GARCHITORENA
A Yes, sir.
Continue.
Q Bundles of how much per bundle?
PROS VIERNES
A If I remember right, the bundles consisted of P100s and P50s, sir.
Q You made mention of a request for Escalation Clause by former Minister
Ongpin. Did you personally see that request? Q No P20s and P10s?

A When this order coming from Mr. Tabuena was shown to me, I was A Yes, sir, I think it was only P100s and P50s.
shown a copy, sir. I have no file because I just read it.
*PJ GARCHITORENA
Q It was Mr. Tabuena who showed you the letter of Minister Ongpin?
*Q If there were other denominations, you can not recall?
A Yes, sir.
A Yes, your Honor.
*PJ GARCHITORENA
PROS VIERNES
And that will be Exhibit?
Q In how many boxes were those bills placed?
ATTY. ANDRES
A The P5 million were placed in two (2) peerless boxes, sir.
Exhibit 2 and 2-A, your Honor.

179
Q And you also went with Mr. Tabuena to Aguado?
That will be all, your Honor.
A No, sir, I was left behind at Nichols. After it was placed at the trunk of the
car of Mr. Tabuena, I was left behind and I went back to my office at MIA. PJ GARCHITORENA

Q But the fact is that, this P5 million was withdrawn at passed 5:00 oclock Redirect?
in the afternoon?
ATTY. ESTEBAL
A I started counting it I think at around 4:30, sir. It was after office hours.
But then I was there at around 4:00 oclock and we started counting at No redirect, your Honor.
around 4:30 p.m. because they have to place it in a room, which is the
office of the Manager at that time. *PJ GARCHITORENA

Q And Mr. Tabuena left for Malacaang after 5:00 oclock in the afternoon of Questions from the Court.
that date?
*AJ DEL ROSARIO
A Yes, sir. After we have counted the money, it was placed in the peerless
boxes and Mr. Tabuena left for Malacaang. *Q Did you not consider it as odd that your obligation with the PNCC had
to be paid in cash?
PROS VIERNES
WITNESS
Q And you yourself, returned to your office at MIA?
A Based on the order of President Marcos that we should pay in cash, it
WITNESS was not based on the normal procedure, your Honor.

A Yes, sir. *Q And, as Acting Financial Services Manager, you were aware that all
disbursements should be covered by vouchers?
Q Until what time do you hold office at the MIA?
A Yes, your Honor, the payments should be covered by vouchers. But then,
A Usually I over-stayed for one (1) or two (2) hours just to finish the paper inasmuch as what we did was to prepare a request to the PNB, then this
works in the office, sir. can be covered by Journal Voucher also.

Q So, even if it was already after 5:00 oclock in the afternoon, you still *Q Was such payment of P5 million covered by a Journal Voucher?
went back to your office at MIA?
A Yes, your Honor.
A Yes, sir.
*Q Did you present that Journal Voucher here in Court?
PROS VIERNES

180
A We have a copy, your Honor.
*Q Do you have a copy or an excerpt of that Journal Voucher presented in
Court to show that payment?
A We have a copy of the Journal Voucher, your Honor.
*Q Was this payment of P5 million ever recorded in a cashbook or other
accounting books of MIAA?
A The payment of P5 million was recorded in a Journal Voucher, your
Honor.
*Q After receiving that receipt, did you prepare the necessary supporting
documents, vouchers, and use that receipt as a supporting document to
the voucher?
A Your Honor, a Journal Voucher was prepared for that.
*Q How about a disbursement voucher?
A Inasmuch as this was a request for Managers check, no disbursement
voucher was prepared, your Honor.
*AJ DEL ROSARIO

*PJ GARCHITORENA *Q Since the payment was made on January 31, 1986, and that was very
close to the election held in that year, did you not entertain any doubt that
*Q In other words, the recording was made directly to the Journal? the amounts were being used for some other purpose?

WITNESS ATTY. ESTEBAL

A Yes, your Honor. With due respect to the Honorable Justice, we are objecting to the
question on the ground that it is improper.
*Q There are no other separate documents as part of the application for
Managers Check? *AJ DEL ROSARIO

A Yes, your Honor, there was none. I will withdraw the question.

*AJ DEL ROSARIO *PJ GARCHITORENA

*Q After the payment was made, did your office receive any receipt from What is the ground for impropriety?
PNCC?
ATTY. ESTEBAL
A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa
Gimenez, your Honor. Inasmuch as the payment should be made through This is not covered in the direct examination, and secondly, I dont think
the Office of the president, I accepted the receipt given by Mrs. Fe there was any basis, your Honor.
Gimenez to Mr. Tabuena.
*PJ GARCHITORENA

181
Considering the withdrawal of the question, just make the objection on
record.
*AJ HERMOSISIMA
*Q As a Certified Public Accountant and Financial Manager of the MIAA,
did you not consider it proper that a check be issued only after it is covered
by a disbursement voucher duly approved by the proper authorities?
A Your Honor, what we did was to send a request for a Managers check to
the PNB based on the request of Mr. Tabuena and the order of Mr.
Tabuena was based on the Order of President Marcos.
*PJ GARCHITORENA
*Q In your capacity as Financial Services Manager of the MIAA, did you not
think it proper to have this transaction covered by a disbursement
voucher?
WITNESS
A Based on my experience, payments out of cash can be made through
cash vouchers, or even though Journal Vouchers, or even through credit
memo, your Honor.
*AJ HERMOSISIMA
*Q This was an obligation of the MIAA to the PNCC. Why did you allow a
disbursement by means of check in favor of Mr. Luis Tabuena, your own
manager?
A We based the payment on the order of Mr. Tabuena because that was
the order of President Marcos to pay PNCC through the Office of the
President and it should be paid in cash, your Honor.
*Q You are supposed to pay only on legal orders. Did you consider that
legal?
182
ATTY. ESTEBAL
With due respect to the Honorable Justice, the question calls for a
conclusion of the witness.
*PJ GARCHITORENA
Considering that the witness is an expert, witness may answer.
WITNESS
A The order of president Marcos was legal at that time because the order
was to pay PNCC the amount of P5 million through the Office of the
President and it should be paid in cash, your Honor. And at that time, I
know for a fact also that there was an existing P.D. wherein the President
of the Republic of the Philippines can transfer funds from one office to
another and the PNCC is a quasi government entity at that time.
*AJ HERMOSISIMA
*Q Are you saying that this transaction was made on the basis of that P.D.
which you referred to?
A I am not aware of the motive of the President, but then since he is the
President of the Philippines, his order was to pay the PNCC through the
Office of the President, your Honor.
*Q As Financial Manager, why did you allow a payment in cash when
ordinarily payment of an obligation of MIAA is supposed to be paid in
check?
A I caused the payment through the name of Mr. Tabuena because that
was the order of Mr. Tabuena and also he received an order coming from
the President of the Philippines at that time, your Honor.
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to
correct certain statements of accounts earlier made in the same journal? The question is misleading on the ground that what the witness stated
earlier is that the Journal Voucher in this particular case was supported,
In other words, really what you are telling us is that, a Journal Voucher is to your Honor.
explain a transaction was otherwise not recorded.
*PJ GARCHITORENA
WITNESS
Overruled, may answer.
A Yes, your Honor.
WITNESS
*Q Therefore, when you said that a Journal Voucher here is proper, you
are saying it is proper only because of the exceptional nature of the A The transaction was fully documented since we have the order of the
transactions? General Manager at that time and the order of President Marcos, your
Honor.
A Yes, your Honor.
*Q Are you saying the Order of the General Manager is an adequate basis
*Q In other words, as an Accountant, you would not normally authorize for the movement of money?
such a movement of money unless it is properly documented?
A Yes, your Honor, because at that time we have also a recorded liability of
ATTY. ESTEBAL P27 million.

With due respect to the Honorable Presiding Justice, I think the question is *Q We are not talking of whether or not there was a liability. What we are
misleading because what the witness stated is... saying is, is the order of the General Manager by itself adequate with no
other supporting papers, to justify the movement of funds?
*PJ GARCHITORENA
A Yes, your Honor. The order of Mr. Luis Tabuena was based on our
Be careful in your objection because the witness understands the language existing liability of P27,931,000.00, inasmuch as we have that liability and I
you are speaking, and therefore, you might be coaching him. was shown the order of President Marcos to pay P5 million through the
Office of the President, I considered the order of Mr. Luis Tabuena, the
ATTY. ESTEBAL order of President Marcos and also the existing liability of P27 million
sufficient to pay the amount of P5 million. Inasmuch as there is also an
No, your Honor. I am also an accountant that is why I could say that... escalation clause of P99.1 million, the payment of P5 million is fully
covered by those existing documents.
*PJ GARCHITORENA
*PJ GARCHITORENA
Please be simple in your objection.
You keep flooding us with details we are not asking for. We are not asking
ATTY. ESTEBAL you whether or not there was valid obligation. We are not asking you

183
about the escalation clause. We are asking you whether or not this
particular order of Mr. Tabuena is an adequate basis to justify the *PJ GARCHITORENA
movement of funds?
*Q Under the Appropriation Act. Are payments of debts of the MIAA
WITNESS covered by the Appropriation Act?

When we pay, your Honor, we always look for the necessary documents A I think the liability was duly recorded and appropriations to pay the
and at that time I know for a fact that there was this existing liability. amount is.....

*PJ GARCHITORENA (interrupted)

When we ask questions and when we answer them, we must listen to the *PJ GARCHITORENA
question being asked and not to whatever you wanted to say. I know you
are trying to protect yourself. We are aware of your statement that there *Q Tell me honestly, is your answer responsive to the question or are you
are all of these memoranda. just throwing words at us in the hope that we will forget what the question
is?
*Q By your disbursement of such amount, you are saying that the order of
Mr. Tabuena by itself is adequate? A No, your Honor.

WITNESS *Q Are you telling us that the debts incurred by MIAA are covered by the
Appropriations Act so that the payment of this debt would be in the same
A As far as I am concerned, your Honor, inasmuch as we have a liability and level as the realignment of funds authorized the President? Or are you
I was shown the Order of President Marcos to pay PNCC through his office, telling as you did not read the Decree?
I feel that the order of the General Manager, the order of President
Marcos, and also the memorandum of Minister Ongpin are sufficient to A I was aware of that Decree, your Honor.
cause the payment of P5 million.
*PJ GARCHITORENA
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the Decrees
*Q This Presidential Decree which authorizes the President to transfer authorizing this movement of funds?
funds from one department to another, is this not the one that refers to
the realignment of funds insofar as the Appropriation Act is concerned? ATTY. ESTEBAL

WITNESS Yes, your Honor.

A Because at that time, your Honor, I have knowledge that the President is *PJ GARCHITORENA
authorized through a Presidential Decree to transfer government funds
from one office to another.

184
*Q It is true that President Marcos was the President, but he was not an
officer of the MIAA, was he?
A No, your Honor.
*Q In fact, for purposes of internal control, you have different officers and
different officials in any company either government or private, which are
supposed to check and balance each other, is it not?
A Yes, your Honor.
*Q In other words, even if Mr. Tabuena is the Manager, you as Financial
Services Manager and as counter signatory are in a position to tell Mr.
Tabuena, I am sorry, you are my superior but this disbursement is not
proper and, therefore, I will not sign it., if in your opinion the disbursement
is not proper?
A Yes, your Honor.
*Q Therefore, as co-signatory, you are expected to exercise your judgment
as to the propriety of a particular transaction?

*Q So that when disbursements of funds are made, they are made by A Yes, your Honor.
authority of not only one person alone so that nobody will restrain him?
*Q And this is something you know by the nature of your position and
A Yes, your Honor. because you are a Certified Public Accountant?

*Q These checks and balances exist in an entity so that no one person can A Yes, your Honor.
dispose of funds in any way he likes?
*AJ DEL ROSARIO
A Yes, your Honor.
*Q You admit that the payment of P5 million and P50 million were unusual
*Q And in fact, the purpose for having two (2) signatories to documents in the manner with which they were disposed?
and negotiable documents is for the same purpose?
A Yes, your Honor.
A Yes, your Honor.
*Q Did you submit a written protest to the manner in which such amount
*PJ GARCHITORENA was being disposed of?

*Q In other words, the co-signatories counter check each other? A A written protest was not made, your Honor, but I called the attention of
Mr. Tabuena that since this payment was upon the order of President
WITNESS Marcos, then I think as President he can do things which are not ordinary.

A Yes, your Honor. *Q If you did not prepare a written protest, did you at least prepare a
memorandum for the record that this was an extra-ordinary transaction?
*Q In your case, you would be the counter check for Mr. Tabuena?
A I called the attention of Mr. Tabuena that this was an extra-ordinary
A Yes, your Honor. transaction and no written note, your Honor.

185
PJ GARCHITORENA
Thank you very much Mr. Peralta, you are excused. x x x.[43]
This Court has acknowledged the right of a trial judge to question
witnesses with a view to satisfying his mind upon any material point which
presents itself during the trial of a case over which he presides.[44] But not
only should his examination be limited to asking clarificatory
questions,[45] the right should be sparingly and judiciously used; for the
rule is that the court should stay out of it as much as possible, neither
interfering nor intervening in the conduct of the trial.[46] Here, these
limitations were not observed. Hardly in fact can one avoid the impression
that the Sandiganbayan had allied itself with, or to be more precise, had
taken the cudgels for the prosecution in proving the case against Tabuena
and Peralta when the Justices cross-examined the witnesses, their cross-
examinations supplementing those made by Prosecutor Viernes and far
exceeding the latters questions in length. The cold neutrality of an
impartial judge requirement of due process was certainly denied Tabuena
and Peralta when the court, with its overzealousness, assumed the dual
role of magistrate and advocate. In this connection, the observation made
in the Dissenting Opinion to the effect that the majority of this Court was
unduly disturbed with the number of court questions alone, is quite
inaccurate. A substantial portion of the TSN was incorporated in the
majority opinion not to focus on numbers alone, but more importantly to
show that the court questions were in the interest of the prosecution and
which thus depart from that common standard of fairness and impartiality.
In fact, it is very difficult to be, upon review of the records, confronted
with numbers without necessarily realizing the partiality of the Court. In US
v. De Sisto (2 Cir., 1961, 289 F 2d 833), for example, a new trial was
required because the trial judge, as in this case, indulged in extensive
questioning of defendant and his witnesses, and the reviewing court also
had to amplify on numbers to bolster this. It was pointed out in the De
Sisto case that the judge asked 3,115 questions of all witnesses, the
prosecutor asked but 1,381, defense counsel 3,330. The judges questions
to the defendant De Sisto totalled 306, the prosecutors 347, and the
defense counsels, 201. After referring to these figures, the court stated:
186
. . . It is indeed an impressive proportion, but no such mathematical
computation is of itself determinative. However, taking all this in
conjunction with the long and vigorous examination of the defendant
himself by the judge, and the repeated belittling by the judge of
defendants efforts to establish the time that Fine left the pier, we fear that
in its zeal for arriving at the facts the court here conveyed to the jury too
strong an impression of the courts belief in the defendants probable guilt
to permit the jury freely to perform its own function of independent
determination of the facts. x x x
The majority believes that the interference by the Sandiganbayan Justices
was just too excessive that it cannot be justified under the norm applied to
a jury trial, or even under the standard employed in a non-jury trial where
the judge is admittedly given more leeway in propounding questions to
clarify points and to elicit additional relevant evidence. At the risk of being
repetitious, we will amplify on this via some specific examples. Based on
the evidence on record, and on the admission of Tabuena himself, the P55
million was delivered to the Presidents Office thru Mrs. Gimenez, in
obedience to the Presidential directive. One Sandiganbayan Justice,
however, hurled the following questions to Peralta:
AJ DEL ROSARIO
Q: Since the payment was made on January 31, 1986, and that was very
close to the election held in that year, did you not entertain any doubt that
the amounts were being used for some other purposes?
ATTY. ESTEBAL
With due respect to the Honorable Justice, We are objecting to the
question on the ground that it is
improper.
AJ DEL ROSARIO
I will withdraw the question.
PJ GARCHITORENA
*Q In other words, as an Accountant, you would not normally authorize
What is the ground for impropriety? such a movement of money unless it is properly documented?

ATTY. ESTEBAL ATTY. ESTEBAL

This is not covered in the direct examination, and secondly, I dont think With due respect to the Honorable Presiding Justice, I think the question is
there was any basis, Your Honor. misleading because what the witness stated is...

PJ GARCHITORENA *PJ GARCHITORENA

Considering the withdrawal of the question, just make the objection on Be careful in your objection because the witness understands the language
record. you are speaking, and therefore, you might be coaching him.

Nothing from the preceding questions of counsels or of the court would ATTY. ESTEBAL
serve as basis for this question. How then, can this be considered even
relevant? What is the connection between the payment made to the No, your Honor. I am also an accountant that is why I could say that...
Presidents office and the then forthcoming presidential snap election? In
another instance, consider the following questions of Presiding Justice *PJ GARCHITORENA
Garchitorena:
Please be simple in your objection.
*PJ GARCHITORENA
ATTY. ESTEBAL
*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to
correct certain statements of accounts earlier made in the same journal? The question is misleading on the ground that what the witness stated
earlier is that the Journal Voucher in this particular case was supported,
xxx your Honor.

*Q In other words, really what you are telling us is that, a Journal Voucher *PJ GARCHITORENA
is to explain a transaction was otherwise not recorded.
Overruled, may answer.
xxx
WITNESS
*Q Therefore, when you said that a Journal Voucher here is proper, you
are saying it is proper only because of the exceptional nature of the A The transaction was fully documented since we have the order of the
transactions? General Manager at that time and the order of President Marcos, your
Honor.
xxx

187
*Q Are you saying the Order of the General Manager is an adequate basis
for the movement of money?
*Q We are not talking of whether or not there was a liability. What we are
saying is, is the order of the General Manager by itself adequate with no
other supporting papers, to justify the movement of funds?
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not asking
you whether or not there was valid obligation. We are not asking you
about the escalation clause. We are asking you whether or not this
particular order of Mr. Tabuena is an adequate basis to justify the
movement of funds?
*PJ GARCHITORENA
When we ask questions and when we answer them, we must listen to the
question being asked and not to whatever you wanted to say. I know you
are trying to protect yourself. We are aware of your statement that there
are all of these memoranda.
*Q By your disbursement of such amount, you are saying that the order of
Mr. Tabuena by itself is adequate?
*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the President to transfer
funds from one department to another, is this not the one that refers to
the realignment of funds insofar as the Appropriation Act is concerned?
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts of the MIAA
covered by the Appropriation Act?
*PJ GARCHITORENA
188
*Q Tell me honestly, is your answer responsive to the question or are you
just throwing words at us in the hope that we will forget what the question
is?
xxx
*Q Are you telling us that the debts incurred by MIAA are covered by the
Appropriations Act so that the payment of this debt would be in the same
level as the realignment of funds authorized the President? Or are you
telling as you did not read the Decree?
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the Decrees
authorizing this movement of funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but he was not an
officer of the MIAA, was he?
*Q In fact, for purposes of internal control, you have different officers and
different officials in any company either government or private, which are
supposed to check and balance each other, is it not?
*Q So that when disbursements of funds are made, they are made by
authority of not only one person alone so that nobody will restrain him?
*Q These checks and balances exist in an entity so that no one person can
dispose of funds in any way he likes?
*Q And in fact, the purpose for having two (2) signatories to documents
and negotiable documents is for the same purpose?
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
*Q In your case, you would be the counter check for Mr. Tabuena?
*Q In other words, even if Mr. Tabuena is the Manager, you as Financial
Services Manager and as counter signatory are in a position to tell Mr.
Tabuena, I am sorry, you are my superior but this disbursement is not
proper and, therefore, I will not sign it., if in your opinion the disbursement
is not proper?
*Q Therefore, as co-signatory, you are expected to exercise your judgment
as to the propriety of a particular transaction?
*Q And this is something you know by the nature of your position and
because you are a Certified Public Accountant?[47]
How can these questions be considered clarificatory when they clearly
border more on cross-examination questions? Thus, the Dissenting
Opinions focus on the distinction between the two kinds of trial to justify
the Sandiganbayans active participation in the examination of petitioners
Tabuena and Peralta and witness Monera, with due respect, appears
insignificant to this case. Let it, therefore, be emphasized anew that:
A trial judge should not participate in the examination of witnesses as to
create the impression that he is allied with the prosecution.[48]
We doubt not that the sole motive of the learned judge was to ascertain
the truth of the transaction, but it is never proper for a judge to discharge
the duties of a prosecuting attorney. However anxious a judge may be for
the enforcement of the law, he should always remember that he is as
much judge in behalf of the defendant accused of crime, and whose liberty
is in jeopardy, as he is judge in behalf of the state, for the purpose of
safeguarding the interests of society.[49]
Ordinarily it is not good practice for the presiding judge himself to examine
witnesses at length. The circumstances may be such in a given case as to
189
justify the court in so doing....This court, however, has more than once said
that the examination of witnesses is the more appropriate function of
counsel, and the instances are rare and the conditions exceptional which
will justify the presiding judge in conducting an extensive examination. It is
always embarrassing for counsel to object to what he may deem improper
questions by the court. Then, in conducting a lengthy examination, it
would be almost impossible for the judge to preserve a judicial attitude.
While he is not a mere figurehead or umpire in a trial, and it is his duty to
see that justice is done, he will usually not find it necessary to conduct
such examinations. The extent to which this shall be done must largely be
a matter of discretion, to be determined by the circumstances of each
particular case, but in so doing he must not forget the function of the
judge and assume that of an advocate....[50]
While it is true that the manner in which a witness shall be examined is
largely in the discretion of the trial judge, it must be understood that we
have not adopted in this country the practice of making the presiding
judge the chief inquisitor. It is better to observe our time-honored custom
of orderly judicial procedure, even at the expense of occasional
delays....The judge is an important figure in the trial of a cause, and while
he has the right, and it is often his duty, to question witnesses to the end
that justice shall prevail, we can conceive of no other reason, for him to
take the trial of the cause out of the hands of counsel.[51]
The examination of witnesses is the more appropriate function of counsel,
and it is believed the instances are rare and the conditions exceptional in a
high degree which will justify the presiding judge in entering upon and
conducting an extended examination of a witness, and that the exercise of
a sound discretion will seldom deem such action necessary or
advisable.[52]
He [the judge] may properly intervene in a trial of a case to promote
expedition, and prevent unnecessary waste of time, or to clear up some
obscurity, but he should bear in mind that his undue interference,
impatience, or participation in the examination of witnesses, or a severe
attitude on his part toward witnesses, especially those who are excited or
terrified by the unusual circumstances of a trial, may tend to prevent the
proper presentation of the cause, or the ascertainment of the truth in
respect thereto.[53]
The impartiality of the judge his avoidance of the appearance of becoming
the advocate of either one side or the other of the pending controversy is a
fundamental and essential rule of special importance in criminal
cases....[54]
Our courts, while never unmindful of their primary duty to administer
justice, without fear or favor, and to dispose of these cases speedily and in
as inexpensive a manner as is possible for the court and the parties, should
refrain from showing any semblance of one-sided or more or less partial
attitude in order not to create any false impression in the minds of the
litigants. For obvious reasons, it is the bounden duty of all to strive for the
preservation of the peoples faith in our courts.[55]
the latter that merits our immediate attention. For the most dangerous
precedent arises when we allow ourselves to be carried away by such fears
so that it becomes lawful to sacrifice the rights of an accused to calm the
fearful. In our eagerness to bring to justice the malefactors of the Marcos
regime, we must not succumb to the temptation to commit the greatest
injustice of visiting the sins of the wrongdoers upon an innocent.
WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena
and Adolfo M. Peralta are hereby ACQUITTED of the crime of malversation
as defined and penalized under Article 217 of the Revised Penal Code. The
Sandiganbayan Decision of October 12, 1990 and the Resolution dated
December 20, 1991 are REVERSED and SET ASIDE.
SO ORDERED.

Time and again this Court has declared that due process requires no less
than the cold neutrality of an impartial judge. Bolstering this requirement,
we have added that the judge must not only be impartial but must also
appear to be impartial, to give added assurance to the parties that his
decision will be just. The parties are entitled to no less than this, as a
minimum guaranty of due process.[56]

We are well aware of the fear entertained by some that this decision may
set a dangerous precedent in that those guilty of enriching themselves at
the expense of the public would be able to escape criminal liability by the
mere expedient of invoking good faith. It must never be forgotten,
however, that we render justice on a case to case basis, always in
consideration of the evidence that is presented. Thus, where the evidence
warrants an acquittal, as in this case, we are mandated not only by the
dictates of law but likewise of conscience to grant the same. On the other
hand, it does not follow that all those similarly accused will necessarily be
acquitted upon reliance on this case as a precedent. For the decision in this
case to be a precedent, the peculiar circumstances and the evidence that
led to the petitioners acquittal must also be present in subsequent cases.

Furthermore, as between a mere apprehension of a dangerous precedent

and an actual violation of constitutionally enshrined rights, it is definitely

190